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Chapter 1 Voting Qualifications

Chapter 1 Voting Qualifications

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Published by: Allison Hayward on Dec 17, 2009
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1
Chapter 1VOTING QUALIFICATIONS
A. I
NTRODUCTION
The constitutional law governing the political process involves conflicts among some of thevalues most important to a free society and an organized system of democratic self-governance.Fundamental values of liberty, speech, equality, and democratic legitimacy collide when courtsare called upon to police the methods by which the citizenry can influence government. Indeed,election law is so interesting and important not only because the questions presented are difficult, but because the stakes are so high. When courts must choose between fundamental values in anelectoral context, decisions can impact the way the country is governed years into the future byestablishing rules that favor one set of interests over another.The “right to vote” itself does not appear explicitly in the Constitution. Despite the fact thatthe Constitution establishes a representative democracy for the nation as a whole, and despite thefact that Article IV, § 4 requires Congress to guarantee to the states “a Republican Form of Government,” the Constitution “does not confer the right of suffrage upon any one.”
Minor v. Happersett 
, 88 U.S. (21 Wall.) 162, 178 (1875). “Although the Constitution was promulgated inthe name of ‘We, the people of the United States,’ the individual states retained the power todefine just who ‘the people’ were.A
LEXANDER 
EYSSAR 
, T
HE
IGHT
 
TO
V
OTE
: T
HE
C
ONTESTED
 H
ISTORY
 
OF
D
EMOCRACY
 
IN
 
THE
U
 NITED
S
TATES
24 (2000).The Constitution leaves questions about the scope of the franchise to states in the firstinstance,
1
subject to the prerogative of Congress under Article I, § 4 to “make or alter suchRegulations” concerning the “Times, Places, and Manner of holding Elections for Senators andRepresentatives,” and subject to the further limitation that persons able to vote for the mostnumerous branch of the state legislatures must be able to vote for Senators and Representatives.Article I, § 2, cl. 1 (Representatives); Amendment XVII (Senators).Since the Constitution’s ratification, several amendments have broadened the scope of thefranchise, but not by granting an affirmative right to vote. Instead, the Constitution continues toleave such questions to the states, but prohibits states from denying voting rights based on particular criteria: religion (Amendment I); “race, color, or previous condition of servitude”(Amendment XV;
 see, e.g., Ex Parte Yarbrough
, 110 U.S. 651 (1884)); sex (Amendment XIX,
overturning Minor v. Happersett 
); failure to pay a poll tax (Amendment XXIV (which isapplicable according to its terms only in federal elections)); and age for citizens eighteen or older (Amendment XXVI).All these anti-discrimination provisions, however, fail to establish a right to vote that would bar states from limiting the franchise on the basis of any number of other characteristics, or even
1
 
See
T
HE
F
EDERALIST
N
O
. 52, at 326 (James Madison) (Clinton Rossiter ed., 1961) (“To have reduced the differentqualifications [for voting in elections for members of the House of Representatives] in the different States to oneuniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to theconvention. The provision made by the convention appears, therefore, to be the best that lay within their option. Itmust be satisfactory to every State, because it is conformable to the standard already established, or which may beestablished, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, itis not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution.”).
 
2eliminating some elections entirely.
2
For example, there is nothing in the constitutional provisions cited above that prohibits the use of literacy tests, poll taxes in state elections, or  property qualifications. One would be mistaken, however, to conclude that states are entirely freeto enact such measures.This Chapter will explore the ways in which statutes and court decisions have limited theability of states to control access to the voting booth. One of the foundational cases establishing aconstitutional right to vote
3
was the criminal case of 
United States v. Classic
, 313 U.S. 299(1941). The defendants were Louisiana election commissioners who committed election fraud incounting and certifying the votes in a Democratic primary election to nominate a candidate for Congress. They were indicted for violating two federal statutes that made it a crime to violateothers’ constitutional rights. Accordingly, it was necessary for the Court to determine whether the Federal Constitution protected the right to a fair count of one’s vote in a primary election for the House of Representatives.The Court concluded that it did, despite the fact that the Constitution did not guarantee anyindividual the right to vote in the general election, let alone in the primary. The Court reasonedthat Article I, § 2 was designed “to secure to the people the right to choose representatives * * * by some form of election.”
 Id 
. at 318. And because the primary occupied an important positionin the electoral mechanism that culminated in the general election, the right to vote in the primary was included within Article I, § 2 as well: “Where the state law has made the primary anintegral part of the procedure of choice [of representatives in Congress], or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by Article I, § 2.”
 Id 
. With
Classic
havingtethered voting rights to the Constitution, the stage was set for the Court to reshape Americanelection law by defining those rights.Understanding court decisions expounding the rights to vote and participate in politicsrequires a familiarity with basic constitutional doctrine. The remainder of this section is presented as a refresher for students who need to be reminded of some concepts of constitutionallaw, and as a primer for students who have not yet studied equal protection and fundamentalrights in constitutional law.
4
2
 
