Category: Civil Rights

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Just How Young Should Voters Be? Part IV: Assessing Adolescents’ Electoral Competence

Citizenship and suffrage go hand in hand. This series of posts, drawing on a recently-published  article,  considers the age-based exclusion of citizens younger than 18. A growing number of countries, as I noted in my first post, have lowered their voting ages to 16 or are considering doing so. The United States should be among those democracies reassessing the electoral exclusion of at least some cohort of its younger citizens.

Electoral standards have long required both (1) ongoing community connection and interest, and (2) vote decision-making competence. Individuals lacking either of these characteristics (or more precisely, the indicia of them reflected in specific voter qualification rules) are commonly disqualified from voting. Thus, voter qualification rules that require citizenship, residency, and law-abidingness presumably ensure that voters meet the first standard — community connection and interest. The young meet that standard. They are members of the political community, with significant interest in and ongoing connections to it. It is only their failure to meet the second standard — vote decision-making competence — that can justify their exclusion.

What Constitutes Vote Decision-Making Competence [Redux]? 

The state excludes citizens younger than 18 from the electorate because they have presumably not yet attained vote decision-making competence, but missing from this justification of their exclusion is a conception of that competence. Some conception of electoral competence — the basic capacities required for voting — is required before the state can credibly assess its attainment, or identify its absence. Age-based line drawing with respect to the development-related attainment of electoral competence is a practical necessity. The state owes its citizens its best effort (some effort) to first ascertain a principled yet pragmatic conception of electoral competence, then to assess young people’s attainment of it, and finally to draw the voting-age line in a manner consistent with that assessment. Otherwise, the state cannot meet its burden of justifying electoral exclusion.

What constitutes vote decision-making competence? Based on empirical studies of voter decision making, incorporating factual knowledge (of civics, politics, etc.) into a standard of electoral competence risks disfranchising much of the current electorate, and it is also unnecessary to ensuring correct vote decisions (those a voter would have made under conditions of full information, given the voter’s subjective values). I thus argued in my second post for a cognitive-process-driven conception of electoral competence. It requires “adultlike” rather than “mature” reasoning processes, because there is no universal state of maturity attained by all, or even most, adults. Requiring “mature” reasoning, like requiring factual knowledge, risks disfranchising many current voters.

I thus propose a conception of electoral competence in which a minimally competent voting decision involves an adultlike application and coordination of various reasoning processes to make a choice that could be justified by a good-enough reason.

The Development-Related Attainment of Vote Decision-Making Competence

Cognitive capacity improves more or less linearly throughout childhood and reaches adultlike levels by midadolescence. By age 15 or 16, adolescents are as able as adults to acquire, retain, and retrieve relevant information and apply to it reasoning processes that lead to justifiable conclusions. Researchers have consistently found the logical reasoning and information-processing abilities of 16-year-olds to be essentially indistinguishable from those of adults. According to developmental psychologist David Moshman, “[n]o theorist or researcher has ever identified a form or level of thinking routine among adults that is rarely seen in adolescence.”

But while they have adultlike abilities to think and reach rational judgments, adolescents’ capacities are more susceptible than are adults’ to being confounded by the real-world contexts in which they make decisions. When they must make decisions quickly or under pressure, or when they are highly emotional or stressed, adolescents’ performance suffers. In contexts in which adolescents are likely to make poor decisions — especially when their decisions will have negative externalities — the state properly constrains their decision-making liberty.

[For an elaboration of the context-specific nature of adolescent decision making, see here. For a discussion of neurologically-based models that have the potential to explain adolescents’ poor decision making despite their mature cognitive abilities, as well as other aspects of adolescent psychology and behavior, see here.]

Elections are a decision-making domain in which adolescents’ cognitive-processing abilities would almost certainly remain uncompromised. Elections unfold over a period of time, giving voters the opportunity to deliberate and evaluate options without undue pressure. Many sources of information are readily available (televised debates, party affiliations, etc.), which serve as scaffolding or heuristics to help votes evaluate their choices. And voting itself is done anonymously and in private, which diminishes the concern that adolescents’ ultimate choices will be unduly pressured or dictated by their peers or others. (Ken A., in a comment to my previous post, mentioned the potentially undue influence of parents, but the intergenerational transfer of party affiliation seems to be a well-established fact of political life.)

