Tagged: voting rights


How Young Should Voters Be?: 16-Year-Olds’ Entitlement to the Most Basic Civil Right [Part V]

This is the last in a series of posts on the voting age. In what is becoming a global trend, more than a dozen democratic nations have lowered their voting ages to 16, and others are seriously considering doing so. Two days from now (on Jan. 24), the House of Commons will debate a pending bill, the Voting Age (Comprehensive Reduction) Act 2013, which would set the voting age to 16 across the United Kingdom. Parliamentary assemblies in Scotland, Wales, and the self-governing British Crown Dependencies have already voted to do so. The United States is not among the democracies considering this issue, but it should be. As we extol the virtues of political participation to nascent democracies around the world, we should also remain open to reexamining our own electoral processes — particularly those that result in individuals’ categorical exclusion from political participation. (See my first post.)

It is time we too reexamined the voting age. It was lowered in 1972 from 21 to 18 to bring it in line with the draft age. “Old enough to fight, old enough to vote” remains catchy and has intuitive appeal, but the logic is questionable, as the ability to do one does not necessarily imply the ability — or inability — to do the other. We now know more about voter decision making in general, processes of cognitive development, and adolescent decision making in particular. This knowledge contributes to our ability to make better-informed assessments of what competent voting entails, and the age by which that competence is reliably attained.

Generally, our voter qualification rules aim to ensure would-be voters’ (1) interest in and ongoing connection to the political community; and (2) vote decision-making competence. The young are interested members of the community, so only their presumed lack of competence justifies their exclusion. Informed by empirical studies of voter decision making, I have argued for a cognitive-process-driven conception of vote decision-making competence (see my second post). I explained in my third post why this conception of competence would not operate to disfranchise current voters. A conception of vote decision-making competence instead provides us with a tool we currently lack — a principled standard against which to assess the age or age range by which typical individuals reliably attain the capacities that constitute competence. Upon reaching that age, individuals would, just as they do today, automatically gain the franchise. The state should then bear a heavy burden to disfranchise individuals presumptively entitled to vote but whose competence is nonetheless in question, such as adults with mental impairments. (For a thoughtful critique of individualized assessment tools advocated by some, see this article by Prof. Nina Kohn.)

I argued in my most recent post that 16- and 17-year-olds have attained the cognitive and decision-making capacities required for vote decision-making competence. That alone ought to justify their enfranchisement; their unwarranted exclusion diminishes our democratic legitimacy. (For an elaboration of the above arguments, see my recently-published article, Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority.)

Correcting the arbitrary exclusion of this (competent) cohort of the political community is arguably the most powerful reason for enfranchising 16- and 17-year-olds. Lowering the voting age may also improve our democratic processes in other important ways. It may, for example lead to:

Increased Voter Knowledge: Public ignorance of basic civics, government, and politics is well established. Becoming eligible to vote while still enrolled in high school, however, makes lessons in civics/government more immediately relevant to students’ lives. That immediacy — the real-world application of acquired knowledge — can give students added enthusiasm and incentive to learn, and can provide educators with invaluable teaching tools. Currently, many students will leave high school before becoming eligible to vote, may no longer be in a structured educational setting once they do become eligible, and may wait several years before having the opportunity to vote in a presidential election. Their political disengagement is obviously not inevitable; we have simply lost an opportunity to impart lasting lessons, generate early enthusiasm, and encourage lasting habits (see below) of political engagement and participation.

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Just How Young Should Voters Be? Part IV: Assessing Adolescents’ Electoral Competence

Citizenship and suffrage go hand in hand. This series of posts, drawing on a recently-published  article,  considers the age-based exclusion of citizens younger than 18. A growing number of countries, as I noted in my first post, have lowered their voting ages to 16 or are considering doing so. The United States should be among those democracies reassessing the electoral exclusion of at least some cohort of its younger citizens.

Electoral standards have long required both (1) ongoing community connection and interest, and (2) vote decision-making competence. Individuals lacking either of these characteristics (or more precisely, the indicia of them reflected in specific voter qualification rules) are commonly disqualified from voting. Thus, voter qualification rules that require citizenship, residency, and law-abidingness presumably ensure that voters meet the first standard — community connection and interest. The young meet that standard. They are members of the political community, with significant interest in and ongoing connections to it. It is only their failure to meet the second standard — vote decision-making competence — that can justify their exclusion.

What Constitutes Vote Decision-Making Competence [Redux]? 

