Voting Blogs: The Right to Vote Amendment is Worth At Least One Candle: A Reply to Heather Gerken | Josh Douglas/Election Law Blog
A new constitutional amendment affirmatively granting the right to vote could have a significant impact on protecting voting rights for all Americans. Most significantly – and perhaps paradoxically – we are likely to see the biggest effects of a federal amendment where we least expect it: in state courts. Professor Heather Gerken, in a characteristically eloquent and well-reasoned new article, claims that pursuing a new constitutional amendment enshrining the right to vote is “not worth the candle.” The heart of Professor Gerken’s argument is that the benefits of a new right-to-vote amendment do not justify the costs involved, particularly as Supreme Court Justices and other federal judges are unlikely to alter the scope of voting rights analysis given the likelihood that, to pass, the amendment’s language would have to be too vague. But a constitutional amendment granting the right to vote does not need federal judges, or even the U.S. Supreme Court, to have a big impact. That is because many state courts follow federal law even when construing their own state constitutions. So a new provision in the federal Constitution, even if couched in broad platitudes, will have corollary effects on state constitutional law.