The fair value of voting rights

Abstract

A central idea in John Rawls's theory of justice as fairness is that basic political liberties should be afforded fair value in a just liberal democratic society.¹ In this article, I argue that an important guideline for guaranteeing the fair value of voting rights, that is, the usefulness to citizens of their right to vote, is to make it easier not harder to exercise this basic political liberty.² This entails that just societies with a constitutional commitment to equal protection, and the value of equality more broadly, have a duty to secure unencumbered access to the ballot absent narrowly tailored compelling state interests for restricting it (hereafter Unencumbered Access). Where there are such interests—and this is important—the burden imposed on voting must accord with the basic priority of voting rights. This argument shifts the burden of justification from liberals to present sufficient evidence of voter suppression to conservatives, who are currently pushing restrictive voter ID and other laws, to produce compelling evidence supporting their reasons for doing so (chief of which is fraud prevention and deterrence). They must also demonstrate that these laws are carefully crafted to remedy the alleged problem. Because these conditions have not been met these laws are unjustified.³

John Rawls affirms the importance of political liberties as a normative ideal in the abstract by including them on the list of equal basic liberties along with the liberties of thought, conscience, association, and those associated with the rule of law in his liberal egalitarian conception of justice as fairness. However, less abstractly, the principle of equal political liberty is also identified with the principle of equal participation within the constitutionally defined political process of a just democratic society.

Rawls has been criticized for not being entirely clear about why political liberties are included on this list,⁴ and for failing to offer a detailed argument for their special status and a proposal for how it can be captured institutionally.⁵ Yet there is no question that the liberty to political participation on equal terms is meant to carry the abstract normative commitment to equality modeled in the original position—where parties are selecting common principles from a position of equality—to the constitutional stage where they collectively participate in “the highest-order system of social rules for making rules” by participating in the vital political process of lawmaking.⁶ Taking the constitution to be foundational, as the highest-order system of rules regulating and controlling all other institutions of society's basic structure, Rawls concludes that satisfying the principle of equal participation in practice affords all persons with access to the political process “common status of equal citizens.”⁷

Having affirmed the importance of equality within an institutional context, Rawls further contends that a just constitutional democracy should endeavor to “enhance the value of the equal rights of participation for all members of society.”⁸ Such participation can take different forms: serving as an elected representative of the people, making financial contributions to political campaigns, participating in public debate about the issues and the candidates for office, and casting a vote for government representatives and for ballot measures. These are all ways of determining the results of the constitutionally proscribed means of making the laws that bind us and shape our lives from cradle to grave.

The appeal to equal participation to ground a normative defense of voting rights trades, in part, on the intrinsic or noninstrumental value of equal political liberties, which are, in many ways, a good for citizens. As Rawls puts it: “These freedoms strengthen men's sense of their own worth, enlarge their intellectual and moral sensibilities, and lay the basis for a sense of duty and obligation upon which the stability of just institutions depends.”⁹ But in addition to this, Rawls offers an instrumental justification of equal political liberties that is also germane.¹⁰

It proceeds as follows. Other basic liberties, for example, speech, association, and thought (which some may take to be more fundamental), are protected by the principle of equal participation, and lose their value when citizens do not have meaningful opportunity to determine outcomes of the political process in an appropriate fashion.¹¹ The haves, that is, citizens with more income, wealth, and other resources, can leverage these resource inequalities to be better informed about issues, to more accurately assess policy proposals and how they bear on their interests, and to more effectively add ones to the political agenda that advance these interests and their conception of public welfare. All of this will result in the resource-rich having disproportionate influence over lawmaking and settling social issues.¹² It is patently unfair for the equal basic liberty to political participation to be of greater usefulness to the resource-rich than to the resource-challenged.

