The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote. I’m entirely in favor of a constitutional right to vote. But I’m against amending the Constitution to add it. There are excellent scholars and organizations in favor of amendment, including Jaimie Raskin, Alex Keyssar, the Advancement Project, and FairVote. But I remain skeptical and have a new paper explaining why I fear that the amendment game is not worth the candle. There are two stages for ensuring a robust right to vote: (1) amending the Constitution, and (2) enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2).
Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms.