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By: Elliot Ergeson, Volume 105 Staff Member

Voter suppression is a prominent issue in American elections.[1] One mechanism by which States engage in voter suppression is by closing or limiting the number of polling places in certain areas.[2] During the COVID-19 pandemic, however, many voters chose to vote by mail rather than in person for the 2020 election.[3] Yet, due to USPS’s mail delays,[4] voters who requested mail-in ballots were encouraged to place them in ballot drop boxes. Perhaps unsurprisingly, ballot drop boxes became a source of partisan controversy as some states sought to limit the number of drop boxes available.[5] Texas and Ohio, in particular, limited the number of ballot drop boxes to one per county.[6] Both of these decisions were challenged on the basis that they violated the Equal Protection Clause,[7] but the decisions were ultimately upheld.[8] This Post will argue that Texas and Ohio’s disproportionate allocation of ballot drop boxes—like polling places in past elections—emphasizes the need for an expansion of Bush v. Gore’s Equal Protection Clause precedent;[9] the disproportionate allocation of ballot drop boxes and polling places should be an Equal Protection Clause violation.


The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[10] Prior to Bush v. Gore, equal protection analysis had been applied to legislative districting, voter eligibility requirements, and poll taxes,[11] but it had not been applied to election administration. Bush v. Gore went a step further,[12] but the Court emphasized that its equal protection holding was limited to the facts at hand.[13] Due to the limited nature of the holding, election law scholars[14] and courts have not interpreted Bush v. Gore’s holding expansively. Instead, courts have largely rejected equal protection claims related to election administration.[15]

When confronted with equal protection claims, courts have applied the Anderson-Burdick framework which dictates that the severity of the burden on the right to vote determines the level of scrutiny applied to the regulation.[16] Generally, cases involving the number of ballot drop boxes or polling places in a locality would require rational basis or intermediate scrutiny, which weighs the “asserted injury to the right to vote” against the state’s interests purportedly justifying the burden.[17] Yet, courts have given too much weight to the state’s interests and downplayed the burden in these cases.


The Fifth and Sixth Circuits’ recent decisions regarding the disproportionate allocation of ballot drop boxes highlight the problem with how courts weigh the interests on both sides. With respect to the plaintiffs’ burden, the Fifth Circuit stated that “one strains to see how it burdens voting at all” and the Sixth Circuit suggested that the burden was “at most an inconvenience” because voters had other avenues of voting—two of which required voting in person and potentially contracting COVID-19, while the other relied on the USPS to deliver the ballot on time.[18] This analysis completely misses the mark. Having granted the right to vote by absentee ballot, Texas and Ohio “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”[19] Yet, that is what Texas and Ohio did. As the Northern District of Ohio put it, “[w]hile it may be said that the 7,903 registered voters in [one county] may find a single drop box location sufficient, . . . the 858,041 registered voters in [another county] will likely not.”[20] Nevertheless, both the Fifth and Sixth Circuits brushed aside the plaintiffs’ burden as minimal.

To make matters worse, both Circuits ascribe too much weight to the States’ asserted interests in the uniformity, efficiency, accuracy, and security of the election.[21] The interest in uniformity amongst counties ignores the population—and distance—discrepancies between the counties and is paradoxical to equal protection; it necessarily burdens some voters more than others. Likewise, the asserted interests in efficiency and accuracy[22] also come at the expense of the voters’ time spent either traveling or waiting in line to drop off a ballot. Finally, it is unclear what interest the States have in the security of drop boxes, aside from the potential that one is burned down.[23] The Fifth Circuit asserted that states have an important interest in reducing opportunities for voter fraud and that mail-in-voting is more vulnerable to fraud,[24] but the argument that an increase in ballot boxes could lead to more fraudulent ballots is tenuous at best.


Although the disproportionate allocation of polling places was not at issue in these cases, the analysis provided by the Fifth and Sixth Circuit does not bode well for potential polling place complaints in future elections. Notably, after Shelby County v. Holder, “a total of 1,688 polling locations closed” and seven counties in Georgia now have just one polling place.[25] Yet, under the current equal protection analysis, this disparate allocation of polling places—like ballot drop boxes in the 2020 election—may be found to only present a minimal burden. Such an outcome is antithetical to equal protection both in theory and in practice.

If the equal protection of the laws means anything, it should mean that a voter in one location should not face the choice between “picking up a child from school or voting” while a voter in another location does not face that choice.[26] An equal right to vote demands more than that. The litigation over ballot drop boxes in Ohio and Texas makes clear that the burden on a citizen’s right to vote should weigh more heavily on the minds of courts and that the Equal Protection Clause’s application to election administration should be expanded.


[1] See Jesse L. Jackson & David Daley, Voter Suppression is Still One of the Greatest Obstacles to a More Just America, Time (June 12, 2020, 11:16 AM), [].

