Abstract
Conventional orthodoxy regards the franchise as a fundamental right. Indeed, many democratic states seem under pressure to enfranchise groups hitherto commonly excluded, including non-resident citizens, non-citizens residents, (older) children, and prison inmates. In this provocative book, Claudio López-Guerra argues that many of our conventional beliefs about the franchise are entirely backward. Most controversially of all, he proposes that the franchise is not a basic right and that (in appropriate circumstances) it could legitimately be denied to the vast majority of citizens. He then proceeds to reconsider a range of common exclusions, without presupposing a general right to be enfranchised, drawing some radical conclusions, including that all normal children over the age of about ten should be enfranchised (p. 81).
Central to the argument is the claim that the franchise is not a fundamental right. While conceding that the rhetoric of rights and universality has served an important practical role, in helping to overthrow various unjust exclusions such as those based on race or sex, López-Guerra maintains that some exclusions are justifiable. He invites us to consider a regime that employs an ‘enfranchisement lottery’: a random, and thus statistically representative, sample of the population is enfranchised but others are excluded from the vote (though they would retain the right to participate in other ways). To be clear, López-Guerra is not proposing that we adopt such a scheme, his point is merely that some such scheme—and he leaves the precise details for the reader to determine—would seem to be permissible, at least in appropriate circumstances. In particular, it can be justified if all or most citizens are ignorant, but some form of political competence enhancing training can be offered only to a few. The lottery selects who is to receive training, and then the vote, while others are excluded on grounds of ignorance. If this is permissible, then disenfranchisement as such need not violate any fundamental rights.
The basic idea of the franchise lottery was developed, possibly in more detail, in an earlier article. 1 One virtue of this book, however, is that it is not simply an overextended elaboration on that article, working through the practicalities and possible objections to such a scheme in minute and tedious detail. All too often, an idea that makes a great article makes for a rather dull book. Instead, the franchise lottery (which occurs in chapter 2) is used only in order to establish that there is no fundamental right to be enfranchised, which in turn motivates the subsequent discussion of children, non-citizens, non-residents, and felons. Such discussions often occur against a background assumption that there is a right (at least prima facie) to be enfranchised but this, López-Guerra objects, should be the conclusion of our moral reasoning, rather than a premise. His aim is to consider each case on its own merits, before drawing general lessons about the right to vote.
Unifying this discussion is what López-Guerra calls the Critical Suffrage Doctrine. First, he distinguishes two ways in which one may be wronged by disenfranchisement: one suffers a commodity-dependent injustice if one is wrongly deprived of something valuable, but there are also commodity-independent injustices, where the arbitrary grounds on which one is deprived of something are themselves objectionable whether or not what one is deprived of is valuable. Any being capable of experiencing both forms of injustice has what López-Guerra terms “full franchise capacity” and ought (as a matter of fairness) to be enfranchised. Excluding those, such as young infants or animals, who lack the full franchise capacity is not however wrong and, indeed, may be required.
The claim that normal ten-year-olds should be enfranchised follows from this normative principle and the empirical claim that, by this age, normal children are able to understand the idea of electing representatives and to make moral judgements of their own and thus possess full franchise capacity. Assuming these empirical claims are correct, then excluding such children would do them an injustice. Similarly, it is unjust to deprive non-citizens and convicted felons of the franchise, since they too have the full franchise capacity. Of course, there is somewhat more to the argument than this. In each case, López-Guerra considers various common objections to the enfranchisement of these groups, including those appealing to outcome-based considerations, arguing that there is actually very little evidence that enfranchising children or felons would result in worse electoral outcomes.
In these cases, then, the Critical Suffrage Doctrine suggests that the franchise should be wider than the conventional view, even though the Critical Suffrage Doctrine holds that there is no fundamental right to be enfranchised. There is, however, one notable case where López-Guerra proposes that the franchise should be narrower than conventional beliefs and practice suggest, namely, in the case of expatriates.
The argument against expatriate voting comes in two parts. First, López-Guerra criticizes the idea that everyone affected by a decision should be enfranchised, arguing that their interests may be better and more efficiently protected by federal structures. Second, having ruled out granting outsiders the vote in general, he argues that there is no convincing reason to make an exception for expatriate citizens, since many of the grounds commonly appealed to (such as the economic contribution expatriates make) are unconvincing and/or over-inclusive if applied consistently.
As is evident, this is an ambitious book and there is much of interest, but also much to take issue with. In considering so many arguments, López-Guerra does not make them all convincingly. I shall confine myself to commenting on his brief remarks on political inequality. He argues that “the difference between being disenfranchised and having, say, 10–8 votes is immaterial” (p. 9). There would, he suggests, be no objection to extending the vote universally if we could weight votes such that some were de facto denied any power. The lesson he draws is that J. S. Mill was wrong to divorce the question of who should vote from that of what weight these votes should carry; though analytically distinct, “the problem of inequality of voting power is exactly the problem of disenfranchisement” (p. 9).
There is, indeed, a connection here, but it is not clear that even such extreme weighting amounts to disenfranchising anyone completely. First, the discussion does not clearly distinguish between having unequal numbers of votes and having unequal voting power. Someone with only 1 × 10–8 of a vote may have as much power as someone with a whole vote, for instance in a situation where there are only three voters, the other two of whom have whole votes (any two voters are necessary and sufficient for a winning coalition). 2 Second, a lesser share of power is still some power; even someone with only a tiny fraction of a vote could break a deadlock or be decisive if no one else were to vote.
Third, the argument that this analytical distinction is of little significance seems in tension with López-Guerra’s later claim that we should distinguish between the right to vote and the opportunity to exercise that vote (pp. 118–19). If one cannot cast one’s vote because, for instance, one is absent on election day and there are no provisions for postal or proxy voting, the outcome is much the same as if one were denied the vote. The two may, of course, feel different—or differ in their symbolic status—but these differences presumably apply also in the case of weighted voting: giving someone a fraction of a vote may convey the message that their opinion counts for something, even if they will never be decisive. This is not the only case where López-Guerra’s arguments struck me as over-hasty, but even if some or all of them are flawed, they are instructive insofar as they require us to reconsider the value of the franchise and the reasons for which it should be bestowed.
Unfortunately, for those wishing to engage with these arguments, the book is let down by the lamentable standard of copy-editing. Aside from several uncorrected typographical mistakes, there are serious inadequacies in the book’s scholarly apparatus. I noticed at least six bibliography entries (Saunders, 2010 and 2012; Stone 2007; Van Parijs 1996 and 1998; Viehoff 2011) that I could not find cited anywhere in the text. At least, if they are cited, the index is of little help: of these four, only Viehoff appears in the index, although Peter Stone (2008) is referenced on page 30 and Stone (2009) on page 58, while I am named in the main text (p. 28), though the paper there cited 3 does not appear in the bibliography at all. Such shortcomings, from Oxford University Press no less, are extremely disappointing.