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Just How Young Should Voters Be? Part III: Why We Need a Conception of Electoral Competence, and Its Implications for Adults with Cognitive Impairments

Professor Joey Fishkin raised several important questions in his comment to my previous post. I’d initially planned to set out a pretty streamlined version of my argument for lowering the voting age, but I think his questions merit a bit of a detour/elaboration.

Do We Really Want to Reintroduce Notions of Electoral Competence? Fishkin suggests that introducing a conception of electoral competence is potentially fraught. And he’s right–political elite have historically, and notoriously, invoked the supposed incompetence of various groups to justify their categorical disfranchisement. But competence as a basic criterion for voting has been a constant. Indeed, some notion of it is what justifies voting-age requirements. Only young people’s want of the relevant competence (however that competence is defined/conceptualized) can render legitimate their electoral exclusion.

There can be little dispute that newborns lack the relevant competence, or that individuals typically acquire it at some point over the course of their development. Development and age predictably correlate. There is thus a temporal element to the attainment of electoral competence, making age arguably the most reasonable proxy for it.

Competence-based arguments did not drive the nation to lower the voting age from 21 to 18; Congress’s lowering of the draft age did (see what is probably the most comprehensive history of the passage of the 26th Am., lowering the voting age: Wendell Cultice, Youth’s Battle for the Ballot). Is age 18 the most reliable indicator of electoral competence that we can identify today? To decide, I think we need to answer two questions: First, what is the most appropriate conception of electoral decision-making competence (discussed in my last post)? And second, is it possible to identify an age or age range by which that competence has reliably developed (next post)?

Does the Conception of Electoral Competence I Suggest Risk Disfranchising Segments of the Adult Population? Fishkin suggests that it could, but I don’t think so. I don’t propose that individual would-be voters would have to demonstrate that they meet this standard in order to qualify to vote. I concede the practicality of age as proxy for electoral competence. I advance a conception of competence to guide a reevaluation of our current age-proxy and, if appropriate, establish a better, more empirically-grounded and principled one. We would assess the age or age range by which typical individuals reliably develop electoral decision-making competence. Individuals who attain the age of presumptive competence (just as they do today) would automatically gain the franchise.

The standard for electoral competence I argue for requires certain thinking/reasoning capacities (these attend normal individual development, which may be improved by, but does not require, specific levels or types of learning). Some individuals may meet this standard prior to attaining the presumptive age of competence; some will reach the presumptive age of competence (and gain the franchise) without having attained the typical capacities  Such slippage is the nature of proxies.

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Just How Youthful Should Voters Be? Part II: Defining Electoral Decision-Making Competence

This is the second of three (or so) posts on the youth vote and the voting age. In a post last week, I suggested that the United States should join other democracies reevaluating their ages of electoral majority.

In this post, I argue that deciding whether a group of individuals is competent to vote first requires a conception of what constitutes electoral competence, and I offer such a conception. My next post will examine whether such competence is reliably achieved earlier than age 18.

Basic Voting Criteria: Connection/Interest and Competence. Basic voting criteria have remained essentially unchanged across the centuries and generally require for electoral inclusion  (1) a significant and ongoing interest in and connection to the community; and (2) vote decision-making competence. (Few democracy theorists, though, have sought to justify these intuitively-correct criteria. I attempt to do so here, pp. 1484-90.) But while the basic criteria have remained unchanged, notions of reliable indicia of them–reflected in specific voter qualification rules–have changed significantly.

Historically, property ownership was a voter qualification rule believed necessary to ensure a potential voter’s ongoing community connection and interest. Today, citizenship, residence, and law-abidingness qualifications all seek to ensure the same criteria (ongoing connection and interest). And historically, the intellectual independence required for electoral decision-making competence was deemed impossible in the absence of economic independence, since dependent voters might be unwilling to vote in a way that displeased those to whom they were economically beholden. Today, different voter qualification rules aim to ensure that voters possess electoral decision-making competence. State rules allow, for example, the disfranchisement of adults deemed mentally incompetent. The primary voter qualification rule aimed at ensuring that voters have developed the requisite competence, however, is the voting age.

