By Aaron Colby:
There was little mystery or controversy to California’s elections this year. In the 2014 elections, the historically ‘blue’ state elected a Democrat governor and lieutenant governor by over 15 percentage points each, and chose a democrat for the office of Secretary of State, Controller, Treasurer, and Attorney General all by greater than 5 percentage points. Democrats hold a supermajority in the State Assembly and are close to having a supermajority in the State Senate. While California has republican representation in its congressional districts, 72% of the State’s congresspersons are Democrat.
Yet despite this apparent consensus among the voting population, California has some major problems to address. Voter turnout is one of them. While 2014 midterm elections marked historic low voter turnout across the nation, California typified this trend, with just shy of 35% of registered voters participating in the election. This dearth of voter participation is being attributed to several causes. Many attribute it to standard, if somewhat more extreme, political frustration and apathy; in a state that leans so heavily blue, there is little incentive to participate in what often seems to be a foregone conclusion. However, others attribute this historic low turnout in California to changing demographics, which in turn change overall voter attitudes. Caucasians make up only 39% of the state’s population, but cast 57% of the ballots. An article in San Jose Mercury News discusses that it’s not just immigration from Mexico that’s driving the shift – voters of other minorities, in one case, Filipino, report that “the candidates aren’t appealing — and the ballot measures aren’t affecting me.”
The low voter turnout is surprising, especially given that California’s recent approach to voter registration and election day ID requirements are lenient and inclusive, in contrast to the strict Voter-ID rules exemplified by states like Virginia, Texas, Florida, Kansas. The state has enacted a variety of programs designed to increase voter participation. These programs include a 2012 law expected to take effect in 2016, which would allow voters to register to vote on Election Day itself. Other laws have all been aimed at increasing the ease and accessibility of both the registration and voting process, such as allowing voters to register via the Internet and smartphone apps. Many solutions have been considered beyond the existing measures, including incentivizing voting with a possible cash reward.
Serious thought is now being given to compulsory voting to combat low voter turnouts. Historically, compulsory voting has been seen as inimical to the first amendment’s protection against compelled speech. This possibility is explored in a 2003 University of Southern California law review article. While the article focuses on implementing compulsory voting across the United States, established at the federal level, many of the arguments are currently being considered within California State government. The implementation of such a scheme, while difficult, would be possible. A constitutional challenge might be addressed through the usage of a ‘none of the above’ option, in addition to the candidates on the ballot. The note suggests that a ‘none of the above’ option on a ballot accomplish several goals. First, it might defeat any constitutional challenge levied against such a compulsory voting scheme. In order to mount a first amendment claim, a party must show that (1) there was government action and (2) the action burdened constitutionally protected speech. Government action is easy enough to prove in this case, and voting has traditionally fallen under the first amendment protected speech. The note cites Spence v. Washington,a 1974 United States Supreme Court case, saying, “the ‘none of the above’ option is probably not communicative because it fails to convey a particularized message. Spence stands for the proposition that nonverbal conduct falls within the ambit of First Amendment protection when (1) there is ‘[a]n intent to convey a particularized message’ and (2) ‘in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it… since no one clear meaning can be ascribed to the ‘none of the above’ option, it is not communicative under Spence and therefore not a valid subject of constitutional protection.’”
Compulsory voting would have several other benefits. It would “legitimize democracy” in a way that a 35% turnout statistic could not by ensuring that as many voices are heard as possible. The inclusion of a ‘none of the above’ option would allow voters to express their frustration with both political parties in a way that would be distinguishable from simple apathy. When paired with the declaration of Election Day as a holiday, or California’s existing mandatory time-off-from-work to vote law, it would certainly be a silver bullet to solve voter apathy. Lawmakers continue to debate whether it would be the right silver bullet, or whether fixing voter apathy requires milder incentive measures.