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Category: Election Law

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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Bright Ideas: Prof. Rick Hasen on the Recent and Future Voting War Engagements

There has been a tremendous amount of activity around election law since 2000. Decisions by the Supreme Court, district courts, and legislatures are affecting the future of how our country votes. The fights are in some ways old as voting is always political, but are new as the battlegrounds have changed. I am excited to welcome Professor Richard L. Hasen on Bright Ideas to get into some history, perspective on recent cases, and thoughts on where we need more research. As Professor Hasen says “The more we can address these points with facts and logic rather than hyperbole and assumption, the better.” Read on to find out the details.

Professor Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. I have been fortunate to know his work in person from when he spoke at Thomas Jefferson School of Law about his book The Voting Wars: From Florida 2000 to the Next Election Meltdown. Professor Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law. He is the author of more than 80 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review. He was elected to the American Law Institute in 2009, and he was named one of the 100 most influential lawyers in America by The National Law Journal in 2013. We are are fortunate to have Professor Hasen with us today. With that let’s get to the questions.

Q: Rick, voting rights have taken on new importance. States are trying to pass laws that require proof of citizenship. The Supreme Court has rejected some attempts to require proof of citizenship in federal elections. But a federal judge in Kansas has just ruled that the federal government must aid states that wish to require proof of citizenship. Before we get into the details about whether that ruling makes sense, can you help folks understand what is going on? Why is there a renewed interest in voter registration?

A: The interest in voter registration is part of a broader interest in, and fights over, rules for how we run our elections, from registration, to voter i.d., to how to handle the ballots of people who vote in the wrong voting precinct. As I explain in my 2012 book, The Voting Wars, since 2000 we have witnessed a great struggle between the parties, and between the federal and state governments, over who controls the voting rules. The disputed 2000 election ending with Bush v. Gore showed everyone that in very close elections, the rules of the game can make a difference. Parties have been jockeying for position, with Republicans generally favoring laws making it harder to register and vote and Democrats making it easier. Both parties’ positions conveniently line up with their own electoral chances: an expanded electorate (full of poor, minority, and non-regular voters who are less likely to be registered) is believed to skew toward Democrats.

Q: Before we get into the recent cases, your mention of close elections makes me wonder, has something changed in the past twenty years? If I remember correctly, there have been a few other major elections at the state level where the vote came down to a handful of votes. It just seems odd that at a large scale, we are seeing major power shifts determined by a few hundred votes. I suppose the same could be said about Kennedy’s election. But still, does the closeness reflect something about political divisions, corruption, or something else?

A: I think something has changed. The amount of legislation on the state level has increased–at least if we think of controversial legislation. Further, the amount of election litigation has more than doubled in the period after the disputed 2000 election compared to the period before. Election law has become part of a political strategy. It is not just about litigating after a close election; it is about litigating before an election to get advantage under the rules.

Q: So it seems the fight for power has two shifts then. First, there are close elections. Second, there is the renewed and modern fights to control who votes. With that, what happened in Arizona v. Inter Tribal Council of Arizona, Inc.? What was the question and how did the Court come out on the issues before it?

A: Since Congress passed the 1993 National Voter Registration Act (NVRA, or “motor voter law,” because it mandates that motor vehicle departments offer voter registration), states have been required to accept a “federal form” for registering voters in federal elections. The Federal Election Commission used to be in charge of this form, but in 2002, when Congress passed the Help America Vote Act (HAVA) creating the United States Election Assistance Commission (EAC), the EAC has been in charge of the form.

Arizona asked the EAC to modify the form to require it to include a requirement that new residents in Arizona provide documentary proof of citizenship before registering to vote. The EAC deadlocked on the request. Arizona did not challenge the EAC determination in court. Instead, Arizona decided not to accept registrations on the federal form. Plaintiffs representing groups of voters sued to require Arizona to accept registrations submitted on the federal form. In the Arizona v. Inter Tribal case, the Supreme Court said that Congress had the power under the Elections Clause to set the “manner” of voting in federal elections, and on this basis Arizona could not refuse to accept the federal form.

