“If you weren’t a white man with property in 1789, the year the Constitution was ratified, your chances of being able to vote in any U.S. election were slim.” This shocking statement reflects the legal flaws plaguing American democracy regarding the organization of voting rights for citizens across various U.S. elections, including presidential elections. Particularly, this right is not regulated by the U.S. Constitution but is left to individual states to determine their own voting rules for the House and Senate elections. As a result, a large number of American citizens are either denied the right to vote or face significant barriers to participating in the electoral process.
In this context, Richard L. Hasen, director of the Safeguarding Democracy Project at the University of California School of Law, addresses these issues in his book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. The book examines how various groups of American citizens—such as military personnel, women, African Americans, felons, and others—have historically been deprived of the right to vote. Drawing from interviews with people from diverse segments of society, Hasen proposes a solution: the passage of a constitutional amendment that would enshrine the right to vote, thereby strengthening American democracy.
Voting Wars
Over the years, the U.S. Constitution has undergone several amendments related to elections, such as the abolition of voting restrictions based on race, gender, and age for those over 18 years old. The Supreme Court has relied on these amendments to expand voting rights for citizens, often linked to the broader civil rights movement.
However, the political context in the U.S. has negatively impacted elections due to various factors, particularly intense party conflicts. These have prioritized power struggles over convincing voters of candidates’ merit. Even accessing the ballot box has become a battleground for sharp political clashes, a phenomenon Hasen calls “voting wars.” These wars often end up in court because the voting regulations in the U.S. do not sufficiently protect voters’ rights to participate in elections.
Hasen highlights the ongoing conflicts between the Republican and Democratic parties, both before and after elections, over voting rules (where voting takes place, who can vote, whether voters need to present identification). These conflicts are especially fierce when election results are close, prompting supporters of both parties to demand the disqualification of certain votes to tilt the outcome in favor of their candidate. This reflects the absence of strict and clear rules governing the right to vote.
Disenfranchised Voters
According to Hasen, several key obstacles hinder citizens’ right to vote. These barriers include restrictive state laws that make it difficult to access polling stations, discrimination against targeted groups, intentional mismanagement of elections, and false claims of fraud. Additional obstacles include:
- Most U.S. states require voters to register up to a month before Election Day to cast their ballots. As a result, in 2008, approximately six million eligible voters were unable to vote due to difficulties with registration requirements. Most of these disenfranchised voters were poor, marginalized, or uneducated. While U.S. courts have accepted states’ claims that pre-registration is necessary for organized elections and to prove a voter’s residency, eight states allow voters to register on Election Day, and two more allow same-day registration. In North Dakota, voter registration is not required at all, suggesting that lengthy pre-registration is unnecessary.
- Some laws require voters to present up-to-date photo identification to vote, which has prevented large numbers of citizens, particularly the poor and minorities, from participating. The Supreme Court upheld Indiana’s voter ID law in 2008, citing the state’s interest in protecting voter identity.
- Holding elections on Tuesdays imposes a burden on those unable to adjust their schedules for Election Day. For instance, during the 2020 elections, which coincided with the COVID-19 pandemic, Native Americans living on reservations found it difficult to vote. Even “early voting” by mail or at designated polling sites became a point of partisan debate. Democrats support early voting, while Republicans, led by Donald Trump, claim it is vulnerable to widespread fraud.
- Voters are often forced to wait in lines for up to eight hours to cast their ballots, a violation of the state’s constitutional obligation to ensure individuals’ right to vote.
- Laws preventing convicted felons from voting also need reconsideration. Approximately six million Americans are disenfranchised, including four million who have completed their sentences.
- More than one in five African Americans are barred from voting in several states, reflecting racial discrimination.
- Millions of Americans living in territories like Washington, D.C., Puerto Rico, and other U.S. territories are denied the right to vote in presidential elections and do not have any congressional representation.
Hasen argues that most voting regulations in the U.S. are driven by partisan interests. There is constant tension between the two main parties regarding the necessary measures to resolve issues related to voter registration, identification, and the broader competition for political power.
The Role of Democratic Movements
There is a “democratic movement” in the U.S. made up of citizens focused on improving the performance of American democracy, including its systems, procedures, and laws. These individuals and organizations dedicate their efforts to addressing various voting rights issues, such as changing registration requirements, eliminating voter ID laws, expanding early voting, and implementing other reforms to strengthen democracy. However, few advocate openly for a constitutional amendment, as some democratic movement supporters believe acknowledging this constitutional deficiency weakens their reliance on the implicit “right to vote” in legal arguments. Others see the fight for a constitutional amendment as a waste of time and money—an argument Hasen rejects.
Hasen calls for the clear need to pass a constitutional amendment granting citizens full voting rights without discrimination based on race, color, or any other factor. He even offers a draft proposal for the amendment, including provisions such as “the right of U.S. citizens to vote in any primary or other election for the offices of President or Vice President…shall not be denied or abridged by the United States or any state.” Hasen leaves some issues, such as felon voting rights and full voting rights for residents of U.S. territories, to legislators to decide.
With an optimistic outlook, Hasen points to the historical example of the Equal Rights Amendment (ERA), a proposed amendment to the U.S. Constitution intended to guarantee equal legal rights for all Americans regardless of gender. Although it took 40 years and was never fully ratified, it gave the emerging women’s rights movement a clear goal and fueled national conversations on equality and the rights of all people. Through state and federal laws, women achieved many of the ERA’s objectives. Similarly, Hasen believes that pursuing a constitutional amendment for voting rights, while difficult, is not impossible and is worth the effort.
Hasen also outlines the positive outcomes expected from such an amendment, beyond just voting rights. For example, it could limit the influence of money in politics since, under current Supreme Court rulings, individuals and corporations are allowed to spend unlimited amounts to influence elections.
Another positive outcome would be halting what Hasen calls “election sabotage,” where both parties exchange accusations of fraud, manipulation, or other misconduct after U.S. presidential elections. These accusations, which often end up in the press or courtrooms, have become common in recent American elections. From Hasen’s perspective, a constitutional right to vote would not only protect voters’ fundamental rights but also address systemic electoral issues that have tarnished the U.S.’s reputation as a global leader in democracy.
Hasen concludes that the proposed amendment would make voting easier while making fraud and manipulation more difficult. It would also simplify voter tracking, reduce electoral litigation, and make it harder to undermine U.S. election results.
In summary, Hasen’s book advocates for passing a constitutional amendment ensuring nearly equal voting rights for all adult U.S. residents. This would strengthen American democracy, reduce partisan conflict, and address the deep political polarization that has frequently undermined the electoral process and tarnished the image of American democracy. Though the path to such an amendment is challenging, Hasen argues that it is worth the fight.
Source:
Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).
