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Thursday, November 05, 2015

The Atlantic Op-Ed on State Constitutions and Voting Rights

Today The Atlantic posted an Op-Ed I wrote on the power of state courts to use state constitutions to protect the right to vote.  I have written two law review articles on the topic, and I find it useful and fulfilling to put the idea before the popular press and general public.  Here is a snippet of the Op-Ed:

In recent years, as the U.S. Supreme Court has limited its protections of the right to vote, some state courts have stepped in to fill the void. State judges have looked to their state constitutions—which are more explicit in conferring the right to vote—to provide relief from onerous election laws. And, in doing so, they have shown how these documents can be powerful tools to improve America’s democracy.

Forty-nine of the 50 state constitutions explicitly grant the right to vote to their citizens (Arizona is the only outlier), and just over half of them also provide further protection to the democratic process by requiring elections to be “free and equal” or “free and open.” Some state courts, such as in Missouri, Pennsylvania, Arkansas—and most recently Delaware—have analyzed their state constitutions in an increasingly expansive way, going beyond federal law to protect voting rights.

Yet other state courts—such as in Tennessee, Georgia, Wisconsin, and Indiana—have ruled that their constitutions are merely coextensive with the U.S. Constitution, leading them to apply the more limited federal protection with equal force to the state constitution. That is, these courts have simply followed the current restrictive voting-rights rulings of the U.S. Supreme Court, even though their state constitutions textually and explicitly provide more protection. This “lockstep” methodology strips the state constitutions of any independent meaning—and it allows courts to uphold election rules that negatively impact voters.

Might this be an idea that both liberals and conservatives would support? After all, liberals should agree with broader judicial enforcement of voting rights, while conservatives should like the federalism aspect of relying on state-level sources for rights protection. Alas, it's probably too naive to think a simple law review article or Op-Ed could bridge existing ideological views on election law rules in today's highly-partisan environment...right?

Posted by Josh Douglas on November 5, 2015 at 02:58 PM | Permalink

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