Surprise! You Do Not Have the Right to Vote with Rick Hasen

Episode Notes

Transcript

Speaker 1:

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of Law with campuses in Santa Barbara and Ventura.

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Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts La Deans, Jackie Gardina and Mitch Winick.

Rick Hasen:

I’d like us to have a constitutional right to vote, not just for president but for other offices. That’s why I think we need to change the Constitution to affirmatively guarantee a right to vote. When I talk to my students or I talk to people in the public, they’re shocked to learn. What do you mean the Constitution doesn’t guarantee the right to vote? Let me look through it and find it. When voting is mentioned in the Constitution, it’s almost always in the negative. If you’re going to hold an election, don’t discriminate on the basis of sex or race or someone being between 18 and 20 years old, not you have an affirmative right to vote.

Speaker 2:

That’s our guest, Rick Hasen, author and legal expert on voting and voting rights.

Jackie Gardina:

Mitch. When we started SideBar, I’m not sure either of us thought that conversations about basic individual and civil rights would revolve around basic concepts of democracy like voting rights, but as we noted in our recap of season one, it has been a theme that has woven its way through a majority of our episodes. Today, we’re going to tackle voting rights directly and once again, we are fortunate to have a leading expert on voting and voting rights to walk us through where we are and where we need to go if we actually want to achieve that pluralistic, multiracial democracy we’ve been discussing. Today we’re going to be speaking with Professor Rick Hasen. He’s an internationally recognized expert in election law writing as well in the areas of legislation and statutory interpretation, remedies and torts. Hasen served in 2020 as a CNN election law analyst and as an NBC News, M-S-N-B-C election Law Analyst in 2022.

He directs UCLA’s laws safeguarding democracy, project op-Eds and commentaries have appeared in numerous publications including the New York Times, wall Street, Journal, the Washington Post Political and Slate. He also writes the Off quoted election law blog, which the ABA Journal named its Blog 100 Hall of Fame, his 2022 book, cheap Speech, how Disinformation Poisons Our Politics and How to Cure. It was named one of the four best books on disinformation by the New York Times and his new book, A Real Right to Vote, how a Constitutional Amendment Can Safeguard American Democracy was Just Released this month. Welcome Rick.

Rick Hasen:

Great to be with you

Mitch Winick:

Rick. You’ve spent the past several years in the legal cauldron on what we could call fairly Trump, the United States. The public has been witness to supreme court cases, state court cases, criminal cases, civil cases, all involving the formal president. The cases have been incredibly complicated, raising legal and political questions about our democratic process, voting rights, election law, constitutional law, federal versus state authority, impeachment, insurrection, business fraud, civil torts. Well, fortunately we’ve looked at your bio and consider you our resident expert on all of those things, but it’s exhausting to work through these issues even for those of us with a legal background. What I worry about is less the specific results of the individual cases than the effect that these cases involving the former president are having on public perception and trust in the law, the democratic process, the constitution and the legal system. You’re a frequent commentator on the public impact of these cases. From the public’s perspective, do you believe that our country’s system of checks and balances is working broken or somewhere in between?

Rick Hasen:

Well, I think the primary thing that we’re seeing is that the wheels of justice turn quite slowly, that it takes a long time for fair processes to go forward and that is a challenge when you’re up against a candidate who’s running for election as Trump is and also we have an old rickety constitution and it has parts that many of them have not really been in play in recent years from the emoluments clause, which is something that people weren’t talking about before Trump was president in terms of taking gifts from foreign individuals and others to issues of disqualification under the 14th Amendment for people who engaged insurrection, you put the combination of these arcane rarely used constitutional provisions on the one sense with a slow moving process and with a candidate and a former president who’s a norm breaker if not a law breaker. It’s puts a lot of stress on the system,

Mitch Winick:

So Rick, the public trust in the US Supreme Court is clearly at an all time low. I think it’s fair to say that the public’s trust in Congress is even lower, and if this isn’t troubling enough support for the third branch of our republic, the executive branch is really no better for either political party. All three of these branches are dependent on free and fair elections to function as a democracy. Do you think our current election laws at the federal and state level provide the protection we need to maintain our democracy?

