Disfranchising Wellstone absentee voters

[Eastman, John]

Two things in reply to Bryan Wildenthal's thoughtful post below.

First, in response to an earlier post, I adjusted my hypothetical to
make the parallel with "ineligibility" more clear-cut.  Suppose a week
before the election we learn that Candidate X had not met the requisite
9-year citizenship requirement (through a mix-up in paperwork, so as to
remove from the hypo any purpose to mislead by the candidate).  The
absentee votes already cast for such a candidate would "count," just as
would any votes cast for a candidate who was ineligible for office.
Would this, too, constitute disenfranchisement?  If not (and I believe
there have been several instances where the Senate or the House has
refused to seat such candidates, turning instead to the top vote-getter
among eligible candidates), why is the Wellstone ineligibility
different.

Second, Bryan states:  "As I understand it based on
others' postings, Minnesota law, unlike Missouri, does not allow for
electing the deceased candidate."  I recognize that Bryan is just
repeating assertions that have appeared in the press and elsewhere, but
just what is it about Minnesota law that, unlike Missouri, does not
allow for electing a deceased candidate?  I have found nothing in
Minnesota law supporting that proposition, other than the residence
requirement of Article I itself (which, of course, would equally apply
to Missouri).  I'm genuinely curious to learn what this claim is based
on.

John Eastman



-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Monday, November 04, 2002 7:10 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Disfranchising Wellstone absentee voters

I appreciate the thought that John has devoted to this issue, and I
apologize for not having had the time to do as much justice to the issue
I
raised.  However, I remain unpersuaded by John's latest arguments.  It
seems
to me that the two hypothetical scenarios he raises are easily
distinguishable from the case of a deceased candidate who is clearly and
totally replaced by a new candidate.  I agree they both, by contrast,
would
raise rather weak EPC claims.  A candidate who commits some dumb mistake
in
the campaign, or whose chances of election are diminished because of
his/her
(or some number of voters') strategic choices is simply not similarly
situated to a deceased candidate.  Nor are voters who have voted for a
deceased candidate whose name (by election day) has been totally removed
from the ballot and thus is not only highly unlikely (in a factual
sense) to
win, but actually *legally unable* to win.  (As I understand it based on
others' postings, Minnesota law, unlike Missouri, does not allow for
electing the deceased candidate.)

Again, the fact that the clear text of the law would apply to any
deceased
candidate hardly sufficies to answer the severe and substantive
inequality
of its application when one (but not the other) candidate actually does
die.
To the extent this application of the law is compelled on the face of
the
law, then I say the law is unconstitutional on its face.  It is
outrageous
to say that voters who had the bad luck to vote early for a candidate
who is
later taken off the ballot (at least in cases over which neither the
candidate nor the voters have any control) are simply disfranchised from
that election.  Indeed, it is precisely *because* this disfranchisement
occurs by force of law that it is so much more objectionable, and so
much
more unconstitutional, than the hypothetical cases of practical or
effective
disfranchisement suggested by John.  The "disfranchisement" (if such it
is)
there can be blamed on the candidate or the voters themselves.  The
disfranchisement of absentee Democratic voters (under John's reading of
the
Minnesota law) cannot be blamed on his death, because the state has in
fact
responded to and dealt with the fact of his death by removing him from
the
ballot and authorizing a replacement candidate.  The state then gives
most
voters the opportunity to vote for that candidate, while denying (under
John's reading, thankfully not, as I understand it, followed by the
Minnesota courts) the right to vote for ANY of the remaining candidates
to
those who already voted absentee for the Democratic candidate.  In the
process, of course, giving a massively unfair gift to the opposing
candidate(s) who have remained on the ballot all along, and whose voters
have thus not been denied a choice from among the election day choices.
The
unequal disfranchisement is entirely the needless product of an unfair
and
ill-crafted state law, which could be easily altered (well, more easily
far
in advance, but still feasibly on short notice).

Bryan Wildenthal
Thomas Jefferson School of Law

> -----Original Message-----
> From: Eastman, John [mailto:jeastman at CHAPMAN.EDU]
> Sent: Saturday, November 02, 2002 1:31 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Disfranchising Wellstone absentee voters
>
>
> You're right -- I am missing your argument here.  I simply
> don't see the
> EP issue that would permit the Minnesota Court to ignore two pretty
> clear-cut provisions of Minnesota law -- that already-cast absentee
> ballots shall be counted as if the vacancy had not occurred; and that
> "Official supplemental ballots shall not be mailed to absent voters to
> whom ballots were mailed before the official supplemental ballots were
> prepared."  MN. St. 204B.41.  No one is suggesting that the votes
> already cast for Wellstone not be counted; only that they be
> counted as
> they were cast, as state law requires (or required, until yesterday).
>
> Let me offer a hypothetical to demonstrate why I don't think that
> amounts to disenfranchisement and an EP problem.
>
> Suppose on the day before an election candidate X is caught
> in a sexual
> affair with a 16-year-old campaign volunteer.  The story is
> all over the
> news the eve of the election.  Overnight polls show that the
> candidate,
> who had been in a dead heat before the scandal, drops to 10%
> statewide.
> Candidate X's party takes out major television ads on the day of the
> election, urging people to write in Candidate Z instead of voting for
> Candidate X. Hundreds of thousands of people had already cast absentee
> ballots for candidate X, who now has zero chance of winning.  They
> complain that their vote is now meaningless, and file an emergency
> petition to have a court order that they can cast new
> ballots.  Is this
> an equal protection problem that would support such a court order?  I
> don't think it is, even remotely, and I don't think I'm suggesting "a
> remarkably formalistic and impoverished vision of equal protection"
> here, or in any way contradicting the EP holding of Bush v. Gore.
>
> In fact, I think the EP problem is created by what the
> Minnesota Supreme
> Court did.  Consider another hypothetical.  Suppose polls show a
> Republican candidate in New York to be ahead by a large
> margin over his
> principal Democrat challenger, 60-40%.  Suppose a number of voters
> decided to cast absentee votes for the Conservative party candidate
> instead of the Republican candidate in order to send a message to the
> Republican candidate that he needs to stay the conservative course,
> knowing that by doing so, they will not be risking the defeat of the
> Republican candidate because of his lead in the polls.  As
> election day
> draws closer, though, the Democrat challenger closes the gap
> significantly, and now the absentee voters feel that they
> need to recast
> their votes for the Republican.  A court, ignoring unambiguous
> provisions of state law, allows them to do so, asserting that without
> such an order the original absentee voters will be disenfranchised.
> Where is the EP problem here?  I suspect that Democrat voters (or the
> Democrat candidate himself) would have a legitimate claim that the
> mid-stream change in the rules violated their equal right to
> have their
> vote counted in accord with the rules that were in place when the
> election began.
>
> John Eastman
>
>
>
> -----Original Message-----
> From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
> Sent: Saturday, November 02, 2002 12:54 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
> >
>