The Right To Vote

File under “They aren’t even pretending.”

Indiana’s deplorable legislature is in session (you can tell by the number of us cringing during news reports), and the outnumbered Democrats are battling attacks on Indianapolis, on public education, and on voting.

Democratic Representative Carrie Hamilton introduced a bill that would extend Indiana’s shortest-in-the-nation voting hours. The bill would allow voters to cast ballots until 8:00 p.m. rather than the current cut-off at 6:00, as is currently the case in most states. Rather obviously, a 6:00 p.m. cutoff primarily disadvantages lower-income workers who lack the flexibility of professionals and business executives.

Our legislative overlords–the GOP super-majority–immediately nixed Hamilton’s effort. Presumably, they’re worried that extending the time to vote would increase the turnout of “those people” who– they worry– tend to vote Democratic.

Making it difficult for certain people to vote has become a favorite Republican suppression tactic, along with the party’s ongoing commitment to gerrymandering.

Readers of this blog know me to be a vigorous defender of the U.S. Constitution, but it is impossible to overlook several provisions of that document that have become obsolete (i.e. the Electoral College) or others that are missing from it. Election expert Richard Hasan outlined one of the most important of those omitted provisions in a recent column for the New York Times.

The history of voting in the United States shows the high cost of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.

Hasen pointed out that most expansions of voting rights in the United States are the result of  constitutional amendments and congressional action. The Courts have routinely reiterated that the the Constitution doesn’t contain any guarantees of the right to vote for President (see Bush v. Gore, in which the Court also ruled that states may take back the power to appoint presidential electors directly in future elections.)

As most lawyers know, and as Hasen points to

the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.

Hasen’s column provides several examples of the Court’s reluctance to find a right to cast a ballot, and it is one more gloomy element to assess in what is shaping up to be an election deciding the fate of American democracy.

He then turns to state-level efforts to restrict voting.

Often, voting restrictions are an effort to shape the universe of those who vote. Although both parties have played this game over time, today it is mostly Republican-led states that seek to limit the franchise, out of a belief that lower turnout, especially among those they expect to vote for Democrats, helps Republicans.

Finally, Hasen points to three reasons to pass a constitutional amendment confirming a positive right to vote: it would prevent states from limiting the franchise and erecting  barriers intended to prevent voting by eligible voters, like onerous residency requirements or strict voter identification laws; it would diminish the current explosion of election litigation–which has nearly tripled since 2000;. and it “would moot any attempt to get state legislatures to override the voters’ choice for president through the appointment of alternative slates of electors, as Donald Trump and his allies tried to do after the 2020 election.”

Rules that guarantee not only the right to vote but also the right to have that vote fairly and accurately counted would provide a basis for going after election officials who sought to disrupt the integrity of election systems. Leaks of voting system software or an administrator’s lack of transparency in counting ballots could become constitutional violations.

In many ways, our Constitution is a marvelous document, but the addition of an affirmative right to vote would definitely improve it.



I ended yesterday’s post with a very fanciful “reboot America” suggestion. I’m sure our contemporary MAGA warriors would love to reboot the country–they’re working hard to to take us back to before the civil war, when men were men and White Christians were in charge–but as I was mulling over my very silly premise, I realized that one of my favorite final exam questions actually did ask my graduate students how they would reboot governance. (It was a take-home exam.)

This was the question:

Earth has been destroyed in World War III. You and a few thousand others—representing a cross-section of Earth’s races, cultures and religions—are the only survivors. You have escaped to an earthlike planet, and are preparing to establish a new society. You want to avoid the errors of the Earth governments that preceded you, and establish a governance system that will be stable and fair. What institutional choices do you make and why? Your essay should include: The type/structure of government you would create; the powers it will have; the limits on its powers, and how those limits will be enforced; how government officials will be chosen and policies enacted; and the social and political values you intend to privilege.

Most of the students responded with a modified version of American governance–three branches, rule of law, equal rights, democratic elections and a variety of “tweaks”–interestingly, the tweaks usually included getting rid of the Electoral College, adopting national health care and paying considerably more attention to environmental issues. Students also tended to constrain–but not eliminate– capitalism. Others were more creative; I recall one student who suggested that the new world order should start with a benevolent dictatorship–with him as dictator– until the time was right for democratic governance.  (I’m pretty sure that was tongue in cheek…)

Anyway–remembering that essay question made me wonder how those of you who comment here might answer it. There are a lot of obviously bright, highly educated folks who offer thoughtful commentary to my daily meanderings, and I’d be very interested in your individual “pie in the sky” suggestions.

If you were answering my exam question, what social and political values would you make the centerpiece of a new world order? What systems would you build in, and what mechanisms for change? What problems do you wish America’s founders had foreseen, and how would you guard against the inevitable unforeseen, unfortunate consequences of your favored policy choices?

Go to it! Imagine a reboot of government– but no fair “rebooting” humans to make us nicer and less tribal and easier to govern. Just focus on the governance system…

If pigs could fly, what would your ideal government look like?


