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Election Law Manual
Chapter 5: State Regulation of Voters

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Table of Contents

Subchapter 1: Introduction

Courts commonly acknowledge that the right to vote is fundamental because it is preservative of all other rights.1 Yet the right to vote is not absolute.2 Instead, a state’s power to regulate local, state, and federal elections includes the power to set voter qualification standards 3 and to regulate the time, place, and manner of a voter’s electoral participation. 4 The state’s power to regulate voters is itself limited by state and federal statutory and constitutional provisions.5 This chapter examines voter eligibility requirements and voter registration processes.

In general, states can condition the right to vote on the voter’s ability to meet the traditional qualification criteria—residence, age, citizenship—and may be able to establish other participation criteria subject to constitutional restraints.

Subchapter 2: State Regulation of Voter Eligibility

States regulate the right to vote by establishing criteria voters must meet before they can participate in elections. The criteria range from established and traditional categories that many states use to criteria—such as party affiliation requirements—that are applicable to limited circumstances, such as partisan primary elections. 6 This section discusses the multiple varieties of state regulation of the right to vote and voter participation.

Generally speaking, states have sought to regulate the individual right to vote to further state interests in:

  • electoral integrity, 7
  • preventing “party raiding,” 8
  • preventing fraud, 9
  • limiting participation to individuals within the political community, 10
  • ensuring voters are informed, 11 and
  • political stability. 12

 

A. Traditional Voter Criteria

In general, states can freely confine the right to vote to those individuals who satisfy the traditional voter qualification criteria of age, citizenship, and residency.

 

1. Age Requirements

The U.S. Constitution prohibits states and the federal government from denying anyone eighteen or older the right to vote due to age. 13 Because the Constitution does not establish a minimum voting age, it appears that states may allow minors to vote if the state wishes to do so.14

Although states may not use age to disqualify voters who are eighteen or older, elderly voters face barriers to voting if they do not qualify for an absentee ballot, are not independently mobile, lack access to transportation, or if the polling place is otherwise inaccessible to them.15 Elderly voters may also lose the right to vote subject to state laws concerning voter capacity.16

 

2. Residency Requirements

States typically require prospective voters to satisfy residency requirements before they can register to vote.17 Residency requirements usually encompass three components: geographic residency, bona fide residency status, and durational residency. Special district elections may establish different residency rules than those generally applicable, as discussed later in this chapter.18

 

a. Geographical Residency Requirements

Geographical residency requirements restrict voting to individuals who live within a political subdivision. Individuals who live outside a political subdivision’s boundaries have no constitutional right to vote in its elections, even if they are subject to some of its laws.19 For example, although a city’s policing, business licensing, and sanitary district powers extended three miles into the adjacent county, county residents who lived within the overlap zone had no constitutional right to vote in the city’s elections.20 A locality may allow non-resident landowners to vote in municipal elections but are not required to do so.21

 

b. Bona Fide Resident Requirements

States have a legitimate interest in limiting voting rights to bona fide residents.22 Bona fide residency requires more than the voter’s presence in the locality on election day by requiring the voter to make the locality the voter’s domicile.23 Domicile is the union of physical residency and the present intent to remain in the location indefinitely,24 or the absence of a present intent to leave. 25

A prospective voter’s bona fide residency status may be of special concern in areas that experience the significant and regular turn-over of an identifiable population subset compared to the rest of the community, such as communities that are home to colleges, universities, military bases, or federal enclaves.26

States may not “fence out” some classifications of residents because of concerns about how the residents will vote.27 Instead, localities must make individualized determinations as to whether a prospective voter satisfies bona fide residency requirements.28 To assist them in this determination, states may require prospective voters to demonstrate they are bona fide residents before extending voting rights to them. States may require prospective voter registrants to objectively establish the necessary domiciliary intent by:

  • acquiring a dwelling,29
  • obtaining a driver’s license,30 or
  • registering an automobile.31

Some localities may allow homeless individuals to register to vote and identify a voting precinct based on the location where the individual spends most nights.32 Other localities have broadened their definition of “residence” to accommodate the homeless population by allowing the listing of a park bench or any other nontraditional accommodation where they sleep or a shelter.33

At least as early as 1813, students have sued for the right to vote in elections held by the locality where their college is located.34 In 1972, the Supreme Court affirmed a lower court ruling that held a Texas registrar’s uniform practice of refusing to register college students unless the student established intent to remain in the area after graduation was a violation of the Twenty-Sixth Amendment.35 However, states still maintain domicile requirements that college students—and the larger voting age population—must meet. States take a variety of approaches in deciding whether college students may vote in elections held in the college community. Some states may presume the student’s domicile is identical to the student’s parents’ domicile but allow the student to rebut the presumption.36 Others have no such presumption.37

In most states, a key factor in determining the student’s voting status is whether the state measures domicile by the intent to remain in the community indefinitely versus a lack of present intent to leave.38 If an intent to remain is necessary, then students who intend to move after graduation might be unable to form the necessary intent to establish domicile while they are in college, but if the measure is the lack of a present intent to leave, then these students can establish domicile—even if they intend to move immediately after they graduate—because they do not presently intend to leave.39

In 2012, the New Hampshire state legislature introduced and passed legislation that affected the ability of out-of-state students to vote in the state.40 In 2015, the state supreme court held that language included on the voter registration form violated the right to vote because of a significant likelihood of voter confusion.41 In 2021, the New Hampshire state supreme court struck a revised version in its entirety as a violation of the right to vote.42 The revised statute required proof of domicile if registering to vote more than 30 days before an election and required a separate form to prove verification if registering less than 30 days before an election.43 The court found sufficient evidence that the law caused voter confusion and that the state failed to demonstrate substantial relation to the interests the state claimed justified the burden.44

 

c. Durational Residency Requirements

Durational residency requirements establish the amount of time a new resident must live in the community before becoming eligible to vote in its elections. Durational residency periods may be created specifically by state statute or they may result from the operation of a pre-election registration deadline.

Independent statutory durational residency requirements receive strict scrutiny because they:

  • burden the right to vote,
  • burden the right to travel, and
  • treat newly arrived bona fide residents less favorably than established residents.45

Under a strict scrutiny analysis, states cannot justify durational residency requirements on a need for electoral integrity or the necessity of an informed electorate.46 Courts have held that durational residency requirements do not enhance electoral integrity if the state makes no effort to verify the information given it and if “informed electorate” justifications raise concerns that the state’s true interest is in excluding new voters whose political sensibilities potentially differ from those of longer-term residents.47

States may, however, establish pre-election voter registration deadlines to provide election officials sufficient time to prepare voter records and to protect elections from fraud. 48 State voter registration deadlines act as de facto durational residency requirements because residents who move into the community after the deadline cannot register to vote in the upcoming election.49

Federal statutes and Supreme Court decisions set the following parameters on state durational residency requirements:

  • For presidential elections: state durational residency requirements cannot exceed thirty days, and states must allow voters who register to vote thirty days before a presidential election to vote in their new state of residence or to vote in-person or by absentee ballot for president in their old state if the individual misses the voter registration deadline in their new state of residence.50
  • For non-presidential elections: state durational residency requirements of one-year in-state and three-months in-county are unconstitutional,51 but durational residency requirements longer than thirty-days may be constitutional if the state’s election administration needs justify the period.52 The constitutionality of durational residency requirements whose length is between fifty and ninety days is unknown.

 

3. Citizenship Requirements

States may constitutionally restrict the right to vote to citizens,53 although the Constitution does not require it.54 The U.S. Supreme Court held that states have an interest in limiting governmental participation to individuals who are within the political community, which does not include non-citizens. 55 In that case, the Court found that the state did not violate the rights of the non-citizen parents of school-aged children when it denied the parents an opportunity to vote in a local school board election.56

The federal National Voter Registration Act (NVRA) voter registration form requires prospective voters to affirm their citizenship but does not require registrants provide documentation of citizenship. In 2013, the Supreme Court held that the NVRA preempts states from requiring citizens to provide documentary proof of citizenship as a condition of registering to vote in federal elections.57

 

4. Requirements Relating to Felony Conviction History

In general, states do not violate the U.S. Constitution if they disenfranchise people with felony conviction histories.58 However, state statutes that conditioned the restoration of the right to vote on payment of any financial obligation may be deemed unconstitutional because they impose a property qualification affecting the right to vote.59 More commonly, state statutes that restrict the right to vote based on the prospective voter’s felony conviction history are analyzed under the rational basis test, which they generally satisfy.60 For example, states do not violate equal protection guarantees even if they prohibit people with felony conviction histories who have completed sentence and parole conditions from voting.61 On occasion, however, a felon disenfranchisement statute is found to have no rational relation to any state interest. Such was the case with a state statute that imposed a five-year voter registration ban on persons newly released from incarceration who had not registered to vote before incarceration but allowed those newly released who had registered to vote before incarceration to resume voting immediately.62

States vary widely in their approaches to voting rights for people convicted of felonies. In Maine and Vermont, people may vote while incarcerated.63 Other states automatically restore the right to vote to those who finish their sentence.64 In yet other states, people with felony convictions must petition the state for the right to vote once their sentence is complete. Recently, some states like Virginia have streamlined the process of restoring voting rights to people with felony conviction histories.65 In 2018, Florida voters amended the state constitution to eliminate the requirement to petition the governor for rights restoration, restoring voting rights automatically to people convicted of nonviolent crimes who have completed their sentence.66 The state legislature later confined that amendment to those who had paid all court fines and fees—a restriction the 11th Circuit upheld in 2020.67

 

B. Non-Traditional Voter Criteria

States also regulate—or have regulated—voter participation by qualifications or requirements that go beyond the traditional age, residency, citizenship, and felony conviction classifications discussed above. The most common of these other criteria are:

  • wealth,
  • literacy,
  • capacity, and
  • party affiliation.

