A Real Right to Vote: Richard L. Hasen
March 14th, 2024
“We're all political equals in this country; we should all have an equal ability to vote.”
Richard L. Hasen is Professor of Law and Political Science at UCLA and director of UCLA Law’s Safeguarding Democracy Project. We discuss his most recent book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.
A country that believes that its people are equal should ensure equal voting rights. However, the US Constitution does not currently protect the right to vote. All adult non-felon citizens should have a constitutional right to vote where they reside. That vote should be equally weighted and eligible voters should not face unnecessary burdens to voting. Furthermore, minority voters should have voter protection and Congress should have broad powers to protect voting rights. Even though the US has not enacted a constitutional amendment since the 1970s, Americans should start thinking about a movement toward passing a voting rights amendment with the expectation that it might take decades. Rick Hasen reminds us that “Nobody is coming to save American democracy. We have to do it ourselves, and people are stepping up.”
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Credits:
Host: Mila Atmos
Guest: Richard L. Hasen
Executive Producer: Mila Atmos
Producer: Zack Travis
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Rick Hasen '24 Transcript
Mila Atmos: [00:00:00] Thanks to Shopify for supporting future hindsight. Shopify is a platform designed for anyone to sell anywhere, giving entrepreneurs like us the resources once reserved for big business. Sign up for a $1 per month trial period at shopify.com/hopeful. All lowercase.
Mila Atmos: [00:00:24] Welcome to Future Hindsight, a podcast that takes big ideas about civic life and democracy and turns them into action items for you and me. I'm Mila Atmos.
It's 2024 and the future of America is in your hands. Democracy is not a spectator sport, so we are here to bring you an independent perspective about the election this year and empower you to change the status quo.
We are distracted by the theater of the courts, whether that's the large number of indictments against the presumptive Republican presidential candidate, the failed attempt by the state of Colorado to block him from the ballot, or the various other cases against insurrectionists across the country. Some would argue that the 2000 election of George W Bush set us on a path of increased court intervention, not just in election outcomes, but also in who gets to vote and who doesn't. Is it time to mount a campaign for a constitutional amendment for an affirmative right to vote? It's been suggested several times before, and of course, it was also suggested in the aftermath of Bush v Gore.
To look at why this idea is more relevant than ever, we're joined by Richard L. Hasen. He's a professor of law and political science at UCLA and director of UCLA Law's Safeguarding Democracy project. His most recent book is A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. He joined us in 2022 to discuss his book, Cheap Speech, and we're thrilled to have him with us again today.
Welcome back, Rick. Thank you for joining us.
Richard L. Hasen: [00:02:09] It's so great to be back with you.
Mila Atmos: [00:02:11] It's a great paradox that the United States, the so-called beacon of democracy in the world, does not have an affirmative right to vote enshrined in the Constitution. In fact, the US has a long history of anti-voter decisions in the courts. Perhaps this is not surprising in the current moment when the Supreme Court just put a Republican thumb on the scale of the election. But the court really has been largely anti- voter, with the exception of the brief interlude of the Warren Court in the 50s and 60s, usually with the same reason to protect states rights, although that's not what happened with the Colorado case. So to set the stage for the listener, what's a Supreme Court decision that encapsulates all that is wrong with not having an affirmative right to vote?
Richard L. Hasen: [00:02:58] Well, let's just define what I mean by an affirmative right to vote. And we can just look at other countries. If you look at Germany or you look at Canada, you look at their constitutions, it says something like, everyone over the age of 18 shall have the right to vote for the Parliament or whatever the relevant body is that's missing from our Constitution, and it's hurt us. I give two historical examples that affected hundreds of millions of people over time. One is a case called Minor versus Happersett. This is a case in 1874, a woman named Virginia Minor was a Missouri resident. She was a citizen. She was an adult. And she went to the Supreme Court and said, "I'm being disenfranchised by the state of Missouri because I'm a woman. But the 14th amendment, which had recently been ratified, guarantees all citizens the privileges or immunities of citizenship. I should be entitled to vote." And the Supreme Court said, "yes, it's true you're a citizen, but the right to vote is not something that's protected in the Constitution or even in the 14th amendment. That's up to the states." That was 1874. It took until 1920, when the US amended the Constitution to bar discrimination on the basis of gender in voting before we got equal voting rights for women.
