The following is a guest post from Josh Douglas:
Like Rick, when I was in DC last week I visited the Library of Congress to review the newly released papers on Judge John Paul Stevens. (Kudos to the excellent staff at the Library of Congress Manuscripts Division for being so helpful!) Because the case will be featured in my new book due out in 2024 (tentatively titled The voters against the court), he was more interested in reviewing the Burdick v. Takushi, a 1992 case that is the second half of the influential “Anderson-Burdick” balancing test that the Supreme Court uses for “non-serious” violations of law. vote. (He had already consulted the records of anderson last summer; recently published documents cover cases from 1984 to 2004).
burdock it was about Hawaii’s ban on write-in voting. The Court upheld the Hawaiian rule by a vote of 6 to 3. Justice Stevens joined Justice Kennedy’s dissent in the case. That fact itself is interesting because Justice Stevens wrote the Anderson vs. Celebreze majority opinion in 1983. As explained by the dissent in burdock, “a State that prohibits write-in voting in some or all elections must justify the burden on individual voters by presenting the precise interests served by the prohibition. A written prohibition should not be presumed valid in the absence of any justification offered by the State. The standard from which the Court is derived Anderson vs. Celebreze means at least this.
The most interesting piece of information I found in Judge Stevens’s files on the burdock The case was the inclusion of an odd paragraph in a draft of Justice Kennedy’s dissent. This is the text of the paragraph in question:
We are then obliged to apply a weighing test. A weighing test may be adopted, whatever its other shortcomings, when there is too little precedent for devising a more generally and safely applicable standard. That seems to be the circumstance here, both before and after our decision in Anderson vs. Celebreze, there are few decisions of this Court that explain the origin or scope of the right to vote. Given the status of case law, we are required to apply the test given in our precedents, the test established by the majority, with scrupulous consideration of the precise facts before us, including all the features of the particular electoral system under review. If we do so here, I submit that the conclusion must be that the write-in prohibition deprives some voters of any substantive voice in the selection of candidates for the full range of offices at issue in a particular election.
As Justice Stevens’ law clerk noted in a memo to Justice Stevens, this paragraph questions both the origins and the strength of the constitutional protection of the right to vote. As the clerk wrote, the paragraph implies that “(1) the Court applies a balancing test when it doesn’t know what else to do and (2) we are not sure where the ‘right to vote’ comes from, but it is in our precedent, for so we must do everything we can to enforce it.”
Justice Stevens then wrote to Justice Kennedy asking him to remove the paragraph, and Justice Kennedy responded that his own law clerks had also questioned that paragraph. “Out,” Justice Kennedy agreed.
The final dissent recites the anderson balancing test and then includes only the last sentence of the paragraph in question: “I suppose the conclusion must be that the write-in prohibition deprives some voters of any substantial voice in the selection of candidates for the full range of offices in question in a particular choice.”
This draft paragraph—especially since he was a dissent—is not particularly significant, but it does suggest that Justice Kennedy may not have been sure how to describe the Constitution’s protection of the right to vote. Using the Equal Protection Clause and the anderson–burdock The balancing test has always been an ingenious adjustment to what should be the most important fundamental right under the United States Constitution. As my book will explain, the Court has unprotected the right to vote and given way too much to state politicians on election rules, not just recently but over the last five decades. Sentiment in Justice Kennedy’s dissent bill in burdock personifies this vision.
Burdick is an interesting case for many reasons. I interviewed Alan Burdick and will include several anecdotes from our conversation in the book. This aspect of Judge Stevens’s papers will not be included in the book, I think he is a little too into baseball, but I hope ELB readers find it as interesting how i did it.
