H. Javier Kordi1H. Javier Kordi received his J.D. from the University of Chicago Law School in 2020. After graduating, he clerked for Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit and now clerks for Senior Judge Susan Illston on the Northern District of California. In law school, his writing focused on distributive justice in tort law, particularly the allocation of damages and deterrence based on race and class. His works received recognition as the most creative legal paper during his 2L year, the best paper of his graduating class, and the Ephraim Prize in Law and Economics. He obtained a B.A. from the University of California, Berkeley in 2013. Javier thanks Omri Ben-Shahar for his endless mentorship, Niki Sabetfakhri for her tireless support, and the participants of the University of Chicago Law School’s 2021 Symposium on Personalized Law for their insightful comments and discussions during our time in Hyde Park.
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A part of the series, Personalized Law.
Should people be allowed to vote before the age of eighteen? Particularly in the last few years, commentators and policymakers might say yes—arguing that age sixteen is the more appropriate voting age given findings in cognitive and developmental science. Research shows that by mid-adolescence, minors generally demonstrate the adult-like thought processes required for effective voting. If true, then lowering the voting age would open the franchise to a greater proportion of rationally minded, or “competent,” minors.
But developmental studies also show that different people mature at different rates, such that under any uniform, age-based rule, inclusion of competent persons will be imperfect. An ideal uniform voting age would thus try to maximize the social benefits of broader enfranchisement against the error costs of non-competent, votes.
This Essay draws on Professors Omri Ben-Shahar and Ariel Porat’s book, Personalized Law: Different Rules for Different People, to examine a different approach to enfranchisement’s “boundary problem.” Imagine that, consistent with the U.S. Constitution’s Twenty-Sixth Amendment, no government could deny citizens age eighteen or over the right to vote “on account of age.” But before that age, one could, through a highly individualized process, be deemed competent to vote. Assuming that information about a person’s development could be perfectly captured and evaluated on a fair metric (both bold assumptions), a regime of personalized enfranchisement could reduce error costs to near-zero and expand democratic participation to its outer-most bounds. Age, which serves as a crude and imperfect surrogate for voter competency under current law, would operate as a minor input in a broader assessment.
Three considerations drive this Essay’s exploration of such uncharted territory. First, as Personalized Law suggests, personalized legal entitlements may enhance liberty and equality among rights-holders by reducing arbitrary distinctions. Voting law has largely eliminated (dis)qualifications based on socio-legal categories such as race, gender, and sexual identity. Personalized enfranchisement can challenge one of the last remaining impediments to true universal suffrage: the denial of voting rights to minors based on an arbitrary age cutoff. Second, personalized enfranchisement would harmonize the rules that determine entry and exit from the franchise. In the United States, there is no uniform age of expiry for voting rights—i.e., adults do not age out of voter rolls at age seventy. As a default, a voter may vote until death. When the state does seek to disenfranchise a voter based on mental incompetency, it does so on a case-by-case basis. Personalized enfranchisement embraces the benefits of disuniformity and individualized treatment at the entry point, rather than solely at the exit.
Third, personalized enfranchisement could enhance democratic deliberation by more fully aggregating the preferences of the people. As of 2020, people under the age of eighteen make up 22.1% of the United States’ population. As elections turn on ever-thinner margins, arbitrarily denying electoral expression to even a tiny fraction of minors who possess coherent preferences could fundamentally shift electoral outcomes. In line with the normative framework presented by Professors Ben-Shahar and Porat, electoral inclusion based on individualized assessments can produce a “precision benefit” measurable at scale.
Of course, sound theory does not always translate into good policy. Old Confederacy states in the American South notoriously relied on the concept of voter competency to systematically disenfranchise southern blacks and poor whites via literacy tests and civics exams. The personalization of competency assessments to enfranchise minors would struggle to escape the gravitational pull of such a racist past.
The struggle is not merely symbolic: allocating rights based on individual’s competency will lead to problematic distributive effects. For two same-aged minors, one’s implied judgment of incompetency could wreak psychological and social damage, while the other’s determination of competency could enhance confidence, enhance social standing, and lead to downstream inequality between the two. More troubling yet, personalized enfranchisement based on competency may disadvantage poor and racial minorities due to preexisting educational and environmental inequalities.
Yet the project of personalized law must contend with such challenges. In the vision of personalized law set forth by Professors Ben-Shahar and Porat, competency will play a central role in allocating private law rights and duties, such as a minor’s capacity to contract, a person’s entitlement to enhanced consumer protections, and one’s ability to appreciate tort risks and take appropriate precautionary measures. The authors properly recognize the tensions their project imposes on distributive fairness and equality; this Essay does not claim to develop a foolproof conception of competency or to resolve the tensions presented by personalized law. The Essay’s inquiry is far more modest: Is there a point at which the tensions become unbearable in the context of voting rights? Perhaps unsurprisingly, that point promptly arises.
