Podcast / Start Making Sense / Mar 6, 2024

Biden After Super Tuesday—and the Case for a Voting Rights Amendment

On this episode of Start Making Sense, John Nichols has our analysis of the Super Tuesday primary elections, and Richard Hasen proposes a voting rights amendment to the constitution.

The Nation Podcasts
The Nation Podcasts

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Biden After Super Tuesday, plus A Voting Rights Amendment | Start Making Sense
byThe Nation Magazine

After Super Tuesday: John Nichols reports on the evidence of weaknesses of both Biden and Trump, as well as some signs of strength, in the wake of voting in primaries in 16 states.

Also: Now is the time to add the right to vote to the constitution – that’s what Richard Hasen says. And, he argues, there are good reasons why Republicans could support that–maybe not this year, but sometime soon. Rick is professor of law and political science at UCLA and author of the new book “A Real Right to Vote.”

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A supporter of former US president and Republican presidential candidate Donald Trump watches a broadcast of his Super Tuesday victory speech during watch party at Wide Open Saloon in Sedalia, Colorado on March 5, 2024.

(Jason Connolly / AFP)

On this episode of the Start Making Sense podcast, Nation national affairs correspondent John Nichols reports on the evidence of weaknesses of both Biden and Trump—as well as some signs of strength—after the primary elections in 16 states.

Also on this episode: It’s time to add the real right to vote to the constitution. That’s what Richard Hasen says. Hasen is professor of law and political science at UCLA and author of the new book, A Real Right to Vote. He argues that there are good reasons why Republicans could support a voting rights amendment. (Maybe not this year, but sometime soon.)

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

Biden After Super Tuesday, plus A Voting Rights Amendment | Start Making Sense
byThe Nation Magazine

After Super Tuesday: John Nichols reports on the evidence of weaknesses of both Biden and Trump, as well as some signs of strength, in the wake of voting in primaries in 16 states.

Also: Now is the time to add the right to vote to the constitution – that’s what Richard Hasen says. And, he argues, there are good reasons why Republicans could support that–maybe not this year, but sometime soon. Rick is professor of law and political science at UCLA and author of the new book “A Real Right to Vote.”

Advertising Inquiries: https://redcircle.com/brands

Privacy & Opt-Out: https://redcircle.com/privacy

Jon Wiener:  

From The Nation magazine, this is Start Making Sense.  I’m Jon Wiener. Later in the show:
Now is the time to add the right to vote to the constitution – There are good reasons why Republicans could support that.  maybe not this year, but sometime soon.  That’s what Rick Hasen says–he’s professor of law and political science at UCLA and author of the new book “A Real Right to Vote.” We’ll speak with him, later in the hour. But first, John Nichols has our analysis of the Super-Tuesday primary elections – in a minute.
For our analysis of Super Tuesday’s primary election results, we turn, of course, to John Nichols. He’s The Nation’s national affairs correspondent and author of many books – most recently, It’s OK to Be Angry About Capitalism, co-authored by Bernie Sanders. We reached him today in Madison, where he’s traveling with the Vice President, Kamala Harris. John, welcome back.

John Nichols: It’s good to be with you, Jon.

JW: We’re speaking on Wednesday morning. Let’s start with Biden. In the last weeks, a movement has arisen to use primary ballots as a way to demand an end to American support for the death and destruction in Gaza. There’s more than two dozen states that permit voters to cast uncommitted ballots or undeclared vote ballots or no preference ballots.
And in all of those states, if 15% of the voters choose one of those options, they get to send a delegation with no obligation to back Biden and they could raise the issue of Gaza at the convention. Michigan pointed the way but didn’t quite get to 15%. In Michigan, the uncommitted vote was 13%. Did any of the Super Tuesday states reach the 15% threshold for sending uncommitted delegates to the convention?

JN: Yes, they did. And before I go to that part of the answer, let me say that it is statewide and at the congressional district level. So Michigan produced several delegates for uncommitted out of the two congressional districts where uncommitted got over 15%. That’s the district around Detroit, Dearborn and the district around Ann Arbor, University of Michigan. So they got a couple there. But you’re right, statewide they got around 13%. Minnesota, good Midwestern state that you know a little about, Jon.

JW: Thank you very much.

