Under these state laws, individuals may vote early on a voting machine or submit absentee ballots in person.. Cepulonis and Murphy filed suit together in superior court, asking for a CLA
Trang 1efforts“necessary and essential to the prosecu-tion of the war.”
Whereas the five defendants in Abrams were released on BAIL during March 1919, the Supreme Court issued two decisions upholding the convictions of several other antiwar protes-tors In the first case, the Court affirmed the convictions under the 1917 ESPIONAGE Act
SCHENCK V.UNITED STATES, 249 U.S 47, 39 S Ct
247, 63 L.Ed 470 (1919) In the other case, the Court affirmed the convictions under the 1918 Sedition Act Debs v United States, 249 U.S 211,
39 S Ct 252, 63 L.Ed 566 (1919) Both decisions were unanimous, and both decisions were written by Justice Holmes
In Schenck, Holmes articulated what has become known as the “clear-and-present dan-ger” doctrine, a doctrine by which the constitu-tionality of laws regulating subversive expres-sion are evaluated in light of the First Amendment’s guarantee of free speech “The question in every case,” Holmes wrote in Schenck, “is whether the words used are used
in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent It is a question
of proximity and degree.”
In Schenck Holmes concluded that the government did not run afoul of the Free Speech Clause in suppressing the protestors’ antiwar expression, because Holmes said that when“a nation is at war many things that might
be said in time of peace are such a hindrance to its effort that their utterance will not be endured
so long as men fight and that no court could regard them as protected by anyCONSTITUTIONAL
right.” Nor was Holmes’s opinion in Schenck influenced by the possibility that the antiwar protests had no practical effect in changing the minds of passersby “If the act (speaking, or circulating a paper,), its tendency and the intent with which it is done are the same,” Holmes reasoned in Schenck, “we perceive no ground for saying that success alone warrants making the act a crime.”
Writing for the majority in Abrams, Justice
JOHN H.CLARKEechoed Holmes’s reasoning from Schenck The purpose of the pamphlets written
by Abrams and his comrades was to “excite” riots, sedition, and disaffection with the war, Clarke wrote Distributed at a time when World War I was at a “supreme crisis,” Clarke continued, the pamphlets’ call for a general strike among munitions workers would neces-sarily have hindered the U.S war effort As a result, Clarke concluded that Abrams’s pamph-lets created a clear and present danger of
“defeating the military plans of the government
in Europe.”
Holmes dissented from the Abrams’s major-ity’s application of the same clear and present danger test Holmes himself had formulated just eight months earlier Holmes still agreed that the government’s power to SUPPRESS speech is greater in times of war than in times of peace,
“because war opens dangers that do not exist at other times.” But “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes cautioned
“To allow opposition by speech,” Holmes now thought,“seems to indicate that you think the speech impotent, as when a man says that he has squared the circle.” ACIVIL WARveteran who had joined the Union Army in large part due to
Defendants in
Abrams v United
States prior to their
1921 deportation to
Russia Clockwise
from center, Molly
Steimer, Samuel
Lipman, Hyman
Lachowsky, and Jacob
Abrams.
28 ABRAMS V UNITED STATES
Trang 2his support for the ABOLITION movement,
Holmes reminded readers that“time has upset
many fighting faiths,” and, accordingly, “the
ultimate good desired is better reached by free
trade in ideas—that the best test of truth is the
power of the thought to get itself accepted in
the competition of the market, and that truth is
the only ground upon which their wishes safely
can be carried out That at anyRATEis the theory
of our Constitution.”
Holmes then moved to his application of the
clear-and-present-danger test In CIVIL LAW,
Holmes observed that defendants may be held
liable for all the foreseeable consequences of their
negligent behavior Not so in theCRIMINAL LAW,
Holmes said, where a crime is not normally
committed unless done“with intent to produce a
consequence[and] that consequence is the aim of
the deed.” But intent alone is not the only factor
critical to a court’s First Amendment analysis,
Holmes observed Instead, a court must also
evaluate the “success” of the speech “upon
others.” Unless the speech creates a “present
danger of immediate evil,” Holmes argued that
Congress cannot punish the speaker without
violating the federal constitution In concluding
that the“silly” leaflets distributed by Abrams and
his co-defendants created no clear and present
danger, Holmes said that“we should be eternally
vigilant against attempts to check the expression
of opinions that we loathe and believe to be
fraught with death, unless they so imminently
threaten immediate interference with the lawful
and pressing purposes of the law that an
immediate check is required to save the country.”
