Category Archives: Constitutional Right to Vote

My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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A Right to Vote for President?

Constitutional Right to Vote

Charlie Martel argues, contra Bush v. Gore, that the Constitution confers one in this Balls & Strikes essay:

The argument for a constitutional right to vote for president is simple. There are five amendments in the Constitution protecting the right to vote in some form or another: the Fourteenth, Fifteenth, Nineteenth, Twenty Fourth, and Twenty-Sixth. This makes voting the right most often protected by the Constitution, and the only constitutional right that Congress and the states have strengthened with repeated amendments. 

Two amendments expressly protect the right to vote for president: The Fourteenth Amendment refers to “the right to vote at any election for the choice of electors for President,” and the Twenty-Fourth Amendment concerns “the right of citizens of the United States to vote in any primary or other election for President.” …

Each of these amendments extended the right to vote to more Americans. The Fourteenth Amendment, ratified in 1868, was the first constitutional statement that there is a right to vote—including for presidential electors—but limited that right to men 21 and older. Two years after that, the Fifteenth Amendment protected the right to vote for Black male voters—a right later bolstered by the Twenty-Fourth Amendment, which banned racist poll taxes. In 1920, the Nineteenth Amendment expanded the right to vote to women; in 1971, the Twenty-Sixth Amendment lowered the voting age to 18. Together, these amendments have created a universal right to vote that states cannot deny or abridge.

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Codrington on Voting and State Constitutions

Constitutional Right to Vote

Wilfred U. Codrington III, Voting Under State Constitutions (forthcoming, Oxford Handbook of American Election Law):

Unlike their federal counterpart, state constitutions confer the right to vote in plain and affirmative terms. State charters also contain unique provisions that, among other things, regulate the redistricting process and set out the terms for political participation, including direct citizen lawmaking. And critically, state constitutions interact with the federal Constitution, which limits them in meaningful respects, while also governing the local administration of elections. Indeed, every political contest has aspects that are governed by state constitutions, making them an integral, yet underappreciated, source of American election law. This chapter underscores these and other crucial points by examining several dimensions of voting under state constitutions. It first lays out a broad history of voting under state charters. Then it provides a general overview of key structural components of state constitutions that govern the right to vote, followed by a brief assessment of two particularly important doctrinal matters explained in the context of particularly contested issues. Finally, the chapter closes by raising a few topics that would benefit from additional research and exploration to advance the scholarship in this ever-developing area of election law.

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11th Circuit finds Alabama’s felon disenfranchisement law passes constitutional scrutiny

Constitutional Right to Vote, election law and constitutional law, felon voting, NVRA (motor voter)

From an opinion by Judge Tjoflat, joined by Judge Moody (sitting by designation) in Thompson v. Secretary of State for the State of Alabama (lightly edited):

Greater Birmingham Ministries, an Alabamian non-profit organization dedicated to aiding low-income individuals, and several Alabamian felons appeal the District Court for the Middle District of Alabama’s summary judgment denying their Equal Protection Clause, U.S. Const. amend. XIV, § 1, challenge to Amendment 579 of the Alabama state constitution, their Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, challenge to Amendment 579’s disenfranchisement provisions, and their National Voting Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., challenge to the format of Alabama’s mail voting registration form. Because we hold that (1) Amendment 579 successfully dissipated any taint from the racially discriminatory motives behind the 1901 Alabama constitution; (2) Amendment 579 does not impose punishment for purposes of the Ex Post Facto Clause; and (3) Alabama’s mail voting registration form complies with the NVRA, we affirm.

Judge Rosenbaum concurred in part and dissented in part in a longer opinion, which opens:

Deceiving an elector in preparation of her ballot. Altering another person’s ballot. Failing to count legally cast absentee votes. Illegally voting more than once in an election (second violation). Willfully and intentionally signing the name of another elector in a poll book. Bribery of public servants. And perjury.

Perhaps this recitation sounds like a list of felonies that would disqualify an Alabamian from voting under Amendment 579 to Alabama’s constitution—Alabama’s felon-disenfranchisement provision. Nope. Those convicted of any of these voting-fraud-related felonies are A-okay, good to go when it comes to voting in Alabama. Alabama exempts them from its felon-disenfranchisement provision, Amendment 579. Under that provision, only other felons—those convicted of felony crimes that Alabama says are crimes of “moral turpitude”—can’t vote.

Even worse, in the nearly thirty years since Alabama amended its felon-disenfranchisement provision, Alabama has de-fined the phrase “moral turpitude” in contradictory or non-uni-form ways. At one point, Alabama even allowed each local registrar to interpret the term for herself. In other words, when Alabama precluded those convicted of felony crimes of “moral turpitude” from voting, it may as well have excluded those convicted of “whatever felonies Alabama (or any of its local registrars) at any point in the future might say disqualify a voter,” as Alabama had no definition of the phrase “moral turpitude” in mind.

All of this raises the question: just what was Alabama trying to accomplish with its felon-disenfranchisement provision?

. . .

Indeed, when, as here, the amended law does nothing to advance its stated purpose, it cannot cleanse the taint of its discriminatory origins. For that reason, if I were not bound by our precedent, I would hold that Alabama’s felon-disenfranchisement provision violates the Equal Protection Clause. But since I am bound, I cannot and must instead conclude that, under our case law, the provision does not violate the Equal Protection Clause.

That said, though, Alabama’s felon-disenfranchisement statute and its voter registration form do violate the Ex Post Facto Clause and the National Voter Registration Act, respectively. So I would reverse the district court’s denial of those challenges.

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I’m Giving the Emroch Lecture at the University of Richmond on March 27: “A Constitutional Right to Vote: Why We Need It and How to Get It”

Constitutional Right to Vote

Very excited to be giving this lecture at the University of Richmond.

The University of Richmond School of Law will host Richard Hasen as the 2023 Emroch Lecturer on Monday, Mar. 27 at noon. Professor of law and political science and director of the Safeguarding Democracy Project at UCLA Law, Hasen will present “A Constitutional Right to Vote: Why We Need It and How to Get It.”

It’s time to go on the offensive to protect voting rights. The quadrennial angst this country endures each presidential election cycle over whether we can hold free and fair elections is the product of a dysfunctional, decentralized, partisan election system administered under a national constitution that does not adequately protect voters’ ability to vote and to have each eligible ballot fairly and accurately counted. Professor Hasen will discuss why we need to amend the Constitution to protect the right to vote, what should be in such an amendment, and how to get such an amendment passed in our current polarized political and legal system.

The lecture will be held in person in the Moot Courtroom at the University of Richmond School of Law.

This event is made possible by the Emanuel Emroch Endowment, created in honor of Emanuel Emroch, L’31, founder and president of the Richmond and Virginia Trial Lawyers Association and a member of the International Academy of Trial Lawyers. The Endowment brings engaging and topical speakers to Richmond Law for the benefit of students, faculty, and the local community. Today, the Endowment is supported by Emroch’s son and daughter-in-law, Walter and Karen Emroch.

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