September 22, 2017

By: Whitney Snyder

The U.S. Constitution’s Inherent Right to Vote

Surprisingly, the U.S. Constitution does not expressly “grant” anyone the right to vote.  Instead, the right to vote is sewn from various constitutional provisions and protections.  In a seminal voting rights case, Baker v. Carr, 396 U.S. 186 (1962), Justice Douglas, concurring in the opinion of the Court, explained how the quilt fits together:

So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section 4 of the Constitution. The House— and now the Senate—are chosen by the people. The time, manner, and place of elections of Senators and Representatives are left to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the regulatory power of Congress. A “republican form” of government is guaranteed each State by Article IV, Section 4, and each is likewise promised protection against invasion. Ibid.  That the States may specify the qualifications for voters is implicit in Article I, Section 2, Clause 1, which provides that the House of Representatives shall be chosen by the people and that “the Electors (voters) in each State shall have the Qualifications requisite for Electors (voters) of the most numerous Branch of the State Legislature.” The same provision, contained in the Seventeenth Amendment, governs the election of Senators. Within limits those qualifications may be fixed by state law. See Lassiter v. Northampton Election Board, 360 U. S. 45, 50-51. Yet, as stated in Ex parte Yarbrough, 110 U. S. 651, 663-664, those who vote for members of Congress do not “owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.” The power of Congress to prescribe the qualifications for voters and thus override state law is not in issue here. It is, however, clear that by reason of the commands of the Constitution there are several qualifications that a State may not require.

Race, color, or previous condition of servitude is an impermissible standard by reason of the Fifteenth Amendment, and that alone is sufficient to explain Gomillion v. Lightfoot, 364 U. S. 339. See Taper, Gomillion versus Lightfoot (1962), pp. 12-17.

Sex is another impermissible standard by reason of the Nineteenth Amendment.

There is a third barrier to a State’s freedom in prescribing qualifications of voters and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another?

In summary, the right to vote is inherent in the constitution’s description of our form of government, while the Fifteenth and Nineteenth Amendments expressly protect abridgement of that right based on race, color, or sex, and the Court has interpreted the Fourteenth Amendment’s equal protection clause to provide additional protections, such as limiting state legislatures’ power to design voting districts to effect election results.

For example, in Baker v. Carr, the Court held claims that redistricting plans that resulted in some people’s votes being weighted more heavily than other people’s votes are justiciable under the Fourteenth Amendment with the courts interpreting equal protection to guarantee “the opportunity for equal participation by all voters in the election of State legislators” – the one person, one vote rule.  Equal protection also extends to claims that redistricting plans intentionally discriminate based on political party affiliation to affect a discriminatory effect on that group (political gerrymandering).  Vieth v. Jubelirer541 U.S. 267 (2004).

The Pennsylvania Constitution’s Express Right to Vote

In contrast to the “inherent” right to vote in the U.S. Constitution, Article VII, § 1 of the Pennsylvania Constitution expressly grants citizens the right to vote, and Article I, § 5, known as the free and equal elections clause, expressly disallows interference to prevent the free exercise of the right to vote.  Pennsylvania’s Constitution also contains an equal protection guarantee, Article I, §§ 1 and 26, which courts have interpreted to protect the right to vote.

However, based on Pennsylvania’s current jurisprudence concerning protections of the right to vote under either constitution, the inherent versus express quality of the right to vote is a distinction without a difference.

The Pennsylvania Supreme Court interprets the right to vote equally under both constitutions.  In Erfer v. Com., 794 A.2d 325, 332 (Pa. 2002), the Court expressly held that the right to vote that the Pennsylvania Constitution guarantees does not provide broader protections than the rights the U.S. Constitution guarantees because (1) the Court had previously held Pennsylvania’s equal protection rights are “coterminous” with the federal counterpart and (2) the Pennsylvania’s free and equal elections clause does not provide further protection to the right to vote than does the equal protection clause.  However, the Erfer Court clarified that this holding was based in part on the Court finding “no persuasive argument as to why we should, at this juncture, interpret our constitution in such a fashion that the right to vote is more expansive than the guarantee found in the federal constitution.”  Id.

Another Inherent Protection of the Right to Vote?

In our series on political gerrymandering we are following LWV v. PA, a redistricting case in the Commonwealth Court that presents a different spin on constitutional protection of the right to vote – relying on free speech and free association rights.  Both the U.S. and Pennsylvania Constitutions contain clauses protecting the right to free speech and free association.  U.S. Constitution, Amend. 1 (interpreted to also protect the right to free association, Roberts v. United States Jaycees, 468 U.S. 609 (1984)); Pa. Const. art. 1, §§ 7 and 20.  Notably, the Pennsylvania Supreme Court previously held that Pennsylvania’s free speech and free association clauses provide greater protection than the First Amendment of the U.S. Constitution. Pap’s A.M v. City of Erie, 812 A.2d 591, 605 (Pa. 2002).

LWV v. PA involves two theories as to how gerrymandering violates Pennsylvania’s free speech and free association clauses.  First, Petitioners allege that the redistricting plan, because it has the intent and effect of disenfranchising Democrat votes, suppresses the protected expression of their political views (including voting and association with a political party).  Second, Petitioners allege that the plan penalizes, via disenfranchising their votes, Democrats for expressing their Democratic views in violation of the prohibition against retaliation for expressing protected speech.

The theory that freedom of speech and association protects the right to vote is not a wholly new theory.  The Petitioners in Erfer had raised (but not adequately supported) a free speech and association claim that the Commonwealth Court dismissed, and did not pursue those claims in the Pennsylvania Supreme Court.  Litigants have also raised the theory using the First Amendment, and certain Justices have expressed hope that the First Amendment lens could be the key to resolving gerrymandering claims.


Justice Kennedy, in his concurring opinion in Vieth, stated: “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering.”  Vieth, 541 U.S. at 314.  Based on the fact that in other First Amendment contexts laws that burden citizens because of their voting history, political party association, or expression of political views are subject to strict scrutiny (where the law must be narrowly tailored to serve a compelling government interest), Justice Kennedy argued that if the Court viewed gerrymandering claims through the First Amendment lens it could overcome the justiciability problems faced under the equal protection claims, which are subject only to a rational basis analysis (the law must be rationally related to a legitimate government interest).  Justice Steven’s dissent also used First Amendment precedent to argue gerrymandering claims should be subject to strict scrutiny.  However, the plurality in Vieth stated there was no place for First Amendment analysis in gerrymandering claims, reasoning that districting based on party affiliation would never be allowed under that analysis, an outcome that history shows could not be correct.

Two years later, in LULAC v. Perry, 548 U.S. 399, 461-62 (2006), while the majority did not decide claims that Texas redistricting worked an unconstitutional gerrymander in violation of the First Amendment, Justice Stevens in a concurring and dissenting opinion in which Justice Breyer joined, again asserted his view that the First Amendment restricts state legislatures’ powers in redistricting and that gerrymandering claims are subject to strict scrutiny.

Now, Gill v. Whitford, which involves Wisconsin’s districting plan and is scheduled for argument on October 3, 2017, places First Amendment gerrymandering claims again before the Court.  Professor Danial P. Tokaji provides an informative analysis of how the Court could potentially apply First Amendment principles to find a constitutional standard to resolve those gerrymandering claims.

Come back tomorrow for our final Constitution Week installment where Dennis Whitaker will provide an overview of the many additional areas where differences between the Pennsylvania and U.S. Constitutions provide opportunities for the savvy advocate.

About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.