The presidential election on November 2, 2004, was perhaps one of the most watched and contentious elections in recent memory. Both major parties knew that the race would come down to several battleground states, including Ohio. The real battle in Ohio, however, began a day or two before Election Day, when several federal judges clashed over whether to allow partisan challengers at the polls.

On October 31, 2004 and November 1, 2004, two separate district court judges ruled that an Ohio election statute allowing political parties and groups of five or more candidates to place challengers at election precincts to challenge the eligibility of particular voters constituted a “severe burden” on the voters’ rights, and that the statute had not met the strict scrutiny standard of review required for severe burdens. In an expedited appeal decided on the morning of the election, the Court of Appeals for the Sixth Circuit reversed in a 2-1 decision, determining that partisan poll challengers did not create a severe burden on voters’ rights, and that the statute had survived the lower level of scrutiny. After the Supreme Court declined to review the case, the Republican Party immediately placed its challengers at election sites to challenge voters as they prepared to exercise their constitutional right to vote.

What is striking about these three decisions is not that they came to opposite conclusions regarding whether challengers amount to a severe burden on voters’ rights. Instead, the opinions demonstrate that judges have few guidelines to inform their decisions on the severe burden question and can make their determinations on an ad hoc basis. Judges simply review the regulation and subjectively decide whether it seems to impose a severe burden. Thus, the severe burden test is nebulous and unclear, resulting in vague decisions that fail to distinguish between constitutional and unconstitutional state election regulations. Because George W. Bush won Ohio’s twenty electoral votes by a slim margin, the Ohio decisions may have greatly influenced the outcome of the presidential election. A judge’s subjective interpretation of the burdens a regulation imposes should not have such a significant impact on the U.S. political system, because judges generally should not decide elections. This Note provides a modicum of direction and objectivity to the analysis by suggesting a clear mechanism for determining when a regulation imposes a severe burden on voters’ rights.

Part I of this Note analyzes the severe burden test and discusses the interplay between a state’s right to administer and regulate elections and a citizen’s fundamental right to vote. This part also provides a detailed analysis of the Supreme Court’s formulation of the severe burden test from its origins in Anderson v. Celebrezze to its most recent articulation in Clingman v. Beaver, and demonstrates why the severe burden test is too subjective in its current formulation. Part II examines the three Ohio decisions in detail as a case study to demonstrate the courts’ vague application of the severe burden test. Part III articulates the proposed solution: the creation of a “five percent rule” for the severe burden test, which stipulates that state regulations that deny more than five percent of the electorate of its right to vote are per se severe and require strict scrutiny review, while regulations that burden less than five percent of voters are subject only to the rational basis test. Part III then discusses why the five percent rule, derived from the Voting Rights Act, will ensure fair and efficient elections while protecting voters’ rights. This Part also suggests methods to enact the five percent rule, either through a congressional act as part of an update to the Voting Rights Act or via the Supreme Court in a reformulation of its current judicially created test. Finally, Part III discusses how the five percent rule would have worked in the Ohio cases and demonstrates its application in other voting rights situations. The Note concludes that promulgating a concrete standard for the severe burden test may provide judges, political parties, states, and voters with greater certainty during the inevitable court battles surrounding the upcoming 2008 elections.

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Notes/Citation Information

George Washington Law Review, Vol. 75, No. 2 (Feb. 2007), pp. 372-397



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