The voter suppression efforts by Republicans in the recent election sparked, thankfully, a well-organized grassroots response, as well as much critical media attention. From civil-rights, faith, and labor groups to media outlets ranging from The New Yorker and The New York Review of Books to Daily Kos and The Miami Herald, the attack on democracy received significant scrutiny.

And so, the story goes, the effort failed. President Obama’s re-election proves that all is well. Indeed, the heavy turnout by minorities in states like Ohio and Florida suggests to some that suppression had the ironic effect of boosting turnout for Obama. If that were the whole story, one might think we had heard the last of this sort of attack on democracy.

Think again. Progressives will have to be even more vigilant, and even more strategic, in the coming years. The conservative motive, means, and opportunity to reduce suffrage are not changing a whit: Broad political participation hurts Republicans, they have an enhanced understanding of what works legally and politically, and the GOP retains significant federal and swing-state political power after the Democrats’ cataclysm in the 2010 midterms. Furthermore, the nature of the Republican coalition—relatively diffuse geographically and relatively powerful socioeconomically—means that it does not risk Democratic retaliation in kind.

Democracy advocates responded heroically to Republicans’ 2012 efforts, but 2012 was just another battle in a war without obvious end. What might we see in 2014, and what should the pro-democracy movement be prepared to do? Democracy advocates need to play defense on all battlefields and push affirmative measures designed both to protect suffrage and to rationalize election administration. And perhaps most importantly, progressives need to make sure that the conservative movement pays a political price for its efforts to suppress the vote.

What’s Coming in 2014

Before looking forward, it’s worth revisiting the legal victories of 2012—victories that were less permanent than they may have seemed in the run-up to the election.

Some coverage of court decisions, like the ones that blocked implementation of the Pennsylvania and Wisconsin voter-ID laws in 2012, obscured the fact that the decisions did not permanently invalidate the laws but rather merely prevented their implementation before November’s elections. For instance, the unnecessary and for many citizens onerous Pennsylvania requirement stands a strong chance of being in place for the contentious 2014 re-election of the Republican governor who signed it into law. The October court decision temporarily blocking the bill seemingly offers a roadmap to voter-ID proponents of how to receive judicial go-ahead. Essentially, if the Republican-run state government convinces a judge that the required voter IDs are sufficiently available to Pennsylvanians, the injunction against the law (based on fighting an entirely unsubstantiated fraud problem) will be lifted. The future of the Wisconsin law is less clear, as current lower state court rulings against it are under appeal, but Republican appetite for voter-ID laws and gerrymander-assisted control of the state government makes it a live risk.

Additionally, in states where voter ID and other “counterfraud” efforts have not yet been taken up, the passage of such laws may be made easier by the wide attention that has been paid to “voter fraud” in recent years. Social science research has underscored the difficulty in correcting misperceptions and the risk that debunking can actually help reinforce the original misperception. That resilience means that viral untruths about ACORN and minority voter fraud, given ample hearings on Fox News and talk radio and seeping into mainstream coverage, are likely to remain virulent for a long time.

Accordingly, the coordinated normalization and expansion of efforts to combat nonexistent voter fraud is continuing apace in 2013. From states that seem like improbable Republican suppression targets (West Virginia) to states where their efforts are likely to fail (New York), conservatives are expanding their pursuit of the voter-fraud bogeyman across the country, including to Alaska, Arkansas, Montana, Missouri, North Carolina, and Wisconsin. The unlikeliness of some of these efforts suggests that pursuing suppression is an easy ideological box for many Republicans to check. Additionally, the inclusion of predominantly white states also helps the national movement argue that proponents simply “don’t see race,” even as they fail to offer an empirical basis for their schemes.

However, the most consequential battles are likely to occur where race and partisan consequences are both in play. Consider Virginia, where Tea Party icon Ken Cuccinelli, the Commonwealth’s attorney general, told a radio host in a November interview that she was “preaching to the choir” when she complained that “[Obama] can’t win a state where photo ID is required. So clearly there’s something going on out there.” It’s not that Virginia failed to get in on the bogeyman suppression effort—the state’s 2012 voter-ID law required a voter provide an ID (not necessarily with a photo) at the polls, or within three days after casting a provisional ballot. The 2012 law proved insufficient to undermine Obama or depress African-American turnout, even if it did lead to some long lines at some polling places. It’s no surprise then that a radicalized Virginia GOP seeks to implement a photo-ID requirement before this year’s gubernatorial contest—arguably the nation’s highest profile 2013 election—between former DNC Chairman Terry McAuliffe and Cuccinelli himself.

Lately, Virginia has received more national attention for several relatively novel and extremely ambitious electoral gambits. In the evenly divided state senate, where each party holds 20 seats, the GOP had brief success exploiting the absence of Democratic state senator Henry L. Marsh, a 79-year-old civil rights veteran. Marsh missed a legislative session to attend President Obama’s second inauguration, and the senate’s Republicans used their temporary majority to pass a highly suspect re-redistricting of Virginia’s state legislative maps. National scorn (and Governor Bob McDonnell’s threat of a veto) thwarted that effort.

But the state GOP isn’t done. In January, the party introduced a bill that would allocate electoral votes by congressional district, rather than by the winner-take-all system of statewide popular vote. The logic behind the move is obvious: Any state that leans Democratic can be diminished in Electoral College importance by ending the winner-take-all norm. Moreover, Republican dominance in many states in the wake of the 2010 elections gives them the room to consider this tactic without short-term worries about Democratic retaliation in kind. Five other states—Wisconsin, Michigan, Pennsylvania, Ohio, and Florida—have considered similar legislation, but the outcry from critics has been so loud that Republicans in those states have abandoned these plans for now. If the proposed system had been in effect in all six states in 2012, according to electoral demographer Alan Abramowitz, Mitt Romney would have become president with 271 electoral votes—even while receiving five million fewer popular votes than Obama.

These assaults are both unlikely to succeed and yet so consequential as to demand a serious response from progressives. And so, even if they fail, they matter. While progressives fight off radical revisions to the Electoral College, will they have the resources available to make sure that urban precincts have enough voting machines, or that voting places are located in places where those without cars can still access them with ease?

Will the Law Be on Democracy’s Side?

Eric Holder’s Justice Department blocked voter-ID laws in Florida, Texas, and South Carolina under the embattled Section 5 of the Voting Rights Act. Section 5, which enables heightened Justice Department scrutiny of states with strong histories of discrimination, may be held unconstitutional by the Supreme Court’s dominant conservative bloc this spring in Shelby County v. Holder. As Jeffrey Toobin noted in The New Yorker, “The Roberts Court, and especially the Chief Justice, has shown a marked animosity toward the Voting Rights Act.” It seems likely that this bulwark against further entrenchment of Southern white political power will be eliminated before the midterm elections. The demise of Section 5 would not only revivify dreadful laws, but encourage further voter-suppression efforts in increasingly competitive states like North Carolina and Virginia.

But even if the somewhat unlikely legal winning streak of democracy proponents in 2012 were to continue, it’s also the case that conservatives now have a much clearer sense of what impediments to voting are likely to survive judicial scrutiny than they did in 2011, when the assault began. For instance, Ohio’s Secretary of State Jon Husted tried and largely failed to limit in-person early voting—which is widely believed to benefit Democrats—because his effort made an exception for military voters. A future effort may sacrifice the troops for partisan goals.

But the savviest conservative strategy would be to resist moves that directly bump up against popular and legal support for the right to vote and to further exploit judicial reluctance to investigate motive. The Supreme Court under Warren Burger—that is, a Court far less conservative than today’s—ruled in cases from San Antonio v. Rodriguez to Washington v. Davis that laws that ended up being discriminatory in effect but that were not written with that intent were constitutional. Even Justice John Paul Stevens made such a ruling. In 2008’s Crawford v. Marion County Election Board, Stevens’s decision placed the burden to show harm on affected citizens, rather than on the state to demonstrate that voter ID fulfills a need. So there is ample precedent for Court decisions that credulously accept weak, proffered motives of states engaging in behavior that systemically harms people of color more than whites.

Those cases not only undermine the pushback against voter-ID laws, but more broadly empower politicians to aid themselves by making superficially neutral decisions like allocating insufficient funds for early voting or voting machines in poorer areas. It is clear that vastly longer lines for urban populations have not in and of themselves prompted legal scrutiny, which affords Republicans significant leeway for actions—or inaction—that are, ostensibly, racially and politically neutral. Under the nominally neutral principle of “local self-governance,” affluent GOP-leaning municipalities can more readily invest in adequate electoral infrastructure, from machines to voter education to poll worker training.

Even potentially legitimate reforms, like electronic poll book check-in, require a significant investment in a time of widespread municipal government austerity. It is all too easy, especially in austere times, for state and local governments to offer neutral-sounding justifications for failing to provide adequate resources to administer the vote. Expect, then, a series of moves across the country to promote electoral “economy” that are more subtle than the voter-ID push, but no less invidious to election administration.

The failure of courts to undertake searching scrutiny of allegedly neutral or even acknowledged partisan behavior (like partisan gerrymandering) provides voter suppression advocates a roadmap to judicial success. That 2011 witnessed overreach by those forces in the form of poorly crafted laws is not something we can expect again. And with institutions like the American Legislative Exchange Council and the Heritage Foundation, the right has the means to promulgate model bills far and wide and tap into a state-by-state infrastructure.

What Is to Be Done?

The 2012 election year saw a broad, heroic effort by a wide range of progressive and voting-rights organizations to protect democracy. But the effort wasn’t perfect. For example, an Ohio State University researcher worked with the Orlando Sentinel to show that “at least 201,000 [Florida] voters likely gave up in frustration” on Election Day due to long lines. Those additional voters, likely to have been heavily Democratic, would have given Obama a larger margin of victory in a state he won by a narrow margin. There is every reason to think other failures of electoral administration hurt Obama, down-ballot Democrats, and democracy.

But it can get even worse than 2012.

And so we need to repeat 2012’s commendable work, as well as explore new efforts. We should see what we can learn from Minnesota, where an extensive voter-education effort led to the surprising defeat of a ballot initiative for a government-issued photo ID requirement. That initiative had 80 percent support in the polls until a coalition of Minnesota progressives swung into action. They countered the measure by educating Minnesotans about the burdens it would pose for older voters and others disproportionately affected—all for a solution in search of a problem.

Promising initiatives to expand and ease voter registration, as in California, should be pursued across the country, even where initial victory seems unlikely. [See “Make It Easy,”] The United States is one of only five democracies that puts the onus of registration entirely on voters rather than the government, according to a 2009 Brennan Center study.

And if progressives are in the spirit of promoting democracy, they might well consider expansions of democracy such as statehood for the District of Columbia. If the GOP can shamelessly manipulate the Electoral College to undermine the will of the people, then it hardly seems overly partisan to give the people of D.C. real representation in Congress. Perhaps most importantly, progressives must learn a vital messaging lesson from 2012. Central to the reformers’s success was the vigorous communications campaign that associated the Republican Party with voter suppression. That message motivated affected communities to fight back by voting. We’ll need to maintain that message so long as Republicans see electoral advantage in suppression.

But it won’t be easy to make that message resonate in 2014. The nation’s first African-American President will not be on the ballot. And minority turnout tends to fall precipitously in midterms. The drop-off in political interest in a midterm makes it harder to stoke the broad-based outrage required to generate political payback against suppressors.

But it is imperative that there be costs associated with voter suppression for the GOP. Republicans retain significant political and judicial levers over the nation’s voting system. So long as figures like Chief Justice Roberts, Ohio’s Secretary of State Jon Husted, and Pennsylvania House Majority Leader Mike Turzai (who infamously admitted that the state’s voter-ID law would help Mitt Romney) remain valued members of the conservative movement rather than discredited opponents of democracy, our election process remains vulnerable.

But over time political parties tend to bend toward survival. The harder Democrats work against voter-suppression efforts, the more faith groups and others with nonpartisan voices will speak out to shame the suppressors, the more the media will step up and press Republicans to justify their efforts, and the greater will be the electoral downside to impeding the vote. In the end, a political party with motive, means, and opportunity to shape the electorate to their liking is a dangerous thing.

As was vividly demonstrated in the 2012 election, immigrant communities are increasingly a major political and civic force. A record 10 percent of the electorate in 2012 was Latino, up a percentage point from 2008, and the Asian-American share of the electorate rose to 3 percent, still small but historic. Both groups overwhelmingly voted for President Obama, in even larger proportions than they did in 2008, proving themselves to be potent voting blocs.

