The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Advocates of mandatory voting often cite mandatory jury service as a justification for making voting obligatory as well. If it is right to force people to serve on juries, why not also force them to vote? Variations of this argument have been advanced by my recent friendly radio debate opponent, Brookings Institution scholar William Galston, former Obama adviser Peter Orszag, and Dylan Matthews of Vox. This oft-made analogy overlooks important differences between jury service and voting. In addition, instead of using jury service as a justification for imposing other mandates on the public, we should make jury service itself voluntary.
I. Differences Between Jury Service and Voting.
Key differences between jury service and voting are often ignored by those who use the former as a justification for mandating the latter. The biggest one is that political ignorance is a much less serious problem for jurors than it is for voters. This means that one of the main objections to mandatory voting— the danger of exacerbating the already severe problem of political ignorance—is a much less significant issue when it comes to juries. We need not worry as much about the risks of forcing people to participate who, on average, have even lower levels of political knowledge than the average voluntary voter does.
Unlike voters, who must contend with the vast array of complex issues controlled by modern government, jurors typically decide only a single discrete case where the range of relevant facts is much narrower. In addition, unlike voters, jurors are required to listen to evidence and arguments presented by both sides and then deliberate over them. This contrasts sharply with the behavior of voters, the majority of whom are often ignorant of basic facts about politics and government, and routinely ignore or dismiss evidence opposed to their preexisting views. Some scholars have proposed requiring voters to hear evidence or deliberate on political issues in much the same way as jurors deliberate on cases. I am skeptical of such ideas, for reasons I outlined here and here.
Jurors also face very different incentives from voters. On a jury, even one vote can make a decisive difference to the outcome, or at least has a high likelihood of doing so (in jurisdictions where a jury verdict need not be unanimous). This leads most jurors to take their responsibilities at least reasonably seriously, and make a real effort to learn the relevant facts and consider them in an unbiased way. By contrast, the chance of any one vote making a decisive difference in an election is infinitesmally small. That gives voters strong incentives to be rationally ignorant and to make little effort to engage in unbiased evaluation of the political information they do learn.
I analyze these and other differences between jury ignorance and political ignorance in greater detail in this recent article. The bottom line is that ignorance is a less severe problem for jurors than voters. However, I also describe evidence indicating that ignorance and bias on juries become more severe problems in the minority of cases where jurors have to deal with issues more similar to those that come up in elections—for example cases involving broad policy issues, cost-benefit analysis, and complex scientific evidence. These problems in the relatively more favorable jury environment should be a warning sign for advocates of mandatory voting.
Another relevant difference between jury service and voting is that most people are called for jury service only once every several years, and of those only a small minority are actually forced to hear cases. I have lived in Virginia for almost twelve years without being called even once. By contrast, mandatory voting would force everyone to go to the polls almost every year (if it applies to all federal, state, and local elections).
Mandatory jury service is more like a lottery than a truly universal mandate. If we really wanted to model voting on jury service, we should adopt a voting lottery system along the lines suggested by Jason Brennan. As he explains in a recent book, a lottery that randomly selects thirty thousand people as the only ones to vote in every federal election would impose restrictions on the liberty of far fewer people than universal mandatory voting, would be less expensive, and would probably be more representative of the demographics of the underlying population. Brennan explains that even mandatory voting systems have residual demographic skews that can largely be eliminated by a lottery system based on modern survey sampling techniques. To be clear, I do not actually support a voting lottery; Brennan himself believes that it is better than mandatory voting, but still inferior to a voluntary system. My point is that this is the direction in which the jury analogy points, if applied consistently.
II. Why Jury Service Should be Voluntary.
In addition to being a flawed analogy for mandatory voting, mandatory jury service should itself be abolished. Like the now-abandoned military draft, it is a form of state-imposed forced labor, albeit a much milder and less risky one. At the very least, we should not resort to forced labor unless there is an important public interest that can't be achieved in any less coercive way. Not, at least, if we take seriously the notion that people own their own bodies, and are entitled to decide for themselves what type of work they want to do.
As in the case of the draft, the potential benefits of jury service can readily be achieved without forcing anyone to serve. We can simply make jury service voluntary and pay those who volunteer to serve for their time at market rates. That may seem radical and outlandish. But it is exactly what we do for other forms of public service. We pay police, firefighters, and soldiers for their work. The same is true for others who perform vital jobs in the justice system. No one advocates forcibly conscripting judges, prosecutors, or public defenders.
If the goal is to ensure that jurors are demographically representative of the underlying population in the relevant area, we can invite people to serve as jurors on the basis of a randomized lottery (or using sampling techniques comparable to those used by pollsters). Compensation levels can be adjusted to ensure proportional participation by different groups. For example, the state could offer higher jury pay to those who would forego more income by serving, or to parents of small children who would have to pay day care costs. The resulting jury pool might actually be more demographically representative than the current mandatory version, which includes a variety of "hardship" and other exemptions.
Some might object that paying jurors will make the system unduly expensive. But the costs of jury service, like those of the draft, exist regardless of whether the government fully compensates those who serve or not. The big difference between coerced and voluntary service is that in the former scenario most of the costs are imposed on the draftees rather than spread throughout society. If jury service, like military service, really is necessary to benefit the public as a whole, then it is unjust to impose most of the costs on those forced to become jurors. Rather, the public as a whole should be the ones to pay—just as it pays for the time of those who perform other public services.
There is an additional reason to get rid of mandatory jury service: Its use as a rationale for mandatory voting suggests the danger that it could become a slippery slope for justifying other forms of forced labor. If we can force people to serve on juries, why not also force them to perform tasks X, Y, or Z that might benefit society in some way? As mandatory national service advocates sometimes point out, the list of such tasks is nearly endless.
I don't want to overstate this danger. The fact that such arguments can logically be made doesn't mean policymakers and voters will accept them, or even pay much attention. Still, slippery slopes of this kind do sometimes occur, and even a small risk of significantly expanding forced labor is worth eliminating, if it can be done at little cost.
Finally, I should note that, in a 2007 post, I argued that mandatory jury service may actually be required by provisions in the Bill of Rights guaranteeing a right to trial by jury. I am less confident of the validity of this argument today than I was back then. But if it is correct, it would mean we can only get rid of mandatory jury service (at least for many cases) by constitutional amendment. If so, that isn't a justification for the practice. It is an indication that this is one of those issues where the Founding Fathers made a mistake. While I am a great admirer of their work as a whole, I don't deny that they made some errors.
UPDATE: It is worth noting that my argument against mandatory jury service still applies if the rationale for the practices is not getting people to do the job of deciding cases, but rather some beneficial side effect, such as increasing civic engagement or fostering social solidarity. These possible benefits can also be achieved—and to at least the same degree—through a voluntary lottery system of the sort described above. The same number of people would end up serving on juries, and they could be made demographically representative to the same degree (or perhaps an even greater one). Thus, whatever civic engagement or social solidarity is created by jury service would be at least as widely shared as it is under the status quo. If the goal is to involve people who otherwise don't participate in politics or civil society, the lottery could even be adjusted to increase the odds that such people will be selected.