1 PERSON, 2 VOTES?: AN ANALYSIS OF PARENTAL PROXY VOTING

By Nathaniel Robertson

“The child is not the mere creature of the state; those who nurture and direct his destiny have the right, coupled with the high duty” to act in their best interests.[1] The law in America grants parents broad legal authority to “direct the upbringing”[2] of their children by enabling parents to make decisions and act on behalf of their children.[3] However, voting is not a right that society has seen fit to grant to parents—although some, including Vice President J. D. Vance, have argued for this practice to be instituted.[4]

           This concept of giving parents the right to vote on their children’s behalf is called “parental proxy voting,” (“PPV”) or Demeny voting, after demographer Paul Demeny who advocated for the idea. This idea was proposed to address falling birth rates as a part of the pro-natalist movement. Demeny believed that falling fertility rates could be mitigated through strengthening the political power of parents.[5]The concept, however, long predates Demeny. Its initial proposal seems to stretch back to the Second Republic of France in 1848, when French politician Alphonse de Lamartine argued that men should be granted votes on behalf of their wives and children.[6]The idea remained present, although not particularly popular, in French politics for at least another century, where it often conflicted with the fight for women’s suffrage.[7]

More recently, Germany has seriously considered PPV in 2003 and in 2008, but ultimately the proposal was rejected by their legislature.[8] The German proposal was thought to violate their constitution, namely the right to a personal, secret, and free ballot.[9] The idea has also been floated in countries such as Hungary and Japan, which have struggled with low fertility rates at times.[10] Other scholars have addressed the politics[11] or the practicality[12] of PPV.

However, the main concept underpinning PPV is the fear that parents have for their children’s generations, and the inability of children to make decisions to affect that.[13] For example, climate change is a prominent issue that will undeniably grow more important in the coming decades.[14] But despite this issue disproportionately affecting young people, those young people are unable to affect that at the ballot box. One does not have to stretch their mind to think of many other issues for which this is true: funding for education, childcare, etc.

Some scholars treat proxy voting simply as an extension of representative democracy, and that parents simply act as representatives for the interests of their children.[15] The idea is based on the “parents’ moral duties and personal connections to their children.,” and furthered by the unique legal relationship between parents and children.[16] Non-logistical and non-legal criticisms range from the idea that PPV would “increase the electoral power of the most powerful,”[17]or that the policies are rooted in a regressive philosophical belief in the superiority of parents over non-parents.[18]

This article, however, will primarily address some of the main constitutional issues with this concept.[19] This will be addressed through the lens of a fictional family: Xochitl and her minor son Timmy. Additionally, the state that Xochitl and Timmy calls home and the federal government have enacted a policy of PPV by statute.[20]

The Diverging Definitions of One Person, One Vote

The first, and perhaps most obvious Constitutional point of contention would be the “one person, one vote” principle espoused in a plethora of court cases on reapportionment and redistricting.[21]It seems obvious on its face that PPV would violate “one person, one vote,” a right and protection granted under the Equal Protection Clause.[22]However, “one person, one vote” is a metaphor for two distinct, albeit often overlapping, concepts: electoral equality and representational equality.[23] When these concepts conflict with each other, interpretive issues arise.

Electoral equality protects the right of voters to be weighted the same as voters in other jurisdictions within the same state.[24] In other words, “one person, one vote” means that “those eligible to vote do not suffer dilution of that important right by having their vote given less weight than that of electors in another location.”[25] Representational equality, on the other hand, “ensures that all constituents, whether or not they are eligible to vote, have roughly equal access to their elected representatives to voice their opinions or otherwise advance their interests.”[26] This concept also almost fundamentally assumes “that elected officials are able to obtain benefits for their districts in proportion to their share of the total membership of the governing body,” and that disproportionate numbers of people between districts leads to disproportionate political power.[27]

