Daniel Tokaji (Ohio State) on "Vote Dissociation"...

VOTE DISSOCIATION, 127 Yale Law Journal Forum 761 (2018)

Daniel Tokaji (Ohio State)

Daniel Tokaji (Ohio State)

Professor Daniel Tokaji (Ohio State) advances “Vote Dissociation” as a third component of the ‘individual’ right to vote, the first two being rights to participation (think voter suppression) and against dilution (think gerrymandering).  Tokaji seeks to combat the growing, proven tendency for government to respond only to monied interests.  The right to vote without concomitant influence over government is hollow.  Professor Tokaji explicitly identifies voting rights as the precursor to all others, including civil and economic rights.

At the core of vote dissociation is the manner in which concentrated wealth translates into political power, with the concomitant effects of disconnecting less affluent voters from policymaking and exacerbating political polarization.”

The bulk of voting rights cases invoke race, even though cases involving poll taxes and other voter suppression tactics also have class impacts.  With voter dissociation, Professor Tokaji seeks to invigorate class-based voting protections.

“The current round of litigation over vote denial and vote dilution9 is essential to protect the fundamental right to vote, as the other contributions to this Collection reflect. But the most recent presidential election highlighted deep-seated problems in American democracy that these cases cannot address, as they are issues of governance rather than participation or representation. The support for anti-system candidates like Trump is symptomatic of an increasing sense among many citizens that the real levers of power lie not in the hands of voters but rather with wealthy political insiders. Dealing with this problem requires that we recognize a new type of voting rights claim, one that is distinct from both vote denial and vote dilution… By vote dissociation, I refer to the severance of the vote from its central function of ensuring that all members of our political community are accorded equal concern by policymakers.”

Professor Tokaji reflects on the two current strands of the Supreme Court’s voting rights jurisprudence, particularly the purposes behind the doctrines:

 “Since the nineteenth century, the Supreme Court has deemed voting “a fundamental political right, because [it is] preservative of all rights.” In other words, voting is the mechanism through which all of our other interests are protected. If some people's voting rights are denied or diminished, then none of their other rights are safe. Ironically, at the moment these words were written, African-Americans throughout the states of the former Confederacy were being disenfranchised en masse through a range of now infamous devices--including literacy tests, threats, and sometimes brutal violence. The exclusion of southern blacks would persist until enactment of the Voting Rights Act of 1965 (VRA). Even after the VRA, many would still face barriers to equal participation, representation, and influence.”

As to the ideals and purposes behind the right to vote:

“Karlan explained that there are three distinct aspects of the right to vote. The first is participation, being able to cast a ballot and have it counted.”

“The second conception of the right to vote is representation: the ability to join our votes with like-minded others to elect our preferred candidates. One may be able to cast a vote and thus participate in elections, yet still not be fully or equally represented in legislative bodies or other elected offices. Voting would be little more than symbolic if citizens were unable to combine their individual preferences to elect their preferred candidates. ….Subsequent litigation focused on practices used to dilute the votes of racial minorities, like at-large elections and multimember legislative districts….. Under these cases, a legislative district is subject to strict scrutiny under the Equal Protection Clause if race was the “predominant factor” in its creation.

“The third dimension of the right to vote is governance, which entails actually having an influence on decisions made by government. One may enjoy equal rights of participation and even representation, yet still not have meaningful influence on the decisions made by government. As Karlan explained, “the voter's horizon extends beyond the moment of representative selection to various opportunities for collective decisionmaking by assembled legislators ....” If government fails to give equal consideration to some members of the community, their right to vote remains incompletely realized. An example is Presley v. Etowah County Commission, in which holdover white commissioners allegedly stripped an Alabama county's first elected black commissioner of his office's traditional powers. The Supreme Court deemed such claims beyond the purview of the VRA, drawing a line between voting and governance. The practical effect was to take governance claims off the table, at least insofar as the VRA is concerned.

Currently, the Supreme Court employs a ‘balancing test’ to determine whether law, regulations or rules violate the guarantee of Equal Protection under the law.  Balancing tests are hardly different from “all facts and circumstances”.  Professor Tokaji seeks to add ‘vote dissociation’ to the list of considerations.

“The Supreme Court rejected a facial constitutional challenge to one such law in Crawford v. Marion County Election Board, with most of the Justices employing a balancing test. This standard left the door open to constitutional challenges to other restrictions on participation, such as limits on early voting, voter registration, and the counting of provisional ballots. If plaintiffs can show a more substantial burden on voters than existed in Crawford, they have a reasonable argument that the challenged practice is unconstitutional. Not surprisingly, some voting restrictions have been upheld under this balancing standard, while others have been enjoined.”

Voter dissociation is meant to fill the gaps left by focusing strictly on participation and dilution:

“Important as these claims are, they miss something essential: governance.”

