Category Archives: voting

“What Are the Usual Burdens of Voting?”

Jim Fischer has posted this draft on SSRN (Georgia State U. L. Rev.) Here is the abstract:

When the Court in Crawford v. Marion County Election Board approved presentment of a government-issued photo identification asa requirement to vote, Justice Stevens compared the requirement to what he characterized as “the usual burdens of voting.” SinceCrawford was decided, the concept of “the usual burdens of voting”has been invoked numerous times as lawsuits have been brought challenging state practices that are claimed to unduly burden the ability of voters to vote.
In theory, “the usual burdens of voting” serve as a benchmark against which state conditions imposed on the ability to vote can be measured to determine if the right to vote has been infringed. Yet, despite numerous uses of the phrase, courts have generally left the phrase undefined. In essence, a benchmark exists, but the content, design, and dimensions of that benchmark are amorphous.
This Article examines the development of the “usual burdens of voting” concept by Justice Stevens in Crawford and its use in subsequent decisions. This Article looks at the evolution of voting in the United States to provide some context as to how voting burdens should be understood. This Article concludes with some observations regarding the usefulness of the phrase as a means for determining whether a condition associated with voting, such as a prohibition on providing food or water to those waiting to vote, can be reliably evaluated using “the usual burdens of voting” concept.

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Update on the DOJ’s Election Threats Task Force

States Newsroom with a states’-eye view on the federal efforts.  Despite 17 charges to date, and hefty sentences in some of those cases, the wheels of justice necessarily turn slowly.  And election officials are also not thrilled about the sea of “lawful-but-awful” complaints that don’t rise to the level of a threat subject to federal prosecution.

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Important New Student Note: “Voting Wrongs and Remedial Gaps”

There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:

Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.

This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.

I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.

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Travis Crum: “Originalism, Lived Experience, and the Twenty-Sixth Amendment”

The following is a guest post from Travis Crum:

Next week, the Supreme Court will consider whether to grant cert in Cascino v. Nelson. The question presented in Cascino is whether Texas’s law allowing any voter who is sixty-five or older to request an absentee ballot violates the Twenty-Sixth Amendment, which prohibits age discrimination in voting. The Cascino litigation has been ongoing since the 2020 election cycle—when the COVID-19 pandemic heightened the case’s immediate stakes—and the Fifth Circuit’s initial decision upholding this facially discriminatory law attracted substantial attention. As I argued back in 2020, the Fifth Circuit’s egregiously wrong decision should be reversed.

Here, I want to highlight a different point: Cascino presents a rare situation when the relevant constitutional provision was adopted during the lived experiences of some of the Justices. Indeed, some Justices were teenagers at the time and were enfranchised earlier than they otherwise would have been due to its ratification. The Twenty-Sixth Amendment allowed Justice Sotomayor to vote in the 1972 presidential election and Chief Justice Roberts to vote in the 1974 midterm election. And although they weren’t directly affected by it, Justices Thomas and Alito were in college during the Twenty-Sixth Amendment’s ratification debate. For once in our age of originalism, we have originalists present during the drafting and ratification of the relevant constitutional provision.

In the cert-stage briefing, the parties are implicitly advancing different forms of originalist argument. Texas is essentially making an original expected application argument based on the underlying rationale for the Twenty-Sixth Amendment’s adoption. During the Vietnam War, the federal government drafted men who were eighteen years old. However, in all but a handful of States, citizens needed to be twenty-one years old to vote. Congress responded to the criticism that those sent to fight in Southeast Asia should be old enough to vote by lowering the voting age to eighteen when it reauthorized the Voting Rights Act in 1970. But in Oregon v. Mitchell, a deeply fractured Court concluded that Congress could lower the voting age only in federal elections—not state elections. The Court’s decision, however, risked chaos, as States were not prepared to run elections with a bifurcated electorate. Accordingly, Congress promptly proposed and the States quickly ratified the Twenty-Sixth Amendment in 1971. Texas focuses on this history to claim that the Twenty-Sixth Amendment’s raison d’etre was to lower the voting age to eighteen. And because absentee ballots were rare in the 1970s, Texas’s argument goes, the right to vote is not implicated in this case.

