Voting in Bad Faith

Joanne C. Lau

� Springer Science+Business Media Dordrecht 2014

Abstract What is wrong with participating in a democratic decision-making

process, and then doing something other than the outcome of the decision? It is

often thought that collective decision-making entails being prima facie bound to the

outcome of that decision, although little analysis has been done on why that is the

case. Conventional perspectives are inadequate to explain its wrongness. I offer a

new and more robust analysis on the nature of voting: voting when you will accept

the outcome only if the decision goes your way is an act of bad faith: you are not

taking part in a ‘process that decides what we will do’. This analysis sheds light on

understanding the intrinsic nature of voting and what we are doing when we make

decisions collectively.

Keywords Voting � Democracy � Collective decision-making �Bad faith

In June 2011, the Australian parliament was debating whether to introduce a carbon

tax. Then-opposition leader Tony Abbott demanded a plebiscite to determine

whether the government should impose a fixed price on carbon emissions. ‘If the

people have their say and their say is conclusive one way or another, that should

settle the matter,’ he said (Abbott moves for vote 2011). Yet Abbott opposed the

idea of imposing a carbon tax; he also said that, ‘My position on a carbon tax is that

I am against it in opposition [sic] and I will rescind it in government (Gillard says

Abbott 2011).’ Were his party in power, Abbott specifically stated that he would

rescind the carbon tax even if the plebiscite came back with a majority ‘yes’ result.

J. C. Lau (&)

Virginia Tech, 219 Major Williams Hall, Blacksburg, VA 24061, USA

e-mail: jclau@vt.edu

123

Res Publica

DOI 10.1007/s11158-014-9246-x

Is there something wrong or inconsistent about Abbott’s statements? Do

collective decision-making processes, like voting, presuppose that those participat-

ing have implicitly agreed to be bound by the outcome of that process? There seems

to be something morally wrong about voting where you do not plan to be bound by

the outcome of the decision. It is, at the best, an odd notion. It is, at the worse,

inconsistent. But what exactly is wrong about it?

I will refer to the practice of casting a vote without intending to be bound by the

outcome of the decision as ‘voting in bad faith’.1 So—if anything—what is wrong

with voting in bad faith? Some obvious answers—that it is unfair, or that you are

acting untruthfully—prove inadequate as full explanations. I shall suggest it is

something deeper in the internal logic of making decisions by voting at all that

vitiates voting in bad faith.

Little attention has been paid to this aspect of electoral ethics so far, although

there is fertile ground for exploring this question.2 My paper will proceed as

follows. I will begin by outlining two common accounts—unfairness and

misrepresentation—for why we might think that it is wrong to vote without

intending to be bound to the outcome of that vote. However, both of these accounts

have shortcomings. I will then offer a positive account for why voting in bad faith is

wrong: when we vote, we are making decisions about ourselves, including how we

ought to act. To agree to be part of the decision-making process, but then go against

the collectively-made decision is effectively sham voting: it is pretending to vote,

but not really voting at all.3 As such, voting in bad faith is wrong because it violates

the purpose of what we are doing when we vote.4

Outlining the Problem of Voting in Bad Faith

To flesh out the issue of voting in bad faith, I will first establish why we might think

that it is a problem at all with reference to some common cases.

1 This is in contrast to terms such as an ‘utmost good faith’ clause in insurance law, which requires the

agent to fully and candidly disclose all relevant information for the purposes of taking out a policy.

Voting in bad faith suggests that the agent is not disclosing all relevant information when it comes to

deciding how to vote. It should also be distinguished from the Sartrean idea of acting in bad faith.2 The primary discussant in the contemporary literature on electoral ethics is Jason Brennan, but he does

not cover the point I am making here. Other theorists have considered questions relating the importance

of democracy, but make no discussion on what exactly an analysis of collective decision-making process

may be binding (Brennan 2012; Christiano 2004; Christiano 2009).3 There is an analogy here between voting in bad faith and bargaining in bad faith (in labour relations

law): the latter is sham bargaining, going through the motions of bargaining, but without any intent of

reaching a negotiated settlement. It is a form of abuse of process. So too is voting in bad faith a sham:

going through the motions of voting, but without any intent of reaching a social decision that you will

consider binding upon you [Olson Rug Company v. National Labor Relations Board, 304 F.2d 710 (7th

Cir. 1962)].4 The account is intended to apply to different types of collective decision-making processes.

