Battle for the Ballot

Professor Michael Gilbert Says Courts Will Leave More Decisions to States, Lawmakers
Michael Gilbert

Professor Michael Gilbert focuses his scholarship on constitutional entrenchment, campaign finance law, corruption and the design of courts.

November 2, 2018

As Election Day nears, legal battles are being waged about voters’ access to the ballot box itself.

In states across the country, parties are tussling over issues ranging from removing residents from voter rolls to voter ID requirements. Yet courts often take a hands-off approach to some of the most contentious electoral issues, says Professor Michael Gilbert of the University of Virginia School of Law.

Gilbert, who teaches courses on election law, legislation, and law and economics, focuses his scholarship on constitutional entrenchment, campaign finance law, corruption and the design of courts.

Gilbert said judges use a balancing test in weighing the legality of how elections are administered by considering how a law affects voters and candidates on the one hand, and the interests of the state and lawmakers on the other. When the U.S. Supreme Court had to decide a decade ago whether an Indiana law requiring a photo ID to vote was constitutional, in Crawford v. Marion County Election Board, the justices weighed the impact on voters versus the state’s interest in preventing fraud. The state couldn’t prove any instance of in-person voter fraud in Indiana’s history, but the challengers failed to make a credible legal case that the law systematically burdened the right to vote, Gilbert said. The tie went to Indiana, and the voter ID law remained on the books.

“The court is often deferential to the states,” he said. “The states take the lead on regulating elections. Unless they do something egregious, the court tends to say ‘OK.’”

Voter ID laws have attracted support and criticism ever since. A law in Kansas requiring proof of citizenship to vote was rightly ruled unconstitutional by a federal judge in June, Gilbert said. Not only is it rare for noncitizens to vote, he argued, the laws burden voters who may not have the necessary documentation.

“There’s no evidence that voting by noncitizens is anything approaching what most people would reasonably agree is a meaningful problem,” he said. “Most people have driver’s licenses, but of course noncitizens can get driver’s licenses, so to prove your citizenship you need more — a birth certificate, a passport.”

Gilbert said some actions officials take regarding voting may seem controversial but are probably not rooted in ill intent. For example, he said, updating voter rolls by removing residents who have moved, died or become ineligible to vote is common.

Ohio enacted a law, upheld by the Supreme Court, that removes citizens from voter rolls after cycles of inactivity and after they have received a notification that they face removal. Voting in the next election would stop the removal process.

“Many people thought this was very controversial — it’s a ‘purge’ — but it seemed pretty reasonable to me,” he said, “The state is not just stripping people from the list willy-nilly.”

Another example, Gilbert said, is officials exercising judgment on where they place polling stations. In some cases, they may move a polling station to make the location more accessible to the disabled to comply with the Americans with Disabilities Act.

“Wherever you put the polling station, you’re going to make it easier for some people to vote and harder for others,” he said. “With in-person voting especially, there’s just no way to equalize the burden.”

As for the future of suffrage laws, Gilbert said the next battleground is whether there is judicial recourse for partisan gerrymandering — when the party in power redraws district lines to their benefit. The Supreme Court has largely dodged the issue, he said, including with a case the court demurred on last term, Gill v. Whitford.

The plaintiffs in that case challenged Wisconsin’s 2011 redistricting law as violating the Constitution’s equal protection clause. Opponents of the law argued that Republicans in the state’s legislature had redrawn district lines in a way that purposely diluted Democratic voters. The court ruled that the plaintiffs lacked standing and didn’t address the question on the merits.

With Justice Brett Kavanaugh joining the Supreme Court, Gilbert said the justices may ultimately conclude that the issue is a political rather than a legal one.

“The court might hold that partisan gerrymandering claims are non-justiciable, meaning you can’t raise them in federal court. That’s not going to make the fury over gerrymandering go away, and I think we’ll see the fight shift to the state level,” he said. “It’s already happening to some degree: Some states adopted — through the state legislature or in some cases through ballot initiatives — state-level districting reform, and I think there’s going to be more of that in the years ahead.”

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