While the U.S. Constitution prohibits voting interference, voting rights are much more explicitly contained in state constitutions and laws. As a consequence, state legislatures and courts interpreting those legislatures greatly influence the conduct of federal elections. This article examines three types of recent voting challenges: how people can vote, who can vote, and who they can vote for. Surveying court rationales in decisions that impact federal elections gives insight into whether state law provides the best route to expanding voting rights. It also provides a look at election law as an area where federal and state constitutions both overlap and diverge.
The first issue we will look at are laws regulating how a person can vote. The Elections Clause of the U.S. Constitution gives state legislatures power over the time, place, and manner of federal elections. While Congress may preempt state law on the conduct of elections, Congress has rarely done so. As a consequence, state law controls most questions of how federal elections run. Recently, we have seen more challenges to state laws on the validity of mail-in ballots. The volume of voting by mail has risen continuously, even before the COVID-19 pandemic, when voting by mail overtook in-person voting. In-person voting still outpaced voting by mail in 2022, but voting by mail remained more popular than pre-pandemic. State legislatures have broad authority over how mail-in ballots are counted for federal candidates, subject to review primarily by state courts. Questions on the validity of mail-in ballots, including which ballots may be counted, whether mail-in voting is permissible at all, and deadlines for receipt of mail-in ballots, all have been challenged. Courts have tackled these questions in a variety of ways.
Some courts have answered questions about mail-in ballots as a pure question of statutory interpretation. The Nevada Supreme Court examined a challenge to the validity of mailed ballots missing a postmark without looking beyond statutory interpretation. The logic for this approach is straightforward: State legislatures have a duty to provide for the manner of elections, and when they have done so, it may be appropriate to defer to the legislature’s judgment.
Some courts have more critically examined mail-in ballots through the lens of state constitutions. During COVID, Texas Governor Greg Abbott invoked his gubernatorial emergency powers to allow mail-in ballots, even though the Texas election code required in-person voting on election day. While the Texas Supreme Court considered the legality of mail-in ballots through several lenses, one consideration was whether Abbott’s emergency action violated the right to vote protected by the Texas Constitution. The Texas Constitution came into play because the plaintiffs framed their complaint in terms of the Texas Constitution. Beyond that, an examination of the Texas Constitution may have been appropriate because the action in question was not legislative but executive. Because the case involved gubernatorial action, the court had to answer not only whether the action in question infringed on any rights but also whether the governor was the appropriate party to determine those rights. The court concluded Abbott’s emergency action expanded voting rights, so there could be no constitutional violation, and the action was upheld.
The Pennsylvania Supreme Court took a similar approach to Texas in considering a petition to extend the deadline for receiving mail-in ballots during the height of the COVID-19 pandemic. Like Texas, the court looked at the question as a blend of statutory interpretation and Pennsylvania constitutional law. Again, this makes sense; the complaint was framed as both a statutory and a constitutional challenge to mail-in ballot procedures, so resolving the challenge required both statutory and state constitutional analysis.
Notably, few state decisions on mail-in ballots examine the U.S. Constitution, except to acknowledge that the Elections Clause gives state legislatures responsibility for the conduct of federal elections. In the context of “how” questions about voting, this makes absolute sense. The U.S. Constitution gives states the power to proscribe how elections are conducted, and the vast body of state constitutional and statutory law is well-situated to answer questions of “how.” Even so, courts sometimes choose to examine federal constitutional law on voting, even when the question seems to fall under the near-exclusive province of the states. For example, the Delaware Chancery Court considered a challenge to an emergency expansion of mail-in ballots during the COVID pandemic. While the Delaware Constitution provided more robust and explicit voting rights than the U.S. Constitution, the court still looked to federal constitutional caselaw to determine whether the change to mail-in ballot deadlines was permissible. Federal law was ostensibly only a framework for analyzing the burden of the mail-in voting statute, but using a federal framework still muddies the waters of whether federal or state law more appropriately determines the conduct of elections by bringing federal jurisprudence to an area where Congress does not generally tread.
While Congress may override state legislatures as to the times, places, and manners of federal elections, Congress has no inherent authority to provide for qualifications of electors. Because laws imposing qualifications on voters implicate individual rights, most challenges to restrictions on who is qualified to vote necessarily implicate constitutional law. Even though laws on who is qualified to vote fall almost exclusively under state constitutions, courts still take a variety of approaches, as seen in recent decisions on voter identification (ID) laws.
