Introduction
Since the Federal Constitution does not provide an affirmative right to vote but, rather, only provides limited rights of negative implication, state constitutions offer the most robust constitutional protection of the right to vote. Courts have construed the federal right to vote narrowly, deferring to states and providing prospective voters with limited protections against unnecessarily restrictive state election administration schemes. This narrow construction has developed despite a long history of deliberate disenfranchisement through the imposition of overly onerous voting laws, including voter registration systems.6 Unlike their federal counterpart, forty-nine state constitutions confer an affirmative right to vote. Advocates for access to the ballot should look to this explicit positive right enshrined in state constitutions as a tool for voting reform. This Note argues that the texts of many state constitutions provide compelling bases upon which to challenge voter registration deadlines.
Building on Professor Joshua Douglas’s writing on the positive right to vote found in state constitutions,7 this Note considers the constitutionality of voter registration deadlines through the prism of the robust state constitutional voter protections for which Douglas advocates.8 Part I outlines the narrow interpretation of the right to vote found in the Federal Constitution and the resulting lenient judicial scrutiny that federal courts apply to state election administration schemes. Part II explores the positive right to vote provided by state constitutions and argues that the right should be construed more broadly than the federal right. Part III highlights three different approaches to voter registration deadlines found in state constitutions, with each approach suggesting differing levels of judicial deference to the imposition of registration deadlines.
Surveying these differences, this Note concludes that the texts of many state constitutions demand heightened judicial scrutiny of voter registration deadlines far beyond what is applied under the lenient federal test. In doing so, this Note reinforces Douglas’s conclusion that state constitutions provide a right to vote that is more protective than what the Federal Constitution provides and identifies the states where voting rights advocates have the most compelling textual support for constitutional challenges to voter registration deadlines.
If a state election law creates a severe burden on an individual’s ability to vote, it is subject to strict scrutiny. Burdick’s holding made clear that only election laws imposing severe restrictions on First and Fourteenth Amendment rights are required to be “narrowly drawn to advance a state interest of compelling importance.”18 Since “[e]lection laws will invariably impose some burden upon individual voters,” the Court reasoned that “subject[ing] every voting regulation to strict scrutiny and . . . requir[ing] that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently.”19 Therefore, if a plaintiff cannot demonstrate a severe burden, the court employs a permissive balancing test.20 As suggested in Anderson, the Court balances the magnitude of the burden on First and Fourteenth Amendment rights against the state’s asserted justification for the burden.21 True to its promise not to tie the hands of states, this standard allows significant leeway to enact a range of election laws, including voter registration laws.22
Anderson-Burdick’s deference to states is due in large part to the nature of the federal right it seeks to protect. The federal right is one of negative implication and has been construed to protect the electoral process, not individual voters. The Burdick Court characterized “the right to vote [as] the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system.”23 As one election law scholar characterized it,
[t]he underlying concerns that drive the Court’s electoral mechanics interventions are not easy to decipher, nor are they likely to be unitary, but it is hard to make sense of the case law in conventional, individualistic terms. This body of law is not designed to enable the citizen or political organization that suffers a material burden to haul the state into court and make it provide a substantial justification for the imposition. The decisions are more readily understood as imperfect efforts to ensure that electoral systems manifest certain properties in the aggregate.24
Resolving the ambiguity of the federal right underlying the Court’s election law jurisprudence is beyond the scope of this writing. However, it is important to emphasize that the deference of the Anderson-Burdick test is informed by considerations of the electoral process in aggregate, not the individual rights of voters. Federal jurisprudence simply does not focus on the impediments faced by individual voters. As this Note will show, this is in direct contrast to the right to vote established in state constitutions.
Furthermore, the Federal Constitution’s delegation of the electoral process to the states underlies federal deference to state election administration. As the Burdick Court reasoned, “[t]he Constitution provides that States may prescribe ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’ and the Court therefore has recognized that States retain the power to regulate their own elections.”25 This constitutional delegation of election management to states leaves federal courts cautious to intrude on that task. Anderson-Burdick’s permissive view of state election law has resulted in the federal courts’ acceptance of voter registration deadlines as constitutionally permissible election regulations.
