Note

Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine

The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell.

The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion—as the case law and scholarship have suggested—but instead is better explained by federalism. Under this conception, the Court’s historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell’s snare.

Introduction

On January 24, 2022, two decisions1 1.Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam),aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487.Show More of the U.S. District Court for the Northern District of Alabama held that the districting plan adopted by the State of Alabama for its 2022 congressional elections was “substantially likely” to violate Section 2 of the Voting Rights Act (“VRA”).2 2.Singleton, 582 F. Supp. 3d at 936.Show More The court preliminarily enjoined Alabama from using that map in the forthcoming election and required the state legislature to enact a new plan with a second Black-majority congressional district.3 3.Id.Show More

Two weeks later, and some nine months before the general election, however, the U.S. Supreme Court stayed the district court’s decision, authorizing Alabama to nevertheless move forward with its tarnished map in November.4 4.Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).Show More The only rationale provided for this stay came not from the Court—which issued an unexplained, unsigned order on its shadow docket5 5.Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”).Show More—but a concurrence from Justice Kavanaugh.6 6.Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More His basis for lifting the injunction rested on the Purcell Principle, a “bedrock tenet of election law” instructing that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” and “federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.”7 7.Id. at 879–80.Show More

The effect of the Court’s order was to allow the map to apply to the 2022 elections, but with future elections governed by its decision on the merits.8 8.Id. at 882.Show More The map, enacted by a Republican-controlled legislature and signed by a Republican governor,9 9.Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR].Show More produced a safe Republican seat as opposed to one that likely would have elected a Democrat.10 10.Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG].Show More So on election day—as expected without the additional Black-majority district—six Republicans and one Democrat were elected to the U.S. House of Representatives from Alabama.11 11.State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD].Show More

But months after the election had been held, the Supreme Court reversed course. A majority affirmed the district court’s decisions and agreed that Alabama’s plan was indeed unlawful.12 12.See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023).Show More As a result, the invocation of Purcell provided the State with a one-time get-out-of-jail-free card; the Court allowed Alabama to use its map in the 2022 midterms before an adverse decision later on the merits. Scholars have criticized the Court’s use of the Purcell Principle—both on theoretical grounds and its application in this case specifically.13 13.See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).Show More Indeed, some have even argued that the Republican Party owes its control of the House of Representatives in the 118th Congress to the Supreme Court’s intervention in redistricting actions like this one leading up to the 2022 elections.14 14.Murray & Vladeck, supra note 10.Show More

That the Purcell Principle is controversial is perhaps unsurprising. When the Principle operates, it creates a “presumptive categorical bar”15 15.Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More to federal judicial relief in the upcoming election cycle. The provisions of both federal constitutional and statutory law that would normally protect voting rights, govern redistricting, and otherwise supervise how a state can conduct its elections are essentially put on hold until after the election at hand. Given the severity and categorical nature of its effect, great weight is thus placed on what triggers application of the Purcell Principle.

I argue that what should trigger Purcell is disruption to a state’s administration of its elections. This conception is different from that of other scholars and jurists, who claim that the Principle is guided by concerns of voter confusion. But disruption alone does not tell the full story either. Understanding Purcell also requires bringing to light the constitutional theory that is underlying the doctrine: federalism16 16.Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019).Show More (as applied here, the idea that decisions about election procedures are primarily the province of the states).

Even though Purcell is supposedly about confusion—indeed, everyone says as much—this Note will demonstrate that rationale does not adequately explain the case law. In practice, the Supreme Court’s applications of the Principle are better rationalized by federalism and disruption; both are necessary to trigger Purcell. Viewing Purcell as a part of the Court’s commitment to federalism is important not only to explain when and why the Principle should be invoked, but it also harmonizes this doctrine with the Roberts Court’s jurisprudence in other areas of election law and beyond. Further, because application of the Principle will effectively neuter election law in the federal courts for a given election cycle, my proposed disruption framework is useful to future litigants making strategic decisions about where, when, and how to bring their claims.