Logically, some courts have grounded decisions on voter ID laws in state constitutions. The Indiana Supreme Court upheld a voter ID law, relying entirely on the suffrage and privileges and immunities clauses of the Indiana Constitution. The court rejected the conclusion of a federal court on a similar issue and cited only one other federal case in the majority opinion.
Even so, some courts have more enthusiastically turned to the U.S. Constitution when evaluating who can vote. North Carolina considered an Equal Protection challenge to voter ID laws in 2022. The North Carolina Supreme Court analyzed the equal protection challenge in lockstep with federal law, looking to factors under the U.S. Supreme Court’s decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. In doing so, the court held the voter identification law violated Equal Protection by intentionally and disproportionately disenfranchising African American voters. The court then granted rehearing and reversed itself. In the second decision, the court moved away from the Arlington Heights test and instead grounded the analysis of the voter ID law in the North Carolina Constitution. While the court analyzed—and rejected—the Equal Protection claims under a federal framework, the court took care to emphasize that the proper method of inquiry was via the state constitution and to apply the state presumption of constitutionality—apparently a higher burden than under federal law.
This is a curious case for two reasons. First, initially, the same court relied heavily on federal Equal Protection caselaw in striking down the voter ID law. While state courts are free to analyze their state constitutions in lockstep with analogous federal constitutional provisions, it makes the least sense to do so in election law, where state constitutions generally provide far more guidance. Further, within the sphere of election law, the qualification of voters is essentially entirely left to states. Of all possible election lawsuits, those involving who may vote should most lend themselves to state constitutional determinations.
Second, the North Carolina Supreme Court ultimately concluded that the state constitution was more permissive of voter ID laws than the federal Constitution. As discussed, state constitutions are far more emphatic about providing suffrage than the U.S. Constitution, which only provides a negative right to vote by preventing abridgment of that right based on certain characteristics. The finaldecision by the North Carolina Supreme Court provides a stark counterpoint to the argument that those wishing to preclude restrictions on voting should rely primarily on state constitutions and should try to force state courts to break away from analyzing their constitutions in lockstep with the federal Constitution.
North Carolina is not the only state to engage in this blend of federal and state constitutional analysis surrounding voter ID laws. Again, this belies the idea that a state constitutional framework will always provide for a more expansive right to vote than the federal Constitution.
Last, this article examines court decisions on who may be present on a state’s ballot at the general election. At first blush, this may seem like an area where federal law would control, given that a state’s decision about placing candidates on the ballot affects the election for the entire country, and uniformity may be desirable. But even federal court decisions run the gamut on whether they confront constitutional law at all, depending on the factual circumstances.
While the federal courts seem generally reluctant to weigh in on state courts determining state qualifications for federal candidates appearing on ballots, the U.S. Supreme Court did intervene when the Colorado Supreme Court rejected a presidential candidate based on federal constitutional grounds. The Colorado Supreme Court found, based on Section 3 of the Fourteenth Amendment to the U.S. Constitution, that then–presidential candidate Donald Trump was ineligible to be on the ballot in Colorado. As relevant here, Section 3 prohibits service in federal office if the person has engaged in insurrection or rebellion against the United States. The section specifically allows Congress to vote to remove the prohibition, though it does not expressly give Congress the exclusive power to do so. In response to the Colorado decision, in Trump v. Anderson, the U.S. Supreme Court observed that “States enjoy sovereign ‘power to prescribe the qualifications of their own officers’ and ‘the manner of their election . . . free from external interference, except so far as plainly provided by the Constitution of the United States.’” Despite the seemingly wide deference given the states on election issues, the Court noted that powers over the election and qualification of federal officers must be “specifically ‘delegated to, rather than reserved by, the States.’” Because states are not given the power to enforce Section 3, the Court found that Colorado improperly excluded Trump from the ballot. The Court expressed particular concern about the state-by-state resolution of the issue.
Despite some sweeping language in Trump v. Anderson about the importance of consistency in federal elections, courts deciding issues post–Trump v. Anderson have declined to extend the rationale outside the very specific context of Section 3 of the Fourteenth Amendment. In Lauters v. Nebraska Secretary of State, the federal district court declined to apply Trump v. Anderson after Nebraska excluded a presidential candidate who was not a U.S.-born citizen. The court found that Trump v. Anderson was limited to Section 3 “to not cast doubt on the states’ ability to reasonably enforce qualifications for office found elsewhere in the Constitution.”
