Disfranchising Wellstone absentee voters

[Eastman, John]

Bryan,

 

You should look at the Minnesota statute.  Is expressly - an
unambiguously - states that when there is a vacancy in the nomination,
"Absentee ballots that have been mailed prior to the preparation of
official supplemental ballots shall be counted in the same manner as if
the vacancy had not occurred."  MN. Stat. Sec. 204B.41.  Changing the
rules of an election mid-stream is a much greater problem, IMHO.

 

John Eastman

 

 

 

 

-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU] 
Sent: Thursday, October 31, 2002 7:29 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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