JN: They, of course, always – they’re modest Minnesota nice. And so Minnesota looks like when all is said and done to have gotten in the range of 18 to 19%, substantially more than Michigan, and they will get four to five delegates at least out of Minnesota. We also have some very strong showings in North Carolina, probably about 12 to 13%. We don’t know down to the congressional district level there, but I suspect there might be a delegate there.
And then we’re going to keep an eye on a couple other places, but Minnesota really stood out as the place that produced – it’s so far by far the highest vote for uncommitted and suggested that this campaign that’s slowly developing, literally people just learning about it, has the potential to move beyond just Michigan. Of course, Michigan got all the attention because it has a large Arab American, Muslim American population.
But what we’re seeing is that this uncommitted campaign, in addition to doing well in places with a large Arab American, Muslim American population, also tends to do well in places with a large university and student population. And that’s some of what we saw up in Minnesota.

JW: The Democratic National Convention doesn’t begin until August 19th. I really hope Israel will have stopped killing people in Gaza by that time. But it seems like the main impact of the uncommitted delegates will be starting now for the rest of the campaign. In fact, it seems like the Biden administration is already responding after Michigan to this campaign. Remind us what’s happened just in the last couple of days with Biden and Israel.

JN: Well, look, Joe Biden is a career politician, 36 years in the Senate, eight years as vice president, four years now as president. There’s nothing that he doesn’t know better than politics, right? And the people around him as well, many of them long-term political observers. They know their way around Democratic primaries. They know their way around national elections in which they have to rally the Democratic base.
And so they’re very conscious of what happened in Michigan and they’re going to be very conscious of what happened in Minnesota and some of these other states. What you saw right after the Michigan result was notable. Because within days, Joe Biden was talking about dropping food into Gaza. Now, it’s a small drop, insufficient. They still have to open that border, but it was at least some show of an understanding of the humanitarian crisis that is playing out there.
Additionally, Biden and Vice President Kamala Harris have ramped up their discussions of ceasefire. In fact, Harris in Selma on Sunday gave a very pointed address in which she talked a lot about ceasefire. Now, again, when they talk about ceasefire, it’s somewhat muted because they don’t talk about it in a permanent ceasefire, right? They’re talking about maybe a six-week ceasefire. That’s problematic, but it is still clear evidence that, in my view, the White House is hearing or noticing what’s going on.

JW: Let’s move to the Republican side where, of course, Trump was challenged by Nikki Haley, who since then has suspended her campaign. But we need to look at the weakness that Trump showed in several states among Republican voters. Just to run down some of the results and then ask for your comment, in Minnesota, Trump got 69% of the Republican vote.
In North Carolina, 70% of Republican men, 64% of Republican women. In Virginia, Trump got only 59% of Republican women. And in North Carolina, 78% of the Nikki Haley voters refused to say they would support Trump. In Virginia, 68%. How significant a problem is this for Trump?

JN: It’s a significant problem. Look, I think you’re underestimating the Nikki Haley juggernaut. In the last several days, she actually won two primaries. She won the District of Columbia. Not a surprise because DC tends to be a much more progressive or liberal or moderate or at least sane place than some of the other spots that have had caucuses and primaries. She also won Vermont just by a couple points, but she won the State of Vermont.
That’s a very notable reality, because here you have an immediate former President of the United States, the guy who is essentially the clear front-runner and pretty obviously the choice of the party losing primaries. And in other states, substantial votes for an alternative candidate as you’ve noted. Now, it looks like Haley is going to suspend her campaign.
It doesn’t look like she’s going to see this thing through, but we’ve had enough primaries, enough caucuses, and enough exit polls that we have pretty solid evidence that those Haley votes are not so much Haley votes, maybe there are a few people who actually like her, but primarily anti-Trump votes. And that in some cases, they are very anti-Trump to the point that they will not vote for him. What this means for Biden and for the Democrats is that they need to tailor and appeal to these folks.
Now, they’re not going to get very far if they try to change their stance on issues, if they try to go right wing or play to the center. That’s always an absurd game that Democrats fall into and it’s invariably a mistake. The smart move is to play to democracy, to simply say, “Look, you may disagree with Joe Biden and Kamala Harris on some issues, but you have to recognize that Donald Trump is a clear and present threat to American democracy. He says as much, ‘I’ll be a dictator on day one.'”
And so with that in mind, the primaries and caucuses have given the Democrats some sort of model that they can use going into a November election where, again, the assumption is that Biden will be the nominee. Not the certainty, we’ll see how things progress. But if it is a Biden-Trump race, these democracy issues will become very, very important for the Democrats as they tweak out their message nationally.