By contrast, the plaintiffs pitch their argument based on original meaning. That is, the right to vote includes all steps in registering and casting a ballot. Furthermore, the plaintiffs claim that the Twenty-Sixth Amendment should be read in pari materia with the Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Making the “right to vote” contingent on the timing of the relevant Amendment, as Texas would contend, risks different definitions for the same phrase based on the electoral rules in place in 1870, 1920, 1964, and 1971. To use one deeply problematic example of Texas’s argument: because secret ballots were not used during Reconstruction, it would be constitutionally permissible for a State to provide a secret ballot to only white voters.

If the Court were to grant cert in Cascino, the oral argument and opinion(s) would be a fascinating insight into how originalist arguments would function in a world with constitutional amendments. Would original expected application or original meaning prevail? Would it matter what Justice Thomas personally thought the Twenty-Sixth Amendment accomplished in 1971? What about Justice Alito’s recollection about and familiarity with absentee voting while he was in college? In a similar vein, Cascino would provide a useful exemplar of how the Court would react if Article V were revived and new constitutional amendments were ratified. If, hypothetically, our nation were to adopt a “real right to vote,” Cascino could illuminate how best to craft a legislative record and frame a public debate.

This is the third time the Court will consider whether to hear Cascino, though it is the first time the case is up on the normal—as opposed to shadow—docket. This time, the stakes are lower given the pandemic’s end, and the case has attracted—with one notable exception—less attention than in 2020. Nevertheless, Cascino raises important questions about originalism and the meaning of the Constitution’s voting rights amendments. Here’s hoping the third time’s a charm.

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Josh Douglas: “The Montana Supreme Court Correctly Recognizes a Robust Right to Vote Under the State Constitution”

The following is a guest post from Joshua A. Douglas:

The Montana Supreme Court just issued a decision that represents a model for how state courts should consider the protections for the right to vote within state constitutions.

The case, Montana Democratic Party v. Jacobson, involves four laws passed in 2021 that, a lower court found after a nine-day trial, will make it harder for some people to register or cast a ballot. (The court provided a useful two-page summary of the 125-page decision here).

First, the legislature prohibited a voter who is not yet eighteen-years-old, but will be eighteen by Election Day, from receiving and returning an absentee ballot.

Second, the legislature eliminated same-day voter registration, instead closing the registration books at noon on the day before Election Day. Same-day registration is extremely popular in Montana, with 70,000 voters using it since 2006, and the state’s electorate rejected a measure to repeal it in a 2014 referendum. But the legislature eliminated it in 2021 anyway. 

Third, the legislature passed a law to restrict ballot collection, requiring the Secretary of State to enact rules that would preclude the paid collection and submission of absentee ballots by individuals or groups. The plaintiffs showed at the lower court that many voters, especially those from Native American communities and people with disabilities, rely on organizations to deliver their completed ballots.

Finally, the legislature eliminated the use of student IDs as proper voter IDs, requiring a voter who shows a student ID to provide an additional form of documentation. But the legislature could not point to any evidence that the use of student IDs would lead to any kind of voter fraud.

Four of the court’s seven justices ruled to affirm the lower court and strike down all four laws, while the three dissenting justices agreed with the majority on some but not all of the provisions (while questioning the majority’s approach to the state constitution). The majority found that each of the laws would interfere with the state constitutional right to vote.

But the holdings, while important for Montanans’ voting rights, are only part of the story. As someone who has written extensively on the power of state constitutions to robustly safeguard the right to vote, I was most interested in the constitutional test the court applied to the  Montana Constitution’s conferral of the right to vote.  

