The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Give Parents the Vote!
Let voting parents cast ballots for their children.
Kids don't vote. That means nearly a quarter of American citizens don't have their interests defended at the polls. But parents can vote, and they could vote on behalf of their children. This bipartisan idea, with support ranging from Cornel West to J.D. Vance, would be the most significant expansion of the franchise since the Nineteenth Amendment—and it's something that any state legislature could do on its own, without waiting for a divided Congress to act.
Josh Kleinfeld and I have a new paper, forthcoming in the Notre Dame Law Review, that explains how. As we argue, voting parents should be able to cast ballots on behalf of their otherwise-qualified children; so should the court-appointed guardians of people who can't vote due to mental incapacity. From the abstract:
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 23% 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.
And from the introduction:
Perhaps the most vivid lesson of the COVID pandemic, from the standpoint of the democratic process, was the weak political power of children. When bars and restaurants reopened, schools stayed closed; when it became clear that children were less likely to infect others or become seriously ill themselves, schools stayed closed; when it became clear that school closures caused children significant harm, schools stayed closed; when it became clear that the poorest children were harmed most, schools stayed closed. The COVID closures were a singularly clear case of the balancing of interests that marks all politics: if some institutions would be allowed to open to keep society functioning, and others would be closed for the sake of public health, politics would decide who'd bear the cost. In that balancing, children lost.
Yet the COVID experience really just made evident a larger political pattern. The performance record of American schools—whatever one's preferred solution—reflects the political weakness of children. So does the limited supply of housing for new families, the state of public transportation and public parks, anemic support for working parents or responses to child poverty, and many aspects of crime and public-safety policy. Too often our political decisions hand out benefits in the present while shifting costs to the future—from growing public debt to
unfunded entitlement programs to long-term environmental worries such as climate change.The common thread is that, in policy contexts that put children's interests particularly at stake, children lose. And there's a simple explanation why. "Kids don't vote," and their parents can't vote for them. American policy is observably and significantly distorted by the political weakness of children, whose interests aren't adequately defended at the polls.
The most important thing to realize about this problem is its sheer scale. Roughly 23% of all American citizens, or nearly a quarter, are children under 18. The tendency in the United States and elsewhere has been to accept as if it's a fact of nature that, as children can't vote for themselves, their interests will go proportionally underrepresented in politics (at 23%, radically underrepresented). But why? It is a fact of nature that children aren't ready to defend their own interests. Yet the overwhelming majority of these children have parents who are also citizens, who have the right to vote, and who legally represent their children in virtually every other circumstance. Why accept the assumption that these parents can vote only for themselves?
This Article is about that assumption. Today it's so unquestioned that even pointing it out can seem like a silly provocation rather than a serious policy proposal. Deep assumptions are like that: questioning them always seems crazy at first. The suggestion that women should be allowed to vote once spurred derision, until wave upon wave of challenging assumptions produced the Nineteenth Amendment. Of course, there's a crucial difference: unlike the women who demanded their right to vote, children really are incompetent to vote their interests, at least at a sufficiently young age. One might disagree whether 18 is the right line, but surely something is: 8-year-olds aren't competent to vote their interests.
So our claim isn't that children should be able to vote from birth; our claim is that their parents should cast votes for them. State legislatures should change their election laws to let voting parents cast ballots for their too-young-to-vote children. This Article's aim is to move this idea from provocation to serious policy proposal: one that's mandated as a matter of frst principles, pragmatically feasible, robust to objections, and within each of the fifty states' legal control. Called "parent proxy voting," "parent voting," or sometimes "Demeny voting" afer demographer Paul Demeny, the idea has been proposed in a few foreign countries and endorsed by commentators from both sides of the aisle, from presidential candidate Cornel West to vice-presidential candidate J.D. Vance. But it's largely remained an academic curiosity, without much analysis of its philosophical foundations, its legal underpinning, or its detailed implementation.
Ideas about voting rights have always changed slowly. Yet the remarkable thing, we submit, shouldn't be the idea that parents might vote on behalf of their children, but that we have a group of citizens with legitimate interests constituting almost a quarter of the country, that they're plainly disadvantaged in the political process, and that we don't make the obvious repair.
Our proposal isn't only about children. Citizens with severe mental disabilities are similarly excluded from the ballot. They have real interests that deserve to be counted in a democratic republic, but they lack the ability or legal right to defend those interests through voting. And their numbers may not be small either—or, at least, won't remain so. (By 2050, when over a fifth of Americans may be over 65,8 as many as 15 million Americans may have dementia—nearly 4% of the entire population.) Many of these citizens are under the legal care of court-appointed general guardians, who are already empowered to act for their charges, already obliged to look out for their interests, and already capable of voting in U.S. elections. These guardians could and should be permitted to vote on behalf of their charges.