Rick Hasen:

We’re in a highly polarized moment in our politics. When you think about how the constitution is designed, it’s designed for separation of powers across the branches, so the Congress being a check on the president, the judiciary being a check on both Congress and the president, the president being able to appoint justices to the court subject to congressional approval rights. There’s all of these feedback loops. When Trump was in office, we didn’t think about Trump versus Congress, right? We thought about Trump versus Democrats in Congress and now today we think about the Republican house and the Republican potential filibuster in the Senate against the Democrat Joe Biden. It’s very hard in such a system to have accountability, so something goes wrong, who are you going to blame? Let’s take situation at the border. The executive has a lot of power over the border and yet there’s reason to believe that you need additional legislation to give the executive more power, and yet Congress can’t agree on that and it’s now become a political issue. If people are unhappy with immigration, who are they going to blame? Because we have this divided system across parties. We vote separately for a single member of Congress and our own state senator versus the president. It’s just not a system that’s designed say compared to our parliamentary systems.

Jackie Gardina:

Rick, I just want to stay with the court for a moment and talk about Trump v Anderson, the case involving whether Donald Trump was eligible to be on the ballot pursuant to section three of the 14th Amendment. You and two colleagues wrote an amicus brief or a friend of the court brief to advocate for the Supreme Court to make a definitive decision about whether Donald Trump was eligible. You and your co-authors didn’t take a position on the issue itself. Rather you employed the court to not punt. It doesn’t appear the court took your advice. What are you and your co-authors concerned about? What would happen if the court left the issue undecided?

Rick Hasen:

The Constitution says that a person who engaged in insurrection is disqualified from serving in office, and if that office includes the presidency, then if the courts are not going to decide that question and the states cannot decide that question, then it potentially falls to Congress. One potential issue that could come up is imagine we get to November, it’s Trump versus Biden two, and let’s say that Trump appears to win in the electoral college, but Democrats control the Congress. Would they take their constitutionally mandated power to determine that Trump is disqualified under this provision of the Constitution? So imagine you’ve got an election winner and the opposition party is going to try to disqualify him. Whether or not there is a good legal basis for this, it presents grounds for great political instability and that’s why Professor Ned Foley Republican lawyer Ben Ginsburg and I filed a brief. We often don’t agree on substantive election law things, but we agreed on this point that having a definitive resolution of this issue would help the country because doing so would make it less likely that we have chaos and even potential violence come either November or in January of 2025 when Congress counts the electoral college votes.

Jackie Gardina:

Having just listened to the oral argument, was there something unexpected given the court’s history and the justice’s philosophies?

Rick Hasen:

When Trump argued his case or his lawyer argued his case Jonathan Mitchell, there was much less emphasis on the question. This very hyper-technical question about whether or not the president is an officer of the United States, but if you looked at the briefing, that was where they put almost all their eggs. The Trump team was making this textual argument and the focus of the oral argument was on a much different question. It was on what we might call the race to the bottom. If you start letting states disqualify presidential candidates on grounds, they participate in insurrection. What’s going to stop, say every Republican state from disqualifying Joe Biden in every democratic state from disqualifying Donald Trump if there’s not going to be a single standard, if you have a situation where whichever state goes first and makes a factual finding, say in the state court as Colorado did, and that factual finding has to be deferred to by the US Supreme Court, then you have a first mover problem.

It would just be kind of the luck of the draw as to what the first district court judge or state court judge decides the issue to be. So there was a strong sense that the lack of uniformity in a federal election, particular election for president is problematic. This is somewhat intention with what the Constitution says. Article two of the Constitution says that states through their legislatures gets to set the manner for choosing presidential electors. In fact, as recently as the year 2000 in the Bush versus Gore case, the case that ended the dispute of 2000 election, the Supreme Court reminded us that people do not have the right to vote for president. It’s not guaranteed in the constitution. All the Constitution says, is that an article to it? States get to set the manner for choosing presidential electors, so a state legislature presumably through a duly enacted law, could give that power back to itself and say, we’re not going to hold an election in Arizona for president. The legislature is going to decide who gets our electoral college votes, and so if they can do that, then why can’t they have a system where they disqualify someone on grounds of potentially being an insurrectionist? They wouldn’t necessarily need to have the kind of uniformity that the Supreme Court seemed to stress was necessary.

