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).
Richard L. Hasen
When Jack Balkin graciously put together a symposium
featuring leading election law thinkers to discuss my new book, A
Real Right to Vote, I did not expect that my proposal to amend the U.S.
Constitution to affirmatively protect the right to vote would garner universal
support. But I also did not expect to be compared to both Don Quixote and
a milquetoast version of Paul
Revere who wants to develop a plan to fight the British in 50 years.
Although all of the eminent commentators—Bruce
Cain, Wilfred
Codrington, Alex
Keyssar, Sandy
Levinson, Derek
Muller, Dan
Tokaji, Michael
Waldman, and Emily
Zhang— have many positive things to say about this book, a constitutional
amendment, and my work more generally (and for that I am grateful), there’s a
definite Goldilocksian problem: I am either too bold in my proposals, or too naïve
about the possibility of change in our hyperpolarized political era, or
insufficiently audacious in not also solving the problem of partisan
gerrymandering or junking the entire Constitution and starting over with a
constitutional convention.
Rather than taking solace for falling somewhere in the
middle of the spectrum among these eminent commentators, it is worth asking
what these set of critiques tell about three key issues I address in A Real
Right to Vote: the nature of the problems with the current state of U.S.
elections and election law; the extreme difficulty of achieving meaningful
constitutional change, especially in the area of voting rights; and the lack of
viable alternatives to pursuing a long term constitutional strategy to expand
voting rights.
An affirmative right to vote in the Constitution would further
the goals of political equality, especially for minority voters who continue to
end up being the most burdened by restrictive voting laws. As Dan Tokaji notes,
“The problems include state laws that fence out eligible voters, usually people
are less affluent and often people of color.
Hasen rightly focuses attention on difficulties in voting that confront
many Native American voters, especially those living on reservations.”
In one universe, courts would fill in the gaps in voter
protection. But we do not live in this universe. Indeed, one of the themes of A
Real Right to Vote is that for most of the Supreme Court’s 235-year
history, it has been a laggard rather than a leader when it has come to voting
rights. The Court has not protected the voting rights of women,
African-Americans or others even when the Constitution fairly read should have been
read to have done so.
This realization took me a while. As Bruce Cain notes, over
time I have lost faith in courts as impartial agents that could be expected to
fairly protect voting rights. Without a Court-centered approach to voter
protection, change will have to come from elsewhere. Keyssar asks why it is
that we have a Supreme Court that is so hostile to the protection of voting
rights in a country that perceives itself as a leader on democracy. He says it
can’t just be our “elderly” Constitution. That is not a question I try to
answer in A Real Right to Vote. But regardless of the reason, the
trend is clear, and it is not in favor of the voter.
The difficulty of constitutional change, especially on
voting. If the current Constitution lacks sufficient protection for voting
rights, and courts are not stepping up, then why not simply amend the
Constitution to provide for robust political protection? In short, under
current conditions of political polarization, where Democrats cannot even pass
comprehensive voting rights legislation (as in H.R. 1), how could
Democrats and Republicans come together to meet supermajority requirements in
Congress and a supermajority of state legislatures necessary for a
constitutional amendment? It’s not for nothing that Tokaji compares me to
(the film, not novel version of) Don Quixote. Cain similarly believes the
prospects of my amendment passing are even less than H.R. 1, and of course he’s
right.
I don’t sugarcoat things in A Real Right to Vote and
I won’t do so here. Passing an amendment won’t be easy and won’t happen soon. First,
the time horizon for an amendment like this passing is decades, much like the
struggles over other voting amendments to the Constitution such as the Fifteenth
and the Nineteenth Amendments. But galvanizing support over the amendment (as
Zhang and Tokaji acknowledge) itself pays dividends along the way, raising
consciousness and creating the conditions for incremental voting improvements
perhaps, as Zhang notes, through state constitutions. At this point in U.S.
history, a majority of Americans were not born when a single voting-related
amendment to the Constitution was passed or ratified. We have to set high goals
even if they are not immediately achievable.
The lack of a better path for fixing our elections. With
a constitutional amendment being very difficult to achieve, at least in the
short run, we can look for alternatives, and the commentators offer a variety
of alternative paths forward. Together, however, they seem either inadequate or
even less achievable than my proposed amendment.
1. Big voting statutes and reliance on courts. Some
of the commentators would rely on existing (or enlarged) federal statutes and
judicial protection of voters. Tokaji contends that a right to vote amendment
would be unlikely to reduce polarization or the amount of election litigation,
and that existing enforcement of the Voting Rights Act and the Equal Protection
Clause of the Fourteenth Amendment could essentially do the same work as my
proposed amendment.
Like Tokaji, Michael Waldman thinks the statutory route
would be a good one: “[I]t is far from clear that constitutional language would
offer stronger protection than well-crafted statutes.” Somewhat in tension with
this point, Waldman adds that: “Perhaps the biggest problem with a
constitutional strategy: it would still rely on judges to enforce it. Indeed,
an amendment would shove the issue of voting rights even more vigorously into
the courtroom. And American history gives little comfort that judges can be
trusted with such a task.”
