CHAPTER 9

THE RIGHT TO VOTE

Let's return to a basic concept of representative democracy. People elect representatives, some of them as locally as possible, who will speak for their interests as the legislature negotiates the delicate matter of the personal sacrifices citizens will be required to make (indeed, by the police powers of the state) for the common welfare.

These sacrifices are considerable. The most obvious is taxes (at least, with representation) and today that means income taxes and the omnipresent IRS. Some, in the past, were deadly: male-only conscription it turns out, to enforce a questionable foreign policy, not to defend women and children (and other men) at home. Some insult the psyche and possibly personal safety, such as gun control. (I have to admit that for another man the right to bear arms to defend his family may be as important as mine to write this book!) Some protect the environment for future generations, such as regulations against product contents and automobile gasoline mileage (and maybe, in the future, rationing). Some, like zoning, protect property values. Some protect public health and what some people see as "basic decency" these are the laws against drug abuse, certain sex acts, adultery, and the like. Underneath all of this is a rubric or soulcraft of psychological motivation - to put family and community (and special protection of the young) on a par with the self. Sometimes we lose sight of these publicly defined obligations and view democracy as a way of establishing underfunded entitlements and "social rights."

If we accept the notion that government must still do all these things, then the right to vote (however derived) indeed becomes as fundamental as anything else. The current emphasis is on making government as local and immediate as possible, down to the township or condominium homeowners' association. As a corollary, running for office and winning elections, starting with local one, is seen as an epitome of good citizenship and expressive participation. Of course, if you take this approach, you have to address the peculiar local issues your voters care about, not the lofty, global ones I talk about in this booklet.

Government, even in this country, has not always been so representative. This is one reason we have the notion of "checks and balances," between branches of government.

We have anomalies that certainly distort the weighting of votes in our system, though not as negatively as many people believe. The most obvious is the Electoral College in presidential elections. Actually, the Electoral College at one time allowed each elector to cast two votes for president. Another is the fact that since each state gets two senators, voters in smaller states have more "power." At one time only landowners could vote at all, and state legislatures elected the Senate (how's that for property rights?) We even counted slaves at 60% in deciding population of districts for the House.

Some commentators have noted that the "inequities" built into our voting methods by the framers of our Constitution may have provided a subtle safety valve to protect individual liberties. There may have been a healthful tendency for officials who are closer to the issues and less directly influenced by superficial voter sentiment to have more weight in actual policy making. There would be a smaller tendency for the judiciary to allow government (particularly federal government) to exceed its explicitly stated constitutional powers.

The original Constitution says very little about a "right to vote," other than tying eligibility to vote in a federal election to eligibility to vote for the largest house of legislature in one's state of residence. Various amendments (14th, 15th, 19th, 26th) have come to imply a social "right to vote" by confining the way states can qualify voters. We have not always been generous in deciding who can get to the ballot box. Women did not gain the right to vote until 1920, and blacks were effectively kept away by poll taxes until the civil rights activism of the 1960's (culminating in Johnson's Voting Rights Act of 1965), even though they had owned the legal right to vote since Reconstruction. For special government zones, such as the District of Columbia and various territories, there are still political controversies about proper representation (given taxation).

Today, under putative "majority rule," our legislative processes contain distortions that further corrupt the notions of representative democracy. The worst of these is the practice of attaching irrelevant riders to legislation as part of the political pork process. The 1993 enclosure on homosexuals in the military to the Defense Appropriations Bill was such an example. The Senate is more prone to introduce such abuses than is the House, which has a germaneness rule. A line item veto, such as one recently declared as an unconstitutional breach of separation of powers by the Supreme Court, might limit such abuses. For example, the possibility of a line item veto could have been useful to President Clinton in 1993 in trying to lift the ban against gays in the military.

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But can we improve the "democracy" of election processes? Scholars such as Doug Amy and Lani Guanier propose proportional representation as a substitute for "winner take all" voting systems. In most city and county elections, electoral districts would be much larger, and second and third-place finishers, even from third parties, would obtain seats. There are several specific systems, such as "party list," mixed member, and preference vote. The psychological result of such practices might be to enrich debate. Politicians would have less incentive to over-simplify and distort otherwise emotional issues. Therefore, it could be said that proportional representation systems promote free speech. (I recall, while doing door-knocking for a local election in Minneapolis, being cautioned not to "talk too much" that's not good salesmanship!)

There are other reforms, too. One is the instant runoff, a practice which would counter the tendency for voters not to "waste" a vote on a third-party candidate who has little chance of winning in conventional elections. The Reform Party naturally contends that Ross Perot would have won the 1992 general election for president under such a system.

Maybe the most important reform would be ballot-access legislation, to make it easier for minority-party candidates to get on ballots in the first place. In many states, minority party activists must conduct aggressive petitioning "call to arms" campaigns, tailgating strangers (and sometimes annoying them) at public events for signatures (although some activists see this practice as part of the salesmanship that politics requires even with a bit of spit-and-polish or self-effacement that leads to amusing demonstrations of absolute party loyalty). We should outlaw gerrymandering, which allows conservative politicians to "segregate" blacks into pawn-sacrifice districts so that they can take everything else.

Libertarians generally favor term limits, on the grounds that no one should make a career of governing others (in Minneapolis we have DFL [Democrat-Farm-Labor] city council members arrogantly describing themselves in debates as "government" people) and become subject to special interests. Yet, libertarianism would also encourage the use of one's own resources in pursuing office.

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The most direct democracy is, of course, direct initiative and referendum. Of course, it is the most dangerous. In 1992, an initiative was presented to have Oregon voters declare homosexuality "morally wrong" even though Oregon does not have a sodomy law. It was turned down, rather narrowly. But referendums have passed other negative ballots, such as Colorado's Amendment 2 (eventually overturned by the Supreme Court in Romer v. Evans [1996]) and Cincinnati's Initiative 3 (turned down for review by the Supreme Court in 1998 on technical grounds), all supposedly to stop politicians from giving gays their "special rights." After all, affirmative action has repeatedly set a bad example.

All of this leads us back to the slogan, "tyranny of the majority." Modern liberalism insists that majorities cannot be trusted with certain sensitive areas such as discrimination against minorities, whether biological or "behavioral." The court system is needed, they say, to somewhat loosely interpret the Constitution and existing Bill of Rights to protect minorities or the otherwise disadvantaged. (In some states, like Texas, the direct election of judges may indeed undermine the impartiality of the state court system.) Libertarianism has become distrustful of representative democracy, since it can justify "public" aggressiveness to invade one person's rights for the benefit of a supposedly deserving other. Often the use of force against persons is overlooked because of the facile rhetorical equivalence between people and the government they elect. It can be difficult to delineate the functions of elected government in such a way that involuntary "shared" sacrifices are not forced upon sovereign persons. Instead, the faithful recognition of property rights in a truly free market is held to better protect individual rights (including the rights of individual minority members) in the long run.