Tag: voting

A Civic Choice

This is the last substantive post in my duty-to-vote series. I have already addressed a number of instrumental arguments in favour of such a duty: claims that it allows better aggregation of information about the voters’ preferences, that it enhances the legitimacy of our political system, and that it improves the quality of election campaigns. In this post, I address a different type of argument: that we must vote not because universal voting serves some other purpose, but just because it is a “civic duty.” One cannot, it is said, be a good citizen if one does not vote.

Andrew Coyne, although he also makes a number of instrumental arguments in favour of a (legally-enforced) duty to vote, invokes this idea of civic duty when he asks, presumably rhetorically: “[w]hy should voting, the fundamental act of democracy, be an option, and not, like jury duty or paying your taxes, a basic obligation of citizenship?” When I first announced this series of posts, Craig Forcese responded (on Tiwtter) that “Civics, like reading, is [a] muscle that atrophies [without] regular use,” and further that “[v]oting [is a] collaborative civics ritual in an atomized society [with] very few” of those. It is, he said, “[a]s much about membership as governance.”

I have to admit that I am somewhat perplexed by the idea of a “civic duty” that exists for no particular reason, just as an incidence of membership in society. Mr. Coyne’s examples of jury duty and taxes can be justified (if indeed they can be), on instrumental grounds. Jury trial is (so we think) a bulwark of liberty, while taxes are needed to keep government running and to help the poor or those otherwise in need of their fellow-citizens’ assistance. But instrumental justifications for a duty to vote, I have argued, do not succeed.

But let’s put that doubt to one side, and let’s stipulate that we can have some duties as a result of our membership in society, regardless of whether fulfilling these duties actually serves any useful purpose. And let’s stipulate that one such duty is to take public affairs seriously, to concern yourself with the way your society is governed, and to share this concern with your fellow-citizens. I’m actually very skeptical that we have such a duty. It seems to be, at best, an instantiation of a broader, and more plausible, duty to contribute to society ― but as Jason Brennan argues in his book on The Ethics of Voting and in a post over at Bleeding Heart Libertarians, we have any number of ways to contribute to society, not all of them having anything to do with politics or public affairs writ large:

For any given citizen, given what other citizens are doing and are good at doing, there will be an optimal mix of political and non-political ways for her to pay her debt [to society, assuming that there is one]. For some citizens, this will mean heavy political engagement at the expense of other pursuits. For other citizens, it will mean complete disengagement so as to free the citizen to pursue non-political activities. For most citizens, the optimal mix will be some combination of political and non-political engagement.

(I’m not sure, by the way, that prof. Brennan is even correct to say that “for most citizens” political engagement will be part of the “optimal mix.” The average levels of political ignorance are so high that “most citizens” may be doing more harm than good by becoming involved in politics in any way. But let’s put that to one side too.)

Anyway, let’s stipulate that we have a duty to become politically engaged together with our fellow citizens. Does it follow that we have a duty to vote? I do not think so. To be sure, voting is a way to fulfill this hypothetical duty, but it is not the only one. Surely, debating public affairs, whether just with your friends on Facebook or in some more public forum, is a form of political engagement. Surely, working for some organization that contributes to the public good, as it sees it, is a way of taking part in the polity’s affairs. I would, indeed, go further, and say that such ways of becoming engaged are actually much more significant that voting. I am pretty sure that I have contributed a good deal more to the res publica, over the last three and a half years, with this blog than I would by casting ― or, a fortiori, by spoiling ― a ballot next Monday. Perhaps we have, as Sean Hunt put it to me on Twitter, a “duty to consider” our options. But then what? If, having considered the choices on offer, you find none of them palatable, I do not think that you do anything wrong by staying home.

For those who, like prof. Forcese, worry that the civic instincts of the abstainers will atrophy without a quadrennial exercise in walking to the polling station, I think that a “duty to consider” or a duty to be engaged in public affairs should be enough. If you follow politics and think about it, you will surely not fail to vote if or when you finally see a party that actually deserves your support, or perhaps even one that is so much worse than the others that you vote strategically against it. It is interesting, I think, that a recent poll found that people who think that voting is a choice are not much less likely to vote as those who think that it is a duty. Among the former, only 5% said they would not vote, while 11% are undecided as to whom they will support. Among the latter it was 0 and 5%, respectively. (26) The absolute numbers are probably lower than they are in reality: overall, 72% of those who were eligible to vote in 2011 said they voted, while the true turnout rate was closer to 60% ― people lie to pollsters (and I wonder whether the purportedly duty-bound do not lie more than those who allow themselves the choice). But in any event, it’s not those who think that voting is a choice who fail to vote in large numbers: it’s those who “don’t know” whether it’s a choice or a duty. Among them, 19% say they will not vote, and 31% are undecided.

In short, voting is neither necessary to promote some ulterior good, nor in itself a duty. It is a right which, as I pointed out in this earlier post discussing the claim that we ought to vote out of gratitude to those who helped secure and defend our right to do so, like all other rights, we can choose to exercise or not. This choice should not be made lightly, but it can, and should, be made freely.

It Won’t Help

This is yet another post on the duty to vote. Here, I address arguments according to we have such a duty because if everyone votes, the quality of election campaigns and, possibly, of governance, will be better than under the current state of affairs, where some people vote, and others do not. This argument, like the information- and legitimacy-based ones that I addressed previously, is instrumental, in that it sees universal voting not as an end in itself, but as a means to achieve another desirable result. And indeed this result ― campaigns and governance (is there even a difference between the two anymore? was there ever?) that are oriented toward the public good rather than to pandering to specific segments of the population ― is a most desirable one. But can it justify a duty to cast a ballot?

Susan Delacourt has argued that if voting were mandatory, people tempted to engage in electoral chicanery destined to depress turnout among their opponents would refrain from doing so. Presumably, the same thing would be true even in the absence of a legal mandate, if they knew that everyone believed voting is obligatory. I have also seen suggestions that employers would more readily allow employees time to vote on election day. Yet it is already illegal to prevent people from voting, and employers already have a legal obligation to allow their workers three consecutive hours in which to cast their ballot. I do not understand how the existence of a duty to vote, whether legal or moral, would change the calculus of individuals already prepared to break the law.

