The case for compulsory voting in the United States

Harvard Law Review

Volumn 121, Issue 2, 2007, Pages 591-612

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EID: 38049060421     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (154)

1. DEREK BOK, THE STATE OF THE NATION 325 (1996).
2. Id.
3. Less is known about earlier American history, in part because of problems with the available data. See Walter Dean Burnham, Those High Nineteenth-Century American Voting Turnouts: Fact or Fiction?, 16 J. INTERDISC. HIST. 613 (1986). Professor Walter Burnham estimates voter turnout rates in the nineteenth century as generally having been much higher than in recent decades, but at that time there were no voter registration laws, and the right to vote was available to a much smaller subset of the American populace. Id. at 640-41.
4. COMM. FOR THE STUDY OF THE AM. ELECTORATE (CSAE), PRESIDENT BUSH, MOBILIZATION DRIVES PROPEL TURNOUT TO POST-1968 HIGH 12 (2004), available at http://www.american.edu/ia/cdem/csae/pdfs/csae041104.pdf.
5. See, e.g., Jerilyn Feitelberg, Editorial, Remember -I t's the Vote, Stupid, S.F. CHRON., Oct. 26, 1998, at A17, 1998 WLNR 3972597;
6. William Safire, For Turnout Turnabout, N.Y. TIMES, Nov. 4, 2002, at A23.
7. See MARK N. FRANKLIN, VOTER TURNOUT AND THE DYNAMICS OF ELECTORAL COMPETITION IN ESTABLISHED DEMOCRACIES SINCE 1945, at 37-38 (2004);
8. Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REV. 2135, 2136-37 (1996).
9. See, e.g., ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 260-76 (1957) (first articulating this paradox); Hasen, supra note 6, at 2136.
10. Of course, people who choose to vote are not necessarily irrational. Some may gain utility from fulfilling a civic duty that justifies the costs of voting. See Hasen, supra note 6, at 2137. Others may vote because they belong to a group in which voting is strongly encouraged through the imposition of informal social sanctions, see id. at 2151-52, or because they believe that their act of voting will encourage others to vote. FRANKLIN, supra note 6, at 40. Some voters, however, are irrational - cognitive biases cause many people to misperceive their ability to influence the outcome of an election. See George A. Quattrone & Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 AM. POL. SCI. REV. 719, 733 (1988);
11. William H. Riker & Peter C. Ordeshook, A Theory of the Calculus of Voting, 62 AM. POL. SCI. REV. 25, 25, 38-39 (1968). For a survey of rational choice theorists' efforts to explain the paradox of voting, see Hasen, supra note 6, at 2138-46.
12. Simon Jackman, Voting: Compulsory, in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL & BEHAVIORAL SCIENCES 16,314, 16,314 (2001).
13. See Arend Lijphart, Unequal Participation: Democracy's Unresolved Dilemma, 91 AM. POL. SCI. REV. 1, 8-9 (1997) (providing a review of the empirical literature on the effects of compulsory voting laws on voter turnout); see also Hasen, supra note 6, at 2171.
14. See Lijphart, supra note 10, at 9.
15. For other views supporting compulsory voting, see, for example, Christopher W. Carmichael, Proposals for Reforming the American Electoral System After the 2000 Presidential Election: Universal Voter Registration, Mandatory Voting, and Negative Balloting, 23 HAMLINE J. PUB. L. & POL'Y 255 (2002);
16. and Sean Matsler, Note, Compulsory Voting in America, 76 S. CAL. L. REV. 953 (2003).
17. For an argument against compulsory voting, see, for example, Katherine M. Swenson, Note, Sticks, Carrots, Donkey Votes, and True Choice: A Rationale for Abolishing Compulsory Voting in Australia, 16 MINN. J. INT'L L. 525 (2007).
18. See Florida Vote Held a "Disaster" In Rights Commission Inquiry, N.Y. TIMES, Jan. 13, 2001, at A10.
19. See 2nd Review of Florida Vote Is Inconclusive, N.Y. TIMES, May 11, 2001, at A29.
20. Editorial, The Time for Ballot Reform, N.Y. TIMES, Nov. 12, 2001, at A18.
21. See 2nd Review of Florida Vote Is Inconclusive, supra note 14, at A29.
22. Although this example relates to a presidential election, similar problems due to low voter turnout can occur in congressional, state, and local elections.