While resource disparities in income and wealth may be justified and tolerated on grounds that they maximize the primary goods enjoyed by the least advantaged, if indeed they do, we reject the prospect that such disparities should affect the usefulness of citizens' political liberties, which explains why Rawls rightly insist upon securing their fair value. This normative imperative requires that their worth be sufficiently equal to allow all citizens a fair opportunity to influence outcomes of the political process. Specifying how exactly a just constitutional democracy might enhance the fair value of political participation is, as Rawls admits, a complex matter that goes beyond the scope of philosophy. And this is true whether we are focused on free speech or on voting which are distinct ways of influencing political outcomes. Settling upon the necessary arrangements and regulations requires, among other things, the requisite historical experience and knowledge. But philosophy is not altogether useless for this pursuit. It can offer, endorse, and defend possibilities that seem compatible with the normative principle of equal participation.¹³

Rawls, as we know, was particularly interested in the adverse effects of private money and wealth disparities on equal political participation in a private-property democracy.¹⁴ So, he proposed as a guideline for guaranteeing the fair value of political liberties, and as compensating steps to offset resource disparities that make them less useful to the resource-challenged, that political parties in a constitutional democracy operate as independently as possible of large concentrations of private economic interests. He also called for adequate government funding of public elections to prevent candidates from having to rely on private money and thereby risk being beholden to their private benefactors when making laws.¹⁵ Failure to take such steps will, Rawls argues, not only diminish the worth of political liberty for the have nots thus depriving them of fair opportunity for political influence; moreover, it will risk alienating them and facilitating their complete withdrawal from the political process due to apathy and resentment.

And though he does not make this point, it can be added that a withdrawal of the resource-challenged from the political process would also diminish the character of American democracy. To be sure, this proposal seems quite impractical now in view of how expensive running for office has become. Still, these are plausible suggestions for the kind of reforms needed to bring the United States more in line with the principle of equal participation given a certain form that it might take.¹⁶

What about the right to vote? This is arguably the most recognizable and coveted form of democratic participation. What concrete guideline might ensure its fair value to citizens?¹⁷ Separating big money from politics and campaign finance reform do not directly speak to what might be done to enhance the usefulness of equal participation made possible by the exercise of this basic political liberty. One general prescription for realizing the fair value of the political liberty to vote, namely, Unencumbered Access, is to ensure that social arrangements and legal regulations governing voting should as much as possible and subject to certain constraints aim for maximal citizen participation in determining political process outcomes. Hence, a constitutional democracy committed to the principle of equal participation and to ensuring its worth to citizens should make access to the ballot easier not harder in the absence of compelling reasons for doing otherwise.

For the United States, which is a paradigm exemplar of a constitutional democracy on paper, if not always in practice,¹⁸ Unencumbered Access imposes a prima facie duty upon the government to take meaningful steps to ensure that all citizens irrespective of their allotment of income and wealth and other basic goods, for example, education, are able to participate on equal terms in the democratic project of voting. This normative principle of participation imposes on society a duty to make sure that the political liberty to vote is thus substantively and not merely formally guaranteed.¹⁹

Of course, this principle does not require that citizens vote, nor does it entitle them to equal results at the ballot box. They may vote and their preferred candidate may not win. What is at stake, however, is the fair opportunity to have a shot at influencing political outcomes rather than having particular voting outcomes secured. Hence, fair equality of opportunity to determine the political outcomes at the ballot box necessitates that income, wealth, and education among other basic goods unevenly distributed across the population of citizens are neither obstacles nor facilitators to the meaningful exercise of the right to vote.

In a well-ordered society where there is compliance with the principles of justice, we might be justified in restricting our philosophical attention only to the ways in which disparities in income and wealth might interact with the exercise of voting rights to generate injustice. But under less favorable conditions, of the sort that have endured throughout United States history, we must also attend to the ways in which other basic goods like education as well as features of persons such as their race and gender might also bear on their fair opportunity to participate on equal terms in affecting the political process.²⁰

Calling for the separation of money from politics, as Rawls does, and proposing restrictions on corporate speech in public elections and for campaign finance reform presumes that political mischief will result in their absence. Likewise, calling for unencumbered access to the ballot, as I do here, presumes that political mischief is at work when access is made more difficult. This is not a matter of idle and uninformed philosophical speculation. We can consider the infamous history of black voting rights in America. Historically, as Rawls notes, “one of the main defects of constitutional government has been the failure to insure the fair value of political liberty.”²¹ This has unquestionably been a profound failure in America.

