A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy

by Richard L. Hasen, Daniel Henning (reader)

Throughout history, too many Americans have been disenfranchised or faced needless barriers to vote. Part of the blame falls on the Constitution, which does not contain an affirmative right to vote. The Supreme Court has made matters worse by failing to protect voting rights and limiting Congress's ability to do so. The time has come for voters to take action and push for an amendment to the Constitution that would guarantee this right for all.

Drawing on troubling stories of state attempts to disenfranchise military voters, women, African Americans, students, former felons, Native Americans, and others, Richard Hasen argues that American democracy can and should do better in assuring that all eligible voters can cast a meaningful vote that will be fairly counted. He shows how a constitutional right to vote can deescalate voting wars between political parties that lead to endless rounds of litigation and undermine voter confidence in elections, and can safeguard democracy against dangerous attempts at election subversion.

The path to a constitutional amendment is undoubtedly hard, especially in these polarized times. A Real Right to Vote explains what's in it for conservatives who have resisted voting reform, and reveals how the pursuit of an amendment can yield tangible dividends for democracy long before ratification.

Genres: Politics, Nonfiction, History, Philosophy, Law

Audio CD

Published February 20, 2024

About the author

Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. In 2013 he was named one of the 100 most influential lawyers in America by the National Law Journal, and his previous books include Voting Wars, Plutocrats United, and The Justice of Contradictions. He lives in Studio City, CA.

Reviews

[Mary · Rating 5 out of 5]

The subtitle of this 2024 book is How a Constitutional Amendment Can Safeguard American Democracy. The author, Richard Hasen, is a legal scholar at UCLA and a recognized expert in election law and campaign finance reform. Professor Hasen lays out his reasons for why it's time to enshrine voting rights in the US Constitution.

Intro: Why We Need a Real Right to Vote

America has a long history of disenfranchising prospective voters. Until passage of the 19th Amendment, women were not allowed to vote in many states. Today, many classes of citizens are prevented from voting by state laws: transgender persons facing gender identity obstacles, persons not having specific forms of identification, individuals not in protected classes in emergency situations (such as the pandemic), courts unwilling to ensure robust protections of voting rights, partisan state legislatures blocking disfavored minorities through barriers to registration and voting, insufficient funding for election administration. The current highly polarized partisan environment incentivizes as much election litigation as possible.

Chap. 1: Courts Are Not Enough

Voting rights were extended by the 14th (equal protection), 15th (barring racial discrimination), 17th (direct election of Senators), 19th (women's sufferage), 23rd (DC electors), 24th (barring poll taxes), and 26th (voting age lowered to 18) Amendments, and an expansive reading of the Equal Protection Clause by the Warren Court in the 1950's and 1960's to citizen, adult, resident, nonfelons. However since then voting rights have been systematically under attack in cases such as Shelby County vs. Holder, where the Supreme Court showed a willingness to not treat Congress as a coequal branch by seriously downgrading Congress's power to pass laws to protect voting rights. A more direct approach is needed to establish and protect full enfranchisement.

Chap. 2: An Amendment for Political Equals

Exclusion of residents from voting, such as Texas' opposition to military and student voters, should be illegimate as states should not be allowed to block people based on how they might vote. This is a principle of political equality which can only be protected with a constitutional amendment. Texas remains one of the few states that does not accept student identification as permissible identification to register to vote and thus places special burdens on student voting. For example, students in Waller County, Texas, are repeatedly harassed and blocked from registering to vote. A constitutional amendment establishing political equality through universal suffrage would require mechanisms for conducting and implementing elections. Hasen proposes 6 basic elements for a constitutional amendment:
(1) establish a guarantee of the right to vote and to have that vote fairly and accurately counted,
(2) all votes in any election will be equally weighted,
(3) all voters will be automatically registered to vote and be assigned a national voter identification number,
(4) states must provide equal and not unduly burdensome voting opportunities for all voters,
(5) voters must have a fair opportunity to participate in the political process and to elect representatives of their choice, and
(6) Congress has broad power to protect voting rights

Chap. 3: Expanding the Right to Vote

There are legitimate questions surrounding voting rights which should be debated more fully, such as whether to enfranchise children and those who lack mental capacity. Some of these decisions should be left to local jurisdictions as it pertains to local elections. There are also serious proposals to enfranchise residents of US territories such as Puerto Rico, whether to enfranchise felons, and whether the Electoral College should be eliminated. The Electoral College system has created major democratic problems, particularly in the Senate.

Chap. 4: Deescalating the Voting Wars

The problems of voting during the pandemic exposed barriers for some voters that some states would not accommodate. This resulted in a surge of litigation and harsh criticisms of alleged voter fraud by then-President Donald Trump. Native Americans in particular faced long distances and discriminatory laws in order to register and vote, particularly in states like Nevada, North Dakota, and Indiana which seek to suppress Indian voting. In the case of Brnovich v. Democratic National Committee, the Supreme Court ruled against Native American voters in Arizona who faced extreme voting barriers and overturned minority voting rights in Section 2 of the Voting Rights Act. All of these situations resulted in massive amounts of litigation. Election litigation has nearly tripled since the 2000 decision in Bush v. Gore. Passage of a constitutional amendment would greatly reduce this litigation by mooting most of the disputes over election rules.

