Is It Time to Have Real Universal Suffrage in the United States?

Paul Finkelman reviews Richard L. Hasen’s “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.”

By Paul FinkelmanOctober 20, 2024

• Law

• Politics

• History

AS WE MAKE our way to the November election, Richard L. Hasen’s new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy is well worth a read. If you have friends, relatives, or colleagues who are so fed up with the political process and the choices presented that they may not even vote, give them a copy. Then be sure they are registered and, if necessary, drive them to their polling place.

Hasen provides a short, informative, and even lively history and analysis of the right to vote, including impediments such as voter suppression, voting irregularities, and disenfranchisement. Unlike much that is written on this complicated and often wonky subject, Hasen avoids jargon and tells stories about real people trying to vote and the technical, legal, and even physical barriers that have been erected to keep some from casting their ballots. Hasen makes a powerful case for a constitutional amendment guaranteeing the right to vote and for nonpartisan officials to run elections. He quotes former Indiana representative John Brademas from 1959: “[O]nly those who do not believe in America [could] possibly object to” a constitutional amendment to secure a positive right to vote for all citizens. According to Brademas, anyone who did not support such an amendment was “opposed to the American principles of freedom and democracy.” There may be some irony in Brademas, the first Greek American to serve in Congress, needing to educate the US House of Representatives about the meaning of democracy, which began in ancient Athens and derives from the Greek words for “the people” and “to rule.”

Unfortunately, as Hasen also shows, there has always been opposition to making it easy to vote. Hasen does not delve deeply into this history—it is not his project—but we need to remember that, throughout American history, political conservatives and those with great wealth and power have often done whatever they could to limit voting. In 1798, the Federalists passed a series of Alien Acts to make naturalization more difficult in order to prevent immigrants from voting, because they feared these new citizens would vote for Thomas Jefferson and his party. From 1800 to the Civil War, the Jeffersonians (once they were in power) and their successors, the Jacksonian Democrats, successfully disenfranchised free Blacks in a number of states where they had voted since the 1780s and 1790s. From the 1830s to the 1850s, various nativist political organizations, such as the Know Nothing Party, opposed allowing Catholics to vote or hold public office because they understood many of these new Americans would not support their candidates. In 1856, former president Millard Fillmore ran on a platform that no Catholic should ever hold office in the United States. From the end of Reconstruction to the 1970s, Southern Democrats (and sometimes their Northern collaborators) did everything they could to stop Black Americans from voting. After 1972, Republicans, implementing Richard Nixon’s “Southern strategy,” did the same thing. African Americans, Native Americans, Hispanic Americans, and Asian Americans have faced barriers to voting in various parts of the country that their white compatriots did not face. This type of discrimination, as Hasen points out, continues to exist today in some states.

Communities throughout the United States have welcomed the economic benefits of a nearby college or military base. But, as Hasen teaches us, many of these communities and states vigorously prevented college students and members of the armed forces from voting in the communities where they lived. Opponents of suffrage for all adult citizens in their communities asserted, bizarrely, that students and those in the military were not part of the communities where they resided. Women agitated for a constitutional amendment preventing discrimination in voting “on account of sex” for many decades, and then the time was right, and it happened when the 19th Amendment was ratified in 1920.

The book is simultaneously depressing, grim, enlightening, and ultimately hopeful. Hasen understands that current American politics makes a constitutional amendment protecting the right to vote unlikely. To be blunt, the MAGA Republicans benefit (or at least believe they benefit) from lower voter turnout and the prevention of minorities and poor people from voting. The 2024 Republican candidate for governor in North Carolina thinks we should repeal the 19th Amendment and not allow women to vote, and he is probably not alone in this view. Still, it is useful to have a draft amendment (such as the one Hasen suggests at the end of his book) in our political back pocket for the day when the stars are suddenly properly aligned for ensuring that every citizen has a constitutionally protected right to vote.

