DV Journal

For another point of view see: Point: Universal Voting Makes Sense for a Full, Healthy Democracy

A handful of countries, most notably Australia, impose mandatory voting, with citizens facing fines and punishments if they don’t appear at the polls. And every few years, somebody proposes bringing this practice to the United States as a good-government reform that would allegedly improve the health of our democracy.

Luckily, Americans remain unimpressed by the idea. A report advocating mandatory voting by the Brookings Institution and Harvard Kennedy School’s Ash Center acknowledged as much. When polled, they found only 26 percent of Americans favored the idea, with 64 percent opposed.

The claimed benefits of mandatory voting are highly dubious. All available evidence is that it would have little effect on election outcomes since non-voters tend to break down about the same as for voters in their partisan preferences. The main effect visible in Australia is the frequency of the so-called “donkey ballot,” where voters randomly pick a candidate or party without giving it any thought, often simply choosing the option listed first on the ballot. Others return a blank ballot, clearly going through the motions only to avoid punishment.

Beyond the lack of clear, practical benefit, mandatory voting sits uneasily with American principles. The First Amendment protects not only freedom of speech but also freedom from compelled speech. And even if a coerced voter shows up and casts a spoiled ballot, participating in an election is a speech act. It implies affirmation of the legitimacy and desirability of the electoral system and our current constitutional order. That might be a correct opinion, in my view, but it is not one Americans should be forced to affirm.

There is a long history in the United States of principled abstention from voting, including groups such as the Quakers and Jehovah’s Witnesses, who are motivated by a thoroughgoing religious faith in strict pacifism. Others, such as anarchists ranging from libertarians to socialists, reject the moral legitimacy of all governments and do not want to lend their endorsement to the state. Faced with the need to accommodate such groups or at least some of them, compulsory voting faces two bad options. Either any person can invoke a religious or philosophical exemption, rendering the whole exercise pointless, or must put the government in the untenable position of judging which reasons are good enough.

Even if the First Amendment argument doesn’t convince you, the last thing our bloated criminal justice system needs is yet another reason to impose fines and enforcement actions on Americans, especially when such burdens will fall disproportionately on minorities and the poor. Every law must be enforced, and the police in our country already have more than enough laws to enforce.

Even if the political will could be mustered to pass a compulsory voting law, the courts are unlikely to permit it under longstanding First Amendment principles. During World War II, the court faced another attempt at coercing civic affirmation: mandatory recital of the Pledge of Allegiance in public schools. Again, Jehovah’s Witnesses refused, believing that this was an act of flag-worship akin to idolatry.

Justice Robert H. Jackson, writing for a 6-3 court, offered one of the most stirring articulations of America’s radical free speech jurisprudence: “If there is any fixed star in our constitutional firmament, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

Showing up to vote may well be a laudable act, one to be encouraged, an admirable exercise of civic duty and participation in our system of government. But as a matter of opinion, it is not the government’s role to impose that view as compulsory orthodoxy. If you don’t want to vote, it’s your right not to vote.

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For another point of view, see “Point: What Would Founders Think of Dobbs Decision? James Madison Would Love It“

What would the Founders think of the Supreme Court’s decision in Dobbs? Say we do what Bill and Ted did in their “Excellent Adventure.” We jump into a phone-booth-shaped time machine and travel back to 1776 to find Thomas Jefferson and ask him about Dobbs. I see at least two possibilities.

In the first, we encounter the Evil Jefferson. He turns out to be an unrepentant former slaveholder, aghast that women of all races had the right to vote in modern America. In the second, we encounter the Hero Jefferson. This Jefferson reads Dobbs in the vein of the vaunted revolutionary we’ve come to mythologize because he wrote that our freedom is unalienable despite what encroaching governments might say.

The Hero Jefferson shakes his head in anger that the passage of two and half centuries has done so little to cause federal courts to exercise power to protect people from authoritarian government.

Both Jeffersons, and more, are possible. In determining which Jefferson to honor, we must exercise judgment. We must judge one Jefferson as “evil” and make one Jefferson “the hero” for reasons that would cause us to decide which Founding perspective to accept as good authority.

Dobbs, which raises to authority some early American history about the legality of abortion, appears indifferent, at best. It would consider the Evil Jefferson and the Hero Jefferson equally authoritative if it could only verify the existence of one rather than the other. And so Dobbs does not care if it infects constitutional law with evil history — including history so evil that more recent generations had to take action, legislative and judicial, to inoculate us from it.

We are not the same country the Founders forged by law or fact. We are more perfect because of it. No doubt it was world-shaking when some Founders declared independence in 1776 and adopted the state and federal constitutions in the decade or so that followed. Yet, as Justice Thurgood Marshall observed during the bicentennial 200 years later, “(T)he government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for individual freedoms and human rights, we hold as fundamental today.”

That transformation included the very recent — and still partial — recognition of women as citizens with rights. Jefferson’s Declaration of Independence spoke only of men in 1776. One hundred years passed and, still, in 1868, the 14th Amendment failed to mention women while constitutionalizing equality for men. Women could not participate in these enactments because they did not have the right to vote until 1919, a historical fact whose distorting influence on the law the Dobbs court’s undifferentiated acceptance of history fails to fully confront. It was only in 1996 that the court recognized equality for women under the 14th Amendment in United States v. Virginia.

Dobbs entrenches this long history of political subjugation as an authority by failing to judge it evil. To it, the jurisprudence and changed attitudes of the past half-century, a half-century in which the rights of women to vote and hold office first took root, is an aberration. If this is judgment, it is bad judgment.

Let me cast my own judgment. As we celebrate Thomas Jefferson and July 4th, I’d like to imagine that a Better Jefferson would read Dobbs and express concern. He would wonder that a country forged in revolution would continue to appoint judges hidebound to the views of a distant and evil past, a past he sought to retire by memorializing the rights of people against tyranny at the risk of his life and the lives of his contemporaries.

To choose this Jefferson is to admit I am making a choice, a freedom I treasure for as long as I still have it. Dobbs doesn’t believe there is a choice.  On this weekend where we celebrate freedom, would you really want to celebrate Founders who’d agree?

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