Voters as Fiduciaries

41 Pages Posted: 31 May 2015 Last revised: 6 Oct 2015

See all articles by Edward B. Foley

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 30, 2015

Abstract

This essay employs Rawlsian political philosophy to argue that voters, like jurors and soldiers, should be understood as holding a public office. As such, voters owe a fiduciary duty to act on behalf of all inhabitants of the polity, rather than to advance their own self-interests. This duty extends not only to the polity's current inhabitants, but also to all anticipated future generations of inhabitants.

Understanding the role of voters as fiduciaries has implications for Evenwel v. Abbott, the case recently granted plenary review by the U.S. Supreme Court to consider whether states, when drawing legislative districts, must endeavor to equalize the number of voters or residents in those districts. Once one recognizes that voters represent, not themselves, but the totality of residents in their community, then it becomes apparent that legislative districts should be apportioned based on total population, rather than just the population of the electorate.

Keywords: Rawls, veil of ignorance, original position, voting rights, trustee, Evenwel

Suggested Citation

Foley, Edward B., Voters as Fiduciaries (June 30, 2015). Ohio State Public Law Working Paper No. 296. Available at SSRN: https://ssrn.com/abstract=2612001 or http://dx.doi.org/10.2139/ssrn.2612001

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-4288 (Phone)
614-292-2035 (Fax)

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