Continue reading Josh Douglas: “The Montana Supreme Court Correctly Recognizes a Robust Right to Vote Under the State Constitution”
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“The Airtight Case Against Texas’ Mail-In Voting Age Requirements”

David Gans at Slate:

In Texas and a number of other states, voters age 65 and older have the right to vote by mail for any reason, while younger voters generally have to cast ballots in person. As a result, it is harder than it should be for millions of voters to cast a ballot, solely because of their age. Cascino v. Nelson, the case challenging Texas’ second-class treatment of younger voters, is one of the most important voting rights cases before the courts, yet it has flown under the radar. Next month, the Supreme Court will consider whether to add it to its docket.

In Cascino, the plaintiffs urge the Supreme Court to strike down Texas’ discriminatory law as a violation of the 26th Amendment’s guarantee that the “right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” SCOTUS has never interpreted the meaning of the amendment, which was ratified more than half a century ago….

The Framers of the 26th Amendment consciously wrote it to parallel the Constitution’s separate prohibitions on racial and gender discrimination in voting contained in the 15th and 19th amendments, respectively. Transcending partisan divisions, Democrats and Republicans agreed that discrimination against younger voters had no place in our democracy. As Rep. Richard Poff, a Republican congressman from Virginia, insisted: “Just as the 15th amendment prohibits racial discrimination in voting and just as the 19th amendment prohibits sex discrimination in voting, the proposed amendment would prohibit age discrimination in voting.” In short, these three amendments prohibit all voting discrimination on account of the protected characteristic—race, sex, or age—without exception.

If a state sought to confer the right to vote by mail solely on white persons or men, it would be quickly struck down as a stark violation of the 15th and 19th amendments. Under the 26th Amendment, age discrimination in voting is equally suspect. The amendment forbids laws that classify voters on account of age and deny equal voting opportunities to younger voters. Texas’ two-tiered voting system is precisely what the 26th Amendment forbids.

What does Texas say in defense of its discriminatory regime? Its main justification is that the right to vote does not include the right to vote by mail. But nothing in the text of the 26th Amendment—like that of the 15th Amendment and other voting rights amendments—carves out voting by mail from its coverage and permits blatantly discriminatory voting laws. Having chosen to allow voting by mail, Texas cannot discriminate against voters on the basis of age and deny them the right to cast mail-in ballots. Younger voters, no less than voters 65 and older, are entitled to exercise their fundamental right to vote without having to endure countless hours of waiting at a crowded polling place.

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Funding elections

Justin here. The President’s 2025 budget dropped on Monday, and it once again includes a substantial, long-term, sustained investment in funding elections. $5 billion, this time around.

I continue to think that this is right at the top of the list of critical election issues. It’s not as juicy as mapping out the endless labyrinth of hypothetical post-election shenanigans, or repeatedly saying AI — the “blockchain” of 2024. But it’s profoundly important, and (with some notable exceptions) tragically undercovered.

You want voting systems that are secure and reliable? That costs money. You want officials who know what they’re doing? That costs money. You want a communications structure able to withstand information dysfunction? That costs money. You want an electoral process that’s accessible to eligible voters? That costs money. You want results that are fast and accurate? That costs money.

Election officials have been making stone soup for way too long now, even as our expectations have expanded, county budgets have tightened, and the environment has gotten more difficult. Jurisdictions have taken philanthropic options — a last resort in the first place — off the table without stepping up to cover the gap. At this rate, we’re asking to get the elections we pay for, rather than the elections we demand and deserve.

After a few collapses, America finally decided to invest in roads, bridges, sewers, and broadband. The election system is the infrastructure of infrastructure: everything else we do in this country builds on that substrate. The President has repeatedly (FY2023 here and here, FY2024 here, FY 2025 here) tried to add the election system to the infrastructure we actually maintain. Congress has completely ignored the call. The strategy appears to be “hope it all holds up again.” Which is not actually a strategy.

Funding local election infrastructure is a profoundly bipartisan issue. Every member of Congress got their current job through the elections process, which elects Republicans in Republican areas and Democrats in Democratic areas. The bridge every member takes to get to work is the same bridge they’ve stubbornly refused to maintain. Can we please shore it up before it breaks, this time?

