A Tale of Two Rulings: Analyzing the Anderson-Burdick Doctrine in Election Emergencies

On October 8th, 2024, as Hurricane Milton barrelled towards Florida’s Gulf Coast, Tampa Mayor Jane Castor urged her constituents to escape from imminent death. [1] However, at another press conference barely twenty-four hours before Mayor Castor’s statement, Florida Governor Ron DeSantis insisted that "nothing" was inhibiting Floridians from meeting the voter registration deadline of October 7th. [2] This discrepancy was noted by the League of Women Voters of Florida and the State’s NAACP chapter, and the two groups promptly filed an emergency motion to extend the registration deadline. The motion argued that the state government’s refusal to extend the deadline, in light of Hurricanes Milton and Helene, was potentially disenfranchising tens of thousands of Floridians. [3] Yet, this is not a new nor unique case.

In 2016, in the wake of Hurricane Matthew, the Florida Democratic Party sued the state government for refusing to extend voter registration deadlines. This case, Fla. Democratic Party v. Scott, argued that the staunch deadline would affect the rights of Florida voters. Both cases presented nearly identical arguments in nearly identical contexts, yet they produced different rulings. The recent motion for relief was struck down by the district court, unlike in 2016. Here, the same court sided with the plaintiff to extend the voter registration deadline. This discrepancy stems from the methodology of the courts in examining election laws, specifically the Anderson-Burdick doctrine, which is charged as too deferential to the sentiments of the judge. [4] The district court’s opinion in Wesberry v. Sanders demonstrates the importance of such an investigation, “No right is more precious in a free country than that of having a voice in the election of those who make the laws…Other rights, even the most basic, are illusory if the right to vote is undermined.” [5] Therefore, inconsistency in the court’s regulation of election laws could prove fatal to other fundamental rights, especially considering partisan influences at play when doctrines lack a concrete framework.

The Anderson-Burdick doctrine was first formulated by the Court’s rulings on Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992). In Anderson, the court ruled in favor of petitioner Anderson and stated that the state’s excessively early filing deadlines for candidates violated the First and Fourteenth Amendments. [6] In this ruling, the Court asserted that a "litmus paper test" would be an insufficient judgment of a state’s election laws. Instead, a balancing test of sorts would be best suited to formulating such a judgment. [7] The balancing test should consist of the following: the character and magnitude of injury to an individual’s First and Fourteenth Amendments, identification and evaluation of the state’s interests, and the extent to which the state’s interests can reasonably inhibit an individual’s rights. [8]

Nearly ten years after Anderson v. Celebrezze, in Burdick v. Takushi, the Court held that Hawaii’s prohibition on write-in votes did not infringe on its citizen's First and Fourteenth Amendment rights. [9] In Burdick, the court upheld their ruling in Anderson, outlining that a state interest must be “narrowly drawn” and “compelling” to justify burdening voter’s rights, following strict scrutiny. [10] The two cases created the following understanding known as the Anderson-Burdick Doctrine: if an election law imposes a severe burden on the right to vote, then it must satisfy strict scrutiny. And, if the law is not so severe, then it must only satisfy the balancing test laid out in Anderson. Since its creation, the Anderson-Burdick Doctrine has become a common tool in deciding the outcome of voting rights cases. Yet, many legal scholars take issue with the doctrine’s reliance on the judge’s discretion in characterizing the severity of the burden on the citizen’s right to vote. [11] By utilizing cases in the realm of election emergencies, as is the case with the two cases, it yields an understanding of applying the Anderson-Burdick test when the state's interests are inherently well-defined.

On October 7, 2016, Hurricane Matthew hit Florida, three days before the state’s voter registration deadline. Governor Rick Scott refused to extend the deadline, and the plaintiff brought this case up to the district court. In Fla. Democratic Party v. Scott, the court ruled in favor of the defendant by utilizing the Anderson-Burdick doctrine. The court asserted that without extending the deadline in light of Hurricane Matthew, Florida's statutory framework placed a severe burden on the right to vote, employing the need for strict scrutiny. [12] The court then asserted that the state could not formulate an interest to satisfy strict scrutiny, thus the state’s statutory framework was deemed unconstitutional under the Anderson-Burdick doctrine. [13] The court even sought a hypothetical application of a weakened Anderson-Burdick test, where the state would have to prove a limitation that requires burdening the rights of the voters. [14]

Specifically, the court pointed to the examples of other states impacted by Hurricane Matthew, in these instances the state governments promptly extended voter registration deadlines. [15] The court posited that such examples proved that the state faced no legitimate limitation in following suit with an extended deadline. Therefore, the defendants would not withstand a diluted application of the doctrine. The court’s thorough use of the Anderson-Burdick test seemed to set a strong precedent for future courts, where in a similarly tailored case, the outcome would remain the same. However, League of Women Voters of Fl. v Rob Desantis, another similar case, refuted this assumption, highlighting the dangerous ambiguity regarding the Anderson-Burdick doctrine.