The Supreme Court has regularly used the phrase “one person, one vote” to refer to either concept, and has never specified when each should be used nor endorsed either one as superior.[28]Additionally, the Circuits that have addressed this issue disagree. The Ninth Circuit majority opinion in Garza seems to favor representational equality,[29]and Judge Kozinski’s concurrence states that electoral equality must supersede representational equality when the two collide.[30]The majority holds that “one person, one vote” “serves to allow political participation short of voting,”[31] such as becoming a notary public or participating in a state scholarship program.[32] The Fifth Circuit disagreed with the Garza majority, but didn’t quite endorse the rigid Kozinski concurrence either.[33] Lastly, the Fourth Circuit held that the “Supreme Court prior opinions offer no clue as to which principle – electoral equality or representational equality – is more important to a democratic society.”[34]

The Supreme Court held in Burns v. Richardson in 1966 that Hawaii was allowed to use state citizen population rather than total population for state legislative reapportionment, a result which somewhat favors electoral equality.[35]However, far more recently, the Court in Evenwel v. Abbott implied that total population was the best metric for reapportionment, which favors representational equality.[36] Justice Ginsburg writes, “Nonvoters have an important stake in many policy debates—children . . . for example, have a stake in a strong public-education system . . . By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”[37]

So, what does this mean for PPV? Since there is no clear direction from the Supreme Court about which theory is superior, PPV will be addressed under both. Representational equality is the easier of the two approaches, because it does not concern any voting rights. Children are already protected under the representational equality theory, since they still clearly have the right to be suitably represented by elected officials, even though they had no choice in how those figures were elected.[38] One could easily argue that PPV still doesn’t represent the interests of children, but that would go towards the representation adequacy of the parents, not the representational equality of voting districts.

On the other hand, electoral equality necessarily implicates the rights of voters. The first question that would need to be answered is who counts as the voter? I think counting Xochitl as a voter on behalf of Timmy would run directly counter to this principle under the Equal Protection Clause, since Xochitl’s vote would necessarily be weighted as 1.5 votes. But if Timmy were counted as the voter for reapportionment purposes, would the result change? The argument could basically go one of two ways.

The first argument would be that Xochitl has 1.5 votes, which would clearly violate the electoral equality rule. Under that interpretation, a person with children explicitly counts as having more than one vote. The weight of non-parents would be “diluted,” which the Equal Protection Clause does not permit.[39] PPV under this construction of “one person, one vote” would be unconstitutional.

The other interpretation would be that Xochitl doesn’t have 1.5 votes; she has only 1. Her son Timmy has one complete vote.Under this theory, a court would find that Timmy’s vote is weighted the same as any other, but it is simply effectuated in a different manner. The fashion in which Timmy’s vote is cast and counted is nontraditional, but still fully consistent with the Equal Protection Clause. A judge that used this theory would likely find that PPV does not violate the one person, one vote. This method appears to be a larger intellectual jump, but it is perhaps within the bounds of possibility.

This may be a case where common sense leads to a particular result: that a person who casts 1.5 votes violates the principle of “one person, one vote.” Since courts, especially the Supreme Court, has been willing to bounce between electoral and representational equality in interpreting “one person, one vote,” it seems reasonable, if not likely, that most would find that this principle violates electoral equality. If a court disagreed, they would have to argue that “one person, one vote” doesn’t actually mean that a person only gets one vote. The interpretive gymnastics needed to justify this construction might be just too convaluted to get around.

“Ending the Gerontocracy” and the 26th Amendment

The Twenty-Sixth Amendment of the United States Constitution holds that the “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.”[40]The amendment is commonly considered to have lowered the voting age to 18 (which it did do), but the less discussed portion of the amendment is the prohibition against age discrimination in voting.[41]However, how this discrimination should be addressed by courts is an open question, given that the Supreme Court has never weighed in on a Twenty-Sixth Amendment case.[42]The Supreme Court did summarily affirm a district court case involving Twenty-Sixth Amendment interpretation,[43] but this summary affirmance was done because of an odd requirement within the “Enforcement of twenty-sixth amendment” chapter of the Voting Rights Act.[44] This section states that “district courts of the United States shall have jurisdiction instituted under this chapter . . . and any appeal shall lie to the Supreme Court.”[45]Additionally, courts around the country have struggled with how to approach the Twenty-Sixth Amendment, noting the “dearth of guidance on what test applies to Twenty-Sixth Amendment Claims.”[46]

