Law of Democracy

Professor Ira (Chip) Lupu

Fall 2011

Outline

Introduction, the Constitution & the Right to Participate in Elections

INTRODUCTION

  1. Constitutional Provisions Conferring Right to Vote
  2. Art. I, § 2, ¶ 1 – “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
  3. “The People”
  4. Mentioned in the Preamble. (“We the People of the United States….”)
  5. Broader than class of electors. Only some of “the People” were electors.
  6. States may determine voter eligibility for electors of House of Representatives.
  7. Premised on existence of state legislatures, which are not guaranteed.
  8. House – Originally, only popularly elected congressional body.
  9. Contrast with original procedure for electing Senators. “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.” Art. I, § 3, cl. 1–2.
  10. Superseded by 17th Amendment.
  11. Only (arguable) guarantee of right to vote in Constitution.
  12. Art. II, § 1
  13. Electoral College elects president and vice-president.
  14. State legislatures may establish procedures for appointing presidential electors.
  15. E.g., FL state legislature contemplated taking designation of presidential electors away from counties in the aftermath of the 2000 election.
  16. Every state has given “the People” the right to choose presidential electors, but this is not guaranteed.
  17. Art. I, § 4 – “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
  18. States administer federal elections—establishing procedures therefor.
  19. Frequently delegate administration authority to counties, e.g., polling places. Other matters require state regulation.
  20. Congress may alter these regulations, except the place of choosing senators (which, when the Constitution was enacted, was where the state legislature convened).
  21. Art. IV, § 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government.”
  22. Neither original Constitution, nor 14th Amendment, secured basic right to vote. SeeUnited States v. Cruikshank (1875) (“[T]he Constitution of the United States has not conferred the right of suffrage upon any one.”).
  23. Supreme Court – Gradually recognized right to vote as a central and fundamental right of citizenship.
  24. Amendments Concerning Right to Vote or Elections–12, 14, 15, 17, 19, 22–27.
  25. Importance of Voting Rights
  26. Symbolic Importance – Represents equal citizenship.
  27. Instrumental Importance – Protects group interests. Vote is valuable only when aggregated with votes of others. Individual votes may not be valuable, but voting must be analyzed on group level. Voting is an expression of common interests.

