Amicus Curiae Brief — Republican National Committee, et al., Petitioners v. Bette Eakin, et al.

No. 25-962

In the

Supreme Court of the United States

_____________

REPUBLICAN NATIONAL COMMITTEE, NATIONAL

REPUBLICAN CONGRESSIONAL COMMITTEE,

REPUBLICAN PARTY OF PENNSYLVANIA,

Petitioners,

v.

BETTE EAKIN, DEMOCRATIC SENATORIAL CAMPAIGN

COMMITTEE, DEMOCRATIC CONGRESSIONAL CAMPAIGN

COMMITTEE, ET AL.,

_____________

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

_____________

BRIEF OF CENTER FOR ELECTION

CONFIDENCE AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

_____________

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

JAMIE G. MCWILLIAM

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table of Authorities ............................................................. iii

Interest of Amicus Curiae ................................................... 1

Introduction and Summary of Argument ......................... 1

Argument .............................................................................. 4

I. The So-Called Anderson-Burdick Test Must Be

Revisited, Or The Lower Courts Need Clearer

Instruction On How To Apply It ................................. 4

A. As Justice Scalia Explained In Crawford, The

Courts Need More Burdick and Less Anderson

When Evaluating Claims That Election

Regulations Unconstitutionally Burden The Right

To Vote ....................................................................... 4

1. Anderson Celebrated That The Judge’s

Discretion Controlled The Outcome Of Its

Balancing Test. ................................................... 5

2. Justice Scalia Demonstrated That, In Order

To Have An Administrable Rule That

Respects States’ Constitutional Role,

Federal Courts Need “Objective, Uniform

Standards” .......................................................... 7

B. In Recent Years, Anderson’s Allowance For Broad

Balancing Has Degenerated Into A “Federal

Judges Know Best” Test ....................................... 11

C. This Case Presents The Ideal Opportunity To

Restore Order To Lower Courts’ Abuse Of

Anderson Balancing, Just As The Court Has

Done In Other Contexts ........................................ 17

ii

II. Restoring Order To Election Litigation Would Also

Help Bolster Confidence In The Election System

Generally ...................................................................... 20

Conclusion ........................................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............................................ 2, 5, 6

Brnovich v. Democratic National Committee,

594 U.S. 647 (2021) .................................. 3, 18, 19, 22

Burdick v. Takushi,

504 U.S. 428 (1992) .......................................... 2, 9, 10

Clingman v. Beaver,

544 U.S. 581 (2005) .................................... 5, 9, 10, 11

Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008) ... 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14,

15, 21, 23

Daunt v. Benson,

956 F.3d 396 (6th Cir. 2020) ..................................... 17

Democratic Nat’l Comm. v. Hobbs,

948 F.3d 989 (9th Cir. 2020) ..................................... 18

Democratic Nat’l Comm. v. Wis. State Legislature,

141 S. Ct. 28 (2020) ................................ 10, 11, 12, 20

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................................. 19

Dunn v. Blumstein,

405 U.S. 330 (1972) .................................................... 7

Eakin v. Adams County Bd. of Elections,

149 F.4th 291 (3d Cir. 2025) ............................... 17, 18

Eakin v. Adams County Bd. of Elections,

158 F.4th 185 (3d Cir. 2025) ..................................... 17

Fish v. Schwab,

957 F.3d 1105 (10th Cir. 2020)................ 12, 13, 15, 16

iv

Jacobellis v. Ohio,

378 U.S. 184 (1964) .................................................... 7

Libertarian Party of New Hampshire v. Gardner,

843 F.3d 20 (1st Cir. 2016) ....................................... 15

Luft v. Evers,

963 F.3d 665 (7th Cir. 2020) ..................................... 15

Mazo v. New Jersey Sec’y of State,

54 F.4th 124 (3d Cir. 2022) ....................................... 15

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ................................................ 19, 20

Obama for America v. Husted,

697 F.3d 423 (6th Cir. 2012) ..................................... 14

One Wis. Inst., Inc. v. Thomsen,

198 F. Supp. 3d 896 (W.D. Wis. 2016)....................... 15

Public Integrity All., Inc. v. City of Tucson,

836 F.3d 1019 (9th Cir. 2016) ................................... 15

Purcell v. Gonzalez,

549 U.S. 1 (2006) ...................................................... 20

Rogers v. Grewal,

590 U.S. 996 (2020) .................................................. 19

Storer v. Brown,

415 U.S. 724 (1974) ............................................ 6, 7, 9

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) ................................................ 5, 9

Other Authorities

Allen Rostron,

Justice Breyer’s Triumph in the Third Battle

over the Second Amendment, 80 Geo. Wash. L.

Rev. 703 (2012) ........................................................ 19

v

Charles Stewart III, How We Voted in 2024, MIT

Election Data + Sci. Lab ................................... 22, 23

Derek T. Muller, The fundamental weakness of

flabby balancing tests in federal election law

litigation, Excess of Democracy (Apr. 20, 2020) ....... 16

Edward B. Foley,

Voting Rules and Constitutional Law, 81 Geo.

