Free and equal elections

Half of Southern states lack constitutional protections for fair and equal elections.

Free and equal elections clauses in state constitutions

2022

Source: National Conference of State Legislatures. 

*Arkansas, Oklahoma, and Tennessee have exceptions to this right for persons convicted of felonies.**Alabama does not explicitly contain the word "free," but does prohibit "all undue influences from power, bribery, tumult, or other improper conduct."

In addition to determining procedures for elections, state constitutions can include provisions that explicitly address fairness in voting and equal access to the ballot box. 30 states have constitutional requirements that elections be “free.” In 18 of those states, the constitution goes further, requiring that elections be “equal” or “open,” and 15 states explicitly prohibit improper influence or interference by “civil or military” powers with a citizen’s right to vote.¹

These free and equal election provisions have played a role in countering voter suppression and gerrymandering. For example, in 2014 the Arkansas Supreme Court struck down a voter ID law, partially due to its violation of the state constitution’s free elections clause.^2,3 Free and equal election protections have also been used to fight gerrymandering in Kentucky, Maryland, North Carolina, Pennsylvania, and Utah.^4,5,6,7

With the increase in restrictive voting laws passed in 2021 and 2022, these constitutional provisions could play a critical role in protecting access to the ballot box and preventing improper influence in the voting process.^8,9

1. “Free and Equal Election Clauses in State Constitutions”. National Conference of State Legislatures. November, 2019. https://www.ncsl.org/research/redistricting/free-equal-election-clauses-in-state-constitutions.aspx

2. “Arkansas Supreme Court strikes down state’s voter ID law”. Barnes. Reuters. October, 2014. https://www.reuters.com/article/us-usa-arkansas-vote/arkansas-supreme-court-strikes-down-states-voter-id-law-idUSKCN0I42QR20141015

3. “Arkansas Photo ID Law Struck Down, Violates State Constitution”. Brennan Center for Justice. October, 2014. https://www.brennancenter.org/our-work/analysis-opinion/arkansas-photo-id-law-struck-down-violates-state-constitution

4. “Free and Equal Elections: A New State Constitutionalism for Partisan Gerrymandering”. Khokher. Columbia Human Rights Law Review. 2020. https://hrlr.law.columbia.edu/files/2020/11/001_Khokher.pdf

5. “Complaint for Declaratory and Injunctive Relief”. Commonwealth of Kentucky Franklin Circuit Court Division. January, 2022. https://redistricting.lls.edu/wp-content/uploads/KY-graham-20220120-complaint.pdf

6. “LWV Utah and MWEG v. Utah State Legislature”. Campaign Legal Center. March, 2022. https://campaignlegal.org/cases-actions/lwv-utah-and-mweg-v-utah-state-legislature

7. “Maryland Congressional Redistricting Challenge”. Democracy Docket. April, 2022. https://www.democracydocket.com/cases/maryland-congressional-redistricting-challenge-szeliga/ 

8. “Voting Laws Roundup: December, 2021”. Brennan Center for Justice. January, 2022. https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-december-2021 

9. “Voting Laws Roundup: May, 2022”. Brennan Center for Justice. May, 2022. https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2022