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(Mis)Trusting States to Run Elections

Publication Title

Washington University Law Review

Abstract

Recent Supreme Court election law jurisprudence reflects an unspoken, pernicious trend. Without identifying a specific new rule, the Court has been unjustifiably deferring to state laws regarding election administration, thereby giving states tremendous power to regulate elections. At the same time, the Court has diminished Congress’s oversight role. That is a mistake. Placing too much power in states to administer elections is both constitutionally wrong and practically dangerous.

During the past few years the Court has considered many controversial election-related issues, from voter identification to campaign finance to race relations and the Voting Rights Act. The majorities in these cases have generally deferred to states to run elections as they see fit. The Court has employed light-touch judicial review to state election administration laws while at the same time subjecting federal election rules to higher scrutiny.

The Court has been deferring to states in two ways, one substantive and the other procedural. Substantively, the Court has accepted almost any assertion of a state interest to protect the integrity of the election, failing to dig deeper into the actual rationale for the state’s regulation of the voting process. Procedurally, the Court has discouraged facial challenges to state voting laws but has sustained facial challenges to congressional enactments, thereby using a procedural mechanism to uphold state rules and invalidate federal laws.

The Court’s broad deference to state voting rules is concerning for two main reasons. First, it is doctrinally inconsistent with the structure of the United States Constitution. Second, it is alarming given the increasing number of restrictive and partisan-laden voting laws states are enacting. The U.S. Constitution provides that states run elections but that Congress has important oversight responsibilities. The current judicial approach elevates a state’s role and minimizes the ability of Congress to oversee the election process. The Court’s approach is also dangerous, as it emboldens state legislatures to enact partisan voting rules in an effort to influence electoral outcomes.

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. This Article concludes that the Court is using these judicial mechanisms to defer to states in how they run elections, and it attempts to explain why the Court is taking this approach, situating the case law within the Roberts Court’s overall concept of federalism. The deference to state election administration, accompanied by vigorous judicial scrutiny of federal election laws, is both incorrect and dangerous. 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.

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