This research article was authored by Joshua A. Douglas, University of Kentucky College of Law, commissioned by the Piper Fund. A version of it was published in the Ohio State Law Journal.
State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots.
State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope do harm to that ideal. Even though state courts are the primary actors in shaping the right to vote, however, most people pay less attention to state judges than to their federal counterparts. The media, for example, spend relatively little time covering state voting rights decisions. Most election law scholars focus primarily on decisions from the US Supreme Court. This emphasis is inherently backward given how active state courts are in regulating the voting process. From voter ID, to felon disenfranchisement, to the mechanics of Election Day, state courts are intimately involved in setting out the rules for an election and giving scope to the constitutional right to vote. For example, federal courts have issued far fewer opinions on voter ID laws than state courts have in the past decade, and yet the federal court opinions have received most of the attention from scholars, the media, and the public.
But as this Article shows—through a detailed, comparative examination of state court cases involving the voting process—state judges are often the main actors in defining the constitutional right to vote under their state constitutions, which then impact the meaning of voting rights in federal elections as well. Yet the decisions deviate markedly across states on the protection afforded to voting, with some judges issuing broad pronouncements on the primacy of the right to vote and other judges more narrowly construing the constitutional safeguard. If we want to preserve the right to vote as the most fundamental and foundational right in our democracy, then we need to recognize this divergence so that we can devise strategies to encourage broader rulings.