Volume 82, Number 4

October 2007

Disenfranchisement and the Constitution: Finding a Standard that Works

Demian A. Ordway

Since the presidential election of 2000, a host of new claims has arisen alleging unlawful denial of the right to vote. Litigants have challenged the use of error-prone voting machines, misleading registration forms, and the highly controversial photo identification requirements for in-person voting. The law protecting the right to vote, however, is in disarray, leaving courts confused and unsure of how to proceed with these challenges. In particular, courts have disagreed sharply over the content of the relevant constitutional standard and how to apply it. Some courts have adopted the standard articulated by the Supreme Court in its 1992 decision, Burdick v. Takushi, while others have applied strict scrutiny. This Note criticizes the Burdick standard for being incapable of producing consistent results and advocates for a modified version of strict scrutiny motivated by structural concerns inherent in the democratic process.