Wash. L. Rev. 1836 (2013)........................................ 16

How many voters cast ballots early and by mail?,

USAFacts (Sept. 8, 2025) ......................................... 23

Kate Hardiman Rhodes, Restoring the Proper Role

of the Courts in Election Law: Toward a

Reinvigoration of the Political Question

Doctrine,

20 Geo. J.L. & Pub. Pol’y 755 (2022) ........................ 12

MIT Election Data & Science Lab, Voting by Mail

and Absentee Voting (Feb. 28, 2024).................. 22, 23

National Conference of State Legislatures, Table

14: How States Verify Voted Absentee/Mail

Ballots ..................................................................... 24

Pew Research Center, Elections in America:

Concerns over Security, Divisions over

Expanding Access to Voting (Oct. 29, 2018) ............. 22

Report of the Comm’n on Fed. Election Reform,

Building Confidence in U.S. Elections (Sept.

2005) ........................................................................ 22

States United, When Americans Trust Elections,

They Are More Likely to Vote (July 12, 2025) ......... 21

Steven Shepard et al., Majority of Americans

Continue to Back Expanded Early Voting,

vi

Voting by Mail, Voter ID, Pew Research Center

(Aug. 22, 2025) ......................................................... 22

Thad Kousser et al., Trust in American Elections

Has Declined Since 2024, Broad Concerns about

ICE at Polling Places in 2026, U.C. San Diego

Yankelovich Center ................................................. 22

1

INTEREST OF AMICUS CURIAE 1

Center for Election Confidence, Inc. (CEC), is a nonprofit organization that promotes ethics, integrity, and

professionalism in the electoral process. CEC works to

ensure that all eligible citizens can vote freely within an

election system of reasonable procedures that promote

election integrity, prevent vote dilution and disenfranchisement, and instill public confidence in election systems and outcomes. To accomplish these objectives, CEC

conducts, funds, and publishes research and analysis regarding the effectiveness of current and proposed election

methods. CEC is a resource for lawyers, journalists, policymakers, courts, and others interested in the electoral

process. CEC also periodically engages in public-interest

litigation to uphold the rule of law and election integrity

and files amicus briefs in cases where its background, expertise, and national perspective may illuminate the issues under consideration.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The “Anderson-Burdick” doctrine is badly malfunctioning if a lower court can invoke it to conclude that

Pennsylvania violated the Constitution by requiring voters to put a date on their mail ballots. The Court should

take this opportunity, outside the frenzy of the election

1

All parties were timely informed of amicus’ intent to file this brief.

No counsel for any party authored this brief in whole or in part, and

no entity or person, aside from amicus curiae, its members, and its

counsel, made any monetary contribution toward its preparation or

submission. See Sup. Ct. R. 37.6.

2

cycle, to restore order to litigation over election regulations. One source for such order can be found in Justice

Scalia’s concurring opinion in Crawford v. Marion County

Election Bd., 553 U.S. 181 (2008), the last merits decision

considering claims that election procedures violate the

Constitution.

As Justice Scalia demonstrated, the “Anderson-Burdick” label itself is a misnomer. Whereas Anderson v.

Celebrezze, 460 U.S. 780 (1983), put judges at the center

of the action by concluding there was simply “‘no substitute’” for their “‘judgments’” in these cases, id. at 789–90,

Justice Scalia posited that Burdick v. Takushi, 504 U.S.

428 (1992), charted a different course by “forg[ing] Anderson’s amorphous ‘flexible standard’ into something resembling an administrable rule.” Crawford, 553 U.S. at

205 (Scalia, J., joined by Thomas and Alito, JJ., concurring). He stressed the importance of “objective, uniform

standard[s]” that would allow States greater certainty

that their ordinary voting rules would not be thrown out

in federal court. Id. at 208. “This is an area where the dos

and don’ts need to be known in advance of the election,”

and “detailed judicial supervision of the election process

would flout the Constitution’s express commitment of the

task to the States.” Id.

Yet “detailed judicial supervision” is exactly where we

have landed, largely because the lower courts have ignored Justice Scalia’s warnings and committed the very

errors he warned against. This case is a poster child for

the perils of preserving judges’ power to conduct interestbalancing, no matter how slight the burden. Here, as in

too many cases, the lower courts analyzed the “burden”

3

imposed by the date requirement by focusing on the “disenfranchising” impact on an individual plaintiff, rather

than considering the burden objectively and generally.

Put simply, nondiscriminatory rules that do not impose a

“significant increase [to] the usual burdens of voting” are

not “severe” and should be upheld in a system where the

Framers assigned the role of managing elections to the

States, not federal judges. Id. at 209.

This case is an ideal vehicle for imposing administrable standards in this politically fraught species of litigation. The dysfunction here is similar to, if not worse than,

the misguided efforts to apply § 2 of the Voting Rights Act

to ordinary election rules in so-called “vote denial” claims.

The Court properly corrected this abuse in Brnovich v.

Democratic National Committee, 594 U.S. 647 (2021). In

particular, the Court emphasized that “the concept of a

voting system that is ‘equally open’ and that furnishes an

equal ‘opportunity’ to cast a ballot must tolerate the ‘usual

burdens of voting.’” Id. at 669 (citing Crawford, 553 U.S.

at 198). The “Anderson-Burdick” regime is overdue for

similar oversight.