Holmes’s opinion in Abrams cemented his
reputation for being one of the Supreme
Court’s exceptional writers of persuasive
dis-senting opinions It also laid the building blocks
for his reputation as a great defender of civil
liberties But most importantly, Holmes’s
dissenting opinion in Abrams changed the
course of First Amendment law for the
remainder of the twentieth century In Schenck
the clear-and-present-danger test had been
applied with minimal scrutiny as to whether
the antiwar pamphlets in question were likely
to have any practical impact on those who
might read them Holmes’s opinion in Schenck
focused almost entirely on the gravity of the
dangers created by the pamphlets, without
paying much attention to whether those
dangers were likely to result
By contrast, Holmes’s dissenting opinion in Abrams more carefully scrutinized the compet-ing factors at work in evaluatcompet-ing whether the subversive speech sought to be punished does in fact create a clear and present danger of harm that Congress may prohibit Holmes contended that the Abrams’s majority opinion should have more closely examined the intent of the pamphleteers Additionally, Holmes believed that the majority opinion should not only have attempted to determine whether the pamphlets would have any effect on readers, but also urged the majority to allow the defendants to go unpunished unless by distributing the pamph-lets the defendants had created a danger that was both clear and immediate
Supreme Court scholars have spent much time trying to explain why Holmes modified his view of the Free Speech Clause in the eight months that separated his majority opinion in Schenck and his dissenting opinion in Abrams
There is evidence to suggest that Holmes was influenced by the Communist and anti-radical hysteria that was sweeping much of the nation during those months, and the govern-ment–instituted repression of radicals that resulted There is also evidence indicating that Holmes was influenced by correspondence he received from various acquaintances, including Harvard Law School professor ZECHARIAH CHAFEE, federal district judge Learned Hand, and political theorist Harold J Laski, all of whom praised Holmes for articulating the clear-and-present-danger test but also encour-aged theASSOCIATE JUSTICEto apply it with more exacting scrutiny
Some 50 years after Holmes first enunciated the clear-and-present-danger test in Schenck, the majority of the Supreme Court reformu-lated the doctrine in Brandenburg v Ohio, 395 U.S 444, 89 S Ct 1827, 23 L Ed 2d 430 (1969) In Brandenburg, the Court reversed the conviction of aKU KLUX KLANleader under a state statute, Ohio Rev Code Ann § 2923.13, prohibiting ADVOCACY of crime and violence as
a necessary means to accomplish political reform The Court held that a state could not forbid or proscribe advocacy of the use of force, except where such advocacy is directed toward producing imminent lawless action and is likely
to incite or produce such action Though the Court’s opinion fails to use the phrase “clear
ABRAMS V UNITED STATES 29
Trang 3and present danger,” manyCONSTITUTIONAL LAW
scholars have seen Brandenburg as a return to the Holmes immediacy test first set forth in Abrams
FURTHER READINGS Blasi, Vincent 1997 “Reading Holmes through the Lens of Schauer: The Abrams Dissent ” Notre Dame Law Review
72 (July).
Fagan, James F., Jr 1991 “Abrams v United States:
Remembering the Authors of Both Opinions ” Touro Law Review 8 (winter).
Polenberg, Richard 1999 Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech Ithaca, NY: Cornell Univ Press.
CROSS REFERENCES American Civil Liberties Union; Constitutional Amend-ment; Debs, Eugene Victor; Due Process of Law; Fourteenth Amendment; Privacy.
