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).
Bruce E. Cain
Through various editions of his textbook, voluminous blogs and extensive scholarship, Professor Rick Hasen has tirelessly promoted and energized the field of Election Law for several decades. Indeed, there are times in my life when I received more daily communications from Rick and electionlaw@lists than my close friends and family combined. Not complaining, mind you, but just saying.
Due to his high public profile and many connections with the reform community, Rick often both reflects and shapes the modern US political reform agenda. Accordingly, his latest book offers insight into contemporary reform thinking in the context of recent conservative judicial decisions and the country’s considerable political uncertainties.
On the strategy spectrum of going big with reform versus going small with incremental measures, the trend lately is more towards the former than the latter. We got a glimpse of this when the Democrats offered up HR1 in the early days of the Biden administration. Professor Hasen ups the ante on big and proposes what many consider the most politically difficult pathway: i.e. amending the US constitution.
Over the decades, Rick has been a consistent advocate for extending political participation, depoliticizing election administration, and promoting equality of voice. What has changed is not Rick’s goals and values, but his perspective on how to achieve them. Like many other legal scholars of his generation, Rick initially had considerable faith in the Courts as “impartial’ agents of political reform. But as judicial appointments have become more politicized and conservative justices have trimmed the sails of ambitious political reform, faith in the legal system as an agent of political reform has waned considerably.
HR1was the comprehensive election reform bill the Democrats unveiled when they achieved trifecta control in 2020. It failed due to the narrowness of the Democratic majority in the US Senate and the filibuster rule barrier. HR1 aimed to plug the reform holes with a comprehensive array of policies such as adopting automatic and same-day registration, expanding access though vote-by-mail and early voting opportunities, limiting on removals from voter rolls, requiring states independent redistricting commissions to carry out congressional redistricting, etc.). Beyond HR1, many contemporary reformers urge even deeper structural reforms such as eliminating the Electoral College, phasing out partisan election officials, and changing the size and limiting the terms of the Supreme Court. While going big might be the best answer to all that ails American politics, every extra degree of reform bigness entails additional political risk.
Which brings us to Rick’s new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. Rick shares the view that the liberal reform agenda has stalled out at this moment in history and proposes a reform pathway that has hitherto been dismissed as politically impractical due to its several steps and supermajority requirements: namely, a constitutional amendment affirmatively safeguarding the right to vote. Such an amendment, he argues, would limit a conservative Court’s capacity to weaken egalitarian political reforms. He then offers several versions of this proposed amendment. The “basic” version combines a general commitment to a “substantially equally weighted vote” for all federal, state, and local races except for President and Vice President along with a few specific provisions such as automatic voter registration for eligible citizens along with assigning them unique voter identification number.
One reason he is optimistic that this amendment might succeed is that it contains a trade that is bipartisan in spirit: it pairs something the reform community has historically wanted (automatic registration by the government as in other democracies) with a reform Republicans might favor (compulsory voter id). Ignoring for the moment that anything proposed by a Democrat is indelibly tainted in the eyes of House Republicans, it is fair to say that this exchange might be in the ballpark of a bipartisan bargain.
But then Rick packs some additional liberal reforms into the basic amendment. For instance, he proposes requiring more proof of the purported state need for restrictive voting laws. The amendment also gives Congress “broader power to protect voting rights” and more deference from the courts when enacting measures that favor “enfranchisement and the equality of voters.” Apparently worried that his amendment might not be big enough for the progressive left, he provides some alternative add-on features such as limiting felon voting rights restrictions, eliminating the Electoral College, changing the US Senate composition, and expanding the franchise to vote for the President is residents of US territories. These add-ons do not make a bipartisan sale more likely, to say the least.
While I personally like many of his proposals, I am even less convinced about the political prospects of his proposed constitutional amendment path than I was about HR1. Rick offers various reasons why he thinks an amendment could win over public opinion. One is that Republican opposition to the liberal reform agenda is not factually supported by academic research. In my experience, that logic has not convinced many Republicans. Another argument Rick makes is even if this amendment cannot pass presently, it could spur a movement that could eventually succeed. Maybe, but I would feel more optimistic about this if the Equal Rights Amendment had eventually passed.
But political feasibility is only part of the problem. I also question whether broadly worded standards can really prevent a partisan court from finding a way to limit and shape the amendment’s application. Given that the Supreme Court has successfully narrowed the interpretation of both the 14th amendment and the Voting Rights Act, I see no reason why it could not limit the commitment to a “substantially equally weighted vote.” The specific institutional provisions in both the basic amendment (e.g. automatic voter registration and unique voter id number) and its optional features (e.g. abolishing the Electoral College) would have more impact but also more Republican opposition. This suggest a strategic dilemma: formulate a broad standard and risk losing by court interpretation or limit interpretation by specificity and risk losing at the ballot box.
Not only is the pathway to constitutional amendment formally arduous, it is also politically harder as well. State constitutional revision experience teaches us that by the 19th century, state constitutional conventions were not the reasoned 18th century forum reflected in the Federalist papers. Rather they were raucous, interest group infested, and highly politicized political battles fought under the glare of a highly partisan press. More recently, Californians backed off a proposed constitutional convention when they recognized who would likely attend its proposed convention and what they would likely be asking for. 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.
State constitutions contain all kinds of specific provisions, and consequently, are lengthy documents full of provisions that give statutory-like measures constitutional weight. The easiest paths for reforms that are too specific for the US Constitution are found in the state constitutions. State constitutions are typically amended hundreds of times because the amendment processes involve fewer steps and lower approval thresholds. 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. Yes, that would mean more diverse outcomes with states possibly moving in different directions, but I favor incremental progress over going big and coming back empty.
The reform agenda will scale easiest when the political consensus is broadest. We have already seen that Republicans back off Trump-ist opposition to convenience voting. In the end, I think voter convenience will prevail over voter paranoia. I have confidence in the inherent laziness of human beings. Imposing national reform on a divided electorate is just a pathway to more reform controversy and electoral paranoia. Rick is right about constitutional solutions but wrong about where to look for them.
Bruce E. Cain is Charles
Louis Ducommun Professor in Humanities and Sciences at Stanford University. You
can reach him by e-mail at bcain@stanford.edu.