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Hot debates are underway about our voting process. Should people be required to show specific forms of government-issued ID when they vote? Should they be able to register on Election Day? Must they register at all before voting? Must they go to the polls rather than vote by mail (as everyone does in Oregon)?
While this debate unfolds, it’s helpful to return to basic principles–but people disagree about those, as well.
At CIRCLE, we have occasionally polled young people about whether voting is a right, a duty/obligation, or a choice. In fact, we will release current national opinion data on that question shortly. Youth tend to divide their responses fairly evenly among those three options, but we might add a couple more:
1. Voting is an individual right, reflecting the basic moral principle of equal respect for all citizens and enshrined in classic Supreme Court decisions. Whether an individual actually votes ought to be his or her choice, but the government may not impose obstacles or costs unless those are required by some other compelling constitutional principle. Thus, for example, a photo ID law is impermissible if any eligible citizens will be blocked from participating, unless (contrary to fact) manifest evidence of fraud has been uncovered and photo IDs are essential tools to prevent that. More difficult questions involve convenience. Is it, for example, permissible for a government to restrict voting to a single day? (Many states allow early voting.)
2. Voting is a duty, an obligation of citizens to their republic. If this is correct, then we might consider requiring everyone to vote, as Australia and several other democracies do. On the other hand, since it is a moral obligation, we can perhaps require people to take extra steps in the public interest. For example, maybe citizens have an obligation to go to a public polling place on Election Day in order to demonstrate their civic commitment and to sustain a national ritual. And perhaps they have an obligation to take affirmative steps to register to vote. As long as such requirements are imposed after due deliberation, by legitimate representatives of the public, they are appropriate.
3. Voting is a way to make the government representative of the population. The politicians and ballot initiatives that win–and the policies that emerge from the government–ought to be the ones that all Americans would favor if they all voted. It doesn’t matter if less than 100% of citizens vote, as long as the outcome is not changed by lower turnout. Thus all voting groups should participate in proportion to their prevalence in the population. “Voting groups” may be demographic, geographical, or ideological; they are fundamentally defined by whether they would vote alike in a given election. By this standard, any election law is bad if it disproportionately affects a voting group, and good if it moves us closer to equitable representation. On the whole, that means that we should reduce inconvenience, because low-SES and young people are underrepresented in elections and are disproportionately likely to be deterred by barriers.
4. Voting is way of gaining power over other people, and as such, it is a vulnerable aspect of a political system that is always on the verge of corruption. Ballot-box-stuffing, voting the dead, voting early and often: these are characteristic and unacceptable features of our politics. Even if there is some truth to the other views listed above, preventing fraud is a compelling need that may necessitate imposing some hurdles.
5. Voting is a means to preserve other rights. Because the Constitution does not explicitly define or protect voting, yet several constitutional amendments forbid discrimination in voting, the Court was at first reluctant to declare voting a right on par with due process, speech (or property). In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court held for the first time explicitly that voting was a fundamental right. “Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless [the political franchise] is regarded as a fundamental political right, because preservative of all rights.” Note that this is an empirical claim (i.e., voting protects other rights), which we might dispute. Sometimes majorities use the franchise to undermine rights.
In the more famous Reynolds v Sims case, 377 U.S. 533 (1963), Chief Justice Warren said, “Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal, elections.” Many voting cases had been decided in the 80 years between these two cases, and Warren drew the lesson that voting rights were “individual and personal in nature.” Voting, he held, “‘touches a sensitive and important area of human rights,’ and ‘involves one of the basic civil rights of man.'” He quoted the Yick Wo decision to the effect that voting preserves other rights, but he emphasized voting as an individual right–option #1, above. I think that this remains the dominant view in constitutional law, whereas #3 is more influential in political science.
Empirical evidence is relevant to this debate. For example, #4 is weakened by a lack of evidence that the relevant kind of fraud (voting when you don’t have the right to) occurs at any significant rate. To some extent, political interests drive the debate and line up behind the policies that benefit their side. But there is at least a residue of genuine moral disagreement here.