Niels Petersen is Professor of Public Law, International Law, and EU Law at the University of Münster. His essay is titled Supporting Democracy by Fixing the Asylum System:

The Alternative for Germany (AfD), a right-wing populist party, was founded in response to the euro crisis. Its initial focus was the abolition of the euro, the single currency of most EU member states. While hostility to immigration was present from the outset, it was not yet a defining trait. The party failed to enter the German federal parliament in the first federal elections after its founding in 2013. However, after pushing out some of the more moderate founders, the party raised its profile as an anti-immigrant force, particularly in opposition to Angela Merkel’s decision to admit more than one million refugees in 2015. Today, it is the main opposition party in the German parliament and, in opinion polls, it rivals the governing Christian Democrats for the top spot.

While the rise of the AfD is a distinctly German story, the underlying dynamic is not. Discontent with immigration has fueled the ascent of right-wing populist parties across the globe. Any discussion of democracy’s future, therefore, cannot ignore this discontent….

Fixing the asylum system, therefore, has become an urgent concern. Recently, The Economist proposed scrapping the asylum system to build something better. Today, most refugees remain in poor countries bordering conflict zones. Only the better-off attempt the dangerous journey to richer countries in Europe and North America to claim asylum. This arrangement has serious flaws: it benefits relatively few, exposes people to peril, fuels human smuggling, and is often exploited by those seeking economic opportunity rather than fleeing persecution. A more effective approach would prioritize improving conditions for refugees in states near conflict zones and abolishing the right to asylum for those arriving from safe third countries. Wealthy nations, however, should not evade responsibility. They should contribute financially to support refugees’ integration into host societies.

It is probably unrealistic to expect the conclusion of a multilateral treaty on this issue. However, the model could be implemented through a series of bilateral agreements….

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… Continue reading

I’ve been too busy to blog much this past week, either about my own work or the NYU Democracy Project. But here are three essays from last week in the NYU Democracy Project series of 100 essays in 100 days… Continue reading