J. C. Lau

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Consider the following example. We are a group of friends who are deciding

where to have dinner. I want Indian food, and you want to go to your favourite

Italian place. Obviously, it would be silly for us to each go to our preferred

restaurants and eat alone, since the whole point of our deciding where to have dinner

is for us to have dinner together. We put it to a vote, and the majority of the group

decides to go to the Indian restaurant. As we are heading there, you announce that

you refuse to join us and are going to the Italian restaurant anyway. At the very

least, we might find this a little bit odd; at most, we might think that you have

wronged us by taking part in the decision and then still following your own plans

regardless of the outcome of the decision. If you were going to go to the Italian

restaurant all along, then why not simply declare that outright?5

Or suppose that we are directors for a company with a choice of two policies it

can adopt. The company cannot adopt both policies—perhaps they are inconsistent

with each other, or that we do not have funding for both. I think we should have

policy A, and you support policy B. We put it to a vote with the rest of the board,

and policy A wins. The board takes steps to implement policy A. Meanwhile, you

announce that you refuse to go by the decision we have voted upon and implement

policy B. Again, we might think that there is something wrong with your actions.

Why bother to put it to a vote at all, if you are not going to respect the decision that

we have all made together?

What underlies our reaction to the above cases is that we think that those who

take part in a decision-making process ought to obey whatever decision is made by

that process, even if they have not voted for it themselves.6 To fail to do so—that is,

to vote in bad faith—seems wrong to those who have taken part in the vote and

bound themselves to the outcome. The reason is that there is a standard of practice

that necessarily involves being bound to the outcome of the vote, and that a

violation of that standard is, prima facie, an action that wrongs the other members of

the voting collective. However, the diagnosis is not complete. In the following

sections, I will examine why we would think that voting in bad faith is wrong.

5 How we ought to act can be subject to other considerations. Contrast the ‘friends at dinner’ case with a

case where, on the last day of a conference, I am with a group of strangers. We are deciding where to go

for dinner, as per the above example. If we decide to get Indian food, but you decide to go and have

Italian food after we vote on it, then it seems rather odd of you to do that, but it would also be less bad

than in the case of the friends. Why? In the case of friendship, our decision concerns a pre-existing plural

subject—when we decide where we should go for dinner, there is some ‘we’, governed by the practice of

friendship, that obligates us to be bound to the outcome. The group of strangers are less bound, because

the conference-going ‘we’ is less firmly fixed. Political members fall somewhere between friends and

strangers, and there is an existing practice of democratic politics, so we need not worry about the alleged

disanalogy (Helm 2008).6 It might argued that voting is different from the dinner and the company case in that political

membership is not voluntary in the same way that friendship and business partnerships are. Clearly, all

individuals within a jurisdiction may have an obligation to obey the law, but my interest is in whether

those who participate in the democratic decision-making process may have an additional obligation on

that basis.

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Free Riding, Unfairness and Circularity

What is wrong about voting in bad faith? One potential explanation is that those

who do so are treating their fellow voters unfairly. Notably, under the theory of fair

play, you (as a member of a cooperative scheme) are bound to contribute to the

scheme because it would be unfair to the other members if you benefitted without

contributing to its production.7 The free-riding individual is thus treating herself

differently from how she expects others ought to treat themselves, and is relying on

the fact that others will act correctly to obtain her benefits for free.

As such, free riding is a form of unfairness. Unfairness occurs when people who

we reasonably expect ought to act in some particular way do not act in that way, and

as a result of that they are in a better off position than others who did act as they

ought, that is, the others contributed to a scheme that he or she did not, but he or she

benefits from that contribution.8 However, certain conditions must be met in the

theory of fair play for unfairness to arise. Hart outlines those conditions as follows:

‘When a number of persons conduct any joint enterprise according to rules and

thus restrict their liberty, those who have submitted to these restrictions when

required have a right to a similar submission from those who have benefited by

their submission.’ (Hart 1955, p. 185)

In other words, a joint enterprise must be in place, to which voters contribute and

receive benefits according to a set of rules. In the voting case, the rules by which the

scheme applies are just that we (collectively) abide by the outcome of the

democratic procedure, regardless of the outcome. Our benefits and costs, then, are

simply others being bound by the outcome when our side wins and being ourselves

bound by the outcome when our side loses.

