Professor Rick Hasen has some thoughts on RNC v. DNC at his blog. (I looked at the case from the perspective of the Purcell principle but not much else.) One passage struck me: “Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion.”

To one larger point that probably merits much more attention from me in some more formal way…. One problem, in my view, with this framing is that this case was brought under the flabby Anderson balancing test, an ad hoc totality-of-the-circumstances examination of burdens and interests in the generic language of the "freedom of association." (Now, assuredly others will point out the Court's approach in Shelby County, in Rucho, and so on as indicative of greater "voting rights" concerns, but my claim here is narrower and relates to this particular cause of action.)

What started in the 1960s as a way to prevent minor party candidates from ballot exclusion has become a last-best-hope kind of claim for litigants tossing a claim into federal court. It's the kind of test where Judge Mark Walker in Florida would find that it's a "severe" burden on voting rights if the Republican candidate is listed first on the ballot when a Republican is governor; and where Justice John Paul Stevens would find a photo identification law in Indiana to be a "limited" burden on voters in a record with "no evidence of any" in-person voter "fraud actually occurring in Indiana at any time in its history."

It's not "voting rights" generally; it's, I think, about a particularly weak constitutional test that serves as an emergency catch-all for any election law-related claim that one wants to bring into federal court. Maybe I'm just repeating a point that Professor Guy-Uriel Charles has already made, but litigants' hopes should not ride on a federal court coming to the rescue under this doctrine. The Court may be "nonchalant," but, I think, this doctrine in particular is unusually weak as a vehicle for protecting "voting rights" under the Constitution.

It’s also consistent with the views of Dean Vik Amar and Professor Jason Mazzone looking at this very case. “Applying a very open-ended balancing test that the Supreme Court has used in some but not all cases alleging violations of the federal constitutional right to vote” (emphasis added), they find that the district court’s reasoning was weak.

This brings me to a recent Sixth Circuit decision in Daunt v. Benson regarding Michigan’s recently-enacted ballot initiative establishing a new “independent redistricting commission.” Judge Chad Readler concurred in the judgment. He expressed concern with the majority’s evaluation under the Anderson test: “Following the Supreme Court's lead, we have thus utilized that framework in cases where it is alleged that a state election law burdens voting, from ballot-access laws, to early-voting regulations, to prohibitions on party-line voting.” He continued:

But Michigan's redistricting initiative does not regulate the mechanics of an election. Far from it, in fact. It simply sets the qualifications for Michigan residents who, if they satisfy certain eligibility criteria and are selected by the Secretary of State, will serve as commissioners who, working together as a commission, will draw electoral districts for the State, districts in which as-yet-unknown candidates will seek legislative office in a general election, following party primaries. In other words, the only sense that an election comes into play is the one that will ensue once these many tasks are completed. And neither the commissioners nor the commission, it bears noting, will have an impact or influence on how that election is administered. As the majority opinion thus seemingly acknowledges, it is quite a jurisprudential leap to view this case through Anderson-Burdick's election-focused lens.

Judge Readler emphasizes, “The temptation to overindulge in the Anderson-Burdick test has not gone unnoticed.” Another Sixth Circuit panel recently noted that there can be “legal gymnastics” applying Anderson to some cases. Judge Readler worries, “My concern is more than conceptual. For Anderson-Burdick is a dangerous tool. In sensitive policy-oriented cases, it affords far too much discretion to judges in resolving the dispute before them. Anderson-Burdick relies on a sliding scale to weigh the burden a law imposes against the corresponding state interests in imposing the law. . . . But the test otherwise does little to define the key concepts a court must balance, including when a burden becomes ‘severe.’” He continues, “Absent stricter rules and guidelines for courts to apply, Anderson-Burdick leaves much to a judge's subjective determination.”

Judge Readler’s opinion is worth reading in its entirety, because it relies on a number of other sources I omit here. But it’s emphasize some stirring in the lower courts of the weakness of Anderson. It’s a flabby test, but it’s the most common kind of claim one can raise in federal court on an election law challenge. It gives federal courts generous discretion in all election law cases, not just those implicating race (like the Voting Rights Act or the Fifteenth Amendment), and not just those concerning the enumerated powers of the federal government like, say, the Elections Clause. It allows wholesale review of all state election-related decisions.

So I don’t know that the federal courts are necessarily “nonchalant” about voting rights, at least when it comes to Anderson-style claims. Instead, it’s that federal courts are, I think, not the best (and sometimes, not even the right) place to raise all election law-related concerns. And that’s a weakness of the existing legal regime. Perhaps we want more robust federal statutes within Congress’s purview, or more express guidance from state legislatures. But the federal courts are simply not going to provide the robust judicial review that litigants may seek because the legal framework isn’t designed for it.