A Statutory Right to Vote – Harvard Journal on Legislation

Michael Mitchell[*]

Abstract

The constitutional right to vote is in jeopardy. In theory, the Constitution implicitly protects the right to vote. In practice, this implied right rarely checks voter suppression or election subversion. And despite the platitude that the right to vote is fundamental, the Roberts Court’s originalist turn threatens the right’s foundations.

Many scholars have assumed that reinvigorating the right to vote requires amending the Constitution. Only an amendment, they suggest, can increase judicial scrutiny of measures that make it harder to vote or less likely that every vote will count. After all, the Supreme Court has held that Congress cannot compel courts to provide greater protection for constitutional rights. If these scholars are right, then securing a real right to vote requires an immense investment of limited political capital with dubious prospects of a return.

There is another way. This Article argues that Congress can create a statutory right to vote capable of performing the core functions of a right-to-vote amendment. Congress can sidestep the limits on its power to enforce constitutional rights by creating an independent right pursuant to its enumerated powers, as it has done with other civil rights laws. Fundamentally, the constitutional right to vote bars holding elections in an unjustifiably burdensome manner. The Elections Clause and Electors Clause grant Congress nearly plenary power over the manner of federal elections. And the Guarantee Clause provides the same power over state elections, plus the power to expand the electorate. With that power, Congress can guarantee all adult citizens the right to vote and subject burdensome measures to at least intermediate scrutiny.

A statutory right to vote could do nearly as much as a constitutional amendment to check voter suppression and election subversion. Beyond empowering voters, a statutory right to vote would help set our democracy on a more inclusive foundation and provide a model for reclaiming from the judiciary the power to secure our most fundamental rights.

I. Introduction

Two months into his second term, President Donald Trump issued an executive order that would make it harder to vote and less likely that every vote would be counted.¹ He directed the Election Assistance Commission (“EAC”)—an independent agency charged with supporting election administration²—to require documentary proof of citizenship for voters to register by federal registration form.³ He ordered federal agencies to confirm the citizenship of recipients of public assistance before providing them with registration forms.⁴ He ramped up criminal voter fraud investigations.⁵ He pressured states to remove voters from the rolls.⁶ He barred states from counting ballots received after Election Day.⁷ And he threatened to cut off federal funding to states that did not embrace these changes.⁸

Voters and voting rights organizations wasted no time challenging the executive order.⁹ In their complaint, they denounced it as “an attempt to make it far more difficult for eligible U.S. citizens to exercise their fundamental right to vote.”¹⁰ The organizations warned that the order “would severely burden . . . their members’ right to vote.”¹¹ And they requested relief “to prevent further encroachments on Americans’ access to the ballot.”¹² So you might have expected their complaint to include a count asserting that the order violated the constitutional right to vote. But it didn’t.¹³

Why wouldn’t a voter suppression complaint include a voter suppression claim? Because at this point, a constitutional right-to-vote claim would not have done much good.

The Constitution does not expressly guarantee the right to vote to anyone.¹⁴ Nevertheless, the Supreme Court has recognized that the Constitution includes an implied, fundamental right to vote.¹⁵ Under the Anderson–Burdick doctrine, the First and Fourteenth Amendments together prohibit governments—local, state, and federal—from unduly burdening the exercise of that right.¹⁶ In the first of the two leading cases, Anderson v. Celebrezze,¹⁷ the Court struck down Ohio’s unusually early deadline for a presidential candidate to secure a spot on the state’s ballot.¹⁸ Anderson recognized that ballot access restrictions, like other voting laws, may burden voters’ and candidates’ rights to associate with one another, as well as “the right of qualified voters . . . to cast their votes effectively.”¹⁹ The Court held that to evaluate the constitutionality of such measures, courts must weigh the significance of their burdens on these rights against the significance of states’ interests in managing their elections.²⁰ Then, in Burdick v. Takushi,²¹ the Court held that Hawaii’s ban on write-in voting did not “impermissibly burden the right to vote.”²² Burdick emphasized that laws burdening the right to vote are not necessarily subject to strict scrutiny; rather, “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”²³ As a result, today, any measure that impairs the ability to vote must be justified by a correspondingly strong governmental interest.²⁴ The constitutional doctrine is supposed to do the work the constitutional text does not.

Emphasis on “supposed to.” For years now, the constitutional right to vote has not fulfilled its promise. As states and now President Trump have imposed significant voting restrictions, federal courts have proven reluctant to protect the right.²⁵ The Roberts Court has never struck down a state voting restriction as unconstitutional.²⁶ And lower federal courts have undermined Anderson–Burdick without formally repudiating it.²⁷

In theory, Anderson–Burdick requires courts to carefully scrutinize measures that burden the right to vote.²⁸ In practice, courts often defer to the government.²⁹ When district courts have made detailed factual findings that election laws have impeded voting, courts of appeals have dismissed the burdens as mere inconveniences.³⁰ When states have justified restrictions by appealing to a vague, unsubstantiated interest in preventing voter fraud, courts have accepted the legitimacy and strength of the interest at face value and then declined to require states to show that the challenged restrictions even advance that interest.³¹ In other cases, courts have circumvented the Anderson–Burdick inquiry by holding that burdens on particular methods of voting (mainly voting by mail) do not even implicate the constitutional right to vote.³² And Anderson–Burdick has not even stopped states from disenfranchising some people outright, such as citizens convicted of felonies.³³ Millions of voters have paid the price, particularly voters of color, voters with disabilities, poor voters, senior voters, transgender voters, and young voters.³⁴ When courts permit states to abridge the right to vote, subject only to such deferential review, the doctrinal right to vote no longer functions as a right.

The Roberts Court’s recent transformations of constitutional law have jeopardized what remains of the constitutional right to vote, condemning it to the margins, even if the Court ostensibly leaves it on the books.³⁵ The Court’s originalists are unlikely to acknowledge that there is a constitutional right to vote in the first place.³⁶ Even if there is, the Anderson–Burdick doctrine is at odds with the Court’s aversion to balancing individual rights against state interests—leaving the Court loathe to deploy it.³⁷ The Court’s repudiation of the right to an abortion in Dobbs v. Jackson Women’s Health Organization³⁸597 U.S. 215 (2022). is distinctively threatening to the right to vote; the undue burden standard Dobbs denounced as unworkable was designed to mirror Anderson–Burdick.³⁹ Today’s Court favors evaluating constitutional rights claims by reference to history and tradition.⁴⁰ What our history and tradition suggest about the constitutional right to vote is bleak: the government may severely constrain who may vote and make it onerous to cast a ballot.⁴¹ Even if the Court refrains from outright erasing Anderson–Burdick, the Court is extremely unlikely to let it do any work for voters.

Many scholars have assumed that this constitutional problem demands a constitutional solution: a constitutional amendment guaranteeing the right to vote.⁴² A right-to-vote amendment is supposed to help in two ways. First, an amendment would extend the right to vote to all adult citizens.⁴³ Second, an amendment would enhance the level of scrutiny courts apply to measures that impede the exercise of the right, preventing governments from making it harder to vote unless they can actually justify the burdens.⁴⁴

Why do some scholars assume we have to amend the Constitution to achieve these two aims? Because the Supreme Court has held that Congress cannot stipulate the scope of a constitutional right or compel courts to increase their scrutiny of putative constitutional violations. The story begins with Employment Division v. Smith.⁴⁵ In Smith, the Supreme Court held that neutral, generally applicable laws that incidentally burden the First Amendment right to free exercise are subject only to rational basis review.⁴⁶ Congress thought strict scrutiny should apply instead. So, Congress enacted the Religious Freedom Restoration Act (“RFRA”), which directed courts to subject measures that substantially burden religious practice to strict scrutiny.⁴⁷ Congress’s theory was that its power to enforce the Fourteenth Amendment included the power to tell courts how closely to scrutinize burdens on constitutional rights.⁴⁸ However, in City of Boerne v. Flores,⁴⁹ the Supreme Court rejected this theory and struck RFRA down as it applied to the states.⁵⁰ On Boerne’s account, the Fourteenth Amendment power to enforce the Constitution’s guarantees does not include the power to define those guarantees or make judicial review more exacting.⁵¹ If Congress cannot tell courts how vigorously to safeguard constitutional rights, it might seem like all we can do to protect the constitutional right to vote is try to amend our infamously unamendable Constitution.⁵²

But Boerne was not the end of RFRA’s story. To this day, RFRA binds the federal government.⁵³ The federal component of RFRA rests on a different legal theory, one the Supreme Court has endorsed: Congress can create a statutory right parallel to but stronger than the corresponding constitutional right, so long as Congress has enumerated power over the relevant domain.⁵⁴ Congress derives the power it needs to protect the free exercise of religion from federal action from whichever powers authorize the work of the agency whose action is challenged.⁵⁵

RFRA is no outlier. In fact, statutory rights grounded in enumerated powers are an ordinary and important feature of civil rights law.⁵⁶ Many of our most significant civil rights statutes (like the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Religious Land Use and Institutionalized Persons Act) create rights parallel to but stronger than their constitutional correlates.⁵⁷

This Article argues that Congress can do the same for the right to vote: create an express, affirmative, universal right to vote by ordinary legislation. The key is to circumvent the Boerne problem by eschewing the Fourteenth Amendment entirely.⁵⁸ Instead of commanding courts to better protect the constitutional right to vote (which Boerne seems to forbid), Congress can create a statutory right to vote, extend it to all adult citizens, and instruct courts to apply heightened scrutiny to burdens on that right. Think of it as RFRA for the right to vote. All Congress needs is enumerated power over the electoral domain.

Until now, scholars largely have overlooked the argument that the Constitution gives Congress the powers it needs to create a statutory right to vote. As to federal elections, the primary sources of authority are the Elections Clause and Electors Clause, which together grant Congress nearly plenary power to specify the time, place, and manner of federal elections.⁵⁹ Congress can wield that power to provide that federal elections must be held in a “manner” accessible to all eligible voters and subject measures that hinder voting to heightened scrutiny.

The Guarantee Clause enables Congress to achieve the rest of what a constitutional amendment would do: extend the same protection to state elections and expand the electorate to include all adult citizens. The Guarantee Clause commits the United States to ensuring that every state enjoys a “Republican Form of Government.”⁶⁰ For over 150 years, the Supreme Court has held that it is up to Congress to decide what the Constitution’s guarantee of a “republican form of government” means and how to enforce it.⁶¹ The last time Congress exercised its power under the Guarantee Clause, it did so to expand the franchise to Black men.⁶² Of course, the Roberts Court cannot be described as particularly respectful of precedent.⁶³ And it has been particularly quick to repudiate longstanding authority on congressional power to protect democracy.⁶⁴ But for now, at least, Congress can flex that power again to guarantee the right to vote to all citizens.

A statutory right to vote could do more than scholars have yet appreciated to repair the damage to the constitutional right to vote.⁶⁵ Since states (and presidents) rarely have colorable reasons—let alone compelling ones—to make it harder to vote or easier to overturn elections, heightened scrutiny would help check voter suppression and election subversion.⁶⁶ Had Congress enacted a statutory right to vote, voters could have prevailed against the host of voter suppression and election subversion laws states have enacted in recent years—not to mention challenged President Trump’s executive order for what it is.

Of course, a statutory right to vote could not do everything a constitutional amendment could.⁶⁷ A federal law cannot prevent the enactment of subsequent federal laws. That is a serious shortcoming. But the greatest threats to the right to vote today do not come from Congress. Unlike a constitutional amendment, a statute would be subject to judicial review. But the precedents that counsel deference to Congress under the Elections Clause and the Guarantee Clause are over a century old.⁶⁸ We cannot rule out that the Roberts Court might overturn them, yet a Court that would strike down a statutory right to vote despite this firm legal foundation is a Court unlikely to apply a right-to-vote amendment faithfully anyway. And, whereas a constitutional amendment is not politically feasible for the foreseeable future, a statutory right to vote appears politically feasible soon. In 2022, a statutory right to vote in federal elections, dubbed the Right to Vote Act, passed the House and fell just two votes shy in the Senate.⁶⁹

Beyond its practical power, a statutory right to vote would help reconstruct U.S. democracy on a more inclusive and egalitarian foundation. Until now, the people have tried to construct the right to vote by negation, bolting prohibitions of specific forms of discrimination onto what remains, at its foundation, a privilege.⁷⁰ By affirmatively guaranteeing the right to all citizens, a statutory right to vote would recognize that the right to vote is precisely that—a right—and predicate that right on the political equality of all citizens. Relatedly, until now, the breadth and power of the right to vote have been up to the judiciary.⁷¹ What the courts give, the courts may take away (and are taking away). By starting anew on terms that Congress chooses, a statutory right to vote would reassert the power of the people to reconstruct our democracy.

