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Lisa Hill[*]
Compulsory voting can work as an effective preventative of declining voter participation in established democracies that are currently experiencing a turnout problem. Britain and the United States are just two examples. The first part of this paper provides some background to the problem of non-voting and an explanation of why compulsory voting is the most efficient and effective means for improving voting participation. It also canvasses some of the benefits of compulsory voting. The bulk (and remainder) of the discussion proposes guidelines and desiderata for a compulsory voting regime suitable for adoption by established democracies considering a switch from a voluntary to a compulsory system. This 'export' standard template is loosely based on Australian arrangements, though with modifications as suggested by 'good' and 'bad' practice in other regimes as well as experience of the positive and dysfunctional aspects of the Australian system. Recommended changes include reforms aimed at expanding the franchise and limiting the coercive aspects of the practice as well as measures to meet the charge that compulsion limits democratic choice.
In well-established (voluntary voting) democracies steadily declining voter turnout has become a matter of increasing concern. Universal or near-universal voting participation is important because it serves and enhances a number of fundamental democratic values, among them: popular sovereignty, legitimacy, representativeness, political equality and minimisation of elite power. Advocates of complete and representative turnout often say that the more completely the preferences of the majority are registered, the more democratic and legitimate will be the system. Perhaps the most important value undermined by incomplete participation is political equality or, more specifically, the principle of one vote, one value. Compulsory voting works well to serve such important democratic values. It is also a symbolically powerful democratic mechanism because it signals that the society is, by law, at least, universalistic in nature, and that citizenship is a status to be exercised by everyone regardless of contingent characteristics such as economic status, residential status, educational levels or employment status, and in spite of characteristics irrelevant to the exercise of citizenship rights, such as ethnicity, sex, infirmity or disability.
Aside from the general problem of low and declining turnout in advanced democracies, equally worrying is the persistence and widening of the socio-economic status ('SES') voting gap whereby voting participation is concentrated among the more prosperous members of the polity. Compulsory voting could be a valuable aid in arresting this trend and in the re-establishment and consolidation of civic habits in democracies that are currently experiencing a turnout problem.
After the last round of national elections in Europe and North America, interest has grown in compulsory voting as an antidote to the worldwide trend towards civic de-mobilization, particularly in the form of rapidly decreasing voter turnout. Poor turnout at the American presidential election of 2000 (51.0 per cent)[1]
stimulated interest in the mandatory vote[2] while in Canada recently the Chief Electoral Officer, Jean-Pierre Kingsley, announced that he was considering recommending the introduction of compulsory voting as a means by which to ameliorate the problem of low turnout. At Britain's general election of 7 June 2001 only 57.6 per cent of eligible voters cast a vote. This represented a sharp drop from the 1997 and 1992 figures of 69.4 per cent and 75.4 per cent respectively.[3] Alarmed at the possible emergence of a secular trend, the British Electoral Commission considered compulsory voting ('as in Australia') as a means by which turnout could be improved.[4]
In November 2001, a Bill sponsored by 10 Labour MPs, and introduced into the Parliament by Gareth R Thomas (MP for Harrow West), was given a first reading (it was subsequently dropped on the second reading).
Although the idea of compelling citizens to exercise a democratic 'right' is an anathema to many, the practice has been used successfully in a number of settings.[5] Yet only a few advanced democracies use the system. Australia pioneered the use of compulsory voting and is the only English-speaking country to have done so. Australia's is also, arguably, the most effective and efficient of any system in the world.
Compulsory voting was introduced in Australia in 1924[6] to address the problem of low voter turnout. It proved to be an extremely decisive and successful remedy.[7] But it should be noted that the term 'compulsory voting' is misleading because it is (effectively) only registration and attendance at a polling place that are compulsory.[8] What is really meant by the phrase 'compulsory voting' is attendance at a polling place, having one's name marked off the roll, collecting the ballot papers and putting them in the ballot box. Due to the secret ballot, it is neither feasible nor desirable that the state seek to compel people to mark the ballot, though whether the law technically requires this is controvertible.[9] Nevertheless, the compulsion to register and attend does ensure that the vast majority of Australians enjoy the opportunity to exercise their 'right' to vote.[10]
One of the difficulties with changing voting behaviour is that voting is partly norm-driven. In other words, voting seems to be a kind of habit. According to results generated by polling in Britain, for example, 'civic duty' and 'habit' are the primary reasons why 'three in five adults vote in a general election even in the worst of cases'. Consistent voters apparently regard voting as a civic duty whereas abstainers are less likely to think of voting in this way.[11]
Among voters, 42 per cent say they vote because '[i]t is my civic duty/everyone should vote'. Thirteen per cent of those who voted said they did so because it is their 'right' to do so. Eleven per cent gave the simple reason: 'I always vote'. Significantly, 53 per cent of those who reported having no interest 'at all' in politics still voted, while 67 per cent of abstainers agreed that voting was important and yet stayed away on polling day.[12] Similarly, in their study of American and Dutch absenteeism, Smeenk, de Graaf and Ultee found that the decision to vote depended 'on the norms of the social group' to which the person belonged.[13]
Significantly, voting is only a habit among certain social groups. A substantial body of comparative research indicates that there are strong negative correlations between voting and socio-economic status characteristics like low levels of education, residential instability and homelessness, youth, being a new immigrant, being a member of an ethnic minority, economic marginality and unemployment.[14] The United States exhibits an unusually strong relationship between socio-economic status and voter turnout but it exists in virtually every advanced democracy where voting is not compulsory. In Britain, for example, the salariat exhibits more powerful norms of civic duty, and is therefore more inclined to vote than are people in lower socio-demographic groups.[15]
Further, and perhaps even more worrying, is the fact that the increasing gap between rich and poor has been strongly implicated as a factor in decreasing voter turnout and civic participation: declining turnout in the United States, for example, is thought to be concentrated among those with low socio-economic status.[16] A similar pattern exists in Britain[17] and, as Jack Vowles concludes with respect to the New Zealand case: 'increasing inequality and unemployment is indeed likely to decrease turnout'.[18] The fact that the decline in participation is steepest among those least inclined to vote in the first place thus exacerbates and entrenches existing biases in the political system.
For many, then, it is abstention that is the habit. This is not to say that habit is the 'real' reason why people vote or abstain because we know that electoral motivations are usually quite complicated and mixed. It would be just as inaccurate or reductionist to describe 'habit' as the motivation for stopping at red lights even though doing so is indeed an ingrained habit for most of us. Deprived people don't really abstain just because it is a group norm. Rather it is a group norm because deprived people tend to be more alienated and pessimistic about politics. They generally feel less connected to society in general, and to the democratic process in particular, and are less inclined to regard voting as a duty owed to society. This is possibly a function of the fact that social life has been less rewarding for them than it has for those who do see voting as a duty. The term 'habit' is thus a kind of behaviourist shorthand for the end result of a complex constellation of processes, external forces and internal motivations that are brought to bear on any person's disposition to vote or abstain. But it is still useful to think of voting in this way, not so much as a way of explaining the behaviour, but for the purpose of attempting to change it.
