Heather Gerken on a Federal Right To Vote: “Not Worth the Candle”

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[Image courtesy of boldnebraska]

Yale Law School’s Heather Gerken has a new paper examining the right to vote in federal elections, and while she’s in favor of the change in principle, she worries about what it would look like in practice – especially legal practice – and so she concludes it likely isn’t “worth the candle.”

Here’s what she said on Rick Hasen’s Election Law Blog yesterday:

The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote. I’m entirely in favor of a constitutional right to vote. But I’m against amending the Constitution to add it. There are excellent scholars and organizations in favor of amendment, including Jaimie Raskin, Alex Keyssar, the Advancement Project, and FairVote. But I remain skeptical and have a new paper explaining why I fear that the amendment game is not worth the candle.

There are two stages for ensuring a robust right to vote: (1) amending the Constitution, and (2) enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2).

Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms.

The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2.

If I had a magic wand, I’d wave it in order to add the right to vote to the Constitution. As I noted in my paper, there are lots of reasons to value it. But magic wands are in short supply, as are the political resources needed to pass an amendment. Given the challenges involved in getting it passed and, more importantly, robustly enforced, it makes more sense to pour those resources into more discrete reform projects going forward.

Heather’s paper is an excellent – and very readable – look at an important issue. I agree with her that a constitutional right to vote is attractive in the abstract but deeply problematic once you begin to sketch out (let alone fill in) the details.

Thanks again to Heather – that rare law professor who makes things clearer! – for making such an important issue accessible to everyone in the field. I’m adding it to my short list of “things you should read” for anyone interested in the big issue in the field of election administration.

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