This Article proceeds in four parts. In Part II, it describes the problems that make a statutory right to vote necessary: the degradation of the right to vote by voter suppression and election subversion and the degradation of the Anderson–Burdick doctrine. In Part III, it explains how a statutory right to vote is possible, that is, compatible with the Constitution. In Part IV, it discusses how to design an express, affirmative, universal statutory right to vote to achieve the twin aims of a right-to-vote amendment: expanding the franchise and increasing judicial protection of the right. In Part V, it compares a statutory right to vote to the alternatives. The Article aims to advance the nascent conversation among election law scholars and voting rights advocates about universalist, legislative pathways to democracy reform.⁷²

II. Why a Statutory Right to Vote Is Necessary

This Part describes the problems that make a statutory right to vote necessary. Today, the right to vote in the United States faces at least two threats. One is the degradation of the right to vote by voter suppression and election subversion. The other is the degradation of right-to-vote doctrine by the judiciary.

A. The Degradation of the Right to Vote

1. Voter Suppression

Since 2010, states have enacted more new restrictions on voting than at any time since Jim Crow.⁷³ These restrictions have included photo identification and proof of citizenship requirements, cutbacks to early and absentee voting, new registration requirements, and shorter registration windows, along with more stringent criteria for remaining on the rolls, the elimination of polling places, and restrictions on voter registration drives and third-party ballot collection.⁷⁴

The Supreme Court opened the door to this surge of voter suppression in Shelby County v. Holder.⁷⁵ The 2013 decision struck down the coverage formula for Voting Rights Act (“VRA”) preclearance—the requirement that jurisdictions with histories of racial discrimination obtain permission from the Department of Justice or a federal court before changing their election laws—neutralizing the strongest legal check on discriminatory voting restrictions in the South.⁷⁶ In Shelby County’s wake, formerly covered jurisdictions have enacted a wave of restrictions targeting voters of color, particularly Black voters, “with almost surgical precision.”⁷⁷ Today, the turnout gap between white and Black voters is five percentage points higher than it would have been otherwise and has grown nearly twice as fast in the jurisdictions formerly subject to preclearance as in the rest of the nation.⁷⁸ Nationwide, millions of people face new barriers to voting, and some have been prevented from voting entirely.⁷⁹

The trend continues. In 2021 alone, Florida, Georgia, Iowa, Montana, and Texas enacted comprehensive voting restriction statutes.⁸⁰ As a class, these voter suppression laws are distinguished from their predecessors by their focus on restricting the ways in which states and localities had made voting more accessible during the COVID-19 pandemic, like early voting, mail voting, curbside voting, and ballot drop-boxes.⁸¹ States rung in the 2024 elections by passing more restrictions than in any year in the last decade, save for 2021.⁸² Ten states (including swing states like Arizona, Georgia, North Carolina, and New Hampshire) participated in this crackdown, which focused on further restricting mail voting and requiring documentary proof of citizenship to register.⁸³

In 2025, sixteen states enacted a total of twenty-nine additional voting restrictions, almost all of which would take effect before the 2026 midterms.⁸⁴ And, as the Brennan Center observes, “[t]he pace of democratic progress in many states has slowed just as democratic backsliding has accelerated in others.”⁸⁵

Also in 2025, these states gained an ally: the federal government. The U.S. House of Representatives passed a voter suppression bill, the Safeguard American Voter Eligibility Act (“SAVE”) Act.⁸⁶ And as described above, President Trump joined this voter suppression effort.⁸⁷ So far, a federal district court has issued a preliminary injunction blocking the documentary proof of citizenship directives to the EAC and the federal voter registration agencies.⁸⁸ Whether the judiciary will ultimately permit the executive order to take effect remains to be seen.

2. Election Subversion

Since the 2020 elections, the United States has also experienced an increased threat of election subversion: the risk that “the purported outcome of the election would not reflect the choice of the voters.”⁸⁹ Whereas voter suppression manipulates election results by changing who can vote, election subversion manipulates election results by changing whose votes—if any—decide the winner.

In 2022 alone, legislators in 33 states introduced 244 election subversion bills and enacted 24.⁹⁰ The means vary: empowering partisan actors to administer elections directly and even to overturn election results; requiring pretextual “audits” to manufacture a basis for exercising that power; and imposing unnecessary, disruptive, or dangerous requirements for election administrators and enforcing them with criminal penalties—like mandating that they count ballots by hand, which delays results and increases the likelihood of errors.⁹¹ By each of these means, states are reducing the likelihood that the votes cast by every eligible voter will be counted, certified, and ultimately dispositive in the recognized results of an election.

The threat of election subversion is not theoretical; defeated candidates have tried to use the courts to overturn their losses. In 2024, the voters of North Carolina reelected Justice Allison Riggs to her seat on the North Carolina Supreme Court.⁹² The margin was tight: 734 votes out of over 5.5 million cast.⁹³ But a win is a win. Riggs’s defeated opponent, Judge Jefferson Griffin, felt otherwise. He sued in state court to have the results overturned.⁹⁴ His theory: tens of thousands of votes cast in compliance with the rules in place during the election were nevertheless invalid because those rules were unlawful.⁹⁵ The North Carolina state courts should have shut that case down.⁹⁶ Instead, they permitted it to fester for nearly six months.⁹⁷ Ultimately, Riggs prevailed. The U.S. District Court for the Eastern District of North Carolina held that the state’s attempts to retroactively and selectively change the rules of the election violated the U.S. Constitution’s guarantees of equal protection and due process.⁹⁸ Griffin conceded.⁹⁹ Riggs was sworn in.¹⁰⁰ But future losers may be tempted to try their luck again.¹⁰¹

These election subversion efforts have taken place against the backdrop of the most overt attempt to subvert an election since the overthrow of Reconstruction: the insurrection at the U.S. Capitol on January 6, 2021, and President Trump’s pardons of the convicted participants.¹⁰²

B. The Degradation of Right-to-Vote Doctrine

The Constitution does not expressly, affirmatively guarantee the right to vote.¹⁰³ Several amendments refer to a “right to vote,” but only to provide a negative right against government denial or abridgment of the right on the bases of race, sex, failure to pay a poll tax, and age over eighteen.¹⁰⁴

Nevertheless, the Supreme Court has recognized that the right to vote is a “fundamental political right” that the Constitution implicitly protects.¹⁰⁵ On that ground, the Court has held that laws regulating the time, place, or manner of voting that unjustifiably burden the ability to vote are unconstitutional.¹⁰⁶ Today, this doctrine is known as Anderson–Burdick, for the two leading modern cases.¹⁰⁷

The problem for voters and voting rights litigators is that many courts no longer robustly, consistently apply Anderson–Burdick, and the Supreme Court has cast doubt on its future. This Section explains the Anderson–Burdick doctrine, describes how independent changes in the Roberts Court’s jurisprudence threaten Anderson–Burdick’s foundations, and examines several ways that Anderson–Burdick falls short.

1. Anderson-Burdick

Anderson-Burdick bars states from unduly burdening the right to vote in federal or state elections.¹⁰⁸ Anderson–Burdick is a balancing doctrine.¹⁰⁹ When a voter challenges a restriction, a court is supposed to weigh the severity of the restriction’s burdens against the significance of the government’s interests in the restriction, the magnitude of the threat to the government’s interests, and how well the restriction serves those interests by addressing that threat.¹¹⁰ The more the restriction burdens voters, the stronger the government’s interest in the restriction must be, and the more closely tailored the restriction must be to serve that interest.¹¹¹ As the Court put it in Burdick,

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights.”¹¹²

Laws that severely burden the right to vote, such as laws that expressly disenfranchise voters or discriminate against them, are subject to strict scrutiny.¹¹³ But for any burdensome measure, “[h]owever slight that burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.”¹¹⁴

2. The Erosion of Anderson-Burdick’s Foundations

Recently, the Roberts Court has imperiled the premises of Anderson–Burdick. First, the Court’s originalism casts a shadow over the existence of a constitutional right to vote. Second, the Court’s skepticism about the propriety of weighing constitutional rights against state interests imperils Anderson–Burdick’s balancing test. Third, the Court’s holding that the undue burden inquiry for the constitutionality of abortion restrictions was unworkable undermines Anderson–Burdick’s entitlement to stare decisis. And fourth, the Court’s dismissive view of barriers to voting makes voter suppression hard to see for what it is.

a. Originalism

The Roberts Court is an originalist court.¹¹⁵ True, not completely.¹¹⁶ And not consistently.¹¹⁷ Still, originalism is the Court’s prevailing theory of constitutional interpretation: most justices maintain, roughly, that the public meaning of the Constitution was fixed at its ratification and that this original public meaning should inform or control the interpretation of the Constitution today.¹¹⁸ Sometimes, the Court also looks to history and tradition.¹¹⁹

By the Court’s originalist criteria, there may not be a constitutional right to vote. At the Founding, the Constitution did not guarantee anyone voting rights, nor did it provide eligible voters any right against undue burdens on their opportunity to cast a ballot.¹²⁰ Those permitted to vote did not have the right to vote at all, only the privilege of the franchise.¹²¹ The Constitution did not even require popular elections for any federal office save the House of Representatives.¹²² The Constitution made the House electorate a function of the state electorate: it conferred the privilege of voting for members of the House upon whomever each state permitted to vote for legislators in the state’s largest house.¹²³ With few and fleeting exceptions, only white, male property owners could vote in state (and hence federal) elections.¹²⁴

Reconstruction won some progress. The Fourteenth Amendment wrote the phrase “the right to vote” into the Constitution and provided for reducing the representation of states that denied the right to adult male citizens, except when they did so on the basis of a criminal conviction.¹²⁵ The Fifteenth Amendment prohibited the denial or abridgment of the right on the basis of race.¹²⁶ The Court recognized that the Constitution secured the right of those qualified to vote in their states to vote in House elections and, where states provided for popular presidential elections, to vote for president too.¹²⁷

Still, Reconstruction did not change the fundamentals. The Reconstruction Framers failed to add an affirmative right to vote to the Constitution.¹²⁸ The Court reaffirmed that voting remained a state-conferred privilege, not a right of national or even state citizenship,¹²⁹ and that the Constitution required popular elections to the House only.¹³⁰ True, the Court spoke of the franchise as “a fundamental political right, because [it is] preservative of all rights.”¹³¹ However, the Court seems to have had in mind only the franchise conferred by state constitutions.¹³² Moreover, the Court reiterated that no matter how important voting was, the ballot remained “a privilege merely conceded by society according to its will.”¹³³ White supremacists soon overcame Reconstruction’s most important gains and disenfranchised Black men again.¹³⁴ Subsequent voting rights amendments barred disenfranchisement on specific bases without affirmatively guaranteeing the right to vote.¹³⁵

The implied constitutional right to vote underlying Anderson–Burdick emerged piecemeal in a series of Warren and Burger Court decisions. Some of these cases provide that a right to vote arises from the First Amendment rights to speech and association as incorporated against the states by the Fourteenth Amendment.¹³⁶ An adjacent line of cases frames the right to vote as a fundamental right under the Equal Protection Clause.¹³⁷ Still other cases maintain that whether or not there is a constitutional right to vote, state restrictions on the state-conferred right to vote that are not sufficiently related to voter qualifications violate the Equal Protection Clause.¹³⁸ Today, the implied fundamental right to vote appears to rest on a synthesis of all three lines of cases, anchored in the First and Fourteenth Amendments.¹³⁹

Notably, none of these cases is originalist.¹⁴⁰ One of the charges Dobbs leveled against abortion rights jurisprudence could be leveled against implied-right-to-vote jurisprudence: the cases suggest that the right “could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”¹⁴¹

The right to vote seems unlikely to pass the Roberts Court’s test for substantive due process rights either. The Dobbs Court held that the Due Process Clause’s guarantee of “liberty” protects only two sets of rights: the rights secured by the first eight amendments and those unenumerated fundamental rights “essential to our Nation’s ‘scheme of ordered liberty’” that are “deeply rooted in [our] history and tradition.’”¹⁴² The right to vote is not the former.¹⁴³ And the Roberts Court is unlikely to recognize the right to vote as the latter. Consider that the Court has never repudiated its 1959 holding that the Constitution permits states to impose literacy tests.¹⁴⁴ Or that to this day, the Court denies that there is a constitutional right to vote for president or vice president.¹⁴⁵ Judicial recognition of the right to vote is a break from our history and tradition that remains incompletely codified in our law.¹⁴⁶

None of this is to cast doubt on whether the Constitution, properly understood, confers the right to vote. It does.¹⁴⁷ This discussion is only to caution that the right is vulnerable to our increasingly originalist Court.¹⁴⁸

b. Balancing, Generally

Even if the Court recognizes the right to vote, the Court’s aversion to balancing constitutional rights against government interests threatens the strength of the doctrine that is supposed to secure it.