JW: In the Senate races, two interesting ones nationally. Of course, California is going to elect a Democrat to replace Dianne Feinstein. It’s always been pretty clear that Adam Schiff, hero of the first Trump impeachment and the January 6th hearings, was always the clear leader, but there were two people to his left, Katie Porter and Barbara Lee, both in the race. Tens of millions of dollars was spent by Democrats competing with each other. California takes a very long time to count its millions of mail ballots.
But as of today, Wednesday morning, the total of Katie Porter and Barbara Lee votes is less than Adam Schiff got.  California, let’s just remember, has that unfortunate system, I live in California, where the top two vote-getters face each other in November no matter what. Progressives were hoping to make that a contest between two Democrats. That’s not going to happen. Steve Garvey, the Republican candidate, got the second most votes.
And let’s remember, Adam Schiff, he’s considered a centrist, but I think he’s moved to the left a little bit since all of the impeachment activity. Right now he’s calling for getting rid of the electoral college, eliminating the filibuster, expanding the Supreme Court.
The one good thing for Democrats about Steve Garvey coming in second and going on to face Adam Schiff in November is Democrats will stop spending tens of millions of dollars fighting each other, and that’s money that can go into the Senate campaigns for the really embattled Republicans running in Ohio, Montana, Arizona. What’s your perspective on what happened in California in the Senate race?

JN: Look, Adam Schiff had the money. He had some of the key endorsements from the folks who were very, very influential in the California Democratic Party, and he got the race he wanted. Remember, Adam Schiff went into this primary process and spent quite a bit of his money attacking Steve Garvey. Obviously, those attacks on Steve Garvey were fun to do, right? As a Democrat, you say, “Steve Garvey is this bad player,” But they also emphasized that Garvey was a Republican.
And so effectively, Adam Schiff gave Garvey a lot of publicity, and I think that helped Garvey to come through with actually a pretty strong showing in the primary. So now you’re going to end up with a Schiff-Garvey race. The likelihood is, of course, that Schiff wins in the two-thirds Democratic State of California. Schiff didn’t do his party any favors. Because when you’re going to have a Democrat-Republican race in California, that helps to mobilize Republicans down ballot in those congressional races.
So the much better situation I think for Democrats would’ve been to have Schiff versus Katie Porter or Schiff versus Barbara Lee. But that hasn’t happened. So now you’re in this circumstance where you’re going to have a clear partisan split. My sense is that you’re right, the Democrats aren’t going to have to put any money into California unless something really goes awry. And even if there was a need for money, Adam Schiff is a master fundraiser, so he’s going to have enough.
And so there you have it. The one positive for Democrats is this. Because it will be a somewhat competitive Senate race, that may up turnout in California. And if we are talking about the popular vote for president, California is the great popular vote producer. And so if there are more voters coming out in California, that increases the likelihood that Joe Biden may get again what he had last time, which is a very large popular vote victory. That helps at a time when you have a Republican opponent who’s always trying to delegitimize the winner of the election.
So this thing cuts a lot of different ways. I’m personally not a fan of that game of trying to choose your opponent by spending money attacking a Republican in the primary so that Republicans may note that person. And this has happened in a lot of races around the country. I’m also sorry that Barbara Lee and Katie Porter didn’t get a chance to go to November because I think they’re very impressive people. But this is politics, and the politics that we have now is a classic two-party race in California for the US Senate.

JW: And the other state with big news about the Senate campaigns was Arizona, where Kyrsten Sinema announced her retirement. When she was elected six years ago, that was a triumph of a massive effort by grassroots groups in Arizona. But in Washington, she turned out to be kind of a semi-disaster. Her main achievements were blocking reform of the Senate’s filibuster rule and single-handedly blocking the Democrats from raising taxes on wealthy investors. And she also voted against raising the minimum wage, keeping it at $7.25. You may remember she curtsied after casting that vote.
She quit the Democratic Party, was going to run as an independent. There was very little support for that, and she was clearly going to come in third, so she dropped out. That leaves a clean race between one Republican, Kari Lake, the nutty, if I may use that term, election denier and Ruben Gallego. The latest poll in Arizona has Ruben Gallego ahead of Kari Lake 46 to 39. That’s very good news for Democrats.

JN: Yeah, getting Kyrsten Sinema out of that race and out of the Senate is good news for Democrats. There’s simply no question of that. Although remember, she caucused with the Democrats even with all of her opposition. So she and Joe Manchin were both useful for the purpose of organizing the Senate. And Democrats are going to worry about that going forward. Manchin’s seat is likely to go Republican, very likely, and the California seat is now up for grabs. Because even if you aren’t very impressed with Kari Lake, a lot of Arizona voters have been.
And so that will be a competitive race. It will be an intense race. I think the Democrats have the upper hand there, but it’s not a big upper hand. And so having Sinema out of there does help without a doubt. They’ve now got what looks like a strong candidate going forward, the Democrats. And so that makes Arizona somewhat less of a challenge, especially if Democrats open up a reasonable poll lead.
That would mean then that money from the National Democrats can move to some of these other states like Montana with Jon Tester, Ohio with Sherrod Brown, potentially Texas, which by the way had its primary yesterday and Colin Allred came through to run against Ted Cruz. So bottom line is that Democrats, in this case, in the case of Arizona, although it wasn’t a primary result, had a very good day yesterday as regards their Senate prospects.