It is not necessarily the case that non-voters are less interested in politics but they are less informed, more disillusioned and most importantly 'less connected to the established political process' than are voters. A self-perpetuating cycle exists because 'non-voters do not like what they see when they do connect with information about politics — which is usually only during elections when they cannot avoid it.'[19] In addition, those who are socially excluded only exacerbate their social exclusion by abstaining. The more they abstain the worse their exclusion is likely to become so that a counterproductive cycle of exclusion, low efficacy, cynicism and non-participation becomes entrenched.[20] Compulsory voting can provide a circuit-breaker to this cycle, partly because it can boost levels of subjective political efficacy[21] but mainly because laws are an extremely effective way of changing entrenched behaviour.
For Richard Hasen, low turnout and its attendant dysfunctions are best thought of as a case of 'social failure'. 'Social failure' occurs when a social norm, which would otherwise maximise a group's welfare, fails to emerge.[22] Although it is extremely difficult to change norms of behaviour it is possible to generate norms artificially via legislation. Laws can 'cure' social failure, not only by applying sanctions that issue in new behaviour but, more subtly and consequentially, by 'shaping preferences' and 'changing tastes'.[23] A good historical example is any law instituted for the purpose of granting suffrage rights to previously excluded categories of people, in spite of prevailing (that is, hostile) social norms. Such laws, though initially opposed by many (and often the majority) of the public, soon came to be accepted as normal and, eventually, people came to take their voting rights for granted. Similarly, compulsory voting legislation, despite any initial (and probably inevitable) resistance, can become an accepted and effective means for establishing or re-establishing the adaptive norm of voting among habitual abstainers.
Critics of compulsory voting sometimes suggest that low turnout can be ameliorated by other less coercive means, and a number of countries have sought alternative solutions, with varying degrees of success. In the United States, for example, a recent attempt to improve turnout and close the widening SES gap failed. Even though the National Voter Registration Act of 1993[24] ('Motor Voter Act') was carefully targeted at the most deprived and politically inactive members of the electorate, depressingly, and despite all hopes to the contrary, voting rates among registered voters actually declined.[25]
Other institutional means by which to improve turnout include: reducing the frequency and complexity of elections to address the problem of voter fatigue, moving election day to a Saturday or else declaring it a national holiday,[26] providing for automatic registration and absentee voting,[27] siting polling places in shopping malls to reduce the opportunity costs of voting, extending voting over two or more days[28]
or else offering voters incentives to vote.
Making elections more salient (ie visible, consequential and therefore meaningful) to voters also seems to enhance turnout. One common source of low electoral salience is the choice-restricting effect of a simple plurality system, leading to depressed turnout and tactical voting. Accordingly, proportional representation is often proposed as a means by which to encourage voting.
The adoption of all measures known to increase voting participation would be extremely difficult. But, if they were adopted, 90 per cent turnout rates in places like Britain, the US and Canada would be a real possibility.[29] And yet there is one simpler solution that can raise turnout higher than all these reforms put together: compulsory voting. In fact compulsory voting is the only institutional mechanism that can achieve turnout rates of 90 per cent and above on its own.[30] This has been verified in a number of countries in which compulsory voting has been adopted and, more importantly, systematically administered.[31]
Whereas turnout in most industrialised democracies is steadily declining, Australia has maintained healthy levels (around 83 per cent of the voting age population ('VAP') and 95 per cent of registered voters ('RV')) for many years. Belgium enjoys turnout of around 91 per cent RV,[32]
while in The Netherlands, for the 53 years that compulsory voting was in force (1917–70), turnout was consistently above the 90 per cent mark.[33] Even those who do not necessarily approve of mandatory voting admit that it works.[34]
Aside from its ability to significantly improve turnout, the second major benefit of compulsory voting is its capacity to close, more or less completely, the SES voting gap that exists in most voluntary systems. The effectiveness of compulsory voting at closing this gap has been demonstrated empirically. In Belgium socio-economic status, which is normally a determinant of non-voting, is 'effectively erased' as a variable for non-voting under a system of compulsion.[35] Similar results were found in studies conducted in The Netherlands, a country that provides particularly compelling evidence of this closure due to the abandonment of compulsory voting in the seventies.[36] In Australia, a number of studies addressing the question of how turnout would look under a voluntary regime conclude that a class bias would most likely benefit the more conservative Liberal-National Coalition.[37]
Assuming that some voluntary systems are seriously contemplating the adoption of a mandatory regime, it is worth considering how best to proceed. In other words, what kind of compulsory voting regime works best and in what circumstances?
The idea of being compelled to vote, which so many Australians take for granted, is an anathema to many citizens in voluntary systems, therefore the greatest obstacle to its introduction elsewhere may be psychological or cultural. One way of acclimatising the electorate (or else testing potential tolerance) to compulsory voting is to initiate a pilot study in a single electorate deemed receptive to the idea.[38] Alternatively, and more ambitiously, compulsory voting could be limited to first order elections (for example, parliamentary or presidential) in order to avoid the problem of voter fatigue (another condition known to depress turnout in voluntary settings). And, if voting and registration were relatively easy, as they should be wherever they are mandatory, any antipathy could most likely be contained.[39]
For a compulsory voting regime to be both effective, in terms of assuring high turnout, and appropriate, insofar as it is not being used as a mechanism to forge consent, legitimise one-party contests or tyrannise political adversaries, a number of conditions need to be met. Chief among them are: a well-established system of democratic institutions;[40] a developed national infrastructure;[41] reasonable levels of co-operation between regional and central governments (particularly within federal structures); professional, well-funded, independent and accountable electoral commissions;[42] free and competitive elections; universal suffrage and well protected civil and political rights. Where any of these conditions fail to be satisfied, the effectiveness and/or legitimacy of the compulsion may be in question.
Compulsory voting may be especially inappropriate in legal or effective one party states. In Singapore, for example, compulsory voting in presidential and general elections does bring voters out but voting participation is patchy because it is only compulsory to vote in contested seats. Because the ruling People's Action Party ('PAP') effectively represses opposition with its tight controls on political activity, many seats go uncontested.[43] Singapore is therefore an effective single party state (ruled by the same party — the PAP — since 1965) in which many voters are disenfranchised.[44] Thus compulsory voting may be being used, not as a means to prevent civic exclusion, but as a mechanism to manufacture consent and to create the illusion of universal participation. Further, because the law is applied selectively in Singapore (that is, only in contested seats) opposition presence is effectively hidden on election day.
Another important consideration is to ensure that compelling citizens to vote does not interfere with any existing rights, particularly those that are constitutionally protected. In general, the question of a right to abstain has attracted little attention, most likely a function of the fact that, unless mandatory voting is being exploited as a means by which to forge consent (as was the case in single party states which enforced voting), few citizens are anxious to divest themselves of such an important and often hard-won right. Nevertheless, objectors in the United States might, for example, claim that compulsory voting limits political freedom and that the right to vote implies a right not to vote. Similarly, if Australia were to adopt a bill of rights, voting libertarians might argue that its protection of political freedoms conflicts with the requirement to vote.
