60 Pages Posted: 2 Jan 2008 Last revised: 4 Sep 2009
Date Written: December 26, 2007
This article posits a question that is at the core of our democracy: Is the constitutional right to vote a fundamental right? The answer, surprisingly, is not always.
The Supreme Court has contributed to the confusion surrounding the right to vote by creating two lines of voting rights cases. In one breath the Court calls the right to vote fundamental and applies strict scrutiny. In another, the Court fails to give the right the status of being fundamental and uses a lower standard of review.
These two lines of cases have coexisted, leaving lower courts and litigants with little guidance on how to approach future election law disputes. The Court's most recent attempt in Crawford v. Marion County Election Board, the voter ID case, muddled this question even further.
This article first identifies the inconsistent approaches to how the Court views the right to vote, with a detailed discussion of how Crawford adds to the jurisprudence. The article then attempts to locate a reconciling principle, but concludes that no one theory best explains all of the cases. After delineating the negative implications of this fractured methodology, the article proposes a two-part solution:
First, courts should distinguish between cases that directly impact voters from disputes involving indirect burdens. Regulations involving direct burdens on individuals - such as cases about the value of one's vote or who is eligible for the franchise - impact the fundamental right to vote and deserve strict scrutiny review. This is because in the voting rights area, the "fundamental" right is really an individualized concern regarding the exercise of the franchise. In contrast, regulations that merely impact voters indirectly should enjoy a lower standard of review so long as the laws do not impose a "severe burden." Second, courts should attenuate the approach to strict scrutiny for election law disputes, with an added focus on the narrowly tailored prong, so as to recognize the value of the right to vote while still allowing states to ensure fairness through their election regulations.
Keywords: Crawford, voting rights, election law, severe burden test, Burdick, Anderson, standard of review, narrowly tailored, fundamental right, vote
Suggested Citation: Suggested Citation
Douglas, Joshua A., Is the Right to Vote Really Fundamental? (December 26, 2007). Cornell Journal of Law & Public Policy, Vol. 18, p. 143, 2008. Available at SSRN: https://ssrn.com/abstract=1079895