Fwd: Re: Student voter registration

Fri Oct 31 11:45:25 PDT 2008

Do the statutory requirements for voting vary from state to state?  Sure.

Does the meaning of domicile vary from state to state?  Not that I know of.
The quote I provided is not from Blackstone, but from Friedenthal, Kane, &
Miller's hornbook on civil procedure.  Federal courts exercising diversity
jurisdiction apply that test of domicile every day.  Does anyone know of
any other test used by anyone anywhere in the nation for domicile?

Does the definition of domicile produce some weird results?  Sure.  No
question about it.  Someone may be domiciled in a place where they no
longer live.  Those familiar with diversity jurisdiction are not surprised
by that at all.

If all states were to choose to condition voting on domicile would that
produce "a class of U.S. citizens who are not able to vote anywhere"?  No.
Everyone would be eligible to vote where they were domiciled.

Is conditioning voting on domicile a good idea?  Maybe not, because it can
produce weird and inconvenient results.  (It does not produce all that many
weird and inconvenient results because, as Paul Johnson has noted,
indefinitely does not mean permanently.)

But notice that a rule based on residence might also produce weird results.

For example, since people can have multiple residences, but can only have
one domicile, it is possible to imagine someone being eligible to vote in
more than one state.  Indeed, does anything in Ohio law prohibit an Ohio
resident from voting in Ohio and in another state?  Even if Ohio currently
does bar such multiple voting, is there anything in the constitution that
would prevent (say) New York and Florida from choosing to allow their
residents to vote, without disqualifying them based on voting elsewhere, so
that snowbirds could vote in both New York and Florida?

Sandy -- and many others -- think the electoral college ridiculous.  But
wouldn't a move to a popular vote system, without simultaneously taking
away the power of states to allow a broader electorate than one fixed at
the national level, invite all kinds of gamesmanship by the states?  If you
are comfortable with the standards that you think the nation would
establish, you might be content with this.  Yet some -- perhaps recalling
that women's suffrage moved from the states to the nation -- might not be
so sanguine about preventing states from allowing broader suffrage than the
nation as a whole was willing to tolerate.

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335

             Howard Schweber                                               
             <schweber at polisci                                             
             .wisc.edu>                                                 To 
                                       Edward A Hartnett                   
             10/31/2008 01:56          <hartneed at shu.edu>                  
             PM                                                         cc 
                                       conlawprof at lists.ucla.edu,          
                                       conlawprof-bounces at lists.ucla.edu,  
                                       earl maltz                          
                                       <emaltz at camden.rutgers.edu>         
                                                                   Subject 
                                       Re: Fwd: Re: Student voter          
                                       registration                        

>  Further, a domicile once
> established continues unless and until a new one is acquired.
> Consequently, there is a presumption in favor of an established domicle
> that must be overcome by a party seeking to show a change in domicle.

Sure, which only points to the fact that Earl's description of
"intention to remain indefinitely" is too simply by half.  The real
definition goes something like this:

"domicile is the last location in which a person established an
intention to remain indefinitely as an adult, or in the absence of such
a location the last domicile of their parents as a minor."

Which leads to some odd results.  If I leave home for college, and then
spend the rest of my life moving every couple of years and never
establish an intention to remain anywhere indefinitely -- say I follow
seasonal contracts -- presumably I may retain my parents' domicile for
the rest of my life.

The real points, of course, are two:

1) different states define the specific rules differently, so quoting
"hornbook law" definitions out of Blackstone is not really very helpful,
and

2)  It would be unacceptable to have a rule that would result in the
existence of a class of U.S. citizens who are not able to vote anywhere.

So at that point the question is either purely descriptive -- what is
the law in a particular state?  (my personal thanks to Michael Massinter
for supplying Ohio's statutory definitions) -- or it is normative.  Earl
Malz's call for "outrage" has obvious normative elements.  So let's
think about this.

The whole point of voter qualifications is to ensure that the people who
will be governed by officials are the ones who elect them.  Students who
plan to spend four, five, or more years in a state will be governed by
the officials elected in that state for at least 9 months out of every
12.  Students may be in that position for the entirety of the elected
officials' terms (in the case of representatives) or some portion
thereof.  Regardless, from a democratic perspective the "outrage" should
be directed at those who would attempt to compel otherwise qualified
U.S. citizens to live in a jurisdiction in which they are governed by
officials in whose elections they had no say whatsoever.

hs