Monday, March 11, 2024

Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A 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).

Sanford Levinson 

            There is a deep pathos underlying Richard Hasen’s call for A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy.  Hasen probably knows more about the workings of the American electoral system than any other contemporary academic.  A founding  co-editor of the Election Law Journal, on whose Board he continues to serve, he has published more than 100 articles on various aspects of election law, not to mention a number of books on the topic.  He is frequently, and for good reason, a “go to” source by journalists looking for thoughtful—and often critical—responses to judicial decisions touching on voting.  He recently moved to the U.C.L.A., where he is a professor of law and political science and directs the Safeguarding Democracy Project there.  He is a truly engaged scholar. 

            A frequent theme of his writings, not at all surprisingly, is the inadequacy of the American system of conducting elections.  He is certainly correct.  I would go so far as to say that the United States has the worst electoral system, overall, of any of the countries that we count as “democratic.”  I have chided my friends Pam Karlen, Sam Issacharoff, and Richard Pildes for titling their widely used casebook on election law The Law of Democracy.  For me the title is sadly misleading and, therefore, ideological, inculcating in at least some impressionable students the mistaken view that the United States is a democracy.  (This, of course, is not a new theme of mine.)  One might argue, of course, that it was never designed to be one; thus the old slogan that the United States is a republic and not a democracy.  In any event, those who shared the views of, say, Eldridge Gerry that the nascent United States in 1787 was plagued by an excess of democracy might be pleased with the way things have worked out.  If one compares the United States Constitution with the fifty state constitutions, let alone most modern foreign constitutions, it is easily the least democratic constitution in the mix. 

            We are, of course, headlong into a new election season where the upcoming choices, especially at the presidential level, are accurately described as not only the “most important election of our lifetime,” but also a potential referendum on whether the United States will continue to be recognizable as a purported “democracy” (or “Republican Form of Government”) at all.  Perhaps it is hyperbolic to compare our situation to Weimar Germany in 1933, but it is surely the case that Donald Trump has become the avatar of a basically authoritarian, even fascistic, political party whose members brook no challenges to their exercises of power. 

            So Hasen’s latest book is his latest exercise of warning the American public about the deficiencies of our electoral system and calling on us to engage in reform before it is indeed too late.  He might well be analogized to a modern-day Paul Revere.  We must worry that what we think of as our democratic system is under systematic threat, and we must mobilize to save it.  For these warnings Hasen deserves our repeated gratitude and highest esteem.  He is a good citizen in the highest sense of that term.

             But what if Revere, upon warning the good folk of Concord and Lexington about the imminent arrival of the hated Redcoats, went on to say (something like), “There’s really not much you can do to stop them, and even that will probably take years of organization.  But you really should start now in the hope that we might be able to get rid of British rule, if we’re lucky, by, say, 1825, which is only fifty years from now”?  We might still commend Revere for his courageous ride and agree with him, as we are often told, that a journey of a thousand miles must begin with a first step.  Yet, on the other hand, we might think that there is a certain disconnect between the urgency of his warning—“The British are coming, the British are coming!”—and his actual advice as to what can be done to forestall the menace. 

            I mean no disrespect to Hasen, whom I indeed admire greatly.  As far as I am concerned, he deserves a Presidential Medal of Freedom and any other awards that a grateful would-be republic can assign him.  The limited nature of his actual suggested remedy for the winter (and spring, summer, and fall) of our discontent is derived not from his own paucity of imagination or concern, but, rather, from his realization that our political system makes it basically impossible to engage in any truly audacious politics.  Even if ambitious would-be leaders speak of the “audacity of hope,” the Obama administration in fact demonstrated how readily such hopes gave way to the actualities of our political and constitutional systems; they seem designed to crush all hope on the part of those who dare enter the political inferno. 

            So Hasen’s book, which is well worth reading, as is true of all of his scholarship, is devoted to arguing in behalf of what he calls a “real” right to vote, that is, a constitutional amendment that would basically attach a right to vote to the very idea of American citizenship.  It would become a true “fundamental right,” guarded against any easy diminution by government.  There could, to be sure, still be deprivations of that right, but the state would have to demonstrate a good reason—a “compelling interest”—to do so.  The judiciary would no longer submit to any dubiously “rational” arguments that a state might make to justify hurdles placed on voting. 

            The easiest rationale for limiting suffrage, of course, is age.  Children are citizens, with a panoply of rights, yet no one suggests, say, that a six-year-old should be able to vote.  But one might believe that there are relatively few restrictions so defensible as that and, moreover, that the state should be required to engage in rigorous proof that limitations on what would now be a genuine constitutional right would be both necessary and proper.  Hasen takes particular aim at the still-widespread blanket denial of the franchise to convicted felons.  States are in fact all over the place on this.  Vermont, like (I believe) Norway, allows incarcerated prisoners to vote.  Others make genuine attempts to reintegrate prisoners who have served their time back into the polity.  But then there are those states, almost invariably controlled by Republicans and located in the old Confederacy, that are merciless in their denial of the vote.  Even though a hefty majority of Floridians, including Republicans, voted to relieve the ban, Governor Ron DeSantis (should one say “of course”) together with Republicans in the Florida legislature has done everything he could to minimize the actual importance of the Florida referendum, enabled, as well, by Republican judges on the Eleventh Circuit Court of Appeals and Republican judges friendly to state claims of “rationality.” 