JW: One more interesting poll about the national picture. There’s a new survey by the AP-NORC Center for Public Affairs Research found that the majority of Americans believe neither Biden nor Trump has the mental acuity to serve as president for another four years. The majority believe neither one has the mental acuity. What do you make of that?

JN: Well, it is not necessarily an encouraging number for America. Because look, we’re running a presidential race between two people that the American electorate doesn’t seem to be very excited about, but I think we already knew that. In a weird way, it’s somewhat good, I guess, for Biden, because of course, the Republicans have been trying to suggest that somehow Biden is more inept than Trump. I’ve never necessarily believed that. But now it looks like the American people are coming to a conclusion that they’re not very impressed with either of them.
At the end of the day, that then pushes the campaign back toward issues, back toward mobilizing your base around the issues you’re running on to vote for one or the other of two candidates who are not necessarily beloved by the electorate. For the Democrats, that’s probably a good thing because, A, we’ll see this week with Biden’s State of the Union address. He still has a lot of room in which to alleviate some of these concerns about his age and things like that.
But B, if it’s an issue-based fight in November, we saw from 2020 and frankly we even saw from 2016 that on balance, the majority of people that go vote, or at least the clear plurality of people that go vote, tend to go for the Democrats. And so I guess although, again, a disappointing number for America and one that everybody should be conscious of, but one that may turn the 2024 presidential race, oddly enough, into more of a classic contest between left and right, Democrats and Republicans.

JW: And last but not least, we’re speaking on Wednesday, the day after Super Tuesday. You are traveling in Madison with Kamala Harris. What’s on her schedule? Where will you be? What will she be doing?

JN: She is basically emphasizing the president’s infrastructure program. She’s at a bus barn, and she is talking about the accomplishments of the infrastructure program. Literally, I think she’s going to be speaking in front of churned-up gravel with guys in orange jackets digging on things. And so it’s very much on message, but in a deeper sense. Yeah, I’m always following the vice president. I’ve interviewed her for The Nation several times. And in this case, I’m very interested in what she may say about Gaza.
Remember she talked about Gaza in Selma on Sunday, and it was interesting because she seemed to have a more enthusiastic endorsement of ceasefire than we’ve heard from a lot of other folks in the administration, although, again, insufficient because it tends to be a temporary ceasefire. And B, I’m going to be very interested because as she’s been campaigning around the country, she’s put a real emphasis on abortion rights, reproductive freedom, which I think it’s pretty clear the Democrats think is an issue that’s going to be very critical for them in November.
So although we still have quite a few primaries ahead of us, I think Super Tuesday gave us a pretty good perspective on where this race is headed. And so in many senses, what I’m doing with the vice president today is covering the November race, or at least getting ready to cover the November race.

JW: John Nichols, read him at thenation.com. Thank you, John. Now you need to get back to Kamala.

JN: I do need to get back to the political trail. It’s great to be with you, Jon. Take care. Be strong.


Jon Wiener: Now is the time to add the right to vote to the Constitution: That’s what Rick Hasen says. He’s professor of Law and Political Science at UCLA and director of UCLA’s Safeguarding Democracy Project. He writes for The New York Times Op-Ed page, also for Slate and Politico. He’s written several books about elections and democracy. The new one is A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. Rick Hasen, welcome back.

Rick Hasen: Great to be with you.

JW: We’ve had huge political and legal battles over voting, especially in the last decade, and that’s partly because Republicans have lost the popular vote for president in seven out of the last eight elections. A lot of people don’t realize this. In the last four presidential elections, Democrats have averaged 51%, Republicans, 46%. It’s the worst performance for the Republicans over four elections since FDR’s presidency.
The Democrats believe that the more people vote, the more likely that their candidates will be elected. So Democrats want to make it easier to vote. They want automatic voter registration; they want universal voting by mail. The Republicans have decided the best way for their candidates to win is to restrict voting rights, to make it harder to register, harder to cast the ballot, to create obstacles to voting by groups they consider Democratic. Voter suppression. So Republicans agree with Democrats that higher turnout, more people voting helps Democrats. It’s one of the few things the two parties agree on. Do you agree?

