Thursday, November 3, 2016

The Right to Vote

Fundamental rights are important both in terms of the Equal Protection Clause and in terms of substantive due process.  If these rights are denied to everyone the correct analysis is substantive due process; if, on the other hand, they are denied to some individuals rather than everyone, then the proper analysis is equal protection. In either case, though, whenever a fundamental right is at issue, the proper analysis is strict scrutiny.  In other words, any government action that is going to affect a fundamental right must be necessary to serve a compelling government interest.

One such fundamental right is the right to vote, and there are a few key things to keep in mind regarding this specific fundamental right:

Residency Requirements:  Reasonable time periods for residency are valid.   Though reasonableness can be tough to evaluate, 30 days residency has been held to be valid for purposes of voting.

Property Ownership:  Conditioning the right to vote on ownership of property is almost always invalid. One exception deals with special purpose elections (voting for officials who do not exercise normal governmental authority but instead deal with matters of special interest in the community).

Poll Taxes: Poll taxes are unconstitutional.

Primary Elections: States may require early registration to vote in primaries. States cannot, however, prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

One Person One Vote: This principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.  An exception, again, is for special purpose elections.

Gerrymandering: Race and other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the plan satisfies strict scrutiny.

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