Fwd: Re: Student voter registration
Edward A Hartnett
hartneed at shu.edu
Fri Oct 31 14:00:53 PDT 2008
Let me try again.
I don't claim that federal diversity standards of their own force govern
voter eligibility. Of course the states set the requirements for voting,
within federal constitutional requirements.
But many states -- perhaps all -- do rely on the legal concept of domicile.
And the legal concept of domicile is straightforward and common, so common
that it is a staple of first year civil procedure.
I have asked the list if anyone knows of any test used by anyone anywhere
in the nation for domicile that differs from the standard definition that
we teach in civil procedure. At least thus far, no one has pointed to one.
I am not surprised that no one has. The legal concept of domicile, as I
understand it, is constructed the way it is precisely in order to produce
the result that a person always has a domicile, and always has only one
domicile. The standard definition, imperfect as it is, performs that
And if we want to make sure that a person can vote in one place and only in
one place, a legal concept designed in this way fits the bill pretty
As a matter of democratic theory, what's wrong with saying that in order to
vote in a jurisdiction, a person must be sufficiently connected to it to
intend to remain indefinitely? Howard, are you suggesting, as a matter of
democratic theory, that everyone who is governed by officials must have a
vote in the selection of those officials? I am heading from NJ to Maryland
tomorrow. I will be governed by Delaware and Maryland on the trip. On
Tuesday, I plan to go to Pennsylvania. Over the course of the next week, I
will be governed by officials of all those states, but cannot vote for any
of them. We need some legal test to distinguish those with a sufficient
connection from those without a sufficient connection. Why isn't physical
presence with intent to remain indefinitely a reasonable legal test?
I repeat that I am not charging anyone with fraud. A person who is in a
state and has the intent to remain there indefinitely -- not necessary
permanently, but indefinitely -- has established a new domicile.
Undergraduate students, grad students, and temporary workers can all do
that; they just have to be there and form the requisite intent. Whether
they form that intent is a question of fact for each individual. At least
if one believes in free will, they control whether they have that intent.
And as Michael has pointed out, there is yet another step from (a)
registering to vote where one has not actually formed that intent to (b)
doing so fraudulently.
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
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
<schweber at polisci
10/31/2008 04:17 <crossf at mail.utexas.edu>
<emaltz at camden.rutgers.edu>, Edward
A Hartnett <hartneed at shu.edu>,
conlawprof-bounces at lists.ucla.edu,
conlawprof at lists.ucla.edu
Re: Fwd: Re: Student voter
What Frank describes below sounds about right. I was quite surprised
by Ed's suggestion that federal court standards for diversity
jurisdiction apply in all states to determine domicilability,
particularly with respect to eligibility for voting. Article II is
pretty clear about who determines those qualifications, and it is not
the federal courts.
Re Earl's comments, I'm not entirely sure what the problem is with a
"fielder's choice." If I live 9 months out of the year in one state and
3 in another, do I not have a stake in the governance of both? I agree
that students are in the same position as workers who spend 9 months out
of the year in one state and 3 in another. How does that help clarify
the situation? Should workers temporarily located in one state for 9
months have to travel back to the state they came from in order to
vote? Note that if I have moved from job to job and never established
an intent to remain "indefinitely" -- conceding that "indefinitely" does
not mean "forever," I may still have every intention of moving on with
the next contract -- I would be required to travel to the state in which
my parents had lived at the time I turned 18, regardless of whether they
or I retain any connection to that jurisdiction whatsoever.
Let's see. I go to college, but Earl says my domicile remains my
parents' state for the five years I am an undergraduate. On to law
school -- no change. Ambitions of scholarship dancing in my head I
enroll in a PhD program, get married, have a couple of children. Throw
in a judicial clerkship, a stint in Teach for America. At every stage,
I intended to move on once my current activity was completed, so I am
still domiciled in my parents' state. And if anyone suggest otherwise
we should all be"outraged" at the attempt to perpetuate a massive
David Bernstein's in-state tuition/domicile congruence proposal for
students makes some sense as a policy choice that states could choose
(Saenz v Roe concerns aside), but it's not the only one. Obviously
various rules -- including the presumption Frank describes -- could be
devised to limit the choice.
But we have come a long way from bright line Blackstonian rules and
accusations of widespread voting fraud. The rules are far from bright
or clear, they vary by state, they are not necessarily coincident with
Blackstone, and to cry "fraud" every time someone wants to register a
college student to vote is despicable. For starters, since fraud
includes an intent element, it implies that the person registering the
student knows the state of the law on the question -- something the
assembled worthies of this list have as yet been unable to conclusively
determine. Those are pretty smart vote fraud perpetrators!
As a democratic theorist of sorts, I find the utter lack of concern with
whether citizens are able to vote for the officials who will govern them
rather disquieting. I'm not saying there is a perfect legal solution,
but we should at least be willing to pay some minimal lip service to the
idea that we are trying to enhance democracy rather than limit the
participation of college students.
Frank Cross wrote:
> A concededly very quick google suggests that there is no brightline
> rule. Nonresident students are presumed not domiciliaries, but I find
> various statutes suggesting that they may obtain domicile in the
> state. The standards for residency and domicile are not identical. I
> don't think this gives students a complete fielder's choice, as they
> must overcome the presumption. However, it would seem to be a
> question of state law choice, so a fielder's choice would seem to be
> legally allowed, if it were so.
> I kind of doubt anyone takes the position that they can vote in two
> At 02:12 PM 10/31/2008, earl maltz wrote:
>> Who "forced" them to live there. Students stand in no different
>> than persons who work temporarily in other states.
>> The rules advocated by Howard and others would essentially give
>> students a
>> "fielder's choice" about where to vote (unless, of course, one takes the
>> position that they can vote in two places.
>> At 12:55 PM 10/31/2008 -0500, Howard Schweber wrote:
>> >> Further, a domicile once
>> >>established continues unless and until a new one is acquired.
>> >>Consequently, there is a presumption in favor of an established
>> >>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
>> >to remain indefinitely" is too simply by half. The real definition
>> >something like this:
>> >"domicile is the last location in which a person established an
>> >to remain indefinitely as an adult, or in the absence of such a
>> >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
>> >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
>> >So at that point the question is either purely descriptive -- what
>> is the
>> >law in a particular state? (my personal thanks to Michael Massinter
>> >supplying Ohio's statutory definitions) -- or it is normative. Earl
>> >Malz's call for "outrage" has obvious normative elements. So let's
>> >about this.
>> >The whole point of voter qualifications is to ensure that the people
>> >will be governed by officials are the ones who elect them. Students
>> >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"
>> >be directed at those who would attempt to compel otherwise qualified
>> >citizens to live in a jurisdiction in which they are governed by
>> >in whose elections they had no say whatsoever.
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> Frank B. Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> McCombs School of Business
> University of Texas
> CBA 5.202 (B6500)
> Austin, TX 78712-0212
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