This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude that there is a fundamental constitutional right to vote per se. But, a close and by-the-book reading of the pertinent cases shows that the Court has never recognized the latter and provided in its stead a placeholder of counterfeit worth.
This Article proposes a course correction. To that end, the Article provides an in-depth analysis of additional constitutional provisions, any one of which would serve the Court well in definitively recognizing a fundamental right to vote per se. Such recognition is not just a matter of clarifying constitutional doctrine, important as that is. The advent of the new right, by championing and amplifying the body politic’s voice on America’s future, should operate as a counteractant against the anti-democratic pressures assailing us.
Susan H. Bitensky,
Advancing America’s Emblematic Right: Doctrinal Bases for the Fundamental Constitutional Right to Vote Per Se,
77 U. MIA L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol77/iss3/4