We focus primarily on children, though, because they're far more numerous. A 23% share of the citizenry is so breathtakingly large that it's hard to think about it clearly—enough disenfranchised fellow citizens to elect 102 of the 435 Representatives in the House. The number of citizen children is roughly sixteen times larger than the roughly 1.4% of Americans barred from voting due to felonies (long a cause célèbre among reformers), and six times larger than the number of noncitizens who lawfully and permanently reside in the United States (some of whom, of course, are children themselves). Children and parents together represent about 42% of America's population but only one-quarter of its voting-age population: the other 58% of Americans have three-quarters of the votes.
It's likely, of course, that parents already think about their children when voting. But each parent is just one vote; there aren't enough of them to defend their own interests and their children's interests at the same time. When state governors decide on school closures, legislators restrict access to child care, or Senators reimpose tariffs on baby formula, they can write off in their political calculations the citizens most affected by their policies, asking what the median adult voter will think instead. The magnitude of this under-counting is so extreme that one should take a deep breath and ask what could possibly justify a political process which excludes children's interests if there's any other choice available.
It's also important to see clearly the status quo. The illusion is that current law is neutral—that it makes no decision about representing children—and that our proposal would disturb this baseline. But in fact our political system already counts children in apportioning seats in Congress, allocating electoral votes among states, and drawing legislative district lines. Because children can't vote, though, their numerical influence just flows to the median adult voter who lives in their district. In substance, then, proxy voting for children is what we have today: we already let other people vote for children, we just insist that they be strangers. For example, the children who lived in Connecticut in 2020 earned the state an extra House seat, but they couldn't vote for the seat; other people did. The most powerful voter in America is a childless adult in a district with plenty of children.
The status quo also means that a household of six Americans—say, two parents, three children, and an incapacitated grandparent—wields the same political power within their district as a neighboring household of only two adults. That's obviously unfair. And it gives the lie to claims that letting parents vote for their children would be unfair to the childless. A family of six "contains more human beings than a family of two"; if our proposal gives these extra citizens their proportional influence in the political system, that's hardly "some shady sleight of hand." Our proposal doesn't give parents extra votes for being parents, the way Oxford and Cambridge graduates used to get extra votes in England. Instead, our proposal recognizes that these other citizens exist, that they matter politically, and that their interests are better represented by the people closest to them than by strangers. It isn't about extra votes, but extra people. By contrast, the status quo is effectively the Oxford-Cambridge arrangement on behalf of the childless. Our proposal restores the otherwise broken promise of "one person, one vote."
So the choice isn't between counting children and not counting them, or between avoiding a policy decision about them and forcing one. The choice is between counting children for their numbers but discounting their interests, or counting children for their numbers and their interests both. Our proposal wouldn't increase any state's share of seats in Congress or the Electoral College; again, children already count for that purpose. We'd simply re-assign children's existing political power to their parents, rather than to random and unrelated adults.
Faced with a reform of this magnitude, it's natural to wonder about the details: "Would parents fill out multiple ballots?" "What if they disagree about how to cast them?" "What about orphans?" "What about children who are citizens but whose parents aren't?" And so on. We offer detailed answers below, but the short answers are as follows. We argue that, if someone is unable to vote for reasons of age or incapacity, and if she has a parent or guardian who under her state's law is eligible to vote and who's generally charged with her care and able to act in her name, then this parent or guardian should be able to cast a proxy vote on her behalf. The right to vote is important enough—to each citizen and to our democracy—that no one but a parent or guardian should be able to act for another, and that no one but a lawful voter should be able to cast a vote.
As to mechanics, we suggest that parents be added to the rolls as proxy voters in advance, through the voting registration process. When it comes time to vote, a parent could cast a ballot marked with the number of people it represents. For example, a single parent with one child could receive a ballot indicating that it counts for two. When there's more than one parent registered, each could cast a fractional vote: two parents with three children could cast one-and-a-half proxy votes each, so that five total votes are cast by a family of five. (One person, one vote.) Admittedly, such fractional voting is unfamiliar. But the math is simple and would be automated, the information needed is readily available to state governments already, and the injustice of the current system is plain.
Indeed, the problem is one of such screaming, urgent magnitude that the most important response to objections of detail is to ask: what would you do instead? Refusing to account for a quarter of the population's interests is so great a democratic failure that the only justification for doing nothing is that nothing can be done. A country isn't morally obligated to do the impossible. But in this case, there's a solution. We should give parents the vote.
As they say, read the whole thing!
