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

Tue Mar 25 08:56:17 PDT 2014

OK. I'll take a shot at it. The Declaration of Independence says the
overthrow of the government is a right and a duty. So, what constitutes the
unlawful overthrow? Does belonging to a group that holds a position that
claims there can be a better form or system of government constitute
advocacy of the overthrow. I think in this case the issue may be so clear as
to beg the need to disagree with the posting.

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel
Bagenstos
Sent: Tuesday, March 25, 2014 8:40 AM
To: Mark Scarberry
Cc: law-election at UCI.edu
Subject: Re: [EL] ELB News and Commentary 3/25/14 -- Alabama violates
Brandenburg?

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_11-1-1
3_ENG.pdf>
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:

 <http://electionlawblog.org/?p=59656> "After Ruling, Alabama Joins 2 States
in Moving to Alter Voting Rules" 

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=searchR
esults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch
%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSear
chSubmit%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.

<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=>
<share_save_171_16.png>

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 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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