The United States has not been well-ordered: race has long played a role, directly and indirectly, in determining participation in the political process through voting. Some states have historically made it excessively burdensome for black Americans to vote.²² For example, after the Civil War many more blacks than whites were illiterate and some southern states exploited this to negate the fair value of black voting rights. For example, in 1882, the South Carolina general assembly adopted an “eight-box” ballot law. Voters were required to put the correct ballot in each of eight boxes, one for each office up for election. The boxes were then continuously shuffled so that election officials could not assist illiterate voters. This indirect literacy test—which exploited racial disparities in education to diminish the worth of blacks' right to vote—was a precursor to more direct ones like requiring citizens to read or recite a section of the constitution before they could register to vote. Such tests were among the many cunning ways some states curtailed the fair value of black citizens to influence the political process and to influence democratic governance on equal terms with whites. Other methods included poll taxes, moral character standards, and property requirements.²³ At the time, some critics complained that each method had the shortcoming of targeting poor and illiterate whites, and not just blacks. So, in response, states such as Oklahoma, Louisiana, Virginia, and Georgia addressed this complication with grandfather clauses that deemed citizens qualified to vote only if they, their father, or grandfather were eligible to vote before 1866.²⁴

It is no surprise that during these times, and long after them, substantial racial disparities in political influence prevailed and that the basic political liberty to vote was of little or no worth to black citizens. They had a constitutionally recognized right to vote (thus their right was formally guaranteed) but their enjoyment of it was seriously constrained by social institutions and practices (thus it was not substantively guaranteed). From the post-Reconstruction period well into the 20th century, southern states—sometimes without but mostly with the support of the courts—found crafty ways to diminish the worth of the black vote in local, state, and federal elections.²⁵

Hence, it is uncontroversial that states have used different devices with the intent and effect of imposing barriers to voting to deprive black citizens of their formal liberty to vote along with a fair opportunity to influence the outcome of the political process. The richness of our historical experience in the United States and our knowledge of nonideal circumstances, where voting rights have not been guaranteed their usefulness for blacks, places philosophical speculation about what it would take to guarantee the fair value of voting rights on firmer footing. Given the historical record of mischief, and the intrinsic and instrumental importance of the right to vote, Unencumbered Access is an attractive default position.

Although allowing for maximal citizen participation in the political process is the goal of Unencumbered Access, there are important constitutional and practical considerations that justify qualifying the right to vote. Fundamental rights have a special status in US constitutional law. Regulations that impose burdens on them generally trigger strict judicial scrutiny. To withstand this exacting scrutiny a law must serve a compelling state interest, and must be narrowly tailored, or required, to advance this purpose.²⁶ It should come as no surprise that Supreme Court Justices often disagree over the relative historical importance of liberty interests in the United States and so over which liberties constitute fundamental rights. Perhaps no area of law makes this clearer than the Court's voting rights jurisprudence.

Here, the most telling case is Crawford v. Marion County Election Board,²⁷ in which the Supreme Court (in a plurality decision) affirmed a Seventh Circuit Court decision not to apply heightened scrutiny to an Indiana law requiring voters to present government-issued photo identification at the polls. Three Justices in the plurality (Stevens, Roberts, and Kennedy) called for a sliding scale balance approach in which burdens on the right to vote are balanced against state interests so that the stronger the burden the stronger the interests must be, and the weaker the burden the less compelling the interests must be. Three Justices (Scalia, Thomas, and Alito) defended a threshold analysis in which only severe burdens on the right to vote warrant strict scrutiny, that is, ones that “go beyond the merely inconvenient.” And in their dissenting opinion, Justices Souter and Ginsburg recognized the right to vote as fundamental but denied that the burden imposed had to be severe in arguing that the onus was on Indiana to show that its voter ID statute could survive heightened scrutiny. The Court has yet to speak with a unanimous—or even a majority—voice on whether and when laws burdening the right to vote merit strict scrutiny.²⁸

Given the Court's widely divergent opinions on whether and when government burdens on the right to vote require strict scrutiny, its status as a constitutionally protected fundamental right remains ambiguous.²⁹ Still, even if it is fundamental, it is certainly not an absolute right.³⁰ According to the United States Constitution certain state interests can warrant imposing burdens on it. The Tenth Amendment reserves certain powers regarding political participation to the states. In addition to setting the conditions under which the right to vote may be exercised, the qualifications of political representatives and how they are chosen, individual states also have primary responsibility for determining congressional districts. To be sure, guaranteeing the fair value of equal political participation rights is not meant to contravene these broad powers. Indeed, as Rawls puts it, “there may be qualifications of age, residency, and so on,” which states impose on serving as an elected representative as well as on voting for one.³¹ But the ways in which states exercise this power must not impose burdens on political participation that unfairly single out citizens and that are not shared evenly by all in the normal course of life.

