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Some times in conversations that a candidate is too young/old. I wonder as it is illegal for companies to discriminate on basis of race/age/gender etc.

So will it be illegal for voters to think/decide on these factors?

If it is illegal, how it can be proved?

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    I don't know how you could enforce this, considering the ballot is secret - you don't have to tell anyone who you voted for, let alone the reason...
    – komodosp
    Feb 7 at 13:53
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    One could make the perhaps provocative argument that elections are meant to be discriminatory: It is likely that voters will feel their interests best represented by officials like themselves. The race, skin color, religion, sexual orientation, age or pregnancy status they have themselves are likely major criteria in their decisions (counter-examples notwithstanding ;-) ). The overall election result will tend to be a mirror image of the society (e.g. it would be strange to have a U.S. government of mostly white men ... oh wait ...). Feb 7 at 15:11
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    Are you aware that the US constitution explicitly requires a candidate for president be at least 35 and that their nation of birth is the US?
    – JimmyJames
    Feb 7 at 17:07
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    If it would be illegal for voters to vote for any candidate of their choice, the voting would be a mockery. Such things happen only in some exotic dictatures. Feb 8 at 18:35
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    @JimmyJames: Not quite - they have to be a citizen from birth, but this does not necessarily require them to have been born in the U.S. (having at least one U.S.-citizen parent is enough, as is birth in most unincorporated U.S. territories or aboard a U.S.-registered aircraft or ship).
    – Vikki
    Feb 9 at 16:24

2 Answers 2

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Discrimination in employment

The starting point is: discrimination is legal unless there is a law that says it isn't.

So for example, when I advertise a plumbing position, I can discriminate on the basis of if a candidate is or is not a plumber and, further, I can discriminate on how good a plumber I think they are.

What I can't do, in the is discriminate against someone on the basis of age if they are 40 or older. It is legal for me to discriminate against someone on age if they are younger than 40. Why? Because that's what the law says.

The full list of what constitutes illegal discrimination in employment is a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Elections aren't employment

Voters are free to vote for the candidate of their choice based on whatever reason they want. If I want to decide that the only candidates I will vote for are female homosexuals between the ages of 27 and 62 with one leg and a pirate accent, then that's my right.

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    There are lots of other kinds of discrimination that aren't illegal and not employment (e.g. housing, public accommodations, public services), but elections aren't one of them.
    – ohwilleke
    Feb 7 at 23:26
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    @ohwilleke: As I understand, the argument is that while they can't discriminate on who can try to run for an election (Provided they meet minimum requirements to run for an election), they can discriminate on who they will vote for, effectively preventing certain candidates from winning elections, if they can convince enough people to not vote for them. Feb 8 at 0:32
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    @Stef You can discriminate against Alfred on the basis of age. You cannot discriminate against Bob on the basis of age. You can choose the better plumber and not consider age.
    – Dale M
    Feb 8 at 10:54
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    @Stef I think you should interpret it as it's illegal to disadvantage someone over 40 due to age discrimination, but not to disadvantage someone under 40. It is typically the person being disadvantaged by discrimination that is described as being discriminated.
    – jkej
    Feb 8 at 10:57
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    What constitutes illegal discrimination in employment in the United States derives from a combination of federal and state law; there is no "full list" applicable in every state.
    – Ben Voigt
    Feb 8 at 15:49
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So will it be illegal for voters to think/decide on these factors?

If it is illegal, how it can be proved?

Take in consideration:

  1. The burden of proof is on the accuser. To press criminal charges against anyone, the prosecution must prove beyond reasonable doubt that a crime happened. With hard evidence.

  2. in the USA, ballots are secret. There's no way to prove how a specific voter voted.

  3. In the USA, a person is protected against self-incrimination by the Fifth Amendment.

  4. Forcing to reveal how a particular person voted can lead to Vote-Buying, a kind of electoral fraud. It is in all parties interest to make sure vote secrecy stands.

A rational voter could vote any way they wanted. Even if voting for reason X or Y was a crime, unless they gave up their Fifth Amendment rights (and a reasonable person wouldn't as it brings them no benefits), it is impossible to prosecute such a case.

By (4) we can see that even trying to collect evidence on how a person voted, reasons notwithstanding, is a felony.

So, no. It is not illegal to use any criteria to cast a ballot because it is impossible to prosecute, even if a law against it existed. It doesn't but we won't attempt to prove a negative for obvious reasons.

Now, if the voter is not rational and goes on social media or any other public forum and brag they didn't vote for X because X has the Y protected characteristic (be it age, gender, ethnical group, disability, religion, etc), they could be liable for libel based on their statments, but not the vote.

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    More fundamentally, voters are never under any obligation to vote for any particular candidate, and have the absolute right to withhold their vote from any candidate for any reason they see fit. While some acts may be unlawful but unprosecutable, there is nothing even remotely unlawful about voting against a candidate because of sex, age, race, religion, or membership in some other "protected class", just as they would be free to vote against a candidate because he has green eyes.
    – supercat
    Feb 7 at 18:03
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    Do you have any evidence for your assertion that it would be libel to announce you voted against someone because of a protected characteristic? I'm very sceptical about this claim.
    – deep64blue
    Feb 7 at 22:15
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    This doesn't hold water. Employment discrimination works the same way - there's no way to prove why someone was/wasn't hired unless the discriminator confesses - and yet employment discrimination is clearly illegal and gets litigated all the time. Discrimination by voters is legal, but the reason has nothing to do with the difficulty of enforcement.
    – Robert
    Feb 7 at 22:39
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    @Robert "there's no way to prove why someone was/wasn't hired unless the discriminator confesses" Not true. Most cases are proven by circumstantial evidence and credibility determinations.
    – ohwilleke
    Feb 7 at 23:28
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    @studog In the US at least, there is no general prohibition on discrimination, and I've never heard of a criminal discrimination statute. It's not illegal for a person to refuse to associate with another because of their race or gender, except in specific cases like a business refusing service (and then it would be a civil issue, not a criminal one). There are crimes where the sentence can be increased on the basis that it was a "hate crime," but as far as I know there aren't crimes which require proving prohibited discrimination. Feb 8 at 16:16

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