Note | Constitutional Law
Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting
by Ryan Eason*
94 S. Cal. L. Rev. 963 (2021)
Keywords: Election Law, Voting, Constitutional Law
The Preamble to the United States Constitution envisions a nation governed by “We the People.”1 The United States has never been governed by the people, however. Instead, the United States is and always has been run by the voters. Voters are wealthier, more educated, older, and whiter than “the People.”2 These differences have consequences. Since voters hold the key to lawmakers’ job security, representatives are often more responsive to voters’ interests than nonvoters’ interests.3
The reason voters differ so much from the population4 as a whole is that voter turnout is consistently low in the United States. In federal midterm elections since the passage of the Voting Rights Act in 1965, voters have only constituted an average of 41.4% of the population.5 Even in presidential elections, in which voters usually do make up a majority of the population, the majority is usually bare.6 Consequently, the winners of those elections
are chosen by nowhere near a majority of the population. For example, President Donald Trump was elected by roughly 27% of the population in 2016.7 Even President Joe Biden, who won the largest number of votes for a presidential candidate in United States history, was elected by roughly 34% of the population in 2020.8 These low voter turnout figures set the United States apart from most of the developed world.9
Of course, low levels of voter turnout do not delegitimize elections in the United States. Other major democracies also do not achieve full voter turnout.10 Electoral legitimacy would be impossible to realize if it depended on full voter turnout in every election. However, many argue that low voter turnout in the United States is a serious problem.11 To the extent a country values majoritarianism,12 its elections arguably serve that purpose better
when the gap between its voters and its population is minimized. One day, Congress may agree with this argument. Therefore, this Note imagines a world in which Congress takes a decisive step to fix low voter turnout: compel every eligible American adult to vote.13
Congress is unlikely to pass such a transformative piece of legislation in the near future. However, it might enact compulsory voting someday. Far from being a fringe or radical idea, it has been implemented by several democracies,14 and it has been successful where actually enforced.15 Indeed, commentators often cite compulsory voting as a solution to the United States’ low voter turnout problem.16 Compulsory voting legislation has even been recently proposed at the statewide level in California.17
But if Congress decided to pass compulsory voting legislation, it would face a substantial and unanswered question: would it be constitutional? This Note intends to answer that question by analyzing how compulsory voting would fare in various constitutional challenges.18 Part I explores how compulsory voting might be structured in the United States if Congress based its legislation on Australia’s. Part II addresses the most likely constitutional challenges to compulsory voting. The structural argument addressed in Section II.A concerns whether Congress has the constitutional power to pass compulsory voting if it conflicted with state legislation. I conclude that it does because the Elections Clause gives Congress the power to supersede
state election regulations, even when states have not acted. The rights-based arguments addressed in Section II.B concern whether compulsory voting would violate the right not to speak or a potential right not to vote. I conclude that while the voting is expressive conduct, compulsory voting would not violate the First Amendment by compelling it. I also conclude that there is likely no such thing as a right not to vote. However, if there is a right not to vote, the interests served by compulsory voting would outweigh the light burden upon it. Finally, Section II.C argues that compulsory voting legislation could be legally justified as a tax.
*.2021, University of Southern California Gould School of Law. This Note has benefited greatly from the guidance of Professor Sam Erman; the support from my fiancée, Katie Bayard; and the astute editing of my colleagues at the Southern California Law Review.