Richard L. Hasen: [00:04:13] Another case that is even worse from this perspective is a 1903 case called Giles versus Harris. It involved a man named Jackson Giles, who was an adult citizen resident of the state of Alabama. He went to the Supreme Court and said back in the 1870s, Black voters were given the equal rights to vote in the 15th amendment, which bars discrimination in voting on the basis of race. Alabama is not letting me register because I'm Black and this is unconstitutional. The Supreme Court said, "yes, the 15th amendment does guarantee this right. But there's really nothing we can do to make Alabama have to comply with the provisions of the 15th amendment." So in both of these cases involving women and involving African Americans, the
position of the Supreme Court was not one that was leading on voting rights. It was actually, in the case of Giles, it was ignoring a part of the Constitution that people literally fought over. Right. The Civil War was fought over the end of slavery and the equal voting rights of Blacks, and the court was not willing to do anything about it.
Mila Atmos: [00:05:20] Well, you've been covering election laws for a long time now, and you've come to the conclusion that we really do need a constitutional amendment now. Now, of course, as I mentioned in the intro, and you also repeat this several times in the book, this is not an original idea. And you point just now to other constitutions around the world. And you just mentioned these cases, you know, because they said, basically we're political equals. And I feel like we need to understand that the basis for the amendment should be the concept of political equality. Tell us more about what political equality means when it comes to elections.
Richard L. Hasen: [00:05:56] Sure. I actually make three arguments as to why we need a constitutional amendment. And the first one, the the one that's the most central, is this idea of political equality. The other two are to lower the amount of election litigation and to make it harder to steal elections. But let's talk about political equality. So back in 1962, a man named Herbert Carrington was in the Army. He had been stationed in Alabama. He was relocated by the Army to White Sands, New Mexico. Moved to Texas nearby, and he wasn't allowed to vote in the Republican primary in Texas because he was in the military. You know, it might seem strange today that Texas would discriminate against military voters, but I think it's a good example to show that nobody's voting rights are safe unless there is protection from either the courts, or from the Constitution itself that says that in a nation where we believe that the people are equal, we have to have equal voting rights. It shouldn't be up to the state to decide who gets to vote, what the impediments might be to voting. We should start with the idea that the states need to give all eligible people the right to vote, and make it easy for them to vote, while still providing means to make sure that voting is being done with integrity. In the past, we've seen the courts uphold all kinds of discriminatory provisions. As recently as 1959, the Supreme Court, in a case called Lassiter, said that literacy tests don't violate the Constitution. And more recently, in 2000, in the Bush versus Gore case that ended the dispute over that year's presidential election in 2000, the Supreme Court reminded us that even though states had given to the people the right to vote for president, states could take it back and give that to the state. Legislatures at any time,
so we could be disenfranchised, all of us, from being able to vote for president. Kind of a remarkable statement. And we shouldn't have to rely upon kind of the grace of states to have our voting rights protected. We need something more durable, something that assures that, you know, whether you know how to read or write in English, whether you are in the military or you're a student or you live on a reservation, your voting rights should be the same.
Mila Atmos: [00:08:27] So tell us about the mechanism of a constitutional amendment. If our right to vote is affirmed in the Constitution, how does it actually protect us in a way that it isn't today?
Richard L. Hasen: [00:08:39] So we start with the idea that the Constitution doesn't provide any general right to vote when the original Constitution was enacted. There was no voting for president by the people. There was no voting for senators. We didn't get that till the beginning of the 20th century. In the 17th amendment, what's happened is over time, the Constitution has been amended to say, if you're going to hold an election, no discrimination on the basis of gender or on the basis of race, or on the basis of being 18 to 20 year olds or on the basis of a poll tax in a federal election. What a constitutional amendment would do would be to affirmatively say, if you fit into certain categories like you are a citizen and you're a resident of the area, you do have the right to vote for all offices in the area in which you live. So that would be for your local races, for your state races, and for the presidency. So it would change the part of the Constitution that might let state legislatures take back a right to choose the president directly. And it would in addition to enfranchising voters, it would say that votes have to be equally weighted. You know, I give this example to my students, have about 50 students in my class. I say, look, we're going to vote on the form of the final examination. You're each going to get one vote and I'm going to get 100 votes. You're all enfranchised. But because my votes are worth more, I'm the decider. So, so a right to vote wouldn't be worth very much unless we had equal voting. And then I go on in the amendment and do some more technical things. Because I don't trust the courts, I would limit how much the courts could interfere with Congress's expansion of voting rights. I would tell the courts how they need to balance the rights of voters against interests that a state might put forward in preventing fraud, or assuring that there's an efficient process. And in one of the key parts of the amendment, I would enshrine part of the Voting Rights Act in the Constitution. And this, again, is because I don't trust the Supreme Court to vigorously
enforce voting rights. We've seen a history of the Supreme Court striking down or limiting the scope of the Voting Rights Act. So putting it in the Constitution, protecting minority voters so that they have the same opportunities as other voters to participate in the political process and to elect representatives of their choice is really key if you're going to have a democracy where everyone has a fair shot of being able to elect their preferred candidates.