Removing federal courts from the policy debate over

whether particular rules are justified will not only restore

their proper place in the constitutional structure, it will

also bolster voters’ trust in their elections systems. Voter

confidence in the integrity of mail voting—the practice at

issue here—is particularly fragile, which further underscores why this case is a good vehicle. The Constitution

does not prohibit a date requirement on a mail ballot, and

pretending that federal courts have the authority to say

so undermines voters’ confidence. Judicial meddling in

4

State election procedures only further erodes public confidence in the electoral process.

The petition should be granted.

ARGUMENT

I. The So-Called Anderson-Burdick Test Must Be Revisited, Or The Lower Courts Need Clearer Instruction

On How To Apply It.

In the 18 years since Crawford failed to produce a majority opinion, this framework has foundered in the lower

courts as the number of cases has multiplied. It is time to

restore order so that States can finally know the “dos and

don’ts … in advance of the election” and election rules are

no longer subject to “constant litigation.” Crawford, 553

U.S. at 208 (Scalia, J., concurring). The first step is revisiting the Anderson-Burdick label itself.

A. As Justice Scalia Explained In Crawford, The

Courts Need More Burdick and Less Anderson

When Evaluating Claims That Election Regulations Unconstitutionally Burden The Right To

Vote.

While the courts routinely label the governing standard in these cases the “Anderson-Burdick test,” Justice

Scalia posited that the real test is the one set forth in Burdick, and not in Anderson. Crawford, 553 U.S. at 204

(Scalia, J., concurring). He rejected the Crawford plurality’s contention that Burdick “simply adopt[ed] ‘the balancing approach’” of Anderson. Id.

Rather, “[a]lthough Burdick liberally quoted Anderson, Burdick forged Anderson’s amorphous ‘flexible

5

standard’ into something resembling an administrable

rule.” Id. at 204–05. He also elaborated on the guidelines

provided in Burdick and intervening decisions for determining whether a regulation constitutes a “severe” burden. Id. at 204–208 (discussing development of doctrine

from Burdick to Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997), and Clingman v. Beaver, 544 U.S. 581

(2005)). Contrary to Anderson’s elevation of the judicial

role in the process, Justice Scalia insisted that the Court’s

decisions following Burdick called for courts to apply a

more “objective, uniform standard” that would allow

States to determine whether their rules are “too severe”

and thus likely to be enjoined. Crawford, 553 U.S. at 208

(Scalia, J., concurring).

These points are worth emphasizing, because Justice

Scalia anticipated the doctrinal mistakes that have led to

shocking results like the one in this case.

1. Anderson Celebrated That The Judge’s Discretion Controlled The Outcome Of Its Balancing Test.

Justice Stevens wrote for the five-to-four majority in

Anderson. Eschewing a “litmus-paper test” for constitutional challenges to election regulations, his opinion introduces the formulation of a balancing test with the curious

assertion that “a court must resolve such a challenge by

an analytical process that parallels its work in ordinary

litigation.” 460 U.S. at 789. Under Anderson, the reviewing court’s personal evaluations are baked into each step

of the test, even before the judge gets to “balance” the

factors:

6

•

The reviewing court “must first consider the

character and magnitude of the asserted injury to the rights … that the plaintiff seeks to

vindicate.”

•

“It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.”

•

And “[i]n passing judgment, the Court must

not only determine the legitimacy and

strength of each of those interests, it also must

consider the extent to which those interests

make it necessary to burden the plaintiff’s

rights.”

Id. at 789.

“Only after weighing all these factors is the reviewing

court in a position to determine whether the challenged

provision is constitutional.” Id. (emphasis added). Yet the

opinion went light on offering guidelines—other than the

reviewing court’s personal judgment—for determining

the “magnitude of the asserted injury,” how to “evaluate”

the State’s interests, or how to determine the “legitimacy”

or “strength” of the competing interests. Rather, in a nolitmus-test setting such as this, the majority concluded

that relying on the judge’s personal evaluation is simply

unavoidable: “The results of this evaluation will not be automatic; as we have recognized, there is ‘no substitute for

the hard judgments that must be made.’” Id. at 789–90

(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

Indeed, the passage quoted from Storer acknowledges

how much uncertainty results when judicial discretion is

7

controlling. Since a “[d]ecision in this context … is very

much a ‘matter of degree,’” no one, including the States

crafting the rules, can predict whether the rules will survive: “What the result of this process will be in any specific

case may be very difficult to predict with great assurance.” 415 U.S. at 730 (quoting Dunn v. Blumstein, 405

U.S. 330, 348 (1972)).2 The Storer majority offered an odd

double-negative assurance to emphasize the point: “It is

very unlikely that all or even a large portion of the state

elections laws would fail to pass muster under our

cases[.]” Id.

Justice Scalia appropriately rejected this judge-empowering approach in favor of an objective, rules-based

approach that allows States—to whom the Framers assigned the duty to set election law and to administer federal elections—to structure their election rules with more

certainty that they will not be nullified by a federal court.

2. Justice Scalia Demonstrated That, In Order To

Have An Administrable Rule That Respects

States’ Constitutional Role, Federal Courts

Need “Objective, Uniform Standards.”