The state excludes citizens younger than 18 from the electorate because they have presumably not yet attained vote decision-making competence, but missing from this justification of their exclusion is a conception of that competence. Some conception of electoral competence — the basic capacities required for voting — is required before the state can credibly assess its attainment, or identify its absence. Age-based line drawing with respect to the development-related attainment of electoral competence is a practical necessity. The state owes its citizens its best effort (some effort) to first ascertain a principled yet pragmatic conception of electoral competence, then to assess young people’s attainment of it, and finally to draw the voting-age line in a manner consistent with that assessment. Otherwise, the state cannot meet its burden of justifying electoral exclusion.

What constitutes vote decision-making competence? Based on empirical studies of voter decision making, incorporating factual knowledge (of civics, politics, etc.) into a standard of electoral competence risks disfranchising much of the current electorate, and it is also unnecessary to ensuring correct vote decisions (those a voter would have made under conditions of full information, given the voter’s subjective values). I thus argued in my second post for a cognitive-process-driven conception of electoral competence. It requires “adultlike” rather than “mature” reasoning processes, because there is no universal state of maturity attained by all, or even most, adults. Requiring “mature” reasoning, like requiring factual knowledge, risks disfranchising many current voters.

I thus propose a conception of electoral competence in which a minimally competent voting decision involves an adultlike application and coordination of various reasoning processes to make a choice that could be justified by a good-enough reason.

The Development-Related Attainment of Vote Decision-Making Competence

Cognitive capacity improves more or less linearly throughout childhood and reaches adultlike levels by midadolescence. By age 15 or 16, adolescents are as able as adults to acquire, retain, and retrieve relevant information and apply to it reasoning processes that lead to justifiable conclusions. Researchers have consistently found the logical reasoning and information-processing abilities of 16-year-olds to be essentially indistinguishable from those of adults. According to developmental psychologist David Moshman, “[n]o theorist or researcher has ever identified a form or level of thinking routine among adults that is rarely seen in adolescence.”

But while they have adultlike abilities to think and reach rational judgments, adolescents’ capacities are more susceptible than are adults’ to being confounded by the real-world contexts in which they make decisions. When they must make decisions quickly or under pressure, or when they are highly emotional or stressed, adolescents’ performance suffers. In contexts in which adolescents are likely to make poor decisions — especially when their decisions will have negative externalities — the state properly constrains their decision-making liberty.

[For an elaboration of the context-specific nature of adolescent decision making, see here. For a discussion of neurologically-based models that have the potential to explain adolescents’ poor decision making despite their mature cognitive abilities, as well as other aspects of adolescent psychology and behavior, see here.]

Elections are a decision-making domain in which adolescents’ cognitive-processing abilities would almost certainly remain uncompromised. Elections unfold over a period of time, giving voters the opportunity to deliberate and evaluate options without undue pressure. Many sources of information are readily available (televised debates, party affiliations, etc.), which serve as scaffolding or heuristics to help votes evaluate their choices. And voting itself is done anonymously and in private, which diminishes the concern that adolescents’ ultimate choices will be unduly pressured or dictated by their peers or others. (Ken A., in a comment to my previous post, mentioned the potentially undue influence of parents, but the intergenerational transfer of party affiliation seems to be a well-established fact of political life.)

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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.

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

This is the second of three (or so) posts on the youth vote and the voting age. In a post last week, I suggested that the United States should join other democracies reevaluating their ages of electoral majority.

In this post, I argue that deciding whether a group of individuals is competent to vote first requires a conception of what constitutes electoral competence, and I offer such a conception. My next post will examine whether such competence is reliably achieved earlier than age 18.

Basic Voting Criteria: Connection/Interest and Competence. Basic voting criteria have remained essentially unchanged across the centuries and generally require for electoral inclusion  (1) a significant and ongoing interest in and connection to the community; and (2) vote decision-making competence. (Few democracy theorists, though, have sought to justify these intuitively-correct criteria. I attempt to do so here, pp. 1484-90.) But while the basic criteria have remained unchanged, notions of reliable indicia of them–reflected in specific voter qualification rules–have changed significantly.

Historically, property ownership was a voter qualification rule believed necessary to ensure a potential voter’s ongoing community connection and interest. Today, citizenship, residence, and law-abidingness qualifications all seek to ensure the same criteria (ongoing connection and interest). And historically, the intellectual independence required for electoral decision-making competence was deemed impossible in the absence of economic independence, since dependent voters might be unwilling to vote in a way that displeased those to whom they were economically beholden. Today, different voter qualification rules aim to ensure that voters possess electoral decision-making competence. State rules allow, for example, the disfranchisement of adults deemed mentally incompetent. The primary voter qualification rule aimed at ensuring that voters have developed the requisite competence, however, is the voting age.