Mila Atmos: [00:11:01] Thanks for laying this out so thoroughly. One of the reasons to have a constitutional amendment is to break this vicious litigation cycle in which we find ourselves. And as everybody knows, we have been over the last few years, looking at the court to solve these sticky problems. But they're not really solving them. They're just actually grabbing power for themselves is really what it looks like, at least, you know, even for a lay person like myself. I'm not a lawyer. So how does a constitutional amendment break that cycle?
Richard L. Hasen: [00:11:31] So you're right that the Supreme Court especially reserves a lot of power in itself to make decisions about voting. In a key decision that the court issued at the end of last year, that I was just able to briefly discuss in my book, because my book was going to print at the time that the case came out, the Supreme Court put itself in a position to second guess the position of state legislatures when they enforce voting rights under state constitutions. Now, I should just tell you that ordinarily, the rule is that state supreme courts are the last word on the meaning of state constitutions. The US Supreme Court really shouldn't have anything to say about what a state constitution means. And yet the Supreme Court has put itself in a position in federal elections to second guess these states and the recent decision of the Supreme Court involving Trump's disqualification. This was a case where the Supreme Court not only decided that states don't have the power to disqualify someone under Section 3 of the 14th amendment for participating in insurrection. That part of that decision was unanimous, but the majority of the court went out of its way to say, we can second guess Congress if Congress chooses to disqualify a candidate from being president or being another federal office holder. So the courts have been putting themselves, and especially the Supreme Court, in the position to second guess decisions about democracy made by other participants, other political actors, in our process. So what can we do about it? The history of the Supreme Court, as we've already discussed, is one where the court has mostly been resistant to voting rights. And I think the answer is
to write a constitutional amendment in a way that is much more specific and much more directed at what courts can do than what we typically see. So take the 15th amendment. 15th amendment bars discrimination and voting on the basis of race. It's very short. It basically says the state can't discriminate on the basis of race, and it says Congress shall have the power to enforce this amendment by appropriate legislation. And that's it. My amendment, and you can see it, the proposed amendment in the back of the book, A Real Right to Vote. There's an appendix. I've got kind of a basic version, and I spell out some additional permutations in there. It's very specific, and some of the provisions are specifically directed to courts to say how they have to engage in balancing, how they have to defer to Congress. Now, there's never any guarantee. We see that the Supreme Court can do what it wants to do. But I want you to imagine a world which is very different than the world we're in right now, where we actually go through the process and amend the Constitution to protect voting rights. That means that we've had a popular movement to enhance voting rights in this country. In that kind of atmosphere, if the Supreme Court is going to continue to push back on the protection of voting rights, then that's time to go after the Supreme Court. And so I think we need to think of the Supreme Court as yet another political actor, and not some entity that stands above politics and is making decisions based upon neutral principles in some kind of vacuum, like, you know, like a bunch of sages who can determine wisdom from an oracle, right? I mean, this is not what we have. We have human beings. They put on a robe, they're still human beings. And they're making essentially political decisions in these cases.
Mila Atmos: [00:14:51] Um, so, well, how do we go after the Supreme Court? Like what, what can we actually do? Because you can't vote for the people who serve on the court, and we can't also vote to expand it. And in the meantime, people continue to put forward cases that they sometimes like, just pick out and want to take in order to make these rulings.
