The Notre Dame Law Review has published Steve Sachs and Josh Kleinfeld’s article advocating parents voting on behalf of their children, responses from me and from Joey Fishkin, and a reply from Sachs and Kleinfeld. Here are links to the pieces and their abstracts:

“Give Parents the Vote”

Many of America’s most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are twenty-three percent of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don’t count proportionally at the polls. The result is policy that observably disserves children’s interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests.

Yet there’s a fix. We should entrust children’s interests in the voting booth to the same people we entrust with those interests everywhere else: their parents. Voting parents should be able to cast proxy ballots on behalf of their minor children. So should the court-appointed guardians of those who can’t vote due to mental incapacity. This proposal would be pragmatically feasible, constitutionally permissible, and breathtakingly significant: perhaps no single intervention would, at a stroke, more profoundly alter the incentives of American parties and politicians. And, crucially, it would be entirely a matter of state law. Giving parents the vote is a reform that any state can adopt, both for its own elections and for its representation in Congress and the Electoral College.

“Give Young Adults the Vote”

Joshua Kleinfeld and Stephen Sachs make a significant contribution to the literature on children’s disenfranchisement by describing and defending parental proxy voting: empowering parents to vote on their children’s behalf. The authors’ democratic critique of the status quo is particularly persuasive. Children’s exclusion from the franchise indeed distorts public policies by omitting children’s preferences from the set that policymakers consider. However, Kleinfeld and Sachs’s proposal wouldn’t do enough to correct this distortion. This is because contemporary parents diverge politically from their children, holding, on average, substantially more conservative views. The proxy votes that parents cast for their children would thus often conflict with the children’s actual desires. Fortunately, there’s an alternative policy that would fix more of the bias caused by disenfranchising children: young adult proxy voting. Under this approach, children’s votes would be allocated not to their parents but rather to young adults—the cohort of adults closest in age to children. Young adults, unlike parents, are highly politically similar to children. At present, for example, both young adults and children are quite liberal. So, to revise Kleinfeld and Sachs’s thesis, if we want children to be adequately represented at the polls, we should give young adults the vote.

“It Takes a Village . . . But Let the Teenagers Vote“

In their article Give Parents the Vote, Kleinfeld and Sachs argue that we ought to give parents extra votes to cast by proxy on behalf of their minor children. In this response, I argue that their proposal misconceives the nature of voting itself. Unlike a child’s personal medical or financial decisions, which we entrust to those most responsible for a child’s care, voting is a collective act by which a political community makes collective choices. Each of us is obligated to cast our vote in the way we think best for the whole community. And each voter—whether a parent or a nonparent—is morally and constitutionally entitled to an equal vote. At the same time, it is true that those under age 18 are often not especially well represented in our current system. Empirical evidence suggests that high school students are as able to vote as young adults. So rather than giving extra votes to their parents, I argue that we ought to let teenagers vote.

“What Is Voting For?”

Shared ground—much more than we’d expected when Joseph Fishkin and Nicholas Stephanopoulos first agreed to write in response to Give Parents the Vote—is the most notable feature of our exchange.¹ Fishkin and Stephanopoulos are two of the most distinguished election law scholars of our generation. They are both to the left of us politically. And our proposed reform, of letting parents vote on behalf of their minor children, is off the beaten track.

But witness the agreement. All four of us agree that the status quo is wrong as a matter of principle and of policy: children are “members of the American political community if anyone is,”² and their lack of representation leaves our political system and policies “observably and significantly distorted.”³ All four of us agree that this distortion is serious enough to warrant changing the law. Stephanopoulos further agrees with us that parent proxy voting is clearly consistent with the Constitution and other federal law, and entirely up to the states,⁴ though Fishkin sees the equal protection concerns as more significant.⁵ That’s a lot of shared ground. What’s left to disagree about?

At the surface level, we plainly disagree about policy solutions. Rather than have parents represent their children at the polls, Stephanopoulos would create a system in which all young adults’ votes count for more based on how many unrepresented children live nearby—say, in the same census block group.⁶ (For example, in an average district, Stephanopoulos would multiply the vote of every eighteen- to twenty-nine-year-old by 1.7, so that existing young-adult voters “cover” the children under eighteen.⁷) Fishkin would lower the voting age to fourteen but make no further provision for those thirteen years of age or younger.⁸

Beneath these policy disagreements lie deep disagreements of principle, both about the purpose of voting and about the nature of the parent-child relationship. In our view, the chief point of universal suffrage is to protect citizens’ interests—what’s good for them, both materially and morally—as those citizens see their interests. Politics is about tradeoffs, and politicians are buffeted on all sides by demands for different policies. The hard lesson of experience is that there’s no way to secure equal consideration of all citizens’ interests while counting only some of their votes. Children are citizens too, and leaving this quarter of the citizenry without the vote means leaving their interests uncounted when it matters most.⁹ Yet since children can’t vote competently to protect their interests, their proper political representatives are their parents—to whom it falls not only to protect their children’s interests, but very often to define those interests, even when parents and children disagree.

