[EL] "Voters as Fiduciaries" paper, relevant to Evenwel

[Thomas J. Cares]

Wouldn't transparent ballots be a key missing ingredient in your vision. A
fiduciary who can make decisions in complete secret, is an incoherent
premise. "Duty" and secrecy are incompatible. It's also a key difference
between voters and jurists. There is no chance of even the momentary
embarrassment a nullifying juror might experience (i.e. If they vote for a
meritless attractive female plaintiff or convict a guy without real
evidence, because he has a tear drop tattoo - things that might be obvious
to his fellow jurors and judge and cause him embarrassment which vindicates
his "duty"). This concept can't substantively survive the secret ballot.
You could argue against secret ballots, and this would seem like a good
argument against it, not to say it should prevail.

-Tom

On Monday, June 1, 2015, Foley, Edward <foley.33 at osu.edu> wrote:

>  My argument in the “Voters as Fiduciaries” paper is not an effort to
> describe current practice, but a normative claim about how voters should
> understand their role in a democracy (and thus how all of us should
> understand their role).
>
>  The paper relies on environmental policy as the primary domain for
> illustrating this normative claim, both intuitively and as an exercise of
> Rawlsian political philosophy.  The basic point is that the current
> electorate makes decisions affecting the environment (and utilization of
> natural resources) that affect the well-being of non only living members of
> the community (both eligible voters and currently non-eligible children),
> but also all anticipated future generations of inhabitants.  The currently
> eligible voters, in other words, are the custodians of the commonwealth for
> all generations, present and future.  That is the source of their fiduciary
> duty to the public interest as a whole.
>
>  Relevant to *Evenwel*, this duty applies not only to other eligible
> voters but to all inhabitants of the commonwealth (or at least all lawful
> inhabitants, including non-citizens entitled to reside in commonwealth, or
> those potentially entitled to reside there).
>
>
> * Edward B. Foley*
>  Director, *Election Law @ Moritz *
> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional
> Law
>  Moritz College of Law
> 55 West 12th Avenue
>  Columbus, OH 43210
> 614-292-4288 | foley.33 at osu.edu
> <https://email.osu.edu/owa/14.3.224.2/scripts/premium/redir.aspx?SURL=sZkHP7NOCM2G294iSwDJCrWcDqYHBXFfxofDiPWhKat7Ok7Rc2DSCG0AYQBpAGwAdABvADoAZgBvAGwAZQB5AC4AMwAzAEAAbwBzAHUALgBlAGQAdQA.&URL=mailto%3afoley.33%40osu.edu>
>  electionlaw.osu.edu
> <https://email.osu.edu/owa/14.3.224.2/scripts/premium/redir.aspx?SURL=p27OfQtfP7P1FH2fo4LLU7POvIFpF5z02osbCqL4laN7Ok7Rc2DSCGgAdAB0AHAAOgAvAC8AZQBsAGUAYwB0AGkAbwBuAGwAYQB3AC4AbwBzAHUALgBlAGQAdQAvAA..&URL=http%3a%2f%2felectionlaw.osu.edu%2f>
>
>
>
>  On Jun 1, 2015, at 2:35 PM, Thomas J. Cares <Tom at TomCares.com
> <javascript:_e(%7B%7D,'cvml','Tom at TomCares.com');>> wrote:
>
> In practice, voters seem less like jurors, and more like shareholders,
> with nonvoters analogizing to customers and employees. Voters care about
> their happiness to the extent it effects them.
>
>  (Apple shareholders worry about people being unhappy with their iPhones,
> really only to the extent that it hurts profit and drives share price down.
> However, that can result in a lot of caring. Voters care about non-voting
> felons, perhaps to the extent that they'd rather they be doing well, living
> honestly, than burglarizing their home).
>
>  The amelioration of this, as I see it, is the Constitution, which is very
> tough for the electorate to ignite change to.
>
>  20 neighbors living on a block might want to vote to demolish the homes
> of 3, without compensating them, to put a park in their place, but while
> they might easily win that vote, the Constitution wouldn't allow it (and
> they probably couldn't persuade 2/3 of congress and 38 states to take up
> their cause).
>
>  And this is an important role of the Constitution, which I think many
> fail to realize.
>
>  It continuously protects an alternating few, when the majority's
> interest conflict, but for the majority to win, the collective pain on the
> few would likely outweigh the collective pain on the many (homelessness and