Richard L. Hasen: [00:15:10] Right. So the key here is Congress. Congress is the body that can do things like add justices to the Supreme Court, which is not something I support right now, but would potentially support if we see the court continuously rejecting a expansion of voting rights. The Congress can limit the court's jurisdiction. There are things that Congress can do to deal with the Supreme Court, and we can even consider amending the Constitution to deal with the Supreme Court. You know, if we're already in the business of amending the Constitution. It's kind of hard to talk about
this, and the reason is, you know, the most recent proposed amendment that was ratified was in 1971, before most Americans were even born. So for most people, we have no memory. Most people alive today have no memory of the Constitution being amended. It's like, what are you talking about? The Constitution is just there, right? But there have been periods of time, 1960s to the early 70s, where there were a lot of amendments. Right. And so we've gone through spurts of amending the Constitution. So I didn't write this book with the expectation that the Constitution was going to be amended tomorrow. After all, Democrats couldn't even pass voting rights legislation, which is much easier to pass than a constitutional amendment. But if you start thinking about a movement towards trying to promote voting rights that lasts maybe decades, then this looks more possible. And let me go back to that case I mentioned earlier, Minor versus Happersett in 1874, when the Supreme Court said, "women, you're not protected. You don't have a constitutional right to vote." There was political movement in the states. And over the next four decades, women and men who were allied with them worked state by state to first change state constitutions and create a national movement. So by the time we get to 1920 and the passage of the 19th amendment, which bars discrimination in voting on the basis of sex, you end up with a situation where 30 states had already amended their state constitutions to provide for equal voting for men and women. So that's what I see as the model here, a kind of political movement that would galvanize. Right. So right now, people are upset about how voting takes place in this country, and we lurch from crisis to crisis, and we worry, are we going to be able to have a fair election? Are we going to be able to have a safe election? This is not normal. This is not what happens in other advanced democracies. Other democracies are as polarized as we are. You know, look at France, you know, you look at the UK. I mean, there is strong partisan politics, but they're not spending all their time fighting over voting the way we do. And part of that is because of our very old Constitution that has not caught up with the times, is not a constitution written for a modern democracy.
Mila Atmos: [00:18:06] Right. Well, you've just made the case that even though this might be a long, hard journey, that we should not shy away from the work.
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And now let's return to my conversation with Rick Hasen.
Mila Atmos: [00:20:33] You mentioned just now about how Congress actually can take action, but the Supreme Court really likes to strike down legislation that Congress has put forward. Not to mention, of course, that they couldn't even pass voting rights laws all on their own. And I'm a little bit curious about what you think about the Anderson decision, the Colorado decision, because it seems to me that they're saying Congress has the right to say somebody can be disqualified from the ballot. But then at the same time, it's also saying all the time that Congress can't make laws, or these laws are not legitimate. So how do how do you square that circle? Or maybe you can't.
Richard L. Hasen: [00:21:12] Well, it was a very weird decision in Trump versus Anderson. Section 3 of the 14th amendment -- it's part of the Constitution that even I, as a professor, didn't pay any attention to, because it really seemed like it was written for the period after the Civil War -- says that if someone had previously served in office in the United States and taken an oath to uphold the Constitution, if they later engaged in insurrection, they're disqualified from serving in office. And that disqualification can only
be removed by Congress by a two thirds vote. What does this mean? Nobody really paid much attention to it in modern times, because insurrection is not something that we really focused on. And yet, after Trump is alleged to have tried to subvert the outcome of the 2020 election through trying to change the way that states reported their electoral college votes and this whole scheme that we all are very familiar with, with the fake electors and all of that, there was an attempt in a number of states to say Trump's disqualified. He can't appear on the ballot. And the Colorado Supreme Court, this was the first state determined that, yes, this claim is correct. Trump should be removed from the ballot. And Trump went to the Supreme Court and argued a number of different reasons why. He said that the Colorado Supreme Court was wrong, and the Supreme Court in Trump versus Anderson issued an opinion that, on a 9 to 0 basis, agreed that when it comes to federal office holders, this is not something that can be done on a state by state basis. The court gave a few reasons, but the biggest reason that the court gave was that it would create this kind of inconsistent patchwork, where some parts of the country, Trump would be disqualified and other parts they wouldn't be. It wouldn't be clear what the standards would be, what the level of proof would be, and this would be too much of a mess. And really, if you look at the 14th amendment, 14th amendment was meant to be a limit on the states and to empower Congress. After all, this is the part of the Constitution that contains the Equal Protection Clause and the Due Process Clause and gives Congress the power to enforce those provisions. And so this is really about Congress. So that part was relatively uncontroversial, the part that was super controversial, and that got the justices sniping at each other -- a set of different opinions looks 9 to 0, but it was really 5 to 4 or 6 to 3, was what limitations are imposed on Congress when Congress tries to disqualify someone first, I should say that there's this idea in law called dicta. Dicta is when a Supreme Court or another court writes an opinion, there's parts that are necessary to the opinion. So it was necessary to know if Colorado could disqualify Trump. It wasn't necessary in this case to talk about what Congress's powers are. That wasn't at issue in this case. What was at issue in this case was only about the states. And so the majority went out of its way to say, here's what Congress can and can't do. And they really limited Congress's power. You know, kind of odd that they take a case about state power being too much and they limit Congress's power, and they put Congress's power under the Supreme Court's supervision and say that when Congress acts, it has to act in a kind of reasonable way. And if they don't, the Supreme Court can second guess them. And so this is what provoked what was not labeled a dissent, but what, in effect, was a dissent from the three liberal justices who
essentially said, you shouldn't reach out and decide this issue. It's completely unnecessary and there's no basis to limit Congress. The whole point of this amendment was to go after these insurrectionists, and it would be very odd to have a rule, as the majority came up with that Congress has to pass a statute to allow for disqualification, when there's a part in the amendment itself that says Congress needs a two thirds vote to remove it. And so there's kind of an inconsistency between even those two parts. So what to make of all of this? Putting aside all of this technical back and forth, the Supreme Court grabbed more power for itself over the scope of voting. And I think we need to see it for what it is, which is a Supreme Court that was trying to, in the words of the dissent, insulate Trump from potential further lawsuits down the line over disqualification or his appointees if he's elected in 2024. So it's a case that could have been an easy case. It could have been a nice unanimous case that would have sent a message of unity. Instead, as Justice Amy Coney Barrett, who was a I would call her effectively a partial dissenter, but she said she was concurring. She said, you know, like the national heat is being turned up rather than down. Ironically, she directed those comments at the dissenters when I think it was really the majority, that was the one that was turning up the heat.