23. See Lijphart, supra note 10, at 1; infra note 29.
24. Although there is broad consensus that the demographic characteristics of the voting population are different from those of the overall electorate, there is some dispute among political scientists as to whether that difference actually matters for electoral or policy outcomes. Compare John D. Griffin & Brian Newman, Are Voters Better Represented?, 67 J. POL. 1206 (2005) (finding that roll-call votes in the U.S. Senate reflect the preferences of voters but not of nonvoters),
25. Kim Quaile Hill et al., Lower-Class Mobilization and Policy Linkage in the U.S. States, 39 AM. J. POL. SCI. 75 (1995) (finding that underrepresentation of lower-class voters leads to lower state welfare benefits),
26. and Kim Quaile Hill & Jan E. Leighly, The Policy Consequences of Class Bias in State Electorates, 36 AM. J. POL. SCI. 351 (1992) (same),
27. with Christopher R. Ellis et al., The Dynamic Consequences of Nonvoting in American National Elections, 59 POL. RES. Q. 227 (2006) (finding that Congress does not ignore the preferences of nonvoters). The results of the Ellis study may simply be explained by the fact that there was little difference between the preferences of voters and nonvoters over the time period analyzed. See id. at 229. There is no guarantee, however, that the two groups will remain in sync indefinitely. Another study with a similar conclusion, finding that even perfect voter turnout would affect the outcome in only a few Senate elections, noted that this result might not hold because of the variance in the gap between voters' and non-voters' preferences over time.
28. See Jack Citrin et al., What if Everyone Voted? Simulating the Impact of Increased Turnout in Senate Elections, 47 AM. J. POL. SCI. 75 (2003). Furthermore, voters and nonvoters might have different priorities even if they share similar preferences, and elected officials might more frequently address voters' priorities. See Ellis et al., supra, at 233.
29. A similar issue involving the constitutionality of statistical sampling arose prior to the 2000 U.S. Census, when a controversy arose over whether the U.S. Census Bureau could use statistical sampling techniques to calculate census data or whether it had to rely on a raw count of individuals. See U.S. Will Not Adjust 2000 Census Figures, N.Y. TIMES, Mar. 7, 2001, at A16. Because the raw count would undercount certain demographic groups, some of the Bureau's statistical experts favored sampling.
30. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, UPDATED SUMMARY: CENSUS 2000 OPERATIONAL PLAN 1 (1999), available at http://www.census.gov/dmd/www/pdf/2000plan.pdf. Two groups of plaintiffs filed suit in federal court, alleging that the proposed sampling techniques violated the Census Clause, U.S. CONST. art. I, § 2, cl. 3. The cases reached the Supreme Court, which held, without reaching the constitutional issue, that statutory restrictions prevented the Bureau from using statistical sampling techniques for purposes of reapportionment. See Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 334 (1999).
31. Cf. Matsler, supra note 12, at 954 (noting that the winners of the 1992, 1996, and 2000 presidential elections received votes from less than 25% of the electorate).
32. CSAE, supra note 4, at 2.
33. Cf. JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT 83 (J.M. Dent & Sons 1923) (1762) ("As soon as any man says of the affairs of the state What does it matter to me? the state may be given up for lost.").
34. See supra note 19.
35. Robert Post, Democracy, Popular Sovereignty, and Judicial Review, 86 CAL. L. REV. 429, 438 (1998).
36. See Hasen, supra note 6, at 2175.
37. A majority of the members of either house of Congress must be present in order for the house to do any business. U.S. CONST. art. I, § 5, cl. 1. By statute, six of the nine justices of the Supreme Court must be present in order for the Court to do business. 28 U.S.C. § 1 (2000). In contrast, voter turnout during midterm elections is regularly below 50%. See Int'l Inst. for Democracy & Electoral Assistance, Country View: United States, http://www.idea.int/vt/country_view.cfm?CountryCode=US (last visited Nov. 10, 2007). Even in the last two presidential elections, turnout was less than 50% of the voting-age population. See id. However, this does not take into account the number of noncitizens, who are ineligible to vote, among the voting-age population. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, VOTING AND REGISTRATION IN THE ELECTION OF 2004, at 3 (2006), available at http://www.census.gov/prod/2006pubs/p20-556.pdf.