Numerous federal district courts have upheld state voter registration deadlines under Anderson-Burdick. In ACORN v. Bysiewicz, the District Court for the District of Connecticut heard a constitutional challenge to Connecticut’s requirement that voters register seven days before Election Day.29 The court upheld the law under the Anderson-Burdick test, concluding that it “d[id] not constitute a severe burden.”30 In Diaz v. Cobb, the District Court for the Southern District of Florida heard a constitutional challenge to Florida’s requirement that voters register twenty-nine days before Election Day.31 This court also applied the Anderson-Burdick test and found the deadline constitutional since it “d[id] not impose severe burdens.”32 Under Anderson-Burdick’s permissive balancing, the court found the registration deadline “a reasonable, non-discriminatory restriction that advances an important state interest in the conduct of an honest, fair and orderly election.”33 In both cases, since strict scrutiny did not apply, the courts declined to examine whether a registration deadline was really necessary to effectuate the state’s interest in orderly election administration. Thus, they did not engage with the compelling evidence that elections can be adequately administered using Election Day registration.34
Absent significant change to Supreme Court election law jurisprudence, challenges to voter registration deadlines on federal constitutional grounds are unlikely to prevail. Instead, advocates should look to the states as state constitutional law provides a more promising avenue to challenge voter registration deadlines and expand voter access.
Section II.C argues that state courts should eschew the Anderson-Burdick test and adopt their own more searching test of state election administration laws. Uncritical adoption of federal constitutional standards does a disservice to the important independent role state constitutions and state courts play in the protection of individual rights. When viewed independently, it is clear that affirmative state constitutional voting rights are different in nature from the negative, amorphous federal right that led to Anderson-Burdick’s deferential standard.37 Further, a key justification for Anderson-Burdick’s deference to state election laws is the Federal Constitution’s delegation of the electoral process to the states—a concern inapplicable to state court review of state election law.38 These considerations all point state courts towards adopting a more protective standard of review than federal courts currently provide.
Some state courts have adopted the federal Anderson-Burdick test, lockstepping their analysis of state election administration schemes with the Supreme Court. These courts “narrowly analyze the state protection to be merely co-extensive with the U.S. Supreme Court’s rulings under federal law.”54 Other courts have interpreted their state’s positive right to vote more expansively, affording independent protection beyond what is provided by the Federal Constitution.55 For example, state supreme courts in Missouri and Arkansas have struck down voter identification laws that would have survived under Anderson-Burdick, expressly recognizing that their state constitutions provide broader protections of the right to vote.56
Where state constitutional challenges to voter registration deadlines have been considered, deference to state election administration has won out. In New Jersey, a state court upheld the state’s twenty-one-day voter registration deadline as “reasonable” under the Anderson-Burdick test.57 The Massachusetts Supreme Judicial Court took a more independent approach in Chelsea Collaborative, Inc. v. Secretary of the Commonwealth, eschewing the Anderson-Burdick test for a purportedly more protective standard, but finding the registration deadline constitutional nonetheless.58 The Supreme Judicial Court held that if the law “significantly interferes with the fundamental right to vote,” it is subjected to the most stringent review, “strict scrutiny.”59 Anything less, and the law is only subjected to “rational basis review,” giving significant deference to the legislature’s decision to enact the deadline.60 Under this standard, the court concluded that “at least for the time being, an impartial lawmaker could logically believe that the voter registration deadline imposed twenty days prior to election day still serves legitimate public purposes that transcend the harm to those who may not vote.”61 Importantly, the court recognized that the Massachusetts Constitution is more protective of the right to vote than the Federal Constitution, requiring only “a significant interference with the fundamental right to vote” before it would impose strict scrutiny instead of the “severe burden” required under Anderson-Burdick.62
Since the Capen decision, courts have accepted that registration systems can be constitutionally permissible if they are reasonable for the orderly administration of elections. But what is reasonable, and how closely courts should scrutinize legislative justifications for these laws, remains an important question. The cases above illustrate the importance of this standard of review adopted by state courts; it is often the dispositive question for litigation challenging voter registration deadlines. As this Note will argue, the texts of many state constitutions, if given their evident force, demand heightened scrutiny of voter registration deadlines beyond what is applied under the federal Anderson-Burdick test.
Federal case law suggests that lockstepping state constitutional voter protections with the Anderson-Burdick standard is likely to be fatal for plaintiffs challenging registration deadlines. As the Supreme Judicial Court’s decision in Chelsea Collaborative shows, independent interpretation of the state constitutional right to vote does not necessarily guarantee success for registration deadline challengers. However, under heightened judicial scrutiny, such as strict scrutiny or a less deferential balancing of the interests test, challenges to voter registration deadlines are far more likely to succeed.63 Thus, determining whether state courts will lockstep their analysis or apply a heightened level of scrutiny is a critical question in determining the constitutional viability of voter registration deadlines and the likelihood of mounting successful legal challenges against them.