Indicia of Competence: Political/Civics Knowledge? Rousseau believed that a well-informed citizenry was necessary to determine and implement the public good, and many modern theorists agree that informed and watchful citizens help ensure a responsive, accountable government. Yet the typical citizen, it is safe to say, is far removed from the ideal citizen of classic democratic theory.

Studies consistently find that public ignorance is widespread and extends to knowledge of basic civics and government. Mark Blumenthal, senior polling editor of the Huffington Post and founder of Pollster.com glumly wrote, “[one] can almost never underestimate the level of information about politics and government possessed by the voters who typically decide the outcome of elections.”

Incorporating even basic levels of civics or political knowledge into a conception of electoral competence theoretically justifies voter qualification rules that would operate to disfranchise a significant proportion of the current electorate. Moreover, rates of disfranchisement would be unequally distributed across the population based on differences in knowledge among various groups that have held steady over time: more women would be disfranchised than men; more African Americans than whites; more low-income earners than high-income earners; and more people under 30 than those 65 and older. Formal requirements aimed at ensuring well-informed voting would likely result in a better-informed electorate, but also a less representative and democratic one.

The Ill-Informed–Yet Competent-Enough–Voter. In lieu of incurring the costs of educating themselves, voters generally rely on more readily available information shortcuts (or heuristics), which substitute for more complete information. These can include party affiliation, group endorsements, or person stereotypes such as gender, race, or age. Heuristics allow voters (indeed, decision makers in innumerable contexts) to make decisions reasonably consistent with their preferences while expending relatively little effort. Empirical political scientists Richard Lau and David Redlawsk have extensively researched voter decision making and the effectiveness of heuristic use and found that their “limited information decision strategies not only may perform as well as, but in many instances may perform better than, traditional rational . . . decision strategies.” (For a detailed explanation of their findings, see the previous link at pp. 212-26; See also here, reporting studies finding that greater amounts of preexisting knowledge can in some instances hinder rational analysis of new facts.)

Lau and Redlawsk have found that the typical voter generally reaches a rational and “correct” voting decision (defined as one that is the same as the choice that the voter would have made under conditions of full information, given the voter’s subjective beliefs and values) by acquiring and processing smaller, readily available bits of meaningful information that function as serviceable substitutes for full information. Thus, not only does incorporating factual knowledge into a normative standard of electoral competence risk disfranchising much of the current electorate; it is also unnecessary to ensure generally correct vote decisions.

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The Youth Vote Matters. But Just How Young Should Voters Be? [Part I]

Happy New Year, and thanks to Solangel Maldonado for inviting me to participate.

One of the most consequential events of 2012 was the presidential election, and critical to it was the youth vote. Young voters aged 18 to 29 turned out at virtually the same rate as they had in 2008, despite predictions that their enthusiastic participation in that historic election would be a one-time anomaly. On November 6, a lopsided 60 percent of the youth vote went to the President, while 36 percent went to Mitt Romney. Had Romney managed to garner 50 percent of the youth vote in four swing states (Florida, Ohio, Pennsylvania, and Virginia), he would have won those states’ electoral votes, and the presidency. The political implications of the youth vote for future elections are thus significant. Young voters have established themselves as an important voting bloc, particularly in swing states.

Across the United States, the voting age to participate in general elections is 18, with age serving as a proxy for the attainment of electoral decision-making competence. Whether young voters will continue to lean left in future election cycles is a significant question. A more significant question, though, is whether the current voting age is the best available proxy for electoral competence. Indeed, the latter question cuts to the core of democratic government. I explore it in a recent article and will highlight aspects of this critical, yet largely ignored, question in upcoming posts.

More than a dozen nations have recently lowered local, state, or national voting ages to 16, aiming primarily to increase youths’ political engagement and counter the disproportionate political influence of older citizens. In Europe, these include Austria, Scotland, Wales, the self-governing British Crown Dependencies, nearly half of all German states, and several Swiss states (Scotland and Wales are awaiting from Westminster authority to effectuate the measure but have implemented it for local elections). Norway instituted a pilot project in 2011 allowing 16 year-olds to vote in local elections. Latin American countries that allow 16 year-olds to vote include Brazil, the Dominican Republic, Ecuador, Nicaragua, and–as of October 2012–Argentina. British and Canadian Parliaments have voted on bills proposing to lower national voting ages (though these have so far failed to pass), and former Prime Ministers Tony Blair and Gordon Brown both announced while in office their support for a lower voting age.