They are poised to become even more influential in the near future. The Pew Hispanic Center reports that Hispanics will account for 40 percent of the growth in the electorate over the next two decades. By 2030, 40 million Hispanics will be eligible voters, up from 23.7 million today. If Hispanics’ voter participation and naturalization rates increase to the levels of other groups, the number of Hispanic votes cast could double within two decades. Similarly, the Asian share of the electorate is estimated to more than double by 2040.

Nonetheless, even as the trends show growth, voting by naturalized citizens overall (as opposed to voters from immigrant backgrounds generally) still lags. While we do not have exact numbers for the 2012 election, the data from recent years are telling. In 2008, turnout among the native-born voting-age population was 64.4 percent and only 54 percent among naturalized voting-age Americans. The disparity in turnout between native and naturalized Americans has been persistent; in 2006, naturalized citizens voted at a rate 12 percentage points lower than their native counterparts—49 percent versus 37 percent—and in 2004, there was an 11 point gap.

Further, although voting is extremely important, it is not the only measure of political and civic participation. Studies indicate a gap in other forms of civic engagement as well, including volunteering for an organization, contacting a government official, signing a petition, and working for or donating to a political campaign.

So what can be done?

Voter Registration and Voting

Historically the parties have not seen it in their interest to invest in the naturalized-citizen population because it does not fit within their “win now” mentality. Parties and candidates have focused their energies on people who are already registered and likely to vote, a smaller and easier-to-target slice of the population—and one that has usually not included immigrants. Party and candidate outreach to Latinos has been growing as their population has grown, but it remains limited for the most part, oftentimes amounting to generic Spanish- language ads. Outreach to other communities, including the Asian population, has been even more wanting.

However, the Obama campaign broke from that history, beginning in 2008 and in a more significant way in 2012. Given demographers’ prediction of the exponential growth in the Latino and Asian populations, it’s easy to see how the Democrats’ efforts in 2012 are only the beginning of a shift toward mobilizing these groups, especially given their growing propensity to vote Democratic. Both ethnic groups are now realizing how critically important they can be in shifting election outcomes when operating more or less as a bloc.

Just after his inauguration in 2009, the Obama Administration reached out to Latinos directly through Spanish-language media, including media that had never before had access to the White House. Then, in 2011, the Obama campaign launched a ground game—door-to-door efforts, information sessions, tables at community events—to register Latinos, especially youth. This was exciting to see: a political campaign seeking to register new voters, adding more people to the electorate, rather than just relying on turning out return customers.

In heavily Asian areas, there was greater party turnout than ever before. According to a report from a coalition of Asian-American organizations, “Unlike previous election cycles, where the Asian American vote was viewed as marginal to presidential campaigns, 2012 saw attention and some strategic efforts by the parties to focus on Asian American voters in Nevada, Virginia, Pennsylvania, and Ohio.”

But it was still not nearly sufficient. Even though there were improvements in 2012, the report notes:

One of the key stories about Asian American voters for 2012 was the lack of investment in outreach to this ever-growing electorate. Pre-election surveys found that Asian Americans had minimal contact by candidates, parties, or other groups and that about 2 in 3 Asian American likely voters were not contacted about the upcoming election. Considering that almost a third of the community was still undecided a month prior to Election Day, parties and other organizations missed an important opportunity to educate Asian American voters and potentially build future bases of support.

Candidates also have a role to play. When it comes to the naturalized-citizen vote, candidates—and what they believe, do, and say—matter. If the community doesn’t like the candidates or their positions, or feel alienated by the candidate’s lack of attention to the community and its interests, even strong mobilization efforts will make only a marginal difference. Like any other constituency, immigrant voters need a reason to turn out to vote beyond just a sense of civic duty. A few ads in Spanish won’t suffice. As much as with other groups, candidates must speak to issues in ways that attract immigrant citizens. And as with other groups, candidates must want the votes of these Americans and make that clear.

Government officials also must do their part. In some areas of the country, election officials take a proactive approach to registering new Americans. In most parts of the country, they do not. This needs to change, including in places where minority-language assistance is not required under the law. At a minimum, it is neither expensive nor labor intensive to make voter-registration forms in alternative languages widely available, and to provide voter assistance in those languages as well through a hotline. The Election Assistance Commission, the federal agency that provides guidance on election practices in the United States, has commendably provided voting materials and registration forms in several languages and posted them on its website. Some jurisdictions—Minnesota and Cook County, Illinois come to mind—do an excellent job of providing such materials now, but other state and local government officials can easily make better use of this service.

Moreover, the U.S. Citizenship and Immigration Service, which is responsible for naturalization ceremonies, has recently issued formal guidance requiring voter registration at all naturalization ceremonies throughout the country by either election officials, nonprofit organizations, or, if necessary, agency officials themselves. This guidance must be fully implemented and monitored for compliance. By simply registering new citizens, we could see hundreds of thousands of new voters every year.

Recent research tells us that another way to increase immigrant turnout is to have more immigrant candidates. Matt Barreto, a political scientist at the University of Washington, has written extensively about the mobilizing impact a “co-ethnic” candidate can have on immigrant communities. In a study of five mayoral races across the country, Barreto found that having a Latino candidate led to significantly higher turnout for that candidate regardless of party or country of origin. And there are strong indications this is not just a phenomenon limited to Latino candidates, as demonstrated by former Minnesota state senator Mee Moua’s experience turning out the Hmong-American community in St. Paul and U.S. Representative Judy Chu’s ability to turn out Asian-American voters in California. These are encouraging trends. According to a report by the New American Leaders Project (NALP), there were 80 congressional candidates from immigrant communities in 2012: 55 Latinos, 17 Asian Americans, six Arab Americans, and two Caribbean Americans. Forty-seven won. Tulsi Gabbard is the first American Samoan in Congress, Mazie Hirono is the first Asian-American woman in the U.S. Senate, and now there are a dozen Asian Americans in Congress.

If candidates with immigrant backgrounds have the ability to inspire their communities to get more involved, we need to cultivate and support more immigrants to run for office. As I discuss below, community organizations and labor unions can serve as “incubators” for immigrant activists, teaching them leadership and organizing skills. One of the most encouraging projects in this regard is NALP. Among other activities, the project recruits promising leaders from immigrant communities and invites them to participate in a two-day training program called “Ready to Lead,” which emphasizes the immigrant experience as a campaign asset. After the session, participants are coached by webinar to prepare for advanced campaign skills training. These types of innovations need to be supported to grow and reach all corners of the country.

Bolstering Civic Engagement

Engaging immigrants in civic activity beyond voting is also critical to the health of our democracy. There are many ways to make one’s voice heard.

Community organizations, including social-service and advocacy groups, are the primary mobilizers of immigrant communities toward all forms of political engagement. As scholar Janelle Wong has written, community-based mobilization creates the foundation for mass mobilization by teaching immigrants communication and organizing skills, and giving them the confidence to participate. Such organizations are particularly effective at reaching people who are seen as the most difficult to engage: people with few resources, those who may not speak English as a first language, and even noncitizens. As another scholar, Els de Graauw, has written, immigrant organizations serve as “civic incubators” and provide participants with opportunities to develop leadership potential and skills such as budgeting, personnel practices, and bargaining.

Many organizations didn’t claim victory on Election Day and leave it at that, but pivoted toward issue-based advocacy. In December, a coalition of Latino advocacy groups announced a civic engagement campaign to pass comprehensive immigration reform. This is a hopeful sign that the normal pattern can be reversed: Immigrants can be mobilized first to vote, and then encouraged to engage in other forms of political and civic activity.

Scholars of civic participation have increasingly recognized the critical role unions play in mobilizing immigrant engagement. As immigrants have become vital to union membership, it’s been found that union participation contributes to the political incorporation of Latino immigrants. One recent study discovered that parents who were in unions used the civic engagement and advocacy skills learned through union activity to organize for improvements at their children’s schools. Examining immigrants in one particular union, the researchers found that it served as a “‘school for democracy’ by granting parent members with the confidence, skills, and experience useful for political engagement in their children’s schools.” De Graauw has called unions essential to immigrant civic engagement, and has explored numerous examples of unions taking immigrant members from workplace mobilization to other forms of civic participation across the country.

Finally, civic and language education is essential to engaging immigrants. Many studies show that length of time in the country is key to whether a naturalized citizen will participate politically. These studies suggest that as an immigrant becomes more familiar with American politics and culture and feels a greater sense of belonging to this country, she becomes more inclined to participate. But this shouldn’t take the 20 years academics find it currently takes to accomplish. Increased resources and interest in providing civic education, civic skill-building, and systems through which immigrants learn about and participate in our democracy even prior to attaining citizenship would go a long way in reducing the time it takes a naturalized citizen to become inclined to register to vote.

Providing resources for immigrants to learn English is a major part of this. We know that language has a direct impact on voter participation, and on civic, economic, and social integration in general. Recent legislative efforts at immigration reform will demand even greater levels of proficiency in English than ever before. Yet the government provides only a small fraction of the resources necessary to allow new Americans and other immigrants to learn English. This includes the public schools. If we want to close the participation gap between native-born and naturalized citizens in our system of governance, this must change. As the Migration Policy Institute has documented at length, the gap between those who need English-language instruction and the number of classes available is enormous. The institute has proposed concrete ways to pay for such instruction and has demonstrated what a solid return on investment such spending would provide.

Unquestionably, immigrants will compose a greater share of the population in the years to come. If the United States is to be a truly inclusive democracy we must ensure they have every opportunity to participate in the policy-making process by voting and engaging in the entirety of civic and communal activities. Immigrants themselves are clearly taking the lead, and with improvements to our political structure and civic infrastructure they will flourish and contribute to the well-being of all Americans.

In order to become a naturalized citizen of the United States, until recently you had to answer this question: “What is the most important right granted to U.S. citizens?” The correct answer, according to the United States government, was, “The right to vote.” But that “right” has always been on shaky ground. Just as the Constitution once countenanced slavery, it also allowed voting to be restricted to property-holding white men. The Thirteenth Amendment expunged the stain of slavery from our basic law, but the Constitution has never fulfilled the democratic promise we associate with it. Put simply—and this is surprising to many people—there is no constitutional guarantee of the right to vote. Qualifications to vote in House and Senate elections are decided by each state, and the Supreme Court affirmed in Bush v. Gore that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

Amendments to the Constitution have required “equal protection,” eliminated the poll tax, and made it unconstitutional to restrict voting based on race, sex, and age for those over 18. For years the Supreme Court relied on these amendments to expand the franchise, and the broadening of voting rights, which was associated with the civil-rights movement, was widely accepted as a marker of progress toward a just society until about 2000. More recently, in an environment of increasingly rigid partisan loyalties, controlling who votes offers more leverage than persuading voters to change their minds, and thus access to the ballot itself has become an arena of intense political conflict. These conflicts constitute what the election scholar Richard Hasen calls “the voting wars.” Most of these wars end up in the courts, where the rules of engagement—defined by our Constitution—do not sufficiently protect voters’ rights to exercise their franchise. In the absence of an explicit right to vote, the Court has found no issue with a variety of regulations that unnecessarily interfere with voting.

The result has been a steady descent into chaos and confusion that threatens the integrity of our institutions at home and our credibility in promoting democratic governance abroad. People wait hours in line to cast a ballot; voting hours and locations change at the last minute; there’s uncertainty about who can vote, whether voters need to show identification, and what counts as identification. Armies of lawyers fight over these rules before elections, and when the results are close, they fight again over which votes should and shouldn’t be counted. Hasen reported recently that cases challenging election rules have more than doubled in the decade since Bush v. Gore.

Finally enshrining the right to vote in the Constitution would help resolve most of these cases in favor of voters. It would not make every limitation unconstitutional—it is the essential nature of voting, for instance, that there be a date certain by which votes must be cast in order to be counted—but it would ensure that these limitations are judged under the standard known as “strict scrutiny,” meaning that governments would have to show that the restrictions were carefully designed to address a compelling interest of the state. We would come to find that many familiar aspects of our current voting system would not meet this standard and access to the ballot could be extended to millions who are now actively or effectively disenfranchised.