Mila Atmos: [00:26:02] Oh yeah, for sure. So now that you have said all of this, how are you thinking about the Trump immunity case, which looks to be heard in April?
Richard L. Hasen: [00:26:12] So just to set the stage for the Trump immunity case. Why are we talking about Trump's potential criminal immunity? Trump has been charged in federal court by the Department of Justice with Special Counsel Jack Smith of engaging in election interference in relation to the 2020 election. That case was supposed to go to trial in March. But there's a special procedure. There are certain kinds of arguments that you can make if you're trying to get out of going to trial, where the argument is seen as so important that you get to jump the queue. Normally, if someone has an argument that the trial court's made a mistaken decision on some legal issue, you still go to trial, maybe you're convicted and then you can get that conviction overturned later. But if you are a president and you're claiming immunity, you get to jump the line. You get to have what's called an interlocutory appeal. And that's what happened here. So in the middle of the pretrial proceedings in Trump's election interference case, he said, I want to take an immediate appeal to say that I am immune from being criminally prosecuted. And he did that. And the case went to the United
States Court of Appeals for the D.C. circuit. Two Democratic appointed judges and one Republican appointed judge all agreed that Trump was not immune. One of the judges said at oral argument that if you accepted Trump's argument that there's immunity from criminal prosecution for official acts, then a president could order Seal Team Six to assassinate a rival, and they would face no consequences. That's not what it means in the United States to be a president. That's what a king looks like. So Trump then took the case when he lost to the Supreme Court. And I think what you need to understand is that Trump's argument on the merits is very weak. But Trump doesn't need to win the case to actually win, because it's all about timing right now. Back in December, when Trump took his initial appeal to the D.C. circuit, jack Smith, the special counsel, went to the Supreme Court and said, you know, this case is going to end up with you. Take this case now and decide it. And the Supreme Court said no. And then when Trump lost in the D.C. circuit, the D.C. circuit only gave him six days to appeal to the Supreme Court. Otherwise, the case was going to go back to the trial court for trial. So he went to the Supreme Court, asked for emergency decision, and the Supreme Court waited 13 days to decide if it was going to hear the case, even though everybody knows the clock is ticking. And then they gave almost two months for briefing, so that the case will be heard at the end of April. And the end of April is the crunch time for the Supreme Court, because they've got all these big cases that have been pending all year. They've got to write all of them by the end of June, so they can all get out of town and take their vacations in July. And now we're not going to get a decision, likely in this case, until the end of June. And that will probably be too late for there to be a trial with a verdict. Let's imagine that Trump is the Republican nominee for president. Certainly seems likely that he's going to be. Is he going to be put on trial in September and October, when he's supposed to be doing all of his campaigning while people are starting their early voting? It's hard for me to imagine that the courts are going to do that. And given that Trump can kind of drag out the trial in any case by presenting witnesses and, you know, he has a right to present his defense, getting a verdict before November 5th seems extremely unlikely, even if the trial begins. So it's all about the clock. And Trump has won even by losing, by getting the court to not do the the full fast track.
Mila Atmos: [00:29:52] Yeah. I mean, it's just astounding. I think at this point Trump can win the election from Rikers. That sounds so wrong, because we like to think of America as the promised land, where there's only fairness and there's no corruption, and everybody plays by the rules. So I want to turn back to the Supreme Court's
appetite to curtail voting rights, which is in sharp contrast to the Warren Court of the 50s and 60s. What are the precedents that protected voters during that time, during the Warren Court, that are in your mind now potentially in danger of being overturned?
