Académique Documents
Professionnel Documents
Culture Documents
I. Introduction
a. Voting: central, fundamental right of citizenship
b. Constitutional text: no affirmative voting language, only restrictions (“No state”
language re: sex, race, etc.)
i. 14th & 15th A invoked in right to vote cases (Sec 1 of 14th: P&I, DP, EP)
ii. Dred Scott: although dissent argued that since blacks could vote at
inception of Constitution, they must be citizens, majority rejected this: not
all citizens can vote; some non-citizens can vote (resident aliens in some
local elections); citizenship not tied to voting
c. Minor v. Happersett (1874): although women are citizens, P&I clause does not
affirmatively grant all citizens the right to vote; if P&I secured the right to vote,
no need for 15th A (holding overruled by 19th A – giving women right to vote)
d. Richardson v. Ramirez (1974): EP does not affirmatively grant felons the right to
vote; Sec 2 of 14th A contemplates felon disenfranchisement (sanctions for
denying right to vote exclude these laws); if Sec 1 required right to vote, this
clause would not make sense
i. Sec 2 effectively repealed by 15th A (felon disenfranchisement statutes
must be challenged under DP/EP)
ii. Hunter v. Underwood (1985): “moral turpitude” disenfranchisement struck
down (motivation of law to disenfranchise blacks – discriminatory
purpose)
e. DC – no congressional representation (upheld in court – distinction btw seat of
gov’t and statehood); structural provisions of Constitution govern this (despite
one person, one vote mandate)
II. The Right to Participate
a. Lassiter v. Northampton County Bd of Elections (1959): literacy tests are
unconstitutional if used to perpetuate discrimination, but no evidence in this case
of discrimination (rational basis-like test)
b. Harper v. VA State Bd of Elections (1966): poll tax violates EP in state elections
(struck down as to fed elections in 1964 through 24th A); unlike literacy test, poll
tax bears no rational relationship to voting
i. Dissent finds rational relationship – investment in voting; revenue
c. Kramer v. UFSD No. 15 (1969): even assuming compelling interest in restricting
school bd voting to owners/lessors or parents, law not narrowly tailored (those
that are interested and affected by school bd cannot vote, but others that are
uninterested and unaffected can); fundamental right strict scrutiny
i. Dissent sees no reason for heightened scrutiny
ii. Although school bd does not have to be elected, once franchise is
extended, must abide by Reynolds requirements
d. VRA: initial temporary ban on literacy tests, expanded in 1970, outlawed in 2000
i. Definition of “test” expanded to basically anything used to exclude voters
based upon a form, instruction, etc.
ii. Minority languages must be considered
e. May restrict right to vote due to mental incapacity/insanity
i. But Doe v. Rowe (D. Me. 2001) struck down law that restricted based
upon guardianship for mental illness
1. Similar law upheld in MO (although recognizing ADA applied,
believed law restricted only those w/o mental capacity to vote)
f. Although VRA amendment extending right to vote to anyone 18 & older in state
& local elections exceeded Congress’ authority, 26th A achieved same end
g. Dunn v. Blumstein (1972): residency requirements OK if appropriately defined
and uniformly applicable (cannot impose “substantial period” requirement)
i. “bona fide” resident
h. Carrington v. Rash (1955): struck down restriction on military members’ right to
vote during duty (does not meet strict scrutiny; cannot restrict based upon way
they may vote)
i. Brown v. Chattanooga Bd of Comm’rs (ED TN 1989): although franchise
expanded (rational basis review) to nonresidents that own property, struck down
b/c no limit on number of owners of single property
i. Although expanding the franchise only subjects the law to rational basis
review, law still must not dilute others’ votes