We recently discussed the notion that the failure of registered voters to vote results in disproportionate representation, particularly of minorities, in government.  Democrats have been harping on this, trying to find ways to increase voter turnout; President Obama himself has said publicly that if everyone voted the face of the government would change significantly.  Sometimes there are legitimate concerns about systems which are rife for fraud--in the early 1980s Robert Orben quipped that a certain election in Chicago was still too close to call, with three cemeteries not yet reporting; a recent effort to increase voter response by mailing ballots to the homes of voters was plagued with ballots stolen and returned by supporters of the issue.

Pennsylvania State Senator Anthony Williams (yes, a Democrat) wants to do something about it, by making voting compulsory, such that if you do not vote you will be ticketed and fined.  Supporters of the idea cite Australia, where voting is required by law; opponents assert that it is an unfair impingement on our freedom, that we are free to vote, but we are also free not to vote if we so choose.

We here have said before that not everyone should vote.  Universal suffrage is certainly a good thing, but universal participation might not be.  The comedian Gallagher once said that one in four people is an idiot, and it is idiomatic that half the population is below average intelligence, half is below average education, and half must be below average on wisdom, ethics, political savvy, and any other quality that makes an astute participant in the political process.  Presumably these are not all the same half, but some voters have absolutely nothing to enable them to assess the best candidates or the best policies.  Should we really demand that people who have no idea about politics or government must vote?  We would not, I think, want all our five-year-olds to vote; do we want to demand that adults with no more sense than a five-year-old do so?

It is also inconsistent with democracy, in a significant way.  In our recent discussion of fixing the Supreme Court, we noted that Justices have the ability, and we presume the sense, to recuse themselves when they are not certain they can be unbiased about a case.  Certainly the point of the democratic process is in a sense so that everyone's biases can be included--but we expect them to be everyone's educated opinions.  In the early days of the nation we had poll taxes and property requirements and literacy tests, because we believed that only people capable of forming an informed opinion about the candidates ought to be permitted to select them.  Those requirements have been eliminated because they were flawed--not because the objective was flawed, but because the means of achieving it was so easily manipulated by those in power to exclude the disadvantaged.  If I read a ballot question and have no notion what it means, or am asked to choose between two candidates for Sheriff or Board of Education about whom I know absolutely nothing, is it really better for me to choose one based on some irrelevant detail, such as that I like the name, or he has the right party affiliation, or he is the right color or gender, than to admit that my opinion is completely unfounded and should not be counted in the choice?

Certainly more people should vote--but then, many who do vote probably should not.  Those who go to the polls and vote for the party they were taught to support, whether by their parents or their teachers or their neighbors or their entertainers or preachers or anyone else, without understanding anything about the policies they are supporting, are doing themselves and the country a disservice.  Certainly more people should vote, but these should be people who have taken the time to examine and understand the issues, not people who have to push one button or the other to avoid being fined for breaking a law.

In fact, the push to force people to vote seems at the bottom to be about increasing the number of sheep who can be driven to the polls to support mindlessly the party favored by their demographic.  Getting mindless unthinking people to push the button they are told to push probably would change the face of American government, but it would certainly have little to do with giving us better representation.  If you want people to vote, the right way to do it is to educate them on the issues and get them to care about the outcomes, not to threaten them with punishment for not jumping through the right hoops.

It is important in any discussion of voting rights to remember that we do not live in a democracy; we live in a democratic representational republic.  You do not get to vote on law or policy; you get to vote to pick the people who do that, and even then it is only some of them.  A great majority of the kind of law we call "regulation" and nearly all judicial law, particularly at the federal level, is decided by people for (or against) whom you did not have the opportunity to vote, but who were appointed by those for (or against) whom you voted.  You do not even vote for the President of the United States--you vote for the Electors in the Electoral College who pick him.  The Constitution did not give citizens the right to vote for United States Senators until amended in 1913 (Amendment XVII); they were previously appointed by a means determined by each state, and many states gave this power to the elected members of state legislatures.  This is important to grasp as background to the present discussion.

The Supreme Court has promulgated the concept of "one person, one vote", which seems simple enough:  it means that in any election, everyone's vote should have equal weight in all decisions.  The obvious application is that we do not give three votes to each black person, four to each white person, two to naturalized citizens, an extra vote to every woman--everyone votes once, even in Chicago.

The problem is, who is "everyone"?  My grandaughter does not vote; we exclude people under a specified age.  Most states also exclude some category of criminals--in New Jersey the exclusion covers everyone in prison or on parole or probation, but some states exclude anyone ever convicted of a felony.  We do not permit legally resident aliens to vote; they are not citizens.  So "one person, one vote" obviously does not mean exactly that.  This, though, is the simple part, and if we are electing the local mayor everyone who is eligible to vote gets one vote, and chooses whether or not to use it, and we count all the votes actually cast to get our winner.

There are, however, more complicated cases, and the Supreme Court has agreed to address one.  It concerns what is called redistricting.  You get to vote for state and federal legislators representing your district--in New Jersey we have twelve members of the United States House of Representatives, and each represents the people in a particular geographical area; it happens that six are Democrats and the other six Republicans.  We have similar districts for the members of our own State legislatures.  As population shifts--more births in one area and deaths in another, urban flight, rural collapse, whatever reason--we are legally required to "redraw the lines", equalizing the districts so that the "one person, one vote" standard continues to be met on this larger scale.  That scale is, your vote should have exactly as much weight in the makeup of each legislative body as the votes of those in the next district.  That means if there are a thousand voters in your district to choose one of the twelve members of that group, there must be a thousand, or near enough as to be of no practical difference, voters in every other district which chooses such a member.  Redistricting, though, is highly political in nearly ever case.  After all, if I have an area from which I have to make three districts and it is half Republican and half Democratic, I might be able to make one district one hundred percent Democratic and the other two two-thirds Republican, giving me two Republican representatives and one Democrat, a two-to-one advantage, representing a group that is evenly split.  Of course, in that case one side or the other has to have the extra representative; but it is frequently possible to redistrict in ways that are less equitable, such as getting three Democrats and one Republican from four districts that are three-quarters Republican by putting most of the Republicans in one district and making them the minority in the other three.  Thus redistricting plans advanced by partisan legislatures are almost always challenged in the courts on the grounds that they are intentionally unfair; and such challenges sometimes, but not often, win.