Richard L. Hasen: [00:30:30] Right. So I would say that I mentioned one of them already, the Carrington case. This was the military voter who had asked to vote but was, under the Texas Constitution, not allowed to vote. And what's important about that case is not just that the court sided with Sergeant Carrington, but that it rejected an argument that was made by Texas. So Texas really made two arguments as to why it could disenfranchise military voters. One argument was these military voters, they're not really residents. They're kind of passing through, you know? So like, if I move to Michigan for a few months, I can't vote there. I need to establish residency. I can't just show up and vote. Residency requirements are universally accepted as a criterion for voting around the world. The Supreme Court said, well, it may be true that some people in the military are transients. They're not really residents. But this guy's living there with his family. He opens up a side business. His kids are going to school. He's a resident. So that part, you know, was just kind of a factual question. How do you establish enough roots that he was a resident? Yeah. He had. But the other argument Texas made was much more interesting and much more controversial. They said, if we allow military voters to vote and they're living on these military bases, their votes could swamp the votes of other voters who are living in the area, and it could change the outcome of elections. And the Warren Court's reaction, you know, to put it in today's language was, "yeah, that's a feature, not a bug of democracy." That is, if you give people the right to vote, then they might end up choosing someone you don't like. And there's no two classes of residents, those who've lived there a long time, who have more of a stake or have a better case to be made, that they should be the ones to exercise political power. This kind of fencing out, this idea that you could choose which people get the vote and which don't based on how they might vote. That's something that is impermissible. And there were a number of cases where the court said, you can't be doing that. And in the book I talk about how Texas has discriminated against college students. I use the example of college students at a historically black college called Prairie View A&M University, and how for decades, there's been an attempt to make it harder for those voters to vote for very much the same reasons as military voters. I talk about North Dakota making it harder for voters on Indian reservations to vote, and what we end up seeing is years and years of litigation relying on these Warren Court precedents that say, you know, that there should be a
fundamental equality in voting grounded in the Equal Protection Clause of the 14th Amendment. And there's a whole other set of cases that say that voters need to have about equally weighted votes. These are cases like Reynolds versus Sims, and Baker versus Carr. These are very famous cases from the Warren Court in the 1960s. I'm worried that some of these precedents before this current ultra conservative Supreme Court might not stand, that if there's a way to bring these issues before the Supreme Court, the Supreme Court might reject them, might say, this is not the way to read the 14th amendment. It's not consistent with our originalist reading of the Constitution. And so these precedents are not hardwired into the Constitution. They're only as good as long as the Supreme Court's willing to continue to enforce them. And before this court, I don't have a lot of faith.
Mila Atmos: [00:33:57] Mhm. Yeah. That's why we need the constitutional amendment, to your point. But so part of the constitutional amendment, you actually suggest implementing a national voter ID number to deal with what you call the pathologies of the American electoral system. Tell us more about what you envision here and how in addition to protecting the right to vote, it would actually make elections more secure and ensure voter integrity. Because I think this is also one of the questions that the court always has is like, are you really a resident? Are you really a citizen? But if you have a national voter ID number that could actually help, like how would that work?
Richard L. Hasen: [00:34:33] Yeah. Well, I mean, the first thing I would say is that I don't favor a state by state ID requirements, because those tend to have been done in a in a way that looks to make it harder for some people to vote, even when the ID that's offered is free. It's not free to get the underlying documentation like a birth certificate or a naturalization certificate. And so this can hurt poor people. It can hurt people who don't have driver's licenses. So first thing we need to do is have universal voter registration. Everybody who's eligible to vote should be automatically registered by the government. And this is again something that is very common in other countries. We don't have a system of automatic registration in this country. You have to go out and in some places you have to jump through a lot of hoops to be able to register to vote. The state should bear all the costs of determining if you're eligible, and that includes all the costs of the documentation that would be necessary to prove you were born in this place at this time, so that you're a citizen and you are eligible to vote. If we're going to have a system like this, we're going to need to have some way, because people move
from state to state to know what happens when someone is registered in more than one state. And so I propose a system, along with universal registration, where states would be assigning people a unique number, and the federal government would have to coordinate this so that we have this nationally. So if you live in Montana and then you move to new Jersey, your number would go with you. And this way the state would be able to say, okay, we're going to remove this person from the voting rolls in Montana, and we'll enroll them in new Jersey if they make that kind of move. Now, I think this part of the proposal is probably the part of the proposal that is going to be least popular to people on the left. But the idea is these two things go hand in hand. Universal voter registration, along with a way of identifying voters. And if we could actually do this, not only would we have a more secure system, we'd have a lot less election litigation. We have so much fighting over our election rules. And much of that fighting is about the rules for registration and identification. And so if we could take that off the table and have a rational system where the onus is on the government to get everything right, I think we'd be in a lot better shape. And this wouldn't require nationalizing our elections or federalizing our elections, saying the federal government is going to take over voter registration. We can still have a state by state system, but we can have it in a way that is more interoperable across states and that's secure. And that starts with the idea back at the you know, the very beginning of our talk about we're all political equals in this country. We should all have an equal ability to vote. And what's the biggest impediment to voting? Not being registered. So we need to register all eligible voters and ensure that we're registering only eligible voters, and not people who are not eligible to vote.
