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67 Vand. L. Rev. 89 (2014)
The Right to Vote under State Constitutions

handle is hein.journals/vanlr67 and id is 97 raw text is: The Right to Vote Under State Constitutions Joshua A. Douglas* This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is fundamental, the essence of a democratic society, and preservative of all rights. But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which mentions voting rights only implicitly. Yet those seeking to protect the right to vote have largely ignored the force of state constitutions, particularly because many state courts lockstep their state constitutional voting provisions with the narrow protection the U.S. Supreme Court has afforded under the Fourteenth Amendment's Equal Protection Clause. This mode of analysis curtails the broader explicit grant of voting rights in state constitutions. This Article explains why the lockstepping approach is wrong for the right to vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent voter ID litigation, showing how the outcome of state constitutional challenges to voter ID laws turns on whether the reviewing state court faithfully and independently applies the state constitutional provision conferring voting rights. The textual and substantive differences between U.S. and state constitutional voting-rights protections requires a state-focused methodology for state constitutional clauses that grant the right to vote. Article I, Section 2 * Assistant Professor of Law, University of Kentucky College of Law. Thanks to Scott Bauries, Jim Gardner, John Greabe, Rick Hasen, Chad Flanders, Ned Foley, Derek Muller, Spencer Overton, Michael Solimine, Nick Stephanopoulos, and Franita Tolson for offering insightful comments on early drafts of this Article. I also benefitted from comments I received when presenting this paper at the University of Kentucky College of Law, the University of Oklahoma College of Law, and Vanderbilt Law School. Thanks also to Kirk Laughlin and Gordon Mowen for excellent research assistance, and to Will Marks, Brian Irving, and the rest of the Vanderbilt Law Review team for excellent editing. 89

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