38. Although increasing the number of voters would not necessarily prevent elections as close as the 2000 presidential election in Florida, as with any poll, an increase in the sample size will, up to a certain point, appreciably reduce the probability that an election is a fluke - that is, that the official outcome is not the true outcome, but simply a result of random error.
39. The U.S. Census Bureau consistently reports that voters are more likely than nonvoters to be white, old, well-educated, and wealthy. See, e.g., U.S. CENSUS BUREAU, supra note 27, at 10 tbl.C; U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, VOTING AND REGISTRATION IN THE ELECTION OF 2000, at 6 tbl.B (2002), available at http://www.census.gov/prod/2002pubs/p20-542. pdf.
40. See MICHAEL LIND, THE NEXT AMERICAN NATION 183-84 (1995).
41. For a discussion of whether the underrepresention of the poor and of racial minorities among voters has an effect on electoral or policy outcomes, see supra note 19.
42. See Hasen, supra note 6, at 2170-72; Lijphart, supra note 10, at 8-9.
43. See Post, supra note 25, at 438.
44. See supra note 19.
45. Lijphart, supra note 10, at 10; Matsler, supra note 12, at 965.
46. See Matsler, supra note 12, at 965. One study found that state parties spend 30-40% of their budgets on "direct voter contact," including get-out-the-vote efforts. See Stephen Ansolabehere & James M. Snyder, Jr., Soft Money, Hard Money, Strong Parties, 100 COLUM. L. REV. 598, 616 (2000). In the 2004 election, more than $350 million was spent on getting out the vote.
47. Michael Moss & Ford Fessenden, Interest Groups Mounting Costly Push To Get Out Vote, N.Y. TIMES, Oct. 20, 2004, at A1.
48. See Moss & Fessenden, supra note 36.
49. See Benjamin S. Feuer, Comment, Between Political Speech and Cold, Hard Cash: Evaluating the FEC's New Regulations for 527 Groups, 100 NW. U. L. REV. 925, 930 (2006) (discussing ramifications for 527 groups who expressly support or oppose a candidate for federal office); Moss & Fessenden, supra note 36 (noting that "nonpartisan groups cannot promote a candidate . . . without endangering their tax status").
50. On the pernicious influence of money in politics, see, for example, Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam); ELIZABETH DREW, POLITICS AND MONEY 59 (1983).
51. STEPHEN ANSOLABEHERE & SHANTO IYENGAR, GOING NEGATIVE (1995).
52. Negative campaign ads could still be effective under a compulsory voting regime by influencing voters' choices as to whom to vote for, even if not their choices regarding whether to vote.
53. Although voter apathy is not the main reason for low voter turnout, see infra notes 115-16 and accompanying text, it is a substantial factor. According to the U.S. Census Bureau, more than 20% of nonvoters reported either a lack of interest or a dislike of the candidates or issues as their reason for not voting. See U.S. CENSUS BUREAU, supra note 27, at 15 tbl.F.
54. See Keiko Ono, Polarization in Congress and Voter Turnout: An Electoral Connection? 15-16 (2003) (unpublished manuscript, on file with the Harvard Law School Library).
55. There is also some evidence that voting is habitual, and that those who vote early in their adult lives are likely to continue to do so. See FRANKLIN, supra note 6, at 60-61. This suggests that compulsory voting can have a dramatic, long-term effect on voter turnout if it is enforced strictly for several years, even if enforcement drops off once the law has entrenched the habit of voting. The role of habit also offers an explanation for the "stickiness" of the impact of compulsory voting on voter turnout even after the laws are repealed. See Matsler, supra note 12, at 967-68 (discussing explanations for the persistence of high voter turnout in Italy after its repeal of compulsory voting laws). But see infra note 118 (discussing evidence that the repeal of compulsory voting laws in Switzerland led to a decrease in voter turnout).
