Unknown people in the Florida and Michigan primaries and the death penalty debate

Josh Marshall makes a key observation about the controversy over what to do with the delegates from the Florida and Michigan Democratic primaries, from which I want to draw a very attenuated connection to my recent posts about the death penalty:

The Clinton campaign argues that if the delegates from these non-sanctioned primaries are not seated hundreds of thousand of voters in Florida and Michigan will be disenfranchised.

The other side argues that it is wrong to change the rules under which the nomination process after the fact in order to advantage one candidate over another. The latter is an argument I agree with -- but there's no question it lacks the emotive impact of the disenfranchisement argument.

What doesn't get mentioned, however, is this: it was widely reported and understood in both Florida and Michigan that the results of these primaries would not be counted. And based on that knowledge, large numbers of voters in both states simply didn't participate.

If the DNC were now to turn around and decide to make these contests count after all, these non-participating voters would be disenfranchised no less than the people who did turn out would be if the DNC sticks to the rules and doesn't seat any of the delegates. The simple fact is that large numbers of people, acting on accurate knowledge and in good faith, decided that there wasn't a real primary being held in their state on the day in question and on that basis decided not to participate.

He backs it up with statistics from another blog post appropriately titled "Do Florida And Michigan Primaries Really Reflect The Will Of The People? Nope." But we don't need statistics to see that a rational, informed person would have stayed home on primary day since they'd believe their vote wouldn't count. This has nothing to do with whether you agree about the decision not to count the Florida and Michigan delegates; it's just about the fact that people who were told that that would be the case.

Here's the key point. The people who voted are specific and known. We know their exact number, and everyone knows for sure whether they're in that group or not. The people who didn't vote but would have if there had been normal primaries are speculative and statistical. We can only think about them by extrapolating from untaken paths. No one person can definitively claim, "I would have voted, so I was disenfranchised." (I'm sure there are specific people who would make this claim, but there's no way to know if they're telling the truth.)

Now, it would clearly be irrational for our only concern to be whether we're disenfranchising the people in Florida and Michigan who actually did vote, right? We also need to be concerned with the people who choose not vote because they were under the impression that there wasn't a real primary going on in their state. If a different policy -- a policy of counting the states' delegates and announcing this beforehand -- would have caused more people to vote, then we need to think about the alternate universe in which that was the policy and those people really did vote.

The fact that you could find out the names of the people who ended up voting as things happened, while you couldn't say for sure which of the non-voters would have voted if things had been different, does not give any legitimate reason for differentiating between the two groups. They're all citizens -- we shouldn't want to disenfranchise any of them.

OK, so let's follow this reasoning where it leads us ...

[A] great deal of recent work has emphasized the possibility that heuristics and biases can be found in the moral arena, making it possible that deeply felt moral intuitions are a result of errors and confusions. ... Statistical lives and harms are pervasively neglected in policy, in part for cognitive reasons.

In other words, we tend to care about the harm that's done to specific, knowable people, while we give short shrift to the harm done to "statistical" people -- people about whom we can't say "We know their names," but only "We can calculate that this number of people probably would have done this in an alternate world."

The above block quote wasn't talking about elections, though. It was from the paper by Cass Sunstein and Adrian Vermeule that I've been blogging in some of my posts on the death penalty. Here's what they say about the difference between "statistical" (speculative, not specifically known) people and "salient" (specifically known people -- people whose names we know) as it affects the death penalty debate:

Those subject to capital punishment are real human beings, with their own backgrounds and narratives. Some of them have been subject to multiple forms of unfairness, in the legal process and elsewhere. At least some were wrongly convicted. By contrast, those whose lives are or might be saved by virtue of capital punishment are mere “statistical people.” They are both nameless and faceless, and their deaths are far less likely to be considered in moral deliberations. It is for this reason, perhaps, that the advocates of capital punishment often focus on the heinousness of the (salient) offender, while the abolitionists focus on his or her humanity. We suspect that the discussion would take a different form if the victims of a regime lacking capital punishment were salient too, and the example of police behavior in hostage situations supports the suspicion. ... But it does raise the possibility that moral intuitions, for many people, are a product of the salience of one set of deaths and the invisibility or speculative nature of another.

I think instead of calling these people "statistical" or "speculative" -- either of which makes it sound like they're just some figment of an academic's imagination -- we should call them "unknown" people. We don't know exactly who they are -- but that's just a byproduct of our inability to physically observe what-would-have-happened-if-things had-been-done-differently. They're unknown, but they're just as "real" as the people whose names we happen to know.

Granted, that's a lot more clearly true in the case of the primaries than with the death penalty, because the question of who was disenfranchised in Florida and Michigan is certainly less mysterious than whose lives have been saved (if any) by the death penalty. There's a reasonable chance that this blog post will be read by someone in Florida or Michigan who didn't vote in the primaries but will say, "Hey, I see Jac's point: I would have voted if I had thought it would count." But there's no way this blog post is being read by someone who can say, "I see his point: I would have died if it hadn't been for the death penalty's deterrent effect on murder." (As for whether there really is a deterrent effect, I've blogged about that extensively: 1, 2, 3, 4.)

But there's a big difference between your ability to know something on the one hand, and how real something is on the other hand. It seems to me that everyone is as "real" as everyone else, whether or not we happen to know their names so that we can point to them and say: "Ah, these were the exact people who were affected."

In practice, that's not how humans make decisions. We value the people we can actually see over the people we can only hypothesize. But that just shows that humans are imperfect decision-makers.

Bonus law observation: couldn't you use this point to argue for more lenient standing or ripeness requirements for having a justiciable claim against the government?

(Photo by Steve Ford Elliott)