In addition to retaining its Tenth Amendment powers, states seeking to make access to the ballot harder have claimed further interests including wanting to modernize elections, prevent non-citizen voting, improve election integrity and fairness, restore and sustain voter confidence, and increase voter turnout. However, a concern with preventing voter impersonation fraud has been the most popular justification for doing so, and voter ID laws have been the tools for realizing this goal. These laws allow resource disparities to affect the fair value of political liberty for black Americans and for many other citizens. Requiring certain forms of photo ID to vote implicates resources such as time and money, which allows the haves to leverage resource inequalities to gain easier access to the polls than the have nots. The monetary and nonmonetary burdens such laws impose on potential voters have been well documented. Estimates have been made of the numerous costs involved in procuring valid voter identification, which include purchasing necessary certificates, for example, birth and marriage certificates, travel to relevant agencies to procure documents, potential time away from work or additional childcare expenses, as well as possible legal and notary fees to get documents.³²

While some state statutes have incorporated provisions to mitigate resource disparities, and so may be relatively more just in how they handle elections than other states, obvious measures to offset them have not been universally incorporated into law, for example, free photo ID necessary for voting, being able to acquire the ID in places that resource-challenged must go on a regular basis and requiring forms of ID that they are more likely to possess.

Obviously, failure to mitigate resource disparities that impact fair opportunity to influence political outcomes at the ballot box will have similar consequences to not doing so in the case of political speech. Thus, it is clear that the same justification for guaranteeing the fair value of political speech applies here, and that certain compensating steps are also required in this case. The net effect of these steps is to secure the fair value of voting rights by making voting easier not harder in accordance with Unencumbered Access which is rooted in the principle of equal participation—a principle that has both intrinsic as well as instrumental value.³³

My argument aims to shift the burden entirely on states to justify making voting harder. While preventing fraud has been the main justification for imposing this burden on the right to vote, and making access to the ballot harder, the evidence of in-person fraud at the polls is woefully weak.³⁴ Indeed it is much too weak to justify making access to the ballot more cumbersome.³⁵ Astonishingly, in the Crawford ruling, which upheld Indiana's restrictive voter ID law, the Court acknowledged that the state had produced “no evidence of any such fraud actually occurring in Indiana at any time in its history.” However it downplayed this by arguing that evidence of voter impersonation elsewhere in the country provided sufficient grounds for Indiana's fraud prevention law. So here the justification for burdening the right to vote expands from not only preventing fraud—of which there is hardly any—to deterring fraud for the sake of the public good. But this too is a problem.

Like all other basic liberties, the right to vote and the guarantee of its fair value, cannot be infringed merely because doing so might realize some broad social purpose. For example, suppose that the United States would be better off if there was less gridlock in Washington, as this would enable lawmakers to draft and pass legislation faster and more efficiently. And further suppose that this would be good for society as a whole, and this good could be realized by allowing one political party, say Republicans, a monopoly on political offices. Finally, suppose that this outcome could be realized if persons likely to vote for Democrats including African Americans, Latino/a Americans, college students, and the poor systematically had their votes diluted (preventing them from actually getting the persons they support into office) or they faced insurmountable burdens to exercising it (dramatically decreasing their turnout on election day).

