Voting Rights Under State Constitutions, Explained
In analyzing the myriad legal issues facing American democracy, commentators tend to focus on the U.S. Constitution and other important federal sources of election law. But states are the primary regulators of elections, and their charters do much of the work to establish and protect the right to vote.
As Professors Jessica Bulman-Pozen and Miriam Seifter remind us, a proper examination of voting in the United States necessarily raises “the question of constitutions, plural.” Elections are conducted pursuant to 50 distinct regimes that are characterized by varied texts and doctrines that stem from each state’s unique political history and constitutional culture. As this explainer highlights, however, there are substantial similarities in the right to vote under the 50 state charters, which govern virtually all aspects of the franchise in ways that make them more comprehensive and nuanced than the federal Constitution.
What do state constitutions say about elections and the right to vote?
Quite a lot. First and perhaps foremost, they expressly confer the right to vote on their citizens. While the operative language varies some with each state, 49 of the 50 state charters recognize it in affirmative terms (e.g., citizens shall be entitled to vote). Arizona’s constitution, the outlier, frames the right more indirectly.
But these documents go beyond merely establishing the right to vote. More than half contain clauses mandating that elections be “free,” “equal,” or “open.” A similar number of state charters extend additional guarantees to voters, including ones that protect them as elections are underway by immunizing them from arrest while casting ballots and traveling to polling places, as well as disallowing military and civil interference with voting. The suffrage provision of Oklahoma’s constitution, for example, possesses all three of these attributes.
Importantly, the right to vote is not self-executing: states and localities must design electoral systems and related voting infrastructure, as well as rules to govern those who run elections. State constitutions recognize this in various ways, but especially through provisions that regulate public officials, charging them with duties and granting them special authorities to operationalize and safeguard the right to vote.
State constitutions generally call for the state to institute election infrastructure. The Illinois Constitution, for example, expressly obligates lawmakers to draft uniform laws for this purpose, including those that specify residency requirements, create and maintain registration systems, and aim to preserve ballot secrecy. In neighboring Kentucky, where the legislature is similarly required to establish a system for voter registration, the constitution includes the added mandate to ensure those who are “illiterate, blind, or in any way disabled” are able to cast votes and have them counted. Among the tasks that the Wyoming Constitution requires of its legislature is to enact laws “to secure the purity of elections, and guard against abuses of the elective franchise,” as well as to “designate the courts” to preside over certain election contests and claims.
Indeed, state constitutions include an array of language ordering lawmakers to engage in certain conduct aimed at promoting broad participation in elections, ensuring that they are administered on fair and equal terms, and warding off the potential for fraud (which is vanishingly rare) and other improper activity that could undermine electoral legitimacy.
Several state constitutions further complement these and other important election duties with powers that are more permissive in nature. That is, these charters authorize officials to exercise their judgment as to what is necessary to ensure that elections are run in a manner that upholds deeply embedded political values. State lawmakers in Mississippi and Virginia, for example, are granted very broad authority over the right to vote. Their respective charters complement the legislatures’ responsibility to provide for voter registration with the authority to devise and enforce voter qualifications beyond “those set forth in [the] Constitution” and “to make any other law regulating elections not inconsistent” therewith. In other states, the grant of power is much narrower. Under the New Jersey charter, for instance, the legislature may provide for absentee voting as well as the disenfranchisement of those with certain crimes.
How do state constitutions differ from the federal Constitution with respect to the right to vote?
To a certain extent, the U.S. Constitution could not be more distinct from its state counterparts with regard to the right to vote. There is certainly some overlap, perhaps most notably the antidiscrimination provisions common to both. Like the federal Constitution, state constitutions prohibit discrimination in voting based on characteristics like race, sex, and (insofar as someone is at least 18 years old) age. But that is almost it. Even as the 50 state constitutions vary in what they say about voting rights, the differences between them collectively and the federal charter are far more vast and important.
For one, instead of setting it out explicitly, the federal Constitution implies that there is a right to vote, suggesting it through provisions that guarantee a republican form of government, for example, and outlaw discrimination in elections. Importantly, the right to vote under the U.S. Constitution has been further “constructed” — or developed and elaborated on — with the enactment of important national legislation like the Voting Rights Act and through judicial decision-making in a series of landmark cases, especially from the civil rights era.
The scant provisions in the Constitution that do pertain to voting, moreover, all rely on the existence of the right to vote under state constitutions. The Constitution incorporates voter qualifications set out in state constitutions and, in general, relies on laws adopted by state legislatures — entities created by state charters — to institute and administer electoral contests throughout the country. Given that state constitutions regulate the franchise broadly, including by setting the most important terms of the right to vote in both state and federal elections, one might fairly think about the American constitutional system as fostering not federal elections, but state elections for national and state offices.
