Constitutional Law and Election Administration: Scrutiny Frameworks, Early Voting Baseline Dilemmas, and the Mechanics of the 2020 Election
Constitutional Frameworks Governing the Right to Vote and Legal Standards of Scrutiny
Judicial Scrutiny Standards for Voting Regulations
An erroneous assumption in election law litigation is that any state law imposing a burden on the right to vote must automatically be subjected to strict scrutiny.
Strict scrutiny is triggered when a state completely denies a citizen the right to vote. Under strict scrutiny, the regulation must be narrowly tailored to advance a compelling state interest.
When a state permits citizens to vote but imposes procedural or administrative burdens, strict scrutiny does not apply.
The rationale for withholding strict scrutiny from standard election regulations is practical: election laws invariably impose some degree of burden upon individual voters. Subjecting every voting regulation to strict scrutiny and demanding narrow tailoring for compelling state interests would tie the hands of states attempting to operate elections equitably and efficiently.
The Balancing Test (The Anderson-Burdick Framework)
Instead of applying strict scrutiny to all voting laws, courts utilize a flexible balancing test, often conceptualized as a sliding scale or "dial":
Side A of the Scale: The character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments (the burden on the voter).
Side B of the Scale: The precise interests put forward by the state as justifications for the burden imposed.
Spectrum of Scrutiny based on Burden Assessment:
Severe or Highly Discriminatory Burdens: Mandate strict scrutiny, requiring a truly compelling state interest to outweigh the burden.
Moderate / Intermediate Burdens: Require an important state interest (analogous to intermediate scrutiny in gender discrimination cases).
Reasonable, Nondiscriminatory, and Minimal Burdens: Default to the rational basis test, which is the lowest level of judicial scrutiny.
Baseline Requirement under Rational Basis: Even under the rational basis test, a law cannot be arbitrary. The state must articulate at least a legitimate state interest to justify its regulation.
Application of the Framework: Hawaii's Ban on Write-In Candidates
Factual Context: The State of Hawaii enacted a prohibition against write-in voting, preventing voters from writing in unlisted candidates (e.g., voting for "Donald Duck").
Assessment of Burden: The court determined that prohibiting a voter from casting a ballot for Donald Duck constitutes a burden, but it is minimal and far from severe.
State Interests Asserted by Hawaii:
Prevention of Unrestrained Factions: Primary elections exist to narrow the field of candidates (e.g., paring down 50 candidates) so that general election ballots remain manageable and prevent small splinter factions from overwhelming the process.
Preservation of Sore Loser Laws: Many states enforce "sore loser laws," which dictate that if a candidate runs in a primary election for a party nomination and loses, they are legally disqualified from turning around to run as an independent or minor-party candidate in the general election. Allowing write-in voting would undermine sore loser laws by permitting defeated primary candidates to mount write-in campaigns.
Prevention of Party Raiding and Protection of Party Integrity: "Party raiding" occurs when members of one political party register or participate in an opposing party's primary to vote for the weakest candidate, ensuring an easier matchup for their preferred candidate in the general election. Political parties establish conditional rules regarding candidate nominations; unrestricted write-in voting would defeat these rules and force parties to be associated with candidates who do not represent their platform.
Judicial Holding: Because the burden on voters was minimal and Hawaii's state interests (enforcing sore loser statutes, preserving party integrity, and managing ballot size) were legitimate, the Hawaii write-in prohibition was upheld as constitutional.
Legal Origins and Broad Applicability
Equal Protection Clause: The balancing framework flows from the Equal Protection Clause of the Fourteenth Amendment, establishing a right to vote free from unconstitutional burdens.
Michigan Straight-Ticket Voting Case: Courts applied this exact balancing framework to evaluate Michigan's elimination of straight-ticket voting by assessing whether the law created a burden, whether it was discriminatory across groups, and whether the state's asserted justifications were sufficient.
