Combating Threats to Voter Freedoms

Transcription

1 Combating Threats to Voter Freedoms Chapter 3 10:20 10:30am The State Constitutional Tool in the Toolbox Article I, Section 19: Free and Open Elections James E. Lobsenz, Carney Badley Spellman There is no PowerPoint for this chapter Electronic format only: 1. Something From the State Constitutional Toolbox: ARTICLE 1, 19

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3 SOMETHING FROM THE STATE CONSTITUTIONAL TOOLBOX: ARTICLE 1, 19: By James E. Lobsenz 1 When searching for ways to combat threats to voter freedoms, in addition to the federal Voting Rights Act and the Fifteenth Amendment, the Washington Constitution provides an additional helpful tool. 2 Article 1, 19 provides: All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. While the right to vote is fundamental under both the United States and Washington constitutions, roughly thirty years ago in Foster v. Sunnyside Valley Irrigation District the Washington Supreme Court decided that art. 1, 19 goes further than the U.S. Constitution to safeguard the fundamental right to vote. 3 In two cases the U.S. Supreme Court held that the strict one-person, one-vote principle of Reynolds v. Sims 4 does not apply to certain special purpose municipal governments such as water districts. A political entity is a special purpose district if it has only limited governmental powers. If the entity does not have the power to impose taxes, enact general laws, or administer normal functions of government such as maintenance of the streets, schools, sanitation 1 Shareholder, Carney Badley Spellman, P.S., 701 Fifth Avenue, Suite 3600, Seattle, WA In the past three decades, since State v. Gunwall,106 Wn.2d 54, 720 P.2d 808 (1986), resort to independent state constitutional analysis has become more and more common. When there is a parallel federal constitutional counterpart to a state constitutional provision the Washington Supreme Court requires an analysis of six nonexclusive neutral criteria when deciding whether... the constitution of the State of Washington should be considered as extending broader rights to its citizens than does the United States Constitution. Id. at 61. However, [o]nce [the Supreme] court has established that a state constitutional provision warrants an analysis independent of a particular federal provision, a Gunwall analysis is unnecessary. Madison v. State, 161 Wn.2d 85, 84, 163 P.3d 757 (2007). As noted below, the Washington Supreme Court has already decided that art. 1, 19 provides greater protection to the right to vote than the federal Constitution provides, and moreover there is no federal constitutional counterpart to compare with art. 1, Wn.2d 395, 404, 687 P.2d 841 (1984) U.S. 533 (1964)

4 services, etc., then it is a special purpose entity. Such an entity is constitutionally permitted to limit those who can vote to special classes, such as landowners, 5 or to apportion the number of votes that a person can cast according to the assessed value of his land, provided such deviations from the strict one-person, one-vote rule are reasonable. 6 In Sunnyside the Washington Supreme Court considered a statute which only allowed landowners who were using their lands for agricultural purposes to cast a vote in irrigation district elections. The Court rejected the U.S. Supreme Court s federal constitutional approach finding that it was inconsistent with art. 1, 19 because the irrigation district s activities had a significant impact on persons other than landowners. The district also generated and supplied electricity to and derived almost all of its income from that activity. That income was then used to fund the district s primary function of providing water for agricultural irrigation. Thus, the cost of providing water to agricultural landowners was borne by many who had no vote in district elections. The Court held that even for special purpose districts, restrictions placed upon the right to vote were subject to strict scrutiny under art. 1, 19, and that limiting the right to vote to agricultural landowners was unconstitutional. 7 The Sunnyside opinion traces the provenance of art. 1, 19 to the Oregon Constitution, and notes that Oregon s free and equal elections provision was in turn adopted from the Indiana Constitution. 8 At least 23 states besides Washington have substantially similar or identical free and equal election clauses in their state constitutions. It appears likely that 5 Salyer Land Co. v. Tulare Lk. Basin Water Storage Dist., 410 U.S. 719 (1973). 6 Ball v. James, 451 U.S. 355 (1981) Wn.2d at Wn.2d at 405, citing The Journal of the Washington State Constitutional Convention, 1889, at 508 n.31 (B. Rosenow ed. 1962)