That the global trend is to extend, or consider extending, the franchise to 16- and 17-year-olds does not mean that the United States should automatically do the same, nor that doing so necessarily makes for better democracy. But for the United States, which holds itself out as a beacon of democratic participation, not to be among the world’s democracies at least evaluating the electoral inclusion of some cohort of its younger citizens demonstrates a complacency with respect to exclusion that is itself a democratic deficit.

In upcoming posts, I will explore ideals of the citizen-voter from classic democratic theory, argue for a conception of electoral competence, and examine research from several disciplines within the developmental sciences exploring the connection between age range and the attainment of certain cognitive competencies. I conclude that age 18 may have been the best available proxy for electoral competence when the nation adopted it as the voting age in 1971, but developments since then enable us to identify a better proxy.

That younger voters have demonstrated a proclivity to lean left may make some policy makers reluctant to even entertain what ought to be a question of democratic legitimacy, not politics. That may ultimately be political reality, but, as future posts will aim to show, it would also be a real shame.


NVRA (National Voter Registration Act) vs. Voter ID and Other Voter Access Challenges

In the ongoing battle to improve access to elections and expand the electorate, civil rights groups have often used the Voting Rights Act of 1965 (and its amendments) as the preeminent weapon.  The most transformative legislation to come out of the civil rights movement, the VRA changed the complexion of this country’s elected bodies and increased access to political power for minorities through muscular remedies.  However, it is the NVRA (National Voter Registration Act), the VRA’s lesser known, younger cousin of sorts, that has been stealing headlines this week.

Sandwiched between the VRA and the more recent Help American Vote Act (HAVA)d passed in 2002, the 1993 NVRA is sometimes overlooked as a significant linchpin of voter access.  Indeed, the NVRA has played an important role in securing expanded registration opportunities for marginalized populations.  And, in the face of stringent voter ID laws that suppress voter turnout and shrink the electorate, both offensive strategies and defensive tools are needed.  The NVRA continues to prove that it can be effective on both fronts.

Also known as the “Mot0r Voter” law, the NVRA was enacted in 1993 to help standardize the voter registration process for federal elections which varied widely throughout the states.  In an effort to decrease this disparity, the NVRA requires state agencies to give a voter registration application to all individuals applying for or renewing a driver’s license, or applying for (or receiving) services at certain other public offices, such as public assistance benefits.  The NVRA also requires states to “accept and use” registration by mail for federal elections.  Both of these important aspects of the law were the subject of the NVRA’s prominence this week.

On Tuesday, the Ninth Circuit Court of Appeals issued a fractured, en banc opinion in Gonzalez v. Arizona in a challenge to Arizona’s Proposition 200 that requires prospective voters in Arizona to show proof of U.S. citizenship in order to register to vote.  The NVRA requires states to “accept and use” federal voter registration applications where applicants affirm that they are citizens of the United States and that they meet other voting prerequisites.  Although states retain the right to reject deficient applications under the NVRA, the Ninth Circuit held that the NVRA does not permit states to independently verify citizenship status by requiring proof of citizenship for registration for federal elections.  The court also addressed important claims under the VRA which others have analyzed here and here.  However, it was the NVRA that ultimately yielded a coup.

Since its inception, the NVRA has provided registration access to countless recipients of public benefits and government services and has permitted states to reject and purge registrations on a variety of grounds.   Nonetheless, states have repeatedly attempted to
undermine the law, as evidenced by the Arizona case, and in some instances evade implementation of the NVRA altogether. Wednesday’s important settlement victory against the State of Georgia is one in a long line of NVRA enforcement actions led by the Department of Justice and civil rights groups to force states to abide by their duty to expand registration opportunities.  For years, Georgia refused to implement the NVRA’s registration requirements to the fullest extent of the law.  The settlement in NAACP v. Kemp, however, now requires Georgia’s public assistance agencies to provide voter registration every time they apply for or renew benefits, or when they submit a change of address, including when these acts occurs via remote communications such as by telephone, internet or mail. Georgia’s stringent voter id laws still present independent challenges to voter access, especially since the popular Georgia Compass (or EBT (electronic benefits) card is not a photo id.   This makes continued enforcement of the NVRA all the more important to increase the overall number of registered voters.

