Pundits talk a lot\u2014a<\/em> whole lot<\/em>\u2014about \u201cpreserving democracy\u201d in the face of President Donald Trump\u2019s rising authoritarianism. This is not the right call. Not because I disagree that American democracy is under assault and we need to take action, but because there\u2019s a world of difference between struggling to restore a defective political order and engaging in a spirited, long term strategic fight for a real democratic future.<\/p>\n This is the problem of the authoritarian age: The liberal order gets so knocked back on its heels that it ends up having to defend the meager shreds of the otherwise indefensible. Such is the state of voting rights today.<\/p>\n When contemporary commentators and politicians speak of \u201cpreserving\u201d American democracy, I ask, what is it they are talking about preserving? The Constitution, with its near silence on the question of voting rights and its core suspicion of democratic values? The failure of the Fifteenth Amendment, which provided such a truncated right to vote for freedmen that it led to Jim Crow? Felon disenfranchisement that locks millions of people out of electoral politics? I hope they are not talking about the system of gerrymandering that allows parties to pick their voters rather than voters to pick their party. They must also be ignoring the endless use of the filibuster to destroy labor and civil rights laws in the twentieth century, and how it has come to stymy nearly all legislative progress in the Senate. They are clearly not talking about the Electoral College that went from an odd historical appendage to, in the last generation, a system that cedes the outcome of presidential elections to a handful of low-information voters in a handful of states. They are overlooking the zero-sum viciousness of current local and state level ground wars aimed at restricting voting and engulfing local ballot counting procedures in political chaos. I am sure they are not talking about the latest trend: the circular logic of voter suppression in the name of stopping a mythical scourge of \u201cvoter fraud.\u201d<\/p>\n As restrictions on the franchise increase, platforms shrink, inflammatory rhetoric rises, and cynicism wins the day. Partisans cull and shape an electorate to fit their own purposes rather than the purposes of democracy. In essence, elections are not about the interests of the national polity. They end up a chaotic, manipulated, highly politicized\u2014and often racist\u2014state level affair that make political rights a byproduct of whichever party can capture the system. The insidious genius of it all is that corruption and oppression can be dismissed as local aberrations. But the entire system is a shambolic pile of local aberrations. As labor lawyer Thomas Geoghegan<\/a> put it in Foucauldian terms, \u201cWe have a discourse of representation\u201d that to believe requires we \u201cignore the Constitution.\u201d<\/p>\n When, inevitably, the Democrats win back the instruments of national office, they\u2019ll most likely forget the enduring crisis of democratic institutions. The worst outcome would be to proclaim that the system worked and move on. One can already smell the complacency\u2014the Trump era is over, and now we\u2019re back to normal. That moment should, instead, be the moment for radical reform, a project to move voting rights and enforcement from a patchwork controlled by states toward a system of equal protection under federal law\u2014preferably through a constitutional amendment.<\/p>\n It is imperative to understand that the subversion of American democracy is not a bad actor problem; it is a bad system problem. Stop worrying about how President Trump will destroy democracy and start thinking about how a feeble democracy produced him. The people are better than we think, they just need a better system. Yet, as the history of voting rights shows, we have frequently fallen short of the needs of the citizenry, despite the maudlin mythology of \u201cAmerican democracy.\u201d<\/p>\n A<\/span>merican democratic mythology begins with scrappy patriots fighting off the British crown in order to create a democratic republic. The other side of the story was about how a fear of the untethered masses haunted the 1787 Constitutional Convention. The need to contain power in the hands of the elite\u2014and suspicion of the unreliable \u201cmob\u201d\u2014was therefore baked into the constitutional system. Combine that with the need to appease the slave states, and the requirement to keep the states knit together in a federated republic, and we have a once-brave eighteenth-century electoral structure that has long outlived its usefulness in the twenty-first century.