Structuring judicial review of electoral mechanics: Explanations and opportunities

University of Pennsylvania Law Review

Volumn 156, Issue 2, 2007, Pages 313-394

  Elmendorf, Christopher S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 39349084145     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (488)

1. See, e.g., Cipriano v. City of Houma, 395 U.S. 701 (1969); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966); Harman v. Forssenius, 380 U.S. 528 (1965); Carrington v. Rash, 380 U.S. 89 (1965); Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders, 372 U.S. 368 (1963); Baker v. Carr, 369 U.S. 186 (1962).
2. See, e.g, Norman v. Reed, 502 U.S. 279 (1992); Munro v. Socialist Workers Party, 479 U.S. 189 (1986); Anderson v. Celebrezze, 460 U.S. 780 (1983); Clements v. Fashing, 457 U.S. 957 (1982); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Am. Party of Tex. v. White, 415 U.S. 767 (1974); Storer v. Brown, 415 U.S. 724 (1974); Lubin v. Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972).
3. E.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Buckley v. Valeo, 424 U.S. 1 (1976).
4. E.g., Cal. Democratic Party v. Jones, 530 U.S. 567 (2000); Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214 (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986); Democratic Party of the U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981).
5. Compare City of Mobile v. Bolden, 446 U.S. 55, 66-68 (1980) (holding that racial vote dilution claims brought under the Fourteenth Amendment require proof of discriminatory intent), with Thornburg v. Gingles, 478 U.S. 30, 43-46 (1986) (holding that the 1982 amendments to the Voting Rights Act authorize effects-based racial vote dilution claims).
6. This Article focuses on claims founded on the Constitution. For a discussion of such claims under the Voting Rights Act, see Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. REV. 689 (2006).
7. Tokaji, following the lexicon introduced in Pamela S. Karlan's The Rights To Vote: Some Pessimism About Formalism, 71 TEX. L. REV. 1705, 1707-08 (1993), refers to these as "voter participation" claims, as distinguished from "representation" and "governance" claims. I shall use the same terminology in this Article.
8. Common Cause/Ga. v. Billups (Common Cause/Ga. I), 406 F. Supp. 2d 1326, 1356-70 (N.D. Ga. 2005) (issuing a preliminary injunction after determining that the ID requirement effected a "severe burden" on the right to vote, and was tantamount to a poll tax).
9. Weinschenk v. State, 203 S.W.3d 201, 217-19 (Mo. 2006) (en banc). This case was nominally decided on state constitutional grounds, but the opinion largely follows the doctrinal framework employed in the Supreme Court's electoral mechanics jurisprudence, under which "severe restrictions" on voting rights trigger strict scrutiny. See id. at 212-16 (discussing these restrictions, explaining the application of strict scrutiny, and comparing cases decided under the federal Constitution).
10. Boustani v. Blackwell, 460 F. Supp. 2d 822, 825-27 (N.D. Ohio 2006) (striking down an ID requirement for naturalized citizens whose citizenship is challenged at the polls).
11. Ass'n of Cmty. Orgs, for Reform Now v. Cox, No. 06-1891, slip op. at 16-17 (N.D. Ga. Sept. 28, 2006) (order granting preliminary injunction) (invalidating a regulation that required persons registering to vote to seal their completed application prior to submitting it to any person other than the state registrar or deputy registrar, and that prohibited the copying of completed voter registration applications); Project Vote v. Blackwell, 455 F. Supp. 2d 694 (N.D. Ohio 2006) (entering a preliminary injunction against a law that established registration and training requirements, backed by criminal penalties, for paid participants in voter registration drives); League of Women Voters of FIa. v. Cobb, 447 F. Supp. 2d 1314 (S.D. Fla. 2006) (issuing a preliminary injunction against a law that fined voter registration organizations for late submissions).
12. Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), vacated en banc as moot, 473 F.3d 692 (6th Cir. 2007).
13. See, e.g., Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007); Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007); Common Cause/Ga. v. Billups (Common Cause/Ga. III), 504 F. Supp. 2d 1333 (N.D. Ga. 2007); Bay County Democratic Party v. Land, 347 F. Supp. 2d 404 (E.D. Mich. 2004); Colo. Common Cause v. Davidson, No. 04CV7709, 2004 WL 2360485 (Colo. Dist. Ct. Oct. 18, 2004).
14. Stewart, 444 F.3d at 880-98 (Gilman, J., dissenting).
15. 504 U.S. 428 (1992).
16. Id. at 433 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Note that neither Burdick nor Anderson uses the term "electoral mechanics" to describe "the registration and qualifications of voters, the selection and eligibility of candidates, and the voting process." My choice of terminology is suggested by McIntyre v. Ohio Elections Commission, 514 U.S. 334, 345 (1995), which distinguished Anderson on the ground that the ban on anonymous political leafleting at issue in McIntyre did not "control the mechanics of the electoral process," but rather was a content-based "regulation of pure speech."
17. With the exception of Stewart, in each of the federal cases cited in notes 7-13, supra, the court applied the doctrinal framework of Burdick or Anderson (the principal case on which the Burdick Court relied). For other recent decisions from the U.S. courts of appeals applying Burdick to voter participation claims, see Wexler v. Anderson, 452 F.3d 1226, 1232-33 (11th Cir. 2006) (rejecting a constitutional challenge to the state's use of touchscreen voting without paper verification); Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) (rejecting an asserted constitutional right of working mothers to vote by absentee ballot); Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003) (rejecting a constitutional challenge to touchscreen balloting); Werme v. Merrill, 84 F.3d 479, 483-84 (1st Cir. 1996) (rejecting a constitutional challenge to requirement that certain poll workers be appointed by the two largest political parties); Ayers-Schaffner v. DiStefano, 37 F.3d 726, 729-30 (1st Cir. 1994) (holding it unconstitutional to exclude from a remedial election qualified voters who failed to participate in the original, invalid election). See also Greidinger v. Davis, 988 F.2d 1344, 1350-55 (4th Cir. 1993) (applying Anderson and holding unconstitutional a voter registration law that made registrants' Social Security numbers publicly available).
18. However, a few judges have read Bush v. Gore, 531 U.S. 98 (2000), as exempting from the Burdick framework claims that a state has violated the Equal Protection Clause by using different voting or vote-counting procedures in different geographic areas. See Stewart, 444 F.3d at 861-62; Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 895-96 (9th Cir. 2003), vacated on reh'g en banc, 344 F.3d 914 (9th Cir. 2003); cf. Richard L. Hasen, After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in the Post-Bush v. Gore Equal Protection Challenges, in RETHINKING THE VOTE 185, 188 (Ann N. Crigler et al. eds., 2004) (arguing that Bush departs from the Burdick jurisprudence).
19. But see Wexler, 452 F.3d at 1232-33 (applying Burdick to a constitutional challenge to the use of different recount techniques in different regions);
20. Stewart, 444 F.3d at 886-91 (Gilman, J., dissenting) (rejecting the extension of Bush beyond the narrow context of court-ordered recounts);
21. Weber, 347 F.3d at 1106 (rejecting the notion that the state's use of different voting technologies in different areas necessitates heightened scrutiny).
22. Other than the Bush-based cases, there is only one circuit court decision, post-Burdick, that fails to apply Burdick or Anderson in analyzing allegedly unconstitutional barriers to voter participation. This case, Charfauros v. Board of Elections, 249 F.3d 941 (9th Cir. 2001), is predicated on the assumption that "any restrictions" on the right to vote trigger strict scrutiny.
23. Id. at 951. That assumption is not tenable after Burdick.
24. See, e.g., McClure v. Galvin, 386 F.3d 36, 41 (1st Cir. 2004) ("[T]he Supreme Court has suggested something of a sliding scale approach and has noted that there is no 'bright line' to separate unconstitutional state election laws from constitutional ones." (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 350 (1997)); Sw. Voter Registration Educ. Project, 344 F.3d at 899 ("Burdick... described [a] continuum of review...."); Fishbeck v. Hechler, 85 F.3d 162, 166 (4th Cir. 1996) ("[I]n Burdick v. Takushi, the Supreme Court prescribed a sliding scale analysis...." (citation omitted)); Republican Party of Ark. v. Faulkner County, 49 F.3d 1289, 1296-97 (8th Cir. 1995) (characterizing Burdick as an example of "sliding-scale" scrutiny applied by the Supreme Court in electoral mechanics cases).
25. Although it is unambiguous that Burdick prescribes strict scrutiny for "severe" burdens, the standard of review properly applied in nonsevere-burden cases is not entirely clear. See infra notes 65-66 and accompanying text; Part II.C.2.
26. 413 F. Supp. 2d 119 (D. Conn. 2005).
27. Common Cause/Ga. v. Billups (Common Cause/Ga. I), 406 F. Supp. 2d 1326 (N.D. Ga. 2005); see also Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377-78 (S.D. Fla. 2004) (deeming a requirement that absentee ballots be returned by 7:00 p.m. on Election Day a "slight" burden, on the authority of Supreme Court decisions upholding time deadlines for political participation).
28. 410 U.S. 679, 680-81 (1973).
29. Memorandum of Law in Support of Plaintiffs' Request for a Declaration of Unconstitutionality at 56-58, Bysiewicz, 413 F. Supp. 2d 119 (No. 04-1624), 2005 WL 4113331.
30. Id. at 8-13.
31. Bysiewicz, 413 F. Supp. 2d at 145-48.
32. Common Cause/Ga. I, 406 F. Supp. 2d at 1366-70.
33. 383 U.S. 663 (1966).
34. Common Cause/Ga. I, 406 F. Supp. 2d at 1368.
35. Federal courts have rejected this analogy as to every ID requirement other than the one enacted by Georgia in 2005. See, e.g., Crawford v. Marion County Election Bd., 472 F.3d 949, 952 (7th Cir. 2007) ("The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state's interest in defraying... election[] [costs] or... limiting the franchise to [certain] people ... [or] excluding poor people or in discouraging [minorities]."); Gonzalez v. Arizona, No. CV 06-1268-PHX, 2006 WL 3627297 at *4-6 (D. Ariz. Sept. 11, 2006) (declining to characterize Arizona's requirements for registration and voting as a poll tax) ; Common Cause/Ga. v. Billups (Common Cause/Ga. II), 439 F. Supp. 2d 1294, 1352-55 (N.D. Ga. 2006) (rejecting the poll-tax characterization of a revised Georgia ID requirement enacted in 2006); Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 826-28 (S.D. Ind. 2006) (rejecting the poll-tax characterization of an Indiana ID requirement).
36. In Common Cause/Georgia I, such anticipated impacts provided an alternative ground for applying strict scrutiny and striking down the law. See 406 F. Supp. 2d at 1362-66. For other cases in which courts based the standard of review on the actual or anticipated impact (on voting or political association) of the challenged electoral regulation, or the lack of evidence of such impacts, see infra notes 30-31.
37. Cf. Spencer Overton, Voter Identification, 105 MICH. L. REV. 631, 663-69 (2007) (commending empirical approaches to the legal analysis of voter ID requirements).
