Category Archives: Real Right to Vote

My New Draft: “Bush v. Gore’s Ironic Legacy”

Bush v. Gore reflections, legislation and legislatures, Real Right to Vote, Supreme Court

I have written this draft for a symposium issue of the Florida State University Law Review on 25 Years after Bush v. Gore. Here is the abstract:

The Supreme Court framed its holding in its 2000 case, Bush v. Gore, as fulfilling its “unsought responsibility” to protect voters’ equal protection rights by stopping a potentially outcome-determinative recounting of Florida ballots in the disputed 2000 presidential election. Yet the Court to this day has not relied upon the case’s equal protection holding as precedent, leading some to call it a “one way ticket” to help Bush’s election.  In 2023, a Supreme Court majority finally cited Bush as a worthy precedent to apply in future cases. It turned out the ticket was good for a different train: the conservative Supreme Court majority in Moore v. Harper embraced not Bush’s equal protection holding as contained in its per curiam majority opinion, but instead an Article II-based claim in Chief Justice William Rehnquist’s concurrence. Rehnquist advanced what has come to be known as the “independent state legislature theory” contending that the problem with the recount was judicial usurpation of the power of the Florida legislature to set recount rules for the presidential election. Bush v. Gore’s ironic legacy is that a decision dressed up as one protecting voters’ equal protection rights instead has advanced a bogus legal theory for federal courts to use to subvert popular will. ISLT reserves for the Supreme Court a license to overturn democratically-conducted presidential and congressional elections by second-guessing state court interpretations of state constitutional provisions protecting the right to vote and state statutes governing the electoral process. It empowers legislatures over voters in choosing the President. Unless the Supreme Court overturns or limits Moore, ISLT will hang like a Sword of Damocles over the heads of state courts as they contemplate whether to read their state constitutions in voter-protective ways and to apply voter protective methods of statutory interpretation.

Part I briefly describes how—despite advances in voting technology and increased voting opportunities since 2000—Bush v. Gore’s equal protection holding has mostly been a dead end, and federal courts more generally have retreated from protecting voting rights in the last quarter century. It includes an empirical analysis showing election litigation continuing to grow, triple the rate since before Bush v. Gore and with a 14.3 percent increase in 2024 election season litigation compared to the 2020 season. Part II shows how the resurrection of Rehnquist’s Bush ISLT concurrence in Moore is anti-voter and anti-democratic. It is already deterring state court protection of voting rights, turning the supposed voter-protective holding of Bush on its head. Part III argues that Bush demonstrates that an advanced democracy should not rely upon the whims of the United States Supreme Court or optimistic readings of snippets of constitutional text to protect voters’ rights. What is needed is an affirmative right to vote in the U.S. Constitution, which would be a more fitting legacy to a case that exposed fundamental flaws with American election administration and purported to find in the Constitution protection for voters’ equal rights.

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“Disenfranchisement Creep”

Real Right to Vote

Bryna Godar has posted this draft on SSRN (forthcoming, Virignia Law Review). Here is the abstract:

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life. Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms. But it has largely overlooked the key role of state constitutions in limiting disenfranchisement—and the ways in which state actors routinely exceed those limits.

Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions from that right. But state actors routinely overstep those bounds—a practice this article refers to as “disenfranchisement creep.” Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions. First, state actors explicitly disenfranchise groups of people beyond what the constitutional text seemingly allows. This article newly identifies this phenomenon of de jure disenfranchisement creep. Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote. This article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees. In identifying both types of overreaches, this article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.

