Will State Courts Fill a Void on Voting Rights?

As the U.S. Supreme Court backs away from protecting the right to vote, state judges are looking toward their constitutions.

Tony Dejak / AP

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.

Most recently, a Delaware court grappled with this issue and acknowledged the force of the state’s constitution when it ruled that a local school-board referendum to increase property taxes for school funding was unconstitutional. The Red Clay Consolidated School District—which encompasses part of Wilmington and its suburbs—was facing a budget crisis, needing more money to fund its teachers, arts and music activities, and after school programs. Delaware’s public schools are funded partially through property taxes, and to raise those taxes, the school board must call a special election. Red Clay called its election for February 24, 2015, seeking to increase property taxes by about 20 percent, or an average of $23 per month for Red Clay property owners.

School officials felt a dire need to have the referendum pass, so they engaged in a vigorous get-out-the-vote and advocacy campaign. The school district put on various family-friendly events like dances and pizza parties at the local schools—which were also the polling locations—on the night of the election. According to the court’s opinion, Red Clay knew that only parents with children, who would likely support the referendum, would attend these events (and vote while they were there), while elderly and disabled voters, who would likely vote no, would stay away.

The referendum passed by 880 votes, or about 7 percent of those who voted. And then the legal battles began. Opponents of the referendum claimed that Red Clay’s actions to encourage and facilitate certain segments of the population to vote were unfair and unconstitutional under both Delaware’s constitution and the U.S. Constitution. The Delaware trial court rejected Red Clay’s arguments to dismiss the case, holding that Red Clay’s activities to influence the election result were likely unlawful. (The decision will send the case to trial, although Red Clay can forego the trial if it chooses to call a new election and not engage in the same activities.)

The court held that the state constitution’s Elections Clause, which provides that “[a]ll elections shall be free and equal,” offers greater protection than is available for the right to vote under the U.S. Constitution. As the Delaware judge explained, the state constitution is more explicit, and more protective, of the right to vote. The court recognized that the Elections Clause explicitly protects voting, while the U.S. Constitution does so only implicitly through the Fourteenth Amendment’s Equal Protection Clause. The court held that “[t]he Elections Clause has independent content that is more protective of electoral rights than the federal regime.” Therefore, regardless of how a federal court would analyze the issue under the U.S. Constitution, Red Clay’s actions made the referendum neither “free” nor “equal” under the state constitution.

The Delaware court’s mode of analysis could have a ripple effect on other states, stopping them from taking unfair actions to influence elections such as passing restrictive voter-ID laws or reducing early voting days.  In fact, in the past decade, three state supreme courts—in Missouri, Pennsylvania, and Arkansas—have struck down their states’ voter-ID laws under an expansive reading of their state constitutions.

The Delaware decision, although not about voter ID, follows the same rationale and provides a model for other courts facing similar claims, such as a case pending before a North Carolina state court over a new restrictive voter-ID requirement. If the federal judge considering North Carolina’s new strict election rules upholds those laws under the U.S. Constitution and the federal Voting Rights Act, the state court—if it see its constitution as going beyond federal law—could still strike down the state’s new restrictive voter-ID requirement under the state constitution.

Yet relying on state constitutions alone is not without its pitfalls. Leaving the issues to state judges could mean that voting protections might vary widely state-by-state. The concern is that if some state judges follow the U.S. Supreme Court’s narrow construction of the right to vote, while others recognize that their state constitutions are more expansive, then the country will have a system in which citizens in some states enjoy greater voting rights safeguards than in others.

Then again, given that all state constitutions protect the right to vote more broadly than the U.S. Constitution, if all state judges rule expansively, then the country can achieve a system that grants everyone meaningful constitutional safeguards for voting. But even under the current state-by-state method, broader voting-rights protection through state constitutions for only part of the country is better than insufficient protection under the U.S. Constitution for all of it.