RH: I don’t. When we hold elections for president, we use the electoral college, and if we were actually using the popular vote, campaigns would look very different. Donald Trump would be spending a lot of time in Florida and Texas getting his numbers up. Biden would be in California more than using it as an ATM, he would actually be coming to get votes. So there’s only so much we can learn. But there’s a study that I cite in my book, A Real Right to Vote, by Professors Petrocik and Shaw that shows that bigger turnouts do not necessarily help Democrats. And in fact, I believe that if Donald Trump did not complain about mail-in voting in the middle of a pandemic, the safest way to vote in the middle of a pandemic, that he well could have won the 2020 election. He shot himself in the foot.
And I’d say more generally, one of the things we see about the transformation of the Republican Party is that it is appealing more to working class, poorer, less educated voters. I mean, isn’t this – didn’t Trump make the claim he loves the less educated, right? Those are people who are most likely to be disenfranchised by draconian election laws. And so if this trend continues, even if Republicans believe that they should write their election laws to help their party, that might mean a loosening of these rules rather than a further restriction of them. So I don’t think that it’s necessarily in the long-term Republican interest to make voting harder.

JW: I’ve always believed the consensus views. So I looked up Daron Shaw and John Petrocik’s book. They do show that turnout rates do not predict election results in presidential elections. There’s just some very simple examples. The biggest Democratic victory, 1964, LBJ over Goldwater did not have the highest Democratic turnout. The highest Democratic turnout was in 2020, Biden versus Trump. But obviously as you suggest, there’s a lot of other reasons why these candidates won. Goldwater was a terrible candidate. 2020 had a high turnout because Trump was running for re-election and people were very passionate about that. I know you’re not in the business of giving advice to Democrats, but if you were, would you advise them to stop putting so much money and energy into mobilizing low-propensity voters and non-voters?

RH: No, I think that the whole system is messed up. If you look at other countries and how they run their elections, first of all, they’re not having fights every four years about what the rules are. But also most other countries have a rational system where all eligible voters are automatically registered to vote and they’re identified, and that’s part of what I propose in A Real Right to Vote.
If we actually had a rational system for how we ran our elections, not only would we get rid of a lot of the fights over elections, which I think would’ve a lot of social benefits to get rid of the lawyering up of our elections, but it also would allow more time to be put not into voter registration, where Democrats and others put a tremendous amount of time and effort, but instead into convincing voters, here’s why you should turn out.
And that’s actually a better form of democracy, right? Rather than spending your efforts to making sure that people who are already eligible to vote can jump through the hoops that each state sets up on its own. You instead have an argument about ideas: is Joe Biden or Donald Trump worthy of your vote or someone else?

JW: Let’s talk about the proposed constitutional amendment for a right to vote. Why isn’t the right to vote in the Constitution? I’m an American historian, and so I know that’s because the founding fathers really didn’t believe in democracy. They believed in a very limited right to vote, and the words “right to vote” were not added to the Constitution until after the Civil War in the 15th Amendment, ratified in 1870. But that did not establish a universal right to vote. Explain where we stand with the right to vote in the Constitution right now.

RH: It’s the combination of two things, the age of our Constitution and the difficulty of amendment that explains why we don’t have a right to vote compared to again, most other democracies have a right to vote in their newer constitutions. You’re right that the founders were skeptical of voting. There was no right to vote for President in the Constitution. And in fact, in the year 2000 in the controversial Bush v. Gore case, the Supreme Court reminded us that we have no right to vote for President, that state legislatures could take it back at any time for future elections. So that’s some news that Americans probably did not expect to hear.
There have been proposals for universal voting in the United States that date back to the time of the 15th Amendment. The 15th Amendment is the first amendment that actually says no discrimination in voting on the basis of a particular characteristic, in this case, race; parallel to the 19th amendment, which is about gender; the 26th amendment, which is about being 18 to 21 years old. These rights are framed in the negative, but back at the time of the 15th Amendment, there was a proposal to say at least all citizen adult, back in the time of the 15th Amendment, men, could vote. And that was rejected because that was going to allow immigrants to vote, that was going to allow support people to vote who couldn’t pass literacy test. It was all kinds of reasons to discriminate.
So even when Black voters were supposedly being enfranchised by the 15th Amendment, that didn’t really happen effectively in parts of the country until the 1965 Voting Rights Act. But even then it’s like, “We’re not going to let the Irish vote. We’re not going to let the Chinese vote.” There was so much xenophobia back at that time, unlike today when we have no xenophobia, right? But it was at the time of the 15th Amendment and then we saw this arise again as the civil rights movement started, there were proposals of 1959 and 1960. Then we saw it again after the 2000 election when the election system essentially broke down.
But there’s not traction. And in the 1960s, I think the reason we lost traction is because so many voting-related good things did happen. The 23rd Amendment gave voting rights for president to Washington DC residents. The 24th Amendment, abolished federal poll taxes. The 26th Amendment already mentioned 18- to 20-year-olds. And you got the passage of both the Civil Rights Act in 1964 and the Voting Rights Act of 1965. So maybe people thought we didn’t need the amendment.
And of course at that same time in the late 1960s, that’s when the Warren court is just in its heyday and it’s expanding voting rights through what I would consider a very capacious reading of the 14th Amendment. One that I don’t think a majority of the current Supreme Court would actually agree with if they had to revisit those questions. That’s one of the reasons why I think we need to enshrine the right to vote in the Constitution because in the 235-year history of the Supreme Court, eight years of good opinions is not enough, especially when it could be reversed.