Jackie Gardina:

We’re going to take a quick break and then continue our conversation with Professor Rick Hasen

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Jackie Gardina:

Right after Colorado decided that Trump was ineligible to be on the ballot because he engaged in an insurrection. Critics claim that the decision was undemocratic. The voters should decide whether Trump should be president. Now you’ve just told us that there’s no constitutional right for me to vote for president and that a state can actually determine a different matter, but I was kind of surprised to hear two Supreme Court justices raise this same concern. So how do you respond to critiques about the undemocratic process?

Rick Hasen:

The disqualification provision is part of the 14th Amendment. The 14th amendment was adopted in a democratic way. It was a constitutional amendment which required a vote of a super majority of each house of Congress had to be ratified by three quarters of the states. These are the ways in which we choose what our rules are. Just like for example, the Constitution which was adopted with approval of the state says you’ve got to be at least 35 years old in order to be president. We might think that’s a good rule or not a good rule, but it was democratically chosen. We also have a natural born citizenship requirement. Some people think why shouldn’t Arnold Schwarzenegger be able to run for president? I think this some merit to that argument, but the answer is not that it’s undemocratic, it’s that it was adopted through a democratic process and if we want to change it, we should change the process.

The problem is that changing something in the Constitution is quite difficult. It requires this super majority vote in both Congress and in the state. Legislatures were kind of stuck in some ways even though the very issue of you not having the right to vote for President in Bush versus Gore, the court said, well, history has favored the voter, but it may not always stay that way. Well, I’d like it to stay that way. I’d like us to have a constitutional right to vote not just for President but for other offices. That’s why I think we need to change the Constitution to affirmatively guarantee a right to vote. When I talk to my students or I talk to people in the public, they’re shocked to learn. What do you mean the Constitution doesn’t guarantee the right to vote? Let me look through it and find it. When voting is mentioned in the Constitution, it’s almost always in the negative. If you’re going to hold an election, don’t discriminate on the basis of sex or race or someone being between 18 and 20 years old, not you have an affirmative right to vote.

Mitch Winick:

Let me stick with that for just a moment. I heard what you said and our listeners just heard what you said, but for the non-lawyer, non constitutional expert, walk us back through this idea that we don’t have a right to vote for the President of the United States. I just sent in my mail ballot in California and there was a place right on the ballot that I got to color in the little circle and it had a candidate’s name right there. Let me have you put your historian hat back on in plain English. Tell us how is it possible that we don’t have a right to vote for President?

Rick Hasen:

So you got to go back to the Constitution’s founding. We’re going back to 1789. If you go back and look in that constitution, let me remind you that not only did the Constitution in Article two, as I mentioned earlier, not include a right to vote for president, but instead says that state legislatures get to set the manner for choosing presidential electors. There was also no right to vote for Senator. We didn’t get that right to vote for Senator until the 17th Amendment at the beginning of the 20th century. Even as to the House of Representatives there, the Constitution does guarantee an election, but it says who can vote in that election? Whoever is qualified to vote under state law for the state legislature. So if for example, a state had a literacy test or a state had a whites only rule at the time of the Constitution or as every state did only allowed men to vote or property owners to vote, that would be just fine for voting for the House of Representatives.