[2] See, e.g., id. (“[H]undreds of precinct closures and relocations in Georgia . . . prevent[ed] an estimated 54,000 to 85,000 voters from casting a ballot in 2018.”); Andy Sullivan, Southern U.S. States Have Closed 1,200 Polling Places in Recent Years: Rights Group, Reuters (Sept. 9, 2019), [].

[3] See, e.g., Stephanie Saul & Danny Hakim, As Counting Begins, a Flood of Mail Ballots Complicates Vote Tallies, N.Y. Times (Nov. 3, 2020), [] (“Mail-in balloting this year doubled from 2016.”).

[4] E.g., Emily Badger, Quoctrung Bui & Margot Sanger-Katz, In Election’s Final Week, Mail Delays Worsen, N.Y. Times (Nov. 2, 2020), [].

[5] See Elaine S. Povich, Rise in Use of Ballot Drop Boxes Sparks Partisan Battles, Pew Stateline (Oct. 16, 2020), [].

[6] See, e.g., Mary Harris, It Just Got Even Harder to Vote in Texas, Slate (Oct. 8, 2020), []; Julie Carr Smyth, Ohio, GOP Defend Limit on Ballot Drop Boxes to 1 Per County, ABC News (Sept. 21, 2020), [].

[7] U.S. Const. amend. XIV, § 1.

[8] Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136 (5th Cir. 2020); A. Philip Randolph Inst. of Ohio v. Larose, No. 20-4063, 2020 WL 6013117 (6th Cir. Oct. 9, 2020).

[9] Bush v. Gore, 531 U.S. 98 (2000) (applying the Equal Protection Clause to election administration for the first time).

[10] U.S. Const. amend. XIV, § 1.

[11] See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (legislative districting); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) (voter eligibility requirements); Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (poll taxes).

[12] Daniel Hays Lowenstein, Richard L. Hasen, Daniel P. Tokaji & Nicholas Stephanopoulos, Election Law: Cases and Materials 394 (6th ed. 2017) (“Bush v. Gore is the first Supreme Court case applying equal protection analysis to the ‘nuts and bolts’ of elections.”); Bush v. Gore, 531 U.S. at 104 (“The right to vote is protected in more than the initial allocation of the franchise. Equal Protection applies as well to the manner of its exercise.”).

[13] Bush v. Gore, 531 U.S. at 109.

[14] See, e.g., Edward B. Foley, The Future of Bush v. Gore?, 68 Ohio St. L.J. 925 (2007); Daniel H. Lowenstein, The Meaning of Bush v. Gore, 68 Ohio St. L.J. 1007 (2007).

[15] See, e.g., Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006) (challenging direct record electronic voting machines); Tex. League of United Latin Am. Citizens v. Hughs, No. 20-50867 (5th Cir. Oct. 12, 2020) (challenging allocation of ballot drop boxes); Crawford v. Marion Cnty. Election Bd., 533 U.S. 181 (2008) (challenging a voter ID law).

[16] See A. Philip Randolph Inst. of Ohio v. Larose, No. 20-4063, 2020 WL 6013117, at *2 (6th Cir. Oct. 9, 2020).

[17] Crawford, 533 U.S. at 190.

[18] A. Philip Randolph Inst. of Ohio, 2020 WL 6013117, at *2; Tex. League of United Latin Am. Citizens, 978 F.3d at 144.

[19] Bush v. Gore, 531 U.S. 98, 104–05 (2000).

[20] A. Philip Randolph Inst. of Ohio v. Larose, No. 1:20-CV-01908, 2020 WL 5909804, at *11 (N.D. Ohio Oct. 8, 2020).

[21] A. Philip Randolph Inst. of Ohio, 2020 WL 6013117, at **2–3; Tex. League of United Latin Am. Citizens, 978 F.3d at 146–48.

[22] A. Philip Randolph Inst. of Ohio, 2020 WL 6013117, at *2. To be fair, the interest in accuracy—that is, voters returning their ballot to the correct drop box—is important, but it should not outweigh the burden placed on voters in densely populated or large counties.

[23] Tim Elfrink & Paulina Villegas, ‘A Disgrace to Democracy’: Man Arrested in Alleged Arson of a Boston Drop Box, Wash. Post (Oct. 26, 2020), [].

[24] Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 146 (5th Cir. 2020).

[25] Nicquel Terry Ellis, Report: Supreme Court Ruling Caused Mass Polling Place Closures Across Southern USA, USA Today (Sept. 12, 2019, 2:59 PM), [].

[26] See Andy Sullivan, Southern U.S. States Have Closed 1,200 Polling Places in Recent Years: Rights Group, Reuters (Sept. 9, 2019), [].