<\/p>\n To understand constitutional electoral systems, one must read the silences. The most deafening silence is an affirmative, federally guaranteed right to vote. It could be argued that the language stating that \u201cevery State in this Union\u201d was to have \u201ca Republican Form of Government,\u201d which appears in Article IV, Section 4 of the Constitution, offers an implicit right to vote, but, as we shall see, this has not proven to be the case. This absence is the fatal flaw that plagues us today. When the Supreme Court ruled in Bush v. Gore<\/em> (2000) that \u201cthe individual citizen has no federal constitutional right to vote for electors for the President of the United States\u201d until the states chose some kind of electoral system, it scandalized the nation. But it was also the truth.<\/p>\n A similar uncomfortable silence dominated the Constitutional Convention around the question of presidential selection. The discussion typically rested on the presumption that the legislature, not the direct vote of the people, would select the chief executive. A series of factors\u2014suspicion of the demos, giving power to small states (though less important than people think), assuaging slave states, and, towering above all else, failing to really think through the problem of voting in a federated national system\u2014made for a very thorny procedural set of issues. Many ended up fearing that leaving the decision of the presidency to the legislature would lead to factionalism and corruption, so the search was on for some kind of fresh idea for selecting the President. The founding fathers left the problem to the last minute, and a committee came up with the not-so-grand plan of states voting to deliver electors to a \u201ccollege\u201d where they would deliberate and vote for the President and vice president. Representation in the college would mirror the congressional delegation in size: the two senators plus the number of representatives.<\/p>\n As the voting rights historian Alexander Keyssar put it in his wonderful history of the Electoral College, a \u201ccursory glance at the historical record makes plain that the system has not survived because of the shattering brilliance of the arguments made in its behalf.\u201d Whatever scheme a state might choose to run its elections for the presidency got funneled through the loopy procedural machinery of the Electoral College. That system, which uses the combined number of members of the House and Senate to build the power of a state\u2019s delegation to the Electoral College, exacerbates the already ridiculous Senate system that gives North Dakota the same political power as New York. As voting rights champion Richard L. Hasen argues, both the Senate and the Electoral College \u201cwould be clearly unconstitutional under current interpretations of the Equal Protection Clause if they were not expressly stated in the Constitution.\u201d<\/p>\n The result produces less of a national election and more of a series of winner-take-all statewide elections. Even this framework might work if there was a secure right to vote and states were divided up into district level races. Yet this has not been the case. While slavery was not the sole driving factor in the creation of the Electoral College, the politics of slavery\u2019s long, burning aftermath have been the central element in preventing the College\u2019s reform.<\/p>\n After the lack of a federal right to vote and the hastily constructed Electoral College, the third key failure of democracy in the Constitution was the Three-Fifths Compromise. Here was a special piece of legislative insanity specifically designed as a sop to the slaveholder interests. Counting enslaved humans as three-fifths of a person in the census often goes down as an insult to the humanity of people of African descent. By increasing the population of the states by including its noncitizens, however, it achieved yet another insidious goal: It supercharged the slave owners\u2019 political power. Ironically, the Three-Fifths Compromise was responsible for the acrimonious and messy, election of the primary author of the Declaration of Independence himself, Thomas Jefferson. Without the three-fifths clause, the Virginian who was the great champion of American democracy probably would not have been elected in 1800 over the Yankee John Adams. \u201cThe Negro votes made Mr. Jefferson president,\u201d Senator William Plumer of New Hampshire famously noted.<\/p>\n Despite these three great flaws in the constitutional voting order\u2014no right to vote, the Electoral College, and the Three-Fifths Compromise\u2014the granting of the franchise to white property-owning men did constitute the beginning of a democratic victory that would begin to open the door to others who could make similar claims. By the time of President Andrew Jackson, the right to vote came to include almost all white men, making the United States the most democratic place in the world. Fueled by the penny press, torchlight parades, and fierce rough-and-tumble partisanship, a robust democratic culture took root. Even moderately liberal historians agree, however, that Jacksonian political culture was premised upon a national \u201cherrenvolk<\/em>\u201d or \u201cmaster race\u201d democracy that not only tolerated racism but maintained racial exclusion as a foundational principle. Even democracy in the free states, argued one Whig<\/a>, \u201cplants its heel on the neck of the abject and powerless negro, and hurls its axe after the flying form of the plundered, homeless, and desolate Indian.