            There is no doubt that Hasen’s proposed amendment would cure, for once and for all, the lacunae announced (and embraced) by the Supreme Court in Bush v. Gore that there is no to vote contained in the Constitution.  At best, one can say that if the state allows officials to be chosen by voters, then access to the ballot cannot be deprived on grounds of race, gender, or not being older than 18.  But that, obviously, does not prevent a state from deciding that no one should vote or, more to the point, that everyone should experience inconvenient hurdles to casting their ballots.  Denial of effective access to all meets the formal criterion of “equal treatment”!

            It is difficult to believe that any reader would genuinely disagree with Hasen’s arguments.  One is tempted to assert that they would almost literally be “un-American” in rejecting Hasen’s reliance on the Declaration of Independence’s proclamation of equality as the foundation of the American polity.  So Hasen deserves kudos for setting out so clearly the desirability of such an amendment. 

            So why do I describe this book as generating a deep sense of pathos.  The answer is simple:  Hasen is much too knowledgeable and sophisticated to believe that establishing a real right to vote, through a constitutional amendment, would truly provide the cure for what ails us as a polity.  He acknowledges, toward the end of his book, that his approach, which relies, for example, on continued state operation of elections instead of having a professionalized national agency conduct more trustworthy elections, is “not my first choice.” “But,” he writes, “national, nonpartisan election administration is such a political nonstarter that I have no included it in my proposal for a constitutional amendment” (p. 143).  It would elicit too much opposition from “both Republican states and state and local election administrators of both parties, which have long fought to keep elections in the United States decentralized,” whatever the practical costs.”  Remember the “butterfly ballot,” designed by a well-meaning but incompetent Democratic official in West Palm Beach, Florida, that gave us George W. Bush as our 43rd President? 

            Moreover, Hasen concedes that his “constitutional right-to-vote amendment, particularly [what he labels] the basic version, is a much more modest reform” than would be desirable.  “It does not federalize elections, remake the Electoral College or the Senate, expand voting rights for those living in U.S. territories (such as Puerto Rico or the District of Columbia], or mandate the reenfranchisement of former felons.”  Again basic political realities caution restraint.  But, on top of this, there is also the practical point that the United States national Constitution is almost certainly the hardest-to-amend of any not only within the world, but also, and perhaps even more significantly, within the United States itself.  Almost all of the fifty state constitutions in the United States were drafted after 1787 and reflect a far more democratic sensibility than was present in Philadelphia.  Very importantly, a number of states, particularly, though not only, in the American West, allow their citizenry to play a direct role in reforming politics through initiatives and referenda.  Thus Nebraska, in 1934, rid itself of a totally unnecessary state senate and adopted the Unicameral thanks to a state-wide referenda supported by Progressive Senator George Norris.  A number of states have generated commissions to reapportion legislatures in an effort to reduce rawly partisan gerrymandering.  This, of course, is impossible at the national level, where James Madison was unduly proud of the fact that “we the people” are totally excluded from any direct role in governance.  We are at the mercy of our purported “representatives,” who have their own incentives to maintain the systems that gained them power regardless of the costs to the American polity as a whole.  Lenin asked the right question—“What is to be done?”—but the answer, according to Hasen, appears to be “not very much.” 

      In spsite of recognizing the multiple deficiencies attached to the American electoral system, Hasen believes, perhaps correctly, there is nothing he can do other than start small and hope for the best over, say, the next fifty years.  Like Steven Levitsky and Daniel Ziblatt, in their own recent book bewailing the current state of democracy in America, Tyranny of the Minority: Why American Democracy Reached the Breaking Point, he both offers a depressing picture of our current situation while asking his readers to take heart from the half-century political process necessary to gain women a guaranteed right to vote after its denial during the debates of the Fifteenth Amendment.  From the perspective of eternity, fifty years is not really very much.  But if one shares a sense of urgency about the situation, then that is, well, an eternity.  (Most of us will probably be dead fifty years from now, even in the best of circumstances.) 


            As readers of Balkinization know all too well, perhaps, I persist in advocating for a new constitutional convention that can, like its 1787 counterpart (or, for that matter, many of the some 235 state conventions that have graced our constitutional republic over the years), address the equivalent of what Alexander Hamilton labeled the “imbecilities” of the existing political system and attempt to alleviate them.  Hasen expresses no interest at all in any such audacious proposals.  Perhaps he agrees with Balkanization regular David Super, someone else for whom I have the highest esteem, that a new convention would be a disaster and that progressive proponents of a convention are serving as useful idiots for the ongoing right-wing efforts to achieve what they call an “Article V Convention,” named after the provision in Article V that allows two-thirds of the states to trigger a new convention upon petitioning to do so.  I respectfully disagree.  I continue to regard the “Progressive” hostility to the very idea of a new convention as myopic, equivalent in its way to the ostrich who prefers to put his head in the sand rather than to confront possibly uncomfortable realities.  The left seems unwilling or unable to imagine itself engaging in a form of political ju jitsu by which it would enter a convention with its own audacious proposals as a way of doing end runs around the sclerosis of the system established, and not sufficiently amended since then, in 1787.  Establishing a constitutionally (presumptively) guaranteed right to vote would indeed be beneficial.  However, with regard to what actually ails us as a polity right now, it would be little be than an aspirin (which can in fact be highly effective in curing mild illnesses) that would leave our basic illness untouched. 


            So I applaud Hasen for his act of obvious good citizenship in writing a book that should persuade anyone who reads it.  Adoption of his “basic” amendment could not possibly do harm, and it would probably do some good.  But, for better or worse, much more audacity is needed.  We may not have the time required to realize genuine reform that is channeled within what remains a truly undemocratic Constitution that, in its own way, is threatening to destroy our hopes for the future.


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