Election Law Explainers

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...

Due process and election administration The due process clause of the 14th Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” But just what is “due process” can be hard to define. With respect to state election activities, a variety of federal appellate courts have struggled to determine whether a change or defect in the state’s election mechanics has so interfered with voters’ ability to exercise their right to vote – a fundamental liberty interest – that it violates the guarantee...

The Voting Rights Act of 1965 is widely considered to be the single most important federal statute protecting the right to vote. The Act contains a number of important provisions, but today it is Section 2 of the Act that continues to have the greatest impact. Adopted essentially as an enforcement mechanism for the Fifteenth Amendment’s guarantee that the right to vote cannot be abridged “on account of race, color, or previous condition of servitude,” Section 2 allows anyone to seek judicial relief who believes that a state or local...

Shelby County v. Holder is a 2013 case in which a divided Supreme Court struck down the provision of the Voting Rights Act containing the formula that was used to identify state and local governments that must get approval from the federal government before making any changes to their voting laws and procedures – a process known as “preclearance.” The preclearance requirement, found in Section 5 of the law, was designed to prevent voting-related discrimination by governments with a history of such discrimination; until the court’s 2013 decision, it applied to...

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...