This was something that was not going to be subject to this kind of federal implementation of these laws. Now over time, there were some periods of greater enfranchisement and some retrenchment right after the Civil War in the former slave states, before Confederates essentially got back their power before white supremacy reigned again at the end of the 18 hundreds, there was a period of black enfranchisement in the South and then violence beat that back even after the passage of the 15th Amendment which says no discrimination in voting on the basis of race, we still had it because the Supreme Court was not going to enforce it. I talk about in my book how in 1903 in a case called Giles versus Harris, the Supreme Court said they had no power to enforce the 15th Amendment. It was not until Congress passes the Voting Rights Act of 1965 that you essentially get real registration for black voters in the South and of course the history of women. It’s very similar, 1874, the Supreme Court says the Constitution doesn’t guarantee women the right to vote despite the fact that the passage of the 14th Amendment guarantees citizens all the privileges or immunities of citizenship it takes until 1920 until the US Constitution gives women the right to vote. If you look at the history of the Constitution, it shouldn’t surprise you that there was no enfranchisement. What should surprise you is how much enfranchisement we have today given how antiquated and antis small Dhir democratic the original constitution was.

Jackie Gardina:

I want to recommend the book not just for what it does in terms of giving a path for the future, but really for the history lessons embedded in the book. They were fascinating for me, so thank you for that. You do more than propose a right to vote. It’s much more complex than that. One of the things that you also do is you call for votes to be equally weighted and I think that also comes as a surprise to listeners. What does this mean and why do you think it’s necessary to make a constitutional right that my vote be equally weighted? How is it not equally weighted?

Rick Hasen:

Today your votes are mostly equally weighted except for US Senate and the presidency as I’ll talk about, but the reason they’re equally weighted is because of some precedents from the Supreme Court in the 1960s. These are cases that established a principle of equal voting weight. I’m not convinced that the current Supreme Court, if the issue came back before it would actually agree that this is part of the Constitution, they might say those cases were wrongly decided. So I want to enshrine it in the Constitution further. If you think about the Senate, so here in California we’ve got a very large population. You compare us to say Wyoming or Rhode Island with very small populations. We have equal representation in the Senate that is not equally weighted voting. The electoral college piggybacks on representation in the House and Senate. It says Your state’s electoral college votes equal to your number of senators. Everyone has two plus however many representatives you have based on population, and so it too reflects something that is not the equal weighted voting idea.

Jackie Gardina:

You have in your book presented an incredibly I think, sound approach to both a basic amendment which kind of sets forth the basic rights that you think are important, but then you also add onto that in an advanced amendment that actually incorporates more rights. But I wanted to pivot to a related issue that is of considerable concern in the 2024 election and a topic of your 2022 book, cheap speech, how disinformation poisons our politics and how to cure it. We’ve had a number of guests on SideBar talking with us about that delicate balance between free speech and disinformation. Drew Liebert and Jonathan Meine of the California Initiative for Technology Democracy. Jeff Caif, author of Liar Ne Crowded Theater and orally Lo Bell, author of Equality Machine, have all presented some very thoughtful but different views on who should be in charge of policing speech, especially during elections. What are your thoughts?

Rick Hasen:

This presents a difficult question for a society that is committed to both principles of free and fair elections where voters have good information to make good decisions and principles of free speech that says, we don’t trust the government to be policing information, especially political information, so how do you balance those things? In my book Cheap Speech, I talk about these issues and for example, suppose you want to pass a law that says it’s against the law to lie in an election. That would be a kind of law that we very hard to enforce. So let’s say that in the 2024 election, Donald Trump says the 2020 election was stolen, so who’s going to decide if he’s lying? I mean, I think he’s lying. I’ve studied the election very closely, but do we want a government body saying he’s lying and potentially penalizing him or even calling it out as a lie on the part of the government that is very problematic and having a law that would say make it illegal to lie in a campaign.

My opponent voted to raise taxes six times. Oh, that’s a lie. Having a truth commission that would determine that or penalties for lying, that raises some very profound issues of free speech and it would be dangerous. So think of the president that you trust the least and imagine that she gets to appoint the speech czar who gets to decide what’s true or not. You can see what the dangers are. On the other hand, imagine a law that says it’s a crime to lie about when, where, or how people vote. For example, there was a guy in 2016 named Douglas Mackey who posted information on social media posing as a black woman and I think also as a Latino woman and said, support Hillary. You can Cast your vote by text, text this number, and now you voted. That’s a lie about when, where, or how people vote. Having a law that prevents that is something that I believe the Supreme Court would uphold this constitutional. It doesn’t require making a judgment about was the last election stolen something that is essentially contested? Trying to thread the needle between what is allowed and what’s not is a difficult task, and the question is how do you balance these two things, free and fair elections and robust free speech without too much government interference in policing truth?

