Election Law Cases Research Articles

In Electoral Disputes, State Justices Are Less Reliable GOP Allies than the U.S. Supreme Court—That’s the “Problem” the Independent State Legislature Claim Hopes to Solve

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

Abuse of Discretion: The U.S. Supreme Court’s Indefensible Use of Evidence in Election Law Cases

Abuse of Discretion: The U.S. Supreme Court’s Indefensible Use of Evidence in Election Law Cases

Texas Supreme Court 2020 Election Litigation: List of Cases with Hyperlinks to Dockets and Opinions

The 2020 elections were the most heavily litigated in U.S. history. Texas is no exception. This paper presents comprehensive data for election law cases filed in the Supreme Court of Texas (SCOTX), whether they resulted in an opinion or not. As of Nov. 9, 2020, the Texas Supreme Court has issued at total of 17 opinions in 31 election law cases, including concurrences and dissents. One member of the nine-member court, Justice John Devine, was a particularly active dissenter, with both separate opinions and with dissents merely noted on the docket. Some of the election-related cases were highly contentious and attracted ample media attention, as well as a total of 50 amicus curiae briefs and letters. The array of legal disputes before the Texas Supreme Court encompassed wrangling over ballot access by candidates (including those of minor parties), a dispute with the City of Houston over cancellation of the GOP’s in-person convention, the legal uncertainty regarding voters’ eligibility to vote by mail in times of pandemic, and efforts to squelch local election officials’ innovations in the management of elections, such as promotion of absentee voting as a pandemic mitigation strategy, drop-off locations for mail ballots, and drive-thru voting in Harris County. With respect to voting rights, the all-Republican Court ruled in a manner to restrict voting, consonant with President Trump’s rhetoric about voter fraud as also echoed by leading GOP politicians in Texas. The Republican Attorney General and is his army of litigators performed a leading role in that effort, both in public communication, and in state and federal courts. However, the Texas Supreme Court did not always favor Republican petitioners, rejecting requests for relief on various grounds, including lack of jurisdiction in one case and unjustified delays in bringing their complaints to the court. Not all of the controversies presented to the Texas high court led to decisions on the merits. Noteworthy is the Court’s rejection of Republican challenges to drive-thru voting in Harris County without ruling on whether the practice conforms with the Texas Election Code, and without resolving whether the validity of more than 120,000 ballots already cast by drive-thru voters was affected. Four sitting members of the court, including Chief Justice Nathan Hecht, were themselves on the ballots in 2020, and in the end comfortably won reelection even though Texas was said to be “in play” in the lead-up to early voting.

Undue Deference to States in 2020 Election Litigation

This Essay provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in 2020. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. In at least twenty-eight cases the Supreme Court and federal appellate courts espoused this undue deference standard. Appellate courts reversed at least 18 cases where the district courts had issued pro-voter decisions. The courts did not explicitly overrule the familiar Anderson-Burdick test for the right to vote, but it applied it unfaithfully and without any rigor, failing to require states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. This mode of analysis devalues the right to vote, the most fundamental right in our democracy. Several justices and one appellate court also reinvigorated the “independent state legislature” doctrine to defer to states’ election rules, without regard for the right to vote. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.