Early Voting Regulations, Baseline Comparisons, and Judicial Conflicts: The Ohio Case Study
Ohio's Reduction of Early Voting Opportunities
Policy Changes: Following expansive early voting policies, the Ohio legislature enacted reductions to standardized early in-person voting opportunities statewide. The changes eliminated "Golden Week" (a period allowing simultaneous voter registration and early voting), cut early voting on nights and weekends, and reduced Sunday voting, while retaining some Saturday voting hours.
Remaining Access Options: Despite reductions, Ohio retained 28 days of early in-person voting during the month prior to the election, universal vote-by-mail (absentee voting without needing an excuse), and full in-person voting on Election Day.
Empirical Findings: Studies show that reducing the total number of early voting days leads to a slight decrease in overall voter turnout. However, robust data was lacking regarding whether these reductions created disparate impacts across racial subgroups, which is critical for evaluating the nondiscriminatory prong of the burden test.
Intra-State Geographic Disparities: In Ohio, early in-person voting is restricted to a single centralized location per county—the County Board of Elections. Limiting early voting hours impacts voters in a highly populated county with 1,000,000 residents far more severely than voters in a small county with 10,000 residents.
District Court Rulings on Ohio's Early Voting Restrictions (2014 Litigation)
Determination of Burden: The Federal District Court evaluated expert testimony and empirical evidence, classifying the reduction in early voting days as a moderate burden.
Level of Scrutiny Triggered: A moderate burden required Ohio to demonstrate an important state interest to justify the law.
Evaluation of State Justifications:
Prevention of Voter Fraud during Golden Week: The court found no evidence or administrative mechanism establishing that eliminating Golden Week or reducing early voting days actually prevented voter fraud.
Administrative Cost Reduction: The Secretary of State argued that staffing election offices on weekends was too costly. The court rejected this, finding that election administrative staff were already required to be present on weekends leading up to the election, resulting in negligible cost savings.
Administrative Burden and Election Preparation: The Secretary argued that weekend voting distracted staff from critical preparations for Election Day. The court noted that administrators had successfully managed early voting in prior election cycles without operational failure.
District Court Holding: Because the burden was moderate and none of the four proffered state interests outweighed the burden, the law was declared unconstitutional.
Sixth Circuit Court of Appeals Reversal and the Baseline Problem
Assessment of Burden: The Sixth Circuit Court of Appeals reversed the district court, finding the law imposed zero burden or a minimal burden on voters.
The Baseline Dilemma ("Compared to What?"): Determining whether a voting law is burdensome depends entirely on the legal baseline selected for comparison:
Temporal Baseline (Intra-State Historical Standard):
Compared to 2008: Ohio's 28-day schedule provided significantly less early voting.
Compared to 2004: Ohio's 28-day schedule provided significantly more early voting access.
Interstate Baseline (National Cross-State Standard):
Illinois: Offered 40 days of early voting.
Ohio: Offered 28 days of early voting (reduced from 35).
Kentucky: Offered 5 days of early voting with no weekend access.
New Hampshire: Offered 0 days of early voting (zero early in-person voting).
The "One-Way Ratchet" Perverse Incentive:
If courts measure burdens against a state's past historical maximum (a temporal baseline), any reduction in voting access becomes unconstitutional. This creates a legal "one-way ratchet."
Under a one-way ratchet, if a state voluntarily expands voting access during economic boom years, it would be constitutionally locked into that expansion forever, unable to reduce hours during recessions or budget shortfalls.
This mechanism creates a perverse incentive for states with restrictive voting laws (e.g., New Hampshire) to never expand early voting opportunities, fearing that any temporary expansion can never be legally undone.
Interstate Comparison Logic: The Sixth Circuit emphasized that because Ohio offered 28 days of early voting while states like New Hampshire offered 0 days, Ohio's law could not logically be characterized as an unconstitutional burden. If 28 days were unconstitutional, states with 0 days would be in continuous violation of the Constitution.
Methodological Arbitrariness: The Anderson-Burdick framework relies heavily on judicial discretion. The precise same empirical evidence leads to opposite legal conclusions depending on whether a judge selects an intra-state historical baseline or an interstate comparative baseline.