JW: So exactly what should a right to vote amendment to the Constitution say?

RH: In the back of A Real Right to Vote I have an appendix that has what I call the basic amendment, and then I’ve got some add-ons. So when you are looking at a restaurant menu, you’ve got your base and then you can – do you want to add avocado on that, right? So I start with the basics and the reason I start with a more basic amendment is because I do believe that there may be, there is some room for some bipartisan compromise, not today, but maybe in 10 or 20 years. And so I want to lay it out there in a more basic way.
The basic amendment will do six things. One is assuring that adult citizen resident non-felons have a right to vote for president, so state legislatures can’t take that vote back. We’d be changing Article Two of the Constitution. That vote should be equally weighted that voting laws should not be overly burdensome. And when courts weigh disputes over voting, they should put a thumb on the scale favoring voters instead of what they do now, which is put a thumb on the scale favoring states when they raise issues that they don’t approve, like this is needed to prevent voter fraud or promote voter confidence. That the courts have to defer more to Congress when Congress expands voting rights. Congress has been the great source of the expansion of voting rights.
And finally, I would enshrine part of the Voting Rights Act in the Constitution because again, I do not trust the Supreme Court, so I’d rather constitutionalize it to make it harder for some of the more anti-voting justices to restrict voting rights or not let Congress expand voting rights.

JW: Republicans argue that voter fraud is a huge problem in America. Pollsters found that Trump has convinced about a third of Americans that Biden won only because of election fraud. Is there any validity to this and how would a constitutional amendment change claims like that?

RH: Well, there is voter fraud in the United States, it’s just extremely rare. We did have an instance, for example, involving a Republican primary in North Carolina for Congress in 2018 that led to a whole new election. There’s a currently the fraud case in Bridgeport, Connecticut involving absentee ballots. So it happens, it tends to happen in smaller elections in places where there’s not vibrant news media, but it’s pretty rare. And the hardest thing to do is try to steal a presidential election because it would involve so many people. Unless you could actually change the way that the state reports votes, it would be extremely difficult to do. So, voter fraud is real, but very rare.
But there are things we could do to make it even harder. For example, we could rationalize, as I mentioned, our voter registration system. We could say that everyone who’s eligible, but only people are eligible are going to be registered and we’re going to give you a number and that number is going to follow you your whole life. So if you move from New Jersey to Wyoming, your same number is going to work with you there. And so there’s lots that we can do. And one of the arguments I make for – you started off with what’s in it for conservatives – we could make rare voter fraud, even rarer. We could also make it harder to steal elections. So I mentioned this idea that state legislatures wouldn’t be able to take away the right of the people to vote for president. Well, you may remember that was a key part of Donald Trump’s efforts to steal the 2020 election was by getting state legislatures.

JW: That’s what we call the fake electors scheme.

RH: Right. And that, even though I think that you couldn’t do that even under the rules as we have now, it would be nice to have a constitutional provision that underlines the point that the people have the right to vote and this can never be taken away by state legislatures. That wouldn’t require getting rid of the electoral college. You could still say within each state, the appointment of electors has to be done by popular vote, not by legislatures.
And I should say, since I’ve mentioned the electoral college, I’ve got four add-ons. One of them is get rid of the electoral college. There’ve been a lot of books on that. I don’t spend too much time on it even though I would support it. I think that could well be a deal breaker for Republicans, which is why I put it in the avocado add-on section. I would also abolish the Senate, which we are here in California, we have the same voting power in the Senate as people who live in Rhode Island or in Wyoming, which are very small populations. And that’s not in line with a one person, one vote ideal. I would also enfranchise former felons because what we’ve seen recently in Florida with the Florida voters voting to re-enfranchise felons and then the state legislature coming in and essentially finding a way to nullify that makes me think we can’t trust states on this issue.
And then, finally, I would deal with voting rights for people who live in US territories, people who live in Puerto Rico, people who live in Washington DC who still don’t get congressional representation, Guam, Virgin Islands, American Samoa. There are people that are part of the United States. They’re adults. They’re, except for an American Samoa, they’re considered citizens, but yet they do not have the right to vote for president. There’s lots of ways to deal with that. I think the first question when it comes to people in US territories is about self-determinations. They actually want to be fully part of the United States and be part of the rights and responsibilities of the United States. If they do, they should have the same right to vote as the rest of us.

