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.
The doctrinal implication of a federal right-to-vote amendment depends on a concept known as “lockstepping,” which I discussed in this article analyzing state constitutional protection for the right to vote.
Many rights are listed in both federal and state constitutions. Yet even when state constitutional protection is textually broader than what is afforded under the U.S. Constitution, many state courts simply follow – or lockstep – their state constitutions to be in line with the federal constitution. The right to vote is a perfect example of this phenomenon. Every state constitution (besides Arizona’s) affirmatively confers the right to vote to the state’s citizens, a broader grant than the lack of an explicit right within the U.S. Constitution. Yet many state courts lockstep their state-level protection so that it is the same as the U.S. Supreme Court’s more restrictive interpretation of the federal right to vote.