Is It Time for SCOTUS to Revisit the Anderson-Burdick Test?: Insights from the Challenge to West Virginia’s Ballot Order Statute

November 18, 2020

By: Daniel Bruce

In a previous article on the ongoing challenge to West Virginia’s ballot order statute, I highlighted the growing importance of the Political Question Doctrine to challenges to election administration laws like the one at issue in Nelson v. Warner.

As a refresher, W. Va. Code § 3-6-2(c)(3) requires candidates appearing on statewide ballots to be placed in the order of the party whose candidate received the highest number of statewide votes in the previous presidential election. The state’s Democratic Party is challenging the law based on the “primacy effect” granted to Republican candidates who appear first on the ballot.

This article focuses on another amorphous standard the Fourth Circuit will have to apply if it reaches the merits of the case: the Anderson-Burdick test.

The Anderson-Burdick test is a balancing test created by the Supreme Court to give courts discretion in determining when a state restriction on voting unconstitutionally burdens the right to vote. It requires courts to first determine whether the burden placed on voting is high, low, or in between. A high burden is subject to strict scrutiny (requiring the restriction to be narrowly tailored to a compelling state interest), while a low burden is only subject to rational basis scrutiny (requiring the restriction to simply be rationally related to an important government interest). And if the burden is in-between, it is subject to a sliding scale level of scrutiny. Once the court establishes the applicable level of scrutiny, it must weigh the burden on the right to vote against the asserted interests of the state according to the appropriate standard.

While the test attempts to provide a standard by which to evaluate disputes between two important interests—an individual’s right to vote and the state’s interest in its constitutional duty to control the “Time, Places, and Manner of holding Elections”—critics maintain that the test gives judges too much discretion and is too difficult to apply consistently.

Indeed, the most important case to apply the Anderson-Burdick test left even the Supreme Court Justices confused. In Crawford v. Marion County Election Board, the Court attempted to apply the balancing test to a challenge to Indiana’s voter ID law. However, the Justices split on how to characterize the burden. Some asserted that the burden was minimal compared to the state’s asserted interest in deterring in-person voter fraud. While others characterized the burden as grave, potentially disenfranchising “tens of thousands” of citizens.

Two important ballot order cases further indicate how difficult the Anderson-Burdick test is to apply in practice. In Libertarian Party of Virginia v. Alcorn and Pavek v. Donald J. Trump for President, Inc., the Fourth and Eighth Circuits addressed ballot order laws similar to West Virginia’s. Virginia’s law listed all major party candidates before minor party candidates, and Minnesota’s law placed candidates in reverse order of the parties’ vote totals in the previous general election. The courts held that the states’ interests in political stability and diversity, respectively, justified assigning a detriment to a particular candidate based solely on political party affiliation.

It was under this nebulous background that the District Court applied the Anderson-Burdick test in Nelson v. Warner. While the court did not characterize the burden as either high nor low, it held that “[g]iven the discriminatory character and considerable magnitude of the injury imposed by the Statute, weighty state interests are required to justify it”—indicating the court operated within the Anderson-Burdick test’s in-between, sliding scale of scrutiny.

The court relied heavily on expert testimony explaining the statistical impact of the ballot order law on West Virginia elections—indicative of a post-Crawford trend of establishing a robust factual record in order to properly characterize the burden. Due to the fact that the statute awarded a 2.94 percentage point advantage to candidates based solely on party affiliation, the court found that the challenge presented a weighty burden.

Moving to the second prong, the court analyzed West Virginia’s interests in the effective administration of elections and efficient voting in light of the burden placed on the plaintiffs’ right to vote. While the Fourth Circuit had previously affirmed these concerns as important state interests, the court held that they were “extremely weak justifications for the burden imposed by the [West Virginia] Statute.”

The West Virginia statute’s burden differs little from the burden at issue in Alcorn and Pavek—it assigns a benefit, rather than a detriment, based solely on party affiliation. However, the court went to great lengths to distinguish the asserted state interests in political stability and diversity in those cases from West Virginia’s general interest in election administration.

Nelson v. Warner is an emblematic example of the broad discretion given to judges in Anderson-Burdick cases. Typically tried solely in front of a judge rather than a jury, judges have wide latitude in making factual determinations about the weight of the burden. This often hinges solely on which side’s expert witness the judge views as more credible. Then, the judge is left to characterize the state’s interests—often taking great pains to elevate some interests above others. And unfortunately, those decisions may ultimately be influenced by a judge’s particular partisan preferences.

The Anderson-Burdick test has become increasingly more important in recent election challenges, particularly those relating to the COVID-19 pandemic. As this murky standard gains the attention of more litigants, calls for the Supreme Court to issue additional guidance are likely to continue.