38. See, e.g., Ass'n of Cmty. Orgs, for Reform Now v. Cox, No. 1:06-CV-1891-JTC, 2006 U.S. Dist. LEXIS 87080, at *16-18 (N.D. Ga. Sept. 27, 2006) (applying heightened scrutiny to voter registration regulations that "impair [ed] the ability of some of the Plaintiffs to obtain funding for voter registration drives" and caused one plaintiff organization not to conduct any drives during the year of the suit); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 701-07 (N.D. Ohio 2006) (applying heightened scrutiny to various regulations of voter registration by independent organizations, after concluding that the challenged regulations substantially hindered the plaintiffs' efforts to register and turn out new voters) ; League of Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314, 1332-34 (S.D. Fla. 2006) (applying heightened scrutiny to regulations of voter registration drives, because (i) "[t]here is no dispute that Plaintiffs, all of whom are dedicated to increasing voter registration and voting, have shut down their voter registration drives because of the Law's... penalties," and (ii) "Plaintiffs' testimony has demonstrated that the success of voter registration drives is severely undermined when third party organizations cannot collect voter registration applications");
39. Common Cause/Ga. II, 439 F. Supp. 2d at 1345-52 (applying exacting scrutiny to Georgia's photo ID requirement, principally because "[t]he evidence in the record demonstrates that many voters who lack an acceptable Photo ID for in-person voting are elderly, infirm, or poor, and lack reliable transportation to a county registrar's office");
40. Spencer v. Blackwell, 347 F. Supp. 2d 528, 535 (S.D. Ohio 2004) (foreseeing "an extraordinary and potentially disastrous risk of intimidation and delay," amounting to a "severe" burden on the right to vote, from the novel application of an Ohio statute authorizing political parties to designate polling place challengers), rev'd sub nom. Summit County Democratic Cent. and Executive Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004) (concluding that the possibility of "longer lines... resulting] from delays and confusion" was unlikely to constitute a severe burden) ; cf. Weinschenk v. State, 203 S.W.3d 201, 214-15 (Mo. 2006) (en banc) (deeming strict scrutiny of Missouri's photo ID requirement appropriate because, inter alia, the procedures for obtaining an ID were "cumbersome" and thus likely to exclude voters who were not adept at navigating bureaucracies (internal quotation marks omitted) (quoting Harman v. Forssenius, 380 U.S. 528, 541 (1965))).
41. See, e.g., Crawford v. Marion County Election Bd., 472 F.3d 949, 952 (7th Cir. 2007) ("The fewer the people who will actually disfranchise themselves rather than go to the bother and ... expense of obtaining a photo ID, the less of a showing the state need make to justify the law."); Wexler v. Anderson, 452 F.3d 1226, 1232-33 (11th Cir. 2006) (applying lax scrutiny to the plaintiff's claim that the unavailability of manual recounts in those counties using touchscreen voting violates the Equal Protection Clause, reasoning that the plaintiffs "did not plead that voters in touchscreen counties are less likely to cast effective votes due to the alleged lack of a meaningful manual recount procedure"); Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003) (applying lenient scrutiny to the state's certification of electronic voting machines, after deriding as speculative the plaintiff's argument that this technology must be deemed severely burdensome due to the possibility of massive fraud); Werme v. Merrill, 84 F.3d 479, 484-85 (1st Cir. 1996) (deeming "slight" the burden imposed by a law providing for major-party appointment of poll workers because, inter alia, "the record evidence offers no reason to believe that minority parties are at special or undue risk because they have no right to appoint election inspectors and ballot clerks"); Gonzalez v. Arizona, No. CV 06-1268-PHX, 2006 WL 3627297 at *7 (D. Ariz. Sept. 11, 2006) ("Assessing the severity of the restrictions in this case requires an intense factual inquiry. Plaintiffs presented some evidence that hundreds, possibly thousands, of individuals will not be able to secure the requisite identification to enable them to vote. But... it is not clear what percentage of these individuals wish to vote but are actually unable to obtain identification.... While not wishing to downplay the burden on certain individuals, Plaintiffs have not established that Proposition 200 represents a 'severe' burden."); Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 822 (S.D. Ind. 2006) (applying lenient review to the plaintiffs' voter ID challenge because the "[p]laintiffs ha[d] failed to submit (1) evidence of individuals who will be unable to vote or who will be forced to undertake appreciable burdens in order to vote; and (2) any statistics or aggregate data indicating particular groups who will be unable to vote or will be forced to undertake appreciable burdens in order to vote"); Friedman v. Snipes, 345 F. Supp. 2d 1356, 1378 (S.D. FIa. 2004) (judging a requirement that absentee ballots be returned by 7:00 p.m. on Election Day a "slight restriction[]"); League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 828-31 (N.D. Ohio 2004) (upholding an ID requirement for firsttime voters after concluding that few voters would be affected and the burden would not be hard for them to surmount).
42. In the "hard evidence" camp are, for example, Indiana Democratic Party v. Rokita and Gonzalez v. Arizona. Conjectural reasoning about burdens may be found in, for example, Crawford v. Marion County Election Board and Common Cause/Georgia I.
43. I do not claim that the lower courts are in agreement regarding what impacts properly trigger heightened scrutiny. Some courts seem to focus on the participation bottom line (i.e., the extent to which the challenged requirement reduces turnout among eligible voters); others are concerned instead with the number and distribution of voters who face hurdles that the judge deems "appreciable" as such. I take up these and other distinctions in the lower courts' thinking in a forthcoming paper.
44. Bullock v. Carter, 405 U.S. 134, 143 (1972), quoted with approval in Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) and Clements v. Fashing, 457 U.S. 957, 963 (1982) (plurality opinion).
45. Storer v. Brown, 415 U.S. 724, 730 (1974), quoted with approval in Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999) and Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986).
46. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997).
47. Storer v. Brown, 415 U.S. 724, 730 (1974).
48. Others have noted formalistic tendencies in the Court's election law jurisprudence. See, e.g., Richard H. Pildes, Commentary, Formalism andFunctionalism in the Constitutional Law of Politics, 35 CONN. L. REV. 1525 (2003). But whereas Pildes sees the Court's election law formalism as a consequence of "analogizing from other areas of law to work out the meaning of the rights of politics," and hence as "fail[ing] to treat democratic politics as a distinct domain ... in which the meaning of rights ought to be worked out with references to the function and purposes of the arena of democracy itself," id. at 1529, I am more sanguine. The Court's electoral mechanics jurisprudence may not be as ambitiously protective of "fair political competition" as Pildes would like, but it does, I shall argue, evince an appreciation of structural purposes and prudential concerns that are distinct to election law. It is doctrinally formalistic, but (often) functionally purposive.
49. Whether the courts ought to intervene to guard aggregate/structural properties of the electoral system, or just to protect individual rights, has been the subject of a decade-long debate among election law scholars. See generally Guy-Uriel E. Charles, Judging the Law of Politics, 103 MICH. L. REV. 1099 (2005) (reviewing RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW (2003) ) [hereinafter Charles, Judging the Law of Politics] (presenting a perceptive overview and synthesis of the rights/structure debate).
50. The leading protagonists in this debate seem to agree on a descriptive level, however, that the Court has not been much concerned with structure. See generally RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW (2003) [hereinafter HASEN, THE SUPREME COURT AND ELECTION LAW] (defending the Court's supposed emphasis on individual rights at the expense of structure);
51. Richard L. Hasen, The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell, 68 OHIO ST. L.J. 849, 869-77 (2007) [hereinafter Hasen, The Newer Incoherence] (disputing the hypothesis that Randall signals a turn toward structuralism in the Court's campaign finance jurisprudence);
52. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998) (advocating that the Court "invert the [prevailing] focus of constitutional doctrine from the foreground of rights and equality to the background rules that structure partisan political competition");
53. Pildes, supra note 38. But Charles suggests that in two areas-malapportionment and racial gerrymandering-"the Court uses rightsspeak ... instrumentally [both] to mask and [to] rectify structural concerns."
54. Charles, Judging the Law of Politics, supra at 1128;
55. see also Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601, 657-70 (2007)
56. [hereinafter Charles, Democracy and Distortion] (elaborating on this idea).
57. My take on the electoral mechanics case law is broadly consistent with Charles's account of the malapportionment and Voting Rights Act case law. The Court uses the language of rights but its decisions are often easier to understand from a structural perspective (i.e., one concerned with the overall functioning of the political process). See also Pamela S. Karlan, Nothing Personal: The Evolution of the Newest Equal Protection from Shaw v. Reno to Bush v. Gore, 79 N.C. L. REV. 1345, 1346 (2001) (arguing that in the Shaw line of cases and in Bush v. Gore, the Court "deploy [ed] the Equal Protection Clause not to protect the rights of an identifiable group of individuals, particularly a group unable to protect itself through operation of the normal political processes, but rather to regulate the institutional arrangements within which politics is conducted" (footnote omitted)).
58. Cf. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring) (comparing precedents involving "voting and associational interests" with precedents about "core political speech," and observing that in the former domain, "our cases are much harder to predict, and I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from them").
59. A couple of commentators have suggested that the severe/lesser burden inquiry is utterly without structure and "inherently subjective." Lowell J. Schiller, Recent Development, Imposing Necessary Boundaries on Judicial Discretion in Ballot Access Cases: Clingman v. Beaver, 125 S. Ct. 2029 (2005), 29 HARV.J.L. & PUB. POL'Y 331, 338 (2005);
60. see also Joshua A. Douglas, Note, A Vote for Clarity: Updating the Supreme Court's Severe Burden Test for State Election Regulations that Adversely Impact an Individual's Right To Vote, 75 GEO. WASH. L. REV. 372, 381-82 (2007). I consider this view unjustifiably grim. To be sure, there is no single "coherent distinction" that unifies all the precedents. Buckley, 525 U.S. at 208. But as I endeavor to show in the next Part, the cases do exhibit characteristic modes of analysis, and there is enough structure in them to infer lessons for lower courts.
61. The domains in question concern campaign finance and the design of legislative districts. The reader may ask, "Are these not species of electoral mechanics?" It is a fair question. I do not attempt in this Article to define the conceptual boundaries of electoral mechanics other than to note that the term must encompass (per the Court) "the registration and qualifications of voters, the selection and eligibility of candidates, and the voting process." See supra note 15 and accompanying text. For whatever reasons, the Court has not attempted to integrate its campaign finance, gerrymandering, and electoral mechanics cases into a unified body of law - though there are some recent indications of a convergence between the electoral mechanics and campaigncontribution-limit case law.
62. See infra Part II.C.3.
63. 126 S. Ct. 2479 (2006).
64. Id. at 2492.
65. Id. at 2492-93.
66. 541 U.S. 267 (2004).
67. Id. at 344 (Souter, J., dissenting).
68. See Common Cause/Ga. v. Billups (Common Cause/Ga. II), 439 F. Supp. 2d 1294, 1304-06 (N.D. Ga. 2005).
69. Crawford v. Marion County Election Bd., 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting).
70. Rather, toward the end of his opinion, Judge Evans sought to justify heightened scrutiny on the basis of his sense that the law would make voting "significantly more difficult for some eligible voters" - mostly those who are "poor, elderly, minorities, disabled, or some combination thereof." Id. at 955-97. His sense that the law would have this effect was perhaps grounded in his attribution of exclusionary purposes to the Indiana legislature. But he did not make the connection explicit, nor did he offer an account of the circumstances under which judges may properly infer partisan exclusionary intent when it is not admitted.
71. See Crawford v. Marion County Election Bd., 484 F.3d 436, 437 (7th Cir. 2007) (Wood, J., dissenting) ("[W]hen there is a serious risk that an election law has been passed with the intent of imposing an additional significant burden on the right to vote of a specific group of voters, the court must apply strict scrutiny." (emphasis added)).
