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02/25/2022

Harvard Law Review Note on State Power over Presidential Elections
Michael Ramsey

The Harvard Law Review recently published this interesting student note: “As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework.  From the introduction (footnotes omitted):

... The Supreme Court has provided many guideposts to navigate [the issue of state limitations on ballot access], the most important of which is the Anderson-Burdick balancing test. ...  The balancing test requires courts to weigh the injury to an individual’s First and Fourteenth Amendment rights, left undefined, against the state’s interest in imposing a given election regulation.

... [T]he more damning flaw in Anderson-Burdick is conceptual: it does not recognize that, as a matter of constitutional theory and actual practice, presidential elections, more than other elections, are left to the discretion of the states.

By returning to the Constitution’s text and revising presidential election caselaw to better accord with it, the Court may be able to solve these problems. This Note argues that a better approach lies in deference to the constitutional authority of states to make their own decisions with regard to presidential elections. Echoing the Supreme Court’s 1892 decision in McPherson v. Blacker and then–Justice Rehnquist’s dissent in Anderson, this deferential approach would strike down state restrictions only when they contravene a separate provision of the Constitution, with those provisions being read in the context of a system where the President is not popularly elected. Thus, while provisions like the First Amendment or the Presidential Qualifications Clause might still limit state authority, those limits would not create a general-purpose balancing test. In addition to ensuring greater textual fidelity, this approach would reduce uncertainty — there would be little doubt that most restrictions implemented by states were constitutional.

Anderson-Burdick applies to all restrictions on all elections, and that one-size-fits-all approach is one of the framework’s key shortcomings.  But this Note focuses specifically on presidential elections, to which the framework is particularly ill-suited. If the Supreme Court chooses to strike the test down, the different constitutional provisions governing congressional elections would not require the same level of deference to states. Judicial opinions often assume the existence of a right to vote, but that right need not manifest equally in all elections. Ballot access restrictions help frame this distinction because they are easily differentiated even in simultaneous elections. But the principles discussed below would be equally applicable to state laws, like voter ID laws or laws regulating polling places, that exclusively governed the casting of presidential ballots. ...

Part I reviews the constitutional basis for state authority in presidential elections, noting how states have historically exercised this power. Part II reviews Supreme Court decisions that have articulated restraints on the ability of states to manage their presidential elections. Part III argues that many of these decisions are inconsistent with the Constitution, and suggests an alternative approach based on deference to states. Part IV briefly surveys constitutional constraints on state authority that would remain under this approach. This Note concludes that, though a hands-off approach carries risks for democracy, it is nonetheless required as a matter of textual fidelity.

The relevant text is Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." (Oddly, this isn't the text quoted in the note's title.)

The note seems correct in saying that this text establishes a discretion in the state legislatures, subject to other specific limits elsewhere in the Constitution's text (e.g., a state can't exclude a candidate from the ballot based on the candidate's speech).  The Anderson balancing test is just something the Court made up.  (In support of that view, Anderson was 5-4, with Rehnquist, White, Powell and O'Connor in dissent.)

Via Jay Willis at Balls and Strikes, who seems unduly worked up about the argument and also about the Harvard Law Review's quaint practice of publishing student notes anonymously.  Surely the merits of the article turn on its arguments and the author isn't important, unless of course one is interested in trying to punish the author for advancing views with which one disagrees, which is sadly all too common these days.