Spring 2005 Con Law II 1

Constitutional Law II

Right to Vote

Spring 2005 Con Law II 2

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 holidng 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 & VEEP]”

Spring 2005 Con Law II 3

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.”

Spring 2005 Con Law II 4

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

Spring 2005 Con Law II 5

Voting as Fundamental EP Right

Fundamental because preservative of all other rights 1st Amendment? “Republican Government”?But not fundamental under Due Process

Spring 2005 Con Law II 6

Types of voting equalityWhether you get to vote at all Prohibitions (eligibility standards) Conditions Imposed (poll taxes)How many & weight of votes (vote dilution) Reynolds v. Sims (1964) – 1 person, 1 vote Gerrymandering casesWhether your vote gets counted Bush v. Gore (2000)Access to Political Process Ballot & Government Bodies

Spring 2005 Con Law II 7

Harper v. Virginia (1966)$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?

Spring 2005 Con Law II 8

Harper v. Virginia (1966)$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?

Spring 2005 Con Law II 9

Kramer v. Union FSD (1969)School elections limited to: Property owners Parents/guardians of enrolled childrenCompelling ENDS Knowledgable/interested votersNarrowly tailored MEANS Persons “primarily interested” in school affairs

I.e., those paying for and benefiting from serviceFit: Over/Under-inclusive? Universal Suffrage?

Spring 2005 Con Law II 10

Ball v. James (1981)Eligibility for voting for water recl. district limited to property owners (contra Kramer) 1 acre, 1 vote (contra Reynolds v. Sims)Salyer Land Co. Tulare Water Dist (1973) Reynolds/Kramer do not apply to gov’t opera-

tions that are mainly proprietaryproprietary (v. sovereign) Tantamount to a private company with voting limited

to stockholders Taxes tantamount to user fees

Salt River Distr. exercises much greater power

Spring 2005 Con Law II 11

Ball v. James (1981)Eligibility for voting for water recl. district limited to property owners (contra Kramer) 1 acre, 1 vote (contra Reynolds v. Sims)Salyer Land Co. Tulare Water Dist (1973) Reynolds/Kramer do not apply to gov’t opera-

tions that are mainly proprietaryproprietary (v. sovereign) Compare private company with stockholder voting Taxes tantamount to user fees

Salt River Distr. exercises much greater power But still of a proprietary vs. governmental nature

Distinction between limited/general gov’t power noted elsewhere

Spring 2005 Con Law II 12

Reynolds v. Sims (1964)Malapportionment 25% of voters elect

50% of legisture those voters have 3X

voting power of otherssome have 41X power

Why doesn’t legislature fix this problem?3/5 majority required

Does Alabama have a “republicant form of government”?

Spring 2005 Con Law II 13

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?

Spring 2005 Con Law II 14

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?

Spring 2005 Con Law II 15

Reynolds v. Sims (1964) How Equal is Equal? Gov’t must “make a good-

faith effort to achieve precise math. equality”

Even small deviations are suspect (e.g., 0.7%)

Greater deviation allowed in statelegislative districting e.g., 9.9%

Vieth v. Jubilerer No const’l standards

for gerrymandering

Spring 2005 Con Law II 16

Bush v. Gore (2000)

Spring 2005 Con Law II 17

Bush v. Gore (2000)

Spring 2005 Con Law II 18

Bush v. Gore (2000)

Spring 2005 Con Law II 19

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 for other races Some ballots have hanging/dimpled chads

Spring 2005 Con Law II 20

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.

Spring 2005 Con Law II 21

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”

Spring 2005 Con Law II 22

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

Spring 2005 Con Law II 23

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

Compare McKlesky v. Kemp; Feeney; Af.Action cases 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

Spring 2005 Con Law II 24

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 WoWho has burden of proof? How applied?

Per Curiam Opinion: “Formulation of uniform rules [a substandarda substandard] is practicable & necessary”“Search for intent can be confined by specific rules”

Spring 2005 Con Law II 25

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 majorit

y

Spring 2005 Con Law II 26

Bush v. Gore (2000) 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?

Spring 2005 Con Law II 27

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”

Spring 2005 Con Law II 28

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

Spring 2005 Con Law II 29

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.

Spring 2005 Con Law II 30

Other limitations on votingLiteracy 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) O’Brien v. Skinner (1974) (awaiting trial)

Spring 2005 Con Law II 31

Spring 2005 Con Law II 32

Spring 2005 Con Law II 33

Spring 2005 Con Law II 34