In Crawford, Justice Scalia warned that “[a] case-bycase approach” to claims that election rules violate the

Constitution “naturally encourages constant litigation.”

553 U.S. at 208. Such a result, he stressed, is incompatible

To be sure, Storer arose in the heyday of the “I know it when I see

it” era. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

2

8

with the Framers’ constitutional design because it introduces uncertainty into a system where States were

trusted with designing their election systems:

[D]etailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. See Art. I, § 4.

It is for state legislatures to weigh the costs and

benefits of possible changes to their election

codes, and their judgment must prevail unless it

imposes a severe and unjustified overall burden

upon the right to vote, or is intended to disadvantage a particular class. Judicial review of

their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is

too severe.

553 U.S. at 208 (emphasis added).

To the concurring Justices, the critical objective

standards were supplied by Burdick and reaffirmed by

Timmons and Clingman. Crawford, 553 U.S. at 206

(Scalia, J., concurring).

First, under Burdick, the burden inquiry must focus

on whether the regulation imposes discriminatory classifications. 504 U.S. at 438–39. When burdens are nondiscriminatory and generally applicable, the burden should

be examined by its impact on voters generally, not

through its impact on a single plaintiff or a group of plaintiffs. See Crawford, 553 U.S. at 206–07 (Scalia, J., concurring) (noting that Storer, 415 U.S. at 742, asked whether

“a reasonably diligent candidate” could satisfy an election

regulation, rather than a particular plaintiff); Burdick,

9

504 U.S. at 436–37 (rejecting a characterization of a burden based on particular parties who failed to comply with

the law). A “voter-by-voter examination of the burdens of

voting regulations would prove especially disruptive” by

inciting endless litigation. Crawford, 553 U.S. at 208

(Scalia, J., concurring). In a system designed to bring order to a complicated process, repeated challenges based

on niche individual impacts would instead present widespread chaos. See Storer, 415 U.S. at 730.

For this reason, the Court in Burdick asked how Hawaii’s lack of write-in voting limited voters’ general access

to the political system, not whether the plaintiff whose

preferred candidate had not filed nominating papers was

particularly impacted. 504 U.S. at 430, 438–39. Likewise,

in Timmons, the Court looked to the general burden imposed by Minnesota’s anti-fusion voting law, rather than

its specific impact on the political party plaintiff. 520 U.S.

at 363. And the Court held in Clingman that “requiring

voters to register with a party prior to participating in the

party’s primary minimally burdens voters’ associational

rights” without looking at whether any particular voter

suffered a particular impact to those rights. 544 U.S. at

592. Through it all, the Court “considered the laws and

their reasonably foreseeable effect on voters generally.”

Crawford, 553 U.S. at 206 (Scalia, J., concurring).

Second, Justice Scalia reiterated the principle that

“[o]rdinary and widespread burdens, such as those requiring ‘nominal effort’ of everyone, are not severe.”

Crawford, 553 U.S. at 205 (Scalia, J., concurring) (quoting

and citing Clingman, 544 U.S. at 591, 593–97). As such, requirements that do not materially add to “the usual bur-

10

dens of voting” are not severe. Id. at 209. Election deadlines, as Justice Kavanaugh has reminded us, are an ordinary and necessary part of an orderly election and therefore do not substantially burden the right to vote. Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct.

28, 31 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay). To deem such generalized burdens

“severe would subject virtually every electoral regulation

to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to

rewrite state electoral codes.” Clingman, 544 U.S. at 593.

Thankfully, “[t]he Constitution does not require that result.” Id.

Third, Justice Scalia stressed that generally applicable election rules that impose disparate impact are not

constitutionally suspect unless there is discriminatory intent (which is not the case with ordinary voting rules).

Crawford, 553 U.S. at 207 (Scalia, J., concurring). “The

Fourteenth Amendment does not regard neutral laws as

invidious ones, even when their burdens purportedly fall

disproportionately on a protected class.” Id. (emphasis

omitted). State election regulations are replete with various requirements that require voters to take certain steps

in order to cast their ballots or “have the effect of channeling expressive activity at the polls.” Burdick, 504 U.S.

at 438. But just because one person or group might be particularly impacted by a rule that is “merely inconvenient”

to most voters, does not transform that rule into a Constitutional violation. Crawford, 553 U.S. at 205 (Scalia, J.,

concurring).

With these rules in mind, for the vast majority of ordinary, uniform voting regulations, there should be no need

11

to “balance” anything. See id. at 209 (Scalia, J., concurring) (concluding that the state satisfied its “minimal burden” when its reasonable and universal requirement did

not significantly increase “the usual burdens of voting”);

cf. Wis. State Legislature, 141 S. Ct. at 35 (Kavanaugh, J.,

concurring) (rejecting “open-ended balancing” under Anderson-Burdick for challenge to absentee ballot deadline).

Most rules are simply a product of the State playing its

role in our constitutional structure, ensuring that elections remain fair, honest, and orderly. Burdick, 504 U.S.

at 433. The States’ political judgment in these instances

“must prevail unless it imposes a severe and unjustified

overall burden upon the right to vote, or is intended to disadvantage a particular class.” Crawford, 553 U.S. at 208

(Scalia, J., concurring). When faced with nondiscriminatory, generally applicable election laws it is not for federal

courts to second-guess the decisions of State legislatures

and “rewrite state electoral codes.” Clingman, 544 U.S. at

593.