\u201d<\/p>\n Racial exclusion finally began to fall during the \u201csecond founding\u201d or \u201csecond republic\u201d delivered by the Reconstruction amendments. The Thirteenth (emancipation), Fourteenth (equal protection and birthright citizenship), and Fifteenth (the right to vote without regard to \u201crace, color, or previous condition of servitude\u201d) Amendments transformed U.S. democracy. The Fifteenth Amendment went on to be heralded as the ultimate triumph of meaning of the Civil War, even though its weak negative phrasing continued to avoid an affirmative right to vote and left open an enormous number of alternative methods for suppressing the franchise\u2014including literacy tests, poll taxes, or just plain intimidation and harassment.<\/p>\n The brief flourishing of biracial democracy during Reconstruction collapsed in the face of white mob violence, a hostile Supreme Court, and political neglect in the 1870s. Then came the notorious white Southern \u201credemption\u201d from alleged \u201cNegro Republican domination\u201d: sharecropping, Jim Crow, convict leasing, segregationist state constitutions, and the formal end of the Black right to vote in the South by the turn of the twentieth century. At that point, the Three-Fifths Compromise became a five-fifths compromise as free Black people remained on the census but had few voting rights, continuing to tilt the scales toward the politics of white supremacy. As W.E.B. Du Bois put it in a perfect if oft-quoted summary, \u201cThe slave went free, stood a brief moment in the sun, then moved back again toward slavery.\u201d<\/p>\n \u201cOne of the Constitution\u2019s most enduring mysteries,\u201d as one scholar<\/a> put it, is contained in Section 2 of the Fourteenth Amendment. It denies states the right to count people for congressional apportionment if those states denied people the right to vote. The idea was simple and brilliant: Enfranchise people or lose congressional representation. This powerful weapon sat on the desk of the Republican Party to use against segregationist Democrats for generations, but nobody ever loaded it, let alone wielded it, against the enemy. It\u2019s still laying around, unused, gathering dust.<\/p>\n After the sulfuric wave of state constitutions designed to disenfranchise Black voters at the dawn of the twentieth the century, the terrible logic of federalism and disenfranchisement was driven home by Oliver Wendell Holmes, Jr. in Giles v. Harris<\/em> (1903). Jackson W. Giles sought to make election officials in Montgomery County, Alabama register him and thousands of other recently disenfranchised Black voters. His complaint argued that the \u201cwhole registration scheme of the Alabama constitution is a fraud upon the constitution of the United States.\u201d Holmes, writing for the majority, offered a disturbing argument: The entire system was so corrupt that the Court could not be a party to adding Giles to a rotten system. Worse, he noted, that if the Supreme Court ruled in Giles\u2019s favor, the gesture \u201cwould be an empty form.\u201d Holmes implied that unless the Court was willing to take the drastic step of supervising voting, as the federal government\u2019s bayonets had done Reconstruction, it could not realistically have a say over state-level political rights. White supremacy was just too big to challenge. Giles,<\/em> according to legal scholar Richard <\/a>H. <\/a>Pildes<\/a>, was \u201cone of the most fascinatingly repellant analyses in the Court\u2019s history,\u201d that has since been \u201cairbrushed out of the constitutional canon.\u201d This disappearance occurred not because the decision didn\u2019t matter, but because the entire issue of democratic governance has not been taken seriously in constitutional thought and practice.<\/p>\n The women\u2019s movement grew up alongside abolition and civil rights, and after generations of struggle, managed to achieve one of the few expansions of voting that went relatively uncontested: the end of discrimination by sex through the Nineteenth Amendment (1920). Although there was plenty of fuss at the time\u2014over the legitimacy of its passage, its applicability to state-level voting, and whether it applied to primary elections\u2014the Nineteenth amendment, unlike the flimsier Fifteenth Amendment, was one of the least contested and most successful expansions of the American franchise. Yet today, in a country that once came close to passing the Equal Rights Amendment, discussion has emerged among the radical Christian right about ending women\u2019s voting rights. \u201cThe 19th Amendment was a bad idea,\u201d one Christian nationalist argued online<\/a>.\u00a0Foreshadowing future actions to restrict voting, he claimed the need \u201cto protect our nation from their suicidal empathy.