Another Terrifying Analysis

An article I read in the New Republic last July--July of 2022 (not this year, when evidence of Congressional inability to even pretend to govern is unavoidable)–was sufficiently upsetting that I kept it in my “think about this” file. It was titled “It’s Going to Take Several Miracles to Keep America from Turning Into Hungary,” and it began as follows:

When Nancy Pelosi told reporters back in May that “this country needs a strong Republican Party, not a cult,” she was expressing the desire among those on the center-left and moderates for the United States to return to a bygone age of political normalcy. They remember when the GOP still had a moderate wing and kept the “wacko birds” (as Senator John McCain called them) at arm’s length; when President Reagan cut deals with House Speaker Tip O’Neill, and when Republicans believed that it was more important for democracy in general to prevail than the Republican Party. It’s a noble idea, but I can’t help but be reminded of what famed pilot Chuck Yeager once told me when I asked him a “what if” question: “And if a frog had wings, he wouldn’t bump his ass when he hopped.”

The truth is that American democracy is essentially broken beyond fixing and is unable to withstand a right-wing populist movement determined to destroy it. The Eisenhower wing of the GOP was rooted out long ago. It will take multiple miracles to avoid getting one or more of the “bad” endings in this Choose Your Own Adventure of dystopias. The best realistic case resembles a Jim Crow America from the 1920s, complete with a Gilded Age, mass migration, violent militias running amok, and no-go zones for minorities. The possibilities only go downhill from there into secession, fascism, and civil war.

When I first read this very gloomy analysis, I discounted much of it. (Okay, maybe not a lot, but at least some…) In the wake of the current wild dysfunction in the U.S. House of Representatives –dismissal has become a great deal more difficult.

The article quite correctly points out that–over a period of some 40 years– the Democratic party shifted incrementally to the left, while the GOP took “a giant leap to the right.” The focus of the Republican base since the Carter administration has been to increase its appeal to white evangelicals, who have very little in common with the American public at large. It is a White Christian Nationalist constituency that holds “outlier positions and priorities on almost every issue.”

And thanks to gerrymandering, that constituency has elected a collection of theocrats and posturing buffoons totally uninterested in the actual process of governance. As the article noted,

Since (roughly) the second term of the Bush administration, there has been a tacit understanding between the GOP and its base that they cannot win hearts and minds: The demographics of the U.S. are inexorably shifting toward nonwhites and secularism. Despite the postmortem on the 2012 election that called for a bigger-tent party, the GOP has settled on a strategy that it must take the wheel away from voters and steer the country with or without the consent of the governed…

The increasingly right-wing Supreme Court has stepped aside and allowed the de-democratization of large swathes of the U.S., by negating the enforcement mechanisms of the Voting Rights Act in Shelby v. Holder and permitting hyperpartisan gerrymanders in Gill v. Whitford.

The January 6, 2021, insurrection was a direct attempt to invalidate a legitimate election result, yet Republicans largely went along with it: Roughly two-thirds of House Republicans voted to give the insurrectionists what they wanted mere hours after they stormed the Capitol.

The GOP isn’t even bothering to hide its ultimate goal: to turn the U.S. into an authoritarian White Christian theocracy. “The 2022 Conservative Political Action Conference was held in Hungary to celebrate and learn what can be gained by killing democracy as Viktor Orbán has.”

The article was written before the 2022 midterms, and did not foresee one “miracle,” the failure of that year’s widely anticipated Red wave. But its essential message remains: absent a massive defeat of the cult that has replaced what was once the Republican Party, the nation will continue on its path toward governmental impotence and chaos–a path that will inevitably invite a “strongman” ala Orban.

What we’ve seen over the past couple of weeks is just a taste of what we’ll see if American voters do not decisively eject the Republicans who are intent upon rejecting constitutional, adult governance in favor of White Christian Nationalism.


Where Do We Go From Here?

In a recent Substack letter, Robert Hubbell reduced America’s current situation to a pithy paragraph, noting that “Biden” and “Trump” “are surrogates and avatars for two different visions of America—authoritarian vs democratic, gun safety vs a heavily armed citizenry, reproductive liberty vs state-imposed religious regulation of women’s bodies, dignity vs discrimination against LGBTQ people, and environmental protection vs unregulated fossil fuels.”

In November of 2024, Americans will decide which of those visions to embrace. It really is that simple–and that stark.

Let me be brutally honest. Those voting for the Trump vision won’t be simply voting for an autocrat. They will be voting for a racist society–a throwback to a time that they “remembered” but that never existed–but it was a time when straight White Christian men occupied the top tiers of a society where Blacks, LGBTQ people, non-Christians and women faced obstacles based soley on their identities, and they desperately want that society back. (People who decry what they call “identity politics” somehow forget the way identity politics played out in the past.)

