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Is It Time To Consider Mandatory Voting Laws?
Worsening Voting Statistics Make A Strong Case


Friday, Feb. 28, 2003

Voter turnout in the United States is just about as bad as it can get. A few of the world's democracies have even worse voter turnout than America does, but not many. Out of the 172 countries for which figures are available, this country ranks a sorry 139th - outranking only less developed nations such as Zambia.

There are approximately 186 million eligible voters in the United States (that is, citizens over eighteen years of age without a disqualification such as a felony conviction). Of that number, only 130 million - about seventy percent - are registered to vote. And only some of those actually do. According to the latest available reports, 111 million people voted in the last presidential election, and of all elections, presidential elections get the best turnout.

That means in the last presidential election, only sixty percent of the eligible voters, and eighty-five percent of the registered voters, went to the polls. Meanwhile, 75 million people who were eligible to vote did not do so.

This is a national disgrace. With each new generation, it gets worse. Reluctantly, I'm coming to the conclusion that there is only one solution: mandatory voting laws.

Voting Is An Obligation Of Citizenship

One need not delve very deeply into political theory to understand the relationship between citizens and their government, in particular in a democracy. It is a social contract. The government agrees to government well. In exchange, citizens give government the necessary powers and funds. And they take on certain obligations - including the obligation to vote.

Why are citizens obliged to vote? Because government, as Thomas Jefferson set forth in the Declaration of Independence, derives its authority from the consent of the governed. That consent must constantly be renewed - through voting. If citizens don't vote, the government loses its legitimacy.

In part for this reason, the fact that 75 million people in the United States are using the roads, sending their kids to schools, and enjoying the protection of firemen, policemen, and the armed forces, but not voting is a serious problem. It is not merely a failure of citizens, it is also a failure of government.

Why Don't Eligible Voters Actually Vote?

Ask non-voters why they don't vote, and you get lots of excuses - generally poor ones. Standard refrains include that the ballots and issues are complex and confusing, that it's not convenient, that the person didn't register in time, or that the person didn't like any of the candidates.

What's to blame for the increasing failure of eligible voters to vote? Political scientists have pointed to everything from the decline of political parties, which once got voters out to the polls, to the rise of negative campaign advertising, which turns voters off. Studies also show that those states that permit voter registration as late as election day have higher voting results.

Following the November 2000 election in an earlier column, I looked in depth at the problem of the vanishing voter. There, I concluded the primary reason people do not vote is that they do not perceive it as being in their self-interest. If there is nothing in it for them, why bother? Most voters likely have never considered the need to perpetuate - and, indeed, probably couldn't care less about, the social contract.

Since so many people refuse to vote, why not require people to do so? Mandatory taxation provides a good analogy. As with voting, society as a whole relies on citizens' fulfilling their obligation to pay taxes. As a result, failure to pay taxes is met with civil and in some cases even criminal penalties.

Why not treat voting the same way? Government cannot operate without tax dollars, and government should not operate without the consent of the governed, as expressed by their votes.

Mandatory Voting Laws Generally Work Well In Countries That Have Them

Some thirty-three countries - all democracies - have mandatory voting laws. There is, however, considerable divergence among these countries in the substance of these laws, the sanctions for violating them, and how strictly the laws are enforced.

In some countries, for example, mandatory voting laws are on the books but not enforced - nor do they need to be, since voter turnout is excellent. In these countries, the law simply sets a standard, one that most citizens live up to.

In contrast, other countries, such as Australia, strictly enforce their mandatory voting law. In 1922, voter turnout in Australia went down to fifty-eight percent. (Remember, our current rate is only sixty percent!) As a result, government officials became concerned. By 1924, they had made voting compulsory. Now Australia has regularly enjoys heavy voter turnout, even though the sanction for not voting is nominal. Australians make a habit of voting; Americans do not.

The only downside of the Australian system is the presence of what they call "donkey votes." Some voters merely play pin-the-tail-on-the-donkey to decide their vote - apparently because they don't like any of the candidates, or are simply flouting their citizenship obligations.

The problem of such random voting, however, is small (and in any case, if it is truly random, ought not to affect results). In addition, the problem could be easily solved by adding a space for the voter to register the sentiment "No Candidate Acceptable." Then the NCA vote should be tabulated - and weighed. If NCA wins, then no one has been elected, and the election law should provide for another race to quickly follow.

In 1976, Nevada adopted a similar "none of the above" provision, but with a crucial difference: the "none of the above" vote was tabulated, but not weighed. That is, the candidate who loses only to "none of the above" still prevails in Nevada (albeit hardly with a mandate to ride in on!).

