Douglas: “A Silver Lining to the ‘States Rights’ Portion of Justice Scalia’s Opinion”

by - June 18, 2013

But there may actually be a silver lining within state qualification rules themselves.  As I recount in a new paper, virtually all state constitutions – which include the state’s voter qualification requirements – explicitly grant the right to vote to the state’s citizens before listing the required qualifications voters must possess.  For example, Wisconsin’s Constitution – the subject of recent voter ID litigation – provides that “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”  That is, most state constitutions explicitly grant the right to vote and then provide several voter qualifications, which are typically age, citizenship, and residence.  A few state constitutions also take the right away for those who are mentally incompetent or convicted felons.  (Interestingly, Arizona’s is the only state constitution that does not include an explicit grant of voting rights, but it does provide that elections shall be “free and equal.”)  Additional qualifications that are not enumerated in the state constitution would violate this explicit grant of the right to vote.  The problem, however, is that many state courts have “lockstepped” their state constitutions with federal jurisprudence for the right to vote under the U.S. Constitution, reading the state constitutional provision to go no further than the U.S. Constitution.  Of course, the U.S. Constitution does not grant the right to vote; it is implied within the Equal Protection Clause of the Fourteenth Amendment.  And recent Supreme Court jurisprudence on federal protection for the right to vote has been quite limited.

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