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Allen v. Mulligan, the Voting Rights Act, & Non-Ideal Theory

photograph of Alabama road map

On Thursday, June 8th, the Supreme Court of the United States announced what many consider a surprise ruling. In Allen v. Milligan, a 5-4 verdict affirmed a lower court’s judgment that Alabama likely violated the Voting Rights Act (VRA) by discriminating against Black residents via Congressional districts. Chief John Roberts and Justice Brett Kavanaugh joined Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson with Roberts authoring the majority opinion.

What precisely was at issue? In January 2022, a federal court ruled that, due in part to racially polarized voting patterns in the state (meaning that one’s race is highly predictive of the candidate for office that one prefers), the Congressional districting plan for Alabama likely discriminated against Black residents. The districts were largely unchanged from previous plans. However, looking closely at how the districts break down by county, one notices some oddities – the borders of the single majority Black district jut across counties and include only segments of metropolitan areas like Birmingham and Mobile, while the other six districts primarily follow county lines. As a result, there is only one majority minority population Congressional district in Alabama, despite Black residents making up about 27% of the state’s population. A redistricting plan proposed by the challengers, drawn around county borders, would result in two districts where the Black population would make up about 40% of the electorate in each.

The majority opinion put forward two primary points. It largely affirmed the Court’s ruling in Thornburg v. Gingles, which offered several criteria to test whether the effects of election laws are discriminatory. Among these are whether the votes of a protected class are diluted. Some hallmarks of vote dilution include “packing” and “cracking” the votes of a minority population – the former occurring when larger numbers of members of a particular protected class are placed into a single district, and the latter when small numbers of that class are scattered into a large number of districts. The court ruled in favor of the challengers to Alabama’s district, in part due to finding that their proposal avoided these issues and served as a reasonable alternative.

Further, the majority opinion objected to arguments offered by the state of Alabama. Specifically, the majority agreed that while district makers should not be strictly motivated by racial considerations, they must certainly be aware of them. However, Kavanaugh’s concurrence specifically did not sign onto this portion of the majority opinion, instead agreeing with Justice Clarence Thomas that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” although noting that this was not an argument raised by Alabama.

Thomas offered a lengthy dissent from the majority opinion, in which he objected to several points. The primary thrusts of his criticisms were as follows. First, he affirmed a view he has argued for since at least 1994, that violations of section 2 of the VRA only deal with one’s ability to register to vote and to physically cast a ballot – so districting cannot be a violation in his view. Second, he argued that the “reasonable alternative” plan offered by the challengers failed to serve as a race-neutral benchmark for redistricting, as it was designed with race in mind. Third, the plaintiffs in this case sought a proportional system of voting power based on race. (Though Roberts argues at multiple points in his opinion that the plaintiffs were not seeking race-based proportional power, and that Gingles explicitly rules this out.) In concluding his dissent, Thomas argues that the kind of redistricting accepted by the majority is, ultimately, a kind of segregation as it divides voters based on racialized lines, writing that it “does not remedy or deter unconstitutional discrimination in districting in any way, shape, or form. On the contrary it requires it.”

Admittedly, I lack the legal expertise to directly assess the merit of the majority or the dissenters’ jurisprudence and application of case law. Nonetheless, I think it is worthwhile to examine the philosophical ideas behind each position.

There is an obvious kind of appeal to the dissenting position that race is not a category we should consider from a legal perspective. After all, race is, as John Rawls put it, arbitrary from a moral point of view – it is not something that we control and, while it may shape how others perceive us, it does not by itself directly determine our preferences, attitudes, or competencies. Thus, to allow it to shape our decision-making is to make decisions based in part on something that ought not matter. Further, perhaps creating policies, in part, out of concerns about race may create the possibility for discrimination. To modify a statement made previously by Roberts, the way to stop discriminatory organizing of districts by race is to stop organizing districts by race altogether.

However, this point may overlook a crucial philosophical distinction, namely, the difference between ideal and non-ideal theory. There are multiple ways of understanding this distinction. One particularly relevant way is as follows. Ideal theory is concerned about the standards that we believe our society ought to be organized around. In the present case, this would be the standard of racial equality – that an individual’s race should not matter to their life’s outcomes, or the decisions that policy makers generate. Non-ideal theory, on the other hand, looks at the ways in which and reasons why we have failed to reach these ideals previously. To adopt non-ideal theory about race in the United States, for instance, requires recognizing the ways in which racial discrimination has occurred throughout its history, and use those reflections to inform our judgments about how to achieve racial equality now. Failure to consider non-ideal theory may simply result in maintaining the advantages created by hierarchal systems in the past, by leaving those inequalities unchecked and unaddressed.

The members of the majority, Kavanaugh in particular, seem to adopt a non-ideal perspective about districting in Alabama. Perhaps, in the future, we will not need to pay attention to the racial demographics of Congressional districts. But given the history of racial discrimination in the United States, the districts as previously drawn have the effect of minimizing the political power of the Black population even if that was not the intention of those who proposed those districts at present.

So, the members of the Court seem to disagree about the right balance to strike between our ideals and the means we should take to achieve those ideals. Namely, they disagree about whether non-ideal theory is appropriate to guide our decision-making when it comes to voting rights. But it is worth noting that the Court is set to rule on affirmative action in the near future, and many believe that their decision will bring about its end. Thus, how Roberts and Kavanaugh vote on that case will be particularly interesting. If, indeed, they rule against affirmative action it suggests the following view: voting rights are the kind of rights that our policies must address in a racially conscious way, but access to economic and educational opportunities do not warrant race consciousness. However, our economic rights and freedoms may serve as the scaffolding promoting rights of political participation. For instance one may not be able to vote unless one is able to afford to take time off from work to go to the ballot box, as not all states guarantee time off to vote, and even fewer grant paid time off. So, it is not immediately obvious that such a distinction is tenable, at least in a philosophic sense, once we begin to adopt the perspective of non-ideal theory.

Are Politicians Obligated to Debate?

photo of empty debate stage

In the leadup to the provincial election in Ontario, many members of Ontario’s Progressive Conservative party have been avoiding the debates taking place in their respective ridings. In fact, 22 out of 34 Conservatives have recently failed to show up to debates in which members of their rival parties were participating, a number that greatly exceeds the absences from all other parties combined. When asked to comment on the situation, a campaign official speaking on behalf of the Conservatives stated that the party’s mandate was to have each candidate “carefully assess the value” of participating in a debate in order to “limit the risk” of doing so. He also stated that debates are of “low value” and a candidate’s time can be better used in other ways.

