If I had to predict, I’d guess that the Anderson-Burdick framework for federal review election laws will be overturned in the next decade. What does election law litigation look like after that?
Is that a grim thought for election law scholars to consider?
The Supreme Court is showing renewed interest in revisiting a wide range of issues, including on election law. Professor Guy-Uriel Charles’s comments with NPR recently get at this: “They are teeing up statutory and constitutional questions for the Court with the justifiable belief that the Court will welcome the narrow interpretation and the opportunity to further narrow the statute.” But it’s not just the Voting Rights Act, the topic of that interview. It’s a wide range of other issues, too (election law and, obviously, other law).
So, by 2032, I would guess that Anderson-Burdick disappears. It’s increasingly become a catch-all for federal review of election laws, and by 2020, cracks were already appearing in appellate judicial opinions, as Professor Rick Hasen here noted. The Purcell principle has been a way of avoiding the merits of these cases while simultaneously bringing these cases to the Court on a routine basis, which likely makes many members of the Court wary about its continued implementation. Crawford was a plurality opinion, badly fractured on how to apply Anderson-Burdick and eroding its stare decisis value. It wouldn’t surprise me to see the framework gone in the near future.
A recent Note (which received some social media attention) in the Harvard Law Review offers a hint at a post-Anderson-Burdick world. It’s more modest than this prediction, as it calls for overturning the framework only in presidential elections. (As an aside, it’s likely that we’ll start seeing more litigation about the distinction between congressional and presidential elections.) It’s a reminder that then-Justice Rehnquist’s dissent in Anderson, a 5-4 decision, may have left the Court in a very different place by the time it decided Crawford. (Had Anderson gone the other way, and rules for ballot access differed for presidential elections from other elections, it’s quite possible that Anderson-Burdick could never had extended to election administration more generally.) Part IV of the Note surveys remaining limits on state action: the 15th, 19th, 24th, and 26th Amendments; the Equal Protection Clause; the Qualifications Clauses; the 1st Amendment; and state constitutional law. In other words, if Anderson-Burdick falls, what’s left?
I think it’s worth anticipating what election law looks like in the next decade or so. It’s a reason I spend so much time thinking about structural limitations on state power, like the Seventeenth Amendment, the Electoral Count Act, or the Qualifications Clause. It’s why the work of Professor Franita Tolson is so important as she thinks about greater structural limitations and opportunities in the context of elections, or of Professor Josh Douglas as he looks at state and local authority. And there are many others doing many interesting and useful work on a variety of fronts.
All the same, my guess is that when Anderson-Burdick falls, there will be a lot of reaction–and by that, I mean things that are reactive in nature. Given what a significant gap Anderson-Burdick has filled in the federal courts in recent years, its fall could be substantial.
Compare that to the Voting Rights Act. Northwest Austin was a clear warning sign in 2009 that Supreme Court views of a broad construction of the Voting Rights Act would be quite skeptical. Here in 2022, it’s hardly surprising to see the tranches of litigation and the Supreme Court decisions continuing along the same path clearly foreshadowed more than a decade ago. In some ways, however, the reactions continue to be reactive.
It’s worth considering what the future might hold and what alternative, even superior, litigation strategies and legal constructs look like. Election law will likely experience a period of significant instability in the near future, and projecting its future will be a crucial task in the years to come.