B. In Recent Years, Anderson’s Allowance For Broad

Balancing Has Degenerated Into A “Federal

Judges Know Best” Test.

The Court has not issued a merits opinion since Crawford touching on the proper standard (under Anderson,

Burdick, or otherwise) for evaluating claims that election

procedures violate the Constitution. In the meantime,

election law litigation has exploded, due in no small part

to lower courts ignoring Justice Scalia’s instructions.

Ahead of the 2020 election, Justice Kavanaugh observed that the Court had “stayed numerous federal dis-

12

trict court injunctions that second-guessed state legislative judgments about whether to keep or make changes to

election rules during the pandemic.” Wis. State Legislature, 141 S. Ct. at 32 (Kavanaugh, J., concurring). Against

this backdrop, he explained that a flexible Anderson-Burdick standard gives a “de facto green light to federal

courts to rewrite dozens of state election laws around the

country.” Id. at 35.

Yet the “federal-judges-know-best vision of election

administration,” id., has hardly been confined to litigation

during COVID. Since Crawford, district and circuit courts

have used the Anderson-Burdick framework to invalidate

mainstream election regulations. This typically follows a

pattern foreshadowed by Justice Scalia. At the threshold

burden inquiry, judges elevate “ordinary and widespread

burdens” into severe ones by focusing on a voting law’s

individual impact rather than how it effects voters in general. This opens the door for courts to balance away the

States’ affirmative power to impose time, place, and manner rules. As one scholar has explained, by zeroing in on

specific challenges facing particular voters rather than

considering a law’s generally applicable burden, “almost

any law can be undue.” Kate Hardiman Rhodes, Restor-

ing the Proper Role of the Courts in Election Law: Toward a Reinvigoration of the Political Question Doctrine,

20 Geo. J.L. & Pub. Pol’y 755, 763 (2022).

The Tenth Circuit’s decision in Fish v. Schwab illustrates this pattern. 957 F.3d 1105 (10th Cir. 2020). The

court deployed Anderson-Burdick to invalidate Kansas’

requirement that individuals supply documentary proof of

citizenship (DPOC) to register to vote. Id. at 1112, 1136.

13

It first held that the burden imposed by the DPOC requirement was “significant.” Id. at 1128. In doing so, the

court rejected the State’s more generalized characterization of the burden imposed by this law—that gathering

documents proving citizenship and supplying them to the

state was akin to the “limited” burden imposed by the administrative process of getting a photo ID in Crawford.

Id. at 1130. The Tenth Circuit ignored the law’s uniform

application to all persons registering to vote, as well as the

lack of any evidence of discriminatory intent. Cf. Crawford, 553 U.S. at 205–07 (Scalia, J., concurring). Instead,

the Fish court focused on the numbers and testimony of

individual voters who were “disenfranchised” by failing to

provide proof of citizenship. 957 F.3d at 1130–31. By shifting its field of view from the law’s generally applicable

burden to the particularized impacts of that burden, see

Crawford, 553 U.S. at 205 (2008) (Scalia, J., concurring),

the Tenth Circuit mis-identified the burden and triggered

strict scrutiny. Fish, 957 F.3d at 1132.

From there, the court balanced away the State’s interests in the DPOC requirement. The panel acknowledged

that, under Crawford, “‘[t]here is no question about the

legitimacy or importance of the State’s interest in counting only the votes of eligible voters.’” Id. at 1132 (citation

omitted). But it proceeded to question Kansas’ particular

interest in that very thing by pointing to a lack of actual

“evidence that the integrity of Kansas’s electoral process

had been threatened, that the registration of ineligible

voters had caused voter rolls to be inaccurate, or that

voter fraud had occurred.” Id. at 1134. Never mind that

14

the lack of documented evidence of voter fraud in Crawford failed to undermine Indiana’s interest in fighting

fraud there. 553 U.S. at 196 (plurality opinion).

In Obama for America v. Husted, the Sixth Circuit

took a similar path when affirming a preliminary injunction of an Ohio law allowing military, but not non-military,

voters to cast in-person early ballots during the three

days before election day. 697 F.3d 423, 426–27, 437 (6th

Cir. 2012). The panel applied the “flexible” Anderson-Burdick standard to “make the ‘hard judgment’ that our adversary system demands.” Id. at 429 (quoting Crawford,

553 U.S. at 190 (plurality opinion)). Examining the level of

the law’s burden, the court relied on statistical studies regarding individual voters who would have chosen to vote

during the three-day period before election day. Id. at 431.

It then upheld the district court’s conclusion that the law

represented a “particularly high” burden on the organizational plaintiffs because “their members, supporters, and

constituents represent a large percentage of those who

participated in early voting in past elections.” Id. On the

other side of the ledger, the Sixth Circuit considered

Ohio’s “vague interest in the smooth function of local

boards of elections” and “accommodating the unique situation of members of the military,” which, the panel concluded, were not “sufficiently weighty” to justify the regulation. Id. at 434, 436.