5 Pennsylvania was the first state to put such a clause in its constitution. 9 The exact meaning of the words free and equal is somewhat unclear. As Justice Utter notes in the unanimous Sunnyside opinion, at the constitutional convention there were two motions made to replace the word equal with another word. One delegate moved to change the word to open, and another moved to replace it with the word impartial. One delegate expressed his view that the words equal and free both meant the same thing. Both motions failed. 10 While Sunnyside deals with the issue of property qualifications for voting, there is no reason to think that the guarantees of free and equal voting are limited to this issue. It appears that one of the underlying concerns that motivated state constitutional framers to include such election clauses in their constitutions was to guard against voter intimidation, coercion, or deception, which could enable one group to steal an election by preventing certain voters from getting to the polls. Beyond being free to cast a vote, the word equal signifies that each citizen is entitled to cast a vote of equal weight to every other citizen s vote. In any election in which votes are diluted by fraud or coercion, the guarantee of equally weighted votes would be violated. One of the first interpretations of Pennsylvania s Election Clause makes it clear that the Pennsylvania Supreme court views its elections clause provision in this manner: This [part of the Constitution] means that every citizen shall have an equal right to cast a free ballot... An election, to be free, must be without coercion of every description. An election may be held in strict accordance with every legal requirement as to form, yet if... the voter casts the ballot as the result of intimidation, if he is deterred from the exercise of his free will by means of any influence whatsoever, although there be neither violence nor physical coercion, it is not a free and equal election, within the spirit of the constitution See, Pa. Const. of 1776, ch. I, section VII. The same clause now appears in Pa. Const. art I, Section Sunnyside, 102 Wn.2d at DeWalt v. Bartley, 146 Pa. 529, , 24 A. 185 (Pa. 1892) (emphasis added)

6 If this general principle that voters must be protected against all forms of voter coercion, intimidation or undue influence were to be endorsed by Washington courts then art. 1, 19 would become an even more powerful tool for striking down impediments to voter freedom. For example, consider how the constitutional validity of voter ID laws might be decided if it were challenged on state constitutional grounds. In Crawford v. Marion County Election Board, 12 plaintiffs brought a facial challenge to Indiana s Voter ID Law arguing that it violated the Fourteenth Amendment. The law, which required presentation of a photo ID in order to vote, was allegedly justified as an anti-fraud provision that prevented one person from impersonating a registered voter and casting that person s vote. Under the federal constitutional approach, strict scrutiny is not applied. Instead, the Supreme Court employs a balancing test in which the strength of the State s interests in having the law are weighed against the degree to which the right to vote was burdened. 13 A majority of six justices agreed that the burden imposed upon the right to vote was minimal, and since they viewed it as reasonable and nondiscriminatory, they upheld the law. Suppose, instead of challenging the law on Fourteenth Amendment grounds, the Crawford plaintiffs had challenged the law on state constitutional grounds, asserting that the law violated Ind. Const. art. 2, 1. Might the Indiana Courts have seen the issue differently? Perhaps the Indiana Supreme Court would have subjected the law to strict scrutiny, instead of applying the more lenient federal balancing approach. If the law had been subjected to strict scrutiny, it almost surely would have failed since it would have been impossible to show that there was compelling governmental necessity that justified the law, and that no less restrictive U.S. 181 (2008). 13 See Burdick v. Takushi, 504 U.S. 428 (1992)

7 alternative means was available to combat the (virtually nonexistent) problem of voter fraud. 14 Perhaps the local politics and makeup of the Indiana Supreme Court would not be favorable for such a state constitutional law challenge to Indiana s Voter ID Law. But in some states such a challenge will work, and in at least one State Pennsylvania a state Voter ID Law has recently been struck down on state constitutional law grounds. 15 Since Washington State now relies completely on mail-in balloting, the issue of the validity of Voter ID laws will not arise in Washington. But other problems and issues posing threats to voter freedom will arise. 16 When deciding how to challenge a particular election law or practice, plaintiffs lawyers would do well to remember art. 1, 19, and to consider bringing a state constitutional challenge, along with other challenges based upon federal statutes and federal constitutional provisions. ************ 14 The record contains no evidence of any such fraud actually occurring at any time in [Indiana s] history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. Crawford, 553 U.S. at See Applewhite v. Commonwealth, 617 Pa. 563, 54 A.3d 1 (2012), on remand Applewhite v. Commonwealth, 2014 WL (Pa. Commonwealth Ct. January 17, 2014) (enforcement of Voter ID law permanently enjoined because it violates Pennsylvania s free and equal elections guarantee. 16 For example, citizens who rent their homes are often prohibited from expressing their support for a political candidate by their landlords. In one case a residential tenant successfully relied (in part) upon art. 1, 19 as authority for the proposition that her landlord could not legally prohibit her from displaying in one of her windows an election sign showing her support for a particular candidate for Governor. See Paulson v. Seamark Properties, Inc., No (King County Superior Court (partial summary judgment order entered April 9, 1985), discussed in Lobsenz & Swanson, The Residential Tenant s Right to Freedom of Expression 10 UNIV. PUGET SOUND LAW REV. 1 (1986) - 5 -