Debates ahead of elections are common in democracies around the world. So, too, are instances of politicians avoiding them. For example, in the run-up to the recent presidential election in the Philippines, candidate Ferdinand “Bongbong” Marcos Jr. participated in only one out of four scheduled debates; when asked to explain his absence, he cited the desire to keep his campaign “positive” (although many of his critics speculated that his failure to attend the debates was motivated by a desire to avoid discussing his family’s history). The strategy seems to have paid off, as he is presumed to have won the election.

Some who disapprove of Conservative Party candidates skipping debates in Canada have called the move “anti-democratic”; in the Philippines, Marcos’ opponent Leni Robredo said that participating in debates is something that candidates “owe…to the people and to our country.”

Is this right? Do politicians have any specific obligation to participate in debates? And if so, what kind of obligation?

There is one sense in which political candidates like those mentioned above are not obligated to participate in debates, given that not participating does not preclude one from running. We might think that there is a different kind of obligation involved, though, one associated with “playing fair” or maybe “being a good sport”; such norms, however, have rarely held much water in the world of politics. Of course, one risks losing face in front of one’s constituents by failing to appear for debates, but if a politician can make up that loss in other campaign activities, or if one’s target constituency doesn’t really care about the outcomes of political debates anyway, then it might be more prudent to skip debates altogether, especially given the risk of hurting one’s campaign by getting caught off-guard by a question or saying something dumb.

So we might think that politicians who refuse to attend debates are not violating any explicit electoral processes, or being imprudent, but are instead lazy, or cowards (or both). But this is perhaps a far cry from the accusations above of being “anti-democratic.”

Indeed, there does seem to be something more egregious about avoiding political debates, namely that doing so undercuts informed citizenship, something that is a necessary condition for a well-functioning democracy.

To defend this kind of argument we need to consider what we mean by “informed” and “well-functioning.” But in general, the claim is this: if those in positions of political power are meant to be reflective of, and act in service to, the will of the people, broadly construed, then those people need to be informed about what candidates’ positions are on important issues.

That’s glossing over a lot of nuances, of course. And it’s not as if every voter needs to be extremely knowledgeable about all the details of every candidate’s respective platform, or stance on every policy issue, in order to be well-informed. Regardless, the loose argument is that better-informed voters will tend to make better voting choices, and the responsibility to inform citizens lies not just with said citizens, but with the politicians, as well. Political debates are, arguably, a significant source of information about candidates. Failing to participate in such debates thus prevents voters from getting important information they need to be well-informed. We can then see why one might think that avoiding political debates is anti-democratic, as doing so is antithetical to the democratic process one is participating in.

One might think, though, that there are surely other ways in which one can become well-informed about the candidates in an election – one could, say, look up relevant information online.

Doesn’t such readily available information make political debates more or less obsolete, at least in terms of their ability to inform the public?

No, for a few reasons. First, reading statements online does not give one the same kind of information that might come up at a debate, as there are no opportunities for rebuttals or follow-up questions. Second, one does not get to compare candidates in the same way when simply reading information online. Finally, people are not great at actively seeking out information about candidates who are members of parties one does not already endorse. It seems less likely that one would change one’s mind when doing self-directed research, in comparison to a debate.

Here is the kind of being-well-informed that seems especially crucial for a well-functioning democracy: not just knowledge about what one’s favorite candidate is all about, filtered through one’s preferred news outlet or website, but information about how different candidates compare, as well as information about other choices one may not have considered. More than just custom or nuisance, debates serve an important function of helping to inform the voting public, and failing to engage in them violates obligations central to democracy.

What Arguments for the Electoral College Really Show

image of disconnected US states

It is a widely accepted democratic principle that all votes should carry equal power (“One Person, One Vote”). That this is (at least generally) a good principle is less controversial than any attempt to explain why it’s a good principle. If Jeff Bezos proposed that rich people should be able to vote ten million times while everyone else should only be allowed to vote once, everyone would agree this is a bad idea. We might cite different explanations of why it’s a bad idea. We might worry about the well-being of the non-rich people, since politicians would have less reason to care about them. It might seem unfair or disrespectful to everyone else to privilege rich people in this way without a good reason. We might worry that it would make us unfree: if the government can (to some extent) boss people around, and rich people can control the government without our input, it would be like rich people were bossing us around, like they were dictators over the rest of us. We might cite more than one of these explanations, or some other one. The point is that everyone agrees that One Person, One Vote is usually a pretty good principle to follow.

But both the U.S. Senate and the Electoral College violate One Person, One Vote. This is because they give disproportionate power to voters in low-population states. Since all states have two senators regardless of population, California and Wyoming have equal representation in the Senate even though California has about 66 times as many people. Because Senate representation affects Electoral College representation, the Electoral College is similarly biased: compared to Wyoming, California has only about 18 times the electors despite, again, having 66 times the population. Because low-population states tend to be rural, and rural voters tend to be conservative, this biases both the Senate and White House in favor of Republicans: Republicans have controlled the presidency for twelve of the past twenty years despite only winning the popular vote once in that time. Since federal judges are chosen by the president and confirmed by the Senate, the courts also favor Republicans. But keep in mind: the main point here is not about whether it’s good or bad for Republicans to be in charge. It’s instead that our departure from One Person, One Vote really is seriously affecting the government. If we gave Jeff Bezos two votes, that would be bad, but it probably wouldn’t really change anything: his extra vote probably wouldn’t make any difference. But the Senate and Electoral College do make a difference. People who want Republicans to win can still agree that they don’t want them to win like this, by violating One Person, One Vote. And people who want Democrats to win can agree that these institutions would be problematic even if they favored Democrats instead.

Some people want to change the Senate and Electoral College. For instance, the National Popular Vote Interstate Compact would functionally eliminate the Electoral College, and granting statehood to Washington, D.C. would create new Democratic-leaning Senate seats, making the body more representative. But defenders of the status quo suggest we should keep the institutions as they are to prevent American politics being dominated by the residents of populous, urban areas at the cost of rural voters. Joe Seyton at Reason writes that “By preventing the majority from getting its way all the time, the Electoral College ensures… those in high-population states with large cities aren’t the only ones who have a say.” David Harsanyi, also for Reason, says:

“because of our childish propensity to use the word ‘fair,’ I understand that the Electoral College must seem like a relic that undercuts the sacramental notion of ‘one man, one vote’… [But] the Electoral College impels presidents and their political parties to consider all Americans in rhetoric and action. By allowing two senators for both Wyoming… and California… we create more national cohesion. We protect large swaths of the nation from being bullied. We incentivize Washington, D.C.—both the president and the Senate—to craft policy that meets the needs of Colorado as well as New York.”

Tara Ross, in a video for PragerU, says that the Electoral College encourages developing platforms which appeal to the entire country: “If winning were only about getting the most votes, a candidate might concentrate all of his efforts in the biggest cities, or the biggest states. Why would that candidate care about what people in West Virginia, or Iowa, or Montana think?” And Jeff Greenfield, at Politico, writes that the Senate “protects minority interests from majority rule,” something “liberals weren’t always so fearful of.”

