Bush v. Gore and the Erosion of the Fundamental Right to Vote
The 2000 election recount in Florida was a shock at the time. On the positive side, despite disagreement with the results of the election, there was a smooth transfer of power when candidate Al Gore conceded. But, like many, I was shocked to read the Supreme Court’s opinion in Bush v. Gore, 531 U.S. 98 (2000). Buried among the twisted reasoning about Equal Protection and the fact that some Florida counties counted ballots differently than others, the Court pointed out that there was no specific constitutional right to vote. Therefore, despite the holding in Reynolds, the argument that counting votes equally should not depend on where you live was no longer a good argument in federal court (id. at 104).
Bush v. Gore certainly put voting rights on my radar, but the people I serve made me a voting rights lawyer. I was drafted to monitor elections for the Latino community in 2004 and have done so in every presidential election since then. I served in the U.S. Department of Justice’s Voting Section from 2007 to 2012 and have helped lead the voting rights work of the Hispanic National Bar Association (HNBA) since 2012. My cases in Florida, Georgia, Massachusetts, New Jersey, New York, Ohio, Texas, and Wisconsin have addressed many types of discrimination against Black and Latino voters.
As history marched forward, our nation elected our first Black president, Barack Obama, in 2008. With every major victory in civil rights comes a backlash, and in 2008, in the first modern voter ID case, the Supreme Court “allowed states to pass more onerous voting rights rules, such as strict voter identification laws, without proof that such laws serve any interests in preventing fraud” (Richard L. Hasen, A Real Right to Vote 26 (2024), discussing Crawford v. Marion County, 533 U.S. 181 (2008)).
Voter fraud is infinitesimal—allegations comprise 0.00006 percent of all votes cast—so fraud-based arguments to justify limitations on access to the ballot should not even pass low levels of scrutiny. But also, since Crawford, the underlying costs of voter ID laws are no longer subject to strict scrutiny. These include the cost of securing a birth certificate, which is especially difficult for Black citizens. Copies of naturalization certificates currently cost more than $500, disparately impacting Asian and Latino American citizens who live in states with the most egregious voting laws.
The arguments about income disparities that served to strike down poll taxes in 1966 are no longer viable today, in part because, since 2000, the Roberts Court does not consider voting to be a fundamental right. An affirmative, constitutional right to vote would be helpful to restore strict scrutiny of state measures such as strict voter ID, cuts to early voting, limiting mail-in voting and drop-off locations, and allowing baseless challenges.
The Threat of Originalism
The rising threat of “originalism” also argues for a federal constitutional amendment. On the other hand, not all fundamental rights are found in the exact text of the Constitution. There is no specific constitutional right to privacy, and the retrogressive “originalist” movement leveraged this to eviscerate reproductive rights (Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)). There is also no specific constitutional right to marry, so the same originalist argument could potentially undo Loving v. Virginia, 388 U.S. 1 (1967), which ended prohibitions against interracial marriage, and Obergefell v. Hodges, 576 U.S. 644 (2015), guaranteeing the fundamental right to marriage to same-sex couples.
Although there is no specific constitutional right to education, in Brown v. Board of Education, 347 U.S. 483 (1954), and Plyler v. Doe, 457 U.S. 202 (1982), the Court ruled that education was so important to every individual that discrimination in public education did not pass strict scrutiny. It is far from certain that a specific constitutional right to education would change the Court’s more recent rulings.
Is Equal Access to the Ballot or a Constitutional Amendment More Important?
There is a movement for a constitutional right to vote building from the states, as communities have had success in litigation under state constitutional rights to vote. I was thrilled to play a small part in the team that between 2012 and 2014 successfully litigated against Pennsylvania’s strict voter ID law based on the state constitutional right to vote. I will never forget testimony from the Commonwealth stating their position against homeless people having the right to vote.
Recent scholarship by Professors Jessica Bulman-Pozen and Miriam Seifter shows that “every state constitution confers the right to vote.” Leveraging and expanding these state rights to vote may present a powerful way to build a multiracial democracy and lead to an expansive federal constitutional amendment without voter ID as a compromise.
At the federal level, the U.S. Constitution provides specific rights to freedom from discrimination in voting, as does the Voting Rights Act of 1965 (VRA). These fundamental rights are subject to strict scrutiny—but the Roberts Court has limited them anyway. In 2013, in Shelby County v. Holder, 570 U.S. 529, the majority’s version of strict scrutiny ignored the record. Relying on pre-Reconstruction states’ rights cases, the Court eviscerated the most effective protections of the VRA by opining that discrimination in voting was a relic of the past. Nothing could be further from the truth.
In 2018, the bipartisan U.S. Commission on Civil Rights published a comprehensive report finding that discriminatory state voting laws had increased four-fold in the wake of the Shelby decision. In 2023, the Brennan Center for Justice at New York University School of Law reported that states enacted more than 100 restrictive voting laws since Shelby, which correlated with decreasing turnout among Black and Latino voters. These extremely high levels of discriminatory impacts can only be stopped by legislation to restore the VRA, which was first introduced in 2015. A Senate filibuster blocked its passage in 2022. In the meantime, despite increasing litigation, even intentionally discriminatory changes have stayed in place during elections.
The most urgent reform now is the John R. Lewis Voting Rights Advancement Act of 2024. His legacy Act would require review of state or local changes in voting procedures that are likely to be discriminatory before they can be implemented during elections.
Leaders of the Student Nonviolent Coordinating Committee argue that “we still need the right to vote, a generation later,” and support a constitutional amendment to expand equal access and include important concepts of justice. The situation today calls for strong protection against discrimination in voting and fixes for the worst Supreme Court decisions that have diluted voting rights. Considering “originalism,” a provision against retrogression is also necessary. This is already part of the John Lewis Act, and it should not be left out of proposals to amend the Constitution to add a right to vote.
What Lawyers Can Do
ABA President Mary Smith created the nonpartisan ABA Task Force on American Democracy. The HNBA followed suit, and I am honored to chair our committee of outstanding Latino voting rights lawyers. We should all support an affirmative constitutional right to vote that ensures equal access for the next generation while immediately focusing on the great need to pass the John Lewis Act. Please also volunteer to protect citizens’ right to vote on Election Day.