Ms. Delacourt also worries that “[s]ome of the dumbing-down of discourse” that plagues our elections “has taken place because political campaigns have become preoccupied with simply getting out the vote (often with shiny baubles) rather than a debate of ideas.” Andrew Coyne has expressed the same concern, writing that “[a]ll of the parties would be … happy if voters outside their base got lost on the way to the polling station. Elections today are not about reaching out to uncommitted voters, so much as motivating yours — typically out of fear of theirs.” (Emphasis in the original)

Yet, tellingly, neither Mr. Coyne nor Ms. Delacourt has offered any evidence that the politics of nations with mandatory voting are more high-minded, or less prone to “the dumbing-down of discourse” or resort to wedge issues than ours. It is from Australia, the country that inspires the defenders of a duty to vote, that the Conservatives have imported Lynton Crosby, the purported guru of wedge issue campaigns ― though, in fairness, the use of wedge politics responds to much broader trends, which I briefly described here, and which affect all democracies, regardless of whether they make voting mandatory. The Australian habit of changing Prime Ministers every year, or perhaps after every poll, also does not strike me as a sign of good governance. There is, in short, little reason to believe that a duty to vote is a panacea, or even a moderately useful remedy, for what ails our politics.

On the contrary, Ilya Somin points out, a duty to vote might make things worse. The people who tend to abstain when voting is voluntary are on average more ignorant than those who vote and, as Jason Brennan notes, empirical studies suggest that even forcing people to vote “doesn’t cause uninformed voters to become any better informed.” An electorate enlarged by the existence of a duty to vote is thus a more ignorant one. The trouble is, as prof. Somin explains, that “[f]or fairly obvious reasons, relatively ignorant voters are more likely to be influenced by simplistic 30 second ads than relatively well-informed ones (who, among other things, tend to have stronger preexisting views).” After all, the problem for the parties does not end with getting voters into a polling booth. Even if the voters get there on their own, they must be made to pick one party rather than another. And if simplistic ads, wedge issues, and fear are the most effective means to do that, these are the means the parties will resort to. With voters who do not care very much about politics and only vote out of a sense of duty, this is even more likely to be the case than with others. A duty to vote, then, might mean more rather than less “dumbing down the discourse” and reliance on wedge issues.

A duty to vote will not improve the state of our electoral politics any more than it will make politicians take the interests or opinions of the voters into account, or make our democracies more legitimate. It will neither prevent those who are inclined to break the law to interfere with other people’s votes from doing so, nor discourage political parties from engaging in the sort of campaigning that debases our public affairs and prevents thoughtful discussion of policy issues. In short, in my view, a duty to vote simply cannot achieve any of the purposes that its proponents invoke to justify it. Having dealt with the instrumental arguments in favour of this duty, however, I still must address the deontological one according to which voting is simply a matter of civic duty. I will do that in the next post in this series, probably early next week.

Is It Legit?

I am continuing my series of posts about the duty to vote ― or nonexistence thereof. Earlier this week, I addressed what I called information-based arguments: claims to the effect that we must vote in order to contribute our views, either about what political option is best for us, or about which of them will make for better government in the general interest. I had addressed the gratitude-based arguments in an earlier post. Here I take on a different sort of argument, which I will describe as legitimacy-based. It is the idea that it is necessary for people to vote because the continuing legitimacy of our democratic political arrangements depends on widespread participation. If abstention rates are too high, democracy itself is at risk. This argument, in my view, is both empirically and normatively problematic.

Let’s start with the normative problem. The legitimacy-based government (like the information-based one) is an instrumental one: it considers that voting is a duty not for its own sake, but for a ulterior purpose. In order for democracy to endure and thrive, you ought to vote. But not everyone agrees with this purpose. A democratic society does not expect or require all of its members to be democrats. There are authoritarians in our midst, and there are anarchists. I happen to think that they are wrong; most people presumably think so too. But they are entitled to their opinions, and I do not see why they would have a moral duty (still less, of course, how one could justify imposing on them a legal duty) to nurture a political system with which they disagree.

Very well, you will say, but what of the majority who do believe that democracy is the best political system, or at least the worst except all the others? Don’t they have a duty to vote in order to reinforce this system? Indeed, there is some threshold of participation below which an electoral system can lose its legitimacy and will be in danger of being replaced by less democratic arrangements. The situation of Québec’s school boards is a case in point: the commissioners and chairpersons of the boards are elected, but in 2014, only 5.5% of the province’s voters bothered to cast a ballot ― and the government is now planning on scrapping the elections. (To be clear: I have no idea whether, in that instance, less democratic means worse.) But is the theoretical possibility of this happening enough to justify a duty to vote?

Nobody actually thinks that everyone must vote in order for an electoral system, or the result of a given election, to be legitimate. The Québec secession referenda were not illegitimate because turnout was “only” 85.6% in 1980 and 93.5% in 1995. Nor were Canadian elections grounds for legitimacy concerns when turnout fluctuated around 75%. Of late, however, it has been substantially lower ― around 60%. But for all the worries about the vitality of Canadian democracy that these numbers have provoked, they would be reasonably high for presidential elections (never mind, say, mid-terms) in the United States. I’m not sure anyone worries about the survival and legitimacy of democracy in the United States, at least not because of turnout figures ― though to be sure there is no shortage of people who would like them to be higher. The same goes, to the best of my knowledge, for Switzerland, where turnout in the three federal elections held since 2000 has consistently been below 50% (45.2% in 2003, 48.9% in 2007, and 49.1% in 2011).

All that to say that while there is some turnout threshold below which the viability of a democratic system can come into question, it is quite clearly situated well below the turnout levels actually observed in Canadian elections. Quite clearly, nothing like near-universal participation in elections is necessary for a well-functioning democracy. It is thus not at all clear that an individual’s commitment to democracy translates into a duty to vote. Besides, that commitment can be expressed in any number of ways other than voting, a topic to which I will come back in a subsequent post.

The legitimacy-based argument sometimes has a somewhat different focus, reflecting a concern not with the vitality of the democratic system as such, but with the legitimacy of specific governments. Thus Andrew Coyne worries that “‘[m]ajority’ governments are now formed in this country with the support of barely one in five adult citizens — about the same as elected governments a century ago, when women were not allowed to vote.” In his view, this amounts to “a crisis of democratic legitimacy.” As with the concerns about the legitimacy of democratic politics as such, it is not clear that the crisis is real. Was there a crisis of democratic legitimacy during the presidency of Bill Clinton, first elected in 1992 with 43% of the popular vote on a turnout of 55.2%, and thus the votes of 23.7% of the registered voters, re-elected in 1996 with 49.2% of the votes cast out of a turnout of 49%, and thus the support of 24.1% of the registered voters? If there was, why is it that more than 60% of the American people apparently approved of that job he had done by the end of his second term? Actually, I doubt that Mr. Coyne or others who trot out this particular argument really believe in it. It is a nice rhetorical flourish, and nothing more.