Anderson–Burdick’s balancing of the constitutional right to vote against the government’s interests in regulating elections is one instance of a comparable balancing of rights and interests that appears across individual rights doctrines.¹⁴⁹ From the freedom of speech to equal protection, when plaintiffs assert that governments have violated their constitutional rights, courts evaluate their claims by comparing the magnitude of the burdens with the legitimacy and importance of the state’s interests in the challenged measures.¹⁵⁰ Some balancing inquiries are flexible and scalar, with the degree of scrutiny accorded the state’s interests increasing gradually with the magnitude of the burdens.¹⁵¹ Other balancing inquiries operate in tiers or categories, like rational basis or strict scrutiny.¹⁵² Either way, balancing is common.

Or was. In recent years, the Roberts Court has criticized—and in some contexts repudiated—rights-interests balancing as an inappropriate exercise of judicial power. First, the Court has asserted that whether and to what extent a right should be protected is a decision the people made categorically in the Constitution.¹⁵³ Once the people have decided to secure a right, judges do not have the power “to decide on a case-by-case basis whether the right is really worth insisting upon.”¹⁵⁴ Second, the Court has observed that balancing requires judgments about the relative value of competing public interests.¹⁵⁵ To the Court, those judgments are legislative, not judicial.¹⁵⁶ To permit judges to make them is to invite judges to impose their personal values on the public.¹⁵⁷

For both reasons, the Court has steered its Second Amendment jurisprudence away from rights-interests balancing toward history and tradition.¹⁵⁸ On that approach, the government may not burden the right to keep and bear arms unless the challenged measure “is consistent with the principles that underpin our regulatory tradition.”¹⁵⁹ What matters is whether the contemporary law is relevantly similar to a historically permissible analogue.¹⁶⁰

Anderson–Burdick is vulnerable to both of the Court’s objections to rights-interests balancing. First, Anderson–Burdick rests on the proposition that the Constitution does not determine in advance the precise scope and strength of the right to vote. The doctrine relies on the notion that the Constitution instead recognizes competing ends.¹⁶¹ On the one hand, the Constitution guarantees the right to vote. On the other hand, the Constitution authorizes states and the federal government to regulate elections. Yet any election regulation impacts what it takes to cast a ballot. Accordingly, the right to vote is not “absolute.”¹⁶² Instead, courts must assess case by case how to reconcile securing the right to vote with enabling election administration. Anderson–Burdick is thus designed to facilitate the sort of accommodation the Roberts Court regards with skepticism.¹⁶³

Second, Anderson–Burdick directs courts to evaluate the legitimacy and importance of policy judgments. A court is supposed to decide whether the government’s asserted interests are “legitimate,” “nondiscriminatory,” “reasonable,” and sufficiently important to justify a measure’s burdens—the sort of assessments that the Roberts Court has increasingly denounced as legislative.¹⁶⁴

Replacing rights-interests balancing with a history-and-tradition test would imperil the right to vote. Governments would have little difficulty finding historical analogues for contemporary laws that disenfranchise people outright, let alone for ones that make voting harder. Whereas the turn to history and tradition has led courts to provide the right to bear arms more protection than it enjoyed under rights-interests balancing,¹⁶⁵ a history-and-tradition test would have the opposite effect on the right to vote.

c. Casey Balancing, Specifically

Even if balancing were appropriate in some form or under certain circumstances, Dobbs suggests that Anderson–Burdick balancing is distinctively unworkable. In Planned Parenthood of Southeastern Pennsylvania v. Casey,¹⁶⁶ the Court held that an abortion regulation violated the substantive due process right to an abortion if the regulation “impose[d] an undue burden on a woman’s ability to” end her pregnancy.¹⁶⁷ The inquiry aimed to balance the right to an abortion with what the Court regarded as the state’s “important and legitimate interest[s]” in regulating public health and protecting potential life.¹⁶⁸

The Casey Court designed the undue burden standard to resemble Anderson–Burdick:

[N]ot every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote.¹⁶⁹

“The abortion right is similar,” the Court continued.¹⁷⁰ Only a state law that imposes an “undue burden” on the right violates the Constitution.¹⁷¹ Thus, abortion rights doctrine mirrored voting rights doctrine.¹⁷²

In Dobbs, the Court overruled Casey.¹⁷³ To determine whether to overrule it, the Court considered several stare decisis factors. Among them was whether its rules had proven workable.¹⁷⁴

The Dobbs Court found the undue burden standard unworkable. First, the Court faulted the standard for its indeterminacy.¹⁷⁵ “[D]etermining whether a burden is due or undue is inherently standardless,” the Court declared.¹⁷⁶ A “wide gray area” divides obviously impermissible “huge” burdens from plainly permissible “trivial” ones.¹⁷⁷ Drawing lines within that gray area is arbitrary.¹⁷⁸ And the rules that the Court had elaborated to channel that balancing exercise turned on the application of what the Dobbs Court regarded as hopelessly vague terms.¹⁷⁹ One rule turned on whether the challenged law imposed a “substantial obstacle” to the procurement of an abortion, requiring courts to discern the difference between substantial and insubstantial barriers.¹⁸⁰ Another part of the inquiry concerned whether a regulation was “unnecessary” to protecting health.¹⁸¹ Even the word “necessary” struck the Court as unworkably vague.¹⁸² To the Dobbs Court, the indeterminacy of the undue burden standard left too much to judicial discretion.

Second, the Court faulted the undue burden standard for “call[ing] on courts to examine a law’s effect on women” without specifying which effects on which women or how many.¹⁸³ “[A] regulation may have a very different impact on different women for a variety of reasons, including their place of residence, financial resources, family situations, work and personal obligations, . . . and the firmness of their desire to obtain abortions.”¹⁸⁴ Yet no clear, discernible line divided a burden on intolerably many women from a burden on tolerably few or divided those whose burdens mattered from those whose did not.¹⁸⁵

Third, the Dobbs Court found that judges applied the undue burden standard inconsistently.¹⁸⁶ Circuit splits apparently followed.¹⁸⁷ And so “[c]ontinued adherence to that standard would undermine, not advance, the ‘evenhanded, predictable, and consistent development of legal principles.’”¹⁸⁸

As the template for Casey, Anderson–Burdick is subject to the same critiques. First, Anderson–Burdick balancing is about as indeterminate. Just as Casey required courts to weigh the substantiality of burdens on the right to an abortion, Anderson–Burdick requires courts to “consider the character and magnitude” of burdens on the right to vote.¹⁸⁹ And, like Casey, Anderson–Burdick requires courts to assess the extent to which the state’s legitimate interests justify those burdens, including “the extent to which those interests make [those burdens] necessary.”¹⁹⁰ Second, Anderson–Burdick similarly requires courts to assess a regulation’s burdens without specifying whose burdens matter or how much of the population must be burdened. Like the impacts of abortion regulations, the impacts of election laws vary with geography, wealth, health, race, and other personal and community characteristics.¹⁹¹ These disparities leave courts to make the same sorts of judgment calls that courts had to make under Casey about how to benchmark burdens. Third, courts applying Anderson–Burdick have reached similarly divergent results.¹⁹² The Dobbs Court condemned the undue burden inquiry for the features that the Casey Court had borrowed from Anderson–Burdick. As a result, Dobbs implies that Anderson–Burdick is unworkable too.

The Court had designed Casey’s undue burden standard to mirror Anderson–Burdick. Now that the Court has condemned the former as unworkable for reasons that apply to the latter, Anderson–Burdick is on shaky ground.

d. Burdens

Even if the Court continues to recognize the right to vote, and even if the Court continues to tolerate some form of rights-interests balancing, the resulting inquiry likely would be permissive. The reason is that the Court is skeptical that contemporary forms of voter suppression burden the right at all.

The heart of an Anderson–Burdick claim is that the state has unjustifiably burdened the right to vote. The inquiry presents a difficult baseline question: a “burden” relative to what?¹⁹³ To the law before the challenged measure? To some hypothetical alternative? The fact-sensitivity of these challenges motivated the development of a fact-intensive inquiry. From the inception of Anderson–Burdick, the Court emphasized the value of case-by-case adjudication and attention to consequences.¹⁹⁴ No “litmus-paper test” can “separate valid from invalid restrictions.”¹⁹⁵ There is “no substitute for the hard judgments that must be made.”¹⁹⁶

Yet today, the Court does not regard as burdensome many prevalent means of making voting harder. In Brnovich v. Democratic National Committee,¹⁹⁷ the Court considered for the first time the circumstances under which a voting regulation violates Section 2 of the VRA.¹⁹⁸ Section 2 is the VRA’s national ban on election practices that “result[] in a denial or abridgement of the right . . . to vote on account of race or color.”¹⁹⁹ After the Court struck down preclearance in Shelby County, Section 2 became the most significant check on discriminatory election laws.²⁰⁰ Brnovich presented a Section 2 challenge to two Arizona election laws: one that barred counting votes cast at the wrong polling place and another that criminally barred most people from collecting another person’s mail-in ballot.²⁰¹

At the outset of the opinion, the Court specified which factors courts should consider in assessing whether an election law disparately burdens the voting rights of people of color: the severity of the burden, the size of the resulting disparity, how much the measure departs from standard practice in 1982, how many other opportunities the state’s election system provides for people to vote, and the strength of the state’s interests in the challenged law.²⁰² None of these factors appears in the text of Section 2.²⁰³ Yet to the majority, all were “important circumstances” with “logical bearing” on whether a state provides everyone an equal opportunity to vote.²⁰⁴

Then, the Court held that the Arizona laws did not violate Section 2 because they did not burden the right to vote.²⁰⁵ In the Court’s view, the provisions imposed only minor inconveniences, the resulting disparities were minimal, Arizona provided voters other ways to vote that were not available in 1982, and the laws served the state’s interest in preventing voter fraud.²⁰⁶

Strictly speaking, Brnovich has nothing to do with Anderson–Burdick. The Court’s interpretation of Section 2 is doctrinally independent of the constitutional right to vote. Nevertheless, the decision bodes ill for Anderson–Burdick in four ways. First, Brnovich sets a high bar for proving that an election law burdens the exercise of the right to vote. Justice Alito, writing for the majority, explained, “[E]very voting rule imposes a burden of some sort.”²⁰⁷ “[B]ecause voting necessarily requires some effort and compliance with some rules,” voters have to “tolerate the usual burdens of voting”: the travel it might take to reach a polling place or a mailbox, the time it might take to complete a ballot correctly, and the like.²⁰⁸ “Mere inconvenience cannot be enough.”²⁰⁹

Second, Brnovich answers the baseline question (burden relative to what?) on historical terms. Whether a measure burdens the right is in part a function of “the degree to which [the] challenged rule has a long pedigree,” and particularly “the degree to which [it] departs from what was standard practice when § 2 was amended in 1982.”²¹⁰ As the Court points out, voting in 1982 was harder than it is today.²¹¹ For instance, back then, states “typically required nearly all voters to cast their ballots in person on election day.”²¹² Since generally it was harder to vote in the past than in the present, this historical baseline makes it difficult to show that making it harder to vote than it has been recently is making it harder to vote in any sense warranting judicial scrutiny.

Third, Brnovich takes a chary view of allegations of racial discrimination in voting. Anderson–Burdick purports to subject discriminatory election laws to heightened scrutiny.²¹³ By Brnovich’s lights, most facially neutral election laws are not discriminatory, even if they disproportionately make it harder for people of color to vote.²¹⁴

Fourth, Brnovich tips the scales of the balancing inquiry against voters by holding that the state’s interest in preventing voter fraud is categorically “strong and entirely legitimate”²¹⁵—apparently regardless of the risk of fraud in the jurisdiction, the forms fraud might take, and the fit between the putative interest in fraud prevention and the challenged measures.