In fact, the existence of such a right has been tested legally and, so far, has been found to be non-existent. In the United States it has been indirectly challenged a number of times via constitutional challenges to voter purge statutes. Almost all have been unsuccessful[45] including one that explicitly argued that voter purge statutes violate the right not to vote and thereby express political dissatisfaction.[46] Similarly, in 1971, a case against compulsory voting was heard in the European Court of Human Rights under Article 9 of the European Convention on Human Rights ('freedom of thought, conscience and religion').[47] In the case of X v Austria the Court ruled that, provided there was no compulsion to mark the ballot formally, compulsory voting does not violate the right to freedom of conscience and thought.[48]
From a more practical point of view, compulsory voting does not work as well in countries that lack a developed infrastructure and established traditions of political and social rights.[49] Nevertheless, even in places that do not enjoy this level of development, compulsory voting may still be appropriate. For example, even in a developing nation like Brazil, which has a population of around 170 million, experiences high levels of illiteracy[50] and has considerable geographical barriers,[51] compulsory voting is still administered with reasonable effectiveness. Brazil achieves turnout of around 78 per cent RV which, while not ideal, is nevertheless impressive given the numerous constraints mentioned.[52] The Brazilian case also highlights the potential usefulness of compulsory voting for emerging democracies. According to Zachary Elkins, compulsory voting laws not only serve to moderate the effect of extreme wealth inequalities in Brazil, but are 'a useful means of installing civic habits and building a participatory culture in nations where democracy is not yet consolidated'.[53]
Mackerras and McAllister have suggested that, because voting is compulsory here, 'politicians and electoral officials have gone to considerable lengths' to make voting as simple and accessible as possible. Their comment that Australia is 'probably … the most voter-friendly country in the world'[54] is a fair assessment: it would be hard to find another system with such low transaction and opportunity costs to voters.[55] Therefore, Australian electoral arrangements qualify as a good basis from which to build an effective and equitable system. With this in mind, the following discussion canvasses the desirable elements of an ideal regime.
There are a number of ways by which to maximise the effectiveness of a compulsory voting regime, some of which double as means by which compulsory voting can be made more acceptable to a sceptical electorate. What follows is a series of suggestions in this direction, using the Australian model as the basic template, but with appropriate modifications as suggested by weaknesses within it.
1 Limit Opportunity and Transaction Costs. Wherever voting is compulsory it is reasonable to expect the state to make voting a relatively painless experience, not only because of equity considerations, but in order to ensure a high rate of compliance. And, like any compulsion, compulsory voting is also easier to defend where the obligation is universal (that is, without suffrage restrictions based on secondary or contingent characteristics like ethnicity, sex or age)[56] and where the goal of equality of political opportunity is actively sought by electoral commissions.
In voluntary systems voting can be a fairly complicated business: registration is not always simple, electoral education may not be provided, elections are often held on weekdays and absent voting may not be available. In order to participate and be informed voters have to sacrifice other, potentially more desirable, activities. These are known as opportunity costs and are additional to the more straightforward transaction costs of voting (such as the cost of transport to a place of voting). But, in Australia, the state (via electoral commissions) assumes a high degree of responsibility for making feasible what it requires of voters. The obligation imposed on the citizen to 'vote' is met by an even stronger commitment by the state to ensure that the performance of the imposed duty is feasible for all eligible Australians. No electoral commission in a voluntary setting goes to nearly this much effort. In Australia, no-one, including the infirm, imprisoned, ill or isolated, is expected to meet the potentially high resource and opportunity costs of voting: costs which the state would be unlikely to offset were voting voluntary (and this is, in fact, the case in most voluntary systems). Since Australian electoral commissions actively seek and assist with registration, and because polling booths are generally close at hand, elections are held on a Saturday and absent voting, mobile polling and postal voting are readily available, voters don't have to forego too much in terms of opportunities for work or leisure in order to vote.[57] As Orr, Mercurio and Williams have noted, the compulsion to vote in Australia 'colours electoral authority activity in a positive way' by encouraging 'electoral commissions to treat every vote as sacred and to expend considerable efforts in ensuring adequate access to the ballot'.[58]
Accordingly, proper accommodation should be made for aging people, the homeless, those living in remote regions, prisoners, itinerant workers, people who have a disability, and people who are ill, housebound, living abroad, approaching maternity, hospitalised, illiterate or from a non-English speaking background. Australian electoral commissions take great care to ensure that all such categories of people are enabled to vote. There are even special enrolment categories and provisions for 'silent enrolment' (for those who believe that having their name on a public roll endangers either themselves or their families) and itinerant enrolment ('for homeless people, or people who travel constantly and have no permanent fixed address'). Commissions also provide for voters who have a disability, have literacy problems or are 'from a non-english speaking background, to vote, in secret, on election day' if they so wish. Those whose name cannot be found on the roll are also accommodated with a 'provisional' vote.[59]
In order to ensure that the voting obligation is neither burdensome nor exclusionist, polling should be held on weekends or a public holiday, in numerous and convenient locations, and provision should, ideally, be made for mobile polling, postal and absent voting and electoral education. Such is the case in Australia.[60]
2 Registration. In any compulsory regime registration should be universally easy so as to not unduly burden voters and to ensure a good rate of participation. In Australia it has normally been quite simple for people to register to vote, however, recent attempts to change the law could make this more difficult for first time enrollees. Historically, identification has not been required for enrolment but attempted amendments under the Electoral and Referendum Amendment Act (No 1) 1999 (Cth) would have introduced proof of identity checks. The amendment was 'disallowed' on 15 May 2002 'on the motion of … [John] Faulkner'.[61]
But the Joint Standing Committee on Electoral Matters has recently recommended (June 2003) that identification be required.[62] Subsequently there has been bipartisan agreement that new enrollees be required to show or provide a photocopy of their driver's licence or equivalent.[63]
If such changes are legislated, first-time (federal level) enrollees (of whom the overwhelming majority are the young) would need to produce identity documentation (for example, a birth certificate, passport or photographic driver's licence). Because getting people enrolled is harder than getting them to vote in Australia, such measures would doubtless lead to even lower voting turnout among the young. (It is already lower than the average). Further, the measure is discriminatory because it would require young people to 'meet a hurdle' from which older voters are shielded.[64]
The under-registration (and therefore low voting participation) of homeless people is also a matter of concern in the Australian setting. Despite the provision of itinerant enrolment arrangements, a significant proportion of the homeless are not enrolled. Due to the fact that this problem has never been investigated systematically, authoritative figures on the civic exclusion of the homeless are elusive. According to Hanover Welfare Services, around a third of the homeless population is unregistered to vote whereas the Australian Federation of Homelessness Organisations puts the figure at closer to 90 per cent.[65] Provided that political corruption and election rigging are not major problems, any system considering compulsory voting should ensure that there are as few hurdles to registration as possible and that those most in need of the protection that voting can afford are enabled and actively encouraged to enrol.
