Joshua Sellers and Justin Weinstein-Tull have posted this draft on SSRN (forthcoming, NYU L Rev). Here is the abstract:
The right to vote is foundational in our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to breakdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is agnostic about voters’ circumstances and is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.
To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to construct and fund elections systems and effectively administer elections. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent election management, and the right to democratic structure), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.
Looking forward to reading this!