If Anderson–Burdick endures, Brnovich suggests that the Court might find that it gives states tremendous leeway to make voting harder.

* * *

To the extent the constitutional right to vote can be reconciled with the Roberts Court’s other commitments, the judicial inquiry into whether a law unconstitutionally burdens the right to vote likely would have the permissiveness of rational basis rather than the rigor of strict scrutiny. The Roberts Court and many lower courts have already started shifting the doctrine in that direction.

3. The Roberts Court’s Degradation of Anderson-Burdick

The Roberts Court’s few Anderson–Burdick right-to-vote cases have degraded the doctrine. The first, Crawford v. Marion County Election Board,²¹⁶ reaffirmed its letter while betraying its spirit. In the others, emergency or “shadow” docket cases during the 2020 elections, several justices cast doubt on the very existence of Anderson–Burdick.²¹⁷

a. Crawford

In Crawford, a fractured Court upheld against a facial challenge an Indiana statute requiring voters to present photo identification to cast their ballots in person.²¹⁸ On the surface, Crawford reaffirmed Anderson–Burdick balancing. Justice Stevens’s controlling opinion, joined by Chief Justice Roberts and Justice Kennedy, reiterated that “a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.”²¹⁹ Justice Souter’s dissent, joined by Justice Ginsburg, agreed with Justice Stevens on the legal standard, even as it disagreed on the application of that standard to the case at hand.²²⁰ Justice Breyer endorsed a balancing inquiry as well, albeit with his own formulation.²²¹ Only three justices would have replaced the balancing inquiry.²²² These justices would have adopted a “two-track approach,” subjecting severe or discriminatory restrictions to strict scrutiny but “nonsevere, nondiscriminatory restrictions” only to “a deferential ‘important regulatory interests’ standard,” which they characterized as only modestly more exacting than rational basis.²²³ The Supreme Court’s last authoritative word on Anderson–Burdick, then, confirms that it is good law.

However, the Court’s application of Anderson–Burdick to the case at hand sent a different message. Justice Stevens underscored that the Constitution required the state to justify the law’s burdens by advancing “precise interests” of sufficient “legitimacy or importance” in the face of a “real threat to those interests” of sufficient “magnitude.”²²⁴ Yet he upheld the state’s voter ID law mainly as a means of preventing in-person voter fraud, even as he conceded that there was “no evidence of any such fraud actually occurring in Indiana at any time in its history.”²²⁵

Compounding the Court’s deference to the state’s assertions of its interests was the Court’s skepticism of the plaintiffs’ claims about the law’s burdens. The Court repeatedly emphasized that because the plaintiffs had mounted a facial challenge, they bore “a heavy burden of persuasion.”²²⁶ To the Court, the record was not sufficient to meet that standard, for the plaintiffs had not established how many people would be burdened,²²⁷ how significant the burden would be,²²⁸ or whether and to what extent the burden would fall disparately on particular subsets of the population.²²⁹ Apparently, even though voting rights defendants do not have to substantiate their interests, voting rights plaintiffs have to substantiate the nature, weight, and distribution of their burdens.

To some extent, Crawford’s upshots were and remain unclear. The Court may well have let Indiana skate through without much of a justification because the Court felt that the plaintiffs had offered even less—putting little on either side of the balancing scales. Had the plaintiffs developed a stronger record on their burdens, the state probably would have had to develop a stronger record on the strength of its interest, the magnitude of the threat it faced, and the fit between the law and the problem.²³⁰

Yet Crawford seems to have hollowed out Anderson–Burdick. The doctrine is not much of a check on voter suppression if a state can justify making it harder to vote merely by asserting a generalized interest in preventing voter fraud, in the absence of any justification more “precise,” any evidence of a “real threat,” or any fit between the ostensible problem and the proposed solution. As this Article discusses below, many lower courts since Crawford have taken the hint.

b. The 2020 Cases

Crawford aside, the Roberts Court’s only constitutional right-to-vote rulings are emergency docket decisions issued during the pandemic-affected 2020 elections. In these cases, Justices Gorsuch and Kavanaugh cast doubt on the scope, and even existence, of the fundamental right to vote and Anderson–Burdick doctrine.

Consider an example. A federal district court, applying Anderson–Burdick, enjoined South Carolina from requiring that every absentee ballot be witnessed by two people.²³¹ The Supreme Court granted the state’s application to stay the injunction pending appeal.²³² Justice Kavanaugh published the only opinion that purported to explain the ruling. The district court, he claimed, had “enjoined South Carolina’s witness requirement for absentee ballots because the court disagreed with the State’s decision to retain that requirement during the COVID-19 pandemic.”²³³ The fact that the district court did so to vindicate the constitutional right to vote? Unmentioned.²³⁴ Apparently, irrelevant.

That case proved no anomaly. A few weeks later, the Court returned to the issue when a federal district court enjoined Wisconsin from enforcing its requirement that all absentee ballots be received by the last day of the election.²³⁵ Applying Anderson–Burdick, the district court held that in light of the unique conditions of the pandemic and the concurrent problems with the United States Postal Service, enforcing the requirement likely would jeopardize upward of 100,000 properly cast ballots, severely burdening the right to vote.²³⁶ To remedy that impending violation, the district court ordered Wisconsin to accept absentee ballots sent by Election Day but received up to six days later.²³⁷ When the state appealed, however, the Seventh Circuit stayed that injunction.²³⁸

The Supreme Court denied voters’ application to vacate the stay in a series of opinions ignoring or dismissing Anderson–Burdick.²³⁹ Chief Justice Roberts said only that the district court’s ruling was “improper.”²⁴⁰ Justice Gorsuch wrote as though Anderson–Burdick did not exist. On Justice Gorsuch’s account, the district court had taken COVID-19 as a permission slip “to substitute its own election deadline for the State’s” because it was “frustrated” with the status quo.²⁴¹ “Nothing in our founding document contemplates the kind of judicial intervention that took place here,” he wrote, “nor is there precedent for it in 230 years of this Court’s decisions.”²⁴² Of course, there was precedent for it: Anderson–Burdick. Yet Justice Gorsuch did not acknowledge the district court’s Anderson–Burdick rationale for the injunction, let alone rebut it. Justice Gorsuch cited Burdick, but only for the proposition that “government must play an active role in structuring elections.”²⁴³

Justice Kavanaugh was nearly as dismissive.²⁴⁴ On his account, the district court had “disregarded” the state legislature’s judgments “simply because [it] believe[d] that later deadlines would be better.”²⁴⁵ Justice Kavanaugh at least acknowledged Anderson–Burdick.²⁴⁶ But he denied “that we may conduct that kind of open-ended balancing test in this case,” rejecting what he characterized as its “federal-judges-know-best vision of election administration.”²⁴⁷ There is another way to characterize that vision: a vision of a Constitution with a right to vote.

4. The Lower Courts’ Degradation of Anderson-Burdick

Anderson-Burdick remains good law. But from the ways in which courts have adjudicated recent cases, you might have your doubts. Even as more states are imposing unjustified burdens on the right to vote, judicial scrutiny of these burdens is decreasing.²⁴⁸ Particularly during and since the 2020 election, lower federal courts have upheld voter suppression measures without much scrutiny.²⁴⁹

Trivializing burdens: When plaintiffs allege that a measure unduly burdens their exercise of the right to vote, courts are supposed to engage in a fact-intensive inquiry concerning whether and to what extent the challenged measure makes it difficult for them to vote. Instead, some courts of appeals uphold restrictions on the basis of cursory conclusions that the restrictions impose de minimis burdens, disregarding contrary evidence.²⁵⁰ This minimization of the burdens that voting restrictions impose on voters—particularly by courts of appeals, which are second-guessing the district courts closest to the evidence²⁵¹—reduces the evidentiary burden that states have to bear to justify these measures. De minimis burdens demand only de minimis justifications.

Crediting vague, generalized interests: When courts find that a measure burdens the right to vote, they are supposed to require states to prove that the measure serves “precise interests” of sufficient “legitimacy and strength.”²⁵² Instead, many courts uphold restrictions on the basis of the government’s conclusory assertion of a vague, generalized interest—typically, preventing voter fraud.²⁵³ Construed charitably, the point these courts are attempting to make is that governments need not wait for rampant fraud to have an interest in preventing it.²⁵⁴ But it is one thing to say that states can be proactive in preventing potential problems. It is another to say that states can establish an interest in preventing a potential problem without even attempting to prove that there is reason to fear that the problem will arise. These decisions send a message: governments can justify measures that make it harder to vote by appealing to interests in addressing problems that they do not bother to substantiate.

Disregarding tailoring: Courts often uphold challenged voting restrictions without requiring the state to demonstrate how the restrictions advance the interests that the state invokes to justify them,²⁵⁵ erasing the tailoring requirement.²⁵⁶ Once a state has asserted that it has an interest in preventing voter fraud, it need not make even a cursory showing that the challenged law serves that interest.²⁵⁷ Unless courts scrutinize whether a policy advances the state’s interests to an extent commensurate with the policy’s burden on voters, a state can violate voters’ rights simply by asserting interests disconnected from the policy at issue.

Narrowing the scope of the right: Finally, courts have declined to scrutinize certain measures that make it harder to vote on the ground that the restrictions do not even implicate the right. This maneuver has been common in cases concerning voting by mail.²⁵⁸ The ostensible basis is the Supreme Court’s holding in McDonald v. Board of Elections Commissioners of Chicago²⁵⁹394 U.S. 802 (1969). that Illinois could limit incarcerated voters’ access to absentee ballots unless those voters could show that they had no other way to vote.²⁶⁰ Even though McDonald concerned only absentee voting from jail, judicial skepticism that voter suppression measures implicate the right is spreading beyond that case’s confines.²⁶¹ At the very least, contemporary applications of McDonald suggest that states have leeway to make voting more difficult by arbitrarily restricting the safest, most accessible ways for many people to vote.²⁶² Other regulations that make it harder or impossible to vote have eluded Anderson–Burdick too.²⁶³

III. How a Statutory Right to Vote is Possible

In the previous Part, this Article examined two problems: the degradation of the right to vote by voter suppression and election subversion and the degradation of voting rights doctrine by the courts. The latter development has weakened the capacity of the Anderson–Burdick standard to check the former.

Some of the literature on these problems suggests that there is only one way to solve them: amending the Constitution to expressly guarantee the right to vote.²⁶⁴ Two assumptions underlie scholarly advocacy for an amendment. First is the notion that only an amendment would compel courts to give the right to vote the respect that Anderson–Burdick was supposed to have secured.²⁶⁵ Second is the notion that an amendment is the only lawful solution, anyway.²⁶⁶ In City of Boerne v. Flores, the Court held that Congress may not wield its power to enforce the Fourteenth Amendment to provide a constitutional right more protection than the judiciary believes the right deserves.²⁶⁷ Accordingly, Congress may not use its enforcement power to tell courts to enhance their scrutiny of measures that burden the constitutional right to vote.²⁶⁸

That may be true as far as it goes. But it is not the end of the story. In this Part, this Article argues that the Constitution gives Congress another option: creating a statutory right to vote free from undue burdens and directing courts to apply heightened scrutiny to burdens on that right. Two insights drive this argument. The first is that Congress has the power to create statutory rights distinct from and parallel to constitutional rights, so long as Congress has enumerated power over the relevant domain. The second is that Congress has enumerated power over the domain that Anderson–Burdick covers. In practical terms, the Anderson–Burdick doctrine bars governments from holding elections in an unjustifiably restrictive, inaccessible, or otherwise onerous manner. The Elections Clause expressly empowers Congress to regulate the “manner” of congressional elections. The Electors Clause provides much the same authority over presidential elections, at least alongside the Necessary and Proper Clause. And the Guarantee Clause confers even greater power over state elections, including the power to expand the electorate. As a result, Congress can create a statutory right to vote free from undue burdens—a more voter-protective version of Anderson–Burdick—without invoking its remedial power to enforce the constitutional right to vote.