56. American courts, including the Supreme Court, have almost never had to confront these legal issues because there has been no real attempt to institute compulsory voting in the United States. Georgia and Virginia had statutes imposing fines for not voting in the eighteenth century, but it appears that the statutes were never enforced, and thus never came under judicial scrutiny. Hasen, supra note 6, at 2174 n.154. North Dakota and Massachusetts both amended their constitutions around the turn of the twentieth century to allow for compulsory voting, but the state legislatures never enacted statutes to implement it. See Jackman, supra note 9, at 16,315. Perhaps the only case to address the constitutionality of compulsory voting directly was Kansas City v. Whipple, 38 S.W. 295 (Mo. 1896). In that case, the Supreme Court of Missouri held that a tax that was imposed on all citizens who did not vote violated the "free exercise of the right of suffrage." Id. at 297 (emphasis omitted). The court did not, however, cite any particular constitutional provision that was violated by the tax. See John W. Dean, Is It Time To Consider Mandatory Voting Laws?, FINDLAW, Feb. 28, 2003, http://writ.corporate.findlaw.com/dean/20030228.html (discussing Whipple). The decision presumably reflects some of the concerns about compulsory voting that this section discusses.
57. See, e.g., Anthony Ciccone, The Constitutional Right To Vote is Not a Duty, 23 HAMLINE J. PUB. L. & POL'Y 325, 347-53 (2002);
58. Jeffrey A. Blomberg, Note, Protecting The Right Not To Vote from Voter Purge Statutes, 64 FORDHAM L. REV. 1015 (1995).
59. See Seth F. Kramer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1387 (1984) ("The case for recognition of waivers rests on the conviction that constitutional rights protect individual choice.").
60. Id. at 1387-88.
61. See, e.g., 29 U.S.C. §§ 651-678 (2000) (right to workplace safety); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981) (right to a minimum wage); Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 (1974) (statutory right of equal employment opportunities); Pate v. Robinson, 383 U.S. 375, 384-86 (1966) (right of criminal defendant to be tried only when competent). The doctrine of unconstitutional conditions also places limits on an individual's ability to waive constitutional rights in exchange for government benefits. See, e.g., Memorial Hosp. v. Maricopa County, 415 U.S. 250, 269-70 (1974) (striking down durational residency requirement as impermissibly conditioning the discretionary benefit of free medical care on waiver of the right to interstate travel); Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (holding that government employees may not waive their right to free speech as a condition of employment); Sherbert v. Verner, 374 U.S. 398 (1963) (holding that a state cannot condition the availability of unemployment benefits on a beneficiary's waiving her right to the free exercise of religion).
62. 380 U.S. 24 (1965).
63. See id. at 24-26; see also FED. R. CRIM. P. 23(a).
64. Singer, 380 U.S. at 34-35.
65. Id. at 35.
66. See Kreimer, supra note 47, at 1387.
67. Singer, 380 U.S. at 31.
68. See Patton v. United States, 281 U.S. 276, 312 (1930) (noting the importance of "the maintenance of the jury as a fact-finding body in criminal cases").
69. This is not meant to suggest that every individual American benefits when every single other American votes. A conservative Republican may not benefit from the vote of a liberal Democrat. Rather, the external benefits of voting are collective, in that voting allows individuals to have democratic government, as opposed to some form of authoritarian government or anarchy. A large electorate also provides benefits of aggregated information. See infra notes 108-10 and accompanying text.
70. See H.B. Mayo, A Note on the Alleged Duty To Vote, 21 J. POL. 319, 320, 323 (1959);
71. see also Michael G. Colantuono, Comment, The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change, 75 CAL. L. REV. 1473, 1503 (1987).
72. See Duren v. Missouri, 439 U.S. 357, 364-66 (1979).
73. If the government relied on market forces to assemble juries, by raising the amount of monetary compensation for service, the resulting jury pools would not be a fair cross-section of the community. The jury would be socioeconomically skewed, because individuals with higher incomes would value their time more highly and thus would be less likely to serve.
74. See Selective Draft Law Cases, 245 U.S. 366, 376-78 (1918).
75. See Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 STAN. L. REV. 755, 827-30 (2004).
76. See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (applying the First Amendment to a claim of infringement on the right to vote).
