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