Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote

Authors

Christopher S. Elmendorf

Abstract

Judges and law professors alike have worried that an avowedly structural approach to constitutional adjudication of political rights would embroil the courts in contested questions that are beyond their competence to resolve. This Article calls that premise into question. It attempts to demonstrate that the Supreme Court's severe/lesser burden framework for electoral mechanics cases, if meshed with a wholly individualistic conception of voting rights, threatens to open a Pandora's Box of new constitutional claims that judges would have little choice but to resolve on the basis of their personal sense of political fairness. By contrast, a conception of "burden" linked to aggregate patterns of voter participation would enable the courts to develop objective and selflimiting standards for when to intervene. To be sure, the "representative voting public" norm advanced here could be applied in an aggressive manner by an activist court. But suitably limited-with a strong presumption of permissibility for ordinary voting requirements, and with a threshold requirement that plaintiffs demonstrate large, politically substantial effects as the trigger for heightened scrutiny-the norm would not be threatening.

Recommended Citation

Christopher S. Elmendorf, Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote, 35 Hastings Const. L.Q. 643 (2008).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss4/3