CONSTITUTIONAL TEXT

  1. Minor v. Happersett (1874)
  2. Facts – Plaintiff female brought suit against defendant registrar for refusing to register her as a lawful voter.
  3. Holding (Waite)
  4. Question – Whether women can lawfully vote?
  5. Women can be naturally born U.S. citizens. Reasons:
  6. Owe allegiance to U.S. and are entitled to its protection.
  7. Can bring suit in federal court.
  8. Case or Controversy Requirement, Art. III, § 2 – Women are citizens for purposes of diversity jurisdiction.
  9. Privileges or Immunities Clause, amend. 14, § 1 – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
  10. Amendment didnot add to privileges or immunities of U.S. citizens.
  11. Suffrage was not coextensive with citizenship at adoption of Const.
  12. State-constitution restrictions.
  13. Framers did not expressly state as much.
  14. Women are not mentioned in penalty language of 14th Amendment, § 2.
  15. Voting is not a privilege or immunity of U.S. citizenship.
  16. Voting is not a right of federal citizenship.
  17. 15th Amendment – No voting restrictions based on race  suffrage is not a basic privilege or immunity.
  18. Expressly acknowledges restrictions on voting.
  19. Guaranty Clause, art. IV, § 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government.”
  20. Constitution did not change state governments.
  21. States may impose restrictions on right to vote, including on women.
  22. Extrinsic Evidence
  23. States readmitted to Union after Civil War were not required to women’s female suffrage.
  24. MO sometimes has allowed non-citizens to vote.
  25. No Right to Women’s Suffrage – Legislatures may change; Court cannot.
  26. Compare Dred Scott v. Sandford (1856).
  27. Curtis, Dissenting – Black enfranchisement in Northern states proves black citizenship.
  28. Taney – Black enfranchisement does not prove black citizenship. Many citizens, e.g., women and children, cannot vote.
  29. Lesson – Voting is not coextensive with citizenship.
  30. Effect
  31. With The Slaughter-House Cases, read Privileges or Immunities Clause out of 14th Amendment.
  32. Subsequent 14th Amendment Cases – EPC or DPC.
  33. Minor was overturned by 19th Amendment.
  34. Richardson v. Ramirez (1974)
  35. Facts – Concerned CA constitutional provision permanently disenfranchising felons, even those that had completed their sentences and paroles.
  36. Holding (Rehnquist)
  37. Upheld CA constitutional provision. State may deny right to vote to those convicted of felonies, even if they had completed their sentences and paroles.
  38. Constitutional text and historical and judicial interpretation distinguish felon disenfranchisement from invalid restrictions.
  39. 14th Amendment, § 2 – “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, EXCEPT FOR PARTICIPATION IN REBELLION, OR OTHER CRIMES, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
  40. No penalty in terms of representation in House if state denied right to vote to those who participated in rebellion or other crimes.
  41. State Constitutions – 29 contemporaneous (19th-century) provisions permanently disenfranchising felons.
  42. Enabling Acts for State Readmission After Civil War – Permits states to engage in felon disenfranchisement.
  43. Precedent – Court had upheld laws stripping right to vote from bigamists and polygamists in Utah and Idaho.
  44. Actually about disenfranchisement based on religious belief, not criminal conviction.
  45. Deference – Whether felons/ex-felons should vote is a policy matter within state purview.

PRISONERS’ & CONVICTED CRIMINALS’ RIGHT TO VOTE

  1. Pretrial Detainees – States cannot deny right to vote and must provide absentee ballots if there is no other way of voting. McDonald v. Board of Election Commissioners (1969); O’Brien v. Skinner (1974).
  2. Convicted Criminals – State may permanently disenfranchise. Richardson.
  3. Discriminatory Purpose Behind Felon Disenfranchisement – State may not permanently disenfranchise convicted criminals when disenfranchisement is motivated by discriminatory purpose. SeeHunter v. Underwood (1985) (invalidating as EPC violation AL law that permanently stripped franchise from persons convicted of crimes of “moral turpitude”).
  4. Arguments in Favor of Felon Disenfranchisement
  5. Breaking Social Contract – Felons lose lots of rights, e.g., physical mobility, gun ownership, etc. Loss of voting rights is no different.
  6. Incarceration is a form of punishment, and disenfranchisement is part and parcel of punishment.
  7. But disenfranchisement is not a deterrent. Lifelong disenfranchisement is excessively retributive.
  8. If felons could vote, voting districts with large prison populations would swell with felon votes.
  9. Character– Only the virtuous are morally competent to participate in society, and felons have shown their deficiency of character.
  10. Arguments Against Felon Disenfranchisement
  11. If prison is supposed to rehabilitate people (as citizens), extending voting rights would draw prisoners into civic life and contribute to their rehabilitation.
  12. Spurious argument that felons will vote en mass to elect, e.g., felon representatives. Felons will vote like normal people do.
  13. If a district is overrepresented because of its prison population but only a minority of non-felons is permitted to vote, this seems antidemocratic.
  14. International Experience
  15. Most other countries allow felons to vote.
  16. U.N. and int’l treaties repudiate permanent felon disenfranchisement.
  17. Foreign courts have invalidated felon disenfranchisement.