Some of these requirements or conditions have been declared unconstitutional or prohibited by federal statute, as discussed below.

 

1. Wealth Requirements

A voter’s wealth has no relationship with the voter’s ability to participate intelligently in voting.68 State restrictions that condition voting on satisfying wealth-based requirements—such as the payment of a poll tax—are unconstitutional.69 In addition, the Voting Rights Act explicitly prohibits states from conditioning voting on the payment of poll taxes.70

 

2. Literacy Requirements

In the 1959 U.S. Supreme Court case, Lassiter v. Northampton County Board of Elections, the court held that non-discriminatory literacy tests serve the state’s rational interest in the intelligent use of the ballot and do not violate Equal Protection. 71 They have, in fact, never been ruled unconstitutional, but their use (and the use of other tests 72) was banned by an amendment to the Voting Right Act in 1970. 73 Later that same year, the Court upheld this ban in Oregon v. Mitchell. 74

 

3. Capacity Requirements

The limits on a state’s ability to disenfranchise voters because of the voter’s mental capacity have not been clearly established. States have a compelling interest in making sure that all voters understand the nature and effect of voting, and state statutes or constitutions may specify whether persons adjudicated mentally incompetent can or must be disenfranchised.75 Courts have found that otherwise eligible voters who have been adjudicated mentally incompetent may not lose the right to vote without due process, including notice and the opportunity to be heard.76 The state’s failure to provide due process to voters who are the subject of incapacity hearings may be unconstitutional.77 State statutes that selectively disenfranchise the incapacitated are vulnerable to an equal protection challenge. For example, a federal district court found that a Maine statute that disenfranchised all individuals under guardianship because of mental illness, even if they understood the nature and effect of voting but did not disenfranchise individuals under guardianship because of mental retardation, regardless of its severity, violated equal protection guarantees.

At least one court has held that courts conducting incapacity determinations must make individual determinations regarding the subject’s ability to understand the nature and effect of voting and should not allow mental illness or any other label to serve as a proxy for the individual’s ability to participate in the electoral process.78

 

4. Party Affiliation Requirements

Some states require voters to declare a political party affiliation or their non-affiliated status when they register to vote. 79 The affiliation information is used to determine the voter’s eligibility to vote in primary elections. These states frequently seek to protect their interest in political stability by imposing deadlines voters must meet if they wish to change their party affiliation—that is, to disaffiliate with their existing political party and affiliate with a different party— and participate in their new political party’s primary election.80

A state’s voter disaffiliation requirement’s constitutionality is assessed by the burden it imposes on the voter’s right to associate for political purposes to elect the preferred political party’s nominee.81 Using this criteria, the U.S. Supreme Court upheld an eleven-month disaffiliation requirement because a voter could vote in a different political party’s primary every year as long as the voter met the registration deadline,82 but struck as unconstitutional a twenty-three-month disaffiliation requirement because it “locked” the voter into a now unwanted party affiliation and prevented the voter from voting in the voter’s new party primary during an entire primary cycle.83

 

C. Special District Elections

States and localities establish special districts to manage narrow activities—such as water, pollution, or pest control—that disproportionately affect property holders in a limited geographic area.84 Special districts do not act legislatively and do not perform traditional government functions, such as running schools. Special districts are usually funded through taxes or assessments on the land within the district.

The unique nature of special districts may allow them to establish voting eligibility criteria for elections to their governing boards that might ordinarily be unconstitutional. For example, voting in special district elections may be restricted to landowners, excluding bona fide residents who rent, or may be extended to corporations.85

Voter qualification standards for special interest elections are subject to rational basis review, and will be upheld unless the challenger can prove the requirement is not relevant to the state’s objective.86 The U.S. Supreme Court has held that denying the right to vote in special purpose district elections to residents who are merely “affected” by the district’s operations is not an equal protection violation if the costs and benefits of decisions made by the elected special district officials disproportionately accrue to landowners.87

School board elections 88 and general revenue bond elections 89 are not special district elections in which voting can be restricted to landowners. Instead, the U.S. Supreme Court has found that these types of elections implicate traditional government functions and restrictions on voting rights must be reviewed under strict scrutiny.90

Subchapter 3: Voter Registration Processes

In most, but not all, states, prospective voters must register to vote in advance of the election and by a state-set deadline.91 Although states regulate and administer voter registration—generally at the local level—voter registration must conform to federal constitutional protections and federal statutes.92 Failure to allow otherwise qualified individuals to register to vote can void an election.93 Although federal regulation of voter registration is extensive, states have some latitude to customize their registration procedures and requirements to meet local needs. For example, the U.S. Supreme Court blessed a fifty-day pre-election new voter registration cut-off for voting in state and local elections because the state demonstrated that, given the requirements in its election code, it needed that much time to produce accurate voter lists for use in the upcoming election.94

 

A. Federal Statutory Regulation of State Voter Registration

The federal government regulates state voter registration processes through statutory provisions in the:

  • Voting Rights Act (VRA),95
  • National Voter Registration Act of 1993 (NVRA),96
  • Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA),97
  • Help America Vote Act (HAVA),98
  • Americans with Disabilities Act (ADA),99 and, to a lesser extent,100
  • Rehabilitation Act (RA),101 and
  • Voting Accessibility for the Elderly and Handicapped Act (VAEHA).102

Because voter registration is a threshold voting requirement in most states,103 the inability to register results in the prospective voter’s disenfranchisement. These federal statutes protect the franchise by removing barriers that prevent or prohibit otherwise qualified 104 individuals from registering to vote or maintaining their registration status. They accomplish this by:

  • 1) prohibiting discrimination,
  • 2) expanding voter registration opportunities, and
  • 3) regulating voter registration databases, including list maintenance of voter registration records.

Although plaintiffs suing under these statutes 105 are likely to sue in federal court, state courts should be cognizant of the federal statutory requirements because any state court-imposed voter registration-related remedy may not conflict with federal requirements.106

 

1. Prohibiting Discrimination

The Voting Rights Act (VRA) explicitly prohibits states from denying an otherwise qualified individual the opportunity to register to vote solely on account of race, color, or previous condition of servitude.107 Under a separate provision, the VRA requires “covered” states and localities to obtain preclearance for proposed changes in voting practices, laws, or regulations which would include voter registration rules.108 However, following Shelby County v. Holder, the Court invalidated the formula used to determine covered states and localities, rendering Section 5 unusable unless Congress updates the coverage formula.109

Separate from its Section 5 preclearance provisions, the VRA requires all states and localities to provide bilingual voter registration materials and assistance in completing them to members of single language minority population groups that meet size, illiteracy, and limited English proficiency criteria.110

Finally, the VRA requires states to allow otherwise eligible prospective voters to register for the presidential election up until thirty days before the election.111

Lawsuits challenging a state’s implementation of or compliance with the VRA are generally brought by the U.S. Attorney General or private citizens suing in federal district court.112 Unless and until the preclearance formula is reworked by Congress, no suits can be brought under Section 5 unless a court “bails in” a jurisdiction, a process enabled under VRA Section 3(c).113

 

2. Expanding Voter Registration Opportunities

Several federal statutes are designed to expand voter registration opportunities. The National Voter Registration Act of 1993 (NVRA)114 requires states to:

  • allow qualified citizens to register to vote in federal elections when they apply for a driver’s license,115
  • automatically use a driver’s license change of address form to update the driver’s voter registration record unless the driver opts out,116
  • offer voter registration by mail for federal elections,117
  • provide voter registration forms at all state-funded offices that provide public assistance or services to persons with disabilities,118 and
  • allow for public inspection of voter registration records.119

The U.S. Attorney General or private citizens can enforce the NVRA by suing in federal district court. 120 For example, plaintiffs have challenged state voter registration maintenance procedures,121 or lack thereof,122 and proof of citizenship requirements.123 Organizations too can successfully assert standing to sue under the NVRA if its interests in the suit do not render it outside of the zone of interests protected by the NVRA. 124 The NVRA allows attorney fee awards to prevailing parties other than the United States.125

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)126 requires states to accept and process otherwise valid absentee voter applications received from uniformed and overseas voters 127 if the application is received at least thirty days before a federal election. 128 The U.S. Attorney General enforces UOCAVA through civil actions for declaratory or injunctive relief brought in federal district court.129