As Davidson points out, however, every act is an act under a description, and

there are multiple possible descriptions that are applicable for any act (Davidson

1963). That poses problems for the Hartian account, insofar as individuals who do

not act under a description that involves taking part in the same sort of scheme. An

account of fairness would only apply if voters’ act-descriptions involve participating

in a particular joint enterprise or convention, such that a voter deviating from the

rules of that enterprise or convention would be acting unfairly.

But, therein circularity arises. Voters must understand that they are reasonably

expected to behave in a particular way. Where would this come from? The voting

scheme would have to have some way, independent of the act-descriptions of the

actors themselves, to identify who are relevant members of the scheme, and it would

have to have built into the scheme the fact that members must be bound by the

7 Various versions of this description exist in the literature on the theory of fair play (Broad 1916; Cullity

1995; Hart 1955; Klosko 1987; Nozick 1974).8 There are clearly other forms of unfairness: Unfairness in a sporting match involves not adhering to the

rules agreed upon by the participants. Unfairness in selection processes occurs where a selector displays a

bias for one individual over the others by considering irrelevant or extraneous information. What is

important in these cases is that the person who is acting unfairly does so by behaving contrary to an

agreed standard of practice, at the expense of those who do act according to the rules.

J. C. Lau

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outcome, and that that those who not bound by the outcome were wrongly

arrogating themselves over the other voters. But that just stipulates by what the

members are bound. It does not provide any analysis of why they should be so

bound.9

This section outlines the dialectic in the ordinary analysis of voting in bad faith.

The principle of fairness, which seems to be obvious in accounting for the

wrongness of not abiding with a collective decision, is problematically circular. The

scheme identifies its members by saying that the members are those that are bound

to the outcome of the decision.

Misrepresentation and False Intentions

Another explanation for the wrongness of voting in bad faith might be that the

intention of accepting the result only if it goes your way is a form of ‘false

representation’, in that you are misrepresenting yourself as being committed to

respecting the outcome of the election, when you all along had no intention of doing

so.

Misrepresentation is commonly analysed in relation to contract law. There, it is

the giving of false information by one party to the other, which induces them to

enter the contract.10 However, a moral analysis suggests that there is something

wrong with misrepresentation irrespective of how it causes the other party to

respond.11 We think misrepresentation is morally wrong because it gives rise to a

false expectation on the part of the other agents involved.

For example, suppose I promise that I will feed your cat while you are on

vacation, when I actually have no intention of doing anything of the sort. There, I

have given you cause to form the reasonable expectation that your cat will be looked

after, and you would act accordingly. When you return from vacation and your cat is

close to starvation, you are rightfully outraged by the fact that I have not kept my

promise to you. There, I have wronged you because my false promise caused you to

act to your (and your cat’s) detriment.12

9 Even if the Hartian account is circular, it might not be viciously so. We might see voting as a Lewisian

convention: we have a practice of following the rules of our decision-making process, and the decision-

making process involves adhering to the outcome of the election, even if it is not what we individually

have decided. We do not all have to agree on the convention; as long as enough of us recognise it as such

and follow it, then that is sufficient to be bound to the practice. Once the convention is constitutive of the

‘voting game’, then to take part in the game means that you are necessarily engaging in the conventional

practice and bound by the conventional understandings of that game (Lewis 2002; Searle 1964).10 If the misrepresentation causes you to believe a wrong set of facts, and act on them in a particular way,

then you can seek remedy. If the misrepresentation had no effect on you, then no wrong was done at law.11 On a Kantian view, misrepresentation is wrong because it is not universalizable. Misrepresentation can

only be successful if people generally tell the truth. Universalising a principle of misrepresentation would

lead to serious failures in social and collective trust, and therefore cannot be a maxim that should be held

by everyone. It would render all attempts to communicate with others incoherent (Kant 1996).12 Wrong is also done even if I intended to keep my promise to you, but you know that I hate cats and

therefore hire a professional pet sitter instead, and I subsequently renege on my promise. However, that is

outside the scope of this discussion.

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In the voting case, the misrepresentation lies in purporting to agree to respect the

outcome of the election, with no intention of doing so. To all external appearances,

the voter in bad faith votes as if he intends to adhere to the outcome. But if he, like

Tony Abbott, will not abide by the outcome if it goes against him, allowing others to

believe that about him constitutes a false representation.

