Voting as a Positive Right: A Reply to Flanders
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Chad Flanders' thoughtful article1 demonstrates that the Murkowski litigation raised questions with surprisingly fundamental implications for election law. This brief response addresses just one of the those questions. The question, which at first blush sounds awfully narrow and wonkish, is this: Can a state allow write-in votes, but discourage them by making them difficult to cast?2 I will argue that the answer is no - for reasons that highlight two fundamental, but underappreciated, aspects of election law.