Election Law Originalism: The Supreme Court's Elitist Theory of Democracy

The standard topics of election law — such as campaign finance, electoral redistricting, and voter qualification laws — are facing a deeply uncertain future in large part due to the U.S. Supreme Court’s recent decisions. To consider the larger conceptual issues at stake in these decisions, this Essay addresses two inter-related questions. First: How should we conceptualize the role of the Supreme Court as an institution in these decisions? Second: What is the underlying conception of democracy that best elucidates the Court’s major election law decisions in the last decade or so? This Essay argues that the Supreme Court’s role in recent election law decisions cannot be easily reduced to a single or consistent approach. Instead, I claim that the Court majority’s opinions, when viewed from an external perspective, display a particular vision of democracy that is fundamentally elitist in its outlook. This elitist vision of democracy stands in marked contrast to the egalitarian vision of democracy that is evident in the dissenting opinions of the four liberal justices. I suggest further that this elitist conception of democracy is a familiar one — it has certain continuities (and discontinuities) with theories of republicanism that existed at the time of the Founding. Given the echo of founding era themes, this Essay considers the role of originalism in current election law decisions. It concludes that neither the Court’s decisions, nor the emerging elitist conception of democracy, fall within originalism strictly understood. That being said, the Essay suggests that some of the Court majority’s arguments display an “originalist orientation” in which original meaning takes a preponderant weight in the analysis even if it does not compel the overall outcome. In practical terms, this originalist orientation has significant implications for future election law cases because it means that, at least for some issues, the founding era is serving as an implicit baseline for the conservative wing of the Court. The Essay identifies three ways in which the Court majority’s originalist orientation matters: first, non-originalist precedents would likely carry less precedential weight; second, election law federalism would likely be interpreted in a manner hostile to egalitarian ideals; and third, electoral reform efforts could be thwarted. In future cases, this originalist orientation will likely reinforce the elitist conception of democracy and further erode the egalitarian approach to democracy.

The Boundary Problem and the Changing Case Against Deference in Election Law Cases: Lessons from Local Government Law

Abstract This essay for the 2016 AALS Section on Election Law Program, “Election Law at the Local Level,” applies lessons from local government law to election law problems. Both local government and international law scholars discuss something sometimes called the “boundary problem.” A simple belief in democracy or self-determination—or the decision of some group of voters—cannot provide much guidance about what the boundaries of a city, state, or nation should be. Before a geographically bounded group of voters can decide its own boundaries, who comprises the relevant group must itself be determined. Any such choice will exclude some people who claim an interest in the decision. The group of deciders cannot be determined democratically, as a vote to decide who decides would face the same problem. Some value other than self-determination must be introduced to determine who decides before any boundaries can be set. The implication is that any city, state, or country's decision about its own boundaries is ...

The Boundary Problem and the Changing Case Against Deference in Election Law Cases: Lessons from Local Government Law

This essay for the 2016 AALS Section on Election Law Program, “Election Law at the Local Level,” applies lessons from local government law to election law problems. Both local government and international law scholars discuss something sometimes called the “boundary problem.” A simple belief in democracy or self-determination — or the decision of some group of voters — cannot provide much guidance about what the boundaries of a city, state, or nation should be. Before a geographically-bounded group of voters can decide its own boundaries, who comprises the relevant group must itself be determined. Any such choice will exclude some people who claim an interest in the decision. The group of deciders cannot be determined democratically, as a vote to decide who decides would face the same problem. Some value other than self-determination must be introduced to determine who decides before any boundaries can be set. The implication is that any city, state, or country’s decision about its own boundaries is not due any particular deference on democratic grounds. The Supreme Court has endorsed this view, giving states virtually free reign to determine who should participate (if anyone) in elections setting local boundaries. There is a functional analogy between election laws and boundary drawing. Like determinations about the boundaries of a polity, election laws determine who may participate as part of tomorrow’s electorate and how those votes will be aggregated. Because both involve decisions that include or exclude others from the body politic, the boundary problem should also apply to election law. This fresh way of thinking about election law suggests that courts should not give their ordinary, democratically justified deference to legislative enactments in election law cases, one quite distinct from traditional principal-agent-style concerns. Further, the boundary problem can help explain the Court’s skeptical attitude in cases like Lucas v. The Forty-Fourth General Assembly of the State of Colorado, where voters themselves in a referendum choose a system other than equal representation. Finally, the boundary problem bites more severely when local governments pass election laws. Local governments have all sorts of tools for determining who may live in town — from taxes to land use — that can entrench today’s majority. Local election laws provide these majorities with yet another tool, which makes competition even more unlikely. Whatever deference is due in election law cases generally, courts should give less deference to locally-drawn election laws.