According to this argument, the Senate and Electoral College help address an issue related to what the political philosopher Thomas Christiano calls “the problem of persistent minorities.” If a stable bloc emerges which can win elections without needing to compete for members of a certain group, that certain group risks having its voice drowned out. This might seem unfair even when the majority makes otherwise fine decisions. If you and your two friends watch a movie every Saturday, voting on which movie to watch seems fair when a consensus can’t be reached. But if your friends like the same movies as one another, but different movies from you, and they outvote you every single time, that seems less fair. Of course, rural Republicans wouldn’t be permanently locked out of governance without the Senate or Electoral College, and so wouldn’t exactly be persistent minorities. Instead, the Republican party would change its platform to bring new voters into a coalition with these rural voters (and other Republicans) so the party could remain competitive. But the need to attract these new voters means that the rural voters’ interests would receive less priority.

Defenders of the status quo therefore endorse what I’ll call the Minoritarian Principle:

While One Person, One Vote might be good most of the time, we should sometimes depart from it by giving disproportionate power to votes from members of minority groups when this is necessary to protect their sufficiently important interests.

Majoritarianism is rule by the majority, so naturally, minoritarianism is rule by a minority. I’ve called the principle the Minoritarian Principle because it means that a minority of voters can sometimes get their way.

But we can now see the fatal flaw in the pro-status quo argument: no justification is given for applying the Minoritarian Principle only to rural voters. The interests of many different minority groups are threatened in the U.S., and prioritizing rural voters often means deprioritizing members of these other groups. For instance, since rural voters tend to be white, privileging their votes disadvantages people of color. David Leonhardt calculates that the Senate awards .35 seats per million white voters, but only .26 per million Black voters, .25 per million Asian voters, and .19 per million Hispanic voters. Meanwhile, Andrew Gelman and Piere Antoine-Kremp estimate that “whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the ‘other’ category.” This creates exactly the situation defenders of the status quo worry about: Republican politicians can often win elections with minimal support from racial minorities, as when Trump was elected despite getting only eight percent support among Black voters. An unusually candid statement of the racial implications of the status quo came in an interview with Maine’s former Republican governor Paul LePage. He began defending the Electoral College by saying it increases the power of small states like his, but quickly shifted to defending it on the grounds that it increases the power of white people.

Unless the interests of rural voters are at greater risk than the interests of racial minorities, favoring the former at the expense of the latter is unwarranted. But if anything, the interests of people of color are at greater risk. So the Minoritarian Principle really seems to support something like the opposite of the current system. Perhaps the votes of people of color could literally just count for more. Perhaps we could create special Senate seats to be selected by minority voters, mirroring New Zealand’s Māori electorates. Christiano considers “requiring that candidates for elective office receive quotas of votes” from different demographic groups. Many countries currently employ “reserved positions,” where offices or seats must be held by members of certain demographic groups. “Consociationalistsystems built around group power sharing of the sort found in Belgium, Switzerland, or (historically) the Netherlands might provide another source of ideas.

I’m not saying we should implement one of these alternative proposals. There are good reasons to favor One Person, One Vote, too, and maybe those should win. And implementing the alternative proposals is politically impossible anyway. This is the point instead: If we favor One Person, One Vote across the board, obviously we should oppose the Senate and Electoral College. But if, like their defenders, we instead accept the Minoritarian Principle, we should still oppose the Senate and Electoral College. These institutions have effects — like decreasing the power of people of color — which are the opposite of those a reasonable application of the Minoritarian Principle would aim for. So reforming or eliminating these institutions would also be an improvement by the lights of the Minoritarian Principle. So when defenders of the institutions invoke the Minoritarian Principle, this winds up being a red herring. Whether we accept the principle or not, we should oppose the Senate and Electoral College.

Under Discussion: Democracy Demands More than Your Vote

photograph of protesters occupying Brookyln Bridge

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

It took roughly thirty minutes for people to start arguing about what to do once reports of Supreme Court Justice Ruth Bader Ginsburg’s death became public on the evening of September 18th. With fewer than two months left before Election Day, it was not immediately clear that Ginsburg’s replacement could — or should — be rushed through the confirmation process before November 3rd. And many were quick to say, in no uncertain terms, that they thought it inappropriate for the president to nominate another justice, given the political circumstances. Consider this tweet from author and producer Reza Aslan:

Nevertheless, it quickly became clear that partisan interests would indeed take center stage in the final weeks of the election cycle with (eventual nominee) Amy Coney Barrett’s name circulating as a likely contender for the seat even before Ginsburg’s body had been laid to rest. Despite public opinion polls indicating that a consistent majority of voters want the winner of the 2020 presidential election to nominate RBG’s replacement, President Trump and Senate Republicans have worked hard to pack up the Supreme Court before November, nonetheless.

And, despite Mr. Aslan’s September suggestion, nothing has been burned down.

While some protests, both in Washington and at the homes of several Senate leaders, have materialized, the dominant prescription to voice public opinion on the matter has pointed towards one place: the ballot box. In a manner reminiscent of former President Obama’s famous “Don’t boo; vote” call, politicians, pundits, and other media personalities have, with increasing fervor, exhorted the American people to get to the polls. And though it is hard to measure the impact of a “Souls to the Polls” event or a special reunion of Aaron Sorkin’s The West Wing, early calculations suggest that Americans are indeed voting in record-shattering numbers, with voter turnout in 2020 already matching 12% of total voter turnout in 2016.

Of course, for someone specifically interested in voicing their displeasure at the partisan abuse of the currently-vacant SCOTUS seat, pleas to vote in an election that won’t be decided (and whose winners won’t be installed) until well after Judge Barrett becomes Justice Barrett might seem beside the point. Furthermore, even if the timeline were different, the SCOTUS-motivated voter would be casting her ballot in support of a candidate who would also receive support from thousands of other voters and it’s far from clear that the entire group would be voting for exactly the same reasons. Politicians frequently aim to build coalitions of differently-motivated voters for precisely this reason: opinions vary, not only about answers to political questions, but about which questions are most important to ask in the first place. For all its virtues, the “one vote, one voice” mantra fails to account for the unavoidable homogenization of voter’s voices in support for a single candidate.

This is roughly why the French philosopher Jean-Paul Sartre called voting a “trap for fools” that prevents people from exercising their true power as citizens. Championing instead the formation of interest groups that can wield political power about the specific values around which they unify, Sartre saw voting as an institutional mechanism for “serializing” the citizenry into complacent powerlessness. According to Sartre:

“When I vote, I abdicate my power — that is, the possibility everyone has of joining others to form a sovereign group, which would have no need of representatives. By voting I confirm the fact that we, the voters, are always other than ourselves and that none of us can ever desert the seriality in favor of the group, except through intermediaries. For the serialized citizen, to vote is undoubtedly to give his support to a party. But it is even more to vote for voting…that is, to vote for the political institution that keeps us in a state of powerless serialization.”