72. Id. at 437-38 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1991)) (internal quotation marks omitted). There is, I shall suggest, much to be said for grounding heightened scrutiny on indicia of impermissible purposes,
73. see infra Parts II.C and III.A, but Judge Wood's opinion makes little headway in developing this idea.
74. But see Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 HASTINGS L.J. 867, 955-56 (1994) (suggesting that some type of limiting threshold inquiry into the nature and extent of burdens on fundamental rights becomes a practical and political necessity insofar as the Constitution is interpreted to protect a broad range of interests).
75. Storer v. Brown, 415 U.S. 724, 730 (1974).
76. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
77. Burdick v. Takushi, 504 U.S. 428, 433 (1992).
78. Cf. Brownstein, supra note 53, at 919 (arguing that the deferential "balancing" standard of review under Burdick should be reserved for "laws serving some uniquely important, [election-related] interest, such as the special goals of electoral equity and efficiency"; other laws that burden voting or associational rights would receive strict scrutiny).
79. Worries about election law ossification have been a persistent theme in the prescriptive doctrinal work of Richard Hasen. See, e.g., HASEN, THE SUPREME COURT AND ELECTION LAW, supra note 39, at 101-56 (arguing that Supreme Court deference to legislative value judgments is appropriate, and would remove the danger of ossification).
80. Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006).
81. Christopher S. Elmendorf, Election Commissions and Electoral Reform: An Overview, 5 ELECTION LJ. 425, 438-39 (2006).
82. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 103 (1980).
83. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citations omitted) (internal quotation marks omitted).
84. Alan Brownstein has argued, on the contrary, that the juxtaposition of "severe" and "reasonable, nondiscriminatory" restrictions in this passage means that Burdick contemplates strict scrutiny not only for laws whose impact is severe, but also for "laws that serve impermissible (i.e., discriminatory) goals or that burden rights beyond the state's legitimate need to manage the conduct of elections." Brownstein, supra note 53, at 918. His is not, I think, an intuitive reading. In the first paragraph I have quoted, the Court clearly distinguishes between regulatory "burdens" and public benefits ("justifications"). It is therefore odd to read the Court's use of the term "severe restrictions" in the next paragraph (defined with reference to "the extent to which [the] challenged regulation burdens First and Fourteenth Amendment rights," Burdick, 504 U.S. at 434 (emphasis added), as impliedly encompassing the state purpose behind and the public benefits of the challenged law. Moreover, Brownstein's reading converts strict scrutiny into a conclusion (equivalent to a holding of unconstitutionality), rather than treating it as a standard of review. Yet in the electoral mechanics context, strict scrutiny need not be "fatal in fact."
85. See infra text accompanying notes 113-118 (explaining "best practices strict scrutiny"). And for what it's worth, in the cases following Burdick, the Supreme Court has almost universally begun by characterizing the burden as severe or slight before turning to the state's asserted justifications for the law.
86. See infra note 66.Although I disagree with Brownstein concerning the most natural, face-value reading of Burdick, I agree with him that the electoral mechanics case law, taken as a whole, does invite arguments from legislative purpose.
87. See infra Part II.C.
88. Burdick, 504 U.S. at 434.
89. I shall have something to say about discriminatory but nonsevere burdens in Part II.C.2, infra.
90. Since Burdick, in every case but one in which the Court has assayed the burden of an election law for standard-of-review purposes, it has characterized the burden as either "severe" or "slight" (sometimes "minor" or "trivial"). If the Court deems the burden slight, it proceeds with de facto rational basis review. The Court omits the magic words "rational basis," and it generally does not cite to foundational examples of anything-passes review like Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955), but neither does it seriously probe the connection between the state's asserted interests and the regulations at issue. The Court has repeatedly excused the state of any obligation to come forward with empirical evidence to justify burdens characterized as minor. See, e.g., Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986) ("We have never required a State to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access") ;
91. cf. HASEN, THE SUPREME COURT AND ELECTION LAW, supra note 39, at 96 ("The common thread [in ballotaccess and related cases] is that although the Court appears to have 'balanced' [interests] , the 'balancing' lowered the level of scrutiny to be applied whenever the Court viewed the ballot-access rules (or rules governing minor parties) as imposing only a small burden on the parties.").
92. Timmons v. Twin Cities Area New Party was the exceptional case in which the Court deemed the burden at issue - Minnesota's ban on fusion candidacies - "not severe" yet "not trivial." 520 U.S. 351, 363 (1997). Having so characterized the burden, however, the Court attached no apparent significance to its intermediate status. Timmons sustained the fusion ban on the basis of a hypothetical parade of horribles.
93. See id. at 364-65 ("[I]ts fusion ban is justified by its interests in avoiding voter confusion, promoting candidate competition ... , preventing electoral distortions and ballot manipulations, and discouraging party splintering and 'unrestrained factionalism.'"). The Court did not require Minnesota to come forward with any empirical evidence to back up the claimed connection between the fusion ban and the state's legitimate interests, nor did the Court concern itself with how fusion candidacies actually affect the political process in the states that accommodates the practice.
94. See generally Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States To Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (discussing the significance of Timmons).
95. Timmons might be thought to stand for the proposition that rational basis is the true (albeit de facto) standard of review for all electoral mechanics cases in which the burden at issue has not been shown to be severe. But this position is untenable. For one, if the Court had really meant to consign all nonsevere burdens to rational basis scrutiny, it probably would have said as much. More importantly, ever since Storer, the Court has emphasized that its standard of review in election law cases is "flexible." As the Court put it in Burdick, "the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights." 504 U.S. at 434 (emphasis added). The word "extent" connotes a spectrum of relevant variation, not a binary divide. So too does Burdick's oddly circumspect and circular suggestion that in nonsevere-burden cases, "reasonable, nondiscriminatory restrictions" will "generally" be justified by "important regulatory interests."
96. Id. (internal quotation marks omitted).
97. At the very least, this invites plaintiffs to argue that the restriction
98. cf. Brownstein, supra note 53, at 917-19 (1994) (proposing that Burdick is best interpreted as impliedly providing for three tiers of review: strict scrutiny for severe and/or intentionally discriminatory burdens, intermediate balancing for significant but not severe or discriminatory burdens, and rational basis for slight, nondiscriminatory burdens).
99. Finally, there is the puzzle of Bush v. Gore, 531 U.S. 98 (2000), which found an Equal Protection violation in the recount order of the Florida Supreme Court following the 2000 presidential election. The Florida court had specified that the "intent of the voter" was to guide the recounting of ballots, but the court did not "formulat[e] uniform rules" and "specific standards" to ensure the "equal application" of the intentof-the-voter principle.
100. Bush, 531 U.S. at 105-06. As a result, recount practices varied from one county to the next, and even within counties as the recount progressed.
101. See id. at 106-09 (discussing the practices of Miami-Dade County, Palm Beach County, and Broward County).
102. Bush deemed this inconsistent treatment of ballots to contravene the Constitution's "rudimentary requirements of equal treatment and fundamental fairness" with respect to voting. Id. at 109.
103. Among the many puzzling features of Bush is that it does not even cite to the Storer-Burdick line of cases, notwithstanding that recount procedures would seem to be paradigmatic electoral mechanics regulations. Nor does the opinion explain the applicable standard of review. Rather, Bush posits only that the state has an "obligation to avoid arbitrary and disparate treatment of the members of its electorate." Id. at 105.
104. It was feasible to set discretion-confining rules for the recounting of ballots, and the Florida court had failed to do so - end of story. (Justice Souter, explaining his agreement with the plurality's Equal Protection holding, said he could "conceive of no legitimate state interest served by" applying different rules for ascertaining the intent of the voter "to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics." Id. at 134 (Souter, J., dissenting), This is of course a stretch - the Florida court might well have pointed to its lack of expertise, the press of time, or other factors as a "conceivable rational basis" for leaving the design of recount rules to local canvassing boards. So like the plurality, Souter was applying some form of moderately heightened scrutiny.)
105. Bush is extremely hard to make sense of if one understands the application of heightened judicial scrutiny - anything more than the vacuous rational basis review applied to economic legislation - to depend on the plaintiff first demonstrating a "significant" or "severe" burden. There had been no showing in Bush that any county canvassing board was using demonstrably inferior recount rules. But Bush's failure to discuss Burdick, and the Court's use of marginally heightened scrutiny, is unobjectionable if the state is understood to have a minimal obligation to avoid arbitrarily disparate treatment of participants in the political process, without regard to demonstrable consequences or burdens. Put differently, the import of Bush may be that "rational basis plus," rather than ordinary rational basis, is the default standard of review in electoral mechanics cases.
106. 415 U.S. 724 (1974).
107. Id. at 730 (alteration to internal quotation in original) (citations omitted) (quoting Dunn v. Blumstein, 403 U.S. 330, 348 (1972) and Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
108. 450 U.S. 107 (1981).
109. Id. at 123.
110. Id. at 123-24 (footnote omitted).
111. Cf. id. at 138 (Powell, J., dissenting) (criticizing the majority for "upholding a First Amendment claim by one of the two major parties without any serious inquiry into the extent of the burden on associational freedoms").
112. 544 U.S. 581 (2005).
113. 479 U.S. 208 (1986).
114. Clingman, 544 U.S. at 591 (emphasis added). Justice Thomas spoke for a six-Justice majority in this portion of his opinion.
115. Id. at 592.
116. Storer v. Brown, 415 U.S. 724, 730 (1974) (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
117. Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring).
118. Id.
119. Cf. Bush v. Gore, 531 U.S. 98, 153-58 (2000) (Breyer, J., dissenting) (predicting damage to the Court's reputation resulting from its disposition of this case). But see James L. Gibson et al., The Supreme Court and the U.S. Presidential Election of 2000: Wounds, Self-inflicted or Otherwise?, 33 BRIT. J. POL. SCI. 535, 542-43 (2003) (finding that the decision had little impact on "diffuse support" for the Supreme Court). In other contexts, the Court has sometimes linked its holdings, rules, or rhetoric to anxieties about public confidence injudicial impartiality. See, e.g., Mistretta v. United States, 488 U.S. 361, 407 (1989) ("The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.");
120. In re Murchison, 349 U.S. 133, 136 (1955) ("[The requirements of due process] may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.'") (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
121. Cf. Michael Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 STAN. L. & POL'Y REV. 353, 371-75 (2003) (inferring from the Court's rhetoric in Burdick and associated cases that empirical questions about the "extent" to which "the right to vote [is] affected" would figure centrally in the disposition of contemplated voting-procedure challenges brought by people with disabilities).
122. Cf. Issacharoff & Pildes, supra note 39, at 670-74 (treating Burdick as emblematic of the Court's putative focus on individual rights rather than structure in political process cases). I disagree with this reading of the substance of the Court's decision in Burdick,
123. see infra notes 162-171 and accompanying text, but it is a fair inference from Burdick's nominal "burden on rights" prescription for setting scrutiny levels (given the individualistic thrust of most fundamental rights adjudication).
124. See supra notes 35-37 and accompanying text. The notable exception is Bush v. Gore, which does not even mention Burdick. On reconciling Bush with the Burdick jurisprudence,
125. see supra note 66.
