There are issues that have been the subject of constant debate for decades – in society as well as in law. This includes the introduction of compulsory voting. Just one day after the vote in North Rhine-Westphalia, the term “compulsory voting” was in the so-called “Twitter trends” and thus one of the topics most frequently discussed on the social media platform.
In the past, the topic has come up regularly after elections. For example, the newspaper “Zeit” titled an article on the turnout of different groups in the federal election with the words: “Maybe they have to be forced”. And under this headline there was once again a plea for compulsory voting.
From a legal point of view, this discussion is quite interesting. But it does nothing to solve the problems. Compulsory voting is not undemocratic per se – even if this is often claimed. A glance at the undeniably democratic states outside and within the European Union that have such an obligation, such as Greece, shows that.
The Basic Law does not expressly state that there can be no compulsory voting. In the constitution of Baden-Württemberg there is even a provision according to which the “exercise of the right to vote and vote … is a civic duty”. However, this does not justify an obligation to participate in the election. Rather, it is a mere appeal to civic responsibility.
Some legal scholars are of the opinion that compulsory voting can be introduced by a simple law. However, most lawyers assume that this is not possible. In particular, the principle of free choice laid down in Article 38 of the Basic Law stands in the way of this.
According to the case law of the Federal Constitutional Court, this principle ensures that “the voter can find his voting decision in a free, open process of forming his will”. And according to the prevailing opinion in jurisprudence, freedom of choice also includes the so-called negative freedom of choice, i.e. the right not to vote.
However, this view does not rule out compulsory voting. They can be permitted or introduced by amending the Basic Law. Various reasons are given for such an obligation. This includes, in particular, that a low turnout always leads to a low democratic legitimacy of the parliaments. And of course that’s true. Responding to this with coercion is the wrong approach.
“Does democracy seriously want to enforce convictions with state power, criminalize skeptics?” wrote Professor Walter Leisner in the Neue Zeitung für Verwaltungsrecht. “Compulsory voting – yes, that really is a moral problem, but abstinence from voting is not,” said the well-known constitutional lawyer. “’State morality’ is a problem word, especially in a democracy; But that’s not what you should build on…the foundations, the elections.” That doesn’t mean that you should just accept a lower turnout.
“One of the greatest strengths of democracy is,” as Leisner explains in the article, “undisputedly its freedom to promote the market.” Rather, he must first be persuaded by offers; otherwise he won’t buy at all.”
Carrying out this persuasion work is the task of the political providers and thus above all of the parties and their representatives. They should note what the Cologne lawyer Serkan Kirli wrote on Twitter about the low turnout in North Rhine-Westphalia: “You have to listen not only when the sovereign speaks, but also when he is silent.”
Arnd Diringer is a professor at the Ludwigsburg University of Applied Sciences. He is the author of numerous publications on constitutional, civil and labor law.