At times, state and federal rights may be equivalent. But state courts should judiciously examine the nature of their state constitutional rights to determine whether the Supreme Court’s interpretation is adequate in light of the source and nature of the state guarantee. This is true when the constitutional text of the state and federal right is identical, but it is even more imperative when state constitutions are textually distinct from the federal right at hand.
Lockstepping is particularly inappropriate in the case of state constitutional voter protections. Section II.C.i frames this argument, discussing the promises and limitations of state constitutions as independent sources of rights. Sections II.C.ii–iv argue that the positive nature of the state right, the place state constitutions occupy in our federalist structure, and the varying textual language used by state constitutions suggest a right different in kind from the limited federal right underlying the Anderson-Burdick test. These differences indicate that state constitutions provide far more stringent protection of the right to vote than the Federal Constitution.
As the Bill of Rights was incorporated against the states, particularly from the 1940s through the 1960s, litigants began to shift their focus to federal individual rights claims.71 However, state law claims remain an important distinct source of rights.72 As Justice Brennan stated in his seminal article on the topic, “the decisions of the [Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law.”73 Some litigants heeded Justice Brennan’s call to bring claims in state courts, but often lawyers and courts have continued to focus on federal claims, at times to the detriment of independent state constitutional jurisprudence.74
State constitutions are not a panacea for all shortcomings of federal rights protection, but they can be an important tool when federal protections prove inadequate. State constitutional litigation cannot directly establish a nationwide right. This piecemeal approach can be costly for litigants, and success is sometimes reversed by state constitutional amendment.75 As will become clear infra in Part III, challenges to voter registration deadlines are unlikely to succeed in some states. The most expedient path to national Election Day registration may be through Congress, however politically challenging such an approach would be.76 But the protective treatment of voting rights by state constitutions suggests that, in many states, a powerful right lies dormant and under-litigated, even if it is not a solution in every state. Focusing solely on federal litigation leaves the right to vote under-protected by an inappropriately lenient federal test and ignores the rich and diverse tapestry of state constitutional protections.
State courts should look closely at their own constitutional texts to determine the nature and extent of the rights found therein. To quote Justice Brennan again,
state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law—for without it, the full realization of our liberties cannot be guaranteed.77
When one looks to those state constitutions, one sees how different the right to vote is from the one found in the Federal Constitution.
Anderson-Burdick’s concern with the delicate balancing between protecting the right to the franchise and allowing for the orderly facilitation of elections is equally relevant in state court. But state courts should look to their own constitutions to determine the appropriate level of deference. Reflexively adopting the Supreme Court’s measured application of the Federal Constitution makes little sense given the federalism considerations motivating that standard.
State constitutions strike a careful balance, giving state legislatures the freedom to impose some conditions on the right to vote, but not others. In some states, that includes conditioning the right to vote upon preregistration, as discussed infra in Part III. These conditions give state legislatures some leeway to intrude on the right to vote in order to carry out orderly elections. As discussed infra in Part III, state constitutions vary significantly in the nature and scope of conditions they permit, providing unique contours to the right to vote in each state.
Flattening this constitutional diversity by applying the same deferential federal standard would be a disservice to these unique texts. When a state legislature strays outside constitutionally enumerated bounds and encroaches on the positive right to vote, courts should apply a heightened level of scrutiny. Others have wrestled with the precise nature of that test, and thorough examination of the topic is beyond the scope of this Note.90 However, the texts of state constitutions and the importance of the right at hand suggest a stringent standard of review akin to strict scrutiny.91 Setting the exact test aside, the critical question for state courts is whether to look beyond the permissive Anderson-Burdick test. When one considers voter registration deadlines specifically, the test of many state constitutions compel state courts to look beyond the federal test and apply heightened judicial scrutiny of registration schemes.
In many cases, this express constitutional authority forecloses the ability to seek abolition of the registration deadline on state constitutional grounds. Depending on the specific constitutional text, litigants may still be able to challenge the length of registration deadlines in some of these states. For example, there is pending litigation challenging the length of New York’s twenty-five-day voter registration deadline despite the express constitutional requirement that voters register “at least ten days before each election.”98 However, outright challenges to registration deadlines in these states are unlikely to succeed given the strong textual basis for at least some form of registration deadline.
