Introduction
Early on November 4, 2020, former President Donald Trump falsely claimed that he had won the 2020 presidential election.1 Of course, he had lost, and the election ended up not being particularly close by his own standards.2 Despite a prolonged vote counting process which fueled conspiratorial cries of a stolen election amongst many Republicans,3 the United States’ decentralized election system conducted a free, fair, and highly secure election.4 Yet, even under these democratically favorable conditions, the presidential election could have been much closer and its outcome actually uncertain, as in 2000.5 Specifically, the presidential election could have plausibly come down to hundreds of votes in two states where litigation to determine absentee ballot postmark and receipt deadlines remained in flux.6
Prior to the outbreak of the COVID-19 pandemic,7 federal elections in the United States were already unnecessarily complicated.8 In the run-up to the general election in November, dozens of states confronted the challenge of how to effectively run primaries while providing necessary additional safety protocols during a pandemic.9 After election officials struggled to ensure a smooth voting process in states such as Georgia and Wisconsin in the pandemic’s earlier days,10 many jurisdictions rushed to expand access to voting by mail as a safe alternative to potentially crowded polling places.11
This expansion consequently led to litigation in the vast majority of states.12 Although legal fights over absentee ballot deadlines are nothing new,13 COVID-19 gave rise to an explosion of colorable equal protection claims on the subject.14 As a result, these cases laid bare what has long been true: by virtue of where one lives as an American voter, one citizen may have more—or an easier—time voting than one’s neighbor in another state.15
Though states are entitled to set the rules of their own elections, Congress reigns supreme in the determination of federal election rules, deriving this authority from the Constitution’s Elections Clause.16 Nevertheless, recent experience suggests that eleventh-hour federal court rulings prior to Election Day have done more to shape state absentee ballot deadline rules for federal elections than congressional lawmaking.17 This Note argues that this reality is inherently problematic because not only do these court rulings often breed uncertainty for voters,18 but they also create functional circuit splits very shortly before federal elections.19 In other words, regardless of the legal reasoning that federal courts apply, many 2020 election voters in certain states enjoyed the fruits of ballot deadline extensions, while others did not.20 To prevent such nonsensical outcomes, Congress should draft legislation using its underutilized Elections Clause power to standardize absentee ballot request, postmark, and deadline dates for federal elections.21 Doing so would not only provide greater certainty to the electoral process than federal courts can provide, but also avoid a disputed election in a heated sociopolitical environment that could make the January 6, 2020, U.S. Capitol insurrection seem tame in hindsight.22
To support this argument, Sections I.A and I.B of this Note will provide a historical overview of voting by mail in the United States, while surveying the current state of vote-by-mail law and the motivations underlying modern absentee ballot deadline litigation, respectively. Then, Section I.C will discuss the relevant legal arguments and principles prevalent in such cases and will include a detailed recounting of how federal courts decided pre-election ballot deadline cases in North Carolina, Minnesota, Pennsylvania, and Wisconsin. Next, Part II analyzes why the uncertainty and circuit splits that Article III courts’ rulings produce offend basic principles of American law, as well as how these outcomes have deviated from the Founders’ original intent regarding the Elections Clause. After illustrating how Congress has recently underutilized its Elections Clause power, Part III then suggests certain particulars for federal standardization and argues in favor of a jurisdictional-stripping element in such a legislative proposal while addressing opposing arguments.
Finally, much of the 2020 absentee ballot litigation related to other technical aspects of voting such as drop boxes, signature verification, and ballot processing timelines.23 However, this Note focuses primarily on vote-by-mail ballot request, postmark, and arrival deadlines. Thus, any ancillary discussion of other technical aspects of the general vote-by-mail process will be used to contextualize the absentee ballot deadline litigation that this Note critiques.24
I. Background
A. Brief Historical Overview of Voting by Mail in the United States
i. The Military Context
Absentee voting in the United States began during one of our nation’s darkest historical moments: the election of 1864 during the Civil War.25 Notably, several Union and Confederate states, rather than the federal government, passed laws which enabled soldiers to vote absentee in that presidential election.26 Like American civilians today, this patchwork of laws meant soldiers fighting for the same cause did not necessarily obtain equal ballot access.27 For example, soldiers hailing from New York and Alabama could vote absentee from the battlefield, while compatriots in combat from the neighboring states of New Jersey and Mississippi, respectively, could not.28 This lack of standardization for military members persisted for years, until Congress formally acknowledged soldiers’ logistical challenge of voting far from home by passing a series of laws in the twentieth century culminating in the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA).29
Well prior to this late twentieth century federal standardization in the military context, litigation quickly ensued regarding the validity of state absentee ballot laws in the mid-nineteenth century.30 For example, some state courts struck down the earliest absentee ballot laws as violating their respective state constitutions, while other state courts of last resort upheld the practice as falling within the state legislature’s ability to set the time and place of elections.31 However, litigation concerning the practice has exploded since the late twentieth century as plaintiffs have sought to use the courts to accord themselves a potentially decisive political advantage.32