ABROGATION The destruction or annulling of a former law by
an act of the legislative power, by constitutional authority, or by usage It stands opposed to rogation; and is distinguished from derogation, which implies the taking away of only some part
of a law; from subrogation, which denotes the substitution of a clause; from dispensation, which only sets it aside in a particular instance; and from antiquation, which is the refusing to pass
a law
For example, the abrogation of the EIGH-TEENTH AMENDMENT to the CONSTITUTION, which prohibited the manufacture or sale of intoxicat-ing liquors, was accomplished by the enactment
of the TWENTY-FIRST AMENDMENT Implied abro-gation takes place when a new law contains provisions that are positively contrary to a former law, without expressly abrogating such laws, or when the order of things for which the law has been made no longer exists
ABSCOND
To go in a clandestine manner out of the jurisdiction
of the courts, or to lie concealed, in order to avoid their process To hide, conceal, or absent oneself clandestinely, with the intent to avoid legal process
To postpone limitations To flee from arresting or prosecuting officers of the state
ABSCONDING DEBTOR One who absconds from creditors to avoid payment of debts A debtor who has intentionally
concealed himself or herself from creditors, or withdrawn from the reach of their suits, with intent to frustrate their just demands Such act was formerly an act of bankruptcy
A person who moves out of the state may be
an absconding debtor if it is that person’s intention to avoid paying money that he or she owes
It is difficult or impossible for a creditor
to serve an absconding debtor with aSUMMONS
in order to start a lawsuit and collect his or her money Where a court is convinced that a debtor has absconded, it may permit the creditor to begin the lawsuit in some way other thanPERSONAL SERVICEof a summons For example, a franchisee bought a dough-nut franchise and opened up a small shop He also bought a house for his family Unfortu-nately, the business failed after a year, and he turned all of the equipment and materials back
to the franchisor The franchisor claimed that additional money was owed to him and decided toSUEthe former franchisee APROCESS
apartment that was listed as the address in the original application for the franchise The
LANDLORD there told the process server that the former franchisee had moved and left no forwarding address The franchisor applied to the court for permission to serve him as an absconding debtor The court allowed the franchisor to publish notice of the lawsuit on three occasions in the legal section of the local newspaper The franchisee did not see the notice and did not appear in court The court entered a DEFAULT JUDGMENT against him without hearing his side of the story After that, the franchisor began searching public records to see if the franchisee owned any property that could be seized to pay off the amount of the judgment He discovered the recorded deed for the house and went back to court, seeking an order to have the house sold This time the franchisee, who was served personally with the court papers, appeared with hisATTORNEY He explained at the hearing that he had never intended to conceal himself
or to avoid paying the money he owed The court found that he had never been an absconding debtor who could be served merely
by publication The default judgment, there-fore, could not be enforced, and the franchisor could not have the house seized and sold
30 ABROGATION
Trang 4One who has left, either temporarily or
perma-nently, his or her domicile or usual place of
residence or business A person beyond the
geographical borders of a state who has not
authorized an agent to represent him or her in
legal proceedings that may be commenced against
him or her within the state
An absentee LANDLORDis an individual who
leasesREAL ESTATE to another but who does not
reside in the leased premises
An absentee corporation is one that
con-ducts business within a state other than the
place of its incorporation but has not designated
an agent for purposes of SERVICE OF PROCESS,
which might ensue from disputes involving its
business transactions there
ABSENTEE VOTING
Participation in an election by qualified voters
who are permitted to mail in their ballots
The Uniformed and Overseas Citizens
Ab-sentee Voting Act (42 U.S.C.A § 1973ff et seq.)
covers absenteeVOTINGin presidentialELECTIONS,
but the states regulate absentee voting in all other
elections According to Article I, Section 4, of the
Manner of holding Elections for Senators and
Representatives, shall be prescribed in each state
by theLEGISLATUREthereof; but the Congress may
make or alter such Regulations, except as to
the Places of ch[oo]sing Senators.”
Originally created to accommodate overseas
military service personnel in WORLD WAR I,
absentee voting has since expanded to include
all voters expecting to be absent from their
precincts on election day The right to vote,
even by absentee ballot, is no trifling concern
A state may restrict it only to the extent that
doing so serves a compellingSTATE INTERESTsuch
as preventingFRAUD
State laws governing absentee voting are
based on statutes federal courts that have
reviewed absentee ballot laws have established
general principles regarding these laws For
instance, the Fifth Circuit determined that
because Mississippi’s absentee voting law was
designed to protect the integrity of the absentee
ballot, voters had to comply with the law strictly
(United States v Brown, 561 F.3d 420 [5th Cir
2009]) In another example, the Ninth Circuit
ruled that a state law that establishes different
requirements for in-person voters than require-ments applied to absentee voters did not violate the EQUAL PROTECTION rights of the in-person voters (ACLU of N.M v Santillanes, 546 F.3d
1313 [10th Cir 2008])
Although all states allow absentee voting, the procedures and qualifications vary from state to state According to statistics as of 2008, compiled
by the Early Voting Information Center at Reed College in Oregon, 32 states allow individuals to vote without having to provide an excuse Under these state laws, individuals may vote early on a voting machine or submit absentee ballots in person Conversely, 14 states require an excuse for in-person absentee voting The majority of states allow voters to submit ballots by mail without excuse, whereas 22 states require an excuse Oregon is the only state that requires all early voting to take place via mail
The amount of time that an application for
an absentee ballot must precede the election can vary In Minnesota, it is one day (M.S.A § 203B.04[1]) In Louisiana, it depends on the voter For example, a voter who goes in person
to apply for an absentee ballot must do so between 12 and 6 days before the election (LSA-R.S 18:1309[a][1]); a voter who registers for an absentee ballot by mail must get the registration form to the registrar not more than 60 days and not less than 96 hours before the election (LSA-R.S 18:1307[b]); military personnel must return the application not more than 12 months and not less than 7 days before election day (LSA-R.S 18:1307[c])
Many states allow absentee voters to vote again on election day if they are present in the state If voters so choose, they may change their votes Officials in states that allow this practice count the absentee ballots after the poll ballots have been counted, and any duplicate absentee ballots are simply disregarded This is the case in Minnesota (M.S.A § 203B.13[3a]) In Louisiana, however, a person who has voted by absentee ballot may not vote again on election day (LSA-R.S 18:1305) In 1977 Louisiana amended its law to allow absentee voters to change their votes on election day, but in 1980 it changed the law again to prohibit the practice
In any state, to cast an absentee ballot, citizens must be eligible voters and have a reason for being unable to vote at the polls
Between August 1, 1991, and November 30,
1992, Minnesota experimented with allowing
ABSENTEE VOTING 31
Trang 5A sample absentee
voting ballot
application
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Absentee Ballot Application Instructions
If you would like to have an absentee ballot mailed to you, PRINT legibly on the application below and sign where it says
"Signature of Voter." All applications for an absentee ballot submitted by mail (or by a relative or guardian in person at the Election Board office) must be in the office of the Jackson County Board of Election Commissioners by 5:00 P.M on the Wednesday prior to the election Pursuant to Missouri law, (115.279) absentee ballots cannot be mailed if the application is received after this deadline.
