My New One in The Atlantic: “How to Actually Guarantee the Right to Vote: A Six-Point Checklist”

I have written this piece for the Atlantic, which is adapted from my book out next week, A Real Right to Vote. It begins:

As election season begins and Americans head to the polls, many would be shocked to learn that the United States Constitution does not guarantee them the right to vote. It instead leaves the question of voter qualifications mainly to the states, and bars voting discrimination only on the basis of certain protected categories, such as race and gender. What’s worse, courts for the past 50 years have repeatedly failed to protect Americans who have been denied the franchise or who face unnecessary hurdles exercising it.

The Supreme Court in 1973 refused to recognize that disenfranchisement of felons who had completed their sentences violated the Constitution. The Court in 2000 rejected the claim of residents of Washington, D.C., that they had the right to vote for members of Congress. Lower courts similarly rejected voting-rights claims brought by U.S. citizens living in U.S. territories such as Puerto Rico. The Supreme Court also upheld an Arizona law barring the third-party collection of mail-in ballots, a prohibition that made voting harder for Native Americans living on reservations.

In the case of Bush v. Gore, which ended the disputed presidential election of 2000, the Court affirmed that the Constitution does not guarantee anyone the right to vote for president, confirming that states can take away that right at any time for future elections. Similarly, in 2008, the Court in Crawford v. Marion County Election Board allowed states to pass more onerous voting rules, such as strict voter-identification laws, without proof that such laws serve any state interests in preventing fraud or promoting voter confidence.

Perhaps worst of all was Shelby County v. Holder, in 2013, when the Court held that Congress no longer had the power to force states with a history of discrimination to get federal approval before making changes to their voting rules. Shelby County marked a new era in the Court’s approach to voting rights. The Constitution’s Fifteenth Amendment, barring discrimination on the basis of race, expressly recognizes Congress’s power to prevent such discrimination by passing appropriate legislation. Yet far from recognizing “the special role assigned to Congress in protecting the integrity of the democratic process in federal elections,” as Justice Ruth Bader Ginsburg’s dissent suggested, the Court in Shelby County did not treat Congress as a coequal branch of government entitled to exercise its own judgment as to what laws are constitutionally required to prevent race discrimination in voting. Shelby County revealed how difficult it would be to get bold voting-rights legislation upheld by the Supreme Court even if Congress could get its act together to pass it….

One might fairly ask how, if Congress cannot even pass ordinary voting-rights legislation with Republicans opposing Democrats on virtually all voting issues, we could expect it to pass a constitutional amendment with its much more difficult thresholds: An amendment requires support of two-thirds of each house of Congress and ratification by three-quarters of the states. Given intense political polarization, passage of this amendment is not happening anytime soon, even if Democrats take back both houses of Congress in 2024. But now is the time to begin the work.

The key is to think in the longer term and to build a political movement around passage of the amendment. That’s what happened in earlier times, as with passage of the Nineteenth Amendment ensuring gender equality in voting. Decades elapsed between 1874, when the Supreme Court rejected the argument that the Fourteenth Amendment gave women the right to vote, and 1920, when the Nineteenth Amendment was ratified. Along the way, women’s-rights activists built support for gender equality in voting state by state.

An amendment affirmatively protecting the right to vote could be structured in many ways. I have developed what I term a “basic” version of the constitutional right to vote, one that would continue to let states exclude noncitizens, nonresidents, children, and former or current felons, and which would not change voting rights for U.S. territories or abolish the Electoral College or change the Senate. In my new book, I also suggest how to expand the right to vote to make these more capacious changes, leaving the full scope of the amendment to those who would lead a 21st-century voting-rights movement….

A basic constitutional right to vote should have these six elements:

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