On their face, the Supreme Court’s applications of Purcell may seem partisan. Professor Steve Vladeck, for example, has characterized the Purcell Principle as “[h]ow the [c]urrent Court [u]ses the Shadow Docket to [h]elp Republicans.”17 17.Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8].Show More And Professor Wilfred Codrington has described it as “an empty vessel for unprincipled decisionmaking and inconsistent rulings.”18 18.Codrington, supra note 13, at 941.Show More But this Note suggests there may be an unarticulated rationale that better accounts for the Court’s decisions in this area. In doing so, I do not purport that this is the “true” motivation guiding Purcell or what individual Justices are necessarily thinking. Rather, this Note offers federalism as an alternate, novel ground in a framework that seeks to make the Court’s applications of the Principle more coherent. If you reconsider Purcell as a federalism principle with me and read these cases through the lens of disruption, you just might be disabused of your cynicism.

This Note proceeds in three Parts. Part I introduces the origins of the Purcell Principle and its professed rationales: preventing voter confusion, providing clear guidance to the states, and deferring to the district court. It then surveys the development of the doctrine by reviewing each case in which the Supreme Court has applied the Purcell Principle or otherwise discussed it. Part II then analyzes whether the three rationales announced in Purcell are supported by the subsequent case law. (This Note contends they aren’t.) Having chipped away at those rationales, Part III argues that the Principle is better understood as being justified by the Court’s concerns with federalism. Federalism requires insulating to some degree the ability of the state to dictate the rules that govern its elections. If Purcell is defined by the power of federal courts vis-à-vis the states, the Court’s historic applications of the Principle and the Principle’s limits make more sense. Reconceptualizing the doctrine in this way, I propose a new framework to explain what should trigger Purcell. In deciding whether the Principle ought to be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. If an order changing the election rules or procedures would be disruptive, the Principle is invoked and operates as a near-total bar on judicial relief. But where intervention wouldn’t be disruptive, Purcell does not govern and a federal court’s decision to enjoin that state procedure is permissible. I conclude by proposing four conditions necessary for finding disruption, which courts can look to in determining whether the Principle should be applied in a given case.

  1.  Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam), aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487. ↑
  2.  Singleton, 582 F. Supp. 3d at 936. ↑
  3.  Id. ↑
  4.  Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.). ↑
  5.  Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”). ↑
  6.  Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  7.  Id. at 879–80. ↑
  8.  Id. at 882. ↑
  9.  Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR]. ↑
  10.  Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG]. ↑
  11.  State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD]. ↑
  12.  See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023). ↑
  13.  See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.

    359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021). ↑

  14.  Murray & Vladeck, supra note 10. ↑
  15.  Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  16.  Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019). ↑
  17.  Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8]. ↑

  18.  Codrington, supra note 13, at 941. ↑

A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law

In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical record. But few have taken the time to catalogue what historical sources and evidence the Supreme Court has found persuasive in its originalist cases. This Note does so. It takes the Court’s originalist methodology as a given and recognizes that historical analysis has become a key part of the Court’s Fourth Amendment jurisprudence. So, this Note analyzes various originalist opinions of the Court to compile a set of tools that litigants should be using when arguing Fourth Amendment issues.

This Note then undertakes to apply these tools in an area where the Court has not. In Illinois v. Rodriguez, the Court established its doctrine of apparent-authority consent. But the case was decided under a non-originalist framework. Using the Court’s preferred historical sources, this Note argues that Rodriguez’s approach to apparent-authority consent was unknown to the common law of trespass, searches, and seizures. And if apparent authority would not have excused a trespass at common law, it should not excuse a government search now. Thus, doctrine and methodology conflict regarding apparent-authority consent. In response, this Note advances a few possible ways to harmonize that inconsistency.