As noted earlier, Georgia is not alone in its obstinance in implementing the NVRA.  Over half a dozen states refused, on constitutional grounds, to implement provisions of the Act when it first became effective until DOJ brought enforcement litigation, successfully defending the NVRA’s constitutionality.  And, the battle wages on.  Most recently, DOJ filed a complaint against the State of Louisiana, alleging that the State and its public assistance and disability agencies failed to offer voter registration opportunities  in violation of the NVRA.  DOJ filed a similar complaint against the State of Rhode Island that was resolved by consent decree in 2011, as were complaints against Illinois and Arizona, a repeat offender, in 2008.

Given the incessant proliferation of voter ID statutes, the NVRA’s role in increasing the number of registered voters is increasingly important.  Both the Arizona and Georgia cases underscore the need both to enforce the provisions of NVRA and protect against its circumvention by clearly defining the limits between federal and state authority under the Act.  While the Supreme Court likely will be the final arbiter as to whether stringent vote ID laws like Arizona’s can supplant the rights created under the NVRA, the NVRA remains a significant player in the body of laws that protect and safeguard voting rights.


Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More


Disenfranchised in the District

July 2012 will mark my 33rd anniversary of living in the heart of the District of Columbia. An Iowa native, I moved to D.C. in 1979 to take a one-year clerkship, fully intending to move back to my adopted state of California when the clerkship ended. I clerked for Justice Byron White, the only Supreme Court Justice whose name my father recognized (due to the Justice ’s remarkable athletic career). I rented a Capitol Hill townhouse to be within walking distance of the Court. Despite interviewing only with California public interest groups for post-clerkship employment, I never left D.C. because my new employer — the Berkeley office of the Environmental Defense Fund (EDF) — acceded to a request from the group’s headquarters to lend the D.C. office a new lawyer to help fight the incoming Reagan administration.

Today I find myself still living on Capitol Hill just four blocks away from my first apartment. Over the decades the neighborhood has gentrified, real estate prices have soared, and Hill residents have stopped moving to the suburbs when their children reach school age. Cool new restaurants have sprung up in the neighborhood and, despite dirty tricks by a competing owner to the north, baseball is back. But two things have not changed: political candidates of both parties continue to vilify Washington and I and my family still have no voting representation in Congress.

During his 2008 presidential campaign, Barack Obama, who as a Senator lived in an apartment three blocks from my home, had nothing but harsh words for Washington. After taking office, he refused the invitation to throw out the first pitch at the Washington Nationals 2009 season opener — in my view one of his few mistakes of that year (to his credit, he realized the error of his ways and threw out the first pitch in 2010). The ranks of politicians who settle in D.C. after retiring are legion, and they include many who denounced the District on the campaign trail and piously promised to move back home when their terms were completed (remember the fierce insistence of Bob Dole, who now works for a D.C. law firm, that he would return to Russell, Kansas if defeated in 1996?).

To be sure, people of good will have worked hard to end the injustice of D.C’s disenfranchisement. In February 2009 a bill to expand the size of the House of Representatives by two and to award the two new seats to Utah and the District passed the Senate by a vote of 61-37. But it ultimately was scuttled when the NRA, not content with the Supreme Court’s Heller decision striking down D.C.’s handgun ban as violative of the Second Amendment, insisted that the price of voting representation should be a wholesale repeal of D.C.’s gun control.

In today’s toxic political climate there seems little chance of progress in ending this injustice. In September I met Mark Meckler, the founder of the Tea Party Patriots, at Harvard’s Law School’s Conference on the Constitutional Convention. He had just given a speech passionately asserting that the Tea Party actually was non-partisan and non-ideological. I pointed out to him that the original Tea Party was about taxation without representation, the phrase that now appears on D.C. license plates as a protest against our disenfranchisement. If the Tea Party truly were non-partisan and non-ideological, one would hope that voting representation for D.C. in Congress would be one of their top priorities. But I am not that naïve.

