Give us (a lasting consensus on really protecting) the Right to Vote!

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Emily Rong Zhang 

I am reminded of the following aphorism as I read Rick’s new book: “Never let a good crisis go to waste.”  If we can emerge from the Trump era of American politics with the kind of robust protections for the right to vote that Rick writes about and argues convincingly for, perhaps we will have gained something lasting and worthwhile from it all.  If a truly secure right to vote can be the lasting legacy of the Trump era, it might (almost) make all the agita we collectively suffered less painful in retrospect. 

As a former/retired voting rights advocate, I am, of course, excited for what Rick advocates in the book, a federal constitutional amendment that affirmatively enshrines the right to vote.  But I am even more excited for what having such an amendment would memorialize: that enough people cared about the right to vote so much as to perform a veritable political feat to protect it.  Rick writes persuasively about what should galvanize folks to want to undertake this political feat; our troubled history with the right to vote, especially as it concerns the Courts, was what upset me enough as a law student to want to do something about its modern vestiges. 

Clearly, the courts cannot be trusted to do the right thing on their own.  Rick suggests that with our help, they might.  A constitutional amendment might be a good starting point, but it shouldn’t be thought of as a destination.  After all, while Rick reminds us that there is no right to vote in the federal constitution, we have no shortage of rights to vote in this country.  As Joshua Douglas documented, each of our fifty states has the right to vote explicitly enshrined in its state constitution.  Their existence during our recent Voting Wars makes painfully clear the inadequacy of legal protections that are not backed by a current and diligently-maintained consensus about the importance of those protections. 

            What might such a consensus contain?  Rick makes a compelling proposal for one in his book.  To be sure, not every element is uncontroversial.  Some, as Rick acknowledges, for instance those related to felon disenfranchisement or implementing national voter identification, are likely to be contested.  But that should serve as an invitation for us to engage, not as an excuse to disengage.  Afterall, some of us are better at reacting to what someone else has written than at filling an empty page.  We are lucky to have as good a drafter as Rick. 

Emily Rong Zhang is an assistant professor of law at UC Berkeley School of Law. You can reach her by e-mail at zhanger@berkeley.edu