The main weakness with the statutes and courts
approach compared to the amendment is that it considers politics and judicial
review in a static way. Imagine how the world would be different if political
momentum increased to pass the right to vote amendment. Doing so would send a
signal to our leaders and the courts to prioritize voting rights. Those who
ignored strong voters’ will would do so
at their peril. So the amendment process itself would help protect
voting rights.
As to judicial review, my amendment provides much more detailed
language (language that Waldman terms “nearly legislative”), directing courts
to protect voting rights in specific ways. To the extent that judges feel any
obligation to follow clear, mandatory language, the new amendment in the
Constitution could serve to rein in judges hostile to voting rights in a way
that earlier vaguely-worded amendments did not.
2. Make only small change. Some commentators would go
even narrower, resulting in fewer protections for voters. Unique among the
commentators, but likely expressing an opinion consistent with many
conservatives in the United States, Muller expresses opposition to enshrining
the right to vote in the constitution for what he calls “eminently practical
reasons.” He thinks the amendment would tend to either have federal courts
micromanage state and local elections or the amendment would be read to not do
much at all to protect voting rights, leaving us in the same place we were
before.
Muller’s solution is a federal law that would do no more
than create both automatic voter registration and a national id program (one of
the parts of my amendment). He believes such a statute would have bipartisan
appeal (though it could also muster bipartisan opposition).
Such federal legislation would accomplish much less,
however, than the amendment. It would not deal with other burdens on voters,
nor would it rein in courts, requiring them to resolve disputes over onerous
voting rules in favor of the voter. The way to minimize the resistance of
courts to the protection of voting right is to constitutionalize the rules and
to make them explicit. After a period of litigation in federal courts,
jurisdictions will learn the boundaries of proper behavior and stop trying to
mess with voting rules without very good reason for doing so.
Somewhat in Muller’s spirit, Keyssar would offer what I
would term a “Right to Vote Lite,” stripping out automatic voter registration
and identification, protection for minority voting rights, and my directions to
courts for how to balance voters’ rights against a state’s purported interests.
One wonders if such a pared down amendment would be worth the herculean effort
to pass it. It would likely cause courts to see it as accomplishing basically
nothing and give them free rein to continue favoring states over voters.
3. Go big or go home. Sandy Levinson comes it this
from the opposite direction from Muller, with the most radical set of proposals.
While he’s ready to award me the Presidential Medal of Freedom (thanks Sandy!)
he sees “pathos” in my desire to come up with a proposal that has at least a
small chance of being enacted.
As anyone familiar with Levinson’s work would expect, he is impatient
with change, ready to throw out the entire Constitution and start over, through
a constitutional convention that, inter alia, would provide for broad voting
rights. Levinson is right that what I propose is not my ideal—for example, as I
wrote in my 2012 book, The Voting Wars, I favor national non-partisan
election administration in the United States, but I do not incorporate that in
my proposed amendment because it is such a nonstarter.
The key divide between Levinson and me is whether there is a
difference in achievability between what I propose and his proposal to blow
everything up. I believe, like Keyssar, that a carefully crafted proposal would
have a better (dare I say realistic?) chance of adoption in the longer run
compared to a convention and adoption of amendments by the states. As Cain
adds, “There is no reason to believe that a new US convention would be any more
capable of working through these issues than the Congress or state
legislatures.”
In a similar, if less radical, spirit, Wilfred Codrington
takes me to task for not including the problem of partisan gerrymandering in my
amendment. As his close reading of my book and my earlier work shows, I find
the gerrymandering problem a much harder one to solve, although I have come to
believe that independent commission model for redistricting, enacted through
voter initiatives when available, provide the best way to deal with the
excesses of extreme partisan gerrymandering. I did not tackle this problem in A
Real Right to Vote because I consider it to be a separate and particularly difficult
problem.
But Codrington makes a strong case to add redistricting commissions
within the scope of an amendment. He makes an especially good point that
allowing states to continue to engage in some partisan actions like
gerrymandering while barring race-based discrimination in voting will lead
states to defend their potentially raced-based actions on partisan grounds. So
I remain open to including partisan gerrymandering in an amendment, recognizing
that there are tradeoffs.
Getting from here to there. In the end, a push for a
constitutional amendment needs to dream big but start small. As Cain helpfully
adds: “If we take the laboratories of democracy concept seriously, we should
work out the kinks of the reform agenda at the state level, and then scale up
to the national level.”
Cain uses this point to argue against constitutionalizing
voting rights (“Imposing national reform on a divided electorate is just a
pathway to more reform controversy and electoral paranoia”), but his approach
would mean we are least likely to get voting reform where we need it the most. But
a push for a national amendment has to start somewhere, and starting in the
states would have the benefit not only of working out the kinks, but also of
showing skeptical voters in other states that democracy-enhancing measures
would not mean the end of efforts at election integrity.
In the end, the push for a constitutional right to vote
would achieve the promise of equality going back as far as the Declaration of
Independence but far from realized in this country. As Zhang puts it, if such
an amendment passes we should be “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.”