2.3.1. Accessibility Challenges

What we can see from consideration of the physical methods of voting in the United States is that those who lack certain physical abilities that are considered "normal" (such as the ability to see or walk), or who lack access to certain technology or even the resources to physically ge<sup>t</sup> to a polling location, can be effectively denied the right to vote. We can expect the same result if human enhancements lead to a shift that allows votes to be cast by neural implants, or if other enhancements that facilitate voting become prevalent. Then the non-enhanced (or less-enhanced) humans may be perceived as disabled or less-abled and legally or practically denied the right to vote.

The United States Federal Americans with Disabilities Act of 1990 "provides protections to people with disabilities to ensure that they are treated equally in all aspects of life. Title II of the ADA requires state and local governments ("public entities") to ensure that people with disabilities have a full and equal opportunity to vote. The ADA's provisions apply to all aspects of voting, including polling places (or vote centers)" [51]. Similarly, under the Voting Rights Act of 1965 (VRA) election officials are required to allow a voter

<sup>19</sup> This is a subjective judgment of course. Humans from several hundred years ago might think enhanced humans of today are "beyond humanity".

who is blind or has another disability to receive assistance from a person of the voter's choice (other than the voter's employer or its agen<sup>t</sup> or an officer or agen<sup>t</sup> of the voter's union). But the reality is that despite these laws, such persons are less able to vote than the general population.<sup>20</sup> In an audit conducted in 2020, more than 40 states were found to have "absentee ballot applications that were not fully accessible to millions of visually impaired voters and those with other disabilities [53]."

As Dr. Fahn has explained in a similar context of prosthetics and other technologies: "At present, biotechnological marvels remain a form of class consumption. Advanced technology is only open to those who can afford the purchase, causing people in one country to experience the same impairment differently, based on their socioeconomic status. The "have nots" and the "haves" will lead directly to an "ability divide" that is not only reflected by individuals, but sets a division on a global scale [46]."

Consider enhancements that allow humans to "vote" by using a neural implant and a secure wireless internet connection with their unique digital and biological signature (for authenticity). This is not so far-fetched as Prof. Warwick, one of the world's first cyborgs, described in his experiment involving a "basic form of telegraphic communication" between two human nervous systems. As Prof. Warwick explained:

*"A volunteer assisted by having microneurography. Essentially, two very thin needles were pushed into the nervous system in their left arm. With this in place, we set up in the lab with a group of people around the volunteer and another group around me—we had a variety of different observers to oversee what we were doing. The volunteer and I were not able to see each other. We set the experiment up purely based on hand closures. When the volunteer closed their hand, I received a stimulating pulse on my nervous system, and the same happened vice versa. For me, it meant that my brain recognised the pulse. I shouted out "Yes" every time I felt a pulse, but only when I felt a pulse. Only the group around the volunteer could witness when they had closed their hand and when not. We achieved this with 100% success—the same being true in reverse. What I found exciting was that as the groups were splitting up, I felt a couple of quick pulses one after the other. Subsequently, the volunteer confirmed that they had done this. It was a 'secret' message between the two of us, a new means of communication"*. [42]

Similarly, entrepreneur Elon Musk has long been a proponent of neural implants, such as those pioneered by Jan Scheuermann as part of the DARPA initiatives [54]. In 2020, Elon Musk's company Neuralink showed a demonstration involving a pig who had a brain– computer interface implanted that allowed a display of her real-time brain activity [55]. While the initial stated goal was to assist humans with paralysis or a serious illness, the "augmentation" of people who are healthy and without disabilities "is an obvious result," according to the Director of Implant Systems at Neuralink [56]. "It's being able to enhance our ability to interact with the world." [56] Similarly, an extended mind, as discussed in the work of Professors Dunagan, Grove and Halbert in "*The Neuropolitics of Brain Science and its Implications for Human Enhancement and Intellectual Property Law"*, could also be considered an enhancement that could become the norm.<sup>21</sup>

<sup>20</sup> "According to a 2017 report by the U.S. Government Accountability, "Voters with Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance," roughly two-thirds of the examined polling places had at least one potential barrier such as lack of accessible parking, poor paths to the building, steep ramps, or lack of a clear path to the voting area. Although most polling places had at least one accessible voting system, roughly one-third had a voting station that did not afford an opportunity for a private and independent vote. The report also noted that Department of Justice guidance does not clearly state the extent to which federal accessibility requirements apply to early in-person voting. People with disabilities also continue to report barriers including a lack of accessible election and registration materials prior to elections, lack of transportation to polling places, and problems securing specific forms of identification required by some states [52]."

<sup>21</sup> Ref. [57] Perhaps this "extended mind" is already becoming the norm in practice, even if not technically a "human enhancement" for purposes of this Special Issue, when one considers the expanded computational power and informational access available at any time 24/7 to any human with a smartphone with internet access. Consider also Professor Fiorella Battaglia's proposal that an "extended mind" offers the potential of a new way to view the "mind-body" problem as an opportunity rather than a problem, emphasizing the epistemic difference between being a mind and being an extended mind in her forthcoming article in this Special Issue—"Agency, Responsibility, Selves, and the Mechanical Mind" [58].

Such enhancements could become common because they offer more convenient lifestyle activities in addition to voting, such as electronic funds transfers, secure communications and hands-free use of all the apps and programs currently available on desktops, laptops, tablets and smartphones. If such enhancements became common for everyone who had the resources to purchase them, then access to voting could favor those who had such implants. In that case, unenhanced or less-enhanced humans could be effectively disenfranchised. We can see this happening already in the United States with respect to voting access. Traditionally, voting in the United States was conducted in person, at designated polling locations, for registered voters only. This has shifted to a greater percentage of mail-in ballots, and that shift was already occurring even prior to the pandemic of 2020. Voting patterns in the United States reveal that wealthy voters are taking greater advantage of the ability to cast votes by mail<sup>22</sup> [53]. It seems reasonable to anticipate that there will be a shift to computer voting in the future, and in that case voters who are poor and lack computer and internet access could be less able to vote. Voters with few resources may not have reliable addresses in order to be able to vote in person or by mail—or may not have access to printers or scanners to submit applications to vote by mail. Voters who are in poverty and/or have caregiver responsibility for friends or relatives may not be able to wait in long lines or to drive long distances to be able to cast ballots in person.

In addition to accessibility challenges, enhanced or non-enhanced/less-enhanced humans may also be effectively disenfranchised due to language barriers.

### 2.3.2. Language and Communication Barriers

With the click of a button, anyone with access to the Internet can easily translate a meaningful amount of the content into another language, even if the translation is imperfect. It is not a stretch to imagine that an enhanced human, such as via a neural implant or a genetic enhancement for linguistic ability, could readily speak and read a large number of languages, particularly those for which online translations are accurate. However, such rapid translations are not available for the vast majority of languages spoken in the world currently.<sup>23</sup> The importance of using a language that voters can understand, and the impacts of the failure to do so, cannot be underestimated.<sup>24</sup> Moreover, humans with extreme enhancements could "speak" new languages or even communicate in new ways that would not be intelligible to humans without similar enhancements. If such new languages became the "official" languages for voting, it could effectively disenfranchise the humans without such enhancements.

The choice to recognize a language as an "official language" is itself a decision that makes meaningful participation in governmen<sup>t</sup> and voting more difficult for those who do not speak and read the official language (or languages) fluently. In many countries in Africa, the official languages may be French or English even though those are not the languages most widely spoken by the residents of such countries. In the European Union, for example, English, French and German are given preferential treatment as "procedural" languages although there are twenty-four official languages. Irish was only given the status of an official language in 2007 and was temporarily derogated through 31 December 2021 [62]. The fact that we face this challenge currently is an indicator that it should not be ignored in considering new languages that could be introduced via human enhancements.

<sup>22</sup> "Among the obstacles for poor Philadelphians: Lack of stable housing makes it difficult to depend on the mail and know which address to provide when applying for a ballot to be mailed weeks or months later. Those with limited English proficiency have difficulty navigating the vote-by-mail process, and governmental voter outreach can miss them. Lack of internet service or home computers can complicate requesting ballots or finding key information about them [59]." In addition, a "2020 report by Native American Rights Fund determined that some members of the Navajo Nation must travel 140 miles roundtrip for postal services. Many do not have access to personal vehicles or public transportation to ge<sup>t</sup> them there [60]."

<sup>23</sup> Google Translate purports to support over 100 languages, out of approximately 7000 languages spoken globally. "Odia, the official language of the Odisha state in India, with 38 million speakers, . . . has no presence in Google Translate [61]."

<sup>24</sup> An example from the Canadian period of enfranchisement and disenfranchisement illustrates that the challenges of different languages is not unique to any particular country or region. In the 1800s, one chief grew so frustrated by the use of English at a particular Council of tribes that he "led a break away council with other northern bands" and was "only lured back with the promise of an interpreter [8]."

In enacting requirements to provide certain materials in additional languages as part of 1975 amendments to the Voting Rights Act, the United States Congress recognized that "Through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the electoral process. Among other factors, the denial of the right to vote of such minority group citizens is ordinarily directly related to the unequal educational opportunities afforded them resulting in high illiteracy and low voting participation. The Congress declares that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to the United States Constitution, it is necessary to eliminate such discrimination by prohibiting these practices, and by prescribing other remedial devices."<sup>25</sup> Applying this goal to enhanced and non-enhanced/less-enhanced humans, if certain current or new languages became dominant, a meaningful right to vote would require, at a minimum, that translations be made easily available for the less dominant languages.

A similar additional potential cause of disenfranchisement might be if enhanced humans had such dramatically increased cognitive ability levels that it became practically impossible for the non-enhanced, or less-enhanced to "read" and comprehend the ballots even if they were reasonably fluent in the language itself.

### 2.3.3. Cognitive Ability Requirements

Cognitive enhancements, such as genetic cognitive enhancements via genetic engineering or embryo selection, pharmacological substances, Transcranial Magnetic Stimulations or Transcranial Direct Current Stimulation, or other techniques developed in the future,<sup>26</sup> could become a common method to increase the intelligence of humans before birth or other modifications could be made after birth to the same purpose. In such a situation, it might become normal to include extremely lengthy and complex voting information on the ballot,<sup>27</sup> or even ballot questions themselves (at least in states where ballot questions were permitted). Non-enhanced (or less-enhanced) humans could be unable to even decipher such questions at the polls. If they were not sufficiently enhanced due to lack of financial resources, then it would also be unlikely they would have access and time to peruse such ballot questions in advance.<sup>28</sup> Ballot questions can be challenging currently even for highly educated and intelligent non-enhanced voters. If the "normal" enhanced human had the ability to visually access extensive background on a ballot proposition by visually looking at the equivalent of a "QR code" or through the internet via neural implant, then the ballots might not include the written summary at all, for example to save printing costs and for efficiency. Anyone who lacked the necessary enhancement(s) might not have the ability to obtain such details easily. In an extreme case, they might not even know what they were voting about at all.

