Election Law Fall 2017 – Prof Donna Kelly
THEORETICAL/HISTORICAL CONTEXT OF VOTING
Theories of Democracy
Three main theories of democracy:
Protective Democracy
Centers on 2 core beliefs:
The ultimate purpose of govt is to protect the rights and liberties of the citizenry
Democracy is a form of govt particularly well suited to accomplish this goal
Developmental Democracy
John Stuart Mill: participation in politics is necessary to human self-development
Pluralist Democracy
Politics consists of a competitive struggle among the groups and individuals comprising society for control over govt power
Groups and individuals seek power for the purpose of using it to pursue their own self-interest
Modern political scientists often favor pluralistic theories of democracy b/c they capture more accurately the nature of modern mass democratic politics
Democracy as a Social Practice
Humans are predominantly social animals
From this POV, democracy is just one form of collective social life, albeit one w/ certain benefits that other forms of collective life might lack
Democracy can only be practiced by communities
From this POV, inclusion in a democracy-practicing community can be seen as something of great value socially, rather than politically
Republicanism and the Constitutional Structure
Under the original constitutional plan, the people played a very indirect and attenuated role in the selection of the nation’s rulers
Constitution originally said that only the House should be democratically elected
Senators were to be chosen by the state legislatures
Changed by 17th Amendment in 1913
President and VP elected using hybrid system (still in place)
Electors chosen by the people indirectly, thru appointment by the state legislature; or
Electors chosen directly in popular election, then use their own judgment in deciding how to vote
Transformation of the Electoral College
From the start, the nation tended to drift toward more democratic practices
Electoral College never worked like the Framers intended b/c pres. electors campaigned by pledging to support particular individuals
Thus, electors were chosen on their faithfulness to parties, not on the basis of their wisdom and political judgment
Custom soon developed binding electors to vote for the pres. candidate they pledged to support, but in theory, they’ve always been free to vote for whomever they choose despite their pledge
Nothing in text of 12th Am. binds pres. electors to vote for any particular candidate
Framers seemed to intend that pres. electors exercise independent judgment
On a few occasions, pres. electors have voted for candidates other than those they pledged to support. Most recently in ‘04
Sup Ct got to consider the question of elector defection in Ray v. Blair (1952)
Electors from AL refused to vote for Democratic Pres candidate
State leg. reacted by enacting a law that required pres. elector candidates to sign a pledge saying that they’d support the winner of the primary
Blair, pres. elector candidate, refused to sign the pledge, so State Dem party refused to certify him as a candidate for pres. elector
Blair filed suit, seeking court order directing the State Dem party to certify him as an elector, arguing that pledge violated 12th Amendment
Sup Ct rejected the notion
12th Amendment doesn’t prohibit an elector’s announcing his choice beforehand, pledging himself
History teaches that the electors were expected to support the party nominees
In dissent, Jackson argued that a lengthy customary practice can’t trump the freedom that the constitutional text confers on pres. electors
In a recent case involving the rights and obligations of pres. electors, a lower federal court characterized an elector pledge as an “unenforceable, moral obligation to comply in the future by supporting” the party’s nominee
However, in another case where potential elector crossed out part of the oath, the 5th Circuit upheld the authority of the party to bar him in advance from eligibility as an elector
In 2010, Nat’l Conf. of Commissioners on Unif. State Laws developed guide for state legislatures that recommends states require electors to take pledge to support their party’s nominees
The Problem of Race
Racial discrimination has historically been one of the most significant motivations behind just about every conceivable kind of impediment to and interference w/ voting, representation, and political participation
Southerners dissolved the paradox of slavery the only way they could, by declaring blacks to be subhuman and thus excluded from self-governance on account of lacking the kind of “self” needed to participate in collective self-rule
Southerners switched grounds for political self-advantage, arguing that slave populations should be taken into account for purposes of congressional representation in the House of Reps, resulting in the 3/5ths clause of Art. 1, §2
The Reconstruction Amendments
13th Amendment, ratified in 1865, prohibited slavery outright
14th Amendment, ratified in 1868, made the freed slaves citizens of the states in which they resided, protected their privileges and immunities as American citizens from infringement by the states, and guaranteed equal protection of the laws
15th Amendment, in 1870, addressed political rights, saying that the right of citizens of the US to vote shall not be denied or abridged by the US or any State on account of race, color, or previous condition of servitude
Guinn v. United States
Amendment to OK Constitution implemented a reading and writing test as qualification for voting (any section of the State Constitution)
Amendment held unconstitutional in violation of 15th Amend.
