1
In the summer of 2019, California enacted Senate Bill 27 (S.B. 27), or the Presidential Tax Transparency and Accountability Act.2 The law required candidates for President and Governor wishing to appear on the state’s primary ballot to file the candidate’s five most recent income tax returns with the California Secretary of State, who would then publish redacted versions.3 Though neutral in its language, the law was widely perceived as inspired by President Trump, who had declined to release his tax returns prior to both the 2016 and 2020 elections, even though presidential candidates had consistently done so in the preceding decades.4 Indeed, while California was the only state to pass such a law, the legislatures of other blue states had considered similar measures.5
The constitutionality of California’s law was immediately subject to debate. Pro-Trump Republicans, predictably, insisted that the law was unconstitutional and brought suit in both state and federal court to have it struck down.6 However, several legal luminaries came to the law’s defense. Governor Gavin Newsom’s signing statement was accompanied by brief arguments in favor of the law’s constitutionality from Professor Erwin Chemerinsky and prominent attorneys Theodore Boutrous, Jr., and David Boies.7 Other prominent law professors weighed in on both sides of the debate.8
Courts proved to be more in agreement with the law’s detractors. Roughly two months after the law’s enactment, Judge England of the Eastern District of California granted a preliminary injunction barring the enforcement of the law against presidential candidates.9 In determining whether the plaintiffs were likely to succeed on the merits, Judge England found the law wanting. Most notably for present purposes,10 Judge England applied the Anderson–Burdick11 balancing test, concluding that the state’s asserted interests could not justify such an egregious infringement on voters’ First Amendment rights as the framework construed them.12 Applying the same framework, he also determined that the law violated the Equal Protection Clause because it did not apply to independent candidates, who do not participate in presidential primaries.13 California appealed to the Ninth Circuit, but before that court could rule, it dismissed the case as mooted by the decision of the California Supreme Court that the law’s application to presidential elections violated the California Constitution.14
Thus, the issue was resolved without any definitive decision as to whether California’s law violated the Federal Constitution. But it is only a matter of time before the question comes up again. As noted above, laws similar to California’s had been proposed in other states, and there is no reason that laws of this type may be used only to seek tax returns. In 2011, Arizona Governor Jan Brewer vetoed a bill that would have required presidential candidates to present proof of citizenship to appear on that state’s ballot — the state legislature had passed the bill after the rise of the “birther” conspiracy theory that President Obama is not a natural-born citizen.15
As the law stands today, state balloting requirements make it difficult for third-party candidates to gain ballot access.16 And, as President Trump was quick to point out,17 presidential candidates are required to make financial and other disclosures under the Ethics in Government Act of 197818 (EIGA). But at the same time, it would seem undemocratic for a state to pass a law denying presidential ballot access to “any member of the Republican Party” or to “Joseph R. Biden, Jr.,” or, perhaps, to pass a neutrally worded law calculated to accomplish the same thing. And of course, there are countless ways to ensure an electoral outcome without altering ballot access laws, such as by making it easier or harder for certain demographic groups to cast presidential ballots.19
The Supreme Court has provided many guideposts to navigate this difficulty, the most important of which is the Anderson-Burdick balancing test. The test takes its name from Anderson v. Celebrezze,20 a 1983 decision striking down an Ohio law that placed an unjustified burden on independent candidates seeking access to the presidential ballot,21 and Burdick v. Takushi,22 a 1992 decision upholding Hawaii’s prohibition on write-in voting.23 The two cases are still regularly cited together in decisions passing on electoral restrictions of all kinds.24 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.25
Judge England’s conclusion that the California law failed to pass muster under this test is likely correct. The exclusion of major political candidates on grounds of insufficient paperwork is a hallmark of weaker democracies,26 and it is reasonable to conclude that the burden posed by such a restriction on California’s voters could not be justified by somewhat greater financial transparency.27 Thus, as long as Anderson-Burdick prevails, states will be limited in their ability to enact election restrictions as long as it can be argued that the value of those restrictions does not outweigh their costs for democracy.