The Maturing of Election Law

If one were to choose a hot field in the academy today, election law would certainly fall near the top of the list. Election law cases such as Bush v. Gore and Citizens United v. Federal Election Commission have dominated our public discourse and transformed the shape of our country's politics to such an extent that even most educated lay people have heard of them. Twenty years ago, election law scarcely existed as a field. Today, it enjoys a rapidly growing literature and a continually expanding presence in the legal academy. This introduction to Election Law Stories (2016) charts the rise of election law as a field. It tells the story of the birth of election law, of how the field reached its adolescence and even adulthood through a number of new publications, and of how election law scholars have tried to chart a unique intellectual path by distinguishing their field from constitutional law.Born in the 1980s, when the first classes in the subject were taught by scholars such as Richard Briffault at Columbia, Daniel Lowenstein at UCLA, and Roy Schotland at Georgetown, election law moved from infancy to childhood fairly quickly. In 1995, Dan Lowenstein published the field's first casebook. Soon new scholars entering the legal academy increasingly began making election law the focus of their research. In 1998, as a result of the efforts of three such scholars, Samuel Issacharoff, Pamela Karlan, and Richard Pildes, the field’s second casebook appeared. Election law's adolescence arrived during the first ten years of the twenty-first century. By 2001, the field had its own peer-reviewed journal, the Election Law Journal. In 2004, a research institute devoted exclusively to studying election law issues, the Election Law @ Moritz program, had been launched at The Ohio State University’s Moritz College of Law, where there were soon four election law scholars on the faculty. Then, in 2010, election law began witnessing a growth spurt that few other fields could match. Over the course of the next four years, three new election law casebooks would be published. The field's third casebook, authored by Michael Dimino, Bradley Smith, and Michael Solimine, came out in 2010. A fourth casebook, by James A. Gardner and Guy-Uriel Charles, appeared in 2012. And a fifth casebook, penned by Edward B. Foley, Michael J. Pitts, and Joshua A. Douglas, was published in 2014. Meanwhile, in 2014 the Association of American Law Schools (AALS), the umbrella organization that governs law schools in the United States, also inaugurated a brand-new Section on Election Law. Beyond its major casebooks, election law for a long time did not possess any secondary sources for classroom instruction. This situation was rectified when Daniel P. Tokaji published an election law Nutshell guide in 2013, Richard L. Hasen published an election law Examples & Explanations book in 2014, and Joshua A. Douglas and Eugene D. Mazo published an Election Law Stories book in 2016. These publications marked the growth of the field as it further developed and matured into early adulthood. Today, no one can claim that election law does not constitute its own field of study within the legal academy.To bring their field to maturity, election law scholars have also done something else: they have severed the field’s ties with its parents, constitutional law and political science. In 1999, Pamela Karlan predicted that election law would be "leaving constitutional law's empire." Within a decade, that break was complete. By 2010, Heather Gerken told us, election law scholars had "declared their independence from constitutional law in a bloodless revolution." Most election law scholars do not view their discipline as a sub-field of constitutional law, in the way that First Amendment scholars or Equal Protection scholars do. Rather, they view election law as a separate discipline. It is a discipline, moreover, that has its own "canon." This essay describes the differences between election law and constitutional law and the cases that comprise election law's canon. The histories of these cases are told in Joshua Douglas and Eugene Mazo's Election Law Stories book.

De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation. Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction. This Article presents a new framework for determining the proper scope of injunctive relief in election law, voting rights, and other constitutional cases. First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented Injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.This Article further contends that, when plaintiffs file a non-class case seeking to enjoin a legal provision, the court should determine at the outset whether a Plaintiff- or Defendant-Oriented Injunction would be necessary if the plaintiffs prevail. If a Defendant-Oriented Injunction would be required, the court should order that the case proceed as a Rule 23(b)(2) class action so that all right holders who stand to benefit from a favorable ruling are included as class members. Conducting such an analysis at the outset of the case eliminates most of the concerns implicated by Defendant-Oriented Injunctions.

