Voting Rights

1. Voting Rights

2. EP Fundamental Rights • Discrimination relating to the exercise of an EP fund. right can trigger strict scrutiny • How discrimination occurs with fund. Rights • A class of people denied right • If everyone denied, not an EP problem; but SDP • Unequal allocation of the right • Some folks get more of it than others do • Burden on exercise of right produces disparate impact in enjoyment • Right can be exercised, but at a price not everyone can pay Con Law II

3. EP Fundamental Rights • Discrimination relating to the exercise of an EP fund. right can trigger strict scrutiny • How discrimination occurs with voting rights • A class of people denied right • Blacks, women, aliens denied the right to vote • Unequal allocation of the right • Some people’s vote counts more than others • Burden on exercise • Poll tax, literacy test Con Law II

4. EP Fundamental Rights • How to find EP fund rights • SDP fund rights automatically protected by EP • Non-SDP fund rights can be EP fund rights • Similar interpretive methodologies used as in SDP • Unlikely that textualism would result in EP right but not SDP right • Court is marginally more generous with EP than SDP • State has wider range of options to comply Con Law II

5. Express Right to Vote provisions • Original Constitution • Art. I, § 2: Electors for House of Rep same as for State Legislature • Art. I, § 4: “The Times, Places and Manner of holding Elections for Senators and Reps. shall be prescribed in each State by the Legislature ” • Art. II, § 2: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors [for President & VP]” Con Law II

6. Express Right to Vote provisions • Amended Constitution • 12th (1804): Meeting of Electors for President • 15th (1870): “The right of citizens of the US to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude” • 17th (1913): Senators “from each State [shall be] elected by the people thereof” • 19th (1920): “The right of citizens of the US to vote shall not be denied or abridged by the US or by any State on account of sex.” Con Law II

7. Express Right to Vote provisions • Amended Constitution • 24th (1964): “The right of citizens of the US to vote [in federal elections] shall not be denied or abridged by the US or any State by reason of failure to pay any poll tax or other tax.” • 26th (1971): “The right of citizens of the US, who are eighteen years of age or older, to vote shall not be denied or abridged by the US or by any State on account of age.” • Summary: • Only 1 affirmative right to vote (senators) • the rest are non-discrimination or uniformity rules Con Law II

8. Voting as Fundamental EP Right • Fundamental because preservative of all other rights • 1st Amendment? • “Republican Government”? • But not fundamental under Due Process Con Law II

9. Voting equality issues • Whether you get to vote at all • Class Prohibitions (eligibility standards) • Conditions/Burdens Imposed (poll taxes) • Whether your vote gets counted • Bush v. Gore (2000) • How many & weight of votes (vote dilution) • Reynolds v. Sims (1964) – 1 person, 1 vote • Gerrymandering cases • Access to Political Process • Ballot (candidates) & Government (dual route) Con Law II

10. Reynolds v. Sims (1964) • Malapportionment • 25% of voters elect 50% of legisture • those voters have 3X voting power of others • some have 41X power • Why doesn’t legislature fix this problem? • 3/5 majority required • Does Alabama have a “republican form of government”? Con Law II

11. Reynolds v. Sims (1964) • Vote Dilution • What makes differing vote strength unequal? • Some voters more equal than others? • Does EP cl. mandate representative gov’t? • why not different views of electoral democracy • Is proportional repre-sentation required? • Gerrymandering? Con Law II

12. Reynolds v. Sims (1964) • Vote Dilution • Why isn’t apportionment of US senate unconst’l? • See Wesbery v. Sanders • Harlan dissent • Not intent of 14th framers • Isn’t this the same J Harlan who said the DP clause “stands on its own bottom” and invoked “basic values implicit in the concept of ordered liberty” to find fundamental rights? Con Law II

13. Reynolds v. Sims (1964) • How Equal is Equal? • Gov’t must “make a good-faith effort to achieve precise mathematic equality” • Even small deviations are suspect (e.g., 0.7%) • Greater deviation allowed in state legislative districting • e.g., 9.9% Con Law II

14. Karcher v. Daggett (1983) • Degree of mathematical precision • as nearly equal as practicable • Is equal population density reasonably achievable? • If it is, but not achieved, state has burden of proving why disparaties are necessary • no de minimis population variations allowed • even if less than vote count imprecision • Vieth v. Jubilerer • Constitutional standards for gerrymandering Con Law II

15. New Jersey Gerrymandering Con Law II

16. Racial Gerrymandering • Two ways to dilute minority voting strength • Crack: distribute minority voters among districts so they are a minority in each district • Each of Georgia’s 10 districts would be 27%B 73%W • Pack: concentrate minority voters so as to pro-duce minimum #of “majority minority” districts Con Law II