The need to preserve the legitimacy of our democratic system or even of the governments that it produces cannot justify a duty to vote even for those who accept that this need is a pressing concern ― which is not everyone in politically free and pluralistic societies. There are at least a couple of other arguments in favour of such a duty that I have not yet addressed, however. I try to do so shortly. And if you are worried that I will miss your favourite one, do not hesitate to tell me about it!

Vote Did You Say?

I am finally beginning my promised series of posts arguing that we do not have a moral duty to vote. In this post, I address arguments in favour of such a duty based on the idea that elections are an information-gathering mechanism. When the information collected through elections is incomplete because some people did not vote, governance will be defective and likely skewed. To avoid these problems, everyone has to vote. Such arguments come in distinct flavours, and I will address two of them specifically, but they also suffer from common problems.

* * *

The first and perhaps more common version of the information-based argument in favour of a duty to vote starts with the premise that by voting we provide those who look at electoral outcomes ― including, first and foremost, the politicians whose jobs depend on them ― with information about our needs and preferences. People who stay home fail to do that, and politicians ignore them in their decision-making as a result. Thus Susan Delacourt has written that “a disengaged public makes it easier to govern — or worse, ignore troublesome issues and constituencies (youth, for instance).” The tendency of some groups not to vote, and the (alleged) tendency of politicians to ignore their (alleged) interests as a result is a particular concern of those who favour this argument.

Jason Brennan has addressed this concern in some detail (he calls it the “demographic argument”) in a post over at Bleeding Heart Libertarians. The most important point he makes there is that “the argument seems to presume that voter[s] vote for their self-interest. But we have overwhelming empirical evidence … that they don’t vote their self-interest. Instead, they vote altruistically, for what they perceive to be in the national interest.” And while the people who do vote are likely enough to be mistaken about what is in the interest of those who don’t, people who tend not to vote and, in particular, “[t]he disadvantaged are much more likely to be mistaken in their beliefs about what it takes to help them,” (emphasis Brennan’s) because their levels of political ignorance are even higher those of the people who do vote. If these people vote out of a sense of duty, politicians might start taking their expressed preferences into account (though as I’ll explain below, that’s doubtful), but that won’t make them better off. A duty to vote will thus not make for better or fairer governance.

* * *

The other version of the information-based argument in favour of a duty to vote gets off to a better start, because it assumes that voters are indeed non-selfish. As Andrew Coyne has put it,

Voting isn’t like buying a soft drink. When you cast your vote, you aren’t just making a choice about you and your needs. You’re helping to make a collective decision about providing for everybody’s needs. The broader the sample of voters, the more representative of everybody it is likely to be — rather like the census — and the greater the combined stock of experiences and insights brought to bear. Conversely, if some “free ride” on others’ willingness to vote, the whole of the community suffers. You owe your fellow citizens your counsel, in other words. You benefit because they vote. You owe them no less in return — just as you owe them your share of the cost of public services.

The trouble with this reasoning (Prof. Brennan has called it the “public good argument”) is that the problem of political ignorance is even more acute for it than for the “demographic” one. If what we care about is collective wisdom, then some people ― especially, as it happens, people who tend not to vote, but also, in reality, a great many of those who do ― would actually help the community not by voting, but by staying as far away from the polling stations as they can.

Now, people who find this argument attractive will often say that the whole point of a duty to vote is that it will get people to become more engaged with and less ignorant about politics. Trouble is, as Prof. Brennan points out that, that “there are a bunch of empirical studies on this looking at various natural experiments, and the answer is no, compulsory voting doesn’t cause uninformed voters to become any better informed.” And it’s pretty obvious why this should be the case. Acquiring information relevant to voting is difficult. There is a lot to learn, both about the world and about what the politicians plan on doing to it. Learning takes time, energy, and ― a non-negligible point ― a willingness to confront “inconvenient truths” that make you uncomfortable with your prior beliefs. As Ilya Somin pointed out, it is “rational for most voters to stay ignorant, given the low chance that their knowledge will make a difference.” It is telling, I think that the defenders of a duty to vote mostly just say that it will spontaneously cause people to become better informed and more engaged ― not that there is in fact a duty to do so. They realize that, unlike the duty to vote, a duty to become a competent citizen is a very onerous one. (Of course, it is also possible to be an informed and engaged citizen without voting. I’ll develop this thought further in a separate post.)

* * *

The arguments and counter-arguments I have canvassed so far all presume that voting is a reasonably effective information-gathering mechanism. To think that voting tells politicians what the voters want or that it is a way of aggregating their wisdom about how best to run government, you need to think that it produces a relatively intelligible message, and also that politicians are able and willing to actually understand and act on this message. But these assumptions are unfounded.

Voting in an election is actually an incredibly bad way of sending any sort of message to anyone. It is a choice between, realistically, two or three options; perhaps a few more, depending on the voting system and the circumstances of each election, if you pretend that every candidate has a chance. And each of these few choices ― certainly each of the ones that have any chance of winning ― comes with a full panoply of policies (however vague) on all sorts of topics (however trivial), boasts (however exaggerated) about its leader’s character , and insults (however unfair) for its opponents. A vote can be based on any of these policies, boasts, or insults, singly or in combination. Or it can be based on whose name came first on the ballot, or some other utterly irrelevant consideration.

So how do we know what message a given set of electoral outcomes conveys? If, say, the Conservatives win on October 19, will it be because they hate the niqab, because Stephen Harper is the devil we know, or because Justin Trudeau is just not ready? That’s a trick question: nobody will know the answer. As Hans Noel explains in a very useful essay called “Ten Things Political Scientists Know that You Don’t,” “[t]hese narratives are created after the fact by people who want you to think one thing or another.” Even if the adage vox populi vox dei is true, an electoral outcome is no more than a Pythia’s mumbling ― to be interpreted by self-interested priests.

Things get even more muddled once we account for the possibility that people who show up at the polling station out of a sense of duty will not actually vote for anyone at all. Canadian advocates of mandatory voting tend to favour the inclusion of a “none of the above” option on the ballot. And those who believe that there is a duty to vote will typically say, like Mr. Coyne, that “[y]ou could … decline the ballot, or spoil it, or otherwise register your dissatisfaction with the choices on offer” ― you just need to show up. Needless to say, if you are voting “none of the above” or, a fortiori, if you are spoiling your ballot, you are not sending much of a message, whether about your own interests or what you think the country’s interests are. (By the way, Australia, a country from which the proponents of mandatory voting often say they draw their inspiration, does not have a “none of the above” option, and actually forces voters to rank all the candidates to cast a valid ballot. If both a Communist and a Marxist-Leninist are running in your riding, you need to say which you like more. Although there no Communists and no Marxists-Leninists in Oz. Their parties are actually much crazier than that.)

