State Courts Can and Should Do More to Protect Voters 

The problem is well known: the U.S. Supreme Court has failed to protect the fundamental right to vote under the U.S. Constitution. In fact, I have a new book coming out — The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights — that recounts the ways in which the Court has harmed voters, not just recently but over the past five decades.

But the solutions seem more elusive and they are certainly not discussed as much. That’s where my new law review article, “The Power of the Electorate Under State Constitutions,” comes in. The article, which is forthcoming in the Florida Law Review, argues that state courts can do even more to protect voters by using state constitutions, building upon vital scholarship — both my own and others’ — that looks at state founding documents as foundational for democracy.

Virtually all state constitutions (all but Arizona’s) affirmatively grant the right to vote, unlike the U.S. Constitution’s more implicit protection under the Equal Protection Clause of the 14th Amendment. Several state courts have invoked their state constitutions in recent years in voting rights disputes. Yet a renewed look at state constitutions shows that there are many clauses that collectively elevate the status of voters as a group, making the electorate a vital actor in state constitutional governance.

State constitutions confer a multilayered right to vote. Voters enjoy immunity from arrest when going to and from the polls (under 30 state constitutions), secrecy of the ballot (44 state constitutions), and protection against the loss of residence for the purpose of voting if they are away from the state for certain reasons (21 state constitutions). Some state constitutions provide even greater protection for voters, such as Nevada’s Voters’ Bill of Rights and Kentucky’s requirement that the legislature pass a law to ensure voters have time off to vote. In addition, virtually all state constitutions (all but New York’s) say that political power is inherent in the people and most provide for some form of direct democracy.

In some ways, because of this multilayered right to vote, the electorate is tantamount to a separate branch of state government. Courts should treat it that way, recognizing that the electorate gives the government its legitimacy. Using a separation of powers analogy, state courts should ask whether the legislature or executive is infringing upon the electorate’s ability to govern itself through voting. Of course, the electorate is not just any branch; it’s a super-branch, or perhaps it’s the roots that hold up all the other branches. Any curtailment of the electorate’s ability to govern itself must therefore face strict judicial scrutiny.

But typical tiers of scrutiny analysis — rational basis, strict scrutiny, and the like — have not been up to the task to protect voters. The U.S. Supreme Court unduly defers to state legislatures and the election rules they pass. And many state courts have followed that lead in allowing state lawmakers to justify voter restrictions by using bland and generic concerns, such as ensuring easy election administration or improving election security.

Instead, I argue in my new article, state courts should take a novel approach: a new election rule is invalid if it will lower voter participation. State courts should adopt a “non-retrogression” principle to voting rules, borrowing from the non-retrogression test that once governed Section 5 of the federal Voting Rights Act. If a plaintiff can show, empirically, that a voting rule will make it harder for people to participate and thereby will curtail the electorate’s ability to govern itself, then the rule is invalid under a state separation of powers analogy. In this situation, one branch (the legislature) is infringing upon the rights of another pseudo-branch (the electorate). Under this test, states should not be able to justify a voting rule by pointing to a valid governmental interest. There should be no proper justification for taking away the power of the electorate to direct the government.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of the forthcoming book The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights and the book Vote for US: How to Take Back Our Elections and Change the Future of Voting. He is also the host of the Democracy Optimist podcast. Find him at www.joshuaadouglas.com.