The challenge for litigants is persuading a court to apply a heightened level of scrutiny on a registration deadline in these states. Since the positive right is conditioned on registration, an otherwise eligible unregistered person turned away from the polls would not benefit from this positive right to vote conferred by the state constitution. Using Alabama’s constitution to illustrate the point, a prospective voter not “registered as provided by law” would not be guaranteed “the right to vote” under the Alabama Constitution.103 Without the expressly granted positive right to vote, a litigant’s case for heightened scrutiny of the election law is weakened. The door is not completely shut on litigants in these states, but the argument is much weaker than it would be if the positive right to vote was conferred upon all regardless of registration status.
These state constitutions provide the strongest justification for heightened judicial scrutiny of registration deadlines. In these states, otherwise qualified voters are denied the right to vote for failing to preregister before Election Day. The imposition of this condition infringes upon their constitutionally protected right to vote. Given the infringement upon the most fundamental of rights, courts should judiciously review the necessity of these requirements. Even where state constitutions provide for legislatively enacted registration processes, the process should not be permitted to unnecessarily inhibit access to the ballot. For example, West Virginia’s constitution provides that “[t]he Legislature shall enact proper laws for the registration of all qualified voters in this state.”109 Yet the state’s highest court held that “this authority to require registration of voters[] does not empower the Legislature to nullify or modify the constitutional right of a citizen to vote. Hence, registration laws must be framed with great caution, and construed liberally and favorably toward the right to vote.”110 Failure to provide this searching judicial review would render the positive right to vote an empty promise.
This range of approaches is an illustration of constitutional federalism in practice. Each constitution demonstrates a nuanced attempt to balance the protection of democracy’s most fundamental right with the practical needs of election administration. Some states chose to require or grant their legislatures the authority to enact registration deadlines. Others chose to condition the right to vote on registration, providing legislators more leeway to burden voters before granting them an expansive right. But eleven states take a textually distinct approach in their constitutions. These states grant a positive right unconditioned by registration.
This textual difference suggests a recognition that the right to vote is fundamental and deserves rigorous constitutional protection from unnecessary burdens that the voter registration process might impose. If these states wanted to constitutionally require registration deadlines or give their legislatures wide discretion to do so, they could have adopted the first or second constitutional approach. Instead, these states provided an expansive, positive right to vote. The presence of some conditions makes the conspicuous absence of a condition of registration all the more telling. The texts of these constitutions provide a positive right to vote that applies to registration requirements. State courts should apply their constitutional texts as such and carefully examine voter registration requirements to ensure their legislatures do not unconstitutionally burden the right to vote.
Examination of these constitutional texts further illustrates the inapplicability of the deferential Anderson-Burdick test. As discussed supra in Part I, the nature of the federal right to vote and the Federal Constitution’s delegation of the electoral process to the states leave little reason to apply that test in state court. The states’ positive right to vote suggests Anderson-Burdick’s inadequacy generally, but it would be particularly inadequate as applied to voter registration deadlines in these eleven states. As the Court reasoned in Anderson,
[w]e have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” . . . [T]he State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.111
These state constitutions recognize this same practical consideration, but they strike a different balance. States have built many of these practical election administration considerations into their constitutional structure, and registration deadlines are no exception. These eleven states chose a textual construction of the right to vote that should—if they are to have meaning at all—limit the burdens that voter registration schemes can impose on that right. Courts in these states should recognize this distinction and employ heightened judicial scrutiny of voter registration schemes that impede this fundamental right.
Table 1: States that Allow Legislative Conditions or Require Voter Registration Deadlines
Table 2: States Conditioning the Right to Vote on Registration
Table 3: States Granting a Positive Right to Vote Unconditioned by Registration
* J.D. Candidate, May 2021, Northeastern University School of Law.
1 See Voter Registration Deadlines, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/elections-and-campaigns/voter-registration-deadlines.aspx (last updated Oct. 2, 2020) (listing states that maintain voter registration deadlines and indicating that, while some of these states allow unregistered voters to participate in early voting, all twenty-nine deny unregistered voters the right to cast a ballot on Election Day). Since the majority of voters have historically cast their ballots on Election Day, this practice has a profound impact on the right to vote even when other means of voting are provided. See Nathaniel Rakich & Jasmine Mithani, What Absentee Voting Looked Like in All 50 States, FiveThirtyEight (Feb. 9, 2021), https://fivethirtyeight.com/features/what-absentee-voting-looked-like-in-all-50-states/ (showing that, before an unprecedented increase in mail-in voting during the 2020 election due to the COVID-19 pandemic, a significant majority of voters cast their ballots on Election Day). These twenty-nine states are listed infra in the Appendix.