3 Eligibility. Although most Australians do vote, some remain excluded, notably certain prisoners. Under present arrangements, it is only those prisoners serving a sentence of three years or more who are ineligible to vote in federal elections though the disqualification threshold for state elections varies from state to state. In South Australia, there is no disqualification whereas in Tasmania any period of imprisonment attracts disqualification. For the remaining states and territories a five- year sentence is the threshold.[66] The Australian Electoral Commission is generally vigorous in its efforts to secure the vote of prisoners who are eligible, providing them with educational material on their arrival to prison and the paperwork requisite to postal voting at election time. But those who are disqualified are subject to a further form of social exclusion that they can ill afford to bear. Further, such disqualification is difficult to defend within the prevailing frameworks of liberal democracy, international law, and current thinking on criminology and penology. Yet the retention or recovery of the fundamental democratic right to vote has enormous symbolic value (particularly in relation to the process of rehabilitation) because it signifies that, despite a person's incarceration, s/he retains the full status of a person (that is, a bearer of rights) and an Australian citizen (bearing in mind that in liberal-democratic orders it is primarily, and almost exclusively, legal citizenship that signifies one's belonging to a socio-political community).[67]
It has also been suggested that another excluded group — permanent residents — should be granted voting rights on the grounds that they pay taxes at the same rates as legal citizens, 'are equally subject to Australian law, and equally part of Australian communities as are citizens'.[68]
4 Appropriate Penalties. In order for a compulsory voting regime to work well, penalties, albeit mild and appropriately calibrated ones, seem unavoidable. Countries that claim to have compulsory voting but do not systematically penalise avoidance tend to have a low turnout[69] but where penalties are applied, turnout in the 90 plus per cent range is routinely achieved.[70] If penalties are necessary, then the question becomes: what kind of penalty is suitable? It is best if failure to vote does not attract serious legal consequences in the manner of systems like Greece or Cyprus where abstention can result in a term of imprisonment or the withholding of passports.[71] Such retributive penalties are hardly appropriate for failure to exercise a political freedom. In addition, they could bring the institution of compulsion into disrepute and prevent it from becoming accepted as a cultural norm and a reasonable imposition on personal autonomy.
Neither is full or partial deprivation of voting rights appropriate since it only exacerbates the problem that compulsory voting purports to ameliorate (that is, low turnout). In Singapore, for example, abstainers are expunged from the register and reinstated only if an appropriate reason is given or the fine paid. Similarly, the deprivation of access to other goods is undesirable, not least because it is likely to disproportionately burden the poor. In Peru, for example, for a number of months after the election, voters have to carry a stamped card as proof of having voted: without the stamp it is not possible to obtain certain goods and services from public offices.[72]
Cost is also an important consideration here: the prospect of having to fine and/or prosecute large numbers of citizens could be a considerable disincentive to the introduction of the mandatory vote. However, if the issue of penalties is handled carefully, as it is in Australia, Belgium and, before 1970, The Netherlands, costs and legal complications can be kept to a minimum.
The cost of mobilising the Australian vote and enforcing electoral law in federal elections averages at around five dollars per vote.[73] One reason for this relative economy is that, even in systems where sanctions are real and compliance high, abstainers are rarely fined or prosecuted. Most cases of non-compliance in Australia are dealt with via 'please explain' letters, which is basically an honour system. If the reasons are deemed to be 'valid and sufficient' by the relevant electoral commission no penalty is applicable.[74]
Well below one per cent of the Australian electorate is ever faced with a fine or court attendance in any given election period,[75] while in Belgium less than 0.25 per cent of non-voters are ever prosecuted.[76]
Why, then, do Belgium and Australia enjoy such high rates of compliance? There are two likely explanations for this: the first is that voting is so easy in these well-regulated systems that failure to vote is far more burdensome than voting. It is much easier to drop in at any of the numerous and conveniently located polling places on your way to the shops than it is to provide an excuse for failure to do so. The second is a norm-based explanation: when the law requires that people should vote, and specifies penalties for failure to do so, the norm of universal participation is generated and reinforced. People don't necessarily (or exclusively) vote in order to avoid penalties but because universal participation is the norm and it is the norm because it is the law. The law thus 'represents some kind of social consensus about acceptable behaviour in much the same manner as social norms.' Strict policing and enforcement of the law is unnecessary because the establishment of the law causes people to internalise a preference for a particular behaviour.[77] In Belgium, despite extremely lenient penalties (a reprimand or a fine of between one and three francs) as soon as the law was introduced absenteeism fell immediately from between 16 to 30 per cent (1884 and 1892 respectively) to a mere 6 per cent.[78] Similarly in Australia, the penalties for failure to attend a polling booth are fairly mild.[79] The majority of Australians endorse compulsory voting and could be said to consent to the obligation to vote, not merely because they feel bound to obey the laws of a relatively just society, but because they apparently regard this particular law and its entailed obligations as a reasonable imposition on personal autonomy.[80]
The law and social norm seem to be mutually reinforcing. In one sense the law constitutes the norm but it also reinforces the norm. The veracity of this view of the relationship between law and norms has been demonstrated most vividly in the case of The Netherlands where before and after effects of compulsory voting have been detectable and extensively assessed. Before the compulsory voting law was repealed in 1970, The Netherlands enjoyed very high turnout despite the fact that the fine was quite modest (around five dollars) and only a tiny percentage of abstainers were prosecuted in the aftermath of any given election.[81] But because the law decreed that people should vote, people did in fact vote. As soon as the law was repealed turnout fell immediately and drastically.[82] The penalty — though real — had acted as a symbolic reminder that voting attendance was compulsory.[83] Thus, a compulsory voting law may act as an effective surrogate for the social norm of voting.[84]
But, it needs to be emphasised that law without sanctions will not guarantee high turnout. As Wolfgang Hirczy has noted, democratic regimes that impose penalties for non-voting have turnout of approximately 10 to 13 percentage points higher on average than those which do not impose penalties.[85] By the same token, even though the law needs the sanction in order to be effective this does not mean that the law should (or will) be experienced by citizens as coercive or burdensome. Where penalties for non-compliance are applied fairly, flexibly and without zealotry, universal voting participation may eventually become a cultural as well as a legal value.
5 Offset the Compulsion with Alternatives That Expand and Enrich Democratic Choice. In order to meet the objection that compulsory voting represents yet another form of state paternalism, that may not be welcome, and to enhance the acceptability of compulsory voting to a resistant electorate, a number of strategies can be used to offset the compulsion.
The first of these is to make provision for conscientious objectors, that is, people who are not apathetic but who have genuine, sustained and politically principled objections to the compulsion. Such a regime would probably be unworkable if securing an exemption were too easy because this could lead to mass abstention. Provided that gaining an exemption required some effort (including the written provision of reasons that extended beyond apathy or laziness) this is unlikely to happen, not only because the effort involved would be far greater than that of voting in the first place,[86] but also because, if a system is well administered, the majority of citizens will not be particularly bothered by the compulsion, as is the case in Australia and Belgium.
