Academic journal article Harvard Law Review

The Case for Compulsory Voting in the United States

Academic journal article Harvard Law Review

The Case for Compulsory Voting in the United States

Article excerpt

Voter turnout in the United States is much lower than in other democracies.(1) In European nations, voter turnout regularly tops 80%,(2) while turnout in American elections has not approached this number for at least the past century.(3) Even in the U.S. presidential election of 2004, with the nation bogged down in an unpopular war and with a very tight campaign that left no front-runner, voter turnout was only about 60%.(4)

Although many may disparage the American electorate for being forgetful or lazy, (5) low voter turnout does not necessarily mean that something is drastically wrong with American voters. The decision not to vote can be a rational one. Democratic government is a classic public good, and like any public good it is subject to a free-rider problem.(6) One can enjoy the benefits of living in a free, democratic society whether one incurs the costs of voting--time spent traveling to polls and waiting in line, information costs of choosing whom to vote for--or not. Even potential voters who have a strong preference for one candidate over another are likely to have a rational basis for not voting since the likelihood of any single vote influencing the outcome of an election is negligible. This gives rise to what scholars call the "paradox of voting" (7): the fact that some people do vote even though a simple rational choice model of human behavior suggests they ought not to.(8)

One solution to the problem of low voter turnout is to require all eligible voters to vote by law. Approximately twenty-four nations have some kind of compulsory voting law, representing 17% of the world's democratic nations.(9) The effect of compulsory voting laws on voter turnout is substantial. Multivariate statistical analyses have shown that compulsory voting laws raise voter turnout by seven to sixteen percentage points.(10) The effects are likely to be even greater in a country such as the United States, which has a much lower baseline of voter turnout than many of the countries that have already adopted compulsory voting.(11)

The introduction of compulsory laws raises several interesting legal, philosophical, political, and practical questions: Is forcing people to vote an acceptable way of increasing the legitimacy of democratic government, or is it an unjustified infringement of individual liberty? Is it compelled speech in violation of the First Amendment? Does the right to vote imply a right not to vote? Will any increase in voter turnout due to compulsion improve electoral outcomes, or will it make things worse by diluting the median level of political knowledge and sophistication among voters?

This Note puts forth arguments in favor of adopting compulsory voting laws in the United States.(12) It argues that compulsory voting is a legitimate infringement upon individual liberty for the purpose of ensuring that political outcomes reflect the preferences of the electorate. The remainder of this Note proceeds as follows: Part I discusses the problems with low voter turnout in America. Part II identifies the potential benefits of compulsory voting beyond simply increasing voter turnout. Part III responds to some of the legal and philosophical issues raised by compulsory voting in the United States, specifically whether compulsory voting would violate the freedom of speech or some right not to vote, and whether Congress could institute compulsory voting by statute. Part IV addresses some of the practical issues raised by compulsory voting, specifically the problem of uninformed and underinformed voters and how compulsory voting laws could be enforced. Part V briefly concludes.

I. THE PROBLEM OF LOW VOTER TURNOUT IN AMERICA

The presidential election of 2000 led to an unusual situation in which the results of the election in Florida were subject to a recount that would determine who won the presidency.(13) The difference in the number of votes won by the two major candidates was only 537, (14) which meant that the margin of error of the machines used to count the ballots exceeded the margin of victory. …

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