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“Democracy Reform for Donald Trump’s America: A Review Essay” (Reviewing My Book, “A Real Right to Vote”)

authoritarian threats in US, Real Right to Vote

Corey Brettschneider and Aidan Calvelli have posted this draft on SSRN (forthcoming, Political Science Quarterly). Here is the abstract:

Richard Hasen’s A Real Right to Vote powerfully critiques barriers to voting and persuasively defends a proposed constitutional amendment to address them. We agree the right to vote is fundamental and share Hasen’s urgency for reform. But we also think our greatest threats to democracy today come from more than just the electoral process. In this Review Essay, we argue that Donald Trump’s election just as urgently threatens substantive democratic guarantees-like the freedom to dissent, equal citizenship, and the rule of law-that make democratic procedures worth defending. On our view, then, democracy reform must mean more than election reform. To safeguard the full range of democratic values that Trump’s ascendance puts in jeopardy, we need to build a constitutional constituency of citizens committed to a politics of democratic defense throughout public life.

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“Power for the People: Recognizing the Constitutional Right to Vote for President”

Real Right to Vote

Charlie Martel as written this article for the Cardozo Law Review. Here is the abstract:

This article is an argument for a federal constitutional right to vote for president at a time when voting rights are under grave threat. No court has yet held that citizens have an independent federal constitutional right to vote for president. In fact, the Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president.

The article explains why the Supreme Court cases rejecting the citizens’ right to vote were wrong. My first argument is textualism. The plain language in the five constitutional right to vote amendments demonstrates that there is a right to vote for president. From there, the article shows how the Court’s plenary power cases rest on irredeemably flawed Jim Crow era precedent abrogated by both constitutional amendment and the historical evolution of the right to vote.  I also make two consequentialist arguments. First, plenary state power to choose presidents risks racist, sexist, and ageist results that would be unconstitutionally discriminatory, and second, that the usurpation of the citizens’ right to vote for president would be catastrophic for democracy and the country.

The article is novel in several respects. The multifaceted case for the right to vote for president is new. I rely on sources ranging from conservative textualists to critical race scholars, and ranging in time from the Reconstruction to the present. The article places particular emphasis on Black lawyers, scholars, activists, and judges in considering the role race has played in the development of the right to vote in the Constitution and wrongful destruction of that right by the Jim Crow era Court. The depth of the analysis of the racism and sexism of the “plenary state power” theory–past, present, and future—is new.  The article also breaks new scholarly ground by linking the “plenary power” theory to present day anti-democratic attempts to subvert elections, including the failed Trump coup. The article provides a framework for making the right to vote the new normative standard for evaluating presidential election disputes. 

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Delivering 68th Miller Lecture at Georgia State University September 25: “A Real Right to Vote”

Real Right to Vote

Very excited to be joining the great group of those scholars who have given the Miller Lecture. Details:

The 68th Henry J. Miller Distinguished Lecture Series

“A Real Right to Vote”


Featuring

Rick L. Hasen
UCLA Law
Gary T. Schwartz Endowed Chair in Law, Professor of Political Science; Director, Safeguarding Democracy Project

Wednesday, Sept. 25, 2024
Knowles Conference Center
Noon – 1 p.m.
**Business attire is required**

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Giving Constitution Day Lecture September 24 at Stockton University: “A Real Right to Vote”

Real Right to Vote

Looking forward to this event:

A Real Right to Vote

Tuesday, September 24, 2024, 6:00 p.m.
Stockton University Campus Center Event Room

Richard L. Hasen is the Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director of the Safeguarding Democracy Project at UCLA School of Law. ….

Professor Hasen recommends the following readings that complement his keynote address: 

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Delivering Constitution Day Lecture Sept. 23 at Franklin College: “Safeguarding American Democracy: Why We Need a Real Right to Vote.”

Real Right to Vote

Release:

Franklin College will welcome Richard L. Hasen, J.D., M.A., Ph.D., to campus as the Constitution Day speaker on Monday, Sept. 23 at 7 p.m. in the Branigin Room of the Napolitan Student Center. Hasen will serve as the first speaker in the college’s 2024-25 Convocation Lecture Series, as he addresses the crowd on “Safeguarding American Democracy: Why We Need a Real Right to Vote.”

Hasen will discuss how 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. Hasen believes the time has come for voters to act and push for an amendment to the Constitution that would guarantee this right for all. Following his lecture, a short Q&A will take place.