JW: One of your claims is that a constitutional right to vote would reduce the litigation around voting. Trump filed 62 lawsuits challenging the vote count in 2020. Couldn’t he do that anyway, even if there was a constitutional right?

RH: Nobody can stop you from filing lawsuits. All you have to do is find a lawyer, and even that is optional, and pay a filing fee. The question is, would it stop serious lawsuits? Most of those lawsuits filed by Trump were not serious. Like if we had this constitutional right to vote amendment and Trump were trying to steal the election, he might have still filed those suits, but it would just be much harder. If this amendment passes, so many of the things that are the subject of litigation today would no longer be litigable, if that’s the right word.
One of the examples I give in the book involves voting rights in North Dakota. So North Dakota, you may remember, had a Democratic senator, Heidi Heitkamp. She was elected in an increasingly red state, thanks in part to the support of Native American voters. And I think, unsurprisingly, Republicans in the state legislature didn’t want Heitkamp to be reelected, so they passed a rule that said that if you want to vote, you’ve got to produce a residential street address: you live on 123 University Drive, right? So that’s easy for most people to do, but it turns out to be very difficult to do if you’re a very poor Native American living on a reservation. And so this law was aimed at that.
It took numerous lawsuits and six and a half years between the time that this law was passed and the time that the case has finally settled. This is not how we should be running our democracy. It should not take years and thousands of lawyer hours, which cost money, even if they’re by nonprofits, somebody has to pay those people. It should not be this way when it comes to voting rights. Much of this litigation would be gone, and if everybody is affirmatively registered by the government and identified, much of the basis on which things could be litigated would be done with.

JW: The hardest argument that you have to make is that there are reasons why Republicans should support an amendment. To understand this, I think it helps to look at how previous amendments to the Constitution that expanded the right to vote were passed, votes for women in 1920, votes for 18-year-olds, 1971. I think your best argument is that it will take a while, but the campaigns themselves will accomplish a lot. For example, women’s suffrage, that’s one of the most interesting parts of your book, I thought.

RH: I thought so too. I mean, I didn’t know a lot of this history, and so I was fascinated by it. I’m glad that we’re describing it, at least as one reader who thought so too. So in 1874, the Supreme Court decided Minor versus Happersett. This is a case where a woman, she was a citizen adult resident of Missouri, she wanted to vote for president. She couldn’t because the state constitution said only men can vote. She went to the Supreme Court and said, we’ve just ratified the 14th Amendment. It protects the privileges or immunities of citizenship and voting is such a privilege. And the Supreme Court said, “Yes, you’re a citizen,” which is better than it did for Black Americans. But they said to her, “Yes, you’re a citizen, but you do not get the right to vote. That’s a question of state law.”
There was a women’s suffrage movement before this case, but afterwards it shifted the battle to the states. And over the next four decades, there was organization in the states. Women and their allies organized and they fought for rights to vote. So by the time we get to 1920 and the passage and ratification of the 19th Amendment barring discrimination and voting on the basis of sex, 30 states had changed their state constitutions. So there was a popular movement around voting rights that led to changes first on the smaller level and then on the national level. That’s the model that I’m looking at. So we can’t think of the time horizon. We’re always lurching from crisis to crisis in the country in our elections. We can’t think of the timeline as only the next six months or two years. Yes, we have to worry about things in the next six months or two years, but we also have to think more longer term, so that we’re not in a constant state of anxiety and uncertainty about our elections.

JW: And part of that longer term is realizing that the Republicans may not always be the party of Trump and election denial and voter suppression. After Mitt Romney lost to Obama in 2012, the Republicans did a lot of soul searching about why that happened. They had a commission. They called it an autopsy, and they concluded that the party needed to broaden its appeal to reach out to young people, people of color, and women. And they actually had a candidate who embodied this new kind of Republican, Marco Rubio, remember him? Young person of color. Of course, Trump crushed him in the primaries that year, and the party took the opposite course. But you suggest the Trump vision of what the Republican party should be may not last forever.

