Constitutional Law II
Right to Vote
Spring 2005
Con Law II
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Express Right to Vote provisions
Original Constitution
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Art. I, § 2: Electors for House of Rep same as
for State Legislature
Art. I, § 4: “The Times, Places and Manner of
holidng Elections for Senators and Reps. shall
be prescribed in each State by the Legislature ”
Art. II, § 2: “Each State shall appoint, in such
Manner as the Legislature thereof may direct, a
Number of Electors [for President & VEEP]”
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Express Right to Vote provisions
Amended Constitution
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12th (1804): Meeting of Electors for President
15th (1870): “The right of citizens of the US to
vote shall not be denied or abridged by the US
or by any State on account of race, color, or
previous condition of servitude”
17th (1913): Senators “from each State [shall
be] elected by the people thereof”
19th (1920): “The right of citizens of the US to
vote shall not be denied or abridged by the US
or by any State on account of sex.”
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Express Right to Vote provisions
Amended Constitution
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24th (1964): “The right of citizens of the US to
vote [in federal elections] shall not be denied
or abridged by the US or any State by reason
of failure to pay any poll tax or other tax.”
26th (1971): “The right of citizens of the US,
who are eighteen years of age or older, to vote
shall not be denied or abridged by the US or by
any State on account of age.”
Summary:

Only 1 affirmative right to vote (senators)
 the rest are non-discrimination or uniformity rules
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Voting as Fundamental EP Right
Fundamental because preservative of all
other rights
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1st Amendment?
“Republican Government”?
But not fundamental under Due Process
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Types of voting equality
Whether you get to vote at all
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Prohibitions (eligibility standards)
Conditions Imposed (poll taxes)
How many & weight of votes (vote dilution)
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Reynolds v. Sims (1964) – 1 person, 1 vote
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Gerrymandering cases
Whether your vote gets counted

Bush v. Gore (2000)
Access to Political Process
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Ballot & Government Bodies
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Harper v. Virginia
(1966)
$1.50 poll tax
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Why not barred by 24th Amendment?
Does the burden fall along suspect class lines?
What kind of burden on EP Fund. Right?
 Is it a “deprivation” of the right to vote?
 Note: no “undue burden” analysis done here
 The burden is itself subject to Strict Scrutiny

Are all user fees subject to SS?
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Harper v. Virginia
(1966)
$1.50 poll tax
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Why not barred by 24th Amendment?
Does the burden fall along suspect class lines?
What kind of burden on EP Fund. Right?
 Is it a “deprivation” of the right to vote?
 Note: no “undue burden” analysis done here
 The burden is itself subject to Strict Scrutiny

Are all user fees subject to SS?
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Kramer v. Union FSD
(1969)
School elections limited to:
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Property owners
Parents/guardians of enrolled children
Compelling ENDS
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Knowledgable/interested voters
Narrowly tailored MEANS
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Persons “primarily interested” in school affairs
 I.e., those paying for and benefiting from service
Fit: Over/Under-inclusive?
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Universal Suffrage?
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Ball v. James
(1981)
Eligibility for voting for water recl. district
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limited to property owners (contra Kramer)
1 acre, 1 vote (contra Reynolds v. Sims)
Salyer Land Co. Tulare Water Dist (1973)
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Reynolds/Kramer do not apply to gov’t opera-
tions that are mainly proprietary (v. sovereign)
 Tantamount to a private company with voting limited
to stockholders
 Taxes tantamount to user fees

Salt River Distr. exercises much greater power
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Ball v. James
(1981)
Eligibility for voting for water recl. district
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limited to property owners (contra Kramer)
1 acre, 1 vote (contra Reynolds v. Sims)
Salyer Land Co. Tulare Water Dist (1973)

Reynolds/Kramer do not apply to gov’t opera-
tions that are mainly proprietary (v. sovereign)
 Compare private company with stockholder voting
 Taxes tantamount to user fees

Salt River Distr. exercises much greater power
 But still of a proprietary vs. governmental nature
Distinction between limited/general gov’t power noted elsewhere
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Reynolds v. Sims
(1964)
Malapportionment

25% of voters elect
50% of legisture
 those voters have 3X
voting power of others
 some have 41X power

Why doesn’t legislature
fix this problem?
 3/5 majority required

Does Alabama have a
“republicant form of
government”?
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Reynolds v. Sims
(1964)
Vote Dilution

What makes differing
vote strength unequal?
 Some voters more equal
than others?
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Does EP cl. mandate
representative gov’t?
 why not different views of
electoral democracy
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Is proportional representation required?
 Gerrymandering?
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Reynolds v. Sims
(1964)
Vote Dilution

Why isn’t apportionment
of US senate unconst’l?
 See Wesbery v. Sanders
Harlan dissent

Not intent of 14th framers
Isn’t this the same J Harlan
who said the DP clause
“stands on its own bottom”
and invoked “basic values
implicit in the concept of
ordered liberty” to find
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fundamental rights?
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Reynolds v. Sims
(1964)
How Equal is Equal?
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Gov’t must “make a goodfaith effort to achieve
precise math. equality”
Even small deviations are
suspect (e.g., 0.7%)
Greater deviation allowed
in statelegislative districting
 e.g., 9.9%
Vieth v. Jubilerer
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No const’l standards for
gerrymandering
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Bush v. Gore
Spring 2005
(2000)
Con Law II
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Bush v. Gore
Spring 2005
(2000)
Con Law II
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Bush v. Gore
Spring 2005
(2000)
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Bush v. Gore
(2000)
Chronology
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FL SoS certifies Bush wins by 1,784 votes
Gore “contests” certification
FL S.Ct. rejects overvote challenge, but
orders manual counting of undervotes
 to ascertain “clear indication of the intent of voter”
Undervotes
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Some voters vote for other races
Some ballots have hanging/dimpled chads
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Bush v. Gore
(2000)
Questions Presented on Cert. to USSC
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I. [Violation of Article II, § 1, cl. 2]
II. [Violation of 3 U.S.C. § 5]
III. Whether the Florida Supreme Court's
decision, enforcing Florida's contest provisions
by ordering the manual review of ballots not
counted by machines under the legal standard
for determining their validity specified in Fla.
Stat. § 101.5614, violates either the Equal
Protection Clause or Due Process Clause of the
Fourteenth Amendment.
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Bush v. Gore
(2000)
Holding

