In the area of election law, I’ve written plenty of articles on the subjects of voting rights and election administration aimed at influencing the courts, legislators, and executive branch officials. Occasionally, though, I’ll take academic license to write a more quirky, hopefully thought-provoking piece. For instance, I have published an article recommending that close elections be resolved by a coin flip rather than litigation.
Another of my quirky articles, titled Opt-Out Voting, will soon be appearing in an issue of the Hofstra Law Review. In Opt-Out Voting, I envision a different manner of casting ballots in elections. The current paradigm of elections is basically for a registered voter to go to the polling place (or get an absentee ballot) and then select the candidate he or she desires. In contrast, opt-out voting would randomly pre-select a candidate for the registered voter and then mail a ballot to the registered voter. The registered voter would then have the option of: (1) doing nothing and staying with his or her currently selected candidate; (2) switching his or her vote to a different candidate; or (3) switching his or her ballot to a vote for “None of the Above.”
The reason for switching to a system of opt-out voting would be to increase the number of persons who cast ballots at elections. Currently, the United States has a low rate of voter turnout. And this low voter turnout rate is especially stark at contests below the federal general presidential election (e.g., in local elections).
The concept of opt-out voting and the rationale behind the concept raise at least two important questions. First, is increasing the amount of voter turnout at elections a worthy goal? Second, would opt-out voting actually lead to an increase in turnout? In my view, the answer to the first question is a definite “yes.” The answer to the second question is theoretically “yes,” but more experimentation would be necessary to figure this out.
In general, most folks instinctively think that high voter turnout makes for a healthier democracy than low voter turnout. Perhaps the biggest reason why high voter turnout improves democracy is that higher turnout increases the representativeness of the electorate. Studies have shown that, particularly on the local level, those who turn out to vote are not necessarily reflective of society as a whole (i.e., lower participation by the poor and less educated). If turnout increases, government should become more reflective of and responsive to all of society and not just certain segments of society.
The question of whether providing a pre-selected candidate to registered voters will spur more registered voters to cast a ballot is a bit iffier. However, there are theoretical reasons to think that such a system might spur increased participation. For starters, the default option for elections has been switched from a baseline of non-participation to participation. In some sense, this is like a system that defaults folks into a 401(k) plan rather than defaults folks out of such a plan.
Of course, the problem with a default of participation is that a registered voter might just pay no attention to his or her ballot. What might motivate a registered voter to do something with his or her ballot? Here, it would seem that the “penalty” of voting for the wrong candidate might spur folks to vote. To take one example, Colorado had sixteen candidates for president on the ballot in November of 2008. With ballots being randomly assigned, that would mean many folks would end up with a fringe candidate from, say, the Heartquake Party. Moreover, if provided with a pre-selected candidate, registered voters might be more likely to seek out information about candidates in order to avoid voting for the “wrong” candidate. In some sense, this proposal takes a cue from Ian Ayres’ theory of penalty defaults for contracts.
Admittedly, opt-out voting amounts to an unusual proposal that is more haute-couture than ready-to-wear. Yet my hope is that it might spur more dialogue about how we can structure our system of elections to nudge more citizens to participate in elections at all levels of government.
And obviously, this is a blog post that omits a lot of the details, so check out the draft of the paper on SSRN if you are in the mood for more.