Voting and Justice

Abstract

Elected city officials make decisions that affect the lives both of city residents and of outsiders. Local public schools have an impact on the communities in which graduates live wherever they are. City zoning policies influence not only the nature of city life but that of neighboring communities. City police do not simply arrest local residents; sometimes, they patrol looking for outsiders. On these and many other policy issues, however, when local elected officials look to the general population for guidance, they tend to care principally about the views held by the people eligible to vote for them. It is not surprising that city officials answerable only to local voters do not pay much attention to the views of those who live in a neighboring jurisdiction. It’s equally unsurprising that city officials care more about the voting population than they do about the views of city residents who are ineligible to vote. The reason for this focus on local voters’ opinions need not be attributed to the reductionist idea that all city officials care about is their own re-election. It is, after all, a principle of democracy that elected officials are supposed to care about the interests of the people who elect them even if they are not running for re-election.Determining who is eligible to vote for local elected officials is, therefore, a key component of the organization of local decision making. This essay will focus on the legal structure that defines this local electorate. The definition is controversial. Not every adult resident is eligible to vote. The definition of residency is itself problematic. And, as we shall see, sometimes non-residents are allowed to vote. The justification for my focus on voter eligibility is straightforward. If the rules that determine the local electorate were changed, a very different group of people would be able to influence the decisions that local officials make about matters such as education, zoning, and police behavior. Changing these rules thus has the potential to alter the relationship between city policy and social justice.Before we turn to the legal definition of the local electorate, two preliminary points are worth noting. The first is that many local decisions are not made by locally elected officials. Most importantly, city policy is significantly determined by state law. As David Barron and I have described at book length, the state government directly controls major local issues. State law also specifies the kinds of issues that cities are empowered to deal with on their own. Even on those matters delegated to the local government, the state routinely overrules contrary local decision making (Frug and Barron 2008). And the role of elected state officials is only the beginning of the list of those entitled to make important local decisions. State-created public authorities are another significant local decision maker. Decisions about mass transit, roads, water distribution, and energy policy, like dozens of other issues, are often in the hands not of elected city or state governments but of officials appointed by the governor, frequently with little or no city input. Once empowered, these public authorities – such as the Massachusetts Turnpike Authority or the Port Authority of New York and New Jersey – can have a decisive influence on the development policy of a city, such as the Big Dig in Boston and the rebuilding of the World Trade Center site in New York. Finally, the private sector plays a critical role in local policy making. I refer here not simply to the fact that private investment decisions are a key influence on city development policy. Substantial portions of city territory are controlled by private organizations – by homeowners associations, office parks, and malls. The rules that govern these parts of town are primarily (although not entirely) established by these private organizations. Moreover, in many cities public streets are patrolled by employees of business improvement districts – organizations created to deal with issues such as safety, sanitation, and street life. Under state law, the leadership of these organizations is normally elected by local property owners, not by local residents generally. (There are more than 100 business improvement districts in New York City alone.) My focus on voting rules for elected city officials thus deals with only a fraction of the decisions that affect a city’s future. The size of this fraction varies from city to city. But everywhere it is important enough to be a subject of interest simply by itself.The second introductory point concerns the relationship between this essay and the important literature on what is called, after Robert Dahl, the Principle of Affected Interests (Goodin 2007; Dahl 1989; Dahl 1970). The literature grapples with a central puzzle of democratic theory: how does one determine who should be entitled to participate in a democratic decision making process? The Principle of Affected Interests addresses this question by exploring the virtues of, and difficulties with establishing, a particular test for the franchise: those who are affected by a government’s decisions are entitled to vote for its officials. One problem with implementing such a standard is that countless outsiders – sometimes the whole world – are affected by decisions that they have no role in influencing. (Much of the world, for example, is affected by American foreign policy.) Another problem is the standard’s apparently circularity: who decides who is affected by a government policy? A democratic electorate composed of people who are affected cannot decide this question: determining who is affected is a preliminary issue that constitutes the group, and that question needs to be decided by another democratic process.In this essay, I advocate adding to the franchise categories of people -- non-citizens, felons, part-time residents, and residents of neighboring jurisdictions within the same metropolitan area – who are affected by city decision making. To this extent, I embrace the goals associated with the Principle of Affected Interests. At the same time, however, my focus on city decision making is not simply an application of it. For cities, there is no circularity problem. In the United States, local self-government is not a matter of community self-definition. Although there are exceptions, decisions about voting eligibility are made not by the localities themselves but by state law. (As we shall see, the occasional claims that the kind of voting restrictions discussed in this essay violate federal constitutional law are usually rejected.) The definition of the local political community is thus in the hands of outsiders, not just insiders. Moreover, when a state defines the local electorate, it is not simply deciding who is affected by city policies. Defining the local franchise is a way of making urban policy. By including some of the people affected by a city’s decisions while (inevitably) excluding others, state law determine what a city is and whose interests it represents. In judging the present qualifications for – and any proposed changes in – the local franchise, the critical issue, then, is not whether everyone affected will be included (they will not be) but whether the role of the city, as distinguished from the other locations for democratic decision making at the state and national level, is properly being defined.