Due process and election administration

This election explainer was written by experts from Election Law at Ohio State, a program of the Moritz College of Law. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

The due process clause of the 14th Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” But just what is “due process” can be hard to define. With respect to state election activities, a variety of federal appellate courts have struggled to determine whether a change or defect in the state’s election mechanics has so interfered with voters’ ability to exercise their right to vote – a fundamental liberty interest – that it violates the guarantee of the due process clause.

As a threshold matter, “garden-variety” election problems do not implicate the 14th Amendment and are not justiciable in federal court. Out of respect for federalism – specifically the states’ primary responsibility for conducting elections – federal courts simply do not play a role in reviewing minor election irregularities, even when they might impact the outcome. Instead, it is the province of the state courts to sort out the many isolated, unintentional and sometimes unavoidable errors that often produce contested elections.

However, major election irregularities can lead to due process violations. Although federal courts have yet to agree on a standard, many election-related due process violations share two common elements. First, an established election rule with a common understanding – such as who is eligible to vote or how to cast a valid ballot – is in place before the election. Second, the state changes or ignores this established rule without sufficient justification and in a manner not anticipated by voters. Such a change disrupts the “reliance interests” of those voters who cast ballots, or of those who otherwise would have cast ballots. When these two elements exist, courts may find that voters’ due process rights have been violated.

Griffin v. Burns, a 1978 decision from the U.S. Court of Appeals for the 1st Circuit, offers an early example of a court recognizing that altering voting rules after Election Day violates due process. In Griffin, voters reasonably believed that they could vote by absentee ballot in a party primary election because Rhode Island had mailed absentee ballots to them. After they cast these absentee ballots, the state changed course, taking the position that existing state law only authorized the use of absentee ballots in general elections, and that therefore the absentee ballots cast in the party primary were invalid. The 1st Circuit, affirming the federal district court, held that the retroactive invalidation of what were otherwise properly cast absentee ballots, on the basis of a new legal interpretation of state law unannounced before the election, was a violation of the voters’ federal due process rights.

A more recent example is the 1995 decision in Roe v. Alabama, another election dispute involving absentee ballots. On its face, the Alabama election code provided that absentee ballots, to be valid, needed to be accompanied by an affidavit (usually executed on the mailing envelope) bearing the signatures of either a notary public or two witnesses. However, ballots that lacked the required signatures had occasionally been counted, at least in one county. After the 1994 election, a state court ordered election officials to count all absentee ballots that had initially been rejected for lack of the two witnesses’ or a notary’s signatures. The plaintiffs challenged this order in federal court, and the U.S. Court of Appeals for the 11th Circuit asked the Alabama Supreme Court to clarify what Alabama law actually required in order for an absentee ballot to be valid. Although the Alabama Supreme Court replied that in fact no witness or notary signatures were required, the 11th Circuit then held that applying this “new” ruling retroactively to count the previously rejected ballots would be a due process violation. Because most voters had relied on the signature rule when deciding whether to vote by absentee ballot, a retroactive change would disrupt this reliance interest.

As the above examples demonstrate, many due process claims in the election context involve a challenge to some alteration in the voting process. But in rare cases, the due process clause may also be implicated when an election system is so broken or unfair that it impermissibly burdens the fundamental right to vote even without any improper alteration having occurred. These due process claims follow even less developed standards, and tend to be judged on whether, all factors considered, the voting process has such systemic defects that it is flawed in a foundational sense. (For a few representative examples of how the courts of appeals have dealt with such claims, see League of Women Voters v. Brunner, Bonas v. Town of North Smithfield and Bennett v. Yoshina.) Ultimately, however, substantive due process claims are hard to establish, as federal courts are reluctant to use broad and still ill-defined constitutional powers to question state election processes.

Thus, in some contexts, the due process clause may offer voters protections against state actions that threaten the fairness of an election, but the bar is high. Meanwhile, the Supreme Court has yet to decide in what circumstances either a change to state election processes, or a fundamental defect in those processes, amounts to a violation of the due process clause. In the absence of a definitive standard, other factors might occasionally be influential. For instance, some have suggested that federal courts should be more critical of changes that restrict voting access, but more tolerant of changes that expand voting access.

The 2020 election could easily present opportunities for the Supreme Court to clarify just what the due process clause requires of states with respect to election administration. For instance, we could see the Supreme Court review a recent district court decision in Democracy North Carolina v. North Carolina State Board of Elections, holding that the due process clause requires giving absentee voters an opportunity to cure defects on their absentee ballot transmission envelopes that would otherwise render their ballots invalid. Other due process claims are likely to arise this fall as well.