Court says even though the 15th Amend. gives no right of suffrage, b/c its command is self-executing, rights of suffrage may be enjoyed by striking out discriminations against the exercise of the right
Lane v. Wilson
After Guinn, OK enacted a new voter registration scheme. Those who had voted in 1914 were automatically registered, but others had to apply for registration between 4/30/16 and 5/11/16
Court says unfair discrimination was retained by automatically granting voting privileges for life to the white citizens who were grandfathered in, while subjecting all others (mostly AAs) to a new burden
Only 12 days to reassert their constitutional rights was not enough
From 1890 to 1902, 5 states held constitutional conventions for express purpose of impeding or eliminating AA voting by enacting grandfather clauses, literacy tests, poll taxes, property qualifications, and mandatory purges of voter reg rolls
The Distribution of Regulatory Power over Democratic Processes
The Common Law
Commonwealth v. Hoxey
Hoxey charged w behaving disorderly and indecently, disturbing the peace and quiet of the citizens, in violation of the rights of private suffrage
Court says facts charged amount to an offense at common law for disorderly conduct, especially troublesome b/c he intended to disrupt/prevent the ongoing election
The Guarantee Clause
Art. IV, §4 provides that the US shall guarantee to every State a Republican form of govt
Luther v. Borden
Luther, a Suffragist, sued Borden for illegal breaking and entering
Borden was a RI military official who’d been sent by the charter govt to arrest Luther
Circuit Court instructed the jury that the charter govt and laws under which Borden acted were in full force and effect, and constituted a justification of his acts
Question: was the charter govt in legal existence at the time of the actions?
Court says the question is beyond its authority; judicial power presupposes an established govt
The acceptance of the judicial office is a recognition of the authority of the govt from which it is derived, so if a state court concluded that the govt under which it acted had been displaced by an opposing govt, then it would cease to be a court capable of pronouncing judicial decisions
Therefore, the question has already been decided by the courts of RI, and the courts of the US must regard the charter govt as the lawful and established govt
The Court has stuck to its position in Luther that questions arising under the Guarantee Clause aren’t justiciable
Federalism
States regulate state elections and also have a lot of power to regulate federal elections too
States further delegate authority over elections to the local level, further complicating the distribution of regulatory powers
All 3 levels of govt (fed, state, local) are often involved simultaneously
nts who tell the truth and have no fraudulent purpose
What about presidential elections?
Under Art. 1, § 4, Congress has broad powers to regulate fed elections, but in practice, leaves it up to the states
Voting Rights Act § 202: states have no interest in confining the franchise to bona fide residents w.r.t. elections for Pres and VP
Congress has barred the application of all durational residency requirements to pres elections. Sup Ct upheld the bar in Oregon v. Mitchell
In several cases, election boards have decided that college students who live in dorms aren’t bona fide residents of the state, but fed courts have generally rejected this policy under Dunn
Multiple residency – Wit v. Berman
Plaintiffs were NYC residents who also owned homes in Long Island who brought EP challenge against NY election law permitting citizens to register to vote only in one community w/in the state, arguing that their ownership of homes and substantial part-time residence in both places made their treatment under the law arbitrary
Court sustained the law, saying that having to choose one or the other doesn’t discriminate, its just allows them to align their strongest, personal political interests with the appropriative voting location
Voting by non-residents – May v. Town of Mountain Village
Town by ski resort voted to extend voting rights to any owners of real property in the town who aren’t residents of the town, as long as they were prop owners for 180 days and owned a minimum 50% of the fee title interest in the prop
Voting rights only applied to matters of exclusively local interest
Resulted in 505 resident voters and 541 nonresident prop owner voters, so several perm. residents sued, arguing that their votes had been unconstitutionally diluted
Court analyzed using rational basis standard and said the extension of the vote was rational b/c the town was a unique resort community where nonresidents owned the majority of prop and paid 8x the prop taxes, so giving them the vote gave them a voice in the town’s future
In NJ, Worden case was first time common law theory of domicile was abandoned and some TCNJ students, not sure what they were doing after school, were allowed to register to vote at their school address
Standard of review used: compelling govt interest
Literacy
Lassiter v. Northampton County Board of Elections
Question: whether a state may, consistently w/ 14th and 17th Amends., apply a literacy test to all voters regardless of race or color
Court says illiterate people may be intelligent voters, so it might not be a wise policy, but it’s not unconstitutional
The test is applicable to everyone, requires them to read and write any section of the NC Constitution, and doesn’t appear to be “a calculated scheme”, so it can’t be condemned on its face as a device unrelated to the desire of NC to raise the standards for all people who cast the ballot
United States v. Louisiana
LA literacy test required a voter to demonstrate their ability to understand and section of the state constitution
Registrars had the power to decide whether or not to use the test
After the test was put into use, AA voter reg was cut in half, while white voter reg wasn’t affected
White applicants were given easy sections and bad answers were accepted as correct, while AAs were given much more difficult sections and better answers were rejected
Some white applicants were shown cards w/ sample answers on them to copy