ii. Early Civilian and Modern Usage
The adoption of the secret ballot paved the way for states to expand absentee balloting for civilians, and such laws proliferated with the acknowledgement that many working people were not always close enough to home on Election Day to be able to vote.33 While new voting expansions in states like Vermont and North Dakota seem restrictive by today’s standards, they were groundbreaking in the early twentieth century.34 States thus quickly expanded absentee voting, yet before World War II, the patchwork of discrepancies between each state’s laws that are commonplace today had already emerged.35 By the end of the twentieth century—among other limitations—some states required witness signatures to vote absentee depending on a voter’s circumstance(s), while others did not; concurrently, each state continues to set its own request, postmark, and arrival deadlines.36
In 2000, Oregon became the first state to exclusively vote by mail following a successful 1998 citizens’ initiative advancing the practice.37 Over the course of the next twenty years, a handful of Western states followed suit.38 While cries of fraud have accompanied some of these expansions,39 these states have demonstrated that—even prior to COVID-19—all-mail elections can be conducted freely, fairly, and without any meaningful fraud.40 Perhaps just as importantly for the purposes of this Note, the administration of all-mail elections in these states prior to COVID-19 insulated them from the need to quickly change their pre-existing election systems and to engage in any absentee ballot deadline litigation resulting therefrom.41
iii. Quick Expansion Due to COVID-19
For the forty-five states that did not have all-mail election procedures in place prior to COVID-19’s arrival in the United States, the pandemic caused state officials to scramble to make voting safer than the traditional method of in-person voting on Election Day.42 Making voting by mail easier—either through postmark and/or deadline extensions or by other means—was an obvious choice for certain states as politically varied as Mississippi and New Jersey.43 While the fight over whether such changes will remain permanent is just beginning as of this writing,44 these COVID-conscious changes often did not assuage litigants from attempting to use the courts to achieve greater ballot access for voters.45 Thus, in a country with at least fifty-one separate sets of election laws covering a single federal election, the United States’ political structure was poorly positioned to resist an onslaught of COVID-related election litigation.46
B. The State of Vote-by-Mail Law and the Pre-COVID Incentives for Litigation
i. Current Law
At the state level, no two states’ absentee ballot laws are identical, and ballot postmark and deadline provisions can vary widely.47 For instance, in certain states, an absentee ballot will only count if a voter obtains either multiple witness signatures or a notary public’s autograph.48 To understand the origins of such burdensome requirements, Justice Kagan has counseled that election law analysis cannot be divorced from evaluating lawmakers’ underlying political incentives.49 That is to say, how loose or restrictive a state’s absentee ballot laws were pre-COVID is reflective of which procedures and policies state legislative majorities deemed beneficial to their political interests at the time of adoption.50 Thus, the patchwork of state absentee ballot laws appears to be federalism at work, which has become net harmful because it provides federal courts more opportunities to meddle in ruling on these laws.51 Stated differently, states have been prolific in utilizing their Elections Clause power, while Congress has not.52
Given this Note’s call for a national overhaul of absentee ballot deadline laws, it is unsurprising that federal law regarding the practice mostly regulates the military and other federal personnel rather than a majority of civilians.53 While federal law on absentee balloting is limited given states’ traditional authority over the subject, statutes such as UOCAVA have served as drivers of voter enfranchisement where state law had historically proved insufficient.54 In fact, UOCAVA’s generous week-after-Election Day ballot arrival deadline provision has been the basis of at least one petition in state court to extend an absentee ballot deadline.55
ii. Litigation Driven by Electoral Power Politics
The best way to understand the legal battles over postmark and arrival deadlines is to first evaluate the political forces behind them. These include the “Blue Shift” phenomenon, a term coined in a paper by Edward Foley and Charles Stewart.56 In recent twenty-first century federal elections, both Republican and Democratic operatives have adopted a general perception that absentee ballots that are postmarked and received closer to their respective deadlines disproportionally benefit Democratic candidates, and Foley and Stewart’s research gives statistical validity to this view.57 In fact, such a phenomenon proved pivotal to California Democrats in close Federal House races in 2018.58
Simply put, as a general matter, the looser a state’s postmark and arrival deadlines are, the more likely Democratic candidates are to benefit.59 If the close margins in the 2018 California House elections are any guide, then there are tremendous incentives for both parties to litigate the legal issues around ballot postmark and arrival deadlines, even if those incentives do not align with voters’ best interests.60 Thus, for Democrats, their litigation goals have been, inter alia, to extend postmark/reception criteria and deadlines when possible, while Republicans have recently sought to limit when and which mail ballots may be counted and how they may be received.61
So long as Congress does not act to make it more difficult for litigants to chip at the edges of each state’s absentee ballot deadline laws, this incentive structure is unlikely to change.62 As a result, there is an intractable problem of growing litigation around mail balloting deadlines, as one political party views a certain practice or existing legal structure as providing an inherent advantage or disadvantage in an election.63 This creates a two-part legal problem: (1) new circuit splits while federal elections are already underway,64 and (2) judicial activism on behalf of judges who may rule in accordance with their pre-existing political ideologies when deciding an election law dispute.65
