Voting is a right granted to all citizens in the United States, encouraging them to participate in the democratic process and make their voices heard. Absentee voting is one method that allows eligible voters to cast a ballot remotely. This mechanism of voting let’s citizens vote despite circumstances like illness, schooling, or military service. While expanding voting methods is important and crucial, absentee voting has faced criticism, raising concerns of election security and fraud. States have passed laws to address these concerns. However, these measures potentially restrict access for marginalized groups of voters. To resolve tensions between a state’s right to regulate elections and a citizen’s fundamental right to vote, courts have engaged in judicial review over absentee voting laws. While different states have varying interests in overseeing elections, judicial review of absentee voting laws ensures the legitimacy of the electoral process by creating a balance of state interests against a fundamental right.

Absentee voting began during the Civil War to ensure that soldiers were not disenfranchised by their military service.

1Although these early laws are not as contentious as today, there was still opposition between parties then.2 Union states, in particular, struggled to pass absentee voting laws due to constitutional conflicts, leading to early examples of judicial review.3 After the Civil War, many of these laws disappeared until 1911 when absentee voting expanded to civilians.4 However, by 1924, most states passed legislation imposing limited use of absentee ballots.5

Inspired by past legislation and history, the current framework of absentee voting varies across states. Some states require voters to provide a valid excuse for not voting in person, while other states allow voters to give no excuse.6 Further, some states have imposed time restrictions, illustrating a more limited perspective of this voting process.7 Ultimately, modern lawmakers continue to reconsider the access to absentee ballots because of current political and social trends, such as a global pandemic and heightened political division.

The COVID-19 pandemic generated an increase in mail-in and absentee voting during the 2020 general election. About 65 million votes were cast this way, nearly double the 33.5 million votes in the 2016 election.8 The influx in absentee voting led to widespread skepticism, fueling intense debates over how citizens vote. On one hand, voting is considered a fundamental right by many. Constitutional amendments and federal laws ensure that no voter is denied the right to vote based on race, gender, or age.9 Absentee voting provides an extra safeguard to this fundamental right. However, on the other hand, some legislatures argue that stricter

voting laws will reenforce confidence in the democratic process.10 Further, state laws would enhance election security and address fraud, which were prevalent issues during the 2020 election.11 These differences in interests show a need for judicial review to determine if absentee voting is a valid method in place of in-person voting.

Through Marbury v. Madison, the Supreme Court established judicial review to examine the constitutionality of laws.12 Recently, courts have reviewed voting laws to assess whether these laws infringe on voters’ rights or impose a burden. Initially, the Supreme Court reviewed these laws using strict scrutiny but switched to the Anderson-Burdick Test, a more flexible balancing approach.13 Under this test, courts weigh government interests against the burden on the voter, applying leniency to laws with low voter impact.14 As political divisions rise, and more states propose new laws, judicial review becomes increasingly necessary. With the expansion of voting methods, it is vital for courts to check legislative powers and ensure all parties’ interests are fairly recognized.

The federal case Democratic Nat’l Comm. v. Bostelmann demonstrates judicial review concerning the 2020 election.15 The Democratic National Committee challenged state absentee ballot laws, specifically calling for deadline extensions due to the COVID-19 pandemic.16 The district judge granted the extension, determining that voters would have difficulty casting their votes because of the pandemic.17 The state denied this assertion, claiming that voters had months to prepare for this election, and that extending deadlines near the election was impractical.18 The Seventh Circuit agreed, acknowledging the Supreme Court’s determination that, regardless of a pandemic, last minute voters may face consequences.19 Ultimately, the court concluded that the burden on voters was not greater than the interest of the state.20 If proactive, a Wisconsin voter could still vote, but changing deadlines close to an election risked procedural issues and undermined election integrity.

Absentee voting has become a crucial method, separate from in-person voting, to ensure voters’ fundamental rights in today’s society. However, with this expansion, absentee voting has also faced heavy criticism, causing citizens to question election integrity. As a result, states continuously impose new laws to regulate elections, hoping to offer security to voters. But these laws can have adverse effects on marginalized groups who might not be able to vote in person. Due to an increase in voting laws and the raising concerns in the United States, judicial review has become a crucial process to balance the fundamental rights of voters against state interests. As the U.S. continues to face political turmoil, combined with a lack of confidence in the citizenry, courts must play an important role in respecting and acknowledging the perspectives of both voters and states.

References:

1 John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J.L. Reform 483, 494 (2003), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1415&context=mjlr.

2 Id. at 495-496.

3 Id. at 500-501.

4 Id. at 503.

5 Id. at 506.

6 Absentee Ballot Rules, Vote.org, https://www.vote.org/absentee-voting-rules/ (last visited Jan.15, 2025).

7 Id.

8 Drew Desilver, Most Mail and Provisional Ballots Got Counted in Past U.S. Elections—But Many Did Not, Pew Research Center (Nov. 20, 2020), https://www.pewresearch.org/politics/2020/11/20/the-voting-experience-in-2020/.

9 Voting Rights Laws and Constitutional Amendments, USA.Gov (2024), https://www.usa.gov/voting-rights (Aug. 22, 2024).

10 Gwenevere Tatara, Understanding the Absentee Voting Debate, The All for Citizen Engagement (Jun. 28, 2023), https://ace-usa.org/blog/research/research-democratic-governance/understanding-the-absentee-voting-debate/.

11 Id.

12 About the Supreme Court, USCourts.Gov, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about (last visited Jan. 28, 2025).

13 Alexander Egber, The Anatomy of an Anderson-Burdick Challenge, Ariz. State L. J. (Mar. 31, 2022), https://arizonastatelawjournal.org/2022/03/31/the-anatomy-of-an-anderson-burdick-challenge/.

14 Id.

15 Democratic Nat’l Comm. v. Bostelmann, 977 F.3d 639 (7th Cir. 2020).

16 Id. at 641.

17 Id. at 642.

18 Id.

19 Id.

20 Id.