That Little Omission in the Constitution

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).

Alex Keyssar

More than twenty years ago, in the aftermath of the 2000 election and Bush v. Gore, I participated in an effort to place a “right to vote” amendment in the Constitution.  Working with Jamie Raskin (then a law professor), Rob Richie (of FairVote), and numerous other activists and intellectuals, we drafted several versions of such an amendment -- a simple text as well as others dealing with more knotty matters like ex-felons and Puerto Rico.  Illinois Congressman Jesse Jackson, Jr. not only promoted the idea in Congress but vowed publicly that getting it passed would be the centerpiece of his work as a political leader.  Our actions, and our thinking, were prompted by the conflicts, litigation and disenfranchisement that arose during the 2000 election, as well as by Justice Scalia’s pointed assertion, in oral arguments, that “there is no right of suffrage under Article II” of the Constitution.  We thought that an amendment could plug a big hole in the fabric of our democracy.  We were also optimistic about its prospects (or at least I was):  the right to vote was an all-American value, like motherhood and apple pie.  Who could be against it? 

Thanks primarily to Jackson’s efforts, the amendment fairly quickly attracted more than forty co-sponsors in the House.  But then the effort gradually stalled.  No Republicans signed on, and no Senate co-sponsors could be found (not even the junior senator from Illinois).  The Democratic Party, at its convention in 2004, declined to insert an amendment proposal into its platform; key leaders said they feared opening up the Pandora’s box of amendments, lest conservative ones enter the fray.  Congressman Jackson understandably put his energy into other battles and later ran into some legal troubles of his own, depriving the effort of his leadership.  Over the years, we learned that many people – or at least many members of Congress – were more than ready to oppose a constitutional amendment protecting the right to vote.

It is with this backdrop in mind, as well as my own historical writing and twenty years of witnessing increasingly strident struggles over access to the ballot box, that I enthusiastically welcome Rick Hasen’s new book, The Real Right to Vote. (The book briefly recounts the story above.)  A clarion call to action fused with careful legal and political analysis, this is an important volume that makes a sober-minded and compelling case for a constitutional amendment guaranteeing the voting rights of American citizens.  Hasen argues persuasively that statutes alone are inadequate to do the job and, more disturbingly, that in recent decades the courts—most importantly, SCOTUS -- have become unreliable protectors of democratic rights. He maintains that the presence of an amendment affirmatively guaranteeing the right to vote would de-escalate the “voting wars” of the last twenty years and greatly reduce the (ridiculous and wasteful) amount of litigation that accompanies elections in the United States. Putting a right to vote in the Constitution would tilt the scales in favor of the prospective voter.   I agree and applaud.

That said, several thoughts (or questions) come to mind.  The first is an historian’s question, prompted by Hasen’s observation that in recent decades “the Supreme Court has failed to be a broad protector of voting rights” and by his chapter detailing the cases and pronouncements that buttress his conclusion.  Few constitutional scholars or voting rights experts (or readers of this blog) will dispute Hasen’s point:  the Warren Court is a fond memory, something of a benign aberration in our constitutional history, and more recent courts have repeatedly given sanction to state laws that place obstacles in the path of prospective voters and limited the ability of the federal government to restrain such actions.  Hasen also fears – with good reason – that the current court, with its deeply conservative majority, may be willing to overturn other precedents (even “one person, one vote”) and do further damage to the meaning of “universal” suffrage.

None of this is news to people who work in the field. But can we also broaden the lens and ask why this has been happening?  Is it not a bit odd, even baffling, that the Supreme Court of a country that proclaims itself to be the world’s foremost democracy does not actively defend the democratic rights of its citizens?  The explanation does not (or cannot be presumed to) reside in the limitations of our elderly Constitution:  after all, it was the achievement (and method) of the Warren Court to recognize democracy as a core American value and to find in portions of the Constitution the rationales for making that value operational.  So why do recent courts think differently?  Are there core tenets of modern conservatism (or conservative jurisprudence) that necessarily override the value of democracy – and if so, what are they and how/why did they become ascendant?  (They are hard to find in decisions like Crawford v. Marion County or Shelby County v. Holder.)  Or is the posture of the court simply a reversion to an older form of conservatism, one that was distrustful of democracy, especially if the wrong people were voting?  An older form of conservatism that no longer speaks its quiet parts out loud – at least not in court.    