For your application to be complete, you must have the following:
• The date of the election
• The date of the application
• If it is a primary election you must state which political party ballot you would like
• The applicant's daytime phone number
• The name of the applicant as registered
• The address at which the applicant is registered
• The reason for which an absentee ballot is needed
• The signature of the applicant
If you are going to be away from home and need a ballot mailed to a location other than your home address, fill out the section labeled "Mailing Address if different than Home Address."
Note: An Absentee Ballot Application may be forwarded to us by facsimile but must be followed by a hard copy with an original signature If the original application is not in our office by 7:00 P.M CST on the day of the election, the absentee ballot will NOT
be counted This application is good for the Jackson County Board of Election Commissioners only.
MAILING ADDRESS IF DIFFERENT THAN HOME ADDRESS:
City State Zip
Absentee Voting Ballot Application
OFFICE USE ONLY Cert # OFFICE Township
Precinct _ Style _ MAILOUT Color _ Ballot # _
ABSENTEE BALLOT APPLICATION (FOR REGISTERED VOTERS)
Election Date Date of Application
Party Primary Election, Indicate Party _ Phone Number _
Print Name
Registered Address
LAST MIDDLE NAME / INITIAL
FIRST
ZIP CITY
APT STREET
DIRECTION NUMBER
I expect to be prevented from going to the poll on election day due to the following checked reason:
Absence on election day from the jurisdiction of the election authority in which I am registered;
Incapacity or confinement due to illness or physical disability, including caring for a person who is incapacitated or confined due to illness or disability;
Religious belief or practice;
Employment as an election authority or by an election authority at a location other than my polling place;
Incarceration, although I have retained all the necessary qualifications for voting.
Signature of Voter Signature of Guardian or relative; Relationship
or Witness, If signed with an “X” _to applicant _
Mail This Application To:
JACKSON COUNTY ELECTION BOARD POST OFFICE BOX 296
INDEPENDENCE, MISSOURI 64051
MISSOURI ELECTION LAW 115.279
No application for an absentee ballot submitted by mail or by a guardian or relative after 5:00 p.m on the Wednesday immediately prior to the election shall be accepted by any election authority No application for
an absentee ballot submitted by the applicant in person after 5:00 p.m on the day before the election shall be accepted by any election authority.