The Varieties of Disenfranchisement

One of the most suspect voting restrictions is the requirement that voters register up to one month prior to Election Day in order to be allowed to cast a ballot. In 2008, around six million eligible voters did not vote because of difficulties associated with registration requirements, according to the Census Bureau. From their origins in the mid-nineteenth century, registration requirements have made it more difficult for poor, less-educated, and transient people to vote, but the Court has accepted the claims by states that registration in advance is needed for orderly elections and to prove that a voter is a real resident. Eight states allow voters to register on Election Day, two more are implementing same-day registration, and one (North Dakota) doesn’t require voter registration at all, proving that prior registration is simply unnecessary to meet either of these goals.

Like voter-registration requirements, more recent laws requiring that voters show photo identification to vote have the effect of preventing large numbers of people—particularly poor people and minorities—from voting. There’s ample evidence that that result, with consequent political effects, is exactly their purpose. Note the claim by Pennsylvania House Majority Leader Mike Turzai that voter ID “is gonna allow Governor Romney to win the state of Pennsylvania.” Since 2008, when the Supreme Court approved Indiana’s voter-ID law based on the state’s interest in protecting the integrity of elections, 14 states have enacted and strengthened voter-ID laws, and only in states where there is a guaranteed right to vote in the state constitution were courts able to weigh the burden on voters against the claims of voter fraud. (The Pennsylvania law was blocked, for 2012, by a state court relying on the state constitution; Republican nominee Mitt Romney did not win Pennsylvania.) The Supreme Court was right to recognize the state’s interest in election integrity, but without evidence of in-person voter fraud, which is extremely rare, it should have given greater consideration to the burden on individual voters. A constitutional affirmation of the right to vote would have required the Court to weigh these interests differently.

An affirmative right to vote could also test our anachronistic practice of voting on Tuesdays. In an agrarian society, having elections on Tuesdays allowed a day of travel to the county seat to vote without interfering with Sunday worship or Wednesday market days. Today, it’s just a burden for anyone who doesn’t have the luxury of rearranging her work schedule. Thirty-two states now allow in-person early voting without an excuse, but the remainder do not, and some of 2012’s fiercest battles centered around efforts to roll back early voting where it existed. The eight-hour lines that some voters experienced this year should be recognized as a breach of a state’s constitutional obligations to an individual’s right to vote.

Importantly, a Right to Vote Amendment would change the constitutional calculus regarding felon disenfranchisement laws, which currently limit the rights of nearly six million Americans, including four million who are no longer incarcerated. As with other voting limitations, these laws disproportionately affect African Americans; in several states, more than one in five African Americans is prohibited from voting. NYU Law Professor Bryan Stevenson predicts that in ten years, the level of disenfranchisement in Alabama will be higher than before passage of the Voting Rights Act. The Supreme Court has refused to apply strict scrutiny to felon disenfranchisement except where discriminatory intent can be proven. While a state might succeed in defending a policy to keep currently incarcerated prisoners from voting, the continued disenfranchisement of the four million people who are otherwise integrated into the fabric of society would be much harder to defend. The fight to restore these voting rights is often marginalized; grounding it in a broader movement can help it advance. Similarly, the uncategorical disenfranchisement of millions of Americans who live in the District of Columbia, Puerto Rico, and other territories finds little organized objection outside of the affected communities.

Beyond the Amendment, a Movement

While there is a vibrant “democracy movement” of Americans devoted to improving the functioning of our democracy and our policy-making apparatus, it is pulled in dozens of different directions. There are organizations and individuals devoted to fighting to change registration requirements, eliminate voter-ID laws, expand early voting, as well as dozens of other useful, democracy-enhancing reforms. To most of these advocates, the absence of an affirmative right to vote is no secret, but few have openly embraced the call to amend the Constitution. Some believe that acknowledging this constitutional deficiency is confusing and weakens their reliance on an implicit “right to vote” in legal or public advocacy. Many others think that the cause is simply not worth the time and money required to mount the fight. We disagree.

The Twenty-sixth Amendment, extending the vote to 18 year olds, was ratified four months after it first passed the Senate. Despite the similarly wholesome appeal of a broader Right to Vote Amendment, we have no illusions regarding its rapid ratification under current political circumstances. With 26 state legislatures, including all but one in the South, under complete control by conservatives after the 2012 election, reaching the 38 states necessary would be almost impossible. But even if the odds of passage are daunting, a push to enshrine the right to vote in the Constitution would still have tremendous movement-building value.

A good example of an amendment campaign that built a movement is the Equal Rights Amendment (ERA), which fell short of being ratified in the late 1970s, but gave the emerging women’s movement a clear goal, provided it with a guiding mission, and prompted a significant national conversation about equality and the rights of all people. Through state and federal laws, the creation of state commissions on the status of women, and, above all, cultural changes in the family, schools, and corporate America, women have achieved many of the original goals of the ERA.

A Right to Vote Amendment would not supersede the many causes of the democracy movement, but it would give them a similar overarching mission, with the principle of full participation and universal suffrage at the forefront. Unlike other proposed amendments, such as the various versions of an amendment to reverse Citizens United or declare that corporations aren’t people, which provide no other opportunities for success short of final ratification, the Right to Vote Amendment would be a “Yes We Can” amendment like the ERA. Nothing would have to wait for the amendment to be ratified; all the steps toward a real universal right to vote could be pursued and enacted through legislation alongside the fight for the amendment.

A Basic Covenant

The language of such an amendment could take several forms, such as one proposed by Heather Gerken of Yale Law School: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State.” This same text could be narrowed to exclude primaries and apply only to general elections, or broadened to cover state elections.

One would expect the reforms needed to fix the problems with registration, voter ID, and early voting to be non-controversial were they not so entangled with partisan battles for political power. By embedding those fights into an argument for a right that most Americans believe is a cornerstone of our national identity, the prospects for legislative success on these issues are only strengthened.

Moreover, by showing Americans how far we fall short of a basic right that most of us assume is in the Constitution, it will help clarify and expand the coalition for other reforms that are equally important but more politically challenging. By putting participation and political equality at the heart of the Constitution, a Right to Vote Amendment would also extend its benefits beyond issues of suffrage to the influence of money in politics. Under the Supreme Court’s current jurisprudence, the ability of individuals and corporations to spend unlimited sums to affect elections cannot be constrained. This theory has helped unleash the greatest threat of corporate capture of our democracy since the first Progressive movement rose to face similar challenges a century ago. The answer to this threat is a robust system of citizen funding to enhance the value of small contributions from ordinary voters. [See also “Mismatching Funds,” Issue #4.] The arguments for this policy resonate clearly with the spirit of a Right to Vote Amendment.

In the era of the voting wars, the right to vote is itself a subject of continued partisan, regional, and racial conflict. It’s time to resolve the fights, and fulfill the promise of American democracy, by joining together in an effort to make the right to vote, at last, a part of our basic covenant as a nation.

The same sort of shift is happening now for the left in America’s long-running culture war. From the 1980s until the birth of the Tea Party, most of the action was in the Social Theater, in which the religious right and the secular left waged an existential struggle for the soul of American society. Issues related to sexuality, drugs, religion, family life, and patriotism were particularly vexing, and many people over 40 can recall the names of battlefields such as Mapplethorpe, needle exchange, 2 Live Crew, and the flag-burning amendment. But the left won a smashing victory in the 2012 elections, including the first victories at the ballot box for gay marriage. These triumphs, combined with polling data showing the tolerant attitudes of younger voters, give the left confidence that it will ultimately prevail on most issues in the Social Theater. The power base of the religious right is older, white, rural Protestants, a group that immigration, demography, and urban renewal have consigned to play an ever-shrinking role in American presidential elections.

Both sides are now likely to shift several divisions and carrier task forces over to the Economic Theater of the culture war, where the single most important battle of 2012 was fought—the battle over marginal tax rates for the rich. The left won that battle on January 1, when the House of Representatives voted to raise tax rates for the rich, but victory in the overall war is far less certain. Economic issues such as taxation are moral issues—no less so than social issues like gay marriage—and neither side has full control of the key moral foundations that underlie economic morality: fairness and liberty. Both sides are vulnerable to being outflanked and outgunned. Both sides could use a detailed map of the moral ground on which economic battles are waged.

In this essay I offer such a map, showing the territory currently controlled by Democrats (equality and positive liberty) and by Republicans (proportionality and negative liberty). What remains up for grabs is “procedural fairness”: the integrity of the process by which we decide who gets what. Both parties are open to charges that they don’t want everyone to “play by the same rules.” Both parties have ways of answering this charge and persuading the broader public that its concept of fairness is the better one. The party that wins that point will have the upper hand in this new culture war.

The Six Foundations of Morality

My research in social psychology has focused on morality and how it varies across cultures. I conducted my early research in India and Brazil in the 1990s, trying to understand why so many cultures and religions moralize food and sexual practices—think of kosher laws, or the widespread condemnation of homosexuality—even when such behaviors don’t seem to harm anyone. Why do many cultures treat rules about food and sex as seriously as rules about murder and theft?

I conducted interviews to find out how people feel about harmless taboo violations—for example, a family that eats its pet dog after the dog was killed by a car, or a woman who cuts up her nation’s flag to make rags to clean her toilet. In all cases the actions are performed in private and nobody is harmed; yet the actions feel wrong to many people—they found them disgusting or disrespectful. In my interviews, only one group of research subjects—college students in the United States—fully embraced the principle of harmlessness and said that people have a right to do whatever they want as long as they don’t hurt anyone else. People in Brazil and India, in contrast, had a broader moral domain—they were willing to condemn even actions that they admitted were harmless. Disgust and disrespect were sufficient grounds for moral condemnation.

I had predicted those cross-national differences. What I hadn’t predicted was that differences across social classes within each nation would be larger than differences across nations. In other words, college students at the University of Pennsylvania were more similar to college students in Recife, Brazil, than they were to the working-class adults I interviewed in West Philadelphia, a few blocks from campus. There’s something about the process of becoming comparatively well-off and educated that seems to shrink the moral domain down to its bare minimum—I won’t hurt you, you don’t hurt me, and beyond that, to each her own.

To make sense of these cultural variations, I created a theory in 2003 called “moral foundations theory.” My goal was to specify the “taste buds” of the moral sense. Every human being has the same five taste receptors—tiny structures on the tongue specialized for detecting five classes of molecules, which we experience as sweet, sour, salty, bitter, and savory. Yet our food preferences aren’t dictated just by our tongues. Rather, they depend heavily on our cultures, each of which has constructed its own cuisine.

In the same way, I aimed to identify the innate psychological systems that were given to us all by evolution, and that each culture uses to construct its unique moral systems. For example, you’ll never find a human culture that makes no use of reciprocity and has no conception of fairness and cheating. Fairness is a really good candidate for being a moral taste bud, yet cultures vary greatly in how they implement fairness. Consider this quote from the Code of Hammurabi, the ancient Babylonian legal text: “If a builder builds a house and does not construct it properly, and the building collapses and kills the owner, the builder shall be put to death. If it kills the owner’s son, the builder’s son shall be put to death.” You can see the psychology of fairness here, but this is not quite the way we’d implement it.

Drawing on the work of many anthropologists (particularly Richard Shweder at the University of Chicago) and many evolutionary biologists and psychologists, my colleagues and I came to the conclusion that there are six best candidates for being the taste buds of the moral mind: Care/Harm, Fairness/Cheating, Liberty/Oppression, Loyalty/Betrayal, Authority/Subversion, and Sanctity/Degradation.

Moral foundations theory helped to explain the differing responses to those harmless taboo violations (the dog-eating and flag-shredding). Those stories always violated the Loyalty, Authority, or Sanctity foundations in ways that were harmless. My educated American subjects (who, in retrospect, I realize were mostly liberal) generally rejected those three foundations and had a moral “cuisine” built entirely on the first three foundations; so if an action doesn’t harm anyone (Care/Harm), cheat anyone (Fairness/Cheating), or violate anyone’s freedom (Liberty/Oppression), then you can’t condemn someone for doing it. But in more traditional societies, the moral domain is broader. Moral “cuisines” are typically based on all six foundations (though often with much less reliance on Liberty), and it is perfectly sensible to condemn people for homosexual behavior among consenting adults, or other behaviors that challenge traditions or question authority.

