State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope do harm to that ideal.
Following this Introduction in Part I, Part II shows how our outsized focus on federal courts, at the expense of state courts, is misplaced. It first examines the importance of state courts in deciding constitutional law issues. It then compares the differences in media and scholarly attention for federal versus state right-to-vote decisions, demonstrating how our discussion over voting rights cases is disproportionately skewed toward federal courts even though state judges do more of the work in this realm. Part III dives into the state cases in three specific areas as representative samples: voter ID, felon disenfranchisement, and the voting process; this final category includes decisions on electronic voting machines, extending polling hours on Election Day, and counting absentee ballots. By examining over thirty state court cases issued in the last decade, this Part demonstrates just how involved state courts have been in shaping the meaning of the constitutional right to vote. It also shows how state judges differ on whether they interpret the right to vote broadly or narrowly—that is, whether judges robustly construe their constitutions as going beyond the federal constitution in protecting voters, or instead narrowly view their constitutions as merely coterminous with the U.S. Constitution. Part IV then looks at whether a judge’s ideology or the judicial selection method may correlate with the scope of a right-to-vote decision. Although further quantitative empirical studies are needed, as a preliminary finding, the evidence in Part IV shows that liberal-leaning judges are more likely to construe the right to vote broadly as compared to conservative jurists, especially for partisan-laden issues such as voter ID. In addition, appointed judges seem more likely than elected judges to define the right to vote robustly, at least for certain topics such as felon disenfranchisement. This analysis can contribute to the existing debate over who we want as judges as well as offer insights on the preferable method of judicial selection.
Ultimately, providing the most robust protection for the constitutional right to vote requires us, as scholars and advocates, to understand both how state courts construe these rights and how ideology and judicial selection may influence the state judges who issue these opinions. This Article begins that process.
Douglas, Joshua A., "State Judges and the Right to Vote" (2016). Law Faculty Scholarly Articles. 561.