C. The Run-Up to Election Day 2020: What Happened in Court?
i. Legal Arguments and Applicable Case Law
1. Equal Protection and Constitutional Balancing in the Context of Voting Rights
Although the U.S. Constitution does not guarantee the right to vote anywhere in its plain language,66 the U.S. Supreme Court has recognized voting as a “fundamental interest” under its Fourteenth Amendment equal protection jurisprudence, which usually triggers heightened scrutiny.67 Further, the Supreme Court has recognized that the act of voting is a form of expression and association that the First Amendment protects.68 Given this nexus between the First and Fourteenth Amendments, the Supreme Court has instructed lower federal courts to first determine whether a burden on voting rights is so high as to require strict scrutiny review, or so unimpactful as to fall back into the realm of rational basis review.69 If a district court deems neither standard to be appropriate, as is often the case, then that court must balance the plaintiff’s claimed injuries concerning these rights against the state’s interest in maintaining the voting-related provision or regulation at issue.70 Over time, federal courts applying this intermediate balancing test have referred to it as “Anderson–Burdick” balancing.71 Essentially, the test has enabled Justices who reject the rigidity of rational basis versus strict scrutiny review to employ a more malleable standard, though the Supreme Court has yet to produce a majority opinion relying on Anderson–Burdick balancing.72
Interestingly, some litigation in the 2020 election cycle has concerned this balancing approach, whereas other cases involved challenging ballot deadline extensions on other grounds.73 In any event, there is little doubt that the COVID-19 pandemic opened the door to an increased number of reasonable equal protection claims under this general framework, even though many were unsuccessful at varying levels of the federal court system.74
2. The Purcell Principle
Arguably the most influential Supreme Court case affecting absentee ballot deadline litigation is Purcell v. Gonzalez.75 In Purcell, the Supreme Court criticized the Ninth Circuit Court of Appeals for greenlighting a district court’s injunction that had temporarily blocked a new and restrictive Arizona voter identification law from taking effect.76 As a result, Purcell stands for the general notion that federal courts should not change election rules shortly before federal elections.77 While this idea initially may seem both logical and simple, it has often been relied on as a cudgel to bat down valid equal protection claims that should be analyzed primarily under Anderson–Burdick balancing instead.78 Thus, in some ways, Purcell is the off-ramp that saves federal judges from needing to justify a rejection of expanding the franchise—when presented with a valid argument for doing so—where the state interest asserted by defendants is often preventing voting fraud, which is empirically extremely rare.79
Even if one accepts the growing influence of Purcell on the election law docket in federal courts, the principle is hard to apply days or weeks before federal elections conclude.80 At the very least, federal courts have recently weaponized the principle such that cases relying on a Purcell analysis change the very election rules that the principle itself supposedly aims to keep from changing.81 Of course, countless legal rules are subject to dueling interpretations by judges, but if there was ever a principle in need of uniform application to reduce confusion among voters and not to disrupt election administration, it is this one.82 In other words, the spirit of Purcell should be inscribed into federal statutory law with clear language, or courts should do away with applying the principle all together.83
ii. Making Sense of a Contradictory Bag of Outcomes
In this subsection, the North Carolina,84 Minnesota,85 Pennsylvania,86 and Wisconsin87 ballot deadline cases deserve specific attention for a few reasons, despite other choices.88 First, the two major 2020 presidential campaigns and nonpartisan election handicappers viewed these states as extremely competitive.89 Additionally, each one involved some form of adjudication by either a federal circuit court or the U.S. Supreme Court less than ten days before Election Day.90 When analyzed both separately and comparatively, these cases demonstrate the practical unworkability inherent in these rulings, and present a strong microcosm of why congressional intervention to reduce federal court involvement in absentee ballot deadline law is so important following 2020.91 Further, throughout 2020, federal courts repeatedly handed down election rule-changing decisions that bred the very confusing uncertainty against which Purcell counsels.92
1. North Carolina
Of the four states surveyed, the North Carolina examples, Moore v. Circosta and Wise v. Circosta,93 are the only cases where a federal appellate court94 allowed an absentee ballot deadline extension to stand based on a lower federal court’s decision.95 The North Carolina litigation initially began with elderly citizen plaintiffs seeking, inter alia, an absentee ballot deadline extension that would enable such votes to be counted up to ten days after Election Day due in part to COVID-19.96 When the parties reached an agreement on a slightly shorter extension, the Speaker of North Carolina’s House of Representatives, Tim Moore, attacked the agreement as a plaintiff,97 but the Fourth Circuit ultimately let the first suit’s consent judgment stand.98 Notably, Moore and his co-litigants sought to upend a unanimous bipartisan consent decree, agreed to between the defendant state elections board and the original plaintiffs.99 Further, the trial court-approved consent decree highlighted that the North Carolina State Board of Elections had unilaterally moved to extend such deadlines in the past due to hurricanes.100