By assimilating variable support for a panoply of initiatives and desires into the discrete affirmation of only a handful of individual politicians, Sartre saw representative-based voting as a flattening of a person’s public agency.

And, indeed, the drafters of the U.S. Constitution would seem to agree. Writing in the Federalist Papers, James Madison warned about the dangers of public sentiment forming “factions” that could ultimately overthrow the system he and his friends were constructing. To Madison, this was a problem for two reasons: firstly, populist forces could easily be swayed by the manipulative power of demagogues (a point Alexander Hamilton discusses at length in Federalist No. 68), and, secondly, voters could form factions — what Sartre would call “groups” — that would threaten the “various and unequal distribution of property” within the United States. In Federalist No. 10, Madison outlines a defense of what would become the Electoral College as a cooling mechanism that could prevent popular ideas from being quickly turned into federal policy, saying “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.” Indeed, Madison’s “republican remedy” looks strangely similar to Sartre’s “powerless serialization,” but whereas the former views it as a solution to a problem, Sartre sees it as a problem of its own.

But, for all their disagreements, I think that Madison and Sartre would nevertheless agree on at least one thing: the practice of voting is not the chief duty of a democratic citizen. When not plagued by manipulative efforts to suppress voter turnout, the standard electoral process is a relatively easy responsibility that takes — again, in ideal circumstances — only a short amount of time every few years. But Sartre ridiculed those who “have been persuaded that the only political act in my life consists of depositing my ballot in the box once every four years,” arguing instead that the life of the political agent is suffused with a constant responsibility to attend to, speak up about, and organize both supports and protests in service of public issues.

In a similar way, later in his life, Madison defended not only public education, but specifically for “the poorer classes to have the aid of the richer by a general tax on property” so that, among other things, the electorate would be both more informed and more equipped to engage in political life; indeed, to Madison, the operation of such “learned institutions” to enlighten the public is “the best security against crafty and dangerous encroachments on the public liberty.” So, for both Madison and Sartre, politics was not simply a matter of semi-annually marking a ballot, but required diligent, regular attention to important matters of public concern, educating oneself and others so as to bring about the overall best state of affairs.

To be clear: my point is not to cast doubt on the value of suffrage, but to recognize that whatever virtues (pragmatic or otherwise) it may hold, the general election does not exhaust the duties of a responsible citizen in a modern democracy. Protestors, educators, and other servants of civic welfare who care for justice to be understood and upheld are just as crucial for the vibrant operation of our republic as are poll workers and voters.

As Hamilton himself wrote in The Farmer Refuted, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.” Democratic citizens who take that identity seriously should exercise these human rights and responsibilities in ways that far exceed the always-soon-to-be-musty ballot box.

Under Discussion: Consent of the Governed? Obstacles to Free and Fair Elections

photograph of an "I tried to vote today" sticker

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Addressing the House of Commons in 1947, Winston Churchill famously said, “it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.”

It is not difficult to identify problems with democracy. Citizens aren’t always well informed on critical issues, so they sometimes vote in large numbers for disastrous policies and candidates. Sometimes substantial groups of people hold positions on moral issues that harm other people or violate their basic human rights. Democracy doesn’t ensure just outcomes, so it isn’t always perfect.

On the other hand, democratic institutions are essential for grounding the authority and legitimacy of government. It is only when all citizens can vote in free and fair elections that government functions with the consent of the governed. Respect for democratic processes is also critical for keeping the peace among competing factions. Governments that honor democratic traditions have ways of preventing disagreements among political groups from being resolved violently.

Democracies that stifle the ability to vote or that seek to minimize the extent to which one person’s vote counts as much as any other person’s are democracies in name only.

True democracies are respectful of the equal moral worth of all persons. Organizations like the National Democratic Institute and the United Nations Electoral Assistance Division have worked tirelessly to observe elections worldwide to support and strengthen democratic institutions. The hope is that their presence will contribute to elections that are fair so that authoritarian regimes are not painted with a veneer of legitimacy.

We don’t have to look abroad for examples of interference with the free functioning of democracy. If democracies respect the equal moral worth of all persons, and if government is only legitimate if it has the consent of the governed, then the early system of government in the United States was not a true democracy, since the federal government left decisions regarding who could vote up to the states. The states routinely disenfranchised women and Black people. It took constitutional amendments to change that. Even after these amendments were passed, states still had the power to pass laws regarding voting. Many states enacted poll taxes and literacy tests as prerequisites for voting. They knew that this would serve as a practical way of preventing Black people from exercising their voting rights.

We don’t have to look to history to find examples of democracy being thwarted and undermined. Our current legislators, motivated by winning elections, making money, and holding onto power, engage in all sorts of tactics to see to it that only the votes of their supporters are counted.

One of the primary methods of misrepresenting the will of the people is gerrymandering. Gerrymandering is the practice of drawing voting district lines in unnatural ways. So, for example, if members of political group A live in the city and members of political group B are drawing the districts, group B may draw the districts in such a way that any one of them captures only part of the city voters but plenty of the voters in the suburbs and rural areas, diluting the voting power of political group A. Gerrymandered districts don’t reflect the will of the people. They misrepresent the political preferences of specific communities.

Democracy is also undermined when some citizens are taxed, and yet have either no representation in Congress or fail to have proportional representation. The United States fails this test when it comes to Puerto Rico, Guam, and the District of Columbia — places populated by voting taxpayers that do not have representation in Congress. What’s more, all states have the same number of senators, regardless of their respective populations. The state of California has a population of 39.51 million people. It has two senators. The state of Wyoming has a population of 580, 000. It also has two senators. As a result, the residents of the state of Wyoming have significantly more proportional voting power than the citizens of California.

The number of representatives in the House that each state has depends on their population. The population is studied and recorded by the census, which is a survey of households conducted every ten years. For a democratic system to be free and fair, no undue burdens or significant obstacles should be placed in the way of the opportunity that each household has to fill out their census report. This year, the Commerce Department warned that completing the census on time would not be possible because of the constraints caused by the pandemic. They requested an extension. The Trump administration did not comply with this request, arguing that the data must move to the analysis phase. Not only did the administration not extend the deadline, they actually moved the deadline up. This week, the Supreme Court ruled in favor of the Trump administration. This means that the administration will have its hand in apportionment of representatives to the House, even if Trump loses the election. Civil rights groups such as the National Urban League have argued that this decision is likely to harm already disadvantaged communities.

