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U.S. Constitution dictates: Students should vote here

Both nationally and here in New Hampshire, there has been a great deal of attention paid to new state voting laws and their impact on student voters. Some say that students should be required to vote in the states from which they moved to attend school. Others argue that students should have the unfettered discretion to choose the jurisdiction - old state or new state - in which to cast their ballots. Both positions overlook the federal constitutional underpinnings of the right to vote within a particular state.

The Constitution does not contain explicit language conferring on United States citizens an entitlement to vote in any particular state. Moreover, for most of the nation's history, the 'privilege' of voting was understood to be within the nearly unlimited regulatory control of the states.

During the civil rights era, however, the U.S. Supreme Court - led by Chief Justice Earl Warren - issued a number of decisions that used the adjective 'fundamental' as a descriptor in highlighting the importance of the right to vote. Describing a right as 'fundamental' is an act of constitutional consequence; it signals that state laws burdening the right will be regarded with skepticism and presumed to be unconstitutional.

Thus, for the past 50 years or so, the right to cast a ballot within a particular state has been understood to enjoy special constitutional protection at the federal level.

But who holds this protected federal right, and against whom is it held? As one might expect, the answers to these constitutional questions must ultimately come from the Constitution itself. (To hold otherwise would permit the states to undermine the right through overly narrow definitions of who holds it.)

Thus, the Supreme Court has indicated that the right to vote in a state belongs to U.S. citizens who also hold 'state citizenship' - a federal constitutional status that embraces all United States citizens with a physical presence in a state and an intention to make it their home for the time at least.

Under this test, a person can only be a 'citizen' of a single state at any given point in time. And a person can change her state of citizenship at will, so long as she establishes the requisite physical presence and holds the requisite intention.

So how does this law apply to the paradigmatic student who has moved out of state to attend school with no present intention either to return to her old state or to stay indefinitely in her new one? (Obviously, not all students fall within this paradigm. But many do.)

Such a student is, quite simply, a citizen of the state in which she attends school. She should not vote in her old state; she should vote in her new one.

Her entitlement to do so is not subject to the grace of state officials. It is, rather, rooted in the U.S. Constitution.

(John M. Greabe teaches constitutional law at the University of New Hampshire School of Law in Concord.)

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