A further means for offsetting the compulsion is to ensure that the laws governing compulsory 'voting' are framed in such a way as to make clear that it is only registration and attendance at a polling place that is actually compulsory rather than marking the ballot or voting formally.[87] A system similar to that which exists in Belgium could be instituted. There the law explicitly stipulates that it is only attendance at a polling place that is required.[88]
In Australia, the law is somewhat ambiguous on the question of whether it is only registration and attendance at a polling place that is actually compulsory or whether it is, in fact, technically an offence to fail to either mark the ballot in some way or record a formal vote. But, in South Australia, this aspect of electoral law has been successfully clarified. Here s 85(2) of the Electoral Act 1985
(SA) 'provides that an elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting does not breach the compulsory voting requirement.'[89] It is probably desirable that any new compulsory regime follows South Australia's lead and clarifies the law to the effect that it is only registration and attendance that are compulsory. This would make it more difficult to make the usual objections that mandatory 'voting' either limits democratic choice, forces voters to lie or operates as nothing more than a mechanism to manufacture consent.[90]While moving away from majoritarian forms of voting is another way of making the voting experience more meaningful for all voters, in preferential systems, choice may be expanded still further by the use of optional preferential voting.[91] The use of optional preferential voting would also help to offset criticism of compulsory registration and attendance.
At present New South Wales, Queensland and the Australian Capital Territory all have partial (and in some houses full)[92]
optional preferential voting systems for elections to their respective State/Territory legislatures. The use of this method meets an objection sometimes expressed by voters that having to number each square in order to record a formal vote compels them to express a preference that they may not have or else forces them to endorse candidates they positively dislike. This could be interpreted as a derogation of the democratic principle that representatives be chosen by the people.[93]
A final strategy for meeting the charge that compulsion limits democratic choice is to design and provide ballot papers that capture a wider than usual repertoire of political responses. Ballots could offer options that record disaffection or could contain an open category: 'protest vote', with a blank space for respondents to write their own comments. Formal voters could also use the space to register comments and protest. A compulsory voting bill sponsored by British Labour MPs in November 2001 contained the provision that voters would be able to 'register their abstention on a new slot on the ballot paper'.[94] Alternatively voters could be offered the not unprecedented opportunity to vote for 'None of the Above'.[95] For example, Russian presidential elections offer voters the option: 'Against All'. In the 26 March 2000 election, 1.88 per cent of the electorate chose this category.[96] The British Electoral Commission of 2001 also contemplated the possibility of providing an entry on ballot papers for 'positive abstention' whereby voters could vote for 'none of the above'. [97]
A well-designed and properly administered compulsory 'voting' regime can provide an elegant, economical and reliable solution to the problem of low and unequal turnout which, if properly managed, may be well tolerated by citizens. It is true that compulsory voting cannot do much to cure cynicism about politicians or prevent a further softening of party loyalties: nor can it address the problems associated with lack of election salience and first past the post voting, all of which are known to depress turnout in voluntary regimes. But it does have the potential to ameliorate some of the electoral problems experienced in voluntary regimes. It can remedy bad and worsening turnout and decisively close the SES voting gap, while enhancing and protecting such important democratic values as representativeness, legitimacy and political equality. Further, by ensuring the performance of at least one form of civic participation, it can boost levels of political efficacy.
[*] Senior Research Fellow, Politics Discipline, School of History and Politics, University of Adelaide. The author wishes to thank Graeme Orr, George Williams and the anonymous referees for their many helpful suggestions in preparing this paper. She also thanks her able research assistants, Jonathon Louth and Luke Trenwith, for their invaluable assistance.
[1] This was actually a small improvement on the previous election in 1996 of 49.0 per cent. But it was probably a function of the unusual closeness of the race (Voter Turnout and Mobilization (2002) The Center for Voting and Democracy <http://www.fairvote.org/turnout/ index.html#international> at 6 March 2003. The story in congressional elections is even worse: turnout for the 1998 elections was only 36.4 per cent, down from 38.78 per cent in 1994 (the previous off-year congressional election) (International Voter Turnout, 1991–2000 (2002) The Center for Voting and Democracy <http://www.fairvote.org/turnout/ intturnout.htm> at 6 March 2003).
[2] A number of American-based social scientists have also considered compulsory voting as a solution. Among them are: Arend Lijphart, Richard Hasen, Martin Wattenberg and Tom Mann.
[3] International Institute for Democracy and Electoral Assistance, Voter Turnout from 1945 to Date: A Global Report on Political Participation, IDEA <http://www.idea.int/Voter_turnout/westeurope/uk.html> at 17 November 2004.
[4] The Electoral Commission of 2001, Press Release, History Learning Site <http://www. historylearningsite.co.uk/electoral_commission_of_2001.htm> at 26 June 2002.
[5] Other countries to use compulsory voting systematically (and with enforcement) include: Argentina, Australia, Austria (two Länder only), Belgium, Bolivia, Brazil, Cyprus, Fiji, Greece, Luxembourg, Nauru, Singapore, Switzerland (one canton only), Uruguay, and until 1970, The Netherlands. Regimes without enforcement (such as Guatemala, Honduras, the Dominican Republic and Thailand) have been excluded from this list as have those with weak enforcement (Austria — two regions, Tyrol and Vorarlberg — Ecuador, Italy, Mexico and Turkey). The author gratefully acknowledges the considerable efforts of Gillian Evans (Political Science, Research School of Social Sciences, Australian National University) and Jonathon Louth (Politics, University of Adelaide) in compiling and verifying this list.
[6] Compulsory enrolment for federal elections was introduced in 1911 but voting itself did not become mandatory until 1924. And it was not until 1984 that it became compulsory for Aboriginal people and Torres Strait Islanders to register and vote (Australian Electoral Commission, 'The Franchise "Right to Vote" Timetable' (Press Release, 2 November 2001)).
[7] In 1903 the federal election turnout had only been 46.86 per cent but by 1925, after compulsory voting had been introduced, the turnout had reached 91.31 per cent: ibid.
[8] Except in South Australia where registration is not compulsory and only registered voters are required to vote.
[9] See further discussion below in text accompanying nn 88-9. For a fuller discussion of this point see: Graeme Orr, 'The Choice Not to Choose: Commonwealth Electoral Law and the Withholding of Preferences' [1997] MonashULawRw 19; (1997) 23 Monash University Law Review 285; John McCarthy, 'General Principles of Australian Electoral Law' (2000) 19 Australian Bar Review 109; Anne Twomey, 'Free to Choose or Compelled to Lie?: The Rights of Voters After Langer v the Commonwealth' [1996] FedLawRw 7; (1996) 24 Federal Law Review 201; Lisa Hill, 'Compulsory Voting: Residual Problems and Potential Solutions' (2002) 37 Australian Journal of Political Science 437.
[10] This right is not explicit in the Commonwealth Constitution but has been implied. As Anne Twomey notes, this 'implied constitutional protection for the right to vote is to be discerned in s 24 of the Constitution. The phrase "directly chosen by the people of the Commonwealth" has been interpreted by a number of Justices of the High Court as implying the application of a universal franchise' (Anne Twomey, 'The Federal Constitutional Right to Vote in Australia' [2000] FedLawRw 6; (2000) 28 Federal Law Review 125, 126). See also George Williams, Human Rights Under the Australian Constitution (1999) ch 7.