32 ABSENTEE VOTING
Trang 6voters to cast absentee ballots without
explana-tion, but this practice was discontinued on
January 1, 1994 All states allow persons with
permanent disabilities and military personnel to
cast votes by absentee ballot Other valid
reasons for voting in absentia include illness,
temporary DISABILITY, and religious observances
or practices In Louisiana, any person age 65 or
older may vote by absentee ballot
All states require that the application for an
absentee ballot be requested before election day,
but this rule has some exceptions In
Minne-sota, for example, a health care patient who
becomes a resident or patient in a health care
facility on the day before the election may vote
by absentee ballot on election day if she or he
telephones the municipal clerk by 5:00P.M the
day before the election (M.S.A § 203B.04[2])
Each county enlists election judges to deliver
absentee ballots to hospitalized voters (M.S.A §
203B.11[3])
Some people have had to fight for the right
to vote by absentee ballot In Cepulonis v
Secretary of the Commonwealth, 452 N.E.2d
1137, 389 Mass 930 (Mass 1983), Richard
Cepulonis and Kevin Murphy, two
Massachu-setts residents and long-term prisoners in the
Walpole Massachusetts Correctional Institution,
asserted their right to vote by absentee ballot
Cepulonis, eligible for PAROLE in 1997, and
Murphy, eligible for parole in 1985, attempted
to vote from prison in 1982 City officials in
Worcester told Cepulonis that he could not vote
by absentee ballot without registering in person;
officials in Boston told Murphy the same
Cepulonis and Murphy filed suit together in
superior court, asking for a CLASS ACTION on
behalf of Massachusetts prisoners and a judicial
declaration that the class of prisoners be
declared eligible to vote by absentee ballot
The judge denied the requests, holding
specifi-cally that prisoners who did not register to vote
prior to theirIMPRISONMENT, and prisoners who
are not imprisoned in the city of their domicile,
may not register to vote by absentee ballot
because they must register to vote in person
The absentee voting statutes of Massachusetts
contained no provision for voter registration
of Massachusetts prisoners through the postal
service
Cepulonis and Murphy asked the
Massa-chusetts Supreme Judicial Court to review the
case; on August 15, 1982, the court denied the
request On October 21, Cepulonis and Murphy moved for a court order allowing prisoners to vote in the November 2 elections; the Massa-chusetts high court denied this request as well
Cepulonis and Murphy then filed aMOTION for injunctive relief—a court order—with the U.S
Supreme Court Justice William J Brennan Jr
denied the motion WITHOUT PREJUDICE, which meant that Cepulonis and Murphy were free to bring the matter before the Court in the future
JusticeJOHN PAUL STEVENSreferred the case to the full bench of the Supreme Court, which, after consideration, refused to command Massachu-setts to institute procedures enabling incarcer-ated residents to vote by absentee ballot
Undaunted, Cepulonis and Murphy applied directly to the Massachusetts Supreme Judicial Court for review of the case; the court granted the application On April 4, 1983, Cepulonis and Murphy argued that Massachusetts’s failure
to install an absentee registration procedure for incarcerated residents deprived those residents
of their state the CONSTITUTIONAL right to vote
in state elections Although some states had chosen to prohibit convicted criminals from voting in elections, Massachusetts had not
The court began the analysis in its opinion
by discussing the CASE LAWof Massachusetts on the subject of voting Without exception, the precedents held that voting laws should be interpreted to facilitate voting, and not to impair or defeat the right to vote In light
of this principle, the court announced that
it agreed with Cepulonis and Murphy; the Massachusetts statutory scheme was denying deserving citizens a state constitutional right
The court then examined the Massachusetts statutory scheme and observed that some eligible prisoners could vote, whereas others could not
The absentee voting laws of Massachusetts provided that prisoners incarcerated in the municipality of their domicile, if already regis-tered, could vote by absentee ballot However, registered voters incarcerated in a municipality other than their own could not register for absentee ballots Furthermore, prisoners who were adult registered voters before they were incarcerated could vote, but prisoners reaching theAGE OF MAJORITYwhile incarcerated could not vote These distinctions were arbitrary and, according to the court, unconstitutional
The court then cited relevant case law that held that Massachusetts must prove the existence
ABSENTEE VOTING 33
Trang 7of a compelling state interest when it denies a
FUNDAMENTAL RIGHT such as voting The state argued that the registration laws existed in their present form to prevent voter fraud The court countered by pointing out that Maine, New York, Vermont, Georgia, and Pennsylvania had all seen fit to permit prisoners domiciled in their states to register as absentee voters This showed that it was possible to create a system allowing eligible prisoners to vote by absentee ballot
The state also argued that prisoners not registered to vote had had the opportunity to register before INCARCERATION Requiring the state to supply special absentee voting proce-dures to disinterested citizens seemed unneces-sary However, failure to register to vote before incarceration did not mean that prisoners who were otherwise eligible should be denied the right to vote, and, according to the court, no case law supported such a denial
Ultimately, the court held that Massachu-setts prisoners must be given the means to vote in state elections The Massachusetts absentee voting statutes were unconstitutional
to the extent that they prevented incarcerated, eligible Massachusetts voters from registering to vote The court refrained from giving the vote