However, the case highlights some of the shortcomings of current law. Practically, the Anderson-Burdick balancing test is frustratingly vague. It does not guide courts in determining what constitutes a constitutional injury or a compelling justification, with the result that, especially in the emotional context of a presidential election, respected legal minds can reach opposite conclusions.28 But the 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. Blacker29 and then–Justice Rehnquist’s dissent in Anderson,30 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.31 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.32 Ballot access restrictions help frame this distinction because they are easily differentiated even in simultaneous elections.33 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. Meanwhile, this Note does not address the question of who within state governments has the authority to control election rules — it does not require acceptance of the “independent state legislature” theory that the state legislature has exclusive authority.34
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.
I. Constitutional Underpinnings and Historical Practice
The U.S. President and Vice President are chosen not by popular vote but by the votes of electors designated by individual states. Article II, section 1 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” equal to the number of the state’s congressional representatives.35 The section goes on to give Congress the power to fix the “Time of chusing the Electors” and a single day on which they shall cast their votes.36 It also includes the Presidential Qualifications Clause: “No Person except a natural born Citizen” shall be eligible, “neither shall any Person” under the age of thirty-five or having not been a resident of the United States for at least fourteen years.37 Neither the Twelfth Amendment, which alters the voting procedures of the Electoral College,38 nor the Twentieth Amendment, which alters the start date of presidential and vice presidential terms,39 affect these provisions — though several constitutional amendments to reduce the discretion of the states were proposed in the nineteenth century and defeated.40 There are, however, constitutional provisions barring states from limiting the right to vote on bases including race,41 sex,42 and age;43 the Twenty-Fourth Amendment states that poll taxes may not be used to abridge the right to vote “for electors for President or Vice President.”44
This broad grant of authority to the states stands in contrast to the constitutional provisions governing the selection of members of the House and Senate.45 Article I, section 2 provides that members of the House shall be “chosen . . . by the People of the several States” and that voters shall be eligible to participate if they are eligible to vote for “the most numerous Branch of the State Legislature.”46 Section 3, on the other hand, specifies that senators are “chosen by the Legislature” of each state,47 but the Seventeenth Amendment overrides this provision and supplies language mirroring the provision in section 2.48 Section 4 gives state legislatures the power to prescribe the “Times, Places and Manner” of holding congressional elections, but absent the large caveat in the corresponding provision in Article II: “Congress may at any time by Law make or alter” the state regulations on time and manner.49 Meanwhile, the qualifications clauses for each house parallel that for the President, though with less demanding age and citizenship requirements.50
Especially when read in contrast to the legislative provisions, the phrase “in such Manner as the Legislature thereof may direct” would seem to convey virtually unlimited authority to the states in determining how presidential electors are chosen, regardless of the wishes of the voting public. And indeed, at the time of the Founding, many states did not hold presidential elections at all. In five of the eleven states that cast electoral votes for President Washington in 1789, the state legislatures simply chose the electors themselves.51 South Carolina continued this practice through the 1832 election,52 and as late as 1876, the legislature of recently admitted Colorado chose its electors directly.53 As the 1876 election was decided, amid great controversy, by a single electoral vote, the Colorado legislature’s decision proved decisive.54 But even as the Colorado legislature declined to hold a popular vote for President, it did, in line with Article I, section 2, hold a popular election to choose its first member of Congress.55
While no state today chooses its electors directly, two states, Maine and Nebraska, do deviate from the standard winner-take-all system, instead allocating electoral votes to the winners of each congressional district.56 Because only two electors are awarded to the winner of the statewide vote, it would be possible for a larger state employing this system to assign the majority of its electors to a candidate who did not win the statewide vote. Even putting that contingency aside, a state’s choice to distribute its vote this way can have a significant effect on the election’s national outcome.57 Thus, state legislatures have, since the Founding, exercised potentially outcome-determinative discretion in awarding electoral votes. And of course, the Electoral College itself makes it possible for presidential candidates to win election without a plurality of the national popular vote. These observations, along with the document’s plain text, undermine the contention that the Constitution protects the right of voters to have a free choice of presidential candidates.
