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….