Monday, November 02, 2015
Response to Stephanopolis:
http://www.theatlantic.com/politics/archive/2015/11/a-feasible-roadmap-to-compulsory-voting/413422/
As is often the case, Nick Stephanopolis is wrong with his latest voting reform scheme,
but wrong in a way that is useful thought experiment. I'm not it all sure that he's serious about his proposal, but it's certainly not Smithian snark, more of an exploration of the hows and whys of voting.
He suggests that municipalities could try mandatory voting, and then the memetic fitness of the scheme would make it spread like wildfire, or at least at marijuana legalization speeds.
What he's wrong about includes at least the constitutional problems, both federal and state.
Voting shall be free and equal, reads most constitutions. A compelled vote is not free. Elections are not equal where on one side of the railroad tracks, a person must vote, because an ordinance says so, while on the other side one can't vote, perhaps because one doesn't have or won't show an ID.
But that's just on paper. In some states the free and equal clause is vestigial, either never litigated or given lax scrutiny. Do you know your state's landmark cases on the free and equal elections clause? In your state it might be called the free and open elections clause, or you might live somewhere else like New York where the text is unique, but has been given teeth by the courts.
There are issues of preclusion, home rule, public policy,and so forth, that any judge could rely to invalidate the compelled voting if they just didnt like it.
Meanwhile there are federal constitutional issues. The proposal arguable violates the first, fourth, maybe 5th, and probably 24th amendments. A poll tax for not voting would be a new one, and some court think only an exact duplication of the facts of Harman v Forssennius triggers 24th amendment review. But the better view is if you can't charge for voting, you can't charge for not voting either, because either approach interferes in the integrity of the election process.
What would the standard of review be under the First Amendment? Strict scrutiny under Norman v Reed? Strict scrutiny under Burson v Freeman? The Anderson v Celebrezze balancing test? The permissive scrutiny standard of Buckley v Valeo, or the even laxer Burdick v Takushi test?
Legal realists would ask, would the judges like this. I think not, but I'm often wrong. Much would depend on how the public felt about it. If universally accepted, the judges might go along for the ride. Somehow I doubt that would be the case. Even the liberal media would have issues.
Would there be religious accommodations? Conscientious objector status? Loopholes? Or maybe a city would water down such a proposal to remove all teeth and be merely hortatory.
Currently, I fight to be allowed to vote. I live in Indiana and my votes get tossed in the trash because I won't show ID, since to do so is an obvious 24th Amendment violation, as well as an unwarranted search and severe burden on my fundamental right to vote. But I'm a curmudgeon. Make it mandatory to vote and I'd be among the first to resist.
http://www.theatlantic.com/politics/archive/2015/11/a-feasible-roadmap-to-compulsory-voting/413422/
As is often the case, Nick Stephanopolis is wrong with his latest voting reform scheme,
but wrong in a way that is useful thought experiment. I'm not it all sure that he's serious about his proposal, but it's certainly not Smithian snark, more of an exploration of the hows and whys of voting.
He suggests that municipalities could try mandatory voting, and then the memetic fitness of the scheme would make it spread like wildfire, or at least at marijuana legalization speeds.
What he's wrong about includes at least the constitutional problems, both federal and state.
Voting shall be free and equal, reads most constitutions. A compelled vote is not free. Elections are not equal where on one side of the railroad tracks, a person must vote, because an ordinance says so, while on the other side one can't vote, perhaps because one doesn't have or won't show an ID.
But that's just on paper. In some states the free and equal clause is vestigial, either never litigated or given lax scrutiny. Do you know your state's landmark cases on the free and equal elections clause? In your state it might be called the free and open elections clause, or you might live somewhere else like New York where the text is unique, but has been given teeth by the courts.
There are issues of preclusion, home rule, public policy,and so forth, that any judge could rely to invalidate the compelled voting if they just didnt like it.
Meanwhile there are federal constitutional issues. The proposal arguable violates the first, fourth, maybe 5th, and probably 24th amendments. A poll tax for not voting would be a new one, and some court think only an exact duplication of the facts of Harman v Forssennius triggers 24th amendment review. But the better view is if you can't charge for voting, you can't charge for not voting either, because either approach interferes in the integrity of the election process.
What would the standard of review be under the First Amendment? Strict scrutiny under Norman v Reed? Strict scrutiny under Burson v Freeman? The Anderson v Celebrezze balancing test? The permissive scrutiny standard of Buckley v Valeo, or the even laxer Burdick v Takushi test?
Legal realists would ask, would the judges like this. I think not, but I'm often wrong. Much would depend on how the public felt about it. If universally accepted, the judges might go along for the ride. Somehow I doubt that would be the case. Even the liberal media would have issues.
Would there be religious accommodations? Conscientious objector status? Loopholes? Or maybe a city would water down such a proposal to remove all teeth and be merely hortatory.
Currently, I fight to be allowed to vote. I live in Indiana and my votes get tossed in the trash because I won't show ID, since to do so is an obvious 24th Amendment violation, as well as an unwarranted search and severe burden on my fundamental right to vote. But I'm a curmudgeon. Make it mandatory to vote and I'd be among the first to resist.
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