A six-point checklist
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.
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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.
With a Court that not only fails to protect voting rights on its own but that could also well stymie congressional efforts to provide that protection via ordinary legislation, Americans need a more direct path toward full enfranchisement: The time has come to add an amendment to the U.S. Constitution affirmatively protecting the right to vote. Voters in the United States can no longer depend on the negative protections of voting rights in the Constitution itself, or the Supreme Court’s interpretation of those rights, or Congress’s attempts to protect those rights when it is subject to what is essentially a Supreme Court veto.
Since the 1860s, voting-rights proponents have periodically suggested adding an affirmative right to vote to the Constitution, but these efforts have gone nowhere. More recently, some have thought such an amendment unnecessary. For a brief period in the 1960s, during the heyday of the Warren Court, the Supreme Court more boldly protected voting rights through a generous interpretation of the Fourteenth Amendment’s equal-protection clause. But that was decades ago, and efforts to expand voting rights in this direction have hit a brick wall at the conservative Supreme Court; indeed, some of the Warren Court voting-rights protections could soon be in danger. For this reason, it’s time to renew suggestions for a popular movement to protect the right to vote in the Constitution.
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.
By using the term “basic,” I do not mean to suggest that such a right embodied in the Constitution would be small, or inconsequential, or easily evaded. To the contrary, passage and ratification of the basic version of the amendment would be a monumental accomplishment that would profoundly change the nature of voting rights and elections in the United States.
A basic constitutional right to vote should have these six elements:
The first provision of my proposed amendment is the most fundamental. It would guarantee the right of citizen, adult, resident non-felons to vote and to have that vote fairly and accurately counted. This provision would apply to all elections, federal, state, and local, including those for president and vice president. No longer could state legislatures threaten to take away the people’s right to vote for president.
This would be the first time an explicit, positive right to vote would be part of the Constitution. As we have seen, the Constitution generally frames voting rights in the negative and prohibits discrimination in voting on the basis of such prohibited categories as race. This new amendment, in essence, would codify the Warren Court–era rulings recognizing the right to vote as fundamental for this class of voters and would lock it in so that a hostile Supreme Court cannot continue to water down voting rights.
This provision would explicitly embed in the Constitution the Warren Court’s one-person, one-vote principle. It is necessary, despite rulings such as Reynolds v. Sims, because a future Supreme Court could overrule those cases and determine that the original public meaning of the equal-protection clause of the Fourteenth Amendment (or Article I as applied to congressional elections) does not require the drawing of districts with roughly equal populations.
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States and local governments would not have the power to create systems of their own, analogous to the Senate, in which each state is entitled to two senators regardless of population. Nor could states design other means of dividing voting power that give more voting power to some voters over others.
The provision would carve out voting for president and vice president, which the Constitution has always required to be conducted on a state-by-state basis through the Electoral College. That system weights the votes of voters in states with smaller populations as greater than those of voters in states with large populations. However, within each state, the votes for president must be equally weighted. The provision does not require an explicit carve-out for Senate elections, because Senate elections are conducted statewide, not in districts.
This provision helps implement the right to an equal vote. Voter registration and identification requirements are among the biggest sources of dispute in current election litigation. By making the government bear the burden and costs of registering all eligible voters and requiring the government to provide all eligible citizens with unique voter-identification numbers that would be used to help voters register across states and prevent double voting, elections may be run more securely with less litigation and greater voter confidence. And, of course, easing the path to voter registration promotes political equality by removing a hurdle from voters.
Some states may not want to set up the procedures for automatic voter registration and may prefer to leave the registration question to the federal government. States would have the option to set up their own system or leave it to the federal government. This means that the provision would not require a “federal takeover” of elections, as some conservatives fear.
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Democrats and those on the left have reflexively opposed all voter-identification provisions. But such laws are ubiquitous in most other democracies because they are coupled with voter registration conducted by the government (and often using national identity cards, which the United States does not produce).
The real objection to these provisions as they have been implemented in the states is that they have put the onus on voters to get the right form of identification, which places an undue burden on certain people, such as students, poor voters, and others. Under the amendment, the government would take on all of those costs and burdens as part of the system of setting up automatic voter-registration systems. This will make the system work better across states (as people would have a single voter-identification number for their entire life, just as they have a single Social Security number) and ensure not only eased voter registration but also a more efficient and more secure voting system overall.
This provision addresses two substantive points and gives a set of instructions to the courts.
First, voters in a state must have roughly equal voting opportunities. This provision does not require states to have a certain number of days of early voting (or even require early voting at all). It does mean, for example, that if a state decides to have an early-voting period, the opportunity for voters must be roughly the same. Any burdens on voting are measured on a per capita, not a per county, basis. This means that people in urban and rural voting areas should have similar wait times to vote. That might lead to more hours for early-polling places in areas with higher populations compared with sparsely populated areas. The provision does not allow a state to assign just one early-voting place per county, which would put a bigger burden on voters in larger counties and give only the illusion of equality or uniformity.
Second, the provision requires that voting not be unduly burdensome on voters and that impediments to voting be reasonably necessary. This requirement should again be measured not by a specific number of early-voting days but by the overall ease with which voters may vote. These standards are unavoidably general, but they should be applied by courts using reasonableness and common sense in a way that favors the enfranchisement of and easy voting opportunities for eligible voters.
This provision would transform what currently appears as Section 2 of the Voting Rights Act into a constitutional guarantee of equal treatment. This provision is necessary because the Fourteenth and Fifteenth Amendments have not been properly interpreted by the Supreme Court to adequately protect voting rights, and because a very conservative Court could one day determine that the section in question, because it is race conscious, itself now violates the equal-protection clause of the Fourteenth Amendment. Despite strides toward greater political equality, too much discrimination in voting remains, especially against African American, Latino, Native American, and Asian voters, to leave the issue to a congressional statute that can be neutered by the Supreme Court.
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This constitutional provision would enshrine the original intent of Section 2 to provide meaningful protection for minority voters, rather than the watered-down version of the section that the Supreme Court has recently embraced.
This provision clarifies that when Congress acts under its powers to enforce voting rights, it is fully equal with the Supreme Court. Rather than treating Congress as an ordinary litigant that has to produce enough evidence to satisfy the Supreme Court, the Court must accept congressional legislation protecting voting rights so long as it is rationally related to Congress’s purposes.
Looking across American history, the people, not the Supreme Court, have been the main protectors of voting rights. After the Supreme Court refused to recognize enslaved African Americans as citizens, and after the Civil War freed them, Congress passed and states ratified a series of amendments ending slavery, guaranteeing citizenship for those born in the United States, and barring discrimination in voting on the basis of race. After the Supreme Court refused to recognize equal voting rights for women, Congress passed and the states ratified the Nineteenth Amendment. So, too, with voting rights for 18-to-21-year-olds, and for the right of residents of Washington, D.C., to vote for president.
We can do it again, providing the American people with a real right to vote. It won’t solve all the problems with our election system, and it won’t happen tomorrow, but passing a right-to-vote amendment would go a long way toward ensuring greater enfranchisement, less litigation and uncertainty over voting rules, and a stronger democracy for all.
This essay has been adapted from Richard L. Hasen’s new book, A Real Right To Vote: How A Constitutional Amendment Can Safeguard American Democracy.
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