77. See Hasen, supra note 6, at 2176 n.163; Matsler, supra note 12, at 975.
78. In Burdick v. Takushi, 504 U.S. 428, the Supreme Court stated: [T]he function of the election process is "to winnow out and finally reject all but the chosen candidates," not to provide a means of giving vent to "short-range political goals, pique, or personal quarrel[s]." Attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and efficiently. Id. at 438 (alteration in original) (citations omitted) (quoting Storer v. Brown, 415 U.S. 724, 735 (1974)).
79. Id.
80. Id. at 441 ("[A] prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one's choice will be light and normally will be counter-balanced by the very state interests supporting the ballot access scheme."); see also Hasen, supra note 6, at 2176 n.163.
81. 319 U.S. 624, 641-42 (1943) (holding that a state could not require children in public schools to salute and pledge allegiance to the flag).
82. See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 682-83 (1998) (holding that a public broadcasting station's decision to exclude a minor-party candidate from a televised debate was viewpoint neutral).
83. See Nancy L. Rosenblum, Primus Inter Pares: Political Parties and Civil Society, 75 CHI.-KENT L. REV. 493, 509 (2000).
84. See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70-72 (1976) (opinion of Stevens, J.); Daniel A. Farber, Content Regulation and the First Amendment: A Revisionist View, 68 GEO. L.J. 727, 737-38 (1980) (describing the Court's analysis of viewpoint-neutral laws as intermediate scrutiny);
85. Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 STAN. L. REV. 113, 128 n.102 (1981) (using the term "relaxed" scrutiny).
86. See Kimberly K. Smith, Comment, Zoning Adult Entertainment: A Reassessment of Renton, 79 CAL. L. REV. 119, 133-34 & n.93 (1991).
87. See City of Renton v. Playtime Theatres, 475 U.S. 41, 50, 52 (1986); United States v. O'Brien, 391 U.S. 367, 377 (1968). For a discussion of how the precise formulations of the test in Renton and O'Brien differ, see Smith, supra note 72, at 134-36.
88. Hasen, supra note 6, at 2175-76; Lisa Hill, Compulsory Voting: Residual Problems and Potential Solutions, 37 AUSTL. J. POL. SCI. 437, 443-48 (2002).
89. See Matsler, supra note 12, at 974-76 (reaching a similar conclusion).
90. Another response to the First Amendment argument is that if mandating the act of voting in an election is unconstitutionally compelled speech, then jury duty would violate the First Amendment as well. Jurors are at some point required to cast their vote so that the jury may deliver its verdict. Jurors can avoid this only by maintaining in good faith that they are unable to reach a decision, or "hung." The availability of a conscientious objector exemption would be a similar escape valve for compulsory voting.
91. See Hill, supra note 74, at 444-45 (discussing some of the rationales that conscientious objectors in Australia have offered).
92. See id. at 445-47.
93. The consensus is that Congress is unlikely to enact compulsory voting laws. See, e.g., MARTIN P. WATTENBERG, WHERE HAVE ALL THE VOTERS GONE? 165 (2002); Hasen, supra note 6, at 2173; Matsler, supra note 12, at 976.
94. See U.S. CONST. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." (emphasis added)).
95. Stephanie Phillips, Comment, The Risks of Computerized Election Fraud: When Will Congress Rectify a 38-Year-Old Problem?, 57 ALA. L. REV. 1123, 1156-57 (2006).
96. U.S. CONST. art II, § 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .").
97. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam) ("The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.").
98. U.S. CONST. art II, § 1, cl. 4.
99. Id. art. I, § 8, cl. 18.
100. 424 U.S. 1 (1976) (per curiam).
101. Id. at 14 n.16 (citing Burroughs v. United States, 290 U.S. 534 (1934)); see also id. at 247 (Burger, C.J., concurring in part and dissenting in part) ("I do not question the power of Congress to regulate elections . . . ."); id. at 257 (White, J., concurring in part and dissenting in part) ("It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President").
102. See, e.g., id. at 23-28 (per curiam) (upholding limits on campaign contributions); Burroughs, 290 U.S. at 544 (upholding legislation that imposed reporting requirements on political committees).
