A CONCERN: DETERMINING WHO CAN VOTE

The dust has settled. President Obama won and the House of Representatives is still under the control of the Republican Party. Actually, all the characters making up the leadership of our central government are still in place. Perhaps, with the beginning of his new term, the President's cabinet will probably have new personnel, but not yet. I shared, in a series of three postings not so long ago, what I learned from the latest election. With this posting, I want to share a concern I have that emanates from that election.

Apparently there was a concerted effort to deny many of our fellow citizens the opportunity to vote in a reasonable fashion. Central to federalist thinking is the promulgation of the principle that a governing process must give those affected by the actions associated with any endeavor a say in what happens relative to that endeavor. This principle applies foremost in regard to the endeavors of our government. Our main method, but not our only method in having that say is through voting. While the right to vote is not guaranteed directly by the Bill of Rights, it is considered a central right – it makes our claims of being a democracy meaningful.

So when there seems to be a planned and concerted effort to deprive significant numbers of citizens the ability to vote or to make it so unreasonably onerous to vote – as in unreasonable wait time in long lines snaking themselves into polling places – this federalist principle is being violated. During this last election, I personally know some people who waited over four hours to vote here in Florida. It has been charged against the Republican Party that they engaged in such efforts. I will not pass judgment on whether the charges against the Republican Party are true or not. The charges originate from the fact that it was in states run by Republican governors and legislatures where the most egregious laws making it more difficult to vote were instituted and where the longest lines were. The methods employed in making voting more difficult were either eliminating some early voting dates, a provision I will not include in my comments below, or by making new demands in terms of voter identification. The word here in Florida is that the primary voting ID, a driver's license, is going to be more difficult to obtain in the future for everyone, but especially for anyone who has had a change of name – such as most married women (heaven forbid if a woman has been married multiple times). The accusation has been made that such policy changes have been put into place to deprive or make it more difficult for minorities, low income citizens, women, and others who are more likely to vote for Democratic Party candidates.

True? I don't know for sure – no sense going into what I believe regarding anyone's guilt – but what I do understand to be true is the legal standard these policy changes must meet in order to judge whether what has been done meets constitutional mustard. Answering this question brings me back to an issue I addressed in a recent posting titled The Neutral Corner (posted November 19, 2012), which gives a short history of how our courts have established a bias for the right over the good. That is, the courts are working under a bias supporting our rights, like freedom of speech, over what the people's legislatures consider the good, such as legislation to control spending on political campaigns, to be. I argued that such a bias has helped institutionalize those forces that have encouraged a movement away from more federalist views which endorse the right of local communities to define the good for their people. The movement has been toward the ideal that individuals are free to make such determinations for themselves. This latter view is well ensconced in the prevailing political beliefs of our times. I have given that mental construct the name, natural rights construct. The bottom line here is that such a view has led us to a neutrality when it comes to public policy. I reluctantly accept that that is how we view such concerns and that that is not going to soon change. We are, for the foreseeable future, strong believers that government has a limited role in projecting on us what it believes to be the good even if that version of the good reflects what the majority of the community in question believes. This is not to say that jurisdictions cannot pass legislation to advance some view of the good. But the jurisdiction has to be certain that such attempts do not counter a more heightened view of what are considered the rights of citizens. All this leaves us with the question: what constitutes rights?

In terms of voting, which is what we are concerned with here, is it a right? Is it a basic right? Well, federalist theory believes it is for the reasons I outlined above. As a matter of fact, in the most important footnote found in any Supreme Court decision, Justice Harlan Stone in United States vs. Carolene Products Company suggests Fourteenth Amendment rights should especially be used to protect people's rights when legislation hinders access to the political process. I would claim that voting is central to that access. How should this protection manifest itself? That protection is exercised by courts. Under this heightened role, courts will only give their constitutional approval to laws that have been enacted under certain conditions. Lawmakers first need to make a reasonable and successful claim that the interest the state has in passing the legislation is of such importance that limiting a Fourteenth Amendment right¹ is justified. A famous example is a law prohibiting a person from yelling fire in a crowded theater which would limit free speech. And second, that claim will be only successful if the state can provide evidence that the interest of the state in question is being harmed by some tangible evidence, some real condition in fact. What could be a state interest? Something such as public health or safety, as in the example I just stated, are legitimate state interests.

So let's apply this to the 2012 election and laws that in effect limit access to voting. The interest stated was that the state was concerned with fraudulent voting. The claim was that people were voting who did not deserve to vote. The legislatures of these states said that to prevent this fraudulent voting, a person showing up at the polls needs to show appropriate ID. In many states it had been the case that utility bills or the like were sufficient IDs. The newer laws called for state identification cards such as a driver's license. What becomes problematic with these provisions is that in many cases the added requirements unduly affect certain demographic groups such as low income people. By demanding, for example a driver's license, those who do not drive, often the case with low income voters or the elderly, are discriminated against. Yes, these citizens can now get some other state ID, but that calls for a process that can be quite daunting or inconvenient and often requires people to take off from work. In some states the changed law made it more difficult to obtain these state identifications such as the case in Florida I alluded to above. But doesn't the state have a legitimate interest in having only those people who are legally allowed to vote vote? Of course it does.

But if voting is a basic right, as the cited footnote above suggests, then the burden is on the state to prove that such fraudulent voting is not only taking place, but taking place in large enough numbers as to undermine the validity of an election. Stated in other words, lawmakers need to document that there is enough voter fraud to warrant a change in the law and that the change reasonably addresses the conditions that led to the fraud taking place. Republicans have not provided that evidence. And they haven't been able to do so due to a lack of trying – they have tried extensively. Many argue the evidence is not forthcoming because the necessary levels of fraud simply do not exist.

Let me take this line of thought a bit further. From the history of this jurisprudence – a bit of which I wrote of in The Neutral Corner posting – we know that a judicial debate has been going on over what rights should be protected by the courts. Each side of our political divide – liberals and conservatives – have been extra keen to protect different rights. Conservatives have been very interested in protecting contract and property rights, as in the case of rights of employers and employees being able to bargain over conditions of employment – such as hours and wages. On the liberal side, progressives are concerned about political participation rights, legal rights (such as having legal representation), equal access to public services (such as education), health care, and rights such as free speech, freedom of the press, and freedom of association (especially in terms of labor union membership). In short, they have been concerned about rights that are affected by economic inequalities. Conservatives, given the political issue in question, also share in their concerns over some of these same rights – such as right wing advocates wanting their right to contribute to political campaigns protected under the freedom of speech provision. But what I do want to emphasize is the notion of rights which are endangered by economic inequality.

President Franklin D. Roosevelt spoke of the dangers faced by the “necessitous men [and women].”² In his four freedoms, two freedoms come to bear on this discussion: freedom from fear and freedom from want. FDR claimed we can't have equal rights when there are extreme economic inequalities. This concern brings us to where we started: in order to have a say in our common politicking and governing, each of us has to be so situated in economic terms in order to have a reasonable voice in what is being decided. The attempts to limit the vote in this last election demonstrate how some will disregard this aspect of freedom. State legislatures and governors – who are powerful officials – might be so inclined to act or attempt to act in such a way as to limit the less privileged from participating.

1 Fourteenth Amendment rights are designated as what the amendment calls due process rights and equal protection rights. From court interpretations these include most of the rights listed in the Bill of Rights and certain other rights that are considered central to our political culture and tradition.

2See Michael Sandel's treatment of this topic in Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.