Parents in poverty might, at least hypothetically, be more willing than wealthy parents to undertake intelligence or other enhancements for their unborn children even when they were risky. For example, as discussed by Professor Marcelo de Araujo, in initial research by the SIENNA Project, it appeared that "Scientifically and technologically developed countries are not especially supportive of research on human enhancement technologies. ...

<sup>25</sup> For a determination of which minority languages would be covered – see the Federal Register [63]. One goal of the amendments was to clarify coverage of certain racial and ethnic minorities, including members of the "Hispanic" or "Latino" population "who had suffered discrimination in the political process, but whose group status under the law remained uncertain" and "by self-designation or by ascription, often eluded clear racial categorization and transcended strict racial labels such as 'black' and 'white [64].'"

<sup>26</sup> Ref. [65] The work of Professor Nicole A. Vincent and others on neurointerventions and the law is also very relevant to any consideration of cognitive enhancements [66].

<sup>27</sup> For example, ranked-choice voting has been challenging for many voters to understand. "Although no federal constitutional arguments have prevailed in Maine or in any of the other litigation around the country, opponents have argued primarily that it violates equal protection (one person, one vote) and due process (too confusing). Opponents generally attack [ranked-choice voting] on the grounds that it is too confusing and too costly. It requires voters to understand how the votes will be cast and counted, and then to vote accordingly [67]." Future possible voting methods, particularly those developed with the input of a diverse group of enhanced and non-enhanced humans as outlined in Section 3, could, at least in theory, be more complicated by one or more orders of magnitude.

<sup>28</sup> An extremely lengthy and complex detailed "summary" of Ballot Question #1 was offered for voters in Massachusetts in 2018 [68].

Brazil, South Africa, and Poland were most supportive, while the Netherlands, Germany, and France were least supportive of cognitive enhancement technologies [65]." While no definitive conclusion can be reached without a deeper analysis, this disparity at least suggests that it is possible that wealth disparities (either individually or at a country-level) might potentially correlate with the level of support for cognitive enhancement technologies. As one possible example, a positive view of cognitive enhancement technologies, such as by genetic engineering or embryo selection, may, at least in part, be influenced by the desperation of poverty.

What this situation tells us about voting is that if, in the future, the "norm" for the general population becomes humans with physical and/or mental enhancements that make it easier for them to vote through certain processes, then people who lack such enhancements may be effectively deprived of the right to vote unless accommodations are made.

With these examples in mind, it is important to consider a possible ethical theory that could be used as a framework to protect both enhanced and non-enhanced humans from being disenfranchised, to the extent possible.

### **3. Discussion—Human Enhancements and Voting—Responding to the Appeal of the Other**

*"The will of all beings, and responsibility toward all beings (whether voting or nonvoting), shall be the basis of the authority of government; this will, and responsibility, shall be expressed through universal and equal suffrage (directly and/or through representatives) or through such other process and method as may be developed and ratified with the universal and equitable participation of such beings."*

—Draft, proposed Declaration of Rights and Responsibilities of Beings

In Section 2, we considered the phenomenon of voting and particularly how past experience might be relevant for enhanced and non-enhanced humans in a world where human enhancements, whether moderate ("still human") or extreme ("beyond human" or "non-human") were more common. It seemed likely that, based on the history of discrimination in voting rights and disenfranchisement of those deemed "other" or "lesser", long-established patterns of discrimination could impact both enhanced humans and, if those with enhancements became dominant, those without similar enhancements. In addition, distinctions based on ancestry, gender, and even embodiment itself would likely become meaningless artifacts, if they ever had meaning at all, particularly if such characteristics could be changed prior to birth and/or at will—either permanently or temporarily—at any time during the (potentially greatly extended) lifetime of an enhanced human.

In this Section 3, we will explore one possible philosophical framework for voting— an ethics of human rights as outlined by Loidolt that is extended to cover humans with extreme enhancements who may no longer be viewed as "human" by those without such enhancements—as well as to cover humans who may be viewed as so primitive and irrational that they are considered to be "less than" human by the future enhanced humans.<sup>29</sup> Such an extension would admittedly broaden Loidolt's already inclusive framework. However, the goal would be to preserve the core elements of the framework, including retaining the recognition of the impossibility of truly understanding and speaking for the "other." In *Citizen Cyborg*, Professor James Hughes predicted that "the emerging 'biopolitical' polarization between bioLuddites and transhumanists will define twenty-first century politics" [70]. For purposes of this analysis, it is not necessary to predict when, or if, such polarization will in fact occur, but it is important to recognize the possibility of different levels of power, and perspectives, between the enhanced and the less enhanced or non-enhanced.

After a brief introduction to Loidolt's theory of engagement, we will consider how it could translate to universal suffrage for *all* humans—enhanced and non-enhanced—

<sup>29</sup> Much as humans of the 21st century questioned whether Neanderthals were a separate species despite interbreeding with Homo sapiens [69].

regardless of whether they are even still viewed as being human at all. Such an extension could include, for example, all "living" beings and all "conscious" beings as having rights and responsibilities to other beings. In attempting to provide support for this possible extension, we will consider specific criteria that may no longer be appropriate as voting requirements, including "reason"/"rationality" (which potentially impacts restrictions based on gender and age, for example), and physical geographic location within certain political boundaries. We will also consider scenarios where certain groups have an indirect voice through representative voting, in lieu of—or in addition to—direct voting. Finally, applying this extended version of the engagement-based ethical model, we will propose that the entire framework and legal and social structure of what "voting" means should be itself designed with the broadest possible participation, rather than dictated "from the top down." In other words, the humans who have the power at a particular period in time, whether locally, nationally, regionally or globally, cannot legitimately dictate what is best for future enhanced or non-enhanced humans or even for humans who otherwise are disenfranchised or were excluded from participation in the design of the architecture of governance. Such "others" (current or future) should have a voice in the design of the governance structure, and whether and what voting should mean, in order for such structure to have legitimacy. If they were not able to do so originally, there should be periodic opportunities for re-design and re-ratification.

### *3.1. A Brief Introduction to an Extended Theory of Engagement*

One potential theory of engagemen<sup>t</sup> that can be applied to a world of enhanced and non-enhanced humans is offered by Loidolt<sup>30</sup> [1]. By shifting the focus from a set of indispensable needs to the core *responsibility* of meeting such needs through an analysis of the structure of subjectivity, Loidolt outlined two themes that could serve as guidelines for an ethics of human rights in a theory of engagement, which we can extend to voting and human enhancements. The first theme emphasizes the transcendental importance of legitimization and justification in a meaningful world. The second theme seeks to "face the appeal of the other" and determine what is "right" "from a phenomenological first-person perspective instead of the classical 'objective' third-person perspective of reciprocity"31. Loidolt contends that the process of constituting the world is a priori occurring in a context of legitimizing intentionality. Specifically, "the meaning that something is 'right' or has 'a right', is not something that is perceived, but something that is achieved through passing a judgement: By judging something, by the means of implementing a norm or any measure, the meaning of 'right' or 'a right' originates as the formal expression of an 'accordingness.'"<sup>32</sup>

<sup>30</sup> Other possible ethical frameworks would be interesting to explore and likely would be fruitful for the analysis of voting rights and human enhancements, such as Professor Christine Korsgaard's Kantian ethical analysis of duties of humans to animals [71,72]. The work of Professor Simone Goyard-Fabre in combining an approach from Husserl's phenomenology with a Kantian analysis would also be relevant due to the deeply "legal" nature of the analysis of voting rights. Professor Maria Golebiewska provides a thought-provoking analysis in this area [73]. Another interesting framework to consider for voting rights could be Ernst Knapp's philosophy of technology, as proposed by Battaglia as a possible way to look at the "mind-body problem" in the context of a human-machine hybrid "extended mind" by using the "mechanical mind" as an explanatory device [58].

<sup>31</sup> Ref. [1] at 3.

<sup>32</sup> Ref. [1] at 7.

This theory of engagemen<sup>t</sup> is a much stronger version of the suggestion made by Professor Chris Hables Gray in *Cyborg Citizen*: "Along with the realization that no totalizing theory explains everything is the corollary that a number of different perspectives together are capable of creating a better model of reality than any one point of view" [74]. Under Loidolt's framework, there is no utilitarian analysis of what is "better" (and no objective third-person "reality" to be modeled). Instead, the participation of others and consideration of their views is itself *necessary* for legitimization and justification in a meaningful world, even if the end result might later be deemed "worse" under a particular utilitarian ranking model than the result that would have been reached without their participation (assuming, hypothetically, that an accurate empirical evaluation was possible).

Under such a theory of engagement, there is an "intersubjective community of communication" and "being receptive as such" makes humans, as conscious beings, "answer [the appeal of the "other"] in a category of legitimization." Extending this theory to the right to vote and human enhancements, we will ask how, in a world of enhanced and non-enhanced humans, an ethical enhanced or non-enhanced human should answer the appeal of the "other" in the context of the right to vote. In doing so, we will follow Loidolt's guidance and treat "consciousness" not as a "secluded sovereign entity" but instead as "openness as such."<sup>33</sup>

### *3.2. Universal and Equal Suffrage for Enhanced and Non-Enhanced Humans*

As we look toward the future, we can draw inspiration from the response to the horrors of World War II, in which approximately 6 million Jews<sup>34</sup> [75] were systematically murdered by the Nazis. Victims included approximately one million children and teenagers. "Thousands of Roma children, disabled children, and Polish Catholic children were also among the victims. Like their parents, they were singled out not for anything they had done, but simply because the Nazis considered them inferior" and sub-human [76]. After World War II, the Universal Declaration of Human Rights ("UDHR" or "UN Declaration") was adopted. The UDHR was a collective shout of optimism that, by coming together, there would never be a repeat of such atrocities. The dream was that humans could live together in peace and harmony. While recognizing that such goals were not achieved,<sup>35</sup> we can nevertheless seek inspiration from that work in the context of voting rights and enhanced humans and hope for further progress, even if it is incremental and imperfect.

For the current analysis, we will focus on Article 21(3) of the UDHR [2], which states:

*(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.*

In extending the right to vote in a world of enhanced and non-enhanced humans, we will modify Article 21(3) to remove the term "people" and replace it with the more inclusive term "beings". Thus, for purposes of discussion of voting rights in such a context, one possible way to re-frame Article 21 is as follows:

### *"The will of all beings shall be the basis of the authority of government; this will shall be expressed through universal and equal suffrage."*

With the reference to "people" changed to "beings," this framework could be used for extreme human enhancements, where the enhanced human may no longer be recognized by non-enhanced humans as "human" at all, as well as for more moderate enhancements, where the broader community may be oblivious to important differences because they are not readily perceptible or detectable absent invasive testing. Similarly, it would apply to non-enhanced or less-enhanced humans who might be viewed by future enhanced humans

<sup>33</sup> [1] at 8–9.

