Disfranchising Wellstone absentee voters

[Mitchell Berman]

How about this as an Equal Protection and/or 24th Amendment violation:

Voters who had already submitted absentee ballots but have requested new
ones to vote for Mondale are being required to pay for the express mailing
of the absentee ballot.  My mother-in-law told me that her election board
wouldn't send her a new absentee ballot without her credit card number, and
that express mailing in both directions totaled close to $40.  Shouldn't
somebody else -- either the state or the party that elects to replace a
candidate -- be required to shoulder this expense?

Mitch Berman


At 10:39 PM 11/1/2002 -0800, you wrote:

>I continue to raise the actual language of the statute which states simply
>that in the event of a vacancy in the nomination, all absentee ballots
>shall be counted as if the vacancy had not occurred.
>
>
>
>How can this possibly be an equal protection violation, when a priori all
>who choose to vote absentee are treated identically?  The equal protection
>violation would arise if, like in Bush v. Gore, the rules are changed
>after the fact because one side has decided they are not to their
>advantage.  That, I m afraid, is what the Minnesota Supreme Court has now done.
>
>
>
>John Eastman
>
>
>
>
>
>-----Original Message-----
>From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
>Sent: Friday, November 01, 2002 2:13 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Disfranchising Wellstone absentee voters
>
>
>
>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
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20021102/6f14b0cc/attachment.htm