My New Piece in the NY Times: “The U.S. Lacks What Every Democracy Needs”

I have written this guest essay (free gift link) for the NY Times (adapted from my upcoming book, A Real Right to Vote). It begins:

The history of voting in the United States shows the high costs of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change….

Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections…

It is hard to overstate how unusual it was for Mr. Carrington to get the Supreme Court to strike down his disenfranchisement. His lawsuit came during the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.Mr. Carrington fared better than many others who previously brought their claims of disenfranchisement to the Supreme Court, including most importantly Virginia Minor and Jackson W. Giles. Their cases perpetuated the disenfranchisement of millions of women and African American voters despite constitutional amendments that appeared to protect their rights….

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