D.C. RESIDENTS & PUERTO RICANS RIGHT TO VOTE

  1. See pp. 34–37.

MODERN CONSTITUTIONAL FRAMEWORK

  1. Lassiter v. Northampton County Board of Elections (1959)
  2. Facts – Concerned NC statute that conditioned voting eligibility on ability to read and write any section of Constitution in English.
  3. Holding (Douglas)
  4. Upheld law from facial challenge.
  5. Rational-Basis Review
  6. Legitimate Government Interest – Intelligent exercise of franchise.
  7. Rational Relation – Ability to read and write is related to standards designed to promote intelligent use of the ballot.
  8. Newspapers, books, periodicals, etc. communicate important information relevant to exercise of franchise.
  9. But illiterate can be educated about issues by radio, TV, Internet, etc.
  10. Deference to State Power – “States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns.”
  11. “Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show.”
  12. Questionable Premise
  13. Problems with Literacy Tests (Not in Case)
  14. Administrative Discretion – Puts someone in a position of authority to determine whether individuals read or write well enough to be eligible to vote. Corruption and prejudice are possible.
  15. Civic Participation – How do you determine whether an individual is sufficiently engaged in the community and political process?
  16. What are we testing? General literacy? Ability to absorb information about issues and campaigns and elections?
  17. If an individual, e.g., watches the news on TV, he or she may not need to be literate to be engaged.
  18. Always skew in favor of education and higher socioeconomic class.
  19. 1970 Amendments to VRA – Banned literacy tests nationwide. SeeOregon v. Mitchell (1970) (affirming literacy test ban).
  20. Court never revisited Lassiter.
  21. 1975 Amendments to VRA – 5% or more language minority  state must provide non-English ballots (including oral voting instructions for oral langs.)
  22. Harper v. Virginia State Board of Elections (1966)
  23. Facts – Concerned VA poll tax.
  24. Holding (Douglas)
  25. Invalidated poll tax.
  26. History (Not in Case)
  27. By 1904, every ex-Confederate state had a poll tax.
  28. Represented significant portion of personal income.
  29. No recorded prosecutions of non-payers.
  30. Also dissuaded poor whites from voting.
  31. 24th Amendment
  32. “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.”
  33. Abolishes poll taxes in federal elections.
  34. Constitutional condemnation of connecting wealth and voting.
  35. Strict Scrutiny
  36. Fundamental Right – Applied because voting is a “fundamental political right, because preservative of all rights.” YickWo v. Hopkins (1886); see alsoReynolds v. Sims (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”).
  37. Suspect Classification – “Lines drawn on the basis of wealth or property, like those of race are traditionally disfavored.”
  38. Might have satisfied rational-basis review.
  39. Legitimate State Interest – Tax-collection device.
  40. Impermissible Voter Qualifications
  41. “Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”
  42. “Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process.”
  43. Invidious Discrimination – “As a condition of obtaining a ballot—the requirement of fee paying causes an ‘invidious’ discrimination that runs afoul of the Equal Protection Clause.”
  44. Poll taxes are unconstitutional as denial of EPC in all non-federal/state and local elections.
  45. Black, Dissenting
  46. Uphold poll tax.
  47. Court uses EPC to endorse a particular political theory, infringing state sovereignty.
  48. No EPC Violation – Rationally related to state policies of (1) collecting taxes and (2) fostering an interested electorate.
  49. Congress could abolish poll taxes under 14th Amendment, § 5.
  50. Harlan, Dissenting
  51. Departure from EPC precedent.
  52. Many rationale bases for poll tax, e.g., civic responsibility, stake in community affairs, educated electorate, etc.
  53. Kramer v. Union Free School District No. 15 (1969)
  54. Facts – Concerned NY law restricting voting in school district elections to those (1) owning real taxable property in the district or (2) having custody of children enrolled in local public schools.
  55. Holding (Warren)
  56. Invalidated law as EPC violation.
  57. Strict Scrutiny
  58. Law denies some citizens right to vote.  Strict Scrutiny
