Dare to Dream

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, 2023).

Dan Tokaji

This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

“The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  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 (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Arizona isn’t unique.  Over the past two decades, many states have adopted rules that impede access to voting  -- which I’ve termed “the new vote denial” -- even as other states have liberalized their voting rules.   The polarization of election laws has recently accelerated, following a familiar red-blue divide:  Republican-led states making voting rules more strict while Democratic-led states have made voting easier.  

Hasen’s recommended changes would improve access without compromising election integrity.   One of the items at the top of his wish list (and rightly so) is automatic voter registration, which would put the onus on states to register all eligible voters (pp. 60-61, 154).   Other possible additions are banning felon disenfranchisement (after sentence completion), enfranchising voters in U.S. territories in presidential elections, eliminating the Electoral College, and changing the composition of the U.S. Senate (pp. 155-58).  All of these changes would make our democracy more inclusive. 

I’m more skeptical of Hasen’s claim that a right-to-vote amendment would address the more deep-seated challenges that American democracy faces.   It’s not clear that a constitutional amendment would reduce partisan polarization, deescalate the voting wars, or deter election subversion (pp. 15, 17).  Nor is it likely to reduce the volume of election litigation, which has increased since 2000 (p. 102).   This is largely attributable to the dynamism in election laws and practices in this era, as well as the hyperpolarized environment in which changes have taken place.  A right-to-vote amendment seems more likely to increase litigation – not necessarily a bad thing so long as states continue to adopt barriers to full and equal participation. 

In any event, the real problem isn’t neither the volume of voting litigation nor the absence of tools to address such barriers.   In the right hands, the existing U.S. Constitution and Voting Rights Act would be powerful tools for protecting the right to vote.  The problem, as Hasen aptly puts it, is the “ultra-conservative Supreme Court supermajority that gives every benefit of the doubt to states that pass laws intended to make it harder to vote” (p. 9).  And it’s the Supreme Court that would ultimately interpret any constitutional amendment protecting the right to vote. 

For that reason, the post-Reconstruction history of voting rights provides a cautionary tale for those seeking to expand voting access by way of constitutional amendment.  Despite the Fifteenth Amendment’s express prohibition on denial or abridgement of the vote on account of race, southern states disenfranchised African Americans en masse in the last three decades of the Nineteenth Century.  As Hasen recounts (p. 23), the Supreme Court shamefully refused to intervene in Alabama’s blatantly racist denial of voting rights in Giles v. Harris (1903).  The consequence was that most southern Blacks were prevented from voting until the Voting Rights Act of 1965.  No matter how clear its language, the impact of a constitutional amendment will depend largely on the composition of the courts interpreting it.

To be fair, Hasen understands that most progress in voting rights has come from political actors rather than judges.  In fact, that point is core to his argument.  His proposed right-to-vote amendment would, if enacted, shore up the defense against future constitutional challenges to federal legislation protecting access to the ballot (pp. 65-66).  That would make a difference – but also makes it more doubtful that bipartisan consensus on a constitutional amendment could be achieved.  It’s hard to imagine many Republicans embracing such an amendment, even in the most modest form the book envisions.  

Hasen’s response to these concerns is that we should play the long game.   His chief model is the Nineteenth Amendment, with which the book begins (pp. 1-2).  It took over seven decades to enact the federal constitutional amendment prohibiting sex discrimination in voting.  During that lengthy period, suffragists built a movement that enshrined women’s right to vote in many states’ constitutions. 

A closer model might be the Equal Rights Amendment, which would have more broadly prohibited sex discrimination by government.  Although the ERA didn’t ultimately become law, it helped galvanize a movement in support of equal rights for women, which resulted in major changes in the law and the world.  The Supreme Court ultimately read the Equal Protection Clause to protect women from invidious sex discrimination.  Today, half the states have constitutional provisions explicitly prohibiting sex discrimination.  The struggle for the ERA was part of a movement that ultimately led to protections against discrimination not only on the basis of sex, but also gender, gender identity and expression, and sexual orientation. 

We could imagine something similar happening with a right-to-vote amendment. Even if its prospects for enactment are dim, rallying around such an amendment could help strengthen the movement to increase access to the ballot and make our democracy more inclusive.  That might take the form of enhanced state constitutional protection for voting rights.  It could  also lead to federal legislation and greater judicial solicitude for laws protecting access to the ballot.

Some might argue that pursuit of a federal constitutional amendment diverts time and energy from other, more realistic paths to reform. But I don’t think that’s how movements work.   Uniting around a common goal can create the energy that spurs political change, even if the ultimate objective proves elusive.  Hasen’s dream may well be impossible, but he’s not tilting at windmills. 

Dan Tokaji is the Fred W. and Vi Miller Dean and Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at tokaji@wisc.edu.