126. See Clingman v. Beaver, 544 U.S. 581, 591-92 (2005). In my view, the pre-Burdick cases that are now (arguably) anomalous include not only Tashjian and La Follette,
127. see supra notes 69-71 and accompanying text, but also Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), and, possibly, Anderson v. Celebrezze, 460 U.S. 780 (1983). However, it is possible that some or all of these cases could be saved through revisionist accounts of the basis of which the Court applied heightened scrutiny. Cf. infra notes 104, 288-289, and accompanying text.
128. Storer v. Brown, 415 U.S. 724, 730 (1974).
129. This trio dissented in many election law cases at the dawn of the Storer era, and often thereafter. See, e.g., Marston v. Lewis, 410 U.S. 679, 682 (1973) (Marshall, J., dissenting); Burns v. Fortson, 410 U.S. 686, 688 (1973) (Marshall, J., dissenting); Rosario v. Rockefeller, 410 U.S. 752, 763 (1973) (Powell, J., dissenting); O'Brien v. Skinner, 414 U.S. 524, 531 (1974) (Marshall, J., dissenting); Storer, 415 U.S. at 755 (Brennan, J., dissenting).
130. This is a theme of Stevens's jurisprudence generally. See Andrew M. Siegel, Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation, 74 FORDHAM L. REV. 2339, 2340 (2006) (stating that Justice Stevens's equal protection methodology disfavors "the use of tiers of review, multi-factor balancing tests, or any other mediating doctrine"). Perhaps the best example in the electoral mechanics jurisprudence is Stevens's opinion for a five-Justice majority in Anderson v. Celebrezze, 460 U.S. 780 (1983).
131. 489 U.S. 214 (1989).
132. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359-60 (1997) (approving of Eu's protections for "political parties' internal affairs and core associational activities"); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (approving of Eu for "vigorously affirm [ing] the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party 'selectfs] a standard bearer who best represents the party's ideologies and preferences'" (quoting Eu, 489 U.S. at 224).
133. The case was decided 8-0, with the Chief Justice not participating.
134. The statutory provisions at issue dictate [d] the size and composition of the state central committees; set forth rules governing the selection and removal of committee members; fix[ed] the maximum term of office for the chair of the state central committee; require [d] that the chair rotate between residents of northern and southern California; speci[ied] the time and place of committee meetings; and limit[ed] the dues parties may impose on members. Eu, 489 U.S. at 218-19 (footnote omitted).
135. Id. at 222, 229.
136. Id. at 222-23 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968));
137. see also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 209-10 (1999) (Thomas, J., concurring) (arguing that any burden on core political speech is subject to strict scrutiny).
138. The court suggested that [a] party might decide, for example, that it will be more effective if a greater number of its official leaders are local activists rather than Washington-based elected officials. The Code prevents such a change. A party might also decide that the state central committee chair needs more than two years to successfully formulate and implement policy. The Code prevents such an extension of the chair's term of office, A party might find that a resident of northern California would be particularly effective in promoting the party's message and in unifying the party. The Code prevents her from chairing the state central committee unless the preceding chair was from the southern part of the State. Eu, 489 U.S. at 230.
139. Id. at 230 n.20.
140. 520 U.S. 351 (1997).
141. Twin Cities Area New Party v. McKenna, 73 F.3d 196, 197-99 (8th Cir. 1996) (discussing the history of fusion candidacies in the United States). (A fusion ban prevents political parties from nominating candidates who have agreed to serve as another party's nominee.)
142. Id. at 199.
143. Timmons, 520 U.S. at 359-63 (citing Eu, 489 U.S. at 223).
144. Id. at 371 (Stevens, J., dissenting).
145. Id.
146. Id. at 373.
147. Id. at 371-72 (quoting Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 224 (1989)). Stevens's opinion displays no interest in the empirical question of whether minor parties' second-choice nominees (i.e., the nominees chosen under a fusion ban) tend to less effectively represent the views of party members. There is something almost disingenuous about Stevens's reasoning: the New Party objected to the fusion ban not because it prevented the party from finding candidates who would represent the views of party members as effectively as would the Democratic nominees, but rather because the fusion ban deprived the New Party of a way of building electoral support for its "brand" and platform without calling upon voters to waste their votes on an unelectable candidate.
148. It also becomes feasible to rehabilitate certain post-Warren Court but preBurdick electoral mechanics cases, such as La Follette, in which the Court said the magnitude of the burden was irrelevant. Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 134 (1981).
149. Cipriano v. City of Houma, 395 U.S. 701 (1969); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966); Harman v. Forssenius, 380 U.S. 528 (1965); see also Hill v. Stone, 421 U.S. 289 (1975) (striking down an allegedly trivial property-based franchise limitation); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (holding that the city may not reserve franchise to property owners in certain bond referenda). Only if the "government" in question is a proprietary enterprise will the Court countenance property-based limitations on the franchise.
150. See generally Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339, 359-84 (1993) (discussing special districts and the model of proprietary government).
151. Lubin v. Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972).
152. Quinn v. Millsap, 491 U.S. 95 (1989); Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977); Turner v. Fouche, 396 U.S. 346 (1970). Nominally, the Court applied rational basis review in these appointments decisions-but that pretense is just silly. These cases are much better understood as reflecting a virtually categorical rule against state efforts to condition political participation upon ownership of property or payment of a fee.
153. Richard H. Pildes, The Constitutionalization of Democratic Politics, 188 HARV. L. REV. 28, 105-08 (2004).
154. Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 TEX. L. REV. 1741 (1993).
155. David Schleicher, "Politics as Markets" Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections, 14 SUP. CT. ECON. REV. 163 (2006).
156. See, e.g., Lubin, 415 U.S. at 717-18 ("[Even] if the filing fee is more moderate, as here, impecunious but serious candidates may be prevented from running.... Whatever may be the political mood at any given time, our tradition has been one of hospitality toward all candidates without regard to their economic status.");
157. Bullock, 405 U.S. at 144 ("Not only are voters substantially limited in their choice of candidates [by the candidate filing-fee requirement], but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system.") ;
158. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667-68 (1966) ("'The Equal Protection Clause demands... substantially equal state legislative representation for all'.... The principle that denies the State the right to dilute ... vote[s] on account of... economic status or other such factors by analogy bars a system which excludes those unable to [or who fail to] pay a fee to vote ... ." (quoting Reynolds v. Sims, 337 U.S. 553, 568 (1964))).
159. Perhaps the ultimate example of this judicial strategy in the election law area is the Court's malapportionment jurisprudence (which predates Storer-Burdick, but reflects some of the same impulses). Cf. Charles, Democracy and Distortion, supra note 39, at 671-72 (noting certain bright-line features of the equipopulation cases that make sense on a structural view, but are hard to understand vis-à-vis the putative dignitary interest of individual voters).
160. 405 U.S. 330 (1972).
161. See id. at 345 ("The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal.").
162. Id. at 345-48.
163. Id.
164. Though this exclusion is unambiguously significant on an individualistic understanding of the right to vote, it might not be judged important on an aggregative, representation- or governance-oriented conceptualization of the right to vote. The significance of the "burden" on such views might be thought to depend on (1) the number of newcomers, (2) whether newcomers have less information about the subject of the election than old-timers, (3) whether newcomers share distinct political views or interests, or (4) whether some groups of citizens move more frequently than other groups over the course of their lifetimes. Cf. Adam B. Cox, The Temporal Dimension of Voting Rights, 93 VA. L. REV. 361 (2007).
165. For what our constitutional practice ultimately guarantees is not the citizen's right to exercise fundamental rights, but rather the citizen's entitlement to make the state provide a substantial justification for limitations on her exercise of fundamental rights.
166. Cf. Charles, Democracy and Distortion, supra note 39, at 655-64 (arguing that much of the Supreme Court's malapportionment and racial gerrymandering jurisprudence reflects a similar effort to pursue structural objectives while using the language of individual rights).
167. Regarding this pattern in other areas of the Supreme Court's election law jurisprudence, see HASEN, THE SUPREME COURT AND ELECTION LAW, supra note 39, at 47-72.
168. 393 U.S. 23 (1968).
169. 403 U.S. 431 (1971).
170. Id. at 438 (contrasting the facts of Williams, in which minor parties and independents had been frozen out, with the facts of the instant case, which revealed the "open quality" of the electoral regime at issue).
171. Id. at 442.
172. Id.
173. Williams, 393 U.S. at 24.
174. Id. at 24-25.
175. Jenness, 403 U.S. at 438.
176. Id. at 438-39.
177. That is, independent candidates were required to sever their political party ties a full year before running as independents.
178. Storer v. Brown, 415 U.S. 724, 726-27 (1974).
179. The reasoning of the Storer dissenters largely follows the Dunn model. See id. at 755-66 (Brennan, J., dissenting).
180. Id. at 736 (emphasis added).
181. See id. at 760-62 (Brennan, J., dissenting) (calling for an examination of less burdensome alternatives).
182. Id. at 738.
183. Id. at 738-39.
184. Id. at 738-39.
185. Id. at 739.
186. Id. at 740.
187. Id. at 742.
188. Id. at 743-44.
189. Unless, perhaps, the burden was created for patently discriminatory reasons or is utterly arbitrary. See infra Part II.C.2.
190. Storer's chosen proxy is highly imperfect. For example, it ignores questions about the timing of the signature requirement. But Storer's proxy-based presumption is not conclusive: a plaintiff might still prevail if she can demonstrate empirically that, say, a state's 5% signature requirement, in conjunction with other features of the state's ballot-access regime, makes independent access to the ballot a practical impossibility. Conversely, a state might forestall meaningful judicial scrutiny of, say, a 10% signature requirement, by demonstrating that independent candidates have, in fact, qualified frequently under the 10% regime.
191. 479 U.S. 189 (1986).
192. 502 U.S. 279 (1992).
193. 504 U.S. 428 (1992).
194. Munro, 479 U.S. at 191.
195. Id. at 191-92.
196. See the Ninth Circuit's explanation in Socialist Workers Party v. Secretary of State: Prior to 1977, candidates of minor parties qualified for the general election ballot in contests for statewide office with regularity. At least one minor party appeared on the general election ballot in every Washington gubernatorial election from 1896 to 1976 except 1952. Two or more minor party candidates qualified in all but two of these elections. Forty minor party candidates appeared on the general election ballot for statewide offices in the five general elections between 1968 and 1976. The 1977 amendment to Wash.Rev.Code section [sic] 29.18.110 worked a striking change. According to the affidavit of Washington's Supervisor of Elections, since 1977 minor parties "have not been successful at qualifying candidates for the state general election ballot for statewide offices." Although one or more minor parties nominated candidates in each of the four statewide elections held between 1978 and 1983, none qualified for the general election ballot. In 1984 one of four minor party candidates nominated qualified for the general election ballot. 765 F.2d 1417, 1419 (9th Cir. 1985).
197. Id.
198. Id. at 1420-22.
199. Munro, 479 U.S. at 199.
200. Id. at 197.
201. Of course, there is no way to say what the "magnitude" of the burden is without a baseline for comparison. Cf. Charles, Democracy and Distortion, supra note 39, at 653-55 (arguing that rights claims are predicated on structural baseline assumptions),
202. But I do not think that the "baseline problem" necessarily poses significant conceptual or practical difficulties for the traditional rights/justification model of fundamental-rights adjudication. For example, the courts could allow plaintiffs to measure the burden of a challenged electoral requirement with reference to the least burdensome alternative presently in use in another state. (This is essentially the tack that the plaintiffs pursued, unsuccessfully, in ACORN v. Bysiewicz, 413 F. Supp. 2d 119 (2005).
