The Power of the Electorate Under State Constitutions

65 Pages Posted: 29 Mar 2024

See all articles by Joshua A. Douglas

Joshua A. Douglas

University of Kentucky - College of Law

Date Written: February 29, 2024

Abstract

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voter.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of recent scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, the Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. The Article explains these clauses and tallies how many state constitutions include each one, offering a descriptive fifty-state survey of the holistic state constitutional protection for voters. Second, the Article situates this multilayered right to vote within separation of powers principles, showing how the electorate is the most vital entity in state governance. An analogy to separation of powers ideals is a useful tool to check legislative or executive abuses of the election process. Third, the Article applies this theory to real-world voting rights disputes, arguing that courts should invalidate a law that infringes upon the multilayered right to vote. This approach differs from typical tiers of scrutiny and means-end analysis in right to vote cases. Instead, the test borrows from the non-retrogression principle once used in Voting Rights Act Section 5 cases: a plaintiff would have an evidentiary burden to show that a new law will make it harder for voters to participate or will reduce turnout. Importantly, if a legislature is taking away the power of the electorate to direct the government, then there is no valid state interest that can justify that encroachment. A plaintiff could invoke the theory by demonstrating empirically that a law will reduce voter participation.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

Keywords: voting rights, state constitutions, election law, separation of powers, right to vote

Suggested Citation

Douglas, Joshua, The Power of the Electorate Under State Constitutions (February 29, 2024). 76 Florida Law Review (forthcoming 2024), Available at SSRN: https://ssrn.com/abstract=4743485

Joshua Douglas (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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