Here.

You can listen here.

Looking forward to this conversation:

By the People, For the People: Conversations on Safeguarding Democracy – Tickets Required

Town and Gown

Sunday, Apr 21

1:30 PM – 2:30 PM

Event Description

Sometimes it’s hard to tell if it’s normal for each generation to feel like it’s on the verge of political, climate, or economic apocalypse, or if things really are currently worse than they’ve ever been. The 2024 election feels like the most urgent race in decades, with democracy on the line. How did we get here? What is the path forward? And what does this year’s election mean for the future of our country, no matter the outcome?

Richard Hasen

Michael Isikoff

Daniel Klaidman

Seema Mehta

Tina Nguyen

You can listen to the conversation here.

Watch here:

Thanks again to Jack Balkin for hosting to to all the contributors.

Here are the collected posts for our Balkinization symposium on Rick Hasen’s new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Michael Waldman, Expanding Our Constitutional Imagination

3. Emily Rong Zhang, Give us (a lasting consensus on really protecting) the Right to Vote!

4. Bruce E. Cain, Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

5. Alex Keyssar, That Little Omission in the Constitution

6. Wilfred U. Codrington III, A [More] Real Right to Vote?

7. Sanford Levinson, Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen’s Call For “A Real Right To Vote”

8 .Derek T. Muller, Some skepticism about (and some promise for) a constitutional right to vote

9. Dan Tokaji, Dare to Dream

10. Richard L. Hasen, A Surreal Right to Vote: Responding to the Balkinization Symposium

This conversation was a real treat. Watch:

[Cross-posted from Balkinization]

A Surreal Right to Vote: Responding to the Balkinization Symposium

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).
 
Richard L. Hasen
 
When Jack Balkin graciously put together a symposium featuring leading election law thinkers to discuss my new book, A Real Right to Vote, I did not expect that my proposal to amend the U.S. Constitution to affirmatively protect the right to vote would garner universal support. But I also did not expect to be compared to both Don Quixote and a milquetoast version of Paul Revere who wants to develop a plan to fight the British in 50 years. Although all of the eminent commentators—Bruce Cain, Wilfred Codrington, Alex Keyssar, Sandy Levinson, Derek Muller, Dan Tokaji, Michael Waldman, and Emily Zhang— have many positive things to say about this book, a constitutional amendment, and my work more generally (and for that I am grateful), there’s a definite Goldilocksian problem: I am either too bold in my proposals, or too naïve about the possibility of change in our hyperpolarized political era, or insufficiently audacious in not also solving the problem of partisan gerrymandering or junking the entire Constitution and starting over with a constitutional convention.
 
Rather than taking solace for falling somewhere in the middle of the spectrum among these eminent commentators, it is worth asking what these set of critiques tell about three key issues I address in A Real Right to Vote: the nature of the problems with the current state of U.S. elections and election law; the extreme difficulty of achieving meaningful constitutional change, especially in the area of voting rights; and the lack of viable alternatives to pursuing a long term constitutional strategy to expand voting rights.

Great conversation that you can watch here.

Very much looking forward to participating in this event (free registration required):

Richard Hasen, author of A Real Right to Vote, Sarah Isgur, senior editor of The Dispatch, and Lawrence Lessig, author of How to Steal a Presidential Election, provide a health check on the state of American democracy, and look ahead to potential areas of vulnerability in the run-up to the 2024 election. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

A great conversation with Mila Atmos. Listen.

Here’s Dan Tokaji’s contribution to the symposium on my book, A Real Right to Vote:

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act….

In any event, the real problem isn’t neither the volume of voting litigation nor the absence of tools to address such barriers.   In the right hands, the existing U.S. Constitution and Voting Rights Act would be powerful tools for protecting the right to vote.  The problem, as Hasen aptly puts it, is the “ultra-conservative Supreme Court supermajority that gives every benefit of the doubt to states that pass laws intended to make it harder to vote” (p. 9).  And it’s the Supreme Court that would ultimately interpret any constitutional amendment protecting the right to vote. 

For that reason, the post-Reconstruction history of voting rights provides a cautionary tale for those seeking to expand voting access by way of constitutional amendment.  Despite the Fifteenth Amendment’s express prohibition on denial or abridgement of the vote on account of race, southern states disenfranchised African Americans en masse in the last three decades of the Nineteenth Century.  As Hasen recounts (p. 23), the Supreme Court shamefully refused to intervene in Alabama’s blatantly racist denial of voting rights in Giles v. Harris (1903).  The consequence was that most southern Blacks were prevented from voting until the Voting Rights Act of 1965.  No matter how clear its language, the impact of a constitutional amendment will depend largely on the composition of the courts interpreting it.

To be fair, Hasen understands that most progress in voting rights has come from political actors rather than judges.  In fact, that point is core to his argument.  His proposed right-to-vote amendment would, if enacted, shore up the defense against future constitutional challenges to federal legislation protecting access to the ballot (pp. 65-66).  That would make a difference – but also makes it more doubtful that bipartisan consensus on a constitutional amendment could be achieved.  It’s hard to imagine many Republicans embracing such an amendment, even in the most modest form the book envisions.  

