Your right “not” to vote: Bulletproofing your course of action before you walk this thorny road

Posted on 02-05-2016 by
Tags: LIT , November , Top Stories

Candidate Stalin vs. Candidate Hitler.[1]

It’s a crappy hypothetical … over-the-top, fantastical and extreme … but our politicians are sometimes viewed through these extreme lenses. President Obama has been analogized to Hitler; the same analogy made for President Bush.  So labelling one candidate Hitler -esque, another Stalin –esque, isn’t anything new.

For me, these direct comparisons suck … it’s unholy politics. However, there’s nothing wrong with thinking a candidate … or all the candidates … just plain ole “suck.” And if you think this on Election Day 2016, you’re faced with the two-evils conundrum.

So ... your vote (logically) goes to the lesser evil, right? 

No wait! Have you considered the road less traveled by[2] -- exercising your right not to vote?

“I Choose Not to Vote!”

There’s a Seinfeld episode in which Jerry Seinfeld is challenged to a footrace. His response (because he cheated in an earlier race) is “I choose not to run!”[3] His declaration carries consequences; people get ticked off.

(Please visit the site to view this video)

If you “choose not to vote,” you’re gonna tick some people off. They’re gonna swing their moral hatchets and split your skull with words like “rights” and “duty” and “apathy.” If you’re not ironclad, you’re gonna suffer some wounds. And you might start to doubt your no-vote course of action.

If you choose not to vote, you’ll be walking a thorny road. To navigate it unscathed, here’s what you need to prepare for:

Not Voting Is Your Right

The Supreme Court has yet to textualize your right not to vote, but it has ruled that a right carries with it a counter-right of non-exercise. Consider the freedom of speech and its opposite, the freedom not to speak.[4]  In Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341 (N.Y. 1968), the Supreme Court held that:

The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.

In terms of voting, the Supreme Court has held that the “right to vote freely …  is of the essence of a democratic society.” Reynolds v. Sims, 377 U.S. 533 (U.S. 1964). The logic then goes that if denied the right not to vote, one cannot vote freely. Supporting this logic, the right not to vote has been recognized in lower courts. As stated in Dixon v. Maryland State Administrative Bd. of Election Laws, 878 F.2d 776 (4th Cir. Md. 1989):

It is apodictic that a vote does not lose its constitutional significance merely because it is cast for a candidate who has little or no chance of winning. Nor do we think it loses this character if cast for a non-existent or fictional person, for surely the right to vote for the candidate of one's choice includes the right to say that no candidate is acceptable. [emphasis added]

Beware Constitutional Bullies

Some will argue that by not voting, you’re thumbing your nose at the Constitution (a/k/a you’re a card-carrying communist).  

Yes, your vote and your right to it are vital; actually, they’re paramount, if I’m gonna be honest. The Supreme Court has described the right to vote this way:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Wesberry v. Sanders, 376 U.S. 1 (U.S. 1964).

Buttressing this is the fact that the right to vote appears in the Constitution 5 times … more often than any other right.

This being the case, your naysayers are gonna kick constitutional sand in your face. They’ll poke your chest and question your respect for the right to vote; i.e., the most hallowed of all constitutional rights. But, like so many people, they’ll have made an erroneous assumption:

The right to vote is not affirmed by the Constitution.

Don’t believe me. Well, believe this from Bush v. Gore, 531 U.S. 98 (U.S. 2000):

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. [emphasis added]

So why’s the right to vote #1 in constitutional references? Because the amendments (4th, 15th, 19th, 23rd and 26th) are vote-laden. These amendments basically guard against voting denials and voting discrimination.

But the affirmative right to vote?

The Constitution leaves that unguarded and unguaranteed.

“It’s Your Duty (To Vote)!”

The word “duty” is a noun – it’s a “moral or legal obligation; a responsibility.” But inherent in the word is an obligation or responsibility “to act.” It’s “verb-ish” without being a verb. So when somebody says it’s your “duty to vote,” they mean it’s your duty to act … you’re obligated to go to the polls.   

But in constitutional parlance, “duty," for whatever reason, is only applied to the right to vote.

Have you ever heard, “It’s your duty to speak freely?”

What about the duties to peaceably assemble, to keep and bear arms, to freely exercise religion?

Voting is a right, not a duty. Your “duty free” when it comes to your vote. spells it out this way:

You have the right to vote, not a duty to do so. In much the same way, you have the right to worship freely, the right to express your views, the right to run for public office – but no obligation to do any of them. Just as freedom of religion encompasses the freedom to practice no religion, your freedom to vote for the candidate of your choice includes the freedom to vote for no candidate at all.

Not Voting Is Not (Always) Apathy

The voting numbers from 2012’s presidential election look like this:

· 126 million eligible citizens voted

· 93 million eligible citizens did not vote

That means for every four voters, three of their neighbors stayed home.

Those who don’t vote often suffer the “apathy” stigma (and this is deservedly so … if they’re too lazy to vote). Conversely, those who vote dodge the apathy stigma by simply showing up. Doesn't matter what they know or why they choose. Your vote might hinge on planetary alignment, but as long as you show up, your scooted from the apathy pool.  

But c'mon, who’s really more apathetic:

· the voter who blindly votes without researching the issues and candidates; or

· the voter who intentionally doesn’t vote as a stand against the issues and candidates?

As I said, showing up to vote earns all who show up a free pass on apathy. The no-shows? They're all carpet-bombed as “apathetes,” all of them anguishing equally under the age-old adage: “If you don’t vote, you don’t have the right to complain.”

But apathy, as a jibe at non-voters, shouldn’t always be hurled. Consider what Professor Ilya Somin had to say about the uninformed, non-voter:

As [Jason] Brennan explains in his book [The Ethics of Voting], sometimes abstaining from voting is not only morally acceptable, but actually morally praiseworthy. One example is when you lack sufficient knowledge of the issues to vote in a minimally informed way ….  they at least should not be stigmatized for abstaining in situations where their participation is likely to make the situation even worse.

Professor Somin then goes on to address the lesser-of-two-evils dilemma:

[A] citizen who chooses not to vote based on such [ethical] considerations should not be stigmatized as somehow immoral, and certainly has every right to continue to complain about harmful and unjust government policies.

2016: To Vote or Not To Vote

I wouldn’t be writing this if the thought – to not vote in 2016 – hadn’t crossed my mind. I haven’t missed an election since I turned eighteen, but right now, none of the candidates inspire me; their warts, too many. I don’t consider any of them dictators, none of them evil, but the field (for me) is pedestrian.

And I think casting my important vote for pedestrian would leave me feeling somewhat soulless.

[1] Purely hypothetical - no comparison intended to any of the 2016 candidates.

[2] Hat tip Robert Frost

[3] Rolling Stone notes that this episode is a double nod: 1st to Melville's Bartleby the Scrivener and 2nd to Calvin Coolidge's proclamation, “"I do not choose to run."

[4] There’s the argument that a vote is a “spoken” choice, and thus, not voting is a choice not to speak.

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