Why Not Stick with Burdick?
At the level of theory, a distinctive threshold test for fencing-out claims is warranted because courts that focus exclusively on the “size” of the burden are sure to miss a significant class of harmful laws. Constitutional law should be concerned not only with what putatively exclusionary voting legislation does, but also with what it communicates, what it leads citizens to believe about the integrity of the political process. Laws that reasonable onlookers regard as attempts to prevent disfavored political factions from registering their political preferences work a special harm to public confidence in government. Courts might perform a real service to democracy by striking down egregiously intended (even if rather ineffectual) exclusionary legislation and, perhaps as importantly, by legitimating contentious bills that some citizens otherwise would regard as mischievously intended. The second rationale for a Carrington companion to Burdick is that sometimes it is impractical to estab
