It’s Time to Reframe Voting Rights in the Courts

The right to vote is under attack. And unless we reform voting jurisprudence, courts are not equipped to stop it.

In 1964, a year before Congress passed the landmark Voting Rights Act, the U.S. Supreme Court ruled in Reynolds v. Sims that “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”

Initially, the courts took this charge seriously. In a case about school board elections, the Supreme Court wrote, “[T]he deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials.” In another case, the Court made clear that “before the right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.”

But while the Court has expanded its protection of other constitutional rights over time, it has done the opposite with the right to vote. This has been the product of years of conservative orthodoxy. It has also been aided and abetted by election officials who were happy to evade scrutiny of their decisions to restrict access to the franchise. For different reasons, conservatives and election officials sought to focus judicial attention on the difficulties in election administration rather than difficulties in voting. As a result, voting rights analysis became less voter-centric in its orientation.

The key moment for those looking to undo the voter-centric approach came in 2007, when the Court upheld a strict new voter ID law in Indiana. Rather than closely scrutinizing the voting restriction, the Court balanced the burdens the ID law imposed on voters against Indiana’s purported state interests in enforcing the law. Since then, “a court evaluating a constitutional challenge to an election regulation weigh[s] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.”