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Wednesday, November 16, 2016

The voting/protesting fallacy

Building on some comments from an earlier post:

A recurring theme of the past week (and counting) of anti-Trump protests is whether the protesters have voted. This report notes that of 112 protesters arrested in Portland, 39 are registered in Oregon but did not return ballots and another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere). The reporter adds that "[n]ot turning up to vote and then taking to the streets to protest the result of the election is a tough position to defend." Actually, it is not a tough position to defend. But this has become a recurring theme, and we should reject it in strongest terms.

Whether someone voted should never be relevant to whether they can or should engage in protest or otherwise speak out on public issues, including the election result.  There are many ways to express one's political views and to try to bring about political change--voting is one, public protest is one,  and there are others. None is necessarily preferable to any others. More importantly, none is a condition precedent to any other. The right to petition government for redress of grievances is not conditioned on a person first having tried to affect the content of the government through the vote; voting and petitioning are independent rights.

The argument seems to be that a person cannot complain about something (such as the election results) if she did not first try to affect that thing (such as by voting in the election).  There are several problems with these assumptions.

First, one voter does not affect the result of the election, which is why many regard voting as an irrational act for an individual. Second, this point is heightened for the Oregonian protesters. They voted (or would have voted) in a state election that Clinton was certain to win, such that their additional individual votes in Oregon would not have affected the outcome in that state. And they would not have affected the presidential election, which depended on separate elections in 50 other places, unaffected by the margin of victory in Oregon. (One of the arrested protesters made this point in explaining why he did not vote).

Third, one perhaps can better make herself heard as one voice among hundreds of protesters than as one compulsorily anonymous voter among millions. The Tea Party garnered more attention and influence for the movement, at least initially, through its public protests during 2009-10 than through the ballot in 2008. (And, for what it is worth, I do not recall Tea Party protesters, many of whom complained about "feeling disenfranchised" under the new Obama administration, being asked whether they had voted). Fourth, this all assumes that people are protesting the election result and Trump becoming president (a legal inevitably), as opposed to what Trump stands for and what he will try to implement as President. Protesters can, and should, make their voices heard in an attempt (futile though it might be) to get Trump to think about what he will do as President and not to pursue particular policies that the speaker does not like. (This is why "not my president" is an unfortunate slogan--it allows for conflation of the two).

Fifth, the underlying assumption is that speech and protests are not mechanisms for change or results, but merely complaining and whining (and, again, you cannot complain about something if you did not first try to change it). But that is a hollow conception of speech.

Finally, we protect speech in part as a "safety valve," giving people an opportunity to blow off anger about something, rather than turning that anger into violence or forcing it underground. So even if the protests reflect disappointed non-voters blowing off steam, there is constitutional value in their blowing off steam.

The last week has revealed  a frightening attitude towards public protest, certainly among Trump and his transition team, but also reflected in media coverage. Speaking out in public is whining and complaining by thugs and spoiled millenials, worthless and meaningless, unavailable to non-voters, who are not entitled to question the "will of the majority" (according to a leading choice for Secretary of Homeland Security). It could be a bad few years.

Posted by Howard Wasserman on November 16, 2016 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


I understand the argument as a way of incentivizing voting: do this civic act, or you waive some of your moral legitimacy in other contexts. It might not be well-tailored to that goal, but I think it makes more sense when seen this way.

Posted by: James Grimmelmann | Nov 16, 2016 9:46:11 AM

I agree 100% with the idea that the right to protest/petition should not in any way be contingent upon one's exercising his/her right to vote. But part of your argument insinuates that critics believe there should be some legal obligation to vote as a condition for protesting. In that respect, I think you are creating a straw man because most critics don't actually support that view. I think the critics's view is that the protest rings empty or disingenuous when protesters do not take advantage of all legal means at their disposal for protesting the result.

Also, it is unclear whether the protesters are actually protesting the result or protesting Trump's positions, but I would venture that it is a bit of both. It seems odd that the media threw a fit at the possibility that Trump and his supporters would not recognize the result of the election under all circumstances, but the media outlets on the left seem to overlook the motives of the protesters since the election. If Trump supporters had staged similar protests after a Clinton victory, would the assumption be that the protesters were actually opposed to Clinton's policies, rather than opposing the election result?

Finally, I think your comparison to the Tea Party is a bit inaccurate. The Tea Party wasn't in existence until February or March 2009, which is the main reason why it didn't accomplish anything through voting in the November 2008 election. Also, the movement's main impetus was the stimulus packages and tax increases announced by Obama in the first few months of his presidency. The difference is that the Tea Party was not a reaction to the election result itself, but to the policies of the President.

Posted by: TJM | Nov 16, 2016 10:40:52 AM

This is a bit of a non sequitur:

"... another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere)."