The Help America Vote Act (HAVA)130 sets forth the following requirements for state processing of voter registration applications for federal elections:

  • states cannot accept or process voter registration applications for federal elections unless the applicant included a driver’s license number if the applicant has one, the last four digits of the applicant’s social security number if the applicant has no driver’s license number, or affirmatively attests that the applicant has neither a driver’s license nor a social security number,131
  • if the voter attests that the voter has neither a driver’s license nor a social security number, then the state must issue a unique voter identification number,132
  • if the mail-in application does not contain all the required voter registration information, then the state cannot process the voter registration application, but should notify the applicant of this disposition.133

The language of HAVA provides that these requirements are a floor; states may establish “election technology and administration requirements that are more strict . . . so long as such State requirements are not inconsistent with the Federal requirements under [HAVA] or any law described in section 15545 of this title.”134 However, HAVA does preempt some state laws that do not match the statute’s purposes.135

HAVA limits enforcement actions to U.S. Attorney General civil lawsuits requesting injunctive or declaratory relief filed in federal district court.136 HAVA does not create a private cause of action. 137

The final set of federal statutes attempt to remove barriers that make it difficult for individuals with disabilities to access registration locations or understand and complete registration forms without accommodation.138 In chronological order by date of passage,139 these statues are the Voting Accessibility for the Elderly and Handicapped Act (VAEHA),140 and Americans with Disabilities Act (ADA).141

The VAEHA provides a restricted private cause of action for declaratory or injunctive relief against a non-compliant state or political subdivision.142 Its voter registration-related provisions 143 require states to:

  • offer a “reasonable number” of permanent voter registration facilities accessible by the elderly and the handicapped unless each voter can register by mail or in their residence,144 and
  • provide large print and TDD devices at voter registration sites.145

In the voter registration context, the ADA prohibits discrimination against disabled individuals on account of their disabilities in the provision of public services, programs, or activities,146 and in the enjoyment of goods, services, facilities, privileges, advantages or accommodations provided to the public.147 In the realm of inhibiting voter registration, this typically involves challenges to the accessibility of voter registration offices or the election officials’ failure to read or otherwise provide registration forms accessible to individuals with vision impairments or learning disabilities.148

 

3. Regulating Voter Registration Databases

HAVA requires states to establish and maintain a single, uniform, centralized, interactive, statewide voter registration database in which every voter’s registration record has a unique identification number.149 Voting registration records become outdated when voters move without transferring their registration, die, or become ineligible because of a felony conviction or mental incapacity adjudication.150 To avoid problems associated with outdated voter registration information, many states periodically update their voting registration records by removing ineligible voters.151 HAVA specifies that voters may be removed from the registration list only in accordance the NVRA, specifically, a state must:152

  • make “reasonable” efforts to remove only ineligible persons from voter registration database,
  • not remove a voter solely for failure to vote,153 and
  • provide notice to those voters at risk of being removed from the state’s voter rolls before removing their names from the registration database.154

In some states, local voting officials remove ineligible voters, while in others list maintenance is conducted at the state level. In still others, list maintenance is a joint effort.155

As cyber security threats have increased, states have passed laws to address these concerns. For example, Maryland has a law that requires elections administrators to report security violations.156

 

B. State Statutory Regulation of Voter Registration Processes

1. Voter Registration Deadlines

Most states mandate would-be voters to register to vote before a prescribed deadline. These deadlines vary by state, but typically fall between 8 and 30 days before the election.157 Plaintiffs have challenged voter registration deadlines as a burden on the right to vote. Most of the challenged statutes have been upheld.158 Generally speaking, while judges have the power to determine that a voter registration deadline statute is unconstitutional, courts cannot grant elections officials the authority to accept voter registration applications past the statutory deadline.159 However, in times of emergencies or technical errors, courts have issued temporary restraining orders to enjoin election officials from enforcing the voter registration deadline.160

State statutes that limit voters who change their residence from one county to another on or within 30 days of the election to vote only for president and vice president while permitting those who move within the same period within their county to access the entire ballot do not violate equal protection.161 States can also require different registration periods to become a qualified voter for those voting in person and those voting by absentee ballot. For example, Ohio was permitted to require those voting in person be registered to vote for 30 days before the election, while allowing absentee voters to request and complete absentee ballots before they have been registered for 30 days.162

 

2. Automatic Voter Registration

Nearly half of U.S. states have automatic voter registration processes which automatically register eligible individuals that transact with the DMV or other NVRA agency to vote.163 States use several methods. In Oregon, the first state to implement automatic voter registration, eligible voters who interact with the DMV are registered to vote and have the option of opting out by returning a mailed notification.164 Some states provide other means to allow eligible voters to opt in or out during or after their transaction.165

Very few courts have heard cases challenging automatic voter registration policies. However, in 2020, the Michigan Court of Appeals held that the Secretary of State’s policy of automatically registering eligible voters 17 ½ years or older does not unduly burden the right to vote by not automatically registering those under 17 ½ years old to vote because only those who are 17 ½ years old and older are eligible to be registered to vote and only those who are 18 years old and older have the right to vote. 166 Some courts have held that registering to vote in a state with automatic voter registration is not an indication of that individual’s intent to register to vote in that state, and therefore does not prohibit such voter from maintaining voter registration status in another state.167

 

3. Same-day Voter Registration

A little less than half of the state have implemented same-day voter registration practices.168 This practice allows qualified residents of the state to register to vote and cast a ballot on the same day.169 Some states that allow same day registration vary on details. For example, Montana allows same-day registration during part of its early voting period, but does not allow same-day registration on Election Day.170

All states that offer same-day registration require would-be voters to prove residency at the time of registration or soon thereafter.171 All states permit the use of a driver’s license or ID card, but some allow a utility bill or paycheck with an address.172

Plaintiffs have challenged rollbacks of same-day registration rules, meeting with varying success. In 2016, the U.S. Court of Appeals held that removing the state’s same-day voter registration practice did not violate § 2 of the VRA or the Equal Protection Clause. 173 In 2017, the 4th Circuit prevented the elimination of same-day voting as a violation of § 2 of the Voting Rights Act and the Fourteenth Amendment.174

 

4. Proof of Citizenship Requirements

In 2011, Kansas adopted a documentary proof of citizenship requirement for voter registration in state elections. The law took effect in 2013. 175 Under that law, if a registrant did not provide proof of citizenship, the application was deemed incomplete. The individual had 90 days to provide proof of citizenship, or the application was canceled requiring re-application.176 After years of court battles, the Tenth Circuit held in 2020 that the proof of citizenship requirement violates the Fourteenth Amendment and could not be enforced.177 Using the Anderson-Burdick balancing test, the court found a significant burden on registrants that the interests set forth by the Secretary did not justify.178 The court also held that the proof of citizenship requirement also violated Section 5 of the NVRA because the state failed to show that substantial numbers of non-citizen voters attempted to register or vote.179

States cannot require proof of citizenship to register to vote while using the Federal Form provided by the NVRA. 180 However, they can request that the EAC include state-specific information on the Federal Form.181

States can require proof of citizenship for registrants who were born outside of the United States.182

Subchapter 4: Challenges to State Regulation of the Right to Vote

Challenges to state regulation of the right to vote and voting opportunities are likely to take one of two forms. The first is a compliance-based challenge that generally occurs when a prospective voter claims that she satisfied all voter qualification requirements but was denied an opportunity to register to vote. The second type of challenge claims that the challenged state regulations violate the state or federal law.183

 

A. Compliance-Based Challenges

Prospective voters may raise claims that they met voter qualification or registration requirements but were nonetheless denied the opportunity to register. 184 If the voter met all the criteria, including satisfying registration deadlines, a court can issue an order instructing the registrar to add the voter to the rolls.185 Because voter registration is an administrative process, state statute may require the aggrieved individual to pursue available administrative review processes before pursuing a court remedy.186

Some states allow registered voters or local officials to file a pre-election challenge to another voter’s registration eligibility.187 Typically such challenges must target individual voters and not voters as a class.188 State law determines where and how voter registration challenges, which are generally administrative processes, are heard.189 Depending on the state or the size of the locality, challenges may be heard by the local board of elections or a designated local official.190 State law also determines the extent of an appeals process.191

Because voter registration challenges are administrative processes, court involvement is typically limited or nonexistent unless the voter registration challenge statute itself is challenged,192 or a voter seeks a writ of mandamus to compel election officials to permit the voter’s registration.193

 

B. Constitutional and Statutory Challenges

State regulation of voter qualifications is sometimes challenged on state or federal Constitutional or federal statutory grounds.194

State statutes that impose voter qualifications other than the traditional categories of age, residency, citizenship, and non-felon status are not presumed constitutional,195 but neither do they automatically receive strict scrutiny.196 Courts hearing challenges to an election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate “against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’”197 This balancing approach is widely referred to as the Anderson-Burdick test.198

Challenges to state restrictions on voter eligibility and registration in U.S. history are too plentiful to catalogue here.199 More recently, federal Constitutional and statutory challenges to state voter eligibility and registration statutes have met with mixed success. Voter ID statutes are illustrative. In 2008’s Crawford v. Marion County Election Board, the Supreme Court held an Indiana law requiring the presentation of a government issued photo ID did not violate the Equal Protection Clause.200 Using the Anderson-Burdick test, the court determined there was not enough evidence to show anyone was excessively burdened because the ID was free and voters could vote by provisional ballot and the state had an interest in protecting the electoral process from fraud.201

Several claims challenging voter ID law have been challenged under the VRA, both pre-and post-Shelby County. 202 For example, the 5th Circuit held a Texas law requiring the presentation of a photo ID to vote because the policies underlying the bill’s passage— legislatures knowing that the law negatively impacted minority voters and using an expedited schedule to pass the bill—were only tenuously related to the state’s interests in preventing fraud and remanded the case during which time the state legislature passed a law designed to cure flaws.203

Subchapter 5: Conclusion

The right to vote is not absolute. A state has the ability to set standards for voter participation in elections and to determine how individual votes are weighted. The state typically exercises this power through voter eligibility requirements. However, a state’s power is limited by statutory and constitutional provisions which protect voters from state regulations that unconstitutionally burden the right to vote or effect disparate groups of voters.