The lecture will be based on my book, A Real Right to Vote.

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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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Can State Supreme Courts Preserve–or Expand–Rights?

Real Right to Vote

New Yorker:

James A. Gardner, a professor of law at the University at Buffalo who has written extensively about judicial federalism, has raised other caveats. He is skeptical that state courts can spearhead a meaningful expansion of rights, because of heightened partisanship and “the politicization of constitutional law,” which has eroded the independence of state courts, particularly where Republicans wield power. As Gardner documents in a forthcoming law-review article, in recent years Republicans in places such as Georgia have packed state supreme courts to insure rulings favorable to their agenda. In 2017, Georgia’s Supreme Court expanded from seven justices to nine.

Judges in Republican-controlled states who have made expansive rulings in favor of rights have also been attacked politically, and even threatened with impeachment. For judicial federalism to flourish, “state judiciaries must enjoy genuine independence from transitory political winds,” Gardner argues. “Judges who are tethered tightly to trends in state and national politics, and thus fearful of partisan retaliation for decisions they make, are unlikely to enjoy the independence necessary to forge a state constitutional jurisprudence of any organic distinctiveness.”

State courts are significantly less insulated from political pressure than their federal counterparts. In 2022, the North Carolina Supreme Court struck down a voter-I.D. law that it concluded was racially discriminatory. The next year, the decision was reversed—after Republicans elected two new conservatives to the bench. This shift in the balance of power occurred after Republicans in the state legislature eliminated public funding for appellate judicial elections and changed the law so that party labels could be affixed to candidates. Douglas Keith, a scholar who tracks the role of dark money in judicial campaigns, told me that before these changes judicial elections in North Carolina had been quiet, nonpartisan affairs. They have now become hyperpartisan battles in which candidates bankrolled by the Republican State Leadership Committee—the nation’s largest spender on state-supreme-court elections—have largely prevailed….

State constitutions offer a potential counterweight to these trends. They embody what the law professors Miriam Seifter and Jessica Bulman-Pozen have termed “the democracy principle”—a commitment to popular sovereignty that is reflected in language vesting power in the people and in explicit assurances of the right to vote. Seifter co-directs the State Democracy Research Initiative, at the University of Wisconsin Law School, in Madison, which she launched, in 2021, with her husband, Robert Yablon, a professor who specializes in election law. One of their goals is to advance research and dialogue about state courts, thereby strengthening democracy. In Seifter’s state, progressives recently scored a major victory in this arena. Starting in 2011, creatively designed legislative maps enabled Republicans to retain power in the state legislature even after losing the popular vote. Janet Protasiewicz, a circuit-court judge, decried these maps, calling them “rigged.” Her outspokenness on the issue helped her to win election to the state supreme court in 2023. Republicans threatened to impeach Protasiewicz unless she agreed to recuse herself from any cases involving the maps, but the effort failed, and a case challenging partisan gerrymandering soon came before the justices. In December, they ruled that more than half of the legislative districts in Wisconsin violated a provision of the constitution requiring them to be composed of “contiguous territory,” and ordered that new maps be drawn.

Another state in which the “democracy principle” has been tested is Montana, where, in 2021, a coalition of Native American tribes challenged voting restrictions, including the elimination of Election Day registration, which they claimed had a disproportionate impact on them. In recent years, federal courts have rarely taken exception to such measures, applying strict scrutiny only to a law that “severely burdens” the right to vote. In an amicus brief, ten constitutional-law scholars, among them Miriam Seifter and Robert Williams, argued that upholding the voting restrictions would “erase Montana’s distinctive constitutional language, structure, and tradition,” all of which warranted a more exacting standard. (The Montana constitution mandates that all elections “be free and open,” and that no power “shall at any time interfere to prevent the free exercise of the right of suffrage.”) In March, the Montana Supreme Court struck down the restrictions, and warned that it would view skeptically any state law that “impermissibly interferes” with the right to vote….

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