2 Alex Street et al., Estimating Voter Registration Deadline Effects with Web Search Data, 23 Pol. Analysis 225, 238 (2015).
3 The leniency courts exhibit towards state legislative enactments of voter registration requirements, discussed infra throughout this Note, all but ignores the historical motives behind the enactment of many registration requirements. The sanitized language courts adopt discussing the reasonableness of registration schemes and the need for orderly administration of elections ignores the reality that registration deadlines were often enacted with the deliberate intent to disenfranchise certain populations—namely Black, poor, and immigrant individuals. See Alexander Keyssar, The Right to Vote 65–66, 153–55 (2000); David Litt, The Racist History of Voter Registration, Time (June 18, 2020), https://time.com/5855885/voter-registration-history-race/. Far from an exhaustive list, the following examples illustrate this troubled history. In the 1830s, proponents of registration deadlines in New York were clearly motivated by animus towards Irish Catholic immigrants. Keyssar, supra, at 65–66. In the 1880s, dismayed by their declining political power, Chicago’s elite enacted a registration scheme designed to suppress voter participation. Id. at 153–55. In Texas, voter registration deadlines were implemented as a direct replacement for the state’s Jim Crow era poll taxes, obviating any question as to their intended purpose. Litt, supra. While this Note focuses on the many textual reasons for courts to scrutinize voter registration deadlines more closely, courts should also consider this discriminatory history when assessing the necessity and justification for registration schemes. Federal courts generally do not consider such discriminatory history unless the original law is still in force or it can be shown that subsequent legislatures were motivated by similar animus, but state courts are not bound by this precedent when applying the protections found in their own state constitutions. See Abbott v. Perez, 138 S. Ct. 2305, 2326–27 (2018).
4 See Dale E. Ho, Election Day Registration and the Limits of Litigation, 129 Yale L.J. Forum 185, 188 n.11 (2019) (summarizing the academic literature and concluding that voter registration deadlines have a significant impact on voter participation); Street, supra note 2, at 238.
5 Twenty-one states and the District of Columbia provide for Election Day registration or do not require registration at all. Same Day Voter Registration, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx (last updated Oct. 6, 2020). Election Day registration increases voter participation while registration deadlines provide little, if any, practical value in the age of digital election administration. See Sean J. Young, The Validity of Voter Registration Deadlines Under State Constitutions, 66 Syracuse L. Rev. 289, 289, 296 (2016) (“In the modern computer age, registration forms submitted on Election Day can be readily processed just like registration forms submitted prior to Election Day in a matter of hours, if not minutes.”). Election Day registration reduces the logistical burden of democratic participation, allows for the correction of registration errors, and allows voters to register at the height of campaign season when they are most likely to be engaged by candidates, issue organizations, or election officials. Ho, supra note 4, at 190–91. “Starting in the early 1990s, political-science research has consistently found a statistically significant relationship between [Election Day registration] and turnout, ranging from an increase of two percentage points to double-digits.” Id. at 188. Dale Ho, a leading expert on voting rights and election law, went as far as to say that “there is broader consensus among social scientists about the effect of [Election Day registration] on turnout than there is with respect to any other voting reform.” Id. at 185–86.
6 See supra note 3 and accompanying text.
7 Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 144–49 (2014).
8 Douglas details the positive right to vote found in all but one state constitution and argues that “[a] renewed, independent focus on state constitutions and their explicit grant of the right to vote is textually faithful to both the U.S. and state constitutions and will restore the importance of the most foundational right in our democracy.” Id. at 143.
9 Minor v. Happersett, 88 U.S. 162, 178 (1874).
10 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 n.78 (1973).
11 See U.S. Const. art. I, § II (“Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”); id. amend. XVII (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years . . . .”); id. amend. XIV (penalizing states by a reduction in representation if they deny or abridge the right of male citizens to vote); id. amend. XV (prohibiting denial of the right to vote based on race); id. amend. XIX (prohibiting denial of the right to vote based on sex); id. amend. XXIV (prohibiting denial of the right to vote based on inability to pay a poll tax); id. amend. XXVI (prohibiting denial of the right to vote based on age for citizens over the age of eighteen); see Douglas, supra note 7, at 95–97. But see Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 188–89 (2012) (suggesting that the Fourteenth Amendment’s reduction in representation clause confers a positive right to vote).