The Older Culture War

After the 2004 presidential election, in which gay marriage, abortion, patriotism, and other “social issues” had played a large role, I began to apply moral foundations theory to the American culture war. I wanted to find out if left and right in the United States were in some sense different nations, each with its own set of beliefs, facts, and values. Was it correct to say that liberal moral cuisine was based primarily on the first three foundations (which protect individuals), whereas social conservatives were offering a moral cuisine that drew on all six foundations, including Loyalty, Authority, and Sanctity (which are more oriented to protecting a tight, binding moral order)?

To find out, my colleagues and I created a website at www.YourMorals.org, where we posted more than 60 psychological surveys and experiments. More than 300,000 people have completed one or more of those surveys. When people register at the site, they indicate their political orientation on a seven-point scale running from “very liberal/left” to “very conservative/right,” with additional options for “don’t know” and “libertarian.” The results on our most basic survey, the “Moral Foundations Questionnaire,” support our basic prediction that liberals rely primarily on the first three foundations, whereas social conservatives use all six. People who identify as libertarian, or who say that they are liberal on social issues but conservative on economic issues, tend to look more like liberals—they have little use for the Loyalty, Authority, and Sanctity foundations. Where these “economic conservatives” differ from liberals is in having much lower scores on the Care/Harm foundation—they dislike the “bleeding heart” attitude often seen on the left.

Everyone values the first three foundations, although liberals value the Care foundation more strongly. For example, they show the strongest agreement with assertions such as “Compassion for those who are suffering is the most crucial virtue.” But this difference on Care is small compared to the enormous difference on items such as these: “People should be loyal to their family members, even when they have done something wrong.” “Respect for authority is something all children need to learn.” “People should not do things that are disgusting, even if no one is harmed.” Those three items come from the scales we use to measure the Loyalty, Authority, and Sanctity foundations, respectively. You can see how social conservatives, whose morality rests in large part on those foundations, don’t see eye to eye with liberals. Basically, liberals want to loosen things up, especially in ways that they believe will make more room for women, African Americans, gay people, and other oppressed groups to escape from traditional strictures, express themselves, and succeed. Conservatives want to tighten things up, especially in ways that they perceive will help parents to raise more respectful and self-controlled kids, and will assist the police and other authorities in maintaining order. You can see how those disagreements led to battle after battle on issues related to sexuality, drug use, religion, family life, and patriotism. You can see why liberals sometimes say that conservatives are racist, sexist, and otherwise intolerant. You can see why social conservatives sometimes say that liberals are libertine anarchists.

But then along came the Tea Party. It was an alliance among social conservatives and libertarians—two groups that are very different in terms of both morals and personality traits. They made common cause on economic issues—especially opposition to big government, the welfare state, and the high taxes required by such a state—and downplayed the social issues that would otherwise divide them. After 2009, the culture war therefore shifted away from the Social Theater, in which the battle is over the legitimacy of the Loyalty, Authority, and Sanctity foundations, on which libertarians score very low—as do liberals. The battle has moved to the Economic Theater, in which the two sides agree that Fairness and Liberty are important, but disagree about what those words mean.

Is the shift temporary? I doubt it. If social conservatives separate from libertarians and the Republican Party tries to retake ground lost in the Social Theater, they’ll win only the occasional Pyrrhic victory, alienating women (as with the “vaginal probe” controversy of 2012) and young people. The millennial generation has been raised on a diet of tolerance, diversity, and a reluctance to make moral judgments. They do not remember World War II or the Cold War, which would have instilled in them a stronger sense of the need for national unity to face down external enemies. Instead, technology links them increasingly to young people all around the world, making it harder to inflame them with pleas revolving around Loyalty. They have little fondness for hierarchy and tradition, so it will be hard to woo them with appeals based on the Authority foundation. And they have no visceral sense of disgust at homosexuality, and have been socialized to be as inclusive as possible, so arguments about sexuality derived from Sanctity will fail to move them.

But the millennials also realize they are likely to get a raw deal when it comes to taxes and entitlements. They are well aware that previous generations borrowed heavily to subsidize their own retirement years, and left the generations to come holding the bag. They are likely to listen carefully to arguments about fairness, taxing, and spending from both parties. So let’s talk about the psychology of fairness.

Three Kinds of Fairness

Arguments about fairness are interminable in part because there are three different kinds, making it easy for left and right to talk past each other. First, we must distinguish between procedural fairness and distributive fairness.

Procedural fairness involves whether impartial and open procedures are used when decisions affecting the well being of others are made. Is the decision-maker impartial? Is the game rigged? Procedural fairness is crucial for the health of a democracy because when people have faith in the system, they are much more willing to accept outcomes that are disadvantageous to themselves. And when they think the system is corrupt, they are much more prone to join populist rebellions. Occupy Wall Street and many Tea Partiers (including Sarah Palin) agree that America suffers from crony capitalism—a direct violation of procedural fairness.

Distributive fairness, in contrast, refers to how we distribute stuff—benefits as well as burdens. Is everyone getting his fair share and doing her fair share? But there are two subtypes of distributive fairness—equality (everyone gets the same) and proportionality (all receive rewards in proportion to their inputs; this is sometimes called equity). This simple distinction can help us understand many of today’s most vexing controversies. Everyone endorses proportionality, but the left simultaneously endorses equality, even when it is in tension with proportionality. The right has no interest in equality for its own sake. Conservatives prefer proportionality, even when it leads to massive inequalities of outcome.

We find this clearly in our data at YourMorals.org. For example, consider this item, which pits equality versus proportionality: “All employees in a job category should be paid the same, regardless of productivity.” Among subjects who call themselves “very liberal,” 30 percent agreed. But just 3 percent of our “very conservative” subjects did. Liberals had to think about it, but for conservatives it’s a no-brainer: Imposing equality of outcomes in the absence of equality of inputs is a violation of fairness as proportionality.

This difference appears in left-right conflicts internationally. For example, François Hollande, the Socialist president of France, wants to ban homework. His concern is that children from single-parent homes are less likely to get help with homework from their parents than are children of married parents, who tend to be much better off financially. He is willing to slow down the education of some children to reduce the inequality of outcomes that results from meritocratic institutions such as the French school system. Conservative commentators in the United States discussed the initiative gleefully as an example of what they see as the left’s immoral commitment to achieving equality at all costs, punishing kids who are willing to work hard—even those poor children who want to work hard despite lacking parental help.

We find the contrast again in statements about fairness from President Obama and Mitt Romney. In 2008, responding to a question from “Joe the Plumber” on whether his taxes would increase if he became more successful, candidate Obama said, “It’s not that I want to punish your success.... I think that when you spread the wealth around, it’s good for everybody.” The right seized on that phrase—“spread the wealth”—as evidence that Obama was a socialist who favored using tax law to achieve equality, with complete disregard for fairness as proportionality.

Perhaps burned by the reaction to that encounter, Obama has since shied away from such explicit talk about equality of outcomes. The formulation that he introduced in his 2012 State of the Union address, and has repeated many times since then, is interesting in this regard: “We can restore an economy where everyone gets a fair shot, and everyone does their fair share, and everyone plays by the same set of rules.” The second phrase (“fair share”) is a clear plea for fairness as proportionality, and the third phrase (“same set of rules”) is a clear plea for procedural fairness. But what should we make of that first phrase, “everyone gets a fair shot”? What exactly is a fair shot? Left and right have very different notions, and those competing notions underlie much of the controversy over the proper role of government today.

For conservatives, I believe that “a fair shot” refers to procedural fairness. It means that we all play by the same rules. As long as the law does not favor one group over another, it is not the government’s job to make everybody equally well-endowed at the start of the race. It’s okay if some children start off rich and others start off poor. In fact, there is special honor for the child who starts off poor and succeeds by dint of hard work. And this was precisely the context in which Mitt Romney made his famous “47 percent” remarks in Boca Raton. He began by describing how his father and his wife’s father were raised in homes with little money but a strong work ethic. They achieved the American dream. He then praised the work ethic of Chinese factory workers, willing to work for a pittance to better their lives. He praised Florida Senator Marco Rubio’s parents, who came to America with little money but were never envious of others: “Instead they said that you work hard and go to school, someday we might be able to have enough.” And then, only then, did he get the question about how he was going to “convince everybody you’ve got to take care of yourself,” to which he responded by dismissing the 47 percent who pay no federal income taxes. So for Romney, it’s proportionality all the way. If you work hard, you’ll succeed. If you don’t, you deserve to fail. If you pay into the treasury, then you deserve benefits. If you don’t, you don’t. Equality simply is not a concern.

Democrats, however, have a very different idea about what constitutes a “fair shot.” It’s not just a matter of procedural fairness; it also involves questions of distributive fairness. To see this, we must discuss liberty alongside fairness.

Two Kinds of Liberty

All Americans value liberty. One of the first manifestos for the Tea Party was titled Give Us Liberty (by Dick Armey and Matt Kibbe). Occupy Wall Street renamed Zuccotti Park “Liberty Park.” So as a first pass we might simply say that left and right value liberty equally—they just disagree on the main threat to American liberty. The Tea Partiers say it is an out-of-control federal government; the Occupiers say it is big business and the 1 percent.

But the differences run deeper than that. Liberty comes in two competing flavors: positive and negative. The philosopher Isaiah Berlin coined the terms positive liberty and negative liberty in 1958 as European welfare states were developing new ideas about the relationship between governments and citizens. Negative liberty refers to “the absence of obstacles which block human action.” This is the traditional understanding of liberty: It’s the freedom to be left alone; it’s the freedom from oppression and interference by other people. This is the kind of liberty that, when violated, elicits the psychological state called reactance, which is an angry reaction against perceived pressure or constraint. Reactance makes people do the opposite of what they were pressured to do, even if they were not inclined to act that way beforehand.

Positive liberty, in contrast, refers to having the power and resources to choose one’s path and fulfill one’s potential. Berlin was summarizing a trend in postwar democracies in which some philosophers and activists began to ask: What good is (negative) liberty if you are stuck in a social system that offers you few options? Proponents of positive liberty argue that governments have an obligation to remove barriers and obstacles to full political participation, and to take positive steps to enable previously oppressed groups to succeed.

Perhaps the most eloquent argument for positive liberty was given by Lyndon Johnson in his 1965 commencement speech at Howard University. He began with a celebration of the Civil Rights Act, which granted negative liberty to African Americans: “Freedom is the right to share, share fully and equally, in American society—to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others.”

Johnson then made the transition to positive liberty:

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. And this is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result. [emphasis added]

Johnson’s logic still seems sound with regard to African Americans in the 1960s. But does it apply to African Americans today? Or to Mexican immigrants? Once the left made the pivot from negative to positive liberty, it committed the Democrats to using the power of the federal government to pursue some policies in the name of fairness (as equality) and (positive) liberty that violated many other people’s notions of fairness (as proportionality) and (negative) liberty. These policies were usually deeply unpopular, and they opened up lines of attack that Republicans pursued with great success.

Examples from the 1970s are numerous: Forced busing of public school students to achieve racial integration violated white parents’ sense of negative liberty and triggered strong reactance. Affirmative action in education and hiring violated the idea of procedural fairness. Generous welfare programs violated many people’s notions of proportionality—the government seemed to give out money for nothing, which made it ever easier for men to abandon their children and pass the bill on to the taxpayers. These policies combined to alienate the white working class, driving much of it over to the Republican Party. The title of one book about that era says it all—Jonathan Rieder’s Canarsie: The Jews and Italians of Brooklyn Against Liberalism.

But these conflicts over competing notions of fairness and liberty are not just historical curiosities from a tempestuous time. They are still very much with us. Look at the New Haven firefighters’ case—the controversial 2008 case decided by Justice Sonia Sotomayor before she joined the Supreme Court. A white firefighter named Frank Ricci had gone to great lengths to study for an exam that was necessary for promotion to lieutenant. To overcome his dyslexia, Ricci had paid an acquaintance to read several books into a tape recorder, which Ricci then listened to. Ricci’s hard work paid off, and he qualified for promotion. But because no black firefighters passed the test, the New Haven fire department decided to throw out the results, fearing a lawsuit under federal laws designed to protect racial minorities. Ricci and 17 other firefighters sued. The District Court sided with the city, and Sotomayor was a member of the three-judge panel that heard the case in the Second Circuit Court of Appeals. They too sided with the city and against Ricci. (The Supreme Court later overturned the decision and sided with Ricci.)

