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.

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.

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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