Another significant obstacle in the path to free and fair elections is voter suppression — the practice of preventing voters from certain demographics from voting. Poll taxes and literacy tests were forms of voter suppression in our country’s early history, but those kinds of tactics have not been relegated to a bygone era. In the age of coronavirus, voters are concerned that their mail-in votes will not be counted. Nevertheless, many elected officials across the country have arbitrarily limited the number of drop-off ballot locations. For example, in Texas, republican Governor Greg Abbott issued an order to shut down dozens of ballot drop-off sites weeks before the election, opting instead for a policy that provides one drop-off site for every county, regardless of its population. The result is that Harris County, which has a population of more than 4.7 million people, has the same number of ballot drop-off boxes — one — as Rockwell County, with a population of 88 thousand. A federal appeals court recently upheld Governor Abbott’s order.

The political voices of individual human beings with interests and moral worth should be the central building blocks of democratic decision making. This isn’t possible when the interests of powerful corporations end up dwarfing the voices of the people. The Supreme Court’s opinion in Citizens United v. Federal Election Commission, which maintained that corporations are people with free speech rights that can be exercised through unlimited donations to political campaigns, made the United States a substantially less democratic country. In his dissent, Justice John Paul Stevens argued that the majority decision constituted a “rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”

Finally, free and fair democratic elections are undermined by lies, threats, and the intentional mass spread of misinformation. For example, President Trump has repeatedly claimed that mail-in voting will result in massive amounts of voter fraud. He blasts this message through his significant political megaphone even though there is no evidence to believe that it is true and plenty of evidence to believe that it is false. The Trump campaign is also gathering an “army” of poll watchers to go to the polls on election day, raising concerns about a chilling effect on voter participation and the possibility of voter intimidation at the polls.

The National Democratic Institute raises red flags for elections that present as democratic, but that don’t actually operate in ways that respect the will of the people. Perhaps they should keep an eye on our elections here in the United States.

Considered Position: Flawed Democracy – Voter Participation

photograph of "Vote" written on chalkboard with drawing of American flag

This piece concludes this Considered Position series on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here (part 2, part 3).

Most people need to vote if we want most people’s interests represented. Unfortunately, a great number of people don’t vote. Either because they are prevented from doing so or because they just don’t care, many people who can legally vote don’t. In this section we will explore the idea of the “rational nonvoter.” To do so, we will consider debates around mail-in voting. Afterward, we’ll examine what may be the greatest roadblock in having a functioning, representative democracy: voter apathy.

Mail-In Voting

In recent days, mail-in or absentee voting has gotten a lot of press. COVID-19 poses a significant threat to the upcoming election. Either people go to the polls, and the virus spreads and kills, or people don’t go to the polls and the low voter turnout diminishes the legitimacy and representativeness of the results.

One prominently suggested solution to this dilemma is to have people just vote from home via mail-in ballots. Absentee ballots are already used by military personnel while serving abroad. But they are also used domestically. All states allow at least some citizens to vote absentee and more than two-thirds allow all citizens to vote this way. Those states without “no-excuse” mail-in voting require some sort of reason that explains people’s inability to physically come to the polls. Lastly, some states conduct elections entirely by mail and automatically send ballots to all registered voters.

A number of Republican politicians, including Trump, have opposed this solution, typically spreading conspiracy theories and misinformation to justify their position, but most people, including many Republicans, support some sort of solution like this. Besides the patently false idea that mail-in voting increases voter fraud in any significant way, there is one common bad reason for opposing mail-in voting. As Trump himself put the common Republican worry, “if you’d ever agreed to [universal mail-in voting], you’d never have a Republican elected in this country again.” Fortunately, this too is false. While increasing access to mail-in voting might increase turn-out and increasing turn-out sometimes modestly aids Democrats in elections, it really matters more who turns-out, and the evidence suggests that “universal vote-by-mail has no impact on partisan turnout or vote share.” In other words, if it changes anything, universal vote-by-mail increases the number of votes, but doesn’t do much of anything to affect who those votes are for.

Nonetheless, as we’ve discussed before, you can be right about something even if you don’t have good reasons. That’s the difference between true belief and knowledge. And in fact, there are some very good reasons to be wary of universal mail-in voting. It may be more of a necessary evil than a universal boon.

Probably the single greatest problem with mail-in voting is the loss of the secret ballot. “The secret ballot” refers to how, when you go to the polls to vote, you can vote whichever way you want without anyone knowing. This is fundamental to democracy. If people are paid or coerced to vote one way or another, the democratic process is delegitimized. With a secret ballot, it is still possible to pay or threaten someone to vote a certain way, but there is no way to confirm if your bribe or threat worked since no one but except maybe a few election officials will ever see your vote. So it isn’t much done. However, with mail-in voting this all changes. Someone’s abuser can stand over them, force them to vote one way, and seal and send the envelope themselves. A corrupt caretaker can do the same to an elderly person. And so could a parent coerce a child. Even without the threat of force, more subtle forms of coercion, including moral judgment and social pressure, can be much more powerful when the coercer can confirm whether or not you listened to them.

In addition, none of these examples even touch on the possibility of buying people’s votes. There are two main ways ballots are checked to make sure they are legitimate. First, there is the ballot itself. It is printed on very special paper with a special code, unique to each registered voter. This way, it’s almost impossible for people to make counterfeit ballots. Second, many states use signature verification to assure a particular voter was really the one filling out their ballot, and the United States Postal Service (USPS) has procedures for tracking mailed ballots and flagging potential fraud.

However, all this only stops people from wholly counterfeiting votes. It is perfectly possible for a real person to receive their ballot, sign it, and sell it to someone else. Even if the ballot is not mailed from the voter’s house, this will not result in it being flagged as potentially fraudulent by the USPS. This is because of the legality of ballot collection in some states. Ballot collection is the process of people other than the voters themselves collecting and submitting voters’ ballots. In some places, this is limited to family members or caretakers. In other places, people working for political campaigns can do it too. The potential for fraud is there and it would likely be difficult to identify and prevent. However, it cannot be reiterated enough that this does not happen sufficiently frequently to have been responsible for any election to have gone one way or another.

In any case, coercion of this sort would seem to be small-scale and disorganized. An abuser’s coercion of someone’s vote in one direction will be countered by another abuser’s coercion of someone’s vote in the other direction. The fact that ballot collection isn’t legal in most places, and that where it is legal there are usually limits, means buying votes in the way I described on a large-scale would be difficult. It would be tough to do systematically and given that the margins on elections are usually on the order of magnitude of at least thousands of votes, it would take a lot of work to change an election. Plus, the aforementioned USPS flagging would require any would-be election buyers to deposit those thousands or tens of thousands of ballots in a wide enough area to not arouse suspicion. And, finally, keeping any such operation secret would require each of those thousands of bought-off voters to keep quiet. The odds of this happening on such a large-scale are on par with the odds of other large-scale operations like the moon landing being faked.