Important to note primarily is that differential treatment based on age generally receives rational basis review,[47]although voting rights are special and analyzed under the Twenty-Sixth Amendment. Some courts have elected to use a strict scrutiny analysis for allegations of Twenty-Sixth Amendment violations.[48] In a recent case involving expanding absentee voting to elderly voters during the COVID-19 pandemic, the Fifth Circuit, in dicta, contemplated whether rational basis or strict scrutiny should apply.[49] However, the court in that case found that there was no denial or abridgement of the right to vote, so the level of scrutiny analysis was not reached.[50]

Outside of the traditional rational basis-strict scrutiny spectrum is another potential avenue: the Anderson-Burdick balancing test, which is often applied when reviewing election requirements and procedures.[51] This test requires courts to balance a state’s asserted interests with the burdens that it places on voters, under the Fourteenth Amendment.[52] The Fifth Circuit considers this approach in offering guidance on Twenty-Sixth Amendment claims.[53] However, the predominant trend seems to be towards adopting the Arlington Heights intentional discrimination test, which is the primary test for analyzing potential Fifteenth Amendment violations.[54]

The Arlington Heights test requires “discriminatory intent” by a state actor, but only requires that the “discriminatory purpose has been a motiving factor,” not the sole or “primary” purpose.[55] Discriminatory impact, or when an action “bears more heavily on one [age] than another,” is one among many factors, and “may provide an important starting point.”[56]Although, it is nonetheless insufficient on its own to find a constitutional violation.[57]Where direct and circumstantial evidence is available, it can be used to prove discriminatory intent.[58]Some other factors include: historical background, departure from normal processes, and legislative or administrative history (which is said to be “highly relevant”).[59]When weighing all of the evidence, “[s]ometimes a clear pattern, unexplainable on grounds other than [age] emerges . . . even when the governing legislation appears neutral on its face.”[60]

In our case of PPV, this change would almost invariably have a negative “impact” and “bear[ ] more heavily” on the voting rights of older voters, who are much less likely to have minor children for whom to vote on behalf of.[61]However, would there be any “discriminatory intent” behind the PPV change?[62] Since much of the writing around the concept of PPV speaks of ending the “gerontocracy” and the like, this process would almost certainly violate the Twenty-Sixth Amendment under this test.[63] Statements like this are discriminatory on their face. It is difficult to believe that during the drafting process of the statute granting PPV, not a single Representative or Senator would ever make some statement about how PPV not only empowers the youth, but also shifts the balance of political power toward a younger generation.[64] This, too, would not pass constitutional muster under the Arlington Heights test.

The saving grace for PPV under this framework might be that “[c]ourts have, however, been unwilling to hold that one’s right to vote contains a right to prevent others from voting.”[65]One article addresses hypothetical Twenty-Sixth Amendment jurisprudence under theory of zero-sum rights and positive-sum rights.[66]The author writes that the “right to vote as an act of political expression is positive-sum: my vote does not take away yours. Yet, the right to have one's vote aggregated in a way that it is more likely to elect one's preferred candidate is zero-sum: my candidate and your candidate cannot both win.”[67] Further, it discusses that removing barriers to voting that only impact one group (children, in our case) does not restrict the rights of others.[68] “Merely expanding the voter rolls is, standing alone, insufficient to make out a claim of vote dilution.”[69]

The Question of Secrecy

            There is one other lens through which we will view the constitutionality of PPV: the right to a secret ballot. Although not recognized by every court, some courts have found that the Equal Protection Clause protects an affirmative right to a secret ballot. The Sixth Circuit held that “the right to a secret ballot is cherished in our political system,” and should be analyzed under strict scrutiny.[70] Additionally, forty-four states have constitutional protections for a secret ballot, and the other six have statutory protections.[71] Of the cases interpreting a federal right of a secret ballot, the highest courts have viewed them through both a First and Fourteenth Amendment framework.[72]