Jackie Gardina:

We’re going to take a quick break and then continue our conversation with Professor Rick Hasen, author of a Real Right to Vote, how a Amendment Can Safeguard American Democracy.

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Mitch Winick:

One of the things we discussed on an earlier show with Julie Liebert and Jonathan Meine was the concept of labeling speech because certainly in election laws and in most states, the courts have allowed us to require certain disclaimers. This ad is brought to you by the Rick Committee for Intergalactic president, and as long as we tell them who we can then require those committees to say who paid for it. One of the ideas is to use that model to require disclaimers on speech, political speech, particularly that which is AI generated or chat GPT generated counterargument has been, it’s too little too late, it will never address the problem. What are your thoughts about this?

Rick Hasen:

First of all, I do believe that requiring disclosure or labeling of say deep fakes is constitutional. This is a controversial position. I go in great depth in my book Cheap speech as to why I believe it’s constitutional. The court has long upheld disclosure laws in the context of campaign finance laws. It has upheld disclosure as a means of assuring consumer protection. It isn’t a political area. Some of these rules have exceptions for satire, for example. I think that’s a bad idea. One person’s satire is another person’s serious commentary. Do we want a government official deciding what satire, so I just say label them all? They could be labeled in a non pejorative way. They could just build an altered image, right? Just appear on the bottom. That won’t take away much from the satire if you have that and it would tell voters, here’s something you might want to take a look twice at before you believe that this is actually Joe Biden having a heart attack or Donald Trump saying the N word right as to use some examples of things that people have suggested could be made through artificial technology.

I think that doing so is constitutional. Is it as good as a law that would say, take this off and not allow this speech? Well, again, I’m worried about too much government power over speech. I worry about what happens when the person who’s in charge of policing speech is a bad actor, and so we have to design our laws for when we might have a good actor have a bad actor. Disclosure is a second best solution, but it may be in our current atmosphere, especially that it’s the one that properly balances the interest between the idea of free and fair elections and the idea of not having government interference too much with the rough and tumble of politics, where at the very least politicians engage in hyperbole and exaggeration. That line is very hard to police.

Mitch Winick:

Lemme take a slight angle on that and put on my law professor hat and talk a little about the counter speech doctrine. Justice Lewis Brandeis famously wrote, if there be time to expose through discussion the falsehoods and fallacies to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence, and then as we know, justice Anthony Kennedy followed that up with the remedy for speech that is false is speech. That is true. I’m a firm believer in that counter speech doctrine. That being said, I am terribly worried that the speed to market, as they might say of disinformation and deep fakes almost makes that idea archaic. How would you help me resolve this dilemma and have a little bit more feeling of less threat towards the future of democracy? And I’m specifically talking about election speech in this context.

Rick Hasen:

TF Counter speech is an idea of kind of a corollary to this concept of the marketplace of ideas. So the idea is that you’ll have all this kind of speech metaphorical marketplace and the truth will rise to the top. Voters will be rational, they will weigh the evidence and they will reach the truthful conclusion. Whether or not that was true in the past,

Mitch Winick:

That’s what

Rick Hasen:

We hope. It doesn’t seem to be true right now in part because as I explained in sheep speech, it is now possible to be able to speak in an unmediated way to millions of people. So let’s say Donald Trump, he was able to go to Twitter by a New York Times count over 400 times between election day and three weeks after election day to make the false claims of the election being stolen. Imagine if we had the same politics of 2020, but we had the technology of the 1950s. So Donald Trump goes to the podium 400 times and makes these statements. They would not be covered on television live 400 times. They would not be covered in the newspaper 400 times. They would be put in context. The problem with counter speech in the current era of cheap speech in the current era where it’s very inexpensive to disseminate true or false information, the problem is that false information can swamp true information.

