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Want Compulsory Voting? Pass the National Popular Vote.

December 26, 2018

Keir N. Dougall

Polling confirms that on issue after issue our government fails to reflect the will of our electorate. 73% of Americans favor eliminating partisan gerrymandering, 70% favor a national popular vote to elect our president, 61% favor significant action on global warming, 68% favor stricter gun control laws and 66% favor legalizing marijuana, just to name a few.

In a healthy republic, minority views should not often stymie the majority. James Madison wrote in Federalist Number 10 what seems foundational, that a majority can defeat a minority faction’s “sinister views by regular vote.” An unstated but necessary condition of Madison’s regular vote is that a sufficient number of voters holding the majority view cast ballots or, alternatively, that those who don’t vote are proportionately distributed between the minority and majority. As Monash University’s Waleed Aly observed when arguing that voting should be mandatory, high turnout confers its own distinct benefits and doesn’t merely change the tally of votes. It delivers “a broader, more representative sample of voters.” It puts an end to the divide and conquer strategy of stoking a minority partisan base while simultaneously discouraging all other voters from casting ballots. High turnout elections cannot be won on the fringes by special interests, rather, they are won in the reasonable center. High turnout changes the policies supported by candidates and it changes who wins. High turnout looks to be a particularly attractive solution because it would pave the way to passage of other reforms that a majority of Americans want. More is more.

If high turnout is the holy grail of solutions, it has proven to be just as difficult to grasp. Our current voluntary voting system yields sickly turnouts of about 40% in our midterms and 60% in our presidential elections. We’ve tested various means to improve voluntary turnout, including: passing automatic voter registration laws (13 states), allowing online voter registration (37 states), expanding early voting (37 states), allowing no excuse absentee ballots (27 states), using mail in ballots (3 states), and allowing same day voter registration (17 states). Yet turnout remains a stubborn problem. With this experience, and if we accept that high turnout would be good medicine, then we could consider mandatory voting, a more aggressive, if seemingly less palatable, strategy. It undeniably drives turnout. Australia’s compulsory voting system achieves a 94% voter turnout by imposing small fines for failing to cast a ballot without an excuse. The idea has bided time for decades. But America would never accept compelled voting, right?

Actually, maybe we would. If America were to award the presidency based on the national popular vote, every vote for president across the country would count equally. Voters outside the swing states would suddenly have a full stake in our presidential contests. Although a national popular vote would eliminate the current Electoral College system’s anti-democratic distortions and can be expected to incrementally increase voluntary turnout, it would produce an even bigger hidden effect.

A national popular vote would harness partisan self-interest and create incentives by which states would enact compulsory voting. Instead of being content with low turnout in state by state majorities, the parties would marshal total national turnout. Every single nonvoter would represent untapped gold. Where a given state’s nonvoters preferred the party that controlled the state government, that party could increase favorable votes by simply requiring voting. For instance, California Democrats, who control that state’s government, would immediately struggle against a new and almost irresistible temptation. By enacting compulsory voting, they would deliver a windfall of about 1.7 million new net votes to their presidential candidate. To see this, we need to crunch some numbers. According to the Public Policy Institute of California, about 6.1 million eligible adults are not registered to vote there. The PPIC reports that “Among unregistered adults, 47% lean toward the Democratic Party and 18% toward the Republican Party; 36% lean toward neither party or are unsure.” As long as that last 36% “no lean/unsure” group in California evenly splits between Democrats and Republicans or votes third party, then California’s nonvoters would favor Democrats over Republicans by a net 29%. With mandatory voting, California Democrats would quickly secure about 1.7 million new net votes (29% of 6.1 million) for their presidential campaign. How could they resist? Recent national polling data from the Pew Research Center indicates that 55% of nonvoters are Democrats or lean Democratic and 41% are Republicans or lean Republican.

Once one state required voting, the dominoes would begin to fall across America. Chicago Law School’s Nicholas Stephanopoulos has previously described compulsory voting’s susceptibility to national adoption by propagation. But we haven’t yet had a strong enough political catalyst in place, like a national popular vote, to start the chain reaction. Over time, and if the parties act rationally, they will compete aggressively for the center. In any Republican controlled state where nonvoters favor them, Republicans can be expected to enact compulsory voting to gain their own advantage or to counteract Democratic states that had previously done so.

You might ask why all other major developed countries with direct elections of their head of government haven’t enacted compulsory voting. First, Pew Research Center data shows that many of these nations already have much higher turnout rates than the U.S. The data also offers a second reason: the U.S. is an outlier in who votes as a percentage of voting age population as compared to the percentage of registered voters. In other countries these numbers are much closer which suggests that the makeup of their nonvoting populations might not offer possibilities for partisan gain. Other reports have noted that some experts contend that low turnout isn’t a problem and that “Some prominent studies have concluded that 100 percent participation would not result in significantly different election outcomes.” The emphasis that Republicans and Democrats currently place on turnout and the misalignments on issue after issue between our electorate and our government noted above belie this contention. Others object that compulsory voting would add uninformed voters who are susceptible to extremists, demagogues and populists but this has not been the experience in Australia, according to Waleed Aly. Concerns about mandatory voting based on freedom of speech (I have the right to say nothing) and free of religion (my faith precludes me from casting a vote) can be addressed by permitting voters to cast a blank ballot.

A national popular vote’s new incentives would harness the parties’ self-interest and push us toward compulsory voting. It would hack a high turnout. Mandatory voting, in turn, would unlock other majority favored reforms and a healthier democracy. A national popular vote’s ability to change incentives is a differentiator. It would become Madison’s democracy hack.

Keir N. Dougall is a former federal prosecutor in the Eastern District of New York’s Public Integrity Section, a white collar defense attorney and a regular legal panelist on CBSN Red & Blue.