state elections, Ninth Amendment
In recent years, courts and commentators have focused on the federalism-based limits on the power of the federal government, with significantly less attention given to similar constraints on state power. It is not surprising, therefore, that both camps have overlooked that the Ninth and Tenth Amendments, with their reservation of both rights and power “to the people” contain a popular sovereignty principle that affects the constitutionality of various state election law regulations. This goal of this Article is to reaffirm that the people are, in essence, part of the federalism equation, and not simply as protectors of state power, but as sovereign entities in their own right.
This Article contends that the power that the people had to “alter or abolish” their state governments following the Revolutionary War is the foundation of the right to vote in state elections. The Founding generation considered the alter or abolish power to be a natural right and an expression of popular sovereignty that followed the people into the Union upon the ratification of the Constitution. Once this power was circumscribed during the Civil War era, the people used the right to vote as the vehicle to express this sovereign authority. Thus, voting, as the heir to the alter or abolish power, is part of the bundle of participatory rights preserved by the Ninth and Tenth Amendments’ reservation of “rights” and “power,” respectively, to the people.
Given its genesis, these amendments provide a better conceptual foundation for the right to vote in state elections than the Equal Protection Clause of the Fourteenth Amendment. Respect for its popular sovereignty foundations demand that the U.S. Supreme Court, in assessing burdens on the right to vote, acknowledge the reliance interest that the people retain in actively participating in the democratic process at the state level, an interest preserved by the Ninth and Tenth Amendments. Both amendments illustrate the hybrid nature of suffrage as one part sovereign power and one part fundamental right, which should influence the judicial means-ends assessment of restrictions on the right to vote in state elections.
Constitutional Law | Election Law