Indicia of Competence: Political/Civics Knowledge? Rousseau believed that a well-informed citizenry was necessary to determine and implement the public good, and many modern theorists agree that informed and watchful citizens help ensure a responsive, accountable government. Yet the typical citizen, it is safe to say, is far removed from the ideal citizen of classic democratic theory.

Studies consistently find that public ignorance is widespread and extends to knowledge of basic civics and government. Mark Blumenthal, senior polling editor of the Huffington Post and founder of Pollster.com glumly wrote, “[one] can almost never underestimate the level of information about politics and government possessed by the voters who typically decide the outcome of elections.”

Incorporating even basic levels of civics or political knowledge into a conception of electoral competence theoretically justifies voter qualification rules that would operate to disfranchise a significant proportion of the current electorate. Moreover, rates of disfranchisement would be unequally distributed across the population based on differences in knowledge among various groups that have held steady over time: more women would be disfranchised than men; more African Americans than whites; more low-income earners than high-income earners; and more people under 30 than those 65 and older. Formal requirements aimed at ensuring well-informed voting would likely result in a better-informed electorate, but also a less representative and democratic one.

The Ill-Informed–Yet Competent-Enough–Voter. In lieu of incurring the costs of educating themselves, voters generally rely on more readily available information shortcuts (or heuristics), which substitute for more complete information. These can include party affiliation, group endorsements, or person stereotypes such as gender, race, or age. Heuristics allow voters (indeed, decision makers in innumerable contexts) to make decisions reasonably consistent with their preferences while expending relatively little effort. Empirical political scientists Richard Lau and David Redlawsk have extensively researched voter decision making and the effectiveness of heuristic use and found that their “limited information decision strategies not only may perform as well as, but in many instances may perform better than, traditional rational . . . decision strategies.” (For a detailed explanation of their findings, see the previous link at pp. 212-26; See also here, reporting studies finding that greater amounts of preexisting knowledge can in some instances hinder rational analysis of new facts.)

Lau and Redlawsk have found that the typical voter generally reaches a rational and “correct” voting decision (defined as one that is the same as the choice that the voter would have made under conditions of full information, given the voter’s subjective beliefs and values) by acquiring and processing smaller, readily available bits of meaningful information that function as serviceable substitutes for full information. Thus, not only does incorporating factual knowledge into a normative standard of electoral competence risk disfranchising much of the current electorate; it is also unnecessary to ensure generally correct vote decisions.

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The Youth Vote Matters. But Just How Young Should Voters Be? [Part I]

Happy New Year, and thanks to Solangel Maldonado for inviting me to participate.

One of the most consequential events of 2012 was the presidential election, and critical to it was the youth vote. Young voters aged 18 to 29 turned out at virtually the same rate as they had in 2008, despite predictions that their enthusiastic participation in that historic election would be a one-time anomaly. On November 6, a lopsided 60 percent of the youth vote went to the President, while 36 percent went to Mitt Romney. Had Romney managed to garner 50 percent of the youth vote in four swing states (Florida, Ohio, Pennsylvania, and Virginia), he would have won those states’ electoral votes, and the presidency. The political implications of the youth vote for future elections are thus significant. Young voters have established themselves as an important voting bloc, particularly in swing states.

Across the United States, the voting age to participate in general elections is 18, with age serving as a proxy for the attainment of electoral decision-making competence. Whether young voters will continue to lean left in future election cycles is a significant question. A more significant question, though, is whether the current voting age is the best available proxy for electoral competence. Indeed, the latter question cuts to the core of democratic government. I explore it in a recent article and will highlight aspects of this critical, yet largely ignored, question in upcoming posts.

