CRS/LII Annotated Constitution Fourteenth Amendment

Fundamental Interests: The Political Process

“The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . , absent of course the discrimination which the Constitution condemns.”94 The Constitution provides that the qualifications of electors in congressional elections are to be determined by reference to the qualifications prescribed in the States for the electors of the most numerous branch of the legislature, and the States are authorized to determine the manner in which presidential electors are selected.95 The second section of the Fourteenth Amendment provides for a proportionate reduction in a State’s representation in the House when it denies the franchise to its qualified male citizens96 and specific discriminations on the basis of race, sex, and age are addressed in other Amendments. “We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a State may take into consideration in determining the qualification of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.”97

The perspective of this 1959 opinion by Justice Douglas has now been revolutionized. “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.”98 “Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying[p.1893]some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.

“And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . [W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.”99 Using this analytical approach, the Court has established a regime of close review of a vast range of state restrictions on the eligibility to vote, on access to the ballot by candidates and parties, and on the weighing of votes cast through the devices of apportionment and districting. Changes in Court membership over the years has led to some relaxation in the application of principles, but even as the Court has drawn back in other areas it has tended to preserve, both doctrinally and in fact, the election cases.100

Voter Qualifications.—A State may require residency as a qualification to vote but since durational residency requirements impermissibly restrict the right to vote and penalize the assertion of the constitutional right to travel they are invalid.101 The Court indicated that the States have a justified interest in preventing fraud and in facilitating determination of the eligibility of potential[p.1894]registrants and granted that durational residency requirements furthered these interests, but, it said, the State had not shown that the requirements were “necessary,” that is that the interests could not be furthered by means which imposed a lesser burden on the right to vote. Other asserted interests—knowledgeability of voters, common interests, intelligent voting—were said either not to be served by the requirements or to be impermissible interests.

A 50–day durational residency requirement was sustained in the context of the closing of the registration process at 50 days prior to elections and of the mechanics of the State’s registration process. The period, the Court found, was necessary to achieve the State’s legitimate goals.102

A State that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the State, the Court held, could not treat these persons as nonresidents for voting purposes.103 A statute which provided that anyone who entered military service outside the State could not establish voting residence in the State so long as he remained in the military was held to deny to such a person the opportunity such as all non–military persons enjoyed of showing that he had established residence.104 Restricting the suffrage to those persons who had paid a poll tax was an invidious discrimination because it introduced a “capricious or irrelevant factor” of wealth or ability to pay into an area in which it had no place.105 Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school,106 and denied States the right to restrict the vote[p.1895]to property owners in elections on the issuance of revenue bonds107 or general obligation bonds.108

However, the Court held that because the activities of a water storage district fell so disproportionately on landowners as a group, a limitation of the franchise in elections for the district’s board of directors to landowners, whether resident or not and whether natural persons or not, excluding non–landowning residents and lessees of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards.109 Adverting to the reservation in prior local governmental unit election cases110 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny.111 Also narrowly approached was the issue of the effect of the District’s activities, the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non–landowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases. These cases were extended somewhat in Ball v. James,112 in which the Court sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned. The entity was a water reclamation district which stores and delivers water to 236,000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity’s[p.1896]board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply.113

Finding that prevention of “raiding”—the practice whereby voters in sympathy with one party vote in another’s primary election in order to distort that election’s results—is a legitimate and valid state goal, as one element in the preservation of the integrity of the electoral process, the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party’s next primary election, 8 to 11 months hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it was because of the plaintiffs’ voluntary failure to register that they did not meet the deadline.114 But a law which prohibited a person from voting in the primary election of a political party if he has voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, inasmuch as it constituted a severe restriction upon a voter’s right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties.115 A less restrictive “closed primary” system was also invalidated, the Court finding insufficient justification for a state’s preventing a political party from allowing independents to vote in its primary.116

It must not be forgotten, however, that it is only when a State extends the franchise to some and denies it to others that a “right to vote” arises and is protected by the equal protection clause. If a State chooses to fill an office by means other than through an election, neither the equal protection clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v.[p.1897]Popular Democratic Party,117 the Court unanimously sustained a Puerto Rico statute which authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party, rather than by the Governor or some other official, raised a constitutional question.

