Republican legislatures in purple states are passing restrictive election laws in advance of the next presidential contest—but new analysis from Columbia Law Professor Jessica Bulman-Pozen says state constitutions can provide protection for voters.
State legislation designed to influence election outcomes—from gerrymandered redistricting to felony penalties for election administrators—has been on the rise since the 2020 presidential race. Analysis by constitutional scholar Jessica Bulman-Pozen, Betts Professor of Law and a director of the Center for Constitutional Governance, however, shows that state constitutions provide protections against election subversion, thanks to provisions meant to ensure political equality, popular sovereignty, and majority rule.
Since the U.S. Supreme Court has taken the federal courts out of decisions on partisan gerrymandering, state constitutions and state courts are key to election protection, Bulman-Pozen says.
“State constitutions provide more resources for fighting electoral subversion than the federal constitution as it is currently being interpreted,” she says.
In a new article in the Wisconsin Law Review, Bulman-Pozen and co-author Miriam Seifter describe how state constitutional guarantees of popular sovereignty, political equality, and majority rule—which they call a “democracy principle”—can serve as a bulwark against some recent election-related legislation.
“It’s a principle that is evident in all 50 state constitutions,” Bulman-Pozen says. “And it’s one that a lot of state supreme courts and other interpreters of state constitutions have . . . recognized or given weight to.”
For instance, every state constitution confers the right to vote on its citizens. Forty-nine state constitutions—all but New York’s—declare that political power is vested in the people. Most state constitutions also require elections to be “free” and limit interference with the franchise. They also allow for direct democracy by voters through ballot initiatives (24 states) and referendums (23 states).
“When people are focusing on national issues, there’s a natural tendency to look to the federal constitution or to federal laws,” Bulman-Pozen says. “But thinking about state constitutions or state laws as only speaking to issues of state concern is not right. We need to think about state constitutions even when we’re thinking about issues that are national in scope.”
State constitutions were almost all more recently written and are much more frequently amended than the U.S. Constitution, she says. That means a changing consensus on who can vote and how much power is allocated to the governor or state judiciary is more likely to be reflected on the state level.
“The state constitutions from their very beginning are more committed—both in their texts but also in their background understanding—to democracy as rule by the people than the federal constitution is,” she says. As a result, “You see a lot of tinkering in the service of this vision in a way that just hasn’t happened in the federal constitution.”
In 2019, the U.S. Supreme Court removed itself from deciding cases involving partisan gerrymandering in Rucho v. Common Cause. But state supreme courts can hear challenges to redistricting under state constitutions. North Carolina, Ohio, and New York supreme courts have recently invalidated redrawn maps, although their power to decide such cases is being challenged in the current Supreme Court case Moore v. Harper, which was argued on December 7. The case is an appeal of a decision by the North Carolina Supreme Court that invalidated a congressional map drawn by the legislature as a gerrymander that violated the state constitution’s guarantee of free elections.
A Wave of Legislation
Partisan efforts have shifted from denying the outcome of the 2020 election to passing state legislation aimed at the 2024 presidential contest, mainly in purple, or swing, states. “In red states, there’s been a sense that there’s no need to engage in this kind of activity,” Bulman-Pozen says. Instead, Republican-controlled legislatures have moved to pass these laws in states with large numbers of Democratic voters.
In Georgia, for instance, a 2021 law gives the legislature the power to name the chair of the state elections board, and it allows the board to take over election administration from local administrators. In Texas, it is now a felony for local election officials to send voters unsolicited applications for a mail-in ballot.
Proposed legislation in Arizona includes a measure in which the legislature—rather than voters—would choose the state’s at-large presidential electors. “Some of the bills that were introduced took the form of, ‘If we can’t trust the voters to vote for the candidate we like, we’re just going to do it for them.’ Almost that extreme,” Bulman-Pozen says.
New state laws creating felony offenses in election administration will have a chilling effect on election administrators, she says. And enforcement mechanisms like Florida’s new Office of Election Crimes and Security, which arrests voters for alleged voting fraud, are “despicable and scary.”
November’s midterm congressional elections seem to have turned down the heat of election denialism, Bulman-Pozen says. For one thing, candidates who lost vote counts conceded. “Maybe the days of the sham audit are behind us,” she says. “It doesn’t mean future elections are now smooth sailing. We will continue to see attempts in swing states to try to alter some of the rules.”
There’s a difference, Bulman-Pozen says, between measures that could serve to bolster public faith in the election process—an important goal—and those that seem to do so but ultimately do otherwise.
“You can see [legislative] measures that are undertaken in good faith and are good-government measures,” she says. “You also see ones that are not—but the measures use that frame and that rhetoric in ways that help insulate them from [legal] challenges. I think we have to continue to be really careful about looking at the full picture.”