This Essay continues in three parts. Part I briefly surveys the history of voting age laws and situates them within the broader context of minors’ rights and duties. With a few exceptions, bright-line age rules predominate when deciding questions of maturity. Part I ends by examining whether a bright line rule that ignores developmental differences is the right tool for granting voting rights. Part II presents the potential benefits of personalized enfranchisement. Part III examines the distributive downsides of such a regime and offers potential solutions.
I. Voting Age in an Empire of Bright-Line Rules
There is nothing inevitable about basing voting rights on age. For much of the United States’ history, a person could not vote until the age of twenty-one, even after Congress lowered the age of military conscription to eighteen for World War II. When the Vietnam war called for another mass-conscription, popular sentiment turned to the unfairness of sending young men to fight wars overseas without granting them a corresponding right to choose the leaders who dictated their fates.
The Twenty-Sixth Amendment, ratified in 1971, provides that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” The Amendment set a floor, not a ceiling, on the voting age. Thus, many localities opt to go even lower. For example, Mount Rainier, Maryland, just lowered the voting age to sixteen for city-wide elections, and Oakland, California, did the same for school board elections. Recently, United States House Representative Grace Meng introduced a constitutional amendment to lower the nation-wide floor to sixteen.
But why does age matter? History indicates that voting age served as a proxy for one’s capacity or competency to participate in democratic decision-making. Decisions by the Supreme Court later legitimized the significance of intelligence and competency as prerequisites to meaningful voting. It makes analogical sense when considering other contexts of democratic decision-making: “If a jury made its decision out of ignorance . . . or on the basis of irrational and biased thought processes,” we probably wouldn’t “regard the jury’s decision as authoritative or legitimate.”
The movement to lower the voting age to reflect the cognitive and decisional competency of mid-adolescents takes the centrality of competency for granted. Of course, the use of competency as a criterion for enfranchisement was not always so benevolent. In the mid-twentieth century, southern states of the Old Confederacy used literacy tests and civic knowledge exams to categorically disenfranchise black citizens and poor whites. The Supreme Court in Lassiter v. Northampton (1959) even assented to the use of literacy tests, finding no racial discrimination if the tests were administered equally across races. Fortunately, the subsequent Voting Rights Act constrained the use of literacy tests, along with any “qualification or prerequisite to voting or standard, practice, or procedure” that denies voting rights “on account of race or color.”
The manipulability of competency is perhaps attributable to the fact that “no principled conception of electoral competence exists.” Perhaps a uniform voting age that “ignores individual variations in developmental maturity” in favor of a best-guess average ensures that no group is categorically excluded from the franchise. The irony, of course, is that such a uniform rule in fact does categorically exclude a group: minors who would be found competent under an individualized assessment but are denied the right due to a strict uniform rule.
Yet reliance on bright-line rules is the norm when allocating rights and duties to minors. The moment when a minor becomes eligible for emancipation, receives unfettered contractual rights, obtains the right to sue, becomes eligible for a driver’s license, can buy alcohol, or loses entitlement to parental support, is, for the most part, determined by uniform age thresholds that ignore developmental differences ex ante.
Personalized assessments of maturity are thus the exception. For example, when courts need to decide whether a juvenile should be transferred to an adult court for criminal proceedings, an individualized “judicial transfer hearing” is held. In North Carolina, for example, a court will determine whether judicial transfer is needed to protect “the public and the needs of the juvenile” by considering, among other things, the offender’s age, maturity, intellectual functioning, prior records, and prior rehabilitation attempts. Another example of personalized treatment arises in the “judicial bypass hearings” compelled by the Supreme Court’s abortion rights decision in Belotti v. Baird (1979). In these hearings, a judge determines whether a minor who seeks court authorization to get an abortion without parental consent “is mature enough and well enough informed to make her abortion decision” independent of her parents.
Perhaps the administrative costs of delving into the inner workings of an adolescent mind are simply unjustifiable outside of a few exceptional situations. But aren’t the liberty and autonomy interests protected by judicial transfer and judicial bypass hearings located downstream from the “fundamental” right to vote? And wouldn’t such interests be further served by exercising the electoral rights that the Supreme Court has deemed the “essence of a democratic society” such that “[n]o right is more precious in a free country”?
Granted, more people will vote than will petition against judicial transfer or for autonomous abortion decisions, so the administrative costs objection is not without merit. But if computational advances drastically reduce administrative costs, what stands in the way of personalizing voting rights? As this Essay later explains in Part III, distributive inequality presents a robust stopping principle for personalizing voter enfranchisement. But before reaching that discussion, this Essay will next turn to why society would want to approach such an outer limit in the first place.
