Joshua A. Douglas has posted Is the Right to Vote Really Fundamental? on SSRN. Here is the abstract:
This article posits a question that is at the core of our democracy: Is the constitutional right to vote a fundamental right? The answer, surprisingly, is not always.
The Supreme Court has contributed to the confusion surrounding the right to vote by creating two lines of voting rights cases. In one breath the Court calls the right to vote fundamental and applies strict scrutiny. In another, the Court fails to give the right the status of being fundamental and uses a lower standard of review. These two lines of cases have coexisted, leaving lower courts and litigants with little guidance on how to approach future election law disputes. The right to vote - one of our most cherished rights - is the only purportedly fundamental right to suffer from this sort of dichotomy.
This article questions the Court's fractured methodology to voting rights cases from the framework of fundamental rights jurisprudence. What does the Court mean when it says, for some situations, that the right to vote is a fundamental right? Is it always a fundamental right? Or does the right somehow morph into something less than fundamental for certain voting rights issues? Why has the Court switched back and forth between a view that the right is fundamental and a view that it warrants less protection than a fundamental right? Is there a principled distinction between the two lines of cases? Finally, should the Court abandon its dual approach and definitively declare that the right to vote is a fundamental right?
The article identifies the Court's dual approach and then suggests a solution: the Court should always view the right to vote as fundamental. This means that the Court should apply some form of strict scrutiny review to all voting rights cases. This does not mean, however, that the Court should strike down all, or even most, election regulations. Instead, under an approach to strict scrutiny that recognizes the unique nature of election law challenges and provides a context-specific understanding of the narrowly tailored prong for voting rights cases, the Court can treat the right to vote as a fundamental right and still allow states some discretion to regulate elections. By suggesting one possible approach to narrow tailoring for election law disputes, this article demonstrates why the Court did not need to stop recognizing the right to vote as fundamental to come out the same way in most of its election law cases.