How do we know that the marketplace of ideas is not working? Well, one easy way is by looking at the millions and millions of people who believe trump’s false statements that the 2020 election was stolen when all reliable evidence indicates that it was not stolen. I am not like you a believer that counters speech works, so if you’re not a believer in that, what do you do? I still recognize the danger of giving the government too much power to police speech. So having a law that says, Trump better shut up. He can’t lie about the election being stolen. I worried that is going to be what they say, a cure worse than the disease. It can lead to real government censorship. What happens if an election is stolen? Do we want to shut up the candidate in that case from being able to make that claim, we have to think again of the second best solutions to try to deal with the problem, but recognize that the truth is not going to rise not without some help.

And so where would that help come from? One thing we might need to do is to have subsidies for journalism, for real media because the most effective counter speech is going to come from those who have an allegiance to the truth. Getting more truthful information out there at least can help In the era of cheap speech, it’s much less expensive to produce a fake news site than a real news site that checks facts, that gives people a chance to respond. That does all the things that journalists do, and so the collapse, especially of local journalism has exacerbated the problem.

Mitch Winick:

Do you think there’s any scenario in which the judicial process can put a damper on this? What if it was a civil claim and we could somehow have an expedient process to use civil law to get something taken down or to get a meaningful penalty, financial penalty, something short of criminal law, which raises a whole different set of constitutional issues. I mean, some of our guests have recommended that. I just wondered your thoughts.

Rick Hasen:

Well, we have a partial solution here, which is the law of defamation, right? Rudy Giuliani is about to be bankrupted because of his pernicious lies about two election workers claiming falsely that they had manipulated the election outcome. In Georgia, we have Fox News paying a $787 million settlement to Dominion. There’s another lawsuit coming from smart, mad against Newsmax and others as well. When the election lie injures the reputation of a person, then defamation is a possibility. Some election lies though are not defamatory about a person. So if you say, if you’re Donald Trump, you say the election was rigged, you’re not accusing anyone in particular of rigging the election. Defamation can’t work there, so I think defamation law is part of the answer. One of the things that people look at in this area is the silver bullet. What is going to solve all of our problems? The answer is nothing. We have to instead look for pieces, defamation law, better disclosure laws, bans on empirically verifiable false statements about where and how people vote, labeling deep fakes, and so I go through a kind of litany of things, none of which alone is going to solve the problem, but maybe together create a better system for trying to deal with the current situation we have with our elections.

Jackie Gardina:

I want to stay on this idea of election lies in particular, but focus in on attorneys because attorneys have been unfortunately, deeply involved in pushing, supporting, encouraging some of these lies. Now we have an ethical obligation when we’re before a court to speak with candor so that the administration of justice is not interfered with perjury is another thing. People can’t lie in court. Do you think there needs to be, for attorneys in particular, an ethical obligation outside of court as it relates to elections?

Rick Hasen:

I think we’re seeing now with the attempts to disbar John Eastman, Rudy Giuliani, Jeffrey Clark, that we’re seeing if the bars can police attorney conduct. I do think I’m not an expert in legal ethics, but I do think that attorneys have an obligation certainly when they’re speaking to the court to speak truthfully and forthrightly and not to misrepresent facts. If we started to apply those rules outside the Courtroom, I’m afraid a lot of attorneys would be in some trouble. I think that when it comes to election related speech, I think that even if we cannot legally punish attorneys for engaging in false speech that undermines the integrity of elections, it is something that should be condemned as an ethical violation. I think that we have a duty not only as attorneys, we have a duty not only to the courts, but to the public not to undermine democracy. We

Jackie Gardina:

Usually try to end with somewhat of a call to action. I’d love your idea of a constitutional amendment, but it could take decades before it passes. We’re still waiting for the ERA to pass, so while we’re working towards that end, what can people do right to protect and enhance access to the ballot?