12 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Douglas, supra note 7, at 98 (discussing the combined implications of the Anderson and Burdick cases on the federal right to vote).
13 Anderson, 460 U.S. at 782–86.
14 Id. at 806.
15 Id.
16 Burdick, 504 U.S. at 430–32.
17 Id. at 432–33, 441–42.
18 Id. at 434 (internal quotations omitted) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
19 Id. at 433.
20 Id. at 434; see also Douglas, supra note 7, at 98 (characterizing the Anderson-Burdick test as a “lenient balancing test”).
21 Burdick, 504 U.S. at 434 (“A court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’” (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983))).
22 See Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L. Rev. 313, 336 (2007) (suggesting the result of the Supreme Court’s Anderson-Burdick standard is that “laws pertaining to electoral mechanics carry a strong presumption of constitutionality, even though they touch upon the fundamental rights of voting and political association”).
23 Burdick, 504 U.S. at 441–42.
24 Elmendorf, supra note 22, at 336.
25 Burdick, 504 U.S. at 433 (internal citation omitted) (quoting U.S. Const. art. I, § 4, cl. 1).
26 See, e.g., Dunn v. Blumstein, 405 U.S. 330, 348 n.19 (1972) (citing Oregon v. Mitchell, 400 U.S. 112, 238 (1970)).
27 See Ho, supra note 4, at 196–97 (acknowledging the pre-digital age administrative burden of compiling paper registration forms into a statewide voter-registration lists).
28 See supra note 5 and accompanying text.
29 ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 146 (D. Conn. 2005).
30 Id. at 143 n.6, 145–46.
31 Diaz v. Cobb, 541 F. Supp. 2d 1319, 1333 (S.D. Fla. 2008).
32 See id. at 1329–30, 1333.
33 See id. at 1330, 1340.
34 See id. at 1329–41; ACORN, 413 F. Supp. 3d at 122–55; Young, supra note 5, at 296.
35 Douglas, supra note 7, at 130, 144–49 (providing a table of voting rights clauses in all state constitutions); see also, e.g., Ky. Const. § 145 (providing that every prospective voter who meets certain conditions “shall be a voter in said precinct”); R.I. Const. art. II, § 1 (providing that every prospective voter who meets certain conditions “shall have the right to vote”).
36 Lockstepping describes the practice of “state courts . . . diminish[ing] their constitutions by interpreting them in reflexive imitation of the federal courts’ interpretation of the Federal Constitution.” Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 174 (2018). “[S]tate courts frequently handle [cases with similar state and federal constitutional claims] by considering the federal constitutional claim first, after which they summarily announce that the state provision means the same thing . . . .” Id. at 174. See also Douglas, supra note 7, at 106–10; infra Section II.B.
37 Infra Section II.C.ii.
38 Infra Section II.C.iii.
39 See Douglas, supra note 7, at 101. For a complete list of state constitutional voter protection provisions, see id. at 144–49.
40 Del. Const. art. 5, § 2.
41 Ark. Const. art. III, § 1(a).
42 Tex. Const. art. VI, § 2(a).
43 Kan. Const. art. V, § 1.
44 See, e.g., Ark. Const. art. III, § 1 (“[A]ny person may vote in an election in this state who is . . . [a] citizen of the United States . . . .”).
45 See, e.g., Kan. Const. art. V, § 1 (“Every citizen of the United States who has attained the age of eighteen years . . . shall be deemed a qualified elector.”).
46 See, e.g., Ky. Const. § 145 (“Every citizen of the United States of the age of eighteen years who has resided in the state one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the election, shall be a voter in said precinct . . . .”).
47 See, e.g., Pa. Const. art. VII, § 1 (“Every citizen . . . shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.”).
48 See, e.g., Ky. Const. § 147 (“The General Assembly shall provide by law for the registration of all persons entitled to vote . . . .”).
49 See, e.g., Del. Const. art. V, § 1 (“[T]he General Assembly may by law prescribe the means, methods and instruments of voting so as best to . . . prevent fraud, corruption and intimidation thereat.”).