Understanding this extension is important because it demonstrates some of the tension between it and Democratic National Committee v. Wisconsin State Legislature in terms of the Supreme Court’s deference towards federal district courts and Purcell’s operability and bearing on them.101 Importantly, the district court judges in both cases initially allowed for extensions to each states’ absentee ballot deadlines, but the Wise decision in North Carolina was based on a consent decree, whereas the subsequently overturned DNC extension in Wisconsin was based on a judge’s decision alone.102
While the Supreme Court ultimately let the Fourth Circuit’s Wise decision stand without explanation,103 the sharp disagreements between the court of appeals’ Wise majority and dissent demonstrate both the difficulty and contradictions inherent in applying the Purcell principle.104 Commendably, the majority sets out a clear line of reasoning focused primarily on two issues: what triggers the “status quo” for Purcell purposes,105 and whether the Moore plaintiffs were likely to have success on the merits of their equal protection argument.106 Unlike their dissenting colleagues, the Fourth Circuit majority relied on the Supreme Court’s recent decision in Andino v. Middleton to establish that the “status quo” begins with a state’s action, not an interfering district court’s injunction.107
Alternatively, the dissent sought to extend Purcell to the actions of state courts on the theory that if the case only applied to federal court decisions, litigants would nonetheless run off to state courts for the same relief that would be denied to them in federal court.108 In essence, the dissenters argued that the Purcell principle is useless if it is only applied in federal courts, in part because it promotes forum shopping.109 While this may practically be true, the majority notes that the dissent found no legal basis—in case law or statute—for this assertion.110
Crucially, the dissent’s rigid argument does little to rid itself of its underlying practical irony. The dissent claims that the North Carolina State Board of Elections undertook illegal action via its consent decree with the first set of plaintiffs while “hundreds of thousands of North Carolinians have already voted in important elections.”111 However, at the same time, the dissent sought to change the rules of the election for a second time—the very action it was complaining about—once millions of North Carolinians had already voted in the name of ending supposed “chaos.”112 Varying interpretations of Purcell are nothing new,113 yet the abuse of the principle demonstrates the federal judiciary’s dangerous folly of interpreting election law on the eve of federal elections—either the majority or dissenting opinion can be easily read by the general public as judges choosing their preferred election rule outcome, only then to return to precedent and massaging it to justify their desired results.114 On top of this, the Supreme Court did not make public its decision to let the Fourth Circuit’s decision stand until less than a week before Election Day.115
Nonetheless, what make the Moore and Wise decisions somewhat unique is that the very state action being protected under the Purcell principle happened to be an expansion, rather than a restriction, of the franchise.116 While the Fourth Circuit’s decision theoretically should serve as a model for other federal courts—applying Purcell neutrally to preserve or even expand the franchise—it stands in contrast to other decisions which have weaponized poorly developed doctrine or ignored it all together to restrict ballot deadlines, and therefore voting option flexibility—a position for which the Wise dissent vociferously advocated.117
2. Minnesota
There are several factual similarities between Carson v. Simon and Wise, yet their diametrically opposite outcomes illustrate the need to federally standardize absentee ballot deadlines.118 Similar to North Carolina, the absentee ballot deadline extension (in Minnesota’s case, one week) resulted from a consent decree between an initial group of plaintiffs and Minnesota’s Secretary of State.119 Where the cases stand in stark contrast, however, is that the Eighth Circuit majority in Simon used much of the same reasoning—that the consent decree itself usurped legislative power—as the dissent in Wise.120 Yet the most eyebrow-raising part of the Simon opinion is that the majority in effect ignores Purcell and Andino as binding precedent by arguing that, under the U.S. Constitution, once a state legislature sets the status quo via lawmaking, any rule changes related to election administration will thenceforth be invalid.121 While this argument stands in contrast not only with the Wise ruling, it also flies in the face of Purcell itself and any judicial restraint embodied in the doctrine of constitutional avoidance.122 In other words, there was no need for the Eighth Circuit majority to decide a question that was constitutional in nature.123 Nonetheless, by doing so, the majority found a way to apply the doctrine that best suited its desired outcome, as the Fourth Circuit arguably did as well.124
Of course, circuit splits are bound to happen on all sorts of hot button, politically charged issues;125 yet, as the Supreme Court has counseled, election cases are unique in their time constraints and effect on the public’s ability to participate in the electoral process.126 There is therefore no justifiable legal reason why voters in North Carolina should have a consent decree validated to extend absentee ballot receipt deadlines, while voters in Minnesota should receive the opposite result less than a week before a contentious federal election, as voters in both states were choosing between at least four of the same candidates for president and vice president.127
