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Category Archives: Constitutional Right to Vote
Codrington on Voting and State Constitutions
Wilfred U. Codrington III, Voting Under State Constitutions (forthcoming, Oxford Handbook of American Election Law):
Unlike their federal counterpart, state constitutions confer the right to vote in plain and affirmative terms. State charters also contain unique provisions that, among other things, regulate the redistricting process and set out the terms for political participation, including direct citizen lawmaking. And critically, state constitutions interact with the federal Constitution, which limits them in meaningful respects, while also governing the local administration of elections. Indeed, every political contest has aspects that are governed by state constitutions, making them an integral, yet underappreciated, source of American election law. This chapter underscores these and other crucial points by examining several dimensions of voting under state constitutions. It first lays out a broad history of voting under state charters. Then it provides a general overview of key structural components of state constitutions that govern the right to vote, followed by a brief assessment of two particularly important doctrinal matters explained in the context of particularly contested issues. Finally, the chapter closes by raising a few topics that would benefit from additional research and exploration to advance the scholarship in this ever-developing area of election law.
Coming Feb. 2024: My New Book: “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy”
Very excited to be working with Princeton University Press on this new book. More to come!
11th Circuit finds Alabama’s felon disenfranchisement law passes constitutional scrutiny
From an opinion by Judge Tjoflat, joined by Judge Moody (sitting by designation) in Thompson v. Secretary of State for the State of Alabama (lightly edited):
Greater Birmingham Ministries, an Alabamian non-profit organization dedicated to aiding low-income individuals, and several Alabamian felons appeal the District Court for the Middle District of Alabama’s summary judgment denying their Equal Protection Clause, U.S. Const. amend. XIV, § 1, challenge to Amendment 579 of the Alabama state constitution, their Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, challenge to Amendment 579’s disenfranchisement provisions, and their National Voting Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., challenge to the format of Alabama’s mail voting registration form. Because we hold that (1) Amendment 579 successfully dissipated any taint from the racially discriminatory motives behind the 1901 Alabama constitution; (2) Amendment 579 does not impose punishment for purposes of the Ex Post Facto Clause; and (3) Alabama’s mail voting registration form complies with the NVRA, we affirm.
Judge Rosenbaum concurred in part and dissented in part in a longer opinion, which opens:
Deceiving an elector in preparation of her ballot. Altering another person’s ballot. Failing to count legally cast absentee votes. Illegally voting more than once in an election (second violation). Willfully and intentionally signing the name of another elector in a poll book. Bribery of public servants. And perjury.
Perhaps this recitation sounds like a list of felonies that would disqualify an Alabamian from voting under Amendment 579 to Alabama’s constitution—Alabama’s felon-disenfranchisement provision. Nope. Those convicted of any of these voting-fraud-related felonies are A-okay, good to go when it comes to voting in Alabama. Alabama exempts them from its felon-disenfranchisement provision, Amendment 579. Under that provision, only other felons—those convicted of felony crimes that Alabama says are crimes of “moral turpitude”—can’t vote.
Even worse, in the nearly thirty years since Alabama amended its felon-disenfranchisement provision, Alabama has de-fined the phrase “moral turpitude” in contradictory or non-uni-form ways. At one point, Alabama even allowed each local registrar to interpret the term for herself. In other words, when Alabama precluded those convicted of felony crimes of “moral turpitude” from voting, it may as well have excluded those convicted of “whatever felonies Alabama (or any of its local registrars) at any point in the future might say disqualify a voter,” as Alabama had no definition of the phrase “moral turpitude” in mind.
All of this raises the question: just what was Alabama trying to accomplish with its felon-disenfranchisement provision?
. . .
Indeed, when, as here, the amended law does nothing to advance its stated purpose, it cannot cleanse the taint of its discriminatory origins. For that reason, if I were not bound by our precedent, I would hold that Alabama’s felon-disenfranchisement provision violates the Equal Protection Clause. But since I am bound, I cannot and must instead conclude that, under our case law, the provision does not violate the Equal Protection Clause.
That said, though, Alabama’s felon-disenfranchisement statute and its voter registration form do violate the Ex Post Facto Clause and the National Voter Registration Act, respectively. So I would reverse the district court’s denial of those challenges.
Videos from Brennan Center Symposium on Amending the Constitution and Article V Now Available
Great lineup of folks here.
I’m Giving the Emroch Lecture at the University of Richmond on March 27: “A Constitutional Right to Vote: Why We Need It and How to Get It”
Very excited to be giving this lecture at the University of Richmond.
The University of Richmond School of Law will host Richard Hasen as the 2023 Emroch Lecturer on Monday, Mar. 27 at noon. Professor of law and political science and director of the Safeguarding Democracy Project at UCLA Law, Hasen will present “A Constitutional Right to Vote: Why We Need It and How to Get It.”
It’s time to go on the offensive to protect voting rights. The quadrennial angst this country endures each presidential election cycle over whether we can hold free and fair elections is the product of a dysfunctional, decentralized, partisan election system administered under a national constitution that does not adequately protect voters’ ability to vote and to have each eligible ballot fairly and accurately counted. Professor Hasen will discuss why we need to amend the Constitution to protect the right to vote, what should be in such an amendment, and how to get such an amendment passed in our current polarized political and legal system.
The lecture will be held in person in the Moot Courtroom at the University of Richmond School of Law.
This event is made possible by the Emanuel Emroch Endowment, created in honor of Emanuel Emroch, L’31, founder and president of the Richmond and Virginia Trial Lawyers Association and a member of the International Academy of Trial Lawyers. The Endowment brings engaging and topical speakers to Richmond Law for the benefit of students, faculty, and the local community. Today, the Endowment is supported by Emroch’s son and daughter-in-law, Walter and Karen Emroch.