\u201d<\/p>\n The next great leap forward in voting rights has proven neither as great nor as durable as previously hoped. The Voting Rights Act of 1965, a legislative monument to the shoe leather and blood of a generation, was the most significant federal intervention in voting rights since Reconstruction. The act legally ended \u201cthe denial or abridgement of the right to vote on account of race or color.\u201d Yet it still left voting in the hands of the states, only maintaining that in whatever system a state concocted, they could not discriminate in access to voting rights. For the first time, in 1965, it was reasonable to think the United States could be considered an actual democracy.<\/p>\n The Voting Rights Act included a \u201cpreclearance\u201d provision, requiring certain jurisdictions with particularly unfair voting records to have changes to their voting systems cleared by the U.S. Attorney General or the U.S. District Court for Washington, D.C. Yet a second, long, slow white redemption, much like the one following Reconstruction, has since diminished the power of the Voting Rights Act. Shelby County v. Holder <\/em>(2013) ended preclearance provisions and thus federal oversight. Chief Justice Roberts wrote that in the South, \u201cthings have changed dramatically,\u201d justifying the evisceration of the Voting Rights Act. After Shelby County v. Holder<\/em>, the states\u2019 rights model of local and state limitation and repression of the vote returned with a vengeance. It has been propagated by Republican state legislatures seeking to control the process just as segregationist Democrats once did, though less simply as a tool of racial control and now one of naked partisan power.<\/p>\n Shelby<\/em> County v. Holder<\/em> is worth pausing to consider fully. In Supreme Court Justice Ruth Bader Ginsburg\u2019s dissent, she argued, contrary to my argument here, that a federal right to vote did exist. \u201cThe Constitution uses the words \u2018right to vote\u2019 in five separate places,\u201d she argued. Those included the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth (elimination of poll tax), and Twenty-Sixth Amendments (lowering minimum age for voting). \u201cEach of these amendments,\u201d she continued, \u201ccontains the same broad empowerment of Congress to enact \u2018appropriate legislation\u2019 to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U.S. citizens.\u201d While theoretically Justice Ginsburg might be correct here, in practice the courts and the legislature have proven her pragmatically wrong.<\/p>\n The post-Voting Rights Act moment was nonetheless propitious. The Electoral College came close to being abolished. In 1968, segregationist Alabama Governor George Wallace ran for President with the hopes of winning enough electoral votes to deny then-presidential candidates Richard Nixon or Hubert Humphrey the needed majority to win the presidency\u2014thus throwing the race to the House of Representatives. Wallace did not achieve this, but the whole thing was too close for comfort. Back when bipartisanship was possible, President Nixon backed Democratic Indiana Senator Birch Bayh\u2019s constitutional amendment to abolish the College. The House voted an astounding 338 to 70 to send the immensely popular amendment to the Senate. Then, of course, it hit another obstacle to democracy: a classic Southern filibuster sponsored by South Carolina\u2019s Strom Thurmond. One anti-democratic mechanism trumped the reform of another.<\/p>\n The halcyon days after the Voting Rights Act saw further expansions: the Twenty-Sixth Amendment lowering the voting age to eighteen in 1971, the addition of minority languages in 1975 and physical disability in 1982, and finally the National Voter Registration Act (aka the \u201cMotor Voter Act\u201d) of 1993, which required states to offer the opportunity for driver\u2019s license applicants to register to vote at the same time. This upward trend may have masked the deeper, more problematic history of voting rights in the United States, lulling the nation into a sense of infinitely expanding democracy. Not all vectors were promising, however, as the Court decided in Richardson v. Ramirez<\/em> (1974) that states, in this particular case California, could deny the right to vote to convicted felons\u2014even those who had served their time and finished parole. It was the shape of voting rights to come.<\/p>\n The recent Louisiana v. Callais<\/em> further guts the Voting Rights Act by striking down the racial protections offered in fair districting. It appears to be the final act of white \u201credemption,\u201d as they called it after Reconstruction, in the modern civil rights era. At issue in the case were Louisiana\u2019s two majority-minority congressional districts (out of six), which had created a way around the historic dilution of the Black vote. Callais<\/em>, however, renders the core of the Voting Rights Act, in the words of Justice Elena Kagan\u2019s dissent, \u201call but a dead letter.