The premises of League of Women Voters of Fl. v Rob Desantis and Fla. Democratic Party v. Scott are extremely similar. Both cases were argued in the lower courts and urged the use of the Anderson-Burdick test to establish the legality of unextended voter registration deadlines in light of major hurricanes. Yet, in Fla. Democratic Party v. Scott, the court held that the state’s actions were not permissible under the Anderson-Burdick test, whereas in League of Women Voters of Fl. v Rob Desantis, the court ruled that the state had the right to not extend the deadline. Specifically, in League of Women Voters of Fl. v Ron Desantis, the court issued an order denying the temporary restraining order and preliminary injunction sought by the plaintiffs. This order refutes the argument put forth in the memorandum filed in support of the case. The memorandum proposed that possibly tens of thousands of individuals could be disenfranchised and thus the situation defines a "sufficiently weighty" justification for the strict deadline [16]. In this argument, the memorandum asserted the application of the Anderson-Burdick test, specifically its recommendation on strict scrutiny, was relevant to the case. [17] This position mirrors that of the district court in Fla. Democratic Party v. Scott, in which the court asserted the need for strict scrutiny. Nonetheless, the outcomes in the two cases demonstrate weakness in this "sliding scale" test, and its specific applications to an election emergency highlight this weakness.

Election emergencies often necessitate last-minute changes or clarifications to standing election laws, often set in the context of poignant suffering and need for recovery efforts. This setup inherently provides a defined state's interest, which would be to support recovery efforts. [18] Additionally, sound recovery efforts would allow state officials to mitigate potential fraud. Thus, the complete dismissal of the state’s interests in Fla. Democratic Party v. Scott revealed that the subjectivity of the court leads to flawed applications of the doctrine. Additionally, while the initial case provided comparisons to extended deadlines in other states and therefore that the burden on states interests was not impermissible, it is not relevant in the application of the Anderson-Burdick test. The Anderson-Burdick test does not seek the most permissible option for the voters, but rather fundamentally seeks to balance voting rights with states interests. As seen in these cases, because the Anderson-Burdick test is too weak, deferring so greatly to the sentiments of the judge can produce strikingly different results.

A glaring weakness of the Anderson-Burdick test is its weakness to partisan sway, an especially relevant point of analysis as political polarization is exacerbated across the country. The structure of the doctrine places a great emphasis on the role of the judge: under the doctrine, the judge is given extreme latitude in characterizing the interest of the state. This leeway corrupts the initial purpose of the Anderson-Burdick test: to establish a sliding scale based on the facts of the case. However, if the facts of the case are partially formulated by the judge, then the test becomes subject to the, likely partisan, preferences of the judge. For example, a trend is observed where conservative judges lean towards preserving states' interests, whereas liberal judges lean towards protecting voters’ rights. [19] Such fallibility in judgment is especially troubling in the context of election emergencies, where election officials require quick and clear instruction to preserve the integrity of the election. [20] Thus in election emergencies, under the Anderson-Burdick doctrine, judges operate within limited constraints and under extreme pressure which produces varied and flawed arguments. The differences in the decisions of very similar circumstances in Fla. Democratic Party v. Scott and League of Women Voters of Fl. v Ron Desantis is extremely troubling. This dissonance exemplifies the weakness of the Court’s current formulation of voting rights.

As the twenty-first century progresses, election emergencies have become the norm. Voters' rights are held in a loose grip by the courts, and that grip is slipping as the myriad of judgements under the Anderson-Burdick doctrine begin to contradict one another. [21] As was the case in Florida, voters are met with an inconsistent interpretation of their fundamental right to vote. This situation will continue until the courts find a substantive way to address this issue and introduce a new doctrine to standardize judicial regulation of election laws.

