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Judicial Review of Electoral Mechanics After Crawford


Chris ElmendorfMay 6 (Chris Elmendorf)
Last December, I published an article that advanced two descriptive claims about nature of the Supreme Court’s Storer-Burdick (or “electoral mechanics”) jurisprudence. The first claim, which I thought perhaps so obviously true as to be uninteresting, was that in spite of the Court’s nominal rejection of “litmus paper tests” in favor of open-ended balancing in this area, the Court’s decisions actually manifest a strong preference for simple, formal threshold tests by which challenged requirements may be sorted into the twin categories of presumptively permissible and presumptively impermissible (and subjected to lax review or strict scrutiny accordingly). My second claim, which I thought more provocative, was that Burdick misleads where it indicates that that scrutiny levels are to vary with the severity of the burden on the plaintiff’s rights of political participation.

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Case Proceeds in 6th Circuit

(May. 16, 12:49 PM) - According to a status report filed yesterday (5/15) in League of Women Voters v. Blackwell, the parties have not reached a settlement in the case, and the appellees have requested that the case proceed. The briefs in the case have already been filed, so the next step in the litigation would be an oral argument in front of the U.S. 6th Circuit Court of Appeals. A decision by the Court in this case could potentially be a major precedent. (See the EL@M case page). [Read More]

IN and NC Polling Hours Extended

(May. 6, 8:24 PM) - Judges ordered an extension of polling hours in "several" Indiana precincts and at least one in North Carolina. [Read More]

EL@M Releases KQKS: Indiana

(May. 5, 1:31 PM) - Just in time for Indiana's May 6 Presidential primary, EL@M Web Analyst Sarah Cherry presents this comprehensive analysis of Indiana's election system, including three election contest scenarios. The Indiana report is part of a developing series of reports on the election systems of swing states, reports that will later be combined with a series of interactive maps and charts to make the material more reader-friendly. [Read More]

US Supreme Court Upholds Indiana Voter ID

(Apr. 28, 11:17 AM) - Today the US Supreme Court upheld Indiana's long-disputed voter ID law (opinion). The syllabus states that the law supports legitimate state interests of deterring fraud and protecting voter confidence, and that the procedure for obtaining proper ID "does not qualify as a substantial burden on most voters' right to vote...." Check back for a full analysis.
Update: EL@M faculty Edward Foley and Daniel Tokaji have posted commentary here and here. [Read More]

PA Court Refuses to Extend Polling Hours

(Apr. 22, 6:27 PM) - A court has reportedly refused a request to extend polling hours in Philadelphia. A group called Voter Action filed the request after machines malfunctioned in eight Philadelphia precincts. [Read More]

Preliminary Reports of PA Problems

(Apr. 22, 4:32 PM) - The Philadelphia Inquirer reports that some Pennsylvania voters have been left off the polling place roster and in other cases the party affiliation listed next to their names is incorrect (see here). There are also reports of machine breakdowns and long lines (see here and here). The extent of the problems is unclear. See page 13 of this in-depth EL@M report for an analysis of how Pennsylvania law treats the problem of long lines discouraging individuals from voting. Check back for further updates. [Read More]

11th Circuit Reverses Injunction Against Florida's Voter Registration Law

(Apr. 4, 11:45 AM) - The U.S. 11th Circuit Court of Appeal has reversed the injunction issued by the district court in Florida State Conference of the NAACP v. Browning. The injunction prohibited the enforcement of Florida's voter registration law, which provides for the disqualification of any voter registration where the Social Security or driver license number on the application cannot be matched with government databases. For more information or to review the Court's decision, see the EL@M case page. [Read More]

Judge Strikes Down Michigan Primary Record Law

(Mar. 28, 11:49 AM) - U.S. District Judge Nancy Edmunds struck down a Michigan law that allowed only the Republican and Democratic parties access to voter information from the state's presidential primary. The ruling came down on Wednesday (3/28) in Green Party of Michigan v. Michigan Secretary of State (See the EL@M case page). [Read More]

Ohio Post-Election Audit Pilot Program

(Mar. 25, 8:09 PM) - Ohio Secretary of State Jennifer Brunner has developed a voluntary pilot program under which participating boards of election will conduct manual recounts of 7% of precincts. One county has already indicated its intent to participate. [Read More]

Florida Registration Deadline Upheld

(Mar. 25, 3:46 PM) - Today a federal court upheld a Florida law that requires voters to submit a completed voter registration application at least 29 days prior to Election Day (case page). Plaintiffs had argued that voters who submit incomplete applications prior to the deadline should be given the opportunity to correct those applications after the deadline and that officials should then process the completed applications in time for the election. [Read More]

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