On the other hand, there are some seriously good reasons to support universal mail-in voting. The biggest reason here has to do with those rational nonvoters I mentioned at the start. A rational nonvoter is someone who doesn’t vote who is rational in the economic sense. What this means is that for these people, the cost of voting to them surpasses the cost of not voting. A great deal of people, as we will discuss in more detail later, do not think their votes matter, mostly because of the influence of corporate interests like the ones we discussed when we talked about Citizens United. And if your vote doesn’t matter, why waste your time and gas money driving over to the polling station? More importantly, why take off time from work? Economic circumstance discourages many people from voting. Fourteen percent of registered voters who didn’t end up voting blame a conflicting schedule or being too busy. Filling out an absentee ballot, in contrast, is easy. They send it to you and you don’t even need to buy a stamp. By decreasing the cost of money and time in voting, you make it easier for voters to rationalize voting. And as we said at the start, the more voters, the more accurately an election represents citizens’ interests.

Universal mail-in voting would be a big change to our electoral system. Whether that change would be for the better or for the worse depends a lot on what precautions we take. Mail-in voting has real potential for fraud, even if it hasn’t commonly happened in the recent past. At the immense scale required to have universal mail-in voting for America’s hundreds of millions of registered voters, it’s certain any cracks in the system will be tested. As with any issue, we are forced to weigh the benefits and costs but we won’t really know whether we made the right choice until after the election is done.

Voter Apathy

If COVID-19 keeps a great number of people from turning out in the 2020 election, questions will be raised about the election’s legitimacy. If only a fraction of the population votes, and only a plurality of those votes are for the winning candidate, it will be difficult for the winner to claim a mandate from the people. At the same time, it would be hard for things to get much worse than they already are, turnout-wise.

In the 2016 election, 55.67 percent of the voting-age citizen population voted. That’s way lower than most other democratic nations. Let’s take things further. Donald Trump won the 2016 election according to the Electoral College while losing the popular vote, garnering only 46.09 percent of the votes cast. Doing some math here, we can see only 46.09 * 55.67 = 25.66 percent of the population cast a vote for the current President.

It is difficult to compare the election of our president to the elections of Prime Ministers in parliamentary states but doing so may give us a rough idea of how poor our president’s mandate is (importantly I don’t just mean Trump here: US turnout hasn’t changed much in the last several decades). Belgium had the highest turn out of any nation in 2014 at 87.21 percent. And, the governing coalition held 83 of 150 seats in their Parliament. With the same calculation, we can say roughly 48.25 percent voted for the ruling government. This is clearly a much stronger mandate.

Low voter participation raises fundamental questions about our democracy. A basic view of representative democracy (the sort we have) is that a representative only deserves power if they have popular support. The laws, too, are only legitimate if they are enacted by a government which has popular support. Ultimately, society and government are social constructions; they are part of the social imaginary. They don’t exist in the world like rocks or trees. So the power and effectiveness of government, much like the power of Santa Claus on small children, depends on how much people believe in it.

And people don’t believe in it very much. Around 30 percent of registered voters who did not vote in 2016 did not vote either because they “did not like the candidates or campaign issues” or because they were “not interested” or “felt [their] vote would not make a difference.” The former reason was more common than the latter but 2016 wasn’t terribly representative of people’s general reasons for not voting. Donald Trump and Hillary Clinton were both disliked more than any candidates in recent memory. But more familiar is the sentiment people have that their vote “would not make a difference.”

There are a number of reasons for this sentiment. Foremost among these is a concern with money’s influence on elections. About 57 percent of people agreed in a poll with the statement “politics and elections are controlled by people with money and by big corporations.” This is an issue we have covered at length already. In short, there is little regulation on campaign donations and what regulation there is isn’t enforced very well.

Another major reason for people’s apathy toward voting is that they don’t think their votes matter in a numerical sense. In a nation of over 300 million people, the role each individual vote has in determining a presidential winner or loser has little relevance. This argument stems from a bit of a logical fallacy though. Consider a jar with red and blue sand. When mixed, it appears purple. And every grain of sand is very small. You can pluck out any grain of sand, red or blue, and say “this grain of sand is so small, it has no contribution to the color of this jar.” And when you remove it, you don’t change the color of the jar. Does this prove your point? Of course not. By the same logic, you could claim to be able to remove all the sand, grain by grain, and that the jar would remain purple instead of clear. You could claim the same about removing all the blue sand or red sand.

When one person or one grain of sand is missing from the ballot box or jar, the color of the results doesn’t change. But if many people do not vote, the outcome can change. The only case where it wouldn’t would be if those who didn’t vote were represented perfectly by those who did. If you’re the only one not voting in your whole state, yeah, your vote or lack thereof probably doesn’t matter. But when upwards of 20 percent of the population thinks that way and elections are decided by single digit margins, it is irrational for all those people to think their votes don’t matter. It’s the same logic that advocates apathy in the face of climate change and we all know how helpful such apathy has been so far.

One legitimate grievance voluntary nonvoters have (for many people are prevented from voting by reasons outside of their control) is that candidates don’t represent them. The fault for this at least in part lies with the primary system. Political primaries are the intra-party elections held to determine which candidates will represent the parties on general election ballots. These only started happening in the 1900s and had little real influence in the determination of candidates until the 1970s. Before this, party conventions decided who would be on the ballot. Typically, the candidates were chosen by conventions based on electability. Party values were secondary to victory. Nowadays, however, primaries dominate. However, it’s not immediately clear why this objectively more democratic system should lead to problems with how well candidates represent voters.

The best way to think about it involves first remembering how little people participate in elections in the first place. If you think turnout in general elections are bad, you will struggle to believe how bad turnout is for primaries. Only 28.5 percent of eligible voters voted in both parties’ primaries combined in 2016. Only those who care most about politics are going to turn out for these, and it’s easy to see that people with more extreme beliefs are thus going to turn out than people with moderate beliefs. People aren’t passionate about moderation and compromise. This leads to more extreme candidates being elected by primaries. Those who end up thinking about voting in the general elections will be far less extreme and will thus feel unrepresented leading them to refrain from voting.

Political primaries would be a great thing if everyone voted in them: they are certainly more democratic than the older convention-based system of candidate selection. The people who rallied for them to become the standard for candidate selection were not malicious or stupid. Just as we have seen with a variety of political problems, the cause can often come from rational and benevolent individual decisions. The same goes for corporate campaign donations. While the surface-level behavior of corporate donors seems greedy and self-serving, the roots can be good.

If we are a democracy, we need to encourage changes to our electoral system that will maximize the amount of democratic participation. Those reforms could take any number of shapes but they must be made for change in any other domain to occur. Without democratic legitimacy, any leader, whatever they do, is ineffectual, since their actions are not representative of the will of the people.

