Voting Rights

Stephen E. Sachs | 7.22.2024 11:38 AM

Kids don't vote. That means nearly a quarter of American citizens don't have their interests defended at the polls. But parents can vote, and they could vote on behalf of their children. This bipartisan idea, with support ranging from Cornel West to J.D. Vance, would be the most significant expansion of the franchise since the Nineteenth Amendment—and it's something that any state legislature could do on its own, without waiting for a divided Congress to act.

Josh Kleinfeld and I have a new paper, forthcoming in the Notre Dame Law Review, that explains how. As we argue, voting parents should be able to cast ballots on behalf of their otherwise-qualified children; so should the court-appointed guardians of people who can't vote due to mental incapacity. From the abstract:

Many of America's most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are 23% of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don't count proportionally at the polls. The result is policy that observably disserves children's interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests.

Yet there's a fix. We should entrust children's interests in the voting booth to the same people we entrust with those interests everywhere else: their parents. Voting parents should be able to cast proxy ballots on behalf of their minor children. So should the court-appointed guardians of those who can't vote due to mental incapacity. This proposal would be pragmatically feasible, constitutionally permissible, and breathtakingly significant: perhaps no single intervention would, at a stroke, more profoundly alter the incentives of American parties and politicians. And, crucially, it would be entirely a matter of state law. Giving parents the vote is a reform that any state can adopt, both for its own elections and for its representation in Congress and the Electoral College.

And from the introduction:

Perhaps the most vivid lesson of the COVID pandemic, from the standpoint of the democratic process, was the weak political power of children. When bars and restaurants reopened, schools stayed closed; when it became clear that children were less likely to infect others or become seriously ill themselves, schools stayed closed; when it became clear that school closures caused children significant harm, schools stayed closed; when it became clear that the poorest children were harmed most, schools stayed closed. The COVID closures were a singularly clear case of the balancing of interests that marks all politics: if some institutions would be allowed to open to keep society functioning, and others would be closed for the sake of public health, politics would decide who'd bear the cost. In that balancing, children lost.

Yet the COVID experience really just made evident a larger political pattern. The performance record of American schools—whatever one's preferred solution—reflects the political weakness of children. So does the limited supply of housing for new families, the state of public transportation........

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