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.