Is Mandatory Voting Unconstitutional? The Answer Is Not That Straight-Forward

This week, President Obama said that if voting was mandatory in the U.S., it would be "transformative." But what are the ramifications of mandatory voting? The U.S. prides itself as a defender of freedom and individual choice, so, is compulsory voting a violation of your individual liberty? Scott Shackford of the libertarian Reason makes the case against required voting on the basis of speech:

Mandatory voting is a violation of our civil rights, just as denying a citizen a right to vote is a violation. Casting a vote is speech. It is showing support or opposition to a candidate or proposal. Making voting mandatory means voting is no longer a right. It's an obligation. It's forced speech.

An important refresher from high school civics — freedom of speech is in the First Amendment. Simply put, it's protected. As a society, we value this and claim our right to it. Less often, individuals claim their right to not speak. Individuals cannot be forced to speak, and this translates to the voting booths. In a free society, each individual ought to be free to decide whether to participate on election day.

The use of force or coercion by the government to make an individual vote is problematic — not voting is an act of protest. Dissatisfaction of candidates on the ballot is compelling reason enough for some people to simply stay home. National Review's John Fund addresses the importance of non-voters:

... in times of discontent when major parties are not offering up clear and compelling alternatives, non-voting signals that the legitimacy of the process is being questioned.

Some nations that have adopted mandatory voting have made steps to accommodate non-voters — in lieu of casting a vote, Australian citizens potentially face a fine or a day in court. Even if a fine were implemented allowing Americans to opt out of voting, it still violates one's right. Any fine levied is a punishment — a statement by the government that the individual has done wrong. That is the wrong message to send.

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Michele Jawando of the liberal think tank Center for American Progress, supports mandatory voting: “I think it would be Constitutional, without question.”

But there's one provision — there would have to be a check box for "none of the above." That's a fair point, and it would be a clear indication of dissatisfaction. But there are still a lot of costs to going out to the polls for those who don't want to vote — the financial costs of driving there and back, not to mention time.

William A. Galston of the left-leaning Brooking's Institution also commented on the constitutionality of compulsory voting:

Mandatory voting nationwide would go counter to our traditions (and perhaps our Constitution) . . . Instead, a half-dozen states . . . should experiment with the practice.

Perhaps federalism could be a more constitutional way to legally mandate voting on a state-by-state basis. Though it still poses the same question: can the state, or Washington D.C., force an individual to vote?

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Americans should continue to have the liberty to choose not only who to vote for, but also whether to even vote. Higher voter turnout isn't necessarily the best thing for democracy, unless it's by choice. Force certainly isn't the answer.

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