Disfranchising Wellstone absentee voters

[Blumstein, James]

The absentee ballot access case to which Bryan refers (and which applies
rational basis review instead of strict scrutiny in contrast to cases such
as Kramer v. Union Free School District) is McDonald v. Board of Election
Commissioners, 394 U.S. 802 (1969)(per Warren, C.J.). The Court cites as the
applicable standard of review such cases as Kotch, McGowan v. Md.,
Williamson v. Lee Optical, etc., the most restrained rational basis review
cases.  Footnote 6 is particularly interesting because it talks about
possible options available for inmates to vote other than absentee balloting
and drawing a distinction between absolute preclusion from access to the
ballot and ineligibility for absentee ballots.  I used McDonald as a point
of contradistinction in briefing and arguing the voter durational residency
case, Dunn v. Blumstein, 405 U.S. 330 (1972), which did apply strict
scrutiny in contrast to McDonald.   I am pasting the syllabus below:

SYLLABUS:  Appellants are qualified Cook County electors who are unsentenced
inmates of the Cook County jail awaiting trial. They allege that Illinois'
failure to include them among the classes of persons entitled to absentee
ballots violates the Equal Protection Clause of the Fourteenth Amendment.
The
District Court granted summary judgment for appellees holding that extending
absentee ballots to those physically incapacitated for medical reasons
constituted a proper and reasonable classification not violative of equal
protection. Held: Illinois' failure to provide absentee ballots for
appellants
does not violate the Equal Protection Clause.  Pp. 806-811.

   (a) While classifications "which might invade or restrain [voting rights]
must be closely scrutinized and carefully confined," a more exacting
judicial
scrutiny is not necessary here, since the distinctions made by Illinois'
absentee voting provisions are not drawn on the basis of wealth or race,
 <=25>  Harper v. Virginia Board of Elections, 383 U.S. 663, and there is
nothing in the record to show that Illinois has precluded appellants from
voting. Pp. 806-808.

   (b) A state legislature traditionally has been allowed to take reform
"one
step at a time" and need not run the risk of losing its entire remedial
scheme
(here absentee voting) because it failed to cover every group that might
have
been included.  Pp. 809, 811.

   (c) Since there is nothing to show that the judicially incapacitated
appellants are absolutely prohibited from voting, it is reasonable for
Illinois
to treat differently the physically handicapped.  Pp. 809-810.

   (d) Constitutional safeguards are not offended by the different treatment
accorded unsentenced inmates incarcerated within and those incarcerated
without
their counties of residence.  P. 810.

-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Saturday, November 02, 2002 2:54 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Disfranchising Wellstone absentee voters


I think Tobias's reply was quite helpful and on-point.  I think you're
missing our argument here, John.  You appear to have confused the per curiam
equal protection holding of Bush v Gore (which had nothing to do with
election rules being changed, but rather the actual substance of the rules
applied) and the Rehnquist concurrence, which DID focus on the alleged
unconstitutionality (under Art. II) of (allegedly) judicially changing the
rules midstream.

John suggests a remarkably formalistic and impoverished vision of equal
protection (one quite inconsistent with the remarkably robust and
substantive version of EP reflected in Bush v Gore).  The fact that the "a
priori rule" regarding absentee ballot substitution formally applies to all
voters equally at the outset, in the abstract, cannot obscure the tangible,
actual, real-world inequality that occurs when one candidate dies and is
replaced by another, and those who actually voted for the deceased candidate
are thus effectively (to some degree) shut out of the election, while those
who voted for the surviving candidate labor under no such burden.
Minnesota's a priori rule may or may not be unconstitutional on its face,
but it surely produces unconstitutional inequality as applied in this case.
There is nothing at all remarkable about a court crafting a remedy
"midstream," within the time available, to respond to an apparent
constitutional violation.  It might only be midstream, at the last moment in
a pre-election scenario like this, that anyone would have standing to
challenge this unconstitutional aspect of the law.  So if not now, when?

Another list colleague privately pointed out to me a precedent holding that
absentee voting is not a fundamental right (unlike voting in general).  I
confess I simply haven't had time to look into that yet, but at face value
it seems dubious to draw such a distinction.  If a state chooses to provide
absentee voting, surely it cannot do so on unequal terms, and any inequality
must surely (under more recent Supreme Court precedents such as Bush v Gore)
be subjected to strict scrutiny because of the ultimate impact on the right
of voters to exercise democratic choice.  This seems especially so given the
far more widespread modern use of absentee voting today, than during earlier
times.  That alone might require reconsidering any constitutional
distinction between "regular" and absentee voting.

Bryan Wildenthal
Thomas Jefferson School of Law

> -----Original Message-----
> From: Eastman, John [mailto:jeastman at CHAPMAN.EDU]
> Sent: Saturday, November 02, 2002 8:53 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Disfranchising Wellstone absentee voters
>
>
> I don't mean to belabor the point, but I really don't understand the
> point of Tobias Wolff's latest post.  If, as he says, the
> holding of the
> majority opinion in Bush v. Gore is that it violates equal
> protection to
> employ a potentially vague standard to recount votes, doesn't
> he need to
> address what in the existing Minnesota statutory scheme is vague (or
> even potentially vague)?  The Minnesota law expressly, and
> unambiguously, provides that absentee ballots mailed/cast before a
> vacancy in nomination occurs shall be counted as if the
> vacancy had not
> occurred.  There is nothing vague about that.  The only vagueness has,
> like in Florida, arisen after the courts have ignored the
> express terms
> of the statute.
>
> John Eastman
>
>
>
> -----Original Message-----
> From: Tobias Wolff [mailto:tbwolff at UCDAVIS.EDU]
> Sent: Saturday, November 02, 2002 8:08 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Disfranchising Wellstone absentee voters
>
> John Eastman writes:
>
> > 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.
>
> This description of the 2000 election battle, of course, has
> nothing to
> do
> with the holding of Bush v. Gore.  The holding of the majority opinion
> was
> that (1) it violates equal protection to employ a potentially vague
> standard to recount votes when more particularistic
> evaluative rules are
> possible, and (2) there was "some evidence" that the lack of such
> evaluative rules to augment the "clear intent of the voter"
> standard had
> in
> fact produced some "arbitrary" results in the recount.
>
> The Per Curiam opinion neither held nor suggested either that (1) the
> rules
> had been changed to favor one candidate, or (2) the recount was being
> conducted in a biased fashion.
>
> I understand that the opinion is completely analytically incoherent
> without
> reading some such suggestion into it -- which is why Justice Stephens
> felt
> compelled to respond to the unspoken implication in his dissent -- but
> that
> is not the basis of the Court's holding.
>
> -- T
>