(Mis)Trusting States to Run Election

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This Article critically examines recent Supreme Court election law jurisprudence, with a particular eye toward cases involving state election administration—a hotbed of litigation at the Court in recent years. Election administration entails the rules of operating an election and encompasses laws such as voter identification requirements, regulation of primaries, and other "nuts-and-bolts" aspects of the voting process. The Article focuses primarily on the last decade, mainly because that is when states have increasingly enacted stricter election regulations, supposedly in the name of "election integrity," but more likely to gain partisan advantage for the ruling party. In addition, during the first decade of the Roberts Court's era, the Court's jurisprudence, in various areas, has amplified the distinction between facial and as-applied challenges, so it is important to understand the practical effects of this procedural feature of election law cases.

Part I analyzes the Court's failure to examine critically a state's asserted interests in election administration cases, while at the same time questioning more carefully Congress's reasoning for an election-related law. The analysis shows that the Court allows states to satisfy easily the governmental interest prong of the constitutional inquiry, while Congress receives greater scrutiny. Part II considers the Court's contradictory discussion of facial and as-applied challenges, particularly in cases involving election administration. Both Parts reveal that the Court is using these judicial mechanisms to defer to states in how they run elections. Part III attempts to explain why the Court is taking this approach, situating the case law within the Roberts Court's overall concept of federalism. It also highlights the influence of Chief Justice Roberts himself, showing that he has joined the majority in every single election law case of his tenure (so far) and has authored more majority opinions than any other Justice. Part IV explains why this deference to state election administration, accompanied by vigorous judicial scrutiny of federal election laws, is both incorrect and dangerous. It is wrong because the U.S. Constitution explicitly acknowledges an important and higher-level role for Congress in regulating an election; it is dangerous because it encourages states to enact partisan-based laws that, under current jurisprudence, will not receive meaningful judicial review. The Court is unwarranted in putting so much trust in the states. It should instead scrutinize more carefully a state's rules involving election administration and require both states and Congress to articulate the specific justifications for a voting regulation.

Original languageAmerican English
Pages (from-to)553-602
JournalWashington University Law Review
Issue number3
StatePublished - Jan 1 2015


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