Douglas: “A Silver Lining to the ‘States Rights’ Portion of Justice Scalia’s Opinion”

Here is a guest post from Josh Douglas:

Justice Scalia, in his majority opinion in Arizona v. Inter Tribal Council, explained that “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”  The point, for Justice Scalia, is that Article I, Section 4 of the U.S. Constitution gives Congress the power to regulate only the “times, places, and manner” – the “how” – of elections, but under Article I, Section 2, states retain the ability to determine the qualification of electors, even for federal offices – the “who” may vote.

This language from Justice Scalia’s opinion has caused some concern among the voting rights community.  Allowing states to determine voter qualifications could open the door to restrictive requirements, such as strict voter ID laws.

But there may actually be a silver lining within state qualification rules themselves.  As I recount in a new paper, virtually all state constitutions – which include the state’s voter qualification requirements – explicitly grant the right to vote to the state’s citizens before listing the required qualifications voters must possess.  For example, Wisconsin’s Constitution – the subject of recent voter ID litigation – provides that “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”  That is, most state constitutions explicitly grant the right to vote and then provide several voter qualifications, which are typically age, citizenship, and residence.  A few state constitutions also take the right away for those who are mentally incompetent or convicted felons.  (Interestingly, Arizona’s is the only state constitution that does not include an explicit grant of voting rights, but it does provide that elections shall be “free and equal.”)  Additional qualifications that are not enumerated in the state constitution would violate this explicit grant of the right to vote.  The problem, however, is that many state courts have “lockstepped” their state constitutions with federal jurisprudence for the right to vote under the U.S. Constitution, reading the state constitutional provision to go no further than the U.S. Constitution.  Of course, the U.S. Constitution does not grant the right to vote; it is implied within the Equal Protection Clause of the Fourteenth Amendment.  And recent Supreme Court jurisprudence on federal protection for the right to vote has been quite limited.

If Justice Scalia is correct that state qualification rules are what matters and that Congress has no authority to determine qualifications under the U.S. Constitution, then state courts are wrong in using the “lockstep” approach for their constitutional right to vote provisions.  These clauses are broader than the protection afforded under the U.S. Constitution.  They should therefore operate to enjoin strict legislatively-enacted voter qualification requirements, even if those requirements may be permissible under the federal Equal Protection Clause.

In short, Justice Scalia’s push for a renewed focus on state qualification rules might actually be a move in the right direction for voters, at least where it comes to the constitutional right to vote.  The question is whether state courts will follow suit and give their constitutional provisions the independent meaning and scope their language requires.

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