  59. Not entitled to presumption of constitutionality.
  60. Compelling Government Interest – Limiting participation to those “primarily interested in school affairs.”
  61. Presumably valid.
  62. Narrow Tailoring – FAILS HERE.
  63. Impermissible to measure interest by property ownership or presence of children in school system.
  64. Under-Inclusive – Permitted voting by many persons having only a remote and indirect interest in school affairs.
  65. Over-Inclusive – Prohibited voting by others having a distinct and direct interest in school affairs.
  66. Differently tailored law may have been upheld.
  67. Stewart, Dissenting
  68. Rational-Basis Review – Law satisfies.
  69. Voting is not a constitutionally protected right. Minor.  No strict scrutiny.
  70. States have broad powers to regulate exercise of franchise.
  71. Challenges to Voting Restrictions
  72. Facially Discriminatory
  73. Proof
  74. Geographical Limitations
  75. Remedy
  76. Discriminatory as Applied
  77. Proof
  78. Geographical Limitations
  79. Remedy – Likely that, e.g., poll tax should be administered in a nondiscriminatory fashion. Poll tax still is in place.
  80. Illicit Motivation/Discriminatory Purpose
  81. Proof
  82. Look to context. Sometimes, there is smoking gun proof, e.g., “This poll tax will disenfranchise blacks.”
  83. If there is no smoking gun, one will have to prove that poll tax is being maintained for racially invidious purposes. Difficult.
  84. Geographical Limitations
  85. Remedy – Enjoin existing poll tax. A nondiscriminatory poll tax, i.e., one passed without reference to a discriminatory purpose, may be valid.
  86. What AL did with felon disenfranchisement. SeeHunter.
  87. Permissible Voting Restrictions
  88. Voting is a fundamental right. YickWo; Reynolds; Harper; Kramer.
  89. Restrictions  Strict Scrutiny.
  90. Age
  91. 26th Amendment – “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
  92. Guaranteeing franchise to 18-year-olds.
  93. Overruled Oregon v. Mitchell (1970) (invalidating 1970 VRA extension of franchise to 18-year-olds as beyond Congress’ power).
  94. Bright Line Rule
  95. Arbitrary age of majority eliminates unfavorable aspects of discretion. A bright line is likely to be politically neutral.
  96. Problems of literacy tests [above] apply if adolescents were subject to competency tests.
  97. Free & Reasonable Exercise of Franchise at 18
  98. People (on average) are thought to be mature enough to vote.
  99. Parents could exercise undue influence or duress on younger children, who (1) may not be able to stand up for their preferences or (2) most likely are dependent for support on their parents.
  100. Citizenship
  101. Based on the notion of a political community. SeeBluman.
  102. Citizenship ≠ Franchise.
  103. Minor.
  104. Resident aliens may vote in some local elections.
  105. Conflict of Interest – Noncitizens might not vote in best interests of U.S.
  106. History – Other nations have enacted similar voting restrictions; every community necessarily includes some people and excludes others.
  107. Constitution
  108. Bona Fide Residence
  109. Primary Issue – Fluidity of residence in modern, mobile society.
  110. Based on the notion of a political community. SeeBluman.
  111. Appropriately defined and uniformly applied requirement may satisfy strict scrutiny. Dunn v. Blumstein (1972).
  112. All other restrictions  Strict Scrutiny.
  113. Mental Competence
  114. Most states impose voting restrictions.
  115. Doe v. Roe (D. Me. 2001) – Invalidated under EPC and ADA ME law prohibiting persons “under guardianship for reasons of mental illness” from registering and voting.
  116. Pyre v. Carnahan (W.D. Mo. 2006) –Upheld similar MO practice because it MO adequately distinguished between those capable and those incapable of voting.
  117. Durational Residency
  118. Arguments for Durational Residency Requirement
  119. Preventing voter fraud that might occur through voter “colonization.”
  120. Ensuring existence of a knowledgeable community of interest.
  121. Arguments Against Durational Residency Requirement
  122. May disincentive travel or infringe an individual’s right to travel (if such a right exists).
  123. If state’s purported interest is in a community of interest, then this seems to suggest a competency requirement, which is impermissible.