> financial ruin vs free park).
>
>  In so protecting, the constitution makes all of us better in the long
> run, because when it comes time that the majority would destroy you, if
> allowed, it's now your turn to be protected. The result is that, while the
> constitution might generally stop the majority from getting their way on
> various case by case bases, everyone is better for it.
>
>  Voters, are intrinsically entitled to vote their interests. I care about
> opportunities for felons, because I think when someone is handicapped by
> the state like that, it creates a lot of sadness - essentially throughout
> that person's family - that ripples throughout society; and I do not want
> to live in a sad society. So while I am not a felon, I do not vote for
> people who don't care about them, at least if such a choice is provided.
> Other voters might not share that sentiment, and if those voters are the
> majority, I expect the Constitution to still protect felons from being
> unduly destroyed.
>
>  -Thomas Cares
>
>
> (*Off-list*, if anyone has a view they would share with me about whether
> LA crossed constitutional lines by probably making it harder for felons to
> find employment by raising minimum wage by 67%, I would be interested in
> your view)
>
> On Monday, June 1, 2015, Foley, Edward <foley.33 at osu.edu
> <javascript:_e(%7B%7D,'cvml','foley.33 at osu.edu');>> wrote:
>
>>  I’ve posted on SSRN a paper, “Voters as Fiduciaries,” which I wrote for
>> the University of Chicago Legal Forum’s symposium: “Does Election Law Serve
>> the Electorate?”:
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612001
>>
>>  Although the paper was written with general principles in mind, and not
>> specifically for the issue in *Evenwel*, I believe the argument made in
>> the paper is relevant to the case.  The argument, which relies on a version
>> of Rawls’s idea of the veil of ignorance, is that voters should be
>> understood, like jurors, as holding an office in the government of
>> society—and should be seen as representing not their own self-interest but
>> the interests of the community as a whole.  When I was invited to
>> participate in the symposium, I asked whether it would be okay to present
>> this argument, as it can been seen as taking issue with the premise of the
>> symposium “Does Election Law Serve the Electorate?”
>> https://legal-forum.uchicago.edu/page/symposium (They kindly agreed that
>> I could.)  We don’t ask whether jury laws serve the interest of the jurors;
>> we ask whether these laws serve the public interest as a whole. My point
>> was that election law likewise should serve the public interest as a whole,
>> not just the interest of voters.  In the paper, I argue that the concept of
>> “voting rights” has developed to focus too narrowly on just the interests
>> of the voters themselves, and not the public as a whole, which voters are
>> supposed to serve in their capacity as the electorate.  I think the claim
>> made in *Evenwel* can be taken a symptomatic of this trend, and it is
>> time for something of a corrective.  i hope my paper can contribute to that
>> effort.
>>
>>  For the next draft of the paper I plan to include some specific
>> discussion of its application to the issue in *Evenwel*, but that hasn’t
>> happened yet.  The current draft just presents the general argument.  Since
>> it is a work-in-progress, comments are very much welcome.
>>
>>  Thanks, Ned
>>
>>
>>
>> <image001.png>
>>
>> * Edward B. Foley*
>>  Director, *Election Law @ Moritz *
>> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in
>> Constitutional Law
>>  Moritz College of Law
>> 55 West 12th Avenue
>>  Columbus, OH 43210
>> 614-292-4288 | foley.33 at osu.edu
>> <https://email.osu.edu/owa/14.3.224.2/scripts/premium/redir.aspx?SURL=sZkHP7NOCM2G294iSwDJCrWcDqYHBXFfxofDiPWhKat7Ok7Rc2DSCG0AYQBpAGwAdABvADoAZgBvAGwAZQB5AC4AMwAzAEAAbwBzAHUALgBlAGQAdQA.&URL=mailto%3afoley.33%40osu.edu>
>>  electionlaw.osu.edu
>> <https://email.osu.edu/owa/14.3.224.2/scripts/premium/redir.aspx?SURL=p27OfQtfP7P1FH2fo4LLU7POvIFpF5z02osbCqL4laN7Ok7Rc2DSCGgAdAB0AHAAOgAvAC8AZQBsAGUAYwB0AGkAbwBuAGwAYQB3AC4AbwBzAHUALgBlAGQAdQAvAA..&URL=http%3a%2f%2felectionlaw.osu.edu%2f>
>>
>>
>>
>>
>
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