The fair value of voting rights

A central idea in John Rawls's theory of justice as fairness is that basic political liberties should be afforded fair value a just liberal democratic society.1 In this article, I argue an important guideline for guaranteeing the voting rights, is, usefulness to citizens their right vote, make it easier not harder exercise liberty.2 This entails societies with constitutional commitment equal protection, and equality more broadly, have duty secure unencumbered access ballot absent narrowly tailored compelling state interests restricting (hereafter Unencumbered Access). Where there are such interests—and important—the burden imposed on must accord priority rights. argument shifts justification from liberals present sufficient evidence voter suppression conservatives, who currently pushing restrictive ID other laws, produce supporting reasons doing so (chief which fraud prevention deterrence). They also demonstrate these laws carefully crafted remedy alleged problem. Because conditions been met unjustified.3 Rawls affirms importance normative ideal abstract by including them list along thought, conscience, association, those associated rule law his egalitarian conception fairness. However, less abstractly, principle liberty identified participation within constitutionally defined process society. has criticized being entirely clear about why included list,4 failing offer detailed special status proposal how can captured institutionally.5 Yet no question terms meant carry modeled original position—where parties selecting common principles position equality—to stage where they collectively participate “the highest-order system social rules making rules” participating vital lawmaking.6 Taking constitution foundational, regulating controlling all institutions society's structure, concludes satisfying practice affords persons “common citizens.”7 Having affirmed institutional context, further contends democracy endeavor “enhance rights members society.”8 Such take different forms: serving elected representative people, financial contributions campaigns, public debate issues candidates office, casting vote government representatives measures. These ways determining results proscribed means bind us shape our lives cradle grave. The appeal ground defense trades, part, intrinsic or noninstrumental liberties, are, many ways, good citizens. As puts it: “These freedoms strengthen men's sense own worth, enlarge intellectual moral sensibilities, lay basis obligation upon stability depends.”9 But addition this, offers instrumental germane.10 It proceeds follows. Other example, speech, thought (which some may fundamental), protected participation, lose when do meaningful opportunity determine outcomes appropriate fashion.11 haves, income, wealth, resources, leverage resource inequalities better informed issues, accurately assess policy proposals bear interests, effectively add ones agenda advance welfare. All will result resource-rich having disproportionate influence over lawmaking settling issues.12 patently unfair greater than resource-challenged. While disparities income wealth justified tolerated grounds maximize primary goods enjoyed least advantaged, if indeed do, we reject prospect affect citizens' explains rightly insist securing value. imperative requires worth sufficiently allow process. Specifying exactly might enhance admits, complex matter goes beyond scope philosophy. And true whether focused free speech distinct influencing outcomes. Settling necessary arrangements regulations requires, among things, requisite historical experience knowledge. philosophy altogether useless pursuit. offer, endorse, defend possibilities seem compatible participation.13 Rawls, know, was particularly interested adverse effects private money private-property democracy.14 So, he proposed compensating steps offset useful resource-challenged, operate independently possible large concentrations economic interests. He called adequate funding elections prevent rely thereby risk beholden benefactors laws.15 Failure will, argues, only diminish nots thus depriving influence; moreover, alienating facilitating complete withdrawal due apathy resentment. though does point, added resource-challenged would character American democracy. To sure, seems quite impractical now view expensive running office become. Still, plausible suggestions kind reforms needed bring United States line given certain form take.16 What vote? arguably most recognizable coveted participation. concrete ensure its citizens?17 Separating big politics campaign finance reform directly speak what done made liberty. One general prescription realizing namely, Access, legal governing much subject constraints aim maximal citizen Hence, committed ensuring absence otherwise. For States, paradigm exemplar paper, always practice,18 Access imposes prima facie irrespective allotment goods, education, able project voting. society sure substantively merely formally guaranteed.19 Of course, require nor entitle at box. preferred candidate win. stake, however, shot rather particular secured. box necessitates education unevenly distributed across population neither obstacles facilitators vote. well-ordered compliance justice, philosophical attention interact generate injustice. under favorable conditions, sort endured throughout history, attend like well features race gender affecting process.20 Calling separation politics, does, proposing restrictions corporate presumes mischief absence. Likewise, calling ballot, here, work difficult. idle uninformed speculation. We consider infamous history black America. Historically, notes, “one main defects failure insure liberty.”21 unquestionably profound well-ordered: long played role, indirectly, through Some states historically excessively burdensome Americans vote.22 after Civil War blacks whites were illiterate southern exploited negate 1882, South Carolina assembly adopted “eight-box” law. Voters required