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CRS Annotated Constitution

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Weighing of Votes.—

Supplement: [P. 1911, add new paragraph following heading:]

The doctrine of the “right to travel” actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between States, a right venerable for its longevity, but still lacking a clear doctrinal basis.43 The second, expressly addressed by the first sentence of Article IV, provides a citizen of one State who is temporarily visiting another State the “Privileges and Immunities” of a citizen of the latter State.44 The third is the right of a new arrival to a State, who establishes citizenship in that State, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a State for a specified period of time before taking advantage of the benefits of that State’s citizenship.

Supplement: [P. 1911, add new paragraph to text following heading:]

Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, a majority of the Supreme Court approved a doctrinal shift, so that state laws which distinguished between their own citizens based on how long they had been in the State would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.45 The Court did not, however, question the continuing efficacy of the earlier cases.

It is not the weighing of votes but the manner in which it is done which brings the equal protection clause into play. Gray v. Sanders182 struck down the Georgia county unit system under which each county was allocated either two, four, or six votes in statewide elections and the candidate carrying the county received those votes. Since there were a few very populous counties and scores of poorly–populated ones, the rural counties in effect dominated statewide elections and candidates with popular majorities statewide could be and were defeated. But Gordon v. Lance183 approved a provision requiring a 60 percent affirmative vote in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from strict majority rule but stated that the Constitution did not prescribe majority rule; it instead proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic—race, urban residency, or the like—while the provision in issue was neither directed to nor affected any identifiable class.


182 372 U.S. 368 (1963) .
183 403 U.S. 1 (1971) .

Supplement Footnotes

43 Saenz v. Roe, 526 U.S. 489 (1999) . “For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of “free ingress and regress to and from” neighboring States which was expressly mentioned in the text of the Articles of Confederation, may simply have been “conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Id. at 501 (citations omitted). See main text infra n.5 [p. 1912].
44 Paul v. Virginia, 8 U.S. (Wall) 168, 180 (1868) (“without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists”).
45 Saenz v. Roe, 526 U.S. 489, 502–03 (1999) .
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