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.

Polling station, Sandy Springs, Georgia
A woman demonstrates her states' rights.

Photo by Alex Wong/Getty Images

Last Friday, a Pennsylvania trial court struck down the state's voter ID law because it violates the state constitution's explicit grant of voting rights to the citizens of Pennsylvania. This decision, issued just a day after several members of Congress introduced a sensible bipartisan update to the Voting Rights Act, shows that  bipartisan solutions to repairing our broken election system are indeed possible. 

Amid the partisan debates surrounding election rules—charges of vote suppression on one side and vote fraud on the other—the Pennsylvania decision also highlights the fact that state constitutions can shore up the fundamental right to vote through a mechanism that should appeal to both sides of the political spectrum: states’ rights. Conservatives, who normally support voter ID laws, believe that states should retain significant autonomy and thus that sources of state law are paramount. Progressives espouse robust voting rights. The right to vote is located in state constitutions. That’s why reliance upon state constitutions to invalidate the strictest voter ID laws is a perfect, and bipartisan, solution to an intractable political problem.  

The Pennsylvania decision is important because it represents a state court giving meaningful and independent effect to its own state constitution, beyond the narrower view of U.S. Supreme Court jurisprudence. That is, the court did not just follow the U.S. Supreme Court and the federal Constitution to construe its own constitution’s grant of the right to vote. It sought and located a more robust right to vote in state doctrine and text.  Other state courts have been reluctant to approach voter ID laws this way, and that’s a mistake that needs correction.

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Most Americans do not realize that the U.S. Constitution does not actually confer the right to vote anywhere in its text. It considers voting rights in the negative—providing that states may not deny the right to vote based on certain characteristics, such as race, sex, age, or inability to pay a poll tax. Conversely, as I recount in a new law review article, all 50 state constitutions explicitly grant state citizens the right to vote, using specific language such as Pennsylvania’s: “[E]very citizen ... shall be entitled to vote at all elections.” Moreover, the U.S. Constitution actually points to state sources in dictating who may vote in congressional elections, saying that qualified electors are those who are qualified to vote for the state legislature.

Perhaps because there is no explicit federal right to vote, the U.S. Supreme Court has defined the federal constitutional protection very narrowly. In the process, the court has given too much deference to states in the administration of elections. Under current U.S. constitutional interpretation, the court first determines whether a state election law imposes a “severe” burden on voters. Only laws that impose “severe” burdens are subject to the highest judicial review—known as strict scrutiny. Most of the time, federal courts will find that a law’s burdens are less than severe and analyze the law under a more deferential test. Not surprisingly, the court usually upholds a state’s voting practice. Generally, the court blindly trusts states to administer their own elections, without meaningful judicial oversight.

In the voter ID context, the Supreme Court in 2008 thus upheld Indiana’s law under the federal Equal Protection Clause. The court found that the law, while potentially burdensome to some voters, did not impose a severe burden on enough voters to warrant strict scrutiny. According to the court, the plaintiffs failed to present enough evidence of how the voter ID law restricted voters from casting a ballot. In addition, the court rejected the plaintiff’s wholesale pre-election challenge to the law, finding that the plaintiffs needed hard evidence of actual burdens the law imposed in the context of a real election. This meant plaintiffs would likely have to suffer possible infringement for at least one full election cycle to amass the evidence the court required.

These days, so long as a state claims “election integrity”—as Indiana did for its voter ID law—the Supreme Court will not scrutinize the rationale behind new election rules. The court simply defers to states in their election administration. But allowing a state to use such a vague standard opens the door to restrictive voting laws that are never meaningfully tested in court. No one can object to a state’s asserted interest in election integrity; that’s always a valid goal, in the abstract. The real question should be whether the state has any actual need for a law that ultimately makes it harder to vote.

But state courts, ostensibly the protectors of the crucial right to vote, have fallen down on their part of the bargain. Many state courts have followed the U.S. Supreme Court’s lead. Under an approach known as “lockstepping,” in which state courts follow federal courts in interpreting individual rights, state courts simply construe their state constitutional provisions on voting rights to match federal rulings. Thus, state courts in Tennessee, Georgia, and Indiana, for instance, have upheld their voter ID laws under the state constitutions, employing the same reasoning the U.S. Supreme Court used under the U.S. Constitution. They ruled that their state constitutions go no further than the U.S. Constitution, even though the state constitutions explicitly grant the right to vote while the federal Constitution does not.

This is backwards. If state constitutions grant the right to vote explicitly, while the U.S. Constitution only does so implicitly, it makes no sense for state courts to follow the narrower federal interpretation. If anything, federal courts should follow state courts for the real meaning of the right to vote.