Referendum Turnout: Compulsory or Voluntary?

Click to increase image sizeClick to decrease image size Notes1 ‘Back’ implies that sovereignty derives from the people. ‘Referring’ reminds that a process of choosing which issues to send to a vote – and how to frame them – is involved.2 Eg, Jason Brennan and Lisa Hill, Compulsory Voting: For and Against (Cambridge University Press, 2014), Sarah Birch, Full Participation: a Comparative Study of Compulsory Voting (United Nations University Press, 2009) and Shane P Singh, Beyond Turnout: How Compulsory Voting Shapes Citizens and Political Parties (Oxford University Press, 2021).3 Eg, Costas Panagopoulos, ‘The Calculus of Voting in Compulsory Voting Systems’ (2008) 30 Political Behavior 455 cf Alberto Chong and Mauricio Olivera, ‘On Compulsory Voting and Income Equality’ (Inter-American Development Bank, Working Paper #33, 5/2005).4 Eg, Loren E Lomasky and Geoffrey Brennan, ‘Is There a Duty to Vote?’ (2000) 17 Social Philosophy and Policy 62 cf Michael M Bechtel et al, ‘Compulsory Voting, Habit Formation, and Political Participation’ (2018) 100 The Review of Economics and Statistics 467.5 Eg, Bart Engelen, ‘Why Compulsory Voting Can Enhance Democracy’ (2007) 42 Acta Politica 23. Conversely, it has been argued that compulsion could be used to accentuate a slippage into anti-democratic populism: Pete Crabb, ‘Compulsory Voting and Populism’ (SSRN, doi.org/10.2139/ssrn.3662725, 5/9/2020).6 Eg, Xenophon Contiades and Alkmene Fotiadou, Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge, 2016) and Julie Smith, The Palgrave Handbook of European Referendums (Palgrave Macmillan, 2021).7 Respectively: Karin Gilland Lutz and Simon Hug (eds), Financing Referendum Campaigns (Palgrave Macmillan, 2009), Sandrine Baume et al (eds); Misinformation in Referenda (Routledge, 2020); and Ron Levy et al, Deliberative Peace Referendums (Oxford University Press, 2021).8 Eg, Emilee Booth Chapman, ‘The Distinctive Value of Elections and the Case of Compulsory Voting’ (2019) 63 American Journal of Political Science 101, 102 (parenthetically suggesting that the case for compulsion in large-scale elections ‘potentially’ applies to referendums).9 See distinctions in Larry LeDuc, The Politics of Direct Democracy: Referendums in Global Perspective (University of Toronto Press, 2003) 39. I do not otherwise adopt LeDuc’s four-part typology of referendum topics (‘constitutional issues’, ‘treaties and international agreements’, ‘sovereignty, national self-determination and devolution’, and ‘public policy issues’). Whilst useful for a political scientist, they involve too much overlap to be categorically useful.10 Rick Hasen, ‘Voting Without Law?’ (1996) 144 University of Pennsylvania Law Review 2135, 2135.11 In some systems of course, citizens can initiate constitutional referendums, as in Italy and some smaller European democracies: Alan Renwick and Jess Sergeant, ‘The Rules of Referendums’ in Smith, above n 6, 71.12 ‘The concept of representation is misleadingly simple; everyone seems to know what it is, yet few can agree on any particular definition … of this elusive concept’: Suzanne Dovi, ‘Political Representation’, Stanford Encyclopaedia of Philosophy (Stanford University, 2018 revision). Its paradoxes were identified in Hannah Fenichel Pitkin’s The Concept of Representation (University of California Press, 1967).13 Graeme Orr, ‘The Law of Electoral Democracy: Theory and Purpose’ in Alan Bogg et al (eds), The Constitution of Social Democracy (Hart, 2020)173–75. These are constructive or insider perspectives; a fourth is the cynical or outsider perspective, where electoral democracy is just a game masking entrenched inequities or oppression.14 I use ‘ultimate’ here not in the of ‘necessary if not sufficient’: a sense of legitimacy, perceived and real, being essential to trust and stability within any political order.15 See further Graeme Orr, Ritual and Rhythm in Electoral Systems: A Comparative Legal Account (Routledge, 2015).16 Justin Buchler, Hiring and Firing Officials: Rethinking the Purpose of