[11] Roger Mortimore and Jessica Elgood, What Does the Election Tell Us About Consumers (2001) Market and Opinion Research International <http:// www.mori.com/ pubinfo/rmm-res2001.shtml> at 2 July 2002.
[12] Market and Opinion Research International, Survey of Attitudes During the 2001 General Election Campaign (2001) Market and Opinion Research International <http://www.mori.com/polls/2001/elec_comm_rep.shtml> at 1 July 2002.
[13] Wilma Smeenk, Nan Dirk de Graaf and Wout Ultee, 'Thuisblijven bij Verkiezingen in Nederland en de Verenigde Staten (Non-Voting in the Netherlands and the United States)' (1995) 70 Mens en Maatschappij 220, 220. See also Survey of Attitudes During the 2001 General Election Campaign (2001) Market and Opinion Research International <http://www.mori.com/polls/2001/elec_comm_rep. shtml> at 1 July 2002.
[14] See, eg, Lisa Hill, 'On the Reasonableness of Compelling Citizens to "Vote": The Australian Case' (2002) 50 Political Studies 80; Martin Harrop and William Miller, Elections and Voters: A Comparative Introduction (1987); Arend Lijphart, 'Unequal Participation: Democracy's Unresolved Dilemma' (1997) 19 American Political Science Review 1.
[15] Munroe Eagles and Stephen Erfle, 'Community Cohesion and Voter Turnout in English Parliamentary Elections' (1989) 19 British Journal of Political Science 115.
[16] Frances Piven and Richard Cloward, Why Americans Don't Vote (1988); Walter Burnham, 'The Turnout Problem' in James Reichley (ed), Elections American Style (1987) 97.
[17] Anthony Heath and Bridget Taylor, 'New Sources of Abstention' in Pippa Norris (ed), Critical Elections (1999) 164.
[18] Jack Vowles, 'Dealignment and Demobilisation?: Nonvoting in New Zealand 1938-1990' (1994) 29 Australian Journal of Political Science 96, 109.
[19] Shelagh Diplock (ed), None of the Above: Non-Voters and the 2001 Election: A Hansard Society Briefing (2001) The Hansard Society <http://www.mori.com/polls/2001/pdf/hansard2.pdf> at 1 December 2004.
[20] Hill, 'On the Reasonableness of Compelling Citizens to "Vote"', above n 14.
[21] Political efficacy refers to a 'person's belief that political and social change can be effected or retarded and that [her/]his efforts, alone or in concert with others can produce desired behaviour on the part of political authorities' (Kenneth Prewitt, 'Political Efficacy' (1968) 12 International Encyclopedia of the Social Sciences 225). Efficacy has two components: 'internal efficacy', which refers to a subject's sense of political competence, and 'external efficacy', which refers to the belief that the government is responsive to 'attempted influence'. (Steven Finkel, 'Reciprocal Effects of Participation and Political Efficacy: A Panel Analysis' (1985) 29 American Journal of Political Science 891, 893). In his study of the 1989 election in São Paulo, José Alvaro Moisés found that exposure to the political campaign and the act of voting itself increased by 50 per cent the number of citizens with some degree of efficacy (José Alvaro Moisés, 'Elections, Political Parties and Political Culture in Brazil: Changes and Continuities' (1993) 25 Journal of Latin American Studies 575).
[22] Richard Hasen, 'Voting Without Law?' (1996) 144 University of Pennsylvania Law Review 2135, 2167.
[23] Ibid 2167–8.
[24] Pub L No 103–31, §§ 2–12, 107 Stat 77.
[25] For a detailed account of the history and effects of the Motor Voter Act see Raymond Wolfinger and Jonathan Hoffman, 'Registering and Voting with Motor Voter' (2001) 34 PS: Political Science and Politics 85.
[26] According to a study conducted by Mark Franklin countries which conduct elections on a weekend or holiday have six per cent higher turnout than would otherwise be expected (Mark Franklin, 'Electoral Participation' in Lawrence LeDuc, Richard Niemi and Pippa Norris (eds), Comparing Democracies: Elections and Voting in Global Perspective (1996) 216).
[27] Arend Lijphart, 'Compulsory Voting is the Best Way to Keep Democracy Strong' in Robert DiClerico and Allan Hammock (eds), Points of View (2001) 74.
[28] Bernard Grofman, 'Questions and Answers About Motor Voter: An Important Reform That Is Not Just for Democrats' in Voting and Democracy Report: 1995 (1995) The Center for Voting and Democracy <http://fairvote.org/reports/ 1995/chp6/grofman.html> at 20 May 2002.
[29] Lijphart, 'Compulsory Voting', above n 27, 74. Because many of these conditions hold in Malta, turnout there consistently hovers around the 90-5 per cent mark (Wolfgang Hirczy, 'Explaining Near-Universal Turnout: The Case of Malta' (1995) 27 European Journal of Political Research 255. Malta does not have compulsory voting yet it enjoys very high turnout rates, a fact partly attributable to the small size of the electorate and the relative intimacy of the political culture.
[30] Lijphart, 'Compulsory Voting', above n 27, 74.
[31] 'Properly' or 'systematically' administered denotes regimes where attendance is actively encouraged and facilitated, avoidance is systematically pursued and penalties are applied. For further discussion, see below.
[32] Simon Jackman, Non-Compulsory Voting in Australia?: What Surveys Can (and Can't) Tell Us (1997) The Society for Political Methodology <http://polmeth. wustl.edu/workingpapers.php?year=1997&how=alpha> at 14 July 2002.
[33] Galen Irwin, 'Compulsory Voting Legislation: Impact on Voter Turnout in the Netherlands' (1974) 7 Comparative Political Studies 292.
[34] See, eg, Jean Blondel, Richard Sinnot and Palle Svensson, People and Parliament in the European Union: Participation, Democracy, and Legitimacy (1998) 248.
[35] Johan Aekaert, and Lieven De Winter, 'Electoral Absenteeism and Potential Absenteeism in Belgium' (Paper presented at the American Political Science Association Annual Meeting, San Francisco, 29 August – 1 September 1996); Marc Hooghe and Koen Pelleriaux, 'Research Note: Compulsory Voting in Belgium: An Application of the Lijphart Thesis' (1998) 17 Electoral Studies 419.
[36] Irwin, above n 33; Smeenk, de Graaf and Ultee, above n 13.
[37] Malcolm Mackerras and Ian McAllister, 'Compulsory Voting, Party Stability and Electoral Advantage in Australia' (1999) 18 Electoral Studies 217; Jackman, above n 32.
[38] Tom Watson and Mark Tami, Second Term Thinking: Votes for All: Compulsory Participation in Elections (2000) 8.
[39] See further discussion below in text accompanying nn 60-4.
[40] Pippa Norris, Democratic Phoenix: Reinventing Political Activism (2002) 82 .
[41] Timothy Power and J Timmons Roberts, 'Compulsory Voting, Invalid Ballots, and Abstention in Brazil' (1995) 48 Political Research Quarterly 795, 819.
