CommentarySince the 1960s, most plaintiffs challenging state restrictions on voting rights have relied primarily on the Equal Protection Clause of the 14th Amendment. The 1966 case of Harper v. Virginia Board of Elections in particular played a key role in the rise of equal protection claims by aggrieved voters. In Harper the U.S. Supreme Court struck down Virginia’s $1.50 poll tax on grounds it violated the equal protection clause. Writing for the majority, Justice Douglas declared that “the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate.”
For the past half century equal protection has been the centerpiece of voting rights litigation. Equal protection analysis lay at the heart of cases as diverse as the presidential election controversy in Bush v. Gore and the Voter ID dispute in Crawford v. Marion County Election Board.
But after all these years, could it turn out that the due process clause is a better vehicle for voting rights? For at least some cases, there is reason to believe the answer may be yes.
Foley on Due Process Clause
In a groundbreaking recent article in the University of Chicago Law Review, “Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws,” Edward Foley proposes using the due process clause to defend voting rights. As Professor Foley points out, the concept of equal protection is often not a useful tool for challenging certain types of voting restrictions, such as reductions in early voting periods which apply to all voters equally.
In a number of cases, however, the Due Process Clause offers an alternative grounds on which to challenge such laws. In the famous case of International Shoe Co. v. Washington, the Supreme Court held that the due process clause requires courts exercising jurisdiction over out-of-state defendants to comply with “traditional notions of fair play and substantial justice.” Applying that concept to the election law context, Professor Foley argues that the principle of “fair play is an appropriate concept to employ as a constraint on excessive partisanship.”
To that end, the due process clause could be employed to challenge both partisan gerrymanders and politically-motivated restrictions on voting rights. For example, in the context of voting rules, Foley argues that “[i]f voters have reasonably come to rely on the availability of a particular type of voting procedure, and if the government removes its availability without a legitimately nonpartisan reason for doing so, then this removal is a form of inappropriate partisanship in violation of fair play and due process.”
A recent case in New Hampshire suggests that courts may indeed look favorably upon due process arguments brought by aggrieved voters.
The New Hampshire Case
On August 14, a New Hampshire federal court struck down on due process grounds a state voting requirement that barred 275 absentee ballots from being counted during the 2016 election. The case of Saucedo v. Gardner arose from a New Hampshire state law requiring signatures on absentee ballots to match the signatures on absentee ballot applications. A group of absentee voters brought suit alleging the signature-match requirement violated their due process rights.
The Saucedo case turned on the arbitrary nature of the signature-match requirement and the state’s failure to provide adequate notice to voters whose absentee ballots were rejected. In ruling for the plaintiffs, the district court noted that election administrators received “no training in handwriting analysis or signature comparison” and state law provided no “functional standards to distinguish the natural variations of one writer from other variations that suggest two different writers.” The court further noted that “the voter is not even given notice that her ballot has been rejected due to a signature mismatch” and the voter has no opportunity for “review or appeal.”
The court concluded, therefore, that “in light of the fundamental importance of the right to vote, the current process for rejecting voters due to a signature mismatch fails to guarantee basic fairness.” As the court explained, the law gave rise to an unacceptably high “risk that qualified voters are wrongly disenfranchised” and minor refinements would be insufficient in remedying the flaws in the signature-match process. The court thus granted summary judgment to the plaintiffs’ on their procedural due process claim.
The Husted Case
The New Hampshire case makes for an interesting contrast with the U.S. Supreme Court’s recent ruling in Husted v. A. Philip Randolph Institute. In Husted, a 5-4 majority upheld an Ohio law that purges voters from registration rolls for failing to vote in three consecutive federal elections.
Husted turned on the National Voter Registration Act’s “Failure to Vote” clause, which requires states to notify inactive voters before purging them from registration lists. The NVRA requires the states to send to inactive voters “a postage prepaid and pre-addressed return card” asking them to confirm their address. Under the Ohio law, a voter’s failure to respond to the return card, combined with six years of voting inactivity, results in the cancellation of the voter’s registration. The Supreme Court held that Ohio’s procedure complied with the NVRA’s bare minimum requirements. As Justice Alito explained in the majority opinion, “this case presents a question of statutory interpretation, not a question of policy.”
But had the plaintiffs brought a 14th Amendment due process challenge, rather than base their arguments solely on a matter of statutory interpretation, they might have encountered more success with the Court.
The statutory argument failed to persuade a majority of the Court because the NVRA only establishes a bare minimum notice requirement. But the Constitutional standard for due process is arguably much higher. After all, common sense would suggest that a voter might inadvertently overlook a single postcard notice from the secretary of state’s office. In the Ohio case, therefore, a good argument could be made that Constitutional due process requires the state to send multiple mailings to inactive voters, not just a single return card. It would also seem reasonable to require the secretary of state’s office to consult other government databases before concluding that a voter had moved out of the voting jurisdiction.
As the Supreme Court explained in the famous case of Mullane v. Central Hanover Bank & Trust Co., “when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”
But Husted turned solely on the notice requirements of the NVRA, not the notice requirements of the Constitution’s due process clause, and the challengers went down to defeat.
The Future of Voting Rights
It remains to be seen how the U.S. Supreme Court would respond to due process arguments in a voting rights context. But the plaintiffs’ success in the Saucedo case suggests that we could be in the early stages of a new era in election law jurisprudence. As Professor Foley argues, “Interpreting due process to condemn partisan overreaching is a construction of the Constitution that accords with the best understanding of its history and its role in safeguarding the democracy that it both established and perpetuates.”
Anthony Gaughan is a professor of law at the Drake University Law School. His areas of expertise include Election Law, Civil Procedure, National Security Law, and Evidence. Professor Gaughan is an Iraq War veteran and a former U.S. Navy officer. He also spent five years as litigator with a large Wisconsin law firm.
Suggested citation: Anthony Gaughan, The Due Process Clause and Voting Rights, JURIST – Academic Commentary, Aug. 27, 2018, http://jurist.org/forum/2018/08/Gaughan-Due-Process-voting-rights.php
This article was prepared for publication by Ben Cohen, a JURIST Section Editor. Please direct any questions or comments to him at commentary@jurist.org