Conclusion

This series concludes with a discussion of voter apathy because it is a problem that must be resolved before change can be made for the better in any of the domains we have discussed. People have to care. They have to learn and think. And we have to take care as a community to watch over one another to assure none of us contributes to something terrible out of an innocent or even benevolent motive. Even after reading all of this, having seen all these arguments and motives laid out, it is unlikely that you will change your behavior anymore than I have for learning all this. As Portia said in Shakespeare’s Merchant of Venice:

“If to do were as easy as to know what were good to do, chapels had been churches, and poor men’s cottages princes’ palaces. It is a good divine that follows his own instructions: I can easier teach twenty what were good to be done, than be one of the twenty to follow mine own teaching.”

Nonetheless, life is a series of moments. And if in some of these we remember what we have learned, we might make the right decisions. To be apathetic is to submit to the unconscious, amoral, tide of the structures of our societies that already have great control over the paths we take. And so long as we push, just ever so slightly, perpendicularly to that tide, exerting some small amount of free, conscious will, in just a very few moments, from time to time, things can change and for the better. To refrain from even this is a choice that cannot be blamed on the system, even for all of its ills.

The mission of the Prindle Institute for Ethics is to foster the skills of moral reasoning that give us the real freedom to choose in those few, decisive moments. Without these skills, the possibility for even small change in those moments is lost. Without them, the unconscious tide is all there is. As we have discussed throughout this series, plenty of extraordinarily harmful actions can be superficially justified and rationally so. And the systems under which we live, this tide, strongly incentivize us to adopt some of these while ignoring broader reaching, more complex moral concerns.

Whoever you are, whatever issues you care about, if you live in a democracy, elections and election reform are critical. Those minutes spent voting are some of the few moments where we have the chance to participate in decisive action. This series has been a depressing one, pointing out flaw after flaw in the electoral system. But we can’t just give up and focus on how depressing it is. We must think critically, examine our values, and place our focus instead on what the world can be. As the Lorax famously said in Dr. Seuss’s The Lorax:

“Unless someone like you cares a whole awful lot,

Nothing is going to get better. It’s not.”

Considered Position: Flawed Democracy – Disenfranchisement

photograph of street traffic leading up to US Capitol building

This piece begins a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” (Part II, Part III, Part IV)

Introduction

2020 is an election year. As a nation, we will talk a lot about the candidates, who they are, what they stand for, and what they plan to do. But how much does that all matter if the elections themselves are broken?

As Americans we pride ourselves on our commitment to democracy. While most nations were still under monarchs, we alone managed to permanently throw off the monarchical yoke. But how democratic are we really? As this series will discuss, our government has earned its designation as a “flawed democracy.”

We will consider numerous problems of enfranchisement, minority rights, and voter participation. We will also consider how all these problems have not necessarily come from malice or stupidity. Unfortunately, it is very easy for many people, all individually rational and good-hearted, to exact great harm on our society and government.

Unlike most writing on politics, this series will not seek primarily to put blame on any group or groups. Rather, we will try to understand the systems that have incentivized people to act in ways contrary to the general interest. As much as we as Americans like to think of ourselves as free, no one is free from the influences society has on us from birth till death in all our actions.

Frequently we will consider these systems and problems through a moral lens. Most political problems and disagreements have their roots in moral disagreements. And, the Prindle Institute for Ethics holds that the only way to become better at resolving moral disagreements is to develop the skills of moral reasoning. Moral reasoning is the practice of considering a moral problem from different perspectives, weighing the different moral factors at stake, and coming to an understanding of the right action or actions to take.

You might want to put on some cheerful music as this discussion of the numerous systemic problems with our electoral system is almost certain to prompt feelings of sadness and hopelessness. Got it playing? Well then, strap in as we first take a look at one of the most obvious problems with our democracy: the fact that millions of US citizens have, like American Revolutionaries once did, no representation in the governing bodies whose laws they must obey.

Disenfranchisement

If you’re a citizen, if you were born in this country, if you are mentally sound, and if you have committed no crimes, then you likely have the right to vote for the president and members of Congress as soon as you turn 18. But it is only likely. It is not guaranteed. In fact, about 4 million Americans who fit all these criteria cannot vote. That’s more people than who live in the five least populous states. So why can these people not vote? Well, they don’t live in US states. Most of them live in US territories and the remaining 700,000 reside in our nation’s capital. Let us consider both of these groups in turn.

Island Territories

Most people know about Puerto Rico. It is part of the US and yet not a state, even though it has more people (3.7 million) than 20 US states. But many do not know that an additional 300,000 people live in Guam, the US Virgin Islands, the Northern Mariana Islands, and American Samoa. American Samoans aren’t even considered citizens, only “American nationals,” though there is a court case pending challenging this classification. The reason these citizens have been denied voting rights goes back to a series of Supreme Court cases and decisions collectively referred to as the “Insular cases.”

These cases, decided in 1901, were rooted in racism and colonialism. The Court ruled that the US could possess these territories without granting their residents full constitutional rights. According to them, “those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” and so “the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.” The designation of American Samoans as “nationals” rather than “citizens” reflects the colonial mindset. European nations often used this designation for their own colonial subjects.

Given that colonialism often has the purpose of creating military advantage and extracting economic resources for the colonizers, it makes sense why the US would not want the colonized people to have a vote. But, of course, nowadays that line of reasoning will not convince many people. We recognized now that these people are people. So why, in our “democratic” nations does this demos, Greek for “people,” not get to vote?

It comes down to a matter of constitutional law. According to the Constitution, Senators and House Representatives must be elected by the people of the States. Each state gets 2 Senators and a number of Representatives based on its population. Statehood here is critical. Any of the territories could become a state. However, statehood requires the same approval as do laws when they are passed. Both Houses and the president must agree. This will be difficult to accomplish for any territory that wishes to become a state and it always has been. Some of the most divisive politics of our nation’s history surrounded the admission of various states during the antebellum period. Few slave-holding states would be willing to vote in favor of admitting a free state and vice versa. Thus, the democratic rights of these citizens are dependent on two parties agreeing which, in recent times, agree on little.

It’s a hard sell for Republicans and for good reason: suppose you had power to make change for (what you believed to be) the better. Would you be willing to give up that potential for good just to give the right to vote to some people you know will vote (in what you believe to be) the wrong way? Denying the democratic rights of others, then, is not necessarily irrational and requires no malice towards those you disenfranchise. If you have confidence in your beliefs (which you must to hold them at all), then it makes little sense to give decision-making power to those who hold beliefs opposite yours. The issue comes down to deciding whether to preference your specific political beliefs or your broader political beliefs about the righteousness of a democratic system of government.

