The Constitution on Your Right to Vote
by Joshua Douglas
October 13, 2020
This interview with Joshua Douglas, professor of law at the J. David Rosenberg College of Law at the University of Kentucky, was conducted and condensed by franknews.
Joshua | I'm the author of a book titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. I've written extensively in law review articles and in the popular press about the constitutional right to vote. I focus, in particular, on state constitutions and what they say on voting rights, election law procedure, and a slew of other topics.
frank | You write a lot about how voting issues get a lot of attention on a federal level and less so on a state level. Why do you think that is and do you think it is important that we shift our focus to state courts?
Well, that may be changing a bit. Voting rights advocates have not had a lot of success at the federal court level, so, increasingly, they are bringing more claims in state court. Generally, however, we tend to think of federal courts as the protectors of civil rights. I don't know if that's a remnant of the Warren Court expanding civil rights protections in the sixties, but I do think that it's true that the state courts' role in the election process has been overlooked, at least in the past.
How do state courts shape the meaning of the constitutional right to vote? What is up for debate in terms of an individual's right to vote?
The interesting thing is that many of the plaintiffs are now bringing cases about voting rights to the state courts under state constitutions, not under the U.S. Constitution.
The U.S. Constitution doesn't affirmatively grant the right to vote.
The right is listed in the negative. There are four constitutional amendments, the 15th, the 19th, the 24th, and the 26th, that say that the states can't deny the right to vote on the basis of a particular characteristic, but there is no actual affirmative grant of the right to vote. Instead, the Supreme Court has found protection implicitly within the Equal Protection Clause. However, almost every single state constitution does affirmatively grant the right to vote. It says things like, "every citizen of the state shall be a qualified voter" or "all citizens shall be entitled to vote."
So, over the past several years, state courts have been using the more explicit and broader grant of the right to vote in state constitutions as grounds to strike down state laws. States are saying that though the federal constitution does not explicitly grant the right to vote, our state constitution does. We see this in the Missouri Supreme Court ruling on a voter ID case, as well as the Pennsylvania Supreme Court ruling on a redistricting case. This is also seen in a case currently in the Supreme Court, originally out of Pennsylvania, extending the absentee balloting receipt deadline. State courts are looking at their state constitution and saying, "Hey, there's actually explicit language here that protects the right to vote here that is not present in the U.S. Constitution."
If we understand that the electoral system is a state's issue, do we have to accept that sometimes it's harder to vote in Texas or Georgia than it is in California or New York?
I mean, that always has been the case. That is in large part because of the U.S. Constitution’s Elections Clause, Article One, Section Four, which says that the times, place, and manner of the election is up to state legislatures.
Now, that clause also says that Congress may alter or amend those regulations.
Congress has the authority to implement nationwide rules for voting, but there are only a few cases when they have implemented these rules.
For example, the Voting Rights Act of 1965 imposes nationwide rules that ban literacy tests and forbids discrimination on the basis of race in voting. Congress enacted rules again in 1993 through the National Voter Registration Act, which implemented a federal law and is the reason why every DMV in the country has to offer voting registration opportunities. HR1, a bill proposed by the Democrats that would impose national voting rules.
But, historically, we have not seen many rules come out of Congress. Combine that with the federal courts being unwilling to affirmatively impose certain rules, and, in my view, being less protective of the right to vote under the federal equal protection clause, and it leads to a patchwork system of state rules and how to vote.
Do you have pressing concerns in your state, Kentucky, right now?
I actually think we are doing pretty well in Kentucky. There was a bipartisan agreement between the Democratic Governor and the Republican Secretary of State in administering this election that set in place fairly extensive voting rules. Basically, anyone can vote via absentee ballot. An excuse is still required, but COVID-19 concerns qualify as an excuse — the Republican Secretary of State made it very clear that it's the voter's subjective understanding of their own concerns.
There is also going to be three weeks of early voting, including three Saturdays, in addition to the traditional polling place voting on November 3rd. I am a little bit concerned about long lines at the polls. We're going to have a lot fewer polling stations than normally, and most neighborhood precincts are not going to be open due to COVID. There is a lack of poll workers and a lack of places that are set up to have adequate ventilation and adequate social distancing.
For example, Jefferson County, which includes Louisville and is the largest county, is going to have 20 in-person polling places. Lexington, which is the second-largest county, is going to have eight polling places. I am concerned about things like the lines and transportation, but all that said, I think the Kentucky plan is pretty darn good and could be a model for the nation.
What other states are you watching?
Wisconsin looks like it's going to be a mess, especially with the decision that just came down out of the seventh circuit — federal judges blocked a lower court’s order that extended the deadline for returning absentee ballots. Texas is very concerning because of its restrictive voting rules, including an executive order that only allows for one ballot drop off location per county. The 5th Circuit Court of Appeals just upheld that rule. That means in places like Harris County, which includes Houston, there is one spot to drop off your ballot. That is crazy.
There are also five states, Texas, Louisiana, Mississippi, Tennessee, and Indiana, that don't accept COVID as an excuse to vote absentee. That is particularly concerning because it is going to force people who may have genuine concerns about the virus to vote in person.
In a state like Texas, where they have shut down so many of the ballot drop off locations, is there anything to do at this point, or is it too little, too late?
In Texas, the courts have rejected the challenges to the law, unfortunately. Even the Texas Supreme Court, so the state court route hasn't really worked.
The only other thing to do is voter education — to try to get people to fill out and mail their ballots early so that we are not overwhelming the postal service.
We can't think of November 3rd as election day. We have to think of November 3rd as the end of the voting period.
We have a month of voting. It is important that we take advantage of that by making a plan and voting early.