Systemic Disruption and Administrative Mechanics in the 2020 Presidential Election
Pre-Election War Games and Risk Assessments (August 2020)
Transition Integrity Project Simulation: In August 2020, a bipartisan group of 67 experts—comprising constitutional law professors, retired military officers, former federal government officials, political strategists, and attorneys—conducted war game simulations to model potential 2020 election outcomes.
Simulation Findings: The group concluded that conducting an election amid a global pandemic, economic recession, and extreme political polarization presented substantial risks of prolonged legal battles, contested election outcomes, violent street clashes, and constitutional impasses.
Polarization of Public Trust in Election Outcomes
Pre-Election vs. Post-Election Trust Dynamics: Survey data documented a dramatic, immediate inversion in public confidence regarding election integrity directly tied to candidate outcomes.
Post-Election Pew Research Center Survey (January 2021 Inauguration Period):
Overall Electorate: Approximately of voters stated Joe Biden was the legitimate winner, while stated Donald Trump won.
Trump Supporters: 79% maintained that Donald Trump won the election and that the result was stolen.
Biden Supporters: 99% maintained that Joe Biden won fair and square.
Operational Shifts in Voting Modalities
Historical Collapse of Election Day Voting: The 2020 presidential election was the first in U.S. history where a majority of total ballots were cast prior to Election Day, either via mail-in absentee ballots or early in-person voting.
Legislative Adaptations: To limit COVID-19 transmission, multiple states modified voting procedures shortly before the election. For example, Pennsylvania enacted statutory changes establishing universal mail-in voting without requiring an explicit excuse.
Partisan Polarization of Mail-In Voting:
Historical Context: In 2008, 2012, and 2016, mail-in voting exhibited no significant partisan divide.
2020 Partisan Split: 60% of Democratic voters cast ballots by mail, compared to only 30% of Republican voters.
Causes of Polarization: Divergent partisan perceptions of COVID-19 health risks, compounded by elite partisan messaging (e.g., public statements claiming universal mail-in ballots would cause widespread fraud, stolen mailboxes, forged signatures, and calls to delay the election).
Controversy Surrounding the United States Postal Service (USPS)
Administrative Changes: Postmaster General Louis DeJoy implemented operational cost-cutting measures, executive leadership restructuring, and the removal of hundreds of high-speed mail processing machines from postal facilities, resulting in mail delivery delays.
Funding Disputes: The Postal Service sought $300,000,000 in emergency operational funding (and up to $25,000,000,000 in proposed congressional appropriations) to handle the surge of tens of millions of mail ballots. Executive opposition explicitly rejected this funding to prevent the expansion of universal vote-by-mail.
The "Blue Shift" Phenomenon, Processing Timelines, and Post-Election Certification Battles
Mechanics of the "Blue Shift"
Conceptual Origin: Coined by election law scholar Ned Foley around 2016, the "blue shift" describes the structural phenomenon where ballots counted after Election Night skew significantly more Democratic than ballots tabulated on Election Night.
Historical Drivers: Initially driven by provisional ballots mandated under the Help America Vote Act (HAVA), which require time-intensive verification post-election.
Amplification in 2020: The massive reliance on mail-in ballots—which favored Democrats by a 2:1 margin—created the largest blue shift in U.S. history.
Impact of State Pre-Elections Processing Statutes
Processing vs. Counting Definitions: Processing involves verifying outer envelope signatures, matching voter records, opening envelopes, and feeding ballots into scanning machines. Tabulation (generating actual vote counts) remains secret until polls close to prevent early results from influencing turnout.
States Permitting Early Processing (e.g., Ohio):
Statutes allowed election officials to process mail-in ballots days or weeks prior to Election Day.
Outcome: Mail ballots were tabulated instantly when polls closed, resulting in minimal post-election vote shifts.
States Prohibiting Processing Until Election Day (e.g., Pennsylvania, Michigan, Wisconsin):
Statutory bans prohibited officials from touching mail-in envelopes until Election Day morning (or after polls closed).
