At the end of the month, the Washington state senate’s Government & Elections Committee will consider a bill, SB5209, co-sponsored by a majority of Democrats and with identical legislation filed in the house. Under this proposal, voting would no longer be a voluntary act of civic participation. Instead, voting would be mandatory. Refusing to vote would mean breaking the
law.

There are good reasons to be thinking outside the box when it comes to elections. There is a rising tide of bipartisan agreement on the need for reforms to strengthen democracy and reduce the runaway spiral of polarization. Options such as ranked choice voting, nonpartisan primaries, and multi-member districts are all worth considering.

Compulsory voting, on the other hand, is not an idea whose time has come. It is impractical,unpopular, and unconstitutional. When surveyed, Americans consistently reject it by lopsided margins. They are right to do so.

On the practicalities, SB 5209 is unclear. It instructs officials to unambiguously tell Washingtonians they are legally required to vote. But the bill’s authors shy away from attaching any penalty to this requirement. Perhaps they understand that additional fines falling disproportionately on low-income families would not qualify as a progressive reform. But then what is the point? The bill menaces citizens with an empty threat.

To compound the exercise in futility, the bill permits an opt-out form which can be filed for any reason. At best, this only layers new paperwork, administrative costs, and confusion on top of the status quo of voluntary voting. But the bill is also contradictory on this point, since elsewhere it says people must be told they can only opt out for an undefined “valid reason.”

No matter how you slice it, compelled voting (like other kinds of compelled speech) is unconstitutional. A mandate to vote without any penalty would still violate the First Amendment and objectors would still have standing to sue. The legislature can’t have it both ways, proclaiming voting is mandatory while also trying to evade constitutional accountability by saying, in effect, they don’t really mean it.

It’s no accident that few democratic nations have mandatory voting and even fewer enforce it. The only countries that take mandatory voting seriously, with substantial penalties, are one-party dictatorships that can’t tolerate the implicit statement of dissent.

And dissent it is, even if it’s an unpopular kind. There is a long tradition of conscientious non-voting by Americans who abstain from sincere religious, philosophical, and political motives. Some are strict faith-based pacifists; some are committed ideological anarchists. And some simply view politicians with disdain or disinterest, as is their right.

Voting is an act of symbolic speech, an affirmation of our system of government. That is a view worth encouraging, but we do not compel people to profess their support for it.

During World War II, states tried to coerce participation in another patriotic civic ritual, punishing students who refused to recite the pledge of allegiance. But after upholding such laws just three years earlier, in 1943 the Supreme Court changed course. The justices were horrified by the official persecution of religious minorities they had unleashed, primarily targeting Jehovah’s
Witnesses.

For the majority, Justice Jackson delivered one of the most stirring and famous statements of America’s free speech exceptionalism. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Legislators should drop the idea of forcing citizens to confess their faith in democracy.

Andy Craig is director of election policy at the Joseph H. Rainey Center and an adjunct scholar at the Cato Institute.

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