The duty to vote

When he ran for the 1984 US Democratic presidential nomination, Jesse Jackson gave a speech urging his followers to get out and register voters. Jackson recited a series of figures on unregistered voters and non-voting electors that indicated that Ronald Reagan would probably not have become president if those “missing” votes had been cast. Jackson characterised the missing votes as “rocks, just layin’ on the ground”, in a reference to the story of David and Goliath.

Given compulsory registration and voting in Australia, there don’t seem to be as many rocks just layin’ around as in the US. But in fact, there are plenty of votes that are not cast or ballots cast that do not count in Australian elections. In spite of voting being compulsory in Australia, the turnout is 95 per cent, with the figure dipping in some electorates to around 90 per cent. And of votes cast, around 5 per cent are informal. In the electorate of Fowler, 9,852 votes out of a total of 77,241 votes cast in the 2001 election were deemed informal: that is, 12.75 per cent of votes in one of the poorest areas in Australia were just left layin’ on the ground.

The Australian Electoral Commission’s survey of the 580,561 informal votes cast at the 2001 election has revealed so far that 4.8 per cent of all ballot papers in the 2001 election were deemed informal. In around two-thirds of that total, there was probably an attempt to cast a valid vote (for example, by incomplete or defective numbering). Around 20 per cent of the informal votes were blank ballot papers.

According to the Australian Electoral Commission, the percentage of informal votes on Saturday’s election will be the highest in 25 years, with an estimated 5.64 per cent of informal votes. A higher proportion than usual of blank ballot papers has been noted in the informal votes cast.

Presumably, one of those blank ballot papers was that cast by Mark Latham, the former Labor leader. Speaking in his new position as a journalist on 60 Minutes, Mr Latham trumpeted before election day that he would be casting a blank ballot paper because both major parties were “dumbing down politics”. He justified his position by arguing, “They say voting is compulsory in Australia. But it’s not compulsory to fill out the ballot paper. You can put it straight into the ballot box totally blank. That’s what I’ll be doing on Saturday, and I urge you to do the same. It’s the ultimate protest vote.”

Latham’s view about what compulsory voting entails is held by a very large number of people besides himself. That is, many people similarly maintain that the only thing that is compulsory is being entered into the electoral roll in the first place, and being ticked off on the roll during an election. (It is of course not necessary to turn up at a polling place in order to cast a vote; electors can request a declaration vote, such as a postal ballot, in order to fulfil their duty to vote.)

However, I think that the Latham view on compulsory voting is wrong. Section 245 (1) of the Commonwealth Electoral Act sets out that “It shall be the duty of every elector to vote at each election.” Section 233 of the Act sets out what the act of voting entails:

1. Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:
    
   (a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;
   (b) fold the ballot paper so as to conceal his or her vote and:
   

   (i) if the voter is not an absent voter - deposit it in the ballot box; or
   (ii) if the voter is an absent voter - return it to the presiding officer; and

   (c) quit the booth.

Moreover, section 339 (1) (e) of the Act reinforces this description of the act of voting by holding that it is an offence for persons to “fraudulently take any ballot paper out of any polling booth or counting centre”. This was a provision at issue in a 2007 investigation of the alleged removal of a ballot in the electorate of Lingiari.

The Commonwealth Electoral Act makes very clear what are the elements of the act of voting. It is the duty of every elector to vote, and the act of voting requires the marking of a vote on the ballot paper, the act being completed by depositing the marked and folded paper in the ballot box. That is, the term “compulsory voting” clearly includes the marking of the ballot paper.

It has been argued by some political scientists that the term “compulsory voting” only “technically” covers the marking of the ballot paper, given that the privacy of the booth precludes electoral officials from checking that a ballot paper has actually been marked. But there is nothing technical about the requirement to mark the paper. Whether and how the requirement is able to be enforced is a completely different question from whether it is indeed a requirement.

Indeed, it would be possible to enable enforcement of this part of the duty to vote, simply by doing away with the secrecy of the ballot. As outlandish a proposal as this might seem, it has some fairly heavyweight thinkers in its support. John Stuart Mill for example opposed the secret ballot. Mill wrote in chapter 10 of Considerations on Representative Government that he had come to such a conclusion, after initial hesitation, on these grounds:

In any political election, even by universal suffrage (and still more obviously in the case of a restricted suffrage), the voter is under an absolute moral obligation to consider the interest of the public, not his private advantage, and give his vote, to the best of his judgment, exactly as he would be bound to do if he were the sole voter, and the election depended upon him alone. This being admitted, it is at least a primâ facie consequence that the duty of voting, like any other public duty, should be performed under the eye and criticism of the public; every one of whom has not only an interest in its performance, but a good title to consider himself wronged if it is performed otherwise than honestly and carefully.

I support Mill’s argument, although I realise that such a position is unlikely to gain much support in the near future (or even in the long term).

Nevertheless, the question at hand concerns more narrowly the fallacy of the Latham interpretation of the term “compulsory voting” as not requiring the marking of the ballot paper. The wrongness of this interpretation can be seen if the Commonwealth Act is contrasted with the South Australian Electoral Act. Section 85 of the SA Electoral Act notes:

1. Subject to subsection (2), it is the duty of every elector to record his or her vote at each election in a district for which the elector is enrolled.
2. An elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting is not in breach of the duty imposed by subsection (1).

The SA Act explicitly notes that marking the ballot paper is not required by the duty to vote. The Commonwealth Act includes no such provision to qualify its Section 233.

So a path lies open for Mr Latham: instead of publicly announcing his intention to breach his legal duty, and urging others to do the same, Latham could instead campaign for a similar provision to that of South Australia to be inserted into the Commonwealth legislation. As it stands, however, a prima facie case exists for his prosecution under Section 329 of the Commonwealth Electoral Act: “A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.”

A prima facie case can be made, I would argue, that Latham’s incitement of electors is misleading and deceptive when he conveys that the duty to vote does not include marking the ballot paper.

The Australian Electoral Commission, when asked about Mr Latham’s statements, responded: “There’s no explicit provision in the electoral act against someone telling someone else to cast an informal vote as an opinion or a view.” Mr Latham has not urged his fellow citizens to mark the ballot paper in such a way that it would be counted as informal (for example, by assigning the number 6 to each candidate). He has urged them to leave the ballot paper unmarked, in violation of their legally stipulated duty to marke a vote on it.

The exact meaning of the duty to vote in regard to leaving a ballot blank is largely untested in Australia. Perhaps Mr Latham could offer himself as a test case to establish the constitutionality of those sections of the Electoral Act concerned with the duty to vote. In the mean time, perhaps he might contemplate how he contributed to leaving those powerful rocks just layin’ on the ground, rocks that if slung in real protest might have meant the election of more than one or two Green MPs in the lower house, for example.