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Supreme Court Decision in Trump Colorado Disenfranchisement Case Almost Certainly Being Released Monday at 10 am ET (So It’s Technically Out Before Super Tuesday and Colorado Voting) and It Will Not Let Colorado Disqualify Trump

As recently as this weekend, the Supreme Court had not announced that it was going to issue opinions this week. Opinion releases usually happen when the Justices physically take the bench in Court, and the next opportunity for that which was listed on the Supreme Court website was March 15.

But the Court just changed its website to indicate that one or more opinions is going to be posted on the Supreme Court website at 10 am ET Monday morning. And the Justices won’t be taking the bench to do it.

There’s no plausible reason for this unusual break in protocol except for the potential to release the Trump Colorado disqualification case before voters vote on Super Tuesday. In fact, voters in Super Tuesday states have mostly had early voting opportunities to be voting for weeks. Tuesday is just the last day of voting. But I think the Court would like its opinion out before Colorado’s primary election day.

I certainly expect the Court is going to say that Colorado cannot disenfranchise Trump—and this would be especially true for them to issue an opinion a day before all this voting. If Trump were to be disenfranchised, the Court would not announce such a ruling the day before Super Tuesday, after many people in the jurisdiction had voted and with many more yet to vote.

The big question is not going to be if they reverse the Colorado Supreme Court but how they do so. Some ways will add some certainty and avoid chaos in the upcoming election; some may add to the chaos and I hope the Court avoids that.

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Federal Court Strikes Down Some, Upholds Other, Parts of Arizona Laws Requiring Proof of Citizenship to Register to Vote in State Elections and for State to Investigate Possible Noncitizen Registration

This is a complex ruling in a long-running case. (Via AZ Law).

From the conclusion of the 109-page opinion:

Non-US Plaintiffs may enforce § 10101 of the Civil Rights Act. Requiring individuals who register to vote using the State Form to include the individual’s state or country of birth violates the Materiality Provision of the Civil Rights Act. H.B. 2243’s Reason to Believe Provision also violates the Civil Rights Act, as well as section 8(b) of the NVRA because the provision will result in the investigation of only naturalized citizens based on county recorders’ subjective beliefs that a naturalized individual is a non-citizen.

In addition, requiring individuals registering to vote with the State Form to include documentary proof of residence to register for federal elections violates sections 6 and 7 of
the NVRA. However, Plaintiffs have not carried their burden to show that the VotingLaws’ remaining citizenship investigation procedures, DPOC requirements, and registration cancellation procedures violate the NVRA or the VRA. Nor do these provisions impose an undue burden on the right to vote or violate the equal protection and due process guarantees of the U.S. constitution. Finally, the Court concludes that Plaintiffs failed to show that the Voting Laws were enacted with any discriminatory purpose.

IT IS ORDERED declaring that A.R.S. § 16-121.01(A) violates § 10101(a)(2)(B) of the Civil Rights Act by denying Arizonans the right to vote based on errors or omissions that are not material to determining Arizonan’s eligibility to vote. Arizona may not reject State Form registrations that lack an individual’s state or country of birth and must register
an individual if that individual is found eligible to vote.

IT IS FURTHER ORDERED declaring that A.R.S. § 16-165(I) violates § 10101(a)(2)(A) of the Civil Rights Act and section 8(b) of the NVRA by subjecting naturalized citizens whom county recorders have reason to believe are non-citizens to SAVE checks, which is a different standard, practice, or procedure than that applied to native-born citizens. Arizona may not conduct SAVE checks on any registered voter whom county recorders have reason to believe are a non-citizen. But Arizona may conduct SAVE checks on registered voters who have provided DPOC. See A.R.S. § 16-165(I).

IT IS FURTHER ORDERED declaring that A.R.S. § 16-121.01(A) violates sections 6 and 7 of the NVRA by requiring Arizonans who register with the State Form to provide documentary proof of residence. Arizona may not reject State Form registrations that are not accompanied by documentary proof of residence but must register an individual without proof of residence as a Federal-Only Voter if that individual is otherwise eligible to vote.