While the misrepresentation account is promising, it works only if the common

understanding of voting implies a commitment to respect the outcome of the

election. But, of course, the common understanding of voting could have been

otherwise, so this cannot adequately explain the wrongness of voting in bad faith.

Suppose that a dictator holds an election. He can overturn an electoral outcome

that goes contrary to his views, and makes it clear that he will do so if he does not

like the outcome of the election. There, the fact that the dictator has the particular

power of overturning the election makes him an exception to the rule that we are

bound to the outcome, and as such frustrates the purpose of having such a rule at all.

But where it’s widely understood that the dictator might well repudiate the results

of an election if it goes against him, then he is not making a ‘false representation’ at

all when he is casting his ballot. Indeed, he is being blatantly honest about the fact

that he has no intention of being bound to the electoral outcome, and all the other

voters are aware of this. Insofar as we would still think that something is amiss, even

if he had not falsely represented his intentions, then misrepresentation cannot fully

explain voting in bad faith. Consequently, explaining the wrongness of voting in bad

faith by appealing to misrepresentation is weak and incomplete.13

The Intrinsic Nature of Electoral Decision-Making

So far I have examined two likely answers for why voting in bad faith is wrong.

However, they both cannot fully explain the problem of voting in bad faith. I now

present a positive account: an analysis of the intrinsic nature of voting can explain

the wrongness of voting in bad faith.

Consider the dictator case again. If he was being honest with his intentions, did

the dictator really ‘cast a vote’ at all? There is a sense in which he did: he checked

the appropriate box on the ballot paper and put the paper in the ballot box. But it is

hardly part of a social decision-making process (which we take elections to be) if

the dictator has both the power and the intention to overturn the democratically-

made decision if it goes against him; the election will have decided nothing, and the

dictator still decides everything.

Voting is, first and foremost, a decision-making procedure. Simply put, to vote is

to make a decision. One additional feature of such decision-making relates to the

objects of that decision. In one sense, this is quite obvious: if you are making a

13 It is irrelevant what the other voters know of the dictator’s intentions and actions. Even if the dictator

did not announce his intentions and had planned to wait and see what the outcome was before deciding

whether to overturn the decision, we would say that he is still doing something wrong by not following

the collective decision. Given our conventional practices, a natural and reasonable inference from his

silence would be that he would be bound. There, we might say that he is misrepresenting his intentions by

omission.

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decision, you are making a decision about something. However, where we are the

objects of that decision, then we are making a decision about ourselves and what we

ought to do, and that places an additional obligation on us as to how we ought to

act.14 A failure to abide by the process that one participates in frustrates that

process; it defeats the purpose of deciding by a vote in the first place.

This is a stronger claim against the actions of a voter in bad faith (such as the

dictator) than the charge of misrepresentation, because it gives us a principled

explanation for why voting in bad faith is wrong. It is wrong because we are

breaking an obligation that we have incurred, as the objects of the decision-making

process.15 Further, it is internal to the logic of voting as a decision-making

procedure that it decides something. Hence, no one can announce that they are

‘engaging in a voting procedure which won’t (necessarily) be allowed to decide

anything’ without pain of self-contradiction: either it is a voting procedure and

hence decides something, or else it doesn’t decide anything, in which case it is not a

voting procedure.16

A similar puzzle has been discussed in Wollheim’s voting paradox. There, I may

feel that A ought to be the case for moral reasons, but as a dedicated democrat I hold

that the result of the voting procedure ought to be the case. The voting procedure

results in not-A, and therefore I seem bound to think both that A ought to be the case

and that not-A ought to be the case (Wollheim 2001). It could be argued that the

internal logic account of voting that I have presented also raises a paradox: if ‘voting

in bad faith’ is not really ‘voting’ at all in the sense that I have described, then there

really is no such thing as ‘voting in bad faith’, but rather, it is something else—call it

‘schmoting’. I do not find this to be problematic. What the internal logic account raises

is merely an apparent paradox. It would be truly paradoxical if schmoting were and

were not voting at the same time. But this paper shows that schmoting is, logically, not

the same as voting. Like Wollheim, I am simply doing with that apparent paradox

what one should always do with paradoxes: dissolve them.17

There are some additional features of voting in bad faith worth mentioning,

although I will not dwell on them much. Some scholars have noted that voting also

has non-instrumental functions. The franchise allows voters to express themselves

