Free and Fair: Judicial Intervention in Elections Beyond the Purcell Principle and Anderson-Burdick Balancing

November 3, 2021

The United States’s politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle.

This Note examines the equal protection challenges raised in courts throughout the country in 2020 to demonstrate the need for a voter equity-based approach to equal protection claims that goes beyond the Purcell principle’s weak threshold protections. This Note proposes the Carolene test, a novel threshold test for equal protection claims in voting rights cases that determines the appropriateness of judicial intervention based on: (1) whether an election process or procedure change relates to voters’ ability to participate in the political process, (2) whether the change prejudices discrete and insular minorities, and (3) whether the change would expand or diminish the franchise.

November 2021

No. 2