And what about those “Second Amendment” defenders voting for Trump? I still recall a conversation I had some forty years ago with a historian who was an official of my city’s (then sane) Republican County machine.  His take? “The Second Amendment entitles you to carry a musket and a powder-horn.” His point should be clear to any intellectually honest individual: no matter what your interpretation of the Second Amendment–whether it was intended to protect a militia or a personal right–the Founders could never have imagined the invention of assault weapons or the other high-tech weapons of war that our current gun fanatics claim to own as a matter of right.

There are multiple definitions of “autocracy,” but individual rights vanish under any of them. One of the most significant improvements in governance introduced by America’s adoption–in our Constitution and Bill of Rights– of the Enlightenment’s vision of limited government. “Limited” government in that philosophical sense did not mean “small” government–the limit was on the power of government and its authority over the individual.

Government, in our non-autocratic version, was to be restrained from interfering with the fundamental right of individuals to self-government. Limited government meant respect for personal autonomy–the right of each individual citizen to decide what the Supreme Court (before its capture by a majority of theocrats) dubbed “intimate” matters: whether to procreate, whether (and with whom) to engage sexually, who to marry–in addition to decisions about what books to read, and what political or religious opinions to embrace or reject.

This country has made slow and irregular progress toward a system that honors that basic respect for the integrity of the individual’s conscience and right to make those “intimate” decisions, but we have made progress. In 2024, that progress will be on the ballot.

The rise of a large and fearful cohort of people who reject self-government in favor of autocracy couldn’t come at a worse time. America has persevered through wars and contentious political times before, but never under an existential threat of climate change. In a sane age, we would be coming together to focus our efforts and energies on combatting global warming–on preparing our cities for rising waters and strengthened storms and hurricanes, preparing our international politics for the likelihood that millions of people will become refugees from areas no longer able to sustain them.

Instead, thanks in no small part to our increasingly obsolete political structures, a large cohort of fearful, tribal Americans has elevated a clown show of posturing know-nothings and bigots to America’s Congress, and is evidently determined to nominate and re-elect a preposterous and mentally-ill ignoramus to the Presidency.

I don’t know how we get through to that cohort. I rather suspect we can’t. For whatever reason, their ability to recognize reality, to evaluate evidence and to act rationally and in their own long-term self-interest has been overwhelmed by their  fears and tribal hatreds.  

So here we are.

As Hubbell accurately pointed out, next year’s election won’t be between Biden and Trump. It will be between autocracy and democracy, between those of us who want to remove weapons of war from our city streets, who want to enable individuals to live their lives as they see fit, who see government as a useful communal mechanism through which citizens provide a functioning physical and social infrastructure–and those who yearn for overseers to relieve them of the burden of choosing their own beliefs and behaviors.

Between slow, steady progress and a terrifying regression.


State-Level Autocracy

If you resist believing that today’s GOP is intent upon replacing democracy with autocracy– controlled, of course, by the GOP–you need only look at what they are doing in the states. 

One person, one vote? How old-fashioned!

Efforts to negate the popular vote have moved way beyond gerrymandering. In Wisconsin, Republicans are exploring ways to undo the election of a state Supreme Court Justice who won by eleven points. Texas’ lunatic legislature has passed a different set of rules for cities populated by “those people,” who tend to vote Democrat. 

And then, of course, there’s Ron DeFascists’ Florida, where folks who voted for their local prosecutor can wake up to find that the governor has summarily dismissed their electoral choice. The Brennan Center (link unavailable) recently focused on his latest arbitrary and undemocratic dismissal of a popularly elected official.

In 2020, Monique Worrell was elected to serve as the prosecutor for the Orlando area. She’d campaigned on a reform platform that evidently was too “woke” for DeSantis, who proceeded to suspend her from office for “neglect of duty and incompetence.”  Worrell has filed suit in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard.

Worrell’s office had no policy or practice of failing to enforce certain laws, and her charging decisions were well within the bounds of what most lawyers consider to be proper prosecutorial discretion. Policy differences between a local prosecutor and a governor are not legal grounds for suspension. 

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.”  Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office. In Arizona, taking his cue from  Republicans, the state’s Democratic governor stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer that power to the state attorney general, who has vowed not to enforce it. 

These autocratic exercises significantly undercut democracy.

According to the New York Times, Ms. Worrell had been elected with 66% of the vote, and she released data showing that her prosecution rate was similar to that of two of her predecessors. Whether her performance was unsatisfactory was a question for the voters–not the Governor–to decide.

DeSantis justified her removal by citing several offenders who had committed crimes after serving their (presumably insufficient) sentences, or while out on bail; Ms. Worrell responded by pointing out that examples cited by the governor involved factors beyond a prosecutor’s control. Sentences and bonds are set by judges who are free to overrule prosecutors’ recommendations.

And she said that much of the information that was used to build a case against her came from local law enforcement officials who oppose her because she has prosecuted police officers, including one who shot an unarmed person.

“My message has been consistently, whether you’re a Democrat or Republican, whether you like me or you hate me: Democracy is under attack,” she said. “Duly elected officials should not be removed by elected officials who are not politically aligned with them.”

Autocrats-R-Us disagree.