Hasen’s response to these concerns is that we should play the long game.   His chief model is the Nineteenth Amendment, with which the book begins (pp. 1-2).  It took over seven decades to enact the federal constitutional amendment prohibiting sex discrimination in voting.  During that lengthy period, suffragists built a movement that enshrined women’s right to vote in many states’ constitutions. 

I’m very much looking forward to this virtual event put on by the Brennan Center on March 20 at 3 pm ET (noon pacific). Free registration required. Details:

The right to vote is one of the foundations of democracy, yet in the United States, it has never truly been available to all. Generations have seen different versions of the same conflict: disenfranchised groups of people fighting for their right to cast a ballot. Today, this struggle continues, with attempts to prohibit some Americans from voting, such as those with criminal convictions, and to deter others, such as minority groups.

Author Richard Hasen argues in his new book, A Real Right to Vote, that a constitutional amendment would end the fight over the franchise. But could it be that simple? And, perhaps more importantly, is there a way to overcome the politics of voter suppression and convince both parties to enshrine this right for everyone? 

Join us on Wednesday, March 20, at 3 p.m. ET. for a live virtual event with Hasen, professor of law and political science and director of the Safeguarding Democracy Project at UCLA School of Law. He will be joined by moderator Wilfred Codrington, associate professor of law at Brooklyn Law School. Hasen and Codrington will discuss what it means to include an affirmative right to vote in the Constitution and what it would take to get there.

Produced in partnership with the NYU John Brademas Center

Speakers: 

• Richard L. Hasen, Author, A Real Right to Vote; Professor of Law and Political Science, Director of the Safeguarding Democracy Project, UCLA School of Law
• Wilfred U. Codrington III, Associate Professor of Law and Dean’s Research Scholar, Brooklyn Law School; Brennan Center Fellow
   

Derek Muller’s contribution to the symposium on my book, A Real Right to Vote:

But I have some doubts about whether the solution, which seems to invite much more involvement of the federal courts, fits the problem. Indeed, Chapter One is entitled, “Courts Are Not Enough.” But the proposed constitutional amendment anticipates significant and robust federal judicial implementation of a series of fairly open-ended legal standards.

To dig into one section of Professor Hasen’s proposed amendment: States must provide “equal” and “not unduly burdensome opportunities” to vote, “as measured by ease of voting.” A state must then have “valid and substantial reasons, backed by real and significant evidence, for imposing restrictions on or impediments to casting a ballot.” Additionally, “the means must go no further than reasonably necessary to satisfy those valid and substantial reasons.” Any restriction, or any impediment, has to clear several hurdles for a state regulation, novel or long-existing, to pass judicial scrutiny. And Professor Hasen qualifies that only unequal or “unduly burdensome” restrictions would face judicial scrutiny.

A law that prevents voters jailed the weekend before an election from requesting an absentee ballot? A law that requires a witness’s signature when someone casts an absentee ballot? A law that that mandates that party whose candidate for president received most votes in last election be listed first on the ballot? Trial courts have, at various times, found each to be more than a minimal burden on the right to vote (although the decisions did not always survive appeal). And what are the state’s reasons? Are there many? Or any? Particularly for laws that have long been on the books? Does it seem like, in any of these scenarios, the state would be able to articulate a “substantial” reason for the rule? Could it gather “real and significant evidence” for this rule? And even if it could muster such evidence, would it be able to demonstrate that these means “go no further than reasonably necessary”?

Maybe the answer is, the state should lose in each case—and federal courts should increasingly patrol the minutiae of state election administration. Indeed, the test is set up so that states will typically fail to defend their law if a court finds the law is not an “equal” opportunity or an “unduly burdensome” opportunity. But this seems to put a terrific amount of pressure on courts to label what is an “equal” or “not unduly burdensome” opportunity to vote. The measure of the “ease of voting,” in all three of the circumstances listed above, could be, “well, it remains quite easy to vote.” This is, in fact, precisely how Justice Alito’s opinion in Brnovich v. Democratic National Committee (2021) puts it: “Arizona law generally makes it very easy to vote.” The rest of that decision flows almost inevitably from that opening finding.

It seems to me, then, that the result of a “right to vote” amendment of this type is to drift toward one of two outcomes. The first is a system where every mundane, long-established election rule faces this inquiry: the number of polling locations, their proximity to voters, the number of hours a polling place is open, how many days ahead of an election an absentee ballot must be mailed, and so on. Intense litigation follows. Myriad rules are deemed unduly burdensome on the class of voters challenging the regulation. The state typically has some inevitable line drawing but, time and time again, fails to justify its rules, leaving federal courts constant guardians of state administration of elections—at least, where litigants choose to challenge state laws.

The second is a system where the United States Supreme Court reverts to a conception of “equal” and “not unduly burdensome” opportunities measure by “ease of voting” to say that the vast majority of laws need not even face judicial inquiry. State rules affecting voting here and there at the margins will be deemed “not unduly burdensome,” and not much will change.

Neither result strikes me as particularly desirable (although I’m sure reasonable minds would disagree with me). And it’s possible, of course, that courts instead find a middle path, one that hews to what Professor Hasen aspires. But I think the inevitable pressure will be to drift into the second path, with standards such as these….