14 This is similar to Raz’s ‘pre-emption thesis’, where an authority’s reasons for actions replace, rather

than operate alongside, reasons that the agent’s have before entering into legal arbitration (Raz 1985). By

extension, the reasons arrived at by collective authority replace an individual agent’s reasons for action.15 Specifically, there is an interpersonal duty owed to the other participants in the decision-making

process, who are taking part in good faith.16 We can disambiguate voting proper from other actions that look like voting. For instance, straw polls

look as though people are voting, but they do not (by definition) ‘decide’ anything. As such, the

appearance that people are voting in them is merely illusory. Certainly the issue of voting in bad faith

cannot arise in those cases, anyway: if the vote decides nothing, then it cannot be the case that one is

doing anything wrong by voting in the election without intending to be bound by its outcome (since

nobody is).17 It could also be suggested there are other ways of solving Wollheim’s paradox (Barry 1973; Estlund

1989; Goldstick 1973; Honderich 1974; Paris and Reynolds 1978; Weiss 1973). Likewise, there may be

other ways of solving the ‘‘schmoting’’ paradox other than the way I have described, but all of the

possible solutions to the schmoting paradox would still necessarily consider schmotes not to be votes, and

as such my point can still be made.

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politically (Brennan and Lomasky 1997), or to show their membership among those

who count as political decision-makers (Brennan 2009; Scanlon 1998). As such, we

may think that voting in bad faith is also wrong on a non-instrumentalist account of

democracy—to vote in bad faith is to fail to respect one’s fellow citizens. This could

be understood in at least two different ways. Firstly, by failing to adhere to the

democratically-made decision, the voter in bad faith lacks consideration for the

views of her political peers. That is, one cannot consistently vote in bad faith while

respecting other members of the polity as Rawlsian free and equal citizens. Insofar

as we think that respect and social esteem are valuable, those who vote in bad faith

fail to adequately recognize and value those qualities in their fellow voters.18

Secondly, those who vote in bad faith disrespect the process that has been agreed

upon by their political peers. By failing to show procedural respect, the voter in bad

faith fails to properly participate in the discursive nature of political life, or to

understand the role of voting as a procedure that promotes just decision-making in

society (Griffin 2003). Although my focus in this paper is on the role and function of

voting as a decision-making process, it is important to identify these other features.

Below, I examine the implications of being bound to obey the outcome of the vote.

Voting is Necessarily Binding Procedure

Decision-making procedures, where we are the objects of those decisions, are

decisions about what we collectively ought to do.19 That is, we intend the outcome

of the decision to be binding, regardless of what way it goes.20 Someone who is

voting in bad faith, however, will not let the vote make the decision for him. Instead,

he has already decided on what his course of action will be, and intends to ‘abide’

by the outcome if and only if it goes a particular way. As a result of this, the person

who votes in bad faith—a ‘schmoter’—is not participating in a voting procedure at

all, insofar as voting is a decision-making procedure and he will not let the vote

make the decision.21

Note that the internal logic account that I have presented is not susceptible to the

circularity problem from which the fairness account suffered. Voting is not, as the

18 We may also think that there is a simple Kantian argument here for respect for autonomous persons, or

an argument pace Honneth for respecting social esteem (Honneth 1996; Kant 1998).19 ‘We’ in this context refers to the group of voters. It could also be argued that instead of us (as

individuals) being the objects of the vote, the appropriate object of the vote is the state. However, the state

can ultimately be conceived of as the aggregate of voters, and state decisions are still action-guiding on

voters (Feinberg 1968; McCloskey 1963; Pasternak 2011).20 I have used straightforward cases, but how we understand ‘the outcome’ will vary in more complicated

situations. For example, voting in a presidential election does not mean that we are bound to obey all

subsequent policies from the administration; all it entails is that we recognize that someone is the

president. This means that voters still have the right to protest those policies without contradicting

themselves.21 A Kantian account also applies here. On this analysis of voting, the universalisation of the principle of

voting in bad faith would constitute a self-contradiction undermining the core of that as a collective

decision-making process. It would be extremely difficult (if not impossible), then, to make sense of the

voting scenario as ordinarily understood.

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unfairness approach makes it appear, an arbitrary convention the content of which

could in principle have been specified in any of a number of different ways. Instead,

voting is necessarily a decision-making process. To redescribe voting in some other

way would mean that it was no longer voting at all—it is a self-defeating action that

frustrates the process that everyone else is participating in.

