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By Richard H. Pildes
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President Lyndon B. Johnson signs the
Voting Rights Act of 1965
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The right to vote is a deceptively complex legal and moral right. Perhaps because the right is considered a “fundamental” constitutional right, or the foundational right of democratic self-governance, or the right “preservative of all [other] rights,” it is tempting to assume the right to vote has an essential core concept that is relatively obvious and widely shared. Undoubtedly there will be disagreements about specific applications—is felony conviction a justifiable basis, for example, for concluding that a citizen has lost the right to vote—but all rights generate some range of disagreement in application. Such disagreements do not undermine shared agreement on the core interests the right protects.
As Professor Cox’s article illuminates, however, the right to vote is considerably more elusive and conceptually difficult than most constitutional rights. Indeed, I tend to believe it is the most complex of all constitutional rights. Not only does the right to vote protect several different core interests, but these interests are also qualitatively distinct. Put in other terms, there is not one right to vote. There are several. Positive law, in the form of constitutional doctrine, recognizes this fact in practice, though with limited ability to articulate that fact incisively. And constitutional doctrine is right to recognize this fact: there are good normative grounds for treating the right to vote as protecting a number of qualitatively distinct interests. But for this very reason, discussion of “the right to vote”—in judicial decisions, academic commentary, and public discourse—is likely to be slippery and confusing. The general language of “the right to vote” elides the question of which right to vote (or better, which set of interests the right to vote protects) is, or ought to be, at stake in particular contexts. Under the general label of “the right to vote,” practical actors, such as judges, are likely to move back and forth between protecting qualitatively distinct interests. Analogies to other constitutional rights might be apt when the right to vote functions to protect certain interests, but completely misguided when the right to vote instead functions to protect other, qualitatively distinct, interests.
“The Temporal Dimension of Voting Rights” explores, elaborates, and nicely even adds to these complexities. Professor Cox begins by suggesting there are distinct “theories of voting rights” that can be “grouped into two categories.” The first views these rights as individualistic, as he puts it, in that one can identify harms to the right to vote without looking beyond the treatment of the individual voter. The second views these rights as collective or group or aggregate rights, in that harms to the right to vote can be identified only by looking at how the system of aggregating votes affects the distribution of political representation and power as between various groups.
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