Are voters smart enough to figure out election law on their own?

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?

  • Alison

    It seems to me the that the DFL already believes that many voters are not diligent and engaged. If they assumed that voters were diligent and engaged then requiring an ID to vote wouldn’t be a problem for them.

    I would like voters to diligent and engaged, but until MPR forces the other stations to shut down every morning because everyone wants to Eichten & Miller invterviewing politicans this isn’t going to happen.

  • Bob

    Requiring photo IDs has nothing to do with the issue of being diligent and engaged. Such a requirement is a solution in search of a non-existent problem.

    On the larger issue of whether voters are diligent and engaged, I’d say that our byzantine political processes and overly-complex election laws tend to make even the most interested voter want to withdraw.

    I try to be as informed as I can about who’s running and what their positions are on the issues, and then I vote. And I contribute to causes I believe in. Occasionally, I volunteer to help a candidate.

    But that’s as far as it goes; I am not incessantly monitoring three dozen blogs for their take on the Coleman-Franken brouhaha. To paraphrase Yogi Berra:

    “It’ll be done when it’s done.”

  • kennedy

    “Byzantine Process”?

    1a.) Show up to vote at the correct location or

    1b.) Obtain an absentee ballot

    2.) Cast your vote properly

    Is the ‘byzantine’ part knowing how to fill in a circle or mail a ballot?

    Our senatorial election is dragging on because the election was a virtual tie. Deciphering intent or legality of a few hundred ballots will decide the election.

    With a court determining the outcome, it is a guarantee that the decision process will be byzantine. The voting process, however, is not.