I raise this issue not to criticize Hasen’s appropriately focused and sober-minded book but to encourage all of us to seek deeper, broader explanations for the anti-democratic drift that now seems so evident in our country, to re-examine the links between developments in the law and what is happening in politics and society.   The somber backdrop of our history, which is filled with episodes when suffrage rights contracted as well as expanded, suggests that we should be alarmed, even outraged, by the willingness, if not eagerness, of judges to limit or constrain the exercise of the franchise. All the moreso because we are again living in an era of declining faith in democracy, as was true in the late nineteenth century when actions were taken that undermined democratic rights for many decades, in the North as well as the South.  It is precisely in such conservative, or reactionary, eras that we most need our courts to uphold democratic values; making that happen may require more than fixes to the Constitution, necessary as those surely are.      

I would also like to offer a few comments about the text, or texts, of the amendment that Hasen offers to his readers.  Rick provides both a “basic version” and four possible additions to that basic text:  the inclusion of a ban on felon disenfranchisement:  enfranchising residents of territories to cast ballots for president; the elimination of the Electoral College; and a restructuring of the Senate to make representation proportional to population.  I support each of these measures (Electoral College reform is particularly dear to my heart), but I agree with Rick that they should be addressed separately, outside the context of this amendment.  The inclusion of any one of them – all will have strident opponents -- could sink the whole enterprise.

Indeed, I would go further and strip several items out of his “basic text.”  That text now includes several provisions that go beyond the assertion of a right to vote for all citizens :   the creation of an automatic registration system that would give every eligible voter a “unique voter identification number”; a requirement that states provide “equal and not unduly burdensome voting opportunities” to all voters;  and the protection of minority voters by guaranteeing to them a “fair opportunity . . .  to election representatives of their choice regardless of race, ethnicity, or membership in a language minority group.”  Again, I regard each of these proposals to be desirable;  they are standard items in the wish list of democratic  reformers.  But they are not as fundamental as the right to vote itself, and they will surely give opponents of this endeavor something to complain about.  In addition, these operationalizing features could logically flow—at a later time – from the adoption of a simple amendment such as the first paragraph of Rick’s formulation: it guarantees to “all citizen, adult, resident, nonfelons of the United States. . .the right to vote in all elections for federal, state, and local offices within their residential areas.”  In brief, I vote for keeping it simple. 

To be sure, Hasen is well aware of the trade-offs between going simple (or minimal) and going big, and he closes his book with a judicious discussion of those trade-offs.  He also acknowledges that a “real right to vote” will be a hard sell to Republicans – although he puts forward several arguments that just might lead conservatives to endorse the idea.  I think it unlikely that those arguments (or any arguments) will carry the day in the acrid, polarized world that we now inhabit, but that’s not really the point of this determined and forward-looking book.  Hasen is looking at the long haul (or, at best, the medium haul), urging his readers to embrace a project that is important and necessary but may take decades to be realized.  He knows well that similar efforts have failed in the past, but, hopeful democrat that he is (and wisely invoking the elongated path of past amendments), he encourages us to think that propitious circumstances could present themselves, sooner or later – and we should be prepared for that moment.    

Finally, a few words – a bit fanciful – about strategy.  The obvious and straightforward way to start advancing this project will be to settle on a text (or several variations thereof), find a few congressional sponsors, and begin the incremental process of moving it forward in Washington. But I would suggest that such an approach needs to be augmented by a major publicity and public relations campaign, addressed to the American people rather than to congressional leaders. The effort to amend the Constitution should be a popular movement, not just a series of sit-downs with politicians.   Being old-fashioned, I picture billboards (but I’m sure there are more high-tech equivalents).   Just imagine driving down a highway and seeing a billboard that said:  DO YOU WANT THE CONSTITUTION TO GUARANTEE YOUR RIGHT TO VOTE?  SUPPORT AMENDMENT 28.  And ten miles later:    DID YOU KNOW THAT YOUR RIGHT TO VOTE IS NOT PROTECTED IN THE CONSTITUTION?  DO SOMETHING ABOUT IT:  SUPPORT AMENDMENT 28.    Just a thought. 

Alex Keyssar is the Matthew W. Stirling, Jr., Professor of History and Social Policy at the Kennedy School of Government, Harvard University.   alex_keyssar@hks.harvard.edu