203. See supra text accompanying notes 19-24.) This approach would seem practicable so long as the alternative that would be "least burdensome" for the plaintiffs would not present greater burdens (compared to the status quo) for some other class of participants in the political process.
204. In the interest of precision, though, it would be better to describe this not as the "maximum restriction that the Constitution permits," but as the "maximum restriction that will receive deferential review." Thanks to Floyd Feeney for suggesting this refinement.
205. See Munro, 479 U.S. at 196-97 ("Much is made of the fact that . . . since 1977 only 1 out of 12 minor-party candidates has appeared" on the ballot, while prior to 1977, virtually every minor party candidate did. However, "[s]uch historical facts . . . prove very little in this case, other than the fact that [the new law] does not provide an insuperable barrier to minor-party ballot access.").
206. Socialist Workers Party v. Sec'y of State, 765 F.2d 1417, 1421 (9th Cir. 1985).
207. 502 U.S. 279 (1992).
208. Id. at 295.
209. Id.
210. Id.
211. 504 U.S. 428 (1992).
212. Issacharoff& Pildes, supra note 39, at 670-72 (explaining how the state's ballot-access laws discouraged voters from supporting independent candidates).
213. It perhaps bears noting that one feature of Hawaii's ballot-access regime was, in my view, quite vulnerable under Storer. To qualify for the general election ballot, independent candidates had to run in an open primary in which they appeared on a designated "nonpartisan" ballot; only those independents who won at least "10 percent of the primary vote, or the number of votes that was sufficient to nominate a partisan candidate, whichever number [was] lower," qualified for the general election. Burdick, 504 U.S. at 436.
214. Recall that in Storer, the Court said that "[i]f the required signatures approach 10% of the eligible pool of voters," serious judicial scrutiny of the necessity of the signature requirement would be in order. Storer v. Brown, 415 U.S. 724, 743 (1974);
215. see also supra text accompanying notes 136-141. The 10%-of-the-primary-vote requirement in Burdick is relevantly analogous to a 10% signature requirement;
216. cf. Munro v. Sociality Workers Party, 479 U.S. 189, 197-98 (1986) (treating Washington's 1% vote requirement in a blanket primary as equivalent to a signature requirement of 1% of the available pool). Indeed, it might be considerably more "extreme" in practice, depending on the number of people eligible to vote the nonpartisan ballot. When the 10% requirement was litigated in state court (pre-Munro), however, the Hawaii Supreme Court rejected the petition/signature analogy and disputed the notion that Storer established a "numerical test."
217. See Hustace v. Doi, 588 P.2d 915, 924-25 (Haw. 1978).
218. Burdick, 504 U.S. at 438. The Burdick Court made only a cursory examination of the adequacy of ballot access afforded under Hawaii law. This may have been due to the fact that the plaintiffs were not challenging the constitutional sufficiency of Hawaii's ballot-access laws, or to the fact that the Hawaii Supreme Court had already heard and rejected such challenges.
219. See id. at 431-32 (discussing Burdick v. Takushi, 776 P.2d 824", 825 (Haw. 1989)). A third possibility is that the Court was silently redefining minor-party and independent candidates' right of ballot access as a right of access to some ballot, rather than a right of access to the general election ballot.
220. Cf. Burdick, 504 U.S. 435-37 (describing the liberal access to primary ballots under Hawaii law);
221. Munro, 479 U.S. at 189-99 (emphasizing liberality of access to Washington's blanket primary ballot in rejecting a third party's attack on barriers to the general election ballot).
222. Id. at 438-39;
223. see also id. at 441 ("[W]hen a State's ballot access laws pass constitutional muster ... a prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one's choice will be light . . . .").
224. Issacharoff & Pildes, supra note 39, at 670-74.
225. Id. at 672.
226. Id. at 672-73.
227. Petitioner's Brief, Burdick, 504 U.S. 428 (No. 91-535), 1992 WL 532906 at *11-12 (proposing that write-in bans "offend[] three distinct - although, in this case, interrelated - constitutional principles": (a) the citizen's right to "direct his 'portion of sovereign power' to a candidate of his own choosing"; (b) the citizen's right to "remain free from being forced to express support for ideological positions or individuals with which one disagrees"; and (c) the citizen's right to "express dissent" at the ballot box by conveying the message, "None of the above.").
228. Burdick, 504 U.S. at 438 (alteration in original) (citation omitted) (quoting Storer v. Brown, 415 U.S. 724, 735 (1974));
229. see also Karlan, supra note 6, at 1722 (arguing that the Court treated Burdick as a case about the aggregation of votes, rather than about the individual right to participate in the first instance).
230. See infra Part II.C.
231. Storer v. Brown, 415 U.S. 724, 743 (1974).
232. 410 U.S. 752 (1973).
233. 414 U.S. 51 (1973).
234. 410 U.S. at 754.
235. Id. at 760.
236. As the dissent observed, "The Court's formulation . . . resembles the traditional equal protection 'rational basis' test." Id. at 767 (Powell, J., dissenting).
237. Id. at 757.
238. Kusper, 414 U.S. at 52.
239. Id. at 52-53.
240. Id. at 60.
241. Id. (internal quotation marks omitted).
242. Id.
243. Id.
244. Id. at 61.
245. I am assuming, here, that the Court meant to draw a firm line in Rosario and Kusper, and that that line continues to have force today. I suppose that a bona fide party-switcher whose decision to switch parties postdated an enrollment deadline shorter than the interval of time between primary elections could mount a challenge to the deadline on the theory that her exclusion was not voluntary. But I doubt her claim would succeed, given the Court's penchant for bright lines in this area, and given the ramification of her argument for any enrollment deadline.
246. See, e.g., Gray v. Sanders, 372 U.S. 368, 381 (1963) (applying the "one person, one vote" principle to a primary election); United States v. Classic, 313 U.S. 299, 313-20 (1941) (holding that the right to vote for members of Congress includes the right to vote in primary elections when the primary has been made "an integral part of the procedure for . . . popular choice").
247. These are basic tenets of the "responsible party government" school of thought. On this school and its influence on the Court's political party jurisprudence, see Lowenstein, supra note 109.
248. Note that it's even more arbitrary from an individual-rights perspective. Why should the party switcher who "converts," say, six months before an election, be treated as having a lesser interest in that election than the party switcher whose conversion experience took place twenty-four months before that election?
249. 126 S. Ct. 2479 (2006).
250. 528 U.S. 377 (2000).
251. See id. at 386-88 (examining Buckley v. Valeo, 424 U.S. 1 (1976), and noting that "[w]hile we did not then say in so many words that different standards might govern expenditure and contribution limit affecting associational rights, we have since then said so explicitly").
252. Id. at 391.
253. Looking to the novelty or plausibility of the justifications asserted on behalf of a challenged law might serve as one more means of flipping the presumption of constitutionality. If a law is so peculiar that the state's lawyers cannot dredge up a traditional justification for it, something may well be awry.
254. Id. at 400 (Breyer, J.). Breyer explained the problem as follows: On the one hand, a decision to contribute money to a campaign is a matter of First Amendment concern . . . because [money] enables speech. . . . Both political association and political communication are at stake. On the other hand, restrictions upon the amount any one individual can contribute to a particular candidate seek to protect the integrity of the electoral process - the means through which a free society democratically translates political speech into concrete governmental action. . . . Moreover, by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process.
255. Cf. Reynolds v. Sims, 377 U.S. 533, 565 (1964) (in the context of apportionment, the Constitution "demands" that each citizen have "an equally effective voice"), In doing so, they seek to build public confidence in that process and broaden the base of a candidate's meaningful financial support, encouraging the public participation and open discussion that the First Amendment itself presupposes.
256. Id. at 400-01 (some citations omitted).
257. Id. at 401.
258. Id. at 402.
259. Id. (noting, however, that deference would not be in order insofar as it "risk[ed] such constitutional evils as, say, permitting incumbents to insulate themselves from effective electoral challenge").
260. Id. at 403-04. Some years ago, Alan Brownstein anticipated Breyer's argument in Shrink with a very similar "Constitution on both sides" account of the Supreme Court's ballot-access jurisprudence.
261. See Brownstein, supra note 53, at 914-19.
262. See Randall v. Sorrell, 126 S. Ct. 2479, 2492 (2006) ("We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have 'particular expertise' in matters related to the costs and nature of running for office," (quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 137 (2003))).
263. Id.
264. Id.
265. Id.
266. Id.
267. Id. at 2493 (emphasis added).
268. See id. at 2494-2500 (noting, first, that "the record suggests though it does not conclusively prove, that Act 64's contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns"; second, that "Act 64's insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party"; third, that the Act's failure to exclude from the definition of contribution "the expenses [that] volunteers incur, such as travel expenses, in the course of campaign activities" "aggravates the problem"; fourth, that "Act 64's contribution limits are not adjusted for inflation"; fifth, that there were no exceptional circumstances in the record that might provide "special justification" for Act 64's limits). It is worth observing that even in the application of heightened scrutiny, Justice Breyer did not rely in the main on evidence concerning the asserted negative impact of Act 64's limits. Rather, he inferred that such "risks" were significant based on the law's low limits (relative to other states) and suspect formal properties (lack of indexing, lack of preferential treatment for political party contributions, lack of exemptions for volunteer expenses).
269. To be sure, this premise, while true for Breyer, is contested by others who believe that a free flow of money to political campaigns is not only consistent with the Constitution's purposes, but required by it. See, e.g., BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM 109-20 (2001) (arguing that campaign finance regulation violates the First Amendment right to free speech).
270. Rick Hasen argues that the Randall plurality's putative concern with structural harm to political accountability is disingenuous. See Hasen, The Newer Incoherence, supra note 39, at 873-77. I am not so sure. A big part of Hasen's argument is that the Court has declined other invitations to regulate the political process in the interest of more competitive
271. See Hasen, The Newer Incoherence, supra note 39, at 870-72.
272. However, the Court's reluctance to intervene in the partisan gerrymandering cases is plausibly due to uncertainty about how to intervene productively, not to a lack of concern about representative and accountable legislatures. See infra note 277 and accompanying text. And whereas Hasen sees "an individual rights approach" in Kennedy's statement in LULAC that the litigant who would challenge a partisan gerrymander must "show a burden, as measured by a reliable standard, on the complainants' representational rights,"
273. Hasen, The Newer Incoherence, supra note 39, at 872-73 (quoting LULAC, 126 S. Ct. at 2610), I see only a familiar insistence that the party bringing the claim have standing, and that the underlying substance of the claim be amenable to resolution with fairly clear-cut doctrine.
274. As for Timmons, its "structural" merits are disputed. Compare Issacharoff & Pildes, supra note 39, at 683-87 (criticizing the decision),
275. with Schleicher, supra note 110, at 197-202 (defending Timmons as an appropriate, procompetition judicial response to conditions of natural duopoly created by single-member districts and first-past-the-post elections).
276. Note that Breyer's application of heightened scrutiny in Randall turned in large part on qualitative factors, rather than on the actual impact of the contribution limits on political competition, See supra note 206. Thus, I am unconvinced by Rick Hasen's prediction that heightened scrutiny under Randall necessarily will "devolve into a 'battle of the experts' over how [the challenged] limits would affect political competition."