The recount mechanisms implemented in
response to the decision of the FL S.Ct. do not
satisfy the minimum requirement of nonarbitrary treatment of voters necessary to
secure the fundamental right [to vote].”
Is this an EP or DP case?
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“problem inheres in the absence of specific
standards to ensure its equal application”
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Bush v. Gore
(2000)
Equal Protection prerequisites
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Unequal Treatment
All EP cases
 Discriminatory/disparate impact
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Heightened review EP cases
 Purposeful Discrimination
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against quasi/suspect class
in exercise of fundamental right
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Bush v. Gore
(2000)
Unequal treatment (disparate impact) by whom?
 Election officials in various counties?
 No single entity/officer is providing unequal treatment

NB: judicial review to be consolidated before 1 state judge
 Compare McKlesky v. Kemp; Feeney; Af.Action cases
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FL S.Ct.?
 “In tabulating the ballots and in making a determin-
ation of what is a "legal" vote, the standards to be
employed is that established by the Legislature in our
Election Code which is that the vote shall be counted
as a "legal" vote if there is "clear indication of the
intent of the voter." Section 101.5614(5), Florida
Statutes (2000).” 772 So. 2d 1243
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Bush v. Gore

(2000)
FL S.Ct.?
 “the standards to be employed is that established by
the Legislature in our Election Code … "clear indication
of the intent of the voter.“
Nature of the EP problem
Discriminatory standard, or
 Single standard applied in discriminatory manner

 E.g., Yick Wo
 Who has burden of proof? How applied?

Per Curiam Opinion: “Formulation of uniform
rules [a substandard] is practicable & necessary”
 “Search for intent can be confined by specific rules”
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Bush v. Gore
(2000)
Standard of Review
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Intent

established in
all cases
cited by
majority 
Disparate impact alone = rational basis
Heightened scrutiny requires purpose
 Any evidence that election officials intended to treat
ballots differently in one county/precinct than others
Per Curiam: “FL S.Ct. ratified the uneven
treatment” [including some, not all, overvotes]
 “it is absolutely essential .. that a manual recount be
conducted for all legal votes in this State, not only in
Miami-Dade County, but in all Florida counties where
there was an undervote, and, hence a concern that
not every citizen's vote was counted.” FL. S.Ct.
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Bush v. Gore
(2000)
Are all voting disparities violative of EP?
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Question is not whether uneven county systems
for implementing elections are constitutional,
But whether a state court remedy must assure
“equal treatment and fundamental fairness”
NOTE: It isn’t the different standards in use in various
places that violates EP, but the judicial remedy itself
Affirmative requirement imposed to guaranty EP
Remand to require uniform standards?

Not practicable to establish in timely fashion
Could FL S.Ct. have done so 4 days earlier?
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Bush v. Gore
(2000)
Are all voting disparities violative of EP?

Enormous
differences
in accuracy
machinery
Per Curiam:
“the Florida
SupremeofCourt’s
interpretation
of the
Florida optical
election
laws
punch-card
nonvotes
= 3.92%;
scan
= 1.43%
beyond
impermissibly
Compare SVREPdistorted
v. Shelley them
(Cal. recall
racewhat
with major
adisparities
fair reading
required,
in in
violation
of Art. 2”
county
to county
ballot rejection)
click
Was the case ripe for review?
Was the Fl. S.Ct. decision final (see § 1257)
Was the USSC bound by FLSC re state law?

(on 2nd claim – 3 USC § 5)
Was this case a political question?
Did George Bush have standing?
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Bush v. Gore
(2000)
Bottom Lines

Were any disparities, that might occur after review
of recounts by single state judge, more or less
violative of EP than disparities without the recount?
 Gore received more “invalid” votes than Bush <click>
 I.e., was the USSC’s cure worse than the ailment?

Case is sui generis – not to have precedential effect
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Bush v. Gore
(2000)
§ 5. Determination of controversy as to appointment of electors
If any State shall have provided, by laws enacted prior to the
day fixed for the appointment of the electors, for its final
determination of any controversy or contest concerning the
appointment of all or any of the electors of such State, by
judicial or other methods or procedures, and such
determination shall have been made at least six days before the
time fixed for the meeting of the electors, such determination
made pursuant to such law so existing on said day, and made
at least six days prior to said time of meeting of the electors,
shall be conclusive, and shall govern in the counting of the
electoral votes as provided in the Constitution, and as
hereinafter regulated, so far as the ascertainment of the
electors appointed by such State is concerned.
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Other limitations on voting
Literacy tests

Lassiter v. Northampton (1959)
 related to intelligent exercise of franchise
 Ct. finds no disparate impact along racial lines
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But invalidates “grandfather clauses”
Prohibited by Voting Rights Act of 1965
 Upheld in Katzenback v. Morgan (1966) as valid
exercise of Congress’ § 5 powers
Felon disenfranchisement
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See 14th Amd., § 2 (suggesting ok)
But see Hunter v. Underwood (1985)
O’Brien v. Skinner (1974) (awaiting trial)
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