The following is a guest post by Johannes Jäger, a foreign law intern working in the Global Legal Research Directorate of the Law Library of Congress.

I recently read an op-ed in the New York Times in which the author passionately advocated for the introduction of “Demeny voting” in the United States. The concept behind this term, named after the demographer Paul Demeny (born 1932), is family voting. However, Demeny only briefly mentions this idea at the very end of an article on pronatalist policies in low-fertility countries. He proposes that the problem of low fertility be addressed by “strengthen[ing] the influence of families with children in the political system. When newcomers are admitted to human society, they should not be left disenfranchised for some 18 years: let custodial parents exercise the children’s voting rights until they come of age.” (Paul Demeny, Below-Replacement Fertility in Industrial Societies: Causes, Consequences, Policies, 12 Supplement to Population and Development Review 335, 358 (1986)). Demeny, however, did not invent the concept of family voting. Indeed, different concepts have been developed and discussed since the mid-19^th century. In the early 20^th century, on the eve of the introduction of universal suffrage, the question of the representation of families eventually was discussed on the political level.

A poll worker shows a child ballot boxes at a polling station in Kyiv, 25 May 2014. Photo by Flickr user OSCE Parliamentary Assembly. Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

France

France was the first country to discuss whether or not to implement a family voting system (vote familial or suffrage familial) after universal suffrage for all men aged 21 was introduced in the revolution of 1848. In 1850, the poet and politician Alphonse de Lamartine was the first to publish his ideas on family voting. He was convinced that a day would come where the father as head of the family “will have as many votes in an election as there are old men, women, and children at home; because in a better society, it is not the individual, it is the family which is the permanent unit. The individual passes, the family remains.” (A. de Lamartine, Oeuvres. Le Passé, le Présent, l’Avenir de la Republique, 249 (1850), translation by author.) Indeed, other French intellectuals and politicians of the time supported his idea, although without making specific proposals regarding how to implement family voting into constitutional and electoral law.

Around twenty years later, the first bill on this topic was presented to the post-revolutionary and post-war National Assembly. In this bill, Jacques de Jouvenel proposed that, as the head of the family (chef de famille), a man represents his wife, minor children, and adult daughters, he should therefore receive additional votes. Despite the support that was voiced for de Jouvenel’s bill from different parliamentary factions, his proposal did not receive a majority.

It should be noted that none of the early supporters of family voting in France was in favor of giving the right to vote to women but instead favored collective universal suffrage of families vested in the male head of the household (paterfamilias). This was supposed to end the era of violent revolutions, preserve the family as the nucleus of the patriarchal society, and finally to establish a stable, conservative political system. (Jean-Yves Le Naour with Catherine Valenti, La Famille Doit Voter, 20-25, (2005).)

In 1923, Henri Roulleaux-Dugage introduced a bill in which he proposed to extend universal suffrage not only to women but to all citizens regardless of sex or age. The father of each family would still exercise the voting right for himself and all of his children under 21 years. The bill was passionately debated but, again, no decision was reached; this time it was due to the early dissolution of the National Assembly.

Vichy France (1940-1944) came closest to implementing family voting into constitutional and electoral law. This regime, under Marshal Philippe Pétain, was devoted to work, family and fatherland (travail, famille, patrie) and strove to establish a hierarchical, national, and social regime. The draft Constitution of December 3, 1943, therefore provided that electoral law should guarantee family suffrage, under which the father, or, if applicable, the mother of each family comprised of three children or more aged under 21 would receive a double voting right. (Francine Muel-Dreyfus, Vichy and the Eternal Feminine: A Contribution to a Political Sociology of Gender, p. 195 (2001).) This draft, however, was not implemented into electoral law. In 1944, shortly before the end of the war, the provisional exile government under Charles de Gaulle agreed to give women the same voting rights as men. The concept of universal suffrage on an individual basis prevailed even though the umbrella organization of the Résistance in metropolitan France continuously campaigned for a family vote comparable to the Vichy constitutional provision. The end of the war and the restoration of the French Republic brought the breakthrough for individual (women’s) suffrage which was finally constitutionally recognized. (Kristen Stromberg Childers, Fathers, Families, and the State in France, 1914-1945, 187 (2003).)

Washington Votes; first time since 1874. Harris & Ewing, photographer. 1938. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/hec.24529.

Germany

German politicians, legal scholars, and philosophers followed the French discussions of the 18th and 19th centuries on the introduction of family voting with great interest. Reform proposals made in the 1930s and 1940s were built upon the French legislative initiatives (for example the Kreisau Circle resistance group during World War II for a post-war constitution).

After World War II, various models of family voting were discussed in (West) Germany. However, two of three models were not seriously considered, neither by academic scholars nor by politicians, due to inherent and obvious problems with their constitutionality. First of all, the intrinsic children’s voting right model (originäres Kinderwahlrecht) provided for the complete elimination of voting age. The second model, the intrinsic parental voting right model (originäres Elternwahlrecht), which corresponded to the historic proposals in France, would grant parents additional votes for each child. A third concept, named parental proxy voting (stellvertretendes Elternwahlrecht), in contrast, has occasionally been a topic of parliamentary debate. Cross-party motions were put forward in 2003 and again in 2008. Both were eventually rejected by the majority. According to this latter model, children would have the right to vote, but their right to vote would be exercised by their parents on their behalf and in their interest until they reach the voting age, which is eighteen.

