The U.S. Supreme Court has created several standards it commonly relies on to review voting and election laws. These “legal tests” are designed to provide a framework for courts to apply in reviewing legal challenges.
Legal tests are often named after the case that created the test. For example, for decades, federal courts relied on a three-pronged test to determine if a policy violated the religious establishment clause of the U.S. Constitution. This well-known legal tool was called the Lemon test, named after Lemon v. Kurtzman (1971), until the far-right majority on the Court dismantled the Lemon test last term.
There are three levels of judicial review used to assess a law’s constitutionality.
To determine the constitutionality of a challenged law, courts rely on three judicial review tests. The highest level of review, called strict scrutiny, only applies when a law infringes upon a fundamental right or treats a group of people differently based on suspect classifications such as race, religion or national origin. For a law to survive strict scrutiny, it must have been enacted to further a compelling governmental interest and be narrowly tailored to achieve that interest.
Loving v. Virginia (1967) is a well-known case that utilized strict scrutiny to strike down Virginia’s ban on interracial marriage. Since the law classified people by race, to survive an Equal Protection challenge, Virginia had to prove that there was a compelling and narrowly tailored government reason to keep the ban on interracial marriage in place. In the end, Virginia failed to prove that.
The next level of judicial review is intermediate scrutiny, which applies when a law negatively affects a group of people based on gender or, in some cases, laws that infringe upon First Amendment rights. For a law to survive intermediate scrutiny, it must further an important governmental interest and do so in a way that is substantially related to that interest.
For example, in 2019, the 9th U.S. Circuit Court of Appeals held that the intermediate scrutiny test could be used when assessing a ban on transgender people from serving in the military because this Trump-era rule excluded people based on gender.
Finally, there is rational basis review, a test used when there is no fundamental right, suspect classification or protected class at issue. For a law to survive rational basis review, it need only further a legitimate state interest and simply have a rational connection between the means and ends.
Consequently, rational basis review gives lawmakers the most deference in regulating people’s lives; last year, the majority opinion in Dobbs v. Jackson Women’s Health Organization (2022) held that “rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge.” The majority opinion, written by Justice Samuel Alito, moved us away from past precedents that treated abortion restrictions with great skepticism. Instead, Alito placed abortion in the same category “as other health and safety measures,” which are subject to the lowest, and therefore least rigorous, judicial review.
Anderson-Burdick: Balancing test for burdening voting rights
One year before Congress passed the Voting Rights Act (VRA), the Supreme Court ruled in Reynolds v. Sims (1964) that since the right to vote is “preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” This suggested that courts should apply strict scrutiny when assessing voting restrictions. However, the Court has — at the expense of voters — moved away from this understanding over the past few decades.
The current test used to analyze most voting laws is called the Anderson-Burdick balancing test, named after 1983 and 1992 cases, respectively. The test is used to determine whether a voting restriction violates the First and 14th Amendment. Under the Anderson-Burdick test, a court needs to balance the burden on the right to vote with the government’s interest in the law. For example, if a law imposes a severe burden on the right to vote, then the law must satisfy strict scrutiny (as a reminder, narrowly tailored to a compelling government interest).
However, if the court finds that the election law imposes only a slight, nonsevere burden, then a less stringent balancing test is used. The court weighs the burden against the state’s interest in imposing that election law.
“Of course, the threshold question—does a law impose a severe burden—is vitally important, but the Court has failed to define that term with any clarity,” writes law professor Joshua Douglas. A 2008 case over Indiana’s photo ID law led to a split opinion and further divergent views on how to apply Anderson-Burdick.
“As a result of this balancing, the fundamental right to vote — which the Court has repeatedly recognized as ‘preservative of all rights’ — has been relegated to just one of many competing considerations in conducting elections,” Marc Elias, a voting rights lawyer and Democracy Docket’s founder has previously written. “[L]egislators, election officials and courts alike are empowered to encroach upon that right as long as they can identify a reason that the court concludes is good enough.”
Arlington Heights: Parsing through intentional discrimination
In the voting and nonvoting context alike, courts are often tasked with the challenge of parsing whether a law or regulation was enacted with intentional discrimination. To do so, courts rely on a wide range of possible evidence.
Named after a 1977 case dealing with housing permits, the Arlington Heights factors are a non-exhaustive list of considerations to help courts probe for discriminatory intent, typically in 14th Amendment Equal Protection cases. These factors include:
- Statistics demonstrating a clear pattern of discriminatory effect;
- Historical background of the decision and decisions on comparable matters;
- Sequence of events leading up to the decision and events leading up to decisions on comparable matters;
- Departure from normal procedures;
- Relevant legislative or administrative history and
- Consistent pattern of actions by decision makers to impose greater harm on minorities than nonminorities.
Gingles factors: Proving redistricting maps dilute minority voters in violation of Section 2 of the Voting Rights Act
For the past 40 years, courts have relied on a test established in a 1986 case, Thornburg v. Gingles, to determine whether a state’s redistricting map violates Section 2 of the VRA. In these instances, maps often “pack” minority voters into one district and “crack” them among other districts in order to weaken — or dilute — their collective voting power.
The Gingles test has three criteria to prove racial vote dilution:
- The minority group in question must be “sufficiently large and geographically compact” enough to constitute a political district;
- the minority group must be “politically cohesive,” meaning the group generally votes for similar candidates and
- the majority group must also be “politically cohesive” and vote to defeat the preferred candidates of the minority group.
For Section 2 redistricting claims, the court then considers the context of the local environment to determine if the map denies the minority group an equal opportunity to participate in the political process. The court looks to specific factors that include the state’s history of racial discrimination in voting, impact of racial discrimination on education, employment and health outcomes and appeals to racism in campaigns.
To prevail in a Section 2 redistricting case, plaintiffs need to satisfy the three Gingles factors and the totality of circumstances must weigh in their favor.
However, this test — which has been settled law since 1986 and repeatedly utilized in the intervening years — is at risk in Allen v. Milligan, a redistricting case out of Alabama currently pending before the U.S. Supreme Court. The Court will release its opinion in Allen in the coming weeks.
Shaw cases: If race was the predominant factor without a compelling reason, that’s a racial gerrymander.
Depending on the context, racial vote dilution claims can be brought separately or alongside racial gerrymandering claims, but they are distinct concepts. While racial vote dilution is based in the VRA, racial gerrymandering is rooted in the Equal Protection Clause of the 14th Amendment.
In Shaw v. Reno (1993), the Supreme Court held that race cannot be the predominant factor in placing voters in certain districts. Later cases affirmed this line of reasoning. To prevail on a racial gerrymandering claim, plaintiffs first must show that race was “the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a district.”
If race is found to be the predominant factor in map drawing — above all other criteria — the court must then determine whether the use of race served a compelling and narrowly tailored government interest. (In other words, strict scrutiny applies.)
While there is a long line of racial gerrymandering cases since Shaw that have largely reaffirmed this test — as recent as 2017 — the Supreme Court recently decided to hear the appeal of a racial gerrymandering case out of South Carolina during its next term, signaling unclear intentions on whether the justices want to further entrench or overturn this test.