Why Can’t They Vote?

At the Volokh Conspiracy, Ilya Somin has a response to my post yesterday arguing that lowering the minimal voting age to 16 is a better way of redressing the exclusion of minors from the franchise than prof. Somin’s proposal to allow any minor to vote provided that he or she can past a test assessing knowledge of the political system. Prof. Somin is unpersuaded by argument that there is no good reason to treat minors differently than adults, for whom there is no requirement to prove knowledge of the political system in order to vote. He points out that my proposal, no less than his, discriminates on the basis of age. But age discrimination, bad as it is, is sometimes unavoidable. Better not to raise categorical barriers though, and let anyone prove his or her ability to exercise the franchise. True, we don’t expect adults to do so―but prof. Somin seems to suggest that this is something of a mistake, though it is too late to reverse it now, not least because “there is a big difference between using a test to expand the franchise to a group that has always been barred from it, and using it to take away voting rights from millions of people who have them now.”

I think that what drives the disagreement between us is that we have different views on what justifies the denial of a legal right to vote (note that I am only talking about the legal situation―prof. Somin makes the case, in a separate post, that there is something like a moral duty to abstain from voting on issues or candidates about which one is ignorant, and I agree with him on that). In prof. Somin’s view the key factor is political knowledge, and lack thereof. I think that the real issue is not so much knowledge as maturity and capacity for judgment.

It is true that minors are generally less knowledgeable about politics (and other things) than adults. But they are also, on average, less mature and less capable of responsible judgment, and the law recognizes this diminished capacity by making them, depending on their age, less criminally liable, incapable of entering into (certain kinds of) contracts, etc. At least in criminal cases, it is quite clear that the reason for the distinction made between minors and adults is not knowledge of the relevant facts, but capacity for judgment. I think that it is the reason for the other distinctions too. Note, too, that the one category of adults to whom we uncontroversially deny the franchise are those too mentally ill, too lacking in judgment and decision-making ability to be responsible for their own decisions; such people have guardians, just like children do. They need not be ignorant―but their judgment faculty is severely impaired.

Now, in those areas where―I think―the law makes distinctions on the basis of age that are grounded in maturity and capacity for judgment, it usually does so by drawing bright lines. One has to be, say, 16, in enter into a contract pursuant to which one undertakes to work full-time. (One partial exception is criminal law, where there is individualized assessment of a minor accused’s fitness to be judged or sentenced as an adult, but there too there is a bright-line minimum age.) It is a shortcut, because of course teenagers’ judgment and maturity at a given age can vary a lot. But we’re probably better off with a shortcut, because judgment is so difficult to gauge, much more so than knowledge, which is difficult enough. We still try to in cases where the consequences are really grave, as in the criminal context, and also for adults who are declared mentally incompetent. These cases have also the benefit of being relatively rare. But it wouldn’t be practicable for voting, which is likely to interest quite a few minors.

So, while I see prof. Somin’s objections, I still stand by my proposal to set the voting age at 16, rather than create a test of knowledge to evaluate which minors, regardless of their age, should be able to vote.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

2 thoughts on “Why Can’t They Vote?”

  1. See also “Voting at 16: Turnout and the quality of vote choice” by Wagner et al. (2012) in the journal Electoral Studies. I quote the abstract (article is pay-walled, I have a copy):

    Critics of giving citizens under 18 the right to vote argue that such teenagers lack the
    ability and motivation to participate effectively in elections. If this argument is true,
    lowering the voting age would have negative consequences for the quality of democracy.
    We test the argument using survey data from Austria, the only European country with
    a voting age of 16 in nation-wide elections. While the turnout levels of young people under
    18 are relatively low, their failure to vote cannot be explained by a lower ability or
    motivation to participate. In addition, the quality of these citizens’ choices is similar to that
    of older voters, so they do cast votes in ways that enable their interests to be represented
    equally well. These results are encouraging for supporters of a lower voting age.

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