Compulsory Voting is Unconstitutional
President Obama recently praised the idea of “mandatory voting,” saying it would be “transformative” and “completely change the political map in this country,” showing again how unbound he feels by the limits imposed on the power of government by the Constitution and the Bill of Rights.
The president apparently does not believe that the right to speak, which is protected under the First Amendment, includes the right not to speak. And there is no question that we are speaking when we make our choices in the ballot booth. When we don’t vote, we are again making a choice, a choice not to speak that also sends a political message.
The government cannot force you to speak or to vote (or to say a prayer). While Obama may admire the small number of countries that make voting mandatory, such a requirement violates the basic constitutional rights that Americans enjoy and our most cherished liberty: the right to be left alone by the government.
In fact, countries such as Australia enforce their voting requirement by imposing fines on non-voters. In 1964, we ratified the 24th Amendment, which prohibits making voting contingent on paying a poll tax. Yet President Obama is now proposing what would in essence be a reverse poll tax on any American who decides not to vote.
It says a lot about President Obama’s political and social views that he talks about imposing a requirement that even socialist-minded countries such as Italy have rescinded. As my co-author John Fund points out, the former Italian foreign minister Antonio Martino, said that “there was finally a consensus that it was a basic infringement of freedom.”
Martino understands something that Obama apparently does not. As Martino said, “Forcing people to vote violates their freedom of speech, because the freedom to speak includes the right not to speak.”
President Obama got a lot wrong when he broached this idea at a town hall in Cleveland. He claimed that immigrant groups and minorities are being kept “away from the polls.” That is completely false. In fact, his own Justice Department hasn’t filed a single lawsuit under the relevant portion of the Voting Rights Act that prohibits anyone from keeping voters away from the polls. The only suit like that in recent memory is the one filed in the final days of the Bush administration against the New Black Panther Party for intimidating voters and poll watchers in Philadelphia in 2008 – and the Justice Department promptly dismissed that lawsuit almost as soon as Eric Holder took over.
Census Bureau surveys of non-voters also show that the president is wrong in his assessment of why people don’t vote. The vast majority of them choose not to vote because they don’t like the candidates or the campaign issues or are simply not interested in the political process. Their choice not to vote sends its own message to candidates and political parties about their relevance or irrelevance to the lives of those nonvoters.
This mandatory voting idea appeals to progressives such as Barack Obama because they just don’t understand it when voters reject them, as voters did in the mid-term congressional elections in 2014 and 2010. The concept that voters don’t like or agree with their views of an all-powerful government that tells us what to do from birth to death just can’t be true in their eyes. They seem to think that if they can just force non-voters into voting booths, then they will win elections and America will be “transformed” into a progressive utopia.
But the academic research shows this isn’t true. Even if the constitutional problems with mandatory voting could be overcome, “compulsory voting would change the outcome of very few elections,” according to Professor John Sides of George Washington University. That is because non-voters aren’t that different than voters in their partisan outlook and because, as Sides correctly points out, many elections (such as congressional ones) “aren’t that close.”
There is no doubt that we should encourage Americans to exercise their right to vote. But coercing Americans to vote is not only unconstitutional, it is bad public policy. If the president and the federal government were trying to force people to exercise other rights protected by the First Amendment, liberals would be up in arms about it. As my former Justice Department colleague J. Christian Adams says, if the president proposed mandatory prayer, such a proposal could be subject to “laughter, ridicule and endless citation of the Free Exercise clause” of the First Amendment.
Of course, not to be outdone, the president also said at his town hall that it would be “fun” to amend the First Amendment to restrict the free speech rights of Americans to contribute money to the candidates and causes they like and agree with. That an American president would propose such a troubling change to the Bill of Rights that would gut the First Amendment is shocking — as is his complete lack of embarrassment over making such a proposal.
Just more evidence of how much this president disdains the liberty that the Constitution was designed to protect and that Americans take for granted as a birthright.