Protecting Political Participation Through the Voter Qualifications Clause of Article I

Abstract

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that the right to vote in federal elections, as defined by Article I, incorporates both i) state constitutional law governing the right to vote and ii) the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to “alter or abolish” their governments at will, similar to the “right of revolution” exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional “alter or abolish” provisions, that is protected by the Voter Qualifications Clause of Article I. Contrary to this provision, courts have divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article demonstrates, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which in turn requires courts to apply a higher level of scrutiny when assessing the constitutionality of state election laws.