If you think that I just dislike democracy, or our version of it, you are mistaken. I share Churchill’s opinion that democracy is an imperfect political system, and indeed the worst one ― except all the others. I appreciate the blessings of political choice ― such as they are. I just don’t think that an electoral system’s purpose is to send any deep messages to the politicians or to anyone else. It’s to provide a mechanism for choosing people who will make decisions and, importantly, to ensure that the people in charge know that they are replaceable on relatively short notice, which tends to keep them somewhat honest. Our political system does that reasonably well. Pointing out that it’s useless at something it’s not meant to do is not a criticism at all.

There actually exists a much better mechanism for aggregating people’s preferences and putting their knowledge in common. Unfortunately, politicians tend to impede rather than support its functioning, and do their utmost to ignore its lessons even when these are clear. It’s called the market. (Nobody thinks, however, that a person is “free riding” on the market’s information-gathering by refusing to participate in it and thus contribute his or her “insights” about what the prices in that market should be.) Mr. Coyne points out that “[v]oting isn’t like buying a soft drink.” That’s quite true, but not in the way Mr. Coyne suggests.

As prof. Somin often says (sorry, I’m too lazy to track down a specific post for reference), when people make market decisions, they have a strong incentive to become informed about the choices available and their consequences, because the decision they make will affect them a great deal. Voters lack this incentive, because the chance of a single vote affecting anything is very small. (That is true, by the way, under any voting system ― not just first-past-the-post.)

Moreover, the market allows for much more fine-grained decision-making than do elections. Getting a can of Coke in preference to a Pepsi doesn’t commit you to, say, buying an iPhone instead of a Samsung, and leasing a Ford car instead of just taking the bus. But voting does ― you cannot vote for, say, the Conservative policy on health transfers, the NDP policy on anti-terrorism legislation, the Liberal policy on marijuana, and none-of-the-above on kowtowing to the dairy cartel. Indeed, voting for a party is the equivalent of committing to Coke, Apple, and Ford for the next four years.

Again, that’s not to say that we should scrap voting altogether. The market isn’t the best mechanism for making every decision. But so far as information-gathering is concerned, it is greatly superior to voting. If we really cared about having as much information as possible about people’s preferences, and about maximizing the use of their individual knowledge for the public good, our governments would regulate less, and let the markets decide more. Instead, even when the market sends very clear signals, such as that many people prefer Uber to the taxi cartels, politicians turn a blind eye to these signals, unless they actually try to stamp them out by regulating even more.  Politicians, I conclude, are not actually interested in information about what people want. They will say otherwise, of course, but actions speak louder than words.

* * *

Making the case for a duty to vote on supposed information-gathering properties on the electoral process is a perilous exercise, because elections are simply not are intended to aggregate information. They serve to choose Parliaments and, indirectly, governments. A vote does not communicate much of a message either about a person’s own needs and preferences or about his or her views as to how the country ought to be governed. When you vote, nobody can tell what it is that you are trying to say. Besides, when people make their views clear in the marketplace, politicians tend to simply ignore them, or even try to eliminate the market’s information-gathering abilities. The information-based case for a duty to vote is not a persuasive one.

But, you might say, it’s not the real case for a duty to vote. Please stay tuned. I’ll address other arguments over the next few weeks. And if you’re worried that I might not address you personal favourite, please get in touch, and tell me about it!

Show ‘Em

Earlier this week, an American court issued a decision on a topic that is all but certain to come up for discussion in the weeks after October 19: the ballot selfie, and the attempts ban it. Judge Barbadoro of the U.S. District Court in New Hampshire declared unconstitutional that state’s law that made it an offence to show one’s completed ballot to another person “with the intention of letting it be known how [one] is about to vote or … has voted,” including by means of “taking a digital image or photograph of [the] marked ballot and distributing or sharing the image via social media or by any other means.” Over at the Election Law Blog, Rick Hasen comments on the decision, hoping that it will be reversed on appeal.

For my part, as usual, I express no views on the propriety of this outcome under American law. However, because the issue has already come up in Canada (though without as yet resulting in a court judgment, so far as I can tell), and is very likely to come up again, I think it worthwhile to briefly summarize the court’s reasoning, and highlight a number of very interesting questions that it gives rise to.

Judge Barbadoro’s decision begins with a review of the history of the secret ballot ― or, as he calls it, the “Australian” ballot ― in the United States. As in the United Kingdom (about which I blogged here) and in Canada, elections prior to the introduction of the secret ballot were a brutal business. Corruption and intimidation, even violence, were commonplace. The use of the secret ballot, as well as legislation targeting such manipulation of the voters more directly, helped mostly (although not entirely, the judge says) eradicate it. Indeed, there is no evidence of voters being threatened or bought in New Hampshire recently, and the supporters of the ballot selfie prohibition did not cite any such cases, beyond one dubious anecdote, in defending the law.

Applying the analytical framework developed by the U.S. Supreme Court for freedom of expression cases, Judge Barbadoro then asks whether the prohibition is a “content-based” restriction on speech and, having concluded that it is, whether it is “narrowly tailored” to serve a “compelling government interest.” The judge concludes that the law meets neither of these conditions. While preventing corruption at the ballot box is a compelling interest in theory, the government must also “demonstrate” that it is invoking it to address an actual problem. Since there is no evidence of corruption or intimidation actually going on, the government has failed to do so:

even though small cameras capable of taking photographic images of ballots have been available for decades and cell phones equipped with digital cameras have been in use for nearly 15 years, the [State] has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion. (32)

Judge Barbadoro adds that even if he had found the government’s interests compelling, he would still have held that the prohibition on ballot selfies is not “narrowly tailored.” Instead of banning people from sharing images of their ballots regardless of their motivations for doing so, it should focus on the use of such pictures to enable corruption and intimidation. In any case, “[t]he few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved.” (38)

The most important question judge Barbadoro’s conclusion elicits concerns the role of the courts in cases where they are dealing with prophylactic legislation, which aims not to address existing problems but to prevent problems from happening in the first place. By their nature, such laws are harder to justify by reference to evidence. And it stands to reason that that could open to the door to governmental abuse. Restricting constitutional rights “just in case” is a disturbing idea. Yet must the government wait for problems to arise before it can do anything about them? Especially when the problems at issue are not something inherently vague and uncertain, like the unfairness of the electoral process purportedly caused by the absence of campaign spending restrictions, but actual criminality, like bribery and intimidation. And all the more so when there is a history, albeit a somewhat remote history, of such problems actually happening.

