Voter Qualifications

prev | next

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has determined that, under the Fourteenth Amendment’s Equal Protection Clause, states may require a duration of residency as a qualification to vote, but such requirements will be held unconstitutional unless the state can show that the requirement is necessary to serve a compelling interest.1 According to the Court in Dunn v. Blumstein, “[t]his exacting test” applies because the right to vote is “a fundamental political right . . . preservative of all rights,” and because a “durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.” 2 While acknowledging that states have “a legitimate and compelling interest” in preventing fraud by voters, in Dunn, the Court determined that a one-year residency requirement in a state and a three-month residency requirement in a county was not necessary to further “a compelling governmental interest.” 3 In contrast, the Court in Marston v. Lewis upheld a fifty-day durational residency and voter registration requirement, determining that the law was necessary to serve “the State’s important interest in accurate voter lists.” 4

In a landmark case, Harper v. Virginia State Board of Elections, the Supreme Court in 1966 held that restricting voting qualifications to those citizens who had paid a poll tax constituted invidious discrimination under the Fourteenth Amendment Equal Protection Clause.5 While underscoring that states have the limited power to establish qualifications for voting, the Court observed that “[w]ealth, like race, creed, or color is not germane to one’s ability to participate intelligently in the electoral process.” 6 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,7 and denied states the right to restrict the vote to property owners in elections on the issuance of revenue bonds8 or general obligation bonds.9 By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not “required voters to pay a tax or a fee to obtain a new photo identification.” 10 The Court added that, although obtaining a government-issued photo identification is an “inconvenience” to voters, it “surely does not qualify as a substantial burden.” 11

The Court has also evaluated challenges under the Equal Protection Clause to voter qualification laws in other contexts. For instance, the Court has determined that a state that exercised general criminal, taxing, and other jurisdiction over residents of a federal enclave within the state could not treat these persons as nonresidents for voting purposes because the residents of the enclave “have a stake equal to that of other” “residents of the state.” 12 In that vein, the Court invalidated a state constitutional provision prohibiting any member of the military, who entered military service outside the state, from establishing a voting residence within the state during the duration of their military service because it imposed an “invidious discrimination in violation of the Fourteenth Amendment.” 13 Although the Court acknowledged the “special problems” presented to the state “in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes,” the Court determined that the constitutional provision “goes beyond such rules.” 14 With regard to prisoners, in a 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.15 Subsequently, however, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences.16

1: See Dunn v. Blumstein, 405 U.S. 330, 342 (1972).
2: Id. at 336, 338. See also Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam) (vacating an injunction against “requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day,” but not addressing its constitutionality).
3: Dunn, 405 U.S. at 360. The Court observed that with the Voting Rights Act Amendments of 1970, 84 Stat. 316 (codified at 52 U.S.C. § 10502), “Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections.” Dunn, 405 U.S. at 344.
4: 410 U.S. 679, 681 (1973). Among other things, the Court observed that the state had shown that the fifty-day residency requirement was needed because voter registration in the state was conducted by volunteer workers who made statistically significant errors requiring additional time for correction. See id. at 680–81. See also Burns v. Fortson, 410 U.S. 686, 686–87 (1973) (affirming a district court ruling that upheld a fifty-day voter registration deadline “to promote . . . the orderly, accurate, and efficient administration of state and local elections, free from fraud” ); Rosario v. Rockefeller, 410 U.S. 752 (1973) (upholding a requirement that voters enroll in their political party of choice thirty days prior to the general election to be eligible to vote in the next party primary, reasoning that the law did not impose a prohibition upon voting); Rodriguez v. Popular Dem. Party, 457 U.S. 1, 14 (1982) (upholding statute authorizing an incumbent legislator’s political party to designate, upon the legislator’s death or resignation, a successor in office until the next general election, determining that the Constitution does not mandate how legislative vacancies are to be filled); Fortson v. Morris, 385 U.S. 231 (1966) (holding that legislature could select governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Bd. of Elections, 387 U.S. 105, 111 (1967) (upholding appointment, rather than election, of county school board). But see Kusper v. Pontikes, 414 U.S. 51, 61 (1973) (invalidating a prohibition on a individual voting in a party primary if the individual voted in another party’s primary within the prior twenty-three months); Tashjian v. Repub. Party of Conn., 479 U.S. 208, 229 (1986) (invalidating a “closed primary” system, finding insufficient justification for a state preventing a political party from allowing independents to vote in its primary).
5: See 383 U.S. 663, 670 (1966) (overruling Breedlove v. Suttles, 302 U.S. 277 (1937) and Butler v. Thompson, 341 U.S. 937 (1951)).
6: Id. at 668.
7: See Kramer v. Union Free Sch. Dist., 395 U.S. 621, 632 (1969).
8: See Cipriano v. City of Houma, 395 U.S. 701, 706 (1969).
9: See City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). See also Hill v. Stone, 421 U.S. 289, 300–01 (1975) (invalidating restrictions 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).
10: Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (plurality opinion).
11: Id. at 198.
12: Evans v. Cornman, 398 U.S. 419, 426 (1970).
13: Carrington v. Rash, 380 U.S. 89, 96 (1965).
14: Id. But see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719, 734–35 (1973) (upholding a voter qualification permitting only landowners to vote in a water storage district election because the landowners “were to bear the entire burden of the district’s costs” ). Id. at 731; Associated Enters. v. Toltec Watershed Improvement Dist., 410 U.S. 743 (1973) (upholding a voter qualification limiting the franchise to property owners in the creation and maintenance of a watershed improvement district); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 734–35 (1973) (upholding a voter qualification limiting the franchise to landowners, reasoning that a water storage district was a specialized and limited form to which its general franchise rulings did not apply); Ball v. James, 451 U.S. 355, 371 (1981) (upholding a voter qualification limiting the franchise to landowners in a water reclamation district), but cf. Quinn v. Millsap, 491 U.S. 95, 109 (1989) (invalidating a state constitutional provision requiring that members of a “board of freeholders,” which considered the reorganization of local governments, be landowners, reasoning that the board had a mandate “far more encompassing” than land use issues, as its recommendations “affect[ ] all citizens . . . regardless of land ownership.”
15: See McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969); see also Richardson v. Ramirez, 418 U.S. 24, 54–56 (1974) (holding that California’s constitutional provisions disenfranchising convicted felons who have completed their sentences and paroles did not violate the Equal Protection Clause); but see Goosby v. Osser, 409 U.S. 512 (1973) (determining that McDonald does not preclude a challenge to an absolute prohibition on voting).
16: See O’Brien v. Skinner, 414 U.S. 524 (1974). See also Am. Party of Texas v. White, 415 U.S. 767, 794–95 (1974), Hunter v. Underwood, 471 U.S. 222, 225 (1985) (holding that Alabama’s constitutional provision disenfranchising persons convicted of crimes involving moral turpitude violated equal protection).