Thursday, October 20, 2005

Caution: Legal Crap Ahead; Truth May Be Further Away Than It Appears

Ok, so I'm a legal nerd. Let me just get that admission out of the way in the beginning. In that vein, I have actually studied the decision cited by Buck, Alexander v. Mineta, 531 U.S. 940 (2000). Actually, that case is a one-sentence affirmation of a decision by the D.C. District Court, which is reported at 90 F.Supp.2d 35 as Adams v. Clinton (two cases were combined because they concerned the same issue).

It's always important when looking at legal precedent to understand the facts of the case. These two cases, for example, were suits by citizens of D.C. and the District itself which claimed that it was unconstitutional to deny them the right to vote for representatives in Congress. While the opinion is a fascinating treatise on that subject, it actually says very little that is on point to our current debate.

The relevant part of the case is the discussion on whether it is constitutional for a statute of Congress to limit a pre-existing right of D.C. citizens to vote for reps in Congress. The case held that the relevant statute, the Organic Act of 1801 that created D.C., did not do that, and that in fact the Constitution itself was the source of the D.C. citizens' disability to vote for Congress (the Constitution provides that citizens of the states will so vote, and D.C. is not a "state"). The opinion agreed that a statute could not have validly taken the vote away from them ("Thus, it was not the Organic Act or any cessation-related legislation that excluded District residents from the franchise, something we agree could not have been done by legislation alone").

Implicitly recognized, even by this decision, then, is a constitutionally defined right to vote. Whether and how a state can reasonably regulate that right has been the subject of numerous other decisions. The following represents a few:

"Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed." (for example, the Voting Rights Act -ed.)
"We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate."
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1996) (ruling unconstitutional a $1.50 poll tax).

"A government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders." Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978).

"Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public office rest on the conclusion that wealth "is not germane to one's ability to participate intelligently in the electoral process" and is therefore an insufficient basis on which to restrict a citizen's fundamental right to vote." Buckley v. Valeo, 424 U.S. 1 (1976).

"[States have] unquestioned power to impose reasonable residence restrictions on the availability of the ballot. There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for the exercise of the franchise. Indeed, "the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised." Lassiter v. Northampton Election Bd., 360 U.S. 45, 50. Compare United States v. Classic, 313 U.S. 299; [***678] Ex parte Yarbrough, 110 U.S. 651. "In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution."
"We deal here with matters close to the core of our constitutional system. "The right . . . to choose," United States v. Classic, 313 U.S. 299, 314, that this Court has been so zealous to protect, means, at the least, that States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State."
Carrington v. Rash, 380 U.S. 89 (1965)(striking down Texas law denying soldiers the right to vote in Texas).

All emphasis in the quotes added by me. Bottom line, yes, of course a state can restrict the right to vote to those who are qualified, but its means of doing so must be related to the qualifications and must not discriminate in violation of the Constitution. Putting aside and assuming for the moment that an ID requirement is rationally related to, as you put it, proving the person is who they say they are (and therefore a resident and citizen qualified to vote), the problem with the Georgia bill is whether it discriminates in violation of the Constitution against those who can not afford to purchase the ID (I realize you claim they are free, but I will incorporate by reference Jonathan's argument on that point).

I would have to do a whole separate post to talk about the Voting Rights Act, which I don't have time for and haven't done the research for, but suffice it to say for now that the test is whether there are "discriminatory effects" on the basis of race (and maybe class too? like I said, haven't done the research yet on that one). If there are (which isn't like, you know, outside the realm of possibility, considering the still-lingering correlation between income, wealth, and race, particularly in the South), then the bill may very well violate the VRA, even if it does not constitute an equal protection violation as set out above.

Sorry, folks, but the lawyer in me couldn't resist it this time.


Publius said...


And may I add. Booyah! I take back at least half of the bad things I've said about lawyers.

Publius said...

You know, I had a good post to put up, but I'm just going to let this one sit and collect controversy for a while. It's better than what I had anyway.

