Why the Court Should Apply Intermediate Scrutiny to Equal Protection Challenges to Election Laws

By Matt Collins*

I. INTRODUCTION

Since the U.S. Supreme Court decided Bush v. Gore,¹ scholars have debated the soundness of its equal protection holding and whether the Court’s "arbitrary and disparate treatment" standard held any precedential value for future election law challenges.² In the spring of 2008, the Court decided another controversial election law issue in Crawford v. Marion County Election Board.³ While both cases were decided on equal protection grounds, Crawford applied a markedly different standard.⁴ As opposed to an arbitrariness inquiry, the Court applied the Anderson-Burdick balancing test, a standard established in two prior Supreme Court cases: Anderson v. Celebrezze⁵ and Burdick v. Takushi.⁶

Quite understandably, lower courts have struggled to reconcile this conflicting Court precedent, as exemplified by litigation during the 2012 election cycle. In July 2012, the Obama campaign filed a lawsuit challenging an Ohio statute prohibiting early voting during the three days before an election for all but military voters.⁷ In Obama for America v. Husted, the United States District Court for the Southern District of Ohio granted an injunction, finding that the attenuation of the early voting period violated the Equal Protection Clause of the Fourteenth Amendment.⁸ Interestingly, the District Court applied both the Bush v. Gore arbitrariness standard and Anderson-Burdick balancing.⁹