Election Law @ Moritz

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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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