<sup>34</sup> According to the testimony of Dr. Wilhelm Hoettl in the Nuremberg Trials in 1945 regarding a statement made to him by Adolf Eichmann, Chief of the Jewish Section of the Gestapo: "Approximately 4 million Jews had been killed in the various concentration camps, while an additional 2 million met death in other ways, the major part of which were shot by operational squads of the Security Police during the campaign against Russia" [75].

with extreme enhancements as "sub-human" or otherwise "inferior". In the ethical model we seek to extend to voting and human enhancements, "justice" is "not a self-assured calculation with symmetrical portions of free will, but an urgen<sup>t</sup> conceptual reaction to an overwhelming appeal that can never be adequately responded to."36 Extreme enhanced humans would still have a right to vote as long as they were viewed as "beings" meaning, in a very broad definition, that they were either "living" or they were "conscious". Similarly, non-enhanced/less-enhanced humans viewed as "other" or "lesser", would also have a right to vote as "beings".

In the following sections, we will seek to provide some support for such an expansion, including considering arguments that would retain the requirement of "humanity" for voting rights and therefore could exclude humans with extreme enhancements from voting. Finally, we will acknowledge the concern that an expansion of legal rights to votes broadly to all enhanced and non-enhanced humans could contribute to an unintended consequence that those who lacked power currently could be disenfranchised or otherwise harmed. Since such a harm is possible based on past experience with discrimination against the "other", we will sugges<sup>t</sup> that, under the extended ethical framework being applied, such humans should be involved in any decisions regarding their enfranchisement and indeed the entire voting process and very framework of governance.

### *3.3. Casting a Broad Net for the Definition of "Human" in the Context of Voting*

By intent and express language, the Universal Declaration of *Human* Rights covers the rights of "human beings." Under Article 1, "All *human beings* are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." However, in trying to meet the appeal of the "other" (and indeed the multitude of "others") in the context of voting and human enhancements, we propose to reject "humanity" as a litmus test and instead cast a wider net in defining the "other" as any living or conscious being.<sup>37</sup> We will "recognize the urgency that demands" the impossible and commit to the "rights of the others, ... to equality, dignity etc., with the insight that [equality, dignity, etc.] will have been dependent on that commitment" and with "*awareness* of the imperfection and urgency of the case, thus *alertness* to the disturbing, responsivity to and responsibility for it, while being aware that [the disturbing demands of the others] can never be fully incorporated; and finally *openness* to that universality in progress (or universality to come) that keeps being constituted from the outside."<sup>38</sup> In this context, "disturbing" may perhaps be understood to mean both changing/disrupting the *status quo* as well as troubling/unsettling to the being who is called to respond to the appeal of the "other".

Under this extended ethical framework of engagemen<sup>t</sup> and under an expanded Heideggerian approach, enhanced humans and non-enhanced humans would all be "beings" entitled to certain rights but also with certain duties and responsibilities towards others.

*"Man is not the lord of beings.Manistheshepherdofbeing.*

<sup>36</sup> Ref. [1] at 12 (referencing the work of Emmanuel Levinas, 1978).

<sup>37</sup> "Social robots should not be regarded as proper objects of moral concern unless and until they become capable of having conscious experience. While that does not entail that they should be excluded from our moral reasoning and decision-making altogether, it does sugges<sup>t</sup> that humans do not owe direct moral duties to them." [78] Under an extended ethical theory of engagemen<sup>t</sup> and the new Declaration of Rights and Responsibilities of Beings toward which this Article on voting rights is intended to provide a stepping stone, the goal is to be as inclusive as possible. Ideally, all living beings, whether "conscious" or not (e.g., plant-based life or a human who is in a coma), and all "conscious" entities should be included in the definition of "Beings". Full articulation of the meaning, scope and boundaries for such an inclusive definition, as well as the philosophical basis (or bases) will obviously require significant work. A Kantian perspective of "personhood" and "identity" would be useful to consider, such as that presented by Professor Béatrice Longuenesse: "Kant's criticism of the paralogism of personhood opens the way to to substituting for the rationalist concept a rich and complex concept of a person as a spatiotemporal, living entity endowed with unity of apperception and with the capacity for automomous self-determination." [79].

<sup>38</sup> Ref. [1] at 13.

### *Man is the neighbor of being"<sup>39</sup>* [80]

Heidegger struggled with anthropocentrism, eventually concluding that "until we arrive at a fuller understanding of the nature of world, we cannot pass judgement on the ultimate legitimacy of his conception of the animal as *poor in world*. Only then can it be determined whether there is "poverty in the animal's specific manner of being as such", or if such poverty obtains only in comparison to *Dasein*" [82,83]. In our extended ethical theory of engagement, we propose that it is not legitimate to deprive any enhanced or non-enhanced humans of voting rights while we await a "fuller understanding of the nature of the world." Instead, we will value *beings* in the lower-case versus the "Dasein" of Heidegger (with Dasein meaning roughly a *human* being "there"—totally immersed in the world of other things—a "Being-in-the-world"). An essential element of such an equitable approach is an awareness that there is an inherent risk of error any time one being represents another being or purports to understand what another being wants or needs. Indeed, Heidegger may have underestimated the depth of the "Abyss" between humans while overestimating the depth of the "Abyss" between humans and animals.<sup>40</sup> Thus, a sufficiently "full" understanding of the nature of the world, such as that contemplated by Heidegger, may be impossible to achieve. As Loidolt explained, we must try to "realize the intentional movement of reason towards complete legitimization: even if it cannot be achieved, legitimizing intentionality can not stop at an unjustified benchmark, but transgress it necessarily with critique"41.

Such an extended ethical approach of course requires explicitly rejecting the antisemitism and other arbitrary biases that permeated the philosophy of Heidegger—and Nietzsche—and seeking a commitment to respect for others. In his provocative concluding paragraph of his article in this Special Issue, Warwick draws from Nietzsche to speculate about a possible bleak future for non-enhanced humans: "The fundamental philosophy that underpins the concept of the future relationship between superhumans and humans comes straight from Nietzsche. We need to look no further than humans' present-day relationship with other animals. Humans cage them, destroy their habitat and treat them as captives, slaves or pets. Thus, if we look to the future, the best that a human could hope for might be that they become the pet of a superhuman." [42].

Surely we can *hope* for better than this. We can attempt to design an ethical structure of voting rights and responsibilities to reflect such aspirations while also considering the existing realities of imbalances in political power and other relevant factors. As an example, the brutal legacy of years of systematic discrimination has led to widely disparate income, education, health, medical treatment, access to housing, credit, incarceration, job opportunities and death (including killings by law enforcement agents) for people of color in the United States.<sup>42</sup> Voters (and their elected representatives) should consider not only their own interests but also their responsibility toward other beings, particularly those who cannot vote or whose votes may "count" for less than those in power. While it is theoretically possible that an enhanced human might have the ability (and will) to control other beings without voting or control others in voting, we should not automatically assume that is what would happen. An enhanced human might also have greater compassion and empathy, as well as improved emotional intelligence such that they would not wish to use their power in that manner. Any human, with any level of abilities or power, is capable

<sup>39</sup> Ref. [80] In applying any phenomenological approach that may have been influenced by the works of Heidegger, it is important to explicitly acknowledge the deep-rooted antisemitism in Heidegger's philosophical views. For a powerful rebuttal of the idea that Heidegger's antisemitism can be easily separated from his philosophical viewpoints, see Professor Donatella Di Cesare's work [81].

<sup>40</sup> "Although at one time exploring the proximity between the human and the animal, Heidegger later claimed that an *abyss* separates the human from the animal." [84] at 110 (citations omitted).

<sup>41</sup> Ref. [1] at 18.

<sup>42</sup> For example, in 2017, the median net worth of Black residents in Boston was *\$8* versus \$247,500 for whites [85]. Also, "Black female restaurant workers in Massachusetts make on average \$7.79 less per hour—including tips—than white men in the same positions, which amounts to 60 percent less" [86]. As just one example that discrimination and violence based on skin color is not limited to the United States, see an example from France [87].

of doing good or evil. Adolf Hitler was able to do grea<sup>t</sup> evil without enhancements, and Nelson Mandela was able to do grea<sup>t</sup> good without enhancements. Applying an ethical theory of engagement, the appropriate response to the possibility of a hypothetical future sociopath having tremendous power is not to abandon any path toward self-determination. We take that risk now—and likely that will be the case whatever form of governmen<sup>t</sup> we establish for future enhanced or non-enhanced humans.

A more fundamental challenge to enfranchisement of "beings" than the spectre of a super-powered tyrant may be the view that humans are innately and metaphysically superior to all other beings. Such an objection could be based, for example, on the contention that there is inherently a hierarchy of species and that any broad approach that allows enhanced humans who are viewed as being more animal than human, more plant than human, or more computer than human to be treated as "human" upsets the proper hierarchy. The view that "pure" humans are of special and unique value higher than any other living being—whether conscious or non-sentient—is deeply entrenched in many widely-respected philosophical, scientific and religious frameworks.<sup>43</sup> Someone who holds that view may well feel that a human who has an extreme enhancement (either prior to birth or after birth) is not a human at all, or is *less-than* human. In that case, the extension of the right to vote to such an enhanced human likely would be rejected as the extension of the right to vote to non-human animals and to plants or other life forms would also be denied. Such a rejection need not be made callously or with indifference to others. Representation alone, as outlined in Section 3 below, could be viewed as sufficient to respond to the appeal of the "other" even under an ethical theory of engagement. However, in this analysis we are pushing the definition of "other" to reach beyond "humans" in the context of extreme human enhancements. This is a fundamental difference in perspective. In order to support this expansion, we will consider some of the reasons typically given for excluding animals<sup>44</sup> from having the same rights and responsibilities as humans, and express concern about their validity and the danger that they can be used as a proxy for improper discrimination (including against other humans). However, the core philosophical differences will not be reconciled in the analysis herein, and it is not clear that they are capable of reconciliation.

### *3.4. A Provisional Rejection of Ranking Systems/Hierarchies*

One of the problems with any hierarchical approach, which is particularly acute in the context of enhanced humans, is that it is challenging to articulate meaningful ranking criteria that can withstand scrutiny and that do not naturally lead to individual humans being further ranked and excluded from voting. In addition to being pretexts for racism, sexism, classism, etc., ranking systems of the past have turned out to be factually false or absurd. For example, Plato felt that walking upright was a key distinguishing feature of humans. Darwin considered that bipedalism represented evolutionary advancement. However, it is difficult to see why walking upright is intrinsically a high value physical trait, or even that it is unique to humans.<sup>45</sup> From a value perspective, is walking upright better than flying, running fast like a Cheetah, or having an extremely precise sense of smell like a dog? Why is one physical trait inherently better than another? Second, once one establishes any form of ranking criteria, there is a natural tendency to further rank within each category. For example, if a human cannot walk upright at birth, or at some point during their lifetime due to a physical challenge, are they no longer human or less

<sup>43</sup> Also, in certain religions. For example, Genesis 1:26 "Then God said, 'Let us make humankind in our image, according to our likeness; and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the wild animals of the earth, and over every creeping thing that creeps upon the earth.'" For an alternative interpretation, see the work of Professor Ryan Patrick Mclaughlin, who proposes that, under one credible reading of Genesis, "human dominion" should be "peaceful and other-affirming" [88].