If you value fairness as proportionality, the initial ruling was an outrage. Ricci worked extremely hard, he overcame obstacles, and he succeeded. If you value procedural fairness, it looks bad, too: Everyone had a fair shot, everyone played by the same rules, but the rules were changed afterwards because they produced a group-based inequality. (The court had found no evidence that the exam was improper or racially biased.) Is this the vision of positive liberty that the left wants to take into the twenty-first century? If so, then the Democrats will be vulnerable in the Economic Theater of the culture war.

The map above shows the lay of the land. The three kinds of fairness are the lands west of the river; the two kinds of liberty lie to the east. Democrats have undisputed control over the northern provinces of equality and positive liberty, which are related concepts supporting notions of social justice. Republican forces are massed in the south—they control most of proportionality and negative liberty, and a portion of procedural fairness. So what would it take to shift the border? What would it take for each side to capture more territory?

The Coming Battles

For the Republicans, their main weakness is clear: procedural fairness. Especially after Mitt Romney’s campaign, many Americans think of the Republican Party as the party of the plutocracy, trying to use the levers of government to maintain privileges, low taxes, and political access for the super rich. Republicans perennially oppose efforts to reduce the role of money in government and rein in the excesses of Wall Street. Democrats sell plenty of influence too, but at least they make visible efforts to make politics more procedurally fair.

Republicans could also challenge Democrats on the main piece of negative liberty that Democrats own—sexual liberty. If libertarian influence grows over time while Protestant social conservatives weaken, the party could someday drop its opposition to homosexuality and gay marriage, allowing Republicans to claim that they are truly the party of liberty, not just in the boardroom but in the bedroom as well. (The same thing goes for drug use and decriminalization—Republicans currently oppose negative liberty in the rec room.)

Republicans seem to have no interest in positive liberty, but some of their most innovative young thinkers can be seen laying the groundwork for an eventual move into that territory. Ross Douthat and Reihan Salam, for example, have been writing for years about how the Republican Party can become the party that helps the poor and working class achieve upward mobility in part by strengthening two-parent families. The goal is not social justice per se, but it is an attempt to use government to help groups that start off in life with a huge disadvantage—a lower level of family stability.

For Democrats, the map shows areas of opportunity and risk as well. The Democrats often pursue “nanny state” policies that are good for public health, but that strengthen Republican claims on negative liberty—the Affordable Care Act and its individual mandate being the most prominent case in point. Another change for Democrats would be to back away from their habitual preference for government regulation of businesses by applying stricter cost-benefit tests, as Cass Sunstein did as head of the Office of Information and Regulatory Affairs during Obama’s first term. Indeed, the Obama Administration implemented fewer new regulations in its first three years than did the George W. Bush Administration in its first three years. Democrats have historically claimed to stand for the “little guy,” so it is striking that small businesspeople tilt strongly Republican. That could change, particularly if Republicans continue to be seen as the party of big business. If Democrats can keep showing that they are responsive to the needs of the business community, and that they aim for fewer and smarter regulations, they might eventually retake some portion of negative liberty.

Democrats could also gain some ground on proportionality, particularly the negative side of proportionality: punishment for cheaters and slackers. The Democrats earned the label “soft on crime” in the 1970s, because they seemed to disregard proportionality out of compassion for criminals or concerns about racial equality. Bill Clinton made some progress reversing that association, and the plummeting crime rates of the 1990s reduced the pressure. But the Democrats should still be mindful of opportunities to punish cheaters—opportunities they have traditionally passed up. Tort reform, for example, is popular. Many people are outraged by stories about frivolous lawsuits, which insult our sense of proportionality. Whether or not such lawsuits are major drivers of health-care costs, Democrats seem to be the party protecting trial lawyers (who are major donors), while Republicans have long been the party showing moral outrage and calling for changes. The Obama Administration took a step in the right direction in 2011 when it launched a drive to help states overhaul their medical malpractice procedures, including the creation of special health courts. Such courts—opposed by the trial lawyers’ lobby—would have specially trained judges able to resolve malpractice claims quickly, awarding compensation from a set schedule. No more juries handing out extravagant settlements after long trials filled with testimony from dubious experts. Such courts would increase procedural fairness as well as proportional fairness.

Perhaps the biggest challenge Democrats will face in the coming years is to rethink their commitment to race-based affirmative action, and a conception of positive liberty in which African Americans are the focal group, as they were (quite properly) in Lyndon Johnson’s time. The race gap in education and achievement has been shrinking in America for 60 years, whereas the class gap has been rising, particularly since the 1980s. It is now twice as large as the black-white race gap, by some measures. It is therefore increasingly difficult to offer a moral justification for giving hiring and admissions preferences to the children of married African-American lawyers, rather than to the children of white coal miners or single mothers.

Andrew Jackson’s campaign slogan from 1820 seems apt for our time: “Equal opportunity for all, special privileges for none.” If Democrats can manage the pivot from race to class in the coming years, and can make the argument for how and why government programs should be used to create positive liberty for the poor, in ways that violate neither proportionality nor the negative liberty of others, they’ll be able to reclaim Jackson’s slogan. It will be an inspiring banner for them to wave in the new culture war over fairness and liberty.

Correction

This article originally referred to François Hollande as the Prime Minister of France. He is the President. We regret the error.

A generation later, that remains more or less the Democratic office-seeker’s approach to crime: try to talk about something else. On this theory, the voters aren’t buying what the good guys are selling: less punishment and more social services in the name of “crime prevention.” Conservatives, who want to fight crime by hurting people who commit it, have a natural rhetorical advantage over liberals, whose tendency is to fight crime by helping those who have committed it or might do so. No campaign speech, on either side, is likely to mention the prospect that more strategic use of law enforcement might reduce both crime and punishment at once.

Many progressives not seeking office cling to the views that the politicians have had to abandon: that crime is mostly an imaginary problem, vastly overstated by conservatives to put racial fears in socially acceptable code; that the root of criminal activity is inequality and injustice, and that only basic social reform can control it; that the criminal-justice system functions primarily as an engine of racial and social-class oppression, as evidenced by the huge disproportion between the racial makeup of the prison population and the racial makeup of the country as a whole; and that enforcement should focus on white-collar crime. Strong opposition to the death penalty, or to disproportionate incarceration, establishes one’s progressive bona fides; proposals for reducing the homicide rate (other than via gun control) or disproportionate victimization, not so much. The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course these are often the same persons under different labels or at different moments.

The corresponding conservative tendency is to regard “victims” and “perpetrators” as distinct groups—as if most criminals hadn’t first been victims—and punishment as good, and more punishment as better, conditional only on actual guilt and some sort of due process. That leads them to dismiss concerns about having 1 percent of all adults, 4 percent of all African-American men, and 37 percent of young African-American men without high-school diplomas behind bars at any given time as without moral significance.

Thus the debate over criminal-justice policy often seems to take place between the disciples of Michel Foucault and the disciples of the Marquis de Sade, with the Foucauldians winning the academic debate even as the sadists mostly get their way in the real political world. The resulting policies manage to combine enormous cruelty with unsatisfactory crime-control results: The United States leads the developed world in both homicide and incarceration, and both of those evils land most heavily on poor African Americans.

We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary. As Machiavelli warned his fellow opponents of tyranny, a reluctance to punish comes naturally with good-heartedness, but those unable to overcome that reluctance are as unfit to rule as those who have no such reluctance to begin with.

I argue that (blue-collar) crime—theft and assault, in all their varieties—is still a real and major problem; that its economic and social costs are vastly under-appreciated; that its primary victims are disadvantaged minorities and poor people; that the current criminal-justice system wrongs them by under-enforcing the law against those who victimize them (who are, of course, mostly people like them in racial and class terms); that better criminal-justice policy could give us less crime and less incarceration; and that better and more equal law enforcement ought therefore to be as central a progressive political goal as better and more equal education or health care.

After all, the Fourteenth Amendment forbids any state to deny any person equal protection of the laws. As Randall Kennedy pointed out two decades ago, current actual policy in every state routinely violates that proscription, by punishing less consistently those who victimize poor people and members of socially disadvantaged ethnic groups, most of all African Americans. That system helps sustain intolerably high rates of victimization—especially violent victimization—in poor black neighborhoods, with disastrous consequences. Progressives ought to demand action.

The Costs of Crime

That crime is a terrible problem is among the received pieties of American politics, but at first glance it isn’t obviously true, especially after the great crime decline of the past 15 years. Homicide is no longer among the 15 leading causes of death; accidents are eight times as common, suicides more than twice as common. The average burglary loss per household is about $50 per year. Such calculations seem to support the suspicion that “crime” is a largely invented issue, created for the purpose of justifying repression.

And yet those calculations also seem to miss the point. Crime isn’t just something that happens to people. Crime is something someone does to someone else. As Justice Holmes remarked, even a dog knows the difference between being stumbled over and being kicked.

That difference matters because being hurt deliberately rather than inadvertently is degrading as well as damaging: It adds insult to injury. By asserting lawless power over the victim, the perpetrator not only puts the victim in fear of the event happening again (with or without a change of victimizer) but also acts out the message that the victim is not someone whose person or property others need to respect. Impunity drives the message home; there is evidence from the social-psychology lab that people tend to think less of the victims of unpunished crimes. This helps make sense of the demand of victims and their families that someone—even, sometimes, the wrong person—be punished, to give the victims “closure.”

Nor do all the losses from criminal activity accrue to crime victims. To avoid being victimized, people lock their doors, stay at home, and avoid dangerous neighborhoods. All of those forms of crime avoidance are costly, and not only to those who engage in them. When those people and businesses that can abandon high-crime neighborhoods do so, they leave those neighborhoods poorer—in social connections, in services, and in job opportunities—and even more dangerous than they already were. It would be impossible to understand the residential patterns in any metropolitan area without reference to the crime map. A crime decline that partly stems from the depopulation of high-crime neighborhoods is nothing to be proud of, and even today’s reduced crime rates are still at least 50 percent above those of the 1950s and early 1960s. Homicide has fallen further, but that seems to stem in part from better medical care: The rate of intentional gunshot injury has not been falling.

Geographically concentrated crime also corrodes social ties at the individual and neighborhood levels; it is both a cause and an effect of distrust. And it feeds on itself in other ways as well. Since enforcement tends to be less concentrated than criminal activity, criminal behavior is safer where there is a lot of it, and both the opportunities for gainful licit activity are fewer and the gains from such activity less secure. Living in chaos makes people more present-oriented and less averse to risk, two characteristics that make crime, with its immediate and certain gains and its deferred and uncertain losses, appear more attractive. Little wonder crime is so heavily concentrated, that those concentrations are so stable over time, and that it concentrates among those otherwise worst off. And concentrated it is: African Americans face more than six times the murder risk of the rest of the population, and there are neighborhoods where homicide is the leading cause of death among males between 15 and 30.

But crime has an equally evil twin: punishment. The United States, with 5 percent of the world’s population, has 25 percent of its prisoners. We have more people behind bars than does China: not merely more per capita, but more total prisoners. Our current incarceration rate is five times our own historical norm, and five times the level of any other economically and politically advanced country. And incarceration is just about as concentrated by race as is homicide victimization. While the national incarceration rate is about 750 per 100,000 population, the rate among African Americans is more than 3,000 per 100,000. (The late William Stuntz of Harvard Law School calculated that African Americans are locked up at a higher rate than Russians were under Stalin.) Add social class to race and the problem looks even worse: An African-American male who does not finish high school is more likely than not to spend time in prison.

Mass incarceration can be self-defeating. Converting imprisonment from a shocking disgrace to a routine incident of early manhood greatly reduces the stigma that carries much of its deterrent power when it is sparingly used. Purdue sociologist Bert Useem and Rutgers economist Anne Morrison Piehl estimate that, under current conditions in the median U.S. state, adding a prisoner creates as much crime as it prevents.

Many critics of mass incarceration focus their attacks on the “war on drugs.” In fact, the 500,000 people behind bars at any one time for drug-law violations constitute only about 20 percent of those locked up. That’s still a shockingly large number of people—the United States has a higher rate of incarceration for drug-law violations alone than any Western European country has for all offenses combined—but “ending the drug war” would not put much of a dent in the mass-incarceration problem, even if we assume no additional crime due to additional drug abuse. (Alcohol, our one licit addictive intoxicant, is involved in something like half of all violent crime.)

