The duty to vote

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.