103. Burroughs, 290 U.S. at 545.
104. They would also be likely to vote in state elections that occur on Election Day.
105. U.S. CONST. amend. XV, § 1. Congress is given the power to enforce this guarantee "by appropriate legislation" in section 2 of the amendment. Congress could probably get as far by using its powers to enforce the Equal Protection Clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV, § 5. However, the particular focus on voting in the Fifteenth Amendment makes it more apt than the Fourteenth as a source of authority for Congress to compel voting.
106. 521 U.S. 507 (1997).
107. Id. at 519-20.
108. See Washington v. Davis, 426 U.S. 229, 239-42 (1976).
109. This does not mean that intentional discriminatory conduct has no effect on the underrepresentation of racial minorities in the electorate. For instance, in the 2000 presidential election, there were widespread reports of efforts to intimidate black voters. See, e.g., DOUGLAS KELLNER, GRAND THEFT 2000: MEDIA SPECTACLE AND A STOLEN ELECTION 33, 106 (2001).
110. U.S. CONST. art. IV, § 4, cl. 1.
111. For a summary of the various interpretations, see Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 752-60 (1994);
112. and Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 22 n.122 (1988).
113. See, e.g., Amar, supra note 97, at 762; Vikram David Amar, The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article V Constitutional Amendment Process?, 41 WM. & MARY L. REV. 1037, 1063 (2000);
114. William T. Mayton, Direct Democracy, Federalism and the Guarantee Clause, 2 GREEN BAG 2d 269, 271 (1999);
115. see also THE FEDERALIST NO. 39, at 237 (James Madison) (Clinton Rossiter ed., 1961) (defining republican government as "a government which derives all its powers directly or indirectly from the great body of the people").
116. Merritt, supra note 97, at 22-23 (footnote omitted).
117. See, e.g., Printz v. United States, 521 U.S. 898, 918-19 (1997); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) ("[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is a power . . . guaranteed them by [the Republican Guarantee Clause].").
118. Mayton, supra note 98, at 271.
119. Although the Supreme Court has found claims under the Republican Guarantee Clause to be nonjusticiable in the past, see New York v. United States, 505 U.S. 144, 184 (1992), the fact that opponents might be unable to bring a successful challenge to compulsory voting laws under the clause in federal court does not relieve Congress of its independent obligation to remain faithful to the Constitution, see U.S. CONST. art. VI, cl. 3.
120. See Hasen, supra note 6, at 2174 ("Perhaps the strongest instrumental argument against compulsory voting is that it would lead to poorer decisionmaking by the electorate."); see also id. at 2175.
121. Since voting is limited to citizens, age eighteen and over, often with no prior felonies, it is not literally universal.
122. See Hasen, supra note 6, at 2175 ("[T]he risk of poor decisionmaking is an unavoidable side effect of equalizing political capital among individuals.").
123. See supra p. 591.
124. Lyn Ragsdale & Jerrold G. Rusk, Who Are Nonvoters? Profiles from the 1990 Senate Elections, 37 AM. J. POL. SCI. 721, 744 (1993).
125. See MARQUIS DE CONDORCET, Essay on the Application of Mathematics to the Theory of Decision-Making, in CONDORCET: SELECTED WRITINGS 33 (Keith Michael Baker ed., 1976).
126. If one disputes the existence of a correct outcome to an election, then the CJT does not apply. As Professors Eric Posner and Cass Sunstein have observed, the CJT clearly applies when factual questions are at stake, but not necessarily when moral questions are at stake. See Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131, 142-43 (2006). However, the answers to moral questions may often rely on the answers to underlying factual questions. See id.
127. Further research would be necessary to determine whether nonvoters as a group would meet the 50% threshold.
128. See, e.g., Steven E. Finkel, Reciprocal Effects of Participation and Political Efficacy: A Panel Analysis, 29 AM. J. POL. SCI. 891, 907 (1985).
129. Dean, supra note 45.
130. Id. Listing candidates' names in random order on each ballot would help ensure that random voting has a negligible impact because some voters might simply vote for the first person listed.
131. See, e.g., John T. Jost, The End of the End of Ideology, 61 AM. PSYCHOLOGIST 651, 656 (2006) (reporting that more than 75% of Americans could place themselves on a bipolar liberalism-conservatism scale).