MORE from Danielle Lang.

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“The Power of the Electorate Under State Constitutions”

Josh Douglas has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voter.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of recent scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, the Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. The Article explains these clauses and tallies how many state constitutions include each one, offering a descriptive fifty-state survey of the holistic state constitutional protection for voters. Second, the Article situates this multilayered right to vote within separation of powers principles, showing how the electorate is the most vital entity in state governance. An analogy to separation of powers ideals is a useful tool to check legislative or executive abuses of the election process. Third, the Article applies this theory to real-world voting rights disputes, arguing that courts should invalidate a law that infringes upon the multilayered right to vote. This approach differs from typical tiers of scrutiny and means-end analysis in right to vote cases. Instead, the test borrows from the non-retrogression principle once used in Voting Rights Act Section 5 cases: a plaintiff would have an evidentiary burden to show that a new law will make it harder for voters to participate or will reduce turnout. Importantly, if a legislature is taking away the power of the electorate to direct the government, then there is no valid state interest that can justify that encroachment. A plaintiff could invoke the theory by demonstrating empirically that a law will reduce voter participation.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

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“Florida’s New Driver’s License Rule Is Blatant Trans Voter Suppression”


Quietly and behind the scenes last month, the Florida Department of Highway Safety and Motor Vehicles, or FLHSMV, issued a memo indicating that it will no longer honor Floridians’ requests to amend the gender marker on their driver’s licenses. “Permitting an individual to alter his or her license to reflect an internal sense of gender role or identity, which is neither immutable nor objectively verifiable, undermines the purpose of an identification record,” Robert Kynoch, deputy executive director of the Florida Department of Highway Safety and Motor Vehicles, wrote in the memo, reciting rhetoric now often used to justify anti-trans laws. The memo closed with what could be read as a threat: “Misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud [under state law] and subjects an offender to criminal and civil penalties.” Or, said more directly, as in a statement that FLHSMV made to several media outlets after news of the memo hit the press: “You do not get to play identity politics with your driver license.”

This news is alarming for several reasons. Until now, the state had allowed residents to amend the gender marker on their licenses and state identification cards. The Department of Highway Safety and Motor Vehicles, run by a political appointee of Florida Governor Ron DeSantis, is attempting to throw out that policy in this memo. The state legislature is also currently considering something similar: House Bill 1639, which Equality Florida, the statewide LGBTQ rights group, calls the Trans Erasure Bill, includes provisions that redefine “sex” and “gender” in the law in such a way that trans Floridians would be required to list the sex they were assigned at birth on their driver’s licenses. “On the one hand, you have this policy that’s saying, You can no longer amend, and on the other hand, you have this policy that’s saying, When you’re applying for documents they have to have your sex assigned at birth,” explained Kara Gross, legislative director and senior policy counsel at ACLU Florida. “So you’re creating a situation where there’s an intent to erase trans Floridians from public life.”…

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Texas: “Does federal law cited by Tarrant County judge really ban free transit rides to polls?”

Fort Worth Star-Telegram:

Tarrant County Judge Tim O’Hare this week cited federal law to support his opposition to reimbursing Trinity Metro for free fares on primary Election Day. But, does that law actually prohibit free rides to the polls?

The County Commissioners Court on Wednesday voted down the measure along party lines. It would have reimbursed the transit agency $10,000 for the rides. Trinity Metro announced Thursday that it still plans to offer free rides to polling sites on primary Election Day, March 5.

O’Hare, a Republican, cited U.S. Code 18, section 597, which states that anyone who “makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate” could face a fine and up to one year in prison.

That statute, however, does not prohibit free bus and train rides to polling stations, according to electoral law experts consulted by the Star-Telegram….

Michael Morley, a law professor at Florida State University, said the law is meant to prohibit vote buying.

“So long as the transportation is not provided as part of a quid pro quo exchange for votes, but instead only seeks to reduce barriers to voting, it is fine,” he wrote in an email.

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