What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012

In this brief Article, forthcoming in the Federal Bar Association's magazine, the Federal Lawyer, I aim to do three things. First I canvass the nature of election law disputes which are likely to come to federal courts in the 2012 election season, focusing on constitutional questions arising from the interaction of state and federal courts in this area. Second, I discuss timing strategies which federal courts can and should use to avoid conflicts with state courts and to avoid becoming further enmeshed in the political thicket. Third, and most controversially, I suggest that federal courts be aware in evaluating election law disputes of the potential for subconscious bias on the part of election administrators, state courts, and federal judges themselves. I use examples from two important election law cases: Roe v. Alabama and Ohio Republican Party v. Brunner. I conclude with steps federal courts can take to minimize the potential for subconscious judicial bias and threats to the legitimacy of both the judiciary and the electoral process.

The Supreme Court's Shrinking Election Law Docket, 2001–2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?

Abstract This article describes the drop in Supreme Court election law cases in the first decade of the twenty-first century, and offers at least a partial explanation as to the reasons for the drop. Although the general amount of election law litigation has risen dramatically since 2000, the number of cases in which parties sought Supreme Court review declined by more than 36 percent from the 1991–2000 decade compared to the 2001–2010 decade. Factoring that decline into account, the data show that the Court issued written opinions in nearly the same percentage of election law cases each decade in which parties sought Supreme Court review—11.9% of cases in the 1991–2000 decade, and 10.5% of cases in 2001–2010. While I cannot exclude the possibility that the Court shied away from hearing some election law cases out of Bush v. Gore fatigue or as the result of random noise, the drop in the number of election law cases in which litigants sought Supreme Court review cases seems to explain a great deal of the d...

THE PROCEDURE OF ELECTION LAW IN FEDERAL COURTS

Much attention is paid to the substantive outcomes of election law decisions. But little scholarship focuses on the mechanisms by which election law cases traverse the federal courts. This article fills that void. The article first identifies the goals Congress should try to achieve in creating special procedures for election law cases. Congress has deemed election law cases to be particularly important given the foundational issues at stake in resolving election law disputes. Accordingly, the legislature has created various procedural mechanisms to shepherd these cases through the federal courts. What goals should underlie these processes? Based on the importance of election law cases to the foundation of our representative government and the history of judicial involvement in elections, election law court procedures should try to achieve the following goals: timeliness, accuracy, legitimacy, minimization of ideology, maximization of each judge’s skills, and signaling of the importance of election law cases to our democratic order. Although these goals may certainly be laudable for all cases, they are particularly important to elevate in the election arena given the high stakes involved and the importance of fair elections to the functioning of our democracy. Next, the article dissects the three ways federal courts hear election law cases. First, a case can follow the “traditional” three-tiered path, starting with a single district judge, with direct appeal to a three-judge panel of the court of appeals and discretionary en banc or Supreme Court review. Second, certain cases start with a three-judge panel of the district court, which is comprised of two district judges and one circuit court judge, with direct mandatory appeal to the Supreme Court. Third, in a minority of election law cases, a dispute originates with a single district judge, who certifies nonfrivolous constitutional questions to the en banc circuit court, with certiorari review at the Supreme Court. The article explores each of these mechanisms, highlighting the intended and unintended consequences of each system. In particular, the article evaluates whether each process meets the six goals for federal court involvement in election law cases. The article concludes by proposing, for all election law cases, a procedure that elevates these ideals: a modified form of the en banc certification process used in some federal court cases (which I term modified direct en banc review). This system best achieves the important goals identified earlier in the paper and streamlines federal court involvement in elections.

Veil of Ignorance Rules in Election Law

Election law struggles with the question of neutrality, not only with its possibility — can election rules truly be neutral between parties?—but also with its definition. What does it mean for election laws to be ― neutral? This Article examines one form of election law neutrality, found in what it terms ― veil of ignorance rules Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections.This Article considers the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a ― resident of the city in which he plans to run for mayor (Rahm Emanuel‘s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates.Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Professor Rick Hasen has recently dubbed ― the democracy canon. The canon suggests that ambiguous election law rules should be read in a way that maximizes voter enfranchisement and voter choice. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage — even if those rules serve to limit voter participation.Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases.

