Voting Rights Outline

Voting Rights
Katz
Fall 2012
 
 
Voting as Participation
First Generation Issues:
Who gets to vote? What types of restrictions are permissible—status, testing zoning, identification
Outcome-Independent
Value of Right to Vote?
Expressive harm (stigma, etc.)
Constitutive value: way of constituting oneself as citizen of community.
Democratic Legitimacy
Ability to cast a ballot
First generation issues
Deal with who gets to vote
Not everyone has been entitled to vote
Restrictions to voting
We protect the vote that doesn’t even matter (participatory claim)
Why do we do that?
Participation leads to stability
Don’t really care about the outcome
 
Voting as Aggregation
Voting as not only being counted but also having one’s votes aggregated with others that share the same or similar views.
Outcome-Oriented
Vote dilution issues.
What is the right level of aggregation?
We care about vote being counted w/people who think like us
What’s the rules that facilitate the votes of like-minded voters
Here, we do care about the outcome
Winner take all elections are also important
When winner takes all the aggregate votes, unlike the democratic party rules where
I guess this is determining if the rules that aggregate the votes, i.e. determines who wins, are fair
Issues like gerrymandering, drawing districts, winner take all elections
 
Voting as Governance
Voting as part of an ongoing dialogue between citizens and elected officials.
Campaign finance issues.
Injury that underlines reapportionment issues.
Debunking notion of popular will as independent from electoral result.
Direct and Virtual (voting for the representative party) Representation, descriptive v. substantive representation
caring about voting as a means of creating a government; we’d like a government to look a certain way, so we care about voting?
What are the constitutional rules?
·         There are two parts in the main body of the Constitution – Art. 1 Sec. 2 says who gets to vote for Congress; Art. 1 Sec. 4 says how to set election dates
·         Everything else is in the amendments
o   There are amendments dealing with how a certain election will take place
o   There are also amendments that say voting cannot be denied to certain people – nothing there to give the right to vote, but defined in the negative
o   Then there’s the 14th Amendment – that’s where all the action is!
 
The rules matter (they’re critical)
·         Some rules allow for certain outcomes
·         There are something called majority will out there and law allows it to be expressed
o   It doesn’t just exist, it emerges based on the rules we adopt
·         Whatever rule we pick, they’re consistent with majority will
·         Original Constitution says very little about voting
 
 
 
An Introduction to the Selection of Democratic Institutions (pp. 1-15)
Introduction
Conventional understanding of democracy privileges private preferences and collective deliberation as forming basis for state institutions
But, perhaps, unrealistic as democratic politics exists as part of a self-informing system where pre-existing institutional arrangements constrain range of possible results
Pre-existing institutions are borne of some combination of prior democratic choices and inertia
But those in power will often try to use their power to continue their control
Courts must strike a balance in their role as steward of democracy
Very hard for courts to overturn outcomes from pre-existing democratic selection processes
But courts may be only branch of government capable of creating certain types of political change that would otherwise fall to those who are already in power and are not otherwise unaccountable
 
Lucas v. The Forty-Fourth General Assembly of the State of Colorado, 377 U.S. 713 (1964) (pp. 3-15)
Facts: District Court upheld apportionment scheme under Amendment XIV in which districts were allocated state senators and house members such that a sparsely populated rural districts had a disproportionate share of senators
Decision/Holding/Rationale (Chief Justice Warren): Reversed and remanded; held that “individual’s constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme fails to measure up to the requirements of the Equal Protection Clause”
Dissent (Justice Clark): Would not interfere with state that has referendum system that continually addresses apportionment situations; agrees with Stewart that Colorado has variety of environments that may be fairly accounted for with present scheme; and Colorado’s arrangement is not arbitrary but is like the federal bicameral scheme
Dissent (Justice Stewart with Clark): Nothing in Court’s precedent supporting constitutional rule requiring seats in both houses of bicameral state legislature must be apportioned on population basis
Not about representing individuals but also about accommodation of group interests
Argues for alternative: (1) plan must be rational in light of particular characteristics of State and (2) must not “systematically” prevent majority rule
Notes & Questions:
(3) “We the People”: Pildes and Anderson argue that “Political institutions and decision procedures must create the conditions out of which, for the first time, a political community can forge for itself a collective will”
(7) Protecting Minority Rights: Must be some protection of minority rights à Rawls argues that principals underlying political power must be capable of being articulated and accepted
(9) Non-Cedeable Rights: In West Virginia State Bd. Of Educ. V. Barnette (US 1943), Court held that right to life, liberty, and property and other fundamental rights may not be submitted to vote
(9 continued) Voting as Group Right: Isasacharoff argues that to have effective right to vote, must also be able to be aggregated with other like-minded voters to “claim a just share of electoral results”
 
Alternative Democratic Structures (pp. 1089-99)
Reflections on Current System
Arend Lijphart wrote “one of the best-known generalizations about electoral systems is that they tend to be very stable and to resist change”
 
Duverger’s Law, Duverger’s Hypthesis
Law: Systems in which office is awarded to candidate who receives the most votes in single ballot election will produce a two-party political system rather than a multi-party one
Rational-choice analysis explains this because:
(1) Voters don’t want to waste their votes on losers
(2) Politicians don’t want to waste their resources on capturing