In recent years, as the U.S. Supreme Court has limited its protections of the right to vote, some state courts have stepped in to fill the void. State judges have looked to their state constitutions—which are more explicit in conferring the right to vote—to provide relief from onerous election laws. And, in doing so, they have shown how these documents can be powerful tools to improve America’s democracy. Forty-nine of the 50 state constitutions explicitly grant the right to vote to their citizens (Arizona is the only outlier), and just over half of them also provide further protection to the democratic process by requiring elections to be “free and equal” or “free and open.” Some state courts, such as in Missouri, Pennsylvania, Arkansas—and most recently Delaware—have analyzed their state constitutions in an increasingly expansive way, going beyond federal law to protect voting rights.
Yet other state courts—such as in Tennessee, Georgia, Wisconsin, and Indiana—have ruled that their constitutions are merely coextensive with the U.S. Constitution, leading them to apply the more limited federal protection with equal force to the state constitution. That is, these courts have simply followed the current restrictive voting-rights rulings of the U.S. Supreme Court, even though their state constitutions textually and explicitly provide more protection. This “lockstep” methodology strips the state constitutions of any independent meaning—and it allows courts to uphold election rules that negatively impact voters.
Most recently, a Delaware court grappled with this issue and acknowledged the force of the state’s constitution when it ruled that a local school-board referendum to increase property taxes for school funding was unconstitutional. The Red Clay Consolidated School District—which encompasses part of Wilmington and its suburbs—was facing a budget crisis, needing more money to fund its teachers, arts and music activities, and after school programs. Delaware’s public schools are funded partially through property taxes, and to raise those taxes, the school board must call a special election. Red Clay called its election for February 24, 2015, seeking to increase property taxes by about 20 percent, or an average of $23 per month for Red Clay property owners.