Since victimization is overwhelmingly intraracial, doing a better job of vindicating African-American victims would be hard to do without further increasing the disproportion in incarceration rates. Is it any surprise that progressives would rather talk about root causes, prevention programs, and procedural justice?

The Costs of Crime Control

Policing takes a big share of municipal budgets. Incarceration swallows up a noticeable chunk of state budgets, and rising prison costs have helped squeeze state-university funding.

Still, the overall costs of the criminal-justice system do not loom especially large among forms of public expenditure. Counting everything—police, courts, prosecution, prisons, jails, probation, parole, and publicly paid defense counsel—and combining all levels of government, we spend about $225 billion a year on law enforcement, less than half the cost of public K-12 education, about a third of what we spend on defense, or a fifth of the public-sector contribution to health care. More than half of that $225 billion goes to police; prisons and jails combined account for about a quarter, or $55 billion a year. Thus the vast “prison-industrial complex” whose budget could be “reinvested” in massive social reforms is largely imaginary; shutting down all the prisons and jails tomorrow wouldn’t finance a 10 percent increase in education spending.

A focus on the budget leads to solving the wrong problem. It is not the dollar costs of criminal-justice operations that should most concern us. Those are modest, not merely compared to any reasonable computation of the costs of crime, but also compared to the damage the system does to those it acts on: the suffering inflicted by arrest, prosecution, conviction, and incarceration, including all of the residual disabilities that go with the label “ex-convict,” and the fear created by overaggressive policing.

In the project of reconfiguring our criminal-justice system to do more good and less harm, the fiscal crunch that has led to cuts in police and prison budgets both helps and hurts. It seems unlikely that the country will ever again have as many police or as many prisoners as it did in 2010, which ought to force the pace of innovation. But fiscal pressure can also squeeze out new ideas and lead to the kind of short-term thinking that refuses to spend a dollar now to save $5 next year.

Crime Despite Punishment

The conservative approach to crime is simple: Punish it. The economic theory of crime developed by Gary Becker, Nobel laureate of the University of Chicago, holds that people will violate the law if and only if doing so is advantageous: if the expected value of the gains from criminal activity, less the expected value of the punishment imposed, exceeds the rewards of licit economic activity. The policy prescription is to make sure crime doesn’t pay by ramping up the punishments.

It’s an elegant theory, but, as Lt. Columbo would say, there’s just one thing: Even at the nadir of incarceration-to-offense ratios in the late 1970s, blue-collar crime has never paid. For every hour spent behind bars, the average burglar back then “earned” something less than $2; the wages of sin have always been well below the legal minimum. The subsequent increase in burglary-related incarceration and decrease in burglaries have driven wages for serving burglary time to the pennies-per-hour range. The surprise for those who believe that offenders are rational economic actors is how small the decrease in burglary has been even as the terms of trade worsened six-fold. (Crack-dealing wages have also fallen sharply, albeit from a higher level.)

Why do some people keep committing crimes, to their own evident disadvantage? Because they’re present-oriented and impulsive, with deficient capacities for shaping their current behavior in light of their future goals, and with poor judgment about their actual odds of getting caught: all characteristics, as noted above, likely to be produced by growing up in high-crime neighborhoods. (Neglectful and abusive parenting also contributes, of course. So does exposure to environmental lead; more on this below.)

If you’re looking for a single “root cause” of crime, look no further: The cause is bad decision-making by offenders. And the solution must lie in some combination of improving that decision-making process and devising deterrent threats that actually deter reckless, impulsive, short-term-oriented people, which the current regime of randomized draconian responses so dramatically fails to do.

Way back in the eighteenth century, Cesare Beccaria—the Italian criminologist from whom Jeremy Bentham borrowed not only the term “utility” but many of his ideas for criminal-justice reform—identified three characteristics that determine the deterrent efficacy of a threatened punishment: its swiftness, its certainty, and its severity. Of the three, severity is least important. If punishment is swift and certain, it need not be severe to be efficacious. If punishment is uncertain and delayed, it will not be efficacious even if it is severe. (It was only two and a half centuries after Beccaria that psychologists and behavioral economists discovered that some degree of excessive present-orientation, and excessive discounting of the risk of large losses, is normal.) The sort of bad gamble represented by most offenses tends to attract precisely those whose departures from rationality are most egregious.

Viewed from the perspective of deterrence, long prison terms are a bad bargain: The last 15 years of a 20-year prison sentence start five years from its beginning, a period distant enough to be beyond the planning horizon of the typical armed robber. And those long prison terms are no better viewed from the perspective of incapacitation—the purely mechanical effect of preventing crime by keeping the criminals locked up. Because crime is mostly a young man’s game, the amount of crime prevented per year incarcerated falls with the age of the prisoner; by the end of a long sentence even a prisoner who starts out young has grown old, as age is measured in the world of offending. Thanks to “three strikes” laws and absurdly long terms for drug dealing, the average prisoner is now in his (or, much more rarely, her) mid-30s while the average new crime is committed by someone in his early 20s. That’s a very costly mismatch.

Not only is severity an inadequate substitute for swiftness and certainty, it actually interferes with them. The more severe a punishment is, the more due process (leading to delay) is required to impose it, and (if severity is measured in sentence length) the less often it can be imposed before the prisons fill up. Unfortunately, increasing severity is easy for a legislature or sentencing commission to accomplish; increasing swiftness and certainty—for example, by adding police and improving police operations—is more complicated, especially given the need to balance intrusiveness against crime-control benefits, as in the case of New York’s sometimes overaggressive “stop-and-frisk” tactics.

Smarter Policing

Police work has been among the most innovative sectors of American public management over the past three decades. “Problem-oriented” and then “community” policing replaced the mindless use of “preventive patrol” and the drive to minimize response times. Instead, the new approach stressed attention to the neighborhood-level social forces and cooperation with the police. Then followed the CompStat revolution, in which police departments accepted, and met, the challenge of actually reducing crime rather than merely responding to it. Focusing on geographic and temporal “hot spots” and high-rate offenders pays big dividends, and the era of “predictive policing,” when data-driven modeling points officers to the place where the next crime is likely to occur, seems to be upon us.

All of this is still a work in progress. Policing, like education, is labor-intensive and hard to automate, and therefore subject to Baumol’s cost disease, under which the costs of activities with low productivity gains rise over time compared with the costs of more technologically progressive sectors. But falling information-processing costs can help cure the Baumol disease. We now know that a home that suffers a burglary is at heightened risk of being revictimized within weeks. Why not have the police officer who comes to investigate a burglary offer to install (now very cheap) police webcams over the doors and windows and leave them in operation for 60 days?

The revolution in information technology could also allow departments to massively crowdsource the task of monitoring conditions and observing crimes in progress. Virtually every pedestrian now carries what amounts to a TV camera; police will have to learn how to acquire, sort, and act on relevant information quickly and seamlessly. For $200, you can now buy a toy helicopter equipped with an HD camera and guided by a laptop. Learning how to use it takes minutes. Such devices could reinvigorate the concept of “neighborhood watch,” but only if the police can learn to make use of the results (and prevent the “watchers” from turning into stalkers or peeping Toms).

None of this is straightforward. But all of it is essential. New York City’s massive and aggressive police force has succeeded in reducing not only crime but incarceration. We need to learn how to do so at smaller costs in civil liberty and (given fiscal realities in cities without Wall Street) money. But that project will not be helped much by people whose response to “police” on a word-association test is “misconduct” or “brutality.”

The Alternative to Incarceration

At any one time, more than twice as many people are subject to community supervision—probation or parole—than are held in jails and prisons. Those populations are heterogeneous; they include a large number of low-risk, low-rate offenders, some high-rate minor offenders, and a relative handful of seriously dangerous people. Lots of people get caught once or twice; but it is those who offend again and again that account for most of the serious crimes and most of the prison headcount.

When not confined, these high-rate serious offenders are likely to be under community supervision; on their way up the career-criminal ladder, they will have spent time on juvenile probation. The more effective community supervision is, the less we need to rely on incarceration, both because judges and legislatures will be willing to imprison less often and because better supervision prevents re-offending.

Right now, though, those systems are dismal failures, and their reform offers the best prospect for reducing both victimization and days behind bars. Most contemporary community supervision reproduces the random severity of the larger criminal-justice system. Probationers and parolees are subject to myriad rules—not all of them clearly useful in reducing their risk of re-offending—but are so loosely monitored that most violations go undetected. (One scheduled visit a month to the probation office is about average, often with a drug test thrown in; since the test is also scheduled in advance, three days’ abstinence will produce a “clean” specimen for drugs other than cannabis.)

When a violation is detected—typically a positive drug test or a missed appointment—the usual response is...nothing. The probation officer says, “That’s against the rules. Don’t do it again.” In principle, any violation could be the basis for revocation of release and a trip to jail or prison for months or even years. But in practice, those sanctions are too drastic to be imposed often, and the paperwork surrounding them, combined with the sheer number of offenders on each officer’s caseload—150 to 200 is typical in high-crime jurisdictions—ensures that most violations will draw only warnings, and that the warnings will have little credibility. (Parole agents tend to have smaller caseloads of tougher offenders, so they tend to respond somewhat more aggressively; unlike probation officers, they don’t need to convince a judge to impose a sanction. But more than four out of five community-corrections clients are probationers, not parolees.)

As an individual accumulates more and more violations, the gravity of the warnings is likely to escalate, until at some unpredictable point—maybe the sixth violation, maybe the sixteenth—off he goes to see the judge and possibly spend a spell behind bars. Even though most violations go unpunished, revocation of community release is among the most common reasons for entering prison. It’s as if the system were deliberately creating a trap for the poorly self-controlled people subject to it.

The obvious (but hard-to-administer) common-sense alternative is to make the rules less numerous, the monitoring tighter, and the sanctions swift, certain, and reasonably mild, and to clearly tell each probationer and parolee exactly what the rules are and what exactly will happen, every time and right away, when a rule is broken. Mildness—or proportionality, if you like—is essential to making the threat credible, and severity turns out to be unnecessary. Experimental evidence from the HOPE program in Hawaii showed that two days in jail is as good a deterrent to drug use as six weeks, as long as the two days actually happen, and happen every time. We don’t know yet whether a day in jail, or a couple of hours in a holding cell, or a weekend of home confinement, or a week of a 9 p.m.-6 a.m. curfew, would do the trick, but we ought to learn.

But while severity is superfluous, mercy is toxic. The tendency to give a usually well-behaved client a break “just this once” destroys certainty. Worse, it converts what should be the inevitable consequence of the offender’s own actions—something he did, in effect, to himself—into something the officer could have chosen not to do, and thus the product of the officer’s whim.

Where swift-and-certain sanctions for enforcing community corrections rules have been tried—and where the system has been properly organized, first to deliver the clear warnings and then to deliver on the threats when necessary—the results have been astounding. Drug-using offenders supervised under those conditions achieve much bigger reductions in drug use than result from the mandatory drug treatment; 80 percent of long-term criminally active users of hard drugs turn out to be able to quit under steady pressure. That in turn leads to reductions of 50 percent or more in new crimes and, crucially, days spent behind bars. Those results make swift-and-certain sanctions programs—which, along with Hawaii, have been tried in Texas, Washington state, California, and (focusing on alcohol) South Dakota—easily the most promising approach to reducing crime rates and incarceration rates both relatively quickly (over the next few years) and dramatically. Not only does swift-and-certain sanctioning succeed in changing the behavior of people with deficient self-command; there is some evidence—not nearly conclusive, but intriguing—that it may actually change the entire behavioral style of many clients by showing them that they do in fact have the capacity to manage their habits. That in turn increases the characteristic psychologists call “self-efficacy”—a person’s belief that he can exert control—which is a strong predictor of success in any attempt at behavior change, from quitting smoking to learning to restrain one’s anger.

The swift-and-certain-sanctions innovation is now spreading. It is doing so with support from the federal Office of Justice Programs, but against the fervent opposition of proponents of less effective and more expensive practices such as mandatory drug treatment. Research has been impeded by the refusal of the National Institute on Drug Abuse to fund studies of an approach that demonstrates the fatuity of the dogmas that drug abuse is merely a “brain disease” and that “punishment doesn’t work” (a conclusion based on studies where punishment was neither swift nor certain).