II. Supreme Court Precedent
Prior to the mid-twentieth century, the Supreme Court did not often hear challenges to state election laws. One notable exception was the 1892 case McPherson v. Blacker. That case concerned Michigan’s practice of appointing electors based on votes in individual congressional districts, similar to the system currently used in Nebraska and Maine.58 The plaintiffs’ theory was that this system violated Article II’s requirement that the state appoint electors “because all [the state’s] citizens otherwise qualified are not permitted to vote for all the presidential electors.”59 In rejecting this argument, the Court looked to the Constitution’s text and to the historical practice of states, concluding that the Constitution “leaves it to the [state] legislature exclusively to define the method of” choosing electors.60 The Court also rejected challenges based on the Fourteenth and Fifteenth Amendments, holding that those amendments, rather than creating a right to vote for President or any other office, only barred discriminatory application of the right to vote as it existed under state law.61
In 1934, the Supreme Court upheld an early campaign finance law, in the process affirming the power of Congress to regulate presidential elections.62 But the Court did not establish the basis for judicial oversight of such elections until 1968, when it decided Williams v. Rhodes.63 In that case, an Ohio law required new political parties to obtain signatures equivalent to fifteen percent of the votes cast in the previous gubernatorial election in order to secure a place on the presidential ballot, but required the Democratic and Republican parties to obtain only ten percent of the same figure.64 In evaluating this law, the Court considered Article II, section 1, conceding that the section granted “extensive power” to the states but concluding that “granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”65 The Court then turned to the First and Fourteenth Amendments, identifying two constitutional rights — “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively” — burdened by the law.66 Because the state could not justify the unequal burden it placed on the rights of voters outside the two major parties, the Court struck the law down.67 Williams was notable in that it placed limits on the “exclusive[]”68 discretion of states recognized by McPherson.69 The decision did examine the text of Article II,70 but it rested on political rights developed in cases unrelated to elections.71
In 1983, the Court again dealt with a presidential election in Anderson v. Celebrezze. The case concerned the 1980 presidential campaign of independent candidate Representative John Anderson, who won 6.6% of the national popular vote and no electoral votes.72 In Ohio, Representative Anderson was initially refused a place on the ballot because he did not meet a March 20 filing deadline for independent candidates — even though the deadline did not apply to candidates nominated by a party.73 Writing for the majority, Justice Stevens decided the case without reference to Article II, section 1. Instead, citing to Williams and to several cases unrelated to presidential elections, Justice Stevens concluded that “challenges to specific provisions of a State’s election laws” require courts to balance the injury to the plaintiff’s First and Fourteenth Amendment rights against the interests asserted by the state.74 After comparing the burdens of the Ohio law against the state’s asserted interests, the majority concluded that the statute did not pass muster.75 Then–Justice Rehnquist dissented on behalf of three other Justices. He began his analysis with Article II, section 1, describing it as one of the few constitutional provisions to grant “express plenary power to the States.”76 He reasoned that “the Constitution does not require that a State allow any particular Presidential candidate to be on its ballot” and that ballot access laws should be upheld so long as they “are rational and allow nonparty candidates reasonable access to the general election ballot.”77 As noted by both the majority78 and the dissent,79 the Court in Anderson drew no bright lines to determine how far a state could go in regulating elections, presidential or otherwise.
