[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.
The problems with elections and election law. There seems to be widespread agreement among the commentators that the hyperdecentralized, polarized election system in the United States creates conditions for continued political inequality, a high rate of election litigation that can undermine confidence in the election system, and a risk of election subversion. Alex Keyssar, the country’s leading historian on voting and a vocal advocate for a constitutional amendment in the aftermath of the 2000 election debacle, agrees I have made the case “that statutes alone are inadequate to do the job and, more disturbingly, that in recent decades the courts—most importantly, SCOTUS—have become unreliable protectors of democratic rights.” Emily Zhang similarly gushes over the potential for a “truly secure right to vote” and what it might mean for American democracy compared to the situation on the ground today.
An affirmative right to vote in the Constitution would further the goals of political equality, especially for minority voters who continue to end up being the most burdened by restrictive voting laws. As Dan Tokaji notes, “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.”
In one universe, courts would fill in the gaps in voter protection. But we do not live in this universe. Indeed, one of the themes of A Real Right to Vote is that for most of the Supreme Court’s 235-year history, it has been a laggard rather than a leader when it has come to voting rights. The Court has not protected the voting rights of women, African-Americans or others even when the Constitution fairly read should have been read to have done so.
This realization took me a while. As Bruce Cain notes, over time I have lost faith in courts as impartial agents that could be expected to fairly protect voting rights. Without a Court-centered approach to voter protection, change will have to come from elsewhere. Keyssar asks why it is that we have a Supreme Court that is so hostile to the protection of voting rights in a country that perceives itself as a leader on democracy. He says it can’t just be our “elderly” Constitution. That is not a question I try to answer in A Real Right to Vote.But regardless of the reason, the trend is clear, and it is not in favor of the voter.
The difficulty of constitutional change, especially on voting. If the current Constitution lacks sufficient protection for voting rights, and courts are not stepping up, then why not simply amend the Constitution to provide for robust political protection? In short, under current conditions of political polarization, where Democrats cannot even pass comprehensive voting rights legislation (as in H.R. 1), how could Democrats and Republicans come together to meet supermajority requirements in Congress and a supermajority of state legislatures necessary for a constitutional amendment? It’s not for nothing that Tokaji compares me to (the film, not novel version of) Don Quixote. Cain similarly believes the prospects of my amendment passing are even less than H.R. 1, and of course he’s right.
I don’t sugarcoat things in A Real Right to Vote and I won’t do so here. Passing an amendment won’t be easy and won’t happen soon. First, the time horizon for an amendment like this passing is decades, much like the struggles over other voting amendments to the Constitution such as the Fifteenth and the Nineteenth Amendments. But galvanizing support over the amendment (as Zhang and Tokaji acknowledge) itself pays dividends along the way, raising consciousness and creating the conditions for incremental voting improvements perhaps, as Zhang notes, through state constitutions. At this point in U.S. history, a majority of Americans were not born when a single voting-related amendment to the Constitution was passed or ratified. We have to set high goals even if they are not immediately achievable.
The lack of a better path for fixing our elections. With a constitutional amendment being very difficult to achieve, at least in the short run, we can look for alternatives, and the commentators offer a variety of alternative paths forward. Together, however, they seem either inadequate or even less achievable than my proposed amendment.
1. Big voting statutes and reliance on courts. Some of the commentators would rely on existing (or enlarged) federal statutes and judicial protection of voters. Tokaji contends that a right to vote amendment would be unlikely to reduce polarization or the amount of election litigation, and that existing enforcement of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment could essentially do the same work as my proposed amendment.
Like Tokaji, Michael Waldman thinks the statutory route would be a good one: “[I]t is far from clear that constitutional language would offer stronger protection than well-crafted statutes.” Somewhat in tension with this point, Waldman adds that: “Perhaps the biggest problem with a constitutional strategy: it would still rely on judges to enforce it. Indeed, an amendment would shove the issue of voting rights even more vigorously into the courtroom. And American history gives little comfort that judges can be trusted with such a task.”
The main weakness with the statutes and courts approach compared to the amendment is that it considers politics and judicial review in a static way. Imagine how the world would be different if political momentum increased to pass the right to vote amendment. Doing so would send a signal to our leaders and the courts to prioritize voting rights. Those who ignored strong voters’ will would do so at their peril. So the amendment process itself would help protect voting rights.