Buck Laughlin said...

An awful lot of bandwidth in defense of the right to vote without proving you are who you claim you are...

That, honestly, is the political wall your side will never, ever be able to overcome. You are advocating on behalf of those who would commit fraud (and, in the process, invalidate my valid vote). The Carter courts might by sympathetic; the voters will never be.

RandomThoughts said...

More and more I am seeing mention of agreement with the idea of voter ID but problems with the way this has been handled (too quick to ensure everyone entitled has the proper ID). Why are we the only ones thinking about this as a solution? I realize only the very brightest read AP, but surely once in a while we talk to the people who actually make the decisions.

Or is it just that we all enjoy arguing?

RandomThoughts said...

In regard to the "old people poll workers" comment by Cathy Cox: I addressed my concerns to her blog yesterday morning but have not heard from her yet nor has she answwered my email. Last time I checked my post had not been published to the blog at all.

I guess that answers some of our questions.

Buck Laughlin said...

I agree with the findings of the Carter-Baker Commission (and so, by the way, does Rep Tyrone Brooks, one of the plaintiffs in the Right to Commit Fraud lawsuit). They say require IDs and give them to everyone.

As you suggest, problem solved. Except it won't be. The Left will invent some construct involving some blind, deaf-mute, legless old black woman who didn't know about the IDs because she couldn't afford a radio or couldn't listen it if she could, and thus didn't know about the free IDs.

Nothing is ever good enough.

Publius said...

Buck's just got his panties in a wad because he got smoked on stare decisis.

DoubleDawgDareYa said...

It's not hard to win an argument when you also get to decide for yourself what the other person is saying. No, I was NOT (and am not) advocating for those who would commit fraud; I was and am advocating on those who might be discriminated against in violation of the Constitution and the Voting Rights Act, and discussing the voluminous caselaw, all of which surely did not get accumulated by "Carter courts", relevant to the issue.

And randomthoughts, I'm a lawyer, so of course I enjoy arguing. But I do agree that a different version of the ID bill and/or greater accomodation of those will financial or logistical difficulties in complying with it may be the way to go.

Let me be clear, too, that I'm not necessarily saying that this IS unconstitutional or violative of the VRA (although my partner in crime may be); I'm saying it's a close enough call to be decided by the courts, and to suggest otherwise is dismissive of valid court precedent and the rights of the affected voters.

RandomThoughts said...

Well, this certainly is not good enough. But why are you not willing to give a fair bill a try? What is your problem with helping everyone who wants to vote have a fair chance? Even if, as you imply, it is too much trouble for too little return, so what? What is wrong with taking a little extra trouble for these people? If we make that effort then no one can say that we are not being fair and we eliminate voter fraud. Wasn't that your original goal?

Publius said...

Show us a fair bill first.

RandomThoughts said...

That post was in response to Buck but this is so popular that several got between his and mine.

And DiDDY, I do realize you like to argue. Nothing wrong with that. I enjoy it myself.

Publius said...

Buck doesn't want to see a fair bill. he wants to see exactly what we have here, a law that disenfranchises tradional Democratic voters, a way for the GOp to reassure their base by oh-so-subtly playing the race card, and a chance for people who can't accept 200+ years of judicial and Constitutional tradition to bitch and moan about "judicial activism."

DoubleDawgDareYa said...

I don't know what objection the "left" may come up, but I'd be much happier with a requirement that all voters get IDs and then having them given out free (truly free, not if-I-can-manage-to-bum-a-ride-to-the-DMV-and-prove-I'm-destitute free). Since this would require every voter to essentially redo the registration process, there would need to be plenty of time between enactment of the bill and the first election that the requirement applied to. And yes, it would require a great deal of expense; sorry, that's the price of democracy.

Jmac said...

I'm with DiDDY on this one - if you really want to prevent voter fraud, then you're going to have to develop a massive and mandatory and free Voter ID program where every citizen must have that in order to vote. It would take lots of money and lots of time and lots of effort, but it would be the best way to go about taking care of this.