The case would find its counterpart in the 1992 case, Burdick v. Takushi. The plaintiff in that case was a Hawaii voter who wished to vote for a write-in candidate for the Hawaii legislature, as well as in other future elections.80 Hawaii law, however, categorically barred write-in votes.81 Expressly disavowing the automatic application of strict scrutiny to laws burdening the right to vote,82 Justice White wrote for the majority that such scrutiny applied only to “severe” restrictions.83 Meanwhile, “reasonable, nondiscriminatory restrictions” were subject to a lower standard, such that states’ regulatory interests are “generally sufficient to justify” them.84 The Court concluded that the burden of Hawaii’s regulations was slight.85 Thus, Hawaii’s stated interests in preventing “unrestrained factionalism” and voter “raiding” were sufficient justification.86 Meanwhile, Justice Kennedy dissented on behalf of three Justices, explicitly agreeing with the standard articulated by the majority but reaching the opposite result.87
Thus was born the “now-familiar Anderson-Burdick balancing test.”88 The Court’s next major articulation came in the 2008 case Crawford v. Marion County Election Board.89 That case concerned an Indiana voter ID law that required identification to vote in person.90 The Court upheld the law, but fractured in doing so. Justice Stevens wrote for a three-Justice plurality. His opinion cast Burdick as merely an application of the Anderson framework, and he stressed that framework’s flexibility.91 Under his approach, Anderson-Burdick applied to any limitation on voters or political parties, “[h]owever slight,” and required a “sufficiently weighty” justification.92 The plurality concluded that, though the law had partisan motivations, it was “supported by valid neutral justifications,”93 including combatting voter fraud, that justified the burden it placed on voters.94 Meanwhile, three dissenting Justices in two opinions applied similar balancing tests but reached the opposite result.95 Justice Scalia concurred on behalf of two other Justices. Notably, he disagreed with the plurality’s understanding of Anderson-Burdick;96 he wrote that Burdick was the controlling opinion because it had “forged Anderson’s amorphous ‘flexible standard’ into something resembling an administrable rule.”97 That rule called for a “two-track approach”98 in which “nonsevere, nondiscriminatory restrictions” were reviewed deferentially and “laws that severely restrict the right to vote” were subjected to strict scrutiny.99 Justice Scalia placed Indiana’s restrictions in the former category and thus concurred in upholding them.100
The divisions of the Crawford Court demonstrate certain failings of the Anderson-Burdick test. First, the Supreme Court cannot agree on what it is, leaving lower courts without clear guidelines.101 Perhaps more importantly, even if the Court could agree, both proposed approaches are fundamentally indeterminate. The plurality did not pretend to draw any bright line, and thus the six Justices who supported open-ended balancing reached two results in three opinions. Justice Scalia’s approach is only slightly better in that it leaves courts without guidance as to whether restrictions are “severe.”
III. An Alternative Approach
The application of Anderson-Burdick to presidential elections has serious shortcomings. First, applying those cases to elections of all types ignores a fundamental feature of the Constitution — that the President, unlike members of Congress, is elected by electors chosen by the states. Second, as a policy matter, presidential elections are perhaps the single most contentious feature of American government, meaning that they require clearer judicial rules than Anderson-Burdick can provide.
One solution is a return to the deferential framework that prevailed prior to the mid-twentieth century. Under that approach, the plenary authority of states recognized in Bush v. Gore102 would be acknowledged to include not just the hypothetical authority to appoint electors directly, but also the authority to give their people a limited choice. This approach would still acknowledge limits on state authority required by the Constitution, including protections of the right to vote — but it would not create an open-ended balancing test.
Recognizing the authority of states would reflect the basic interpretive rule that “the greater includes the lesser.” For instance, Congress has the power not to create the lower federal courts, and that power implies the ability to create courts of less than maximum jurisdiction.103 The application of that proposition to presidential elections is straightforward: because states need not hold popular elections, they may therefore hold those elections in a limited way.104 Just as that power includes the ability to hold presidential elections based on geographic divisions, it could also include the ability to hold elections without certain candidates or with stringent voting requirements. In addition to its logical force, this principle allows for compromise. For instance, imagine a state so concerned about voter fraud that it believed conducting an honest presidential election would be impossible under rules that would survive Anderson-Burdick.105 Giving that state a freer hand would discourage it from choosing to not hold an election at all.