Footnotes

  1. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see United States v. Classic, 313 U.S. 299 (1941) (finding the right to vote applies equally to primary and general elections).
  2. See Bush v. Gore, 531 U.S. 98 (2000) (holding that individual citizens have no federal constitutional right to vote for presidential electors); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (holding that the fundamental nature of voting does not mean that the right to vote in any manner or to associate for political purposes are absolute). Note that state constitutions are an additional source of voting rights and protections.
  3. See U.S. CONST. art. I § 2 and U.S. CONST. amend. XVII.
  4. U.S. CONST. art. I § 4.
  5. State constitutions may offer greater voting rights protections than the U.S. Constitution.
  6. See, e.g., 26 Okl. St. § 1-104 (prohibiting registered voters from voting in a primary election or runoff primary election of any political party they are not registered as unless they meet specified exceptions).
  7. Burdick v. Takushi, 504 U.S. 428 (1992).
  8. Id.
  9. Marston v. Lewis, 610 U.S. 679, 680 (1973) (States have valid and sufficient interests in… prepar[ing] adequate voter records and protect its electoral processes from possible frauds.”).
  10. Sugarman v. Dougall, 413 U.S. 634, 643, 649 (1973) (stating that states have “broad power to define [their] political community…” and that “…implicit in many of th[e] Court's voting rights decisions is the notion that citizenship is a permissible criterion for limiting such rights.”).
  11. See Lassiter v. Northampton Cnty. Bd. Of Elections, 360 U.S. 45, 51-52 (1959) (“The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot….in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise.”) (mooted by Voting Rights Act, §10101(a)(2)(C)).
  12. Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 226 (1989) (“Maintaining a stable political system is, unquestionably, a compelling state interest.”).
  13. U.S. CONST. amend. XXVI.
  14. Voting Age for Primary Election, NAT’L CONF. STATE LEGISLATURES (Jan. 5, 2021) https://www.ncsl.org/research/elections-and-campaigns/primaries-voting-age.aspx (noting that, while the federal age limit for voting is eighteen years of age, some states have independently set the voting age requirement to as low as sixteen). See also Vivian E. Hamilton, Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority, 77 BROOK. L. REV. 1447 (2012) (discussing minimum voting age requirements).
  15. See N.Y. ex rel. Spitzer v. Cnty. of Schoharie, 82 F. Supp. 2d 19 (N.D. N.Y. 2000) (suing to bring polling places into compliance with the Americans with Disabilities Act). For more information on election law practices that effect elderly populations, see Brian K. LaFratta & Jamie Lake, Inside the Voting Booth: Ensuring the Intent of the Elderly Voter, 9 ELDER L.J. 141 (2001). See also Rabia Belt, Contemporary Voting Rights Controversies Through the Lens of Disability, 68 STAN. L. REV. 1491, 1495 (2016).
  16. See Melissa Deutschman, Incapacity by Status Versus Functional Ability: Preserving the Right to Vote for Elderly Americans with Diminished Mental Capacity While Upholding the Integrity of Elections, 24 ELDER L.J. 429, 437-52 (2017) (describing differing state approaches to determining mental capacity to vote).
  17. In states without voter registration requirements, residency may need to be established at the polling place before the voter is permitted to vote. The ability of homeless individuals to meet residency requirements may also be litigated. See Collier v. Menzel, 176 Cal. App. 3d 24 (Ct. App. 1985) (finding homeless individuals who listed a park as their residence satisfied voter registration requirements notwithstanding the fact that overnight camping in the park was prohibited).
  18. See infra Section V.
  19. Holt Civic Club v. Cty. of Tuscaloosa, 439 U.S. 60 (1978) (holding that, contrary to the general rules on residency requirements, special district elections may allow non-residents to vote—or prevent some residents from voting); see supra, Section IV: Special District Elections.
  20. See Holt Civic Club, 439 U.S. 60.
  21. See Millis v. Bd. of Cnty. Comm’rs of Larimer Cnty., 626 P.2d 652 (Colo. 1981) (holding that the state constitution may permit localities to allow non-resident landowners to vote, but localities are not required to do so). This situation typically arises in resort towns where a significant portion of the property may be owned by non-residents.
  22. Carrington v. Rash, 380 U.S. 89, 93–94 (1965) (“We stress—and this a theme to be reiterated—that [the state] has the right to require that all military personnel enrolled to vote be bona fide residents of the community”).
  23. Evans v. Cornman, 398 U.S. 419, 421 (1970) (“Maryland may, of course, require that ‘all applicants for the vote actually fulfill the requirements of bona fide residence.’ . . . ‘But if they are in fact residents, with the intention of making (the State) their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation.’”) (internal citations omitted).
  24. Carrington, 380 U.S. at 94.
  25. See Putnam v. Johnson, 10 Mass. 488, 501 (1813) (stating that measuring domicile by the absence of a present intent to leave rather than a present intent of “always staying there” best fits the nature of “this new and enterprising country” where youth will settle in a location to see if it fits them but are open to moving on if a move is to their advantage) (emphasis in original) (citations omitted).
  26. See generally Carrington, 380 U.S. 89 (1965) (holding that states may not deny voting rights to bona fide residents merely because they are in the military, but that they may take “reasonable and adequate steps” to ensure that all who register are bona fide residents.); Evans v. Cornman, 398 U.S. 419 (1970) (holding that states may not deny voting rights to bona fide residents of a federal enclave located within the state boundaries).
  27. Id.
  28. Lloyd v. Babb, 251 S.E.2d 843, 852, 853 (N.C. 1979) (students); Carrington, 380 U.S. at 93 (members of the armed forces).
  29. See, e.g., People ex rel. Moran v. Teolis, 169 N.E.2d 232, 238 (Ill. 1960) (“A real and not an imaginary abode occupied as a home or dwelling is essential to satisfy the residential qualifications for voting prescribed by law.”).
  30. See Park v. Tsiavos, 679 F. App'x 120, 122 (3d Cir. 2017) (referencing, among other things, the defendant’s driver’s license when establishing domicile for the purposes of a civil action).
  31. Dunn v. Blumstein, 405 U.S. 330, 352 (1972) (explaining that durational residency requirements are unnecessary because fraudulent voters are unlikely to take the steps necessary to establish bona fide residency if their goal is to be present within the jurisdiction only long enough to attempt to throw the election).
  32. See Marston v. Lewis, 410 U.S. 679, 680 (1973) (per curiam) (noting voter registration deadlines reflect the legislature’s judgment of the amount of time necessary to prepare for an election).
  33. Pitts v. Black, 608 F. Supp. 696, 707-08 (holding that the New York City Board of Elections’ application of state election law as to refuse to allow homeless individuals to register to vote on ground that they did not have inhabit fixed premises violated equal protection clause and citing Washington, D.C. and Philadelphia as examples of where homeless voters can register with nontraditional addresses). See also Committee for Dignity and Fairness for the Homeless v. Tartaglione, 1984 U.S. Dist. LEXIS 23612 (E.D. Pa. Sept. 14, 1984); In re Application for Voter Registration of Willie R. Jenkins (D.C. Bd. Of Elections and Ethics, June 7, 1984); Collier v. Menzel, 221 Cal. Rptr. 110 (App. 2d Dist. 1985); Northeast Ohio Coalition for the Homeless v. Husted, 2017 WL 1531811 *6 (S.D. Ohio 2017) (holding that the term “shelter or other location” in a voting residency requirement “does not limit addresses to locations tied to buildings”) (emphasis in original); Fischer v. Stout, 741 P.2d 217, 221 (Alaska 1987) (“A residence need only be some specific locale within the district at which habitation can be specifically fixed. Thus, a hotel, shelter for the homeless, or even a park bench will be sufficient.”).
  34. See Putnam v. Johnson, 10 Mass. 488 (1813) (theological student at Andover sued after being denied the right to vote in elections for governor, lieutenant governor, and state senate).
  35. United States v. State of Tex., 445 F. Supp. 1245 (S.D. Tex. 1978), aff'd sub nom. Symm v. United States, 439 U.S. 1105 (1979).
  36. See Lloyd, 251 S.E.2d at 860 (finding no Equal Protection violation in the rebuttable presumption that the student’s domicile is at his parent’s house because it is merely a more specialized application of the rule that the individual who wishes to change domicile bears the burden of proving the change and discussing domicile as it pertains to students and other student-voter court cases).