<sup>44</sup> Although the present ranking discussion focuses on animals, a typical reason given for excluding computers (even ones that can communicate in a manner that is difficult to distinguish from an actual human) is that they lack sentience. In other words, they are neither conscious nor self-aware.

<sup>45</sup> "If an ape who stands upright (even with the help of a mobility device) can be seen as more human, what happens to humans who do not or cannot stand upright? Monkey-like posture was one of many simian characteristics used to dehumanize people of color, particularly people of African descent, from the seventeenth century on." [3] at 86-87 (discussing illustration from 1699 of an ape standing erect with a walking stick).

than other humans at that point? If so, the famous physicist Dr. Stephen Hawking was not human (or was less than human) once he could no longer walk upright. Such a conclusion would not be acceptable even under the current version of the UDHR.

We will consider in more depth two other potential candidates as requirements for voting rights under the expanded version of UDHR and as potential justifications to retaining the requirement of "humanity" for voting rights for enhanced and non-enhanced humans—"reason" (also referred to herein interchangeably with "rationality") and "dignity". Both terms are used in Article 1 of the UDHR<sup>46</sup> and are frequently used in ethical theories relating to differences between humans and others.

### 3.4.1. Rejection of "Reason"/"Rationality" as a Voting Requirement

As discussed above in the context of a history of discrimination, the "ability to reason" and "rationality" have often been put forth as a purportedly neutral and objective requirement for voting rights. Aristotle viewed humans as the only rational beings. If only humans are rational, and if rationality is essential for voting, then perhaps enhanced humans who are more animal than human, more plant than human, and/or more machine than human should be excluded from voting?

One problem with this approach is that the definition of "reason" or "rationality" is key and it is not automatically clear what such terms mean in the context of voting rights and responsibilities of enhanced and non-enhanced humans. Does "rationality" mean the ability to think logically? If so, at an advanced level such as Aristotle demonstrated? If we have enhanced and non-enhanced humans, should all voters be tested on basic logic and, if they fail, be disenfranchised? If only some voters are tested, then the potential for discrimination based on improper categories is high. Also, why should logical thinking be of greater importance than creative thinking or compassionate thinking when it comes to voting? Should a human who excels at logical thinking or mathematical computational abilities be valued more than another human who cannot perform as well? When will the testing for such abilities be administered, by whom and on whom? Or, is "reason" only an ability to understand cause and effect in one's daily life? Many animals can understand cause and effect. Otherwise they could not be trained by humans.<sup>47</sup>

Returning briefly to the example of gender that was discussed in Section 2 above, we can perhaps uncover even more that may be relevant to the potential requirements of "rationality" or "reason" in voting in a world of enhanced and unenhanced humans in examining the argumen<sup>t</sup> that "*Women have the right to vote, for instance, because they are just as capable of making rational decisions as men are.*"48 This statement assumes that "rationality" is part of the act of voting, when observation of the phenomenon of voting reveals that "[t]he separateness of vote and decision decouples any pretence of rationality from the decision. It makes little sense to talk of rational democratic decisions, although we may approve of decisions for other reasons. Nor will you find support for rationality within the events leading to the decision. The naïve account of events is that the participants think about each specific decision with the penetration of Socrates and stand by their rationally derived conclusion with commendable integrity. Observe voting and you will see that the vast majority of decisions are preceded by inadequate and contradictory thought, much of it around matters that are peripheral to the specific content of the decision to be taken.

<sup>46</sup> "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."—UDHR Art. 1 [2].

<sup>47</sup> And as many people with pet cats and dogs can attest, animals also can train their humans to behave in a manner desired by the animal at a particular time, in response to a particular prompt from the animal.

<sup>48</sup> See Singer's work in [33] at 148–162 (describing an initial possible response to Thomas Taylor's satire of Mary Wollstonecraft's "Vindication of the Rights of Women" in 1972—"A Vindication of the Rights of Brutes").

With equal claim to rationality politicians may determine to vote in accordance with their constituents' wishes, higher economic theory, or their perceived personal self-interest."<sup>49</sup>

Also, are all *men* who have the right to vote capable of making "rational" decisions? Should "rationality" even, in a naïve account of events, be an essential condition for having a right to vote, versus empathy for others, compassion, generosity or some other quality or quantity? If it were possible to enhance humans so that they were able to make better moral decisions, [90,91] should the votes of such enhanced humans be given greater weight? At a more basic level, what is the meaning of "male" or "sex" in the context of voting, given that one hopes that genitalia are neither involved in nor displayed when a being votes? Similarly, the argumen<sup>t</sup> that "*dogs, on the other hand, are incapable of understanding the significance of voting, so they cannot have the right to vote"* assumes that it is an essential requirement to "understand the significance of voting" in order to have a right to vote [33].

In addition, "rationality" has been used as the basis to deny the right to vote to those under a certain age. In the United States, the right to vote in federal elections was lowered through the Twenty-Sixth Amendment XXVI—which changed the minimum voting age from 21 to 18 years. Are humans under 18 not "rational"? One argumen<sup>t</sup> for why those under 18 do not have the right to vote is that their brains have not developed to the point that they can weigh risks "rationally" with an "appropriate" level of conservatism [92]. But people under 18 are part of the population and have good reason to be concerned about choices made by members of an elected body who do not reflect their views and interests. Also, as described above, based on the past and current use of testing for intelligence or knowledge, we should be very skeptical that such cognitive capacity requirements would be applied in a non-discriminatory manner when enhanced humans and non-enhanced humans are involved. If a human could change their physical age via enhancements—at will—and/or increase their cognitive capacity at will, then it is not clear that their actual date of birth would be particularly relevant to their right to vote (if it ever was relevant). Potentially, "age" requirements for voting could be eliminated, particularly in a world where enhanced humans were common.<sup>50</sup>

Fundamentally, is not clear that voters really need to "understand the significance" of voting in order to have a right to vote in a theory of engagemen<sup>t</sup> that requires responding to the appeal of the other. "A part of the myth of democracy is that it requires higher thought processes and rationality" [89]. To exclude an entire class of enhanced or non-enhanced humans on the ground that they could not "understand the significance of voting" could easily lead to other exclusions that have been used to discriminate in the past (and in the present), such as a requirement that voters have at least a certain level of formal education or that applicants for citizenship, and therefore the right to vote, pass certain tests.<sup>51</sup> For example, American suffragist Elizabeth Cady Stanton argued that (white) educated women were more deserving of the vote than "ignorant" men, including many formerly enslaved people, working-class people and immigrants [93]. Intentionally drawing on racist stereotypes, she explained: "Think of Patrick and Sambo and Hans Yung Tung, who do not know the difference between a monarchy and a republic, who can not read the Declaration of Independence or Webster's spelling-book, making laws for Lucretia Mott, Ernestine L. Rose, and Anna E. Dickinson [94]."

Similarly, by this argument, cognitively enhanced humans might perhaps deny the right to vote to those without enhancements. In rejecting artifactual and frequently discriminatory distinctions such as "rationality" and "reason", we propose that even enhanced

<sup>49</sup> Ref. [89]. An alternative model of representation is offered by the Japanese Constitution, where Members of Congress are given the role of "representatives of the whole citizenry", which is understood to mean (1) "a congressman/woman is not a representative of each electoral zone, but a representative of all Japanese nationals" and (2) "he/she is not bound by voters in each electoral zone or by his/her supporters' organization." Ref. [9] at 35 (discussing Article 43(1)).

<sup>50</sup> One of the obvious enhancements that is currently sought out via plastic surgery and cosmetics is to change one's age.

<sup>51</sup> Should voters be required to pass a test for drug or alcohol impairment on the day they cast their vote? Screening for mental illness? If so, which types of mental illnesses? Depression? Who would decide and how would adminstration be executed in practice in a non-arbitrary and non-discriminatory manner?

humans who are seen as more animal than human, more plant than human, more machine than human or not even permanently embodied at all (or changing between such forms at will), should still have a right to vote.

In considering voting rights in a world of enhanced and non-enhanced humans, it is critical to strive to apply the rights and responsibilities of beings carefully, with due consideration of systematic injustice or harm that can result from stereotypes of from treating any beings or group of beings as "other" or "lesser." The way that a particular right is applied to a particular being in a particular context can and, in many cases, should vary based on the nature of the being but any variations should be equitable and grounded in respect for the fundamental autonomy of each being. Respect for "dignity" of humans (enhanced and non-enhanced) is a core part of the proposed extended ethical framework under consideration. We commit to the "rights of the others, commit to equality, dignity etc., with the insight that [equality, dignity, etc.] will have been dependent on that commitment."52 However, that does not mean that some assessment of "dignity" of any individual human or a particular type of enhanced or non-enhanced human is a requirement for voting rights.<sup>53</sup>

### 3.4.2. Rejection of "Dignity" as a Voting Requirement

Moving beyond "rationality" or "reason", should "dignity" instead be a key ranking requirement? If so, what do we define as "dignity"? Who defines it? Why should we assume in advance that animals do not have any dignity or that if they do their dignity is less than that of a human? Or, in the context of human enhancements, why would we predict that there is some threshold at which an enhanced human is "more animal than human"<sup>54</sup> or "more machine than human" and then are no longer humans at all?<sup>55</sup> Who would determine when such a threshold was reached and how would they do so?

The definition of "dignity" should not be based on physical abilities or it is just an extension of bipedalism. A human being who is in a wheelchair and needs assistance to go to the bathroom, to dress and undress themselves, and to feed themselves is not less "dignified" than another human who can engage in such activities without obvious assistance. As Taylor convincingly explains, the "independence" and self-sufficiency of those viewed as "able-bodied" is a myth [3]. Interconnectedness and mutual dependency on other beings (humans and animals) is the true norm. Even people who are not viewed as "disabled" need assistance from others to engage in all of these activities. Unless someone is living "off the grid" and hunting for their own food with a weapon they made themselves, skinning it with a knife they made themselves, cooking it on a fire they made with wood they gathered, making their own fabric and clothes, and building and maintaining their own sewer system, they are benefiting from the extensive help of many other humans on a daily basis (and they are highly and obviously dependent on animals, plants and nature). Often the others upon whom we depend are an invisible population of those viewed as "lesser"—such as immigrant agricultural workers in the United States and the Dalits in India who perform the dirtiest jobs such as cleaning sewers and taking away dead animals [97]. Are they less "dignified" in a ranking or hierarchy? If so, is that because of something innate or inherent in the world or because the societal choices have been made systematically for hundreds of years, both intentionally and unintentionally (by people with the privilege of being allowed to be oblivious to the needs of others who are less powerful), to treat such people as "lesser" and to make their daily life more difficult than necessary, such as by designing curbs to be inaccessible to wheelchairs versus sloped, or by

<sup>52</sup> Ref. [1] at 13.