The fact that we are members of the decision-making group for a collectively-

made decision may incur a related, but separate obligation on the principle of

fairness to be bound to the collective outcome.22 This suggests that, at most, the

explanation from the principle of fairness that I discussed previously can

supplement the internal logic argument, but cannot on its own explain the

wrongness of voting in bad faith.

Likewise, we might think that misrepresentation of one’s voting intentions is

wrong, but that wrong is independent of failing to adhere to a collectively made

decision. If everyone were known to be voting in bad faith, then there would be no

point in voting. Whichever side loses would still refuse to do what the winning side

wants–which is exactly what would be the case without the election, and they

fighting about what to do without the niceties of any ballots.23 The internal logic

account therefore supervenes on unfairness and misrepresentation in explaining the

wrongness of failing to adhere to a collectively-made decision.

How does this account apply to ordinary voters? If we think voting in bad faith is

wrong in the case of the dictator, then what do we say about individuals who do not

have the power to make true their intentions? Unlike dictators, a voter cannot

overturn elections that do not go his way by all by himself. Even so, although none

of them unilaterally have the power to make their intentions come true, a group of

voters collectively have the power to bring about an outcome; a large enough

subgroup of the electorate can affect the outcome by voting together. Perhaps voting

in bad faith in a voting bloc would be sufficient to overturn the election. There, the

voter in bad faith also stands ready, as occasions arise, to join with others in acting

to undermine the decision if it goes against him. Such sheer ‘openness to

subversion’ makes it not a decision-making procedure.

However, on an individual basis, the voter in bad faith is still doing something

wrong. So long as the conception of what it means to vote remains a ‘decision-

making process by which we decide what we ought to do’, the individual who votes

in bad faith is not allowing the collective vote to determine what is done, by him

(among others). Even if a voter could not actually change the outcome of the

decision to suit himself, the fact that he does not intend to let the vote be the

determining factor in what he ought to do is still objectionable. This is because it

frustrates the group’s intention to make a decision on a democratic basis. What is

wrong is that the voter in bad faith is doing something other than actually voting,

when everyone else is taking part in a collective decision-making process. He is not

22 Thanks to Garrett Cullity for this point.23 That suggests another connection between voting in bad faith and unfairness. The only motivation you

have for agreeing to vote, knowing you are voting in bad faith, is that you suppose there will be at least

some people who are not and who (if the election goes your way) will not resist that outcome in a way

they would have done if you had not laundered the decision through an election. And that is unfair on

those who do consider themselves bound when others would not have, had the outcome been otherwise.

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binding himself to the collective decision-making process where he ought to, if he

were actually voting properly.

Being Bound to Obey is Pro Tanto

So far, I have examined the role of voting as a decision-making process, where if we

are the object of that decision, we are deciding what we ought to do. By voting, we

have incurred an obligation to be bound to the outcome, and if that outcome

concerns us, then we are bound to do what we have agreed to do. Of course, the

obligation to be bound to the outcome is pro tanto only, and it can be overturned if it

is too costly to meet, relative to other considerations. To take a rather fanciful

example, if the majority of us have decided that I should cut off my leg to feed to a

bear for entertainment, I can rightfully object and deny that I am bound to cut my

leg off for everyone else’s entertainment. Likewise, if our vote shows that we have

decided to enslave and oppress a particular class in society, the members of that

class do not have to passively accept our collective decision. This type of ‘tyranny

of the majority’ is a problem when the majority uses its democratic force to oppress

a minority.

In the bear case, the problem is that the majority has unreasonably demanded that

a severe injustice be inflicted upon me. Reasonableness, for our purposes, is

determined by whether citizens can enter into reasonable discourse and treat other

citizens as free and equal, even if those other citizens have differing views. Joshua

Cohen describes political reasonableness as follows:

People are reasonable, politically speaking, only if they are concerned to live

with others on terms that those others, understood as free and equal, can also

reasonably accept (Cohen 1999).

