Should Secret Voting Be Mandatory?

James Johnson, Susan Orr

• Publisher: Polity
• Year: 2020
• Print ISBN: 9781509538164, 9781509538157
• eBook ISBN: 9781509538171
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

The secrecy of the ballot, a crucial basic element of representative democracy, is under threat. Attempts to make voting more convenient in the face of declining turnout – and the rise of the "ballot selfie" – are making it harder to guarantee secrecy.

Leading scholars James Johnson and Susan Orr go back to basics to analyze the fundamental issues surrounding the secret ballot, showing how secrecy works to protect voters from coercion and bribery. They argue, however, that this protection was always incomplete: faced with effective ballot secrecy, powerful actors turned to manipulating turnout – buying presence or absence at the polls – to obtain their electoral goals. The authors proceed to show how making both voting and voting in secret mandatory would foreclose both undue influence and turnout manipulation. This would enhance freedom for voters by liberating them from coercion or bribery in their choice of both whether and how to vote.

This thought-provoking and insightful text will be invaluable for students and scholars of democratic theory, elections and voting, and political behavior.

1
The Clash of Inclusion and Integrity?

Elections are a central feature of democratic politics. Yet not just any casting and counting of votes amounts to an election. Imagine a voting process where, by making either coercive threats or lucrative offers, those who are comparatively wealthy, powerful, or well-placed are free to illicitly influence the choices of those who are less so. That mental exercise is not overly difficult. A glance back to our democratic origins reveals that “electoral contests everywhere in the world of emergent representative democracy were feverish struggles for power, conducted in broad daylight, among intimates, who were often inebriated.” The immediate lead-up to voting “was carried out in public by means of threats, nods and winks and Chinese whispers” in such a way that outcomes often were preordained (Keane 2009: 527). Such voting processes lacked the integrity we expect of democratic decision making. They provided ample opportunity for electoral domination. While voters might reach a decision in the sense of selecting a candidate or endorsing a policy, few would consider such an outcome as binding or legitimate.¹ To constitute a “free and fair” election, any process of casting and counting votes requires a framework of rules that prevents such domination as completely as possible.

Two elements are essential to such a framework in any well-functioning democracy. We focus on voting in “mass” elections, where ordinary citizens vote for or against a candidate or policy proposal.² In that context, we argue electoral integrity demands voting be both secret and compulsory or, as we prefer to say, mandatory.³ Some will find this objectionable because rules that render voting secret and mandatory unavoidably restrict the freedom of ordinary voters. We nevertheless argue that mitigating the opportunity for various forms of illicit interference with voter choice in elections – what we call electoral domination – demands constraining what individual voters are free to do. Importantly, this is necessary because, by institutionalizing a commitment to non-domination, they sustain a familiar understanding of electoral integrity.

The voting rules we propose are both forms of pre-commitment.⁴ That is, they are rules we adopt to help ourselves and others resist the temptation to act in ways that are misguided, self-centered, or shortsighted. Here we advocate secret and mandatory voting to disable or “bind” ourselves, individually or collectively, in hopes of subverting the efforts of others to subject us to electoral domination. Such pre-commitment “is justified because, rather than merely foreclosing options, it makes available possibilities which otherwise would be beyond reach” (Holmes 1997: 226). In this case, secret and mandatory voting makes it possible for individuals to vote in a non-dominated way.

Advocates of mandatory voting invoke the value of pre-commitment in response to critics who complain that making voting obligatory infringes on individual liberty (Hill 2014; Thompson 2002). We think they are right to do so because it highlights the anemic conception of liberty those critics embrace. That said, they do not examine the role of pre-commitment in democratic politics more broadly. They therefore fail to note that secret voting, a largely unobjectionable practice, embodies precisely the same sort of justified restriction on individual liberty. Widespread agreement that secret voting is justified underscores why mandatory voting too is normatively defensible.

Electoral integrity is a complex notion. It includes a range of conditions necessary to insure that the casting and counting of votes occurs in justifiable ways. It operates along four dimensions (Birch 2009: 102). First, it demands that electoral procedures include all lawfully authorized participants (e.g., candidates, voters, officials, activists, campaign personnel, etc.). Second, it requires that those participants be able to pursue their respective aims under free and fair conditions. For our purposes, this means that the opportunity of voters to formulate and express their political views, judgments, or preferences must be effectively protected by law. Third, electoral integrity requires that votes are counted accurately and transparently and results are reported publicly and promptly. Finally, if an outcome is contested, integrity requires the resulting disagreement be quickly resolved according to established law. We are concerned with the first two of these dimensions and say little about the third and fourth.⁵ The latter address how elections are run after the polls close. We are concerned with how to protect voters before they arrive at the polls and once they do get there.

Ideals and institutions

Our approach in what follows runs counter to a powerful current in contemporary political theory. The primary task of political theory on that common view is to first articulate ideals or principles, and only then consider how we might bring the practices and institutions that constitute the political world into line with those ideals. Political theory on this view is seen as action guiding primarily by elaborating the “ends,” “ideals,” or “principles” to which we might aspire. Theorists who embrace this view articulate it in somewhat different terms. Each nevertheless draws a stark separation between ideals and institutions and views questions regarding the latter as peripheral to the tasks of political theory.⁶

Political theory clearly ought to be action guiding and must help us articulate ideals or principles. However, we aim to show how, in an extremely important case, institutions and ideals are thoroughly entangled. The case we examine illustrates how attempts to articulate ideals or principles and examine their importance requires that we attend in detail to how they might be embodied in institutions.