  37. See, e.g., Hershkoff v. Bd. of Registrars of Voters of Worcester, 321 N.E.2d 656, 663 (Mass. 1974) (“It seems to us, as it seemed to the Attorney General, that it is a corollary of eighteen-year old voting that the young voter is to be independent for voting purposes and therefore must have capacity to choose his domicil [sic] for voting purposes, regardless of his emancipation for other purposes . . . .”).
  38. Lloyd, 251 S.E.2d at 860.
  39. See id. at 860 (noting that the latter definition is routinely applied to non-students, otherwise many individuals could not establish domicile for voting purposes).
  40. See Yael Bromberg, Youth Voting Rights & the Unfulfilled Promise of the Twenty-Sixth Amendment, 21 U. PA. J. CONST. L. 1105, 1138-41 (2019) (mentioning a number of bills the New Hampshire state legislature passed that effect college student’s ability to register to vote).
  41. Guare v. State, 117 A.3d 731, 737-78 (2015) (“[T]he challenged language inaccurately states New Hampshire law. The challenged language informs a potential voter that, upon declaring New Hampshire as her domicile, she is ‘subject to the laws of the state of New Hampshire which apply to all residents, including laws requiring a driver to register a motor vehicle and apply for a New Hampshire[ ] driver's license within 60 days of becoming a resident.’ Laws 2012, 285:2. This is inaccurate. A person who has only a New Hampshire domicile, but who does not meet the statutory definition of ‘resident,’ is not ‘subject to the laws of the state of New Hampshire which apply to all residents.’”).
  42. New Hampshire Democratic Party v. Sec'y of State, No. 2020-0252, 2021 WL 2763651 (N.H. July 2, 2021).
  43. Id. at *1-*2.
  44. Id. at *10-*11 (“[T]he anecdotal evidence at trial was [‘]supported by the persuasive and credible expert testimony offered by Plaintiffs, for which the State had no effective rebuttal.[’]”).
  45. Dunn v. Blumstein, 405 U.S. 330, 341-42 (1972) (“In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are ‘necessary to promote a compelling governmental interest.’”).
  46. Id. at 345-46, 355-56.
  47. Id.
  48. Marston v. Lewis, 410 U.S. 679, 680 (1973) (per curiam) (noting voter registration deadlines reflect the legislature’s judgment of the amount of time necessary to prepare for an election).
  49. State law governs whether a voter who relocates within the state between the closing of voter registration and the election may vote in his old locality.
  50. 52 USCA § 10502 (2014).
  51. See Dunn, 405 U.S. 330 (finding requirements are excessive burdens on the right to vote and the right to travel).
  52. For example, one state’s fifty-day durational residency requirement, which corresponded to its fifty- day voter registration deadline for non-presidential elections, was constitutional because the state’s primary election was late in the year, and the state used volunteer deputy voter registrars whose error-prone work required extra effort by election officials to correct and verify. Marston v. Lewis, 410 U.S. 679, 680 (1973) (per curiam). Note that states with an early voter registration deadline for non-presidential elections more than thirty days before Election Day must maintain separate records for each election and must provide a different ballot for voters who fail to meet the non-presidential deadline but meet the presidential registration deadline.
  53. Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (finding no Equal Protection violation occurs when non-citizens are not allowed to vote).
  54. See Elise Brozovich, Prospects for Democratic Change: Non-Citizen Suffrage in America, 23 HAMLINE J. PUB. L. & POL’Y 403 (discussing the history of non-citizen voting in the United States).
  55. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008) (“There is no question about the legitimacy or importance of a State's interest in counting only eligible voters' votes.”).
  56. Skafte v. Rorex, 553 P.2d 830 (1976).
  57. Gonzalez v. Arizona, 2008 WL 11395512 (D. Ariz. 2008); Gonzalez v. Arizona, 624 F.3d 1162 (9th Cir. 2010); Gonzalez v. Arizona, 677 F.3d 383, 403 (9th Cir. 2012), aff'd sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 133 (2013) (“[W]e must hold that the registration provision, when applied to the Federal Form, is preempted by the NVRA . . . .”). See also Fish v. Schwab, 957 F.3d 1105 (10th Cir.), cert. denied, 141 S. Ct. 965 (2020) (holding that a Kansas law requiring documentary proof of citizenship was preempted by the NVRA).
  58. Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (“As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment….We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.”). See also Hunter v. Underwood, 471 U.S. 222, 233 (1985) (clarifying that “§2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial discrimination attending the enactment” of laws that disenfranchised felons).
  59. See Comm. Success Initiative v. Moore, No. 19 CVS 15941, 2020 WL 10540947 (N.C. Super. Sep. 04, 2020), https://www.democracydocket.com/wp-content/uploads/2021/09/order-re-pi.pdf.
  60. E.g., Johnson v. Governor of State of Fla., 405 F.3d 1214, 1216 (11th Cir. 2005).
  61. Richardson v. Ramirez, 418 U.S. 24 (1974).
  62. Mixon v. Commonwealth, 759 A.2d 442 (Pa. Commw. Ct. 2000), aff’d per curiam, 783 A.2d 763 (Pa. 2001) (finding no rational basis to condition voting on the voter’s registration date).
  63. See Felon Voting Rights, NAT’L CONF. STATE LEGISLATURES, https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx (January 8, 2021).
  64. See, e.g., 730 ILL. COMP. STAT. ANN. 5/5-5-5 (c); HAW. REV. STAT. ANN. § 831-2 (West).
  65. For additional information on state approaches to voting rights for felons, see Jean Chung, Felony Disenfranchisement: A Primer, Sentencing Project (June 27, 2019), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/.
  66. Tim Mak, Over 1 Million Florida Felons Win Right To Vote With Amendment 4, NPR (Nov. 7, 2018, 2:46 AM), https://www.npr.org/2018/11/07/665031366/over-a-million-florida-ex-felons-win-right-to-vote-with-amendment-4.
  67. Fla. Stat. Ann. § 98.0751 (West); Jones v. Governor of Fla., 975 F.3d 1016, 1043 (11th Cir. 2020) (upholding the statute against constitutional challenge).
  68. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 (1966) (classifying wealth along with race, creed, or color as improper means to qualify voters).
  69. U.S. CONST. amend. XXIV.
  70. 52 U.S.C.A. § 10306.
  71. 360 U.S. 45, 51 (1959).
  72. See 52 U.S.C.A § 10501 (defining what constitutes a prohibited “test”).
  73. 52 U.S.C.A. § 10303.
  74. 400 U.S. 112 (1970).
  75. See, e.g., WASH. CONST. art. VI, § 3 (1988) (“[A]ll persons while they are judicially declared mentally incompetent are excluded from the elective franchise.”); WASH. REV. CODE ANN. § 11.88.010(2), (5) (West 2017) (“Imposition of a guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise in that the individual lacks the capacity to understand the nature and effect of voting such that she or he cannot make an individual choice.”); see also Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) (noting problems with statutes that attempt to classify the mental disorders that can lead to disenfranchisement).
  76. See WASH. REV. CODE ANN. § 11.88.010 (West 2017); Rowe, 156 F. Supp. 2d at 47.
  77. See Rowe, 156 F. Supp. 2d 35.
  78. Id. at 55.
  79. See, e.g., KY. REV. STAT. ANN. § 116.055 (West) (requiring a primary voter be “a registered member of the party in whose primary he or she seeks to vote on December 31 immediately preceding the primary . . .”); LA. STAT. ANN. § 18:107 (“An applicant need not be a member of a political party or declare a party affiliation in order to be registered, but in such case the words “no party” or an abbreviation thereof on the application form shall be circled.”); ARIZ. REV. STAT. ANN. § 16-152.
  80. States may also condition a candidate’s ability to switch political parties or run as an independent. See supra Chapter 2: State Regulation of Candidacies and Candidate Ballot Access for additional information.
  81. Kusper v. Pontikes, 414 U.S. 51 (1973).
  82. Rosario v. Rockefeller, 410 U.S. 752 (1973).
  83. Kusper, 414 U.S. 51.
  84. City bond issue elections do not qualify as special interest elections because they broadly affect all the city residents. See Cipriano v. City of Houma, 395 U.S. 701 (1969) (revenue bond elections); City of Phoenix v. Kolodziejsk, 399 U.S. 204 (1970) (general obligation bonds).
  85. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973).
  86. Id. at 730.
  87. Millis v. Bd. of County Comm. of Larimer County, 626 P.2d 652 (Colo. 1981).
  88. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969).
  89. City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204 (1970).
  90. Fumarolo v. Chicago Bd. of Educ., 566 N.E.2d 1283, 1299 (Ill. 1990) (“Absent a showing that an elected body [in this case a school board] serves a special limited purpose, a restriction which operates to dilute a citizen's vote must meet a strict scrutiny test of justification.”).