A Wisconsin district court similarly applied a “flexible” version of the Anderson-Burdick standard that focused on particular impacts of a series of Wisconsin voter

ID, voting deadline, and other laws “on eligible voters who

cannot comply with the new requirement[s].” One Wis.

Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 930 (W.D. Wis.

15

2016). The court concluded that some of these laws imposed “moderate burdens” not generally justified by state

interests and enjoined them. Id. at 934, 941, 946. The Seventh Circuit reversed and observed that the district court

“[mis]understood these decisions [Anderson and Burdick]

to allow the judiciary to decide whether any given election

law is necessary because, if not, it is by definition an excessive burden. That allows a political question—whether

a rule is beneficial, on balance—to be treated as a constitutional question and resolved by the courts rather than

by legislators.” Luft v. Evers, 963 F.3d 665, 671 (7th Cir.

2020). Recognizing the difference between Anderson and

Burdick, the court said “Burdick forecloses that sort of

substitution of judicial judgment for legislative judgment.” Id.

To further underscore the extent of the morass left in

Crawford’s wake, multiple circuits have actually adopted

Justice’s Souter’s characterization of the rule in dissent in

Crawford; he wrote that “we have avoided preset levels of

scrutiny in favor of a sliding-scale balancing analysis.” 553

U.S. at 210 (Souter, J., dissenting). See, e.g., Fish, 957

U.S. at 1124, 1125 n.4 (rejecting Justice Scalia’s formulation of the standard in favor of the more “flexible, sliding

scale test”); Public Integrity All., Inc. v. City of Tucson,

836 F.3d 1019, 1024 n.2 (9th Cir. 2016) (relying in part on

Justice Souter’s dissent for an individual-impact-based

burden analysis); Mazo v. New Jersey Sec’y of State, 54

F.4th 124, 137 (3d Cir. 2022) (applying Anderson-Burdick’s “sliding scale approach”); Libertarian Party of New

Hampshire v. Gardner, 843 F.3d 20, 31 (1st Cir. 2016)

(same). Under this version of the test, “Anderson-Burdick

scrutiny is required even when the burden imposed by a

16

… law has some relationship to voter qualifications and

even when the burden imposed may appear slight.” Fish,

957 U.S. at 1124.

The leniency with which the prevailing understanding

of Anderson-Burdick allows judges to inject their own

views into cases is so plain that Professor Muller has described the framework as:

the kind of test where Judge Mark Walker in Florida would find that it's a “severe” burden on voting

rights if the Republican candidate is listed first on

the ballot when a Republican is governor; and

where Justice John Paul Stevens would find a

photo identification law in Indiana to be a “limited”

burden on voters in a record with “no evidence of

any” in-person voter “fraud actually occurring in

Indiana at any time in its history.”

Derek T. Muller, The fundamental weakness of flabby

balancing tests in federal election law litigation, Excess of

Democracy (Apr. 20, 2020), https://perma.cc/H6N74KGS. After surveying a series of Sixth Circuit cases, another scholar similarly concluded that “Anderson-Burdick balancing is such an imprecise instrument that it is

easy for the balance to come out one way in the hands of

one judge, yet come out in the exact opposite way in the

hands of another.” Edward B. Foley, Voting Rules and

Constitutional Law, 81 Geo. Wash. L. Rev. 1836, 1859

(2013). Judge Readler of the Sixth Circuit characterized

the test as a “dangerous tool” that “[i]n sensitive policyoriented cases, … affords far too much discretion to

judges in resolving the dispute before them.” Daunt v.

17

Benson, 956 F.3d 396, 424 (6th Cir. 2020) (Readler, J., concurring).

In short, the lower courts need direction.

C. This Case Presents The Ideal Opportunity To Restore Order To Lower Courts’ Abuse Of Anderson

Balancing, Just As The Court Has Done In Other

Contexts.

This case presents an extreme example of how far offcourse things have gotten in the lower courts. The Third

Circuit used an individual-impact-focused version of the

Anderson-Burdick test to transform an ordinary and nondiscriminatory burden—spending “less than five seconds” to write out the date, Eakin v. Adams County Bd.

of Elections, 158 F.4th 185, 190 (3d Cir. 2025) (Bove, J.,

dissenting sur denial of rehearing en banc)—into an unjustified burden on voters’ Constitutional rights, Eakin v.

Adams County Bd. of Elections, 149 F.4th 291, 314 (3d

Cir. 2025).

The panel manifestly failed to consider the dating

“burden” objectively; indeed, it spent multiple pages explaining why the burden analysis “may look to a law’s impacts, including the consequences of noncompliance.” Id.

at 310–12. In spite of the law’s general applicability and

lack of discrimination, the mere fact that voters who failed

to comply with the rule would have their ballots rejected

was enough to trigger balancing. Id. at 309–10. Then, the

icing on the cake: Despite agreeing that the burden here

was “minimal,” id. at 312, the panel concluded that the

State’s interests, including fraud prevention, did not

“bear the weight of the burden the date requirement imposes.” Id. at 317. In short, the panel wrote, Anderson-

18

Burdick is nothing more than a “weighing test.” Id. If any

case exemplifies the lower courts’ repudiation of the principles Justice Scalia summarized in Crawford, it is this

case. Federal courts should be enforcing judicially administrable rules, not “weighing” a State’s motivation for nondiscriminatory election regulations.

