This is an old post but I can’t help myself, I’m a law student and I’m going to explain why this doesn’t really hold water. The Anderson test is done to determine whether a particular statute is constitutional or not; showing that a different system would better advance a voter’s interests is simply not a part of the analysis. All we’re trying to find out is if a particular statute sufficiently considered voting interests. If another system would pass the test, that’s great, but all that tells us is that alternative voting systems would be constitutional if they were in force, which they’re not.
The same goes for your idea about rational basis review. I have no doubt that alternative voting systems would, if they were enacted, pass rational basis review. That is necessary, but it is not sufficient. What would be sufficient is if those laws were passed instead of the current ones.
There is no room for comparing a current statute to an alternative in rational basis review. A requirement for the government to use the least restrictive means is found in strict scrutiny, not rational basis. If there is any comparison implicit in the rational basis test, it cannot go as far as you’re hoping: it definitely changes the test to include a comparison to alternative statutes to see which is more optimal. The statute subject to review does not need to be “rational” in the sense that it is optimal, it needs to be rational in the sense that gets you from A to B. There is a rational basis for me to believe that biking to school will help me get there; it does not matter if I could get there faster by driving. Driving would also pass this rational basis test, but this does not affect the whether my choice to bike to school was a rational choice of means to get there.
I applaud you for your effort, but I would encourage you to pursue this passion in law school—law lends it self particularly poorly to self teaching.
I appreciate the comment – kinda gives me closure! I knew my comments on rational basis review were very much a stretch, but thought the Anderson test was closer to strict scrutiny. Admittedly here I was strongly influenced by Derfner and Herbert (Voting Is Speech, 34 Yale L. & Pol’y Rev. 471 (2016)) who obviously want Anderson to be stricter than rational basis. They made it seem as though the original Anderson test was substantially tougher than (and therefore not equivalent to) rational basis, but admitted that in subsequent rulings Anderson seemed to be reinterpreted more and more like simply rational basis. I wonder if there are any more recent rulings to indicate one way or another.
This is an old post but I can’t help myself, I’m a law student and I’m going to explain why this doesn’t really hold water. The Anderson test is done to determine whether a particular statute is constitutional or not; showing that a different system would better advance a voter’s interests is simply not a part of the analysis. All we’re trying to find out is if a particular statute sufficiently considered voting interests. If another system would pass the test, that’s great, but all that tells us is that alternative voting systems would be constitutional if they were in force, which they’re not.
The same goes for your idea about rational basis review. I have no doubt that alternative voting systems would, if they were enacted, pass rational basis review. That is necessary, but it is not sufficient. What would be sufficient is if those laws were passed instead of the current ones.
There is no room for comparing a current statute to an alternative in rational basis review. A requirement for the government to use the least restrictive means is found in strict scrutiny, not rational basis. If there is any comparison implicit in the rational basis test, it cannot go as far as you’re hoping: it definitely changes the test to include a comparison to alternative statutes to see which is more optimal. The statute subject to review does not need to be “rational” in the sense that it is optimal, it needs to be rational in the sense that gets you from A to B. There is a rational basis for me to believe that biking to school will help me get there; it does not matter if I could get there faster by driving. Driving would also pass this rational basis test, but this does not affect the whether my choice to bike to school was a rational choice of means to get there.
I applaud you for your effort, but I would encourage you to pursue this passion in law school—law lends it self particularly poorly to self teaching.
I appreciate the comment – kinda gives me closure! I knew my comments on rational basis review were very much a stretch, but thought the Anderson test was closer to strict scrutiny. Admittedly here I was strongly influenced by Derfner and Herbert (Voting Is Speech, 34 Yale L. & Pol’y Rev. 471 (2016)) who obviously want Anderson to be stricter than rational basis. They made it seem as though the original Anderson test was substantially tougher than (and therefore not equivalent to) rational basis, but admitted that in subsequent rulings Anderson seemed to be reinterpreted more and more like simply rational basis. I wonder if there are any more recent rulings to indicate one way or another.