In just a few weeks Minnesotans will attend their party caucuses as part of the process of selecting the candidates who will run for governor and other constitutional offices, U.S. Senator and House of Representatives, and the Minnesota House of Representatives, among other positions. Yet if the past is any indication of what will happen, very few individuals will attend these caucuses–some by choice–but others will be excluded by economic or practical necessity, without the option of participating by absentee voting or through technologies that would make it possible to engage, even halfway around the world. The exclusionary nature of Minnesota’s caucus system questions what the right to vote really means. Who gets to participate in our political system and how is among the topics I address in my new book, Election Law and Democratic Theory, published this month by Ashgate Publishing. It is if not the first at least one of the first books that makes a simple argument–election law are the rules that make democracy possible.
Election law define the rules of the game. They define who gets to participate and how, and how the game of politics is played. Election law rules should be premised upon the values and premises of American democracy, but more often than not they are not. Instead, incumbency, partisanship, or simply the interests of those already in power right the rules to their benefit. The aim of Election Law and Democratic Theory is to fashion a theory of democracy for election law and apply it to issues such as voting rights, money and politics, representation, and the role of political parties, corporations, and other entities.
One of the central questions of the book is asking about the right to vote and what does it entail. The Supreme Court has ruled that the right extends beyond the initial allocation of franchise. It would make no sense to say one has a right to vote but then gerrymander legislative districts in a way to violate the “one person, one vote” principle. Voting would hardly be a fundamental right (as the Supreme Court describes it) if the right could be taken away easily, or if obstacles were throw up that made it difficult to exercise that right. Yet that has been the case throughout American history. We have a tradition of extending the right to vote, broadening the constitutional notion of “We the people” to include more and more people, yet there is also an ugly tradition in America characterized by repeated efforts to suppress voting rights. After the Civil War Jim Crow lead to the disenfranchisement of African-American males, and now there is a battle to disenfranchise many new and potential voters just as the demographics are changing.