[42] Most of these conditions are met by Australian electoral commissions. Here they 'are staffed with expert public servants' who '[a]s a rule … have traditionally been exceptionally apolitical'. Nevertheless, because executive governments have the power to appoint the heads of commissions 'bi-partisanship over appointments' can 'deteriorat[e], as occurred recently at the Federal level' (Graeme Orr, Bryan Mercurio and George Williams, 'Australian Electoral Law: A Stocktake' (2003) 2 Election Law Journal 400).
[43] In the last election, for example, police arrested 16 people among a crowd who had 'gathered along a road and waved flags in support of the opposition Singapore Democratic Alliance'. Those arrested were charged with rioting, which is punishable 'by caning and up to five years'' gaol. In the parliamentary election of 2001, 55 of the 84 parliamentary seats were uncontested. ('Riot' Mars Singapore's One-sided Poll (2001) CNN.com/World <http://archives.cnn.com/2001/WORLD/asiapcf/southeast/11/03/singapore.vote.riot/index.html> at 3 November 2001).
[44] Only '675,000 of the 2.03 million registered voters' were required to vote in contested seats: ibid.
[45] Jeffrey A Blomberg, 'Protecting the Right Not to Vote from Voter Purge Statutes' (1995) 64 Fordham Law Review 1017, n 18.
[46] Hoffman v Maryland, [1991] USCA4 554; 928 F 2d 646, 648-9 (4th Cir, 1991): Hasen, above n 22. Even in Australia, only a few have insisted on the 'right' not to vote. Some rare examples include: Senator Nick Minchin who has asserted that '[c]ompulsory voting is a fundamental breach of ... civil liberties' (Nick Minchin, 'Compulsory Voting: A Denial of Rights, A Detriment to Democracy' (1996) 77 The Parliamentarian 244, 248) and Professor Joan Rydon who claims that: 'Genuine democracy requires that citizens be free to vote or not vote' (Joan Rydon, 'Compulsory Voting and Compulsory Preferences' in Charles Copeman and Amy McGrath (eds), Corrupt Elections: Ballot Rigging in Australia (1997) 175, 177).
[47] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS No 5, art 9 (entered into force 3 September 1953).
[48] 'X against Austria' (1972) 15 Yearbook of the European Convention on Human Rights 468, 472-4. Thanks to Lewis Baston for drawing my attention to this case.
[49] Norris, Democratic Phoenix, above n 40, 75, 82; Power and Roberts, above n 41, 819.
[50] Only about a quarter of Brazilians finish the fourth grade (Power and Roberts, above n 41, 800. In 1985, illiterates were enfranchised for the first time since 1881, expanding the potential electorate by 30 per cent. Though voting is optional for those who are illiterate most do vote: at 800).
[51] In fact, it is the world's largest electorate subject to compulsory voting: ibid 798. It is not uncommon to hear of voters who have paddled by canoe for two days in order to cast a ballot: at 819.
[52] International Institute for Democracy and Electoral Assistance, Voter Turnout from 1945 to 1997: A Global Report on Political Participation (2nd ed, 1997).
[53] Zachary Elkins, 'Institutionalising Equality: The Compulsory Vote in Brazil' in Wolfgang Hirczy (ed), Mandatory Voting Project: An International Collaboration and Special Collection of Abstracts and Research Papers (1996) 23.
[54] Mackerras and McAllister, above n 37, 223.
[55] Comparable regimes include The Netherlands, which had an effective system before compulsion was abandoned in 1970, and Belgium where, traditionally, compulsion has been well tolerated, though less so in recent times. Polling indicates that 'two of every five Belgian electors would not vote if it were no longer required by law' (William Downs, 'Federalism Achieved: The Belgian Elections of May 1995' (1996) 19 West European Politics 168, 171). This lessening of tolerance is probably not directly related to the compulsion but is thought to be a consequence of a series of political scandals and therefore a more generalised disaffection with politics.
[56] Voting should not be restricted as in Egypt, for example, where voting is compulsory only for men: further, undischarged bankrupts are prohibited from voting. In Greece and Brazil voting is not compulsory for people over 70 while in Ecuador voting is voluntary for illiterates and over 65s.
[57] Further, opportunity costs are lowered in a compulsory setting because voting has more value. When a poor African-American shut in with a disability abstains from voting in US elections she is behaving both rationally and irrationally. Of course it would be rational in one sense for her to vote since doing so would likely protect her interests and those of others like her. At the same time, she can't be sure that everyone else in her predicament will have the same idea (in fact, she knows they probably won't). Since the voluntary system evokes irrationality (ie the mass abstention of those most in need of the protection voting can afford), it will be rational for her to stay at home and preserve her scarce resources, knowing as she does that others like her will most likely make the same calculation. Thus, within the rational choice tradition choosing not to vote is referred to as 'rational abstention'. But under a system of universal participation, it is (both long and short-term) rational for such a person to vote. Informational certainty about the voting or non-voting intentions of others with similar interests means that foregoing a day relaxing at home will be worthwhile (for a fuller discussion of this argument see Hill, 'On the Reasonableness of Compelling Citizens to "Vote"', above n 14).
[58] Orr, Mercurio and Williams, above n 42, 390.
[59] Which means they are able to vote. Their details are later checked in order to determine 'why their name does not appear on the roll in the division for which the voter believes they should be included' (Yvonne Goudie, Characteristics of a Fair Electoral System (2000) Victorian Association of Social Studies Teachers <http://www.vasst.asn.au/vce/fairelect.html> at 18 October 2002).
[60] In Singapore, where voting is compulsory, older and disabled citizens are given special assistance at polling places (for example, being allowed to jump the queue and receiving assistance from polling staff) but no special provisions such as postal voting or mobile polling are available to them. Neither are those living abroad entitled to postal votes.
[61] Scott Bennett and Kate Bunker Proof of Identity of Electors at Enrolment (2003) Parliament of Australia Parliamentary Library <http://www.aph.gov.au/library/pubs/rn/2003-04/04rn07.pdf> at 11 August 2003.
[62] Ibid 48.
[63] Many thanks to Marian Sawer and Jonathon Louth for clarification on this point.
[64] Even stricter measures that are sometimes proposed, such as mandating enrolment in person, photographic identification, or the provision of '100 points' of identification through, for example, bank, lease, Medicare documents etc, will disproportionately disenfranchise some groups over others. These could include the young and elderly, especially if they do not drive, are not economically active and so on. Strict measures are also likely to impact more heavily on the already marginalised, for example, the homeless.
(Graeme Orr, Australian Electoral Systems: How Well Do They Serve Political Equality? (2004) 16).
[65] According to Meg Mundell:
taking into account that 88, 000 homeless Australians are of voting age, the Public Interest Law Clearing House has used the above figures to estimate the number of homeless people who may have been eligible to vote in the last federal election, but did not do so, as ranging from 29, 000 to 80, 000.
(Meg Mundell, 'Giving Voice to the Voiceless: Improving Access to the Vote for People Experiencing Homelessness' (2003) 28 Alternative Law Journal 269, 269).
