Wednesday, November 02, 2016
"Protecting the Right to Vote in Missouri"
All 50 state constitutions explicitly confer the right to vote. This is in contrast to the U.S. Constitution, which protects the right to vote merely implicitly through the Equal Protection Clause as well as through passive language in various amendments ("The right of citizens of the United States to vote shall not be denied or abridged..."). Moreover, in Article I, Section 2 and the Seventeenth Amendment, the U.S. Constitution contemplates that federal voter qualifications are subject to state control, saying that those who may vote for Congress are those who may vote for the state legislature (subject, of course, to the constitutional floor within the various voting amendments). Thus, our constitutional structure recognizes a broad role for states to determine the scope of the constitutional right to vote.
Understanding this broader state constitutional grant of voting rights, several state supreme courts, including the Missouri Supreme Court in 2006, have held that strict voter ID laws infringe on that right by, in essence, adding an additional "qualification" to vote that goes beyond what the state constitution allows. Given that the U.S. Supreme Court refused to strike down Indiana's voter ID law under the Equal Protection Clause in Crawford v. Marion County Election Board in 2008, this state constitutional protection is significant.
But Missouri voters will decide next week whether to overrule this precedent and amend the state constitution to allow the legislature to adopt a restrictive voter ID requirement. This is a bad idea, and voters should reject Amendment 6. I explain why in a new Op-Ed for the St. Louis Post-Dispatch:
As the nation debates so-called election rigging and voter fraud, one bright spot in our democracy is the robust protection for the right to vote in the Missouri Constitution.
Missouri was among the first states on the right side of history in the debate over voter ID laws. In 2006, the Missouri Supreme Court ruled that the state constitution vigorously protects the right to vote and that the state’s photo ID law infringed that fundamental right.
Yet this year Missouri will decide whether to amend the state constitution to allow voter ID requirements. Voters in Missouri, and elsewhere, should continue to allow the state constitution to provide robust protection for voting rights and reject Amendment 6, the proposed state constitutional amendment that would denigrate the right to vote.
By amending the state constitution, then, Missouri would be courting significant harms. It would disenfranchise valid voters for no good reason. It would turn back 10 years of admirable jurisprudence on robust protection for the right to vote under the state constitution. It would invite additional federal court litigation on the potential discriminatory aspect of the new rule. And it would — dangerously — greatly weaken a recognized fundamental right within the state constitution.
Missouri elections do not suffer from in-person voter fraud — the only kind of fraud that a photo ID provision would prevent. Missouri elections do, however, enjoy a positive attribute: a state constitution that vigorously protects the right to vote and a state Supreme Court that recognizes the significance of this state constitutional safeguard. Amending the state constitution to overrule this precedent will only harm the state’s elections.
If there has been a positive story of the right to vote over the past several years, it is that state courts, at least in some places, have gone beyond the U.S. Constitution to protect the right to vote under state constitutions. We should continue that tradition.