A. The Boerne Problem

Each of the Reconstruction Amendments ends with a clause authorizing Congress to “enforce” its substantive provisions “by appropriate legislation.”²⁶⁹ For decades, the Supreme Court held that in the exercise of that enforcement power, Congress had the discretion to provide greater protection to constitutional rights than courts otherwise would have.²⁷⁰ On this basis, the Court upheld parts of the Voting Rights Act in 1966.²⁷¹

Then, a conflict over congressional power to enforce the Free Exercise Clause led the Court to repudiate that discretion. The turn began with Employment Division v. Smith, where the Court held that neutral, generally applicable laws that incidentally burden religious practice are subject to rational basis review, not strict scrutiny.²⁷² In a bid to overturn Smith and reinstate a regime of strict scrutiny, Congress enacted RFRA.²⁷³

In City of Boerne, the Court struck down RFRA as it applied to the states for exceeding congressional power to enforce the Fourteenth Amendment.²⁷⁴ The Court acknowledged that Congress may exercise its enforcement powers to prohibit conduct that is not itself unconstitutional.²⁷⁵ But the Court then held that the power to enforce the Fourteenth Amendment does not encompass the power to expand the rights it protects, nor “the power to determine what constitutes a constitutional violation.”²⁷⁶ To the contrary: “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”²⁷⁷ In short, Boerne limited congressional power to direct courts to scrutinize burdens on constitutional rights more closely than the courts otherwise would. Although Boerne hailed the Voting Rights Act as an archetypal example of permissible enforcement legislation,²⁷⁸ the Court subsequently held in Shelby County that the VRA’s preclearance formula exceeded congressional authority.²⁷⁹

The Boerne problem, then, is this: if Congress cannot direct courts to increase their scrutiny of burdens on constitutional rights, how can Congress enhance judicial protection of the right to vote?

B. The Enumerated Powers Solution

The answer is that Congress can create and protect a parallel, statutory right to vote free from undue burdens on its exercise, legally independent of the constitutional right to vote.

Congress can create statutory rights and causes of action to vindicate them whenever a constitutionally enumerated power authorizes it to legislate in the substantive field at issue.²⁸⁰ This power is the legal foundation of many federal civil rights laws. There is Title VII of the Civil Rights Act of 1964, creating a right against employment discrimination on the basis of race, color, religion, sex, or national origin.²⁸¹ There is the Pregnancy Discrimination Act, creating a right against discrimination on the basis of pregnancy.²⁸² There is the Americans with Disabilities Act, creating a right against discrimination on the basis of disability in employment, public accommodations, transportation, and other domains.²⁸³ And there are more.

Congress created each of these rights pursuant to its powers under the Commerce Clause.²⁸⁴ Because the Commerce Clause grants Congress extensive power over the national economy, Congress can exercise that power to create rights to inclusion and equal treatment in the economy.²⁸⁵ Notably, Congress created many of these statutory rights even though the Supreme Court had already ruled that the Constitution did not protect them.²⁸⁶

Nor are statutory rights unique to the civil rights context. Congress has created other statutory rights on the basis of enumerated powers.²⁸⁷ And the Court has been clear: when Congress may create a statutory right, it may also create a cause of action to vindicate that right and set the standards for judicial review.²⁸⁸

Ironically, RFRA underscores the breadth of congressional authority to create statutory rights pursuant to enumerated powers.²⁸⁹ Even though the Boerne Court struck down RFRA in its application to the states for exceeding congressional power under the Fourteenth Amendment,²⁹⁰ RFRA remains binding on the federal government.²⁹¹ As the Court recently noted, “[a]s applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,” whichever power that may be.²⁹²

The constitutionality of the federal element of RFRA confirms that Congress may wield its enumerated powers to create statutory rights parallel to but distinct from constitutional rights. What matters is how Congress proceeds. Congress may not directly modify the substance of a constitutional right.²⁹³ Nor may Congress set the standard of review for an asserted violation of a constitutional right.²⁹⁴ However, Congress may impose a new, parallel statutory duty on the target government not to engage in certain conduct, and it may authorize a private right of action against that government for violating that prohibition, so long as Congress has constitutional authority to bind that government in the relevant domain.²⁹⁵

As to most rights, Congress may not have such authority over the states. Having lost the fight to apply RFRA to the states through the Fourteenth Amendment, RFRA’s proponents did not enact a new version applicable to the states based on a different enumerated power. So, today, RFRA is limited to the federal government. However, because the federal component of RFRA was not enacted pursuant to congressional power to enforce the Fourteenth Amendment, but rather stands on independent sources of legislative authority, it does not even implicate that amendment.

RFRA is not alone. Consider the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).²⁹⁶ Like RFRA, RLUIPA effectively subjects to strict scrutiny certain government actions that substantially burden religious exercise.²⁹⁷ Unlike the original RFRA, which the Court struck down as to the states, RLUIPA does not purport to modify the scope of the Free Exercise Clause or to protect the same right; instead, it protects a parallel but broader statutory right of its own creation.²⁹⁸ As the Court recently wrote with approval, “in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’”²⁹⁹ Unlike RFRA, RLUIPA addresses a limited domain: land use and the rights of institutionalized people, including those incarcerated.³⁰⁰ Unlike RFRA, RLUIPA binds both the federal government and state governments.³⁰¹ It is constitutional, the Court has indicated, “under the Spending and Commerce Clauses.”³⁰²

Statutes from the Civil Rights Act of 1964 to RLUIPA confirm congressional power to create statutory rights and design causes of action to secure them—even rights parallel to underlying constitutional rights. All Congress needs is an enumerated power with the appropriate substantive scope and authority over the governments that Congress seeks to bind. When it comes to the right to vote, Congress has that authority.

C. The Elections Clause and the Electors Clause

Together, the Elections Clause and the Electors Clause provide Congress the power it needs to enact a statutory right to vote in federal elections. The Elections Clause grants Congress the power to “make” its own laws or “alter” state laws concerning the “Times, Places and Manner” of congressional elections.³⁰³ The Electors Clause confers comparable power over presidential elections.³⁰⁴ Congress has exercised these powers since before the Civil War.³⁰⁵ Since the First Reconstruction, Congress has used them at least a dozen times.³⁰⁶

The “substantive scope [of the Elections Clause] is broad”³⁰⁷: the phrase “Times, Places and Manner” covers nearly the entire field of federal elections. In 2013, the Supreme Court reaffirmed in Arizona v. Inter Tribal Council of Arizona³⁰⁸570 U.S. 1 (2013). that the Elections Clause confers upon Congress the “authority to provide a complete code for [federal] elections.”³⁰⁹ There is only one exception: voter qualifications. Under the Qualifications Clause, states retain primary authority to determine who can vote.³¹⁰ From time to time, the Supreme Court has wrestled with the elusive distinction between “manner” laws and “qualifications” laws.³¹¹ But otherwise, the Elections Clause grants Congress sweeping power over federal elections.

Within the domain of federal election regulation, congressional power is plenary. Congress may regulate federal elections “to any extent which it deems expedient.”³¹² Of course, Congress must comply with the rest of the Constitution. But the Elections Clause itself does not limit what Congress can do within the Clause’s substantive scope.

Because the Elections Clause expressly authorizes Congress to supplant state law, Elections Clause legislation is not subject to independent federalism constraints.³¹³ Congressional authority is “paramount.”³¹⁴ “The [Elections] Clause empowers Congress to pre-empt state regulations” of federal elections, and Congress’s powers “may be exercised at any time.”³¹⁵ The Framers granted Congress this sweeping power over the states for an important reason: to ensure that Congress has the powers it needs to sustain its own existence.³¹⁶ Recent pillars of federal election law, like the National Voter Registration Act (“NVRA”)³¹⁷ and the Help America Vote Act (“HAVA”),³¹⁸ rest on this foundation.³¹⁹

The Supreme Court has long affirmed that the Elections Clause empowers Congress to protect the right to vote in federal elections from interference by states or their agents. As the Court wrote in United States v. Classic,³²⁰ protecting the right to vote is at the heart of the Elections Clause: “[N]o member of the Court seems ever to have questioned it.”³²¹ In Smiley v. Holm³²²285 U.S. 355 (1932).—which the Supreme Court reaffirmed in Arizona³²³ Inter Tribal Council, 570 U.S. at 8–9.—the Court emphasized that the Elections Clause empowers Congress “to enact the numerous requirements as to procedure and safeguards which experience shows are necessary” to protect the right to vote.³²⁴ That includes the “protection of voters.”³²⁵ Moreover, the Elections Clause gives Congress the power to protect the right to vote against both private and public violations.³²⁶ Indeed, the Elections Clause enables Congress to do whatever “it should find necessary to insure the freedom and integrity” of federal elections.³²⁷ Congress has the power to ensure that the election of federal officials is “the free choice of all the electors.”³²⁸

The Elections Clause enables Congress to determine how to enforce the requirements it enacts.³²⁹ One option is creating statutory rights and directing federal courts to hear the claims of injured voters. For example, the “support or advocacy” clause of the Enforcement Act of 1870, which remains on the books, prohibits conspiracies to intimidate or retaliate against voters in federal elections and authorizes a private right of action against them.³³⁰ Similarly, the modern NVRA includes a private right of action against states for violations of the statute’s voter registration requirements.³³¹

One might worry that a statutory right to vote would cross the line from manner regulation (the domain in which the Elections Clause empowers Congress to act) into qualification regulation (the domain in which the Qualifications Clause gives primary power to the states). However, Congress’s power to specify the manner of federal elections enables it to create a statutory right to vote free from undue burdens that could do much of the work of Anderson–Burdick without violating the Qualifications Clause. For one thing, there is some reason to think that Congress can specify the federal electorate via the Elections Clause.³³² In Oregon v. Mitchell,³³³ the Court upheld a federal law that conferred the right to vote in federal elections on adults age eighteen to twenty-one, even though the Court struck down the same provision as applied to state elections.³³⁴ The Roberts Court has called that holding into question but has not overruled it.³³⁵ It may be, then, that the Elections Clause authorizes Congress to specify who may vote in federal elections. If so, Congress may use this power to confer upon all adult citizens the right to vote in federal elections.

But assume that “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them,” as the Roberts Court has suggested.³³⁶ Congress still could exercise this power to enact a statute conferring upon all qualified voters a right to cast their ballots and have them counted free from unjustifiable burdens—an affirmative right to an accessible federal voting process, with burdensome measures subject to heightened scrutiny. The reason is that prohibiting governments from conducting elections in an unjustifiably inaccessible way concerns the “manner” of federal elections, not the qualifications to vote in them. With the significant exceptions of disenfranchisement for a felony conviction and territorial disenfranchisement, much contemporary voter suppression operates by making it gratuitously hard for otherwise-qualified voters to vote, not by disqualifying potential voters.³³⁷ Election subversion similarly does not rely on disqualifying voters but rather on reducing the odds that the votes of qualified voters count. These are the primary sorts of measures courts are failing to scrutinize properly under Anderson–Burdick.³³⁸ Accordingly, even a relatively narrow statutory right to vote free from undue burdens would help check many of the most prevalent threats to the ballot. For those who are not qualified to vote, this right would be inert. But for those who are qualified to vote, this right would be transformative.

Relying solely on its power to regulate the manner of federal elections, while respecting the Qualifications Clause, Congress could create a statutory right to vote in federal elections that covers much of the ground that the constitutional right to vote is ostensibly supposed to cover. By invoking the Guarantee Clause, Congress could cover the rest.

D. The Guarantee Clause

The Guarantee Clause empowers Congress to enact a statutory right to vote in state elections and expand the electorate for all elections. The Guarantee Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”³³⁹ Whatever “a Republican Form of Government” may be (a question the Court has never squarely answered), it is a government “of the people, by the people, for the people,”³⁴⁰ a government in which the people are sovereign.³⁴¹ Congress prominently wielded its Guarantee Clause power to restructure state democracy during the First Reconstruction.³⁴² It used that power to expand the franchise to Black men.³⁴³

Crucially, it is up to Congress to identify the Clause’s scope and enforce its guarantee of popular government. As the Supreme Court has held for over 170 years and reiterated in 2019, Guarantee Clause claims are nonjusticiable.³⁴⁴ Congress decides whether a state government is republican and what must be done to secure that status.³⁴⁵ When Congress so decides, “[t]he action of Congress upon the subject cannot be inquired into.”³⁴⁶ Were Congress to enact a statutory right to vote in state elections predicated on the Guarantee Clause, the Court would be bound to defer to Congress.

