Professor Tokaji emphasizes three ways in which his approach to election law differs from Professor Elmendorf’s. First, he argues against conflating election administration and ballot access cases “under the rubric of ‘election mechanics.’” Second, “when setting the level of scrutiny in constitutional election administration cases, [he] would place special emphasis on whether a particular electoral practice can be expected to burden participation by groups that remain underrepresented in the electorate . . . .” Third, he supports deference to trial court findings because he believes that “election administration cases tend to turn on subtle factual differences that trial courts are generally in the best position to evaluate.”
Volume 156 2008 Response