Is It Legit?

I am continuing my series of posts about the duty to vote ― or nonexistence thereof. Earlier this week, I addressed what I called information-based arguments: claims to the effect that we must vote in order to contribute our views, either about what political option is best for us, or about which of them will make for better government in the general interest. I had addressed the gratitude-based arguments in an earlier post. Here I take on a different sort of argument, which I will describe as legitimacy-based. It is the idea that it is necessary for people to vote because the continuing legitimacy of our democratic political arrangements depends on widespread participation. If abstention rates are too high, democracy itself is at risk. This argument, in my view, is both empirically and normatively problematic.

Let’s start with the normative problem. The legitimacy-based government (like the information-based one) is an instrumental one: it considers that voting is a duty not for its own sake, but for a ulterior purpose. In order for democracy to endure and thrive, you ought to vote. But not everyone agrees with this purpose. A democratic society does not expect or require all of its members to be democrats. There are authoritarians in our midst, and there are anarchists. I happen to think that they are wrong; most people presumably think so too. But they are entitled to their opinions, and I do not see why they would have a moral duty (still less, of course, how one could justify imposing on them a legal duty) to nurture a political system with which they disagree.

Very well, you will say, but what of the majority who do believe that democracy is the best political system, or at least the worst except all the others? Don’t they have a duty to vote in order to reinforce this system? Indeed, there is some threshold of participation below which an electoral system can lose its legitimacy and will be in danger of being replaced by less democratic arrangements. The situation of Québec’s school boards is a case in point: the commissioners and chairpersons of the boards are elected, but in 2014, only 5.5% of the province’s voters bothered to cast a ballot ― and the government is now planning on scrapping the elections. (To be clear: I have no idea whether, in that instance, less democratic means worse.) But is the theoretical possibility of this happening enough to justify a duty to vote?

Nobody actually thinks that everyone must vote in order for an electoral system, or the result of a given election, to be legitimate. The Québec secession referenda were not illegitimate because turnout was “only” 85.6% in 1980 and 93.5% in 1995. Nor were Canadian elections grounds for legitimacy concerns when turnout fluctuated around 75%. Of late, however, it has been substantially lower ― around 60%. But for all the worries about the vitality of Canadian democracy that these numbers have provoked, they would be reasonably high for presidential elections (never mind, say, mid-terms) in the United States. I’m not sure anyone worries about the survival and legitimacy of democracy in the United States, at least not because of turnout figures ― though to be sure there is no shortage of people who would like them to be higher. The same goes, to the best of my knowledge, for Switzerland, where turnout in the three federal elections held since 2000 has consistently been below 50% (45.2% in 2003, 48.9% in 2007, and 49.1% in 2011).

All that to say that while there is some turnout threshold below which the viability of a democratic system can come into question, it is quite clearly situated well below the turnout levels actually observed in Canadian elections. Quite clearly, nothing like near-universal participation in elections is necessary for a well-functioning democracy. It is thus not at all clear that an individual’s commitment to democracy translates into a duty to vote. Besides, that commitment can be expressed in any number of ways other than voting, a topic to which I will come back in a subsequent post.

The legitimacy-based argument sometimes has a somewhat different focus, reflecting a concern not with the vitality of the democratic system as such, but with the legitimacy of specific governments. Thus Andrew Coyne worries that “‘[m]ajority’ governments are now formed in this country with the support of barely one in five adult citizens — about the same as elected governments a century ago, when women were not allowed to vote.” In his view, this amounts to “a crisis of democratic legitimacy.” As with the concerns about the legitimacy of democratic politics as such, it is not clear that the crisis is real. Was there a crisis of democratic legitimacy during the presidency of Bill Clinton, first elected in 1992 with 43% of the popular vote on a turnout of 55.2%, and thus the votes of 23.7% of the registered voters, re-elected in 1996 with 49.2% of the votes cast out of a turnout of 49%, and thus the support of 24.1% of the registered voters? If there was, why is it that more than 60% of the American people apparently approved of that job he had done by the end of his second term? Actually, I doubt that Mr. Coyne or others who trot out this particular argument really believe in it. It is a nice rhetorical flourish, and nothing more.

The need to preserve the legitimacy of our democratic system or even of the governments that it produces cannot justify a duty to vote even for those who accept that this need is a pressing concern ― which is not everyone in politically free and pluralistic societies. There are at least a couple of other arguments in favour of such a duty that I have not yet addressed, however. I try to do so shortly. And if you are worried that I will miss your favourite one, do not hesitate to tell me about it!

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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