Query: If "fundamental" rights are those necessary to "ordered liberty", as the USSC has held - Ordered liberty - Wikipedia. and the 15th Amendment (black men can vote), the 17th Amendment (direct election of Senators), the 19th Amendment (women can vote), the 23rd Amendment (DC gets at least partial democracy in the EC), the 24th Amendment (no poll tax) and the 26th Amendment (18 yos can vote) all expand voting by constitutional amendment (I count six amendment by my method), how can we say that US political culture, through the people, does not recognize the right to vote as fundamental, i.e., implicit in the concept of ordered liberty? If the answer is that all the people do not view it that way, Duh! That's why we have amended the Constitution 6 times, almost one-third of amendments after Bill of Rights, (which should be considered part of original passage in reality, and exactly 1/3 if you fold both prohibition amendments into one for purposes of what issues merit amendment which makes sense), because factions in power try to limit the franchise to others, and we have fought back against such limitations, declaring the franchise worthy of amending the Constitution (which is very difficult), to preserve. Obvious to me.
You know where I stand on this issue, BUT aren't the examples you cited mostly prohibitions against depriving classes of people the right to vote? Shouldn't the states be allowed to prescribe by what manner one may exercise that right? One state allows drop boxes, another one doesn't; one state allows early voting, another does not. I don't see those actions as infringing upon a fundamental right, but as each state's decision about how much to expand it. I agree that republican dominated states want to circumscribe the right to vote as narrowly as constitutionally allowed, but, looking at it neutrally, I don't find their actions unconstitutional. The only complaint left is that such actions fly in the face of the spirit of the right to vote in our modern society. I share that complaint and believe a liberal SCOTUS might find that any state action which has the intent and effect of hindering the right to vote is unconstitutional. I'm unaware of any such decision.
If the right is deemed fundamental, any governmental action circumscribing that right must be based upon a compelling governmental interest and narrowly tailored. None of these restrictions would come close to meeting that standard, and motivation would certainly matter.
While I still don’t completely agree, I greatly appreciate the tenor and context supporting your position. If more posts were like this here, it would be a much better board.
Fair enough. Here we go. Our history is replete with wrongful attempts to block the vote. We have not operated OK in this regard for 200 years
There are explicit constitutional protects pertaining to those aspects of voting rights. The fundamental rights analysis is one that applies for implicit protections. The Constitution acknowledges repeatedly that there is a RIGHT to vote. Thus, it is undoubtedly a fundamental right. However, the explicit protections for voting rights should confer a stronger and more expansive right than the implicit protections. Unfortunately, courts have not interpreted these amendments in a forceful or expansive manner.
where will the appeal go and is this a case the USSC would take? would they be originalists and support the right to vote or would they politically support the party that put them there? jmo, but I think they are starting to be concerned about public perception. at least I am hopeful they are
We have the same in Flagler County, Fzl with no problems. Every permanent resident of a county, etc voting in person should have a photo ID; they are not difficult to obtain for the vast majority of people. I think there should be reasonable limitations on drop boxes (government facilities only - government building, post office, fire station, LEO office/precinct), mail-in voting, and early voting. I voted early the last two elections and like it.
The appeal would go to the U.S. Court of Appeals for the Sixth Circuit. SCOTUS would follow. But no sane person who cares about the cause would appeal to this SCOTUS on this issue. Of course, Marc Elias's firm is litigating this case, so if the client is willing to pay, they might. But I doubt the client would be that foolish.
I'm not disputing that it's a fundamental right or that states may not restrict that right. What I wonder is if the right is restricted when a particular state decides NOT to do certain things which it previously did (but was never constitutionally required to do), e.g., provide drop boxes or allow early voting or voting by mail. It seems to me those are things some states have done to expand the scope of the right, but which are not constitutionally required and which other states have not done. If I understand Lawyer correctly, he seems to suggest that the expanded voting rights become explicit rights AND, one assumes, other states must also then grant the same rights. If he doesn't mean that, I wonder which rights he believes are now explicit and how they became so. I wish Congress would pass a new voting rights act which addresses these issues (and which SCOTUS would accept as constitutional) so that we would have nationwide uniformity. (While it's at it, it could pass a uniform gerrymandering act.) In any event, the discussion is interesting and takes me back decades to my law school days and Con. Law.
