The Right to Vote: Is the Amendment Game Worth the Candle?

16 Pages Posted: 21 Feb 2015

Date Written: February 19, 2015

Abstract

Is it possible to be in favor of a constitutional vote and against amending the Constitution to add it? Yes. This paper argues that the amendment game is not worth the candle. There are two stages for ensuring a robust right to vote: amending the Constitution, and 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. The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2. For these reasons, it makes more sense to pour political resources into more discrete reform projects going forward.

Keywords: Right to vote, constitutional amendment

Suggested Citation

Gerken, Heather, The Right to Vote: Is the Amendment Game Worth the Candle? (February 19, 2015). William & Mary Bill of Rights, Vol. 23, No. 1, 2015; Yale Law School, Public Law Research Paper No. 531. Available at SSRN: https://ssrn.com/abstract=2567394

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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