to Cepulonis and Murphy, and instead left the job of revising the Massachusetts absentee voting laws to the legislature
The issue of absentee voting became a particularly contested topic during the 2000 presidential election, when every vote was needed to determine the ultimate outcome
The seat of controversy was Florida, where a recount became necessary in several counties because the vote was so close Between November and December, Democrat AL GORE
and RepublicanGEORGE W.BUSHappealed to the state Supreme Court and even the U.S Supreme Court (BUSH V.GORE, 531 U.S 98 [2000]) over whether or not ballots should be recounted For example, lawsuits filed by Florida’sDEMOCRATIC PARTY involved the counting of absentee ballots
in Seminole and Martin Counties (Taylor v
Martin County Canvassing Board, 773 So.2d 517 [2000]; Jacobs v Seminole County Canvassing Board, 773 So.2d 519 [2000]) The party alleged that Republicans were allowed to correct mistakes in some voter absentee ballots, while Democrats were not given the same chance In Seminole County, Republican officials added
missing voter identification numbers at the county election office, whereas in Martin County an election supervisor let Republican workers take home application forms and add missing voter identification numbers The stakes were high because the 15,000 absentee votes in Seminole County and the 10,000 in Martin County contrib-uted to Bush’s razor thin majority over Gore The two state circuit judges who reviewed the issues decided that, despite irregularities, the ballots should be counted On APPEAL, the Florida Supreme Court upheld these rulings The court, although acknowledging that there were irregularities in the process, concluded that there was no evidence of fraud, GROSS NEGLIGENCE, or intentional wrongdoing
The use of absentee ballots can complicate elections when a candidate resigns or dies during the last days of a campaign The 2002 U.S Senate elections in New Jersey and Minnesota illustrated these complications and led to LITIGATION
over whether new absentee ballots could be issued to include a substitute candidate
The New Jersey Republican candidate for the Senate asked the U.S Supreme Court to overturn
a state supreme court RULING that Democrat Frank Lautenberg’s name could replace Senator Robert Torricelli on the November ballot Torricelli, who had admitted to ethical violations and been censured by the Senate, dropped his reelection bid after public opinion polls indicated that he would lose decisively New Jersey Republicans asked the Supreme Court to keep Torricelli’s name on the ballot, arguing that there would be delays in delivering military ballots, which would violate the 1973 Uniformed and Overseas Citizens Absentee Voting Act In addition, they contended that the state supreme court order violated the due process rights of military personnel and citizens who had already received ballots and voted Unlike the 2000 presidential election controversy, the Supreme Court refused to intervene Lautenberg went on
to win the election
The Minnesota elections in 2002 were thrown into turmoil when Democratic Senator Paul Wellstone was killed in a plane crash just
10 days before the election An estimated 104,000 absentee ballots had been distributed and many had already been returned to county election officials before Wellstone’s death In reviewing the state’s election laws, theSECRETARY
34 ABSENTEE VOTING
Trang 8OF STATE concluded that county elections could
not mail out new absentee ballots This meant
that thousands of absentee ballots that
con-tained votes for Wellstone would not count for
the substitute candidate, formerVICE PRESIDENT
Walter Mondale
The state Democratic Party filed an
emer-gency election appeal with the state supreme
court, arguing that new ballots should be issued
immediately and that Minnesota voters should
be able to vote absentee using modern means
such as fax and E-MAIL The court held oral
ARGUMENT on the Thursday before the election
and issued an order later that day, ruling that
voters could request new absentee ballots be
mailed to them but they had to be returned to
county voting officials by the following Tuesday
The court did not authorize any electronic
means as suggested by the Democrats County
officials began to print ballots but the tight
deadline made it certain that many voters, such
as college students living far away, did not have
time to request, receive, and return their ballots
In the end, Republican candidate Norm
Cole-man beat Mondale by a close but comfortable
margin The Minnesota absentee ballot case
illustrates how absentee voters may risk having
their vote not count if an unusual chain of
events unfolds before an election
Although commentators have expected
de-velopment in the use of the INTERNET for
absentee voting, the states as of 2009 have not
moved to adopt this method During the 2008
presidential election, the State of Florida
experimented with Internet voting for about
700 U.S soldiers stationed overseas These
soldiers voted at special kiosks set up in
Germany, Japan, and the United Kingdom
Officials took a number of security precautions,
such as removing the hard drives from the
computers used for the voting, but
commenta-tors still expressed concerns about the integrity
of this method of absentee voting
FURTHER READINGS
Booth, Michael 2002 “Republicans Sue in N.J Federal
Court to Block Senate Ballot Substitution ” New Jersey
Law Journal (October 7).
The Early Voting Information Center Available online
at http://earlyvoting.net (accessed May 21, 2009).
Federal Voting Assistance Program Available online at
http://www.fvap.gov (accessed May 21, 2009).
McCauley, William T 2000 “Florida Absentee Voter Fraud:
Fashioning an Appropriate Judicial Remedy ” Univ of
Miami Law Review 54 (April).
“Supreme Court Asked to Block Lautenberg: N.J Republi-can Candidate Files Appeal ” 2002 Washington Post (October 5).