17. Miller v. Johnson (1995) • Racial Gerrymandering • const’l to draw district lines that recognize • geography, political subdivisions, incumbency, etc • unconst’l to draw district lines on basis of race • so as to dilute or enhance minority voting strength • Assumption of racial block voting (representational harm) • even where no overall vote dilution occurs • 3 black districts is roughly proportional to population • unconst. to use race as predominant determinant • even if same result can be explained on non-race lines • Even where DoJ approves pursuant to Voting Rights Act vote dilution stigmatic injury; balkanizing Con Law II

18. Shaw v. Reno Con Law II

19. Con Law II

20. Miller v. Johnson (1995) • Proof of intent in gerrymandering • awareness of racial impact is ok • When using traditional districting principles • line drawing because of racial impact is not • Proof: • Direct evidence (e.g., statements) • Pressure from DOJ / ACLU “max black” plan • Indirect/circumstantial evidence (eg, district shapes) • That legislature subordinated traditional race-neutral principles (even if those principles track racial identity) • Even to attain proportional representation Con Law II

21. Miller v. Johnson (1995) • Strict Scrutiny once racial gerryman. found • Affirmative action principles apply • Curative action by DoJ ok if responds to de jure • Was Georgia’s original redistricting itself unconst’l racial gerrymandering (2 black vs. 8 white)? • No proof that traditional principles were subordinated • Even though black voting strength was de facto diluted • Congress cannot use its 15th Amd powers to create substantive equality (in black voting power) • To extent VRA authorizes congress to impose substantive equality, it violates 14th Amd • And violates federalism Con Law II

22. Other Voting Rights Issues • Voter Access • Eligibility to Vote • Poll Taxes • Literacy Tests • Felon Disenfranchisement • Voter ID Requirements • Vote Counting • Candidate Access • Residency Requirements • Voting Rights Act Con Law II

23. Kramer v. Union FSD (1969) • School elections limited to: • Property owners • Parents/guardians of enrolled children • Compelling ENDS • Knowledgeable/interested voters • Narrowly tailored MEANS • Persons “primarily interested” in school affairs • I.e., those paying for and benefiting from service • Fit: Over/Under-inclusive? • Universal Suffrage? Con Law II

24. Special Purpose Elections • Salyer Land Co. Tulare Water Dist (1973) • Reynolds/Kramer do not apply to gov’t opera-tions that are mainly proprietary (v. sovereign) • Like private company; voting limited to stockholders • Ball v. James (1981) • Water district vote limited to property owners • 1 acre, 1 vote (contra Reynolds v. Sims) • The water district exercised powers that were more governmental in nature, than proprietary • Elections related to general gov’t operations are subject to Kramer analysis, not Salyer Con Law II

25. Harper v. Virginia (1966) • $1.50 poll tax • Why not barred by 24th Amendment? • Does the burden fall along suspect class lines? • Are all user fees subject to SS? • Voting as a (EP) fundamental right • Why? • What kind of burden on EP Fund. Right? • Is it a “deprivation” of the right to vote? • Note: no “undue burden” analysis done here • The burden is itself subject to Strict Scrutiny Con Law II

26. $1.50 poll tax Why not barred by 24th Amendment? Does the burden fall along suspect class lines? What kind of burden on EP Fund. Right? Is it a “deprivation” of the right to vote? Note: no “undue burden” analysis done here The burden is itself subject to Strict Scrutiny Are all user fees subject to SS? Harper v. Virginia (1966) $1.70 poll tax receipt Con Law II

27. Other limitations on voting • Literacy tests • Lassiter v. Northampton (1959) • related to intelligent exercise of franchise • Ct. finds no disparate impact along racial lines • But invalidates “grandfather clauses” • Prohibited by Voting Rights Act of 1965 • Upheld in Katzenback v. Morgan (1966) as valid exercise of Congress’ § 5 powers • Felon disenfranchisement • See 14th Amd., § 2 (suggesting ok) • But see Hunter v. Underwood (1985) Con Law II

28. Voter ID Requirements • Purcell v. Gonzales (2006) • State ENDS (interest): “preserving the integrity of its election process.” • Voter fraud disenfranchises legitimate voters • State MEANS: proof of identity • Standard of Review • Degree of interference (burden) on right to vote? • What standard does the Court use? • Procedures in Election Cases • Accelerated orders and review • Preserve the status quo Is post-election review preferable? Con Law II

29. Bush v. Gore (2000) Con Law II

30. Bush v. Gore (2000) • Chronology • FL SoS certifies Bush wins by 1,784 votes • Gore “contests” certification • FL S.Ct. rejects overvote challenge, but • orders manual counting of undervotes • to ascertain “clear indication of the intent of voter” • Undervotes • Some voters vote in other races, but not Pres. • Some ballots have hanging/dimpled chads Con Law II