  91. As of February 2021, North Dakota does not require voters to register and California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Maryland, Maine, Minnesota, Montana, Nevada, Utah, Washington, Wisconsin, Wyoming, and Vermont allow for some form of same-day registration on the day of election at the polling place registration. For a list of state voter registration deadlines, see Register and Vote in Your State, ELECTION ASSISTANCE COMMISSION, http://www.eac.gov/register_vote_deadlines.asp (last visited February 21, 2021).
  92. 52 U.S.C.A. § 20507 (West).
  93. Hamer v. Campbell, 358 F.2d 215 (1st Cir. 1966) (using the court’s equitable powers to set aside an election that the federal district court should have enjoined for the locality’s failure to allow qualified individuals to register to vote). See also Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) (holding that practice of not providing voter registration forms to applicants who left declination form blank did not violate NVRA); Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) (holding that the Texas could require state residency and county appointment for volunteer deputy registrars).
  94. Burns v. Fortson, 410 U.S. 686 (1973).
  95. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.A. §§ 10101-702).
  96. Pub. L. 103-21, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501-20511).
  97. Pub. L. No. 99-410, 100 Stat. 924 (1986) (codified as amended at 18 U.S.C. §§ 608-09, 39 U.S.C. §3406 & 52 U.S.C.A. §§ 20301-10); see also infra, Subsection 2 Expanding voter registration opportunities for UOCAVA’s impact on voter registration.
  98. Pub. L. No. 107-252, 116 Stat. 1666 (codified at 52 U.S.C.A. §§ 20901-21145 and 36 U.S.C.A §§90101-111).
  99. 42 U.S.C.A. §§ 12101-12213 (2009).
  100. Lesser because the Americans with Disabilities Act generally offers greater protections than these earlier statutes.
  101. 29 U.S.C.A. §§ 701-796 (2014).
  102. 52 U.S.C.A. § 10302 (2014).
  103. Voter Registration, NAT’L CONF. STATE LEGISLATURES, https://www.ncsl.org/research/elections-and-campaigns/voter-registration.aspx (Oct. 5, 2020) (stating that North Dakota is the only state that does not require voter registration ahead of an election).
  104. See Hill v. Stone, 421 U.S. 289 (1975) (finding that, “[a]s long as the election is not one of special interest, any classification restricting the [voting] franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest”).
  105. Some of these statutes have a provide an explicit or implied right of private right of action. See United States v. Georgia, 546 U.S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action ... for conduct that actually violates the Fourteenth Amendment”); Allen v. State Bd. of Elections, 393 U.S. 544, 549 (1969) (recognizing an implied private right of action in the VRA consistent with the purposes of the Act); Morse v. Republican Party of Va., 517 U.S. 186, 232 (1996) (recognizing an implied right of action in the VRA); 42 U.S.C. § 1973gg–9(b)(1) (authorizing “person[s] ... aggrieved by a violation of this subchapter” to sue for its enforcement); Krieger v. Loudon Cty., No. 5:13CV073, 2014 WL 4923904, at *5 (W.D. Va. Sept. 30, 2014), aff'd sub nom. Krieger v. Virginia, 599 F. App'x 112 (4th Cir. 2015) (“The VAEHA provides a private right of action for declaratory or injunctive relief “[i]f a State or political subdivision does not comply” with the Act. 52 U.S.C. § 2105(a).”). Courts have generally held that private parties can enforce HAVA under § 1983. See, e.g., Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004) (HAVA is enforceable under § 1983); Colon-Marrero v. Velez, 813 F.3d 1 (1st Cir. 2016) (HAVA created individual private right subject to enforcement through a § 1983 claim).
  106. Congressional action preempts state regulation of elections with respect to federal elections. See Article I § 4, (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” (emphasis added)).
  107. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.A. §§ 10101-702). See also U.S. CONST. amend. XV, § 1.
  108. For the version of the statute, prior to Shelby Cnty v. Holder, see 42 U.S.C. § 1973c (2000).
  109. 570 U.S. 529 (2013). This formula, outlined in Section 4(b), covered jurisdictions that maintained any voting test or device and had less than 50 percent of eligible voters registered or less that 50 percent voter turnout as of 1968. 42 U.S.C. § 1973c (2000). For a list of jurisdictions that were covered by Section 5 before Shelby v. Holder, see Jurisdiction Previously Covered by Section 5, U.S. Dep’t of Just., https://www.justice.gov/crt/jurisdictions-previously-covered-section-5 (last visited March 17, 2021).
  110. 52 U.S.C.A. § 10503 (covering all states wherein single language minority population groups meeting the requisite criteria reside).
  111. Id.
  112. 52 U.S.C.A § 10302.
  113. This provision allows federal judges to require a jurisdiction that violated the Fourteenth or Fifteenth Amendment to submit for preapproval any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting” for any length of time “it may deem appropriate.” See 42 U.S.C. § 1973a(c). For a list of jurisdictions that were “bailed-in” by Section 3(c), see Brief for the Federal Respondent app. A, Shelby County, 133 S. Ct. 2612 (No. 12-96), 2013 WL 315242 (listed 18 jurisdictions “bailed-in” between 1979 and 2006). For a comprehensive analysis of the bail-in process, see Travis Crum, The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 YALE L.J. 1992 (2010).
  114. Pub. L. 103-21, 107 Stat. 77 (codified as amended at 52 U.S.C.A. §§ 20501-11). This Act is better known by its “motor voter” nickname. The Act is not applicable in states that do not require registration to vote in federal elections or which permit polling-place registration on Election Day.
  115. 52 U.S.C.A. § 20504. Requiring proof of citizenship for voter registration applications to be complete violates § 5 of the NVRA. See Fish v. Schwab, 957 F.3d 1105, 1111 (10th Cir.), cert. denied, 141 S. Ct. 965 (2020).
  116. 52 U.S.C.A. § 20504.
  117. 52 U.S.C.A. § 20505.
  118. 52 U.S.C.A. § 20506.
  119. 52 U.S.C. § 20507(i)(1) (“Each State shall maintain for at least 2 years and shall make available for public inspection and, where available…”). See also Illinois Conservative Union v. Illinois, No. 20 C 5542, 2021 WL 2206159, at *5 (N.D. Ill. June 1, 2021) (citing to following case examples as proof that voter list data is included in this section: Project Vote/Voting for Am., Inc. v. Long (“Project Vote II”), 682 F.3d 331, 335–36 (4th Cir. 2012) (registration applications qualify as records under Section 8(i)); Judicial Watch, Inc. v. Lamone (“Lamone I”), 399 F. Supp. 3d 425, 439–41 (D. Md. 2019) (voter registration lists fall within Section 8(i) because the lists compile multiple individual voter registration applications); Pub. Int. Legal Found. v. Boockvar, 431 F. Supp. 3d 553, 558– 61 (M.D. Penn. 2019) (reading Section 8(i) disclosure provision broadly to allow disclosure of voter-related documents, including voter lists); Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1341 (N.D. Ga. 2016) (“The Court concludes that, in addition to requiring records regarding the processes a state implements to ensure the accuracy and currency of voter rolls, considering the NVRA as a consistent whole, individual applicant records are encompassed by the Section 8(i) disclosure requirements.”); True the Vote v. Hosemann, 43 F. Supp. 3d 693, 719 (S.D. Miss. 2014) (“[T]he term ‘all records,’ as the Fourth Circuit has observed, has an ‘expansive meaning,’ and encompasses a variety of voter registration and removal documents.” (quoting Project Vote II, 682 F.3d at 336))). However, a district court can order the redaction of uniquely sensitive information in otherwise disclosable documents. Pub. Int. Legal Found., Inc. v. N. Carolina State Bd. of Elections, 996 F.3d 257, 268 (4th Cir. 2021).
  120. 52 U.S.C.A. § 20510 (stating private individuals must follow notice requirements before they can sue in court). If a plaintiff wishes to assert an NVRA claim, they must sue directly under that statute and cannot sue under § 1983. Isabel v. Reagan, 394 F. Supp. 3d 966 (D. Ariz. 2019), aff'd on other grounds, 987 F.3d 1220 (9th Cir. 2021).
  121. In 2018, the Supreme Court upheld Ohio’s process to remove voters from registration rolls—which involved removing voters who did not vote in any election for four years after failing to return address verification form— against an NVRA challenge. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1836 (2018). The Court held that even though Ohio used the failure to vote as a trigger to send an address verification form, the failure to vote was not the sole criterion for removing the registrant. Id. at 1841-444. See § 20507(d)(1)(B). Similarly, a court upheld a New York state law that removed “inactive” voters from local poll books and required them to vote by provisional ballot instead of a regular ballot after mail sent to the voter was returned undeliverable or the postal service received notice that the voter moved without leaving a forwarding address. Common Cause/New York v. Brehm, 344 F. Supp. 3d 542 (S.D.N.Y. 2018). This method is permissible because the voters were not removed from the official list of eligible voters, but only from the local poll books. Id.
