Disfranchising Wellstone absentee voters

[Bryan Wildenthal]

That's a fair point.  It may well be that after a certain deadline, no
ballot changes should be allowed, and voters would simply have to vote for
the deceased candidate if they wish, knowing that the governor, or some
other body designated by law (the candidate's party?) would appoint a
successor, or even that a follow-up special election would be held if the
deceased candidate wins.  This was the reasonable procedure followed in
Missouri after Carnahan's death.

Nevertheless, ballot substitution having been allowed (which was a decision
beyond the control of most or all of the absentee voters whose rights are
threatened), I think it creates an imperative to protect their equal voting
rights.

I remain puzzled by why it is such a "sizeable if" that there's a Bush v
Gore problem here.  It's hard to imagine a more blatant and deliberate
denial of equal voting rights to a known group of voters, with an obvious
and troubling impact falling on political lines.  This is a pure gift to the
surviving candidate.  In some states, 10 to 20% or more votes are cast
absentee.  Such a procedure in California would virtually guarantee that the
candidate with this "absentee advantage" would win, unless it was otherwise
a landslide blowout.  I don't know what the typical percentage of absentee
votes in Minnesota is, however.

Bryan Wildenthal
Thomas Jefferson School of Law


-----Original Message-----
From: Jonathan H. Adler [mailto:jha5 at PO.CWRU.EDU]
Sent: Friday, November 01, 2002 11:40 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Disfranchising Wellstone absentee voters


If  (and I think it's a sizable if) there is a post-Bush v. Gore equal
protection problem here, it is only created by the substitution of Mondale
for Wellstone on the ballot after absentee ballots were distributed, as it
is only this substitution which creates the potential for different rules
for different voters which are dependent upon when the ballots were cast.
This being so, it seems the remedy would be to prevent the ballot
substitution in the first place.  This would substantially reduce the choice
offered to voters at the polls, but the equal protection problem would
disappear, as would other objections about the unfairness of making ballot
changes "mid-stream."

JHA

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Bryan Wildenthal
Sent: Thursday, October 31, 2002 10:29 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Disfranchising Wellstone absentee voters


Dear List Colleagues,

I saw a brief news item, then have seen surprisingly little follow-up
discussion, and have not heard of any legal challenge, regarding the
following:

That Minnesota absentee voters who have already cast ballots will have their
ballots counted if they were cast for Republican US Senate nominee Norm
Coleman (who, in the small world department, was my direct supervisor on a
memo I wrote in July 1988 on the US Supreme Court's child-witness
confrontation decision in Coy v Iowa, while I was a student summer law clerk
in the Minn AG's office and he, still a Democrat then, was Solicitor General
-- sorry, I just love pointless anecdotes like that), but the ballots will
NOT be counted (nor any opportunity given for those voters to re-vote) if
the ballots were cast for deceased Democratic nominee Paul Wellstone.  Or
maybe I have it slightly wrong and they WILL be counted, but only for
Wellstone, not Mondale, which obviously amounts to the same thing and
effectively disfranchises those voters.

Can any of my colleagues suggest why this is not plainly a far more
outrageous denial of equal protection in voting than anything that happened
in Bush v Gore?  It's far more intentional and the discriminatory impact
falls far more troublingly along political-preference lines.  It seems to me
there are plenty of less-discriminatory ways to achieve the state's
concededly compelling interest in running an orderly election that
accommodates every voter's true choice to the reasonable extent possible.
Counting Wellstone absentees as votes for Mondale would be troubling on
various grounds, but surely less offensive than simply deliberately
disfranchising Wellstone absentees.  Or, why not just throw out all absentee
ballots?  Still troubling, with possibly a discriminatory effect on
Republican Coleman, since experience suggests that absentee voters tend to
be more Republican.  But surely the discriminatory effect of only throwing
out Wellstone absentees is far more severe, and seems more gratuitously
intentional (though arguably a "too bad, oh well" side effect of the
candidate's death).  Throwing out all absentees would not intentionally
target Coleman, and would have a far less disparate impact, though there
would be knowledge of the aforementioned disparate impact.

But why not throw out all absentee votes, AND publicly announce an
opportunity for those voters to re-vote, with an extended deadline to allow
delayed submission of such votes (presumably, they voted absentee because it
was impossible or inconvenient for them to vote on election day).  Some
record must be kept of who voted absentee, even if we can't track down who
cast which ballot, otherwise absentee voters could double-vote on election
day.  Yes, it would be frustrating to possibly delay knowing the outcome of
this close race in a dramatically close national set of Senate elections,
but Gov. Ventura could appoint an interim Senator for the lame-duck session,
and surely all the delayed absentee votes could be counted and results could
be finalized well before the new Congress is sworn in Jan. 3.  Surely a
small price to pay to ensure equal access to the fundamental right of
voting.

Bryan Wildenthal
Thomas Jefferson School of Law


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