Just How Young Should Voters Be? Part III: Why We Need a Conception of Electoral Competence, and Its Implications for Adults with Cognitive Impairments

Professor Joey Fishkin raised several important questions in his comment to my previous post. I’d initially planned to set out a pretty streamlined version of my argument for lowering the voting age, but I think his questions merit a bit of a detour/elaboration.

Do We Really Want to Reintroduce Notions of Electoral Competence? Fishkin suggests that introducing a conception of electoral competence is potentially fraught. And he’s right–political elite have historically, and notoriously, invoked the supposed incompetence of various groups to justify their categorical disfranchisement. But competence as a basic criterion for voting has been a constant. Indeed, some notion of it is what justifies voting-age requirements. Only young people’s want of the relevant competence (however that competence is defined/conceptualized) can render legitimate their electoral exclusion.

There can be little dispute that newborns lack the relevant competence, or that individuals typically acquire it at some point over the course of their development. Development and age predictably correlate. There is thus a temporal element to the attainment of electoral competence, making age arguably the most reasonable proxy for it.

Competence-based arguments did not drive the nation to lower the voting age from 21 to 18; Congress’s lowering of the draft age did (see what is probably the most comprehensive history of the passage of the 26th Am., lowering the voting age: Wendell Cultice, Youth’s Battle for the Ballot). Is age 18 the most reliable indicator of electoral competence that we can identify today? To decide, I think we need to answer two questions: First, what is the most appropriate conception of electoral decision-making competence (discussed in my last post)? And second, is it possible to identify an age or age range by which that competence has reliably developed (next post)?

Does the Conception of Electoral Competence I Suggest Risk Disfranchising Segments of the Adult Population? Fishkin suggests that it could, but I don’t think so. I don’t propose that individual would-be voters would have to demonstrate that they meet this standard in order to qualify to vote. I concede the practicality of age as proxy for electoral competence. I advance a conception of competence to guide a reevaluation of our current age-proxy and, if appropriate, establish a better, more empirically-grounded and principled one. We would assess the age or age range by which typical individuals reliably develop electoral decision-making competence. Individuals who attain the age of presumptive competence (just as they do today) would automatically gain the franchise.

The standard for electoral competence I argue for requires certain thinking/reasoning capacities (these attend normal individual development, which may be improved by, but does not require, specific levels or types of learning). Some individuals may meet this standard prior to attaining the presumptive age of competence; some will reach the presumptive age of competence (and gain the franchise) without having attained the typical capacities  Such slippage is the nature of proxies.

Justifying a Lenient Standard to Assess the Competence of Age-Qualified Individuals with Cognitive Impairments: Fishkin also discusses the potential effect of a conception of electoral competence on cognitively-impaired adults. I think that a lenient standard to assess the electoral competence of otherwise-qualified voters whose cognitive competence is in question is appropriate. Nearly 40 states have constitutional or statutory provisions prohibiting people with cognitive impairments from voting. In the last couple of decades, many have begun adopting procedural protections to guard against the unwarranted deprivation of voting rights of cognitively impaired persons. Over 30 states now provide for individualized judicial determinations of whether adults under guardianship nonetheless retain the competence to vote. The Competence Assessment Tool for Voting (CAT-V) is a questionnaire developed by psychiatrists to help assess whether individuals meet the basic, often-cited standard articulated in Doe v. Rowe (D. Me. 2001), requiring simply that potential voters have the “mental capacity to make their own decision by being able to understand the nature and effect of the voting act itself.” Consistent with that standard, the CAT-V consists of seven basic questions about the nature of voting in general, and the meaning of casting a vote in the election at issue.

I’d argue that something like the Doe standard of the CAT-V remains an appropriate tool to assess the electoral competence of otherwise-qualified voters with cognitive impairments. Here’s why: Age-qualified individuals with mental impairments are members of the group that has presumptively attained the array of development-related capacities required for electoral competence. They should receive the benefit of that presumption. The burden is not on them to demonstrate their competence and entitlement to inclusion; the burden is on the state to overcome the presumption of inclusion and demonstrate that the absence of the relevant capacity is such as to justify individuals’ exclusion. It is this heavy burden, justified in part by the foundational nature of the individual right, that can explain the simultaneous existence of one conception to assess, as a general matter, the initial acquisition of the capacities required for competent voting; and a different standard to convincingly establish its absence, or loss.

My focus has been on the initial acquisition of competence, generally. The voting rights of those with cognitive impairments merits more thought, and attention. In that regard, see the contributions of a U. Penn. Memory Center project on facilitating voting as people age (Pamela Karlan, whose article Fishkin mentions, is affiliated with the project).

photo: http://commons.wikimedia.org/wiki/File:Forside_Gammel_ung_profil.jpg

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6 Responses

  1. Brett Bellmore says:

    It’s not just competence: We disenfranchise felons, and they are presumably competent, or else they’d lack mens rea. Ditto for non-citizens.

    Formerly the vote was denied to non-property owners, on the theory that they lacked the independence necessary to exercise uncoerced judgement, even if they were capable of it in theory. I’d argue that minors are so dependent and subject to undue influence, that granting them the vote is functionally equivalent to just giving teachers and parents more votes to cast.

    But I’ve already expressed my main objection, that by extending the franchise to groups who don’t get to exercise the full range of other liberties creates second class voters subject to different incentives.