In a twist, however, the Court (in an opinion by Justice Scalia) suggested that Arizona should sue the EAC for not requiring the citizenship information on the form. The Court noted that although the Elections Clause gives Congress the power to set the maner of federal elections, it gives states the power to set voter qualifications, even in federal elections. The Court further suggested that the EAC might not be able to promulgate a federal form which frustrates a state’s attempt to verify voter qualifications.

Arizona, joined by Kansas, filed just such a suit, and a federal district court just decided that suit. I offer my analysis here, and here is an important NY Times analysis of what may come next.

Q: Fantastic explanation. Thank you. I urge folks to look at Rick’s post and the Times piece. Although you are quite honest that you “do not know how this case will fare as it works its way up on appeal,” I’d like to close with a couple questions. First, the Times piece notes that Alabama is moving forward with its new voter requirements. It seems that the federal form would be quite complicated if it had to reflect 50 different voter qualifications. Furthermore if each, or even several, are challenged, whether a form is ever stable enough to use could be a problem. That may be a goal for some, but it makes me wonder at the odd outcomes. It has been some time since I took administrative law, but could the practical complications be a way to challenge the Scalia logic? It just seems strange that states can dictate to the federal government. Second, as broader question and to wrap up, do you have any suggestions about discrete topics professors or students should pursue on this topic (i.e., are there open issues on either side that merit study)?

A: On the specifics of the form, the EAC has made modifications before, and it is not clear that states wanting citizenship verification are going to demand different things–or that the different things can’t be easily pointed to on the form. I think the broader issue is whether states could stymie other federal laws, such as laws protecting military and overseas voters which require states to accept a “fail safe” federal ballot for voting. There’s lots of potential mischief in a muscular reading of states’ rights to enforce voter qualifications over Congressional election law power. Derek Muller flags some of these confusing points.

On the open questions there are so many, beginning with how to understand the borderline between state and federal power in this area. There is also a great need for more (and better) empirical work on the effect of these laws on turnout, fraud prevention, and voter confidence. The more we can address these points with facts and logic rather than hyperbole and assumption, the better.

Thanks for taking the time to listen!

Thank you, Rick for sharing your ideas and giving us a sense of things to come.

NOTE: This interview was written using Google Docs. I posed questions to which Rick replied, and we edited content for flow and clarity.

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FAN.8 (First Amendment News) — Shaun McCutcheon to write e-book

Ever the entrepreneurial figure, Shaun McCutcheon, the man at the center of the latest campaign finance storm known at McCutcheon v. FEC, has decided to take his case to yet a higher plateau — he’s writing an e-book titled Outsider Inside The Supreme Court — A Decisive First Amendment Battle. “It’s mainly about the actual [experience of being] an activist plaintiff (a DC ‘outsider’),” he told me. The work will be an e-book consisting of nine chapters. According to Mr. McCutcheon, the e-book is being written with significant assistance from Richard E. Cohen, a seasoned correspondent for Congressional Quarterly and the National Journal. Cohen, who has written on politics (see, e.g., here) and campaign finance issues (see, e.g., here), reportedly began working on the writing project with Mr. McCutcheon in late November or early December of last year. (Mr. Cohen is no newcomer to the subject of campaign finance laws. See, e.g., his “Giving till It Hurts: 1982 Campaign Prompts New Look at Financing Races,” National Journal, Dec. 18, 1982.)

SM_Book_Cover_ConceptsHere is the opening paragraph from the first chapter of the forthcoming e-book: “I strongly believe in Freedom of Speech and your right to spend your money on as many candidates and political activities as you choose. Free political speech and assembly are especially important to the future, because we can’t change anything in Washington, DC if we can’t change whom we send to Washington. Supporting those we believe will bring about change – and doing so through transparent contributions — is a good thing.” (emphasis added) He goes on to note: “So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. As I write this I’m waiting on the High Court’s ruling. This e-book is about the case, and the legal and political forces that drive it.”

Not to be overlooked is his attorney, Erin Murphy, who argued his case in the Supreme Court. He quotes her early on in the work: “‘By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption,’ Erin Murphy—a former clerk to Chief Justice Roberts, who has become a Supreme Court litigator with a Washington D.C. law firm—told the Justices, ‘these limits simply seek to prevent individuals from engaging in too much First Amendment activity.’”