The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?

A funny thing happened after the Supreme Court decided Bush v. Gore, the controversial December 2000 case ending the presidential election litigation between Al Gore and George W. Bush: over the next decade, from 2001 to 2010, the number of election law cases decided by the Supreme Court with a written opinion fell to 30 cases, the lowest level since the 1950s. The drop occurred at the Supreme Court even as the amount of election litigation in the lower courts more than doubled compared to the period just before Bush v. Gore and even as the scholarly field of election law exploded.This brief Article describes the drop in Supreme Court election law cases in the first decade of the twenty-first century, and offers at least a partial explanation as to the reasons for the drop. Although the general amount of election law litigation has risen dramatically since 2000, the number of cases in which parties sought Supreme Court review declined by more than 36 percent from the 1991-2000 decade compared to the 2001-2010 decade. The decline appears particularly steep after Justice O’Connor left the Court, replaced by Justice Alito.Factoring that decline into account, the data show that the Court issued written opinions in nearly the same percentage of election law cases each decade in which parties sought Supreme Court review – 11.9% of cases in the 1991-2000 decade, and 10.5% of cases in 2001-2010. While I cannot exclude the possibility that the Court shied away from hearing some election law cases out of Bush v. Gore fatigue or as the result of random noise, the drop in the number of election law cases in which litigants sought Supreme Court review cases seems to explain a great deal of the decline.This Article concludes by considering why the number of cases in which litigants sought Supreme Court review dropped so precipitously in 2001-2010 even as the total number of election law cases in the lower courts increased dramatically. One reason is that liberal litigants who had sought review especially in voting rights cases in the 1990-2000 period were less willing to do so in the 2001-2010 period, likely because they expected unfavorable results before the more conservative Roberts Court. The 2005-2010 period is especially important; the number of election law petitions in the Supreme Court dropped precipitously after Justice Alito joined the Court. The other reason is that many of the lower court cases making up the election law explosion were state cases involving state statutory interpretation issues, rarely raising federal constitutional or statutory claims within the Supreme Court’s purview.

The Supreme Court and Election Law: A Reply to Three Commentators

Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator. Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice.In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.

Bush v. Gore and the Future of Equal Protection Law in Elections

The Supreme Court's per curiam majority opinion in Bush v. Gore held that a state violates equal protection when its fails to have uniform standards for the recounting of votes during a statewide election contest. Part I of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent; it ignored serious standing questions; and, most importantly, the Court appeared to speak the language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor.Part II of this Article considers not whether the Court meant what it said, but rather what would be the consequences if the Court indeed meant what it said. The equal protection jurisprudence of Bush v. Gore moves election law jurisprudence to an uncharted of political equality - equality in the procedures and mechanisms used for voting. Part II explores a range of election law cases that may be subject to a third level political equality claim. It concludes that, if the case were taken seriously, Bush v. Gore would have great precedential value in changing a host of voting procedures and mechanisms, particularly when challenged prospectively. Part III of this Article explores the benefits, costs, and implications of expanding equal protection to such third-level claims. The benefits of the approach are fairly obvious: a precedent requiring scrupulous equality in the holding of elections will increase resources used to conduct elections. But expanding political equality to the would be a mixed blessing. Putting aside costs, three concerns arise with extending equal protection jurisprudence to the nuts-and-bolts of elections. First, third-level claims provide a new reason and a pretext for federal courts to nullify state and local election results. Second, third-level claims undermine federalism. Third, third-level claims create a disincentive for jurisdictions to experiment with new methods of voting, such as internet voting.Finally, it is worth thinking about the doctrinal implications of extending equal protection jurisprudence to the level. It is unclear whether extension of equal protection to the differs meaningfully from arguments calling for greater political equality in terms of electoral structures (such as Justice Marshall's argument in his dissent in Mobile v. Bolden) and financing election campaigns (such as the arguments of Jamin Raskin and John Bonifaz).