Outcome: Facing millions of mail ballots, election workers experienced massive processing backlogs lasting days after Election Day, delaying mail-in vote counts relative to in-person Election Day votes.
Failure of Legislative Compromise in Pennsylvania:
The Democratic Governor proposed amending state law to allow early mail-in ballot processing.
The Republican-led legislature agreed to early processing only if tied to strict mandatory voter ID requirements.
Failure to reach a compromise left the strict prohibition against pre-Election Day processing intact.
Post-Election Vote Trajectories in Key Swing States (2020)
Pennsylvania: At midnight on Election Night, Donald Trump held an initial lead exceeding 500,000 votes. As mail-in ballots were processed over the subsequent week, Joe Biden erased the deficit and ultimately took the lead.
Michigan: Four hours after polls closed, Joe Biden trailed by 8 percentage points before late-counted mail ballots reversed the lead.
Wisconsin: Four hours after polls closed, Joe Biden trailed by 3% to 4% before late-counted ballots reversed the lead.
Allegations, Legal Challenges, and Certification Disputes
Public Perception Impact: The predictable delay in processing mail ballots created an optical illusion of shifting results, fueling conspiracy theories, "Stop the Count" demonstrations, and claims of fraudulent ballot insertion.
Media Events and Litigation Campaigns: High-profile legal challenges were launched to halt counting and invalidate ballots, highlighted by press conferences such as the Trump campaign event at Four Seasons Total Landscaping in Philadelphia led by Rudy Giuliani.
Board of Canvassers Certification Battle (Michigan):
Attempts were made to block or delay state-level certification of election results.
Michigan State Elections Director Jonathan Brader testified that the bureau identified no structural irregularities beyond routine, occasional human error.
Detroit Election Supervisor Chris Thomas clarified that canvassing boards possess a non-discretionary, mandatory legal duty to certify vote tallies.
Outcome: The Michigan Board of Canvassers voted 3-0 (with 1 Republican abstention by Norman Schenkel) to certify the election results.
Emergence of the Independent State Legislature (ISL) Theory
Progression: The Independent State Legislature theory transitioned from a fringe constitutional concept into a central doctrine in election law litigation.
Scope: Concerns the extent of exclusive authority granted to state legislatures under Article I and Article II of the U.S. Constitution over federal election administration, remaining a critical issue for future election cycles.
Student-Teacher Interactions and Discussion Cases
Student Interventions on Judicial Scrutiny and Burdens
Jessica: Correctly identified that state prohibitions on write-in voting are designed to prevent party raiding, where outside party members infiltrate an opposing party's primary to select a weak candidate.
Nate: Highlighted the baseline problem in evaluating early voting burdens, questioning whether current regulations should be compared to the immediately preceding election cycle (2008) or earlier cycles (2004).
Sophia: Noted that requiring early voting to occur exclusively at centralized County Boards of Elections imposes severe, unequal burdens on large urban counties (1,000,000 voters) compared to small rural counties (10,000 voters).
James: Inquired about the sequencing of legal analysis, confirming that a court must evaluate the magnitude of the burden before examining the state's asserted justifications.
Max: Raised Equal Protection implications, questioning whether mandatory statewide uniformity in election administration truly ensures equal protection or creates substantive inequality due to differing local needs; noted that a hypothetical law blocking voting 4 years early would be a burden, but legitimate.
William: Clarified that states are not permanently barred from reducing early voting access, provided they present state interests sufficient to meet the corresponding level of burden.
Hunter: Defended comparing early voting access across state lines, arguing that rural state policies (e.g., New Hampshire) provide valid context for evaluating burdens in urban states (e.g., Ohio).
Student Interventions on 2020 Election Dynamics
Amy: Pointed out the dramatic collapse in public confidence in election fairness between pre-election and post-election periods across opposing political parties.
Justin: Hypothesized that the collapse in Election Day voting was driven by voter anxieties over public COVID-19 exposure.
Sean: Highlighted that partisan differences in COVID-19 risk perception directly correlated with partisan choices between mail-in and in-person voting modalities.