  122. Plaintiffs have also filed suit alleging that election officials have not satisfied their obligations to maintain voter registration rolls under the NVRA. For example, in 2016, a nonprofit organization brought suit in the U.S. District Court for the Southern District of Florida held that the Supervisor made reasonable efforts to remove only those voters who become ineligible because of death or change of address as required by the NVRA despite claims to the contrary. Bellitto v. Snipes, 268 F. Supp. 3d 1328 (S.D. Fla. 2017), aff'd sub nom. Bellitto v. Snipes, 935 F.3d 1192 (11th Cir. 2019).
  123. Gonzalez v. Arizona, 677 F.3d 383, 402 (9th Cir. 2012), aff'd sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). The courts rejected Arizona’s argument that HAVA (1) gave it the authority to impose additional requirements to voter registration when using the uniform federal form because it in directing the state to verify the accuracy of the driver’s license or social security numbers on the form, it must also be able to verify the accuracy of the claim of citizenship on the form and (2) the explicit statement that the requirements outlaid by HAVA are the minimum threshold, it allows states to impose stricter requirements. Id.
  124. See Pub. Int. Legal Found. v. Boockvar, 370 F. Supp. 3d 449, 456 (M.D. Pa. 2019) (describing the NVRA’s interests as “(1) ‘increas[ing] the number of eligible citizens who register to vote’; (2) ‘enhanc[ing] the participation of eligible citizens as voters in elections for Federal office’; (3) ‘protect[ing] the integrity of the electoral process’; and (4) ‘ensur[ing] that accurate and current voter registration rolls are maintained.’”).
  125. 52 U.S.C.A. § 20510 (c).
  126. Pub. L. No. 99-410, 100 Stat. 924 (1986) (codified as amended at 18 U.S.C. §§ 608-09, 39 U.S.C. § 3406 & 52 U.S.C.A. §§ 20301-10).
  127. About the Laws, FED. VOTING ASSISTANCE PROGRAM, https://www.fvap.gov/info/laws (last visited Feb. 22, 2021) (defining overseas citizens as U.S. citizens who reside outside the United States, and uniformed services members as citizens who are members of the Army, Air Force, Navy, Marine Corps, Coast Guard, the commissioned corps of the Public Health Service or National Oceanic and Atmospheric Administration, or the merchant marine, and their spouses and dependent family members).
  128. 52 U.S.C.A. § 20302.
  129. 52 U.S.C.A. § 20307.
  130. Pub. L. No. 107-252, 116 Stat. 1666 (codified at 52 U.S.C.A. §§ 20901-21145 and 36 U.S.C.A §§90101-111) (requiring states to be able to identify voters who registered by mail but did not provide the required identification so that precinct workers can request the necessary identification—even if the state does not require identification from all voters).
  131. 52 U.S.C.A. § 21083.
  132. Id
  133. Id
  134. 42 U.S.C. § 15484.
  135. See, e.g., Washington Ass'n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash. 2006) (holding that a state law requiring the matching of a potential voter’s name to either the Social Security Administration or the Department of Licensing before registration was preempted by HAVA). However, one state court determined that state laws governing illegal voting prosecutions of ineligible voters are not preempted by HAVA because Congress did not have the explicit or implicit intent to preempt such laws. Mason v. State, 598 S.W.3d 755 (Tex. App. 2020), petition for discretionary review granted (Mar. 31, 2021). Additionally, the provisional-ballot procedure mandated by HAVA was created to assist voters who would otherwise be eligible, not to place a burden n state officials charged with counting provisional ballots to determine a voter’s eligibility. Id. at 783.
  136. 52 U.S.C.A. § 21112.
  137. See Texas Voters All. v. Dallas Cty., 495 F. Supp. 3d 441, 459 (E.D. Tex. 2020); Bellitto v. Snipes, 935 F.3d 1192, 1202 (11th Cir. 2019) (Congress “established only two HAVA enforcement mechanisms”); Am. Civ. Rts. Union v. Phila. City Comm'rs, 872 F.3d 175, 184–85 (3d Cir. 2017) (“[T]he HAVA does not include a private right of enforcement. By its text, ... HAVA only allows enforcement via attorney general suits or administrative complaint.”); Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004) (“HAVA does not itself create a private right of action.”). See also Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008) (holding that Congress likely did not authorize district courts to enforce HAVA when cases are brought by private litigants).
  138. See Joan L. O’Sullivan, Voting and Nursing Home Residents: A Survey of Practices and Policies, 4 J. HEALTH CARE L. & POL’Y 325 (2001) (discussing the impediments disabled or frail elderly face in voting).
  139. The Rehabilitation Act, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended in scattered sections of 29 U.S.C), is actually the oldest federal statute in this category, but it was never very effective in protecting voting-related activities because its provisions prohibiting states from denying services on account of disability were narrow, (29 § 701 (2000)), and superseded by the ADA. Rehabilitation Act- based suits are rare and the Act will not be discussed further in this chapter. See Christina J. Weis, Note, Why the Help America Vote Act Fails to Help Disabled Americans Vote, 8 N.Y.U. J. LEGIS. & PUB. POL’Y 421, 427 (2004-2005).
  140. 52 U.S.C.A. § 20102-07.
  141. 42 U.S.C. §§ 12101-12213 (2000 & Supp. IV 2004).
  142. 52 U.S.C.A. § 20105 (requiring the elderly or disabled plaintiff to first notify the state’s chief election officer of the non-compliance and then wait forty-five days before bringing suit).
  143. 52 U.S.C.A. § 20102-07.
  144. 52 U.S.C.A. § 20103.
  145. 52 U.S.C.A. § 20104.
  146. 42 U.S.C. § 12182 (2000).
  147. Id.
  148. Lawsuits brought under the ADA have tended to supersede those brought under the VAEHA as well as the Rehabilitation Act. See 28 C.F.R. § 35.150 (requiring the program as a whole, and not each individual facility, to be accessible).
  149. 52 U.S.C.A. § 21083 (exempting states from this requirement that do not require voter registration to vote in federal elections).
  150. State law determines whether and for how long voting eligibility is lost under either of these two circumstances. See Peace and Freedom Party v. Shelley, 8 Cal. Rptr. 3d 497 (Ct. App. 2004) (discussing how a voter registration database can contain outdated information and the appropriate basis on which to measure a political party’s public support for primary election ballot access).
  151. An improper or illegal purge can affect the results of the subsequent election. See Crow v. Bryan, 113 S.E.2d 104 (Ga. 1960) (holding election must be rerun because an illegal voter registration purge eliminated more voters than the margin of victory).
  152. 52 U.S.C.A. § 21082.
  153. 52 U.S.C.A. § 20507 (West). However, states can implement voter registration list maintenance procedures that are triggered by an individual’s failure to vote and then remove individuals from voter registration lists who fail to follow those procedures and then continue not to vote. See Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).
  154. Id
  155. See generally Voter List Accuracy, NAT’L CONF. STATE LEGISLATURE, https://www.ncsl.org/research/elections-and-campaigns/voter-list-accuracy.aspx (last visited Feb. 22, 2021).
  156. MD. CODE ANN., ELEC. LAW § 2-108 (LexisNexis 2021). See also 10 ILL. COMP. STAT. ANN. 5/1A- 55; OKLA. STAT. ANN. tit. 26, § 3-131 (West).
  157. Same Day Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Sept. 20, 2021), https://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
  158. Chelsea Collaborative, Inc. v. Sec'y of Commonwealth, 480 Mass. 27, 100 N.E.3d 326 (2018) (holding that the voter registration deadline 20-days before election day was constitutional after applying the rational basis test); ACORN v. Bysiewicz, 413 F. Supp. 2d 119 (D. Conn. 2005) (holding that the voter registration deadline 7-days before election day was constitutional); Marston v. Lewis, 410 U.S. 679 (1973) (holding that the voter registration deadline 50-days before election day was constitutional); Diaz v. Cobb, 475 F. Supp. 2d 1270 (S.D. Fla. 2007) (holding that “Florida's requirement that registrations be complete twenty-nine days before an election is a reasonable, nondiscriminatory restriction that does not impose severe burdens on the right to vote.”).
  159. In re Gen. Election, Nov. 8, 1988, 126 Pa. Cmwlth. 450, 560 A.2d 260 (1989).
  160. Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) (Democratic party was entitled to temporary restraining order enjoining Secretary of State from enforcing voter registration deadline after hurricane); New Virginia Majority Educ. Fund v. Virginia Dep't of Elections, No. 3:20-CV-801, 2020 WL 6051855 (E.D. Va. Oct. 14, 2020) (issuing a temporary restraining order and emergency injunctive relief to extend the voter registration deadline by two days due to an outage out the Virginia voter registration deadline). But see Namphy v. DeSantis, 493 F. Supp. 3d 1130 (N.D. Fla. 2020) (preliminary injunction to extend the voter registration deadline denied after the online voter registration system crashed); Bethea v. Deal, No. CV216-140, 2016 WL 6123241 (S.D. Ga. Oct. 19, 2016) (refusing to extend the voter registration deadline in one county because the office was closed one the last day of the voter registration period due to a mandatory evacuation).