The current state of the lower courts’ balancing in the

name of Anderson-Burdick resembles other doctrinal fiascos that the Court has addressed in recent years. Most

prominently, in Brnovich v. Democratic National Committee, the Court addressed efforts to challenge many

States’ common election procedures as violations of § 2 of

the Voting Rights Act. 594 U.S. 647 (2021). In Brnovich,

the Ninth Circuit concluded that Arizona’s rules prohibiting the collection of absentee ballots and discarding “out

of precinct” ballots violated § 2. Like other courts considering so-called “vote denial” claims under § 2, the Ninth

Circuit found a violation after balancing multiple “Senate

factors” and other factors in a two-step “totality of the circumstances” test. Democratic Nat’l Comm. v. Hobbs, 948

F.3d 989, 1012–13 (9th Cir. 2020) (citing similar approach

in other circuits).

Brnovich has important implications here, where

plaintiffs assert that an open-ended balancing test governs claims that election procedures impermissibly burden First and Fourteenth Amendment rights. The Court

stressed that “the concept of a voting system that is

‘equally open’ and that furnishes an equal ‘opportunity’ to

cast a ballot must tolerate the ‘usual burdens of voting.’”

594 U.S. at 669 (citing Crawford, 553 U.S. at 198); see id.

at 678. As an integral part of a fair election system, pre-

19

venting fraud is a “strong and entirely legitimate state interest” for voting rules. Id. at 672. And “the degree to

which a voting rule departs” from historically standard

practice is an important consideration for courts. Id. at

669. These principles echo the points Justice Scalia made

in Crawford, and they are well worth reiterating in support of clarifying the state of the law here.

Lower courts relying on Anderson-Burdick as cover to

seize broad power over state election machinery also resembles the rampant interest-balancing that took hold in

Second Amendment cases in the wake of District of Columbia v. Heller, 554 U.S. 570 (2008). Just as the lower

courts have followed Justice Souter’s call for a “slidingscale” test in his Crawford dissent, the lower court resistance to Heller almost uniformly applied the interestbalancing test advocated by Justice Breyer’s Heller dissent. 554 U.S. at 689 (2008) (Breyer, J., dissenting); see

Allen Rostron, Justice Breyer’s Triumph in the Third

Battle over the Second Amendment, 80 Geo. Wash. L.

Rev. 703, 757 (2012) (although lower courts could not cite

Justice Breyer’s dissent, it “capture[s] quite well the flavor of the … precedent being generated by the lower

courts”). What emerged was a two-step test that closely

tracked the prevailing Anderson-Burdick formulation.

See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1, 18–19 (2022) (describing how lower courts examined the

burden on the “core” Second Amendment right and subsequently applied either intermediate or strict scrutiny).

In the years that followed, judges used this “entirely

made up” “sliding scale” test to subject the Second

Amendment right to “judges’ assessments of its usefulness.” Rogers v. Grewal, 590 U.S. 996, 999 (2020)

20

(Thomas, J., dissenting from the denial of certiorari). The

Court rightly put an end to the lower courts’ unfounded

interest balancing. See Bruen, 597 U.S. at 19. The same

goes here.

The Court should step in and put an end to this mischief. This is the rare case involving a challenge to an election procedure that does not arise in the frenzy surrounding election day. The Court has plenty of time to consider

the issues and correct the malfunctioning Anderson-Burdick test.

II. Restoring Order To Election Litigation Would Also

Help Bolster Confidence In The Election System Generally.

Allowing States to administer orderly federal elections, without interference from federal district courts,

serves to “giv[e] citizens … confidence in the fairness of

the election.” Wis. State Legislature, 141 S. Ct. at 31 (Kavanaugh, J., concurring). On the other hand, when federal

courts upset “carefully considered and democratically enacted state election rules,” id., it only spreads confusion

and distrust among voters.

As this Court observed in Purcell v. Gonzalez:

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest

citizens out of the democratic process and breeds

distrust of our government. Voters who fear their

legitimate votes will be outweighed by fraudulent

ones will feel disenfranchised.

549 U.S. 1, 4 (2006) (per curiam).

21

Recent data backs this up. In a 2025 report, States

United found that “[p]eople who expressed higher levels

of confidence that their vote would be counted as intended

were more likely to vote.” States United, When Americans Trust Elections, They Are More Likely to Vote (July

12, 2025), https://perma.cc/YZ4S-EDH6. The report concluded that “[i]f Americans felt more confident about the

security of the 2024 election, turnout could have increased

by 3.0–3.7 percentage points.” Id. That translates to 4.7–

5.7 million voters who may have voted but for a sense of

disenfranchisement caused by a lack of confidence in the

electoral process. Id. Distrust of election security therefore does not just impact individual voters—its aggregate

effects could sway the outcomes of major elections.

To inspire the confidence necessary to build more robust electoral participation, States need “safeguards … to

deter or detect fraud or to confirm the identity of voters.”

