The right to vote: Where it is a freedom, and where it’s a duty

In 1964, Earl Warren, then the US Chief Justice, said in a judgment delivered by the Supreme Court that the right to vote for the candidate of one’s choice is of essence in a democratic society, and any restrictions on that right strike at the heart of representative government.

That same year, Justice Hugo Black added to these words and said no right is not precious in a free country than that of having a voice in the election of those who make the laws under which we, as good citizens, live. He would add that other rights would be illusory if the right to vote is undermined. 

When the Independent Electoral & Boundaries Commission (IEBC) of Kenya began a fresh round of voter registration in preparation for next year’s elections, it was expected that many of the youth would register to vote in appreciation of that right. Almost a month later, just a minuscule of those expected to register have bothered to do so. Many wonder why people would not want to exercise their right to vote.

Double-lane right

In Kenya, the right to vote is anchored in the Constitution as part of the right for citizens to make political choices and express their wishes in regular free and fair elections. However, the right to vote as stated under the law of Kenya, is a freedom that almost carries with it a liberty to choose not to vote or even bother registering to vote at all. It is what is normally called a double-lane right — one that you have the liberty to exercise without an obligation to do so.

But there are concerns by many that the lack of civic engagement shown by failure of eligible person to register to vote, coupled with refusal by the registered voters to vote, in the ultimate, undermines democracy. This state of voter registration apathy has led to proposals to consider making voting compulsory by law.

Australia is one country that subscribes to this thinking that voting should be taken seriously by the citizens. Eligible citizens of Australia do not just have the right to register to vote and turning up to vote at the polls as a right, they are legally bound to do so. 

The Australian Electoral Act states that failure to vote for an eligible citizen is a criminal offence punishable by a fine. It requires the Electoral Commissioner to prepare a list of the names and addresses of electors who fail to appear at an election and send a penalty notice by post or other means to each elector who did not vote. The elector is then required to respond within a given period and justify his failure to vote.

Compulsory voting law

If the reason given is not acceptable in law as an excuse for not voting, the elector shall be required to pay a penalty directly or be subjected to criminal prosecution for failing to vote. The reasoning behind this law is that appearing to vote as a duty is not a very heavy burden on a citizen to pay for the sustenance of a democratic culture. 

The opponents of the compulsory voting law argue that it is the very antithesis of freedom and democracy to compel citizens to go and vote even when the choices do not appeal to them.

Egypt is another country that is similar to Australia in this regard. According to the laws on presidential and parliamentary elections, all adult Egyptians are expected to vote during elections at the risk of a penalty.

Greece also had a compulsory election law which was tied to the enjoyment of other rights and legal entitlements, where a citizen was required to accompany an application for a driver’s licence or passport with an up-to-date election booklet.

If the booklet did not indicate that the citizen had voted at the elections, he would have to justify such failure as a condition for getting the government documentation. The only exception to this was those above 70, for whom voting is not compulsory. This has since changed, however, and voting is considered mandatory but there are no sanctions for failing to vote.

The same is true in Brazil, where all literate citizens between 18 and 70 years are required to vote at elections, whether they are resident within the country or living abroad at the time of the elections. Evidence of voting compliance, that is actual voting, or payment of a fine for failing to vote, is required as a condition for some transactions such as acquisition of a passport or admission to university, employment in the civil service or for obtaining loans from state-owned banks.

Singapore’s compulsory voting applies only for persons who intend to contest electoral office. It states that a voter’s name will be removed from the electoral roll for failure to vote. Reinstatement will only be made upon giving written reasons for the failure to vote. If the reason does not seem satisfactory to the election official, the name may be reinstated upon payment of a fine.

In India, the only requirement is that an eligible citizen must register on the electoral roll. This would imply that the registration is compulsory but voting is not. In a suit filed by prisoners who sought to reinforce their right to vote at an election, the Supreme Court of India held that the right to vote in India is not a fundamental human right and may, therefore, be subjected to limitations by laws passed by the legislature.

Wastage of votes

But there seems to be an interesting midway for the Indian voter’s apathy where electors fail to turn up on grounds that the choices available as candidates are all unsuitable. This category still has what is known as the None of the Above (NOTA) option. This is an option in which all ballot papers must include the candidates and an additional option by which the voter can reject all the candidates and opt for the choice of ‘none of them’, on the ballot. 

This right was established by a Supreme Court decision, which ordered the electoral commission of India to ensure that all ballot papers and electronic voting machines give the voter the NOTA option. The benefit here is that this still gives the voter the avenue to exercise their right to vote against all the candidates, if none is suitable.

This NOTA option has led to some interesting scenarios. In 2018, Assembly elections in the state of Karnataka had more persons vote for the NOTA option than some major parties’ candidates. 

That same year, the difference between the party that won in the states of Madhya Pradesh and the second party was a mere tenth of a percentage (0.1 percent) while the NOTA voters constituted 1.4 percent.

Some think that this option is a development of democracy as it tackles voter apathy, while others think it is a cases of institutionalising wastage of votes for expression of resentment. Nevertheless, it has an impact on political legitimacy where the NOTA votes constitute a considerable proportion of the election.

In some jurisdictions where ballots are posted to the voters, a citizen is even allowed to register as a non–voter, so as to avoid wastage of ballots being posted to a person who is not interested in exercising that right.

These are just examples that the right to vote is viewed by many in different ways, from an absolute freedom that may or may not be exercised, or as a civic duty with consequences for the enjoyment of other rights within the state.

The writer is the head of Legal at Nation Media Group. [email protected]