The right of unconvicted jail inmates and convicted misdemeanants (who typically are under no disability) to vote by absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a State to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way.118 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not, or whether the statute’s jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary.119

Footnotes

94 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959) .

95 Article I, Sec. 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, Sec. 1, cl. 2 (presidential electors). See Article I, Sec. 4, cl. 1 and discussion supra, pp. 118–21.

96 Fourteenth Amendment, Sec. 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the States to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell, supra at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974) , where Sec. 2 was relevant in precluding an equal protection challenge.

97 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959) .

98 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) .

99 Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969) . See also Hill v. Stone, 421 U.S. 289, 297 (1975) . But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) .

100 Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 & 78 (1973), a major doctrinal effort to curb the “fundamental interest” side of the “new” equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nontheless, citizens have a “constitutionally protected right to participate in elections” which is protected by the equal protection clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972) . The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964) .

101 Dunn v. Blumstein, 405 U.S. 330 (1972) . Justice Blackmun concurred specially, id. at 360, Chief Justice Burger dissented, id. at 363, and Justices Powell and Rehnquist did not participate. The voided statute imposed a requirement of one year in the State and three months in the county. The Court did not indicate what duration less than ninety days would be permissible, although it should be noted that in the Voting Rights Act Amendments of 1970, 84 Stat. 316 , 42 U.S.C. Sec. 1973aa –1, Congress prescribed a thirty–day period for purposes of voting in presidential elections. Note also that it does not matter whether one travels interstate or intrastate. Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff’d, 405 U.S. 1035 (1972) .

102 Marston v. Lewis, 410 U.S. 679 (1973) . Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the time of the recorders, so that a backlog of registrations had to be processed before the election. A period of 50 days rather than 30, the Court thought, was justifiable. However, the same period was upheld for another State on the authority of Marston in the absence of such justification, but it appeared that plaintiffs had not controverted the State’s justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973) . Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688.

103 Evans v. Cornman, 398 U.S. 419 (1970) .

104 Carrington v. Rash, 380 U.S. 89 (1965) .

105 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) . Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937) ; and Butler v. Thompson, 341 U.S. 937 (1951) .

106 Kramer v. Union Free School Dist., 395 U.S. 621 (1969) . The Court assumed without deciding that the franchise in some circumstances could be limited to those “primarily interested” or “primarily affected” by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.

107 Cipriano v. City of Houma, 395 U.S. 701 (1969) . Justices Black, Harlan, and Stewart concurred specially. Id. at 707.

108 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) . Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975) , the Court struck down a limitation on the right to vote on a general obligation bond issue to persons who have “rendered” or listed real, mixed, or personal property for taxation in the election district. It was not a “special interest” election since a general obligation bond issue is a matter of general interest.

109 Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973) . See also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at 735, 745.

110 410U.S. at 727–28 410U.S. at 727–28.

111 Id. at 730, 732. Thus, the Court posited reasons that might have moved the legislature to adopt the exclusions.

112 451 U.S. 355 (1981) . Joining the opinion of the Court were Justices Stewart, Powell, Rehnquist, Stevens, and Chief Justice Burger. Dissenting were Justices White, Brennan, Marshall, and Blackmun. Id. at 374.

113 The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 95, 109 (1989) , the Court holding that a “board of freeholders” appointed to recommend a reorganization of local government had a mandate “far more encompassing” than land use issues, since its recommendations “affect[] all citizens . . . regardless of land ownership.”

114 Rosario v. Rockefeller, 410 U.S. 752 (1973) . Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.

115 Kusper v. Pontikes, 414 U.S. 51 (1973) . Justices Blackmun and Rehnquist dissented. Id. at 61, 65.

116 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) . Although independents were allowed to register in a party on the day before a primary, the state’s justifications for “protect[ing] the integrity of the Party against the Party itself” were deemed insubstantial. Id. at 224.

117 457 U.S. 1 (1982) . See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select Governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three–judge court), aff’d, 393 U.S. 405 (1969) (gubernatorial appointment to fill United States Senate vacancy).

118 McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969) . But see Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute prohibition on voting).

119 O’Brien v. Skinner, 414 U.S. 524 (1974) . See American Party of Texas v. White, 415 U.S. 767, 794–95 (1974) .

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