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Election Law
Wayne State University Law School
Benson, Jocelyn

Election Law 2007 – Outline
The Right to Participate
No affirmative right to vote until 1964; granted through case law
The constitutional provisions dealing w/ it are negative, not affirmative
Art. I §4 – states have the power to set the time, place and manner of elections
14th Amendment:
§1: No state shall make or enforce any law which shall abridge the rights and privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, w/o due process of law; nor deny any person w/in its jurisdiction the equal protection of the laws.
§2: “But when the right to vote at any election is denied to any male inhabitants of such state, being twenty-one years of age, and citizens of the US, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced..”
15th Amendment:
§1: “The right of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of race, color or previous condition of servitude.”
Minor v. Happersett
Involved women’s suffrage
P’s tried to argue that to deny women the vote was a violation of the 14th Am. privileges and immunities clause
Court didn’t buy it
1. Illustrates how the right to vote is not in the Constitution (NO AFFIRMATIVE RIGHT TO VOTE);
2. Even when you bring a claim under the 14th, in 1874 it wasn’t enough to extend the franchise
Reynolds v. Simms
Reads the right to vote as a fundamental right in the Constitution; though still not explicitly stated
Felon Disenfranchisement Laws
Federal Law?
Types of state laws:
Permitting inmates to vote (VT)
Only not permitting inmates to vote (MI and 11 others)
Not permitting inmates and parolees to vote (36 states)
No voting if incarcerated, on probation, or parole (31 states)
No voting even if sentence is completed
Some states allow restoration through application process or waiting period
Bulk of litigation focused here
Richardson v. Ramirez (1974)
Type of felon disenfranchisement law: HARSH; after sentence completed, still can’t vote
Interest served: moral character as a qualification to voting
Could also have racial animus
Level of scrutiny applied: barely even “rational basis;” almost no scrutiny
Court looked to the history among the states of felon disenfranchisement
Voting is a fundamental right / privilege of citizenship by this point (§1)
Strict scrutiny would normally apply to any abridging of voting rights, BUT…
Argument that §2 applies: the phrase “rebellion or other crime” would seem to give states the power to enact felon disenfranchisement laws
Court doesn’t really look at disparities / problematic impacts in the law
Almost NO scrutiny
This case opens the door to allow courts to depart from strict scrutiny in election laws if there is some other constitutional justification for those laws
Remember: states have the power to determine the time, place and manner of elections (Art. I, §4) – yet another reason to trump strict scrutiny / ignore §1 of the 14th
Hunter v. Underwood (1985)
Which type of FD law? Same as above
Source? §182 of AL constitution (1901); reauthorized following civil war (discriminatory intent)
Evidence of discriminatory intent behind the law
Statements made by the drafters (in 1901) – illustrating rationale
Evidence about the background of the drafters – white supremacists; chose crimes based on who was likely to commit them
Context of the times – broad effort to discriminate / disenfranchise
Plaintiff’s presented lots of evidence of discriminatory intent of the law
Defendant’s response:
Tried to show a legitimate state interest that would have led the law to be passed regardless of the discriminatory intent
Intent of the drafters was also to get at white persons who committed crimes
Amends the holding of Ramirez; allows for the possibility of discriminatory intent
Constitutional rule for FD laws post-Hunter:
P must show the law was enacted with discriminatory intent
D must show the presence of a legitimate state interest that would have led the law to be passed regardless of discriminatory intent
D’s in this case did not meet the second prong; not enough evidence of other reasons justifying the law
Unless you can show no discriminatory animus, felon disenfranchisement laws will be unconstitutional
States must show a rational policy justification
The court has rarely applied this holding.
The circuits have limited the scope of Hunter even more: difficult to bring constitutional FD claims today, b/c of the difficulty in proving that the laws were passed and maintained in a racially discriminatory way.

n’t have to prove that it’s discriminatory (burden lifted)
Kramer v. Union Free School District (1969)
Who is the P and what does he want?
31 yr old who lives w/ his parents; barred from voting in school board election
NY §2012: must own / lease property or have kids enrolled in the district
State’s interest – limit the vote to people who are directly interested
Element of “vote dilution” – wants to protect directly interested persons from those who aren’t
Basis for his challenge: 14th equal protection clause
Level of scrutiny: strict
Holding: State policy not narrowly tailored enough to the compelling state’s interest
The statute also disenfranchises – senior citizens, clergy, military personnel, parents whose kids attend private school
Plus, it includes others who have no interest at all (renters w/ no kids, etc.)
“The classifications must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal.”
Other Qualifying laws: English Language Competency
§ 203 of the VRA:
“Whenever any State or political subdivision provides registration or voting notices, forms, instructions, assistance, or other materials or info relating to the electoral process, including ballots, it shall provide them in the language of the applicable minority group as well as in the English language.”
A jurisdiction is covered under §203 if:
In a STATE: more than 5% of all voting age citizens, or
More than 10,000, or
More than 5% of all voting age citizens
Illiteracy rate of group is higher than the national illiteracy rate
Members of the group do not “speak or understand English adequately enough to participate in the electoral process.”
Other qualifying laws
Mental competency
Citizenship / permanent legal residence
States are allowed to exclude non-citizens from the vote