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Guest Essay
By Richard L. Hasen
Mr. Hasen is the author of several books about elections and democracy, including “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.”
The history of voting in the United States shows the high costs of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.
Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”
As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.
The framers were skeptical of universal voting. The original U.S. Constitution provided for voting only for the House of Representatives, not for the Senate or the presidency, leaving voter qualifications for House elections to the states. Later amendments framed voting protections in the negative: If there’s going to be an election, a state may not discriminate on the basis of race (15th Amendment), gender (19th Amendment) or status as an 18-to-20-year old (26th Amendment).
Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections.
Some people think erroneously of the Supreme Court as a broad protector of voting rights, expanding them well beyond the text of the Constitution. Consider first the case of Sgt. Herbert N. Carrington, one of the lucky few whose right to vote the court protected. In 1946 he enlisted in the Army at age 18 in his home state, Alabama. When he was transferred in 1962 to White Sands, N.M., he moved with his family to nearby El Paso. Yet when he tried to register to vote in the Republican Party primary in Texas, he was surprised to learn he was ineligible. The state Constitution prohibited military members who were not Texas residents before joining the service from voting there.
Mr. Carrington sued directly at the Texas Supreme Court in 1964, arguing, among other things, that his disenfranchisement violated the equal protection clause of the 14th Amendment, a provision barring states from denying “any person within its jurisdiction the equal protection of the laws.” When the case made it to the U.S. Supreme Court, Texas defended its Constitution, contending that it had “a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community.”
The Supreme Court disagreed, striking down the Texas provision in the 1965 Carrington v. Rash case. The right to vote, the court wrote in a key part of its 7-to-1 opinion, “cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents.” Justice John Marshall Harlan, dissenting alone, argued that the equal protection clause was “not intended to touch state electoral matters.”
It is hard to overstate how unusual it was for Mr. Carrington to get the Supreme Court to strike down his disenfranchisement. His lawsuit came during the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.
Mr. Carrington fared better than many others who previously brought their claims of disenfranchisement to the Supreme Court, including most importantly Virginia Minor and Jackson W. Giles. Their cases perpetuated the disenfranchisement of millions of women and African American voters despite constitutional amendments that appeared to protect their rights.
Ms. Minor was a white Missouri woman who argued to the Supreme Court in 1874 that the 14th Amendment gave her the right to vote as a citizen that Missouri denied to her because of her gender. The all-male Supreme Court in Minor v. Happersett held that voting was a matter of state law, not a privilege or immunity of citizenship protected by the U.S. Constitution.
Mr. Giles was a Black man from Alabama who argued to the court in 1903 that his state was unconstitutionally denying him the right to vote because he was Black, despite the passage of the 15th Amendment, ratified in the wake of the Civil War, barring race discrimination in voting. In Giles v. Harris, a majority of the justices on the all-white Supreme Court held it could not grant relief to Mr. Giles, in part because it would be impossible for courts to enforce a rule requiring Alabama to register African American voters and allow them to vote.
It was not until the passage of the 19th Amendment in 1920 that women gained the right to vote nationally. And it was not until the passage of the Voting Rights Act in 1965 — passed under Congress’s power to enforce the 15th Amendment — that the federal government began to enfranchise African American and other minority voters effectively. More recently, in 2013’s Shelby County v. Holder, the Supreme Court limited Congress’s ability to pass strong voting laws like the preclearance section of the Voting Rights Act.
Since the passage of the 15th Amendment, voting rights proponents have argued that the lack of an affirmative right to vote in the Constitution is a fatal flaw, a point I first acknowledged on these pages in 2020. Since then, it’s become clear that three American voting pathologies have emerged from the lack of an affirmative right to vote in the U.S. Constitution.
First, states sometimes limit the franchise or put barriers in front of eligible voters, like onerous residency requirements or strict voter identification laws. Occasionally that effort is ideological, as when Texas worried about military voters swamping the power of longtime local residents. Often, voting restrictions are an effort to shape the universe of those who vote. Although both parties have played this game over time, today it is mostly Republican-led states that seek to limit the franchise, out of a belief that lower turnout, especially among those they expect to vote for Democrats, helps Republicans.
That belief about overall turnout is apparently false. In the most comprehensive study of the question of the relationship between voter turnout and partisan outcomes, the political scientists Daron Shaw and John Petrocik debunked the claim that low turnout necessarily helps Democrats and hurts Republicans.
Furthermore, trying to selectively lower turnout among likely Democratic voters can backfire. The past few elections demonstrated that discouraging Republican voters from voting early or by mail can hurt their electoral chances. Some Republican leaders have encouraged easier access to voting, recognizing that making voting harder can be self-defeating, especially with the Republican Party in transition, making new appeals to poorer, working-class voters. If enough Republicans could be persuaded that increasing turnout is in their interest or at least that increased turnout is not necessarily harmful, they might want to join with Democrats, who generally want to make voting easier, to support an amendment guaranteeing the right to vote.
The second pathology is an explosion of election litigation and uncertainty about election rules. Each year states and localities pass new voting rules, and those voting rules often get challenged in court, with mixed success. The amount of election litigation has nearly tripled since the disputed 2000 election. An affirmative right to vote in the Constitution could de-escalate the voting wars and decrease the amount of election litigation by simultaneously protecting voter access and ensuring election integrity.
An amendment would have to be written clearly enough that it would be hard for the Supreme Court to ignore its commands (and continue to thwart voter protections), and it would have to enhance Congress’s powers to protect voters if the Supreme Court continued to resist. A system of automatic voter registration coupled with a means of identifying all voters in the country could minimize the need for litigation, ensure that all eligible voters would be able to cast a valid vote and deter election fraud by those few who exploit the current system. And it would do so without mandating a federal takeover of the election process.
The third pathology is the risk of election subversion. An explicit guarantee of the right to vote for president would moot any attempt to get state legislatures to override the voters’ choice for president through the appointment of alternative slates of electors, as Donald Trump and his allies tried to do after the 2020 election. Rules that guarantee not only the right to vote but also the right to have that vote fairly and accurately counted would provide a basis for going after election officials who sought to disrupt the integrity of election systems. Leaks of voting system software or an administrator’s lack of transparency in counting ballots could become constitutional violations.
It might seem anachronistic today that a conservative state like Texas would seek to disenfranchise military voters. But the Carrington example shows that no community’s voting rights are safe from the whims of state legislatures and often have depended on the grace of the courts. It’s an odd way to run a republic in which citizens are supposed to have an equal right to vote.
Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Los Angeles, and the author of “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy,” from which this essay is adapted.
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