The Foundational Importance of Participation: A Response to Professor Flanders
20 Pages Posted: 25 Mar 2016
Date Written: 2013
Abstract
In this solicited piece for the Oklahoma Law Review symposium on election law, I examine the theoretical underpinning of the right to vote as inherent in citizens in our democracy. This flows from the notion that voting is a foundational concept for our entire democratic regime and, indeed, the most fundamental right individuals enjoy. Both developing and long-standing democracies have embraced the individual right to vote as a first principle to their democratic structures and constitutional order; the United States should be no different. Participation is important because it provides the bedrock foundation for everything that follows in a democracy. This broader concept of voting and participation as a foundational right places an affirmative duty on governments to create an easy voting process and avoid unreasonable obstacles, even if the barriers impact everyone the same. That is, governments should not lose every election lawsuit, as they have legitimate regulatory concerns and economic limitations, but courts should more strictly review election rules to be consistent with the foundational understanding of the right to vote.
Keywords: right to vote, voting, election law, equality
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