This battle will continue in earnest after Election Day when disputes about the validity of vote counts in key states could throw the result into doubt. Had Justice Ruth Bader Ginsburg lived to weigh in on such issues, we have a good sense of how she might have ruled. Her record as a stalwart defender of voting rights was clear. But how might a Justice Barrett rule?
To divine her views on election law and voting rights in general, it is important first to understand how a challenge to an election rule unfolds. Whether brought by voters or a candidate, two legal principles apply.
The first is that there is no express, affirmative right to vote set forth in the original Constitution. There are only amendments banning states from making laws excluding certain categories of Americans from voting (such as formerly enslaved men or, later, women in general). The Supreme Court has construed the Constitution as guaranteeing the right to vote because “the political franchise of voting” is “preservative of all rights.” (Even a professed “textualist” or “originalist” like Barrett would be hard-pressed to deny this principle for lack of express textual support.)
Second, the Supreme Court has devised a test for determining whether restrictions on access to the polls are constitutional. Known as the “Anderson-Burdick” balancing test (named for two Supreme Court cases involving access to the ballot), it requires courts, first, to determine whether an election law imposes a “severe burden” on an individual voter’s rights. If a court decides that a burden is “severe,” then it must apply what’s known as “strict scrutiny” to the law. This means that the government has to have a very strong reason justifying the measure, or it gets struck down. A ban on voting based on race, for example, would trigger—and fail—this test. (Although Ginsburg worked to secure the highest possible test for gender, the Supreme Court settled on a lower, “intermediate scrutiny” standard for discrimination based on sex.) If the court decides that the restriction is not severe, a lower level of scrutiny applies, meaning the government doesn’t need to work so hard to justify it. As important as these standards are, unfortunately the Supreme Court hasn’t defined these terms with much clarity, affording judges a high level of subjectivity when they analyze whether a voting restriction should stand.
Barrett knows this test well, because she applied it in a 2019 opinion she authored for the U.S. Court of Appeals for the 7th Circuit. Acevedo v. Cook County Officers Electoral Board involved a Democratic primary ballot for Cook County sheriff in Illinois. County law required the candidate to obtain signatures equal 0.5 percent of the county’s qualified voters in order to get on the ballot. That meant the plaintiff, Edward Acevedo, had to collect 8,236 valid signatures. He failed, and sued, claiming the law violated his First and 14th Amendment rights to freedom of association and equal protection. Acevedo pointed to the lower statewide requirement of only 5,000 signatures, arguing that the county’s higher threshold was unconstitutional.
In Acevedo, Barrett decided that the need “for orderly and fair elections” outweighed the relatively nonsevere First and 14th Amendment interests of the candidate. The signature requirement, she ruled, was “not severe.” Prior cases made it “hard for Acevedo to show that the 0.5 percent requirement is anything but slight, which is perhaps why he doesn’t even try.” She concluded, “[i]t goes almost without saying that this slight burden is justified by Illinois’s relevant and legitimate state interests.” She made no mention of his First Amendment argument that ballot access burdened his free association rights.
Certainly, a case involving a county sheriff has nowhere near the national impact of a case involving a presidential election as hotly contested as the one now underway. Nevertheless, the Anderson-Burdick test that would come into play in both should make a textualist such as Barrett squeamish.
It gives lifetime, unelected judges massive discretion to control state electoral processes with virtually no guiding principles from the Constitution itself. But that’s not Barrett’s fault. The test is one of many that are “read into” the Constitution by the Supreme Court—not because the justices are bad judges, but because the Constitution is hopelessly ambiguous. If a case involving the 2020 election reaches the Supreme Court over the constitutionality of state law requirements like signature-matching on mail-in ballots, notary public mandates for signing ballots, closed polling sites or limits on drop-off boxes, the Supreme Court will almost certainly apply this highly subjective test.
For Republican-led challenges to laws that make voting easier, the court will likely face the false argument that voter fraud is a serious problem in the United States. Studies show that voter fraud is exceedingly scarce, and there is no evidence to support Trump’s allegation that millions of undocumented immigrants in 2016 voted for his opponent. Will a conservative-leaning court apply low-level scrutiny and simply credit—without evidence—Republicans’ cynical arguments about staving off hypothetical voter fraud through identification requirements that disproportionately affect low-income Americans and people of color? Or will it nod in favor of voter access, in deference to the idea that the implied right to vote is the fulcrum of all other rights we hold dear?
After Nov. 3, we can also anticipate Republican-led challenges to state laws that allow election officials to count ballots after Election Day. Indeed, many states mandate that counting begin only after the last ballot is cast. For an election with an anticipated avalanche of mail-in ballots, these laws mean that poll workers will have to match signatures (with no expertise and little training), open envelopes, unfold ballots, stack them, feed them into machines and resolve any disparities before the votes are fully tallied. In a minority of states, voters are given an opportunity to correct errors. If a case were to reach the Supreme Court challenging post-Nov. 3 ballot-counting, the court would again be faced with the squishy balancing test that allows judges to apply their own discretion in deciding if a burden is severe and unjustified. And again, elusive voter fraud will be the countervailing argument.
Fast forward to 2021, and imagine a Biden administration with a Democratic House and Senate.
After Democrats won the House in 2018, the first piece of legislation passed was H.R. 1, which is widely praised by election law experts as a much-needed and reasonable set of reforms to America’s electoral system. Dubbed the For the People Act of 2019, the bill would make sweeping reforms to political gerrymandering (which the Supreme Court punted back to legislatures by rejecting a challenge in Rucho v. Common Cause last year), voting rights (which the Supreme Court hampered when it struck down a key provision of the Voting Rights Act in Shelby County v. Holder in 2013), money in campaigns (which the Supreme Court ushered in en masse by lodging First Amendment rights in corporate speech in Citizens United v. Federal Election Commission), and ethics rules for government officials (which is badly needed after Trump’s serial firing of inspectors general, a post-Watergate legislative reform designed to foster neutral oversight of those in power). Senate Majority Leader Mitch McConnell blocked the bill in his chamber, but a new Democratic majority in the Senate would likely pass it, inviting inevitable conservative legal challenges.
Conservative jurisprudence has traditionally emphasized states’ rights and deference to lawmaking performed by lawmakers who represent the electorate—and not by judges. Challenges to state voting laws passed to facilitate access during a pandemic inescapably collide with the conservative touchstone of federalism. By the same token, challenges to acts of Congress confront the other conservative ideal, which aims to keep judges out of the business of legislating.
For all her professed devotion to conservative approaches to constitutional and statutory analysis, it is not entirely clear that Barrett wouldn’t readily defer to a state’s generic interest in “fair and orderly elections” or the voters’ access to the ballot if Trump’s election were hanging in the balance. Perhaps even more than abortion, voting rights is the key issue that Senators must probe deeply with Barrett in her confirmation hearing. Literally nothing is more important to the interests of their constituents.