Introduction

In its recent Fourth Amendment cases, the Supreme Court has increasingly turned toward a theory of Fourth Amendment originalism to determine the meaning of the constitutional protection against unreasonable searches and seizures.1 1.David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000).Show More Championed by Justice Antonin Scalia,2 2.Id.Show More Fourth Amendment originalism is based upon one fundamental principle: “The Amendment ‘must provide at a minimum the degree of protection it afforded when it was adopted.’”3 3.Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).Show More

To figure out what that minimum degree of protection is, the Court has frequently undertaken historical surveys of the Founding-era common law of trespass, searches, and seizures.4 4.See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001).Show More Of course, the Court has recognized that common law rules are not always clear.5 5.Lange, 141 S. Ct. at 2022.Show More However, in the cases where the Court has found that the common law definitively declared that a certain type of search or seizure was or was not reasonable, that determination has been all but dispositive.6 6.See Atwater, 532 U.S. at 345 n.14.Show More In those cases, litigants can win game, set, and match by convincing the Court of their understanding of the historical legal record.

While Fourth Amendment originalism had a distinguished pedigree in the Court’s early search and seizure jurisprudence, it was largely discounted during the Warren and Burger Courts.7 7.Sklansky, supra note 1, at 1740–41.Show More As such, many cases decided during the mid- to late-twentieth century were litigated on a jurisprudential rubric that differs substantially from much of the Court’s current approach to deciding Fourth Amendment questions.

This leads to a few natural questions. What tools should litigants use to argue Fourth Amendment search and seizure cases under the now-ascendant originalist framework? And how do many of the Court’s older precedents stack up in light of this revived history-based approach? Does the Founding-era common law support those decisions? Further, how should people react when it seems that current cases do not ensure that the Fourth Amendment provides “the degree of protection it afforded when it was adopted”?8 8.Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411).Show More

This Note undertakes to answer these questions. While much recent originalist scholarship is quick to provide historical evidence it argues the Court should find persuasive, this Note inverts the analysis, first cataloguing the various types of sources the Court has regularly used to determine the content of the common law and then presenting them to litigants as primary tools to be used in making history-based legal arguments. Then, as a case study, this Note takes those tools and applies them to Illinois v. Rodriguez,9 9.497 U.S. 177 (1990).Show More a case decided just before the Court began to shift its focus toward a history-based approach. In Rodriguez, which established the Court’s current doctrine regarding apparent-authority-consent searches, the Court held that police may constitutionally search a person’s home pursuant to consent obtained from someone who the officers reasonably, but mistakenly, believed had the requisite authority to consent.10 10.Id. at 188–89.Show More However, using a mixture of well-known and rarely or never-before cited historical evidence, including early American and British case law, this Note argues that Rodriguez’s holding does not fit comfortably within the Founding-era common law of searches and seizures. But it proposes a few ways to reach a sort of harmony.

Thus, this Note proceeds in five Parts. Part I introduces the doctrine of consent and apparent authority. Part II examines how the Court has increasingly looked to history and the common law to determine whether a search is reasonable or not under the Fourth Amendment. Part III catalogues the common tools and methods that the Court has used to determine what the content of the Founding-era common law of searches and seizures actually was. Part IV uses those tools to argue that apparent authority would not have excused an officer’s trespass onto someone’s land, making that trespass an unreasonable search at common law. Finally, Part V discusses the possible implications that this research may have for apparent-authority-consent-search doctrine.

  1.  David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000). ↑
  2.  Id. ↑
  3.  Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)). ↑
  4.  See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001). ↑
  5.  Lange, 141 S. Ct. at 2022. ↑
  6.  See Atwater, 532 U.S. at 345 n.14. ↑
  7.  Sklansky, supra note 1, at 1740–41. ↑
  8.  Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411). ↑
  9.  497 U.S. 177 (1990). ↑

  10.  Id. at 188–89. ↑

The Impermissibility of Sex as a Voter Qualification

Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender nonconforming voters. This Note presents a fifty-state survey of voter ID laws and shows that there is no legal basis for using a mismatch or perceived mismatch between a voter’s documented sex and their gender presentation to deny the franchise. No language in any state statute indicates that an individual’s sex is required as evidence of their identity. Furthermore, this Note argues that changing the statutes to require sex as an identity qualifier would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. First, such a requirement would amount to sex discrimination as that term is best understood in light of Bostock v. Clayton County. Second, under the Supreme Court’s voting rights jurisprudence, such a requirement would constitute an invidious restriction on the right to vote, triggering strict scrutiny under Harper v. Virginia Board of Elections. Even if it did not amount to such a restriction, the requirement of sex as a voter qualification would still be struck down under the sliding scale scrutiny of the Anderson-Burdick doctrine. Thus, hinging the right to vote on the verification of one’s sex is almost certainly unconstitutional.

