A Vote for Clarity: Updating the Supreme Court's Severe Burden Test for State Election Regulations that Adversely Impact an Individual's Right to Vote

Abstract

On October 31, 2004, and November 1, 2004, two separate district court judges ruled that allowing the Republican Party to place challengers at election precincts to challenge the eligibility of particular voters constituted a "severe burden" on the voters' rights, and that the state had not met the strict scrutiny standard of review required for severe burdens. On the morning of the election, however, in a 2-1 decision, the Court of Appeals for the Sixth Circuit reversed, determining that partisan poll challengers only created a minimal burden on voters' rights, and that the state had survived the lower standard of review. The Supreme Court denied certiorari, and the Republican Party placed its challengers at election sites to challenge voters as they prepared to exercise their constitutional right to vote.

What is striking about these decisions is not that they came to opposite conclusions regarding whether challengers amount to a severe burden on voters' rights. Instead, the opinions demonstrate that judges have few guidelines to inform their decision on the severe burden question and can make their determination on an ad hoc basis as they see fit. Judges simply review the regulation and subjectively decide whether it seems to impose a severe burden. Thus, the severe burden test is nebulous and unclear, resulting in vague decisions that fail to distinguish between constitutional and unconstitutional state election regulations. This Note provides a modicum of direction and objectivity to the analysis by suggesting a clear mechanism for determining when a regulation imposes a severe burden on voters' rights. The proposed solution, which requires judges to review empirical data when analyzing the severity of an election regulation, will provide certainty to political parties, states, and voters, and will truly define the scope of the right to vote by ensuring that states can only regulate elections up to a point that does not burden too many voters.

Keywords: election, voting rights, vote, severe burden, president, Ohio, Voting Rights Act, language assistance provision, five percent rule, election administration, Anderson test