Moreover, specific to Simon, the dissent notes important practical considerations and public interest concerns which should be at the bedrock of adjudication of election law decisions, including avoiding voter confusion and enabling as many citizens to vote as possible.128 Furthermore, the dissent correctly spells out concerns over confusion that the majority brushes off as “inevitable post-election challenges.”129 For example, while the majority argues that Minnesota’s Secretary of State’s alleged usurpation of the state legislature’s power was the original violation of Purcell, the dissent notes that for the one million seven-hundred thousand Minnesota voters, the consent decree’s absentee ballot deadline extension instructions were the only form of notice and directions that they had received from the state prior to the majority’s ruling which disturbed those instructions.130 Further complicating matters, given the decision’s timing—six days before voting ended—potential Republican Electoral College electors brought this suit attacking the consent decree.131 Because the Eighth Circuit panel reversed the District Court’s ruling that the Electors did not have standing to pursue their claims, Minnesotans did not know if the decision applied only to sidelining votes for the national presidential election, or if all ballots received after November 3 would be invalid.132 This bred even further “unnecessar[]y disrupti[on].”133 Finally, the ruling meant that state election officials had to segregate ballots arriving after November 3, leaving a sizeable portion of voters in doubt as to the potential validity of their votes.134
3. Pennsylvania
Pennsylvania Democratic Party v. Boockvar involved various state law claims to ease restrictions on the absentee balloting process under the state’s constitution, and the Supreme Court of Pennsylvania exercised its “Extraordinary Jurisdiction” to extend the state’s absentee ballot receipt deadline by three days for the presidential election.135 In appealing that decision to the U.S. Supreme Court, the Republican Party of Pennsylvania first sought a stay, which the highest Court denied by an evenly split four-to-four vote.136 In a last ditch effort to prevent the Supreme Court of Pennsylvania’s decision from taking effect, petitioners sought expedited consideration of their writ of certiorari on the constitutional question of whether the Supreme Court of Pennsylvania had usurped its power to interpret that state’s constitution given the meaning of the term “Legislature” in the Federal Constitution.137 As he reluctantly approved of the U.S. Supreme Court’s denial of petitioners’ motion to expedite, Justice Alito accused his colleagues of not acting quickly enough to issue a stay of the Supreme Court of Pennsylvania’s decision.138
The practical effect of both of these U.S. Supreme Court shadow docket decisions was to leave the absentee ballot arrival deadline extension in place, yet three U.S. Supreme Court Justices initially left the door open to throwing out ballots that arrived after Election Day had such votes become dispositive to the state’s presidential results.139 In the end, President Biden won the state by a margin greater than the number of absentee ballots that arrived during the three-day extension window,140 and on February 22, 2021, the U.S. Supreme Court ruled that the ultimate constitutional question was therefore moot.141
Though the extension was left in place and the “late” arriving ballots were not dispositive to the state’s result in the presidential election,142 Boockvar nonetheless illustrates the potential dangers of federal court involvement around absentee ballot deadline rules. Despite the Court’s obvious appellate jurisdiction to decide the meaning of the term “Legislature” in the Federal Constitution,143 the practical effects of the various rulings in the Pennsylvania case before the election were to leave voters in limbo around absentee ballot rules after voting had already begun, while civilian voters whose ballots arrived shortly after Election Day did not know if their votes would count as of December 2020.144 In essence, even though Purcell did not apply to this case because the litigation emanated from state court, the U.S. Supreme Court’s late role in it right before Election Day created the very uncertainty that the Court chides lower federal courts for causing in a different context.145 To wit, the very involvement of the U.S. Supreme Court, irrespective of its eventual rulings after the election, left election administrators in Pennsylvania without clarity of election rules both before and after Election Day.146 Under exact uniform national deadline rules, the U.S. Supreme Court would likely have not ruled on the absentee ballot portion of the case.147
4. Wisconsin
In several respects, DNC is the most procedurally—and possibly legally—simple case of the four analyzed in this Note.148 In short order, a federal district court judge extended Wisconsin’s absentee ballot deadline for November by employing Anderson–Burdick balancing, the Seventh Circuit issued a stay to that decision citing Purcell in part, and the Supreme Court denied national Democrats’ attempts to vacate the stay by ruling that the federal district judge in the Western District of Wisconsin had violated Purcell when he issued an absentee ballot extension deadline.149 However, the Supreme Court issued its decision only ten days before Election Day, giving the Justices a late opportunity to clarify their conflicting interpretations of Anderson–Burdick balancing and Purcell in four separate opinions.150
