The right to vote in a 21st Century democracy: Thoughts from my new book


In just a few weeks Minnesotans will attend their party caucuses as part of the process of selecting the candidates who will run for governor and other constitutional offices, U.S. Senator and House of Representatives, and the Minnesota House of Representatives, among other positions. Yet if the past is any indication of what will happen, very few individuals will attend these caucuses–some by choice–but others will be excluded by economic or practical necessity, without the option of participating by absentee voting or through technologies that would make it possible to engage, even halfway around the world.

Note: I am pleased to announce the publication of my latest book, Election Law and Democratic Theory, published this month by Ashgate Publishing. This blog draws upon some of the themes presented in chapter three of the book which examines voting rights in America.

The exclusionary nature of Minnesota’s caucus system questions what the right to vote really means. Who gets to participate in our political system and how is among the topics I address in my new book, Election Law and Democratic Theory, published this month by Ashgate Publishing. It is if not the first at least one of the first books that makes a simple argument–election law are the rules that make democracy possible. Election law define the rules of the game. They define who gets to participate and how, and how the game of politics is played. Election law rules should be premised upon the values and premises of American democracy, but more often than not they are not. Instead, incumbency, partisanship, or simply the interests of those already in power right the rules to their benefit. The aim of Election Law and Democratic Theory is to fashion a theory of democracy for election law and apply it to issues such as voting rights, money and politics, representation, and the role of political parties, corporations, and other entities.

One of the central questions of the book is asking about the right to vote and what does it entail. The Supreme Court has ruled that the right extends beyond the initial allocation of franchise. It would make no sense to say one has a right to vote but then gerrymander legislative districts in a way to violate the “one person, one vote” principle. Voting would hardly be a fundamental right (as the Supreme Court describes it) if the right could be taken away easily, or if obstacles were throw up that made it difficult to exercise that right. Yet that has been the case throughout American history. We have a tradition of extending the right to vote, broadening the constitutional notion of “We the people” to include more and more people, yet there is also an ugly tradition in America characterized by repeated efforts to suppress voting rights. After the Civil War Jim Crow lead to the disenfranchisement of African-American males, and now there is a battle to disenfranchise many new and potential voters just as the demographics are changing.

For voting to really be fundamental, it needs to be something that really guarantees voting rights at all stages of political process. Voting in general elections is supposed to be fundamental but many states including Minnesota disenfranchise felons. The Supreme Court has also declared that the right to vote extends to primaries, but again, many have been excluded in the past because the rule of absentee voting have made it difficult to vote. Perhaps now with “no excuse” absentee voting more people will participate, but there is no right to vote early or by absentee, and conditions can be attached to it.

But what about caucuses? Does the right to vote extend to participating in caucuses? Yes and no. Parties have broad authority to decide who can attend their caucuses, but there are limits here. But the real issue is not for people who want to attend caucuses but opt not to do so, but it is for those who wish to attend them but cannot because they are working, sick, or out of town. Simply put, there is no absentee voting with the caucuses. Consider some numbers.

In 2012, approximately 66,000 individuals constituting less than 2% of the Minnesota voting age population attended its caucuses and cast a ballot in the presidential preference poll. Conversely, in Wisconsin, a state often held in comparison to Minnesota in terms of its political culture, size, and demographics, its 2012 primary turnout was 25%.

The point here is that in caucus states this event is an important political activity that excludes many individuals. Franchise rights should include a right to vote absentee in this activity. Few would endorse the idea that illness, service to country, or work should be discounted as reasons for why individuals cannot show up in person to vote in a general or primary election. That is why there is absentee voting for these events. There is a recognition that the right to vote should be permitted for these events. Yet as noted, absentee voting is a privilege. The right to vote, if it means anything, should also entail a constitutional right to cast a ballot even if one cannot attend on election day, or caucus evening.. This is especially the case in a country were employers are not required to give paid time off to vote, let alone time off to vote at all. Voters should not have to choose between making a living or voting. The marketplace should not undermine the polity, or make voters choose between a civic duty (as some describe voting) or a constitutional right and the imperative to make a living.

Additionally, and this is another point I make in my book, American democracy needs to catch up with the 21st century. There is no reason that the right to vote should be stuck in a 19th century model of participation. New technologies make new forms and avenues of participation possible, and the right to vote, including participation in the Minnesota caucuses, should reflect that.