Rick Hasen:

Well, one of the things that I’ve written about in many of my works is this idea that we have a decentralized election system. We don’t administer a single election for president like they do in other countries where the national elections are run nationally. We do it on the local level, something like 8,800 different election jurisdictions running an election. At the same time that local control means that there’s lots of room to get involved, whether that’s as a poll worker, as an election observer, or even as a citizen, making sure that the way the election is being run locally is being done in a fair and transparent way. Every state’s constitution contains some language protecting the right to vote. In many states that language has not been vigorously enforced by the courts or it’s very vague and doesn’t really protect much, but you can imagine starting to organize state by state on issues of voting rights, strengthen state voting rights, especially in states with the initiative process where voters can do this directly and then move it up to the national level. I think if we had a nation that was committed to a universal right to vote for all eligible voters as well as a system that is secure and make sure that it has safeguards against fraud and also a system that has safeguards against trying to manipulate or steal elections, this would be a win-win. It wouldn’t help Democrats, it wouldn’t help Republicans. It would help all Americans assure that our democracy can continue as we work our way through the 21st century.

Jackie Gardina:

Rick, that is a perfect place for us to end, so thank you so much for joining us on SideBar today.

Rick Hasen:

It was my pleasure,

Mitch Winick:

Rick. It was great to have you and thanks for all the work you’re doing, both not just as a teacher, but as a commentator on helping all of us understand these issues as we work our way through them. Thank

Rick Hasen:

You. Thank you.

Jackie Gardina:

I think many people are surprised to find out that there is no what we call a positive right to vote nowhere in the Constitution that says you have a right to vote. It’s implied in places. As Rick pointed out, the Constitution actually gives a lot of power to the states to dictate how elections occur and then ultimately who gets to vote in those elections, and as we’ve seen over time, states have not always been generous and who has access to the ballot. Not only that, we’re seeing unfortunately a slide in who has access to the ballot with recent state legislative efforts to eliminate mail-in ballots to eliminate drop boxes to make it more difficult for people to vote, either because they eliminate voting places or reduce the amount of time someone has to get to the polls. You’re right, given the move away from expanding access to the ballot on state law level, it seems kind of impossible to think that states and others would be supportive of the idea of a right to vote embedded in the Constitution, but anytime I start to think that that can’t happen, I remember that some women managed to pass an amendment to make it illegal to have alcohol in the United States.

If that can happen, then we should be able to get a right to vote in there.

Mitch Winick:

Jackie, it was great to have Rick Hasen on our program today. He’s an expert in the things that are front and center of today’s headlines, election law, the Constitution, free speech, disinformation. There’s so much of this that’s swirling around, and it was a delight to hear him lead us through some of the legal issues involved more, particularly someone who’s come up with some concrete ideas about how to address this. I’m not certain how realistic a constitutional amendment is, but I absolutely agree with the direction he’s going on reinforcing our right to vote and defining the right to vote directly in the Constitution.

Jackie Gardina:

I think I want to challenge our listeners as well about another issue, which is those of us who do have the right to vote, don’t always exercise that right to vote. I recently did a talk for the Santa Barbara Women’s Political Committee to prepare for that talk. I looked at the percentage of voters in the United States, in California and in Santa Barbara County that actually exercised the right to vote in 2022, and it was around 50% of eligible voters who voted. I want to encourage everyone, if you recognize how Dhir the right to vote is, if you’re an eligible voter, please vote.

Mitch Winick:

As he was talking about this juxtaposition between states holding elections and the federal government holding elections, it did remind me that many mornings during the past year or so, I have woken up and thought it would be nice to have the British system of have a vote of no confidence and throw the bums out and start over again, but I don’t think that’s going to happen anytime soon. I love the way that he’s challenged us to think about this issue of where do we want to have elections regulated? Should it be right here in our hometown at a local level or should in the case of Congress, the Senate and the presidency, we remove that right and take it up to the federal level. I’ve been a political science wonk since high school, but I don’t have a clear sense of what I think about that, so I love the fact that he’s challenged us to think hard about it.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who also composes and performs all of the SideBar Music

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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