In demanding that I cut my leg off, the majority are not giving me terms that I (as a

free and equal person) can reasonably accept. If the roles were reversed, and if they

considered themselves free and equal, it is unlikely that they would agree to have

their legs cut off. As such, that I cut my leg off is not a reasonable demand.24

But is it so easy to dismiss the authority of a democracy?25 Should the fact that

the decision was democratically made not have some weight? After all, Christiano’s

24 Importantly, it is unclear whether unreasonableness is a ground for rejecting a democratically-made

decision. Some theorists claim that unreasonable demands, even if they are made democratically, do not

need to be adhered to by the decision-makers, or the objects of the decision. Jonathan Quong, for

example, argues that an unreasonable person should not have his rights to the political community

completely removed, but that he ‘can be prevented from exercising those rights when his aims are

explicitly unreasonable—indeed they cease to be rights when he attempts to exercise them in this way’

(Quong 2004, p. 332). However, it is not clear what the rights turn into when they are being exercised in

this way, nor how an unreasonable person can be prevented from the exercise of the right.25 Of course, for any philosophical position there is an opposite position, and likewise there are theorists

that do not think that democracy is—or ought to be—authoritiative. However, this is not a problem for my

argument. Huemer, for example, argues against authority as justificatory of coercion (Huemer 2013). He

would say that I am not obligated to do what we have collectively decided, because the group lacks the

appropriate authority to coerce me to do so. However, I think Huemer’s conception of authority as

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worry is that by not going with the democratically-made decision, you are not

treating others as your equals (Christiano 2004). Gerhard Øverland and Christian

Barry observe, however, that Christiano’s view only appears convincing where the

interest of the individual substantially overlaps with her view of what is morally

correct (Øverland and Barry 2011). If we consider the case where an individual is

considering the reasonableness of a policy as it relates to some agent other than

herself, we can separate the two issues. On doing so, we see that it becomes harder

to claim that an individual is not treating others as equals if they are contravening a

democratically-made decision to protect third parties that are not being treated as

equals. If I disobey a law that calls for the oppression of a minority, I surely cannot

be going against the democratically-made decision in the way that Christiano

describes. So long as the individual’s response to the (unreasonable) demands of the

majority is reasonable, then it is not objectionable for her to be acting in a way that

undermines the demands of the unreasonable majority.26

Given the above, we could say that we are not obligated to obey unreasonable

demands. There are two ways that this can be understood. Firstly, if the demand is

unreasonable, then there is no obligation at all to obey. A contract that obligates me

to commit murder cannot be binding or enforceable. Likewise, being part of a group

with morally odious ends (such as the Ku Klux Klan, or the Mafia) cannot generate

binding or enforceable associative obligations (Dworkin 1986; Scheffler 1997).

Secondly, if the demand is unreasonable, then while there is still a pro tanto

obligation to comply with it, it is outweighed on balance by other considerations.

We can think of the members of the Ku Klux Klan as still having obligations to that

group, but those obligations are overridden by other obligations not to harm others

or treat them unjustly. That is, the additional obligation deriving from membership

of the group is the same, even in the case of groups with evil purposes. It is simply

the case that, with an evil group, the weight of countervailing considerations is

much greater. An obligation is simply that; it has a particular strength and provides a

moral reason for action. We do not need to worry about the quality of the ground of

the obligation, because that feature becomes relevant only for considering the

strength of the obligation.

What the above discussion indicates is that unless the decision is extremely

onerous or costly, the fact that we have collectively decided how to act is an

additional reason, over and above any other reason we may have to act. The pro

tanto claim also covers cases of civil disobedience. Usually, civil disobedience is

invoked in cases of bad laws. Pro tanto, you have a duty to obey because this is what

Footnote 25 continued

coercive is problematic, in that his analysis does not seem to take seriously the idea of authority (as

traditionally understood by Hobbes and Locke) as coercive. My view is simply taking as a starting point

the position that democracy has some authority, although of course I acknowledge cases where that

authority could be overridden.26 We could also make a similar argument for subjects of the persistent minority, although the persistent

minority is distinct from the current case, because the majority need not oppress the minority for it to be a

persistent minority. Notably, the persistent minority case requires the systemic and ongoing defeat of a

particular group in a decision-making process. Furthermore, the demands of the majority need not be

unreasonable, unjust or morally wrong.

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it means to vote. Complying with the law that got enacted may not cost you much,

but if it is deeply odious, then on balance you should not comply. In this case, you

might be doing something wrong by not being bound to the morally odious law, but

it might be all-things-considered morally permissible to disobey it.27

A Further Consequence of Voting in Bad Faith

If the above account is correct, then we have a principled reason for why voting in

bad faith is morally criticisable. Those voters did not really cast a vote at all if

voting by definition involves pro tanto being bound to the collective decision-

making process.