II. Benefits of Personalized Enfranchisement
There is no single account that explains why people vote. Some people vote because they want to express their identity or affinity to certain groups or ideas. Others vote to “make a difference” in elections by backing certain candidates or policies. Yet others might see voting as a “moral obligation” to be discharged regardless of the content of one’s vote. At a high level of abstraction, voting is an instrumental activity that generates social value through the attainment of some end goal, whether its preference aggregation, identity formation, or the satisfaction of a symbolic duty.
Under the preference-aggregation model, a personalized voting age maximizes democratic deliberation. If voting is an instrument to aggregate society’s preferences into a survey referred to as “the will of the people,” then a system that enfranchises every person who meets the competency criterion will better capture the people’s preferences on election day. Stated differently, greater inclusion leads to a fairer overall process because it increases the sample size from which insights are drawn and institutions are shaped.
A personalized voting age might also improve outcomes. Political scientists theorize that increasing cognitive diversity among participants in a collective decision increases the likelihood that the group will make the “right” decision. Including qualified adolescents into the franchise may thus lead to better, or more democratic, electoral outcomes. This insight aligns with the “law of large numbers,” which states that if members in a group each individually have a greater than 50% chance of making the right decision, the overall odds of the group reaching the “correct” decision will increase with the size of the group. (Although, it is disputed whether this theory holds when decisions solicit preferences rather than objectively right or wrong answers.).
An expressivist view of voting suggests personalized enfranchisement can increase political participation even outside the ballot box. Under this view, “preference revelation” (i.e., voting) is a consumption activity that generates benefits separate and distinct from the benefits one hopes to get through the outcome of an election. Stated differently, voting is an individual participatory act that helps construct identity and community membership. Viewed as such, it makes little sense to withhold voting rights from otherwise-competent voters until they reach an arbitrary age; such uniform treatment limits political expression and identity formation with no great social benefit.
One could argue that withholding voting rights protects adolescents from the harm of associating with groups or ideas that they would not otherwise associate with if they were further along in their development (or had perfect information). But if enfranchisement presupposes competency, then the “self-harm-through-expression” argument could not rest on such paternalistic considerations—since, by definition, a voter knows what they are doing. Instead, an expressive-harms argument would rest on value judgements that certain ideas or affiliations pose greater harm than others. Seldom do such content-based concerns justify withholding the franchise.
Personalized enfranchisement is a powerful tool. But as discussed in the next section, individualized assessments of voter competency might lead to distributive harms that undermine the purported benefits. Are these harms inevitable? And if not, are they worth the benefit of a more precise franchise?
III. Distributive Harms
Under a system of personalized enfranchisement, people would secure voting rights at different ages precisely because they reach developmental stages at different times. Much like personalized consumer protection laws, speed limits, and criminal penalties, personalized enfranchisement prioritizes “fit” over forced equality, and in doing so, maximizes the precision benefits of the legal rule. But such endeavors come at a great cost, to which this section now turns.
A. Harms at the Micro Scale: Inequality Among Peers
Due to our society’s enduring practice of placing same-aged adolescents in close proximity with one another (e.g., through the institution of graded school) personalizing age-outputs can exert acute interpersonal effects between peers.
Imagine two high school sophomores sitting next to each other in class: Amri gets adjudged competent enough to vote; Oriel does not. As a result, Oriel may feel insecure, suffer low self-esteem, and be marginalized from peer groups. Conversely, Amri may feel amazing. But the problem is not merely about feelings. The personalization of voting age may also produce a signal that allocates collateral benefits to those adjudged competent, such as favorable treatment by teachers and community members. Professors Ben-Shahar and Porat recognize that collateral benefits and burdens might arise from personalization. For example, personalized tort standards of care based on a person’s idiosyncratic risk generation may be problematic:
If their riskiness score results from poverty or diminished access to primary goods like health care, employment, or education, or more generally from social and economic deprivation. It would then be unjust to disproportionately burden them with stricter personalized standards of care, raising their costs of liability insurance, blocking their entry into activities, and overall aggravating the inequality that already exists and that brought them into the category of “riskier.”
But it would be a “methodological mistake,” the authors argue, to evaluate distributive justice on such a rule-by-rule basis. Rather, the authors offer the analytical concept of “bundling” to zoom out and view the entirety of person’s individualized rights and duties before deciding whether they are unfairly burdened. Thus, even if a standard of care imposed greater burdens on the poor than the wealthy, the same factors that subject a poor person to a higher standard of care might also entitle them to benefits in other legal domains that offset the disadvantage, for example, enhanced consumer protections.
