About 66 percent of eligible voters cast ballots in 2020, the highest percentage since 1900. In 2022, 46 percent of eligible voters turned out, the largest percentage in a midterm election in more than 50 years.
But the United States still lags far behind most countries with relatively well-developed economies and democratic traditions. In a recent study of 50 such nations, our country ranked 31st, between Colombia and Greece, and far behind the United Kingdom, Canada, New Zealand and Germany.
Numerous factors explain why so many Americans do not vote. Unlike most countries, elections in the U.S. are held on Tuesday (not Sunday or a federal holiday), when tens of millions of eligible voters are at work. Dozens of states require approved documentation that voters are who they say they are, a challenge that falls disproportionately on urban areas, poor people, people of color, college students, people without drivers’ licenses and Indigenous people who live on reservations and do not have a residential address. Many states limit the number of polling places, drop boxes and early voting days; restrict eligibility to cast ballots by mail; and make it difficult for people who have moved within the state during an election year to register in their new district.
In the new book “A Real Right to Vote,” Richard L. Hasen, a professor of law and political science at UCLA specializing in election law, makes a compelling case for a constitutional amendment that protects and promotes the right to vote. His book — published in an election year characterized by deep divisions over voter suppression, allegations of fraud, and threats to democracy — should command the attention of all Americans.
The U.S. Constitution, Hasen reminds us, did not guarantee anyone a right to vote in 1787. For decades, with few exceptions, only property-owning white males could cast ballots. Subsequent amendments, of course, extended voting rights to African Americans and women. But unlike, for example, the Canadian Charter of Rights and Freedoms or the Basic Law of the Federal Republic of Germany, our Constitution does not expressly affirm a right to vote.
Hasen endorses a “basic” amendment to the Constitution that he believes would increase turnout, make elections more secure and reduce litigation over them. To increase support from Republicans, independents and supporters of states’ rights, his amendment does not include national nonpartisan administration of elections, an end to the Electoral College, re-enfranchising former felons or granting voting rights to citizens in U.S. territories.
The six-paragraph draft amendment has the following features:
1. “Notwithstanding Article II or any other provisions of this Constitution, all citizen, adult, resident non-felons of the United States shall have the right to vote in all elections for federal, state and local offices within their residential areas …” In addition to empowering individuals to claim their constitutional rights were violated, this provision, while keeping the Electoral College in place, prohibits state legislators from bypassing the popular vote and appointing presidential electors directly.
2. Except for the weighting of electors in each state, mandated under Article II for choosing a president and vice president, all “votes shall be substantially equally weighted.” This provision would enshrine the Supreme Court’s “one person, one vote” decision in Reynolds v. Sims (1964) and render partisan gerrymandering unconstitutional.
3. “States shall create and maintain a system to automatically register all eligible individuals to vote” and provide them “with a unique individual identification number that may be used for registration purposes” — perhaps a thumbprint or other reliable biometric method. This provision, used in many European countries, would make registration much easier and reduce disputes over votes by non-residents, double voting and votes allegedly cast by dead people.
4. “States must provide equal and not unduly burdensome voting opportunities” for voters in all elections. This necessarily general provision, to be adjudicated by courts under the doctrine of “strict scrutiny,” might mean, for example, that waiting time in urban and rural polling stations should be roughly the same and should not exceed, say, 30 minutes.
5. “Voting rules with a disparate impact on minority voters are presumptively unconstitutional …” This provision would ensure that Section 2 of the Voting Rights Act could not be eviscerated by the Supreme Court because five or more justices deem it race conscious, and therefore in violation of the Equal Rights Clause of the 14th Amendment.
6. “Congress shall have broad powers to protect voting rights under this Amendment” by “appropriate legislation.” This provision would enhance Congress’s power to intervene, when necessary and appropriate, if states are not adequately protecting and promoting voting rights.
Hasen acknowledges that because Republican politicians fear that such an amendment would increase the turnout of Democratic voters, it is unlikely to pass Congress in the foreseeable future, let alone be ratified by the requisite three-quarters of the states. That said, he argues that introducing it may well educate Americans across the ideological spectrum about fundamental flaws in our democracy, energizing them to join reform movements advocating independent redistricting commissions, nonpartisan election bureaucracies and amendments to state constitutions.
“We need to roll up our sleeves and get to work,” Hasen concludes. “Our democracy is not going to protect itself.”
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University.
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