The nonjusticiability of Guarantee Clause claims does not mean that the scope of congressional power under the Clause is boundless. It authorizes Congress to secure majority rule, not to pursue unrelated goals or to subvert that end.³⁴⁷ Congress could not ground unrelated legislation in the Clause by stipulating that any arbitrary policy choice is integral to republican government. Nor could Congress exercise its power under the Clause to reduce popular sovereignty by, say, prohibiting states from holding popular elections for president. What matters here, though, is that the Clause empowers Congress to secure popular sovereignty in the states and that the latitude to liquidate the meaning of popular sovereignty belongs to Congress too.

A statutory right to vote fits comfortably within these bounds. The Guarantee Clause enables Congress to extend a statutory right to vote beyond the scope permitted by the Elections Clause in two dimensions: to cover state elections and to directly specify who may vote. Authorizing citizens to vote and protecting that right against unjustified impediments facilitates rule by the people. Popular sovereignty, like other constitutional values, comes in degrees; a state government may be more or less republican. The fact that a state government may be republican in the rough sense that it generally affords the right to vote to most people does not imply that Congress may not exercise its Guarantee Clause power to enhance state democracy, any more than the fact that a state generally provides “the equal protection of the laws” does not prevent Congress from exercising its Fourteenth Amendment enforcement power to remedy specific forms of discrimination.³⁴⁸ As noted, the Qualifications Clause predicates qualification to vote in federal elections on qualification to vote in the elections for a state’s largest legislative house.³⁴⁹ However, if Congress exercises its Guarantee Clause power to define the state electorate, then Congress would thereby indirectly define the federal electorate.³⁵⁰ The Guarantee Clause, then, provides Congress the power to extend the franchise to all adult citizens.

* * *

A statutory right predicated on the Elections Clause, the Electors Clause, and the Guarantee Clause rather than on the Fourteenth Amendment’s Enforcement Clause would sidestep the Boerne problem. When it comes to the right to vote, Congress has what it lacked with regard to the state element of RFRA: enumerated powers with the substantive scope to ground statutory rights good against the states. A statutory right to vote would be constitutional in much the same way that the federal element of RFRA is constitutional.

RLUIPA provides a helpful analogy. Like RLUIPA, a statutory right to vote rests on enumerated powers, controls government action in only a limited domain, and establishes a statutory right parallel to, but distinct from and more robust than, a constitutional right. Just as RLUIPA rests on the Spending and Commerce Clauses,³⁵¹ so a statutory right to vote would rest on the Elections Clause, Electors Clause, and Guarantee Clause. Just as RLUIPA addresses only land use and the rights of institutionalized people,³⁵² so a statutory right to vote would address only laws that burden the right to vote—that is, laws within the domain of those enumerated powers. And just as RLUIPA effectively enhances judicial protection of the right to free exercise by subjecting substantial burdens on the “exercise of religion,” as the statute defines it, to strict scrutiny,³⁵³ so would a statutory right to vote effectively enhance judicial protection of the right to vote, with the scope of that right defined by the statute, by subjecting burdensome measures to heightened scrutiny.

In affirming that a statutory right to vote would be constitutional, this Article does not mean to deny that a statutory right to vote would be novel. But what the Supreme Court wrote during the First Reconstruction bears repeating: “[I]t is only because the Congress of the United States, through long habit and long years of forbearance, has, in deference and respect to the states, refrained from the exercise of these powers that they are now doubted.”³⁵⁴ If now, “that body . . . finds it necessary to make additional laws for the free, the pure, and the safe exercise of this right of voting, they . . . are to be upheld.”³⁵⁵

IV. Designing a Statutory Right to Vote

In the previous Part, this Article demonstrated how a statutory right to vote is possible. In this Part, it demonstrates that a statutory right to vote can be designed to achieve the two ends for which a constitutional amendment is supposedly required: expanding the franchise and increasing judicial scrutiny of burdensome election laws.

To illustrate, it analyzes a bill that has eluded scholarly attention. In the 117th Congress, congressional Democrats included a statutory right to vote in federal elections in the final version of their omnibus democracy reform legislation, the Freedom to Vote: John R. Lewis Act.³⁵⁶ As part of that package, this statutory right to vote—dubbed the Right to Vote Act (“RTVA”)—passed the House of Representatives and secured forty-eight votes in the Senate.³⁵⁷

The RTVA does not purport to exercise the full scope of congressional power to create a statutory right to vote. For instance, the RTVA applies only to federal elections.³⁵⁸ Still, the RTVA’s design models how a statutory right to vote can remedy the problems that plague Anderson–Burdick. The foundation of the bill is an express, affirmative guarantee to every adult citizen of the right to vote in federal elections and have their vote counted, free from undue burdens on the time, place, and manner of voting, language which parallels the scope of the Elections Clause.³⁵⁹ From there, the RTVA would create a private right of action to enable voters to challenge any government measures that burden the right.³⁶⁰ To ensure that courts recognize the right’s full scope, the RTVA defines the right’s contours capaciously.³⁶¹ To make the right robust, all measures that burden the right would face at least intermediate scrutiny.³⁶² And to ensure that governments cannot wave away voters’ claims by asserting baseless or irrelevant interests, the RTVA would require governments to substantiate their justifications with significant evidence.³⁶³ This Part concludes with four examples of how a statutory right to vote would operate, by reference to the RTVA.

A. Features

This section explains the key features of the RTVA and discusses how each feature would remedy a defect with constitutional right-to-vote doctrine and do some of the work of a right-to-vote amendment.

1. An Express, Affirmative, Universal Right

The RTVA would guarantee every adult citizen the right to cast a vote and have their vote counted, free from undue burdens on the time, place, or manner of voting.³⁶⁴ This guarantee would transform the right to vote in three ways. First, the statutory right to vote is express; it is conferred on the face of the statute by its plain text.³⁶⁵ By contrast, the constitutional right to vote is merely implied; it exists by virtue of judicial inferences.³⁶⁶ Second, the statutory right to vote is affirmative, not merely negative. It is a right to vote and to have that vote counted, not merely a right against disenfranchisement on certain grounds.³⁶⁷ Third, the statutory right to vote is universal, not selective.³⁶⁸ All adult citizens would enjoy the right by virtue of their equal citizenship.

By constructing an express, affirmative, universal right to vote, the RTVA would resemble the high-water mark of the constitutional right to vote. In the 1969 case Kramer v. Union Free School District No. 15,³⁶⁹ the Supreme Court held that disenfranchising any of a jurisdiction’s adult, citizen residents was presumptively unconstitutional.³⁷⁰ According to the Kramer Court, the Constitution implicitly secured “the right of citizens to vote” in a “free and unimpaired manner.”³⁷¹ By consequence, any statute that limited the right to vote had to face “exacting judicial scrutiny.”³⁷² In other words, the Kramer Court held that the Constitution contained an implicit, affirmative right to vote free from undue burdens. In subsequent years, however, Kramer’s rigor gave way to the permissive balancing framework of Anderson–Burdick.³⁷³ A statutory right to vote could restore Kramer’s promise.

That would make a difference. For instance, as of 2024, roughly four million citizens were disenfranchised for felony convictions.³⁷⁴ The constitutional right to vote has failed to secure them the ballot.³⁷⁵ An express, affirmative, universal statutory right to vote would restore their voting rights.³⁷⁶

2. Burdens

To secure this statutory right to vote, the RTVA would provide a private right of action and feature a burden-shifting framework like the ones that govern other statutory civil rights claims.³⁷⁷ In the first stage of the inquiry, the plaintiff would have to demonstrate that the measure they challenge burdens their ability to vote or makes it less likely that their vote will be counted.³⁷⁸

The bill takes four steps to ensure that courts assess burdens appropriately. First, the bill guarantees the right to vote and have it counted free from any unjustified, non-trivial burden on the time, place, or manner of voting.³⁷⁹ That expansive language directs courts to keep Anderson–Burdick’s promise that all burdens, “however slight,” must be scrutinized and are unlawful if they are unjustified.³⁸⁰

Second, the RTVA constructs that right through two prohibitions: a ban on retrogression³⁸¹ and a ban on substantial impairment.³⁸² The first (retrogression) is a prohibition against making voting harder. The baseline for measuring the burden is chronological: in essence, the bill would establish a rebuttable presumption that any new measure that would make it harder to vote than it was in some benchmark year (in the RTVA’s case, 2020) is unlawful.³⁸³ The second (substantial impairment) is a prohibition against making voting unjustifiably hard. Regardless of when an election law was enacted, the law may not make it harder to vote or easier to overturn an election than there is an adequate reason for.³⁸⁴ When it comes to substantial impairment, the baseline for measuring the burden would be not chronological but counterfactual: the hypothetical circumstance in which the challenged measure was never enacted.³⁸⁵

Together, these two prohibitions would transform the burden analysis from an unmoored, scalar inquiry into a manageable one. Under Anderson–Burdick, judgment calls about how burdensome a measure is and how closely to scrutinize it are significant and irreducible: courts must assess the “character and magnitude” of the burden in the abstract, without any baseline or comparator, and examine the burden with a corresponding (but similarly abstract) level of scrutiny.³⁸⁶ Under the RTVA, the question would be comparative and bounded: if the law diminishes the ability to vote (for a retrogression claim) or impairs it (for a substantial burden claim), then the challenged measure faces the prescribed form of heightened scrutiny.³⁸⁷

Third, the RTVA specifies that plaintiffs need only demonstrate by a preponderance of the evidence that the measure they challenge is burdensome.³⁸⁸ That moderate standard of evidence would give plaintiffs a fair shot to make their case.³⁸⁹ And it would reduce judges’ discretion to supplant the record with their own opinions.

Fourth, the bill expressly rejects one reason that courts cite for refusing to recognize burdens: that a measure is not burdensome if voters were able to cast their ballots in spite of it.³⁹⁰ Voters’ success in overcoming a burden does not erase the burden.³⁹¹ It should be a credit to the voters, not to the government.

3. Interests

If the plaintiff proves that the measure that they challenge burdens their ability to vote, then the burden would shift to the government to justify the measure. In this second stage, the government would have to justify any burden with at least important interests, those interests would have to be “particularized” (that is, precise and relevant), and the government would have to establish the existence and strength of those important, particularized interests by clear and convincing evidence.³⁹²

Retrogressive election laws would face a hybrid form of heightened scrutiny: the government would have to demonstrate that the burden is necessary to significantly further an important, particularized interest.³⁹³ Like strict scrutiny, this standard requires the government to prove that it has to burden the right to vote to advance its interests. But like intermediate scrutiny, this standard allows the government to appeal to merely important interests rather than solely compelling ones. If the government bears that burden, then the plaintiffs would have one more opportunity to establish their claim. If the plaintiffs can demonstrate by a preponderance of the evidence that the government could adopt a less restrictive means of furthering its particularized interests, then the measure is unlawful.³⁹⁴ If a less burdensome alternative is available, then the government’s approach is not necessary.

Laws that substantially impair the ability to vote would face a version of intermediate scrutiny. The government would have to demonstrate that the burden significantly furthers an important, particularized governmental interest.³⁹⁵ Unlike the standard for retrogression claims, the standard for substantial impairment claims would not require the government to satisfy a least-restrictive-means test.

By requiring that the government offer a particularized interest, the RTVA would ensure that governments cannot invoke a vulnerability to one type of fraud as a basis for adopting a measure that would only prevent another, nor invoke a vague, generalized interest in fraud prevention to justify whatever they would like. And by requiring the government to substantiate that interest by clear and convincing evidence, the bill would ensure that the government may no longer assert an interest in preventing voter fraud and expect those magic words to win the case. Instead, the government would have to prove that it has a real interest in addressing a real problem. Because the most common threat states invoke to justify voter suppression—mass voter fraud—does not exist,³⁹⁶ governments rarely would be able to justify the many restrictions founded on this phantom.

4. Tailoring

The RTVA’s burden-shifting framework also would ensure that burdensome election laws are appropriately tailored to the government’s interests. No longer could courts uphold a burdensome election law without due consideration of whether the law is appropriately tailored to the problem it purports to address.³⁹⁷ Any law that impairs the ability to vote would have to significantly advance an important governmental interest.³⁹⁸ And any law that makes it harder to vote would have to be the least burdensome way to advance such an interest.³⁹⁹ On either track, the government bears the burden of proving fit by clear and convincing evidence. Even if the government could show that it faces a real threat of a particular form of voter fraud, that interest would justify the state only in taking measures that would address that problem. Nothing more.

