Undue Deference to States in 2020 Election Litigation

Abstract

This Essay provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in 2020. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. In at least twenty-eight cases the Supreme Court and federal appellate courts espoused this undue deference standard. Appellate courts reversed at least 18 cases where the district courts had issued pro-voter decisions. The courts did not explicitly overrule the familiar Anderson-Burdick test for the right to vote, but it applied it unfaithfully and without any rigor, failing to require states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. This mode of analysis devalues the right to vote, the most fundamental right in our democracy. Several justices and one appellate court also reinvigorated the “independent state legislature” doctrine to defer to states’ election rules, without regard for the right to vote. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.