“When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”

I have posted this short essay on SSRN, a work in progress which I will present at a November symposium for the University of Chicago Legal Forum.  Here is the abstract:

Since Bush v. Gore, some Republican officials have insisted on uniformity of election administration in the name of equal protection. More specifically, they have enacted or advocated uniform early voting timetables and bans on Sunday voting throughout a state. But there is a fundamental flaw in the blanket calls for uniformity across counties (or electoral jurisdictions) in the name of equal protection principles from Bush v. Gore: uniformity across counties sometimes undermines the Equal Protection rights of voters because counties have different size populations. In this short Essay I argue that election administration rules premised on uniformity of counties violate Bush v. Gore or other equal protection principles whenever a rule of election administration treats differently populated counties the same but the relevant rule significantly affects the level of services provided to individual voters.
Indeed, even if Bush v. Gore ultimately has no precedential value (or no precedential value outside the narrow confines of a case involving statewide recounts of votes), uniform election law treatment across counties sometimes violates one person, one vote principles and is unconstitutional under the Equal Protection Clause. Using this analysis, I conclude that requirements of uniform early voting days and times across counties could well be unconstitutional, but a ban on Sunday voting would likely be constitutional so long as the number of hours offered to voters overall gives voters in different counties roughly the same opportunities to vote. Challengers to a statewide ban on Sunday voting, or to leaving the choice discretionary to counties, would have to raise a different Equal Protection theory.

Comments welcome!

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