I can think of several populations that refute this — students, active-duty military, temporary workers (agricultural, even industrial). This all arises from our silly obsession with "legal residence." And if you really want a good example of how silly it is, count the number of Florida and Texas license plates on a bright, crisp February day in the commissary parking lot at Minot AFB, North Dakota!

In short, "the address one gives" at best enables further inquiry into where one voted.

Posted by: C.E. Petit | Nov 16, 2016 11:51:36 AM

"The Tea Party wasn't in existence until February or March 2009"

The Wikipedia page (with citations, since yes it's an imperfect source) suggests somewhat of a caveat there at least.

I appreciate the general discussion. The "one vote alone doesn't matter" thing can be taken too far. A few states were very close overall. A person often doesn't act in a vacuum. They are part of a vague general group motivated to act in a certain fashion. Small groups, ultimately individuals acting, matter there. Michelle Obama made this a theme and I think that is a useful way to see it.

Posted by: Joe | Nov 16, 2016 11:53:16 AM

I was not suggesting anyone was making an argument about a legal waiver. I reject the idea of even a moral waiver or undermining by not voting.

It seems to me the media concern was that 1) Trump would not concede, which Clinton has done, and 2) Trump supporters were going to take up arms. But a fair point. The fact that Clinton won the national popular vote, while legally irrelevant, spurs some protest (and would if the situation were reversed).

Posted by: Howard Wasserman | Nov 16, 2016 12:41:07 PM

"Fifth, the underlying assumption is that speech and protests are not mechanisms for change or results, but merely complaining and whining (and, again, you cannot complain about something if you did not first try to change it). But that is a hollow conception of speech."

These protests are in a legal and technical sense speech, but not the type of speech that is realistically calculated to effect change or results. It is one thing to defend an entire category as worthy of protection and quite another to abdicate one ability as a thinking person to evaluate concrete cases.

These protesters are out there engaging in public masturbation. Nothing at all will change based on what they are doing. The weird retroactive nostalgia that my generation seems to have for eras they never lived through (civil rights / Vietnam) has blinded them to the utter failure of these tactics to accomplish anything for decades running.

Posted by: Brad | Nov 16, 2016 1:01:45 PM

"The fact that Clinton won the national popular vote, while legally irrelevant, spurs some protest"

Of what? The Electoral College? If that's the case, then why is Trump the focus of the protests? I would suggest a more fruitful use of energy would be to target state legislatures to amend the Constitution.

Posted by: TJM | Nov 16, 2016 1:18:44 PM

"public masturbation"

There are various forms of that conduct but it's an interesting choice of words when it tends to be generally understood as a solitary activity. Also, masturbation is not really a negative thing. If we want to use that turn of phrase. It can be positive part of sexual expression, including as a means of an individual alone to fulfill certain needs.

What are such people supposed to do? Stay home? Wouldn't that in effect help normalize Trump? Protests show that voters are particularly upset at the results, something simply not done like this after each election. It is also a sort of way to release pressure, commiserate with others (in modern society, we do more things in public such as social media) and very well can be the beginnings of networking for future action.

So, first, "change" isn't the only positive function here. Second, it very well can be part of it. It is not like these people will all simply go home after this and do nothing.

Posted by: Joe | Nov 16, 2016 1:20:08 PM

Howard, I tend to disagree. The problem is that protesting the results of a fair and open election is itself a strange thing. Presumably, the protest is not against the fact of democracy. It's not like the protesters want a dictatorship, and they're displeased that the rules of a democratic system were followed. (I'm assuming they're not protesting the electoral college system.) Rather, the protest ends up being against how one's fellow citizens decided to exercise their right to vote. But it's a little awkward to protest how another person exercised a right when the protester didn't do what he wanted the people who he is protesting to do, namely vote for the particular candidate whose loss is being protested. No one would question the right to protest, of course. . And if it's only about venting anger, then so be it. They can vent; others can criticize the venting; etc. But ordinarily, it's somewhat hard to protest against someone else not doing X when the protester himself decided not to do X.

Posted by: Orin Kerr | Nov 16, 2016 3:59:18 PM

@Orin Your argument isn't ridiculous, but you are conflating "voting for Clinton" and "not voting for Trump," which are two distinct things. There's less tension if you frame it properly, as "people who didn't vote for Clinton are protesting people who voted for Trump."

Posted by: Andrew | Nov 16, 2016 11:52:42 PM

Andrew, I'm glad I passed your "not ridiculous" threshold. That's at least something! With that said, I think Howard's post is about protesters who didn't vote at all. That's how the first paragraph in particular reads, at least to me.

Posted by: Orin Kerr | Nov 17, 2016 12:26:29 AM

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