Mila Atmos: [00:37:30] 100%, I totally agree. I feel like this conversation would not be complete without also talking about the myth surrounding voter turnout. And you talked earlier about how there are always these efforts to prevent people from voting because they're afraid of how they might vote. And the myth, of course, is that both Republicans and Democrats believe that higher voter turnout will lead to Democratic Party victories. But as it turns out, that's not really true. So what does the data show?
Richard L. Hasen: [00:37:57] Right, so if you look at how Republican and Democratic legislatures in states act, they tend to act in a way that Democrats try to expand the electorate. So here in California, where I am, there's a proposal to lower the voting age to 16, because 16 to 18 year olds, the thought is they're more likely to vote for Democrats. And when in Texas, you pass a voter ID law that says if you have a student
ID, you can't vote. But if you have a concealed weapons permit, you can vote. That looks like same kind of thing, like, let's shape the electorate. Make turnout harder for some groups. That's going to help Republicans. Let's expand the electorate, that's going to help Democrats. In fact, if you look at the correlation between voter turnout and presidential election outcomes, there's not a correlation that is in elections where you get higher voter turnout. It doesn't mean the Democrat necessarily wins. And so I think especially today, as the Republican Party is changing and as it's trying to appeal more to poor, lower income, lower educated voters, that making voting harder is actually going to hurt the Republican Party. And so this is part of the reason why I think not today, not in this era of Donald Trump claiming there's lots of voter fraud. But if we look down the line five years, ten years, 20 years, that it could be that as the parties are changing who they're appealing to, that is going to be in the interest of both parties to make voting easier for all eligible voters, and that it's not going to be a whole game about can we manipulate turnout somehow to shape the electorate to help our side win?
Mila Atmos: [00:39:38] Well, so let's talk about this constitutional amendment that you have in mind. What is the very bare minimum that we should be shooting for? And I know you also have a more expansive dream of what other reforms we could be instituting while we're at it. Or maybe we have to do it separately. But tell us what we really need to be shooting for in the short term, whatever short term means, and what else is possible.
Richard L. Hasen: [00:40:00] So the very basic idea is that all citizen, adult, resident, non felons should have a constitutional right to vote, and that vote should be equally weighted. Eligible voters shouldn't face unnecessary burdens to voting. Minority voters should have protection so that they can elect their candidates of choice. And Congress should have broad powers to protect voting rights. Put all these things together, that's the basic amendment. And then I have four add ons. These are things that I personally would favor, but I know that they could be deal breakers in terms of actually trying to forge a broader coalition to enact a voting rights amendment to the Constitution. So what would I do? People who've completed their felony convictions should be enfranchised. This is what happens in all but eight states. But in some of those eight states, like Florida, even the voters have tried to re-enfranchise those who've completed their felony convictions in the state legislature has found a way to nullify that. So fix the problem with felon voting. Voting for people who live in United States territories. It's a
difficult issue in terms of self-determination. But if the people who live in these areas, talking about Puerto Rico, Virgin Islands, Guam, American Samoa, Marshall Islands, Washington, D.C., where there's still no right to vote for House of Representatives, these others can't vote for the House of Representatives or for president. We should find a way to enfranchise these voters. And then dealing with the Electoral College. There have been many proposals to abolish the Electoral College. I'm a supporter of abolishing the Electoral College, but I recognize that that is something that is more controversial and maybe needs to be considered separately. And finally, along similar grounds, abolishing the current composition of the Senate. In the Senate, every state gets equal representation, two senators, regardless of population. So I'm in California, got a lot of people. Compare that to Rhode Island or Wyoming. Compare Texas to Hawaii. You're talking about so many more people. And just like the idea of me getting 100 votes and my students all collectively getting 50 votes, we have an unequally weighted Senate. The Senate's a really difficult problem. Why would small states give up their power? Very hard to see how to get around that. But you know, in an ideal world, the Senate and the Electoral College are really the only two major institutions in the United States that are not conducting voting that is equally weighted. And so it's something that I think ultimately we have to tackle. But I recognize that even if we have movement towards a constitutional amendment, that might be a bit too much for some people.