  161. Gallagher v. Indiana State Election Bd., 598 N.E.2d 510 (Ind. 1992).
  162. State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-Ohio-5041, 896 N.E.2d 979 (denying a writ of mandamus to compel the issuance of a directive instructing county boards of elections to void any application for absentee ballots accepted by election officials after the registration of persons but before the 30–day registration period has passed and that that 30 days must elapse following registration before an absentee-ballot application may be accepted from the registered person). See also Deutsch v. New York State Bd. of Elections, No. 20 CIV. 8929(LGS), 2020 WL 6384064 (S.D.N.Y. Oct. 30, 2020) (denying a request for an injunction to require New York state county election boards to accept emailed voter registration application from international applicants that were sent after the voter registration deadline had passed even through mail-in applications would be accepted if received five days after the deadline as long as they were post marked by the deadline because the law treats all voters equally no matter how they are registering by having one uniform send by date).
  163. For a chart listing agencies that participate in automatic voter registration, see Automatic Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Feb. 8, 2021), https://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.
  164. Oregon HB 2177; Alaska Ballot Measure 1.
  165. See, e.g., R.I. GEN. LAWS § 17-9.1-7(b)(3) (2021); CAL. ELEC. CODE § 2263 (b)(1)(J) (West 2015); DEL. CODE. ANN. tit. 15, § 2050(a)(2) (2021). See also Automatic Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Jan. 12, 2021), https://www.ncsl.org/research/elections-and- campaigns/automatic-voter-registration.aspx.
  166. Promote the Vote v. Sec'y of State, 333 Mich. App. 93, 126-27, appeal denied, 946N.W.2d 782 (2020), and appeal denied sub nom. Priorities USA v. Sec'y of State, 946 N.W.2d 785 (2020) (stating that the AVR law was consistent with state laws stipulating only those who were 17 ½ years old were eligible to be registered to vote and only those 18 and older were qualified electors with the right to vote).
  167. See Terese v. 1500 Lorene LLC, No. 09-4342, 2013 WL 308988, at *10 (E.D. La. Jan. 25, 2013).
  168. Same Day Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Sept. 20, 2021), https://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
  169. Id.
  170. MONT. CODE ANN. § 13-2-304 (West).
  171. Same Day Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Sept. 20, 2021), https://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
  172. See, e.g., D.C. CODE § 1-1001.07 (2020); IDAHO CODE § 34-408A (2021); 10 ILL. COM. STAT. 5/5-50 (2021).
  173. Ohio Democratic Party v. Husted, 834 F.3d 620, 624 (6th Cir. 2016).
  174. N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).
  175. Kan. Stat. Ann. § 25–2309(l), 2011 Kan. Sess. Laws at 812.
  176. Kan. Admin. Regs. § 7–23–15.
  177. Fish v. Schwab, 957 F.3d 1105, 1121-36 (10th Cir.), cert. denied, 141 S. Ct. 965 (2020).
  178. Id.
  179. Id. at 1136-44.
  180. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013).
  181. Id. See also Kobach v. U.S. Election Assistance Comm'n, 772 F.3d 1183 (10th Cir. 2014) (holding that the EAC Director’s decision to deny Arizona’s and Kansas’s request to include state-specific instructions on the federal voter registration form requiring proof of citizenship was procedurally valid and that the EAC is not compulsorily mandated to approve state-requested changes to the federal form); League of Women Voters of United States v. Harrington, No. CV 16-00236 (RJL), 2021 WL 4206778 (D.D.C. Sept. 16, 2021) (holding that the EAC’s decision to grant Kansas’s, Georgia’s, and Alabama’s requests to include state-specific instructions on the federal voter registration form requiring proof of citizenship violated the APA because the Director failed to apply the appropriate statutory standard in approving the requests).
  182. State v. Superior Ct. of Washington for King Cty., 193 P. 226, 228 (Wash. 1920).
  183. Many challenges based on federal constitutional or statutory grounds will likely be filed in federal court.
  184. But state code may authorize sanctions against challengers who bring willful and malicious challenges. See, e.g., R.I. GEN. LAWS § 17-9.1-29 (2007).
  185. See, e.g., VA. CODE § 24.2-422 (explaining the voter registration denial appeals process).
  186. See, e.g., Fish v. Kobach, 189 F. Supp. 3d 1107, 1120 (D. Kan.), aff'd, 691 F. App'x 900 (10th Cir. 2016), and aff'd, 840 F.3d 710 (10th Cir. 2016), and order enforced, 294 F. Supp. 3d 1154 (D. Kan. 2018) (“A person who receives notice of an incomplete voter registration application due to failure to provide DPOC can provide their DPOC in person at the county election office for inspection, by mailing a copy of the document to the county election officer or to the Secretary of State's Office, or by faxing, emailing, and in some counties, texting a copy of the documents. In addition, the Secretary of State's office checks approximately monthly with the Kansas Department of Vital Statistics (‘KDHE’) to see if individuals missing DPOC were born in the State of Kansas and will complete those registrations if so. Almost half of the voter registration applications on the suspense list have had citizenship confirmed through these monthly checks; many others submit their DPOC after receiving notice.”).
  187. See WISC. STAT. ANN. § 6.48 (2003); R.I. GEN. LAWS § 17-9.1-28 (2007); WASH. REV. CODE ANN. §§ 29A.08.810-.850 (2011); see also infra Chapter 7: Election Day for additional information on Election Day challenges to an individual’s eligibility to vote.
  188. Lloyd v. Babb, 251 S.E.2d 843, 852 (N.C. 1979) (noting domicile of student voters must be individually ascertained and cannot be a group determination).
  189. See, e.g., 52 U.S.C.A. § 21112.
  190. See, e.g., WASH. REV. CODE ANN. § 29A.08.840 (West) (permitting for decisions by the county auditor or the canvassing board); GA. CODE ANN. § 21-2-229 (West) (requiring challenges to be filed with board of registrars); W. VA. CODE ANN. § 3-2-28 (West) (“The challenge shall be filed as a matter of record in the office of the clerk of the county commission.”).
  191. See, e.g., R.I. GEN. LAWS § 17-9.1-30 (2007).
  192. See, e.g., League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D. Fla. 2012).
  193. See, e.g., Mullins v. Cole, 218 F. Supp. 3d 488 (S.D.W. Va. 2016). But see, e.g., Ballas v. Symm, 351 F. Supp. 876, 892 (S.D. Tex. 1972), aff'd, 494 F.2d 1167 (5th Cir. 1974) (“Also, because state procedures for review of the rejections are available, mandamus relief is inappropriate.”).
  194. Federal statutes that protect voting rights include the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C. §§ 10301–10701), the National Voter Registration Act of 1993, Pub. L. 103-21, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501 -20511), the Uniformed and Overseas Absentee Voting Act, Pub. L. No. 99-410, 100 Stat. 924 (1986) (codified as amended at 18 U.S.C. §§ 608-09, 39 U.S.C. § 3406 & 52 U.S.C.A. §§ 20301-10), the Voting Accessibility for the Elderly and Handicapped Act of 1984, 52 U.S.C. §§ 20102-07, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000 & Supp. IV 2004).
  195. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627-28 (1969).
  196. See Burdick v. Takushi, 504 U.S. 428, 433, 434 (1992). See also Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating a poll tax on equal protection grounds because owning property was economically discriminatory and wealth is not germane to electoral participation).
  197. Burdick, 504 U.S. 428 at 434.
  198. See, e.g., Edward B. Foley, Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws, 84 U. CHI. L. REV. 655 (2017); Edward B. Foley, Voting Rules and Constitutional Law, 81 GEO. WASH. L. REV. 1836 (2013).
  199. See, e.g., ALEXANDER KEYSSAR THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES (2nd ed. 2009); CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS DESTROYING OUR DEMOCRACY (2018); RICHARD L. HASEN, THE VOTING WARS: FROM FLORIDA 2000 TO THE NEXT ELECTION MELTDOWN (2012).
  200. Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008).
  201. Id. at 190.
  202. Shelby Cty., Ala. v. Holder, 570 U.S. 529 (2013).
  203. Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc); Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018) (reversing the lower courts permanent injunction barring the enforcement of the state’s voter ID law). For other voter ID cases, see Milwaukee Branch of NAACP v. Walker, 2014 WI 98, 357 Wis. 2d 469, 851 N.W.2d 262; Democratic Party of Georgia, Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011); Stewart v. Marion Cty., No. 1:08-CV-586-LJM-TAB, 2010 WL 1579672 (S.D. Ind. Apr. 16, 2010).

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