In the present case, though, the issue comes back to that question of who is "everyone".  Do we count "everyone", or do we not count the children, the legal immigrant aliens, the felons who have lost their right to vote?  What about the illegal aliens who live in an area but cannot vote?  What about those who legally could vote but who are not registered and have no desire or intent to vote?  This unbalances the power, regardless of how we decide it; and the way it is balanced might be significant.

When we say one person, one vote, who are we counting?

In the present case from Texas, Evenwel v. Abbott, one side is arguing that districts should be sized according to the number of registered voters they contain.  There is a prima facie logic to this.  After all, if this area has a thousand people eligible to vote and another thousand (e.g., children, resident aliens, felons) not eligible, and the other area has a thousand people eligible to vote and nine thousand illegal aliens, if we make each area its own district there are a thousand voters in each area, and each voter has the same impact on the selection of the members of the legislature.  Based on strict population, though, the area with the heavy "undocumented immigrant" population has five times as many people, would get five times as many seats in the legislature, and each registered voter in that district would wield five times as much power in selecting the members of the legislature as the members in the other district.  The plaintiffs in this case claim that this is patently unfair, and that redistricting should not be based on the number of people who happen to reside in an area but on the number of them who are eligible to vote, because otherwise a large number of people (the members of the first district) are having their votes devalued by the presence of a larger number of people (in the second district) who should not matter to the makeup of the legislature.  They do not vote for a reason; that reason is they have no legal say in government.  They, the plaintiffs argue, should not be counted.

I hope that argument is clear, and it is cogent.  If we in a small community club agreed to settle matters by vote, but then someone said that because he had twelve children he should get more votes than everyone else, we would in the main object (unless either we were that person or we believed that person would vote as we want).  That is all the plaintiffs are asking:  the guy with the big family does not get more votes than the rest of us, and redistricting should only count the people who can vote.  It is relevant in this regard that Constitutional Amendment XIV §2 states that any citizen deprived of the right to vote in a state because of a criminal conviction is not counted in the voting population of the state for purposes of the election of the President, so at least in 1868 it was thought that only those qualified to vote should count.

Yet the case may not be so simple as that, because there might be sense to giving extra votes to the areas that have more people, even if they do not have more voters.

Some years back someone proposed that parents of underaged children should get an extra fraction of a vote for each such child.  The argument was that those children's interests are represented by their parents' votes, and on the assumption that the parents will vote the best interests of their families their votes ought to be weighted to include those non-voting family members.  Of course, that is not likely to win much support; but there is a sense in which giving districts in which a lot of children are part of the count the same representation as districts with a smaller proportion of children is empowering the votes of the parents.  We might make a similar argument in favor of extra representation in districts with high numbers of resident aliens, that these are often family or friends of immigrant citizens who do vote, and so their interests are represented by those votes (the reason why immigration is such a key issue among Hispanic voters who, obviously, have already obtained citizenship).  To some degree, people who cannot vote are represented in the votes of their families, friends, and neighbors who can, and counting total residents, not total voters, gives that power to those who in some sense represent non-voting residents.  There might be merit to that.  In fact, as originally ratified, the Constitution of the United States counted all non-free permanent residents of a state as three fifths of a person each for the purpose of apportioning that state's representation in the House of Representatives, so there is an "originalist" argument for providing some level of representation for persons who do not vote:  slave owners received a de facto bonus to their voting power by virtue of the presence of the slaves whose interests they were presumed (rightly or wrongly) to represent.

On the other hand, who should count?  There are parts of these United States where the population is inflated by the presence of illegals, and a good argument can be made that the presence of people who are not legally entitled to be here should not empower anyone conspiratorially harboring them.  The census bureau does not always know which people are illegal--even though the law states that responses to census forms cannot be used for law enforcement purposes, illegal aliens and their friends do not trust that they will be kept as safe if they reveal that they are present illegally.  We might know roughly how many non-citizens live in town, but it is much more difficult to know how many are present lawfully.  If we do not want to empower illegals by giving their protectors extra voting power, we need to find a way not to count them for redistricting purposes.

The slavery issue, too, has implications here:  just because a district contains a large number of persons not eligible to vote does not mean that voters in the district will appropriately represent their interests, even if we decided that those interests ought to be represented.  Many of those slaves would have voted to support emancipation; not many of their voting owners would have represented that interest at the polls.

Thus there are three possible answers.  The simplest is that only registered voters count in the populations for redistricting, that one person, one vote, means one voter, one vote.  The second faces some serious legal ramifications, that the district populations count everyone including those who are present illegally and those who are forbidden to vote for other legal reasons (in contradiction to the XIVth Amendment), giving extra representation to those in the district who can vote and so providing representation by proxy to those who do not have it--even if they should not have it.  The third is to find a way to determine which non-voting residents ought to be represented in the votes of others, and that would be a much more complicated question than the Court is likely to want to answer.