Whether the requisite public-management capacity can be mustered to bring it to full scale without loss of program integrity remains a question mark. Washington state is currently mounting the first statewide program, with encouraging preliminary results.

Meanwhile, GPS tracking makes pinpointing an offender’s location as easy—though not quite as cheap—as monitoring his drug use. That would allow the enforcement of curfews and stay-away orders, deter re-offending, and make the person wearing a monitor unwelcome in group criminal activity.

The combination of drug testing and position monitoring with swift-and-certain sanctioning could deliver most of the incapacitative effect of a prison cell at a fraction of the cost, and a still-smaller fraction of the suffering. Some proportion—perhaps a large one—of those currently behind bars could be safely released under those conditions. Now that we’re almost back to 1965 crime rates, perhaps we could start to move back to 1965 incarceration rates: that would mean an 80 percent reduction in the population behind bars.

Smart community corrections can save about $5 in incarceration spending for every dollar it costs. But the spending is now, and comes mostly from city and county budgets, while the savings are later, and mostly accrue to state budgets. The approach remains without a political champion, a funded lobby, or an enthusiastic foundation backer. Its supporters need to hope that good outcomes will speak for themselves.

Crime Control Without Punishment

Of course it would be better to control crime by helping people rather than harming them. But the list of proven social-service approaches to crime control is short. Even programs that have shown promise, including “coaching” of poorly educated first-time mothers, are slow acting. And intervening with a newborn won’t do much to crime rates in the next 15 years.

We could get quicker dividends by starting and ending the middle-school and high-school day a couple of hours later, shortening the burglary-friendly period between when school gets out and grown-ups get home from work. A later-starting school day would also benefit students’ health and academic performance by giving them more time to sleep. But changing school hours would also interfere with extracurricular activities and inconvenience various adults, so it seems to be a nonstarter.

Successful drug treatment is a big winner, but most drug-abusing offenders won’t go to treatment if offered it, even if nominally compelled to attend, or won’t stick with it long enough to matter. The probation machinery that is so ineffective in enforcing other conditions is no better at enforcing treatment mandates. Drug courts are too resource-intensive to be practicable at scale, and their good outcomes depend in large part on filtering out participants with histories of serious criminality. Spending the most attention on the least dangerous is hardly good policy.

Other than literacy programs, which are cheap and have some demonstrated benefits, most in-prison treatment has limited value. Changes in attitudes and behavior achieved “inside” rarely survive the transition back to the “free world.” Changing the capacity for self-command is hard.

No doubt a variety of social-service and health-care agencies, from Temporary Assistance for Needy Families offices to shock-trauma units, might be able to make substantial contributions to crime control. But that would mean designing and evaluating specific interventions with crime control in mind and holding officials responsible for crime-control outcomes, which would take us a long way from current practice. (How many high-school principals or housing-project managers could tell you what fraction of their students or tenants were arrested last year?) Crime control seems to be more a throwaway argument in support of programs favored on other grounds rather than something the social-service world and its political allies are ready to take seriously.

The wild card in the crime-control deck is lead abatement. The science is no longer in serious doubt (see Kevin Drum’s summing up in the January-February Mother Jones): Lead, even in very small doses, not only reduces IQ but also interferes directly with the systems in the brain that mediate self-command. Solid statistical evidence suggests that increasing lead exposure after World War II contributed to the great Boomer crime wave, and that EPA regulations starting in the 1970s that forced the conversion to unleaded gasoline were a major driver of the crime decline that started in the mid-1990s.

Today’s children are still being exposed to damaging levels of lead from the soil (a leftover from lead in gasoline) and from residential buildings, and especially old window casings. The cost of abatement would be moderately stiff: Drum estimates something like $20 billion per year over 20 years, and arguably the process should move faster than that. Still, at that pace, lead abatement, while it was going on, would cost about 10 percent of our current criminal-justice expenditure, and nothing after that, for a permanent crime reduction likely—based on past experience—to be at least 10 percent. All the other cognitive and health benefits would be gravy. It’s hard to imagine any other crime-control expenditure with anything like that much bang for the buck. And the benefits would be concentrated in poor, largely minority, urban neighborhoods. Unfortunately, an idea like lead abatement has no place in the current discourse on crime control: Foucauldians and sadists alike will find it not so much wrong as utterly beside the point.

Crime-control policy is not merely a practical problem; moral judgment is at its very core. And yet, with a little less heated rhetoric and a little more practical reasoning, we could have a lot less crime. Our failure to stop posturing—just for a moment—and do the actual work is deeply, unforgivably immoral.

A campaign boiler room is the best place to see the ugly underbelly of our election system. As a senior legal adviser to the Obama campaign, I spent November 6 in the Chicago boiler room, where roughly a hundred people ran Election Day operations. The campaign had developed a sophisticated system for spotting, surfacing, and solving polling-place problems as they arose. The election unfolded across my screen in real time.

It wasn’t pretty. From our vantage point, we saw what many saw—ridiculously long lines. But we could also discern the root causes of those long lines. Much of what we saw confirmed what election experts already know: Many, if not most, of the problems voters encounter can be traced back to our badly functioning and entirely outdated registration system.

The registration process is plagued by two problems: paperwork and parties. In most states, citizens who wish to vote must obtain and fill out a paper application. Between the 2006 and 2008 elections, for instance, states had to process 60 million registration applications, most of them on paper. The voter’s information is then entered manually into a statewide database. Errors inevitably occur along the way. Moreover, most states demand that voters notify their election office of a change of address, and few jurisdictions have an adequate system for taking dead people off the rolls. The result is that many statewide lists are filled not just with errors but with “deadwood” (registrations that are no long valid).

Third-party groups compound the heavy costs associated with this paper-driven process. Because we place the burden on individuals to register themselves, third parties inevitably step in to help. The trouble is that not all of them are helpful. These groups can make mistakes; some have even committed registration fraud. One study, for instance, found that one-third of the registration applications submitted in 2008 didn’t result in a valid registration or address change. The problem of third-party involvement goes deeper, however. Political parties take on much of the registration work. Their incentives are skewed, and as a result the electorate can become skewed. That’s because the political parties’ goal isn’t to register people. Their goal is to register their people. And even when third parties are on their best behavior, they do most of their work immediately before the election, which means that under-resourced and understaffed election administrators struggle to deal with the onslaught of paper applications filed during the weeks leading up to the election.

The end result is depressingly familiar to election experts. A recent Pew study reveals that at least 24 percent of the eligible voting population isn’t registered. One in eight registrations in the United States is either invalid or contains significant inaccuracies. Nearly two million dead people are on the rolls, 2.75 million people are registered in more than one state, and 12 million voter records contain incorrect addresses.

All of these problems generate headaches on Election Day. An MIT study estimated that 2.2 million voters weren’t able to cast a ballot that counted in 2008 due to registration problems. In addition, 5.7 million voters had a registration problem that had to be resolved before they could cast a ballot.

Lost votes are the most obvious consequence of our registration system. The indirect consequences are almost as troubling. Precious poll-worker time is wasted every time a voter shows up at the polls and discovers he’s not registered or is listed with the wrong name, address, or birthday. Poll workers have to double check the list, explain the problem to the voter, listen to his inevitably frustrated response, and help him fill out a provisional ballot. All the while, the line gets longer and longer. If you’ve ever stood in line at a grocery store, you know exactly how it works. The moment a clerk flicks on the light to ask for a price check, the line begin to grow.

The problem is far more acute in the polling place. Many polling places already have too few poll workers or voting machines or polling books to process voters quickly. Registration problems put more pressure on the system than it can bear. Little wonder there were people voting after midnight in 2012.

Fixing the Problem

What makes this all so frustrating is that there is an obvious solution. We could do what other democracies do—register everyone automatically. State officials have plenty of information on us. They know who we are and where we live. Using data-matching technology widely deployed in the private sector, creating a universal voter-registration list would be a relatively simple matter.

It would be simple for the voter as well. In some states, the DMV already asks people applying for a license or changing their address whether they want to register to vote. Those who do fill out a quick form using an electronic pad and stylus. The relevant information—including the voter’s signature—is then transmitted electronically to election officials, who ensure that the person is eligible to vote in that jurisdiction.

Now imagine every public organization—a state university, the Department of Veterans Affairs, your local Social Security office—providing the same kind of one-stop shopping. These organizations routinely ask you for just the kind of data you need to register to vote. It wouldn’t be difficult for them to forward that information to election officials, thereby eliminating one more chore off every voter’s “to do” list.

Making the case for universal registration is about as easy as making the case for flossing. And yet most election policies inevitably push us into the access/integrity debate. Whenever a state tries to make voting easier, opponents of the policy shout about fraud, real or imagined. Whenever a state tries to ensure that only eligible voters cast ballots, opponents invoke Jim Crow. The truth is, we do need to balance these two important values when we set policy. But these questions have become so politicized, so filled with sloganeering, that the public debate resembles that old Miller Lite commercial—“Tastes great!” “Less filling!”—and is only slightly more illuminating.

Universal registration is different. We don’t have to trade off access or integrity because it promotes both. Liberals should welcome universal registration because it makes voting easier. Conservatives ought to like the system because it prevents registration fraud (countries with universal registration don’t have ACORNs). And everyone will appreciate the fact that universal registration is cheaper. The Pew Center on the States found that Canada spends 35 cents per voter to register its citizens. Oregon (the only state that makes such data available), in contrast, spends more than $4 per voter. And Canada gets more bang for the buck. Ninety-three percent of eligible voters are on the Canadian rolls; the Brennan Center for Justice reports that it’s 68 percent in the United States.

America: A Global Outlier

If good governance arguments aren’t enough, how about a normative appeal? Voting has long been considered the touchstone of our democracy. And yet we force voters to jump through unnecessary bureaucratic hoops to perform this sacred act of citizenship.

Keep in mind what you are doing when you register to vote. You are simply asking the state to acknowledge something it already knows—that you are eligible to cast a ballot. Would we ever ask American citizens to fill out paperwork before they exercised another right to which they are automatically entitled—the right to free speech? Even setting aside concerns about prior restraints, it would be unthinkable. Would we ever be satisfied with a paperwork process that barred citizens from exercising their First Amendment rights because of bureaucratic errors that were eminently preventable? No. In this day and age, I can’t even imagine a private company requiring customers to fill out a piece of paper, mail it in, and let it get processed through an error-prone system before anyone could buy its products. Why do we treat our most precious noncommodity so differently?

Our registration system isn’t just inconsistent with our country’s deep commitment to the right to vote. It’s also made us a global outlier. The Brennan Center recently ranked countries based on how much responsibility the state took for registering its voters. On one side of the scale were the usual suspects—European democracies, Australia—and places like Argentina, Peru, and Indonesia. On the other? The Bahamas, Belize, Burundi...and the United States. In its very first election, Iraq created an automatic voter-registration system for its people. Too bad we haven’t caught up yet.

Some voters, of course, may not want to be registered because of privacy concerns. But bear in mind that voter lists would be compiled using information that the state already has. And it’s easy enough to take the steps necessary to shield that information from third parties. As to the argument that some voters simply don’t want to be registered, the notion collapses as soon as you press on it. There’s nothing magic about the act of registering; North Dakota, for instance, doesn’t even require it. All states are doing during the registration process is identifying who is eligible to vote, and you’re eligible to vote whether you like it or not. If you don’t want to vote, well, then, don’t vote. Moreover, it’s simple enough to create an opt-out process for anyone who can’t bear the thought of being eligible to vote.

I’m too much of a cynic to believe that common-sense arguments win the day in election reform. If they did, we wouldn’t have the election system we do. Indeed, sometimes I think that election reform may require divine intervention. But whether or not the Almighty will force politicians to do the right thing, the Almighty Dollar might. A universal voter-registration system will save a great deal of money. Election administrators spend roughly a third of their budgets on the registration process. If we enjoyed the savings Canadians enjoy, it would make a big difference. At the very least, one would hope that most states will adopt online voter-registration systems. These systems don’t get us all the way there; they still require citizens to jump through bureaucratic hoops to exercise their right to vote. But they are much cheaper and much more accurate than what we have now.

Perhaps the high costs of registration will eventually register with politicians. We tax voters’ paychecks by demanding that they pay more for a registration system than they should. We tax their time by requiring that they do more work to cast a ballot than they need to. And we do more than tax the luckless souls who do everything right but still don’t manage to get registered—we disenfranchise them. If voters knew the real story behind our registration system, maybe politicians would feel enough pressure to create the kind of system Americans deserve. As it is, they risk taxing voters’ patience.