Alternative doctrines and modifications to the Anderson-Burdick Doctrine have been offered, such as the especially compelling resolution of the Carolene Test. This would allow for judicial intervention only after a case satisfies the three following conditions: if the change is a state action in election administration complicating one’s political participation, if the change affects "discrete" and "insular" minorities, and if the change would diminish access or exercise of the "franchise." [22]. The Carolene test fundamentally limits the role of the courts in regulating election laws and only allows for judicial intervention if a true burden is placed on the rights of voters. Even in the case of election emergencies, such criteria would assist in standardizing the rulings of the court and alleviate pressure on prosecutors, election officials, and even the voters themselves.

Voters can not be left in a state of indecision. Their ability to participate in political processes must not hinge on the partisan leanings of a single decision-maker. The court views voting rights as the foundation of all other rights, and therefore must reform itself in line with this belief. The Anderson-Burdick doctrine is admirable for its attempt to ground judgements in facts, but in practice it often undermines this intent. Like public officials in the midst of disaster, a doctrine regulating voting rights should provide clear, steady guidance in every situation, helping people navigate the storm of uncertainty.

Edited by Ashley Zhou

[1] Oliver Holmes,  “Floridians warned ‘you are going to die’ if they don’t evacuate as Milton nears,” The Guardian, October 8, 2024. https://www.theguardian.com/us-news/2024/oct/08/us-florida-mexico-hurricane-milton-tampa-bay-storm#:~:text=Hurricane%20Milton-,Floridians%20warned%20%27you%20are%20going%20to%20die%27%20if%20they%20don,t%20evacuate%20as%20Milton%20nears&text=Florida%27s%20western%20coast%20was%20making,%2C%E2%80%9D%20the%20hurricane%20center%20said

[2] Mitch Perry, “Voting rights group unhappy that registration deadline isn’t extended with Milton approaching,” Florida Phoenix, October 8, 2024. https://floridaphoenix.com/2024/10/08/voting-rights-group-unhappy-that-registration-deadline-isnt-extended-with-milton-approaching/

[3] Compl. for Declarative Emergency Injunctive and Declaratory Relief. At 3. October 8, 2024. 4:24-cv-00412-RH-MJF.

[4]  [21]  Danika Elizabeth Watson, “Free and Fair: Judicial Intervention in Elections Beyond the Purcell Principle and Anderson-Burdick Balancing”, 90 Fordham L. Rev. 994 (2021). https://ir.lawnet.fordham.edu/flr/vol90/iss2/18/

[5] Wesberry v. Sanders, 376 U.S. 17 (1964)

[6] Anderson v. Celebrezze, 460 U.S. 780 (1983)

[7] Anderson v. Celebrezze, 460 U.S. 817 (1983)

[8] Anderson v. Celebrezze, 460 U.S. 789 (1983)

[9] Burdick v. Takushi, 504 U.S. 428 (1992)

[10] Burdick v. Takushi, 504 U.S. 434 (1992)

[11]  Christopher S. Elmendorf, “Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote,” 35 Hastings Const. L.Q. 657 (2008). https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss4/3/

[12] Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1257 (N.D. Fla. 2016)

[13] Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1257 (N.D. Fla. 2016)

[14] Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1257 (N.D. Fla. 2016)

[15] Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1257 (N.D. Fla. 2016)

[16] Compl. for Emergency Injunctive and Declaratory Relief, point 7, League of Women Voters of Fl. v Rob Desantis, October 8, 2024. 4:24-cv-00412-RH-MJF.

[17] Compl. for Emergency Injunctive and Declaratory Relief, points 66-68, League of Women Voters of Fl. v Rob Desantis, October 8, 2024. 4:24-cv-00412-RH-MJF.

[18] Michael T. Morley, “Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks”, 67 Emory L. J. 580 (1905). https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1059&context=elj

[19] Christopher S. Elmendorf, “Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote,” 35 Hastings Const. L.Q. 648-9 (2008). https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss4/3/

[20] Christopher S. Elmendorf, “Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote,” 35 Hastings Const. L.Q. 615 (2008). https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss4/3/

[21]  Danika Elizabeth Watson, “Free and Fair: Judicial Intervention in Elections Beyond the Purcell Principle and Anderson-Burdick Balancing”, 90 Fordham L. Rev. 1001 (2021). https://ir.lawnet.fordham.edu/flr/vol90/iss2/18/

[22] Danika Elizabeth Watson, “Free and Fair: Judicial Intervention in Elections Beyond the Purcell Principle and Anderson-Burdick Balancing”, 90 Fordham L. Rev. 1020 (2021). https://ir.lawnet.fordham.edu/flr/vol90/iss2/18/