Throughout Election Law and Democratic Theory, the author is a meticulous guide--in true professorial manner. It's impossible to get lost, quite easy to become riveted. The book includes illuminating discussions of Madisonian democracy and its successor, pluralism. It makes frequent reference to Supreme Court decisions, providing relevant milestones they relate to and important quotations from them. Allusion to and expansion upon milestones in American history remind, educate, and illuminate our perspectives on where we are now in our history and why, all through the lens of democratic theory and what should be its offshoot, election law.
Discussions shock with erudition--how well thought out the author is, how deeply he has explored the many attempts at defining democracy. Questions are answered, when they can be and, when they can't be, the author is honest and assigns them to future research: the field of election law is young and the enormous contribution he has initiated is nascent.
Democracy is, most basically, since very ancient Greece, "rule by the people"--demos (people) and kratos (rule) What this has come to mean to scholars who form a long tradition of interpretive analysis is most informative even as it leads us in many directions: "some sort of equality"; "individual moral autonomy"; "self-rule"; sovereignty of the people; "personal autonomy or liberty of some fashion is required"; "equality and equal voice and the personal liberty to act on that voice"; "effective participation," which can mean "the importance of education as critical to self-government"; and thus "self-interest rightly understood"; "no one is the final imprimatur of truth"; "the people get to decide what will be decided" [not just some of them but all?]; "power belongs to the people."
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After reminding readers that the Constitution nowhere grants the right to vote to the demos, the author calls voter ID laws "part of the second great wave of disenfranchisement in the United States," the first, of course, being the racist, severe limitations extant during the Jim Crow era, which lasted nearly 100 years and has arguably rematerialized in twenty-first-century clothing since 2008, when voter ID was deemed Constitutional by the Supreme Court in the case Crawford v Marion County (Indiana).
Given that representation was a bone of contention that helped set off the American Revolution in that colonists objected to the "virtual representation" afforded them in Parliament by British MPs, the author wonders why voting was not at the forefront of the framers' thoughts, who instead left this prerogative to the states and to Congress. A uniform, federally regulated system would have made a huge difference in subsequent voting history, but that is another story. In his email of August 23, quoted above, the author himself speaks out in favor of uniformity.
In Election Law and Democratic Theory is the startling observation that most of the language concerning voting in the Bill of Rights is negative, like five of the Ten Commandments: rights shall not be denied on account of x, y, or z, is the phrasing more or less.
The voting rate here is much lower than in many of the other democratic countries; but the Supreme Court has affirmed that there is a right to vote in this country: "voting is a highly protected privilege."
In a chapter devoted to voting rights, the author sees two traditions: one that "affirms and expands" the franchise, while a countervailing one shrinks it. One can be a citizen of this country and still be barred from voting, even though adult--felons, minors close to age 18, women (until less than 100 years ago), those who are mentally impaired beyond the ability to make rational decisions, for example, and those who are otherwise crippled by society (more on this below).
Ironically enough, during the Jim Crow era, the Supreme Court officially issued an opinion that the right to "choose" . . . [here qualifications appear] "is a right established and guaranteed by the Constitution" (United States v Classic, 1941). Subsequent Court decisions ruled the one person, one vote "for the purposes of reapportionment" principle (Reynolds v Sims, 1964), also affirming that the Constitution "protects the right to vote in federal elections"--"voting is a fundamental right because preservative of all rights."
The author meticulously enumerates all Court decisions that specify the right to vote--two cases compare it with the right to procreation--and there are many, but other decisions create confusion. For instance, "states have the right to regulate their own elections" and "not all regulations need to be subject to strict scrutiny simply because they impose some burdens on voters"! (Burdick v Takushi, 1992)--the issue was Hawaii's ban on write-in voting.
Detailed legalities figure in, which are fascinating to this EI affiliate, but the upshot struck a significant blow to the voting rights of underprivileged minorities--there was no clear standard to apply in evaluating whether a restriction on a voter right was "reasonable" or "severe" (Burdick again).
Ironically, today's profile of the typical voter, an educated, white property-owner (more often female than male, though), is not so far removed from the prototype of the late-eighteenth-century American voter: white, male, over 21, propertied, well educated, of moderate rather than extremist political tendencies.
A further excruciating point is that neither absentee voting, whether with or without the excuse requirement, and early voting are not Constitutional rights; they are privileges, as articulated in the SCOTUS trial Coleman v Franken in 2009. The southern White Primaries into the 1940s excluded people of color from participation, though they were the politically decisive occasions in such a one-party region. States that hold caucuses instead of primaries should allow and publicize absentee voting as a right, since so many are prevented from voting because of work or other obligations or disabilities. Disenfranchisement occurs also in most states for felons even when they have served their prison terms. Schultz's reaction is that if they retain other Constitutional rights, including due process and freedom of religion, why should they lose the most fundamental of them all, voting, unless they have committed voter fraud?
Moreover, to this author and many others, Internet voting (IV) is just around the corner, despite dire objections from many hugely qualified experts with concrete, documented proof of its shortcomings. Think about it: the same thing happened with e-voting, but its constitutionality was never questioned. Its infinite fallibilities were concretely proven any number of times. But IV companies exist and are doing business already; Switzerland and Estonia were the pioneers; IV is spreading in the former; in the latter IV is done by some of the citizens, despite experts having visited the latter country and discovered severe security flaws in its system.
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