A recognition of state authority would also align with the structural values that are served by the United States’ unusual method of selecting leaders. One of those values is federalism. The formula for allocating electors — the number of representatives plus the number of senators — gives greater power to small states than would a system based on popular vote. According to James Madison, the system was intended in part as a compromise between small and large states.106 Even if one is not an originalist, this same argument is regularly made in favor of the Electoral College today.107 Indeed, the selection of presidential electors is one of the few constitutional prerogatives that is explicitly delegated to the states — there is thus a textual basis for concluding that it is part of that amorphous “substantial portion of the Nation’s primary sovereignty” that is reserved to the states.108 All of this stands in striking contrast to the election of members of the “People’s House,”109 which the Constitution specifies shall be chosen by “the People of the several States,”110 or the power to choose senators, which was specifically stripped from the states in order to promote greater democracy.111 The Electoral College is the last national political body that is still legally chosen by states as states, and for that reservation of authority to be meaningful, courts must recognize it as including a degree of discretion.
Another value underpinning the Electoral College is, put bluntly, elitism. In extolling the virtues of the Electoral College, Alexander Hamilton noted that it would place the selection of the President in the hands of “[a] small number of persons, selected by their fellow-citizens from the general mass.”112 Indeed, because the electors cannot be federal officials,113 one original purpose of the Electoral College may have been to ensure that the power to select the President was vested in a group independent of both the government and the broader population.114 While less common than arguments about federalism, the idea that electors should exercise their own discretion in choosing the President has not vanished from popular discourse.115 The Supreme Court has declined to recognize the rights of electors to make their own decisions independently of the states that selected them.116 But that conclusion still allows electoral votes to be awarded based on the wishes of the state political elite. The elitist function of the Electoral College counsels in favor of deference to state authority over the voting masses.
It is also worth briefly reiterating one of the values that does not underpin the Electoral College — that of national democracy.117 As noted previously, many states at the time of the Founding did not even consult their people before choosing electors.118 Though that is no longer the norm, the Electoral College has allowed Presidents to be elected without a popular plurality as recently as 2016. This reality is sufficiently entrenched that the Supreme Court has never considered extending the “one person, one vote” rule to presidential elections.119 Meanwhile, the peculiarities of a single state, be that Colorado’s 1876 decision not to hold a presidential election or Florida’s 2000 decision to allow counties to choose “butterfly ballots,” can and do swing elections.120 It is thus misleading to say, as Anderson does, that any state election restriction “places a significant state-imposed restriction on a nationwide electoral process.”121 American presidential elections are nationwide only in the sense that they happen in every state at once. Acknowledging this reality makes clear that leaving states discretion to manage their own elections contravenes no constitutional principle.
Turning to practical considerations, elections generally are contentious subjects, and presidential elections especially so. While many areas of constitutional law are indeterminate, that weakness is especially problematic in such a politically fraught context. This concern drives the doctrine of Purcell v. Gonzalez,122 which, as more recently summarized, holds that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”123 For elections to function smoothly, the rules must be known to all parties in advance.124 And whenever those rules are determined, the passions aroused by presidential elections seem to influence courts. For instance, the aptly named Republican National Committee v. Democratic National Committee,125 perhaps the most high-profile Supreme Court case of the 2020 election, produced a 5–4, party-line vote, despite the fact that it concerned the seemingly technical question of whether a state’s extension of its mail-in vote receipt deadline also extended the postmark deadline.126 Anderson-Burdick, meanwhile, hinges on judgments of the relative value of voting rights and election regulations. But America’s parties differ dramatically on that subject,127 and there is no indication that courts can rise above this partisan divide and adjudicate cases in a principled way. A hands-off approach navigates these pitfalls by leaving partisan bickering in the political branches where it is more at home.128
It is also worth acknowledging that, beyond issues of workability and constitutional fidelity, something is lost by an approach that constrains the ability of states to act as laboratories of democracy. Put differently, maybe states should require presidential candidates to release their tax returns. The release of tax returns serves important functions, like giving voters insights into a candidate’s conflicts of interest.129 Perhaps for that reason, as of 2017, large majorities in both parties wanted President Trump to release his tax returns.130 And laws like California’s S.B. 27 can be effective in forcing greater disclosure — the bill remains in force for gubernatorial elections, and during the state’s 2021 recall election, observers credited it with discouraging nonserious candidates.131 But as long as President Trump, or other candidates like him, remain politically viable, it will be impossible for any state to implement a similar rule for presidential elections without severely burdening the ability of its citizens to choose from available candidates.132 And while the merits of other election regulations differ, it is plausible that state governments, rather than federal courts, are best equipped to weigh those restrictions’ costs and benefits.
