Author: Edward B. Foley

Bush v. Gore and equal protection “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” This is the sentence that has caused so much consternation, from the majority opinion in Bush v. Gore — the case that, as its name reveals, involved the two presidential candidates in 2000 and their fight to win Florida and thus an Electoral College majority. This one sentence has been called, ever since that fateful December night when the court’s ruling was released, a confession of...

The Anderson-Burdick doctrine: Balancing the benefits and burdens of voting restrictions Almost any voting rule or procedure can be subjected to judicial scrutiny under doctrinal analysis known as Anderson-Burdick balancing. This balancing test requires courts to weigh burdens that a state imposes on electoral participation against the state’s asserted benefits, although the way in which courts are supposed to conduct this balancing is the subject of much dispute and uncertainty. Named for two Supreme Court precedents involving candidates’ access to the ballot — Anderson v. Celebrezze and Burdick v. Takushi — this...