Faculty Director Guy-Uriel Charles has a new essay in The Regulatory Review based on remarks delivered at the Annual Distinguished Lecture on Regulation at the University of Pennsylvania Law School on November 2, 2021. An excerpt is reproduced below. Read the full essay by clicking the button below.
The future of voting rights law should be grounded on full inclusivity and equality. Everyone’s right to vote must be taken seriously—and conceptions of state sovereignty have no role to play in such a future. Neither the public nor the legal system should allow the government to regulate the franchise in ways that diminish its efficacy.
We need to mobilize today around the vision of inclusivity in much the same way that protest movements mobilized to bring about the VRA. Black activists saw the VRA as a means to remake the racial order by remaking the political order. That protest movement changed not only politics but also constitutional law. The task in the post-VRA world is to take the lessons learned—namely, that there is a strong relationship between racial hierarchy and political oligarchy—and move forward toward a vision of a new world of equality.
What does this new world look like? It looks like two new statutes that have been proposed in Congress: the For the People Act and the Freedom to Vote Act. If you look at the Freedom to Vote Act, for example, it takes voting seriously as a fundamental right. It attempts to articulate best practices in organizing inclusive elections and then nationalizes those practices. It undermines the conception of state sovereignty in which the state has the right to create its political structure as it sees fit. It recognizes that the right to vote belongs to citizens, so it makes certain that everyone has access to practices such as early voting, mail voting, and no-excuse absentee balloting. It prevents partisan gerrymandering, provides remedies for vote certification, and modernizes voter registration. It recognizes the fundamental goal of making voting and political participation an important aspect of democracy.
To move forward in the 21st century, society must recognize that political equality and racial equality are mutually reinforcing and one cannot exist without the other. Admittedly, the U.S. public is extremely divided today and too many states are still engaged in discrimination on the basis of voting—whether on the basis of partisanship, race, or a combination of the two. And with current patterns of gerrymandering and redistricting in today’s deregulatory environment, there are certainly reasons to be pessimistic.
But on the other hand, for the first time in a long time, a strong segment of the population wants to tackle not just voting equality questions, but also questions of electoral structures: the Electoral College, the composition of the Senate, different ways of organizing an alternative voting system. Today, all these issues are on the table. In addition, many jurisdictions have adopted same-day registration, early voting, and other best practices that make it easier for people to participate in elections. As a result, even though there are surely reasons for despair today, thinking about how far the United States has come in terms of political participation and anticipating where it might be five, ten, or fifteen years down the road, well, who knows? There is possibility for hope.
The question then becomes: How does the United States move beyond the present deregulatory posture of federal law and build a social movement for the purposes of making the legal change needed to ensure full democratic inclusiveness? I see that we need to build a new movement worthy of the civil rights movement that led in the mid-1960s to the Civil Rights Act and the Voting Rights Act. It is ultimately up to us to make that happen. It is up to us to move the ball forward to make political power and representative democracy true for everyone and for all of us.
Read the Essay