In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: improving voter turnout by making it mandatory to go to the polls.
The statement at issue:
Jury duty is mandatory; why not voting? The idea seems vaguely un-American. Maybe so, but it’s neither unusual nor undemocratic. And it would ease the intense partisan polarization that weakens our capacity for self-government and public trust in our governing institutions. Thirty-one countries have some form of mandatory voting…Mandatory voting nationwide would go counter to our traditions (and perhaps our Constitution)…Instead, a half-dozen states…should experiment with the practice.
– Comment by William A. Galston, senior fellow at the Brookings Institution in Washington, in “Telling Americans to Vote, or Else,” The New York Times, Sunday, November 6.
We checked the Constitution, and…
No doubt, a nationwide move to force Americans to vote, using whatever mechanism was available to enforce the requirement, would violate the Constitution as it exists today. As Mr. Galston suggests, it would intrude upon the power of the states, guaranteed by the Constitution, to decide who gets to vote and generally how elections are to be conducted.
It might be done by amending the Constitution. The states’ authority has been overridden a good many times that way: The Fifteenth Amendment gave all citizens the right to vote without regard to race; the Seventeenth gave the people the right to elect U.S. Senators; the Nineteenth gave women the right to vote; the Twenty-Third did so for the people of Washington, D.C. [but only for President and Vice President in federal elections]; the Twenty-Fourth abolished the poll tax, and the Twenty-Sixth gave the right to vote to everyone 18 years old or older, in all elections.
But Mr. Galston may well be wrong on a number of his points. First, jury duty is not actually mandatory. Many states assemble jury pools only from the voter registration rolls, and registering to vote is a matter of individual choice. And jurors frequently are allowed to opt out, for personal reasons, and otherwise.
And it is far from clear that states could even experiment with making voting mandatory. Part of the confusion stirred by that suggestion is due to a misunderstanding of the notion that voting is a “civic duty.” It is said to be an “obligation” of one’s citizenship, but so, one might say, is saluting the flag, and one has a constitutional right not to do that.
That concept of “duty” is categorically different from, say, the duty to serve in the military, back in the days when there was a draft and one’s number came up. Even the draft, though, had to withstand, in the Supreme Court, a claim that it was an unconstitutional form of “involuntary servitude” under the Thirteenth Amendment. Compelling a person to cast a vote might also be challenged under that Amendment, and might have more success. The military can’t function without enough troops; elections certainly do function, often, with fewer than a third of those who registered actually taking the trouble to vote.
Other arguments might be mounted against experimenting with mandatory voting. If voting is a “privilege,” one could make a constitutional claim that, as such, it also is a “privilege” to stay home on election day. There are all kinds of such avoidable civic “privileges.”
It is not much of a stretch, if any, to suggest that such civic opportunities (or the avoidance of them) are guaranteed by the obligation of states, under the Fourteenth Amendment, not to “abridge the privileges or immunities of citizens.” Moreover, an argument could be made that it violates the “equal protection” guarantee of the Fourteenth Amendment to deny a citizen of an experimenting state the option of not voting for President or for a member of Congress, while a citizen in a non-experimenting state can opt out of the election altogether.
But what is most flawed about Mr. Galston’s suggestion is the spirit of it. People who have wanted their freedom have, for centuries, yearned for the right to vote, and stood ready to exercise it as a matter of free will. Using the coercive power of government to push one to the polls, as is sometimes done under totalitarian regimes, treats a trip to the polls as neither a right nor a privilege.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.