Posted by Drew Penrose on February 13, 2018 at 9:59 AM
In Laboratories of Democracy, a report co-authored by FairVote legal staff and the Campaign Legal Center, we demonstrate that impact litigation with the goal of improving democracy and elections can and should be brought in state courts under state law. Although many high profile cases improving democracy have come at the federal level, there are textual, structural, and historical reasons why a diverse court strategy for electoral impact litigation should provide opportunities for reform where the federal courts have not acted.
Current federal jurisprudence does not protect the right to vote with the same level of scrutiny as other constitutional rights, including the right to spend money to influence elections. The result is a serious gap in available federal judicial protections for our most precious right, the right that is “preservative of all rights.”1 Ultimately, federal voting rights jurisprudence has proven to be insufficient to meet the rising tide of voting restrictions and growing dysfunctions in our electoral systems.
However, in our federal system, democracy advocates need not look solely to federal courts for protection. This report explores the foundations of a state court strategy for protecting and improving our elections. As this report outlines, there are textual, structural, and historical reasons why a diverse state court strategy for electoral impact litigation should provide opportunities for reform where the federal courts have not acted.
First, in contrast to the U.S. Constitution, 49 state constitutions have explicit provisions providing an affirmative right to vote to their citizens. 25 states also have a constitutional provision guaranteeing free and equal elections. The recent decision by the Pennsylvania Supreme Court to strike its congressional map as a partisan gerrymander shows the vitality of these provisions. Second, our federal constitutional structure also supports the view that access to the right to vote and the structure and administration of elections could be sensibly afforded broader protection at the state level. Indeed, the federal Constitution specifically delegates much of electoral administration to the states. And precisely because of the federalist structure of our democracy, the doctrinal foundations of election law are actually rooted in state law. State courts have a well-established “democracy canon,” which directs courts to draw inferences and ambiguities in favor of the right to vote, including favoring the enfranchisement of voters, free, competitive elections, ballot access for candidates, and public participation generally.
This report outlines the rationale for a state court strategy to improve our elections, explores recent state court decisions that demonstrate the potential success of this strategy, and discusses the important strategic considerations to implementing such a strategy. While state court litigation will not be a panacea for all our democracy’s ills, state courts are an important and underused tool in advocates’ arsenal. States—through their courts and legislatures—can and should serve as literal “laboratories of democracy” in reforming, improving, and protecting our electoral systems to build representative and responsive governments at all levels.