Of course, again, there haven't been any documented cases of voter fraud in Georgia, so there's that.

And, for Buck, despite the incredibly wide disagreements we have in ideology, I've tried my best to understand your arguments. But, seriously dude, if you're not even going to bother and respond in a logical or rationale way to a direct question, what's the point? You're just rehashing Republican PR lines over and over again.

"You realize you're just advocating fraud ..." Really? Didn't realize that by pointing out the sound legal ruling of the federal judge, we were all gung-ho for fraud.

I'm waiting for you to start shouting 'you're against freedom' because we dare question the progress of the War in Iraq.

Try to think for yourself and actually answer what we pose to you.

Fishplate said...

Didn't I say that earlier?

As for documented cases of fraud, well how do you do that? There is no way to positively identify a voter - you only have their word for it.

Think about it - how is a water bill done? It's printed on regular paper with a laser printer. You could churn out fake water bills for every voter in Clarke County in a few days, if you wanted to, in the privacy of your own home - so the notion of "no documented cases" is can't document the undocumentable.

Having said that, I personally don't feel fraud is a big problem, any more so that the traditional paying bribes for votes always has been.

To my way of thinking, Judge Murphy's ruling is acceptable on two points, neither of them having any legal standing:

1. There wasn't enough time, as we have seen anecdotally reported in our own ABH, to educate people on ~how~ to apply, and what is needed for the process of getting an ID.

2. Clearly the idea is contentious. Further time for review is not going to incite one more round of massive fraud in the next election.

Personally, I think the whole idea of fraud is moot. Elect a Republican, elect a Democrat, it doesn't matter. My wallet's going to be emptied, and my personal freedoms are going to be removed. I can't see a whole lot of difference whether a donkey does it, or an elephant. I look forward to nonpartisan elections, when a candidate will have to come out with actual ideas and positions, instead of being able to hide behind a label.

Publius said...

I know. I'm waiting for the teeming, huddled masses to run out right now and start committing some voter fraud, because a judicial activist Carter appointee said they could. Democracy may never be the same. Oh wait, yeah it will.

On the nonpartisan elections thing, I just don't know. Here's what I do know. The ACC Democratic Party dropped the ball big time. They were too busy helping their favorite candidates (Barrow and Kidd) that didn't need it, and not spending enough time and resources on the candidate (Becky Vaughn) and the cause (nonpartisan elections) that actually could have benefitted from their involvement.

That's neither here nor there though. I'm not being contentious here, but I have some legitmate questions to think about, even if they are rhetorical questions.

Will nonpartisan elections really blur the party lines and force candidates to state their positions? Because, despite being as into politics as I am, I'll say, and I imagine a lot of folks out there would agree, never underestimate the power of a politician to weasel out of staking out a position if they don't want to.(For further information, the Library of Congress recommends "John Barrow, gay marriage, and the Democratic Primary.") Heck, at least the party labels gave a decent indication of the general principles of the person.

Also, does it really matter? I'm still going to know (as will anyone who reads this blog) who is the Chamber candidate, who is the Democratic Party insider candidate, etc. Of course I pay attention, as do most of y'all.

For me, nonpartisan elections are a case study in "you deserve what you get." If folks don't do their research, then they could well end up with a crop of local electeds who decide that paving over Bishop Park is a good idea. YDWYG.

But, to assume that taking away party labels is going to take away party ideology is unrealistic. What'll probably happen is that we'll still have two parties, one shilling for the Chamber, one shilling for the psuedo-progressive crowd that likes to ban smoking, decide who you can and can't live with, and spy on you downtown. Like I said, psuedo-progressive.

Wow, I'm pissy tonight. I'll leave it here for now.

Anonymous said...

I think what we've seen in this bill is the GOP overplaying their hand, once again. They always do. What is not being very much discussed is how this bill also RELAXES the absentee ballot rules which is not only the area where fraudulent voting has been proven but also makes their argument about "we just want to prevent voter fraud" more than a little silly. Oh, yeah. I almost forgot to mention that the GOP usually does better with absentees but, I'm quite sure that has nothing to do with it. *wink, wink*

Publius said...