We hardly are alone when we insist that “institutions are massively important” to the concerns of political theory (Waldron 2016: 5–7). The reason for thinking this is simple. If ideals are consequential and contested, we must take institutions seriously precisely because how we articulate, order, weigh, and trade off ideals against one another will remain a continuing source of political disagreement. And institutions provide the essential scaffolding for conducting and hopefully resolving such discord. Democratic institutions, in particular, structure disagreement (Knight and Johnson 2011).

Given that premise, it is easy enough to identify institutions of concern to political theory. A federal structure is an institution. So too are a legislature (whether unicameral or bicameral), an independent judiciary, separation of powers, checks and balances, and other familiar features of our political arrangements (Waldron 2016: 6). We are concerned here less with such imposing institutional structures than with micro-level institutions – the rules governing the casting and counting of votes. Our argument underscores the importance of “institutional design writ small,” the recognition that seemingly minor institutional mechanisms can have disproportionately large consequences (Vermeule 2007). We want to suggest that, for political theorists, analysis and assessment of institutions is not just favorable but necessary terrain. This is because, like the principles and ideals they regularly argue about, “institution” too is a properly political concept.

Institutions

What is an institution? Consider an example germane to our argument – an election. This is a way of reaching collective decisions by the casting and counting of individual votes. Elections come in various forms, governed by a variety of rules. We can directly observe many aspects of an election: parties selecting candidates; candidates campaigning, consulting pollsters, offering concessions, making victory speeches; voters casting ballots; officials or volunteers manning polling places; domestic and international monitors observing those officials and volunteers and filing reports; and so forth. We cannot, however, directly observe an election per se. That is true of institutions of all sorts. As the economic historian Douglass North put it: “We cannot see, feel, touch, or even measure institutions” (North 1990: 107). We are, in other words, on properly theoretical terrain. An institution is a conceptual entity.

Institutions are sets of rules (e.g., roles, procedures, offices) that provide persistent means of coordinating ongoing social, economic, and political interactions. They emerge from ongoing social and political interactions and subsequently structure those interactions. Typically, institutions have a systemic quality, such that in any particular circumstance what we call an institutional arrangement will hang together in a more or less coherent, if arbitrary and contested, way. To continue with our example, an election consists of complex sets of rules defining such things as who is eligible to vote or stand for office, the boundaries of constituencies, the design of ballots as well as how they are cast and counted, how campaigns are conducted including how they are financed, what counts as ‘winning,’ and so forth. Even in local elections such rules coordinate the political activity of large numbers of people over an expansive domain. At the national or even regional level, the numbers of both people and activities obviously become immense.

The coordination that institutions provide is not entirely voluntary. Institutional rules often demand that individuals and groups act in ways contrary to what they understand to be their own immediate or even longer-term interests, commitments, and attachments. Think, for instance, of rules that disallow certain categories of expenditure in campaigns or that require those casting votes in a local contest to reside in the relevant constituency. Institutional rules must therefore specify what can be done, by and to whom, for what purposes, and when. They must also indicate what happens when the rules are breached and who decides when they are. In short, they ultimately trade not solely in voluntary compliance but in compulsion.

Ideals

We are presenting an argument about how institutional mechanisms may enhance the likelihood of electoral integrity. Our approach to ideals resembles the way we approach institutions. We are concerned less with imposing political structures (e.g., federalism, separation of powers, rule of law, etc.) than with relatively small-scale institutional rules that regulate voting. Likewise, we rely for normative leverage not on grand, abstract ideals like justice, democracy, freedom, or equality but on the relatively uninspiring principle of non-domination.

The principle of non-domination is noncommittal, modest, and reactive (Shapiro 2012). It is noncommittal to the extent that invoking non-domination does not entail any specific view of other political principles such as equality or freedom.⁷ It is modest because, while presuming that we might design institutional mechanisms that protect individuals and groups from domination, it does not presume it is possible or desirable to specify what just institutional arrangements would look like in their entirety. Finally, non-domination is reactive in that it takes our fundamental political task to be avoiding or mitigating domination.

Domination consists in particular ways of threatening, constraining, or interfering with the freedom of identifiable individuals or groups. It is “a particular type of unfreedom” (Shapiro 2012: 306). Four features of domination are important. First, the unfreedom involved results from human agency or from arrangements animated by the behavior of specifiable agents. In the case at hand, elections conducted via open voting enable particular agents to dominate others by threats, bribery, intimidation, or extortion.

Second, the unfreedom involved is susceptible to remedy. ...

Table of contents

• Cover
• Contents
• Series title
• Title page
• Copyright page
• Dedication
• Introduction
• 1 The Clash of Inclusion and Integrity?
• 2 A Precarious Institution Under Siege
• 3 Non-Domination in Elections Requires Mandatory Voting Too
• References
• End User License Agreement