See San Antonio Independent School District v. Rodriguez 
,
 
411 U.S. 1, 35 n.78 (1973) (“[T]he right to vote,
 per se
,is not a constitutionally protected right * * *.”);
Rodriguez v. Popular Democratic Party
, 457 U.S. 1 (1982)(upholding a law giving political parties the power to fill vacancies in the Puerto Rican legislature);
Valenti v. Rockefeller 
, 393 U.S. 405 (1969) (
 per curiam
),
 summarily aff’g 
292 F. Supp. 851 (W.D.N.Y. 1968) (upholding alaw giving the governor power to fill vacancies in the U.S. senatorial delegation);
 Fortson v. Morris
, 385 U.S. 231(1966) (upholding a provision of the Georgia Constitution authorizing the state legislature to choose the governor from among the two candidates receiving the greatest number of popular votes if no candidate received a majority).
See generally
Richard H. Pildes,
The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote
,49 H
OW
. L.J. 741 (2006); Jamin Raskin,
 A Right-to-Vote Amendment for the U.S. Constitution: Confronting  America’s Structural Democracy Deficit 
, 3 E
LECTION
L.J. 559 (2004); Richard Briffault,
The Contested Right to Vote
,100 M
ICH
. L. R 
EV
. 1506 (2002) (book review).
3
Or “manufactur[ing it] out of whole cloth.” Nathaniel Persily,
 Forty Years in the Political Thicket: Judicial Reviewof the Redistricting Process Since
Reynolds v. Sims,
in
P
ARTY
L
INES
: C
OMPETITION
, P
ARTISANSHIP
,
AND
C
ONGRESSIONAL
 
EDISTRICTING
67, 71 (Thomas E. Mann & Bruce E. Cain eds., 2005).
4
Students who need a more thorough treatment of these issues should consult one of the excellent secondary sourceson constitutional law, including E
RWIN
C
HEMERINSKY
, C
ONSTITUTIONAL
L
AW
: P
RINCIPLES
 
AND
P
OLICIES
(3d ed. 2006); J
OHN
 E. N
OWAK 
&
ONALD
D.
OTUNDA
, P
RINCIPLES
 
OF
C
ONSTITUTIONAL
L
AW
(3d ed. 2007); N
ORMAN
EDLICH
,
ET
 
AL
.,U
 NDERSTANDING
C
ONSTITUTIONAL
L
AW
(3d ed. 2005); and L
OUIS
M
ICHAEL
S
EIDMAN
, C
ONSTITUTIONAL
L
AW
: E
QUAL
 P
ROTECTION
 
OF
 
THE
L
AWS
(2003).
 
3Challenges to the constitutionality of restrictions on the right to vote may be based on either the Due Process Clauses of the Fifth and Fourteenth Amendments, or the Equal ProtectionClause of the Fourteenth Amendment. The Due Process Clause of the Fifth Amendment isapplicable to the federal government, while the Due Process Clause of the FourteenthAmendment is applicable to the states. There is only one Equal Protection Clause—applicable byits terms to the states—but the Supreme Court has long interpreted the Fifth Amendment DueProcess Clause as binding the federal government to the same principles of equality contained inthe Equal Protection Clause.
See Adarand Constructors, Inc. v. Peña
, 515 U.S. 200, 235-37(1995);
 Bolling v. Sharpe
, 347 U.S. 497 (1954).Actions of private parties—as opposed to actions of government—do not violate the DueProcess or Equal Protection Clauses. Indeed, with the important exception of the ThirteenthAmendment, which prohibits slavery by both private individuals and the government, the entireConstitution restricts the power of government only. This “state-action” doctrine means thatwhether a constitutional violation occurs depends not only on what conduct occurs, but on
who
 performs the conduct. For example, acts of violence designed to intimidate voters do not violatethe Constitution if committed by private individuals, even though the acts may have the effect of  preventing groups of people from exercising their constitutional rights. Government may notavoid constitutional limits, however, by delegating all its power to seemingly private parties.Individuals who exercise “public functions” will be deemed to be state actors, even if theyappear to be free from governmental control. The Supreme Court has held that conductingelections is one such public function, and has extended this reasoning to apply constitutionalrestrictions to political parties in nominating candidates.
See, e.g., Ray v. Blair 
, 343 U.S. 214,225-27 (1952);
Smith v. Allwright 
, 321 U.S. 649 (1944) [p. XXX]. We will consider state actionmore closely in Chapter 6, § B, when we confront the “
White Primary Cases
.”Most challenges to government action, under either due process or equal protection, proceedunder the rational-basis test. Under that test, government action will be upheld unless thechallenger proves that the action is not rationally related to a legitimate government interest. Therational-basis test is extraordinarily deferential to government, and almost always results insustaining the challenged action. It is possible to find some legitimate interest that is advanced by just about any statute, and there is no requirement that the state’s actual purpose be to advancethat interest, as long as a rational legislator 
might 
have thought the statute would do so.Strict scrutiny occupies the opposite side of the spectrum from the rational-basis test. Strictscrutiny requires that the government prove that its regulation is narrowly tailored to advance acompelling interest. Narrow tailoring means that the regulation must accomplish its goal withoutharming the plaintiff any more than necessary to do so. This test is extraordinarily difficult tosatisfy, both because few tasks performed by government are truly “compelling,” and becausevirtually all government regulation achieves its goals imperfectly. Speed limits, for example,unnecessarily slow some safe drivers and fail to catch some drivers who are “unsafe at anyspeed.” But the administrative costs of enforcing more narrowly tailored regulations are often prohibitive and it is often difficult to write narrowly tailored regulations without providingexcessive discretion to law enforcement.Historically, review under strict scrutiny has been “ ‘strict’ in theory but fatal in fact,”meaning that a law evaluated under that test is almost certain to be unconstitutional, while therational-basis test has operated as a rubber stamp, validating all manner of governmentrestrictions. Gerald Gunther,
The Supreme Court, 1971 Term—Foreword: In Search of Evolving  Doctrine on a Changing Court: A Model for a Newer Equal Protection
, 86 H
ARV
. L. R 
EV
. 1, 8

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