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

Tue Mar 25 14:44:09 PDT 2014

Thanks, Sam. But if so, where is the action to enjoin this requirement, or to require that it be removed from the voter registration form?

Could there be a facial challenge, as I suspect, given the First Amendment context, or would there have to be someone who actually can't meet the requirements? Would the necessity for a challenger to identify himself or herself to establish as-applied standing suggest that a facial challenge should be entertained?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Samuel Bagenstos [mailto:sambagen at umich.edu]
Sent: Tuesday, March 25, 2014 8:40 AM
To: Scarberry, Mark
Cc: law-election at UCI.edu; Rick Hasen
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<mailto: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<mailto:Mark.Scarberry at pepperdine.edu>>
Date: March 20, 2014 at 12:18:17 PM PDT
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto: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 92697-8000

949.824.3072<tel:949.824.3072> - office

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