           If a court found that PPV did not violate one person, one vote (likely through the interpretation that Timmy’s vote is still his vote executed in a nontraditional manner), it seems that his rights to a secret ballot would be implicated. First of all, it is impossible for Timmy to have a truly secret ballot, since Xochitl would be the one filling in the boxes. It may be that a court finds that the secret ballot right does not extend to the context of parents and children. Also, a court may find that the simple act of a parent voting on behalf of their children constitutes compulsive speech, which is prohibited under the First Amendment.[73] The right to speak necessarily includes the right to not speak.[74] As Justice Abe Fortas so eloquently stated, students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” so logic follows that they do not “shed their constitutional rights” to a secret ballot at the polling place door.[75]

            Conclusion

            This is by no means an exhaustive study into potential legal, political, or even constitutional issues with PPV. Perhaps the most important question that remains to be analyzed is the question of adequacy.[76] Does Xochitl have any duty to represent Timmy’s interest when she votes? What if Timmy doesn’t like the way Xochitl is voting: is Xochitl bound by her son’s beliefs? Is voting closer to the many responsibilities we as a society trust parents to execute on behalf of their children? [77] Or is this a right that a person can only execute on their own?

[1] Pierce v. Soc. of Sisters, 268 U.S. 510, 535 (1925).

[2] Id.

[3] Joshua Kleinfeld & Stephen E. Sachs, Give Parents the Vote, 100 Notre Dame L. Rev. 16-17 (forthcoming 2024) (noting that parents can bind their children to contracts, exercise and waive the constitutional rights of their children, and agree to medical procedures without their child’s consent).

[4] Patrick Marley, Vance once advocated that children get votes that parents could cast, Washington Post (July 24, 2024).

[5] Jenny Gesley, Family Voting as a Solution to Low Fertility? Experiences from France and Germany, Library of Congress Blogs (Apr. 19, 2018), https://blogs.loc.gov/law/2018/04/family-voting-as-a-solution-to-low-fertility-experiences-from-france-and-germany/#:~:text=They%20argue%20that%20parental%20proxy,only%20having%20a%20single%20vote (last visited Jan. 1, 2025).

[6] Id.

[7] Id.

[8] Id.

[9] John Wall, Adultism and Voting Age Discrimination, 36 Harv. Hum. Rts. J. 327, 337-38 (2023).

[10] Ross Douthat, Power to the Parents, N.Y. Times, Mar. 3, 2018, https://www.nytimes.com/2018/03/03/opinion/sunday/parents-teenagers-voting.html; Reiko Aoki & Rhema Vaithianathan, Is Demeny Voting the Answer to Low Fertility in Japan? 435 Cen. for Intergenerational Studies, Hitotsubashi Univ. (June 2009).

[11] Michael Mechanic, JD Vance’s Child-Voting ‘Experiment’ Would Be Great–for Democrats, Mother Jones, Aug. 15, 2024, https://www.motherjones.com/politics/2024/08/jd-vance-extra-votes-parents-children-families-thought-experiment.

[12] Interestingly, the practical way most scholars deal with how to allocate votes between parents is to give each parent half of a vote. E.g., Robert W. Bennett, Should Parents Be Given Extra Votes on Account of their Children?: Toward a Conversational Understanding of American Democracy, SSRN (Jan. 13, 2000) at 39, see also, Kleinfeld & Sachs, supra note 3, at 8.

[13] Kleinfeld & Sachs, supra note 3, at 10.

[14] Climate Change is a Grave Threat to Children’s Survival, Save The Children, https://www.savethechildren.org/us/what-we-do/emergency-response/climate-change (last visited Jan. 30, 2025) (“[E]very child will inherit a planet with more frequent extreme weather events than ever before.”).

[15] Kleinfeld & Sachs, supra note 3, at 15-16.

[16] Id. at 16, 18.

[17] Jane Rutherford, One Child, One Vote: Proxies for Parents, 82 Minn. L. Rev. 1464, 1521 (1998).