The internal logic of voting means that the practice of voting could not have been

set up any other way and still have been voting. So what does logic tell us about

those who vote in bad faith? Since the internal logic of voting states that the rules

have to be how they are, when voting you (together with other voters) are, by

definition, making a decision that will be binding. If the outcome of the ‘vote’

would not be binding, then the exercise was not ‘voting’ (defined as necessarily

being a decision procedure).

This is a thicker notion of voting that what our current understanding allows, but

this should not be surprising. There has been little work done on what it means to

vote, and the analysis I have offered is consistent with our current understanding, if

just more robust. People should not participate in democratic decision-making

processes unless they are committed to accepting the outcome.28 If they do

otherwise, they are actually doing something other than voting.

One response is that if we think that voting is a performative action, the intention

of the voter is irrelevant to whether or not they have cast a vote.29 Instead, what

matters is that the voter fills out the ballot correctly and puts it in the appropriate

box. However, this would be too narrow a view of performative actions. For

example, saying ‘I do’ in the presence of priest might count as binding yourself to

marriage, but not so in the context of, say, a play (even if the role of the priest is

performed by a priest). The difference is that the agent intends to be married by

27 An interesting question at this point might be whether it makes any difference to the wrongness of

voting in bad faith if the person failing to comply does so in secret. Publicity is not a necessary or

sufficient condition for civil disobedience—the Underground Railroad, for instance, would have been less

successful had it been publicised. However, it is clear that in other cases of civil disobedience (such as the

Occupy movement), publicity certainly helps draw attention to a cause. I do not think that whether the act

is public makes a difference to the permissibility of voting in bad faith. So long as the reason for

disobeying the decision when it is collectively made is that it is outweighed by more stringent moral

reasons, then it is sufficient to overturn the obligation to obey the outcome of the vote.28 Certain states, such as Australia and Belgium, have compulsory voting in that it is compulsory for

citizens to show up at the polls and have their names marked off, but they are not required to complete the

ballot paper. (It may therefore be more accurate to characterise this as compulsory poll attendance.) Such

cases complicate the account I present here, but they help illustrate what electoral obligations citizens

have. If the obligation not to vote when you do not intend to be bound by the outcome outweighs your

obligation to abide by voting laws, this might lead to voters in bad faith being removed from the electoral

roll. However, a full discussion of this is outside the scope of my investigation.29 This is based on Austin’s performative utterances (1975).

J. C. Lau

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saying ‘I do’ in the former example, but not in the latter. Likewise, in the case of

voting, it is only voting if the agent intends to be bound to the decision. What an

agent intends to do with the voting procedure is determinant in whether the action is

in good faith (and therefore is a vote which should be counted) or not. As such,

those who vote in bad faith are not really voting at all; while their actions look the

same as bona fide voters’, their intention not to be bound makes it such that they are

not actually casting a vote.

A further consequence, then, is that if voters in bad faith cannot really be voting,

then we should not count their vote as a vote. It goes against what we understand

voting to be if we are making a decision about what we ought to do. Of course, how

we would determine who is voting in good faith and who is not is a pragmatic

difficulty.30 Even then, a further epistemological problem arises: those who vote in

bad faith will behave differently from genuine voters only when they are on the

losing side (in which case there is no pragmatic point in disqualifying their votes, as

they have already lost). Although that discussion is outside the scope of this paper,

we can have other grounds for suspecting ‘schmoters’ are ‘schmoters’, other than

that conclusive behavioural evidence. My argument is for disqualifying them when

we have evidence of that sort against counting their ‘vote’, since they are not votes

at all.

Conclusion

A proper analysis of voting has to include its necessary connection to being bound

to the outcome of that vote. After all, the vote is a way by which we decide what

ought to be done, and if we are the objects of that decision, we bind ourselves (at

least pro tanto) to that outcome. Consequently, what makes the act of voting in bad

faith wrong is not that it is merely unfair or that the voter is misrepresenting himself,

but that he is not voting at all if he is not prepared to let the outcome of the vote

decide what will be done.

Acknowledgments I thank Bob Goodin and Christian Barry for their comments, as well as the journal’s

editors and reviewers for their suggestions. Previous versions of this paper were presented at the 2011

Australasian Association of Philosophy Conference and at a 2013 Political Philosophy seminar at

Virginia Tech.

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