"Oh, yeah. I almost forgot to mention that the GOP usually does better with absentees"

Which sucks, because it doesn't take more than a little elbow grease and a decent number of warm bodies to run a decent (and legal)absentee program. Democrats used to be the grassroots party, but we've been getting our asses waxed by the GOP for the last few years on that. Must be all that Merlot making us logy...

Anonymous said...

don't you wonder why the Dems and the GOP seem to be always swapping strategies and tactics?

I mean, I can understand why one party would take cues from the other party on things that work well but, they also seem to swap the things that don't.

You're right. The GOP took the whole grassroots thing and have done a much better job with it than the Dems. But, the Dems were so arrogant and overplayed their power that they lost it and now we see the GOP taking that tactic to even more extremes.

Maybe it's good that they do that so that one party is never dominate for too long. I'm pretty sure we won't see the GOP "owning" this state for 130 years - they are much, much quicker at screwing up than the Dems. The damn Dems moved so slowly at screwing themselves - move over and the the pros at the GOP show you how to get the job done in 1/10 the time!

Publius said...

Well, at least they're efficient.

Fishplate said...

On the subject of absentee ballots, you will have to show identification if you go to the Elections Office to cast your ballot. If you have it mailed, well then they have a name and address.

Unless you steal it out of the same mailbox that you steal the utility bill from so you can vote twice on Election Day. But then that won't work either...

As for nonpartisan elections, I didn't mean to say that party identification, or party money, would go away. Just the automatic labeling of a candidate, releasing them from further illumination of their philosophy. Candidates will have to work a little harder, maybe actually answer the Flagpole questionaire, to let the voting public know a little more about how they really feel on the issues.

I know, the view is lovely from my ivory tower, but I feel this forces the voters to become more educated about that for which they are voting, and an educated voter is a ~good~ thing...

Publius said...

An educated voter is an _awesome_ thing, and I'd bet that if you asked the professionals that work on campaigns for a living, 9 out of 10 of them would agree. (The other 10% aren't working any major races anyway)

But will the voters get educated? Who knows? We'll do our part here though.

Buck Laughlin said...

As I sit here this morning, I honestly can't remember how I voted on non-partisan elections. That's how little I cared about the issue. Probably I voted for it, just to piss off the Flagpole.

But the fact is, A-CC already had non-partisan elections. If you weren't a Dem, you didn't get elected. You could be a conservative Dem (ie Charles Carter or Hugh Logan or Doc) or you could be liberal Dem (Elton or John Barrow or whoever), but you had to be a Dem.

Likewise, if you want to get elected in Oconee Co, you run as a Republican. Period. You can be left, right, or center, and the voters will figure it out, but you don't get elected as a Dem in Oconee Co.

De facto non-partisan elections.

Publius said...

Wouldn't that technically be "unipartisan" elections then?

I think I voted for nonpartisan elections too, actually. Just to try to force candidates to step up.

Also, John Barrow? Not that liberal, at least not now. Check the blog for a post on that later today. Heck, you'd probably like him bunches now.

Buck Laughlin said...

I liked him fine before. I don't think he's terribly liberal, either.

He was part of that "progressive" block on the A-CC Commission, though.

Publius said...

Barrow was, in many ways, the ideological predecessor to the psuedo-progressive bloc on the Commission now, in that he picked and chose which issues he was going to be progressive on (mostly zoning and development) but didn't really do much for what I'd consider to be core progressive issues (affordable housing, economic opportunity - unless you count creating a whole lot of it in Oconee County-, etc)

I'm just really annoyed that he keeps running so far to the right, when its a loser strategy.

Buck Laughlin said...

Yeah, 'cause running to the Left has been working really well...

Seriously, I give him the benefit of the doubt: maybe he really does like guns and the flag. Lots of Americans do.