277. Hasen, The Newer Incoherence, supra note 39, at 884.
278. 502 U.S. 279 (1992).
279. See supra notes 157-160 and accompanying text.
280. See Norman, 502 U.S. at 295.
281. Id. at 291-94.
282. Id. at 282.
283. Id. at 286.
284. Id. at 293.
285. Id. at 293-94 ("[T]he State's requirements for access to the statewide ballot become criteria in the first instance for judging whether rules of access to local ballots are narrow enough to pass constitutional muster.").
286. 440 U.S. 173 (1979).
287. Id. at 184.
288. See Randall v. Sorrell, 126 S. Ct. 2479, 2492 (2006) (suggesting that where there are strong indications of "danger signs" of electoral unfairness, courts must assess the statute's tailoring).
289. For a recent example of a voter participation case in which state/local disparities might have been used in setting scrutiny levels, but were not, see ACLU of New Mexico v. Santillanes, No. Civ. 05-1136, 2007 WL 782167, at *36-37 (D.N.M. Feb. 12, 2007) (enjoining an Albuquerque photo ID requirement for voting, which was substantially more restrictive than the ID requirements established under state law).
290. See, e.g, Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214 (1989).
291. See, e.g, Storer v. Brown, 415 U.S. 724 (1974).
292. The courts and the law review literature sometimes distinguish between "legislative intent," corresponding to the actual, subjective intentions of the lawmakers who enacted a bill, and "legislative purpose," an objective standard corresponding to what a reasonable observer would assume to be the intended effect of the bill. Given the epistemic difficulties and intrusive discovery that ascertaining legislative intent would entail (even assuming that the concept has meaning in the context of a multimember body), both courts and commentators increasingly favor purpose-based rather than intent-based inquiries. For a recent, prominent example, see McCreary County v. ACLU of Kentucky, 545 U.S. 844, 859-74 (2005) (using purpose analysis to resolve an Establishment Clause challenge).
293. See also Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 730-31 (1998) (defending doctrinal approaches that turn on social meaning of legislative actions);
294. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 793-97 (2001) (distinguishing purpose and intent, and defending judicial reliance on purpose);
295. Gil Seinfeld, The Possibility of Pretext Analysis in Commerce Clause Adjudication, 78 NOTRE DAME L. REV. 1251, 1301-03 (2003) (explaining that "the process of judicial review stands on considerably firmer ground" when courts in pretext cases search for objective purpose rather than subjective legislative intent). In this Article, however, I will use "intent" and "purpose" interchangeably; the role of intent (or purpose) in electoral mechanics adjudication is not yet well enough developed to necessitate distinguishing between the two concepts.
296. 530 U.S. 567 (2000).
297. Id. at 569-70.
298. Id.
299. Cal. Democratic Party v. Jones, 984 F. Supp. 1288, 1297-1300 (C.D. Cal. 1997) rev'd, 530 U.S. 567 (2000).
300. Id. at 1300-01.
301. Jones, 530 U.S. at 572-82.
302. See id. at 577 ("Proposition 198 forces political parties to associate with - to have their nominees, and hence their positions, determined by - those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival. In this respect, it is qualitatively different from a closed primary." (emphasis added));
303. id. at 581 ("There is simply no substitute for a party's selecting its own candidates.").
304. Id. at 578-79.
305. See id. at 599-600 (Stevens, J., dissenting).
306. Id. at 580 (majority opinion) (first emphasis added). The Court summarized the problem with Proposition 198 as follows: Proposition 198 forces petitioners to adulterate their candidate-selection process - the basic function of a political party - by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome - indeed, in this case the intended outcome - of changing the parties' message. We can think of no heavier burden on a political party's associational freedom.
307. Id. at 581-82 (internal quotation marks omitted) (citation omitted).
308. Cf. Alan E. Brownstein, Illicit Legislative Motive in the Municipal Land Use Regulation Process, 57 U. CIN. L. REV. 1, 38 (1988) (suggesting a place for legislative motive in the application of balancing tests to rights infringement claims, on the theory that "the legislature's goals are [commonly] a reliable indicator of a statute's effect").
309. 380 U.S. 89 (1965). For a nice treatment of the case, see Alec C. Ewald, An "Agenda for Demolition ": The Fallacy and the Danger of the "Subversive Voting" Argument for Felony Disenfranchisement, 36 COLUM. HUM. RTS. L. REV. 109, 131-33 (2004).
310. Carrington, 380 U.S. at 89 (alteration in original) (internal quotation marks omitted).
311. Id. at 93.
312. Id. at 94.
313. Id. at 94 (citations omitted) (internal quotation marks omitted).
314. 403 U.S. 1 (1971).
315. Gomillion v. Lightfoot, 364 U.S. 339 (1960).
316. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
317. Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969).
318. Carrington v. Rash, 380 U.S. 89 (1965).
319. Gordon, 403 U.S. at 5.
320. Id. (emphasis added).
321. 514 U.S. 779 (1995).
322. 531 U.S. 510 (2001).
323. U.S. CONST. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.").
324. U.S. Term Limits, 514 U.S. at 783.
325. Id. at 833-34.
326. Id. at 835.
327. 531 U.S. at 514.
328. Id. at 523-24. Though the opinion is not altogether clear on this, it appears that part of the Court's objection to the ballot notation law was that the state was attempting to improperly elevate the salience of a single issue (term limits), in addition to "taking sides" on that issue.
329. See id. at 525 ('"[B]y directing the citizen's attention to the single consideration' of the candidates' fidelity to term limits, the labels imply that the issue 'is an important - perhaps paramount - consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot . . . .'" (internal citations omitted) (quoting Anderson v. Martin, 375 U.S. 299, 402 (1964))).
330. Id. at 524 (alteration in original) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983));
331. see also Burson v. Freeman, 504 U.S. 191, 212-13 (1992) (Kennedy, J., concurring) (arguing that polling-area speech restrictions are constitutionally permissible if enacted for the narrow purpose of protecting the integrity of the ballot against fraudsters, and not with the aim of limiting political speech for other reasons).
332. See Gralike, 531 U.S. at 525;
333. U.S. Term Limits, 514 U.S. at 836. This idea is elaborated by Judge Fletcher in her dissent in Bates v. Jones, 131 F.3d 843, 870-72 (9th Cir. 1997) (en banc). As she reads U.S. Term Limits and Gralike, any state effort to allocate ballot access on grounds other than popular support within the electorate is impermissibly discriminatory.
334. Similarly, a severe-in-kind burden triggers strict scrutiny, even if its effects are trivial.
335. See Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 (1969) ("[S]tatutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.");
336. cf. Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006) (per curiam) ("Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.").
337. 415 U.S. 767 (1974).
338. Storer v. Brown, 415 U.S. 724, 741 (1974).
339. Id. at 740-41 (emphasis added).
340. That is, persons who "confined [their] vote [during the primary election] to nonpartisan offices and propositions." Id. at 741.
341. See supra text accompanying note 141.
342. See supra note 66.
343. Am. Party of Tex. v. White, 415 U.S. 767, 795 (1974).
344. I acknowledge that American Party's holding on the ballot-design disparity, like Storer's treatment of the disqualification of nonpartisan primary voters from signing independents' petitions, could also be viewed as an application of rational basis-plus review of the substantive reasonableness of the classification. See id. ("The State offered no justification for the difference in treatment in the District Court, did not brief the issue here, and had little to say in oral argument to justify the discrimination. ").
345. 478 U.S. 109, 133 (1986) (plurality opinion).
346. 541 U.S. 267 (2004).
347. See id. at 293 ("[A]n excessive injection of politics [into redistricting] is unlawful.").
348. 514 U.S. 779, 876 (1995).
349. Id. at 836 ("[W]e hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly.").
350. Id. at 831 (emphasis added).
351. Cook v. Gralike, 531 U.S. 510, 525 (2001) (misquoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).
352. See supra Part II.C.1.
353. Because the Court's malapportionment jurisprudence requires that legislative districts be withdrawn following each census, redistricting (and redistricting litigation) presents "incessant" partisan conflict to a degree not found elsewhere in election law.
354. Cf. Charles, Democracy and Distortion, supra note 39, at 641-42 (arguing that the extreme effects test in Bandemer was motivated by concerns about proportional representation and "perpetual litigation of districting plans");
355. Pildes, supra note 108, at 76-78 (suggesting that "[w]hen manageable judicial remedies are readily at hand," courts are more willing to intervene in political process cases on the basis of exclusionary intent). On more purely normative grounds, one might also argue that the Constitution should be read to bar discriminatory intent for purposes of voter participation claims (recall the Carrington principle), even if not for claims relating to the aggregation of votes into representation, or the autonomy of political parties. As Richard Pildes has remarked, "viewpoint discrimination is inevitable in the design of democratic institutions: substantive judgments about the desirable forms of elections and governance must be made."
356. Pildes, supra note 108, at 108.
357. See also Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007) (providing a comparative perspective on the regulation through election law of antidemocratic political parties). Pildes's point is certainly right with respect to many questions about, for example, the translation of votes into seats, and the balance among responsive, reflective, and technocratic institutions of governance. But it is not implausible to think that no viewpoint discrimination whatsoever should be tolerated with respect to the basic matter of the citizen's right to cast and record a vote.
358. A full examination of why intent criteria are plausibly superior lies beyond the scope of this Article. Suffice it to say, for now, that reliance on intent (1) would be conceptually better suited to screening for unjustified laws - if justification is understood in cost-benefit terms ("burden" is a cost-side measure, insensitive to benefits); (2) would have certain advantages of familiarity (courts look at intent all the time, in many contexts, but they are rarely asked to predict the consequences of alternative electoral arrangements); (3) could save the courts from getting mired in normative difficulties about burdens and baselines; and, related to this, (4) could simplify the problem of choosing a "frame" through which to assess the consequences of challenged state practices. Cf. Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 YALE L.J. 1311, 1371-75 (2002) (arguing that constitutional adjudication turns on unspoken and often arbitrary premises about which portions of the ongoing relationship between government and citizen are properly at issue in the case).
359. 544 U.S. 581 (2005).
360. Id. at 603 (O'Connor, J., concurring) (emphasis added).
361. Cf. Evans v. Cornman, 398 U.S. 419, 422-23 (1970) ("The sole interest . . . asserted by appellants to justify the limitation on the vote in the present case is essentially to insure that only those citizens who are primarily or substantially interested in or affected by electoral decisions have a voice in making them. . . . However, it is clear that such a claim cannot lightly be accepted. . . . All too often, lack of a 'substantial interest' might mean no more than a different interest, and '"[f]encing out" from the franchise a sector of the population because of the way they may vote is constitutionally impermissible,'" (quoting Carrington v. Rash, 380 U.S. 89, 94 (1965))).
362. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993) ("[T]he effect of a law in its real operation is strong evidence of its object").
363. Cf. Richard L. Hasen, Bad Legislative Intent, 2006 WIS. L. REV. 843, 888-90 (recommending heightened means-ends scrutiny of election laws enacted for illegitimate reasons).
