A [More] Real 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).

Wilfred U. Codrington III

Many congratulations are due to Professor Richard L. Hasen on the publication of his newest book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. In this short book that seeks to address not-so-sweet problems, Hasen seamlessly weaves anti-canonical election law cases with modern stories of anti-democracy (some of which have yet to reach their conclusions) to explain the utility of a Right to Vote (“RTV”) Amendment today. In general, I am happy to read this work, as it adds a distinguished voice to the growing chorus that sings the praises of a RTV Amendment. An idea that was once looked upon as extraneous, unworkable, or even a pipe dream seems to be gaining more traction in the scholarly community. Even still, my sense is that Hasen’s proposals—both the basic and extended versions—do not go far enough in an important respect. Any discussion of an effective right to vote that disregards the problem of partisan gerrymandering, to me, seems incomplete.[1] And having gone back to review some of Hasen’s older works, I am persuaded that, even on his terms, there are at least three reasons why the basic amendment should include a provision to address the concern of partisan gerrymandering.

Of course, there may be reason for pause about incorporating a provision to address this dimension of political equality. Importantly, Hasen noted nearly two decades ago that he was skeptical of any judicial “attempts to promote contested visions of political equality.”[3] Understanding the impetus for this reasonable position, it nevertheless goes against my own sensibilities as to what might be expected from an ideal judiciary—one sincerely driven by the goal of maintaining a fair and open political process and receptive to a solution, even if less than perfect, based on the thoughtful work and advances in this area over the years. In either case, however, Hasen’s erstwhile objection is not applicable in this context for at least two reasons. The first reason is that a RTV Amendment with a provision addressing partisan gerrymandering would not involve the courts as the key actors in the pursuit of political equality any more than would the basic version of the measure. Instead, because of the very nature of constitutional amendment in the U.S., it would be the political branches taking the lead and setting out the terms. The second reason is that the equality principle at issue here is a core one, and not seriously contested. Responding to an earlier critique, Hasen noted that “it is easy to separate core from contested political equality rights through the lens of social consensus.”[4] Irrespective of what was the case at that time, that consensus has since materialized. The large majority of Americans believe that partisan gerrymandering is deeply problematic and, in fact, even opponents of a judicially wrought solution acknowledge as much. Not only that, but there has been steady movement in the states, primarily through direct democracy means, conveying that sentiment. Nor is partisan gerrymandering concerned with upholding any prized political values or seeking legitimate public aims; it is, instead, wholly about self-preservation of the parties and incumbents, raising concerns of “legislative self-interest and agency problems.”[5] In other words, there is no reason for us to “be confident that the legislature’s intent is to foster equality rather than engage in self-dealing.”[6] Under these circumstances, then, it seems that a RTV Amendment might properly be extended to account for the problem of partisan gerrymandering as well. 

Second, Hasen notes aptly that a RTV Amendment is appropriate because legislation guaranteeing similar protections might not withstand scrutiny of the current Supreme Court. But in some ways, that might be more applicable to legislation barring partisan gerrymandering. I agree, as many scholars would, that Congress has sufficient power to ban partisan gerrymandering in federal elections, which is supported by its longstanding practice of requiring contiguous, single-member districts from which members of the House of Representative are to be elected. I also think that Congress has similar authority to address the problem in elections for state office, though I realize that this is a more contested view (including for reasons set out in Oregon v. Mitchell). In either case, however, it is not clear that this Supreme Court would countenance congressional legislation outlawing partisan gerrymandering or statutorily devised process for achieving that goal in either federal or state elections. Notwithstanding persuasive arguments against viewing the novelty of acts as probative of their illegality,[7] such innovation to address partisan gerrymandering might turn out to be determinative of its constitutionality. That novelty, along with the fact (which Hasen acknowledges) that the Court has invalidated other provisions of law previously adjudged to have constitutional basis, suggests that his call for an amendment rather than legislation would apply to partisan gerrymandering as well. 

The final reason for including partisan gerrymandering in the RTV Amendment is the somewhat inextricable link between party and race. To his credit, Hasen includes protections against racial vote dilution in his proposal despite its current protection under statute. And with good reason: It does not take a tasseographer to read the tea spilled on the leaves of Justice Kavanaugh’s Allen v. Milligan concurrence. My fear, however, is that the high correlation between race and party will nevertheless leave racial minorities exposed under Hasen’s RTV Amendment proposal because a Court refereeing a claimed violation—particularly one insistent on a colorblind approach to adjudication—could simply point to partisanship as driving a regulation. Thus, a RTV amendment would be prudent to include a measure to address partisan gerrymandering because, as Hasen previously noted, it “seems a more sensible approach to police partisanship in redistricting directly than to use racial gerrymandering for parties to shadowbox over these issues.”[8]

What a more real Right to Vote Amendment might look like—one that also grapples with the intractable problem of partisan gerrymandering—is something that would take more time to develop. Importantly, though, we can get a glimpse of what a measure might entail by looking around the country for inspiration. State constitutions are being amended to bar the consideration of partisanship in redistricting, and their courts are interpreting new and old provisions of their charters to invalidate partisan gerrymanders. Likewise, policymakers in the states are developing structures like commissions to tackle the concern. Critically, a RTV Amendment that responds to partisan gerrymandering could also comply with Hasen’s compromise to veer away from nationalizing elections. Given that the measure would add to the federal Constitution and include congressional enforcement power, the baseline role of the Court and Congress would be a constant. And because an amendment might delegate to the states the task of setting up any new body (including with financial and other support from the federal government), that would require no significant nationalization beyond what constitutionalizing the right would in the first place. 

While questions remain about what “a theory of appropriate political competition” might entail,[9] lawmakers routinely undermine any reasonable theory, far exceeding the range of what an acceptable amount of partisanship would permit. The pervasiveness and potency of partisan gerrymandering in the U.S. is a key contributor to an array of political problems, from the stalling of basic government operations to the obstruction of popular measures. In his book, Hasen offers a praiseworthy model that could begin to make a right to vote real in this nation to cope with these and other ills. But if it is an effective right to vote that we desire, a provision that addresses this most urgent concern would make for a good addition. 

Wilfred U. Codrington III is a Dean’s Research Scholar & Associate Professor of Law at Brooklyn Law School and a Fellow at the Brennan Center for Justice at N.Y.U. School of Law. Professor Codrington is also the co-author of The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union. He can be reached at wilfred.codrington@brooklaw.edu.