regulatory interests” standard for nonsevere, nondiscriminatory restrictions,
reserving strict scrutiny for laws that severely restrict the right to vote.’”108
The Anderson-Burdick balancing test operates on a sliding scale.109 Thus,
more restrictive laws are subject to greater scrutiny. Conversely, “minimally
burdensome and nondiscriminatory” regulations are subject to “a level of scrutiny
‘closer to rational basis.’”110 “And where the state imposes no burden on the ‘right
to vote’ at all, true rational basis review applies.”111
Here, because Defendants’ conduct “imposes no burden” on Individual
Plaintiffs’ right to vote, their equal-protection claim is subject to rational basis
review.112 Defendant Counties, by implementing a notice-and-cure procedure,
have in fact lifted a burden on the right to vote, even if only for those who live in
those counties. Expanding the right to vote for some residents of a state does not
burden the rights of others.113 And Plaintiffs’ claim cannot stand to the extent that
it complains that “the state is not imposing a restriction on someone else’s right to
vote.”114 Accordingly, Defendant Counties’ use of the notice-and-cure procedure
108
109
110
111
112
113
114
Donald J. Trump for President, 2020 WL 5997680, at *39 (quoting Crawford, 533 U.S. at
204 (Scalia, J. concurring)).
See id. at *40; see also Arizona Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir.
2019); Fish v. Schwab, 957 F.3d 1105, 1124 (10th Cir. 2020).
Donald J. Trump for President, 2020 WL 5997680, at *39 (quoting Ohio Council 8 Am.
Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016)).
Id. (citing Biener v. Calio, 361 F.3d 206, 215 (3d Cir. 2004)).
Even after questioning from this Court during oral argument regarding the appropriate
standard of review for their equal-protection claim, Plaintiffs failed to discuss this key aspect
of the claim in briefing. See Doc. 170.
See, e.g., Short v. Brown, 893 F.3d 671, 677 (9th Cir. 2018).
Donald J. Trump for President, 2020 WL 5997680, at *44 (emphasis in original).
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