More than a dozen nations have recently lowered local, state, or national voting ages to 16, aiming primarily to increase youths’ political engagement and counter the disproportionate political influence of older citizens. In Europe, these include Austria, Scotland, Wales, the self-governing British Crown Dependencies, nearly half of all German states, and several Swiss states (Scotland and Wales are awaiting from Westminster authority to effectuate the measure but have implemented it for local elections). Norway instituted a pilot project in 2011 allowing 16 year-olds to vote in local elections. Latin American countries that allow 16 year-olds to vote include Brazil, the Dominican Republic, Ecuador, Nicaragua, and–as of October 2012–Argentina. British and Canadian Parliaments have voted on bills proposing to lower national voting ages (though these have so far failed to pass), and former Prime Ministers Tony Blair and Gordon Brown both announced while in office their support for a lower voting age.

That the global trend is to extend, or consider extending, the franchise to 16- and 17-year-olds does not mean that the United States should automatically do the same, nor that doing so necessarily makes for better democracy. But for the United States, which holds itself out as a beacon of democratic participation, not to be among the world’s democracies at least evaluating the electoral inclusion of some cohort of its younger citizens demonstrates a complacency with respect to exclusion that is itself a democratic deficit.

In upcoming posts, I will explore ideals of the citizen-voter from classic democratic theory, argue for a conception of electoral competence, and examine research from several disciplines within the developmental sciences exploring the connection between age range and the attainment of certain cognitive competencies. I conclude that age 18 may have been the best available proxy for electoral competence when the nation adopted it as the voting age in 1971, but developments since then enable us to identify a better proxy.

That younger voters have demonstrated a proclivity to lean left may make some policy makers reluctant to even entertain what ought to be a question of democratic legitimacy, not politics. That may ultimately be political reality, but, as future posts will aim to show, it would also be a real shame.

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Stanford Law Review Online: Privilege and the Belfast Project

Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.

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Professor Sherrilyn Ifill to Become the President and Director-Counsel of the NAACP Legal Defense and Education Fund, Inc.

I am so proud to share the news that my colleague Professor Sherrilyn A. Ifill will become President and Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. (LDF).  The LDF is the nation’s premier civil rights law organization.  Ifill will become the seventh Director-Counsel and the second woman to head the organization.  The LDF was founded by Thurgood Marshall, the pioneering civil rights lawyer and later U.S. Supreme Court justice.  Marshall’s first successful civil rights case was his suit challenging the exclusion of black students from the University of Maryland School of Law.  That case, decided in 1935, is largely credited as the first case on the road to Marshall’s ultimately successful and landmark school desegregation case, Brown v. Board of Education.  The law library at the University of Maryland Francis King Carey School of Law is named in honor of Justice Marshall.

As the University of Maryland School of Law website notes:

“Professor Ifill is an extraordinary member of our faculty,” said UM Carey Law Dean Phoebe A. Haddon.  “We are deeply proud that she has been called upon to lead this storied national organization at a critical time.  Her intellect, vision, and life-long dedication to advancing justice will improve the rights of all.”

Ifill began her legal career as an assistant counsel at the LDF, where she litigated voting rights cases.  She joined the Maryland Law faculty in 1993, where she has taught Civil Procedure, Complex Litigation, Constitutional Law, and a variety of civil rights courses.  Professor Ifill litigated environmental justice cases with students in her Legal Theory and Practice courses, and co-founded the Re-entry of Ex-Offenders Clinic.  Her book, On the Courthouse Lawn:  Confronting the Legacy of Lynching in the 21st Century was published in 2007.  She is expected to take a leave of absence from the law school, and will work in both the New York and Washington, D.C. offices of the LDF.

“I am deeply grateful to Dean Haddon and the University for their support as I take up this new challenge,” said Professor Ifill. “My loyalty, respect for and commitment to the law school and its wonderful students is undiminished. Indeed it is my hope that that we will find rich opportunities for collaboration during my tenure at LDF.”

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Stanford Law Review Online: The Hunt for Noncitizen Voters

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

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The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.

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Stanford Law Review Online: Dahlia v. Rodriguez

Stanford Law Review

The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”

After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.

She concludes:

Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”

Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.

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An Accommodation Too Far

The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.

Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”