CROSS REFERENCES Elections; Prisoners ’ Rights; Voting.
ABSOLUTE Complete; perfect; final; without any condition or incumbrance; as an absolute bond in distinction from a conditional bond Unconditional; complete and perfect in itself; without relation to or dependence on other things or persons
Free from conditions, limitations or qualifica-tions, not dependent, or modified or affected by circumstances; that is, without any condition or restrictive provisions
Absolute can be used to describe DIVORCE, estates, obligation, and title
ABSOLUTE DEED
A document used to transfer unrestricted title to property
An absolute deed is different from a
back to the mortgagee when the terms of the mortgage have been fulfilled
ABSTENTION DOCTRINE The concept under which a federal court exercises its discretion and equitable powers and declines to decide a legal action over which it has jurisdiction pursuant to the Constitution and statutes where the state judiciary is capable of rendering a definitive ruling in the matter
The abstention doctrine was adopted by the Supreme Court to allow the federalJUDICIARYto refrain from RULING on CONSTITUTIONAL ques-tions Because it has no explicit source in federal or state laws, it is the exception to the general rule that a litigant maySUEor be sued in federal court if the federal court has jurisdiction,
or power to hear the case A federal court has jurisdiction over several species of cases and controversies, such as those involving a federal constitutional question, a federal statute, or litigants of different states in a dispute totaling over $50,000 (in which case, the court’s power
to hear is called diversity jurisdiction) Federal courts have an obligation to hear the cases properly brought before them, so abstention is
an extraordinary judicial maneuver
ABSTENTION DOCTRINE 35
Trang 9Also known as the Pullman doctrine, the abstention doctrine was first fashioned by the Court in Railroad Commission of Texas v Pullman Co., 312 U.S 496 61 S Ct 643, 85 L Ed 971 (1941) At issue in Pullman was a Texas Railroad Commission regulation that prevented the oper-ation of sleeping cars on trains without a Pullman conductor Before the regulation, Texas trains used only one sleeping car in areas of light passenger traffic When only one sleeping car was used, the trains had only Pullman porters to watch over the sleepers When more sleeping cars were used, the trains employed Pullman con-ductors, who supervised the porters The regula-tion eliminated a practice that deprived con-ductors of wages, but it also effectively decreased the earnings and eliminated the autonomy of porters This result introduced the issue of
DISCRIMINATION, since, at the time, Pullman conductors were white and porters were black
The Pullman Company and Texas railroads objected to the regulation, and together they brought suit in federal district court to keep the commission from enforcing the order Pullman porters joined the Pullman Company and the railroads as complainants, and Pullman con-ductors joined the commission as defendants
The federal district court granted the request of the complainants, ruling that the commission did not have the authority to make such an order The defendants appealed directly to the U.S Supreme Court
The complainants argued that the regulation violated constitutional rights, namely the protec-tions provided under the Due Process and commerce clauses of the U.S.CONSTITUTION The porters specifically asserted that the order was discriminatory against “negroes,” and thus violated the FOURTEENTH AMENDMENT to the Constitution The commission answered that its authority to order such a regulation was created by Texas law Vernon’s Texas Revised Civil Statutes Annotated, article 6445, provided
in part that the commission was empowered
to prevent “unjust discrimination and to prevent any and all other abuses” in the Texas railroad industry
The Supreme Court acknowledged the sensitive nature of the porters’ ALLEGATION of discrimination, but declared that the fate of the offending law should be decided first by the state courts The Court then faced the question
of whether a stateRESOLUTIONwas possible
The Supreme Court noted that a federal district court in the Fifth Circuit had ruled against the commission, but called the decision nothing more than a “forecast.” According to the Court, the Texas state courts were more capable of interpreting Texas laws and deter-mining how they should be applied Federal courts were simply not competent to define the concept of discrimination and its prevention as understood in Texas
Furthermore, deciding Texas law in a federal court was of little use when the ruling could later be displaced by the decision of a state court The Court conceded that federal constitutional claims against state laws or regulations may be appealed to federal courts, but it emphasized thePUBLIC INTERESTin avoiding
“needless friction with state policies.” This meant that when a state had the means to resolve a constitutional issue, the first word on the meaning and constitutionality of the challenged law should be left to the state Texas law provided for JUDICIAL REVIEW of administrative orders in state court, so the complainants could have filed suit there Like-wise, the defendants could have brought suit
in state court to enforce the order in the event of
a railroad strike Because these avenues existed and had not been traveled, the Supreme Court reversed the decision of the lower federal court and ordered the case held in the federal court pending the outcome of state proceedings The abstention doctrine has expanded since the Pullman case The Supreme Court has identified three distinct types of cases from which