The interpretation of this history is another big issue raised by Judge Barbadoro’s decision. What are we to make of the decline and virtual disappearance of voter bribery and intimidation in the wake of the adoption of the secret ballot and the enactment of the laws against such practices? How do we disentangle the effects of these laws from those of the secret ballot itself? Is the very success of these techniques a reason for letting ballot secrecy fall by the technological wayside? And then, there are questions about much more recent history ― specifically that of the ballot selfie and the innovations that enable it. Judge Barbadoro asserts that cellphone cameras have been around for 15 years, but how widespread were they then? The Oxford English Dictionary’s lexicographers have tracked down an example of the word “selfie” being used back in 2002, but the explosive spread of the phenomenon is surely more recent, and the idea of the “ballot selfie” might be more recent still. Is it, then, really the case that any problems that this phenomenon might generate ought to have become manifest, as Judge Barbadoro suggests? (Incidentally, while his opinion provides a wealth of citations to materials on the history of the ballot, this technological history is merely asserted.)

Finally, I think it is worth asking whether outright corruption or threats are the only reasons to worry about ballot selfies. In fairness to Judge Barbadoro, they were the only reasons asserted by the New Hampshire prohibition’s defenders. And the judge is probably right that people involved in corruption or subject to intimidation are unlikely to post their ballot selfies on social media. They’ll just show them to the persons paying or threatening them, and go undetected. But should we not also be concerned about the more diffused social pressure that can be brought to bear on people who let ― or those who fail to let ― others know how they voted? Should we not worry about people being pressured to vote, or to vote in a particular way, and to prove that they have done so, not by a specific manipulator, but by their online peers? People involved in “shaming” a person who didn’t vote to their satisfaction might not be committing an offence, and the line between legitimate and immoral behaviour in this realm is probably too blurry to lend itself to legal implementation. In this respect, the prophylactic prohibition on ballot selfies might actually be necessary.

As I said that in the post linked to above, I believe that the secret ballot “was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.” And I am inclined to further believe that even coercive enforcement of ballot secrecy is justified. My hunch is that Canadian courts would agree, though I haven’t thought the matter through in detail. (I’ll try to do that before October 19.) In the state whose motto is “live free or die,” however, you’re now entitled not just to tell people how you voted, but to show them, too.

UPDATE: Prof. Hasen now has an op-ed for Reuters, further explaining his views. His most compelling argument, in my view, is the following:

the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.

Persuasion and Voting from Abroad

When Norman Spector and I debated the disenfranchisement of Canadians abroad on the CBC’s The 180 a couple of weeks ago, he pointed to the fact that some expatriates ― such as Americans he met in Israel while he was Canada’s ambassador there ― vote on the sole basis of the candidates’ policies towards their current country of residence. I replied that there are plenty of single-issue voters in Canada too, and that there is no good reason for treating expatriates differently from them. Life has come up with an ironic twist on this particular argument: an effort is underway in Israel to “to send a small group of Canadians living currently in Israel that will go back to Canada in order to vote in the coming elections [and] encourage the Canadian Jewish Community to go out and vote for him.” The project’s founder, Dan Illouz, claims that “Stephen Harper is Israel’s greatest friend amongst world leaders,” and deserves the Israelis’ help and support.

Mr. Illouz is, clearly, not very well acquainted with Canadian election law, if he thinks that the missionaries he proposes to send to Canada will be able to vote here. They won’t, since they are not registered to do so. He also appears to be unaware if the fact that “[v]oting through absentee,” as he puts it, is not an option available to those Canadian citizens who, like him it would seem, have resided abroad for more than five years. And, while I cannot be sure of that, I somehow suspect that he is equally unaware of Mr. Harper’s government not only having vigorously defended the disenfranchisement of Canadians abroad in the courts, but also having introduced a bill, C-50, that would have made it well-nigh impossible for any Canadian expatriate to vote.

Those Israelis who are contributing to Mr. Illouz’s effort might also want to consider the fact the Canada Elections Act provides that a person who is not a Canadian citizen or permanent resident and does not live in Canada may not “during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.” Mr. Illouz and his hypothetical emissaries are within their rights, being Canadian citizens, to induce others to vote for Mr. Harper. But to the extent that financial contributions that enable their efforts are themselves a form of “inducement,” those of their contributors who are not Canadian are not. (If you think that’s unjust, consider that the Canada Elections Act also prohibits people who are not citizens or permanent residents from contributing to political parties, and ― after amendments enacted under Mr. Harper’s government ― provides that people who are not citizens or permanent residents and do not live in Canada are not allowed to run third-party election advertising. For my part, I’m not quite sure whether any of these prohibitions are justified, but there they are.)

Anyway, I am writing about this not in order to educate Mr. Illouz and his contributors about Canadian election law, but rather to highlight the inconsistency in that law’s relationship to Canadian citizens who live abroad. They are allowed to contribute to political parties, to advertise during election campaigns (subject to the same, admittedly excessively stringent, limits that apply to all Canadians), and otherwise to seek to influence the outcome of Canadian elections. Yet they are not allowed to vote themselves. Frankly, I don’t see how that makes any sense.

Why Disenfranchising Canadians Abroad Is Wrong

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad.  I summarized the decision, Frank v. Canada (Attorney General), 2015 ONCA 536, in my previous post. Here, I make a number of comments that explain why I believe that the majority is wrong, and Justice Laskin, who dissented ― quite angrily, going so far as to call some of the arguments the majority adopted “inventions” ― is right.

First, the majority’s attempt to tie the right to vote to a “social contract” in which one participates by obeying the laws of Canada and paying taxes to Canadian authorities fails not only because the constitutional text explicitly ties it to something else ― namely, citizenship ― but also because our political practice does as well. Permanent residents too must obey the laws and pay taxes, but they lack the right to vote, no matter how long they have lived in the country. Many permanent residents will have plenty of relevant knowledge, and be affiliated in a myriad informal ways with their communities and even Canada as a whole, in addition to obeying the laws, which the majority says are the things on which “the right to vote is premised.” [91] Yet they lack this right. That’s because, contrary to the majority’s assertion, that right is premised on something else.

A second, related, point, is that tying the right to vote to obedience to laws and, especially, to paying taxes, can just as easily serve to disenfranchise Canadians in Canada as those abroad. People who live on the margins of society, perhaps in a more or less deliberate attempt to avoid the reach of its laws, or those who do not make enough money to pay much (if any) tax, could be deemed less worthy of the franchise than other Canadians. As Justice Laskin points out, both the evolution of our electoral laws and the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68 suggest that this reasoning is unconstitutional.

Third, the majority is wrong to invoke the fact that Canadian laws tend not to reach outside Canadian borders as a reason for restricting the expatriates’ right to vote, because that is just a contingent fact about Canadian legislation as it exists now, which can neither be taken for granted nor used to justify the curtailment of a constitutional right. As a matter of law, Parliament is free to legislate extraterritorially. It could, if it wishes, require Canadian citizens who live abroad to pay taxes to Canada on their foreign income ― as the United States requires its expatriates to do ― at its next session. To say that because Parliament does not do so now, Canadians abroad need no voice in electing its members is to let the statutory tail wag the constitutional dog.