RH: Well, you remember the Whigs? I mean, you do because you’re a historian, but most people don’t. Go back to the passage of the Voting Rights Act in 1965. It was supported by many Republicans. It was opposed by many Democrats. The parties looked different in 1965. Why should we think that in 2065, the parties are going to look like they do in 2024? So, we don’t know, there may be a moment. My book is ready to pull off the shelf when that moment comes. But we have a failure of imagination in this country. We also have lost muscle memory when it comes to amending the Constitution. I mentioned the 26th Amendment was in 1971, before most Americans were born. I know that probably makes you feel old like it makes me feel old, but most Americans were not born in 1971. So people have no memories of the Constitution being amended. So how can we get back to that? And it’s hard in a moment of polarization to see it, but we may get there, and we’ve got to get through the next decade first.

JW: And also, it is very hard to amend the Constitution, but in 1971, it happened very quickly, actually.

RH: Well, the 26th Amendment was kind of funny. What happened was Congress had passed-

JW: This was 18-year-old voting, 18-year-old voting we’re talking about.

RH: Right. So Vietnam War, Congress had passed a statute enfranchising 18 to 21-year-olds, went to the Supreme Court. Supreme Court issued a split decision where they said, “Yeah, you can apply this to federal elections, but not to state elections.” And then everyone’s scrambling like, “How are we going to run an election where we only let 18 to 21-year-olds vote some races but not others?” And so it was the fastest amendment ratified in US history, some amended the same day that Congress had passed the amendment, because everybody agreed with it. In the middle of the war, who’s going to be against young soldiers, which is how this thing was sold? And so it happened.
Hard to imagine it happening today given that youth are much more likely to be liberal. Same, it’s hard to imagine the 23rd Amendment, which was the one that gave Washington DC three electoral college votes. Can you imagine if that were up to today, given how Democratic DC is, that would be a non-starter, right? Just like if you – there’s talk about making DC a state, which I favor, assuming DC residents would want it. Why not do that? Well, you’re going to get a lot of Republican opposition. In fact, to make DC or Puerto Rico a state, you don’t need a constitutional amendment to do that. Congress could do it, and they could have done it back when Democrats controlled both houses. I think they should have done it. If they would’ve added DC and Puerto Rico, would’ve had four more senators, would’ve made things a little less unequal in the Senate.

JW: In the end here, we’ve talked about the distant past, the possible futures. I want to talk about the next couple of months. What is your biggest worry about the upcoming election in November? Four years ago, we had foreign interference, massive misinformation, attempts at election subversion, the fake electors scheme. Are you worried we could get a rerun of all of that?

RH: Sure, we could get a rerun. One benefit we have is we’re not running an election in the middle of a pandemic. And the pandemic caused a lot of changes in voting rules, caused a lot of litigation over those changes, so we won’t have that. And people are on guard now. I wrote back in 2009 when Obama took over from Bush, how we take peaceful transitions of power for granted in this country. We no longer take them for granted. I think people are very concerned. In fact, Republicans are more concerned about stolen elections than Democrats, if you look at polling, because they believe the last election was stolen. So people are on guard.
I don’t think things are going to look exactly like they did in 2020. We’re not going to see a storming of the Capitol. There’s going to be a very fortified fence around the Capitol. We’re probably not going to see the fake election scheme, in part because Congress changed the rules, and the Supreme Court issued an important case called Moore v. Harper that kind of shuts a lot of that down. But we have new concerns. For example, what about the insider threat of elections? What if you have people running elections who believe or say they believe the false claim the last election was stolen? Might they want to manipulate things to even the score? What about the threats of election related violence? We saw a little bit of that in 2022, less than I expected, which was a happy thing. But I think we have to be vigilant and actually as part of under the auspices of the Safeguarding Democracy Project, a committee of us issued a report called 24 for ’24 with recommendations for things that could be done in law, media, politics, and tech to make the election safer.
Some of those things can be implemented right now, and I think we can’t be complacent. I don’t think people are complacent. People are rightly concerned, but it’s not a reason for panic. Our election in 2020 was actually run very well considering that it was done in the middle of a pandemic. And so I have more confidence the election will be run fairly than that people will believe the election was run fairly–and that crisis of confidence is a very important question. A democracy depends on losers accepting the results of fair elections. But that’s not a problem with how the election is run, it’s a problem with the rhetoric around how the election is run.

JW: Rick Hasen— his new book is A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. Rick, this was great. Thanks for talking with us today.

RH: It was a real pleasure.

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Jon Wiener

Jon Wiener is a contributing editor of The Nation and co-author (with Mike Davis) of Set the Night on Fire: L.A. in the Sixties.

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