Legal problems with respect to a possible implementation of this third model arise from the Basic Law (Grundgesetz), Germany’s constitution. The Basic Law stipulates that members of the German Bundestag (parliament) shall be elected in general, direct, free, equal and secret elections and that any person who has attained the age of eighteen shall be entitled to vote. The prevailing opinion in legal literature is that these provisions not only confer the entitlement to exercise the right to vote (Wahlrechtsausübungsbefugnis) but also the right to personally hold the right to vote (Wahlrechtsträgerschaft). Furthermore, the “guarantee of permanence” (Ewigkeitsgarantie) precludes fundamental changes to the constitutional framework which includes, inter alia, the principle of democracy. The right to vote falls under the scope of the principle of democracy.

Recently, in September 2017, the Bundestag’s Research and Documentation Services (Wissenschaftliche Dienste) issued a study on the questions of the constitutionality of family voting that summarizes the main arguments:

On the one hand, proponents of the parental choice model do not see the inherent principle of equal voting infringed. They argue that parents would not receive additional own votes per child, but only exercise the votes of the children in trust. Therefore, procedural precautions must be taken to guarantee that children’s and parents’ right to vote were practically separate. For example, children could sue their parents to cast their votes for a specific political party or candidate.

On the other hand, the opponents of family voting argue that the Basic Law requires a certain level of legitimacy for the country’s political institutions. This would not be achieved if children regardless of age would be enfranchised even though they might intellectually not be capable of effectively participating in the formation of their individual and the people’s collective political will. They conclude that parental proxy voting would be neither more nor less than a disguised form of plural voting. Not only does this model fail to correspond to reality, because parents would, under normal circumstances, face no obstacles when they wish to cast their children’s’ votes according to the parents’ own political beliefs, hence to a party/candidate the child would not wish to vote for.

Opponents of family voting point out that it would also infringe other key features of the German constitutional framework. They argue that parental proxy voting would only increase the number of votes cast, whereas the number of eligible voters would remain the same. In consequence, the principle of “one man, one vote” would also be violated since voters without children would be disadvantaged by only having a single vote. Although the protection of families is guaranteed under the constitution, it cannot justify such an interference with the democratic core principle of equal votes.

Furthermore, the same argument was put forth by people that opposed “rewarding” individuals that paid more taxes with an increased voting weight as was the case in the historic Prussian three-class franchise system. (Ulrich Schröder, Das Demokratieprinzip des Grundgesetzes, 49 Juristische Arbeitsblätter, 809, 811 (2017).)

Shall women vote? Ehrhart, S. D., creator. 1909. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ppmsca.26363.

Conclusion

The arguments put forth by both sides in the legal and political debate over family voting have not significantly changed over time. Opponents stress the principle of one person, one vote and the potential of proxy voting abuses as parents cast votes on behalf of their children but for parties or candidates they support. Meanwhile, supporters point out that low fertility countries need to provide incentives to secure political and economic prosperity.

However, the discussion does not seem to be over. In addition to the op-ed I read in the New York Times, German and French politicians have also recently advocated in favor of family voting:

Former German Secretary for Family Affairs, Senior Citizens, Women and Youth, Manuela Schwesig, stated in 2014 that she is in favor of reforming the German electoral law in order to give families a greater say in politics. On the occasion of the 25^th anniversary of the UN Convention on the Rights of the Child, Schwesig said that she supports the idea of giving each parent an extra vote per child. In 2017, the German Families Association (Deutscher Familienverband) started a campaign for family voting during the last Bundestag election campaign. It can therefore be concluded that an electoral law reform in Germany that included family voting would receive support from civil society, legal scholars, and politicians alike.

In France, support for family voting has declined since the end of World War II and the introduction of individual universal suffrage. However, some conservative groups continue to support the idea. The 2002 Forum des Républicains Sociaux (now part of Les Républican) presidential candidate Christine Boutin received support from 123 other members of parliament to introduce family voting. Yet, there is only very limited support of family voting nowadays in French society. In light of the “equality of individual citizens” (egalité des individus-citoyens), Boutin herself highlighted that any approach towards introducing collective family voting is currently “totally out of the question.” (Le Naour, supra, at 232-233.)

Further Reading

• Jean-Yves Le Naour. La famille doit voter : Le suffrage familial contre le vote individuel (2005).
• Gerd Strohmeier, Familienwahlrecht Reloaded: Ein nicht mehr ganz neuer Vorschlag erneut auf der Agenda – und dem Prüfstand, 26 Zeitschrift für Politikwissenschaft, 3-23 (2016).
• Sebastian Müller-Franken, Familienwahlrecht und Verfassung (2013).
• Isabel Rupprecht, Das Wahlrecht für Kinder (2012).
• Werner Schubert, Familienwahlrecht in Frankreich, 11 Familie Partnerschaft Recht, 55-59 (2005).
• Debbie Lackerstein, National Regeneration in Vichy France: Ideas and Policies, 1930–1944 (2012) at 159, 223.
• Hanna Quintern, Das Familienwahlrecht: Ein Beitrag zur verfassungsrechtlichen Diskussion (2012).
• Francine Muel-Dreyfus, Vichy and the Eternal Feminine: A Contribution to a Political Sociology of Gender (2001).