Fourth, the majority’s description of the “social contract” as an exchange of obedience to laws, especially fiscal laws, against the right to vote assumes away many important functions of government that continue to affect Canadians who live outside the reach of most Canadian legislation. While it is true that we only (directly) elect legislators, whose main function is to enact laws, we cannot be blind to the fact that in our constitutional system, Parliamentary elections also serve to elect, albeit indirectly, the executive. The executive, in turn, defines foreign policy, and is responsible for a variety of decisions that affect Canadians who live abroad. Will you be evacuated or otherwise helped in a crisis? How will your consulate be staffed? What sort of attitude will you be confronted with at the border when you travel home? And even, what will people think of you when, to the inevitable “where are you from,” you answer, “I’m Canadian”? The answers to these questions depend, if only indirectly and partially, on the results of elections, and thus give Canadians abroad a stake in the government of their country which the majority simply ignores.

Fifth, as Justice Laskin suggests, the sort of country they will return to matters to Canadians who live abroad, no matter how long they do so. The laws enacted today will continue to apply for years, maybe decades, to come. Path dependency is no less real in public policy than in our private lives. Being deprived of a say in the government of Canada today means that you lose that meagre measure of control over its future to which other citizens are entitled, even though you have the same right as they to live there. Indeed, one is entitled to vote, in Canada, on the eve of one’s permanent emigration from the country, but not, outside Canada, on the eve of one’s permanent return.

Sixth and last, at a more philosophical level, the majority’s understanding of the “social contract” is also problematic in its exclusivity. For the majority, one is either a member of the Canadian social contract or of that of some other country. Attachment to more than one society is impossible. If one lives abroad long enough, one simply withdraws from the Canadian social contract, even if one does not become a citizen of one’s new country of resident, and even though, as the majority recognizes, it is quite possible to maintain a subjective attachment to Canada from abroad. Indeed, subjective perception is insignificant. You may consider yourself Canadian, but objectively, you are not. I think that this is a condescending attitude to take, and it is not the least regrettable of the many regrettable features of the majority opinion.

I can only hope that the respondents have the stomach, and the resources, for keeping up their fight (they are, according to a website set up by their lawyers, “considering next steps.”) I can also only hope that the Supreme Court will actually agree to hear their appeal, should they file one. I have, however, no doubt as to what the outcome of such a hearing, if it takes place, ought to be.

Shut Up!

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad. The judgment, Frank v. Canada (Attorney General), 2015 ONCA 536, reverses that of the Superior Court, which had ruled that the provisions of the Canada Elections Act that prevent Canadians who have resided abroad for more than five years are unconstitutional. The majority opinion, written by Chief Justice Strathy, endorses the federal government’s argument that disenfranchising Canadians abroad is the least restrictive means to achieve a pressing and substantial objective of preserving the Canadian “social contract.” Justice Laskin has a forceful, indeed in my view a compelling, dissent.

* * *

For Chief Justice Strathy, the key to the appeal is a “social contract” pursuant to which “[t]he electorate submits to the laws because it has had a voice in making them.” [5] Because expatriates need not “submit” to the laws of Canada, it is fair to exclude them from participating in making them. Citizenship by itself is a guarantee (entrenched in the Canadian Charter of Rights and Freedoms) of some rights. However, “[a]dding a layer to citizenship, residence and physical presence can have an important influence on the rights and obligations of Canadians.” [74] Among other things,

[r]esidents, whether citizens or not, pay the full array of taxes that support government programs. Most important, only residents are regularly required to obey domestic Canadian laws. With limited exceptions, the laws enacted by Parliament do not reach outside Canadian borders. What this means, on a practical level, is that while resident citizens may enjoy greater privileges than non-resident citizens, they also bear greater responsibilities and burdens. [74-75; paragraph break removed]

In particular, “[a]s a practical matter, Canada does not purport to legislate extra-territorially in most cases. Nor does it attempt to enforce its laws outside the country.” [106] So long as they stay abroad, it is the laws of their place of residence that apply to Canadian expatriates, and it is to their countries of residence that they pay taxes.

While depriving a Canadian citizen of the right to vote is a “straightforward” [81] breach of section 3 of the Charter, Justice Strathy finds the breach justified with respect to non-resident citizens because, not being subject to all the “responsibilities and burdens” of citizenship, they have withdrawn from the “social contract,” which would be undermined by allowing them to exercise the right to vote. The “social contract” involves a “reciprocity between civic rights and responsibilities” and, more specifically, “a mutuality between the franchise and the citizen’s obligation to obey the law – between political rights and political obligations.” [94] In support of this notion of “social contract,” the Chief Justice invoked a passage from the majority opinion in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, at par. 31, which alluded to the

vital symbolic, theoretical and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter, stands at the heart of our system of constitutional democracy.

As Chief Justice Strathy notes, “[i]t remains necessary to ask whether Parliament’s intention,” in limiting the ability of Canadians resident abroad to vote, “was to protect the social contract.” [100] While this limitation was mainly justified, the Chief Justice says, by “concerns … primarily directed at the subjective connections of non-residents based on their knowledge and ties to Canada,” the relationship between residence and the duty to obey the law “is an equally important part of this connection and was implicit in the rationale underlying the law.” [103] According to the Chief Justice, this rationale is of sufficient importance to justify depriving Canadians abroad of their voting rights.

The Chief Justice also finds that the restriction imposed by Parliament is proportional to its purpose. It is rational, because “the legislative objective is to maintain the connection between the voters, the lawmakers and the laws,” and “the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order.” [131] This is in contrast, says Justice Strathy, to “military personnel, public servants posted abroad and employees of international organizations,” who are exempt from the five-year limitation on their voting rights, because “these citizens have not voluntarily severed their connections with Canada in the pursuit of their own livelihoods – they have done so in the service of their country.” [143] For the others, the five year limit is minimally impairing ― that is to say, it “is a reasonable cut-off.” [144] Although the number, like any number, is to some extent arbitrary, it corresponds to “the maximum life of a Parliament” [151] and “is generally enough time to complete a university degree, a common reason for Canadian citizens to spend time abroad.” [152] It is a reasonable proxy for the distinction between temporary and long-term absences from the country, in addition to being in line with the rules established elsewhere in the Commonwealth (specifically, in Australia and New Zealand). Finally, Justice Strathy concludes that “the solidification of the bond between the electorate and the elected” [156] that results from limiting expatriates’ voting rights outweighs the deprivation, which in any case is temporary, since the citizen recovers his or her right to vote upon resuming residence in Canada.

