This Article poses a question at the core of our democracy: Is the constitutional right to vote a fundamental right? The answer, surprisingly, is “not always.”
For over forty years, the Supreme Court has fostered confusion surrounding the right to vote by creating two lines of election law cases. In one breath the Court calls the right to vote fundamental and applies strict scrutiny review. In another, the Court fails to recognize the right as fundamental and uses a lower level of scrutiny. These two lines of cases have coexisted, leaving lower courts and litigants with little guidance on how to approach future election law disputes. The problem inherent in this approach is that it derogates the value of having an individual right to vote and poses significant questions about the efficacy of our notion of democratic self-governance.
The Court’s most recent attempt in Crawford v. Marion County Election Board, the voter identification case, muddled this question even further. With Crawford as a background, this Article closely examines the Court’s inconsistent approaches for construing the right to vote. 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 on individuals. Regulations involving direct burdens on individuals—such as laws 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. Second, courts should customize 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. Thus, instead of grasping for an overarching principle that would bring a semblance of unity to all election law cases, the Article suggests that courts approach the right to vote differently depending on which political actor suffers the most direct burden from the regulation at issue.
Joshua A. Douglas, Is the Right to Vote Really Fundmental?, 18 Cornell J. L. & Pub. Pol'y 143 (2008)