Is the Right to Vote Really Fundamental?

In another forum an argument was made in support of the proposition that voting is an “inalienable right” (or “fundamental right”). My answer is no.

The first error being made by those who hold it is “fundamental” is to treat “voting” apart from the question to be voted on. If there is some “right” (or immunity, as distinct from a privilege) to vote, then it must also be a “right” to have the question presented to the voter. But there are many kinds of question, and there may not be the same kind of “right” for all kinds of questions. Let us enumerate:

A. Questions that might be put to voters
1. Expression of consent to the general legal order.
2. Expression of consent to a particular legal measure, such as a constitution, constitutional amendment, motion, or retention of an official.
3. Nomination of a candidate for a particular office.
4. Election of a nominee for a particular office.
5. Expression of support or opposition for some policy or practice.
6. Expression of some aspiration, opinion, or other feeling unconnected with any particular policy or practice.
7. Other.

There are also several methods of voting:

B. Methods of voting
1. With one’s feet, by entering, remaining, or leaving the territory of some state (“people in effective possession of a territory”). This the Lockean method of expressing consent to the general legal order in (1) above.
2. By raising an objection, or failing to do so, when one has an opportunity to do so. Cooperation or noncooperation. Includes civil disobedience.
3. By making comments of general opposition or consent to a general consensus emerging from general discussion.
4. By voice vote in assembly.
5. By count of individual votes in assembly.
6. By casting of marked ballots in a formal balloting process, and the accurate counting of those ballots to get final decision. Ballots may or may not be printed with names of nominees or propositions, and voting may or may not be secret.
7. By electing representatives to a further deliberative assembly where decisions are made, perhaps to send representatives to a still higher deliberative assembly.
8. By designating or electing persons to a pool from which representatives are selected at random to serve in a deliberative assembly. This is done for trial and perhaps grand juries.
9. By adopting procedures for deciding questions by impersonal or random methods, such as by letting a computer do it, or using a coin toss or other random method. This would include letting a computer draw voting districts, or the use of juries or other method of sortition.
10. By adopting a procedure for allowing contending alternatives compete, such as by having contenders for office play a game of go and making the winner of the game the winner of the election contest. (Duels once were used for this.)
11. By adopting a voting and counting procedure, such as first past the post, successive runoffs, instant runoff, approval, proxy, or whatever.
12. By violence and intimidation, bribery, or other such means. (Usually thought of as what voting is not supposed to be, but it is a kind of voting and has to be included in a full array.)
13. By inheritance or designation of successors by predecessors.
14. Other.

Finally, we have several alternatives for deciding who qualifies to vote on any question:

C. Possible qualifications for voting
1. Personhood, regardless of other qualifications.
2. Personhood, unless voting disabled (minority, dependence, non sui juris, etc.).
3. Citizenship in nation.
4. Citizenship in state.
5. Citizenship in county.
6. Citizenship in city.
7. Citizenship in district.
8. Voting membership in association, shareholder, etc.
9. Age range.
10. Duration of residence.
11. Property holding.
12. Education.
13. Payment of a tax.
14. Militia service, etc.
15. Official position (member of legislative body, judge, etc.)
16. Other

Now, assuming we can reach agreement on what “fundamental” (or “inalienable”) means, which combinations of the above enumerations can be said to be “fundamental” or “inalienable”?

For Locke, only B1 is inalienable, although he did not use that term.

Keep in mind that we are speaking of an immunity from being prevented or impeded from voting, not some entitlement to be enabled to vote, such as by being transported to polling places, etc.

Considering all the ways the above items may be combined, there are clearly legitimate ways that voting may be restricted, by adopting one combination over another. Therefore, it only makes sense to speak of rights not to have one’s privilege of voting denied on certain grounds. There may or may not be a right to have a particular question put to a vote in a particular time, place, and manner, but once presented, there are legitimate and illegitimate grounds for denying or impeding voting on that occasion.

Voting can and does arise as a customary method of making collective decisions under the constitution of society, before a constitution of government is adopted, In that respect it is like “due process”, defined in terms of due notice and a fair hearing (oyer and terminer), but allowing for variation in procedure so long as certain standards of protections for all parties are maintained. Voting is one such procedure, for expressing consent or exercising a collective will, but it is not the only one. A particular procedure may become established in a written constitution of government, as a choice made by the framers and ratifiers, but until that is done, it hardly seems appropriate to designate it as “fundamental”.

In the final analysis, those rights are fundamental that people will tend to resort to deadly force to defend. Rights, like power, grow out of the barrel of a gun, if it comes to that. We need to ask how many of our rights people will defend that way today.

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