| Subject: Re: [EL] Reducing Congressional representation due to disenfranchisement of military personnel? |
| From: Kirsten Nussbaumer |
| Date: 10/14/2010, 8:05 PM |
| To: "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu> |
| CC: Justin Levitt <Justin.Levitt@lls.edu>, Election Law <election-law@mailman.lls.edu> |
Agreed, it’s a terrible blot on Congress’s record that it never enforced section 2 of the 14th even when racial disenfranchisement was intentional and pervasive. No doubt, it’s also a blot on Congress and the states when servicemembers are denied the effective right to vote (though some credit is due for a long history of remedial legislation in this area, most recently the MOVE Act and aggressive implementing legislation by some of the states).
So Mark’s proposal that Congress might be lobbied to finally start enforcing section 2 today (a provision written in mandatory language after all!)--even for disenfranchisement that results from simple maladministration is really intriguing. Respectfully, however, I only find Mark’s proposal even plausibly consistent with text, history and good policy if it’s taken in the universalizing direction that was suggested by Justin and Candace.
First, as a factual matter, I don’t see how the problem of military ballots can be cast as sui generis (even if it’s morally extra-troubling to deny the vote to people who risk their lives in the name of their country). Even if we use Mark’s criterion--only concerning ourselves with vote denials that result despite the would-be voter’s “best efforts” to vote--his example of the person who is denied the effective vote because her car has broken down seems like a poor comparison. Instead, think of the person who could not vote because there was an unforeseen 8-hour line due to insufficient poll-workers, the voters whose votes were never counted because of machine malfunction and lack of a paper trail, overseas non-military voters whose ballots got lost in the mails, the person who does not vote because of a wrongful match with a felon database (and perhaps whose provisional ballot does not get counted), etc. In other words, if section 2 were employed today in order to target non-intentional abridgement of the right to vote, surely the universe of denied voters is a much, much larger set than the disenfranchised military targeted by Mark’s proposal (even granted there might be significant interpretive ambiguities about which abridgements should count as such).
Second, if it’s agreed that the disenfranchised servicemembers are just a subset (albeit an important subset) of a larger disenfranchised class, then it sounds like Mark is advocating the legitimacy of selective enforcement of section 2. This can’t be right as a matter of good policy. While I have no doubts about Mark’s benign motives and nonpartisan intent, selective enforcement could, over time, create incentives for congressional majorities to selectively define the disenfranchised group and corresponding apportionment penalty in whichever way serves partisan, incumbent or geographic interests.
Third, constitutional history and text seem to me (on first consideration) to run against allowing this sort of bad policy of selective enforcement. Here, I will only speak with confidence about the history behind the apportionment provision of the original constitution, art, I, cl. 2, section 3. Many at that time said it was important to constitutionally “fix” the apportionment basis against discretion and they claimed that the constitution had in fact achieved this fixity. (Caveat: some thought that fixity had not been properly respected in the related text that gives Congress significant discretion about the total number of representatives.) Sure, Congress would be legislating about apportionment but it would be using a (mostly) fixed formula (just as the Houses of Congress could use their discretion to judge the qualifications of their members but only according to a constitutionally-fixed list of qualifications).
I make no claims about what the adopters of the 14th amendment might have believed about this 18th-century fixity tradition. But the text of section 2 of the 14th strikes me (again, thinking about this for the first time) as manifestly inconsistent with any selective enforcement. Mark points to the very broad language in section 2 about abridgment. He makes a case that this is broad enough to encompass the military example. Other language in section 2, however, reads to me like it requires universal application--with discretion to do anything more partial intentionally left off the table. “When the right to vote… is denied to any of the male inhabitants…, or in any way abridged,.. the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number…” This is awfully mechanistic-sounding language, and it seems to require coverage of “any” of the relevant disenfranchised, not just some of them. (Also, I do not see how the Congressional Elections Clause helps in making the case for selective enforcement since it does not provide a discretionary power over interstate apportionment, and--since the 14th covers state elections, not just federal--the Clause isn’t needed to justify congressional use of section 2.)
In sum: A section 2 penalty based on the military ballot problem alone? A hard sell I think. But if Mark's proposal is really about resurrecting section 2 in some more universal way, this could be very different.
best,
Kirsten
Of course section 2 of the 14th Amendment has never been enforced, even when there was much more egregious disenfranchisement of African Americans. Note, however, the broad language of section 2, which refers to instances in which “the right to vote is denied … or in any way abridged” [with respect to certain elections and with regard to male citizens* who are at least 21 and not rebels or criminals]. A failure to make ballots available in time for military personnel to cast a ballot, despite the best efforts of the military personnel, would seem to be at least an abridgment of the right to vote.
This would seem to be distinguishable from a case, for example, in which a person, due to a car breakdown, did not get to the polls before they closed; that inability to vote would not, I think, be the state’s doing. The same would be true for an inability to vote due to a failure to register in time or due to other acts of the would-be voter.