“What is most important is to cease legislating for all lives what is livable only for some, and similarly, to refrain from proscribing for all lives what is unlivable for some.”1 1.Judith Butler, Undoing Gender 8 (2004).Show More

Introduction

Jane Doe, like many other Mecklenburg County, North Carolina residents, set out to cast her ballot in the county’s November 2019 general election.2 2.Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7].Show More A run-of-the-mill local race in a state without a voter ID requirement should have been nothing special; a simple trip to the polls. However, when she attempted to cast her ballot, the chief precinct judge stopped her and demanded to see her ID.3 3.Id.Show More His reasoning? Her face did not match the name she provided.4 4.Id.Show More Since her transition fourteen years ago, Doe had been living publicly as a woman—but rather than treating her like any other woman, the precinct judge insisted she present proof beyond that required by law to convince him she was who she said she was.5 5.Id.Show More Though Doe’s license had a photo consistent with her female identity, the name on her ID—her deadname,6 6.Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”).Show More which she was in the process of legally changing7 7.Henderson, supra note 2.Show More—was stereotypically male. The tense exchange between Doe and the precinct judge drew a crowd.8 8.Id.Show More Almost an hour after she arrived at the polls, and after handing over her license to be scrutinized, Doe cast her ballot and returned to her car in tears, rushing past the bystanders who had observed her humiliation.9 9.Id.Show More

Doe is not alone in facing discrimination at the polls because she is transgender. During Vermont’s 2018 gubernatorial race,10 10.This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S].Show More a poll worker refused to provide a ballot to a transgender woman because they thought her name was fake, not believing she was really female.11 11.Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU].Show More Ten years ago, when first-time voter Oliver headed to the polls in Maryland, the poll worker balked, telling Oliver it couldn’t be his ID because it displayed an “F” gender marker.12 12.Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says, NBC News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864].Show More Oliver is trans masculine and, though he had legally changed his name, he had not yet updated the gender marker on his state-issued ID.13 13.Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1.Show More As Oliver described it, most people perceived him as male at that time due to his physical transition. Despite the “misalignment” between his license and his gender presentation, he expected he would be able to vote and came prepared to handle any resistance at the polls.14 14.Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id.Show More Though ultimately permitted to cast his ballot, Oliver was ordered to “stand aside” for over an hour while the poll workers deliberated on whether or not they would allow him to vote.15 15.Moreau, supra note 12.Show More All three of these humiliating experiences lacked any legal grounding. In each instance, election officials exercised their discretion to verify voter identity in an unauthorized way.

Decades ago, the United States Supreme Court established that the Constitution protects the “right of all qualified citizens to vote.”16 16.Reynolds v. Sims, 377 U.S. 533, 554 (1964).Show More This right is so central that its abridgment or denial renders all other rights, even the most basic, “illusory.”17 17.Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)).Show More And while the right to vote is arguably under attack in several ways,18 18.See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril, ACLU (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ].Show More things have reached a tipping point for transgender and gender nonconforming voters. This Note illustrates that there is currently no basis in state law to turn away a voter for a perceived mismatch between the sex listed on their ID and their gender presentation. And in the event a state attempted to enact such a law, this Note argues that it would run afoul of the Equal Protection Clause.