5. Scope

In addition, the RTVA includes three elements that would minimize courts’ discretion to deny that a restriction on a manner of voting implicates the right to vote. First, drawing on the definition of the right to vote in the VRA,⁴⁰⁰ the bill defines “vote” to encompass “all actions necessary to make a vote effective” and specifies that this definition includes casting a ballot as well as any prerequisites to casting a ballot, like registering to vote.⁴⁰¹ Second, the bill defines the right to have one’s vote counted to encompass all actions necessary to have a vote included in the total of votes cast and reflected in the certified vote total.⁴⁰² Third, the bill’s guarantee against any burden on the time, place, or manner of voting ensures that the bill reaches all means of casting a ballot and makes the availability of other means irrelevant.⁴⁰³

B. Examples

To see what a statutory right to vote so designed would achieve, consider four examples: a substantial impairment claim against a voter suppression law, a retrogression claim against a voter suppression law, and two retrogression claims against election subversion attempts.

1. Voter Suppression: Substantial Impairment

Requiring voters to register in advance makes voting significantly harder.⁴⁰⁴ If you are not registered to vote on time, you cannot vote. If you were registered by the deadline but moved afterwards, you may have no recourse.⁴⁰⁵ The same is true if you were wrongly purged from the rolls.⁴⁰⁶ Advance registration requirements are what give states the ability and the incentive to purge voters: if you can register or correct your registration on the day you vote, you can overcome a purge. Depending on the state, advance registration laws are responsible for preventing between tens of thousands and hundreds of thousands of eligible voters from casting their ballots.⁴⁰⁷

Allowing voters to register on the same day they cast their ballots (known as same-day registration) makes voting more accessible.⁴⁰⁸ On average, turnout increases by six percentage points.⁴⁰⁹ What’s more, same-day registration disproportionately benefits many of the eligible voters whom the election system otherwise disparately burdens: Black voters, poor voters, and younger voters.⁴¹⁰ Nevertheless, twenty-four states require voters to register to vote before Election Day.⁴¹¹ With a few exceptions, those deadlines are between a week and a month in advance.⁴¹²

Even though voter registration deadlines are among the most consequential and best documented voting restrictions on the books, Anderson–Burdick litigation to dislodge them has uniformly failed.⁴¹³ The courts that have heard these claims have dismissed the burdens as minimal, embraced states’ asserted interest in preventing voter fraud, and refused to require the states to provide any evidence to justify their claims or show a close fit between their means and their ends.⁴¹⁴

Courts have halted two attempts to eliminate same-day registration and impose new advance registration requirements.⁴¹⁵ One of those wins proved temporary. The ruling was stayed and ultimately vacated; the ensuing settlement did not include a restoration of same-day registration.⁴¹⁶ The other ultimately rested on discriminatory intent grounds, not on Anderson–Burdick grounds,⁴¹⁷ making the challenge hard to replicate. In any event, defensive claims to shield same-day registration are no substitute for offensive claims against advance registration requirements. It is one thing to protect same-day registration once legislatures have provided it; it is another to provide it where they have not.

By contrast, a statutory right to vote would empower voters to bring serious challenges to advance registration deadlines. Because advance registration laws have been on the books for decades, they would not be subject to retrogression challenges with the RTVA’s 2020 baseline. They would, however, be subject to substantial impairment challenges. At the burdens stage, proving a substantial impairment is not particularly hard: all that plaintiffs need to do is show that advance registration deadlines make it non-trivially harder to vote than it would be without them. Plaintiffs could make that showing by pointing to what may be the most robustly documented burdens of any common voting requirement. In response, state defendants would have to prove that requiring voters to register in advance significantly furthers an important, particularized interest. In all likelihood, they would cite two interests: fraud prevention and election administrability. Courts probably will find those interests important. But they might not find that advance registration significantly furthers them. Insofar as advance registration requirements mitigate the risk of fraud, they do so through the registration requirement itself, not through the requirement that registration happen in advance. And because voter registration systems are overwhelmingly digital, advance registration may no longer do as much to advance administrative interests as it once might have.⁴¹⁸

To be sure, substantial impairment claims would be harder to bring than retrogression claims, because the former would not trigger a least-restrictive-means requirement like the latter would. But intermediate scrutiny is still demanding. Voters would have far better odds than they have under Anderson–Burdick.

2. Voter Suppression: Retrogression

In 2021, Texas enacted a law requiring anyone voting by mail to include their driver’s license number or partial Social Security number on their ballot.⁴¹⁹ But satisfying the requirement was not as simple as putting down either number. The voter had to know which one they had registered to vote with.⁴²⁰ Not only did the statute, S.B. 1, provide no funding to educate voters about the new identification requirement, the statute also imposed vague restrictions on how election officials could communicate about voting by mail, deterring them from informing voters about what they had to do.⁴²¹ Making matters worse, the statute denied voters any reasonable opportunity to cure their ballots if they did not include the required information.⁴²² Texas barred voters from checking the status of their ballots online unless they had both their driver’s license number and their partial Social Security number on file.⁴²³ Nearly a million voters didn’t.⁴²⁴

The law disenfranchised thousands. Sixteen counties together rejected more than twice as many ballots in the March 2022 primaries as the entire state of Texas rejected in the 2020 presidential election.⁴²⁵ In several counties, the ballot rejection rate skyrocketed to around twenty percent; the ID rules were responsible for nearly all the rejections.⁴²⁶

You might think that S.B. 1 so burdens the right to vote that voters easily could win an Anderson–Burdick case against it. But at each stage of the inquiry, voters are likely to come up short. First, the court might trivialize the burdens. How hard is it, the court would ask, to write a few digits on a page? S.B. 1, the court would say, imposes nothing more than the ordinary inconveniences of voting. On top of that, Texas (nominally) gives (some) voters (some) opportunity to fix their mistakes. Even if the plaintiffs draw a judge who recognizes that a law disenfranchising thousands of people might be burdensome, the plaintiffs likely would lose in the next stage. The state would tell the court that S.B. 1 serves its interest in preventing voter fraud. Because that interest is important, the inquiry would end there. The court likely would not demand that the state show that the requirement is appropriately tailored to its interest. All of this assumes that the court would find that S.B. 1 implicates the right to vote in the first place. Since the statute concerns only voting by mail, the court might not. Plaintiffs have to run the table to win; state defendants need only prevail at any one stage.

By contrast, with a statutory right to vote, voters likely would prevail against this law. Because S.B. 1 was enacted after the 2020 elections, the statute would be subject to a retrogression challenge under the RTVA. Because the retrogression framework cabins the burden inquiry to the narrow, determinate question of whether S.B. 1’s identification requirement makes it harder to vote than it was before, plaintiffs likely could make the showing. Because Texas then would have to prove that S.B. 1 is necessary to significantly further an important, particularized governmental interest, Texas could not succeed with a mere assertion that the challenged provision helps to prevent fraud. In all likelihood, the state would be hard-pressed to prove that it faced a credible threat of the sort of voter fraud that a driver’s license number could prevent, let alone that imposing this requirement in this form is essential to preventing it.⁴²⁷

3. Election Subversion: Retrogression—Post-Election Litigation

Next, consider how the RTVA would handle election subversion claims. Two notes. First, to reiterate, election subversion is action that increases the risk that “the purported outcome of the election does not reflect the choice of the voters.”⁴²⁸ Second, because it does not appear that any jurisdiction had a law from before the 2020 election that made it so easy to subvert an election that the measure could face a viable substantial impairment claim, this section will focus on retrogression claims.

Judge Griffin’s attempt to overturn his defeat in the 2024 North Carolina Supreme Court election illustrates how a statutory right to have one’s vote counted could help check election subversion.

Recall that after Judge Griffin lost the election to Justice Riggs, Griffin persuaded North Carolina’s courts to order election officials not to count certain votes, even though voters cast those votes in compliance with the rules at the time of the election.⁴²⁹ One group of voters who stood to have their votes discarded were “Never Residents.”⁴³⁰ “Never Residents” were children of North Carolinians residing overseas who checked a box on their ballot request forms indicating that they, unlike their parents, had never resided in the United States.⁴³¹ State law granted “Never Residents” the right to vote, so on Election Day, they had every reason to think that they were eligible.⁴³² However, during Griffin’s post-election litigation, the state courts held that this statute violated the state constitution.⁴³³ The courts then ordered the votes of all designated “Never Residents” excluded from the certified total.⁴³⁴ The order did not afford the alleged “Never Residents” any opportunity to challenge their classification—that is, to show that they had inadvertently or incorrectly checked the “Never Resident” box.⁴³⁵ As Riggs challenged the order, she produced evidence that around ten percent of designated “Never Residents” were actually eligible voters.⁴³⁶ The federal district court held that the post-election prohibition on counting the votes of “Never Residents” violated procedural due process.⁴³⁷

However, because Griffin argued that Anderson–Burdick was the proper standard for adjudicating the claim, the court also discussed whether excluding these votes from the count violated the constitutional right to vote.⁴³⁸ In this alternative rationale, the court concluded that if Anderson–Burdick applied, the order to exclude the votes of misclassified “Never Residents” violated their voting rights.⁴³⁹ First, the court found that the “retroactive invalidation of one’s vote” constituted a severe burden, at least as to those voters incorrectly classified as “Never Residents.”⁴⁴⁰ Second, the court acknowledged that the state had a compelling interest in counting only the votes of state residents.⁴⁴¹ Then, third, the court found that declining to count these votes after the election, without affording the voters any notice or opportunity to substantiate their status, was not the least restrictive means of achieving that interest.⁴⁴² The challenged orders were not appropriately tailored.⁴⁴³ If Anderson–Burdick applied—a point the court doubted—the doctrine would bar Griffin’s bid to subvert the election.⁴⁴⁴

Judge Griffin did not appeal the ruling. As a result, the court’s application of Anderson–Burdick remains the alternative reasoning of a single judge. For our purposes, however, the court’s Anderson–Burdick analysis matters because it illustrates how rigorous Anderson–Burdick-style review of an attempt to overturn the results of an election could be.

Imagine a future Griffin-type case wherein the loser of an election persuades a state court to order the exclusion of certain votes from the certified total. Impacted voters could file a retrogression claim in federal court asserting that this order violated their statutory right to have their vote counted. At the outset, the plaintiffs would have to prove that the order made it less likely their votes would be counted than it was before. In a case like Griffin, that would be straightforward: on its face, the order bars the state from counting their votes.

In response, the state would have to prove that retroactively excluding these votes from the count is necessary to significantly further an important, particularized government interest. That would be very difficult. Even if, as in Griffin, the state had compelling interests in excluding these votes before the election, it would be unlikely that refusing to count these votes after the election is the least burdensome means of advancing those interests, especially without affording the voters any opportunity to challenge their post-election disenfranchisement.

In sum, a statutory right to vote would validate the tentative Anderson–Burdick analysis of the Griffin court, streamlining future challenges to election subversion and helping ensure that every eligible vote is counted.

4. Election Subversion: Retrogression—Power-Shifting Legislation

Finally, consider how a statutory right to have one’s vote counted would help check a different form of election subversion: the partisan takeover of election administration.

Since the 2020 elections, states like Georgia, North Carolina, and Texas have passed laws that transfer the power to run elections—including the power to count the votes and certify the results—from local, nonpartisan, experienced experts to partisan, state-level political actors.⁴⁴⁵ There is nothing inherently unconstitutional about changing who administers elections and how they do so.⁴⁴⁶ Nevertheless, election law scholars have observed that “power-shifting legislation” may increase the risk of election subversion by putting the ostensibly ministerial responsibility of counting the votes and certifying the results in the hands of people with greater incentive and ability to reject the choice of the voters.⁴⁴⁷

Anderson–Burdick affords little recourse against these laws. It is not clear that election subversion claims against partisan takeover laws are cognizable. If these claims are cognizable, they have not succeeded. Many partisan takeover laws remain on the books, and none has ever fallen to an Anderson–Burdick challenge.⁴⁴⁸

By contrast, a statutory right to have one’s vote counted would enable voters to challenge laws like these for retrogression. If election subversion scholars are right about power-shifting legislation, a plaintiff should be able to prove that a power-shifting statute makes it less likely their vote would be counted or, if counted, play the appropriate role in determining the winner of the election. The plaintiff could point to the inexperience or incompetence of the newly empowered officials, the increased risk of arbitrariness or unchecked discretion, the new actors’ stated intentions, or ways in which comparable changes in other jurisdictions have resulted in less accurate counts or less reliable certifications.

