Constructing the Right to Vote

52 Pages Posted: 14 May 2021 Last revised: 8 Nov 2021

See all articles by Joshua Sellers

Joshua Sellers

University of Texas at Austin - School of Law

Justin Weinstein-Tull

Arizona State University College of Law

Date Written: May 13, 2021

Abstract

The right to vote is foundational to our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to meltdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to build, fund, and administer elections systems. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent management, and the right to democratic structures), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

Keywords: election law, voting rights, civil rights, state law, state bureaucracy, local government, elections, constitutional law, remedies, democracy, law of democracy

Suggested Citation

Sellers, Joshua and Weinstein-Tull, Justin, Constructing the Right to Vote (May 13, 2021). 96 New York University Law Review 1127 (2021), Available at SSRN: https://ssrn.com/abstract=3845759

Joshua Sellers

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Justin Weinstein-Tull (Contact Author)

Arizona State University College of Law

111 E Taylor St.
Sandra Day O'Connor School of Law
Phoenix, AZ 85004
United States
5419683153 (Phone)

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