I freely admit that in one respect I am grossly overrepresented in our electoral process thanks to the 23rd amendment. The 23rd Amendment gives the District 3 electoral votes, the number of electors “to which the District would be entitled if it were a State.” That means we have 1 electoral vote for every 200,000 D.C. residents at the time of the 2010 census (when 601,723 people lived in the District). By contrast Texans have only 1 electoral vote for each 661,000 residents (a population of 25,145,000 divided by 38 electoral votes) – do I hear howls of outrage from Republican presidential candidates (no Republican candidate has received even 10% of the D.C. vote since 1988)? But the outrage can be bipartisan — Californians have only one electoral vote for every 677,000 people (55 electoral votes and a population of 37,254,00). Only one state – Wyoming – is more overrepresented than D.C. in the process of electing our presidents – it has one electoral vote for each 188,000 residents (3 electoral votes for 563,626 residents).

This seeming inequity is a product of Article II, Section 1 of the Constitution that assigns electoral votes not on the basis of population, but rather on the basis of the number of Senators and Representatives that each state has in Congress. Since even small states like Wyoming have two Senators, their impact in the Electoral College is unduly magnified. Should this be changed? One answer, of course, would be to amend the Constitution to scrap the Electoral College and elect Presidents by popular vote. I erroneously thought the public would demand this change after the 2000 election when the candidate elected president by the Electoral College received more than 543,000 fewer votes than his opponent.

How did the 23rd Amendment come to be adopted? The surprising answer is that a bipartisan coalition led by Republicans championed its passage. Republican Senator Prescott Bush of Connecticut (father of President George H.W. Bush and grandfather of President George W. Bush) led the charge with the support of Republican President Dwight D. Eisenhower. Congress proposed the amendment on June 17, 1960, and it was ratified by 38 states less than 10 months later. Forty states eventually ratified the amendment – all but Florida, Kentucky. Mississippi, Georgia, South Carolina, Louisiana, Texas, North Carolina, and Virginia (Arkansas was the only state to vote against ratification – but hey, at least they gave us a vote). Rumor has it that part of the impetus for the amendment was Cold War claims by the Soviet Union that the U.S. was denying human rights to District residents. (In 2003 the Inter-American Commission on Human Rights of the OAS concluded that D.C.’s disenfranchisement was a violation of the American Declaration on the Rights and Duties of Man, but the OAS does not have a nuclear arsenal).

Senator Prescott Bush did not want to stop with the 23rd Amendment. He also supported giving the District full voting representation in Congress. Republicans like Bob Dole (“in justice we could do nothing else”), Howard Baker, and even Richard Nixon (after he resigned) endorsed voting representation for the District in Congress. A subsequent effort was made to amend the Constitution to give D.C. full voting representation in Congress (2 Senators and 1 Representative). The District of Columbia Voting Rights Amendment was proposed by two-thirds majorities of Congress in August 1978. However, the proposed amendment died when only 16 states ratified it before its seven-year expiration date.

Over the years we District residents have regularly had to endure Congressional intervention to bar us from spending our own tax money on things like lobbying for D.C. voting rights, funding abortions for women too poor to afford them, and even counting the votes in the initial referendum we held on legalizing medical marijuana. My own favorite outrage is when President George W. Bush in his 2005 State of the Union Message touting his efforts to spread democracy around the world boasted that because of the invasion of Iraq, residents of the Iraqi capital of Baghdad could now vote for members of their National Assembly. D.C. Mayor Anthony Williams, who was sitting in the gallery, should have walked out in outrage.

It would be nice if persons of principle from all ends of the political spectrum stepped up and spoke out for D.C. voting rights like Senator Prescott Bush did. But I’m enough of a realist to understand that only a truly cataclysmic event could change the political dynamic to favor voting representation for the District. I just hope that it will not be something on the order of a devastating terrorist assault on my beloved neighborhood (which fortunately was averted on 9/11 by the brave souls on United Flight 93). Nevertheless, I continue to feel that it is my duty as a D.C. resident to start every talk I give before a Federalist Society audience by raising the issue. Years ago, I would have someone come up to me after my talk to say, “You don’t understand – D.C. is not a state.” However, the last time I mentioned it I heard instead, “You know, Ken Starr, who is on our board, agrees with you.” Perhaps this is progress.

I do have a few modest requests. First, it would be nice to hear someone mention this issue in the current presidential campaign – it does not seem to be on President Obama’s radar screen – after all no candidate wants to be accused of favoring anything connected to Washington. Second, could a few brave politicians at least try to re-focus their anti-Washington campaign rhetoric on our guests who run Congress and the executive agencies (many of whom will grow to love the District and stay here after they retire) and NOT on the city that we residents love? And DON’T try to tell me that we voluntarily chose to be disenfranchised simply because we moved to the District to serve our government and liked it so well that we never left.