  2. Ken Arromdee says:

    I would suggest that if you exclude young voters because they are not likely to be competent, in the knowledge that youth is only an imperfect measure of competence, at least any errors caused by this imperfection are transient; someone who is competent but misclassified as incompetent because of youth will eventually be able to vote. Assessing competence directly won’t work this way–it is possible that someone could be permanently barred from voting based on incorrect assessments of competence.

    (Oh, if you allow kids to vote, how do you prevent parents from telling kids “you expressed sympathies with ___ political party, so I won’t let you out of the house on election day”?

    For that matter, how do you prevent them from simply threatening to punish the kids for bad voting, and quizzing them on how they voted? Theoretically the kid can lie, but parents are often good at detecting lies by their kids, not to mention that that some kids are honest and wouldn’t lie in that situation.)

  3. Joe says:

    The first comment suggest that as in the area of appointments to the courts, the term “competence” should be interpreted broadly to not merely include certain qualities that go beyond barebones ability.

    Thus, a certain independence was deemed necessary to be “competent” [the dictionary says this includes “properly qualified”] as would the moral rightness for which a felon might be deemed to lack. The minor might be “dependent” akin to property owners of the past but age is not a limit there, especially if we can imagine emancipation of minors under 18.

    Brett, again, put forth this ideal: “People should, as a normative matter, get all their liberties at the same age.”

    At least two people noted that children of a young age get certain liberties but not others. Brett did not respond when asked what he would do: let ten years olds vote or take away the civil liberties they have at that age.

    He now phrases things a bit differently. How he phrases things now, voting can be seen as end point. Thus, VOTERS must have all liberties, not that “all their liberties” should be obtained “at the same age.”

    Even now, I’m not sure. If a person is unable to serve on a jury (for instance, given a physical ailment) or to own a gun (for various innocent reasons other than a felony), they are denied certain liberties. Should these people not be allowed to vote? This all/or nothing rule again seems problematic in practice.

    But, if Brett doesn’t want to simply address this serious concern, so be it.

  4. Joe says:

    [the reasons as to guns that I have in mind would be various physical or mental ailments; e.g., if someone has a physical condition that makes them unable to properly handle a gun safely, they might not have the right to use a gun as much as the next adult … should this person be denied the right to vote, since this “creates second class voters subject to different incentives”?]

  5. Joey Fishkin says:

    Thanks for generously devoting a post largely to responding to my comment on that earlier post. I appreciate that some distinctions can be made between the age limit for voting and the competence-based restrictions on voting that a state might apply to adults.

    One aspect of your response is, in effect, that you’re not the one bringing up competence — rather, you’re rebutting an argument that currently justifies restricting the franchise to 18-year-olds. (“Only young people’s want of the relevant competence (however that competence is defined/conceptualized) can render legitimate their electoral exclusion.”) But is this really the only justification for exclusion, or even the main one? As you note, competence arguments played only a peripheral role at best in moving the age from 21 to 18. It is not clear to me that they need to play any more of a role in lowering the age from 18 to 16. It is an empirical question what reasons people would give for keeping the age at 18. One argument has to do with dependence, although this argument is somewhat problematic: I don’t see folks like the commenters above who are bringing up this argument suggesting that emancipated minors should get voting rights, and on the flip side I hope they don’t think that dependent adults (say, adults in guardianship, adults who remain in their parents’ care, etc.) should be automatically excluded from voting… Another argument, a bit inchoate, has to do with tying the franchise to various other rights in one omnibus “age of majority” that covers a number of rights and obligations at once. Neither of these arguments seem to me especially compelling, but they might be playing more of a role than competence arguments in justifying the current age restriction, I don’t know.

    I appreciate your efforts to try to cabin any potential competence arguments to the special context of age and avoid having them spill over into adult contexts. But what about spillover within the juvenile context? For instance, many fights are taking place right now about charging juveniles as adults in criminal proceedings; sometimes expert evidence comes in to those fights (either in legislatures or courts) about the mental competencies and maturities of people younger than eighteen. If we lowered the voting age to sixteen largely on the basis of competence arguments like the ones you are presenting here, would you anticipate that these might have some effect on these criminal controversies? (I.e. if sixteen year olds are ordinarily rational enough to vote like adults, then maybe they’re ordinarily rational enough to face adult-like criminal penalties too.)

    I should say, by the way, that I find this work quite interesting and I’m looking forward to reading your actual article. But as you can see, I’m concerned about a number of aspects of where competence arguments in voting might lead…

  6. Ken Arromdee says:

    I would suggest that
    — sure, emancipated minors should be allowed to vote
    — dependent adults are not analogous to minors because the are various reasons why one might be dependent and competency is not always one of them. If there is a type of dependency such that people dependent in that way are as likely as minors to be incompetent, there’s a good case to keep them from voting. Even so, we should be careful because as I pointed out above, mistakenly believing someone is incompetent because of age will eventually go away, while making a mistake about an adult’s competency might not.
    — Nobody thinks 16 year olds are as competent as 18 year olds. The argument is that they aren’t enough less competent to matter, not that they’re not less competent at all. It’s entirely possible that the decrease in competency isn’t enough to matter for voting but is enough to matter for criminal penalties.