  124. State cannot infringe right to vote because new voters may have different priorities than longstanding voters. Newcomers are entitled to have a say in local affairs.
  125. 14th Amendment gives citizens right to become citizens of states by moving there.
  126. Dunn v. Blumstein (1972)
  127. Facts –Professor moved to TN but was not permitted to vote because he had not been in state for one year.
  128. Invalidated one-year durational residency requirement for voting eligibility as EPC violation.
  129. Strict Scrutiny – Because case involved (1) right to vote and (2) right to travel.
  130. Compelling Government Interests
  131. Preventing Fraud – Valid
  132. Community of Interest – Rejected
  133. Narrow Tailoring
  134. Fraud rationale failed because durational residency requirement was not needed.
  135. Lesson – States cannot deny equal protection of law—here, with regard to voting—based on duration of residency.
  136. Permissible Durational Residency Requirements – E.g., requiring that voters register by a certain date before an election. 30- or 60-day registration cutoffs are permissible, but must be reasonable.
  137. Carrington v. Rash (1965)
  138. Facts – Concerned TX law denying voting rights to military personnel that moved to TX in connection with service, regardless of duration of residency.
  139. Invalidated law.
  140. Heightened Standard of Review
  141. Voting is a fundamental right.
  142. TX singled out military personnel on basis of occupation.
  143. Distinguishing Holt – Holt limited voting to city residents; Carrington concerned denial of vote based on how residents came to be in city.
  144. Homeless
  145. Many states allow homeless to vote.
  146. 2/3 of states require a mailing address.
  147. General Rule – Fixed address is unnecessary if individual provides sufficient information about her usual location to allow assignment to a precinct.
  148. Nonresidents
  149. Brown v. Chattanooga Board of Commissioners (E.D. Tenn. 1989)
  150. Facts – Concerned charter that allowed nonresidents to vote if they owned enough property in the city.
  151. Provision expanded franchise. Rational-Basis Review
  152. Invalidated provision because it did not limit how many people could vote w/r/t a single piece of property.
  153. Upholding Nonresident Franchise Under Rational-Basis
  154. Glisson v. Mayor & Councilmen of Savannah Beach (5th Cir. 1965); Hogencamp v. Lee County Board of Education (11th Cir. 1984).
  155. Hole Civic Club v. City of Tuscaloosa (1978)
  156. Facts – Concerned denial of right to vote to persons living outside city limits but within police jurisdiction.
  157. Upheld voting practice/no EPC violation.
  158. Affirmed bona fide residency requirement, which extraterritorial residents did not satisfy.
  159. Not about voting in strong sense.  Rational-Basis Review
  160. Broad state discretion when “experimenting with appropriate allocation of state legislative power.”
  161. Deference to Legislature
  162. If city authority depended on extending right to vote, there would be many political battles about whether extending city authority would be worth it.
  163. Court does not want to disincentivize city from extending, e.g., its police or emergency medical services to people just outside the city limits.
  164. [See Carrington above.]
  165. Employment
  166. Problems – Consider someone living in NJ and working in NY.
  167. 1-person, 2-votes.
  168. Employment is very changeable.
  169. Gaming the system by deciding whether it would be better to vote in work or residence jurisdiction.
  170. [See Carrington above.]
  171. Solution – Universal voter database could prevent double voting.
  172. Taxable Real Property Ownership
  173. Skews heavily toward wealth. One who owns ten parcels of taxable real property will have ten votes.
  174. Students
  175. Discouraging Transitory Students – Require indicia of residency that they are unlikely to possess, e.g., state driver’s licenses.
  176. Encouraging Transitory Students – Require proof of residency and allow dorm room residency.
  177. Civil Procedure/where-do-you-intend-to-stay approach does not seem to work because discerning subjective intent is difficult.
  178. Solution – Require students to vote where they will spend the greatest number of days within the next twelve months.

BLACK DISENFRANCHISEMENT