Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote?

Abstract

This essay advances a tentative hypothesis about the relationship between the status of the right to vote as an individual right and the existence of manageable standards for adjudication. The Supreme Court has long maintained that the right to vote is an individual, personal right, and, related to this, that theories of democracy should do no analytic work in constitutional voting rights adjudication. These ideas took root in response to Justice Frankfurter's famous warning that in wading into questions about the right to vote and the apportionment of population among legislative districts, the Court would be adjudicating Republican Form of Government claims in disguise (contrary to precedent and unbefitting an institution whose proper role is to protect individual rights), and jeopardizing its reputation as an institution above partisan politics a reputation upon which public acceptance of its rights-enforcing role was thought to depend. My hypothesis is that the "individual rights" and "no theory" precepts, which have served the Court adequately for more than forty years, will soon need to be abandoned - and for the very reasons that initially motivated their adoption. Justice Frankfurter's worries were well placed but his prescription - that courts should touch upon political matters only as the incidental byproduct of enforcing individual rights - is outdated. Under contemporary circumstances, the courts would have an easier time developing judicially manageable rules for decision if they adopted an expressly structural understanding of the right to vote, while scaling back the individual entitlement to vote free from burdens that are not shared by others. Scrutiny levels should be tied to the aggregate consequences of voting requirements for the rate or demographics of voter participation.