How does the Supreme Court analyze voting rights challenges?

0:04When litigation is brought challenging a particular voting scheme, usually, plaintiffs will say something to the effect of, I'm challenging this law under the 14th and 15th Amendments. Then maybe they'll throw in some voting rights claims. But they don't really delineate between the 14th and 15th Amendment in part because I think that some of it overlaps. But for our purposes, I think it's important to understand that there are distinct things about the 14th and 15th Amendment where they each bring something to the table to help protect the right to vote. If we start with the 14th Amendment, Section 2 of the 14th Amendment is the only provision in the 14th Amendment that actually mentions voting. Section 2 allows Congress to reduce the states delegation in the house, if the state abridges or denies the right to vote. It has never been enforced.

0:51In fact, it only comes up in the context of Supreme Court cases in instances that don't necessarily have to do with enforcing the penalty. It's pretty much been dormant for over 100 years. Now, the Supreme Court, though, has interpreted Section one of the 14th Amendment to protect an affirmative right to vote. In 1966, the court decided a case called Harper v. Virginia State Board of Elections, and they held that the equal Protection Clause protects a right to vote that prohibited states from imposing poll taxes in state elections. It's that holding that actually establishes an affirmative right to vote in the Constitution. What that means is that Congress can also pass legislation under Section 5, protecting the right to vote that the Court has interpreted in the scope of Section 1. The reason this is important and should be viewed as distinct from the 15th Amendment is that Section 1 of the 14th Amendment is not limited to race.

1:45It protects a right to vote in and of itself. Over the years, the Supreme Court has backed away from this idea that when there's a restriction on the right to vote, they should apply the most strenuous standard of review in reviewing that restriction, which is strict scrutiny. Instead, they have developed a sliding scale where they will look at the restriction, they'll look at the burden of the restriction, and they'll determine what the appropriate standard of review should be based on that.

2:10If it's a severe restriction, then they will heighten the standard of review and require the state to come forward with a really good reason for the restriction. But the less burdensome the restriction is, the less good that justification has to be from the state. Until eventually it gets to something approaching rational basis review or the most lax standard of review that the court uses. That's the right to vote under the 14th Amendment that's not limited to race.

2:36The 15th Amendment is limited to race. It, specifically, talks about racial discrimination in voting.