There are precedents for unexpected changes in constitutional circumstances. In its infamous Dred Scott decision (1857), the Supreme Court held that free Blacks, even those who voted and held office in some Northern states, could never be citizens of the United States and that the Constitution offered special protection to slave owners for their human property. In 1857, no one would have dreamed that, within nine years, slavery would be over and a constitutional amendment would be on the way to the states, making all persons born in the United States (except the children of visiting diplomats) citizens at birth. In the 1850s, leaders of the new Republican Party (later to be remembered as the “Party of Lincoln”) tried but failed to amend some Northern state constitutions to give Black citizens equal suffrage with white ones. After the ratification of the 15th Amendment, in February 1870, neither the United States government nor any state could discriminate in voting “on account of race, color, or previous condition of servitude.” Another example of swift constitutional change involved the poll tax. There were some calls to end poll taxes during the administrations of Franklin Delano Roosevelt and Harry Truman, but there was hardly a movement against such state taxes, especially because everyone assumed the 17 segregated states (the 15 slave states in 1860 plus West Virginia and Oklahoma) would vote to block it. But in 1961, the Kennedy administration pushed for an amendment that passed Congress in 1962 and was ratified in 1964, as the 24th Amendment, with the help of seven segregated states—Missouri, Kentucky, West Virginia, Delaware, Maryland, Tennessee, and Florida. Similarly, when I entered college, I could not vote, but before I entered graduate school four years later, the voting age had been reduced to 18. Some changes, such as women’s suffrage, were achieved after years of protest, education, and incremental change in one state after another. The 18-year-old vote happened virtually overnight.

So, is Hasen dreaming when he argues for a constitutional amendment to create a federal right to vote? Maybe. But sometimes change happens so fast that we have to catch our breath. Hasen is like a good Boy Scout getting us to “Be Prepared” for the right moment.

The depressing parts of the book are Hasen’s superb narratives of people being denied the right to vote by political leaders desperately trying to hold on to their offices or by communities overwhelmingly hateful of their neighbors. Hasen recounts the relentless efforts of various states, especially Texas, Arizona, and North Dakota, to prevent American citizens from voting. Texas has a long tradition of keeping military personnel living in the state from voting and college students from voting in the place where they live for at least nine months of the year. A visiting professor hired by a Texas university on a one-year contract, could vote, but not someone in the army, navy, or air force assigned by the Pentagon to teach ROTC at the same college. Nor could students planning to live there for four years and spend their summers working in the city where the college is located. Thus, you could live for 12 months per year in a college town and never be allowed to vote. As late as 2022, students at Prairie View A&M, the oldest HBCU in the state, were litigating to vote in Waller County, where the school is located. A federal judge appointed by Donald Trump offered them no satisfaction. The excuse for such voter suppression is that the people in college or the military are not planning to be part of the community, so they should not be allowed to vote there. With the students at Prairie View, the real reason was clear: in a predominantly white Texas county, the political leaders did not want Black students threatening their power and their tenure in office.

Military bases and colleges are often the economic lifeblood of local communities. The small city in far upstate New York where I grew up would be a near ghost town but for a nearby military base that is the winter home of the army’s 10th Mountain Division. The sales taxes that students and service personnel pay directly to localities, and the other taxes they pay indirectly, substantially boost local economies. These disenfranchised students and military personnel in Texas helped pay the salaries of those who would not let them register to vote. Every year on July 4, we recall the slogan of the American Revolution that “taxation without representation is tyranny.” The Texas judges and the local officials who disenfranchise their neighbors seem to want to emulate King George III rather than John Adams or Thomas Jefferson. Disenfranchising otherwise eligible voters and then taxing them once led to a revolution.

Hasen also explains how Arizona and North Dakota aggressively work to disenfranchise Native Americans living on remote reservations, where the states may not provide polling places and where mail service is poor or virtually nonexistent. These states require would-be voters to provide a street address (not a post office box number) when they register to vote, but on many reservations, there are no streets or address numbers. The politics is clear. Voters on the Navajo Reservation were a significant factor in Joe Biden’s 2020 victory in Arizona. The election deniers in that state, such as Kari Lake, would love to prevent the Navajo from voting. For racist leaders in many states, this is the American way. Similarly, people who lack a permanent home or address are nevertheless citizens and residents of the cities and counties where they live, even if their “home” is a cardboard box in an alley or a park. Again, the political leaders want to prevent people from voting who might not support them or their policies.

Then there are the truly grim parts of the book. In a short chapter, Hasen efficiently, even brilliantly, reminds us of the near-catastrophe of 2020 and the vicious attack on the Capitol on January 6, 2021. Hasen details the persistent and seemingly endless attempts of Trump and his minions, including his now disgraced and disbarred lawyers like the former dean of Chapman Law School and the former mayor of New York City, to overturn a totally fair and efficiently run election. It is no fun to read these 15 pages about our recent past. But history is often not pretty. All Americans need to remember this sad tale of lies and deadly violence, and Hasen offers a quick and excellent reminder.