* * *

Justice Laskin dissents. He observes that this “case raises the constitutionality of the last significant piece of federal legislation denying the right to vote to a group of Canadian citizens.” [161] For him, the denial is unjustified. His first argument, which I will skip here (although I find it compelling) is that the Court should not even have entertained submissions regarding the social contract, which were not made at first instance and for which there was no evidentiary basis. Second, Justice Laskin contends that, contrary to what the Chief Justice found, Parliament’s decision to impose a five-year limit on the expatriates’ voting right did not aim at preserving the “social contract.” Accepting a restriction of Charter rights on this basis is a violation of the rule that a statute’s purpose cannot “shift” between its enactment and the consideration of its constitutionality by a court.

Justice Laskin points out that “not a single parliamentarian, not a single study, recommended a five-year non-residency limitation in order to preserve or strengthen our social contract.” [199] Indeed, the relationship between residence, the duty to obey the law, and the right to vote “is an artifice, conjured up by the Attorney General to avoid running up against the shifting purpose doctrine.” [202] The alleged legislative purpose, Justice Laskin says, was “invented by the government long after 1993; indeed, it appears to have been invented after this case was decided” at first instance. [204]

In any case, even if that objective could justify a restriction of the expatriates’ right to vote, it fails to do so. No fewer than four Parliamentary reports recommending allowing all Canadians abroad to vote, which suggests that the objective is not pressing and substantial. Besides, it is not true that residence in Canada is necessary for participating in the Canadian social contract. The world in which residence was the key to participating in a political community (and in which “only male property owners could vote” [221]) no longer exists. The Charter provides a single criterion for membership in “the community of eligible voters,” “much more suited to the world we now live in,” [221] ― citizenship.

To be sure, “more laws, even many more laws, affect residents than non-residents. But even among residents, legislation does not affect all citizens equally.” [223] It is not the case “that the number of laws a Canadian citizen is subjected to can be tied to the preservation of the social contract.” [223] Justice Laskin also points out, as did the judge at first instance, that the decisions of the Canadian government do, in fact, affect expatriates, and will do so in the future, including after their return to Canada.

Justice Laskin criticizes the majority for the way it used the Supreme Court’s decision in Sauvé, which expanded voting rights, to justify their restriction. For him, “the majority reasons in Sauvé [are] an uncompromising defence of the right of every Canadian citizen to vote, even those convicted of the most heinous crimes.” [229] Sauvé also cautioned against accepting purely symbolic governmental objectives, and specifically rejected the argument “that prisoners were not entitled to vote because they have opted out of membership in the community.” [234]

Justice Laskin also argues that even if the objective of preserving the social contract were pressing and substantial, the five-year restriction would not be proportional to it. The limit, and the exemption for civil servants, members of the military, and their family, “ha[ve] everything to do [with] worthiness” [244] ― the putative worthiness, that is, of the different categories of Canadians who reside abroad. It is not a rational way to preserve the “social contract,” because many expatriates, whatever the reasons for which they live outside Canada, “have not renounced membership in the Canadian polity.” [245] Furthermore, because the exemptions are not tailored to the law’s objective in any meaningful, evidence-based way, the five-year limit is not minimally impairing of the right to vote. Finally, the limit’s positive effects, if any, are outweighed by the harm of the deprivation of the right to vote: laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Justice Laskin points out that

laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Yet Canadian citizens abroad for more than five years … will have no voice in the future direction of their country even though they have family here, intend to return here, and thus will be affected by laws enacted while they are abroad. [252]

* * *

In a majority opinion that does not deign so much as to mention the dissent, the Court of Appeal answers the question of whether Canadians can have a voice in the government of their country after they exit it by a resounding “shut up!” As I indicated above, I think that the majority is absolutely wrong to do so. Justice Laskin’s dissent is correct (except, that is, for his description of J.S. Mill, born in 1806, as an “18th century political philosopher” [203 & 235]). In a separate post to follow shortly, I will make a few additional points that do not so much add to his reasons as sharpen some of his arguments.

UPDATE: The additional points are here.

Debts of Gratitude

Over at the CBA National Magazine, Rebecca Bromwich has an interesting article reminding us of our debt of gratitude to the campaigners for women’s suffrage, and arguing that we owe it to their memory to vote it in the upcoming election. The first point is important and well-taken. The second, in my view, does not follow.

Prof. Bromwich points out that

The story of Canadian democracy is one in which a debt is owed to military men, yes, but it is also a story of people of courage in civilian life, ordinary people doing extraordinary things. It was not just soldiers on battlefields who won for us our democracy but we owe our democratic rights but also women suffragists, who undertook many years of struggle, were beaten, jailed, went on hunger strikes, carried out acts of civil disobedience, and even died, for their cause.

That’s very true, and the reminder is important. People who agree with prof. Bromwich that gratitude to those to whom “we owe our democratic rights” is a reason for voting are indeed apt to single out soldiers in that category. But if the right to vote was preserved, at least in part, on the battlefield, it was largely won elsewhere. The activists who obtained the extension of the franchise to groups excluded from it ― and women, of course, were by far the largest such group ― also deserve our admiration and appreciation. Prof. Bromwich names many of those who helped create “firsts” in women’s suffrage, but let me also mention Thérèse Casgrain and Idola Saint-Jean, two of the campaigners who saw to it that the women of Québec were finally able to vote in provincial elections, albeit a generation after they gained that right for federal elections.

And let me mention, too, other “people of courage in civilian life” to whom we also owe our democratic rights. For example the citizens of the riding of Charlevoix who, in 1876, braved social reproof and religious condemnation to bear witness to the Catholic Church’s campaign of intimidation against those who dared exercise their franchise in accordance with their own conscience rather than that of their priests and bishops ― a story told in the report of the Supreme Court’s decision in Brassard v. Langevin, (1877) 1 SCR 145, and one I summarized here. And spare a thought, too, for the legislators who, even if too late, acceded to the suffragist campaigners’ demands. If we can lionize judges who recognize rights from the security of their life-tenured offices, we should do no less for legislators who put their career on the line for doing it.

All that said, unlike prof. Bromwich, I do not think that awareness of these debts of gratitude ought to “entice Canadians – all Canadians – to actually use their right to vote in the federal election set to take place” this fall. I would not support “a resolution that connects the centennial anniversaries of milestones in the achievement of women’s suffrage in Western Canada with the imperative for all Canadians to vote in the federal election.” I do not believe that our debts of gratitude to those who helped obtain or preserve our right to vote can translate into some sort of moral obligation to exercise this right.