50 See Douglas, supra note 7, at 101 n.73.
51 Capen v. Foster, 29 Mass. (12 Pick.) 485 (1832). For a discussion of the seminal importance of this case, see Keyssar, supra note 3, at 65, and Litt, supra note 3.
52 Capen, 29 Mass. (12 Pick.) at 494.
53 Id.
54 Joshua A. Douglas, State Judges and the Right to Vote, 77 Ohio St. L.J. 1, 14 (2016) (finding that some courts “broadly construe state constitutions as going beyond the federal constitution”).
55 Id. at 17–18.
56 Weinschenk v. State, 203 S.W.3d 201, 205, 211 (Mo. 2006) (“The express constitutional protection of the right to vote differentiates the Missouri constitution from its federal counterpart.”); Martin v. Kohls, 444 S.W.3d 844, 846, 850, 853 (Ark. 2014) (rejecting Supreme Court analysis of voter ID laws under Anderson-Burdick and stating that “we address the present issue solely under the Arkansas Constitution”); see also Douglas, supra note 54, at 19–21 (discussing state constitutional challenges to voter identification laws).
57 Rutgers Univ. Student Assembly v. Middlesex Cnty. Bd. of Elections, 141 A.3d 335, 343 (N.J. Super. Ct. App. Div. 2016) (“After fully considering the appropriate legal principles, we conclude that New Jersey’s twenty-one-day advance registration requirement is the type of ‘reasonable, non-discriminatory restriction[ ]’ which warrants the application of the Burdick balancing test.” (citing Burdick v. Takushi, 504 U.S. 428, 434 (1992))).
58 See Chelsea Collaborative, Inc. v. Sec’y of Commonwealth, 100 N.E.3d 326, 333, 340–41 (Mass. 2018).
59 Id. at 333.
60 Id.
61 Id. at 341.
62 See id. at 333–36.
63 See Young, supra note 5, at 299 (“For states whose constitutions do not explicitly provide a voter registration deadline, unnecessary deadlines essentially impose an additional qualification to voter eligibility in violation of that constitution.”).
64 Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 339 n.80 (2011) (quoting Hans A. Lind, E. Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 186 (1984)).
65 Sutton, supra note 36, at 174–75.
66 Id. at 177.
67 William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).
68 See Sutton, supra note 36, at 8; Brennan, supra note 67, at 501 (“[E]ach of the rights eventually recognized in the Federal Bill of Rights had previously been protected in one or more state constitutions.”).
69 See Barron v. City of Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights applied only to the federal government, not the states); see also Sutton, supra note 36, at 12.
70 Sutton, supra note 36, at 12–13.
71 The failure of the states to meaningfully enforce individual rights—most notably, but not exclusively, in the South—and the Warren Court’s willingness to step into that void and provide federal protection of individual rights made federal claims more advantageous for litigants at the time. See id. at 14–15.
72 Id.
73 Brennan, supra note 67, at 502.
74 Sutton, supra note 36, at 8 (“[M]ost lawyers take one shot rather than two, and usually raise the federal claim rather than the state one.”).
75 See Erwin Chemerinsky, Two Cheers for State Constitutional Law, 62 Stan. L. Rev. 1695, 1699–1702 (2010).
76 Ho, supra note 4, at 186.
77 Brennan, supra note 67, at 491.
78 Supra Section II.A.
79 Elmendorf, supra note 22, at 336.
80 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 n.78 (1973).
81 See Douglas, supra note 7, at 104–05 (“Unlike the U.S. Constitution, these state constitutional provisions explicitly grant the right to vote to all citizens who meet simple qualification rules.”).
82 See id. at 135 (concluding “Burdick’s severe burden formation [is] too deferential to state regulation of elections, as that test fails to recognize the explicit right of suffrage within state constitutions”).
83 See, e.g., Burdick v. Takushi, 504 U.S. 428, 433–34 (1992) (“[T]he Court . . . has recognized that States retain the power to regulate their own elections.”).
84 Douglas, supra note 7, at 101.
85 See, e.g., Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 208 (2008) (Scalia, J., concurring in the judgment).
86 Id.
87 See Sutton, supra note 36, at 175 (“No state supreme court . . . has any reason to apply a ‘federalism discount’ to its decisions, making it odd for state courts to lean so heavily on the meaning of the Federal Constitution in construing their own.” (footnote omitted) (quoting Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1978–79 (2008))).
