“The Right to Vote Under State Constitutions”

Josh Douglas has posted this draft on SSRN (forthcoming, Vanderbilt Law Review).  Here is the abstract:

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is “fundamental,” the “essence of a democratic society,” and “preservative of all rights.” Yet courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the federal constitution, which mentions voting rights only implicitly. And yet those seeking to protect the right to vote have largely ignored this state constitutional source. This is because many state courts “lockstep” their state constitutional voting provisions with federal jurisprudence of the right to vote under the Fourteenth Amendment’s Equal Protection Clause, following the U.S. Supreme Court’s lead in curtailing voter protections. The article explains why this lockstepping approach is wrong for the right to vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent voter ID litigation, showing how various state courts have differed in determining whether voter ID laws are constitutional based on whether the courts faithfully apply the state constitutional provisions conferring voting rights. The federal-state structure of voting rights protections requires a state-focused interpretation for state constitutional clauses that grant the right to vote. First, Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine voter eligibility. Second, the textual and substantive differences between federal equal protection voting rights jurisprudence and state constitutional grants of the right to vote counsel toward a state-first methodology. The article also proposes a test for state courts to use when construing their constitutional voting rights clauses: a law that adds an additional voter qualification beyond what the state constitution allows is presumptively invalid, and a state must justify burdens on the right to vote with specific evidence tied to the legislature’s authority under the state constitution. Finally, an Appendix presents a chart illustrating all fifty state constitutions and the language they employ for the right to vote.

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