31. Bush v. Gore (2000) • Questions Presented on Cert. to USSC • I. [Violation of Article II, § 1, cl. 2] • II. [Violation of 3 U.S.C. § 5] • III. Whether the Florida Supreme Court's decision, enforcing Florida's contest provisions by ordering the manual review of ballots not counted by machines under the legal standard for determining their validity specified in Fla. Stat. § 101.5614, violates either the Equal Protection Clause or Due Process Clause of the Fourteenth Amendment. Con Law II

32. Bush v. Gore (2000) • Holding • The recount mechanisms implemented in response to the decision of the FL S.Ct. do not satisfy the minimum requirement of non-arbitrary treatment of voters necessary to secure the fundamental right [to vote].” • Is this an EP or DP case? • “problem inheres in the absence of specific standards to ensure its equal application” Con Law II

33. Bush v. Gore (2000) • Equal Protection prerequisites • Unequal Treatment • All EP cases • Discriminatory/disparate impact • Heightened review EP cases • Purposeful Discrimination • against quasi/suspect class • in exercise of fundamental right Con Law II

34. Bush v. Gore (2000) • Unequal treatment (disparate impact) by whom? • Election officials in various counties? • No single entity/officer is providing unequal treatment • NB: judicial review to be consolidated before 1 state judge • FL S.Ct.? • “In tabulating the ballots and in making a determin-ation of what is a "legal" vote, the standards to be employed is that established by the Legislature in our Election Code which is that the vote shall be counted as a "legal" vote if there is "clear indication of the intent of the voter." Section 101.5614(5), Florida Statutes (2000).” 772 So. 2d 1243 Con Law II

35. Bush v. Gore (2000) • FL S.Ct.? • “the standards to be employed is that established by the Legislature in our Election Code … "clear indication of the intent of the voter.“ • Nature of the EP problem • Discriminatory standard, or • Single standard applied in discriminatory manner • E.g., Yick Wo • Who has burden of proof? How applied? • Per Curiam Opinion: “Formulation of uniform rules [a substandard] is practicable & necessary” • “Search for intent can be confined by specific rules” Con Law II

36. Bush v. Gore (2000) • Standard of Review • Disparate impact alone = rational basis • Heightened scrutiny requires purpose • Any evidence that election officials intended to treat ballots differently in one county/precinct than others • Per Curiam: “FL S.Ct. ratified the uneven treatment” [including some, not all, overvotes] • “it is absolutely essential .. that a manual recount be conducted for all legal votes in this State, not only in Miami-Dade County, but in all Florida counties where there was an undervote, and, hence a concern that not every citizen's vote was counted.” FL. S.Ct. Intent estab-lished in all cases cited by majority Con Law II

37. Bush v. Gore (2000) More on BvG • Are all voting disparities violative of EP? • Question is not whether uneven county systems for implementing elections are constitutional, • But whether a state court remedy must assure “equal treatment and fundamental fairness” • NOTE: It isn’t the different standards in use in various places that violates EP, but the judicial remedy itself • Affirmative requirement imposed to guaranty EP • Remand to require uniform standards? • Not practicable to establish in timely fashion • Could FL S.Ct. have done so 4 days earlier? Con Law II

38. Ballot Access • Right to run for elective office as EP fund’l • Derivative right (first amendment, Republican government, democratic theory) • Burdens imposed • Filing fees • Invalidated in Bullock v. Carter; Lubin v. Panish) • Unless alternative method available (signatures) • Durational Residency Requirements • Ineligibility of certain officers • Upheld in Clements v. Fashing (1982) [waiver] Con Law II

39. Dunn v. Blumstein (1972) • Durational Residency Requirements • 1 yr residency for voting • EP Fundamental Right to Vote • Does residency requirement survive SS? • Not as means to assure voter knowledge/familiarity • But as means to prevent fraud (admin necessity) • Marston v. Lewis (1973) • EP Fundamental Right to Travel • Burden imposed on right • Creates 2 classes of state citizen Con Law II

40. Bush v. Gore (2000) Con Law II

41. Bush v. Gore (2000) Con Law II

42. Bush v. Gore (2000) • Are all voting disparities violative of EP? • Enormous differences in accuracy of machinery • punch-card nonvotes = 3.92%; optical scan = 1.43% • Compare SVREP v. Shelley (Cal. recall race with major disparities county to county in ballot rejection) click • Was the case ripe for review? • Was the Fl. S.Ct. decision final (see § 1257) • Was the USSC bound by FLSC re state law? • (on 2nd claim – 3 USC § 5) • Was this case a political question? • Did George Bush have standing? Per Curiam: “the Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Art. 2” Con Law II

43. Bush v. Gore (2000) • Bottom Lines • Were any disparities, that might occur after review of recounts by single state judge, more or less violative of EP than disparities without the recount? • Gore received more “invalid” votes than Bush <click> • I.e., was the USSC’s cure worse than the ailment? • Case is sui generis – not to have precedential effect Con Law II

44. Bush v. Gore (2000) § 5.  Determination of controversy as to appointment of electors If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. Con Law II

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