As Hasen patiently explains, the case law on these matters has swerved hard right since the halcyon Warren Court days, perhaps because Republican appointees to the Supreme Court have at least acted as if they have been fueled by the widespread view among GOP regulars that Native Americans, college students, recent immigrants, and poor urban Blacks are likely support Democrats or liberal causes–and that that cannot be good. As this anti-democratic turn has recently accelerated rather than slowed, it might be wondered how any Amendment along Hasen’s lines could have a chance of achieving the widespread support needed for ratification. But Hasen makes the case that Republicans are likely to be attracted to the anti-fraud provisions that he recommends be featured in any right-to-vote Amendment: the automatic generation of voter IDs and the creation of voter registries in every state. In his words, “Any state concerned with deterring fraud would be able to take great comfort in the identification requirement imposed by the amendment.” In his view, passage would clearly lower the amount of election-related litigation, a caseload which he notes has ballooned dramatically since the doleful days that the chads hung in Florida. Furthermore, understanding the federalist bent of those most likely to oppose his plan, Hasen takes the time to reassure his readers that none of the changes he seeks would require anything like a Beltway takeover of election administration from the states.
Important as addressing the voting obstacles placed in front of certain groups is, it seems not to be the main goal of Hasen’s proposed voting rights Amendment. Rather, the overriding target seems to be election subversion. Hasen’s detailed retelling of Donald Trump’s brazen and contemptuous attempt to steal the 2020 Presidential election is absolutely chilling. And he warns that, in spite of important improvements to the Electoral Count Act enacted since January 6th, the chance that any residue of democracy will entirely disappear in the U.S. is growing. It is in front of this depressing backdrop that he makes his compelling case that the way–perhaps the only way–to halt a U.S. descent into authoritarianism is a voting rights Amendment to its Constitution.
Hasen argues that what he prescribes “would confirm that within each state voters have the right to vote for president in an election; the choice would no longer be up to the state legislature….There would simply be no room for arguments…that state legislatures can usurp the powers of the voters or discriminate either against voters or among voters.” In addition, “an amendment would be a new tool for voters to assure protection from law enforcement for free and fair voting.” I believe many readers will join me in trusting that so careful a reviewer of the relevant case law as Hasen will have drafted his Amendment in precisely such a manner as is needed to address the main election subversion issues as well as those matters involving discrimination and unequal access to the vote. I, at any rate, take great comfort in Hasen’s legal acumen….
Whichever version of the Amendment(s) one happens to prefer, I don’t think it can be sensibly doubted that this is an extremely important work that all who want to live under an authentic representative democracy should begin by reading, and continue by doing whatever they can to help turn Hasen’s proposal into one of the foundational laws of this land.
In his decision in Shelby, Chief Justice John G. Roberts Jr. claimed that even without a strong Section 4, the Voting Rights Act bans discrimination under Section 2, which “is permanent, applies nationwide, and is not at issue in this case.”
Permanent? Not if the 2-1 decision last week from the U.S. Court of Appeals for the 8th Circuit is allowed to stand.
The court’s majority arrogantly tossed aside what Congress explicitly said it was doing when it passed the law, claiming miraculous powers to read the “text and structure” of the act as preventing private parties, including civil rights groups, from bringing cases under Section 2. As the Atlantic’s Adam Serwer noted, the ruling’s claim that only the Justice Department had this authority ignored “Congress’s intentions, Supreme Court precedent and decades of practice.”
This is no minor bit of judicial activism. Rick Hasen, a law professor at UCLA, wrote on the Election Law Blog website that the ruling would eliminate the bulk of the cases aimed at protecting voting rights, since “the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources.” Bye bye, Voting Rights Act. Indeed, there were immediate signs (in a key Louisiana case, for example) that the 8th Circuit ruling would be used to overturn earlier voting rights actions…..
Preventing Trump from overthrowing liberal democracy is certainly a necessary step, but it’s not sufficient. Renewing the fight for a new Voting Rights Act and the access-enhancing reforms in the Freedom to Vote Act is essential. But it’s also time to address one of the major flaws of our Constitution: It does not contain an explicit, affirmative guarantee of every citizen’s right to vote. Enacting a constitutional amendment that would do so, Hasen argues, would bring our voting wars to an inclusive conclusion.
“Why do we let the state put barriers in front of people when they exercise their right to vote?” Hasen asked in an interview. The director of UCLA’s Safeguarding Democracy Project, Hasen details his proposed amendment and the case for it in a forthcoming book, “A Real Right to Vote.” A carefully framed amendment, he argues, could simultaneously protect voter access and assure election integrity. He’d link automatic voter registration with a nationwide, universal, nondiscriminatory form of voter identification.