[18] Natalia Schmitter-Emerson, Vance’s Statement About Parental Voting Threatens Democracy, The Dartmouth (Aug. 16, 2024), thedartmouth.com/article/2024/08/vances-parental-voting-threatens-democracy#google_vignette; See also Marley, supra note 4.

[19] Other articles have sections addressing the constitutionality of PPV, but none are particularly comprehensive. See  Kleinfeld & Sachs, supra note 3 at 37-44; Bennett, supra note 12, at 3; Rutherford, supra note 17 at 1510-17.

[20] Although PPV could be enacted through a constitutional amendment, there could hardly be an unconstitutional part of the constitution. Additionally, the federal and state governments granting PPV rights at the same time avoids an unnecessary wade into the waters of Oregon v. Mitchell and the powers of the federal government to supersede state authority regarding enfranchisement. 400 U.S. 112 (1970).

[21] E.g., Reynolds v. Simms, 377 U.S. 533, 558 (1964).

[22] E.g., id.

[23] Judge Kozinski of the 9th Circuit thoroughly analyzes the distinction between these two concepts in his Garza concurrence. Id.; see also Evenwel v. Abbot, 578 U.S. 54, 81 (2016) (Thomas, J. concurring).

[24] Garza, 918 F.2d at 780 (Kozinski, J., concurring).  

[25] Id. at 782 (Kozinski, J., concurring).

[26] Daly v. Hunt, 93 F.3d 1212, 1223 (4th Cir. 1996).

[27] Id.

[28] See Garza, 918 F.2d at 785 (Kozinski, J., concurring); Evenwel, 578 U.S. at 81 (Thomas, J., concurring).

[29] Garza, 918 F.2d at 775-776 (majority opinion).

[30] Id. at 784 (Kozinski, J., concurring).

[31] Id. at 775 (majority opinion).

[32] Id. (citing Bernal v. Fainter, 467 U.S. 216, (1984); Nyquist v. Mauclet, 432 U.S. 1 (1977); Tinker v. Des Moines Community School Dist., 393 U.S. 503 (1969)).

[33] Chen v. Houston, 206 F.3d 502, 526 (5th Cir. 2000).

[34] Daly v. Hunt, 93 F.3d at 1224.

[35] Burns v. Richardson, 384 U.S. 73, 91 (1966) (“We start with the proposition that the Equal Protection Clause does not require the States to use total population figures . . . as the standard by which this substantial population equivalency is to be measured.”).

[36] 578 U.S. at 54.

[37] Id. at 74.

[38] See Evenwel, 934 U.S. at 74; see also Davis v. Bandemer, 478 U.S. 109, 132 (1986) (holding that elected officials represent all people residing within their district, including those who did not vote for them).

[39] Reynolds, 377 U.S. at 568.

[40] U.S. Const. amend. XXVI.

[41] Overview of the Twenty-Sixth Amendment, Reduction of Voting Age, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt26-1-1/ALDE_00013937/#essay-6 (last visited Jan. 17, 2025).

[42] Id.

[43] Symm v. United States, 439 U.S. 1105 (1979). See Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) (noting that Supreme Court summary affirmance does not equate to an endorsement of the reasoning of the lower court).

[44] 52 U.S.C. § 10701(b).

[45] 52 U.S.C. § 10701(b). Chief Justice Rehnquist mused that “the District Court may have been justified in concluding that the appellant registrar violated rights  . . . under the Twenty-sixth Amendment,” in his Symm dissent. Symm, 439 U.S. at 1108. (Rehnquist, C.J., dissenting). The Chief Justice explicitly bemoans the Supreme Court’s lack of discretion in choosing to take up cases under this chapter. Id. (Rehnquist, C.J., dissenting) (“If the case were here, therefore, on a petition for certiorari and fell within out discretionary jurisdiction, I would have no hesitation in voting no to deny certiorari.”).

[46] N.C. State Conf. of the NAACP v. McCrory, 182 F. Supp. 3d. 320, 522-24 (M.D.N.C. 2016) (rev’d on other grounds).