<sup>53</sup> As discussed in Section 3 below, representative voting is an available option, such as for a human that is mentally incapacitated to such a severe degree that they are incapable of expressing their wishes, or is unconscious (for example in a coma).

<sup>54</sup> This can be especially challenging when humans already have substantial overlap with animals, as outlined by Professor Jacques Derrida [95].

<sup>55</sup> For example, Professor Francis Fukuyama expresses concern that one of the potential effects of biomedical advances is that humans may be altered beyond recognition and this could have negative effects on the belief that human beings are equal by nature [96].

preferring stairs versus ramps in building designs? These choices were not necessary for any reasons related to the "natural" world.

Should "dignity" instead be based on caring for others and having compassion? If that is the case, many animals have demonstrated that they care deeply and intensely for others, including members of their own species and of other species. For anyone who has never seen a pet mourning the loss of an owner or companion, there are a multitude of examples of animals showing compassion and care for others, including, as just a few examples, dogs comforting humans who are struggling physically and/or emotionally, elephants visiting the home of a conservationist who had worked to help them after his death,<sup>56</sup> or Koko the gorilla who could communicate with humans through sign language and grieved when her companion cat died. "[W]hen [her companion kitten] died in 1985 after being struck by a car, Koko pretended she didn't hear her handlers for about 10 min after they told her the news. Then, she started whimpering. She signed 'sleep cat' by folding her hands and placing them by the side of her head. Researchers gave her a stuffed animal, but she wouldn't play with it and kept signing: 'Sad'" [99]. Recognizing that animals do have compassion and caring for others does not mean we should assume that they are the same as enhanced or non-enhanced humans.<sup>57</sup> Such a view would be inconsistent with the ethical framework of responding to the appeal of the "other" because it would deny that there was anything new or different that the "other" might tell us or include in their appeal. Instead, recognizing that animals have "dignity" (if that is defined as caring or compassion for others, for example) means that it is not ethical to deny the right to vote to enhanced humans even if they are considered to be "more animal than human" or to deny the right to vote to non-enhanced (or less-enhanced) humans if, in the future, humans with extreme enhancements considered such beings to be "sub-human."

Article 1 of the UDHR sets out the overarching principle that "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." This should most properly be read as a normative or prescriptive, aspirational statement rather than a reflection of some objective reality. It is difficult to imagine any country or even any city or town in the world in 1948 where all humans were actually born with equal rights. The drafters of the UDHR were certainly aware of differences in rights of humans. We have seen from the examples in Section 2 above that pretending that every human is, in practice, equal (and is treated equally) in voting rights and ability to vote is to deny the existence of racism, classism, sexism, ageism, caste systems etc. Voting rights that are granted and designed in denial of the impacts of systemic racism, for example, will fail in practice to achieve anything close to "equal" votes.

In extending the right to vote in a world of enhanced and non-enhanced humans, we have modified Article 21(3) to remove the term "people" and replace it with "beings." For someone who views humans as intrinsically higher than all "others", or for whom only humans should be ethically entitled to vote, then they *might* be willing to accept this expansion if the term "beings" is defined to require, in the context of human enhancements, only that the candidate for enfranchisement was at some point in time a non-enhanced human or descended from a non-enhanced human in order to qualify as a "being". Or they might reject the change altogether and insist that the right be limited to enhanced humans who are still genetically predominantly *Homo Sapien* based on their DNA. In other words, more human than anything else. However, this is not a truly satisfactory solution in the extended ethical framework of engagement. Such a distinction seems uncomfortably close to gender-based and ancestry-based biases such as a law prohibiting children from inheriting citizenship (and voting rights) from their mothers. This was the law in Iran until 2019 and is still the law around the world, where "25 countries bar women from

<sup>56</sup> "Nonhuman animals are amazing beings. Daily we're learning more and more about their fascinating cognitive abilities, emotional capacities and moral lives" [98].

<sup>57</sup> For an additional approach, see the work of Professor Lori Gruen [100].

passing citizenship to children, while more than 50 have other discriminatory nationality laws such as those that, for example, permit only men to pass on citizenship to a foreign spouse," according to the United Nations High Commissioner for Refugees [101]. It also seems too much like a species-biased<sup>58</sup> (and organic/biologically-skewed) counterpart of the so-called "Grandfather Clauses" used to deny the right to vote to former slaves and their descendants. As mentioned in Section 2 above, voting restrictions based on ancestry are often explicitly designed and enforced to disenfranchise those deemed "lesser" or "other" and privilege those who were already "grandfathered" in as voters. "The phrase 'grandfather clause' originally referred to provisions adopted by some states after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, *while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867*" [30].

The intended definition of "beings" in the revised Article 21(3) should extend to animals, plants, inorganic intelligence (such as AI+) and even extraterrestrial "beings" (if any existed and for some reason wanted to vote) who never were human and who never descended from humans. The core minimum requirements for qualification as a "being" under Article 21(3) definitely warrant a deeper consideration if they are expanded as intended to respond to the appeal of the "other" (defined broadly). However, for purposes of discussion as an initial proposal, the minimal requirements for voting could be "life" or "consciousness." If a being is *either* "living", even if unconscious or largely plant-based, or "conscious," including animals or an AI+ where the being might have no organic embodiment and could, for example, be sentient and machine-based, such a being would be entitled to a right to vote under our extended ethical framework. However, due to lack of consciousness or lack of communications abilities, such voting might, in practice, need to occur via a representative as discussed in Section 3 below.

In the ethical framework of engagemen<sup>t</sup> and responding to the appeal of the other, there is no search for a fixed objective third-person reality where one would measure "dignity", "reason," or "conscience" in order to determine if the "other" had the right to be heard, and if the being who was attempting to respond had a responsibility to do so. The goal is to intentionally "see" those beings who are "other" and "hear" their voices as much as possible, recognizing that any being (enhanced or non-enhanced) will inevitably not fully understand the views and needs of other beings in the same category (because each individual being is unique), much less those in a different category, but must nevertheless try to do so as it is better than the alternative. The result will be flawed and imperfect, but it has the potential to be more legitimate, from an ethical perspective, than the other path where beings are ranked based on certain traits that are difficult to define, potentially false and/or artifactual, and that is particularly the case when the highest valued traits typically turn out to be traits the being doing the ranking possesses.

### *3.5. Potential Backlash against Humans Who Are Currently Disenfranchised*

One important possible objection to the approach of universal and equal suffrage for all enhanced and non-enhanced humans is a concern that broadening the definition of "beings" who have rights (and to whom other beings have responsibilities) may, in practice, dilute or diminish the current rights of those without power (or with less power), such as minority groups. One of the arguments made by those who opposed giving women the right to vote in the United States was that women would, in practice, lose the benefits of their "exalted" positions if they were given the right to vote, and they would, as a result, ge<sup>t</sup> less protection.<sup>59</sup> The Nazis had strong animal protection laws and ye<sup>t</sup> gave no such consideration to human beings they deemed as "lesser" or "other" [104]. Early Europeans

<sup>58</sup> As Professor Alice Crary proposes, "the plain fact of being human is morally significant but the plain fact of being an animal is so as well." Ref. [102] at 122.

<sup>59</sup> "To man, woman is the dearest creature on earth, and there is no extreme to which he would not go for his mother or sister. By keeping woman in her exalted position man can be induced to do more for her than he could by having her mix up in affairs that will cause him to lose respect and regard for her [103]."

used systems of classification to justify colonialism by "highlighting the human character of apes while emphasizing the purported simian qualities of Africans."<sup>60</sup> In Canada, male members of certain indigenous peoples who were deemed "civilized" (in part by virtue of owning land but also, depending on the time period and the law, by passing a test showing they could read and write in English) were given the right to vote in 1886 in pursuit of an express goal of assimilation. This was opposed by certain tribal leaders, who correctly predicted that it would lead to increasing political division within their own nations, on political party lines, and ultimately a loss of sovereignty and further loss of land. In just over a decade, "as the franchise expanded, settler politicians expressed the growing popular racism that presumed Indians could never be civilized—at least not without the radical process of removing children to assimilate them at infancy into white society."<sup>61</sup> As a result, in 1898 the right to vote was revoked for all "persons of Indian blood" (which was defined even more broadly than the definition of "Indian" men under the Indian Act).<sup>62</sup> "Over the twelve years from the creation of the Indian franchise in 1886 to its revocation in 1898, the early Victorian dream of the transformation and assimilation of Indigenous peoples as respectable Christian subjects gave way to a cynical idea of segregation under the permanent regime of the Indian Act. (Only children would be excepted under a radical new program of forced separation and assimilation in residential schools.)"<sup>63</sup>

It is impossible to guarantee—or even predict—a particular result at a particular time in a particular country or region, or the world as a whole, if enhanced humans (as broadly defined as possible) are given the right to vote on an equal basis with non-enhanced humans and with other enhanced humans. While the ethical framework of responding to the appeal of the other is not a utilitarian analysis, harm to the other is of course important to consider. There is a real possibility that broad enfranchisement could, in a practical effect, lead to an objectively "bad" result of disadvantaged groups of humans, whether enhanced or non-enhanced, being further harmed—and in an extreme scenario depriving them of any right to vote at all (as happened in Canada in 1898) and to attempted genocide (as in the Holocaust). The fact that there were other considerations at play, such as the desire to appropriate land or other property, and that the gran<sup>t</sup> of the franchise right was not the *sole* cause of the harm would not make the damage any less real. Thus, the goal of responding to the appeal of the other should mean giving such being (enhanced or nonenhanced) the opportunity to participate in the choice of whether or not they should have the right to vote and what that will mean, as well as in the very structure of governmen<sup>t</sup> itself and what "voting" even means. Even if the intention of granting enfranchisement broadly to all types of enhanced and non-enhanced humans is good, if it would have a detrimental effect on a particular group that harm (and concern) should not be ignored. We will outline the application of a participatory engagemen<sup>t</sup> model to the design of voting and governance structure further below in Section 3.7. First, however, we will offer an additional example of representative voting that may be useful to include in such a process as a way to give a form of vote to those enhanced or non-enhanced humans who are not able to vote directly, and as a way to promote/amplify the voice of those who have been disenfranchised historically or who are otherwise less powerful than the dominant group (whether enhanced or non-enhanced humans).

### *3.6. Representative Voting Instead of—or in Addition to—Direct Voting*

To provide the option of representative voting in a world of enhanced and nonenhanced humans, one possible way to revise the new draft of Article 21 is as follows:

<sup>60</sup> Ref. [3]. But it is unlikely that the *cause* of the Nazi mistreatment of other humans was that they respected animals. Similarly, the *cause* of the English colonial mistreatment of the African population was not that they respected apes. There were more complex factors at play, including greed. Among other things, the Nazis wanted what they saw as the wealth of the Jews and they took it. The English wanted the wealth of Africa—and they took it.

