[EL] ELB News and Commentary 3/25/14 -- Alabama violates Brandenburg?

Tue Mar 25 08:40:11 PDT 2014

Maybe we just all agree with you!
On Mar 25, 2014 11:22 AM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
wrote:

> Another issue on Alabama voter registration:
>
> Of course no one has any obligation to respond to any post, but I was
> surprised that no one responded to the one that I've pasted in just below.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
> *From:* "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
> *Date:* March 20, 2014 at 12:18:17 PM PDT
> *To:* "law-election at uci.edu" <law-election at uci.edu>
> *Subject:* *Unconstitutional provisions in Alabama state-specific
> instructions on National Voter Registration form?*
>
> The Alabama state-specific instructions on the National Voter Registration
> Form (
> http://www.eac.gov/assets/1/Documents/Federal%20Voter%20Registration_11-1-13_ENG.pdf)
> include the following requirement:
>
>
>
> 9. Signature. To register in Alabama you must:
>
> ...
>
> * swear or affirm to "support and defend the Constitution of the U.S. and
> the State of Alabama and further disavow any belief or
>
> affiliation with any group which advocates the overthrow of the
> governments of the U.S. or the State of Alabama by unlawful means
>
> and that the information contained herein is true, so help me God."
>
>
>
>
>
> Has anyone challenged this requirement? The "so help me God" language
> makes this an oath, not just an affirmation, despite the initial language
> of the paragraph; that raises an interesting First Amendment issue, as does
> the reference to God. The required disavowal of belief or affiliation seems
> unconstitutional under Brandenburg v. Ohio (1969). I realize that
> Brandenburg dealt with a criminal statute, and that the speech for which
> Brandenburg was prosecuted didn't call for the overthrow of the government.
> (Brandenburg said, "[I]f our President, our Congress, our Supreme Court,
> continues to suppress the white, Caucasian race, it's possible that there
> might have to be some revengeance taken.") Nevertheless, the Court grounded
> its decision on a broad "principle that the constitutional guarantees of
> free speech and free press do not permit a State to forbid or proscribe
> advocacy of the use of force or of law violation except where such advocacy
> is directed to inciting or producing imminent lawless action and is likely
> to incite or produce such action." A state can't deny a person the right to
> vote as a penalty for engaging in speech that is protected by the First
> Amendment. The Court in Romer v. Evans (1996) embraced that view, though
> perhaps in dictum:
>
>
>
> "Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), not
> cited by the parties but relied upon by the dissent, is not evidence that
> Amendment 2 is within our constitutional tradition, and any reliance upon
> it as authority for sustaining the amendment is misplaced. In Davis, the
> Court approved an Idaho territorial statute denying Mormons, polygamists,
> and advocates of polygamy the right to vote and to hold office because, as
> the Court construed the statute, it 'simply excludes from the privilege of
> voting, or of holding any office of honor, trust or profit, those who have
> been convicted of certain offences, and those who advocate a practical
> resistance to the laws of the Territory and justify and approve the
> commission of crimes forbidden by it.' Id., at 347, 10 S.Ct., at 302. To
> the extent Davis held that persons advocating a certain practice may be
> denied the right to vote, it is no longer good law. Brandenburg v. Ohio,
> 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). To the
> extent it held that the groups designated in the statute may be deprived of
> the right to vote because of their status, its ruling could not stand
> without surviving strict scrutiny, a most doubtful outcome."
>
>
>
> Communist Party of Indiana v. Whitcomb (1974) (Justice Brennan writing for
> five members of the Court with four justices concurring in the judgment on
> other grounds) held unconstitutional a similar disclaimer imposed as a
> condition for a party to have a place on the ballot for the 1972 general
> election.
>
>
>
> There are probably a lot of other relevant cases out there; I haven 't
> researched this point in any detail.
>
>
>
> Isn't it fairly clear that the Alabama disavowal requirement is
> unconstitutional?
>
>
>
> I wonder, though, how all this may fit with the constitutional requirement
> that officers of the state and federal governments swear (or affirm) an
> oath that they will support the Constitution. An argument that the First
> Amendment should be considered to have eliminated that requirement would be
> frivolous, wouldn't it? And see section 3 of the 14th Amendment. Can a
> state condition a **candidate's** eligibility on the **candidate's**
> commitment to make such an oath or affirmation if he or she is elected? Of
> course the Constitution does not require such an oath or affirmation as a
> condition on eligibility to vote.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
>
>
> Sent from my iPad
>
> On Mar 25, 2014, at 8:09 AM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
>
>    "After Ruling, Alabama Joins 2 States in Moving to Alter Voting Rules"<http://electionlawblog.org/?p=59656>
>  Posted on March 25, 2014 8:06 am <http://electionlawblog.org/?p=59656> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> NY Times<http://www.nytimes.com/2014/03/22/us/after-ruling-alabama-joins-2-states-in-moving-to-alter-voting-rules.html?action=click&module=Search&region=searchResults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry154%23%2Fhasen%2Fsince1851%2Fallresults%2F1%2Fallauthors%2Fnewest%2F>
> :
>
> Alabama says it plans to move ahead with a requirement for potential
> voters to show concrete proof of citizenship, in the first sign of a wider
> impact from a court decision<http://www.nytimes.com/2014/03/20/us/judge-says-us-must-help-states-enforce-voter-id-laws.html>on Wednesday ordering a federal elections agency to help Arizona and Kansas
> enforce their own such requirement.
>
> Alabama is one of the four states that have adopted the extra layer of
> proof for people registering to vote. With such rules under a legal cloud,
> it held off on carrying them out. Now that may change....
>
> Politics aside, the decision was a victory for the states in a turf battle
> over electoral rules. It is a legally murky area because the Constitution
> gives the federal government power over how elections are conducted for
> Congress and the presidency, but says the states can decide, within limits,
> who is eligible to vote.
>
> "I think this decision shifts the balance of power from the federal
> government to the states on how to run federal elections," said Richard L.
> Hasen, an expert on voting law at the University of California, Irvine.
> "This is one step in much larger battles, not only between Republicans and
> Democrats, but also between the federal government and the states."
>
> Many conservatives, citing rare reports of voter fraud, see the decision
> as a victory for common sense. They predict that more states will act to
> tighten registration procedures, complementing the more widespread recent
> drives to require picture identification at the time of voting and reduce
> early voting.
>
> "The Kansas decision is going to encourage more states to pass these kinds
> of requirements," said Hans A. von Spakovsky, a senior legal fellow at the
> Heritage Foundation, a conservative research organization. He asserted that
> registration by noncitizens was a genuine problem, and that more stringent
> rules would not deter legitimate voters.
>
>  <share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D59656&title=%E2%80%9CAfter%20Ruling%2C%20Alabama%20Joins%202%20States%20in%20Moving%20to%20Alter%20Voting%20Rules%E2%80%9D&description=>
>    Posted in election administration <http://electionlawblog.org/?cat=18>,
> Elections Clause <http://electionlawblog.org/?cat=70>, The Voting <http://electionlawblog.org/?cat=60>
>
>
> ...
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu
> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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