Could a similar device justify the downstream inequality of giving Amri and Oriel differential access to the franchise? For example, if being adjudged competent enough to vote simultaneously dissolved a minor’s right to unilaterally disaffirm contracts, or eliminated one’s entitlement to parental financial support, would such effects offset the collateral benefits of voting? It’s unclear. Anti-commodificationists might scoff at the mere suggestion that constitutional rights could even be rightly compared or “traded” with private law rights. According to anti-commodification theory, purporting to express “value-equilibrium” between public and private law domains for the purposes of a bundling analysis would denigrate or demean communal views of how constitutional rights are “properly valued.” These are deep philosophical waters, and it is unclear where they lead.
B. Harms at the Macro Scale: Racial and Economic Inequality
Personalized enfranchisement may disadvantage poor or minority adolescents, especially if competency determinations rely primarily on developmental factors that are affected by socioeconomic status. For example, environmental factors linked to socioeconomic status can heavily influence when certain developmental stages are met. Further, adolescents from poor or minority backgrounds, who have lower access to high-quality education, may be placed at a disadvantage if competency entails skills or attributes obtained and refined through formal schooling. With such a disparate impact, personalized enfranchisement might run headfirst into the Voting Rights Act.
Importantly, this distributive effect is not necessarily caused by “algorithmic bias.” Rather, such a distribution would likely be more pronounced with increased accuracy. An algorithm that perfectly captures the factual conditions in the world to determine personalized entitlements will distribute legal rights in a way that adheres closely to preexisting patterns of social stratification.
Thus, addressing such widespread inequality to ensure a fair distribution of enfranchisement rights will be no small feat. In a recent book, Reimagining Equality: A New Deal for Children of Color, authorNancy Dowd examines how the structures of poverty, criminalization, and subpar education create a developmental hierarchy with Black boys at the bottom and white children at the top. Dowd coins the term “developmental justice” to describe the state’s obligation to “dismantle, reorganize, and reorient those systems” that perpetuate inequality. Perhaps a state that implements personalized enfranchisement could be required, as a precondition, to equalize the structural determinants of childhood development.
As an alternative, a state wishing to implement personalized enfranchisement in an equitable manner might broaden what competency even entails. What if voter competency could be attained merely by demonstrating the capacity for self-interested decision-making? There is a long-standing debate about whether homo economicus explains voter behavior. Geoffrey Brennan and Loren Lomasky once argued that while “[self-]interests may predominate market behavior, they are strongly muted in the ballot box.” But that hardly suggests self-interestedness is not sufficient for competent voting. What if competency also inquired into whether an adolescent makes decisions that benefit rather than hurt them, whether they can recognize their material needs and deficits, and whether they can look out for themselves? Based on this conception of competency, children with more difficult upbringings may develop competency earlier than children from more privileged backgrounds, perhaps equalizing outcomes even if traditional notions of competency continue to be used in tandem.
The story of Personalized Law might remain a tale of science fiction for some time. But its analytical value is already apparent. By inviting us to imagine the nearly costless tailoring of individualized legal rules, Personalized Law offers a litmus test for how seriously we are willing to adhere to the criteria that determine the allocation of rights and duties.
This Essay thus queried: If the voting age is truly about voter competency, then why not adopt a system that recognizes the different competencies of different people at different ages? Society surely tolerates the notion that some people are more competent than others. College admissions, for example, are predicated on this fact. So maybe the injustice is in allocating legal entitlements based on those differences. But is a uniform law that rejects developmental difference in favor of an arbitrary age-based presumption any better?
Maybe what makes constitutional rights bad candidates for personalization is not merely that they are public goods “produced and valued by scale.” Rather, the challenge of a personalized constitution lies in the durability of its distributive effects. What does it even mean to “offset” voting rights—which are simultaneously invaluable and valueless—with some other benefit in a bundle? One theory calculates the expected value of an individual’s vote, measured by the probability that one’s vote will decide an election, at less than one millionth of a penny. Thus, achieving a distributively fair personalized constitution may require a fundamental shift in how society distributes the underlying benefits and burdens—for now, perhaps uniformity is the safer route.
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H. Javier Kordi received his J.D. from the University of Chicago Law School in 2020. After graduating, he clerked for Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit and now clerks for Senior Judge Susan Illston on the Northern District of California. In law school, his writing focused on distributive justice in tort law, particularly the allocation of damages and deterrence based on race and class. His works received recognition as the most creative legal paper during his 2L year, the best paper of his graduating class, and the Ephraim Prize in Law and Economics. He obtained a B.A. from the University of California, Berkeley in 2013. Javier thanks Omri Ben-Shahar for his endless mentorship, Niki Sabetfakhri for her tireless support, and the participants of the University of Chicago Law School’s 2021 Symposium on Personalized Law for their insightful comments and discussions during our time in Hyde Park.
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