Voter Identification and the Right to Have Political Rights


On September 12, the United States Court of Appeals for the Seventh Circuit reinstated Wisconsin’s Voter IDs laws, much to chagrin of civil rights advocates who fear that these laws will disenfranchise racial and ethnic minorities, low-income people, and the elderlyand who contend that there is little reason to believe that voter fraud is widespread. The ACLUis now contesting the Court of Appeals’ decision.
A common justification for voter ID laws is that non-citizens will cast fraudulent votes. The mainstream debate generally trades on questions about how common non-citizen voting really is and whether using voter IDs to exclude people without a right to vote can outweighs the possibility of excluding people who do have a right to vote but are unable to acquire the required identification.
My take on the mainstream debate is that the evidence suggests that non-citizen voting is not a serious problem and that the changes to rules about identification will exclude people who do have the right to vote, but don’t have the resources or the knowledge to acquire the needed documentation. Nonetheless, I’d like to pose another question: why not let (at least some) non-citizens vote?
Ron Hayduk in Democracy for All has argued for this extensively, pointing out that non-citizens in the US voted in federal elections until the 1920s and that non-citizens currently vote in local elections in some US jurisdictions as well as in other parts of the world (Hayduk summarizes his views here).
Hayduk is responding to a major question in political philosophy concerning the scope of the democratic community: who has a right to be included and to exercise political rights? Under what conditions can people claim that they ought to be allowed to vote? This question should be understood as a moral, not a legal, question. It is a question that women, African Americans, and adults under twenty one asked at different stages of American history when demanding to become part of the franchise.
Political philosophers have given at least three major responses to this question.
The first response says that if what entitles people to political rights, including the right to vote, is that their interests are affectedby decisions and policies. The idea here is that people should have a say in decision that affect them. Robert A. Dahl and Frederick G. Whelan were among the first to defend versions of these principles and recent discussions by Robert E. Goodin and David Owen have advanced the debate. Rainer Bauböck’s stakeholder citizenship that holds that those who have a stake in the future of the political community should have voting right is arguably the most sophisticated, empirically informed version of an affected interests account.
A second response says that what matters is that people are subject to coercion. The idea here is that organizations that exercise power over people need to justify this power. One way of doing this is to give people a say in the law by allowing them to vote. Arash Abizadeh has argued that taking coercion as the basis for determining the scope of the political community has radical implications. (My own attempt to base the right to have political rights to avoid subjection to domination can be found here.)
A third response most prominently defended by Joseph Carens uses social membership as the criterion. If people are members of communities, as permanent residents undoubtedly are, then they should be given a say in policies and laws that guide the communities.
Political philosophers have not agreed upon which account most plausibly helps us determine who should have political rights. Nonetheless, all the accounts I have described would seem to suggest that permanent resident non-citizens – people who live, work, and study in the community for an extended period of time – should receive the right to vote. Permanent residents non-citizens’ interests are affected by policies and laws and they have a stake in the future of their communities. They are subject to state coercion but are not given a say in the laws that government them. Finally, they are members of the communities they live in, usually indistinguishable from other people except for their legal status.
If I am correct that at least three competing philosophical accounts that explain who ought to have the right to vote all agree that permanent resident non-citizens should be allowed to vote, maybe we’re having the wrong debate. Instead of asking only if voter ID laws will disenfranchise citizens, maybe the discussion should be about enfranchising community members who don’t happen to be citizens.

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