Judicial Enforcement of a Grand Election Bargain

Abstract

This Article seeks to combine these strains of the literature to argue for a world where, at the very least, a state's adoption of a strict photo identification law, such as Indiana's photo identification law, would result in that state's advance registration requirement being declared unconstitutional by either the federal or state judiciary. In arguing for this result, this Article endorses Professor Tokaji's grand bargain as a matter of policy, but remains skeptical that such a grand bargain could ultimately be forged in Congress (or even at the state legislative level). This Article also sympathizes with those commentators who desire the judiciary to enjoin advance voter registration requirements, but views very broad judicial intervention as unlikely. Instead, this Article advocates for a more limited judicial role that might ultimately serve as a way station to ultimately achieving a system of election administration that universally embraces Election Day registration.