-
9. Votes Behind Bars
- The MIT Press
- Chapter
- Additional Information
Nearly half a century ago, Isaiah Berlin delivered an extraordinarily influential lecture called “Two Concepts of Liberty.” The negative concept consists in freedom from—“warding off interference” from external forces. By contrast, the positive concept consists in freedom to—to be “a doer—deciding, not being decided for.” Democracy requires both forms, but current constitutional doctrine adopts an unduly negative approach. This is especially the case when it comes to political voice. The Supreme Court has resisted attempts to constrain the political impact of money, most notoriously in Citizens United v. Federal Election Commission (2010). But just as telling is Arizona Free Enterprise 9. Votes Behind Bars a constitution for all times Club’s Freedom Club PAC v. Bennett (2011), where the Court hobbled the states’ ability to construct public financing systems. Adjusting the funds available to candidates who accept public financing somehow burdens privately financed candidates’ freedom, according to the justices. The Court’s rationale in campaign finance cases calls on protection of free speech, which invokes a negative concept of liberty because the freedom of speech guaranteed by the First Amendment is largely exercised without government assistance. (As A.J. Liebling memorably observed with respect to another branch of the First Amendment, freedom of the press is reserved only for those who own one.) Political speech, the Court points out, is “an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” True enough. Yet voting is surely an equally essential mechanism of democracy, and arguably a more direct means of holding officials accountable, but the Court has upheld laws that burden casting a ballot, a posi- [3.17.75.14] Project MUSE (2024-04-17 22:24 GMT) pamela s. karlan tive liberty. In Crawford v. Marion County Election Board (2008), the Court rejected a challenge to an Indiana law requiring already-registered voters to present government-issued photo identification at the polls. (Disclosure: I helped to represent the plaintiffs in the case.)The justices in the majority did not agree on every element of the case, but, after recognizing that Indiana could not point to a single example, ever, of impersonation that would have been prevented by an ID requirement, the Court accepted Indiana’s argument that ID prevents fraud and enhances “public confidence” in the election process. By contrast, the Court has essentially rejected this rationale in the political-spending context. The Court’s strikingly different treatment of burdens on political spending and on voting reflects this positive-negative divide. Effective exercise of the right to vote depends on affirmative government support. A citizen who is handed an official ballot written in a language she does not understand may effectively be denied the right to vote. If the gov- a constitution for all times ernment uses unreliable voting machines or staffs polling places with badly trained workers, citizens may effectively be prevented from voting by the press of other responsibilities that preclude waiting in line for hours. Voter ID laws disenfranchise individuals who find it difficult or impossible to obtain government-issued documents. A superficial reading of the Constitution might support the Court’s opinions. Although the Constitution is filled with provisions mentioning the “right to vote,” the most explicit protections are phrased almost entirely in negative terms: they prohibit particular forms of disenfranchisement.The Fifteenth and Nineteenth Amendments, for example, forbid denial of the right to vote “on account of race” or “sex”; the Twenty-Fourth, “by reason of failure to pay any poll tax.” In light of this language, in 1875 the Supreme Court declared itself “unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one.”To be sure, [3.17.75.14] Project MUSE (2024-04-17 22:24 GMT) pamela s. karlan the equal protection clause provides one important qualification: the government cannot arbitrarily treat voters unequally. During the 2012 election, a federal court of appeals relied on the clause to hold that if Ohio permitted military voters to cast early ballots the weekend before the November election, it had to make early voting available to other voters on the same terms. But the court was careful to acknowledge that Ohio had not been constitutionally required to offer early voting at all. The consequences of adopting an essentially negative approach to political voice extend beyond enhanced protection for the political deployment of concentrated wealth and beyond new rules, such as voter ID requirements, that...