[66] See also Graeme Orr, 'Ballotless and Behind Bars: The Denial of the Franchise to Prisoners' [1998] FedLawRw 3; (1998) 26 Federal Law Review 55; Jennifer Fitzgerald and George Zdenkowski, 'Voting Rights of Convicted Persons' (1987) 11 Criminal Law Journal 11; Lisa Hill, 'Precarious Persons: Disenfranchising Australian Prisoners' (2000) 35 Australian Journal of Social Issues 203.
[67] Bryan Turner and Peter Hamilton, Citizenship: Critical Concepts (1994) i.
[68] This exclusion is aggravated by its particularism because it does not extend to British subjects 'who have remained on the roll since 1984' (Orr, Australian Electoral Systems, above n 64, 7–8).
[69] For example, in Egypt where there is no penalty, turnout hovers at around 28 per cent. Likewise the sanction of a fine is not enforced in Liechtenstein where turnout is approximately 54 per cent (International Institute for Democracy and Electoral Assistance, above n 52).
[70] Lijphart, 'Compulsory Voting', above n 27, 74; Wolfgang Hirczy, 'The Impact of Mandatory Voting Laws on Turnout: A Quasi-Experimental Approach' (1994) 13 Electoral Studies 64.
[71] In Greece, prison sentences can vary from one month to one year. It should be noted here that there have been Australian cases where failure to vote has culminated in a prison sentence. In 1999, a Victorian woman, Melissa Manson, was sentenced to one day in prison for failing to cast votes in the 1993 and 1996 federal elections and then subsequently failing to pay the imposed fines. Her rationale for refusing to vote was that 'there were no candidates worth voting for' and she indicated that she was unwilling to 'pay the fines on principle' (Frank Cassidy, 'Mother-of-Four Faces Time In Jail', The Canberra Times, (Canberra), 15 May 1999, 4).
[72] International Institute for Democracy and Electoral Assistance, above n 52.
[73] Personal correspondence with Gay Young, information officer at the Australian Electoral Office, 17 May 2002.
[74] 'Valid and sufficient' reasons may include:
Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind … One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, such as a fire: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty.
(Australian Electoral Commission, Compulsory Voting, Electoral Backgrounder No 17 (2004), 4 <http://www.aec.gov.au/_content/how/backgrounders/17/EB_17_Compulsory_ Voting.pdf> at 17 November 2004). Initially, the Electoral Commission sends the absentee a 'please explain' letter with the option of paying a $20 fine to settle the matter. If a satisfactory reason for abstention is provided, the matter is dropped, but if there is a dispute about the reasonableness of the explanation the non-voter may be taken to court and a slightly heavier fine imposed ($50) in addition to legal costs.
[75] Mackerras and McAllister, above n 37, 224.
[76] Lijphart, 'Compulsory Voting', above n 27, 75; Hasen, above n 22, 2170.
[77] Hasen, above n 22, 2168.
[78] Thomas H Reed, 'Compulsory Voting in Belgium' (1925) 14 National Municipal Review 355–6.
[79] At the Commonwealth level penalties for both non-enrolment and failure to vote range from $20 to $50 and at the state level from $25 to $100.
[80] Hill, 'On the Reasonableness of Compelling Citizens to "Vote"', above n 14.
[81] 'Only 577 of a potential 400 000 non-voters were even brought to court in 1966' (Irwin, above n 33, 292–3).
[82] In the most recent provincial and European parliamentary elections, turnout was 50 per cent and 36 per cent respectively (Lijphart, 'Compulsory Voting', above n 27, 76).
[83] Irwin, above n 33, 292–3.
[84] Hasen, above n 22, 2170; Hill, 'On the Reasonableness of Compelling Citizens to "Vote"', above n 14.
[85] Hirczy, 'The Impact of Mandatory Voting Laws on Turnout', above n 70, 64–5.
[86] One indication that many voters would not bother to go to this much trouble is that most voters prefer to keep their voting style as perfunctory and simple as possible. When given a choice between voting above or below the line, the overwhelming majority of Australians, for example, (usually between 85 per cent and 95 per cent) choose to vote above the line.
[87] As Rydon notes with respect to Australian arrangements: '[o]fficials constantly reiterate that "voting is compulsory" but "voting" is not defined. They reluctantly concede that it is not illegal to vote informally or return blank ballot papers, but they do their best to discourage such practices' (Joan Rydon, 'Should Voting be Compulsory? Against' in R Giles (ed), For and Against: An Anthology of Public Issues in Australia (1989) 97.
[88] Thanks to Arend Lijphart for drawing my attention to this practice.
[89] See n 2 in Anne Twomey, '"Expansion or Contraction": A Comment' [1998] AdelLawRw 12; (1998) 20 Adelaide Law Review 147, 147. Ballot papers for the South Australian Lower House remind voters of this option.
[90] If the law were clarified … to the effect that it is compulsory to formally mark the paper, then in order for this to be properly enforced the secret ballot would have to be overturned. If the law were clarified to the effect that marking the ballot in any way were compulsory, then electoral officials would need to observe the activities of voters in booths and then apprehend and compel to mark the paper anyone who failed to comply.
(Hill, 'Compulsory Voting', above n 9, 449). Obviously, such a practice would be highly objectionable and would undoubtedly undermine the legitimacy of compulsory voting. For a more technical and complete discussion of this option see: at 449.
[91] Under an 'optional preferential' voting system, an elector shows by numbers his/her preference for individual candidates, but does not need to show a preference for all candidates listed for the vote to be formal.
[92] New South Wales uses optional preferential for its lower house and optional preferential proportional representation for its upper house. Queensland uses optional preferential for its only house, the Legislative Assembly. In the New South Wales Upper House 15 numbers are needed if you vote below the line. In the Australian Capital Territory, at least as many squares as there are candidates to be elected in a district must be numbered (Electoral Council of Australia, 'Proportional Representation Voting Systems of Australia's Parliaments', Melbourne, July 2001 and 'Preferential Voting Systems in Single Member Electorates of Australia's Parliaments' August 2000).
[93] Twomey, '"Expansion or Contraction"', above n 89, 148. For a fuller discussion of this point, including a detailed analysis of the Albert Langer case, see: Anne Twomey, 'Free to Choose or Compelled to Lie?', above n 9, 201; Chris Field, 'Tweedledum and Tweedledee 1, 2, 3, 3: The Albert Langer Story', Parliamentary Research Service, Commonwealth Parliament, Current Issues Brief No 14, (1995-1996) 14.
[94] Robert Hedley, Labour MPs Press For Compulsory Voting (2001) LGCnet <http://melbourne. butterworths.co.uk/dataitem.asp?ID=9373 & tid=7> at 28 November 2001.
[95] As also previously argued by Orr, Australian Electoral Systems, above n 64, 14; Hill, 'On the Reasonableness of Compelling Citizens to "Vote"', above n 14.
[96] RFE/RL Newsline, None of the Above Finishes Sixth… (2000) Radio Free Europe/Radio Liberty <http://www.rferl.org/newsline/20000/04/060400.asp> at 6 April 2000.
[97] The Electoral Commission of 2001, above n 4.
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