“As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework - Harvard Law Review

The Harvard Law Review adheres to the tradition of the unsigned student NOTE/

Despite the general sentiment that Harvard is a hot bed of liberalism, the school also produces aggressively rightist thinkers: Kayleigh McEnany, Josh Hawley, and Ted Cruz among them. So it should be no surprise that the HR would publish a piece that considers optional states' employment of public general Presidential elections.  The essence is captured in the fragments below. - GWC

[Article II] Section 4 gives state legislatures the power to prescribe the “Times, Places and Manner” of holding congressional elections, but absent the large caveat in the corresponding provision in Article II: “Congress may at any time by Law make or alter” the state regulations on time and manner.^49×49. Id. art. I, § 4, cl. 1. 

"These observations, along with the document’s plain text, undermine the contention that the Constitution protects the right of voters to have a free choice of presidential candidates."

“As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework - Harvard Law Review NOTE

By returning to the Constitution’s text and revising presidential election caselaw to better accord with it, the Court may be able to solve these problems. This Note argues that a better approach lies in deference to the constitutional authority of states to make their own decisions with regard to presidential elections. Echoing the Supreme Court’s 1892 decision in McPherson v. Blacker^29×29. 146 U.S. 1 (1892). and then–Justice Rehnquist’s dissent in Anderson,^30×30. Anderson v. Celebrezze, 460 U.S. 780, 806–23 (1983) (Rehnquist, J., dissenting). this deferential approach would strike down state restrictions only when they contravene a separate provision of the Constitution, with those provisions being read in the context of a system where the President is not popularly elected. 

Thus, while provisions like the First Amendment or the Presidential Qualifications Clause might still limit state authority, those limits would not create a general-purpose balancing test. In addition to ensuring greater textual fidelity, this approach would reduce uncertainty — there would be little doubt that most restrictions implemented by states were constitutional.

***Thus, state legislatures have, since the Founding, exercised potentially outcome-determinative discretion in awarding electoral votes. And of course, the Electoral College itself makes it possible for presidential candidates to win election without a plurality of the national popular vote. These observations, along with the document’s plain text, undermine the contention that the Constitution protects the right of voters to have a free choice of presidential candidates.

***Then–Justice Rehnquist dissented on behalf of three other Justices. He began his analysis with Article II, section 1, describing it as one of the few constitutional provisions to grant “express plenary power to the States.”⁷⁶

^×76. Id. (Rehnquist, J., dissenting). He reasoned that “the Constitution does not require that a State allow any particular Presidential candidate to be on its ballot” and that ballot access laws should be upheld so long as they “are rational and allow nonparty candidates reasonable access to the general election ballot.”^77×77. Id. at 808. As noted by both the majority^78×78. See id. at 789 (majority opinion) (denying the possibility of any “litmus-paper test”). and the dissent,^79×79. See id. at 823 (Rehnquist, J., dissenting) (observing that the majority “draws no line”). the Court in Anderson drew no bright lines to determine how far a state could go in regulating elections, presidential or otherwise.