Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities

Abstract:     
This paper is the first in a series on constitutional judicial review of what the Supreme Court has termed "electoral mechanics," defined to include "the registration and qualification of voters, the selection and eligibility of candidates, and the voting process." Over the last few years, this subject has assumed a new salience as reformist litigators challenge novel state-mandated procedures for registration, voting, and vote counting. For the first time since the 1960s, a significant number of voter-participation cases are moving through the lower courts. The courts are substantially in agreement that these claims are governed by the doctrinal framework set forth in Burdick v. Takushi, 504 U.S. 428 (1992), but there is a catch: Burdick's statement of black-letter law significantly misdescribes the Supreme Court's actual practice in its electoral mechanics jurisprudence - or so I argue here. As a result, lower courts confronted with the new generation of voter-participation claims have often pursued analytic methods that the Supreme Court is not likely to find congenial. Important avenues for doctrinal experimentation and elaboration are being overlooked. This paper develops a schematic map and a vocabulary for talking about the Supreme Court's methods in its electoral mechanics jurisprudence, one which should help lower courts (as well as litigants and law professors) to think more productively about the critical threshold question - what is the standard of review, and why? - in such cases. By way of illustration, the paper examines and critiques successive district court opinions enjoining Georgia's new photo-identification requirements for voting.

Keywords: election law, Burdick, right to vote, voting rights, undue burden, doctrine, electoral mechanics, ballot access, political parties

Accepted Paper Series