Academic

Fishkin on Equal Citizenship and the Right to Vote

By Lawrence Solum

Joseph Fishkin (University of Texas School of Law) has posted Equal Citizenship and the Individual Right to Vote (Indiana Law Journal, Vol. 86, 2011) on SSRN. Here is the abstract:

An emerging consensus among election law scholars urges courts to break out of ?the stagnant discourse of individual rights and competing state interests? and instead adopt a jurisprudence of ?structural? democratic values that sidelines individual rights. This structuralist approach won out in the great ?rights-structure? debate in election law, and came to dominate the field, during a period in which the main controversies ? vote dilution, gerrymandering, ballot access, campaign finance ? were all ones in which the structuralist move was illuminating. However, structuralism is now causing both scholars and courts to evaluate the new vote denial controversies ? such as voter roll purges and voter identification laws ? in problematic ways that bypass the importance of each individual voter?s right to cast a ballot.

This Article breaks out of the rights-structure debate by offering a distinctive, pluralistic account of the interests at stake in all voting controversies. Some of these interests are indeed structural, in the sense that they are interests of the polity as a whole; some are the interests of groups; and others are irreducibly individual in nature. This pluralistic account explains why structuralism was the right approach to certain election law questions and yet is leading both scholars and courts to misjudge the new vote denial cases. This Article argues, through both political theory and American voting rights law, that the individual right to cast a ballot matters for reasons that cannot be reduced to election outcomes or structural concerns. By allowing individuals to vote, the polity includes them within the circle of full and equal citizens. This Article excavates this individual interest in equal citizenship, demonstrates its centrality to the foundations of our modern voting rights regime, and explores how taking it seriously would reshape both the scholarship and the jurisprudence of election law, especially in the domain of the new vote denial.

Full post as published by Legal Theory Blog on January 21, 2011 (boomark / email).