But the distinctions do not end there. There are important structural and other differences between the U.S. Constitution and its state counterparts that render the latter, in a sense, more “complete” with respect to voting rights. Whereas the language governing voting is strewn throughout the U.S. Constitution, the election provisions tend to be more consolidated in state charters. Indeed, every state constitution contains an entire article dedicated to suffrage, elections, and voting rights, and several constitutions contain multiple articles. Most crucially, state constitutions are clearer than the federal Constitution regarding their application to a range of contested issues that implicate voting rights, including elector registration, ballot secrecy and other components of election administration, electoral contests and legal disputes, political party primaries, and campaign finance. For instance, in adjudicating claims regarding the structure of primary elections, the Supreme Court relies on interpretations of the First Amendment — a provision that speaks about political association generally. In a state like California, however, the state constitution contains provisions that govern political parties and primary elections more specifically.
Nothing in the foregoing discussion should be taken to suggest that state constitutions are the source of all constitutional voting rights protections and, conversely, that the federal charter offers none. Much to the contrary. The right to vote is guaranteed by — and can be vindicated under — each of the nation’s 51 constitutions. The extent to which federal and state constitutional protections coincide (as they sometimes do) is very contextual, dependent on the specific facts and other variables like the nature of the vote deprivation claim and the state in which the alleged injury arises. Yet, despite the overwhelming attention dedicated to it, “federal law is not the only source of the constitutional right to vote.” Indeed, as Professor Josh Douglas argues, despite the text and design of state charters, which often presents clear and unique hooks on which to stake a claim, “the scope of voting rights under state constitutions [is] an overlooked source of the right to vote.”
What are other notable features in state constitutions that govern the right to vote?
While state constitutions have many important features pertaining to the right to vote, two bear specific mention given their pervasiveness and unique significance for American democracy: those related to direct democracy and redistricting.
In the United States, direct democracy is both ubiquitous in and distinctive to state constitutions. While the framers of the federal Constitution were famously wary of the “excess of democracy,” especially as exhibited by state legislatures, state constitution makers have historically erred on the side of crafting rules that privilege the views of popular majorities. More populist in spirit, state charters include electoral design features to promote democratic governing institutions and policies reflective of public sentiment.
To that end, since the late 1800s and early 1900s Progressive era, state charters have come to include three key voting mechanisms that remain important features today. First, the initiative, which is in about half of all state constitutions, authorizes citizens to mobilize for certain policies and vote directly on their enactment. Among those constitutions, almost every one grants the electorate an ability to enact ordinary legislation through initiative, while about three-quarters permit voter initiative to amend state constitutions.
Found in some form in every state constitution, the referendum authorizes state government actors, typically legislatures, to include on the ballot a policy question for popular approval. The referendum differs from the initiative because it calls for ex post popular participation, enabling citizens to give the thumbs up or thumbs down on measures once lawmakers have already proposed them. Yet the two mechanisms are similar in that they both establish a pathway for direct lawmaking and constitutional amendment, and each is governed by special idiosyncratic rules (like the requirement that a ballot issue relates to a single topic).
The final mode of direct democracy is the recall, which is available under 19 state constitutions. It affords the electorate the right to terminate public officials early — that is, before their elective or appointive terms are set to expire. To trigger any of these mechanisms and qualify a question for the ballot, state constitutions require reformers to obtain a designated number of citizen signatures, often a fixed percentage of the votes cast in a previous election. And despite conservative efforts in some states to increase the threshold, in most states, a measure’s approval or defeat is determined by a simple majority vote by the electorate.
Proponents of direct democracy view initiatives, referenda, and recalls as effective ways to overcome corruption that can infect elective bodies, as well as the “capture” of officials by special interests that ultimately lead to governments unresponsive to the popular desires and public good. They also maintain that direct democracy allows citizens to break through partisan gridlock and political stasis. Opponents contend that in bypassing state legislatures and other government actors, direct democracy tends to curtail opportunities for the type of debate and deliberation that results in better decision-making. In addition, they argue that it may advantage corporate and other wealthy and well-connected interest groups seeking to dictate constitutional policy, including through expensive and dishonest ad wars and even gaming the system to exploit low turnout elections. Yet, however well direct democracy in practice stacks up against the theories that justify it or the expectations of its supporters and detractors, it has become an integral feature of the voting rights under state constitutions.
