Monday, March 27, 2017

I'm not sure how far down the election geek spectrum to agree with this you have to be (that was bad sentence structure), but this Yale paper on the standard of review in Williams-Yulee is fascinating.

I'm not sure how far down the election geek spectrum  you have to be to agree with this, but this Yale paper on the standard of review in Williams-Yulee is fascinating.

Yulee was a recent (2015?) case that applied strict scrutiny but still held for the state, in a judicial speech case. So it undermines the landmark Mn GOP v White case. Burson v Freeman is another case that said it was applying strict scrutiny but still held for the state. I can exxplain that one away; there were dueling personal rigghts involved. That was the 100-foot electioneering line case. The article says there is a third such case but I can't think of it.

Minor criticism: I don't like when the Anderson standard is called the Burdick standard. Burdick is biased toward finding for the state; Anderson can legitimately go either way.
Burdick handles 1 of three sets of cases; Anderson handles all three.
The general framework of severe burden to minimal burden runs Norman v Reed (strict scrutiny)
Anderson v Celebrezze (balancing test) Burdick v Takushi (permissive standard.)

In Crawford v Marion County (from which I write), the court said the courts below had erred in using Burdick and should have used Anderson. That was the first time the court adopted the test outside of ballot access cases. I had written about the Norman-Anderson-Burdick spectrum back in 1994 in my LLM thesis. That seeems a while ago. This stuff may be fairly obscure for those of you who don't subscribe to Richard Winger's Ballot Access News. It is the only publication I subscribe to.

The Anderson test is:
In resolving constitutional challenges to a State's election laws, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Pp. 460 U. S. 786-790.

The article's authors suggest this test would have been a better way to explain the decision in Williams-Yulee; I agree.

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