Hasen quotes Trump ranting about the “massive voter fraud” in Detroit, Atlanta, Philadelphia, and Milwaukee. I wish Hasen had pointed out, in case anyone forgot, that these were code words for cities with large African American populations. Trump played the race card to whine about his defeat. Race has almost always been part of the playbook of those who have sought to disenfranchise American citizens. Similarly, Hasen might have noted that, in 2020, Trump actually did better in Philadelphia County than he had in 2016, but he lost in some large, mostly white suburbs of Philadelphia and other cities. Trump raged about the votes from Detroit and Philadelphia—code for Black voters—but did not complain about Oakland County, Michigan (70 percent white), where he lost by more than 100,000 votes, or Montgomery County in Pennsylvania (73 percent white), where he lost by more than 130,000 votes. Trump, never missing an opportunity to play the race card, wanted to blame his loss to Biden on Black voters in urban centers who rejected his racist agenda (even while never conceding that he actually lost the election) while remaining silent on the white suburbanites who rejected his campaign.

The book gives us great insights into state-imposed limitations on voting rights and the challenges of getting fair voting for all. Many readers will be surprised when Hasen explains that the Constitution does not actually give people the “right” to vote for the president, members of Congress, or state officials. The only thing the original Constitution said about voting, in 1787, was that people who could vote for members of the lower house of their state legislature could vote for members of the US House of Representatives. But the Constitution left it up to the states to decide who could vote in each state. Before 1790, free Blacks voted on the same basis as white Americans in most states, including North Carolina and Tennessee, but not in Virginia, Delaware, South Carolina, and Georgia. But after 1800, Jeffersonian and Jacksonian Democrats disenfranchised Black residents of New Jersey, Pennsylvania, Connecticut, North Carolina, and Tennessee. In 1821, New York, led by the future president Martin Van Buren (who had been a slave owner there), adopted a new state constitution that removed a property requirement for white voters but not Black voters. Thus, in the 1850s, Black homeowners in the state, such as Frederick Douglass, could and did vote, but many Black men could not vote because they did not own property. In the 1780s, women (white and Black) could vote in New Jersey, although that changed before 1815. Some states required voters to own property; some states did not. But the US Constitution had nothing to say about this. Even today, the Constitution does not specifically prohibit a property test for voting, and it is not impossible to imagine the current Supreme Court deciding that such a change in voting rights would be permissible.

The 17th Amendment, ratified in 1913, provided for the direct election of senators, although the right to vote was still governed by state law. Hasen reminds us that some modern conservatives, including the former Texas governor Rick Perry and the late Supreme Court justice Antonin Scalia, have wanted to see this amendment repealed, so that (often gerrymandered) state legislatures could elect senators rather than the voters choosing them. The other electoral amendments, the 15th, 19th, 24th, and 26th, do not actually provide a positive right to vote. Rather, they are phrased in the negative, saying that states cannot deny people the right to vote based on race, sex, payment of poll taxes, or age if they are 18 or older. Since the ratification of the 15th Amendment, no state has specifically said it is denying people the right to vote on the basis of race. Rather, they have used literacy tests, confusing ballots, onerous registration processes and rules, mandates for identification cards that are not always easily available (and can be costly to obtain), requirements that people speak or read English, poll taxes, or simply arbitrary refusals of officials to allow American citizens from various minority communities and ancestries to register to vote. Eighteen-year-olds can’t be denied the right to vote because of their age, but Texas and other states prevented many of them from voting where they actually lived because they were students.

Parts of the book are hopeful. Hasen praises the hundreds of law enforcement officers who risked their lives to prevent a vicious mob from seizing the Capitol while Trump sat watching the attempted coup on TV and failing to do his job to protect and defend the Constitution. Hasen praises the 140 officers who were injured and notes the four who died in the aftermath of the attempted coup. He also praises the honest state election officials, many of whom were Republicans, who would not corrupt the election just so a crybaby loser could win. Corrupting the election was not a Republican plot—it was the plan of a corrupt losing candidate and his co-conspirators. Trump’s gang filed at least 62 lawsuits challenging election results, and they lost all but one of them (which turned on a minor technicality that did not change the outcome of the election). Hasen reminds us of the power of the vote, as many thoroughly dishonest election deniers, spouting lies about Italian satellites manipulating votes and massive numbers of illegal voters, went down to defeat in the 2022 midterm elections.

