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Monday, June 2, 2014

It's Too Easy To Vote: Why Real Reform Won't Happen Until It's HARD to Vote

Americans love to whine! People love to complain about politics and political gridlock. An accepted principle is that the country "needs" greater voter participation, that not enough people are engaged in the process. When commentators don't know what to say, or have nothing to say, they say this and repeat it ad nauseam. 

What if that idea were utter rubbish?  What if the solution lay in the historical trend, dominant throughout human history, towards the precise opposite, towards using merit (however subjectively defined) to restrict the franchise to those who care and value it the most?  In other words, is the solution to society's "political dysfunction" the enactment of restrictions on voting to limit and concentrate voting power towards the stakeholders who have the most to lose by its abuse? 

Today's Imperfect Practices

Right now, the United States has a dystopian voting culture where government employs the honor system as the means to enforce the barest of qualifications upon the franchise, and in which the letter and spirit of election laws are honored in their breach. We insist on a minimum age and take the word of one's declarations as to residence, citizenship and not yet having been convicted of a felony.  (In fact, in present day New York City, a bill to allow non-citizens to vote in elections for New York City elected office has been sponsored by a majority of the City Council.) 

One supposes if such attitudes work for, say, residential mortgages, then there should be no problem with voting, right? Even worse, anyone who dares to insist on verification of these minimal requirements is targeted with the most vile of motives and character slanders.  It is as if the right to vote is so sacred that to even suggest compliance with the law is a prerequisite for voting is to risk ostracization and even prosecution for the violation of another's civil rights.  Yet such failures (and refusal) to verify the most basic qualifications actually erode and dilute the value of the vote and obscenely violate the voting rights of those responsible citizens who follow the letter of the law.

The Accepted Paradigm Rests on Flawed Assumptions; A Paradigm Shift In Attitudes Is Needed

Perhaps the solution -- the best from an outcomes perspective -- is a fundamental change in our entire concept of desired voting and political behavior. 

Instead of pushing for "more" political participation, as self-styled "good government" groups are wont to do as they extort donations from corporate benefactors terrified of being accused of being undemocratic or racist for refusing, might the solution be to have less participation?

After all, tons of money are already spent on elections and campaigns.  The one special election for an open U.S. Senate seat in New Jersey this past year cost an estimated $24 million ($12 million each for the party primary and general).  Campaigns raise and spend a fortune; it is estimated the 2012 presidential race generated $1 billion in spending. This excludes special spending through so-called "independent expenditures" or issue advocacy expenditures not considered electioneering.  It is hard to imagine that outreach could be improved.

In addition, it is hard to find people who actually want to vote, who care, and who cannot vote. Technological advances mean nearly everyone who wants to be connected is. Email and cell phones means increasingly-tech-savvy campaigns can contact their base supporters as well as average voters. And in a day where political campaigns dominate popular media (as the content of shows like Saturday Night Live will attest) and television ads increasingly saturate both the airwaves and social media ad space, can one really find many Americans without serious mental impairments or other infirmities who are seriously, genuinely unaware of major elections?

The central reality which politically correct people dare not say is that the majority of Americans just do not care. In a society where people commonly vote for the winner of game shows, reality shows and "talent" shows, spend hours a day on all sorts of social media, anecdotal evidence is very strong to suggest that the grand majority of people who are motivated are indeed voting. (Whether they are voting for the candidates preferred by the self-styled good government groups and elites is another matter entirely and one suspects the choice of the vote is really the issue to which these organizations object.)

So why the push for increased voting? Such efforts would seem to pull in the increasingly indifferent and -- since we are all allowed to make judgments -- the increasingly ill-informed and ignorant. The result is that the vote of the concerned, the educated and the true stakeholders (e.g., asset owners) is diluted (and greatly so) by the vote of the indifferent, irresponsible, uneducated and slovenly remainder.

The danger of seeking greater "participation" "by all means necessary" should be obvious shortly. An unmotivated segment of the populace, already demonstrating a reluctance to vote even when it is free, increasingly convenient and the subject of much content in the popular and social media, might be convinced to "vote" only through undesirable channels. They might have to be induced (or bribed) to vote with "goodies" that naturally would be paid by others, or even worse, they might be voting through the hands of others -- their votes would be stolen through fraud and cast by those opportunists seeking to game the system and rig election outcomes to achieve their political goals.  After all, indifferent and feckless voters would hardly be a likely constituency to report voter fraud, suppression or other illicit activities.  The dangers to democracy of such unrestrained abuses can be immense.

A Proposed Solution: Encourage Voting...By Making It Harder To Vote

The solution might be to move in the opposite direction, to move towards a system where the importance of voting to the maintenance of our democratic system would be emphasized by the implementation and even application of barriers to the vote.  As long as government is in the sordid practice of trying to modify behavior, and as long as many Americans accept as gospel the right of either The Government or The Elites to engage in behavioral modification or otherwise attempt to drive our actions, why not use these elitist impulses to fuel a move in the opposite direction? Why not make people treat voting as a privilege to be honored and treasured, an act which is to be prioritized at the expense of sacrificing other desires, and to compel people to subordinate their other private matters (such as the horrible capitalistic impulses to make money, make a living and actually support one's family) to more socially-useful, higher priorities like civic participation?  

If we are a Nanny State and most people are okay with that, then what would the objection be to similar manipulation when it comes to regulating the right to vote, right?

I propose the following. Such "barriers" would include:

** the requirement for picture identification for all voters to register to vote or to switch party enrollment, which requirement would be on par with existing requirements to obtain a driver's license or official government identification card.

** actual election day in-person voting with rare exceptions for physical infirmities; this would be on par with one's getting a flu shot or other vaccination.

