The Right to Vote Under State Constitutions

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." But 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 U.S. Constitution, which mentions voting rights only implicitly. Yet those seeking to protect the right to vote have largely ignored the force of state constitutions, particularly because many state courts "lockstep" their state constitutional voting provisions with the narrow protection the U.S. Supreme Court has afforded under the Fourteenth Amendment's Equal Protection Clause. This mode of analysis curtails the broader explicit grant of voting rights in state constitutions.This Article explains why the 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 the outcome of state constitutional challenges to voter ID laws turns on whether the reviewing state court faithfully and independently applies the state constitutional provision conferring voting rights. The textual and substantive differences between U.S. and state constitutional voting-rights protections requires a state-focused methodology for state constitutional clauses that grant the right to vote. Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine voter eligibility. State constitutions explicitly confer voting rights, while the U.S. Constitution merely implies the right to vote through negative language. In addition, the right to vote deserves the most robust protection possible, which is generally provided within state constitutions. The Article proposes a test for state courts to use when construing their constitutional voting rights clauses: a court should hold a law that adds an additional voter qualification beyond what the state constitution allows to be presumptively invalid; accordingly, courts should require a state to 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.I. INTRODUCTIONWhat is the right to vote? This question has befuddled courts,1 law professors,2 historians,3 and policymakers4 for years. We hear that the right to vote is "fundamental,"5 the "essence of a democratic society,"6 and "preservative of all rights."7 We know that voting is sacred. Yet we are still searching for a solution to the puzzle of how best to protect voting rights.The answer, however, is right in front of us: state constitutions. Virtually every state constitution confers the right to vote to its citizens in explicit terms.8 Moreover, the U.S. Constitution directs the inquiry over voter eligibility to state sources.9 As Justice Scalia recently declared, the Elections Clause of the U.S. Constitution "empowers Congress to regulate how federal elections are held, but not who may vote in them."10 Voter eligibility rules are leftinstead to the states. But state courts, much like federal courts, have largely underenforced the right to vote because they have too closely followed federal court voting-rights jurisprudence. A renewed focus on the power of state constitutions provides the answer for how best to protect the fundamental right to vote.The year 2012 may go down as the year of voter ID. Courts considered various aspects of challenges to new requirements that voters show a photo identification to vote in Pennsylvania,11 Wisconsin,12 Tennessee,13 Texas,14 and South Carolina. …