One year before the 2012 election, democracy was playing defense.

Our nation was founded on an essential premise of political equality, the ideal that “all men are created equal.” In fits and starts over two centuries, we widened the circle of participation. The right to vote became over time the fundamental embodiment of the American idea.

But suddenly, in state capitals across the country, Republican lawmakers had moved abruptly to curb voting rights. In all, 19 states enacted 25 new statutes to cut back on the franchise, the first major rollback since the Jim Crow era. Measures ranged from harsh new voter-ID requirements (in Pennsylvania, Wisconsin, and elsewhere), to an end to same-day registration (in Maine), to strict limits on early voting (in Florida and Ohio), to barriers that made it nearly impossible for outside groups to register citizens (in Florida). The Brennan Center for Justice calculated the new laws would make it far harder for at least five million citizens to vote.

No unexpected crisis impelled this wave of action—only a shift to Republican Party control in statehouses. The new laws bore an unmistakable partisan tint. Pennsylvania GOP leader Mike Turzai seemed tipsy on truth serum when he bragged that his new voter-ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” They also bore an unmistakable racial tint. Of the ten states with the highest black turnout in 2008, the legislatures of eight passed measures making it harder to vote—laws that hit hardest minority, student, poor, and elderly citizens.

Then something remarkable happened. Citizens fought back. A high-octane communications effort by voting-rights groups brought the issue to the center of political debate. The Justice Department lived up to its responsibility, too, and blocked many laws using the Voting Rights Act. Lawyers for democracy forces fanned out to courtrooms across the country. Judges, regardless of party, acted as a counterweight to partisan manipulation.

Startlingly, by Election Day, every single one of the worst new laws had been blocked, blunted, postponed, or repealed. It was a heartening victory—a rare, distilled triumph of public-interest law and citizen activism. But public attention shone a klieg light on deep underlying problems. The self-proclaimed world’s greatest democracy tolerates a voting system that is ramshackle, rife with error, and prone to manipulation. Long lines are just one visible symptom. In Central Florida, waits as long as seven hours turned away an estimated 49,000 voters. As conservative columnist David Frum wrote, “America’s voting system is a disgrace.”

This time, these flaws did not prove dispositive: The election was not close. But if Florida 2000 was an electoral wreck, America 2012 was a terrifying near-miss. On election night, President Obama waxed eloquent describing people who waited hours to vote, then blurted out, “By the way, we need to fix that.” Mr. President, to invoke a familiar phrase, “Yes, we can.” But how?

Just possibly, the voting brawl will launch a new era in the fight to strengthen American democracy. Many voters were furious. African-American turnout increased, partly in reaction to attempted disenfranchisement. But defensive victories, no matter how vital, are not enough. As Winston Churchill said, “Wars are not won by evacuations.” Progressives must embrace ambition and innovation—the next generation of reforms can’t just rehash old victories or fend off assaults from the other side. We must put forward an agenda that addresses public concern for election integrity without disenfranchising voters. And we must be far more strategically ambitious about building a politically potent movement for change. That starts with an insistence that policy elites and political allies again put democracy reform at the center of their concerns.

Lessons Learned

As we move to seek reforms, we would do well to draw some basic lessons from the fights of the past two years.

Problems are fundamental; reforms must be fundamental. Many culprits produced long lines on Election Day. Certainly, national standards to assure adequate early voting periods would help. So would rules to make sure there are enough voting machines per precinct. But new technologies offer the possibility to leap forward—to shift the paradigm of how we run elections. Reimagining voter registration is the key.

Today’s system of individualized, self-initiated voter registration was first created a century ago in an explicit effort to keep former slaves and new European immigrants from voting. It has barely been updated since. It relies on paper records, administered by thousands of local jurisdictions. The Pew Center on the States reports millions of names of dead people or duplicates clog the records, while tens of millions of eligible citizens are missing. Tinkering alone will not fix voter registration.

Rather, the United States should plunge forward to modernize its voter-registration system. [See also “Make It Easy."] States should be required to take responsibility for registering all eligible voters, using existing computerized voter rolls and bulking them up with names voluntarily obtained from driver’s licenses, Selective Service records, or any of a dozen other lists. This would add up to 50 million voters to the rolls. It would be portable—people who move from town to town would no longer drop from the rolls, as happens today. It would cost less. And it would curb the potential for fraud, error, and foolishness on voter rolls. In this way, it meets concerns of both left and right. It offers a chance for an armistice in the endless trench warfare over voting. Instead of joylessly repeating the same fights over “voter fraud” and potential suppression, here is a reform that helps solve both problems at once. This proposal has gathered enormous momentum since I first discussed it in these pages. [“Democracy,” Issue #11]

The courts still matter, enormously. In 2012, judges strikingly stood up for core democratic values. This was true of judges chosen by Republicans as well as by Democrats. The Pennsylvania Supreme Court, for example, was split evenly between the two parties—but the judges were unanimous in blocking the law requiring an ID that 758,000 Pennsylvania voters did not have. Now that so many state capitals are gripped by one-party rule, judges will be obliged to play the check-and-balance role once reserved for the loyal opposition.

Conservatives took note. Stymied in 2012, they asked what is arguably the country’s most ideologically polarized bench, the U.S. Supreme Court, to defang the lower courts. In two key cases to be decided in the current term, states are urging the Court to curb Congress’s power to protect voting rights in the states (and thus judges’ power to enforce the law). The Voting Rights Act (VRA), the nation’s most successful civil-rights statute, is at risk in Shelby County v. Holder—despite its overwhelming bipartisan congressional reauthorization in 2006. Opponents argue that Section 5 of the VRA, which requires states with a history of discrimination to receive approval from the Justice Department before implementing voting laws that hurt minority rights, is an “Eyes on the Prize”-era relic. That argument would be easier to make if Southern states did not keep passing laws to make it harder for black people to vote. Just as worrisome, Arizona and six other Tea Party-influenced states urged the Court to revoke Congress’s power to assure strong voter-registration rules in states. Many observers were surprised, and not pleasantly, when the justices agreed to hear this case. A Citizens United-style overreach would devastate election law.

So pro-democracy forces will need to advance powerful jurisprudential arguments. We cannot find ourselves in the position we were in after Citizens United—surprised by the Court’s radicalism and flummoxed by the strategically deft campaign to undo longstanding laws. Several state laws (including Pennsylvania’s) were only postponed, not blocked permanently; litigation continues. [See also “A Temporary Victory."] Today the VRA and other statutes stand strong to protect the public. Unless our lawyers are as good as theirs, that could change, and fast.

Winning in the court of public opinion. The fight over voting unfolds on surprisingly difficult terrain. The public sees voting as a privilege, rather than a right. It fears fraud. Voter-ID laws are broadly popular, even among those (such as racial minorities) who would suffer most.

But research by pollster Celinda Lake drew a powerful conclusion: Despite public skepticism about voting rights, it is still possible to tap a deep well of patriotism to garner support for them. The American creed of political equality still holds totemic power.

Armed with these insights, voting-rights groups waged a sophisticated media campaign in 2012. Research reports garnered wide coverage; media outlets—even comedy shows—devoted huge amounts of attention to voter disenfranchisement. The new laws became widely understood as an illegitimate drive to twist the rules to benefit political insiders. Under pressure, the Republican governors of Michigan and Virginia blocked harsh changes. Significantly, the transformed issue terrain likely helped advocates win court victories as well. In previous years, judges saw these laws as arcane election-administration matters. In 2012, they understood the rules as part of a nationwide partisan push. As federal judge Brett Kavanaugh—a former Ken Starr deputy!—wrote in partially striking down the South Carolina voter-ID law, “The Voting Rights Act of 1965...[has] brought America closer to fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.”

Progressives must have an election-integrity agenda. Progressives will need to do much better, too, at making clear our commitment to election integrity. Of course, the “voter fraud” claimed by Heritage Foundation fellows and Wall Street Journal editorialists does not exist. A person is more likely to be killed by lightning than to commit in-person voter fraud—the only kind of fraud blocked by a voter-ID requirement. The entire conservative push is premised on an easily discredited urban myth. Snopes.com could solve the problem.

But progressives look Pollyannaish if we belittle concerns about election integrity. After all, politicians have been trying to stuff the ballot box since senators wore togas. It was progressive reformers who fought for decades to improve the honesty and integrity of elections.

In fact, experts confirm two areas of genuine risk. Both involve election manipulation by politicians. Electronic voting machines, after all, could be hacked. The remedy—paper records, an “audit trail” to frustrate fraud—has now been adopted by nearly every state. This anti-fraud victory should be embraced by voting activists. The other real fraud risk comes from absentee balloting. (Most “fraud” examples actually describe abuse of absentee ballots, as when a nursing-home worker fills out all the forms for infirm residents.) Of course, requiring voter ID does little to prevent this abuse. Rather, expanded early voting offers an alternative to absentee ballots.

I believe progressives must take one more step. We should unambiguously embrace an election-integrity agenda that protects against genuine risks without disenfranchising legitimate voters. The Republican demand for voter-ID laws is not the problem per se. The problem comes from laws requiring ID that many people do not have. About 11 percent of voters lack a driver’s license or another current government photo ID. Rhode Island, in contrast to the stricter ID laws conservatives favor, passed a law that accepts nongovernmental ID such as insurance cards, credit or debit cards, even health-club cards. This approach has caused little disenfranchisement or fraud.

Nevada Secretary of State Ross Miller, a Democrat, has an even more exciting idea. He suggests that driver’s license photos be included in polling place signature books. If voters don’t have the ID, a photo would be snapped, which would serve as their ID going forward. Details of such a plan would matter greatly. But done right, that too could point to an end to the divisive voter-ID battles of recent years.

Acclimating ourselves to the need for some form of ID will be hard for voting-rights advocates. In the heat of battle, it can be difficult to bend. But most citizens see voter ID as simple common sense. Only if we show them we share that understanding will they listen to our arguments that some forms of ID would lock millions out of the ballot box. Tellingly, voting-rights advocates won a significant victory in Minnesota, where voters rejected a proposed constitutional amendment establishing a restrictive ID regime. The most effective ad showed a former Republican governor and the current Democratic incumbent implying that some form of ID might be appropriate, but that this particular proposal needed to be sent back to the legislature.

A plausible election-integrity agenda will give legislative allies firm ground on which to stand. They can insist that only eligible citizens can vote—but every eligible citizen must be able to vote.

An Essential Reform

In all, the exhilarating victories of 2012 offer ample lessons on how to win. But we have seen moments of possible reform arrive and dissipate before. The potential of this moment will vanish too unless democracy advocates become far more relentless in demanding action. Democracy reform must become a central political strategy. Conservatives understand this. As soon as they got so much as a pinkie on a lever of power, they used it to cut back on democratic rights. (In the state legislatures, they curbed collective bargaining as well as voting. In the Supreme Court, they quickly undid decades of doctrine through Citizens United.) The right understands these issues actually address power, not process.

By contrast, when the Democrats had the White House, 60 votes in the Senate, and an iron grip on the House of Representatives, they did nothing to advance democracy. In fact, Barack Obama—former Project Vote organizer and constitutional law scholar—has done less to advance political reform than any Democratic President since the 1940s.

Perhaps that will change. But the first step must come from outside pressure. Here, there is hope. For the first time in memory, major progressive organizations have decided that democracy reform must become a central strategic objective. Major environmental groups (led by the Sierra Club and Greenpeace), unions (led by the AFL-CIO and SEIU), and traditional civil-rights groups (led by the NAACP) have organized a new and rambunctious “Democracy Initiative.” These groups, boasting millions of members, have come to recognize that they have little chance to achieve their objectives unless the political system changes. They are now fighting for voter-registration modernization, for small-donor public financing of campaigns, and for filibuster reform. Here is one response to Citizens United that needs no constitutional amendment or change in Court personnel. If conservatives want to flood the system with money, we need to flood the system with voters. If this initiative takes hold, it could mark a major turning point.

We need nothing less than an eruption of creative policy, a groundswell of innovative advocacy, and an unflinching insistence that democracy reform again be at the heart of the progressive agenda. Nobody ever marched for election administration. But millions have marched for democracy. Thanks to the voting wars of 2012, they may be ready to do so again.