Let State Courts Protect Voting Rights. They’re Great at It.

The law, lawyers, and the court.
Jan. 21 2014 2:06 PM

The Right to Vote: A State Right

A state court understands that state constitutions provide the real protection for the right to vote.

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The importance of last week’s ruling thus lies in the fact that the Pennsylvania court understood the importance of its state constitutional grant of the franchise and gave independent force to its own constitution. The decision is a watershed for protecting the right to vote. The court noted that its state constitution requires that elections shall be “free and equal” and that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Accordingly, the court held the state to the highest test of “strict scrutiny” to justify its law. Pennsylvania had to demonstrate that it had a “compelling interest” in enacting the new voter ID requirement. Broad platitudes about ensuring election integrity were insufficient under such an exacting standard. The state was required to show that it actually suffered from a voter fraud problem at the polls and that its voter ID law would help to fix it.

Pennsylvania conceded that it could not present any actual evidence that its elections suffer from in-person voter impersonation—the only kind of fraud a voter ID law would prevent. Based on the stricter standard, the court found that “a vague concern about voter fraud does not rise to a level that justifies the burdens constructed here.”

This approach alters the scope of voting rights protection: Under U.S. Supreme Court rulings, the plaintiff was forced to somehow prove a negative—that the state does not have a valid basis for generally asserting election integrity as the basis for the law. But under the Pennsylvania court’s proper understanding of its own constitution, the roles are reversed: The state must justify its voter ID law, showing that it does have a specific election integrity problem and that the voter ID law will address it. This, of course, is how it should be: If the right to vote is so foundational to our democracy, it should be the state’s obligation to justify restrictions on that right, not the other way around.

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This does not mean that all voter ID laws are inherently suspect.  But it does require a state to gather enough specific evidence of the need for the law and then to craft a law narrow enough so that it won’t burden the right to vote.  The result would be a better-supported and better-tailored voter ID law that would likely garner bipartisan support.

The Pennsylvania court’s decision is a step in the right direction for protecting the right to vote. The court was correct in rejecting the narrower approach of the U.S. Supreme Court. It also provides something for everyone: invalidating a poorly-justified voter ID law, which liberals will like, yet doing so under the state constitution, which conservatives should support. Given state constitutions’ explicit grant of the right to vote, state courts are in the best position to require election officials to provide actual evidence of the need for this kind of law. Doing so is most faithful to the grant of voting rights within state constitutions.

Joshua A. Douglas, of the University of Kentucky College of Law, is an election law expert who focuses on the constitutional right to vote and other aspects of the election process.

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