Based on studies from countries with compulsory voting laws, their benefit cannot be doubted. Such laws result in high voter turnout - turnout that is, in addition, relatively equal across demographic groups. In addition, they reduce the need for campaign funds to be used to goad voters to the polls, and allow candidates to use their funds on more substantive matters instead.

Moreover, mandatory voting laws tend to have a very positive secondary impact:

People who vote, and participate in the political process, tend to participate in other social outlets from the church to voluntary originations. In short, they become better citizens.

Would Mandatory Voting Be Constitutional?

So why has mandatory voting never been serious considered in the United States? There is one overwhelming reason: Conservatives - those who first resided largely in the Democratic party and today reside in the Republican party - have conniptions at the very thought of it. At bottom, conservatives are offended by the egalitarian results that would follow mandatory voting - which would cause vast increases in the ranks of Democrats, and those who reject conservative thinking.

Unwilling to admit this truth, however, conservatives will offer other reasons to oppose mandatory voting (even with an NCA option). They'll say it's undemocratic, un-American, and indeed, unconstitutional. And in support of their view, they'll rely, for example, on a 1896 relic of the Supreme Court of Missouri, Kansas City v. Whipple. In that case, Kansas City had adopted a charter provision that assessed a $2.50 poll tax on every man twenty-one years of age or older who failed to vote in the general city election. Mr. Whipple, it seems, didn't want to be told when he should vote. And the Missouri Supreme Court agreed.

The Missouri high court did not deny the existence of the duty to vote. But it questioned whether the government could force citizens to fulfill that duty. Indeed, the court noted that "For the performance of many of these duties [of citizenship] reliance must be placed only on the enlightened conscience of intelligent and patriotic freemen." The court reasoned that citizens while "the subjects of government," are also, in a democracy, "its sovereign." As a result, according to the court, "it is not within the power of any legislative authority, national or state, to compel the citizen to exercise this sovereign right."

The claim that the Kansas City v. Whipple decision resolves the matter, however, is a shaky proposition for several reasons. For one thing, it's a Missouri, not a U.S. Supreme Court decision, and the U.S. Supreme Court is the ultimate interpreter of the U.S. Constitution.

For another, the Kansas City v. Whipple decision nowhere mentions what provision, if any, of the U.S. Constitution mandatory voting purportedly violates. That's because there isn't one. After all, where would a right not to vote come from? Certainly not from voting rights amendments!

What about the First Amendment? With an NCA option, it certainly would not be violated. In that event, no one would have to support a candidate, or position, he or she did not believe in. He or she could simply choose NCA instead.

Finally, the Kansas City v. Whipple decision ignored prior precedents. In the eighteenth century, Georgia, Virginia, and North Dakota had experimented with mandatory voting laws, none of which were struck down as unconstitutional under either state constitutions or the federal constitution.

Given the conservative bent of the current U.S. Supreme Court, and purely political rulings like Bush v. Gore, the Court might well hold - contrary to the law - that mandatory voting is unconstitutional. But it's simply not the case, and only a purely results-oriented Court could rule otherwise.

Mandatory Voting Laws' Time Has Come

Notwithstanding the widely prevalent conservative attitude that has discouraged any state from adopting mandatory voting laws, it is nevertheless time to try it. It is states that enact voting laws, and the more liberal states can thwart the general conservative trend to mandate voting. (Liberal candidates, incidentally, will inevitably benefit). After all, states are entitled to experiment with laws that improve our democratic government - as those who truly believe in federalism, rather than just invoking it opportunistically, must concede.

While compulsion of any kind is a restriction, so is the compulsion to drive only on the right side of the road. Requiring citizens to vote is no more restrictive than requiring them to register for the draft. And it is far less restrictive than requiring us, for example, to attend school; to serve on juries, possibly for weeks or months at a time; to pay taxes; or to serve in the military when drafted.

In sum, voting is the least a citizen can do for his or her country, and it is not unreasonable to ask U.S. citizens to do this minimal thing. This country should take first place in the world in voter participation - not compete with Zambia and others for last place.

Sadly, it is by now clear that citizen participation in our democracy cannot be obtained voluntarily. That means mandatory laws are our only option. Fortunately, assume we follow Australia's example, as is likely, once we enact them, we will probably need to do little to enforce them. The message they send may be enough, or almost enough to convince voters to show up at the polls. It is long past time to do what Australia was wise enough to do almost eighty years ago, in 1924, and test such laws in this country.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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