Election Law @ Moritz

Commentary

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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Daniel P. Tokaji
Equal Vote is the nationally-acclaimed blog by Daniel P. Tokaji that focuses on election reform, the Voting Rights Act and the Help America Vote Act.

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Archived Podcasts

From September 12 through November 7, 2006, the Election Law @ Moritz program held weekly teleconferences to provide analysis of critical legal developments that occurred throughout the 2006 midterm election cycle. The archived audio files along with a brief list of topics covered can be found below.

Archived Audio

  • November 7, 2006
    Discussion of Election Day events through 2:00 p.m. EST.
  • October 24, 2006
    Discussion of: Nationwide implications of U.S. Supreme Court's decision to vacate 9th Circuit's injunction against Arizona voter ID law; new Ohio voter ID litigation; disruptive effect of pre-election litigation nationwide; lawsuits concerning challenge to Ohio gubernatorial candidate Ted Strickland's voter registration; new Ohio lawsuit re: Secretary of State's exit polling directives prohibiting polling within 100 feet of voting places.
  • October 17, 2006
    Discussion of: Voter ID litigation nationwide; Arizona voter ID appeal to US Supreme Court; Missouri Supreme Court holds voter ID laws unconstitutional; state of Georgia sends instruction to voters stating that photo ID is required after court ruled that it is not; oral arguments in Seventh Circuit to occur October 18; challenge to Ted Strickland's voter registration.
  • October 10, 2006
    Discussion of: Effect of 2006 Ohio Secretary of State's race on 2008 elections; likelihood of recounts in Ohio after 2006 elections; expected problems with voter verified paper audit trails (VVPATs); voter registration/voter ID disputes in Ohio and nationwide; Brennan Center for Justice produces disability voting access report; Professor Edward Foley proposes a benchmark for evaluating whether elections are successful; Florida dispute about whether to somehow indicate on ballots that congressman Mark Foley has dropped out of the election.
  • October 3, 2006
    Discussion of: No fault absentee voting in Ohio; Jesse Jackson's Rainbow Coalition joins lawsuit claiming that Ohio's voter ID laws are racially discriminatory; inability to challenge Ohio federal elections using Ohio election challenge procedures; new Ohio Supreme Court decision re: campaign finance disclosures.
  • September 26, 2006
    Discussion of: Texas absentee ballot litigation; Georgia appeal to state Supreme Court on voter ID law; Ohio voter registration suit concerning availability of registration materials at social services agencies; effect of delays in recounts connected to litigation; how litigation is affecting elections nationwide.
  • September 19, 2006
    Discussion of: Election Administration Commission's report on the state of the nation's election system; Princeton University evaluation of "hackability" of Diebold Accuvote TS; Cuyahoga County, Ohio, encouraging voters to vote absentee; human error on Election Day; making Election Day a holiday; using schoolteachers as poll workers; difficulties in finding an adequate number of qualified poll workers; do Election Day problems fall more heavily on certain communities?
  • September 12, 2006
    Discussion of: Maryland primary problems associated with failure to deliver sufficient equipment and provisional ballots to polls; likelihood of similar problems occurring elsewhere; Cuyahoga County, Ohio, May 2006 primary problems; voter identification conflicts nationwide; "Election Day meltdowns"; conflicts concerning third-party voter registration groups; remedies in case of "Election Day meltdown"; public's confidence in nation's voting systems.