Of course section 2 of the 14^th 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 14^th 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 19^th & 26^th Amendments could require that section 2 of the 14^th 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.

 

 

 

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 Levitt

Associate Professor of Law

Loyola Law School | Los Angeles

919 Albany St.

Los Angeles, CA  90015

213-736-7417

justin.levitt@lls.edu

ssrn.com/author=698321

On 10/14/2010 10:38 AM, Scarberry, Mark wrote:

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