The other type of voting provisions that can be found in state constitutions are those that govern redistricting. How constitutions regulate district line drawing impacts the right to vote considerably because it dictates who competes to represent particular communities and groups of constituents. The federal Constitution includes language mandating a census every 10 years followed by a reapportionment of congressional seats among the states. But, as far as explicit language is concerned, it does not offer much more than that. State constitutions, on the other hand, devote more attention to the mechanics of redistricting, articulating the ground rules for the reallocation of seats in both Congress and the state legislature, including those aimed at curtailing the practice of gerrymandering.
Consistent with their broader commitment to equality, majoritarianism, and popular accountability, some state charters include provisions designed to prevent incumbents from manipulating political maps and devaluing citizens’ votes in ways that unfairly entrench themselves and their allies in power. In general, state constitutions include language outlawing quantitative vote dilution, requiring, instead, that representative districts contain substantially equal populations. Said more plainly, state charters expressly adopt the “one person, one vote” rule that the U.S. Supreme Court in the 1960s declared binding in both federal and state elections.
State constitutions also tend to prohibit certain forms of qualitative vote dilution, or the distortion of political maps to decrease the impact of voting blocks of equal size. Colorado’s constitution contains a requirement common to many that district maps respect political subdivisions, such as counties, cities, and towns to better ensure adequate representation and provision of constituent services. Yet another feature typical of state constitutions are prohibitions against racial gerrymandering, the strategic racial distribution and concentration of voters — “packing” them into some districts and “cracking” other existing districts based on race — to make their collective vote less effective.
In general, state regulation of race in redistricting stems from one of two varieties of constitutional provisions. The first sort consists of broadly worded clauses that govern matters beyond redistricting and, indeed, elections. Like the federal Constitution, state constitutions can protect against the improper use of race through guarantees of equal treatment and nondiscrimination. The other type, included in far fewer constitutions, consists of language to target race and redistricting more specifically. This is seen in the constitutions of Florida and New York for example, which set out more precise legal standards to minimize race-based gerrymandering through language mirroring that contained in Section 2 of the Voting Rights Act and cases interpreting it.
Finally, some state constitutions include provisions that seek to eliminate qualitative vote dilution based on political affiliation, also known as partisan gerrymandering. Importantly, the U.S. Supreme Court ruled that there is no federal court jurisdiction over partisan gerrymandering claims under the U.S. Constitution and, therefore, federal judges must reject lawsuits rooted in that legal theory. Instead, the Court said that partisan gerrymandering is a matter for the states to resolve, including under their constitutions, several of which outlaw the practice.
In 2018, the Pennsylvania Supreme Court ruled that state courts possess jurisdiction over claims of partisan gerrymandering and that a state legislative map had “clearly, plainly and palpably” violated several provisions of the state charter, including that which requires elections in the state to be “free and equal.” More recently, New Mexico’s supreme court concluded that it has jurisdiction to hear partisan gerrymandering claims and that the state’s Equal Protection Clause outlaws those that are “egregious in intent and effect.” (North Carolina’s supreme court also interpreted the Free Election Clause and other clauses in its state constitution as banning extreme partisan maps, but shortly after Republican candidates won the majority of seats on that court in 2022, they reversed the ruling.) While litigation is pending in a number of state courts, to date the record is mixed with respect to courts recognizing that their constitution’s more general provisions establish a role for the judiciary in resolving partisan gerrymandering disputes.
Increasingly, however, state constitutions are being amended to proscribe the practice of partisan and related political gamesmanship. In addition to language explicitly disallowing map drawing that favors a particular party or incumbent and articulating standards to guide mapmaking, a number of these state charters have tried to reduce partisan gerrymandering by diminishing the state legislature’s role in the redistricting process. Some, like Virginia’s constitution, do this by creating additional layers to the process in which commissions play a large role, while others, like Arizona, California, Colorado, and Michigan, fully empower independent redistricting commissions, stripping elected lawmakers of any power to take part. Other states whose constitutions contain provisions that specifically address partisan gerrymandering include Florida, Hawaii, New York, Ohio, and Washington.
Interestingly, there is a unique relationship between state constitutions’ promotion of direct democracy and political efforts to curb gerrymandering: anti-gerrymandering provisions have generally made it into state constitutions not as a result of legislation adopted by lawmakers, but through citizen-led initiative campaigns that succeeded when the public voted for their enactment.
Wilfred U. Codrington III is the Dean’s Research Scholar and Associate Professor of Law at Brooklyn Law School and a Brennan Center fellow.