To Protect the Right to Vote, Look to State Courts and State Constitutions

This Issue Brief details the scope of voting rights under state constitutions, an overlooked source of the right to vote. Part I considers both the lack of a federal constitutional right to vote and the explicit right mentioned in virtually all state constitutions. Part II describes recent state-level voter ID cases, providing a summary of how courts facing litigation over voter ID laws have employed their state constitutions. Part III contends that state courts, instead of simply following narrow federal jurisprudence in “lockstep,” should give broader, independent force to their explicit state constitutional provisions conferring the right to vote. Part IV highlights how different state judges construe their state constitutions, either broadly or narrowly, with respect to voting rights and posits that we should consider both judicial ideology and the method of judicial selection if we seek broad enforcement of these state constitutional provisions. Finally, an Appendix presents a chart, initially published in the Vanderbilt Law Review, illustrating all fifty state constitutions and the language they employ for the right to vote.