[47] Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-314 (1976).

[48] E.g., Worden v. Mercer Cnty. Bd. of Elections, 61 N.J. 325, 346 (N.J. 1972); Sloane v. Smith, 351 F. Supp. 1299, 1303 (M.D. Penn. 1972).

[49] Tex. Democratic Party v. Abbot, 978 F.3d 168, 194 (5th Cir. 2020).

[50] Id.

[51] Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020) (citing to Anderson, 460 U.S. 780; Burdick v. Takushi, 504 U.S. 428 (1992).

[52] Luft, 963 F.3d at 671.

[53] Tex. Democratic Party, 978 F.3d at 194.

[54] League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 1205, 1221 (N.D. Fla. 2018) (endorsing the use of the Arlington Heights test, because the language of the Twenty-Sixth Amendment tracks that of the Fifteenth). This court also rejected the use of the Anderson-Burdick test, since that would indicate that the Twenty-Sixth Amendment “contributes no added protection to that already offered by the Fourteenth Amendment.” Id. (quoting One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 896, 926 (W.D. Wis. 2016).

[55] Village of Arlington Heights v. Metro. Housing Development Corp., 429 U.S. 252, 265-66 (1977).

[56] Detzner, 314 F. Supp. 3d at 1222 (quoting Arlington Heights, 429 U.S. at 266).

[57] Arlington Heights, 429 U.S. at 266 (citing Washington v. Davis, 426 U.S. 229, 242 (1976)).

[58] Id.

[59] Id. at 266-268. The opinion notes that this “highly relevant” legislative or administrative history may potentially include “contemporary statements by members of the decision making body, minutes of its meetings,” or even in “some extraordinary circumstances,” testimonial evidence from the drafters themselves. Id. at 268.

[60] Detzner, 314 F. Supp. at 1222 (quoting Arlington Heights, 429 U.S. at 242).

[61] Washington v. Davis, 426 U.S. at 242.

[62] Arlington Heights, 429 U.S. at 265.

[63] Douthat, supra note 10; Marley, supra note 4.

[64] Although a single statement from a single member of Congress would be unlikely to be determinative under Arlington Heights, it is still a strong factor in determining the overall intent of the law. See Arlington Heights, 429 U.S. at 268.

[65] Eric S. Fish, The Twenty-Sixth Amendment Enforcement Power, 121 Yale L.J. 1168, 1233 (2012).

[66] Id. at 1234 (“Suing over district lines is one thing, but suing to disenfranchise others is entirely another.”) (citing Katzenbach v. Morgan, 384 U.S. 641, 657 (1966)).

[67] Id. at 1232.

[68] Id. at 1233-34. See also Katzenbach, 384 U.S. 657; Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001).

[69] Duncan v. Coffee Cnty., 69 F.3d 88, 94-95 (6th Cir. 1995).

[70] Anderson v. Mills, 664 F.2d 600, 608-09 (6th Cir. 1981); see also Socialist Worker’s Party v. Hechler, 890 F.2d 1303, 1309-10 (4th Cir. 1989).

[71] Secrecy of the Ballot and Ballot Selfies, https://www.ncsl.org/elections-and-campaigns/secrecy-of-the-ballot-and-ballot-selfies (last visited Jan. 21, 2025). See also Gesley, supra note 5 (pointing out the German Constitutional concerns with a person and secret ballot).

[72] Anderson, 664 F.2d 608-09; Socialist Worker’s Party, 890 F.2d at 1309-10.

[73] See Anderson, 664 F.2d at 609.

[74] W.V. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

[75] Tinker, 393 U.S. at 506.

[76] Maybe the standard of adequacy could be similar to the test for competency of counsel under the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 (1984). An entire other could be written on the constitutional and policy implications regarding the adequacy element of PPV. Alas, there is not room to address that here.

[77] Kleinfeld & Sachs, supra note 3. This article purports to prove the constitutionality of PPV, but unfortunately falls flat. The article seemingly ignores many of the potential constitutional issues addressed in this and other articles in its borderline conclusory statement that PPV is constitutional.