Some of the other chapters (which are each 3,000 words or fewer) concern:mcc-shaun

  • How Shaun McCutcheon first got actively involved in politics
  • How his case evolved
  • The various attorneys (notably Dan Backer) with whom he has worked on his case
  • How the media has covered the case and controversy, and
  • How the Court will ultimately rule in his case.

McCutcheon’s aim is to provide “a rare inside perspective of the evolution of an important court case from the view of an Alabama businessman.” To that end, he hopes that his account “will help demystify an important part of how our government operates.”

The e-book is slated to come out sometime shortly after the Court rules in McCutcheon. Read More

A Little Something to Temper Confidence in Empirical Analysis of Election Spending

Today Politico unveiled a “38-page IRS filing amounts to the Rosetta Stone of the vast web of” groups participating in the 2012 election:

[A group] whose existence until now was unknown to almost everyone in politics, raised and spent $250 million in 2012 to shape political and policy debate nationwide. . . . The group has about 200 donors, each paying at least $100,000 in annual dues. It raised $256 million in the year after its creation in November 2011, the document shows. And it made grants of $236 million — meaning a totally unknown group was the largest [supporter of conservative groups in the election].

We’re used to seeing “black box” dynamics in tech policy. Now they’re also creeping far into the “public processes” by which we select the architects of those policies. Until there is full, far faster disclosure of 501c6/c4 donations from corporations, we’ll continue to be in the dark on fundamental dynamics of our electoral process during campaign season.

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Ex Officio: Select Conference Notes from the Burger Court Justices’ views on Campaign Finance Laws

McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees.  This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976).  The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.

Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.

Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny.  That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act.  Here again, the Court was badly divided.

In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.

* * * * *

The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975: 

Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”

“The disclosure provisions are the heart of the whole thing for me.  I think these provisions are constitutional and highly desirable.

Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”

Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”

“The expenditure limitations are wholly unconstitutional.”

“I see no First Amendment problems in political committees.”

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The Voting Bonus During Jim Crow

Justice John Paul Stevens (going strong at 93) gave an interesting speech a few weeks ago in which he talked about how the exclusion of African-American voters during Jim Crow gave white southerners a representation surplus in the House of Representatives and in the Electoral College.  What was the impact of that, he wondered?  It’s a good question.

Everybody knows that the original Constitution counted a slave as 3/5 of a person for purposes of representation.  What people sometimes forget is that the South wanted a slave as a whole person.  Not because they thought slaves were people, but because that ratio would give the South more representation.  As it was, those states still got a substantial advantage, as slaves could not vote and therefore could easily have not been counted at all.  Garry Wills wrote a book in which he pointed out that Jefferson’s election in 1800 was by the margin of this slave bonus, and other ante-bellum results can be traced to the same root.

When slavery was abolished, freed slaves were counted as people.  This posed a dilemma for John Bingham and his Republican colleagues, because the South was determined to keep African-Americans from voting.  In effect, the Confederacy would be rewarded with 2/5 more power in Washington than it had before Civil War.  Section Two of the Fourteenth Amendment was the first stab at solving this problem.  It said that if a state did not allow men over 21 to vote, then its representation would be reduced accordingly.  The Fifteenth Amendment was another prescription to ensure African-American voting. But following the defeat of the Populists (as I discussed in my last book), African-Americans were completely disenfranchised in the South.

This meant that between roughly 1900 and 1965, the ex-Confederacy had more members of Congress and more Electoral College votes than it was entitled to.  With respect to the House of Representatives, it’s hard to say how much this mattered.  There may be close votes that could have turned on the Jim Crow bonus, but that is not so clear.  (In the Senate, of course, representation does not change the number of senators per state.)  In the Electoral College, though, I think we can see some relevant examples.  For instance, Woodrow Wilson won the 1916 presidential election very narrowly–277 to 254–over Charles Evans Hughes.  Wilson carried every ex-Confederate State.  Did those states have 12 extra electoral votes as a result of the representation distortion?  Could be.