364. For one such proposal, see Christopher S. Elmendorf, Burdick or Carrington ?: "Fencing Out" and the Voter ID Litigation, ELECTION LAW @ MORITZ, Sept. 12, 2006, http://moritzlaw.osu.edu/electionlaw/comments/2006/060912.php (proposing a burden-shifting framework under which a prima facie inference of exclusionary intent would arise if (1) the voting restriction were enacted substantially along partisan lines; (2) there were some evidence that the law will disproportionately inconvenience citizens who are statistically more likely to support the opposition party; and (3) the law were a permanent measure, rather than a time-limited experiment with provisions for independent evaluation of its impacts on electoral participation by the ostensibly disadvantaged classes).
365. See also Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 STAN. L. REV. 1105, 1135-36 (1989) (showing that the Supreme Court has accommodated plaintiff-friendly, burden-shifting doctrinal frameworks to deal with the problems of illicit motive when fundamental political rights are at stake) ;
366. cf. Crawford v. Marion County Election Bd., 484 F.3d 436, 437 (7th Cir. 2007) (Wood, J., dissenting from denial of petition for rehearing en banc) ("[W] hen there is a serious risk that an election law has been passed with the intent of imposing an additional significant burden on the right to vote of a specific group of voters, the court must apply strict scrutiny.") (emphasis added).
367. 479 U.S. 208 (1986).
368. Id. at 212.
369. Id. at 212-13.
370. Rather, Marshall reasoned that "[t]he Party's attempt to broaden the base of public participation in and support for its activities [was] conduct undeniably central to the exercise of the right of association." Id. at 214. He further posited that the open-primary ban affected the Party's "basic function" of selecting candidates.
371. Id. at 216.
372. See supra notes 73-76 and accompanying text (describing Clingman's criticism of Tashjian for failing to address the severity of the burdens imposed).
373. Note in this regard that toward the end of the opinion in Tashjian, the Court does suggest that when the state seeks to "protect[] the integrity of the Party against the Party itself[,] . . . [then] the views of the State, which to some extent represent the views of the one political party transiently enjoying majority power, . . . lose much of their force." 479 U.S. at 224.
374. 520 U.S. 351 (1997).
375. See generally Peter H. Argersinger, "A Place on the Ballot": Fusion Politics and Antifusion Laws, 85 AM. HIST. REV. 287 (1980) (tracing the history of antifusion legislation near the turn of the century).
376. As noted above, the majority judged the burden "not severe" because the state had not interfered with the New Party's organizational arrangements or endorsement decisions; the dissent took a similarly axiomatic approach, while recognizing a new category of severe-in-kind burdens. See supra notes 96-103 and accompanying text.
377. Here is what the dissent had to say: [I]t is [not] irrelevant that when antifusion laws were passed by States all over the Nation in the latter part of the 1800's, these laws, characterized by the majority as "reforms," were passed by the parties in power in state legislatures . . . to squelch the threat posed by the opposition's combined voting force." Although the State is not required now to justify its laws with exclusive reference to the original purpose behind their passage, this history does provide some indication of the kind of burden the States themselves believed they were imposing on the smaller parties' effective association. 520 U.S. at 378-79 n.6 (Stevens, J., dissenting) (internal citations omitted).
378. As a general matter, the Court's evidentiary requirements for showing discriminatory purpose are right-specific. See Ortiz, supra note 283, at 138 (comparing cases involving economic benefits and fundamental rights).
379. It is at least arguable, however, that this species of rationality review, done properly, does have some bite vis-à-vis patently arbitrary classifications and standardless delegations. See supra note 66 (treating Bush v. Gore as a case applying "rational basis plus" review).
380. Following Dunn, strict scrutiny may take the "best practices" form, which is not invariably fatal. See supra notes 113-118 and accompanying text.
381. Clingman v. Beaver, 544 U.S. 581, 610 (2005) (Stevens, J., dissenting).
382. Thus, in Clingman, the dissenters evaded addressing the extent of the burden by positing (implausibly) that "the impact of the Oklahoma statute on the voters' right to vote for the candidate of their choosing is not a mere 'burden'; it is a prohibition." Id. When a political party wants the individuals in question to vote in its primary, the dissent continued, the state may not "deny them participation . . . absent a state interest of overriding importance."
383. Id. at 612. Stevens's brisk retreat into formalism perhaps indicates that the dissenting justices were not quite so comfortable assessing "the realities of the situation" as they had initially purported to be. (Stevens's dissent in Timmons also has a formalistic cast.
384. See supra notes 100-103.)
385. Whether the presumptions established by other cutoffs, see supra Parts II.B.2-3, are similarly subject to rebuttal remains to be determined. In Storer, the Supreme Court invited attempts at rebuttal by defining both a proxy-based cutoff and an associated "ultimate question for judgment."
386. See supra Part II.B.1. In the other cutoff cases, however, the Court did not identify such ultimate questions, leaving considerable uncertainty regarding whether the applicable structural presumption is conclusive (like a severe-in-kind burden) or rebuttable.
387. See supra Part I.
388. A skeptic or cynic might argue that the Supreme Court itself has twice intervened in the Burdick era on the basis of hunch and anecdote, without recourse to in-kind burden characterizations, structural-presumption cutoffs, or legislative intent. In Part III.A of Norman v. Reed, the Court axed a provision of Illinois's ballot-access law that barred "candidates running in one political subdivision from ... using the name of a political party established only in another." 502 U.S. 279, 289 (1992). The Court dealt with this summarily, stating that the provision "would obviously foreclose the development of any political party lacking the resources to run a statewide campaign." Id. (emphasis added).
389. Apparently this allegedly self-evident truth was enough to dispatch the presumption of permissibility, as the Court struck down the prohibition after concluding that more narrowly drawn alternatives appeared feasible (e.g., requiring the candidate to get the party's permission before using the party label). Id.
390. In the second case, Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the Court's burden analysis was a little more involved. Buckley addressed Colorado's regulation of the process by which ballot-initiative sponsors gather the requisite number of signatures to put their proposals on the ballot. The Court struck down the state's requirement that petition circulators be registered Colorado voters, and that they wear a badge displaying their name, their status as paid or volunteer, and the name and telephone number of their employer.
391. Id. at 200.
392. The registered-voter requirement was deemed severely burdensome because it "drastically reduce [d]" the pool of potential circulators, given that 400,000 voting-age Coloradans were not registered to vote. Id. at 193.
393. The Court also relied on testimony from two local activists, who averred that some people who were sympathetic to particular ballot initiatives declined to register as a form of protest. Id. at 194.
394. However, as Justice O'Connor emphasized in her dissent, there was no evidence in the record that initiative proponents were materially hindered in their recruitment of circulators by the registered-voter requirement. See id. at 218 (O'Connor, J., concurring in part and dissenting in part). (For a reduction in the pool to have a material impact, it must be the case that the size of the pool is a limiting factor, and that unregistered would-be circulators are unwilling to register in order to qualify to circulate.) In short, although the majority's finding of a severe burden was nominally predicated on the challenged requirement's anticipated impact on the amount of petition-circulation speech, that impact, if any, was wholly a matter of judicial surmise. (Justice Thomas, concurring, ventured that strict scrutiny was in order because the circulation of initiative petitions involves "core political speech."
395. Id. at 210. This in-kind approach to the characterization of burdens is entirely consistent with the main stem of Storer-Burdick.) Consider also how the Justices dealt with the badge requirement. The majority, like the court below, found the burden severe because the requirement "forces circulators to reveal their identities at the same time they deliver their political message," exposing them to "heat of the moment" harassment.
396. Id. at 198-99 (quoting Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1102 (10th Cir. 1997)). First-person anecdotes from a handful of political organizers provided the evidentiary basis for this conclusion. Justice O'Connor, who concurred on the badge issue, was on somewhat firmer footing. She stressed the manner in which the badge requirement affected speech, calling it a "direct" burden on "the one-on-one, communicative aspect of petition circulation."
397. Id. at 215. This is a textbook illustration of in-kind burden analysis.
398. In the final analysis, Buckley is probably best seen as an instance of in-kind burden characterization (a reading adopted, albeit without my terminology, in Caruso v. Yamhill County, 422 F.3d 848 (9th Cir. 2005)), and Part III.A of Norman as perhaps an application of "rational basis plus" review. Alternatively, they might be seen as uncertain initial forays, addressing unfamiliar types of laws, merely preludes to the eventual promulgation of a more structured framework for reviewing such kinds of laws.
399. Cf. supra note 120 and accompanying text (noting the Supreme Court's pattern of first treating a subject with vague standards, and later following up with a more structured framework after lower courts have had some time to explore the issue).
400. Particularly insofar as the Justices of the Supreme Court and the judges of the lower federal courts are ideologically out of sync.
401. Rick Hasen, among others, has suggested that this is one of the lessons, to date, of the voter ID litigation. See Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 STAN. L. REV. 101, 139-40 (2007).
402. See, e.g., Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 822 (S.D. Ind. 2006);
403. Gonzalez v. Arizona, No. 06-1268, slip op. at *7 (D. Ariz. Sept. 11, 2006);
404. cf. Overton, supra note 29, at 665-66 (calling on judges to ground interventions in voter ID cases on empirical evidence, lest "personal political ideology" end up driving the analysis).
405. Thanks to Floyd Feeney for suggesting this point.
406. The bill, H.B. 244, 2005-2006 Leg., Reg. Sess. (Ga. 2005), amended several sections of the Georgia Code, including GA. CODE ANN. § 21-2-417 (2006).
407. For a succinct history of Georgia's photo ID requirement for voting, see Common Cause/Georgia v. Billups (Common Cause/Ga. II), 439 F. Supp. 2d 1294, 1297-1300 (N.D. Ga. 2006).
408. Common Cause/Ga. v. Billups (Common Cause/Ga. I), 406 F. Supp, 2d 1326, 1339 (N.D. Ga. 2005).
409. Id. at 1332-33, 1337-38.
410. Id. at 1338-39.
411. Id. at 1340.
412. Id. at 1337. In addition, to assist voters who would have difficulty getting to one of the then-existing fifty-eight DDS service centers statewide (none were located within the city limits of Atlanta), H.B. 244 provided for "a mobile issuance bus known as the Georgia Licensing on Wheels ('GLOW') Bus."
413. Id. at 1338. The bus made scheduled stops around the state; also, "any group" could sponsor an appearance of the bus in their community "by making arrangements with the DDS."
414. Id. However, GLOW was incapable of issuing ID to the wheelchair-bound and others who could not ascend the bus steps,
415. Id. at 1338-39.
416. Id. at 1354.
417. Id.
418. More specifically, the affiants variously attested to some or all of the following: that they lacked an acceptable form of ID because (other than for voting) "they have no need" for it; that they were "not indigent," but did "not have $20 to spend for a Photo ID card that they [did] not need except for purposes of voting"; that they were African-American, elderly, or had "disabilities that [made] it difficult for them to travel to a DDS service center, to walk for long distances, or to stand in line"; that they would "have to rely on family members or friends for transportation, or [could not] obtain transportation to a DDS service center," or "would have difficulty taking off from work to go to a DDS service center"; that they "had problems obtaining necessary information, such as birth certificates," either because they would have difficulty getting to the health department and paying the $10 fee, or because "their legal names did not match the names they used for voter purposes or the names on their birth certificates," or because the bureaucrats in their state of birth "could not find" their birth certificates; that they had had to travel as many as twenty miles to a DDS service center and wait in line for as long as two or three hours to renew or obtain a driver's license or photo ID. Id. at 1340-42.
419. Id. at 1340. Note that these figures, if available, would represent an upper bound on the number of voters who lacked qualifying ID (because some voters without qualifying state ID may have qualifying ID issued by the federal government).