Crawford, 553 U.S. at 197 (plurality opinion) (citation

omitted). Reasonable, nondiscriminatory rules that secure election integrity create stability that voters can

count on. Trust in the American electoral system is undermined when federal courts nullify ordinary rules as insufficiently “weighty.”

This issue is particularly important in the context of

the election procedure at issue in this case—absentee voting. In Brnovich, this Court recognized that “[f]raud is a

real risk that accompanies mail-in voting,” which “has had

serious consequences in [the] States.” 594 U.S. at 686; see

also id. at 685 (“‘[A]bsentee balloting is vulnerable to

abuse in several ways: … Citizens who vote at home, at

nursing homes, at the workplace, or in church are more

22

susceptible to pressure, overt and subtle, or to intimidation.’” (quoting Report of the Comm’n on Fed. Election

Reform, Building Confidence in U.S. Elections 46 (Sept.

2005)). “[E]ven many scholars who argue that [election]

fraud is generally rare agree that fraud with [vote-bymail] voting seems to be more frequent than with in-person voting.” MIT Election Data & Science Lab, Voting by

Mail and Absentee Voting (Feb. 28, 2024),

https://perma.cc/4R83-NMDQ.

It is little surprise, then, that many Americans already

lack confidence in the security of voting by mail. A recent

survey that addressed perceived rates of occurrence for

different types of voter fraud found that, among all participants, “absentee ballot fraud” was perceived as the

most commonly occurring form of election fraud. Charles

Stewart III, How We Voted in 2024, MIT Election Data

+ Sci. Lab 34 fig. 31, https://perma.cc/SCX5-Z7KE. A different study found that 50% of Republicans—and 20% of

Democrats—distrust that mail-in ballots are counted accurately. Thad Kousser et al., Trust in American Elec-

tions Has Declined Since 2024, Broad Concerns about

ICE at Polling Places in 2026, U.C. San Diego Yankelovich Center 4, https://perma.cc/4QPZ-PRXA.

Indeed, while 58% of Americans say they support allowing broad voting by mail, that number is down from

roughly 70% in both 2020 and 2018. Steven Shepard et al.,

Majority of Americans Continue to Back Expanded Early

Voting, Voting by Mail, Voter ID, Pew Research Center

(Aug. 22, 2025), https://perma.cc/SA5W-JCNL; Pew Research Center, Elections in America: Concerns over Security, Divisions over Expanding Access to Voting 21

(Oct. 29, 2018), https://perma.cc/XNM6-HD4C. And in

23

spite of relatively high support for allowing absentee voting, in the 2024 election, only 29% of voters actually chose

to cast their ballot by mail. How many voters cast ballots

early and by mail?, USAFacts (Sept. 8, 2025),

https://perma.cc/LNY7-AF8S. Of those who did vote absentee, the number who returned their ballot by mail decreased in 2020 and 2024 from 2016 levels, with many voters opting to deliver them personally to election offices,

polling places, and drop boxes. Stewart, supra at 10, 11 fig.

6. In fact, in 2024, roughly 40% of absentee ballots were

returned by hand. Id.

At the same time, support for election integrity

measures like requiring photo ID are at a high point. See

Majority of Americans Continue to Back Expanded Early

Voting, Voting by Mail, Voter ID, supra (finding that 83%

of Americans supported photo ID voting requirements in

2025, up from 76% in 2018). Americans want to know that

their votes are being counted, and that those votes are not

being diluted by fraudulent or illegal ones. For these reasons, States have adopted reasonable procedural requirements like the one at issue here. With the Elections

Clause, the Framers imposed upon States the duty to administer elections. States, in turn, have a significant interest (and a natural incentive) in adopting procedural requirements to ensure confidence in the process.

That every State “accommodates some voters by permitting (not requiring) the casting of absentee … ballots,

is an indulgence” to streamline the voting process and

make voting more convenient for many Americans. Crawford, 553 U.S. at 209 (Scalia, J., concurring). But this convenience comes with increased risk of fraud, and for that

reason, 32 States conduct signature verification. Nat’l

24

Conf. of State Legislatures, Table 14: How States Verify

Voted Absentee/Mail Ballots, https://www.ncsl.org/elections-and-campaigns/table-14-how-states-verify-votedabsentee-mail-ballots (as of March 15, 2026). The Third

Circuit’s decision to upend a simple dating requirement

strikes at the principles under dozens of other States’

laws, causing widespread doubt about the constitutionality of commonplace absentee voting requirements.

Put simply, when voters lack confidence in the integrity of the election system, they feel disenfranchised. And

particularly in areas like absentee voting, where many

Americans already feel suspect, that confidence can be

achieved only through stable and consistent—and nondiscriminatory—rules. The flurry of litigation under the Anderson-Burdick test challenging these rules undermines

both States’ election safeguards and voters’ confidence in

them. The Court should therefore take this opportunity to

restore order to election litigation and give voters the confidence they need.

25

CONCLUSION

For the reasons set forth above and by petitioners, the

Court should grant the petition for a writ of certiorari and

reverse.

Respectfully submitted,

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

JAMIE G. MCWILLIAM

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

March 2026

Counsel for Amicus Curiae