Although the approach described above may seem to go too far toward judicial abdication, there is a case to be made that it should go even further — the selection of presidential electors could be deemed a nonjusticiable political question.133 Baker v. Carr134 set out a six-factor test for identifying political questions, but that test has since been distilled by Nixon v. United States135 and subsequent cases to focus on two factors: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.”136 Although only one factor is needed,137 both exist with regard to the selection of presidential electors. The relevant language of Article II, “in such Manner as the Legislature thereof may direct,”138 is, in context, at least as strong as the language, “[t]he Senate shall have the sole Power to try all Impeachments,”139 that led the Nixon Court to find a political question.140 As for whether presidential election disputes can be resolved by “judicially discoverable and manageable standards,” that inquiry is famously unclear.141 However, scholars have teased out a series of factors for judging the manageability of a standard, including that standard’s intelligibility and practicability, as well as whether the subject matter makes a standard’s uncertainty worthwhile.142 Anderson-Burdick represents the Court’s best effort to craft a judicially manageable standard for elections, and, as noted above, it is wanting in many ways.
To be clear, this Note does not argue that it is necessary for courts to deem presidential elections political questions. For one thing, it is not clear that the “coordinate political department” of the first Baker factor may be a state.143 However, the neat applicability of the doctrine suggests that a large measure of deference is in order. The McPherson approach, in which states have plenary authority over the choice of electors unless they act contrary to another constitutional provision,144 strikes this balance.
Regardless of how the Supreme Court replaces Anderson-Burdick, it will have to grapple with the issue of stare decisis. Though the criteria for overturning constitutional precedent are not always clear,145 in one formulation the Court considers whether the past decision was “egregiously wrong,”146 whether the decision has “caused significant negative jurisprudential or real-world consequences,” and whether overruling the decision would “unduly upset reliance interests.”147 All three considerations weigh in favor of overruling Anderson and Burdick.148 The framework is wrong in that it is divorced from constitutional text and structure. It has also caused the judicial morass described above, while failing to provide meaningful protection to voters.149 As for reliance interests, the elections that occurred under Anderson-Burdick are now accomplished facts, making it hard to see who would be worse off for having previously relied on the framework once it is overturned.150 Thus, stare decisis poses no insurmountable obstacle to overruling Anderson and Burdick.
The transition away from Anderson-Burdick would be further eased by the fact that, especially during the 2020 election cycle, many courts have applied the cases in a limited way. During that election, states confronted with the COVID-19 pandemic made last-minute changes to their voting rules.151 Federal courts showed great deference, both in upholding measures making voting easier and in declining to intervene when states failed to implement such measures.152 Courts also showed deference after the election, when they declined to overturn the results of elections conducted by states.153 With Anderson-Burdick already waning in practice, abandoning it would be a relatively painless step.
IV. Remaining Limits
Anderson-Burdick is in theory derived from the First and Fourteenth Amendments,154 and it has been argued that the First Amendment’s guarantee of freedom of association can, in fact, justify much of the caselaw.155 But with the background presumption that states have authority to choose electors, or determine the means for choosing electors, as they see fit, it is impossible to justify such a wide-ranging and amorphous standard for presidential elections. Instead, a better approach would look to specific constitutional provisions to limit the broad authority of states — and it would remain cognizant of the distinction between presidential and other elections. This Part briefly sketches what some remaining constitutional limitations might be.156
First, it is worth clarifying that, while there is no right to ballot access,157 the Constitution does enshrine the right to vote, albeit in negative terms. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all bar various kinds of discrimination between voters,158 and courts from McPherson onward have had no trouble concluding that these protections apply once a state has decided to entrust its choice of presidential electors to the voters.159 While these amendments would likely not pose a major obstacle to restrictions like voter ID laws, they would prevent states from disenfranchising voters on the bases listed in the amendments.