420. Id. at 1362, 1366, 1376.
421. Id. at 1366-69. While voters without ID could vote absentee under H.B. 244, the district judge held,
422. id. at 1367, that complying with the absentee voting procedures constituted a "material requirement" within the meaning of Harman v. Forssenius, 380 U.S. 528, 540-42 (1965), which held that no state could save a poll tax by providing nonpaying voters with an alternative voting procedure, if that procedure amounted to a material requirement.
423. See Common Cause/Ga. I, 406 F. Supp. 2d at 1362-66.
424. Id. at 1366.
425. Cf. Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 808 (S.D. Ind. 2006) (arguing that a court should not "assume disparate impact based on what 'common sense' tells us to be true").
426. Common Cause/Ga. I, 406 F. Supp. 2d at 1364-65 (emphasis added).
427. S.B. 84, 2005-2006 Leg., Reg. Sess. (Ga. 2006).
428. Common Cause/Ga. II, 439 F. Supp. 2d 1294, 1305 (N.D. Ga. 2006).
429. See id. at 1306-08. Technically, applicants were required to produce (1) an "identity document," either photographic or, if not photographic, one with the applicant's "full legal name and date of birth"; (2) "[d] ocumentation showing the person's date of birth"; (3) evidence of registration to vote in the state of Georgia; and (4) "[d]ocumentation showing the person's name and address of principal residence."
430. Id. at 1308. It was not disputed, however, that these requirements could all be fulfilled with a completed voter registration application or precinct card,
431. Id. at 1329.
432. See id. at 1306.
433. In subsequent litigation, this study was ultimately deemed inadmissible, in part due to concerns about the underlying data and in part due to the judge's belief that it was not relevant. See Common Cause/Ga. v. Billups (Common Cause/Ga. III), 504 F. Supp. 2d 1333, 1370-71 (N.D. Ga. 2007) (granting defendants' motion to exclude reports and testimony of plaintiffs' experts).
434. Common Cause/Ga. II, 439 F. Supp. 2d at 1316. This expert's testimony was later ruled inadmissible, after the court determined that being able to read the absentee ballot application was not necessary to vote absentee.
435. See Common Cause/Ga. III, 504 F. Supp. 2d at 1379.
436. Common Cause/Ga. II, 439 F. Supp. 2d at 1312, 1313-14, 1317, 1329.
437. Id. at 1314.
438. Id. at 1341.
439. Id. at 1358.
440. Id. at 1345.
441. Id. at 1355.
442. Id. at 1351.
443. Id. at 1346.
444. Common Cause/Ga. v. Billups (Common Cause/Ga. III), 504 F. Supp. 2d 1333, 1382-83 (N.D. Ga. 2007).
445. Id. at 1380 (quoting Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 822-23 (S.D. Ind. 2006)).
446. Id. at 1377-80.
447. Id. at 1371-74.
448. The judge did pause to distinguish his earlier rulings, stating that they reflected the "more relaxed evidentiary standards" appropriate to a preliminary injunction hearing. Id. at 1379.
449. Id. at 1380.
450. For a recent example of the former (a cavalier attitude toward putatively minor barriers to the exercise of the franchise), see Clingman v. Beaver, 544 U.S. 581, 592-93 (2005) (dismissing the notion that a requirement that voters enroll in a party before voting in its primary could warrant strict scrutiny). Attention to the likely incidence of burdens - even seemingly minor burdens - is displayed in the cases concerning the imposition of economic conditions on political participation.
451. See supra Part II.A;
452. see also Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) ("[I]t is especially difficult for the state to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.").
453. In the following discussion, I shall assume that it is legitimate for lower courts to model their application of the Burdick threshold test on the Supreme Court's practice, even if that practice diverges from the approach suggested by a face-value reading of the test.
454. See supra notes 306-313 and accompanying text (discussing H.B. 244).
455. For a discussion of state-by-state and historical variation in ID requirements for voting, see Overton, supra note 29, at 638-44.
456. See supra Part II.B.3.a. Of course, Randall had not been decided when Judge Murphy issued his opinion in Common Cause/Georgia I.
457. See supra Part II.B.3.b.
458. Though rare, there are a handful of voter participation cases in which lower courts have characterized burdens on the basis of innovative arguments from the legal landscape. See Greidinger v. Davis, 988 F.2d 1344, 1352-54 (4th Cir. 1993) (striking down a voter registration law requiring registrants to submit their Social Security number without protecting the number from subsequent disclosure, and relying upon various federal statutes' protection of the privacy interest in Social Security numbers to establish that the Virginia law at issue was "severely" burdensome by virtue of its failure to include analogous protections);
459. Project Vote v. Blackwell, 455 F. Supp. 2d 694, 703 (N.D. Ohio 2006) (relying, in part, on the defendants' inability "to point to any other state that has enacted anything remotely similar" in characterizing the burden as severe);
460. Bay County Democratic Party v. Land, 347 F. Supp. 2d 404, 4S4-35 (E.D. Mich. 2004) (sustaining under Burdick various state requirements for the casting and tallying of provisional ballots, after observing that the state requirements were patterned on federal requirements whose constitutionality the plaintiffs did not contest);
461. Colo. Common Cause v. Davidson, No. 04-7709, 2004 WI. 2360485, at * 12-13 (Colo. Dist. Ct. Oct. 18, 2004) (sustaining state-law voter ID requirements, under Burdick, on the theory that they were only "marginally more intrusive than the already existing federal identification requirement under [the Help America Vote Act], which, significantly, Plaintiffs do not challenge").
462. Legal landscape arguments have also played a role in the litigation over New York's ballot-access laws for presidential primaries. In Rockefeller v. Powers, 917 F. Supp. 155, 160-65 (E.D.N.Y. 1996),
463. aff'd, 78 F.3d 44, 45-46 (2d Cir. 1996), the district court and the Second Circuit made much of the fact that New York authorized political parties to choose between two ballot-access regimes. One regime, adopted by the Republican Party, was much more restrictive than the other, which had been adopted by the Democratic Party. In these opinions, it appears that the intrastate disparity in ballotaccess regimes matters largely at the justification stage of the analysis, and does not, as such, warrant heightened scrutiny. However, the Second Circuit subsequently revisited the Rockefeller litigation, and in doing so treated the intra-state disparity as a reason for heightened scrutiny.
464. See Prestia v. O'Connor, 178 F.3d 86, 89 (2d Cir. 1999) (describing the intrastate disparity in Rockefeller as a "special circumstance" that, in conjunction with other such circumstances, warranted strict scrutiny).
465. For an illuminating overview of the presidential primary ballot-access litigation in New York, see Nathaniel Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 89 GEO. L.J. 2181, 2199-2206 (2001).
466. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (noting that the determination of "whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including "[t]he impact of the official action"; "[t]he historical background of the decision ..., particularly if it reveals a series of official actions taken for invidious purposes"; procedurally or substantively aberrational decision making; and "legislative or administrative history").
467. Carrington v. Rash, 380 U.S. 89, 94 (1965);
468. cf. Levy v. Scranton, 780 F. Supp. 897, 901-02 (N.D.N.Y. 1991) (using Arlington Heights to implement Carrington in the context of a state law affecting the voting rights of students).
469. Since Carrington was decided in 1965, there have been only a handful of judicial decisions striking down election laws on the ground that they were intended to "fence out" a politically identifiable segment of the electorate. See Equal. Found. of Greater Cincinnati v. City of Cincinnati, Inc., 860 F. Supp. 417, 433-34 (S.D. Ohio 1994) (declaring invalid a city charter amendment that purportedly fenced out homosexuals from the political process), rev'd, 128 F.3d 289 (6th Cir. 1997); Sloane v. Smith, 351 F. Supp. 1299 (M.D. Pa. 1972) (declaring invalid a county law restricting ballot access of university students); Castro v. California, 466 P.2d 244, 256 (Cal. 1970) (finding no compelling state interest to justify an English literacy requirement to vote); Keane v. Mihaly, 90 Cal. Rptr. 263 (Cal. Ct. App. 1970) (discussing the danger that a one-year residency requirement for voting would fence out a sector of the population).
470. See supra Part II.C.3.
471. See Common Cause/Ga. v. Billups (Common Cause/Ga. II), 439 F. Supp. 2d 1294, 1298, 1304-05, 1311-13 (N.D. Ga. 2006).
472. In at least one context - the determination of what qualifies as "congruent and proportional" remedial legislation under Section 5 of the Fourteenth Amendment- the Supreme Court already treats sunset provisions as a relevant factor in assessing the constitutionality of challenged laws. See City of Boerne v. Flores, 521 U.S. 507, 533 (1997);
473. Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575, 1721-26 (2001) (discussing "constitutional sunset rules"). Substantive judicial review of monitoring and evaluation provisions might be defended as part and parcel of a more general turn toward experimentalism in equal protection jurisprudence.
474. See generally Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 YALE L. & POL'Y REV. 261 (2004);
475. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015 (2004). The approach suggested here might also be joined to one of the foundational ideas of the Storer-Burdick jurisprudence: that in adjudicating right-to-vote claims, courts should exercise care not to "tie the hands of States seeking to assure that elections are operated equitably and efficiently."
476. See supra notes 56-60 and accompanying text (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992));
477. see also League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2607-08 (2006) (recognizing that under the Constitution, "the legislative branch plays the primary role in congressional redistricting" and other issues related to the "Times, Places and Manner" of holding congressional elections).
478. See Elmendorf, supra note 60, at 435-36;
479. cf. Heather K. Gerken, A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach, 106 COLUM. L. REV. 708, 709-10 (2006) (advancing a related idea to guide implementation of Section 5 of the Voting Rights Act).
480. Burdick, 504 U.S. at 433.
481. See supra notes 78-80 and accompanying text (quoting Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring)).
482. See Baker v. Carr, 369 U.S. 186, 266 (1962) (Frankfurter, J., dissenting).
483. See supra notes 46-47 and accompanying text (quoting Vieth, 541 U.S. at 344 (Souter, J., dissenting)).
484. Heather K. Gerken, The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and Its Progeny, 80 N.C. L. REV. 1411 (2002) (arguing that the Supreme Court's failure to settle on a clear normative foundation for its malapportionment jurisprudence led to arbitrary decisions).
485. Cf. Richard H. Pildes, What Kind of Right Is "The Right To Vote"?, 93 VA. L. REV. IN BRIEF 43, 43 (2007) ("Not only does the right to vote protect several different core interests, but these interests are also qualitatively distinct. Put in other terms, there is not one right to vote. There are several.").
486. See Vikram David Amar & Alan Brownstein, The Hybrid Nature of Political Rights, 50 STAN. L. REV. 915 (1998) (addressing the dignitary, legitimizing, and good-government functions of the right to vote in Supreme Court doctrine as well as in public debates concerning the enactment of the Fifteenth and Nineteenth Amendments);
487. Gerken, supra note 361, at 1419-27 (identifying four germinal purposes in the Court's early malapportionment decisions: preventing "lock-up" of the political process by a numerical minority, guarding against group-based animus, ensuring that each voter effectively exercises her "fair share" of political power, and protecting citizens' dignitary interests against "expressive harms");
488. Karlan, supra note 6, at 709-19 (distinguishing among participation, aggregation, and governance values, each of which the right to vote might be thought to protect).