Should election law be based on the presumption that voters are engaged and diligent?
University of Michigan Law School professor Ellen Katz has submitted a paper to the Minnesota Law Review contending that the Supreme Court under chief justice John Roberts is avoiding federal engagement in state voting rules, based on the presumption that voters are “both legally literate and diligent.” You can download the paper from the Stanford Law School site.
But insofar as a new, unified approach to election law is emerging, last Term’s decision suggest it has at least two prominent features. First, the approach makes meaningful political participation contingent on knowledge and skills that many voters simply lack. Legal literacy and diligence have become functional prerequisites to voting. The new approach, moreover, promises little and perhaps no federal assistance when voters fall short in what is required.
The Justices, of course, know that voters will fall short. The decisions allude to this circumstance and anticipate various actors will emerge to fill the void. The Court suggests that political parties have appropriate incentives to assist voters as they navigate the system–hence the standing granted to the Democratic Party in Crawford125–and to ensure that voters properly understand the legal regimes within which they act–by, for instance, making clear the significance of a candidate’s party preference in Washington’s top-two primary.
If I’ve read it correctly — and there’s no guarantee I have, being a non-lawyer — Katz suggests that private individuals or organizations will spring forward to help the voter navigate the voting process that increasingly requires them to understand a byzantine process. What if they don’t?
We are, of course, seeing the results of this process here in Minnesota. We’re about to enter the seventh week of the election challenge trial of the U.S. Senate election, a process which itself is so complicated that more and more voters have disengaged from it, and just want to be told when Minnesota has a new senator.
When will that be? If you listen to the experts, it could be months as either side could appeal this “all the way to the Supreme Court.” But if Katz is correct, the Senate is mess will be for Minnesota’s Supreme Court to decide.
Most experts also predict changes in Minnesota’s election law, especially in the area of absentee voting. If the Legislature tackles the issue, should it assume the voter is diligent and engaged? Or not?