<sup>61</sup> Ref. [8] at 32.

<sup>62</sup> Ref. [8] at 34.

<sup>63</sup> Ref. [8] at 35.

### *"The will of all beings shall be the basis of the authority of government; this will shall be expressed through universal and equal suffrage, directly and/or through representatives."*

Most current governments with some form of democratic component rely on elected representatives to vote on particular laws or regulations. This is, in part, due to practical considerations. A governance concept of democracy "emerges from a particular imperative: there is paraphernalia required to make practical those decisions rendered by democracy. Accordingly, there emerges the modern distinction between governance with management, which is a tolerable version of the distinction between those with the ability to vote and those with the ability to dictate" [89]. In such models, it is important not to let ostensible considerations of efficiency obscure some elements of elitism that may be present in the representative model,<sup>64</sup> particularly where significant wealth and privilege in a particular society is needed to even have a chance to become a viable candidate for election and then to serve in that role, with all the costs that may entail, often including maintaining two residences, one in the home state or jurisdiction and one in the capital or other location where the legislative body meets. Similarly, it is important that the elected representatives remain responsive to their constituents. "Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power" [106]. For purposes of the analysis of human enhancements and voting however, we will consider a different type of representative voting—representative voting for an elected representative where the votes themselves are cast by representatives of the individual voters.

Representative voting adds an additional layer between the individual "being" for whom the vote is cast by a representative of such individual and the actual elected governmental representative. Such individual being is not actually casting a direct vote for the elected representative. Another being, or group, instead casts the vote on behalf of the individual voter. An example of one representative voting model is the Electoral College system for electing the President in the United States. A small number of electors for each state actually cast the vote for the President that will be counted, and the electors who cast such votes (who are selected by their political party) is determined based on the political party that "won" the direct votes in the state—in other words it is (generally)<sup>65</sup> a "winner take all" system where the individual votes for President for the political party that did not receive a majority of the individual votes overall are disregarded in the final electoral vote total for the state. Although it is rare,<sup>66</sup> this structure means the President that wins the election based on the Electoral College votes could have had the minority of the direct individual votes as a whole for the country. The system is intended to be strictly representative (by political party). Indeed, the United States Supreme Court has unanimously rejected the argumen<sup>t</sup> that by requiring that electors "vote" and "by ballot", the Framers of the Constitution intended that the electors' votes would reflect their own judgments versus those of their political party.<sup>67</sup>

Another option for representative voting for a particular individual being who is not able to communicate effectively could include appointing a representative who can vote on behalf of such being. In the United States, such a representative often plays a role in court proceedings involving young children, such as a custody dispute or parenting plan in the event of a divorce, or in cases involving abuse or neglect of a child. There are two different

<sup>64</sup> John Stuart Mill offered a classic argumen<sup>t</sup> in favor of representative governmen<sup>t</sup> [105].

<sup>65</sup> Maine and Nebraska are exceptions and allocate one elector per district.

<sup>66</sup> In the elections of 1824, 1876, 1888, 2000 and 2016 the Electoral College winners lost the popular vote. In 1824, no candidate received the majority of the electoral votes and the election was decided by the United States House of Representatives.

<sup>67</sup> The *Chiafalo v. Washington* U.S. Supreme Court decision related to the so-called "faithless electors" who were fined by the State of Washington for not voting according to their party affiliation in the 2016 Election, as required by state law. The Court upheld the fine [107]. However, even the Electoral College does not attempt to represent the will of all United States residents. For example, residents of permanently inhabited United States territories such as American Samoa, Guam, the Northern Mariana Islands, Puerto Rico and the United States Virgin Islands cannot vote (either directly or indirectly) for the President and Vice President of the United States.

models for this representative role—"guardian ad litem" and "attorney for the child*"*, also called guardian for the child. In the "guardian ad litem" model, the guardian is appointed "ad litem", roughly meaning, appointed "for the lawsuit" or "for the action", and typically is required to represent "the best interest of the child" [108]. In such cases, considerations of the "best interest of the child," may include, for example and without limitation: "(1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (13) the child's cultural background."<sup>68</sup> In the second model, the attorney for the child has a different role, as they are assigned to represent the child's wishes and advocate for their behalf. For example, in an abuse case the child may wish to stay with the abusive parent or may wish to at least have visits with such parent (including if the parent is incarcerated). The attorney for the child shares those wishes with the court and advocates for those wishes, even if the attorney personally thinks they are *not* in the best interests of the child.<sup>69</sup> In an ethical model of engagemen<sup>t</sup> that involves attempting to respond to the appeal of the "other," the "best interests" model is less preferred than the model where a voting representative advocates for the wishes of the particular being they represent.<sup>70</sup>

For children and voting (versus lawsuits), in theory the parent or legal guardian could represent the child and cast a vote on their behalf. That is attractive for efficiency purposes but it is not clear that the parent or guardian would represent the child's wishes versus what they thought was best for the child. For example, a parent may be less concerned about climate change and voting for a candidate who is a strong environmentalist than their child (or children).<sup>71</sup> And, moving beyond the example of children to consider the large scale needed for voting in a world of enhanced and non-enhanced human voters (and "beings" broadly defined), there may be too many beings who need representatives for each such being to have a dedicated voting representative appointed individually (at least absent future human enhancements that could make that possible). Thus, a "guardian ad litem" type of voter representative speaking for the best interests of their assigned beings when casting votes could be appointed for *groups* of beings. In that role, they might have a responsibility to speak only for their particular group members, roughly along the lines of the electors for a particular political party in a state, as in the United States Electoral College framework. Alternatively, a framework could be used that was

<sup>68</sup> Connecticut General Statutes Section 46b–54(f) includes numerous factors, many of which are specific to a custody dispute or an abuse or neglect proceeding, but the general structure of the provision may be helpful to see an example framework that could be applied in voting: "[Sec. 46b–54](f). When recommending the entry of any order as provided in subsections (a) and (b) of §46b–56, counsel or a guardian ad litem for the minor child shall consider the best interests of the child, and in doing so shall *consider, but not be limited to, one or more of the following factors*: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; ... (13) the child's cultural background; Counsel or a guardian ad litem for the minor child *shall not be required to assign any weight to any of the factors considered*." (emphasis added) [109]

<sup>69</sup> Ultimately, the court determines what is in the best interests of the child, in both the guardian ad litem model and in the attorney for the child model. And, in the approach taken in the Connecticut statute, the attorney for the child should also consider the best interests of the child so the role is actually more nuanced than presented in the text above.

<sup>70</sup> The guardian ad litem model and the advocate for the child model are still embedded in an "authorities framework" that "focuses too narrowly on state and parental control over children, reducing children's interests to those of dependency and the attainment of autonomy" [108]. "In place of this limited focus, we envision a "new law of the child" that promotes a broader range of children's present and future interests, including children's interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, responsibilities, and rights that aims to transform how law treats children and their interactions with others" [110]. Based on the discussion in Section 3.7 below, a fresh look and potentially a new ratification of the governance framework itself would be appropriate where newly enfranchised voting beings such as children were not able to participate in the design of the original governance structure and what voting means.

<sup>71</sup> "The UN Convention on the Rights of the Child (CRC) articulates children's rights to be heard and to participate in decisions that affect them. In spite of widespread ratification of the CRC, and the recognition of youth as a major stakeholder group with the right to participate in conversations related to climate change, children have not been adequately included in climate change decision-making at a global level, and attempts to facilitate their participation have rarely been more than tokenistic." Ref. [110] at 104–114.

similar to the Japanese Constitutional approach in which Members of Congress are given the role of "representatives of the whole citizenry", which is understood to mean (1) "a congressman/woman is not a representative of each electoral zone, but a representative of all Japanese nationals" and (2) "he/she is not bound by voters in each electoral zone or by his/her supporters' organization."<sup>72</sup>

Representative voting can be used to dull the impact of a particular group of humans (enhanced or non-enhanced) by giving them less of a proportional vote, and having a representative "speak" for another "being" inherently increases the risk of errors (intentional or unintentional) in even understanding what the original being wants. Thus, representative voting should be used with caution. For example, in a world of enhanced humans with extreme enhancements, such as the ability to clone/duplicate themselves at will (whether biologically, digitally or some combination thereof), representative voting might be an attractive approach proposed by other humans to avoid having such enhanced humans dominate the voting process by sheer numbers, and thereby deny effective participation to other humans. Before jumping to that "solution" to a hypothetical problem however, it would be important to consider the circumstances more carefully (and to ge<sup>t</sup> the views of the enhanced humans with such cloning/duplication abilities before making any ultimate decision, as will be discussed in Section 3.7 below).

It is risky to make assumptions about what an enhanced human would do or want. More importantly, it is contrary to an ethical framework of engagemen<sup>t</sup> that involves trying to respond to the appeal of the other. "[T]his right of the other, which should give the ultimate grounding and measure of every right, is exactly one that will always remain 'haunted' by the appeal of excessive immeasurable terms (and this always includes the danger to treat the other wrongly, especially in his otherness)."<sup>73</sup> Can we be confident that an enhanced human who had the ability to clone/duplicate themselves at will would do so in order to impact voting in a particular election or elections? They would be faced with the consequences of having a large number of clones/duplicates. Presumably, if each clone/duplicate was a being with rights, the clones/duplicates could not just be terminated/deleted at the will of the "original". The original source of the clones/duplicates would need to coexist with the others for the remainder of its lifetime (which could be quite extended). Moreover, even if the clones/duplicates were created with the exact memories and mind of the adult original source, over time they could presumably diverge individually in their wishes and views if they had different life experiences. A single individual non-enhanced human may change their views (and their voting patterns) over time. Should we not expect that the same might be possible for clones/duplicates of an enhanced human? Alternatively, if the clones/duplicates were all under the total control of a single mind or consciousness and did not have free will, then it might be more accurate to treat the entire group as a single voting being with a single direct vote. In that case, representative voting would not be appropriate.

Although there are dangers in using representative voting as a substitute for direct voting, it can also be beneficial for the less powerful. For example, representative voting can be used as a way to amplify the voice of those beings (whether enhanced or nonenhanced) who are in a minority or who are otherwise disadvantaged in their ability to participate fully and effectively in governance due to historical factors. A combination of representative and direct voting can also be employed where each individual member of a group (such as a particular political party, religion, culture, indigenous group, or caste under current examples—and potentially unlimited future groupings in a world with extreme human enhancements) wants the group as a whole to have a voice in addition to the voice of the individual member, who may differ from the group as a whole in a particular voting situation.

<sup>72</sup> Ref. [9] at 35 (discussing Article 43(1) of the Japanese Constitution).