Part I contextualizes the difficulty transgender and gender nonconforming people face in the political process by cataloging voter ID laws across the United States and detailing the hurdles in place that make it challenging for individuals to acquire an accurate ID. Part II presents a novel analysis of these voter ID laws to show what evidence is required to verify one’s identity at the polls. This survey reveals the stark absence of any statutory language indicating that an individual’s sex19 19.I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex,102 N.C. L. Rev. 335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. 831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)).Show More is required as necessary evidence of their identity. Nonetheless, at least some election officials are using sex as a criterion when verifying a voter’s identity. This has two consequences for transgender and gender nonconforming voters: (1) an election official may engage in sex stereotyping when evaluating a transgender voter’s ID, denying them a ballot as a result, and (2) any perceived mismatch between the voter’s gender presentation and the gender marker listed on their ID can be used as a reason to deny them the right to vote. No matter the motivation, such an exercise of discretion is impermissible, having no basis in state law.

The statutes surveyed in Part II could of course be changed. Assuming states started to require sex as a qualifier of voter identity, Part III argues such a regime would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. As Section III.A addresses, such a requirement can be classified as sex discrimination following the Supreme Court’s decision in Bostock v. Clayton County.20 20.140 S. Ct. 1731 (2020).Show More Because Bostock “fundamentally redefin[ed] what it means to discriminate on the basis of sex under the Equal Protection Clause,”21 21.Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev. 407, 438 (2022).Show More its logic can be extended through the Nineteenth Amendment to protect transgender and gender nonconforming voters. Though this framework is persuasive, this Note asserts that it is not proactive in addressing the threat posed at the polls.

Section III.B posits an alternative and novel equal protection argument. At the core of the Supreme Court’s voting rights jurisprudence is the maxim that all voters must be accorded an equal vote.22 22.See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)).Show More This has been reinforced several times over, most notably in Harper v. Virginia Board of Elections23 23.383 U.S. 663, 665 (1966).Show More and Bush v. Gore.24 24.531 U.S. 98, 98 (2000).Show More Building on these cases, this Note advances two arguments: (1) requiring sex as an identity qualifier is an “invidious restriction” on the right to vote that triggers strict scrutiny under Harper and must be held unconstitutional, and (2) even if sex as a qualifier does not rise to the level of “invidious” discrimination, such a requirement will still fail when subjected to the sliding scale scrutiny of Anderson-Burdick.25 25.In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024).Show More To the extent sex is conceived of as a “voter qualification,” hinging the right to vote on its verification is almost certainly unconstitutional.

This Note concludes by imagining a way forward. There are simple and easily deployed measures states can take both to ensure transgender and gender nonconforming constituents have unhindered access to the polls and to promote election integrity. California is an exemplar here. Though not a voter ID state, California has promulgated guidance for its election officials that directly addresses how to handle potential questions or issues regarding a voter’s gender identity. This guidance helps rein in the discretion of poll workers and functions as a template that other states can implement. By adopting similar guidance, states would manage transgender and gender nonconforming voters more uniformly and fairly going forward. The successful voter identification system California has in place helps demonstrate why requiring sex as an identity qualifier makes little sense; rather than introducing a qualifier that may be difficult to verify or leave a state in the crosshairs of the Fourteenth Amendment, a state need only provide guidance similar to California’s to guide its poll workers in serving a diverse electorate.

  1.  Judith Butler, Undoing Gender 8 (2004). ↑
  2.  Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7]. ↑
  3.  Id. ↑
  4.  Id. ↑
  5.  Id. ↑
  6.  Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”). ↑
  7.  Henderson, supra note 2. ↑
  8.  Id. ↑
  9.  Id. ↑
  10.  This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S]. ↑
  11.  Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU]. ↑
  12.  Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says,
    NBC

    News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864]. ↑

  13.  Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1. ↑
  14.  Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id. ↑
  15.  Moreau, supra note 12. ↑
  16.  Reynolds v. Sims, 377 U.S. 533, 554 (1964). ↑
  17.  Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)). ↑
  18.  See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril,
    ACLU

    (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ]. ↑

  19.  I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex, 102 N.C. L. Rev
    .

    335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev

    .

    831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)). ↑

  20.  140 S. Ct. 1731 (2020). ↑
  21.  Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev
    .

    407, 438 (2022). ↑

  22.  See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)). ↑
  23.  383 U.S. 663, 665 (1966). ↑
  24.  531 U.S. 98, 98 (2000). ↑

  25.  In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024). ↑

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