How Closely Should State Courts Scrutinize Laws that Restrict Voting? 

Last fall, two state supreme courts considered how closely courts will review laws that burden the right to vote under their respective state constitutions. While the cases involve restrictions on distinct aspects of the voting process — mail voting in Kansas and voter ID in Idaho — both courts must decide what a state has to prove in order to save a law that burdens the right to vote. Lower courts in both cases agreed that the right to vote constitutes a fundamental right under their state constitutions. But they diverged in ways that showcase different perspectives on both voting restrictions and the role that federal law should play in state court.

In November, the Kansas Supreme Court heard oral arguments in League of Women Voters of Kansas v. Schwab, a case in which plaintiffs have challenged two policies: a requirement that election officials reject mail ballots if a voter’s signature does not match the signature on file and a criminal prohibition on delivering more than 10 mail ballots for other voters. Deciding the question for the first time, a Kansas appellate court held that the right to vote is fundamental and therefore ruled that strict scrutiny — the court’s most rigorous form of judicial review — must apply. Under Kansas’s strict scrutiny test, once plaintiffs have shown that the state infringed on their rights, the state must establish that its law is narrowly tailored to promote a compelling government interest.

Notably, the Kansas appellate court concluded that the lower court erred when it borrowed from the federal test for examining the constitutionality of burdens on the right to vote. That federal test is derived from two U.S. Supreme Court decisions, Anderson v. Celebrezze and Burdick v. Takushi. The Anderson–Burdick balancing test provides a sliding scale for evaluating burdens on the right to vote under the U.S. Constitution — the greater the burden, the greater the scrutiny. A recent review by Emily Lau at the State Democracy Research Initiative found that a majority of states apply strict scrutiny to voting restrictions — not the Anderson–Burdick test.

The Kansas appellate court concluded that the lower court should not have applied Anderson–Burdick balancing to a challenge brought under the state constitution because “the Kansas constitutional provisions are unique.” The appellate court surmised that the state’s high court would be particularly likely to reject the Anderson–Burdick test because it is difficult to understand and apply. In reaching this conclusion, it looked to the high court’s rejection of a confusing undue burden standard in Hodes & Nauser, MDs v. Schmidt, a 2019 decision that recognized a fundamental right to abortion under the state constitution. Ultimately, the Kansas appellate court concluded that the policies at issue impair the fundamental right to vote, and it remanded to the lower court to give the state the opportunity to show that the policies can survive strict scrutiny.

Several weeks later, the Idaho Supreme Court heard oral arguments in BABE VOTE v. McGrane, a challenge to the elimination of student IDs as an acceptable form of voter ID. As in Kansas, the lower court recognized that the right to vote is a fundamental right and that strict scrutiny applies to burdens on the right to vote. But the court said that some laws can restrict voting without constituting a burden on the right to vote.

In reaching this decision, the Idaho court relied heavily on federal law — and misinterpreted it, at that.

First, the court purported to apply Anderson–Burdick, though there is no compelling reason to interpret the Idaho and U.S. Constitution in lockstep. As the Idaho Supreme Court noted in 2000 in Van Valkenburgh v. Citizens for Term Limits, which recognized the fundamental right to vote, “Burdick did not deal with the Idaho Constitution and instead was decided under the United States Constitution.” Applying Anderson-Burdick is particularly inapt, given that Idaho’s constitution provides a more explicit grant and protection of voting rights than the U.S. Constitution. The state constitution provides that “no power . . . shall at any time interfere with . . . the right of suffrage” and guarantees that every citizen who meets Idaho’s specified eligibility requirements “is a qualified elector.”

Second, the Idaho court distinguished laws that burden the right to vote from laws that constitute “time, place, [and] manner regulation[s] aimed at enhancing, not undermining the integrity of an election.” The court concluded that the voter ID provisions at issue fall into the latter category and that under the Anderson-Burdick test, any “time, place, or manner” regulation is subject to rational basis review. But whether a law constitutes a time, place, or manner regulation on voting has no bearing on whether the law also burdens the fundamental right to vote. Indeed, both Anderson and Burdick acknowledge that regulations on the times, places, and manner of elections inevitably impose some burden on voters. Further, the Anderson–Burdick approach does not dictate that a “time, place, or manner” regulation is automatically subject to rational basis review (the least stringent form of judicial review). And as the Burdick Court explained: “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Under the U.S. Constitution, the severity of the burden on voters — not the subject matter of the law — determines the level of scrutiny.

Regardless of the result, the lower court decisions in Idaho and Kansas make clear that the outcomes in the state supreme courts will depend not just on how the high courts understand their own constitutions, but also on how they understand the relationship — if any — to federal law on the right to vote.

Eliza Sweren-Becker is a senior counsel at the Brennan Center for Justice.