<sup>73</sup> Ref. [1] at 15.

As a first step in considering whether representative voting is appropriate for a particular group, we must recognize and resist the temptation to declare that a group is "unable" to vote when the reality is that the group in power simply does not wish to make accommodations needed to allow such a group to vote. This has been the case for humans who were not able to physically have access to a polling location, who were not able to read or mark the ballots (or even register to vote), due to being physically different, in abilities, than those humans with political power, which could also be due to age, such as if they are very young or very old, or to a lack of formal education. In an ethical framework of engagement, it is essential to always question whether access to direct voting is being denied or limited for "practical" reasons that are only choices of convenience for the humans (enhanced or non-enhanced) in power. If that is the case, representative voting can be, at best, a provisional approach while the access issues are addressed. Representative voting in lieu of direct voting should never be assumed to be an adequate or equitable response in such a situation.

In addition, there is an inherent danger of stereotyping or assuming that a particular group will (or should) vote in a certain manner when in fact there may be many individuals or subgroups who may have very different views. This raises questions of identity and representation.<sup>74</sup> This can be seen for example in the construction of a new constitution when India became independent from Britain. "The mechanics of representation was a serious problem facing Indian democratization, and it proved to be most challenging in the cases of Muslims and the lower castes."75 The colonial state mediated citizenship through community affiliation and therefore "embraced a static vision of participation where the interests of individuals were established in advance."<sup>76</sup> This resulted in a failure "to provide for a fair and enduring solution to the problem of group diversity." It was a denial of agency, that "necessarily proceeded on the assumption that individuals within certain groups would act collectively and in specific ways."77 India's founders therefore rejected group-based or communal representation drawn on religious lines. However, the situation was different for caste—and particularly lower caste groups. "At India's founding, the Constitution permitted reserved quotas for such groups,"78 which was not on its face consistent with the rejection of communal representation for religious groups. However, a theory that has been offered to reconcile the two approaches is to view communal representation as "suitable for societies where one was a subject rather than an agent."79 As Dr. B. R. Ambedkar, chair of the drafting committee for the new Constitution, argued, the caste system was artificially imposed to create a division of laborers into compartments.<sup>80</sup> Thus, membership in a caste was different from a religious group in which members presumably chose to self-identify and were (at least theoretically) free to leave by their own choice when they reached an age of adulthood. Moreover, due to historical discrimination, lower-caste groups had been effectively excluded from voting. Reserved quotas were presented as a temporary option to facilitate the transition to universal and effective franchise, and communal electorates could facilitate "a new cycle of participation in which the representatives of various castes who were erstwhile isolated and therefore antisocial will be thrown into an associated life."<sup>81</sup> In this model,

<sup>74</sup> "As articulated in international human rights instruments, the right to effective participation can be exercised by both individuals and collectives. While collective bargaining usually increases the strength of indigenous voices in negotiations and provides for more effective participation, it is also necessary to take into account the claims of each individual belonging to an indigenous group, as dissenting views cannot always be adequately represented in collective claims." Ref. [9] at 15.

<sup>75</sup> Ref. [111] at 111.

<sup>76</sup> Ref. [111] at 111.

<sup>77</sup> Ref. [111] at 138.

<sup>78</sup> Ref. [111] at 141.

<sup>79</sup> Ref. [111] at 142.

<sup>80</sup> Ref. [111] at 142—citing the writings of B.R. Ambedkar to advocate for the lower caste groups, such as the Dalits.

<sup>81</sup> Ref. [111] at 145 (quoting Ambedkar).

a system of joint electorates combined with reserved seats might offer a path toward the extinction of caste while recognizing the current and near-term reality of the dominance of the higher castes, and allowing for individual self-determination by all through universal adult suffrage.<sup>82</sup>

Another improper path of exclusion that could occur in a scenario of representative voting is by making the ballot itself (and voter registration and information materials) only in a particular language or languages, as discussed above, or only in a certain media (such as print when the method of communication of the "other" beings were through sound, light, or gestures). Where an enhancement was so extreme that non-enhanced humans could not (yet) meaningfully communicate with the enhanced humans, representative voting might be appropriate for one—or both—groups until direct voting was possible (and even then representative voting might be appropriate as an addition to direct voting). Plants and animals provide an example of a situation where broad and effective crossspecies communication is not currently available. However, there are strong indications that animals do communicate with each other through language and in a complex social structure [112–115]. Plants may communicate also [116,117]. If that is the case, human enhancements could facilitate such cross-species communication but could also make it difficult for the enhanced human to communicate with other humans who did not have the same enhancement. This problem would be especially acute if the enhancement was not reversible. For example, it is at least theoretically possible that an enhanced human could be physically modified to be proficient in communicating with a particular type of bird or octopus (or digitally embedded in a machine learning/artificial intelligence network), but then could no longer communicate with humans who lacked similar enhancements.

Examples of representative voting that could be applied where direct voting was not possible due to basic communication challenges between enhanced humans, nonenhanced humans and other beings include, for example, the "Party for the Animals". "On 22 November 2006 the Dutch Party for the Animals was elected to the House of Representatives with 2 of the 150 seats. A worldwide first! On 5 [M]arch 2017 the Party for the Animals won 5 seats, an increase of 150 per cent. The party now has 80 elected representatives at European, national, regional and local level" [118]. As the Party explains: "The main driver of our party is to protect the interest of the weakest against the alleged right of the strongest. In all this, the animals are the most vulnerable and often come in last in a world focused on short-term interests. The mistreatment of animals and the destruction of their home take place on a larger scale than ever seen before, including factory farming, animal testing, and in nature itself. After the liberation of slaves and women, and giving rights to children, the next logical step is to take the interests of animals seriously."<sup>83</sup>

Another example is a city in Costa Rica that gave citizenship to bees, plants and trees [121]. "Now known as "*Ciudad Dulce*"—Sweet City—Curridabat's urban planning has been reimagined around its non-human inhabitants. Green spaces are treated as infrastructure with accompanying ecosystem services that can be harnessed by local government and offered to residents. Geolocation mapping is used to target reforestation projects at elderly residents and children to ensure they benefit from air pollution removal and the cooling effects that the trees provide. The widespread planting of native species underscores a network of green spaces and biocorridors across the municipality, which are designed to ensure pollinators thrive." In this situation, the bees, plants and trees are not voting directly, but they are being recognized as "citizens" to whom the elected representatives must respond to "the appeal of the other", while also considering the wellbeing of human constituents as well. This is an expansion of the Japanese Constitutional model, where Members of Congress represent the whole citizenry"—meaning all Japanese

<sup>82</sup> Ref. [111] at 146–147.

<sup>83</sup> Ref. [118] Sue Donaldson and Will Kymlicka also offer an applied ethics political theory of relationships between animals and humans in *Zoopolis: A Political Theory of Animal Rights*. [119]. The pioneering work of Professor Donna J. Haraway in this area also merits deeper consideration [120].

nationals, not just their direct constituents or political party.<sup>84</sup> In a world of enhanced and non-enhanced humans, such a scenario of respect and consideration for the well-being of those deemed "lesser" or "other"—or even "non-human"—is preferrable to the pet or slave options offered by Warwick as a prompt for debate.<sup>85</sup> It is also more consistent with the extended ethical framework of engagemen<sup>t</sup> applied herein.

Human enhancement is here—now—and may increase in the future. When it comes to a core right to vote, and responsibility to afford others that right and consider their wishes and needs, we should question whether it is ever ethical to treat living or conscious "others" as captives, slaves or pets, and if so, under what circumstances. We should reject— as likely unethical under an extended version of the framework suggested by Loidolt—a model that in intent or effect advantages enhanced humans—even superhumans—over non-enhanced humans. Although they will not be covered in the manner they deserve at this time, potential approaches from one or more "posthumanist" perspectives also offer exciting alternatives. For example, "Posthumanism offers a generative critique of the subject/object dualism not by prioritizing one instead of the other, or assimilating one to the other, but by embracing both relationally, as intra-connected actants in an open and respondent context, which is also constantly shifting."<sup>86</sup>

For enhanced or non-enhanced humans who are not legally entitled to vote directly, or unable to vote directly using current voting methods, alternative systems of representation may be needed with the express recognition that they are inherently inadequate. In order to mitigate systematic discrimination against and/or by the enhanced humans of the future, it may be appropriate to reconsider and adjust the voting system. "Voting" in such a situation, should not be viewed just a right, but also as a responsibility toward others who may not be able to vote (or whose votes may "count" less). In a fair negotiation forum with a power imbalance (such as for a minority group), "the right to effective participation implies a duty on the part of members of the majority which is more onerous than that of minority participants."<sup>87</sup> The more powerful group members have a greater responsibility to make efforts to listen to, learn from and respectfully understand (with the least possible prejudice) the interests and demands of the less powerful group in order to try to achieve equality. As Loidolt has persuasively articulated, the more powerful will still likely fail to achieve true equality due to the inherent impossibility of fully understanding the appeal of the "other", but the process itself will have greater legitimacy than if the greater burden is placed on the less powerful to articulate their interests in a manner the more powerful will respect and honor.

Humans are not just the bearers of rights, but also beings that seek to adjudge and constitute "right" [1]. Such a framework suggests that less emphasis should be placed on artifacts of physical appearance, mental capacity, geographical location88, birthplace, ancestry (whether "natural" or "enhanced") and age of human bodies, or even species and organic versus inorganic or hybrid life forms. In addition, more weight should be allotted to the idea that all living beings are coexisting on a planet that has limited resources and that therefore all living beings may have responsibilities toward each other, regardless of

<sup>84</sup> Ref. [9] at 35.

<sup>85</sup> For example, "one new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers" [122]. By contrast, Professor Sandra Seubert contends that the "animal-as-citizen approach overestimates the potentials of human-animal communication and underestimates the abuse of power asymmetries. Humans can (and should) take (what *they* interpret as) animals' interests into account but they cannot deliberate about interest with animals on an equitable basis." Ref. [123] at 63–69.

<sup>86</sup> Ref. [124] at 165.

<sup>87</sup> Ref. [9] at 22-23.

<sup>88</sup> Legal or practical disenfranchisement due to geographical location can occur because of lack of a permanent residence address due to poverty (such as in Japan, where homeless people are legally disenfranchised if they are not on the "resident register" [125] or due to membership in a nomadic tribe (such as for the Kuchis in Afghanistan [126]. There are also millions of "stateless" people who are not only disenfranchised but struggle in many other areas as well, including travel restrictions. "There are at least 4.2 million stateless people in the 79 countries that report them, but the U.N. agency believes that to be a severe undercount and that the problem affects many millions more" [127]. "Statelessness arises from a variety of situations, including redrawn borders, discriminatory laws that prevent women from passing on their nationality to a child, births that go unregistered, or the mass expulsion of an ethnic group" [127].