a federal court should abstain: (1) If the meaning
of a state law or regulation is claimed to be unconstitutional, and the meaning of the statute
or regulation can be discovered in the state’s court system, abstention is appropriate (2) Abstention is also appropriate when a federal suit seeks to delay or upset an ongoing state proceeding, such as a criminal prosecution or the collection of state taxes (3) Finally, a federal court should yield to state courts when a case
PRESENTS a difficult policy question of vital importance to the state This last justification for abstention breeds the most creative argu-ments
One difficult issue of vital importance to states is domestic relations DIVORCE, ALIMONY, andCHILD CUSTODYcases involve legitimate local policies concerningMARRIAGEandRELIGION Until
36 ABSTENTION DOCTRINE
Trang 10the 1990s, domestic relations abstention has
been invoked by federal courts in virtually any
case concerning family members In
Anken-brandt v Richards, 504 U.S 689, 112 S Ct
2206, 119 L Ed 2d 468 (1992), the Supreme
Court put a stop to this practice
On September 26, 1989, Carol Ankenbrandt,
on behalf of her daughters, sued Jon Richards
and Debra Kesler in the U.S District Court for
the Eastern District of Louisiana Ankenbrandt,
a Missouri citizen, had been married to
Richards, a Louisiana citizen After the couple
divorced, Richards became romantically
in-volved with Kesler In her suit, Ankenbrandt
claimed that Richards and Kesler had sexually
and physically abused Ankenbrandt’s daughters
Ankenbrandt filed the suit in federal court under
diversity jurisdiction; she was able to do so
because she did not live in the defendants’ home
state and she was suing for over $50,000
The federal court decided not to hear the
merits of Ankenbrandt’s case The district court
granted the defendants’ earliestMOTIONto dismiss,
ruling that the case belonged in state court under
the domestic relations exception to federal
jurisdiction based on diversity As an alternative
to that holding, the court declared that its refusal
to hear the case was also justified by the abstention
doctrine The court of appeals affirmed these
holdings without a published opinion
OnAPPEAL, the Supreme Court reversed the
decision The Court traced the origins of the
domestic relations exception to federal diversity
jurisdiction and concluded that the exception
was valid Nevertheless, the exception
contem-plated federal abstention only from cases such
as divorce, alimony, and child custody
Ankenbrandt’s action was a tort action, an
action for monetary recovery based on the
accusations of one individual against another
Ankenbrandt’s previous marriage to Richards did
not provide a permissible reason for the federal
court to invoke the domestic relations exception
The federal district court’s alternative
hold-ing of abstention was equally erroneous The
district court had cited Younger v Harris, 401
U.S 37, 91 S Ct 746, 27 L Ed 2d 669 (1971),
as support for its abstention However, the
Younger decision simply held that a federal
court could not interfere with a pending state
criminal prosecution Here, no state proceeding
was pending, and the defense had not alleged
that any important STATE INTEREST existed, so
reliance on that particular reason for abstention was misplaced
Although theARGUMENThad not been raised
by Richards or Kesler, the Supreme Court anticipated another reason for abstention, to foreclose the argument in future cases The federal district court may have sought to abstain from the Ankenbrandt case because the suit seemed to present a difficult state policy question of vital importance to the public The case seemed to involve a determination of the family status of the litigants, an area of state interest that could bring the case within the domestic relations exception This basis for abstention was not supportable, though, be-cause the familial status of the parties had already been determined in a divorce proceed-ing and a parental rights proceedproceed-ing
The Supreme Court further warned that the family status of the litigants had no bearing on the underlying case In aCIVIL ACTION for monetary damages, where sexual and physical abuse is alleged, a federal court could not refuse to hear the case because the litigants had at one time been related Ultimately, neither the domestic rela-tions exception nor its close relative the absten-tion doctrine would deprive Ankenbrandt of the right to file her complaint in federal court
Despite its expansion since Pullman, federal court abstention is very rare A federal court may refuse to hear a case over which it has jurisdiction only in unusual circumstances
When a case poses federal constitutional ques-tions, a federal court may abstain only when the challenged state law or regulation is unclear
In addition, the methods for determining the meaning of the law or regulation must exist in the state’s court system, and these methods must not have been used Then and only then may a federal court refrain from hearing a constitutional question The boundaries of the abstention doctrine are continually tested and stretched, but in 1992 the Supreme Court sent notice through the Ankenbrandt case to the federal courts that its use is limited
CROSS REFERENCES Constitutional Law; Courts; Federal Courts.
ABSTRACT
To take or withdraw from; as, to abstract the funds of a bank To remove or separate To summarize or abridge
ABSTRACT 37