Beyond this, without partisan rancor, Hasen tells us that the most recent egregious incident of voter fraud in the US was perpetrated in 2018 by a Republican in Bladen County, North Carolina. The fraud was so extensive that “the North Carolina Board of Elections had to order a new election.” While Trump and the MAGA crowd rant about voter fraud, they are silent when members of their own party perpetrate it. More important than such examples of Republican hypocrisy are those of the honorable Republican officeholders, such as Secretary of State Brad Raffensperger of Georgia, who resisted Trump’s pleas and threats to “find” enough votes to have him win the state. Raffensperger is an American hero for honestly doing his job in the face of efforts by a sitting president (whom he voted for) to corrupt him and the electoral process. As Hasen demonstrates, despite claims by election deniers, and massive amounts of money spent by Republican-dominated legislatures in Arizona and Wisconsin, virtually no election fraud was found, and relatively few technical irregularities.

Honest and fair elections are the rule in the United States, and that is something we must all remember. That is the hope that this book highlights. Nevertheless, because of the election deniers, the fraudulent electors, and the threats of violence by sore losers, our nation is clearly in a mess, and it may get worse this November. Where do we go from here? Hasen argues that we need a constitutional amendment to save our democracy.

Hasen proposes a constitutional amendment with a positive guarantee of the right to vote. He admits that such an amendment may seem quixotic at the moment, but he argues that we need to start now. Agitating for a positive constitutional right to vote is a valuable strategy. Political and social change can seem impossible—until it happens. It took seven decades from the first women’s suffrage gathering, the Seneca Falls Convention in 1848, until women were enfranchised by the 19th Amendment. By then, women had equal suffrage in 15 states, and partial suffrage in most others. The process was gradual. So, perhaps we need a national movement to have state constitutional guarantees for the right to vote.

On the other hand, Black suffrage was unexpected and speedy. It was first discussed in Congress in 1864. Why was this? Because, before the Civil War, there was no movement or “struggle” in Congress to enfranchise free Blacks, much less the 95 percent of Africans Americans who were enslaved in the Southern states. Abolitionists, a small minority in the North, focused on ending slavery while antislavery politicians, such as William H. Seward, Charles Sumner, and Salmon P. Chase, focused on the outrageous lack of due process in the 1850 Fugitive Slave Act and on stopping the spread of slavery into the Western territories. In pre–Civil War America, where the 15 slave states had an absolute veto over any constitutional amendment, ending slavery or protecting the right of free Blacks was not on the agenda. Southern treason, secession, and then making war on the United States changed all this. It came about in part because of the gallant service of more than 200,000 Black soldiers and sailors—about 10 percent of the United States Army at the end of the Civil War—who fought to preserve the Union and the Constitution, even though at the time they were not considered citizens. In the Civil Rights Act of 1866, Congress provided for Black suffrage in the defeated Confederacy. In 1869, Congress passed the 15th Amendment, which was ratified in 1870. No one wants or expects a civil war to lead to constitutional change, but the history of amendments reminds us that unexpected events can lead to valuable constitutional changes.

Given this history, Hasen is trying to start the discussion and make the arguments. A Real Right to Vote is a significant step forward. There are more arguments to make, more discussions to have. Hasen is both a dreamer and a realist. But we might learn from history that wild-eyed dreamers sometimes succeed.

On January 1, 1831, the Boston abolitionist William Lloyd Garrison published the nation’s first truly antislavery paper, The Liberator. He was a dreamer and maybe a fool. He called for immediate steps to end slavery and to create racial equality. He had a tiny following. Most of his subscribers were free Blacks who could vote in Massachusetts and most of New England, and a few other places, but who were not able to support the paper beyond subscribing to it. He was cursed and mobbed, and some slave states put a price on his head. He had a few—very few—wealthy backers. Thirty-two years later, on January 1, 1863, Abraham Lincoln issued the Emancipation Proclamation and, by December 1865, the Constitution prohibited slavery in the United States. Sometimes arguments for change seem to go nowhere, until suddenly they succeed. Hopefully, it will be less than three decades before someone looks back at this book and says, “Hasen got the ball rolling and now true democracy flourishes in the United States.” It is about time we got started.