Duke Law Journal

Ballot Bedlam

Abstract

In both law and public scrutiny, renewed attention is being given to the simple act of casting a ballot. At a time when the formal act of voting has been relaxed, and more than a third of Americans cast their ballots in a manner other than voting at the polls on Election Day, there is a decided pushback. In some sense this is hardly novel; questions of ballot integrity and ballot access have been recurring issues in the United States from Reconstruction to the Civil Rights Era. In both of these previous eras, enfranchisement and disenfranchisement had a partisan edge, but were understood to be battles over the black franchise—and properly so. Whether that remains the case is the subject of this Article.

The inquiry begins with the partisan implications of turnout and focuses primarily on the partisan dimension of new efforts at ballot restriction. This Article contends that although issues of the franchise correlate with race, as does the partisan divide between Democrats and Republicans, the new battles over ballot access do not readily lend themselves to a narrative that focuses primarily on racial exclusion. Rather, they point to a deep vulnerability of American democracy in entrusting election administration and election eligibility to local partisan control.