This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
Rudy Giuliani had a very rough day in court as he represented the Trump campaign in Donald J. Trump for President, Inc. v. Boockvar on Tuesday. Giuliani had not been in a courtroom in decades and it showed. At one point Judge Matthew Brann inquired of him what level of scrutiny should apply to the case. Giuliani didn’t seem to understand the question and gave the nonsensical answer “the normal one.”
“What standard of review should I apply?”
Rudy: “The normal one.”
I can hear the judge’s befuddlement from here. The normal one is not the answer. He wanted “strict scrutiny” or intermediate scrutiny.
— Raffi Melkonian (@RMFifthCircuit) November 17, 2020
I could hear the judge’s befuddlement from here. The “normal one” was not the answer. He wanted “strict scrutiny” or “intermediate scrutiny.”
For the non-lawyers out there: Tiers of scrutiny are used when courts apply the equal protection clause. (These tiers also pop up in First Amendment cases.) Following the lead of the Supreme Court which created the tiers of scrutiny for equal protection, lower courts apply strict scrutiny to instances of racial discrimination by the state, they apply intermediate scrutiny to gender discrimination and nearly every other type of discrimination among different groups of citizens gets the very low level of rational basis scrutiny.
The level of scrutiny matters because it helps inform litigants who is likely to win a given case. If a court applies strict scrutiny, then the government is likely to lose. If the court applies rational basis scrutiny, then the plaintiff is likely to lose. In intermediate scrutiny, it’s a free for all, which makes predicting the outcome difficult for all litigants.
Thus, as a lawyer for the plaintiffs in the Pennsylvania case, the judge was expecting Giuliani to argue for strict or intermediate scrutiny. “Normal” wasn’t a choice on the table. This flub opened Giuliani to ridicule on Twitter and TV as legal commentators crowed that nearly every one L — first year law student — understands levels of scrutiny and Rudy revealed what a hack he was for flubbing this basic issue.
I think this is my favorite Giuliani quote from the hearing today. I too would rather skip levels of scrutiny. But they are the law, as every one-L knows. https://t.co/vpL2MjFXxa
— Emily Bazelon (@emilybazelon) November 18, 2020
What lawyers outside of the strange world of election law might not know is that the issue of level of scrutiny is particularly uncertain when challenges to the constitutionality of election administration are considered by courts. Instead of the classic three tiers that are found in equal protection in racial or gender discrimination cases, in election law, the courts often apply a sliding scale of scrutiny known as Anderson/Burdick, which is named for two Supreme Court precedents: Anderson v. Celebrezze and Burdick v. Takushi. Burdick held that “the right to vote in any manner” is not “absolute.”
The Anderson/Burdick standard is applied by judges in a two-step process. The threshold question in step one is whether the state’s actions or the state’s election law presents a severe or not-so-severe burden on voters. If the Court determines that the state’s election law imposes a “severe burden,” then strict scrutiny applies. But if the burden the state’s election law imposes is not severe, then the court applies a far lower level of scrutiny that looks a lot like permissive rational basis scrutiny. In other words, in step two, the court applies either strict or rational basis scrutiny. In the lower end of the sliding scale, courts must then determine the strength of state interests that have been offered as justifications for the state law and consider the extent to which those interests are allowable burdens on the plaintiff’s rights.
Of course, the threshold question in Anderson/Burdick — “does a law impose a severe burden?” — is the whole game here since that will be outcome determinative in most cases. Unfortunately, the Supreme Court has been less clear about how this question should be answered by judges. The upshot of courts using the Anderson/Burdick sliding scale in election law cases is that litigants (both the state and plaintiffs) are often flying blind in terms of what level of scrutiny the court will eventually apply, especially if the case raises a novel legal argument or a new factual problem.
The most famous application of Anderson/Burdick was in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008). In Crawford, the Supreme Court was considering the constitutionality of Indiana’s law requiring voter ID law. The Supreme Court decided that this law did not pose a severe burden on voters in Indiana, thus they applied a low level of review to Indiana’s law, and unsurprisingly upheld voter ID requirements. In doing so, the Court did not consider how the voter ID law might impact the poor or disabled, who would have a harder time getting a voter ID, and thus might be fenced out from the franchise. But because the Court only considered how the law would impact the average voter in Indiana, the Court concluded that the impact would be minimal for most voters, who had the required ID to vote.
During 2020, courts all over the nation had to apply ad hoc Anderson/Burdick sliding scale to cases that voters and political parties brought challenging how states dealt with COVID-19 and accommodations for making voting safer for voters. A case out of Oklahoma DCCC v. Ziriax explained Anderson-Burdick thusly: “[t]he Circuits have referred to the balancing as involving a ‘sliding scale’ test, where ‘the more severe the burden imposed, the more exacting [the court’s] scrutiny; the less severe, the more relaxed [the court’s] scrutiny.’” In Ziriax, the court decided that Oklahoma’s law which required voters to pay for postage for absentee ballots did not violate the Constitution. Similarly, in a Texas case, Texas Dem. Party v. Abbott, 961 F.3d 389 (5th Cir. 2020), the 5th Circuit upheld a Texas law which gave no-excuse mail in ballots only to those aged 65 or older applying Anderson/Burdick (leaving out everyone who was younger than 65).
In pre-election litigation, Justice Kavanaugh raised eyebrows in a concurrence in Democratic National Committee v. Wisconsin State Legislature, a case out of Wisconsin about extending the deadline for receipt of absentee ballots during the COVID-19 pandemic, when he stated “[t]his Court has long recognized that a State’s reasonable deadlines for registering to vote, requesting absentee ballots, submitting absentee ballots, and voting in person generally raise no federal constitutional issues under the traditional Anderson-Burdick balancing test.” In other words, Justice Kavanaugh seemed to try to remove this part of election law (absentee balloting) out of Anderson-Burdick analysis entirely. If the rest of the Supreme Court followed Kavanaugh down this road, then a low level of review (rational basis) would apply, and consequently the government would win in nearly every election administration case.
At some point, maybe soon, the Supreme Court should consider whether the Anderson-Burdick “standard” is giving voters and those who litigate disagreements about election laws sufficient predictability in the law.
Rudy can be faulted for not understanding the tiers of scrutiny question posed to him by the judge yesterday, which really any one L would know after taking Constitutional Law. But there’s a bigger issue in how election cases are litigated, namely, no one knows at the outset of an election law litigation what standard a court is likely to apply, and that’s a real problem.
Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Fellow at the Brennan Center for Justice at NYU School of Law and the author of the book “Political Brands.”