Protecting Political Participation Through the Voter Qualifications Clause of Article I

INTRODUCTIONRecent political and legal debates over elections have focused on the authority that states have under federal law and their respective state constitutions to enact regulations that are more restrictive of voting rights than prior practices.1 For example, several state legislatures have enacted strict voter identification laws on the grounds that such laws are necessary to combat the risk of in-person voter fraud, a claim that some courts and commentators have found to be insufficient to justify the burden on the right to vote.2 Other battles have focused on the constitutionality of documentary proof of citizenship and English proficiency requirements as prerequisites to voter registration.3 All of these disputes have centered on the scope and contours of the states' authority to regulate access to the ballot, although it is widely assumed that states have broad authority in this area.4The caselaw regarding the states' power to circumscribe voting rights is inconsistent, and much of the blame is due to the asymmetrical framework established by the U.S. Supreme Court more than four decades ago. In a series of cases, the Court held that the Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution confers a fundamental right to vote in federal elec - tions.5 Yet the Court stopped short of according the same protection to the right to vote in state elections, even though Article I links state and federal political participation by requiring federal voters to "have the qualifications requisite for the electors of the most numerous branch of the state legislature."6 In Harper v. Virginia Board of Elections, the Supreme Court opted instead to ground the right to vote in state elections in the Equal Protection Clause of the Fourteenth Amendment, which permits the state to choose whether to extend the right to vote, but once available, the state must offer it on equal terms.7 The equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority,8 has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both.9Application of the current standard of review rarely leads to the invalidation of restrictive voting laws because the Supreme Court does not place the onus on the state to justify them.10 Contrary to this approach, this Article contends that the Voter Qualifications Clause of Article I requires that states aggressively protect political participation in order to safeguard federal voting rights.11 Because Article I funnels all political participation through the aegis of the state, courts should be more attentive to state electoral rules and apply heightened scrutiny to all regulations governing the right to vote. Under heightened scrutiny, the Court would strike down restrictive regulations that are not supported by empirical evidence, or that do not directly respond to a problem in the state's electoral system.Applying heightened scrutiny is more consistent with the constitutional text and history than the current approach because the original understanding of Article I was that political participation in federal elections would mimic the robust levels of participation that existed in the states.12 Historically, states have always had high levels of citizen involvement in elections and governance.13 This remains true, as the American people enjoy an explicit right to vote under 49 out of 50 state constitutions; directly elect almost all of their state officials; and participate in lawmaking through direct democracy in many states.14 This history reveals that the right to vote in state elections is best understood, not as an equal protection fundamental interest subject to retraction, but as the centerpiece of a bundle of participatory rights derived from state law that citizens used during the founding era to directly influence and participate in government. …