As to judicial review, my amendment provides much more detailed language (language that Waldman terms “nearly legislative”), directing courts to protect voting rights in specific ways. To the extent that judges feel any obligation to follow clear, mandatory language, the new amendment in the Constitution could serve to rein in judges hostile to voting rights in a way that earlier vaguely-worded amendments did not.
2. Make only small change. Some commentators would go even narrower, resulting in fewer protections for voters. Unique among the commentators, but likely expressing an opinion consistent with many conservatives in the United States, Muller expresses opposition to enshrining the right to vote in the constitution for what he calls “eminently practical reasons.” He thinks the amendment would tend to either have federal courts micromanage state and local elections or the amendment would be read to not do much at all to protect voting rights, leaving us in the same place we were before.
Muller’s solution is a federal law that would do no more than create both automatic voter registration and a national id program (one of the parts of my amendment). He believes such a statute would have bipartisan appeal (though it could also muster bipartisan opposition).
Such federal legislation would accomplish much less, however, than the amendment. It would not deal with other burdens on voters, nor would it rein in courts, requiring them to resolve disputes over onerous voting rules in favor of the voter. The way to minimize the resistance of courts to the protection of voting right is to constitutionalize the rules and to make them explicit. After a period of litigation in federal courts, jurisdictions will learn the boundaries of proper behavior and stop trying to mess with voting rules without very good reason for doing so.
Somewhat in Muller’s spirit, Keyssar would offer what I would term a “Right to Vote Lite,” stripping out automatic voter registration and identification, protection for minority voting rights, and my directions to courts for how to balance voters’ rights against a state’s purported interests. One wonders if such a pared down amendment would be worth the herculean effort to pass it. It would likely cause courts to see it as accomplishing basically nothing and give them free rein to continue favoring states over voters.
3. Go big or go home. Sandy Levinson comes it this from the opposite direction from Muller, with the most radical set of proposals. While he’s ready to award me the Presidential Medal of Freedom (thanks Sandy!) he sees “pathos” in my desire to come up with a proposal that has at least a small chance of being enacted.
As anyone familiar with Levinson’s work would expect, he is impatient with change, ready to throw out the entire Constitution and start over, through a constitutional convention that, inter alia, would provide for broad voting rights. Levinson is right that what I propose is not my ideal—for example, as I wrote in my 2012 book, The Voting Wars, I favor national non-partisan election administration in the United States, but I do not incorporate that in my proposed amendment because it is such a nonstarter.
The key divide between Levinson and me is whether there is a difference in achievability between what I propose and his proposal to blow everything up. I believe, like Keyssar, that a carefully crafted proposal would have a better (dare I say realistic?) chance of adoption in the longer run compared to a convention and adoption of amendments by the states. As Cain adds, “There is no reason to believe that a new US convention would be any more capable of working through these issues than the Congress or state legislatures.”
In a similar, if less radical, spirit, Wilfred Codrington takes me to task for not including the problem of partisan gerrymandering in my amendment. As his close reading of my book and my earlier work shows, I find the gerrymandering problem a much harder one to solve, although I have come to believe that independent commission model for redistricting, enacted through voter initiatives when available, provide the best way to deal with the excesses of extreme partisan gerrymandering. I did not tackle this problem in A Real Right to Vote because I consider it to be a separate and particularly difficult problem.
But Codrington makes a strong case to add redistricting commissions within the scope of an amendment. He makes an especially good point that allowing states to continue to engage in some partisan actions like gerrymandering while barring race-based discrimination in voting will lead states to defend their potentially raced-based actions on partisan grounds. So I remain open to including partisan gerrymandering in an amendment, recognizing that there are tradeoffs.
Getting from here to there. In the end, a push for a constitutional amendment needs to dream big but start small. As Cain helpfully adds: “If we take the laboratories of democracy concept seriously, we should work out the kinks of the reform agenda at the state level, and then scale up to the national level.”
Cain uses this point to argue against constitutionalizing voting rights (“Imposing national reform on a divided electorate is just a pathway to more reform controversy and electoral paranoia”), but his approach would mean we are least likely to get voting reform where we need it the most. But a push for a national amendment has to start somewhere, and starting in the states would have the benefit not only of working out the kinks, but also of showing skeptical voters in other states that democracy-enhancing measures would not mean the end of efforts at election integrity.
In the end, the push for a constitutional right to vote would achieve the promise of equality going back as far as the Declaration of Independence but far from realized in this country. As Zhang puts it, if such an amendment passes we should be “more excited for what having such an amendment would memorialize: that enough people cared about the right to vote so much as to perform a veritable political feat to protect it.”