\u201d It is easy to reach the wrong lesson on the decision. The Court\u2019s radical overreach, in which partisan gerrymandering is affirmed while racial protections are not, shines a light on the real problem: The United States needs to get out from the endless project of plugging leaks in the ship of racial politics and establish an incontrovertible and universal right to vote\u2014one that enters into a nonpartisan, equitably rendered, system of representation.<\/p>\n A close reader of this schematic historical overview might note a couple of discernable patterns. One is a three-steps-forward, two-steps-back history of voting that looks more like a ground war than a triumphant democratic narrative. The second is that no matter what form the expansion of voting rights took, it was in a struggle with the most enduring problem in American history: federalism, race, and the lack of an affirmative right to vote. Alexander Hamilton hoped that federal power would tame the states, or what he described as the \u201cinfinity of little jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.\u201d His description was right, but his faith was wrong. Hardly the \u201claboratories of democracy\u201d that Supreme Court Judge Louis Brandeis imagined in 1932, the states have become a petulant swamp of electoral capture, racial repression, and democratic subversion.<\/p>\n P<\/span>resident Trump\u2019s 2016 victory was a story foretold, if not in 1789, then certainly in November 2000\u2014when everything about the entire dilapidated electoral process came bursting into the bright light of day.<\/p>\n The 2000 campaign featured the stiff and wonky Al Gore fighting off the affable but wholly unserious George W. Bush. Gore beat Bush in the popular vote by 540,000 votes. Then, with every state except Florida counted, Gore had 267 Electoral votes to Bush\u2019s 246. One of them needed 270 electoral votes to win. Florida held the remaining 25 electoral votes, but the Florida race appeared to have fallen into a statistical tie. Television networks, based on early polling, first gave the race to Gore, then called it for Bush, then said they couldn\u2019t call it at all. For more than a month, from election day on November 7, 2000 through December 12 when the Supreme Court ruled on the case at Republicans\u2019 request, voting rights became an insidious ground war. What shocked the nation was merely a Florida microcosm of a system long overdue for reform.<\/p>\n We think of November 2000 as a problem of an inscrutable collection of hanging chads, dimpled ballots, or illegible \u201cbutterfly\u201d ballots. The stock media image was one of election officials studying ballots with magnifying glasses to divine the voters\u2019 intentions. But the 2000 election was also indicative of how irretrievably, disastrously messed up the American voting system has become. I\u2019m not even talking about the quality of campaigns, the money that corrupts the system, the structures of the parties, the media game\u2014any of that. Just the electoral system.<\/p>\n The most obvious problem was the Electoral College itself. Swing states dominated the 2000 campaign, leaving the vast majority of states, large and small, completely out of the campaign equation. On top of the madness of the Electoral College, an endless series of additional problems came to the surface. As Al Gore aide Ron Klain put it, \u201cIf I handed you how Florida worked on a piece of paper, you would say, \u2018This is a Third World banana republic.\u2019\u201d The state vote was shaped by the suppression of voter eligibility\u00a0through felon disenfranchisement, restricting times and processes for registering to vote, and an aggressive voter purge that removed qualified voters from lists. The job of purging voters from the rolls was outsourced by Katherine Harris, the Republican Secretary of State and the co-chair of the state\u2019s Bush campaign. All sorts of errors surfaced in the purge of 57,000 ex-felons, which most likely would have been enough people to have delivered the state to Gore. Today, Florida wins the prize for the largest number of voters disenfranchised for felonies, with close to a million people stripped of their rights\u2014the vast majority of whom have completed their sentences but have failed to pay various fees and fines.<\/p>\n In the midst of more than a month of political chaos in Florida, power struggles filled the void. As Republican brawler James Baker argued in the Florida fight, \u201cDo you want to be ideologically pure, or do you want to win?\u201d The Democrats\u2019 Warren Christopher seemed to choose the former answer, looking to prop up a liberal order that barely existed. One can draw a direct line from the ugly \u201cBrooks Brothers Riot\u201d of Republican operatives trying to shut down a recount of the vote, to Trump many years later championing the \u201cBig Lie,\u201d to the storming of the Capitol. Vicious bullying always risks filling in the failures of a robust electoral system.