You bring up some interesting points. I may respond at length later, depending on if there's anything more to say. But very generally, I would say to that taking away a currently existing "right", as opposed to deciding not to expand, seems to me to change the analysis. And there might also be a minimum level of state "service" to voters. Here's an example that gets too little play, mostly because it's largely present in the West. Some Native American reservations are over 100 miles from the nearest voting site. There is a lesser version of this in some areas in the South in which they eliminate many precincts, requiring greater travel. Query, does the state that restricts mail-in voting have the obligation to make the ability to vote in person more practically accessible? What is the right distance? I have mentioned before that in my time working voting rights on a volunteer basis, all of the oldest machines were put in African-American precincts. They would inevitably break down more often, and it was simply attributed to equipment failure that could not be anticipated. Second, there were two recent attempts to introduce legislation, including the John Lewis Voting Rights Act. I used to know what the specific nonpartisan nonracist critiques were about problems in each, but that's part of the legislative process. There was no attempt to fix the issues in normal process because Republicans don't want to expand the franchise and there's enough Democrats that didn't want to fight it. Finally, non-legally, I think the right to vote should be as open as possible. The state should go out of its way to make voting easy and straightforward and there should be some significant degree of shame in trying to limit it.
No, my apologies for any confusion, that's not what I'm suggesting. I can clarify. We have explicit voting rights protections in the U.S. Constitution contained in various amendments, including the 14th, 15th, 19th, 24th, and 26th. We also have implicit voting rights protections. These arise under the Equal Protection Clause, First Amendment, and the Due Process Clause. The Due Process Clause, in particular, protects unenumerated fundamental rights. That is what I'm referring to as the implicit protection. My point is because the right to vote is fundamental, when a state wants to burden it, it should have to justify it. The dispute here is over whether we should apply that analysis when a state rescinds a means of voting access it had previously voluntarily provided (ex. early voting or vote by mail). My outlook is because the state is burdening voters' rights by rescinding access through that means, it should have to justify it. Others are taking the stance that doesn't make sense because the state could have just not offered it in the first place, which would be constitutional. That is a valid argument, and one favored by the judiciary today. My issue is that voting is unique in that it's a right the government controls entirely. If we use that rationale, the government will rarely have to justify its decisions to restrict voting rights. Because anything it does to improve access will always be voluntarily (unless it had previously denied access on one of the grounds the Constitution explicitly outlaws, like race, gender, and age). That's why I see that point of view as problematic. It makes voting a fundamental right in name only. In practice, governmental decisions to rollback voting access will never be closely scrutinized.
I agree with your last paragraph without reservation. Your examples were interesting and suggest how the give and take of ideas among people seeking the common good can do that. Too bad our once esteemed Congress cannot do that.
The GOP wants to curtail voting rights because lightly attended elections lean in their favor. They say it's to combat non-existent voter fraud but it's really to combat the opposition winning elections.
Why is it that anytime, anything is brought up about trying to ensure only citizens vote it is the GOP trying to reduce the number of citizens that vote? Can we all agree that we only want citizens to vote? What do we have in country, somewhere over 200-250 million potential voters? Wouldn't it be great if 200 million plus actually voted? If we agree on that then some form of ID is the best starting place to ensure that who is voting is who they are and can be checked to see if they are a citizen. Is this just too much to ask? Everyone on left, claims there is no voter fraud, if that is the case then some of these simple asks should help remove any doubt. With early voting and the drop boxes, it is ripe for corruption. If half the country feels we need more secure voting, why can't these noninvasive steps be put into place? Hell with the Jim Crow II laws (I jest) put into place in Georgia, voting participation actually increased.
Because only citizens currently vote with very few exceptions. These measures that are passed under the guise of making our elections safer only result in fewer votes by eligible citizens. The only reason half the country think our elections aren't secure is because their politicians are LYING to them.
Then why not pass these noninvasive measures, that I would dispute do not lower turnout, IE Goergia, and take the issue away?