“The 2016 election points to serious underlying problems of governance. There is no denying the antipathy toward the federal government that has fueled the rise of antisystem candidates. Public trust in government remains historically low, reflecting a palpable dissatisfaction with our political system that crosses ideological lines--though it tends to be stronger among those who associate with the party out of the White House. Congressional approval ratings have been in the doldrums for years, now hovering around or even below twenty percent. While public dissatisfaction with Congress as a whole goes back years, a striking recent change is that more individuals have an unfavorable view of even their own representative. An increasing number of citizens has become skeptical of democracy itself. In one study, a record-high twenty-four percent of young Americans said they thought that democracy was a “bad” or “very bad” way of running the country.”

The author does not discuss Citizens United in detail.  But he clearly laments its effects on the political landscape.  The unfettered confluence of money and politics under the principal of Free Speech renders a government unresponsive to the majority of its constituents. 

“The first is the increase in partisan polarization and attendant political dysfunction.64 Republicans have moved to the right, while Democrats have moved to the left. This phenomenon is most pronounced among elected officials, but it is also observable among the citizenry--at least those who vote regularly. As polarization among both elected officials and the electorate has intensified, incentives to compromise have waned, and governance has become more difficult.”

“The other development is the substantial increase in economic inequality over roughly the same time frame. Incomes at the top have increased, while those further down the economic ladder have stagnated or even declined in real terms.68 Wealth disparities have increased in an even more exaggerated fashion.”

While Citizens United pushes in one direction, the recognition of income and wealth inequality pushes in the other.

A growing body of scholarship demonstrates that well-financed interest groups exercise outsized influence on public policy. Legislators are much more responsive to the preferences of the affluent than they are to the preferences of those at the bottom of the economic ladder. As one study sums up the research, “the rich have been able to use their resources to influence electoral, legislative, and regulatory processes through campaign contributions, lobbying, and revolving door employment of politicians and bureaucrats.” The increase in economic inequality is a political phenomenon, in the sense that it arises from the enhanced ability of the affluent to achieve their policy objectives. There is considerable evidence that members of Congress, in particular, tend to be more receptive to the policy preferences of their wealthy constituents than to those of their constituents with lesser means.”

“A growing body of evidence suggests that economic inequality and political polarization are mutually reinforcing. One possible explanation is that the inability of our political system to address runaway inequality exacerbates frustration among voters, in turn fueling the rise of anti-system candidates….. If this analysis is right, it suggests that the 2016 election--while unprecedented--was not a one-off.

“The most recent development is the revival of the Shaw doctrine to limit gerrymanders drawn under the guise of VRA compliance, which may be augmented by recognition of a new legal standard for partisan gerrymandering in Gill v. Whit-ford. …While participation and representation claims are mainstays of voting rights litigation, governance remains uncharted territory. It is the neglected dimension of the right to vote. The evidence reviewed in Part III, however, suggests a pressing need to recognize governance as a province of the right to vote. Specifically, we should recognize vote dissociation as a new and distinct type of voting rights injury.”

Vote dissociation cases would be actionable with respect to campaign finance.

“Campaign finance and lobbying regulation, on the other hand, are not conventionally seen as implicating the right to vote. But if we understand governance as a component of the right to vote, then their relevance becomes evident. … That said, it is a much more complicated matter to remedy vote dissociation than to get rid of participation barriers like the poll tax. One can certainly imagine vote dissociation arguments being used defensively--for example, as a rationale to defend limits on campaign contributions or expenditures.”

Considering the conservative Court that got Citizens United wrong is not likely to recognize ‘vote disassociation’.  Clearly, they knew what they were doing.

“The interest in stopping vote dissociation would certainly conflict with Buckley v. Valeo's admonition that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” There is no realistic chance that such an interest would be accepted by the current Supreme Court as a rationale for imposing limits on political spending. But it might ultimately be used to buttress the anticorruption and equality interests before some future Court less hostile toward regulation than the one that now sits.”

However, he offers the potential for an individual to assert a right to sue against bribery or some other seedy or illegal lobbying tactic.  Taking the power to prosecute those cases from bureaucrats could be interesting.

“A contemporary vote dissociation claim would focus on the mechanisms through which wealth is translated into policymaking influence, including not just bribery but also campaign finance and lobbying. If well-financed interest groups subvert the policy preferences of the majority of voters through their political spending, then the vote is severed from its core function of ensuring equal concern for all people regardless of their wealth.”

While this issue was not mentioned, Tokaji’s “vote dissociation” could give rise to a claim for individuals of Camilla, Georgia whose first Black elected mayor was refused his office keys by the city council.

On the less enthusiastic side, it may take work to define “vote dissociation” in a more individualistic manner that would satisfy the Court’s restrictive ‘Standing’ doctrines.  This is an idea ripe for further inquiry. - DreSmith

Distributed CostsAndre Smith