Affirming that the fair value of the right to vote has priority entails that it cannot be traded off for reasons having to do with achieving the public good or some larger welfare goal. Like other basic liberties this right imposes a substantive normative constraint on the pursuit of socially beneficial outcomes. That the usefulness of voting rights to citizens cannot be traded off for the public good does not mean, however, that the right to vote can never be justifiably restricted. As I mentioned earlier, it is not an absolute right. Like all other basic liberties, the right to vote and the guarantee of its fair value can be traded off for other basic liberties. Therefore, suppose that we sought to establish rules within the basic structure of society that incorporated within a coherent system of rights both the political liberty to vote and the liberty of thought and political expression—two other basic liberties. Further suppose that recognizing the liberty of some to engage in commercial speech smearing dis-preferred political candidates just prior to an election limited the right of others—without access to commercial speech—to use their vote to get their preferred candidate in office. This trade-off, which might bring to mind the Supreme Court ruling in Citizens United, would not be ruled out straightaway insofar as it constitutes a case of limiting a basic liberty for the sake of another basic liberty and not for the greater social good. Such trade-offs of rights for the sake of other rights, while possibly objectionable on other grounds, is consistent with assigning basic political liberties and their guarantee of fair value normative priority.³⁶

One virtue of noting that the right to vote is not absolute is that it takes account of the contingent possibility that social conditions necessary to its exercise could change in ways that required limiting this right to fit within an adequate scheme with other basic liberties. If, for example, social conditions changed so that voter fraud had indeed become rampant or new technology made it possible to commit in-person voter fraud with ease, then regulation limiting the right to vote, say by making it harder to vote by imposing more checks—even moderately costly ones—against fraud, might be in order for the sake of upholding one or more competing basic liberties. Of course, we would have to be very clear about what these other liberties are, and the case for the dramatic change in social conditions would have to be compelling enough to justify such restrictions. But insofar as the right to vote and the guarantee of its fair value has priority, we could not justify limiting this right merely by citing a concern with maintaining public confidence in elections, deterring possible voter impersonation fraud, or any of the public good-based reasons that have been advanced thus far.

Obviously, it would not count as an infringement of the right to vote and the guarantee of its fair value for a state to regulate the time, manner, and place of voting—powers reserved to it by the Tenth Amendment. Such rules are clearly necessary for ensuring the possibility of voting and the orderly exercise of the right to vote. Not everyone can vote at once or in the same place so it is necessary to plan for and organize the voting process to bring about the aim of affording citizens the power and equal opportunity to influence the political process. It is important to be clear, however, that all such regulation must be in the service of realizing or recognizing the right to vote and its fair value, that is, taking it from an abstract ideal to a concrete way of acting.³⁷ We might call this right-enabling regulation.

Although such regulation does not amount to an infringement on the right to vote, to maintain the priority of this basic liberty, imposing burdens on voting that go beyond what is absolutely necessary for making the exercise of voting possible, or providing for its orderly exercise, can only be justified for the sake of one or more other basic liberties. So, while one may reasonably be asked to prove that one is authorized to vote at a particular polling place, as part of ensuring the orderly exercise of the right to vote, it is unreasonable for these purposes to demand that one produces proof of citizenship or produces a specific kind of state ID, say a gun permit, rather than a University ID card. Such a rule would be right-inhibiting. These fine-grained ID restrictions, which threaten to make the resource-challenged and resource-rich distinction consequential, could only be justified in a society where the priority of the right to vote and its fair value was affirmed if access to the ballot was being burdened for the sake of some other basic liberty. And there is no credible evidence that this has been the case in the United States.

I have argued that recognizing the fair value of the right to vote constitutes a concrete way of affirming a commitment to the ideal of equality not merely in the abstract but within the context of our participation in the political constitution, which is among the major social institutions that shape our life prospects on fair terms. Exercising the political liberty to vote is an avenue for participation in the political process. Society's commitment to equality is not diminished if citizens choose not to vote. Nor is it diminished if they vote but their candidate does not win (unless of course the voting process is rigged—either by gerrymandering or vote dilution—so that some voters have a much lower chance of getting their candidate in office).

However, if it takes resources like money, education, or time to exercise this basic political liberty, and these are unevenly distributed across the pool of potential voters, then the commitment to equal participation in the political process is wanting. Under such circumstances the value of the right to vote is only meaningfully guaranteed for citizens who have the relevant resources. To guard against making the right to vote resource-dependent in ways that are deeply unfair to all citizens regardless of race, but especially deleterious for black citizens as a group who are more resource-challenged relative to others, we should recognize a duty to secure unencumbered access to the ballot.