Elections (Oxford University Press, 2011).17 International IDEA currently reckons that 27 countries (out of 203) employ some form of compulsion in turnout; and that 40 have ever used it (including three only ever at some sub-national elections: Austria, Switzerland and the US). See ‘Compulsory Voting’ .18 A 2006 survey identified 23 countries where electoral compulsion was then legislated for (including two only at sub-national level). Of these 16 were ‘free’, six ‘partly free’ and only one (Egypt) classed as ‘not free’: Joint Standing Committee on Electoral Matters, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto (Parliament of the Commonwealth of Australia, 2006) Appendix G.19 See discussion in the Australian High Court in Faderson v Bridger (1971) 126 CLR 271. The more pragmatic question is whether ballot instructions imply that the voter must mark the ballot formally or whether the ability to spoil the ballot is noted: Graeme Orr, ‘The Choice Not to Choose: Commonwealth Law and the Withholding of Preferences’ (1997) 23 Monash University Law Review 285.20 Lisa Hill, ‘Increasing Turnout Using Compulsory Voting’ (2011) 31 Politics 27, 33. This is to ensure that elections in the short term are not skewed, eg, by party campaigns focusing on depressing the turnout of their rivals’ supporters; and in the longer term that whole classes of the electorate are not alienated such that their voices are unheeded.21 Chapman, above n 8, 104.22 International IDEA, above n 17. This excludes countries that merely compel voter registration, such as New Zealand. ‘Some’ compulsion includes countries where very young, very old or overseas electors are not compelled.23 Eg, s 128 of the Australian Constitution mandates referendums. But one-off legislation was used to run every referendum until 1984: Graeme Orr, ‘The Conduct of Referenda and Plebiscites in Australia: a Legal Perspective’ (2000) 11 Public Law Review 117. Conversely, referendums are mostly discretionary at the sub-national level in Australia, yet all bar one State now has standing legislation for them: Paul Kildea, ‘The Law and History of State and Territory Referendums' (2022) 44 Sydney Law Review 31, 49 n 111.24 Election observation and capacity-building means that electoral acts are now widely published.25 Eg, Singapore National Referendum Ordinance 1961, s 21 (standing referendum law) and Loi du 4 février 2005 relative au référendum au niveau national (Luxembourg) art 37 (one-off referendum law).26 Eg, Regulación del Referéndum (Ley 8492, 4/4/2006, Costa Rica) art 5 (standing referendum law).27 Constitution of the Federal Republic of Brazil (1988) art 14. Whilst this is not restated in the general procedures for plebiscites and referendums (Lei 9,709 de 18 de Novembro 1998) it is explicit in regulations for particular events (eg Lei 8,624 de 4 de Fevereiro 1993, art 3).28 A rare exception is described in Bechtel et al, above n 4: the Swiss canton of Vaud compelled participation in federal referendums – typically legislative rather than constitutional – whilst not mandating turnout for elections.29 Alvaro Marques and Thomas B Smith, ‘Referendums in the Third World’ (1984) 3 Electoral Studies 85, 10130 Ibid, 91.31 Ibid, 100.32 Duncan McCargo et al, ‘Ordering Peace: Thailand’s 2016 Constitutional Referendum’ (2017) 65 Contemporary Southeast Asia 65.33 Oran Doyle, ‘Order from Chaos? Typologies and Models of Constitutional Change’ in Contiades and Fotiadou (eds), above n 6, 182, 182. For a different typology of referendum issues to mine, see LeDuc, above n 9.34 A dichotomy mirrored in debates about whether the rule of law is primarily a substantive or procedural value.35 In 2018, another referendum repealed the prohibition. This referendum was quasi-institutional, since the question did not guarantee abortion rights as opposed to permitting the legislature to regulate. But it remained focused on social values, given the context was a strong push for legislation to liberalise the law.36 When Aristotle held that humans are zoon politikon, he was talking generally not