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C’est Vrai: Online Voting, a Bad Idea

Paris held a four-day mayoral primary in which individuals could cast their votes online. But things not proceed as officials planned. Over the weekend, Metronews journalists exposed the first-ever online primary as insecure and inaccurate. Here is how the process worked (or failed to work). To register to vote, Parisians made a credit-card payment and gave the name and address of someone on the city’s electoral roll. According to the Independent, a journalist reportedly voted five times with the same credit card and even using the name Nicolas Sarkozy. Lest one breathe a sigh of relief that the U.S. would never do anything as foolish as Internet voting, at least 16 states or counties have applied for grants from the Department of Defense to experiment with online ballot-marking portals that are one step shy of counting votes. Of course, voting online system vendors think Internet voting is a fabulous idea. But computer scientists in the U.S. fairly uniformly agree that online voting is a bad idea. Let’s not follow France’s lead.

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Minnesota Marriage and Political Strategy

I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.

There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.

Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.

Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.

Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)

And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.

So, one other moral of this story: when it comes to referenda, be careful what you wish for.

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How Young Should Voters Be?: 16-Year-Olds’ Entitlement to the Most Basic Civil Right [Part V]

This is the last in a series of posts on the voting age. In what is becoming a global trend, more than a dozen democratic nations have lowered their voting ages to 16, and others are seriously considering doing so. Two days from now (on Jan. 24), the House of Commons will debate a pending bill, the Voting Age (Comprehensive Reduction) Act 2013, which would set the voting age to 16 across the United Kingdom. Parliamentary assemblies in Scotland, Wales, and the self-governing British Crown Dependencies have already voted to do so. The United States is not among the democracies considering this issue, but it should be. As we extol the virtues of political participation to nascent democracies around the world, we should also remain open to reexamining our own electoral processes — particularly those that result in individuals’ categorical exclusion from political participation. (See my first post.)

It is time we too reexamined the voting age. It was lowered in 1972 from 21 to 18 to bring it in line with the draft age. “Old enough to fight, old enough to vote” remains catchy and has intuitive appeal, but the logic is questionable, as the ability to do one does not necessarily imply the ability — or inability — to do the other. We now know more about voter decision making in general, processes of cognitive development, and adolescent decision making in particular. This knowledge contributes to our ability to make better-informed assessments of what competent voting entails, and the age by which that competence is reliably attained.

Generally, our voter qualification rules aim to ensure would-be voters’ (1) interest in and ongoing connection to the political community; and (2) vote decision-making competence. The young are interested members of the community, so only their presumed lack of competence justifies their exclusion. Informed by empirical studies of voter decision making, I have argued for a cognitive-process-driven conception of vote decision-making competence (see my second post). I explained in my third post why this conception of competence would not operate to disfranchise current voters. A conception of vote decision-making competence instead provides us with a tool we currently lack — a principled standard against which to assess the age or age range by which typical individuals reliably attain the capacities that constitute competence. Upon reaching that age, individuals would, just as they do today, automatically gain the franchise. The state should then bear a heavy burden to disfranchise individuals presumptively entitled to vote but whose competence is nonetheless in question, such as adults with mental impairments. (For a thoughtful critique of individualized assessment tools advocated by some, see this article by Prof. Nina Kohn.)

I argued in my most recent post that 16- and 17-year-olds have attained the cognitive and decision-making capacities required for vote decision-making competence. That alone ought to justify their enfranchisement; their unwarranted exclusion diminishes our democratic legitimacy. (For an elaboration of the above arguments, see my recently-published article, Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority.)

Correcting the arbitrary exclusion of this (competent) cohort of the political community is arguably the most powerful reason for enfranchising 16- and 17-year-olds. Lowering the voting age may also improve our democratic processes in other important ways. It may, for example lead to:

Increased Voter Knowledge: Public ignorance of basic civics, government, and politics is well established. Becoming eligible to vote while still enrolled in high school, however, makes lessons in civics/government more immediately relevant to students’ lives. That immediacy — the real-world application of acquired knowledge — can give students added enthusiasm and incentive to learn, and can provide educators with invaluable teaching tools. Currently, many students will leave high school before becoming eligible to vote, may no longer be in a structured educational setting once they do become eligible, and may wait several years before having the opportunity to vote in a presidential election. Their political disengagement is obviously not inevitable; we have simply lost an opportunity to impart lasting lessons, generate early enthusiasm, and encourage lasting habits (see below) of political engagement and participation.

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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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