Student voter registration

Fri Oct 31 09:22:05 PDT 2008

	I agree that summary affirmances are rulings on the merits; but
they have "precedential value only as to 'the precise issues necessarily
presented and necessarily decided.'"  Metropolitan Life Ins. Co. v.
Ward, 470 U.S. 869 (1985).  Given the peculiar situation in Symm --
involving a special questionnaire addressed to college students, and
finding a Twenty-Sixth Amendment violation -- can we really say that the
summary affirmance necessarily presented and decided the broad question
of whether students have a constitutional right to vote wherever they
attend college, even when they lack the intent to remain in the state
indefinitely?  

	This is even clearer if we agree -- as I think we must -- that
applying a simple categorical rule that people may only vote when they
have the intent to remain in the state indefinitely would not violate
the Twenty-Sixth Amendment, even though most of the people who are in
the state but don't intend to remain indefinitely are likely to be
relatively young.  The argument against such a rule, I take it, isn't a
Twenty-Sixth Amendment argument but rather some sort of a Fourteenth
Amendment argument.  But if that's right, then I can't see how Symm can
be helpful (much less binding) precedent on the question, since it's
clear that the Fourteenth Amendment issue was not necessarily presented
and decided there.

	Eugene


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of John Q. Barrett
	Sent: Friday, October 31, 2008 8:35 AM
	To: conlawprof at lists.ucla.edu
	Subject: RE: Student voter registration
	
	
	Margo is plainly correct that Symm v. United States, 439 U.S.
1105 (1979) (mem.) was a Supreme Court decision on the merits.  The
Court affirmed the District Court order enjoining a county registrar of
voters from requiring some registrants to complete his "residency
questionnaire" but, by acting summarily, the Court did not address the
District Court's reasoning.  Justice Rehnquist's dissenting opinion
(joined by Chief Justice Burger), on jurisdictional grounds, states
explicitly that the Court was making, pursuant to statutory requirement,
a merits decision:  "this case is here on direct appeal from the
decision of a three-judge District Court [and] we are obligated to
decide the merits of cases which Congress allows a party to bring here
by appeal, regardless of their importance...."  439 U.S. at 1107
(emphasis added).

	 
	Please also note what this case was about, according to Justice
Rehnquist:  LeRoy Symm was the tax collector and ex officio voting
registrar of Waller County, TX, a small county west of Houston where a
slight majority of the people in 1976, when this case started, where
"Negro."  Waller County was (and is) home of Prairie View A&M
University, a historically black college.  When people in Waller County
registered to vote using the State of Texas voter registration form,
those who were known to Symm and his deputy as county residents, along
with those who were listed on the county's property tax rolls, were
registered routinely.  Other registrants were "required to complete a
residency questionnaire, which asks whether the applicant is a college
student and, if so, inquires into the student's home address, property
ownership, employment status, future plans, and so forth."  439 U.S. at
1105.  In October 1976, the (Ford Administration) Department of Justice,
led by Attorney General Edward H. Levi, sued Symm, Waller County, Texas
and state officials, alleging that the questionnaire violated Prairie
View students' statutory voting rights and constitutional rights under
the 14th, 15th and 26th Amendments.  The District Court found that the
questionnaire violated the 26th Amendment and entered a permanent
injunction.  The Supreme Court summarily affirmed that judgment.

	 
	John

	 
	Professor John Q. Barrett

	St. John's University School of Law

	Homepage
<http://new.stjohns.edu/academics/graduate/law/faculty/profiles/Barrett>


	________________________________

		From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Margo Schlanger
	Sent: 2008-10-31 10:08
	To: conlawprof at lists.ucla.edu
	Subject: Student voter registration

	 
	I don't think I understand -- why WOULDN'T we draw inferences
from a summary affirmance?  It's not a denial of cert. (as Chief Justice
Rehnquist emphasized in dissent, in Symms) -- it's a ruling on the
merits.  

	 
	In addition, where you spend your summers hardly determines your
domicile, or there's be a lot of NYC psychiatrists with domiciles in
Cape Cod.  When I lived in New Haven, as a student, I registered to vote
in New Haven.  It was my community; I followed its politics, I payed
taxes in Connecticut, my car was registered there.  I could go on.
Fraud?  Throwing around accusations of fraud seems WAY overblown here
(not to mention wrong on the merits).  I might even say it's outrageous
(at least there's MY outrage).  And talking about "home states" assumes
the answer.   

	 
	Margo

	 
	___________________________________ 
	Margo Schlanger
	Visiting Professor of Law
	University of Michigan Law School 
	Professor of Law & Director, Civil Rights Litigation
Clearinghouse 
	Washington University in St. Louis, School of Law
	e-mail: mschlanger at wulaw.wustl.edu
<mailto:mschlanger at wulaw.wustl.edu>  
	web: http://schlanger.wustl.edu <http://schlanger.wustl.edu/>  

	 
	________________________________

		From: conlawprof-bounces at lists.ucla.edu on behalf of
Earl Maltz
	Sent: Fri 10/31/2008 9:13 AM
	To: conlawprof at lists.ucla.edu
	Subject: Student voter registration

	Many thanks to those who pointed me to the summary affirmance in
the
	Symms case, which is apparently the decision on which the
mainstream
	media is relying in asserting that students have a
constitutional
	right to vote wherever they attend college.  Even to the extent
that
	one can draw any inferences from a summary affirmance, it is
clear
	that the decision does not establish any such rule.
	
	Here's the larger point.  While the students themselves don't
know
	any better, it seems to me that those who are encouraging
students at
	private colleges like Kenyon (the subject of the Time magazine
piece)
	to register and vote in Ohio (a battleground state) rather than
their
	home states are chargeable with knowledge of the law, and thus
are
	engaged in systematic voting fraud (most Kenyon students are
from out
	of state, and many return home each summer, so cannot possibly
be
	domiciliaries of Ohio).  Where's the outrage?
	
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