If the plaintiff carries this threshold burden, the state would have to prove that transferring power over elections is necessary to significantly further an important, particularized interest. Here, too, context will matter. Sometimes, local election offices suffer real and persistent administrative problems that may warrant intervention.⁴⁴⁹ But the state would have to make that case. If the state were to carry its burden, the plaintiff would have the opportunity to show that the government could further that end by a means that poses less of a threat to the count.

A statutory right to have one’s vote counted would not guarantee that challenges to partisan takeover laws succeed. Whether laws like these constitute election subversion depends on the facts. What a statutory right would do is give due weight to each voter’s interest in having their vote counted and focus litigation on the right questions: whether, as a matter of fact, a takeover law makes it less likely that each vote will be counted, and whether that risk is a justified means of realizing appropriately significant government interests.

V. How a Statutory Right to Vote Compares

How else could we restore the right to vote? As this Article has discussed, the leading scholarly proposal is a constitutional amendment guaranteeing it. This Part compares a statutory right to vote with the constitutional alternative. Then, it compares a statutory right to vote with two alternative statutory strategies: mandating specific changes to the voting process and restoring preclearance.

A. The Constitutional Alternative

One leading strategy for enhancing judicial protection of the right to vote is to amend the Constitution to guarantee the right.⁴⁵⁰ The proposed amendments vary, but all center the core feature of the statute proposed here: guaranteeing the right to vote to all adult citizens.⁴⁵¹

Over the last two Parts, this Article has challenged two assumptions underlying pro-amendment scholarship. Part II showed that a constitutional amendment is not the only option; the Constitution authorizes Congress to enact a statutory right to vote free from undue burdens. Part III showed that a statutory right can be designed to achieve the two legal aims of a constitutional amendment: subjecting burdens on the right to vote to heightened scrutiny and expanding the franchise. Now, this Article discusses one caveat to each of the prior points.

First, although a statutory right to vote could do most of the work of an amendment, it could not preclude subsequent federal legislation, whether a federal voter suppression law or the repeal of the statutory right itself. Most scholars agree that earlier federal legislation cannot block later legislation.⁴⁵² This is a grave limitation on a legislative approach—a substantial reason to support an amendment in addition to a statute. Still, for most of our history, Congress has exercised its electoral power to expand the franchise, not to constrain it.⁴⁵³ The SAVE Act (the most recent federal voter suppression bill to garner significant legislative support) has stalled in the Senate, albeit because of the filibuster, the same barrier that blocked the RTVA.⁴⁵⁴

Second, a statutory right to vote would be subject to judicial review. An amendment, of course, would not. This, too, weighs in favor of an amendment. The problem is serious. Still, it does not favor an amendment as much as it might seem to. Because, as this Article has contended, a statutory right to vote is well within the ambit of congressional power, there is no sound argument for striking one down.

Of course, the Supreme Court might strike one down anyway. But more to the point, a judiciary that would strike down a statutory right to vote and eviscerate over a century of precedent is not a judiciary that would give full effect to a right-to-vote amendment anyway. That matters. Unless a right-to-vote amendment is written in as much detail as the statute proposed here, there would be two ways to distill its meaning and realize its aims. One is for the courts to apply the amendment directly. On the assumption that the judiciary remains voter-hostile, an amendment might not make much of a difference.⁴⁵⁵ The other way to determine the meaning of an amendment is for Congress to enact implementing legislation. That legislation may well look like the proposed statutory right to vote. The main contribution of an amendment, then, would be to provide a constitutional basis for that legislation. Courts still would have the power to review and interpret the legislation, with all the risks that involves. All of which is to say that realizing the promise of a constitutional amendment would involve many of the same challenges as realizing the promise of a statutory right to vote.

In any case, a Congress with the reasonable concern that the Supreme Court would strike down a statutory right to vote could strip the Court of jurisdiction to review its constitutionality.⁴⁵⁶

So, a statutory right to vote has real limitations relative to a constitutional one. Yet the gap is not so great that an amendment is the only path worth treading. A statute would make a difference.

Here are a few additional points of comparison. A statutory right to vote would advance the values that scholars invoke in favor of a constitutional amendment. It would advance political equality by increasing the accessibility of this fundamental democratic right.⁴⁵⁷ It would help streamline election litigation by shifting the burden of justifying election restrictions to governments.⁴⁵⁸ And it would help protect the value of the right by preventing election subversion.⁴⁵⁹ A statutory right to vote would confirm that because every citizen has the right to vote, the government has the duty to ensure that exercising that right is no harder than it has to be.

Then there is the main reason to favor a statute, or at least to start with one: a statutory right to vote is much more politically feasible than a constitutional one. If the 117th Congress is any indication, a statutory right to vote is politically feasible in the near term.⁴⁶⁰ A constitutional right to vote is not. At the very least, we could create a statutory right to vote for a far lower political price than a constitutional amendment.⁴⁶¹

For the same reason, a statutory right to vote likely would be more rigorous in its domain than a constitutional one; the more support a voting rights measure would need to become law, the vaguer and less effective the measure likely would be.⁴⁶² To the extent political capital for democracy reform is scarce, pursuing a statutory path rather than a constitutional one leaves more room for the rest of a democracy agenda.⁴⁶³

Perhaps the most important point, though, is that the statutory approach and the constitutional approach are complementary, not rivalrous.⁴⁶⁴ By expanding and empowering the electorate, enacting a statutory right to vote now can help facilitate the ratification of a constitutional one later. Just as enhancing democracy in the states can serve as a springboard to enhancing democracy nationwide, so too can a statutory right to vote serve as a springboard for a constitutional successor.⁴⁶⁵ Plus, if Congress were to enact a statutory right to vote and the Court were to strike it down, the movement for an amendment might benefit from the revelation that the Court has left the nation with little other choice.

A right-to-vote amendment would be a transformative addition to our Constitution. Nevertheless, a statutory right to vote like the one proposed here would achieve much of what an amendment would at a far lower price, while facilitating an amendment down the road.

B. The Statutory Alternatives

There are other statutory strategies, too: targeted reforms and renewed preclearance. A statutory right to vote would complement them.

The first half of the Freedom to Vote: John R. Lewis Act originated as a bill designated H.R. 1.⁴⁶⁶ H.R. 1 featured a slew of provisions that would help increase access to the ballot, from establishing automatic voter registration to banning secret voter purges.⁴⁶⁷ Generally speaking, the provisions of the Freedom to Vote: John R. Lewis Act that originated in H.R. 1 would make two types of reforms: prohibiting specific obstacles to voting and mandating specific best practices.

This approach has limits. First, H.R. 1 would not have prohibited everything that states were already doing to suppress the right to vote and subvert elections.⁴⁶⁸ Second, Congress cannot foresee every voter suppression or election subversion measure that governments might devise. Congress should neither underestimate states’ (or presidents’) creativity nor overestimate its own capacity to react nimbly. Our history is clear: when governments are determined to suppress the right to vote, they will engage in “unremitting and ingenious defiance of the Constitution.”⁴⁶⁹ Prohibit one voting restriction, and governments may come up with another.

That is exactly what happened during the 117th Congress. For example: after the U.S. House of Representatives passed H.R. 1, Georgia passed a law prohibiting mobile voting centers, authorizing the transfer of power from nonpartisan local election administrations to the partisan state legislature, and criminalizing providing free food or water to people waiting in line to vote.⁴⁷⁰ Shortly thereafter, Florida adopted its own version of that last restriction.⁴⁷¹ H.R. 1 would not have stood in their way. In contrast, a statutory right to vote would have enabled voters to challenge them. It is hard to imagine how Florida and Georgia could prove that dehydrating voters is necessary to preventing mass voter fraud.

It might seem like the second half of the Freedom to Vote: John R. Lewis Act—the John Lewis Voting Rights Advancement Act—supplies the backstop that the rest of the bill lacks.⁴⁷² This component of the bill, originally introduced as H.R. 4, would renew Section 5 of the VRA—the preclearance requirement—by adopting a new coverage formula to replace the one that the Court struck down in Shelby County.⁴⁷³ Like a statutory right to vote, preclearance can prevent states from enacting a wide range of burdensome voting laws. Preclearance has the further advantage of categorically barring discriminatory election laws from taking effect; by contrast, a statutory right to vote only empowers voters to challenge burdensome laws afterwards. So, restoring preclearance is vital.

Nevertheless, preclearance would not obviate the need for a statutory right to vote. First, a statutory right to vote would apply nationwide, while the form of preclearance proposed in H.R. 4 would apply only to covered jurisdictions.⁴⁷⁴ Fewer than a quarter of states would have to comply.⁴⁷⁵

Second, the conditions that trigger coverage limit preclearance from reaching more jurisdictions. Coverage would be predicated on a judicial determination that a jurisdiction enacted racially discriminatory election laws in violation of the Constitution or the VRA.⁴⁷⁶ Courts may be reluctant to make these findings; the Roberts Court is.⁴⁷⁷

Third, preclearance addresses only racially discriminatory election laws, whereas a statutory right to vote heightens judicial scrutiny of all burdensome election laws.⁴⁷⁸ It may be easier to prove that a law is burdensome than that a law is discriminatory.

Fourth, preclearance blocks only retrogression: election laws that make voting harder than it was before their enactment.⁴⁷⁹ By contrast, a statutory right to vote also would target laws that are burdensome on absolute terms: laws that make voting unjustifiably hard. Consequently, whereas preclearance would prevent the status quo from getting worse, a statutory right to vote would empower voters to improve the status quo, too. Fifth, and relatedly, because preclearance can block only new restrictions, it cannot repair the damage of the last fifteen years.⁴⁸⁰ A statutory right can.

Sixth, preclearance is only as powerful as the Justice Department is willing to make it. A DOJ hostile to the VRA and its aims could approve discriminatory election laws. By contrast, because any injured voter could bring a statutory right-to-vote claim, a hostile administration could not simply turn off the right.

Finally, it is doubtful that the Roberts Court would uphold a new preclearance formula anyway.⁴⁸¹

Others might worry that a statutory right to vote demands too much. Governments make countless decisions about election administration, and some reasonable decisions might impose minor burdens on voters without significantly furthering any important interest. That may be a good reason not to require strict scrutiny across the board. But it is not a reason that a statutory right to vote would prove too demanding. Most marginally burdensome measures will be justified by correspondingly strong state interests or else be trivial enough that denying states and counties the ability to make them would not be a real loss. Plus, the time and money costs of election litigation may limit frivolous cases.⁴⁸² Even if the statute were to result in states and subdivisions having less discretion to make these choices, that is a reasonable price to pay to secure the right to vote. In a democratic society of political equals, the government should bear the burden of justifying making it any harder to vote than it has to be.⁴⁸³

VI. Conclusion

The United States has never expressly, affirmatively, universally guaranteed the right to vote. Not in the Constitution. Not by statute. With judicial protection for the right to vote ebbing, the costs of that failure grow clearer. A statutory right to vote could change that, enfranchising all adult citizens and increasing judicial scrutiny of measures that impair the ability to vote. A statute could not close the gap as completely or securely as a constitutional amendment. But a statute could come close. And a statute is possible soon. By enacting a statutory right to vote, Congress could begin to replace the paradigm of voting as a selective privilege secured by negative rights with a paradigm of voting as an affirmative right of citizenship.⁴⁸⁴ In doing so, Congress also could reduce our dependence on judges as the guardians of our most fundamental rights.⁴⁸⁵ Perhaps the right to vote will be one of many rights that we reconstruct by statute.⁴⁸⁶

[*] Climenko Fellow and Lecturer on Law, Harvard Law School, 2024-2025 & 2026-2028. For generous inspiration, guidance, and support, I thank Guy-Uriel Charles, Zach Fisch, Justin Florence, Rachel Homer, Michael Klarman, Cerin Lindgrensavage, Adam Lioz, Genevieve Nadeau, Dessie Otachliska, Nicholas Stephanopoulos, Susannah Barton Tobin, Mengyi Wang, and Laura Williamson. For insightful editing, I thank everyone at the Harvard Journal on Legislation. All mistakes are my own.

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