Mila Atmos: [00:42:32] Right, it definitely does not square with political equality, the Electoral College and the way that the Senate is weighted. You know, I had a conversation with my son about this because I told him I was going to have this conversation with you and talk about the Senate. And he was like, well, it's all equal, though. All 50 states get two senators, all the Senate seats are equal, he says, but the power of the everyday person is reduced. It's like, yes, that's exactly right. But in the Electoral College, then it's weighted towards the states that are smaller because then they get proportionally more votes.
Richard L. Hasen: [00:43:00] Right, because the way we determine the number of Electoral College votes for each state is how many senators do they have? Two. Plus how many representatives they have. So it just piggybacks on the inequality of the Senate.
Mila Atmos: [00:43:13] Yeah, it sure does. So we obviously believe here that things are not inevitable at Future Hindsight and that citizens have power. Or maybe I'm just an incorrigible optimist, but since you wrote this book, I assume that you share this sentiment. So what are two things an everyday person can do to start the movement for a constitutional amendment.
Richard L. Hasen: [00:43:35] Well, because we have such a decentralized election system, I would say get involved on the local level. It doesn't matter where you live, there's going to be a local election board. There's the opportunity to observe. There's the opportunity to serve as a poll worker, the opportunity to be involved in making democracy better on a small scale. So one thing is, what can you do today to assure, for example, that we have a free and fair election in 2024, which is something that, you know, over where I am at the Safeguarding Democracy project we think about every day. And the other is to dream bigger. Constitutional amendments are not something we think about. We've kind of lost our muscle memory as a country in thinking about how can we make this a more perfect union. And so we really need to not have the mindset that nothing is possible may not happen now. Maybe it's going to be our kids or our grandchildren or someone in the future that we don't know, but we can at least start the movement towards something bigger. And so I would say focus on what you can do now, but don't give up on the larger dream.
Mila Atmos: [00:44:36] Well said. So as we are rounding out our conversation here today, looking into the future, what makes you hopeful?
Richard L. Hasen: [00:44:44] What I would say is that people are energized now. People don't take our voting for granted. People don't take peaceful transitions of power for granted. I think we're in a very precarious time in our country. There's a lot of polarization and distrust across the political aisle, and lots of threats, internal and external, to free and fair elections. But people write me every day, what can I do? I'm concerned. What's the next step? So, you know, we're not sleepwalking. Our eyes are open. And so, you know, nobody is coming to save American democracy. We have to do it ourselves. And people are stepping up.
Mila Atmos: [00:45:25] Yes. All true. Thank you very much for joining us on Future Hindsight and for this terrific conversation. It was really a pleasure to have you on the show.
Richard L. Hasen: [00:45:34] I enjoyed speaking to you.
Mila Atmos: [00:45:36] Richard L. Hasen is professor of law and political science at UCLA. His most recent book is A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.
Next week on Future Hindsight, we're joined by Rachel Bitecofer, a political scientist and author of Hit 'Em Where It Hurts: How to Save Democracy by Beating Republicans at Their Own Game.
Rachel Bitecofer: [00:46:04] The reason half of the electorate doesn't even bother to vote, even in the most consequential elections, is because they aren't interested in politics. Okay. It's not that they can't, and they just really wish they want, they could. And I present some really compelling data that the Knight Foundation took a very large sample survey of Americans, especially of non-voters, to explore the reasons why they don't vote. And I show you guys in the book that the reason that is most commonly cited is lack of interest. They just don't care. Right. And we have raised and created a political culture in America that encourages lack of civic participation.
Mila Atmos: [00:46:39] That's next time on Future Hindsight.
And before I go, first of all, thanks so much for listening. If you like this episode, you'll love what we have in store. Be sure to hit that follow button on Apple Podcasts or the subscribe button on your favorite podcast app, so you'll catch all of our upcoming episodes. Thank you! Oh, and please leave us a rating and a review on Apple Podcasts. It seems like a small thing, but it can make a huge difference for an independent show like ours. It's the main way other people can find out about the show. We really appreciate your help. Thank you.
This episode was produced by Zack Travis and me. Until next time, stay engaged.
The Democracy Group: [00:47:35] This podcast is part of the democracy Group.