Judicial Review of Absentee Voting Laws: How Courts Should Balance State Interests Against the Fundamental Right to Vote Going Forward

• Author: Sal H. Lee
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A. Political Science & Ethics and Public Policy, The University of Iowa, 2017
• Pages: 799-825

799

Judicial Review of Absentee Voting

Laws: How Courts Should Balance State

Interests Against the Fundamental

Right to Vote Going Forward

Sal H. Lee*

ABSTRACT: The right to vote is a fundamental right in a democratic society

that ensures each and every citizen is able to participate in the political

process. Although all states recognize the right to vote in their constitutions,

state legislatures are free to impose time, place, and manner requirements to

regulate how individuals exercise this right. Because it is the courts’ role to

interpret their constitutions, judicial review at the state-level becomes an

essential component in determining the scope of individuals’ voting rights.

Whether the courts will be deferential to the state legislatures’ broad

lawmaking authority to impose election regulations or if the courts will be

more protective of individual citizens’ constitutional right to vote depends on

how the state court interprets challenged statutes. In the modern era, as fewer

individuals vote in-person, and voters become more inclined to cast absentee

ballots due to illness, work, disability, or mere convenience, the courts will be

faced with an increasing need to scrutinize absentee voting laws. While

absentee voting has been historically viewed as a narrow exception to

traditional voting, recent developments show the increasing necessity of

viewing the absentee voting process as functionally equivalent to voting at the

polls. Therefore, any absentee voting regulation that is challenged going

forward should require courts to make an initial determination of whether

such regulation unduly burdens voters in a way that infringes on the

constitutional right to vote.

I.INTRODUCTION ............................................................................. 800

II. BACKGROUND: HISTORY OF THE CONSTITUTIONAL

RIGHT TO VOTE ............................................................................ 801

A.THE RISE OF ABSENTEE VOTING ............................................... 802

*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A. Political Science &

Ethics and Public Policy, The University of Iowa, 2017.

800 IOWA LAW REVIEW [Vol. 105:799

B.ABSENTEE VOTING AS A PRIVILEGE: PURPOSES AND

EFFECTS OF ABSENTEE VOTING LAWS ........................................ 803

C.COURTS’ VARIOUS STATUTORY CONSTRUCTIONS

OF ABSENTEE VOTER LAWS ...................................................... 806

III.HOW OSTENSIBLY “REASONABLE” RESTRICTIONS

CONTRAVENE THE RIGHT TO VOTE .............................................. 810

A.UNDUE BURDENS ON THE GENERAL RIGHT TO VOTE ................. 810

B.UNDUE BURDENS ON ABSENTEE VOTING ................................... 813

1.Challenges Based on Signature Matching ................... 813

2.Challenges Based on Voter ID Laws ............................ 817

3.Challenges Based on Absentee Voting Timeframe

Reductions ..................................................................... 819

IV.USING CRAWFORD’S BALANCING TEST: THE “IDEAL” ABSENTEE

VOTING LAW MOVING FORWARD .................................................. 821

V.CONCLUSION ................................................................................ 825

I. INTRODUCTION

Since 2000, states have pushed for new election laws that impose stricter

requirements on voting.1 States have viewed these new requirements as

necessary to combat election fraud and to preserve the integrity of the

electoral process. There is no doubt it is in everyone’s interest that elections

are conducted in a fair and honest manner. However, when new requirements

become so burdensome to potential voters as to deter them from participating

in the voting process altogether, the courts must intervene to regulate the

scope of the states’ regulations.

This Note analyzes the interaction between the states, courts, and

individual voters when it comes to resolving voting law disputes. Part II of this

Note briefly introduces the origins of the right to vote and how states have

broad constitutional authority to regulate the “time, place, and manner” of

holding elections. Next, Part III discusses how various voting regulations

imposed by state legislatures have led to infringements on the constitutional

right to vote. Lastly, Part IV proposes viewing the right to vote as a

fundamental right, which will help guide courts in judicial review of stricter

voting requirements going forward.

1. Oliver Roeder, Tighter Restrictions Are Losing in the Battle Over Voter ID Law s,

FIVETHIRTYEIGHT (Aug. 3, 2016, 11:56 AM), https://fivethirtyeight.com/features/tighter-

restrictions-are-losing-in-the-battle-over-voter-id-laws [https://perma.cc/86Y6-HL9B].