88 See, e.g., Fla. Const. art. VI, § 2 (“Only a citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.”).
89 Douglas, supra note 7, at 141.
90 Joshua Douglas compellingly argues that, as a result of the positive right to vote found in state constitutions, state courts should apply a two-step burden-shifting standard that would create a rebuttable presumption of invalidity for laws that impose unenumerated conditions on the right to vote. Douglas, supra note 7, at 137. This standard would require the plaintiff to demonstrate that the election law in question imposes an “additional qualification” on the right to vote. Id. If the plaintiff succeeds in showing that the law imposes a condition on voting, the burden shifts to the government to justify the imposition by “demonstrating how it is tied specifically to the legislature’s power” or “us[ing] specific evidence to justify [adding] a voting qualification beyond what the state constitution allows.” Id. at 141. “This formulation does not require widespread judicial oversight of elections, however, as states should be able to overcome the presumption of invalidity in most instances for run-of-the-mill election-administration laws.” Id. Douglas suggests “[t]his mode of analysis . . . adheres most closely to state constitutional text and structure.” Id. at 142.
Under Douglas’s model, a state would be required to justify the imposition of voter registration deadlines by pointing to their state constitutional text or providing specific evidence to support the practice. Given the strong evidence that voter registration deadlines are not necessary, see Young, supra note 5, at 299, this burden would be difficult for states to meet unless they could point to constitutional text providing the authority for a state legislature to impose such a qualification.
91 See Douglas, supra note 7, at 141. But see Michael T. Morley, Rethinking the Right to Vote Under State Constitutions, 67 Vand. L. Rev. En Banc 189, 190 (2014) (arguing that the history of state constitutional interpretation of the right to vote supports application of Anderson-Burdick’s deferential standard, allowing “legislatures to impose reasonable regulations on the voting process”).
92 See Voter Registration Deadlines, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/elections-and-campaigns/voter-registration-deadlines.aspx (last updated Oct. 2, 2020), for a complete list of state voter registration deadline statutes. See also infra the Appendix.
93 See infra the Appendix (listing the relevant provisions in all nine state constitutions that expressly contemplate or require a registration deadline).
94 Ohio Const. art. V, § 1.
95 Mo. Const. art. VIII, § 2.
96 N.Y. Const. art. II, § 5.
97 Okla. Const. art. III, § 1.
98 N.Y. Const. art. II, § 5; see League of Women Voters of N.Y. v. N.Y. Bd. of Elections, No. 160342/2018, at ∗1 (N.Y. Sup. Ct. Oct. 4, 2019) (order denying the state’s motion to dismiss a challenge to the length of New York’s twenty-five-day voter registration deadline); League of Women Voters of N.Y. v. N.Y. Bd. of Elections, No. 160342/2018, at ∗1–2 (N.Y. Sup. Ct. Sept. 25, 2020) (order denying plaintiff’s motion for preliminary injunction).
99 See, e.g., Fla. Const. art. VI, § 2 (“Only a citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.” (emphasis added)); S.C. Const. art. II, § 4 (“Every citizen of the United States and of this State of the age of eighteen and upwards who is properly registered is entitled to vote as provided by law.”); see also infra the Appendix (listing the relevant provisions in all nine state constitutions that condition the right to vote on registration).
100 Ala. Const. art. VIII, § 177(a).
101 S.C. Const. art. II, § 4.
102 Ark. Const. art. III, § 1.
103 Ala. Const. art. VIII, § 177(a).
104 See, e.g., Kan. Const. art. V, § 1 (“Every citizen of the United States who has attained the age of eighteen years and who resides in the voting area in which he or she seeks to vote shall be deemed a qualified elector.”); see also infra the Appendix (listing the relevant provisions in all eleven state constitutions that provide a positive right to vote unconditioned on registration).
105 Ky. Const. § 145.
106 W. Va. Const. art. IV, § 1.
107 Ind. Const. art. II, § 2.
108 See, e.g., W. Va. Const. art. IV, § 12 (“The Legislature shall enact proper laws for the registration of all qualified voters in this state.”); Ind. Const. art. II, § 14(c) (“The General Assembly shall provide for the registration of all persons entitled to vote.”).
109 W. Va. Const. art. IV, § 12.
110 Funkhouser v. Landfried, 22 S.E.2d 353, 356 (W. Va. 1942).
111 Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (citing Storer v. Brown, 415 U.S. 724, 730 (1974)).