Josh Douglas: “The Right to Vote Amendment is Worth At Least One Candle: A Reply to Heather Gerken”

The following is a guest post from Josh Douglas:

A new constitutional amendment affirmatively granting the right to vote could have a significant impact on protecting voting rights for all Americans.  Most significantly – and perhaps paradoxically – we are likely to see the biggest effects of a federal amendment where we least expect it: in state courts.

 

Professor Heather Gerken, in a characteristically eloquent and well-reasoned new article, claims that pursuing a new constitutional amendment enshrining the right to vote is “not worth the candle.”  The heart of Professor Gerken’s argument is that the benefits of a new right-to-vote amendment do not justify the costs involved, particularly as Supreme Court Justices and other federal judges are unlikely to alter the scope of voting rights analysis given the likelihood that, to pass, the amendment’s language would have to be too vague.

 

But a constitutional amendment granting the right to vote does not need federal judges, or even the U.S. Supreme Court, to have a big impact.  That is because many state courts follow federal law even when construing their own state constitutions.  So a new provision in the federal Constitution, even if couched in broad platitudes, will have corollary effects on state constitutional law.

 

The doctrinal implication of a federal right-to-vote amendment depends on a concept known as “lockstepping,” which I discussed in this article analyzing state constitutional protection for the right to vote.

 

Many rights are listed in both federal and state constitutions.  Yet even when state constitutional protection is textually broader than what is afforded under the U.S. Constitution, many state courts simply follow – or lockstep – their state constitutions to be in line with the federal constitution.  The right to vote is a perfect example of this phenomenon.  Every state constitution (besides Arizona’s) affirmatively confers the right to vote to the state’s citizens, a broader grant than the lack of an explicit right within the U.S. Constitution.  Yet many state courts lockstep their state-level protection so that it is the same as the U.S. Supreme Court’s more restrictive interpretation of the federal right to vote.

 

A U.S. constitutional amendment affirmatively granting the right to vote would have a trickle down effect on these state courts.  No longer would state judges be able to lockstep the state constitution’s grant of voting rights with the U.S. Supreme Court’s narrow jurisprudence.  Instead, a state court that chooses to lockstep would follow the analogous explicit right within the U.S. Constitution, making the protection in the state and federal constitutions coextensive – and broader than it is now.

 

Having an affirmative constitutional right to vote makes a difference in judicial decision making at the state level.  Courts that currently lockstep their state constitutions with federal law tend to rule more narrowly toward voting rights; state courts that independently construe their state constitutional right-to-vote provisions as broader than federal law tend to rule more expansively toward voting rights.  The hot-button issue of voter ID provides a great example.  In 2008, the U.S. Supreme Court upheld Indiana’s voter ID law under the Equal Protection Clause of the Fourteenth Amendment.  Litigants then turned to state courts around the country, challenging voter ID laws under the state constitutions’ more explicit and broader right-to-vote provisions.  Courts that properly construed their state constitutions as going beyond the federal constitution, such as in Pennsylvania and Arkansas, invalidated the voter ID laws.  But courts that lockstepped their state constitutional protection with federal law, such as in Georgia and Wisconsin, generally upheld the state’s laws.  If there were a right-to-vote provision in the U.S. Constitution, it is more likely that these courts would have lockstepped their state constitutions with that broader federal protection.

 

Further, as I recount in a new article, state courts resolve tons of election law cases, dealing with voter ID, felon disenfranchisement, and the voting process, among others.  By and large, when state courts lockstep their state constitutions with federal law, they provide less protection to the right to vote.  Although lockstepping in this setting is itself problematic (for reasons I discuss in my article), a federal right-to-vote amendment would mitigate that concern.  Even if federal courts might be slow to adapt, state courts that currently lockstep would have to recognize this change in federal law and adjust accordingly.

 

A constitutional amendment granting the right to vote would thus have an impact that goes well beyond the federal judiciary.  It could affect hundreds or thousands of cases at the state level – which is, after all, where the majority of election litigation occurs.  This is a meaningful change that is worth the effort: in addition to its many other virtues – such as signaling the importance of voting rights and energizing people to care about this issue – a constitutional amendment can have a significant substantive effect on state court protection of the right to vote.

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