** the automatic cancellation of party enrollment for failure to vote in at least one party primary over three consecutive years, and of voter registration for failure to vote in at least one primary or general or special election in any two-year period; this is on par with the requirement to get an in-person automobile inspection (in most states) every two years.

** the elimination of "open" primaries so that party primaries are restricted to party members; and

** to protect the integrity of party primaries, preserve the First Amendment constitutional right of association of party members and deter the practice of "party raiding" by outsiders not genuinely aligned with the principles of the targeted political party, the institution of deferred enrollment statutes to require changes in party enrollment are made before the end of the period for party primary candidates to take measures to qualify for the primary ballot (e.g., registration fees or petitioning through the gathering of signatures from party members); this is hardly onerous in light of the narrow "open enrollment" periods under the new Patient Protection and Affordable Care Act. 

Such barriers would be only a beginning. True radical political change might erect higher barriers such as the institution of poll taxes.  Yes, this would link the ability to pay a fee in order to vote, putting it on par with the corporate shareholder voting right: you must buy a share in order to vote at the annual meeting. The key would be the even-handed application to avoid de facto discriminatory practices, as one must be aware of the valid sensitivities of some historically-targeted groups.  

Historical Precedent; Using Equal Application To Ensure Fairness For All

This is not fundamentally different from the colonial era practice that limited voting rights to property owners.  That is because colonial-era authorities recognized that in a system of "one man, one vote, no questions asked," the general masses, largely regarded as unshaven, uneducated but most of all regarded as unprincipled, would be liable to vote en masse to seize and redistribute the property of the landowners and merchants. 

voting threshold requiring ownership would -- and did -- serve to restrict the franchise to those who had far more to lose from bad policy decisions than they might be suspected to gain from benefits of oligarchies, state-sanctioned crony capitalism (what in colonial days was mercantilism and in the 19th Century, pre-Sherman Act, was monopoly capitalism).

But there is an alternative to reaching back to practices from our history which have sordid, and deservedly negative, meanings for many Americans whose ancestors suffered from legal and societal discrimination. Today, we have corporate law governing corporate shareholder voting rights. That is, one share of common stock, one vote. As long as you buy a share, you have a vote and no one cares who you are, what is your skin color or religion, or even where you reside. In fact, the truest, purest form of democracy on the planet may be practiced nowhere else than in the boardrooms of and record rooms of stock transfer agents and proxy solicitation firms serving corporations whose shares trade on the stock exchanges within the United States.

In the corporate arena, the "poll tax" of buying a share is remarkably democratic and egalitarian; all shares vote equally (at least within their classes, subject to exclusions seen in the certificates of designation for classes of preferred stock or other derivatives that are available and disclosed to all).  Why not use it in our broader society? Such a practice would instill a respect for the franchise as something very important, something that has a value, and something that, yes, it has to be earned. It propels the standard that one had to have enough merit to earn his (or her) keep in order to have the right to vote to decide how to appropriate tax money collected from others. As for the valid fears that such measures could be misused for racially discriminatory objectives, the key to success would be a painstakingly even, fair application across the board of such barriers should quickly dispel fears of a return to the odious days of the early to mid-20th Century.  (In addition, it should be noted that poll taxes and other measures were often designed to prevent poor, non-landowning whites from voting and to restrict the franchise as much as possible to property-owning stakeholders.)

American corporate law is remarkably consistent and fair. Generally, one share of common stock has one vote. It's just that some people have more votes, because they have more shares. They have more votes, because it is recognized that owners with more shares have more at stake; while they have more to gain that recognition is never divorced from the reality that the owners have just as much to lose.

American corporate law also recognizes and rewards the entrepreneurialism and risk/reward calculus of our capital classes. Voting rights are recognized as a form of currency with its own value, hence the rise of supervoting stock and the creation of different classes of securities issued by a company with different sets of rights. The issuance of such instruments as "Class Z Participating Preferred Stock" illustrates how corporations recognize and reflect either the investors' demand for certain voting rights or their willingness to relinquish or subordinate those rights in exchange for a monetary return or other term that has a greater value.

Above all else, corporate law and capital structures respect and respond to their constituents. Investors to whom voting rights matter most get to hold shares with voting rights. Investors who care even more about voting can buy supervoting shares (if issued). Investors who could care less about their vote can buy nonvoting shares which have other features that offset (or compensate for) the loss of the voting right. In short, this is a brilliant legal framework that respects and responds to the desires of the stakeholders whose monies are at risk.

So why aren't we allowing people to sell their votes? If a vote has more value to the purchaser and little enough value to the original holder so that he or she is willing to sell it, why not allow that? This is a fair trade with willing and satisfied participants on both sides of the transaction.

But the welfare-dependency state and its related-by-birth political establishment DO recognize the value of the stakeholder in our politics. The difference is just that they define the stakeholder differently. In their world view stakeholders are measured not by wealth but by power (yes, a different form of currency).  

Now, there are groups whose interests are so implicated by political and civic discourse that their voices need to be given the proverbial seat at the table. An example is the subset of our younger generations who are subject to military service in the event of a draft and who, even today, are required to register with the Selective Service upon turning 18 years of age. A new voting regime can create an exclusion for men and women between the ages of, say, 18-35 who are subject to military service. Such regulatory ingenuity should not be a difficult task to achieve for the regulatory state with its legions of bureaucrats and lawyers.

This change may seem radical at first, but it is a "back to the future" approach with substantial precedent in American corporate law. In short, this proposed new voting paradigm elevates and enhances the role of the stakeholder in American public life.

Eric Dixon is a New York corporate lawyer who has represented political candidates, parties and media organizations in various election law compliance, opposition research and civil litigation since 1994. 

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