The Fundamental Right To Vote

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The Fundamental Right To Vote

by Brad Champion

In case you have not planned how and for whom you will vote in upcoming elections, remember as you read this article, men and women have died so that Americans may vote. With elections across the country not far away, and as rapidly growing Lincoln County faces new and complex responsibilities, now is the time of year when issues that affect communities are most vigorously debated. A fundamental part of our democracy is peaceful and vigorous public discussion of issues that affect local, state and federal decisions about government, and subsequent organized voting to decide how government shall be run. Since voting is a fundamental part our constitutional democracy, since we are willing to die for the rights we enjoy as Americans, it is no surprise that the right of a U.S. citizen to vote is fundamental under the U.S. Constitution.

The primary sources for assurance of the right to vote are the fourteenth and fifteenth amendments of the U.S. Constitution. These amendments, part of the “Reconstruction Amendments,” brought significant change to the Constitution. The new amendments shifted power to the national government, and provided congress the authority to enact legislation to protect rights enumerated; and indirectly, the Supreme Court gained more discretion to oversee government regulations. The modern U.S. Supreme Court applies substantive due process (when rights of all are infringed) and equal protection (when the rights of one or just a few persons are infringed) to governmental regulations affecting fundamental rights. Where governmental regulations burden the exercise of a citizen’s right to vote, these legal concepts are often applied and the regulation is struck down.

What does the Constitution say about the right to vote? The fifteenth amendment says “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The source of equal protection and substantive due process is also the text of the Constitution, but not so clearly stated. Section 1 of the Fourteenth Amendment states: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

While the due process clause, as it is known, speaks of “due process of law,” the Supreme Court interprets substantive content, or rights, from the due process clause. Substantive due process usually involves judicial recognition of a right not specifically mentioned in the Constitution, but nonetheless recognized as fundamental. The right to vote is a fundamental right (so too the right of privacy, the right to travel and first amendment rights), but this is so not just because of the importance of voting to our form of government, or the fifteenth amendment’s requirements, but also because the Supreme Court has decided that substantive due process includes the right to vote.

When a government regulation affects voting rights of a U.S. citizen, in violation of substantive due process or equal protection, the U.S. Supreme Court usually applies a standard known as “strict scrutiny.” For example, in Harper v. Virginia, 383 U.S. 663 (1966), the U.S. Supreme court made clear that any restrictions on voting must be viewed with close scrutiny and narrowly confined. The Court found a poll tax in violation of equal protection (the plaintiff was an individual voter), the court further stated that, as it relates to voting, classifications based on wealth, such as race, are disfavored. Therefore, charging a fee to vote constitutes invidious discrimination that violates equal protection. When it comes to voting, equal protection requires that once a state has provided the right to vote to a person, that right must be granted equally.

In another equal protection voting case, Kramer v. Union School District, 395 U.S. 621 (1969), the U.S. Supreme Court reviewed a New York law excluding school district residents otherwise eligible to vote in state and federal elections from voting in school district elections. In Kramer, individuals were allowed to vote ONLY if they owned, or leased, taxable real property within the district, or were parents with children enrolled in the local public schools. The court struck down the New York law by applying strict scrutiny, and explained that when a legislature denies the right to vote to some residents, the court will carefully scrutinize the legislation, applying the strict scrutiny test. The strict scrutiny test asks whether the exclusion (here, exclusion of renters of real property that lived in the district and paid state taxes) is necessary to promote a compelling state interest that is narrowly tailored to achieve that interest. The court disagreed that the law was narrowly tailored to achieve the State’s interest of only allowing those “primarily interested” in the school district issues to vote on the matter. The State’s vote restriction excluded senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers; parents who neither own nor lease qualifying property and whose children are too young to attend school or whose children attend private schools. Even if, said the Court, the State’s interest is compelling, the regulation does not narrowly limit the exclusion of voters to achieve that interest, since it excludes many eligible voters who may be keenly interested in the issue while at the same time including disinterested persons.

Other issues raised in high profile U.S. Supreme Court voting cases include denials of voting rights, limited purpose elections (e.g., exclusion of certain voters from water storage district votes), disenfranchisement of felons, voting requirements (e.g., registration deadlines, party membership and the right to vote), race-based and ancestral disenfranchisement, and “one person one vote” (which deals with voting district boundaries). Whenever the right to vote is in some way limited or lost, there is a potential constitutional violation.

The right to vote enjoyed by U.S. citizens is special to constitutional democracies such as our own. The U.S. Constitution zealously protects the right of Americans to vote on how government ought to be run. More importantly, men and women die to ensure that our government and our courts are able to facilitate free and fair elections. Make sure you exercise this precious right to participate in our democracy and determine your future.

Brad Champion is an associate in the Charlotte office of Knox Law Center. The firm’s website He can be reached at 704-315-2363 or 866-704-9059 (Toll free) or[email protected].

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