Chap. 5: Safeguarding Democracy

The actions and rhetoric of Donald Trump have greatly reduced trust in the US electoral system, particularly among Republicans, although none of the election fraud litigation advanced by his campaign in 2020 revealed any evidence of fraud. Trump's attempt at election subversion has exposed real dangers to the current election system. It is a system that is vulnerable to manipulation by bad actors such as Trump and his enablers. A constitutional amendment would go a long way towards protecting democracy in the future. In the meantime, Trump has been indicted by the DOJ for conspiracies to subvert the 2020 election and indicted in Fulton County, Georgia, for crimes in trying to steal the election. Over a thousand individuals have plead guilty or been convicted of crimes related to an attempted coup at the US Capitol on January 6, 2021. Congress has also released an 845-page report on Trump's attempted subversion of the 2020 election and passed a set of fixes to the Electoral Count Act in December 2022. A constitutional amendment would provide even more protections for voters and safeguards against election subversion. If the amendment included Electoral College reform, it would increase election integrity even more.

Chap. 6: How to Get a Real Right to Vote

Constitutional amendments guaranteeing a right to vote have been proposed several times over the years but none have yet been seriously considered by Congress. However interest in an amendment establishing an affirmative right to vote continues to be discussed among politicians and scholars, especially in light of the recent "voting wars." However there continues to be no support for election reform among Republicans, although there is no evidence that they always benefit from low turnout elections. Although Hasen would prefer national nonpartisan election administration, he recognizes that it is a nonstarter in the current political climate. Statutory reform of voting rights could be passed if the Senate filibuster rule was changed but an amendment would be considerably better.

[The main text ends at page 153 (50%) followed by an Appendix: Draft Versions of Constitutional Amendment Affirmatively Protecting the Right to Vote and supporting Notes.]

This is a thoughtful and comprehensive analysis of the issues surrounding proposed guarantee of an affirmative right to vote. While I agree with the author that hyperpartisanship currently prevents passage of such a constitutional amendment in Congress, it also seems reasonable to pursue right to vote legislation at the state level and to engage voters across the country in a long-term campaign to raise awareness and support for an amendment at some point in the (distant?) future.

[There appears to be an error in the text on page 139. "To begin with, Republicans have proceeded along the incorrect premise that lower turnout necessarily hurts their electoral chances." The word "hurts" should probably be "helps".]

[MM Suarez · Rating 4 out of 5]

"The promise of equality contained in the Declaration of Independence and the constitution has not been enough. This country needs to live up to its ideals and join other modern democratic countries in affirmatively protecting the right to vote."

This book is about a proposed constitutional amendment providing an affirmative right to vote and it is definitely aspirational, it is a short read, about half of it is the actual book and the rest of it are the Appendix Draft Versions of a Constitutional Amendment, Index and extensive Notes. I found it very interesting even if I am not in total agreement with all of the suggestions for the amendment, I definitely agree that we need one because obviously what we're doing is not working. I found the author's positivity endearing, but you have to ask yourself, with a non- functional Congress that can't even pass the salt at a luncheon, the idea that they will pass a constitutional amendment providing an affirmative right to vote is downright delusional, but hey, hope springs eternal and all that.

[Steff Fox · Rating 5 out of 5]

You don’t have to agree with every single suggestion or idea in this book to understand how deeply important it is. We need comprehensive, well-thought reforms to our voting system so we can prevent the horrible fixing and disenfranchisement that so many have been unfairly subjected to, especially in recent years.

I did not agree with every idea and suggestion that was presented, but I agreed with the fundamental message that everyone should have an easier path toward voting and absolutely no one should have the right or ability to prevent people from voting and having their vote count.

This is 100% a must read for everyone living in the United States of America. Period.

I received a copy of this book from NetGalley in exchange for an honest review.

[Kathryn · Rating 5 out of 5]

I finished reading this book today, which I had heard about on NPR some time back; the author makes a very good case that there should be an Amendment to the Constitution mandating that all citizen, adult, resident, and nonfelons of the United States should have the right to vote in all elections.

In an introduction and six chapters, the author outlines situations in relatively modern times when people were denied the right to vote. The courts have been whittling away at voting rights; in 2013, the Supreme Court struck down a key part of the Voting Rights Act, which allowed states to begin changing their voting laws without procedural protections in place. In Texas, there have been efforts to not allow college students to vote, even if they are resident in and working in or near the college town, and during Covid, there was a case noting that Texas only allowed those over sixty-five years of age to vote by mail. In Florida, there have been roadblocks to allowing those who have served their time in prison to vote, and while the District of Columbia and Puerto Rico each possess a non-voting Representative, they have no Senators, and no Electoral College Votes. There is a chapter on the efforts during the 2020 election to imply massive voting fraud, when such was demonstrably not the case. In some states with large Native American reservations, it is difficult to get to a post office from areas within the reservations, much less to a polling place. An appendix to the book has sample language for an Amendment giving the right to vote, along with language if one wants to also include in such an Amendment the inclusion of a ban on felon disenfranchisement, the inclusion of voters in United States Territories to vote for President, the Elimination of the Electoral College, and Changing the Composition of the United States Senate.

