The Constitution Protects Your Right to Vote — And Your Right Not To
American democracy is in poor health these days. But its ailments will not be healed by denying voters the choice of sitting out an election.
Progressives have largely prevailed in their decades-long project of making voting in America as effortless and convenient as possible. Now some are pushing to make it involuntary.
Thirty years ago, registering as a voter generally required a trip to town hall, absentee ballots were available only to those with a legitimate excuse for not voting in person, and the polls didn’t open before Election Day. Today, millions of Americans vote by mail; absentee ballots are available to almost any voter who wants one; and in all but a handful of states, polling sites open for in-person voting weeks before what we still quaintly refer to as Election “Day.” Even before the COVID-19 pandemic, 40 percent of votes were being cast through nontraditional methods (i.e., early and/or by mail). In 2020 that number jumped to 70 percent. I’m no fan of this trend, but I’m enough of a realist to know that the old system is gone for good.
For all the keening among Democrats about “voter suppression” as some states move to tighten their election rules, voting in this country has never been easier. Virtually anyone who wishes to vote can do so. The data show consistently that nonvoters skip elections not for lack of access to the ballot, but because they aren’t interested in politics or don’t like the candidates.
E.J. Dionne Jr. and Miles Rapoport find it intolerable that so many Americans choose not to vote. In a new book, 100% Democracy: The Case for Universal Voting, they lay out a case for making voting mandatory and penalizing nonvoters. Like many on the left, Dionne, a Washington Post columnist, and Rapoport, the former president of Common Cause, equate high voter turnout with democratic health. They note with approval that in Australia, where voting was made compulsory in 1924, turnout is generally around 90 percent. “The Australian experience suggests that when citizens know they are required to vote, they take this obligation seriously,” the authors write. (For some reason, they don’t mention North Korea, where voting is also mandatory and turnout is even higher than in Australia).
The notion that Americans should be compelled to vote may seem outlandish — Dionne and Rapoport concede that has little popular support right now — but it wasn’t so long ago that letting everyone vote by mail or cast their ballots a month in advance seemed outlandish. Already some lawmakers have introduced bills to make voting mandatory. Several respected scholars have endorsed the idea. Even former president Barack Obama has praised compulsory voting on the grounds that it would reduce the influence of money in politics.
But it’s a terrible idea. Forcing citizens to vote is like forcing a couple to marry: The outcome may be legally binding, but it lacks the moral legitimacy that only a choice freely made can confer.
The fundamental flaw with any compulsory voting scheme is that it nullifies the right to vote. By definition, if you have a right to do something, you have a right not to do it. Anything the state can make you to do — pay taxes, register for the draft, vaccinate your children, get your car inspected — isn’t a right but a duty. An admirable duty, perhaps; even a vital duty. But if it is something you have to do, it isn’t a right. It’s a legal obligation.
Repeatedly, Dionne and Rapoport analogize voting to jury duty.
“The obligation to serve on a jury certainly involves compulsion,” they acknowledge, but that obligation is “the only way to guarantee fair trials that vindicate the rights of everyone.” Yes, and that’s why we call it “jury duty.” No one has an unfettered right to be a juror. Only citizens who are summoned by name are included in the jury pool, and judges have wide discretion to dismiss anyone deemed unsuitable. Integrity in the jury selection process is indispensable to the rights of defendants, who are guaranteed an impartial jury by the Sixth Amendment. That’s why jurors cannot be disqualified for illegitimate reasons, like their race, sex, or religion — not to protect their (nonexistent) right to sit on a jury, but to protect the rights of the accused.
The right to vote, on the other hand, is not tied to the outcome of any election. It belongs to each adult citizen, regardless of his or her views, prejudices, or knowledge. And like every other individual right conferred by the Constitution — the right to worship, to keep and bear arms, to peaceably assemble — the right to vote is discretionary. You may pray, buy a gun, or join a protest. But the state cannot make you do so or impose a penalty on you if you don’t. The same is true of your right to vote.
Dionne and Rapoport propose a law under which every American would have to cast a ballot, but would be free to leave it blank or vote for “None of the Above.” The key, they maintain, is for all citizens to “participate” in elections, regardless of whether they actually vote. That’s like requiring all citizens to “participate” in religion by showing up at church, while giving them the option of not actually saying a prayer. The sham is self-evident.
American democracy is in poor health these days. But its ailments will not be healed by denying voters the choice of sitting out an election. Five times the Constitution affirms that Americans have the right to vote. Five times, in other words, it affirms their right not to do so.
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