specifically.37 Graeme Orr, ‘Deliberation and Electoral Law’ (2013) 12 Election Law Journal 421.38 LeDuc, above n 9, 72.39 Taiwan even has both: legislative supermajority to propose a referendum, then approval by 50% of all eligible voters.40 Regulación del Referéndum (Ley 8492, 4/4/2006, Costa Rica) art 4.41 Singh, above n 2, 24–25. Co-incidentally, that referendum concerned whether to retain electoral compulsion.42 For instance, the Brexit referendum achieved a vote of 37.5% of the enrolled electorate (on a turnout of 72%). It would have failed under a 40% quorum rule, but passed if turnout were 78%. Few commentators believe turnout skewed the Brexit result.43 Ron Levy, ‘Deliberative Case for Constitutional Referenda’ (2017) 16 Election Law Journal 213.44 Even deliberative democrats despair at elections ever being deliberative events: Dennis Thompson, ‘Deliberate About, Not In, Elections’ (2013) Election Law Journal 372 (arguing that deliberative democrats should focus on popular deliberation in reforming the rules of elections, rather than election campaigns themselves). For an argument that elections are flat-out deliberative wastelands best suited to the aggregation of pre-existing partisan views, see James A Gardner, What are Campaigns For? The Role of Persuasion in Electoral Law and Politics (Oxford University Press, 2009).45 Neil Gow, ‘The Introduction of Compulsory Voting in the Australian Commonwealth’ (1971) 6 Politics 201. Today, egalitarians value compulsion more than libertarians. But it was the centre-right parties who introduced compulsory voting in Australia, fearing that the labour movement had an advantage in turning out working class electors.46 See various chapters in Paul Strangio and Matteo Bonotti, A Century of Compulsory Voting in Australia: Genesis, Impact and Future (Palgrave Macmillan, 2021).47 Graeme Orr, ‘Choice of the Manner in Which Thou Wilt Die’: The Australian Courts on Compulsory Voting’ in Strangio and Bonotti (eds), ibid, 141.48 Sarah Cameron and Ian MacAllister, Trends in Australian Public Opinion: Results from the Australian Election Study 1987–2022, 75 (including data back to 1967). A shallow dip in the 1980s coincided with the one period when a major party has questioned compulsion (primarily within the liberal wing of the South Australian Liberal Party).49 For statistics see Glenn Rhodes, Votes for Australia: How Colonials Voted at the 1899–1900 Federation Referendums (Centre for Australian Public Sector Management, Griffith University, 2002) 16–17. The (un)predictability of outcomes was not a factor: turnout was only 1–4% higher than average in the two colonies where the vote was close.50 Australian Constitution, s 128.51 George Williams and David Hume, People Power: the History and Future of the Referendum in Australia (UNSW Press, 2010).52 At the last four national referendum days, in 1977, 1984, 1988 and 1999, turnout has been over 92%. It peaked at 95% for the last such event, the 1999 Republic referendum. Only one of those four events coincided with an election. Turnout remained high even when the proposals were narrow and purely institutionalist (as in 1977).53 Elisa Arcioni and Adrienne Stone, ‘Constitutional Change in Australia: The Paradox of the Frozen Continent’ in Xenophon Contiades and Alkmene Fotiadou (eds), Routledge Handbook on Comparative Constitutional Change (Routledge, 2022) 388 argue that this thinness has been a saving grace. By not locking-in too much, informal constitutional change has been able to compensate for the failure of explicit amendments.54 In an avian metaphor, it is a ‘small brown bird’ compared to the US constitutional ‘eagle’: Justice Patrick Keane, ‘In Celebration of the Constitution’ (Constitution Founders Lecture, 12/6/2008).55 See further, Graeme Orr, ‘Voluntary Voting for Referendums in Australia: Old Wine, New Bottle’ in Ron Levy et al (eds), New Directions for Law in Australian: Essays in Contemporary Law Reform (ANU Press, 2017) 359.56 Williams and Hume, above n 51, 205. I am not saying that all institutional questions are arcane. Sometimes