First, Justice Roberts wrote to clarify the discrepancy between his vote in the Boockvar and DNC cases.151 For both Justices Gorsuch and Kavanaugh, the prospect of vacating the stay presented an untenable slippery slope that would potentially invalidate the other twenty-nine state laws that required absentee ballots to arrive sometime on Election Day.152 On the other hand, relying on the difficulties posed by the pandemic and a drastically different interpretation of Purcell, Justice Kagan would have vacated the Seventh Circuit’s stay.153
The Court’s rebuke of the federal district judge in Wisconsin154 is curious given its affirmance of the Fourth Circuit’s Wise ruling, even though the supposed initial election rules changed right around the same time.155 Like the Pennsylvania case, this legal hair-splitting certainly falls within the Supreme Court’s domain, but the distinction of allowing a consent decree to stand versus overturning a federal district court ruling is meaningless to voters who are primarily concerned with how much time they have to return their absentee ballots.156 In effect, the Wisconsin decision created a functional circuit split by placing the Seventh Circuit’s decision in the Wisconsin case in contrast with the North Carolina case.157
5. Contextualizing the Surveyed Decisions
In all, these four cases represent only a fraction of the absentee ballot litigation of the 2020 cycle.158 Nonetheless, they helpfully demonstrate the need to extricate the federal courts from last-minute absentee ballot deadline rulings. Of the four cases analyzed, federal courts allowed two ballot extensions to stand for separate reasons, while the other two saw previously scheduled extensions reversed for equally different reasons, too.159 In Boockvar and DNC, the different outcomes can be partially attributed to Chief Justice Roberts providing a swing vote.160 Meanwhile, in Simon and Boockvar, certain judges on the Eighth Circuit Court of Appeals and the U.S. Supreme Court, respectively, sought to decide whether ballots arriving in between the “old” and “new” deadlines would count after the election, leaving thousands of voters in limbo.161 In all, this judicial quibbling at least deserves a full briefing and opinion.162 Regardless, the conflicting web of results ultimately deserves congressional attention.163 For the average voter in these states, the surveyed federal courts’ legal constructions are confusing at best and cause the very election administration issues against which Purcell cautions.164
II. Analysis: Zooming Out, What Is Wrong With the Current Situation Anyway?
A. Circuit Splits of Any Kind Are Antithetical to Basic Principles of American Law
Beyond the mish-mash application of Purcell, the reality that federal court rulings surveyed in this Note resulted in opposite outcomes for voters is representative of a bug in American law, as circuit splits generally have grown increasingly common in recent years.165 In their recent Article, Jonathan M. Cohen and Daniel S. Cohen lay out five basic legal problems that circuit splits pose: (1) they “create uncertain and disparate applications of federal legal rights,” (2) they burden or limit government actors under federal law based solely on location, (3) the Supreme Court does not resolve enough of them, so many remain indefinitely, (4) “they impair the bedrock American principle that federal law should be uniform,” and (5) because these splits raise fundamental fairness questions, “they may undermine the federal judiciary’s legitimacy.”166
At least four of these five factors are implicated in the absentee ballot litigation described herein.167 While the authors point out several relevant but somewhat mundane examples,168 the federal courts’ undermining of their own validity in the absentee ballot context is particularly troublesome given the growth of election legitimacy questions among significant portions of the public.169 Further complicating matters, absentee ballot deadline circuit splits are some of the few where thousands of people experience the consequences of incidental geographical division very shortly after a court’s contrary decision.170 In sum, absentee ballot deadline circuit splits not only exemplify, but also amplify, the very foundational wrongs that Cohen and Cohen describe.
B. Congress Should Be the Ultimate Decider of Federal Election Rules, Not Article III Courts
Like many other technical legal topics, the Constitution says nothing about the modern mechanics of election administration whatsoever.171 Consequently, as with other hot-button issues concerning election outcomes, there is reasonable disagreement as to what role, if any, courts should play in shaping an election’s playing field in general.172 For example, Professor Daniel P. Tokaji has argued specifically for Supreme Court restraint in election administration litigation cases, since they are fact intensive in nature, have “weighty democratic values at stake,” their procedural postures often “necessitate[] expedited consideration,” and there is a “heated political atmosphere” surrounding them.173 While Professor Tokaji has hit the nail on the head in terms of identifying the problem with Supreme Court intervention in election administration cases, his solution of letting lower federal courts play a greater role in resolving election litigation on the eve of elections is inadequate.174 Instead, one must look to history for the Founders’ original intent regarding election administration to ascertain the proper role for federal courts in election litigation.