And there are some other legitimate worries too. First among these is a worry stemming from democratic values: Puerto Rico and other territories should only be made states if their peoples want to become states and it’s not clear that they do. Puerto Rico has regularly had referenda on statehood but no referendum has ever shown definitive public support for statehood. The latest referendum showed 97 percent of Puerto Ricans supporting statehood. However, there was only 23 percent turnout after the anti-statehood Popular Democratic Party urged people to boycott the vote. Former Governor of Puerto Rico Aníbal Acevedo Vilá, a member of this party, sees a number of economic and cultural problems with gaining statehood.

Another referendum is on the 2020 ballot. So we will soon see if the people of Puerto really agree with Vilá. If Puerto Ricans do not support statehood, it is hard to argue that they should be made one. The stance many politicians take, including current Democratic Presidential nominee Joe Biden, is neither that Puerto Rico should be a state nor that it shouldn’t, but that the people of Puerto Rico should decide for themselves.

There are probably a few Americans who want to keep the historical colonial relationship we have with Puerto Rico and the other island territories, but it’s not clear that this is the reasoning driving most of those who oppose Puerto Rican statehood. On the far opposite side to those who would treat Puerto Rico as a colony are those who advocate its self-determination. The UN Special Committee on Decolonization has long demanded that Puerto Rico be allowed to be either a state or an independent nation. Most colonies, historically, have pursued independence rather than integration with the colonizing state. In fact, in 1914, Puerto Rico’s own elected Congress voted overwhelmingly for independence and was subsequently ignored.

The District of Columbia

So maybe the island territories shouldn’t have the vote. Perhaps they don’t want it. But what about somewhere that does? The District of Columbia is our nation’s capital, but it’s also a city of more than 700,000 people, none of whom have Congressional representation. In fact, while they can vote for President, they can only do so because of an amendment to the Constitution passed in 1961. And though this amendment gives them the right to vote, their votes only count as much as the least populous state, giving them 3 electoral votes, the same number as Alaska, a state with one third the population of DC.

Why didn’t the Founders give them this right in the original Constitution? Well, no one was meant to live there besides some members of the government and some support staff. Furthermore, the Founders worried that having the nation’s capital in a state would allow that state undue influence over the federal government. As James Madison wrote in the Federalist 43, they worried about “a dependence of the members of the general government on the State comprehending the seat of the government” and the possibility of a state bringing “on the national councils an imputation of awe or influence.”

Even so, neither Madison nor any other of the Founders could have predicted the incredible population growth that was to come in the next two centuries. So perhaps their attitudes would have softened. Indeed, one of the slogans of the American Revolution was “taxation without representation” and this same slogan now adorns all the license plates of DC residents. DC residents pay more federal income tax per person than any other state and yet have no representation in Congress. This injustice is compounded by the fact that Congress has total dominion over DC. As part of a federal system, states have powers that Congress and the federal government cannot override. DC has no such power of self-determination. Though they can pass laws and ordinances, they can all be vetoed by Congress.

DC is an interesting case because proponents on both sides, of statehood and of the status quo, claim to be upholding basic principles of democracy. On the one hand, those who support statehood want the most basic form of democracy for DC, the right to vote and the right to self-determination. On the other hand, those who oppose it believe in the concept of “one man, one vote.” They don’t want citizens of DC to have more than their share of power over the federal government. Proponents of statehood see the issue as a dichotomy between giving DC citizens equal rights and leaving them with no rights. Opponents see it differently: either DC has no political power or they have more than other citizens for an arbitrary reason, their geographic location. Seen that way, statehood becomes a much more tangled issue.

However, not all opponents of giving DC’s citizens political rights have such defensible positions. First of all, like Puerto Rico, DC would be likely to bring more Democratic Senators and Representatives to Congress since they vote overwhelmingly for the Democratic Party in presidential elections. In fact, this was the reason Senate Majority Leader Mitch McConnell gave for refusing to consider DC statehood, likening the increase in the number of Democratic Senators incoherently to “full-bore socialism.”

And, again like Puerto Rico, some opposition to DC’s citizens having political rights stems from racism; Black people represent the majority of DC’s population. In fact, a number of the arguments Republican Congressmen presented in the House to oppose DC statehood did not concern the worry of Madison about state influence on the federal government at all. Rather, Republican Congressmen mostly made arguments about the largely Black city being unable to govern itself. They referenced the city’s crime rates, public school quality, and governmental corruption. These might be valid concerns if any other state with the same issues were similarly threatened with disenfranchisement. But, of course, they are not. And in any case, the question remains why any of those factors ought to affect people’s fundamental right to representation in government.

The genuineness of these concerns is also cast into doubt by the fact that they fit into a pattern of racially motivated reasoning used to support the disenfranchisement of DC’s residents. During Reconstruction, John Tyler Morgan, a former Confederate soldier and then US Senator argued that Congress had “to burn down the barn to get rid of the rats…the rats being the negro population and the barn being the government of the District of Columbia.” The legislation he supported — removing power that had been given to the city — was soon passed.

Even if racism does play a part in motivating opponents of DC’s statehood, they may still be right. People can argue the right things for the wrong reasons. Australia for one is also a federated state and also has its capital in a distinct territory, the Australian Capital Territory (ACT), that does not have the same full rights of self-determination as do the other states. We are not a lone oddity in not wanting the people immediately around the capital to have undue power over the federal government. Unlike the US, however, the people of the ACT do have representation in their legislature. At the same time, that representation is very limited and is not proportional to the population. They have more people but fewer representatives than the state of Tasmania. This situation is similar to DC’s limited power in the Electoral College like I mentioned before.

The opposition surrounding DC’s statehood is a tangled mess of racist rhetoric and legitimate concerns that come with a federal style of government. Its supporters and opponents both base their arguments in democratic language. The same goes for Puerto Rico and the other island territories where everyone agrees that what the people say goes, only they disagree on what the people say. Therefore, excepting the racism that underpins some arguments against enfranchisement in both of these areas (and there is a lot of this), the debate is not between those who support democracy and those who don’t. Rather, it is between people with different interpretations of democracy.

Continue to Part II

Should Felons Be Able to Vote?

Many Indiana residents went to the polls on Tuesday to exercise a key privilege and responsibility granted to those fortunate enough to live in a democracy: the right to vote. However, not everyone was able to go make their voices heard. Up until April 20th, there were four states where anyone convicted of a felony was permanently disenfranchised from voting, and six where some or most convicts are banned. However, the number of states with automatic bans has now dropped to three. Terry McAuliffe, Governor of Virginia, recently signed an order that restored voting rights to 200,000 ex-cons – not in time for Virginia’s primary, but for the general election in November.

Continue reading “Should Felons Be Able to Vote?”