By ALEXANDRA MIDDLEWOOD
Insight Kansas
On May 31st the Kansas Supreme Court ruled on a case challenging the state’s 2021 election laws that made it more difficult for Kansas citizens to vote.
In its majority decision, the Court states that there is no right to vote enshrined in the Kansas Bill of Rights, but that voting rights are explicitly given in Articles 4 and 5 of the Constitution.
As I was reading the news on the Court’s decision, I found myself recalling a book I recently read (via audiobook), Tyranny of the Minority, by prominent political scientists Steven Levitsky and Daniel Ziblatt.
In the book, Levitsky and Ziblatt state that the whole point of a democratic constitution is to establish a set of rights that are protected from the fleeting whims of present day policymakers. (They were of course discussing the US Constitution, but the same idea applies to state constitutions.)
They also argue that it is imperative we not forget that even the most well-intentioned constitutions are fallible. Even the most brilliant constitutional framers are not perfect, they cannot foresee what undemocratic challenges their document may face in a distant future.
The protection of voting rights is one such example.
Our state constitution was adopted six short years before voting rights were added to the US Constitution via the Thirteenth, Fourteenth, and Fifteenth Amendments, which allowed Kansas to build upon some of the US Constitution’s shortcomings by including voting rights.
As Levitsky and Ziblatt discuss in more detail, the Founders’ ideas regarding democracy were certainly novel and also quite radical for the time, but their goal was not to build what we would today consider to be a modern democracy.
Many Americans revere the Constitution as a virtually infallible document. But this is not reality. The Constitution was not a well-thought-out master plan for democracy. It was built on improvisation and compromise.
We should take care to view our constitutions for exactly what they are, imperfect governing documents that are meant to evolve with the changing societal and political needs of a democracy and its citizenry.
The Kansas Supreme Court’s decision furthers the need for this approach.
The decision can be interpreted in such a way that the state constitution only protects procedural representation — the right of citizens to vote for government representatives. As the Court’s dissenting opinion points out, there is a question of whether the Constitution protects substantive representation — the representation of citizens’ interests in the policymaking process.
The dissenting justices argued that substantive representation is protected by the state’s constitution, but the majority opinion disregarded this interpretation.
In other words, the Court ruled that citizens do indeed have a right to vote, but their elected representatives are not required to act in accordance with citizens’ wishes and interests.
This is concerning.
A modern democracy is not simply a system of majority rule; it combines majority rule and minority rights.
To once again borrow from Levitsky and Ziblatt: democracies must create mechanisms that protect the democratic process from forces that would undermine it.
Democracy cannot exist without free and fair elections. But not everything can or should be up for grabs by officials who are elected, or appointed, to represent us, especially voting rights.
It is exceedingly concerning that the state’s highest court would exclude substantive representation as an important aspect of protecting voting rights.
The ruling exposes a significant oversight in the interpretation of voting rights within the state constitution.
It is crucial for citizens to remain vigilant and advocate for policies that protect and expand voting rights for all citizens, ensuring that our state democracy reflects its core values of inclusivity and participation.
Alexandra Middlewood, PhD is the Department Chair of Political Science at Wichita State University.