At the constitutional convention, debate raged over how best to conduct elections for both houses of Congress, as well as the executive branch in what would become the Presidency.175 In concerning itself with the overall conduct of congressional elections, the resulting Elections Clause is situated at the intersection of federalism and separation of powers:176 “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”177
The plain meaning of the words “make or alter” grants Congress the authority both to preempt and supersede state law regulating federal elections, and to create original federal laws concerning these elections, too.178 In Samuel Johnson’s 1768 Dictionary of the English Language, among the top definitions of “make” is “to create,” “to form,” or “to produce.”179 “[A]lter” is defined as “to change,” and “to make otherwise than it is.”180 In other words, the Clause’s power is not limited to a check on state power; it provides Congress with the opportunity to proactively legislate. That this Clause gives Congress an enormous amount of power was never in doubt at the time of the nation’s founding; in fact, precisely because of this vast textual grant of power, the Elections Clause became one of many sticking points between Federalists and Anti-Federalists during the Ratification debates.181
Aware of Anti-Federalist opposition, Alexander Hamilton defended the Elections Clause in three of his fifty-one essays in the Federalist Papers.182 In The Federalist No. 59, Hamilton explained that at the constitutional convention, delegates aimed to create a federal elections system which provided for a degree of flexibility, arguing that there would be “extraordinary circumstances” where the “interposition” of the eventual Congress would become necessary.183 In so doing, Hamilton poked at a fundamental contention between Federalists and Anti-Federalists surrounding the Elections Clause: the former group was fearful of state legislatures exercising too much power over the new national government—one of the very causes of the constitutional convention in the first instance—while Anti-Federalists feared an all-powerful national government, including Congress.184 Thus, the terms “extraordinary circumstances” and “necessary” reflect Hamilton’s desire for Congress to have the final say over disputed issues related to elections while trying to temper opponents’ criticism of the Clause.185 Noticeably absent, however, is any discussion of either state or federal courts resolving such disputes.186
Though the Federalist Papers argued in favor of judicial review generally, the federal judiciary’s vast powers far outpace what the Papers’ authors had in mind.187 While the general efficacy of such expansive power falls beyond the scope of this Note, federal courts’ ability to change election rules—either by recognizing or reversing equal protection claims, invalidating or approving mutual consent decrees, or claiming to apply Purcell correctly—days before the conclusion of federal elections interlopes on the intent of the Founders to ensure that Congress has the ultimate say regarding federal election administration.188
i. Congress’s Elections Clause Power Is Currently Underutilized
Recent scholarship has noted that the Elections Clause provides for broad federal powers even if Congress infrequently exercises its power under the Clause.189 Nevertheless, the U.S. Supreme Court has long provided Congress with a roadmap for the legislative branch’s vast Elections Clause powers, including vote counting and supervision.190 Historically, exercising this power has included the standardization of certain election laws that today seem so basic that one may find it shocking to discover that they were once not existent at the federal level.191 Specifically, prior to the 1840s, the presidential election did not end on the same day, i.e., there was no uniform Election Day, and prior to 1876, members of the House of Representatives were not elected on the same day as the president.192 In these instances, although questionable state election administration—among other factors—triggered the push towards federal standardization, today Congress’s ability to legislate is nonetheless unreduced when the culprit of needlessly tinkering with election rules is the federal courts.193 Additionally, even though such earlier intervention was met with opposition, these specific actions provide a roadmap for future legislation because of their emphasis on bold federal uniformity.194
More recently, however, Congress’s most prominent exercises of its Elections Clause power have arguably been the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).195 These laws pass on to the several states webs of base requirements for voter registration and election administration, respectively, rather than a complete and total federal overhaul and administration for either process.196 As a result, NVRA and HAVA are cautionary tales of an underutilized Elections Clause, given that plenty of litigation persists concerning both laws, as in the absentee ballot deadline domain.197 Thus, to extricate federal courts from absentee ballot deadline decision making, Congress should go big or go home. To be sure, unprecedented federal action should not be confused with unconstitutional federal action.198
III. Proposal
A. A Framework for Standardization More Effective Than H.R. 1
Initially, priorities for a federal law standardizing absentee ballot deadlines may be difficult to define as there are several aspects of the process that Congress could emphasize. That said, Congress has not been totally asleep at the wheel in attempting to federally standardize many absentee ballot procedures.199 As recently as March 2021, the U.S. House passed a sweeping election reform bill, H.R. 1, that, among other provisions, eliminates many of the onerous requirements on who could vote absentee.200 The legislation is a useful point of comparison because the House has passed the bill in two consecutive Congresses.201 However, the law’s absentee ballot timeline provisions are a mishmash.202 For example, the law creates a single postmark deadline on Election Day, while states may impose their own “reasonable” request deadlines beforehand and may not make their ballot receipt deadlines less than ten days post-Election Day.203 Thus, while it is unclear whether H.R. 1 will become law in the foreseeable future without a strong majority of Democratic senators,204 its passage as written would not distort this Note’s central thesis because litigants could still attack disparate absentee ballot deadlines on equal protection grounds.205