*other forms that have been tried from time*

what they look like or how their minds work. If so, under a new Declaration of the Rights and Responsibilities of Beings, the legal (and practical) right to vote directly, or through indirect representation where such voting is not (yet) possible, could be distributed as broadly as possible, and voters would be ethically required to consider not only their own interests but also their responsibility toward other beings, particularly those who cannot vote or whose votes "count" for less.

### *3.7. Participation of the "Other" in the Structure, Process and Meaning of Voting and Governance "it has been said that democracy is the worst form of Government except for all those to*

 *time."*<sup>89</sup>

In the context of "voting," giving a voice to the "other" in a world of enhanced and non-enhanced humans, defined as broadly as possible, including those with extreme enhancements and those with no enhancements, requires re-examining the basic framework of governmen<sup>t</sup> with the benefit of inclusive participation. In an ethical theory of engagement, legitimization and justification is essential in a meaningful world. We must "face the appeal of the other" and determine what is "right" "from a phenomenological first-person perspective instead of the classical 'objective' third-person perspective of reciprocity."<sup>90</sup> If the process of constituting the world is a priori occurring in a context of legitimizing intentionality, and entire groups of enhanced and non-enhanced humans are (intentionally or unintentionally) excluded from participating in the very design of the governmental structure, then, in the ethical framework outlined by Loidolt,<sup>91</sup> the resulting structure would not be "right" even if the end result was the same as what would be established with the benefit of their voices and judgment. Only the *means* can justify the *ends*—not vice versa. This is particularly true because, in advance, we recognize that "this right of the other, which should give the ultimate grounding and measure of every right, is exactly one that will always remain 'haunted' by the appeal of excessive immeasurable terms (and this always includes the danger to treat the other wrongly, especially in his otherness)."

"The foundation of democracy is to be seen in the human being pressing into the future and the inherent comportment towards future circumstances that are different from those of the present. In other words, it is to be found in the pre-rational, bodying along of ourselves with our distinctive way of being. Human beings have always been communal and they have always displayed a range of involvements with others of their kind. Democracy itself has its ground in one of these involvements. Probably, the involvements are those which couple the manifest tensions around decision making in emergen<sup>t</sup> communities with the aspirations of individuals who seek to produce something that is beyond their own competence."92 Thus, any governmental structure and process of voting that is put in place should not only involve as many voices as possible (including both enhanced and non-enhanced humans for purposes of the present focus on human enhancements) but also must recognize it is inherently imperfect and provisional—and subject to a fresh re-examination and ratification process if it is later determined that groups were excluded from participation or new groups (or types of beings) come into existence or are recognized/discovered. There has never been an easy answer to questions about how a democratic form of governmen<sup>t</sup> with diverse participation should be structured and operate, and it is likely to become even more difficult as we have more diverse types of

<sup>89</sup> Ref. [128] at 574.

<sup>90</sup> Ref. [1] at 3.

<sup>91</sup> Ref. [1] at 7.

<sup>92</sup> Ref. [89]. The importance of participation by the less powerful is emphasized by Kawashima in the context of indigenous peoples. Drawing from the Inter-American Commission on Human Rights, Organization of American States, Proposed American Declaration on the Rights of Indigenous Peoples (1997), (OAE/Ser/L/V/11.95), she notes a key point that "indigenous peoples have a right to participate not only in the implementation and evaluation of policies, plans and programmes for national or regional development, but also in their *formulation*." Ref. [9] at 31. In addition, "indigenous peoples have a right to maintain and develop their own indigenous decision-making institutions and to select their representatives according to their own rules and customs." Id.

humans, including those with extreme enhancements. Yet we must face such challenges, even knowing our response will be flawed.

Based on these considerations, our working draft Article could be modified as follows:

*"The will of all beings, and responsibility toward all beings (whether voting or nonvoting), shall be the basis of the authority of government; this will, and responsibility, shall be expressed through universal and equal suffrage (directly and/or through representatives) or through such other process and method as may be developed and ratified with the universal and equitable participation of such beings."*

In this theory of engagement, an inclusive process is not just for the benefit of the "other" or "lesser" participants. It is also essential for the powerful if they desire to create an ethical form of governmen<sup>t</sup> in a diverse world, even if the new form of governmen<sup>t</sup> is admittedly imperfect. The right to "vote" may not be sufficient, or may even be harmful, if the very structure itself is flawed. For example, the United States (and Canadian) governments were built on a foundation that intentionally benefitted wealthy white male property owners and intentionally disadvantaged indigenous peoples and white women. In part due to the challenge of "catching up" after decades of disenfranchisement, the United States federal governmen<sup>t</sup> still hews more closely to the composition that the founders intended than the composition of the country as a whole. In 2020, of the 100 Senators, only 26 were women, three were Black, three were of Asian ethnicity (one of whom was also Black), four were Hispanic, and none were indigenous [129]. Only three Native Americans have served in the United States Senate in the history of its existence. The fact that the United States Senate official website only selected four categories to measure diversity also is an indicator of a lack of diversity. Canada also continues to try to meet the challenges of a legacy of discrimination. As Coel Kirby noted in 2018, "In the past three years the federal governmen<sup>t</sup> has passed two-fifths of all Indigenous-related legislation since confederation. These changes implement a particular and contested constitutional vision of Canada as a single multicultural society comprised of two founding European nations and many less equal Indigenous nations."<sup>93</sup> In considering alternative visions, we can see "there were and are a multiplicity of ways of constituting our collective selves in common."94

3.7.1. The Importance of Broad Engagement and Participation for Legitimacy

To address the challenges of a world of human enhancements in the ethical framework proposed, it is crucial to listen to alternative viewpoints. In ignoring the voices of different tribal leaders in Canada and unilaterally imposing (and then revoking) Indian enfranchisement, multiple "alternative visions of constitutional co-existence within confederation" were lost. "The Anishinaabe-dominated [c]ouncil proposed various forms of dual-nationality to reconcile membership in both their treaty-recognized nations and the Canadian state. In contrast, [another council with Haudenosaunee leadership] insisted on Haudenosaunee autonomy mediated by a special treaty relationship with the Canadian and imperial governments."95

Comparing the situation in Canada with that of India's founders, a profound difference was the leadership and participation of Dr. B. R. Ambedkar. Dr. Ambedkar was born a member of the Mahar caste, one of the lowest social groups in India—the Dalits, sometimes offensively referred to as the "untouchables". Nevertheless, he succeeded in earning his Ph.D. at Columbia University and a doctoral degree in economics from the London School of Economics. He was elected to chair the committee drafting India's constitution in 1947.<sup>96</sup> Likely as a result of his role and advocacy for the lower castes, the Constitution as adopted

<sup>93</sup> Ref. [8] at 4.

<sup>94</sup> Ref. [8] at 4. Also, "[f]ocusing on and placing weight on a fair negotiation forum (and the right to effective participation which guarantees it), which requires the mutual cooperation and support of participants, could be understood as an Asian way of thinking, as opposed to a Western way of thinking, stressing unilateral assertions of an individual's right or interest." Ref. [9] at 22, footnote 7.

<sup>95</sup> Ref. [8] at 2.

<sup>96</sup> For additional background on Dr. Ambedkar, see [130].

reflected (somewhat) more of Dr. Ambedkar's views, and not those of M.K. (Mahatma) Gandhi, who was born into a more privileged caste than that of Dr. Ambedkar.<sup>97</sup> Gandhi admired the caste system, although he thought there should be no *hierarchy* between castes. Dr. Ambedkar's response to Gandhi was "the outcaste is a byproduct of the caste system. There will be outcastes as long as there are castes. Nothing can emancipate the outcaste except the destruction of the caste system."98

The challenges faced by the Ainu indigenous minority in Japan provide an additional example of what is lost (in terms of legitimacy) when the powerful disregard the appeal of the "others" who are less powerful, and what can be gained when those voices are heard and respected. One of the questions raised when the assimilationist 1899 Hokkaido Ex-Aborigines Protection Act was finally repealed in 1997, was how the Ainu should be treated, including whether they should have special representation in local and national legislative assemblies as well as a standing consultative Ainu body (which were two of the six provisions drafted by the Ainu Association of Hokkaido for inclusion in the new law). However, likely due to the increasing restriction of the participation of Ainu in the higherlevel policy making processes,<sup>99</sup> the only provision that was ultimately incorporated related to the promotion of Ainu culture.<sup>100</sup> One reason given for the rejection of the provision regarding representation was "the recognition of special electorates distinct from those of general citizens is very likely to violate the Constitution."<sup>101</sup> Assuming, hypothetically,<sup>102</sup> that the reason given was valid, then, in the participatory ethical framework being applied herein, the next question would be whether the Ainu had participated in the drafting and enactment of the Constitution that was being applied to deny them the right to special representation. If they had been able to meaningfully participate in such drafting, as was the case for the lower-caste and less powerful Dalits in the Indian Constitution where Dr. Ambedkar not only was able to participate, he was the elected chair of the drafting committee, its application to their rights and role would be legitimate. If they had not been able to participate meaningfully in the drafting of the Constitution and formulation of the framework of government, then they could reasonably demand a fresh review and ratification—with their participation—of the Constitution, which might warrant an entirely new framework or an amendment.

### 3.7.2. Selected Examples of Difficult Questions That Require Broad Engagement

In a world of enhanced and non-enhanced humans, including humans with extreme enhancements, it will be even more challenging to find an ethical approach that balances the right to vote with responsibilities toward other. Discarding any vision or alternative presented by a particular group out of hand would be itself a violation of the ethical obligation to respond to the appeal of the other. The questions raised when one becomes open to hearing the appeal of the other are typically not amenable to easy ethical solutions. Participation of diverse voices is essential for the structure enacted to be legitimate under

<sup>97</sup> Ref. [130] at 150-151.

<sup>98</sup> Ref. [130] at 26.

<sup>99</sup> "It is especially regrettable that the Experts Meeting [Concerning Ainu Affairs – established in 1995 in response to the request of the first and then sole Ainu member of the Japanese Congress] did not include any Ainu members. This was pointed out by a member of the Experts Meeting, who suggested that a new Meeting be established, including Ainu persons, to contribute to the drafting process after the issuance of the report by the Experts Meeting. Nevertheless, this proposal was never realized." Ref. [9] at 38–40.

<sup>100</sup> Ref. [9] at 32–33.

<sup>101</sup> Ref. [9] at 34 (quoting from Section 3 in Hokkaido Utari Mondai Konwa Kai Tosin (A Report of the Round Table on a Policy for the Ainu Culture), March 1998.

<sup>102</sup> Kawashima contends that the Japanese Constitution would, in fact, allow for special representation for the Ainu. Ref. [9] at 34–36.

our extended ethical theory of engagement.<sup>103</sup> As examples of the challenges involved, we will consider a few examples of the types of questions that would warrant careful review, with the benefit of broad engagemen<sup>t</sup> by enhanced and non-enhanced humans: (a) voting proportionality, (b) geo-political borders, and (c) temporality.
