Saturday, February 28, 2015
NC ID, Curry case to go to trial on 4 of 6 counts.
http://www.southerncoalition.org/north-carolina-state-court-allows-photo-id-challenge-to-proceed-to-trial/
http://www.southerncoalition.org/portfolio-item/george-eppsteiner-staff-attorney/
The ruling is not online yet at moritz.
http://moritzlaw.osu.edu/electionlaw/litigation/CurrieV.NC.php
Found it
http://pulse.ncpolicywatch.org/wp-content/uploads/2015/02/Currie-Order-on-MJP.pdf
Plaintiffs had argued in count II that section 10 of the North Carolina Constitution's Bill of Rights
states "All elections shall be free." They construed this to mean free as in beer, not free as in speech.
Their argument was that voter ID imposes a cost, and is therefore not free to the voter, and so violates section 10. The state argued, no, it's free as in speech, that free means unconstrained, not under duress or the control of another.
Similarly, in count III the plaintiffs argued that voter ID imposed a property requirement for voting in violation of section 11 of the Bill of Rights.
The Court granted summary judgment on both these counts, holding that the state had the better of the argument: It's free as in speech, not beer, and an ID is not the kind of property the founders were referring to. This is not a direct quote. The court denied summary judgment on 4 other counts, so it will go to trial this summer. Plaintiffs will, most likely, and I'm just guessing, not appeal this ruling, either now or later, since they expect to prevail on one or more of the remaining counts.
I think the Court was right on section 11, the property clause, but wrong as to section 10, free elections.
What the state and the court were right about is that it's free as in speech, not beer. What they are wrong about is that voter ID does interfere in free elections, as the Missouri Supreme Court correctly ruled in Weinschenk.
Some of you still haven't read my 1994 thesis, "State Constitutional Protection of Democratic Pluralism", http://umkcthesis.blogspot.com/, but the free elections clause has a long history as a bulwark against the kind of shenanigans involved in voter ID. Some constitutions, like Missouri's, have it as "free and equal elections" while others like Indiana call it "free and open elections."
Unfortunately in League of Women Voters v Rokita, the League didn't cite to this clause, found in article II section 1 of the Indiana Constitution, but instead cited to Article I section 23, which the Indiana Courts have construed as requiring deference to the legislature.
There is no consensus on the exact standard of review required under a free elections clause.
I haven't looked closely at North Carolina. But often states, from about 1800 to 1950, looked primarily to these clauses to rule on topics such as voter registration, redistricting, allegation of election fraud, and so forth. These clauses were held to protect a fundamental right against partisan manipulation by legislatures.
The issue for me now is whether plaintiffs have waived the issue, by ineptly arguing it here, or can reclaim it further along the appeal process. That's not my area of expertise.
http://www.southerncoalition.org/north-carolina-state-court-allows-photo-id-challenge-to-proceed-to-trial/
http://www.southerncoalition.org/portfolio-item/george-eppsteiner-staff-attorney/
The ruling is not online yet at moritz.
http://moritzlaw.osu.edu/electionlaw/litigation/CurrieV.NC.php
Found it
http://pulse.ncpolicywatch.org/wp-content/uploads/2015/02/Currie-Order-on-MJP.pdf
Plaintiffs had argued in count II that section 10 of the North Carolina Constitution's Bill of Rights
states "All elections shall be free." They construed this to mean free as in beer, not free as in speech.
Their argument was that voter ID imposes a cost, and is therefore not free to the voter, and so violates section 10. The state argued, no, it's free as in speech, that free means unconstrained, not under duress or the control of another.
Similarly, in count III the plaintiffs argued that voter ID imposed a property requirement for voting in violation of section 11 of the Bill of Rights.
The Court granted summary judgment on both these counts, holding that the state had the better of the argument: It's free as in speech, not beer, and an ID is not the kind of property the founders were referring to. This is not a direct quote. The court denied summary judgment on 4 other counts, so it will go to trial this summer. Plaintiffs will, most likely, and I'm just guessing, not appeal this ruling, either now or later, since they expect to prevail on one or more of the remaining counts.
I think the Court was right on section 11, the property clause, but wrong as to section 10, free elections.
What the state and the court were right about is that it's free as in speech, not beer. What they are wrong about is that voter ID does interfere in free elections, as the Missouri Supreme Court correctly ruled in Weinschenk.
Some of you still haven't read my 1994 thesis, "State Constitutional Protection of Democratic Pluralism", http://umkcthesis.blogspot.com/, but the free elections clause has a long history as a bulwark against the kind of shenanigans involved in voter ID. Some constitutions, like Missouri's, have it as "free and equal elections" while others like Indiana call it "free and open elections."
Unfortunately in League of Women Voters v Rokita, the League didn't cite to this clause, found in article II section 1 of the Indiana Constitution, but instead cited to Article I section 23, which the Indiana Courts have construed as requiring deference to the legislature.
There is no consensus on the exact standard of review required under a free elections clause.
I haven't looked closely at North Carolina. But often states, from about 1800 to 1950, looked primarily to these clauses to rule on topics such as voter registration, redistricting, allegation of election fraud, and so forth. These clauses were held to protect a fundamental right against partisan manipulation by legislatures.
The issue for me now is whether plaintiffs have waived the issue, by ineptly arguing it here, or can reclaim it further along the appeal process. That's not my area of expertise.
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