Additionally, the U.S. Supreme Court declined to hear a number of cases following Trump v. Anderson that involved state decisions including or excluding presidential candidates based primarily on state regulations. Because of this deference to state voting regulations, state supreme courts may be the final arbiter of which federal candidates appear on the ballot in each respective state, particularly for the growing number of independent party candidates. For example, in Nevada State Democratic Party v. Nevada Green Party, the Nevada Supreme Court determined that the Green Party failed to meet state requirements to gain ballot access for presidential candidate Dr. Jill Stein through obtaining signatures. Nevada law allows minor party candidates to be placed on a ballot in certain circumstances. One such circumstance is when the party files a petition with the secretary of state “signed by a number of registered voters equal to at least 1 percent of the total number of votes cast at the last preceding general election for the offices of Representative in Congress which must be apportioned equally among the petition
One such circumstance is when the party files a petition with the secretary of state “signed by a number of registered voters equal to at least 1 percent of the total number of votes cast at the last preceding general election for the offices of Representative in Congress which must be apportioned equally among the petition district.” This statutory requirement has a corresponding regulation requiring the person who circulates the petition to sign an affidavit that the circulator believed that each person signing the petition was a registered voter in the person’s county of residence. The Nevada Supreme Court determined that the Green Party used the incorrect circulator affidavit to accompany the petition and that failure kept Stein off the ballots in Nevada. The U.S. Supreme Court declined to weigh in on the matter.
While Stein was trying to gain ballot access, presidential candidate Robert F. Kennedy litigated requests to be removed from certain state ballots. Kennedy’s cases demonstrate how state courts may come to entirely different conclusions under very similar circumstances. Where Kennedy was requesting removal from the ballot, the North Carolina Supreme Court ordered the North Carolina Board of Elections to reprint ballots, determining that any delay was outweighed by the need to have an accurate ballot. Wisconsin and Michigan came to the opposite conclusion, determining that Kennedy had no legal right to have his name removed from the ballots. The federal courts in Michigan, looking to Michigan law and the doctrine of res judicata, declined to reach a different result. The U.S. Supreme Court declined to issue an injunction.
At the same time, Kennedy also litigated a request for his name to be placed on the ballot in New York. New York law requires an independent candidate to file a petition with a certain number of signatures and the candidate’s place of residence. Although previously a long-time resident of New York, Kennedy moved to California in 2015 and, at the time the petition was filed, did not own property in New York. Nonetheless, Kennedy listed an address in Katonah, New York, as his residence—a home owned by the wife of a childhood friend. The parties did not have a lease, and Kennedy did not pay rent until after some unfavorable publicity in May 2024. Kennedy spent one night at the home in June 2024. In a suit filed by voters seeking to invalidate Kennedy’s petition, the state court invalidated the petition because it found the address to be a sham address in violation of New York law. The state appellate court affirmed the trial court, and the New York Court of Appeal declined to consider the appeal. After additional litigation in federal court, the U.S. Supreme Court also declined to weigh in.
Given the course of litigation on presidential candidates, Trump v. Anderson appears to be a relatively narrow ruling. State courts may still be given a significant amount of deference to determine whether a federal candidate has met state requirements to appear on the ballot and perhaps even certain federal requirements outside of Section 3. Thus, while the U.S. Constitution is more heavily implicated in questions of ballot access, state statutes will still often control.
Election lawsuits have dramatically increased in frequency. When courts decide who can vote, how a person may vote, and who they may vote for, courts necessarily impact federal elections. Surveying the grounds for court decisions provides insight into an area where state constitutions and the federal Constitution diverge. This divergence emphasizes the importance of state constitutions as part of the legal fabric that determines not only who leads each state but also who leads the nation. Court answers to questions on the conduct of elections—such as challenges to mail-in ballot procedures—typically avoid federal law entirely. This is predictable; the U.S. Constitution creates a duty for state legislatures to provide for the times, places, and manners of elections. Challenges to those provisions are often appropriately analyzed through state law and state constitutions.
More complicated are challenges to voter qualifications. State courts hearing controversies over voter ID laws routinely blend federal and state constitutional analysis. This muddies the waters on where the right to vote truly lies. It also belies the idea that state constitutions are necessarily the best vehicle for providing expansive voting rights.
And while Trump v. Anderson may seem to indicate that federal law will control who is on or off the ballot, much of the subsequent litigation about ballot access places control over states’ ballots squarely with state legislatures, again emphasizing that while federal law on federal elections may come into play, it is ultimately the states that decide the how, the who, and the for whom of federal election law.
