Expanding Our Constitutional Imagination

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).

Michael Waldman

The most significant thing about this terrific book may be the simple fact of the topic and author. It matters that Rick Hasen, a mandarin of election law and a prominent public intellectual voice, has embraced an amendment to guarantee voting rights. It is a welcome sign of the expansion of our constitutional imagination. As Rick notes, the fight for American democracy over the centuries has included fierce drives to amend the Constitution. These battles were won not in court but in the court of public opinion.

Yet for decades, those who care about voting rights – and progressives more broadly – have been remarkably skittish about the notion of amending the Constitution. Some argue there already is a right to vote in the Constitution. True, the original document, the one written by the powdered-wig boys, makes no mention. (Most Founders did not support a dramatic widening of the franchise, though some did.) But five later amendments refer to the “right to vote.” Acknowledging that protection is weak or missing seemed a misguided concession. For many years, this was my own view. The Brennan Center shied away from such an amendment because we did not think it necessary. (In contrast, we have long backed an amendment to overturn Buckley v. Valeo to allow reasonable regulation of money in politics.)

This hesitancy was not limited to voting issues. Liberals more generally grew queasy about constitutional change. The right seemed to burn with inexhaustible passion, demanding amendments to balance the budget, ban flag burning, prevent same sex marriage, and on and on. Calls for a constitutional convention raised fears that demagogues would dominate and shred the Bill of Rights. When it came to constitutional change, liberals became conservative.

But that misreads history. Those who want to advance democracy should not, as Rep. Jamie Raksin put it at a Brennan Center conference, be “fraidy cats.” A push for an amendment need not give courts, for example, an excuse to deny those rights in the meantime. Reva Siegel has recounted the push for the Equal Rights Amendment. Even as backers argued the ERA was needed, judges did not use that as an excuse to rule against claims of equality. Instead, popular momentum encouraged judges to go further.   

So, the A word is not transgressive. But as a genuine strategy – rather than a thought experiment – we would need to assess opportunity costs, including time and money spent, and the effectiveness of an amendment versus a strong statute.

Opportunity costs are high, of course. Enacting legislation is hard, but enacting an amendment is much harder. The Senate could change its rules to pass a voting rights bill with a majority, for example, and if the Democrats win a trifecta it likely will do just that. But it cannot change the constitutional provision requiring a two-thirds vote of both houses as well as three quarters of the states to ratify an amendment. Amendments take time: the NAACP opposed the provision barring a poll tax in 1962 because “It is a travesty to call a constitutional amendment a civil rights measure when Congress has the constitutional power to abolish the poll tax by legislation.” Franklin Roosevelt pointed out as he decided not to seek an amendment during his feud with the “nine old men” of the Court in 1937 that all that needed to happen was one legislative house do nothing in thirteen states and an amendment is doomed.

And it is far from clear that constitutional language would offer stronger protection than well-crafted statutes. Hasen notes that legislation to restore the strength of the Voting Rights Act, ban partisan gerrymandering, establish automatic voter registration, and other steps passed the House and had majority Senate support in 2022, though it fell to a threatened filibuster. Hasen does not dismiss legislative action, but argues that “such reform would not be nearly as good as a constitutional amendment.” Judges, after all, might strike down statutory provisions. (John Roberts, in Rucho, actually had pointed to H.R. 1 as an example of constitutionally sound response to gerrymandering, though he probably assumed it would not pass!)

But as a matter of historical record, legislation, police power, and even military power have produced deeper voting rights gains than court rulings. Union Army bayonets protected voting rights in the 1860s and 1870s. Preclearance by the Justice Department under the Voting Rights Act’s Section 5 had the biggest impact until it was demolished by the Supreme Court in Shelby County. Affirmative reforms such as automatic voter registration, now implemented in nearly half the states, effectively enfranchise millions without a rights-based litigation strategy. Until very recently, it was nonpartisan redistricting commissions that had been most effective in forestalling gerrymandering. Only after Rucho did state supreme courts step up, and in some places such as Ohio, legislators simply ignored adverse rulings.

Hasen’s proposed amendment intriguingly includes not just sweeping language (“right to vote” akin to “equal protection” or “due process”) but also specific, nearly legislative language. States would be required to implement automatic voter registration. A national voter ID system would be established. And more. Why not just pass these as laws?

(A quibble: Rick writes that “Democrats and those on the left have reflexively opposed all voter identification provisions.” That is no longer true. The Brennan Center supports “pro-voter” election integrity rules, and published a report on this in 2016 authored by Myrna Pérez, now a federal judge. It praised biometric ID and requirements such as those enacted in Rhode Island and Michigan. Stacey Abrams endorsed national ID rules as part of the Freedom to Vote Act. I have long supported voter ID. What we oppose is requiring forms of ID that lots of people don’t have.)

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 proposed amendment declares that courts should not narrowly construe Congress’s authority to implement it. But we know that courts are fully capable of gutting or ignoring even robust constitutional provisions, often soon after enactment. The Fifteenth Amendment was too narrow (as Rick explains), but even so, courts refused to make real the promise of even the weaker law. The Fourteenth Amendment contains much language that could have been used by judges to craft a regime of strong equal democracy, but over most of a century and a half, they refused to do so.  

Above all, this book takes seriously the crisis faced by our democracy. It does not flinch, and as a reader and a citizen, for that I’m especially grateful.

Michael Waldman is President and CEO of the Brennan Center for Justice at NYU School of Law. He is the author of The Supermajority: How the Supreme Court Divided America and The Fight to Vote, among other books. He can be reached at michael.waldman@nyu.edu.