Voting, needless to say, is not the only one of our rights that was took the courage and sacrifices of many people to be recognized. Yet one never hears that we owe it to those who won or defended these rights to actually exercise them. It is never said, for instance, that we ought to honour, say, Frank Roncarelli by attending worship (even at an atheist Church if we are so inclined!). There are very good reasons for honouring him, of course, but not only is it not incumbent on every citizen who benefits from his sacrifices to do so, but even if one is wishes to honour him, this can be done in any number of ways. Is there something special about the way in which the way in which the right to vote was won that compels all of us to honour those who won it by exercising it? I don’t think I have ever seen an argument to that effect.

There are, of course, other arguments in favour of a duty to vote. Prof. Bromwich mentions one of them when she says that “[t]he exercise of the right to vote is crucial for the legitimacy and healthy functioning of democracy.” (I do not find this or any other such argument persuasive, but that’s a matter I’ll take up in other posts as we approach the election.) However, these arguments are independent from the one based on gratitude. If it were true that we must vote in order to preserve a legitimate and well-functioning democracy, that would be true even democracy were the only political regime the world had ever known and there was nobody to thank for universal suffrage.

While I’m not convinced that this is a matter of duty rather than “merely” of civic virtue, we should of course be grateful to and honour those to whom we owe our rights. In the case of the right to vote, it is important to remember that our debt is not only to defended our democracy against totalitarianism, but also to those who helped create this democracy in the first place. But there are many ways to honour these people. Exercising the franchise is one of them, but not the only one. Our gratitude cannot ground a duty to discharge our debt to them in this specific way.

Rights and Votes, Again

The Irish referendum on same-sex marriage has brought a common trope back into the public discourse: rights should not be subject to voting. There are actually a number of distinct claims that can be advanced under this heading, although they are often run together, as for instance in this piece by Saeed Kamal Dehghan in the Guardian. These claims range from plausible (although far from certain) to outright silly.

The plausible version of the rights-should-not-be-subject-to-voting position is the claim that rights should not be subject to voting in a referendum. (Perhaps this is the view that Mr. Dehghan really wants to advance in his article, although, as I will explain, this is not very clear.) A referendum campaign may indeed be a poor way of debating about rights. The ignorance of much of the electorate ― which of course goes hand in hand with the prevalence of stereotypes, usually unflattering ones, about minorities ― may make it unfit to decide important issues, even assuming that it is fit to choose representatives who eventually decide them. I have some sympathy for this view; I certainly have no desire to live in a direct, rather than a representative, democracy.

That said, even the claim that issues of rights should not settled by popular vote is both under- and over-inclusive. It is under-inclusive because all sorts of other issues should not be settled by popular vote either, for very similar reasons. I would not want income tax rates set in a referendum, for instance. If anything, rights issues may be simpler, and thus more amenable to resolution by way of referendum, than some policy matters. On the other hand, there seems to be something like an international consensus that secession of political communities is a matter that must be settled by referendum, and secession, as the Supreme Court of Canada has rightly pointed out, necessarily has an impact on minority rights. In short, the issue of whether a given topic can be resolved by referendum, and why, is not an easy one, and we must be wary of rushing to conclusions based on nothing more than hunches.

A stronger version of the rights-should-not-be-subject-to-voting position holds that rights should not be subject to any sort of democratic vote, including that of a legislature. Thus Mr. Dehghan quotes Ayn Rand’s assertion that “individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority.” This claim, in my view, is quite clearly wrong. Legislation enacted in the normal course of governance will often affect rights. Must every bill that could conceivably affect someone’s rights be stopped in its tracks so that a court can rule ― in the abstract, without knowing how the bill would be applied in real life ― on the rights issues it raises? France actually has something like that system, but of course even there, it takes a group of (democratically elected) politicians to refer a bill to the Conseil constitutionnel. (A few years, France has authorized the Conseil constitutionnel to also rule on the constitutionality of a statute after its enactment, on reference by a court.)

Now it is certainly possible to argue that courts, rather than legislatures, should have the last word on issues of rights. But the last word isn’t the same thing as exclusive competence. Legislatures can debate and vote on rights ― as they have long done ― and the courts should be available as a last resort, to respond to legislative abuse or inaction. We should not forget that legislatures have done much for rights. In much of the world, including in Canada, it was legislatures that, for instance, created (almost) universal suffrage, decriminalized homosexuality, or abolished the death penalty. All of this involved individual rights being subject to public votes. Were those votes somehow wrong?

And then, there is the paradox that ought really to be embarrassing to the defenders of the claim that rights should not be subject to democratic votes. Judicial review, which they presumably think the proper mechanism for settling issues of rights, is normally itself a creature of a democratic constitution-making process. The rights which it enforces may (or may not) be natural rights, but they are still recognized, expressly or by implication, in constitutional texts enacted through some sort of democratic process.

The strongest version of the rights-should-not-be-subject-to-voting position is the contention that rights should not be subject to any sort of vote at all. I’m not sure whether anybody seriously thinks that, although Mr. Dehghan concludes his article by endorsing Rachel Maddow’s insistence that “[h]ere’s the thing about rights – they’re not actually supposed to be voted on.” There is no qualification here about who isn’t supposed to vote on rights. On its face, this statement applies to judges as well as to voters and legislators. Yet if it really means what it says, this claim is not just wrong, but actually silly. If people are to live together, issues of rights need to be settled somehow. Negotiation is unlikely to be of much assistance, because there are too many individuals affected. Realistically, there are only two options: legislation, or adjudication. And, as Jeremy Waldron points out in a recent essay which I discussed earlier this week, the latter mechanism, no less than the former, ultimately relies on voting.

The dirty little secret of judicial review ― not much of a secret, really, but something that we try not to think about unless prof. Waldron forces us to ― is that it sometimes leaves issues of rights to be settled by a single person’s vote. That person wears an impressive-looking robe to work, but he or she is still only a human being, and not necessarily a human being of superior wisdom or virtue. The idea of the right of Irish gays and lesbians to marry being dependent on the vote of a popular majority may be unsettling. But is the idea of that right of their American fellows being dependent on the vote of a single 78 year-old man of no discernible towering intellectual abilities ought to be unsettling too.

Here’s the thing about rights ― we disagree about them, as about everything else, more or less. It may be that rights are the inalienable endowments bestowed on us by our Creator. But even if that is so, He has not left us a very clear description of just what it is that He gave us. We have to figure it out for ourselves ― and not just individually, but collectively too. Unfortunately, our ability to figure things out is pretty limited. We set up procedures that are supposed to help us do it, but none of these is fail-safe or fool-proof. As unsettling as they may be, they may also be the best we can do, at least at this point in our history.