What is a “Burden” on Voters? Reflections on Ohio’s Early Voting Litigation

Professor Joshua A. Douglas, Robert G. Lawson, & William H. Fortune Associate Professors of Law, University of Kentucky College of Law

What does it mean for an election regulation to “burden” voters?  Do the relevant burdens relate to how the election system operated previously, or are they more about the particular burdens of the actual law itself outside of the context of what occurred in the last election?  Put differently, is it the text of the law, or the context of the election scheme, that matters the most?  These questions underlie the Sixth Circuit’s recent decision in NAACP v. Husted invalidating Ohio’s new rules on early voting; they will also likely be the focus of the Supreme Court’s impending review.
The current controversy over early voting in Ohio continues a trend of involving the courts in dictating how to operate Ohio’s election system.  In 2012, the Obama campaign won an important case when the state tried to remove early voting on the last three days before the election for everyone besides military voters.  The Sixth Circuit ruled that allowing early voting for some voters but not others violated the Equal Protection Clause.

In 2012, Ohio had 35 days of early voting.  This year, the state is trying to cut back early voting to only 28 days.  This subtraction of seven days impacts “Golden Week,” in which voters could both register and vote early on the same day.

Last week, the Sixth Circuit affirmed a district court decision that this scheme violates both the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (This post will focus solely on the constitutional analysis.)

Key to the court’s decision on equal protection was its invocation of the “Anderson-Burdick” balancing test, named after two important Supreme Court cases, Anderson v. Celebrezze and Burdick v. Takushi.  In election law parlance, if the burdens a law imposes on voters is “severe,” then the law is subject to strict scrutiny review, but if the burdens are less than “severe,” then the court balances

“the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

In essence, the court makes two threshold assessments:  what is the burden on voters, and what are the state’s interests in enacting the law?  Normally, under current Supreme Court precedent, the plaintiffs have the burden of persuasion on both prongs:  they must demonstrate that the law imposes a particularized burden on certain voters, and they also must disprove the state’s assertion of election integrity as sufficient to justify the law.

These two inquiries – and particularly an assessment of the magnitude of the burden on voters – generally determine whether an election regulation is constitutional.  Yet the Supreme Court has never been clear on what kind of burdens are permissible, or even how to assess the burdens on voters, and it normally defers too readily to the state’s interest to achieve “election integrity.”

Last week’s Sixth Circuit decision on early voting broke significant ground on both questions.

First, the court made a fact- and record-intensive assessment of the burdens on voters.  It found that, because so many African-Americans relied on early voting in 2012, the cutback on early voting opportunities would disproportionately and negatively affect these minority voters.  That is, the law’s “burden” on a subset of voters was “significant” because it would reduce these voters’ opportunity to vote.

But this raises important questions about how to assess burdens in the Anderson-Burdick analysis.  Is the proper baseline the opportunities to vote during the previous election?  Or should the baseline instead be a world in which there are no prior voting rules?  Put differently, should the courts focus on the context in which the legislature enacted the law to see if it imposes additional burdens as compared to prior elections, or is the proper focus solely on the text of the law by itself, as if there was no previous law that granted or took away voting opportunities?

If prior context matters, then the plaintiffs likely provided enough evidence to show that Ohio’s cutbacks in early voting will cause greater burdens on African-American voters.  But if the question instead is simply whether this particular law, that grants 25 days of early voting, imposes significant burdens, then the answer is likely no; many states allow no early voting, so providing 25 days seems generous.

Determining the proper baseline for analyzing the burdens on voters is particularly significant.  Using the prior election as a baseline would fill a hole left by last year’s decision gutting the protections of Section 5 of the Voting Rights Act, which had prevented election law changes that would have a “retrogressive” effect on minority voters.  That is, plaintiffs seeking to preserve robust federal court protection of minority voters’ rights in the wake of the Court’s Shelby County decision argue that “burden” in the constitutional test means “burdens as compared to the last election.”  Filling Section 5’s void presents a persuasive reason for the Court to incorporate the prior “retrogression” regime into the constitutional Anderson-Burdick “burdens” inquiry.

Second, on the state interest prong, the Sixth Circuit put Ohio to the test to justify its law, requiring Ohio to actually demonstrate its interests with specificity, as opposed to forcing the plaintiffs to disprove the legitimacy of the state’s assertions.  As I show in a new paper, in recent years the Supreme Court has been too deferential to states in the interest prong of the constitutional analysis, approving any generalized assertion of “election integrity” to justify a voting regulation.  For instance, in the voter identification litigation from 2008 the Court credited Indiana’s argument that it needed its law to prevent voter fraud even though the state had no evidence whatsoever that Indiana elections were infected with in-person impersonation – the only kind of voter fraud an ID law would prevent.  The Court said that the state could justify its voting regulation simply by saying that its goal is “election integrity.”

The Sixth Circuit, however, did not let Ohio say “election integrity” without more.  Ohio defended its law based on its concern of rooting out fraud, reducing cost, and achieving uniformity across the state in early voting.  Regarding fraud, the court found that eliminating Golden Week would not prevent any demonstrable fraud in the state’s elections.  Although a state has a legitimate interest in election integrity, “[t]his does not mean . . . that the State can, by merely asserting an interest in preventing voter fraud, establish that that interest outweighs a significant burden on voters.”  For cost, the state did not explain adequately how 35 days of early voting, including Golden Week, would create a significant cost burden, especially when counties successfully provided these opportunities in 2012.  And for uniformity, the court held that Ohio’s assertion was too abstract to outweigh the burden on voters.  In essence, the state was put to the burden of proving the veracity and need for the justifications it asserted.

Ultimately, the Supreme Court’s decision on Ohio’s early voting rules will come down to how to analyze the burdens – both the burden on voters and the state’s burden in justifying its law.  There are strong reasons for the Court to use the prior election as a baseline for the burdens on voters, and to require states to justify its election regulations with specificity.  These twin facets of the Sixth Circuit’s opinion will help to amplify a robust understanding of the fundamental right to vote for all citizens.