they relate to key democratic structures: Rick LaRue, ‘We Love the Bill of Rights. Can We Like a Bill of Structures’ (2022) 21 Election Law Journal 308.57 Commonwealth of Australia, Yes/No – Referendum ’99 – Your Official Referendum Pamphlet (Australian Electoral Commission, 1999) 17.58 As distinctly argued under the slogan ‘If it ain’t broke, don’t fix it’: ibid, 15.59 Klaas Woldring, ‘The Case for Voluntary Voting in Referendums’ (1976) 11 Politics 209.60 Williams and Hume, above n 51, ch 4 and appendix 2.61 The last successful national referendum day in Australia was in 1977: three relatively minor amendments were approved, one more substantial one failed.62 Examples in the past decade that have not reached a referendum despite all sides agreeing constitutional reform is necessary include modernising dated rules limiting qualifications of MPs and candidates, and regularising the vital practice of Commonwealth funding of local governments.63 Exemplified in House of Representatives Standing Committee on Legal and Constitutional Affairs, A Time for Change: Yes/No? Inquiry into the Machinery of Referendums (Parliament of the Commonwealth of Australia, 2009) chs 4–5. See also Williams and Hume, above n 51, ch 7.64 The official result, of a 67% ‘yes’ vote, has been the subject of suspicion. Technically that vote was a non-binding plebiscite. But, as noted in the introduction, that does not concern us. In liminal moments, of constitutional transition, there may be no pre-existing constitutional order ‘mandating’ a referendum for reform. Further, whilst an authoritarian regime could ignore the rejection of one of its proposals, it is more likely to tilt the scales to try to ensure a favourable outcome and, if necessary, modify the proposal and the voting scales and try again.65 Voluntary registration had until then been a constitutional rule in Chile as far back as 1925.66 Tiffany D Barnes and Gabriela Rangel, ‘Election Law Reform in Chile: the Implementation of Automatic Registration and Voluntary Voting’ (2014) 13 Election Law Journal 570, 571. Pinochet lost.67 Ibid, 572–73.68 Ibid, 573–76.69 Pamela Figueroa, Constitutional Referendum During the Covid-19 Pandemic: the Case of Chile (International IDEA, Case Study, 27/8/2021) 6.70 Ibid, 7.71 Ibid, 14.72 Recognising this, Australia employed voluntary voting for its Republican Constitutional Convention election: Graeme Orr, ‘Tinkering with Convention: Voluntary Voting at Australia's 1997 Constitutional Convention Election’ (1998) 17 Electoral Studies 575.73 With voluntary voting for 16–17 year olds: Propuesta Constitución Política de la República de Chile 2022, art 160.1.74 Bechtel et al, above n 4. The study followed the repeal of referendum compulsion in the Vaud canton of Switzerland. Despite a strong turnout boost whilst it was in place (30–36%, depending on the proposal’s salience) and a clear ‘spillover’ effect on turnout at otherwise voluntary federal elections was less (12% extra turnout, rising to 24% if a referendum coincided with an election day) these effects quickly subsided after Vaud repealed compulsion.75 The US takes the opposite approach, throwing all manner of ballots, local/state/federal, onto a common day.76 Indeed provisional article 16 of the Constitution of the Republic of Türkiye (1982) itself included deprivation of electoral and candidacy rights, for five years following, for those who failed to vote at that referendum.77 Ergun Özbudun and Ömer Faruk Gençkaya, Democratization and the Politics of Constitution-Making in Turkey (Central European University Press, 2009) 20.78 Mads Qvortup, Direct Democracy: A Comparative Study of the Theory and Practice of Government by the People (Manchester UP, 2015) 147.79 Just as standing and fairly stable electoral laws are an aspect of the ‘repeat play’ (generating ongoing commitment to elections as a means of renewing representative mandates) that is a key element of democracy: Samuel Issacharoff, Democracy Unmoored: Populism and the Corruption of Popular Sovereignty (Oxford University Press, 2023) ch 4.