The Equal Protection Clause of the Fourteenth Amendment also plays a role in protecting voters.160 And because its terms are not limited to the casting of votes, it may well have a further role to play in elections, including presidential elections. The precise meaning of “equal protection of the laws”161 is of course contested, but even under conservative readings, it includes “exemption from legal discriminations, implying inferiority in civil society.”162 Thus, a state could not hinder political participation on the basis of a suspect classification.163 Rules designed to enhance participation by historically underrepresented groups might be a close case.164 On the other hand, nonsuspect classifications, such as differing voting rules based on age,165 would probably be permissible under this clause. More generally, a deferential approach would not engage in the kind of broad, freewheeling equal protection analysis that has informed the Anderson-Burdick line of cases.166
Moreover, under U.S. Term Limits, Inc. v. Thornton,167 the Constitution’s Qualifications Clauses would continue to function as ceilings on congressional ballot access restrictions, and the case’s reasoning likely extends to presidential elections as well.168 States could not impose, say, a maximum age on presidential candidates. But, as explained by the Supreme Court, the holding only prevents states from “evading the requirements of the Qualifications Clauses by handicapping a class of candidates.”169 Thus, the case might not be relevant to ballot access restrictions, like paperwork requirements, that are not analogous to the requirements of the Qualifications Clauses170 or to requirements that singled out a candidate by name. And the case would place no barrier to more direct restrictions on the right to vote, such as voter ID laws.
Similarly, the First Amendment would continue to limit states. For instance, Establishment Clause jurisprudence, for all its famous incoherence,171 appears to ban state governments from endorsing a religion.172 A restriction limiting ballot access to one religious group would seem to run afoul of that bar, as would a restriction burdening participation by members of one or more religions. The Free Speech Clause, as well, would remain relevant. For instance, states may not engage in viewpoint discrimination,173 meaning they could not allow ballots or ballot access only to those who favored or opposed certain positions. And the freedom of expressive association would continue to protect various forms of engagement, including the formation and management of political parties174 — though it would not extend to the anonymous and individual act of casting a ballot for public office.
Finally, it bears emphasizing that constitutional limits do not have to come from the Federal Constitution. Just as S.B. 27 was struck down because it conflicted with the California Constitution,175 other election regulations must pass muster under the constitutions of states that pass them. The constitutions of all fifty states guarantee the right to vote,176 and leaving room for state courts to develop the implications of that right might make it stronger in the long term. Indeed, using a federal standard to “lockstep” this area of law “goes against the ideal of judicial federalism, which suggests that state constitutions should play a significant role in protecting individual liberties.”177
All of these potential limitations, and others, raise questions of their own and would doubtless give rise to lawsuits. For instance, S.B. 27 would still face obstacles from the Qualifications Clause and federal preemption. Nonetheless, many of the sorts of issues that currently drive litigation — such as voter ID laws, signature requirements, or ballot-listing rules — would no longer have an obvious way into court.
Conclusion
There is no guarantee that states will use their power to fix the outcomes of presidential elections any more than they currently use their power to appoint electors directly. But despite that fact, and despite the safeguards described above, one cannot discount the possibility that America’s ever-degenerating partisan discord178 will lead to a future in which the majority of states, including some swing states, hold essentially one-candidate presidential elections.179 Yet even with no change in law, the Constitution does not require that Presidents be chosen by voters. Until the Electoral College is abolished, the power to elect Presidents rests ultimately in the states. This Note advocates merely for recognizing the implications of that reality. When passing on the constitutionality of presidential election restrictions, courts should cast aside the textually ungrounded Anderson-Burdick balancing test and instead defer to the states.