Kansas supreme court rules state constitution does not provide the right to vote
Kansas supreme court rules state constitution does not provide the right to vote
Narrow decision says lower court failed to identify ‘fundamental right to vote’, drawing fiery dissent from three of seven justices
In a bizarre mixed ruling combining several challenges to a 2021 election law, Kansas’s supreme court has ruled that its residents have no right to vote enshrined in the state’s constitution.
The opinion centering on a ballot signature-verification measure elicited fiery dissent from three of the court’s seven justices. But the majority held that the court failed to identify a “fundamental right to vote” within the state.
The measure in question requires election officials to match the signatures on advance mail ballots to a person’s voter registration record. The state supreme court reversed a lower court’s dismissal of a lawsuit that challenged that. The majority of justices on the state supreme court then rejected arguments from voting rights groups that the measure violates state constitutional voting rights.
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Justice Eric Rosen, one of the three who dissented, wrote: “It staggers my imagination to conclude Kansas citizens have no fundamental right to vote under their state constitution.
“I cannot and will not condone this betrayal of our constitutional duty to safeguard the foundational rights of Kansans.”
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From the Kansas constitution Article 5 Suffrage:
Every citizen of the United States who has attained the age of eighteen years and who resides in the voting area in which he or she seeks to vote shall be deemed a qualified elector
Yeah, there is more than just that but how voting works is consistent with the US constitution. This is just more conservative efforts to suppress the vote in a state that is already overwhelmingly conservative.
That line isn't about voting, it's about being qualified to be a Elector, sent to the Electoral College to actually elect the next US President. So, not exactly textual evidence that there is a right to vote enshrined in the Kansas Constitution. The next couple of sections also kinda work against a universal right to vote in Kansas:
Disqualification to vote. The legislature may, by law, exclude persons from voting because of commitment to a jail or penal institution. No person convicted of a felony under the laws of any state or of the United States, unless pardoned or restored to his civil rights, shall be qualified to vote.
This shows that the legislature does have some power to remove a person's ability to vote under Kansas law. Granted, there seems to be an assumption implicit in this that people have a right to vote, so long as it's not been removed. But then we get to:
Proof of right to vote. The legislature shall provide by law for proper proofs of the right of suffrage.
That, right there, is probably doing a lot of heavy lifting for this law. The legislature has the power to provide "proper proofs" for the right to vote. So, it would seem that the Kansas Constitution is setting the legislature up to gatekeep voting, based on "proper proofs". That could well be the signature verification.
This looks like one of those cases where being a country of written laws can lead to weird outcomes. Yes, the right to vote should be universal. But, if the law, as written, doesn't say that, then that's not really the law.
Regardless of how the state constitution does their wordsmithing, don't the 15th, 19th, 24th, and 26th amendments of the federal constitution, in combination, essentially grant all Kansans over 18 the right to vote (aside from restricted groups)? I could possibly see the state blocking certain people from state and local elections, or anything within their jurisdiction, but wouldn't the state have zero say about federal elections?
I was just focusing on what was there in the Kansas Constitution; but, lets walk through it:
15th Amendment, Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.We'll ignore Section 2, as it doesn't seem useful here (same for other amendments below). So, you have a right to vote that cannot be limited by "race, color or previous condition of servitude". That last bit meaning slavery. So, it kinda does seem to imply a universal right to vote. But again, this leaves open the possibility that the US Government (USG) and States do have the power to limit it otherwise. As a ridiculous example, it seems that this Amendment leaves open the possibility that the State could limit the right to vote for left handed people.
19th Amendment, Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.Pretty much exactly as above, but extending the protections to "sex".
24th Amendment, Section 1
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.Continuing to extend the limits on USG/State powers. This time, it outlaws poll taxes.
26th Amendment, Section 1
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.And now we've extended the prohibition on limiting voting due to age.
There is a through-line on all of these which amounts to "The USG/State cannot limit the right to vote in these specific cases". At the same time, they all leave open the possibility that the right to vote can be limited by the USG/States, so long as the reason isn't one of the protected classes. The text of the US Constitution itself is pretty silent on the issue.
Article I, Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.That kinda tosses the whole thing to the States to figure out. Though, that has been modified by Federal Law a few times.
Article 4, Section 2
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.This is the "Privileges and Immunities" clause of the US Constitution, and it's been a useful "catch all" to further push the rights of the people. If a universal right to vote exists in the US Constitution, it's probably here. But, that's going to fall to judicial review. Which, for the moment, the Kansas court seems to have rejected.
Given all those references to the right to vote, does that not obviously show that there is a right to vote? And that the right shall not be denied for those reasons? Sort of an "exception proves the rule" sort of thing.
It does seem that there is an implicit right to vote, but not an explicit one. Which is why I mentioned the Privileges and Immunities clause, if there is a Constitutional right to vote, it likely derives from there. But, being implicit, rather than explicit, means that it falls to judicial review to codify it. It's also not as solidly guaranteed. Unlike say, the right to assemble, there is no specific text you can point to and say, "this bit of text, right here, says it." So, it wouldn't be surprising to see any such decision overturned later on (see: Dobbs decision).
Gotcha, thank you for your detailed response. So what I'm gathering here is that, essentially, the universal right to vote has typically been pushed under the Privileges and Immunities clause, but only because there isn't exactly any specific line or section in the Constitution that explicitly guarantees it, and also that the P&I clause was utilized via the benevolence (for lack of a better word) for the people by lawmakers and the judiciary?
This looks like one of those cases where being a country of written laws can lead to weird outcomes. Yes, the right to vote should be universal. But, if the law, as written, doesn’t say that, then that’s not really the law.
Without looking deeper I all but guarantee that these are relics of Jim Crow or earlier. They are a disgusting stain on our country, but not nearly as disgusting as those who would try to leverage them in the modern era for the sake of dragging us back to that era.
While it looks like I pulled the wrong sentence out of the section by forgetting electors was for the electoral college, there are a couple things to add.
The US constitution does include the right to vote and the state constitution builds upon that. The state level clause about exclusions is only necessary if the right to vote exists in the first place. So saying the state constitution doesn't repeat a right from the US constitution is stupid on its face.
Second, the nitpicking sbout how to verify someone would still be an issue even if voting was explicitly stated as a right in the state constitution since it is a limitation on that right like age.
The US constitution does include the right to vote
Kind of, but also kind of not. I replied to another commenter on that, I'll point you there.
The state level clause about exclusions is only necessary if the right to vote exists in the first place.
I agree that, and event directly stated in my previous post, exactly that:
there seems to be an assumption implicit in this that people have a right to vote
Unfortunately, an implicit assumption is not the same as an explicitly enumerated right. It's a fine distinction, but can be a big pain in the arse. In theory, US Citizens have a lot of unenumerated rights, via the 10th Amendment to the US Constitution. However, as it's left open to interpretation, it ends up amounting to almost nothing.
But, if the law, as written, doesn’t say that, then that’s not really the law.
Acting like we're some codified law savages decended from the Roman Republic like the Fr*nch.
As opposed to?
While being a country of written laws does have it's pitfalls, it also means that we have something to go back to and agree on. There is a reason that political bodies have been codifying laws since the city-states of ancient Mesopotamia. The alternatives usually break down to some sort of "guy with the biggest stick, at the moment, makes the law". No thanks, I'll stick with being a "codified law savage".I was making a joke that our law is based on precedent (common law), compared to law based on the German or Napoleonic codes which decend from Rome
So that explains the wooshing sound.
Sorry, I guess I've been primed by one too many comments where folks seem to want to ignore the laws as written when they are inconvenient to the outcome they want.