Sensible election regulations balance the small-d democratic values of election security and participation so that voters can cast ballots and be confident that their votes are counted. But, achieving sensible regulations is complicated by a partisan political environment. Because regulations are often believed to favor one party over the other, parties push reforms for their own advantage under the pretext that they promote democracy.
This paper argues that courts should assess whether a voting regulation is a valid attempt to balance participation and security by resisting partisan rhetoric and prioritizing empirical evidence. The Court’s current Anderson-Burdick balancing test provides an adequate doctrinal framework for achieving this goal, but a more detailed version is needed. Courts should consider common sense criteria, like whether a regulation is passed close to an election, whether it interacts with other regulations to promote partisan advantage, and whether it produces durable reductions in voter turnout.
To illustrate the argument, the paper examines two issues: protecting election officials from threats and convenience voting. For threats against election officials, the evidence suggests judges should prioritize the state’s security concerns. Election officials are critical to election administration, and threats against them are increasing at an alarming rate. For convenience voting, courts should acknowledge that they increase participation at the expense of election security and may compromise other values. Whether convenience voting is good for democracy depends on facts.
* Professor of Political Science; Director, Bill Lane Center for the American West, Stanford University.
** Ph. D Candidate in Political Science, Stanford University; J.D. Stanford Law School, 2024.
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