« Academic Freedom in NYU-Shanghai versus NYU-NYC | Main | Hurricane Matthew and the Election »

Thursday, October 06, 2016

Cities as "Test Tubes of Democracy" for the Right to Vote

Over eighty years ago, Justice Louis Brandeis famously referred to states as “laboratories of democracy” that can experiment with different laws to see what works best. “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As I show in a new article (abstract after the jump), if states are laboratories of democracy, then cities and towns can be "test tubes of democracy" that can and should experiment with election law rules on an even smaller scale.  (Side note: my twitter handle is @JoshuaADouglas. Can we figure out a way to make #TestTubesofDemocracy start trending?!)

Local experimentation on the right to vote is already occurring around the country.  Cities and towns have expanded voting rights for 16- and 17-year-olds, noncitizens, and nonresident property owners (e.g., in vacation towns).  That is, cities have expanded the electorate for their own elections.  

This November, San Francisco voters will decide on whether to lower the voting age to 16 for all city elections and allow noncitizens to vote in school board elections.  At first I was skeptical when I began looking into these local laws, especially on the merits of lowering the voting age to 16.  But the more I researched -- particularly studies on cognitive development -- the more convinced I became that it is a good idea.  Later this month I'll spend some more time on the policy merits of lowering the voting age.  Here, I want to focus on where this is occurring: at the local level.

Most people think of the right to vote as a federal constitutional right, or perhaps a right derived from state constitutions.  But focusing on these two sources leaves out an important level of inquiry: local laws.  A complete understanding of the right to vote requires three levels of analysis: federal constitutional law (and statutes), state constitutional law (and statutes), and local laws for local elections.

The common understanding of the right to vote is that it enjoys protection under the U.S. Constitution, specifically within the Equal Protection Clause.  But as I have discussed in previous research, the Supreme Court has unduly cabined the federal constitutional protection of the right to vote.  Indeed, the Court has said that the U.S. Constitution does not confer the right to vote to anyone.  All that the Constitution requires is that once a state grants the right to vote, it must treat everyone equally.

State constitutions, however, explicitly confer the right to vote.  In fact, 49 of the 50 state constitutions have specific language that goes beyond the U.S. Constitution in explicitly granting and protecting voting rights (Arizona is the only exception, but its courts have ruled that other language in the state constitution protects the right to vote).  In the wake of restrictive federal court jurisprudence, litigants have turned to state constitutions.  This strategy has seen some successes; for example, in recent years at least 3 state courts have invalidated voter ID laws under state constitutions.

But federal and state constitutions do not tell the whole story.  Municipalities have expanded the electorate for their own elections.  In essence, cities and towns have adopted a broad theory of their own local democracy to include additional voters, such as younger people or noncitizens.  To understand fully the right to vote, then, we need to include a discussion of these local laws.

We should encourage local experimentation on the right to vote.  Ours is a history of continued expansion of voting rights.  From a normative perspective, democratic representation is enhanced with greater participation of those who are cognitively capable and have a genuine and actual stake in the outcome.  Local expansions of the right to vote adhere to a notion of localized federalism.  People are closest to their local representatives and local democracy.  Further, municipal laws are easier to enact than state or federal laws, so novel local experimentation is a lot more likely to pass.  And if it shown to "work" in one courageous city, then local laws can have a "trickle across" effect to other cities and eventually may "trickle up" to state policy.  Thus, broader movements on expanded voting rights can start at the local level, with local successes serving as catalysts for more widespread reforms.

I explore all of these issues in a forthcoming article, The Right to Vote Under Local Law.  The abstract is below.  I'll turn to some additional findings from this article in future posts -- including a policy defense of lowering the voting age!  The takeaway for now is that localities can, and should, serve as test tubes of democracy for election law.

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local right to vote — completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.

Posted by Josh Douglas on October 6, 2016 at 09:23 AM in Article Spotlight, Law and Politics | Permalink


Shouldn't courts decide whether to "defer" to a law based on whether it runs afoul of a constitution, and not based on whether a law conforms to someone's "ideal of inclusion?"

This is a law professor's blog. The constitution is an excuse, not a controlling authority.

Posted by: Art Deco | Oct 10, 2016 10:45:23 AM

I am a little puzzled by this sentence:
"Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion."
Shouldn't courts decide whether to "defer" to a law based on whether it runs afoul of a constitution, and not based on whether a law conforms to someone's "ideal of inclusion?"

Posted by: biff | Oct 9, 2016 12:11:03 AM

All of this is a transparent attempt by partisan Democrats to pad their electorate as well as to promote their rancid conceptions of social status.

Youths of 16 are seldom self-supporting. Assess a payroll tax of 0.1% of wages and issue registration cards to those between their 17th and 25th birthdays who pay more than $18 a year in such taxes (which would enfranchise Army privates), a value to be adjusted annually according to the annual change in mean compensation per worker. Enfranchise the citizen population generally at age 25. As for aliens, they're aliens. If they wish to participate in civic life, they can seek naturalization. As for felons, the franchise is about the last thing most of them are interested in; if they'd like it, they can finish their bloody parole and apply to have the franchise restored to them. It's not too much to ask of someone who committed a breach of the law serious enough that they could not plea bargain to a misdemeanor charge.

We have real problems with this in this country - poor ballot security from pointless introduction of electronic technologies, postal ballots for people who are perfectly capable of hauling their tuchus to the polling station (damaging ballot security), poor ballot security from failure to require the presentation of identification and the failure to place indelible ink on voters, the universal use of first-past-the-post, a hopelessly jumbled electoral calendar, 19th century relics e.g. holding elections on Tuesday (the old market day) rather than Saturday, 19th century Jacksonian relics like having competitive elections for county clerk, wretched gerrymandering - made worse by the hostile takeover of the re-districting process by judges and their insistence on racial gerrymandering and pointless precision in equipopulousness, pointless pro forma general elections in non-competitive constituencies when we could institute ordinal-balloting and jungle primaries in such constituencies. Aside from that, the autonomy of local government is hopelessly compromised by conditionality in state aid and by the officious interference of the judiciary.

There is so much to tackle. A focus on twee nonsense like voting rights for late adolescents working off their hangovers, aliens, and criminals borders on the obscene.

Posted by: Art Deco | Oct 6, 2016 10:51:08 AM

The comments to this entry are closed.