Thoughts on Access and Participation in Contemporary American Democracy

When election law scholars think about the right to vote, we often divide it into four parts. The first is the right of participation, which involves the right to cast a ballot. The second is the right of expressive association, which concerns the ability of voters to express preferences for parties and candidates they prefer and of parties to organize and gain access to the ballot. The third aspect of the right to vote is described (somewhat inarticulately) as the right to aggregation: by this we mean that it is not enough to have the ability to cast a ballot for a favored candidate—the right to vote must imply rules as to how votes get aggregated together (e.g., through districts). The final notion of the right to vote concerns voting as governance: casting a ballot for a preferred candidate and having it counted equally with others is of little use if there is no connection between elections and governance. With respect to each of these conceptions of the right to vote, we have witnessed extraordinary changes over the last decade.

Participation

With respect to participation, it seems like the best of times and the worst of times. First, the bad news: the country has recently witnessed a remarkable wave of efforts to make voting more difficult through restrictions on early voting and enhanced voter ID requirements. It is unclear if these measures (many of which were defeated in court) had the expected or feared voter-suppressive effect. (I tend to think not.) But if it seemed that the trend toward greater and more open access was irreversible, along came partisan efforts to turn back the clock.

At the same time, voter turnout since 2000 has appeared to reverse a perceived downward slide begun in the late 1960s. (I say “perceived” because the story about voter turnout from 1970 to 2000 is more complicated than most recognize, once one accounts for the rise of the share of ineligible voters, particularly noncitizens but also disfranchised felons, in the electorate.) In any event, voter turnout, for one reason or another, increased from 2000 to 2008, before it dipped a bit in 2012. More striking still, the racial gaps in turnout have vanished between African Americans and whites (although most do not realize that this is almost wholly the result of increases in turnout among African-American women who now appear to vote at rates exceeding white men). Finally, Latinos have “come into their own” politically, as their electoral clout has preoccupied the minds of postmortem explicators of the 2012 election. (Here too, by the way, the data are not as incontrovertible as some believe: there is great debate as to Latino turnout rates in the 2012 election, even if it would be difficult to doubt what the future holds.)

Expressive Association

The notion of voting as expressive association concerns the ability of voters to choose their preferred parties and candidates on the ballot. The ability to participate is of little use, for example, if one confronts a Stalinist-style ballot in the voting booth. Elections require actual choices, not predetermined outcomes.

Here too, I think we have an “on the one hand but on the other” kind of story to tell about contemporary American politics. To be sure, we are wedded to the two party system. Minor parties mainly serve a spoiling function (see, e.g., Florida 2000), if any at all. Moreover, the prior laments as to the ideological diffuseness of our “irresponsible” parties have now been replaced by fears of polarization now that the parties are too different and far apart. In other words, when and where voters have a choice between a Democrat and a Republican, that choice is starker now than at any point in the last century.

But do voters have more choice now than previously? To some extent, I think it depends on the era and region we use for comparison. Nothing like the “solid South” exists today—not only in the South, but anywhere. No state or region is completely devoid of officeholders from both parties. At the same time, some argue that we are more politically segregated than at any time in recent memory. I say “some argue” because I remain open minded (or perhaps insufficiently educated) on the central question of “the Big Sort”—proponents of which argue that Democrats are more likely to live near Democrats and Republicans near Republicans than in previous eras. (How near is near is one of the central questions, as I understand it.)

In any event, if we are more politically segregated then at some point in the recent or distant past, then the choice at the general election ballot box is more hollow than previously. Of course, competition in primary elections might suggest merely a temporal move in the arena of competition. However, despite headlines about the ubiquity of Tea Party challengers and the like, levels of primary competition are down across the board from, say, fifty or sixty years ago.

Aggregation

When thinking about the aggregation of votes, the topic of redistricting comes immediately to mind. Although I have usually been a critic of those who overemphasize the importance of redistricting on predetermining outcomes and tilting the electoral playing field, even I must admit that we have reached new levels of creative manipulation when it comes to aggregating people together into districts. Bipartisan gerrymanders are the norm when the two parties divide the population into safe districts, while partisan gerrymanders persist when one party holds the reins on the linedrawing authority. Although the situation is not unprecedented, the Democrats’ winning of a majority of votes but a minority of seats in the last election hints at the success of Republican gerrymanders, especially in the many battleground states they redistricted (e.g., Michigan, Pennsylvania, Ohio, Florida). The shrinking number of battleground states in the Electoral College might also be seen as a disservice to the value of voting as aggregation.

Governance

Elections must have some relationship to governance, or so we teach our students. In other words, changes in voter preferences ought to be reflected in changes in policy. But if campaign financing and other influence peddling is chiefly responsible for policy change, let alone election of candidates, then voting becomes untethered from the outputs of the democracy.

One of the interesting things about the campaign finance-related complaints often lodged at the current system is that they are in tension with so many of the other arguments stated above. If legislators are increasingly likely to run from safe seats, either because of sorting or redistricting, then why should campaign finance contributions make such a difference? If the parties are increasingly unified from within and polarized from the other, then how much of a role can big contributors play when the parties positions and coalitions are so firmly entrenched?

None of this is to say “big money” has no influence over elections or policy. Undoubtedly it does. However, its effect, I suspect, is greater as we move further down the electoral ladder to low salience offices. If there is cause to worry, it is not because of SuperPACs influence on the well-funded, high salience race for President, for instance. Rather, such “antidemocratic” influence has its greatest effect when democracy often falters: in the contests characterized by low information and low participation.

About the Author
Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford University.