Note that Congress does have power per Article I, sec. 4, clause 1, to set regulations for congressional elections; to the extent states ignore those regulations and thereby abridge the right to vote of military personnel , it does not seem far-fetched to think that section 2 of the 14th Am could be invoked. This is an opportune time for such a claim to be made, inasmuch as the census is now being completed. There then would be an issue whether section 2 should be taken to reduce the population count by a certain percentage -- in which a reduction of even a very small amount could make the difference in which state receives a congressional seat – or whether it should be taken to reduce the number of congressional seats by a certain percentage, in which case a reduction of a very small amount would not likely deny a state a seat. (A tenth of a percent reduction, for example, in a state’s congressional delegation that otherwise would have 20 seats would only be a reduction of .02 seats, and I suppose 19.98 seats would be rounded up to 20; but perhaps it would be truncated to 19.)
Mark Scarberry
Pepperdine
* It would seem that the 19th & 26th Amendments could require that section 2 of the 14th Amendment be applied in a gender neutral way, and to voters at least 18 years of age rather than 21, but that’s not something I’ve analyzed in any depth.
From: Candice S. Hoke [mailto:shoke@law.csuohio.edu]
Sent: Thursday, October 14, 2010 2:26 PM
To: Justin Levitt
Cc: Scarberry, Mark; Election Law
Subject: Re: [EL] Reducing Congressional representation due to disenfranchisement of military personnel?
As important as it is to accord military voters the right to cast valid ballots that are counted, Justin is obviously correct that no constitutionally valid distinction can be offered between eligible military voters and other voters.
Further: while the MOVE Act is a valuable advance for overseas military and civilian voters, it is again an instance of well-intended Federal election legislation that did not accord sufficient time for careful, complete, and timely implementation.
Enacted in December 2009, the Act intruded into a federal election administrative cycle that had already commenced. Federal election cycles are planned on a 12-18 month schedule of tasks. Election budgets must be calculated, proposed and approved well in advance of the cycle, according to local law.
Perceiving only important services to accord underserved overseas voters (and no injuries that could accrue), the Act imposes on State and local election offices duties to set up the infrastructure for electronic voter registration, absentee ballot application, and blank ballot transmission in addition to preparation of ballots 45 days in advance of the election. 42 U.S.C.A. § 1973ff-1 Eventually these will be wonderful advances -- after election offices have sufficient time to devote to assessing design, installation, and functionality, and to conducting testing to ensure that the electronic election service systems function reliably and securely. But that's not this 2010 election. It's a scramble to try to meet the Act's laudable requirements, and that's not wise when trying to launch new software for critical functions.
Other MOVE Act problems: (1) By imposing these electronic support requirements with an exceptionally short implementation period, the States and localities faced premium pricing from vendors with appropriate software. (2) Many jurisdictions do not have an IT staff or budget for IT supplying these services, and no website. Centralization of election functions will likely result-- which raises other worries. (3) The software packages for implementing MOVE Act requirements have not received the usability, security, and reliability testing and validation that one might consider essential prerequisites before asking military & other overseas voters to exercise their fundamental constitutional franchise rights. (4) We may find ourselves repeating the HAVA experience, where too ambitious timetables led to the rapid purchase of electronic voting machines later shown to be seriously flawed. But when better products and more time were available, the funding had largely disappeared.
Unquestionably, the MOVE Act legislated many superb advances that ultimately will benefit overseas voters dramatically. But its timetables are too aggressive for delivering those benefits in a reliable manner in 2010. (Will be posting my MOVE Act + Internet Voting article on SSRN)
Prof. Candice Hoke
C|M|Law, Cleveland State University
Justin Levitt wrote:I certainly want to provide every available incentive for eligible military voters to be able to cast valid ballots that are counted. But would this abridgment of military voters' right to vote be constitutionally distinct from the abridgment of other eligible voters' right to vote based on other state electoral regulations that increase the difficulty that those electors have in casting valid ballots? Put differently, should state representation be reduced across the board by the proportion of (registered) electors who attempt to cast a valid ballot but do not, military or otherwise?
Justin
--Justin LevittAssociate Professor of LawLoyola Law School | Los Angeles919 Albany St.Los Angeles, CA 90015213-736-7417justin.levitt@lls.edussrn.com/author=698321
On 10/14/2010 10:38 AM, Scarberry, Mark wrote:Cross-posted to the conlawprof list:
Glenn Reynolds posted the following item on his Instapundit blog (http://pajamasmedia.com/instapundit/107920/):
"FIRST NEW YORK, NOW THIS: Military ballots may not count in Illinois. [http://www.wlsam.com/Article.asp?id=1985148&spid=]
"The great way to address this would be to dock states a percentage of their total federal funding to match the percentage of military ballots that are not counted."
Reducing federal funding would be fine, but what about reducing Congressional representation as determined by the 2010 census per section 2 of the 14th Amendment?
Mark Scarberry
Pepperdine
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