In its decision rejecting the legislature’s new congressional map, the Utah trial court included a lengthy discussion of quantitative measures of partisan fairness in districting. The legislature argued that partisan asymmetry and the mean-median difference should be used to assess its new map. The court responded, correctly in my view, that these are exactly the wrong metrics to use in Utah. These metrics are inapplicable in uncompetitive states like Utah, while other approaches, like the efficiency gap and ensemble analysis, do work in Utah’s political environment. The court’s decision is here.

The Court finds that the partisan bias test is unsuitable for assessing whether a redistricting plan in Utah purposefully or unduly favors or disfavors a political party. It is not among the best available measures to assess partisan favoritism in Utah.

First, because partisan bias assesses favoritism based solely on seat shares under a hypothetical 50-50 statewide election, scholars warn that it should not be applied in states like Utah where statewide elections are uncompetitive and a tied statewide election cannot plausibly be expected. The authors of the metric, Professors Andrew Gelman and Gary King, limited its application to “competitive electoral systems,” which they defined as states in which each party had won a majority of seats or votes in at least one election during the preceding two decades. Professor Gary King has since emphasized that partisan bias “is only appropriate for competitive situations where there is a potential for change in partisan outcomes (majority control, in particular).”

The Court finds that Utah’s statewide elections are highly uncompetitive. Democrats have not received a majority of the statewide vote in congressional elections in 35 years and have not won a majority of congressional seats since at least 1970. Republicans have also won every statewide election for president, governor, and other offices included in S.B. 1011’s partisan index during the last 25 years, nearly always with 20-plus margins. Utah’s highly uncompetitive environment also undermines the validity of the partisan bias test’s uniform shift assumption—that is, the assumption that the shift to a 50-50 statewide vote share would occur uniformly across districts. Since this scenario has not even remotely occurred in decades, it is at best unclear how electoral coalitions would shift to produce a 50-50 statewide election and whether the uniform shift assumption underlying the partisan bias test is satisfied in Utah. Thus, Utah does not satisfy the electoral conditions necessary for valid application of the partisan bias test.

Second, when applied in Utah to congressional plans, the partisan bias test yields paradoxical results that advantage Republicans and disadvantage Democrats. The test treats most 3-1 maps that include one Democratic-leaning district as biased in favor of Republicans and against Democrats, because in a hypothetical tied statewide election Democrats would not win two seats. At the same time, it treats 4-0 maps that guarantee Republicans all four seats as neutral. This irrational result stems from the test’s conflict with Utah’s political geography. To pass, a map must disperse Democrats across two districts to ensure they would win two seats in the hypothetical world of a tied statewide election. But because Democrats are a small, geographically concentrated minority, doing so dilutes their only opportunity in the real world to win one seat. . . .

Scholars have recognized this effect as the “Utah paradox”—one that is known to be gameable and the reason why partisan actors in Utah would opt to use partisan bias as their metric to assess congressional plans. Notably, the Legislature applied the partisan bias test only to congressional plans. Utah Code § 20A-19-103(1)(c), (g). The Legislature did not apply the partisan bias test to its own legislative maps or the state school board maps, all of which would fail the test for exhibiting pro-Republican bias. . . .

Unlike the partisan bias and mean-median difference tests—which yield wholly incoherent results in uncompetitive states—the efficiency gap is not inapplicable in a state as uncompetitive as Utah. As Dr. Warshaw explains, the original authors of the efficiency gap acknowledged that the efficiency gap may be inapplicable in states where one party consistently wins more than 75% of the vote, “[b]ut Utah does not fall into that category. So . . . Utah is not outside of the boundary conditions of the efficiency gap.”

The Court finds that, despite its drawbacks, the efficiency gap is an appropriate symmetry measure to consider in assessing congressional maps in Utah. It correctly identifies the party favored under a proposed congressional map and permits analysis of the extent to which that party is favored via comparison with historical congressional plans in other states. The efficiency gap is thus among the best symmetry measures available to evaluate partisan favoritism in Utah congressional maps and should be considered alongside other appropriate measures.