Instead, a better piece of legislation would include a special focus on singular and specific request, postmark, and receiving deadlines, where congressional compromises remain possible. For instance, considering that most states already require absentee ballots to arrive at some point on Election Day, such a provision choosing an hour on Election Day should be a blueprint of bipartisan compromise.206 Furthermore, legislation zeroing in on a national deadline compromise could theoretically do away with state laws concerning postmark deadlines, at least one of which currently exists because there is no corresponding absentee ballot receipt deadline.207
While some of these suggestions could be read as invitations to restrict the franchise by restricting ballot deadlines in the minority of states that currently have them after Election Day, the net positives would outweigh the net negatives by streamlining the absentee ballot process to enable more votes to count regardless of whatever uniform deadline is chosen.208 Put simply, the specific details of such legislation are less important than a couple overarching goals: 1) eliminating as many deadline timeframe discrepancies for requesting and returning ballots as possible, which H.R. 1 fails to do; and 2) reducing the amount and complexity of deadline rules. One can easily envision a world in which voters nationally are all able to begin requesting ballots on one date, and every voter knows that their ballots must arrive by a uniform deadline on Election Day.209
B. Exploring a Jurisdictional-Stripping Element
Any future absentee ballot standardization law must be able to withstand legal attack. To do so, language in it must include a finding of Congress that the Act is meant to reduce the litigation discussed herein.210 Furthermore, Congress could go so far as to add a jurisdiction-stripping element to the law, in order to prevent the intervention of federal courts prior to federal elections.211 For example, this could include a provision that prevents any federal appellate adjudication regarding the proposed statute a certain amount of time before an election.212 While this may sound radical at first, jurisdiction stripping is nothing new.213 Relatedly, Congress has enacted several laws with jurisdictional-stripping elements over the last thirty years.214 While this framework would potentially push any lingering absentee ballot deadline litigation into state court,215 such litigation would be greatly reduced under the proposed law—if nothing else—because litigants would have less statutory language to target under a uniform standard.216 Over time, the thought of a court entertaining a case moving the national absentee ballot deadline—irrespective of valid constitutional claims—could become just as unthinkable as a court delaying the date for congressional elections and the appointment of presidential electors, both of which are affixed by statute, rather than the Constitution.217
C. In Defense of Federal Standardization
Though this Note critiques particular provisions of H.R. 1,218 the bill has sparked fierce Republican opposition to its entirety.219 Incidentally, this antagonism has brought forth many of the legal arguments that would apply to states’ potential opposition to this Note’s specific proposal.220 This includes a letter from twenty of twenty-six Republican state attorneys general to congressional leaders outlining legal arguments against any further federalization of elections.221 With respect to standardization in the absentee ballot context for federal elections, the attorneys general put forth two principal arguments: (1) that Congress has no power to choose the “Manner” of appointing presidential electors and, for congressional elections, (2) under the Supreme Court’s proportionality doctrine, Congress may not bestow more voting rights onto individuals than those that are already constitutionally protected.222
These arguments do not carry weight upon further examination. For presidential elections, there is no reason that states should not retain control over how to appoint their presidential electors.223 In fact, state legislatures and local election administrators are the ones who have chosen to appoint electors in accordance with popular vote winners and place presidential candidates with congressional candidates on the same ballot, respectively.224 So long as ballots are designed with congressional candidates on them, then Congress’s Elections Clause authority to regulate those ballots is undisturbed.225 Additionally, the proportionality doctrine is inapposite. The absentee ballot standardization opponents rely principally on City of Boerne v. Flores, in which the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA) as unconstitutional because it substantively altered constitutional protections and thus impinged on states’ usual police powers.226 Such reliance is deeply misplaced. The recommended election law changes in this Note are instead related to timing under the Elections Clause, while RFRA was a statute at the intersection of the Fourteenth and First Amendments.227 Here, however, standardizing absentee ballot deadlines merely falls within the Elections Clause’s plain text, and the attorneys general noticeably ignore any textual analysis of the latter half of the Elections Clause in their faulty argument.228 Unlike RFRA, this Note’s proposal only falls within a constitutional provision, rather than unlawfully altering one.
Conclusion
President Joe Biden won the 2020 election, but the run up to it revealed that our nation’s election system is badly in need of repair.229 While COVID-19 led to an expansion of mail-in voting, the pandemic also exposed many state laws to legal challenges on equal protection grounds, as well as intervening counterattacks.230 Specifically, absentee ballot deadline cases in Minnesota, North Carolina, Pennsylvania, and Wisconsin relied on legal standards that are prone to contradicting applications, while such rulings occurred too close to Election Day to avoid sowing public confusion and creating new functional circuit splits.231
Even though as a country we do not know when the next global catastrophe will again disturb our election system, now is the time for Congress to act under its Elections Clause power to standardize absentee ballot request, postmark, and arrival deadlines for federal elections. In so doing, such a law must include H.R. 1’s generous mail voting eligibility provisions while also stating individual calendar dates232 for request, postmark, and deadline rules, and potentially include some type of jurisdiction-stripping or delay element for federal courts. Such an act would be unprecedented in its scope, yet wholly constitutional, tapping into an underutilized “arsenal of [federal] power.”233 Certainly, it is incumbent on Congress to take such action before too many Americans lose faith in one of our most important institutions: partially decentralized elections that are free and fair.