History and tradition are dominating the Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such as the right to bear arms. Might history and tradition also cause the Court to strike down new restrictions on the right to vote, even if doing so would cut against the current Court’s narrow protection of voting rights? Disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. Congress is also debating the SAVE Act, which would force states to require documentary proof of citizenship when registering voters for federal elections. As this Article shows, the Court should strike down these rules under a faithful interpretation of the history and tradition of voter registration.
This Article first discusses the ways in which some states have imposed restrictive registration rules and made it harder for organizations to help voters register. States have enacted citizenship requirements on who may register voters, tight delivery deadlines for completed registration forms, speech mandates for third-party organizations, compensation restrictions for individuals engaged in voter registration, and rules on what voters must present to register to vote, including documentary proof of citizenship.
The Article then turns to the history of voter registration, drawing upon primary sources such as archival newspaper records to show that there is a rich history of voter registration drives that date to the beginning of voter registration. There are three significant periods of expanded voter registration through third-party organizations, including during the women’s suffrage movement, the civil rights movement, and in the 1990s after Congress passed the National Voter Registration Act. Interested parties and organizations have engaged in voter registration activities for almost as long as there have been registration lists.
The Article then evaluates how courts should use this history and tradition. Specifically, because history and tradition support robust third-party voter registration activities, the Court should invalidate new voter registration restrictions as violating organizations’ and voters’ rights. If voter registration is considered a deeply rooted aspect of the election process, then so is the practice of third parties conducting voter registration drives and helping others register to vote.
History and tradition are now the primary focus of arguments at the Court. To win, litigants must explain why history and tradition support their contentions. Regarding voter registration, history and tradition demonstrate that eligible voters could easily place their names on the voter list and that organizations could assist in those efforts without hindrance. The Court should invoke this history and tradition to strike down restrictions on voter registration.
