Some skepticism about (and some promise for) a constitutional 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).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.

The first is that some states have been, in Professor Hasen’s view, unduly restricting voting opportunities in recent years. The second is that the courts, particularly the federal courts, have been unduly deferential to state exercises of authority. The third is that the United States Supreme Court has issued some erroneous decisions on matters of election law may well reverse some established election law precedents that lack an originalist pedigree. Even if one might quibble with the first and second concerns, the third is certainly serious to consider whether affirmative legislation is needed to protect some precedents and to overturn others.

But I have some doubts about whether the solution, which seems to invite much more involvement of the federal courts, fits the problem. Indeed, Chapter One is entitled, “Courts Are Not Enough.” But the proposed constitutional amendment anticipates significant and robust federal judicial implementation of a series of fairly open-ended legal standards.

To dig into one section of Professor Hasen’s proposed amendment: States must provide “equal” and “not unduly burdensome opportunities” to vote, “as measured by ease of voting.” A state must then have “valid and substantial reasons, backed by real and significant evidence, for imposing restrictions on or impediments to casting a ballot.” Additionally, “the means must go no further than reasonably necessary to satisfy those valid and substantial reasons.” Any restriction, or any impediment, has to clear several hurdles for a state regulation, novel or long-existing, to pass judicial scrutiny. And Professor Hasen qualifies that only unequal or “unduly burdensome” restrictions would face judicial scrutiny.

A law that prevents voters jailed the weekend before an election from requesting an absentee ballot? A law that requires a witness’s signature when someone casts an absentee ballot? A law that that mandates that party whose candidate for president received most votes in last election be listed first on the ballot? Trial courts have, at various times, found each to be more than a minimal burden on the right to vote (although the decisions did not always survive appeal). And what are the state’s reasons? Are there many? Or any? Particularly for laws that have long been on the books? Does it seem like, in any of these scenarios, the state would be able to articulate a “substantial” reason for the rule? Could it gather “real and significant evidence” for this rule? And even if it could muster such evidence, would it be able to demonstrate that these means “go no further than reasonably necessary”?

Maybe the answer is, the state should lose in each case—and federal courts should increasingly patrol the minutiae of state election administration. Indeed, the test is set up so that states will typically fail to defend their law if a court finds the law is not an “equal” opportunity or an “unduly burdensome” opportunity. But this seems to put a terrific amount of pressure on courts to label what is an “equal” or “not unduly burdensome” opportunity to vote. The measure of the “ease of voting,” in all three of the circumstances listed above, could be, “well, it remains quite easy to vote.” This is, in fact, precisely how Justice Alito’s opinion in Brnovich v. Democratic National Committee (2021) puts it: “Arizona law generally makes it very easy to vote.” The rest of that decision flows almost inevitably from that opening finding.

It seems to me, then, that the result of a “right to vote” amendment of this type is to drift toward one of two outcomes. The first is a system where every mundane, long-established election rule faces this inquiry: the number of polling locations, their proximity to voters, the number of hours a polling place is open, how many days ahead of an election an absentee ballot must be mailed, and so on. Intense litigation follows. Myriad rules are deemed unduly burdensome on the class of voters challenging the regulation. The state typically has some inevitable line drawing but, time and time again, fails to justify its rules, leaving federal courts constant guardians of state administration of elections—at least, where litigants choose to challenge state laws.

The second is a system where the United States Supreme Court reverts to a conception of “equal” and “not unduly burdensome” opportunities measure by “ease of voting” to say that the vast majority of laws need not even face judicial inquiry. State rules affecting voting here and there at the margins will be deemed “not unduly burdensome,” and not much will change.

Neither result strikes me as particularly desirable (although I’m sure reasonable minds would disagree with me). And it’s possible, of course, that courts instead find a middle path, one that hews to what Professor Hasen aspires. But I think the inevitable pressure will be to drift into the second path, with standards such as these.

Now, admittedly, I can nitpick Professor Hasen’s proposal because he actually has a proposal, and for that we can be immensely grateful. Many proposals calling for a right to vote fail to think through the implications or their scope. Professor Hasen is forthright and transparent about the scope of his proposal. He notes some of the cases that would be overturned by his amendment, such as Salyer Land Co. v. Tulare Lake Basin (1972) and its progeny, while reserving other questions, such as the one left open in Evenwel v. Abbott (2015). It is helpful to puzzle through the metes and bounds of a constitutional right to vote amendment.

But the scope of the proposed amendment is much broader still. It empowers all voters to sue in federal court to enforce this guarantee. That expands Article III standing quite broadly. Generalized grievances are ordinarily not claims federal courts can hear. Voters must have a particularized injury. Professor Hasen’s proposal not only invites more litigation through the implementation of open-ended standards, but it also invites more litigants to bring more claims in federal court.

Here, let me close with a point of emphatic agreement with Professor Hasen, and a point where I wonder whether a constitutional amendment is needed. Professor Hasen rightly seeks to “deescalate” the voting wars. While I think open-ended standards are more likely to exacerbate the voting wars with interminable litigation, he helpfully offers two specific rules designed to deescalate the voting wars, universal voter registration and universal voter identification.

Professor Hasen has long endorsed both of these components in his previous scholarship. And let me agree that these two areas seem uniquely fruitful areas for federal legislation. State coordination and cooperation problems are precisely the areas where federal intervention is most warranted. The inability of states to effectively coordinate across state lines to handle duplicative voter registrations, de-registering and re-registering voters, and providing consistent and streamlined identification procedures are areas ripe for federal oversight. Federal legislation is less likely to change year by year, in stark contrast to state legislation. (I should qualify, Professor Hasen’s proposal requires states to do these things, but it streamlines how the rules work and gives some power for them to hand over the coordination responsibilities to the federal government.)

Existing federal statutes over the last forty years have worked quite well with respect to voter registration. “Motor voter” dramatically and conveniently broadened the universe for how voters interact with government agencies in registering to vote. Military personnel have increased flexibility to register and maintain their residence.

But do we need a constitutional amendment for that? The Elections Clause of the Constitution already gives Congress the power to establish time, place, and manner rules for congressional elections. While it does not formally extend to other elections, a uniform federal rule for voter registration and identification would be extraordinarily convenient for states to use if Congress mandated such a rule in all congressional elections. That said, the gap in the Constitution’s power for other elections is enough that perhaps a constitutional amendment would be in order.

Even in the absence of a constitutional amendment, which Professor Hasen concedes is a longshot, Congress should take a hard look at a national voter registration and identification proposal. Such a proposal adopted in congressional elections would be a good test case for implementing a larger constitutional amendment. It would deescalate the voting wars by providing rules that states could not tinker with, and that would face uniform interpretation and application across the country.

While I hold some skepticism of elements of a proposed constitutional amendment, I do believe there is great promise in more federal legislation to shore up election administration and voting rights. Professor Hasen’s book is a worthy contribution to that discourse. 

Derek T. Muller is a Professor of Law at the University of Notre Dame Law School: dmuller@nd.edu