This struggle will continue in earnest after election day when disputes over the validity of the number of votes in key states could cast doubt on the outcome. If Justice Ruth Bader Ginsburg had lived to deal with such questions, we would have a good feeling for how she could have governed. Her record as a loyal proxy was clear. But how could a Justice Barrett rule?
In order to guess their views on the right to vote and on the right to vote in general, it is important to understand how a challenge to an electoral rule develops. Whether by voters or candidates, two legal principles apply.
The first is that there is no express, affirmative right to vote as set out in the original constitution. There are only amendments prohibiting states from passing laws that exclude certain categories of Americans from voting (like formerly enslaved men or later women in general). The Supreme Court has interpreted The constitution guarantees the right to vote because “political suffrage” “preserves all rights”. (Even an avowed “textualist” or “originalist” like Barrett would find it difficult to deny this principle because he has no explicit textual support.)
Second, the Supreme Court has developed a test to determine whether restrictions on access to surveys are constitutional. Known as “Anderson-BurdickBalance test (named after two cases of the Supreme Court concerning access to the ballot), the courts must first determine whether an electoral law “seriously encroaches” on the rights of an individual voter. When a court decides that a burden is “serious”, it must apply what is known as “strict scrutiny” to the law. This means that The government must have a very strong reason to justify the measure or it will be crushed. A ban on voting based on race, for example, would trigger this test – and fail. (Although Ruth Bader Ginsburg has worked to achieve the highest possible test for gender, the Supreme Court ruled a lower standard of the “intermediate test” for sex discrimination.) If the court decides the restriction is not severe, a lower level of control, which means the government doesn’t have to work as hard to justify this. As important as these standards are, unfortunately the Supreme Court has not clearly defined these terms, which gives judges a high level of subjectivity when analyzing whether there should be a voting restriction.
Barrett knows this test well because she used it in a 2019 statement she wrote for the U.S. Court of Appeals for the Seventh Circuit. Acevedo versus Cook County Officers Electoral Board participated in a Democratic main election for the sheriff of Cook County, Illinois. Under county law, the candidate had to receive signatures equal to 0.5 percent of the county’s qualified voters in order to vote. That meant Plaintiff Edward Acevedo had to collect 8,236 valid signatures. He failed and sued for alleging the law violated his rights to freedom of association and equal protection. Acevedo pointed to the lower statewide requirement of just 5,000 signatures, arguing that the county’s higher threshold was unconstitutional.
in the AcevedoBarrett decided that the need for “orderly and fair elections” outweighed the relatively minor interests of the candidate’s first and fourteenth amendments. The signature requirement is “not strict”. Previous cases made it “difficult for Acevedo to show that the 0.5 percent requirement is far from small, which is why he may not even try.” She concluded: “[i]It almost goes without saying that this slight burden is justified by the relevant and legitimate state interests of Illinois. “She did not mention his First Amendment argument that access to ballot papers compromised his rights to freely organize.
A case involving a county sheriff certainly doesn’t have anywhere near the national implications of a case involving a presidential election as hotly contested as the current one. Still it is Anderson-Burdick A test that would come into play either way should make a textualist like Barrett squeamish.
It gives lifelong unelected judges massive discretion in overseeing state electoral processes, with virtually no guiding principles in the Constitution itself. But that’s not Barrett’s fault. The test is one of many that the Supreme Court “reads” into the Constitution – not because the judges are bad judges, but because the Constitution is hopelessly ambiguous. If a case related to the 2020 election reaches the Supreme Court about the constitutionality of state legal requirements such as the verification of signatures on postal ballot papers, notarial mandates to sign ballot papers, closed polling stations, or restrictions on dispensing boxes, the Supreme Court will apply this highly subjective test almost certainly.
In Republican-led challenges to laws that make voting easier, the court is likely to face the false argument that electoral fraud is a serious problem in the United States. Studies show that election fraud is extremely rare, and there is no evidence to support President Trump’s claim that millions of undocumented immigrants voted for his opponent in 2016. Will a conservatively-minded court low-level scrutiny and simply – without evidence – accept the Republicans’ cynical arguments to stave off hypothetical electoral fraud through identification requirements that disproportionately affect low-income Americans and people of color? Or will it nod in favor of voter access, bearing in mind the idea that implicit suffrage is the linchpin of all the other rights we care about?
After November 3, we can also anticipate Republican-led challenges to state laws that will allow election officials to count ballots after election day. Indeed, many states require that counting only begin after the last vote has been cast. For an election with an expected avalanche of postal ballot papers, these laws mean that election workers must match signatures (without specialist knowledge and little training), open envelopes, unfold ballot papers, stack them, feed them into machines and eliminate any inequalities before the votes are fully counted. In a minority of states, voters are given the opportunity to correct mistakes. When a case should reach the US Supreme Court that will be challenging after November. When counting the ballots, the court would again be faced with the squishy balancing test, which allows judges to determine at their own discretion whether a burden is serious and unjustified. And again elusive electoral fraud will be the counter-argument.
Fast forward to 2021 and imagine a Biden government with a Democratic house and Senate.
After the Democrats won the House of Representatives in 2018, the first law was passed H. R. 1, widely praised by electoral law experts as a much needed and sensible reform of the American electoral system. The bill, dubbed the For the People Act of 2019, would implement major reforms to political wandering (which the Supreme Court traced back to the legislature by refusing to challenge it Rucho v. Common cause last year), voting rights (which the Supreme Court obstructed when it introduced an important 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 giving First Amendment rights in corporate language in Citizens United v Federal Election Commission) and ethics rules for government officials (which are urgently needed after Trump’s serial dismissal of Inspector General, a legal reform after Watergate that is intended to promote neutral oversight of those in power) Senate majority leader Mitch McConnell blocked the bill in his chamber, but a new Senate Democratic majority would likely pass it, inviting inevitable conservative legal challenges.
Conservative jurisprudence has traditionally emphasized the rights of states and the respect for legislation carried out by legislators who represent the voters – not judges. Challenges to state electoral laws to facilitate access during a pandemic inevitably collide with the conservative touchstone of federalism. For the same reason, challenges to Congressional Acts come before the other conservative ideal, which aims to deter judges from legislating.
For all her alleged devotion to conservative approaches to constitutional and legal analysis, it is not entirely clear that Barrett would not easily postpone a state’s general interest in “fair and orderly elections” or voter access to ballot papers if Trump were to vote hang in the scales. Perhaps even more than abortion, suffrage is the central issue that Senators must examine in depth in their ratification hearing with Barrett. Literally nothing is more important to the interests of their constituents.