"The history of voting in the United States shows the high cost 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."
I have been studying and writing about election law for nearly 30 years, and for most of them I had put my faith in the Supreme Court to protect voting rights. The U.S. Constitution contains no affirmative right to vote, phrasing voting rights in the negative (don't discriminate on the basis of race or sex, for example). My faith was driven in part by a series of cases from the 1960s, during the period known as the Warren court, in which the court more forcefully protected voting rights though a generous reading of the Equal Protection Clause of the 14th Amendment. More recently, it became clear to me that those Warren court cases were more of a blip, and that the overall record of the Supreme Court on voting rights was dismal. In 1874, for example, the court refused to read the 14th Amendment as protecting women's right to vote, and in 1903 the Supreme Court declined to do anything about Alabama's refusal to let its Black citizens register and vote, this despite the post-Civil War passage of the 15th Amendment that barred voting discrimination on the basis of race. A few years ago, inspired by my Times editor Aaron Retica, I made the case in a guest essay to add a 28th Amendment to the Constitution affirmatively enshrining the right to vote. In the period since, I delved into the question more deeply and recognized that adding such an amendment not only would protect voting rights better; it also could end much of the "voting wars" between the parties, and lessen the risk of election subversion. The result is an upcoming book, "A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy." I introduce the book's ideas and my key findings in a new guest essay this week. It explains that most other advanced democracies do not worry every election season if they can have a fair election whose results people will accept as legitimate. And it explains that real change is going to require a fundamental reworking of the ground rules — not reliance on an unreliable Supreme Court.
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Saturday, January 20, 2024
Opinion Today: The U.S. lacks what every democracy needs
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