Voting Rights: Overview

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Although, of course, the denial of the franchise on the basis of race or color violates the Fifteenth Amendment and a series of implementing statutes enacted by Congress,1 Footnote
See “Federal Remedial Legislation,” infra. the administration of election statutes so as to treat white and black voters or candidates differently can constitute a denial of equal protection as well.2 Footnote
E.g., Hadnott v. Amos, 394 U.S. 358 (1971) ; Hunter v. Underwood, 471 U.S. 222 (1985) (disenfranchisement for crimes involving moral turpitude adopted for purpose of racial discrimination). Additionally, cases of gerrymandering of electoral districts and the creation or maintenance of electoral practices that dilute and weaken black and other minority voting strength is subject to Fourteenth and Fifteenth Amendment and statutory attack.3 Footnote
E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) ; United Jewish Orgs. v. Carey, 430 U.S. 144 (1977) ; Rogers v. Lodge, 458 U.S. 613 (1982) .

Fundamental Interests: The Political Process

“The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised . . . , absent of course the discrimination which the Constitution condemns.” 4 Footnote
Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959) . The Constitution provides that the qualifications of electors in congressional elections are to be determined by reference to the qualifications prescribed in the states for the electors of the most numerous branch of the legislature, and the states are authorized to determine the manner in which presidential electors are selected.5 Footnote
Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, places, and manner of holding elections). The second section of the Fourteenth Amendment provides for a proportionate reduction in a state’s representation in the House when it denies the franchise to its qualified male citizens6 Footnote
Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the states to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell , 400 U.S. at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974) , where § 2 was relevant in precluding an equal protection challenge. and specific discriminations on the basis of race, sex, and age are addressed in other Amendments. “We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a state may take into consideration in determining the qualification of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.” 7 Footnote
Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959) .

The perspective of this 1959 opinion by Justice Douglas has now been revolutionized. “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.” 8 Footnote
Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) . “Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.”

“And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . [W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.” 9 Footnote
Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969) . See also Hill v. Stone, 421 U.S. 289, 297 (1975) . But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) . Using this analytical approach, the Court has established a regime of close review of a vast range of state restrictions on the eligibility to vote, on access to the ballot by candidates and parties, and on the weighing of votes cast through the devices of apportionment and districting. Changes in Court membership over the years has led to some relaxation in the application of principles, but even as the Court has drawn back in other areas it has tended to preserve, both doctrinally and in fact, the election cases.10 Footnote
Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 & 78 (1973) , a major doctrinal effort to curb the “fundamental interest” side of the “new” equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nonetheless, citizens have a “constitutionally protected right to participate in elections,” which is protected by the Equal Protection Clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972) . The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964) .

Footnotes 1 See “Federal Remedial Legislation,” infra. 2 E.g., Hadnott v. Amos, 394 U.S. 358 (1971) ; Hunter v. Underwood, 471 U.S. 222 (1985) (disenfranchisement for crimes involving moral turpitude adopted for purpose of racial discrimination). 3 E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) ; United Jewish Orgs. v. Carey, 430 U.S. 144 (1977) ; Rogers v. Lodge, 458 U.S. 613 (1982) . 4 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959) . 5 Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, places, and manner of holding elections). 6 Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the states to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell , 400 U.S. at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974) , where § 2 was relevant in precluding an equal protection challenge. 7 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959) . 8 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) . 9 Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969) . See also Hill v. Stone, 421 U.S. 289, 297 (1975) . But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) . 10 Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 & 78 (1973) , a major doctrinal effort to curb the “fundamental interest” side of the “new” equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nonetheless, citizens have a “constitutionally protected right to participate in elections,” which is protected by the Equal Protection Clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972) . The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964) .

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