<\/p>\n In the end, the Bush campaign asked the Supreme Court for a stay on the Florida recount on the grounds of the Fourteenth Amendment, which guarantees equal protection before the law. But what might constitute equal protection in such a case? Counting or not counting? If counting, then counting what?<\/p>\n The legal complexities of what constituted a proper count and what body got to pursue it (the state supreme court, the state legislature?) mattered less than what ended up looking more like a partisan power grab by the conservative majority of the Court. The majority found that the many different vote counting systems being used to gather the \u201cintent of the voter\u201d violated the Equal Protection Clause, and it halted the recount that had been ordered by the state court. It was a blood-boiling scandal that produced little in the way of reform. It did, however, affirm that there was no individual constitutional right to vote.<\/p>\n It continues to be a stunning fact, no matter how often it is said, that a Democrat won the popular vote for the White House in every presidential race from 1992 to 2020\u2014with one exception, in 2004, when President Bush won the popular vote against John Kerry during a war launched on fraudulent claims. No wonder the Republican Party is choosing electoral chaos over legal order. The present Trump-induced turmoil, it is worth remembering, began in 2016 when President Trump won the Electoral College, but Hillary Clinton beat him in the popular vote by over 2.86 million.<\/p>\n What reforms happened after Bush v. Gore<\/em>? Almost none, as the \u201cwar on terror\u201d quickly took over. The \u201cEvery Vote Counts Amendment,\u201d an attempt to get rid of the Electoral College in 2005, didn\u2019t get far off the ground. There have been plenty of other ideas out there since. The \u201cFor the People Act,\u201d a bill of major reforms that would help rationalize this system, limit gerrymandering, and tame money flowing into elections, passed the House in 2021 but was blocked in the Senate. The \u201cJohn R. Lewis Voting Rights Advancement Act\u201d would have restored lost aspects of the 1965 Voting Rights Act. None of these efforts, though, attacked the core lack of the right to vote.<\/p>\n C<\/span>learly, reformers have no shortage of ideas to repair the system, but none will end the ground war. The sole best idea is to engage in a long-term struggle for a constitutional amendment affirming a universal right to vote that is not skewed by the eighteenth-century logic of the Electoral College or the monstrous process of partisan gerrymandering. One person, one vote, equally weighted.<\/p>\n Obviously, a constitutional amendment is an extraordinary difficult thing. But the intellectual tide is turning. Legal scholar Aziz Rana has recently shown, as the subtitle of his book The Constitutional Bind<\/em> argues, \u201chow Americans came to idolize a document that fails them.\u201d Jill Lepore, who directs the Amend Project, has recently looked at reviving the amendment process in her new book We the People<\/em>. Law professor Richard L. Hasen put forth plans for A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. <\/em>Anyone following sites such as the Democracy Docket<\/em>, which burns the midnight oil detailing the endless ground campaigns to preserve voting rights, cannot help but conclude the system is teetering on the edge. The National Constitution Center, committed to nonpartisan civic education, has launched its Article V: Amending the Constitution<\/em> initiative. In short, it is easy to feel the intellectual ground shifting on constitutional change, even if subtly. While Republicans are on the war path about voter corruption, perhaps there is even a bipartisan space for a carefully crafted campaign that unites people on the core value of democracy. The divide now is less about red versus blue, than liberal versus non-liberal.<\/p>\n On the non-liberal front, President Trump was prepared to overthrow the entire constitutional order because he did not win the 2020 election. \u201cA Massive Fraud of this type and magnitude,\u201d he wrote online, \u201callows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great \u2018Founders\u2019 did not want, and would not condone, False & Fraudulent Elections!\u201d With such a threat from the then former President, one might be happy to have the right to vote dispersed all over the states and municipalities. The risk of centralization is that it could fall into nefarious hands. Well before the current President, it already had fallen into nefarious hands on the state and local levels. And had there been a federally backed right to one person, one vote, equally weighted, Trump never would have gained power in the first place. This is why we need a federal commission on electoral oversight. The Federal Reserve is a potential model here. As even the radically right-wing Supreme Court seems to believe, the Fed must remain independent, and the same concept should be applied for an electoral oversight commission: a militantly independent federal body with the capacity to ensure the right to vote.<\/p>\n