Document Type

Article

Publication Date

2023

Publication Title

Wake Forest Law Review

Publication Title (Abbreviation)

Wake Forest L. Rev.

Volume

58

First Page

179

Abstract

In Bush v. Gore, the Supreme Court established a Uniformity Principle for election administration, holding that the Equal Protection Clause prohibits arbitrary and disparate treatment of various voters participating in an election. Although the Court emphasized the limited scope of its holding, throughout the two decades that followed, lower courts have applied the Uniformity Principle in a variety of cases concerning the conduct of elections.

The principle was invoked in a wide range of cases throughout the 2020 election cycle, shedding further light on its contours. Some of these rulings may have been influenced by the unique circumstances of the 2020 presidential election. Several courts construed the principle narrowly to reject plaintiffs' attempts to invalidate emergency modifications to the electoral process that jurisdictions adopted in response to the COVID-19 pandemic or reject votes cast in accordance with election officials' instructions or court orders. Other jurisdictions, in contrast, adopted sweepingly broad interpretations of the principle — including applying it for the first time to the US Postal Service — to help alleviate the impact of COVID-19 on the election.

Although the 2020 election cycle further confirmed the Uniformity Principle's status as a legitimate, accepted tenet of constitutional law, important questions remain. Some courts have drawn on other language in Bush v. Gore to conclude that local election officials may adopt substantially different policies and procedures for statewide elections. Others point to reasoning tracing back to the Court's Civil Rights Era ruling in Katzenbach v. Morgan to hold that states may provide additional opportunities to vote or reduce barriers to voting for only some voters, without extending such opportunities to all similarly situated members of the electorate. And courts continue to reach conflicting rulings on whether the Uniformity Principle applies to election litigation — that is, whether plaintiffs in election law cases must seek relief on behalf of all voters within the relevant electorate, or instead may seek to enforce the rights of only certain voters. Courts and commentators should accept the Uniformity Principle as a reflection of fundamental fairness: the commonsense notion that voters participating in the same election should generally be subject to the same rules, procedures, and requirements; face generally equal opportunities and burdens in voting; and have roughly equivalent opportunities to both cast ballots and have those ballots be counted.

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