I believe that there is a need for an amendment allowing each citizen, adult, resident, and nonfelon of the United States the absolute right to vote; as an educated white woman in SouthWestCentral Louisiana, there is little chance that my vote could be taken away, but the future is always chancy.

[Daniel Mala · Rating 4 out of 5]

I like that there is a lot of thought going into the idea of amending the constitution to attempt to actualize this country into a true democratic republic. Clearly we are far from that standard. This is an ongoing problem that was baked into the Constitution at its inception to pacify some white slave holders into going along with the plan. Now we’re stuck with unequal representation in all three branches and the minority that has extra representation is doing its unlevel best to gain more and more control. The problem is so well characterized it’s just sad that we are stuck trying to use a broken constitution’s rules to fix a broken constitution. Might need to move to a constitutional convention, but more likely we’ll end up in a second civil war if this lack of equal representation isn’t rectified. Cheers!

[Kevin Parkinson · Rating 5 out of 5]

The last amendment to the Constitution took affect in 1992. That amendment was originally proposed in 1789 (alongside the Bill of Rights) and sat unratified for more than 200 years before enough states approved it. Before that, the last amendment was in 1971, which was before the majority of Americans was alive. Time for a new amendment, huh?

And: While there are several good contenders, this book makes an exceptional argument for a positive right to vote, which - surprisingly - does not currently exist in the Constitution.

It started off a little slow, but got better and better and you read. I highly recommend it.

[Alex Gruenenfelder · Rating 4 out of 5]

This is a relatively short and easy read, which makes the argument for a constitutional amendment affirming the right to vote. Based on the fact that the American Constitution does not include an explicit and affirmative right to vote, this is an issue that feels especially relevant over the past few years, history that is cataloged in detail by the author. Although I don't feel like this book's tone is so idealistic after the 2024 presidential election, it is still an actionable and detailed proposal with the facts to back it up, something that I greatly appreciate in reporting.

[Cheyenne · Rating 5 out of 5]

Thank you, NetGalley and RB Media for this audiobook for review. I really enjoyed this book. This author presented well research and extremely valid points in this book. It was actually surprising to me to hear that other countries had in their laws that their citizens were allowed to vote. We need to move to make this a reality and stop with the politics of voter fraud and tampering. Thank you you for this opportunity and information. The narrator for this audiobook was great.

[David · Rating 4 out of 5]

Sadly, our country has been in the business of coming up with ways to squelch the vote: non-landowners, slaves, minorities, students, criminals, former felons, and more. Hasen lays the groundwork for the legislature to combat this tragedy, and he should be applauded. One criticism is that I wish he would have had a chapter to push first at the local and state level because starting at the national level is rather daunting. Thanks to Netgalley for the audiobook to review.

[Cheryl · Rating 4 out of 5]

Did you know that the constitution doesn't give you a right to vote? Me neither.

This is a very informative and historic argument to add an amendment to the constitution to specify the right to vote. Assuming no amendments, the author proposes eliminating the electoral college plus giving felons who have served their time the right to vote. Actually, something like 35 states have already given felons the right to vote.

Important read. Very meaty.

[Andrew · Rating 4 out of 5]

I’m a big fan of Rick Hasen’s work and follow his Election Law Blog. He offers a solid argument for enshrining the right to vote in the Constitution here. I’m not sure I agree on some points (he advocates for felons getting the right to vote back after serving their sentence, with which I disagree) but he makes compelling arguments throughout the book.

[Charles · Rating 5 out of 5]

A thoughtful, well-reasoned argument for a constitutional amendment providing for an affirmative right to vote. The author addresses today's concerns from all parts of the political spectrum and why even advocating for the amendment despite its slim chances of passage/ratification in today's polarized environment will result in a stronger democracy.

[Patrick]

Felt like I “should” read this but I’m not the right audience. It’s very 1L and the author’s prescriptive part can be summarized briefly. Good survey intro though.

[Carolyn · Rating 5 out of 5]

This is an important book. It’s well written and Dr Hasen answered all of my questions by the end.

[Leah Stephanow · Rating 5 out of 5]

Everyone needs to read this book then get to work on pushing for a constitutional right to vote amendment. If you care about voting rights, read this book.

[Bill Dauster · Rating 4 out of 5]

A dry, lawyerly exposition of an important idea--that we could use a Constitutional amendment to guarantee the right to vote

[Nic Carter · Rating 5 out of 5]

Editing later Forsure

[Susan Bivins · Rating 4 out of 5]

Every chapter made me angry.

[Kelli]

I do wonder how many Trump voters would have still voted for him after they had read chapter 5.