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.

National: Shining a Spotlight on How the Laboratories of Democracy Are Administering Elections | Work in Progress

A recurring lament among reformers is that the basic structural features of our constitutional system get in the way of needed change. For example, many believe that our federal system decentralizes policy-making and gives rise to partisan feuds in ways that thwart the adoption of positive reforms and enable bad situations to persist. This is certainly a common refrain with respect to our decentralized system for administering elections and the chronic problems associated with it. But there is a silver lining sewn into our federal system—namely, the potential for experimentation, innovation, and—not least—productive competition among what Justice Brandeis called our “laboratories of democracy.” State and local governments are free in many domains to tackle common problems differently, as they might see fit. Superior approaches developed in one state or locality can thus be adopted in places where performance is subpar. If not, the onus is on the underperforming policy-makers and administrators to explain themselves to their underserved citizens.

Voting Blogs: Rethinking DC Representation in Congress | State of Elections

William & Mary’s Election Law Program and DC Vote co-hosted a symposium on Rethinking DC Representation in Congress on February 21, 2014 in Washington, DC. The symposium impaneled several highly regarded Constitutional law experts and voting rights advocates. Residents of Washington, DC have long lacked Congressional representation, notwithstanding over two centuries of advocacy by voting rights supporters. Despite a long history of amending the Constitution in order to enfranchise previously-ignored groups (African-Americans, women, and individuals between the ages of eighteen and twenty-one) legislators and federal courts have given short shrift to voting rights for residents of the nation’s capital. Maryland State Senator and American University Law Professor Jamie Raskin emphasized that for DC residents, “Constitutional democracy has broken down. It has never really existed.”

Voting Blogs: A Novel Proposal from Heather Gerken: Plus One More, Also from Yale | More Soft Money Hard Law

In an interesting Washington Post article, Professor Heather Gerken has proposed with co-authors a new strategy to advance  a core reform objective, the enhancement of transparency, as other options seemingly dwindle after CItizens United andMcCutcheon. Heather is well known and well-respected for just such an insistence on thinking beyond the well-traveled, now largely exhausted policy choices. A good example is the Democracy Index, which she constructed to “harness politics to fix politics,” by generating political incentives for the improvement of performance on election administration through the publication of public rankings. What she and her co-authors now suggest is that 501(c)(4)s and other organizations not publicly reporting their finances be required to disclose that they do not disclose. Public opinion would do the rest: politics would be harnessed to fix politics.   Suspicious that the advertisers won’t say who is paying for their messages, the audience would be mistrustful, the ads would have less value, and donors would have reason to doubt that their money is well spent.  Money might then flow to messages financed by disclosing organizations.  This mode of attack, Gerken et. al believe, might also help with the “whack-a-mole” problem: that regulators and lawmakers must chase ever-changing organizational forms, from “527” to 501(c) organizations. This new regulatory program would target the ads, irrespective of the type of sponsor.

Editorials: Opting into the Voting Rights Act | Heather Gerken/The Great Debate (Reuters)

If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter. I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters. Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.

Editorials: The Missing Right To Vote – What we’d get from amending the Constitution to guarantee it | Heather Gerken/Slate

The Constitution does not guarantee Americans the right to vote. That always comes as a surprise to non-lawyers. But you will search the Constitution in vain for any such guarantee, as the Supreme Court cheerily reminded us in Bush v. Gore. What the Constitution contains is a series of “thou shalt nots.” Thou shalt not deny the right to vote on account of race or sex. Thou shalt not impose poll taxes. Thou shalt not prevent 18-year-olds from voting. It is difficult to develop a robust case law when you only know what you can’t do. Some think that a constitutional amendment guaranteeing the right to vote would instantly produce any number of progressive goodies, like universal registration or a healthy campaign finance system or the end of partisan gerrymandering. Don’t believe it. If an amendment enshrining the right to vote looks anything like its cognates in the Bill of Rights, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians who benefit from the current system. It’s unlikely to be enough to persuade judges to mandate large-scale reform. Judges are conservative creatures (at least in the Burkean sense). They are typically loath to upend a system based on a vague textual guarantee. And a vague textual guarantee is as good as it’s likely to get. As Larry Tribe’s post makes clear, it is a challenge to draft an amendment just to overturn a single case, let alone to detail what a right to vote should involve. Even if we were to add as broad-gauged a right as I suggest below, the courts will inevitably create reasonable exceptions and interpretations, just as it has done for the First Amendment.