put correct each eight boxes, one up election. boxes then continuously shuffled election officials could assist voters. indirect literacy test—which racial blacks' vote—was precursor direct requiring read recite section before register tests cunning curtailed governance whites. methods poll taxes, standards, property requirements.23 At time, critics complained method had shortcoming targeting poor whites, blacks. response, Oklahoma, Louisiana, Virginia, Georgia addressed complication grandfather clauses deemed qualified they, father, eligible 1866.24 surprise during times, them, substantial prevailed little recognized (thus guaranteed) but enjoyment seriously constrained practices guaranteed). From post-Reconstruction period into 20th century, states—sometimes without mostly support courts—found crafty local, state, federal elections.25 uncontroversial used devices intent effect imposing barriers deprive formal outcome richness knowledge nonideal circumstances, guaranteed blacks, places speculation guarantee firmer footing. Given record mischief, attractive default position. Although allowing goal practical considerations justify qualifying Fundamental US Regulations impose burdens generally trigger strict judicial scrutiny. withstand exacting scrutiny serve interest, tailored, required, purpose.26 come Supreme Court Justices often disagree relative constitute fundamental Perhaps area makes clearer Court's jurisprudence. Here, telling case Crawford v. Marion County Election Board,27 (in plurality decision) Seventh Circuit decision apply heightened Indiana voters government-issued photo identification polls. Three (Stevens, Roberts, Kennedy) sliding scale balance approach balanced against stronger be, weaker be. (Scalia, Thomas, Alito) defended threshold analysis severe warrant scrutiny, “go inconvenient.” dissenting opinion, Souter Ginsburg denied arguing onus show statute survive yet unanimous—or even majority—voice burdening merit scrutiny.28 widely divergent opinions remains ambiguous.29 fundamental, certainly absolute right.30 According Constitution it. Tenth Amendment reserves powers regarding states. setting exercised, qualifications chosen, individual responsibility congressional districts. contravene broad powers. Indeed, it, “there age, residency, on,” one.31 power unfairly single out shared evenly normal course life. retaining powers, seeking claimed wanting modernize elections, non-citizen voting, improve integrity fairness, restore sustain confidence, increase turnout. concern preventing impersonation popular so, tools goal. Requiring forms implicates resources time money, allows haves gain polls nots. monetary nonmonetary potential documented. Estimates numerous costs involved procuring valid identification, include purchasing certificates, birth marriage travel relevant agencies procure documents, away additional childcare expenses, notary fees get documents.32 statutes incorporated provisions mitigate disparities, relatively handle states, obvious measures universally law, acquire go regular likely possess. Obviously, impact similar consequences speech. Thus, same applies case. net accordance rooted participation—a both value.33 My aims shift harder. harder, in-person woefully weak.34 Indeed too weak cumbersome.35 Astonishingly, ruling, upheld Indiana's acknowledged produced “no any actually occurring history.” However downplayed elsewhere country provided So here expands fraud—of hardly any—to deterring sake good. Like value, cannot infringed because realize purpose. suppose off gridlock Washington, enable lawmakers draft pass legislation faster efficiently. whole, realized party, say Republicans, monopoly offices. Finally, Democrats African Americans, Latino/a college students, systematically votes diluted (preventing getting office) faced insurmountable exercising (dramatically decreasing turnout day). Affirming traded achieving larger welfare substantive constraint pursuit socially beneficial That mean, never justifiably restricted. mentioned earlier, right. liberties. Therefore, sought establish structure coherent expression—two Further recognizing engage commercial smearing dis-preferred prior limited others—without speech—to use office. trade-off, mind ruling Citizens United, ruled straightaway insofar constitutes limiting another trade-offs while possibly objectionable grounds, consistent assigning priority.36 virtue noting takes account contingent possibility change fit scheme If, changed become rampant new technology commit ease, regulation checks—even moderately costly ones—against fraud, order upholding competing very dramatic enough restrictions. priority, citing maintaining confidence good-based advanced far. count infringement regulate manner, place voting—powers reserved Amendment. clearly orderly Not everyone once plan organize affording clear, service taking way acting.37 call right-enabling regulation. amount maintain liberty, absolutely possible, providing exercise, reasonably asked prove authorized polling place, part unreasonable purposes demand produces proof citizenship specific ID, gun permit, University card. right-inhibiting. fine-grained restrictions, threaten distinction consequential, burdened credible States. argued affirming context constitution, major life prospects terms. Exercising avenue Society's diminished choose Nor win (unless rigged—either gerrymandering dilution—so lower chance office). pool voters, wanting. Under circumstances meaningfully resources. guard resource-dependent deeply regardless race, especially deleterious group others, recognize ballot. article based chapter my book, Realistic Blacktopia: Why Must Unite Fight (Oxford Press, 2023). am grateful discussion participants December 2021 Virginia Law School conference commemorating Rex Martin David Reidy invitation issue. Derrick Darby Henry Rutgers Distinguished Professor Philosophy Rutgers, State New Jersey. author several books, recent (Oxford, information, derrickdarby.com.