Polarization makes amending the Constitution nearly impossible these days, one reason Hasen addresses fears on both the left and the right. But whatever chances Hasen’s amendment has, it calls on Americans to address the most important question facing our democracy: Are we truly committed to being a democracy? We’ll decide that at the ballot box next November, but we’ll have a lot more work to do even if we get the initial answer right.
My book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, publishes Feb. 20 and should hopefully be available a bit earlier for those who might want to assign it in a Winter or Spring course. Here’s the early Kirkus Review.
If you’d like the read the book’s Introduction to get a sense of what it’s all about, you can do so here. (You can also see the Table of Contents and the Index.)
A number of virtual and in-person book related events are coming starting in February! I’ll post a schedule in December.
Here’s the book’s description:
Throughout history, too many Americans have been disenfranchised or faced needless barriers to voting. Part of the blame falls on the Constitution, which does not contain an affirmative right to vote. The Supreme Court has made matters worse by failing to protect voting rights and limiting Congress’s ability to do so. The time has come for voters to take action and push for an amendment to the Constitution that would guarantee this right for all.
Drawing on troubling stories of state attempts to disenfranchise military voters, women, African Americans, students, former felons, Native Americans, and others, Richard Hasen argues that American democracy can and should do better in assuring that all eligible voters can cast a meaningful vote that will be fairly counted. He shows how a constitutional right to vote can deescalate voting wars between political parties that lead to endless rounds of litigation and undermine voter confidence in elections, and can safeguard democracy against dangerous attempts at election subversion like the one we witnessed in the aftermath of the 2020 presidential election.
The path to a constitutional amendment is undoubtedly hard, especially in these polarized times. A Real Right to Vote explains what’s in it for conservatives who have resisted voting reform and reveals how the pursuit of an amendment can yield tangible dividends for democracy long before ratification.
Thanks for your interest!
Below the fold I’ve put other early praise for the book:Continue reading My Book, “A Real Right to Vote” Now Available for Preorder (Out Feb. 20); Free Preview of Introduction Now Available
My book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, is out February 20 from Princeton University Press. (You can preorder now at Amazon, Bookshop, Barnes and Noble. There is also a Kindle version, and an audiobook is on the way.) I’ll be announcing book-related events around the country as the time gets closer.
Kirkus Reviews also calls A Real Right to Vote a “lively, closely argued book is bound to ignite a public effort to achieve its ends.”
“Richard Hasen compellingly conveys the complexity and urgency of the case for an affirmative right to vote in the Constitution. He has masterfully transformed what has been an idealistic musing into a proposal that demands real consideration and engagement. We should all be heartened that the right to vote has such an informed, inventive, and effective champion.”—Janai Nelson, president and director-counsel of the Legal Defense Fund
“The foundation of a democracy is the right to vote. But for many decades, this right has been eroded by pernicious lawmakers and the Supreme Court. Richard Hasen meticulously lays out the history of voter suppression and shows how a constitutional amendment could be crafted to provide the protection for American voters necessary to preserve our republic. An urgent and persuasive call to action.”—Norman J. Ornstein, emeritus scholar, American Enterprise Institute
“This important book makes a powerful case for an amendment that would enshrine a right to vote in our Constitution. Hasen spells out the numerous ways in which such an amendment would significantly strengthen American democracy and reduce the conflicts that so often bedevil our elections. His proposal, written with bipartisan appeal, should take a prominent place in our national conversation.”—Alexander Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States
“To safeguard America’s elections and her democracy, Richard Hasen, one of the nation’s leading election law experts, builds the compelling bipartisan case for a Twenty-Eighth Amendment guaranteeing the right to vote. Were the Framers writing the Constitution today, in the aftermath of the 2020 presidential election, the First Amendment might well guarantee the right to vote.”—Former US Court of Appeals Judge J. Michael Luttig
“A powerfully cogent case for the fundamental right not yet inscribed in the Constitution: the right to vote. Richard Hasen deploys his mastery of the ebb and flow of voting rights jurisprudence on the Supreme Court to demonstrate why a voting rights constitutional amendment is an imperative in the twenty-first century. This book is a serious contribution to political and constitutional discourse.”—Congressman Jamie Raskin
Below the fold you can read the book description:Continue reading Kirkus Reviews Calls My Forthcoming Book, A Real Right to Vote, “A persuasive, up-to-date proposal that deserves widespread attention.”