Just How Youthful Should Voters Be? Part II: Defining Electoral Decision-Making Competence

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2 Responses

  1. Joey Fishkin says:

    This is interesting stuff, and I appreciate your blogging about it.

    That said, a number of things about this entire framing of the question seem problematic to me. The whole history of the removal of restrictions on the franchise in the U.S. looks to me like a rejection of various arguments about the supposed incompetence of some groups of people as voters (non-property holders, women, blacks, 18-to-21-year-olds, etc.). A fight quietly continues today at the state level in regard to mental disability and voting rights: many people who are no longer able to conduct their own financial affairs nonetheless wish to vote, and separating these two forms of legal disability (making them two separate legal questions) seems to me an important and correct legal reform. The point at which we ought not to allow an otherwise qualified elector to vote on grounds of mental disability is a very low bar: whether an individual can form a conscious intention to vote. See Pam Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L. Rev. 917, 925 (2007). That is far different from making an argument about competence.

    The standard of competence you propose, “the adultlike application and coordination of various reasoning processes to make a voting choice that could be justified by a good-enough reason,” would undoubtedly exclude quite a lot of adults who currently have the right to vote. No matter how generously you define the key fuzzy terms (“adultlike”, “reasoning processes”), a lot of adults are not going to pass this bar. Also it is going to have a disparate impact on the most uneducated and poorest adults and on any demographic categories that intersect with those. And yet, there are good arguments for allowing adults who unambiguously fail your bar to vote: voting is not just about making electoral decisions, but also about inclusion and equal citizenship. See my article Equal Citizenship and the Individual Right to Vote.

    Where does that leave 16-year-olds? I don’t know, and I look forward to reading your additional posts on the topic. It seems to me that disallowing 16-year-olds from voting is not quite the same as disallowing most other groups from voting because the disability is so temporary — they have a definite expectation that in voting as in many other areas, their legal disabilities will be removed when they hit the age our society has defined as adulthood. That said, probably we would be a better society if we did allow 16-year-olds to vote; I think it could be a form of civic education to allow this. What I think we ought not to do is to build arguments for letting 16-year-olds vote that rely on reconnecting competence with voting rights — because this reconnection almost cannot help but imply that lots of adults really ought not to be allowed to vote. We have been down that road many times, and it doesn’t lead anywhere good.

  2. Vivian Hamilton says:

    Thank you for your comments. I regret not having had the benefit of reading your article earlier; it looks like it came out as I was completing or had completed mine (at least, that’s my story, and I’m sticking to it!). I was typing in a reply to your thoughts; but it was getting long, and I couldn’t add the couple of links that I wanted to. So I turned the reply into the post that follows . . .