132. See U.S. CENSUS BUREAU, supra note 27, at 15 tbl.F.
133. See id. The only commonly reported political reasons for not voting were a dislike of the candidates or issues and being "[n]ot interested," which 9.9% and 10.7% of respondents respectively reported as their reason. Those respondents who reported not liking any of the candidates may still have known whom they would have voted for if they had to vote. As for those who reported being uninterested, even they might still be able to identify a preferred candidate or party despite their lack of interest.
134. Other costs would include increased costs of printing and mailing voter registration acknowledgements, outfitting polling sites to handle increased traffic, and recruiting additional staff and volunteers to process the votes.
135. Five of the twenty-six cantons in Switzerland had compulsory voting laws and particularly high awareness of those voting laws. Patricia Funk, Is There an Expressive Function of Law? An Empirical Analysis of Voting Laws with Symbolic Fines, 9 AM. L. & ECON. REV. 135, 138 (2007). Four of the five cantons subsequently abolished their compulsory voting laws, allowing Professor Funk to measure the effect of the abolition on voter turnout. Id.
136. See id. at 138, 150. Violators of the compulsory voting laws could be forced to pay a "symbolic" fine, generally less than one U.S. dollar in value, id., and when discounted by the likelihood of being fined, the expected punishment was negligible.
137. See, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000);
138. Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585 (1998);
139. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996).
140. See, e.g., Alma Cohen & Liran Einav, The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities, 85 REV. ECON. & STAT. 828, 829 (2003) (documenting an increase in seatbelt usage from barely enforced laws);
141. Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 VA. L. REV. 1577, 1590 (2000) (noting anecdotal evidence that pooper-scooper laws and no-smoking signs are effective even with minimal enforcement);
142. Ray Fisman & Edward Miguel, Cultures of Corruption: Evidence from Diplomatic Parking Tickets (Nat'l Bureau of Econ. Research, Working Paper No. 12312, 2006), available at http://www.nber.org/papers/w12312 (finding some compliance with parking regulations by diplomats who are immune from fines).
143. Failure to register is a felony punishable by up to five years in prison and a fine of up to $10,000. 50 U.S.C. app. § 462(a) (2000).
144. See SELECTIVE SERV. SYS., ANNUAL REPORT TO THE CONGRESS OF THE UNITED STATES 7 (2006), available at http://www.sss.gov/PDFs/AnRepFY06. pdf.
145. SELECTIVE SERV. SYS., STATES WITH DRIVER'S LICENSE LEGISLATION REPORT INCREASED SELECTIVE SERVICE REGISTRATION COMPLIANCE (2003), http://www.sss.gov/current_story_archive/ 2003_june03/2003_feb04.html.
146. SELECTIVE SERV. SYS., supra note 123, at 4.
147. Timothy J. Power & J. Timmons Roberts, Compulsory Voting, Invalid Ballots, and Abstention in Brazil, 48 POL. RES. Q. 795, 800 n.9 (1995).
148. Hill, supra note 74, at 443.
149. In Brazil, around 80% of the voting-age population has voted in recent years. See Int'l Inst. for Democracy & Electoral Assistance, Country View: Brazil, http://www.idea.int/vt/country_view.cfm?CountryCode=BR (last visited Nov. 10, 2007). In Peru, voter turnout has been lower than in Brazil, but has still been higher than in the United States. See Int'l Inst. for Democracy & Electoral Assistance, Country View: Peru, http://www.idea.int/ vt/country_view.cfm?CountryCode=PE (last visited Nov. 10, 2007).
150. M. Mackerras & I. McAllister, Compulsory Voting, Party Stability and Electoral Advantage in Australia, 18 ELECTORAL STUD. 217, 223-24 (1999).
151. Id. at 224. After the 1993 Australian federal election, the Commission brought 0.9% of nonvoters to court. Id. After the 1996 election, the figure was 1.7%. See id. at 224 n.11.
152. The law that the Missouri Supreme Court struck down in Kansas City v. Whipple, 38 S.W. 295 (Mo. 1896), for instance, imposed a $2.50 poll tax on eligible voters, but then waived the tax for anyone who voted. See id. at 295; see also supra note 45.
153. See Hasen, supra note 6, at 2172.
154. See id. at 2177-78.