#2DaysOut: “This Election Illustrates a Deeper Problem” (Pam Karlan)

The following is a symposium contribution from Pam Karlan (Stanford):

There will be plenty of time later to write about the Elections Clause, the Electors Clause, the Purcell Unprinciple, and the mess that is the Electoral Count Act of 1887. But for now, I’ll just mention two people who crystalize for me why I remain a voting rights lawyer, as well as a voting rights scholar, after three decades: Howard Porter, Jr., and Desmond Meade.

Mr. Porter, an elderly Black man, is one of the individual plaintiffs People First of Alabama v. Merrill, 2020 WL 5814455 (N.D. Ala. Sept. 30, 2020). At higher risk for complications or death from COVID-19 because of his asthma and Parkinson’s disease, and having lost both a sister and uncle to the coronavirus, he sought to vote in person curbside, rather than in a polling place. He testified: “I don’t want any vote that I cast to be my last vote. And in Alabama, a person can vote even if they don’t have on a face mask. And that’s just too much for me. . . . [A]s important as the right to vote is, I just can’t endure that. . . . [S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time. And that should not be a requirement . . . .Because voting is the only day that rich, the poor, sick, the healthy, all should be counted as one and just as easy. And any obstacle placed in the way of the opportunity to vote places an effect on the process itself.” Id. at *11.  Turns out, we’re not past that time. Judge Abdul Kallon granted an injunction ordering the state to allow curbside voting.  The Eleventh Circuit upheld that injunction. People First v. Sec’y of State for Alabama, 2020 WL 6074333 (11th Cir. Oct. 13, 2020). But the U.S. Supreme Court stayed that injunction, 5-3, with no explanation. Merrill v. People First of Alabama, 2020 WL 6156545 (Oct. 21, 2020).

Mr. Meade, with whom I once had the honor of joining on a panel at a circuit conference, spearheaded the passage of Amendment 4 in Florida—an amendment designed to restore voting rights to citizens convicted of a felony. He got to vote in this fall’s general election. https://perma.cc/K5LN-8DSD.  But a Republican-dominated state supreme court then defined “completion” of the terms of a sentence to include, among other things, payment of a variety of court costs that actually go to fund general government operations. Not only are many returning citizens too poor to pay these fees, but a federal court found, after a lengthy trial, that Florida’s system for determining the amounts they owe is plagued by intractable administrative problems.  A political scientist “with a team of doctoral candidates from a major research university” unsuccessfully spent weeks trying to obtain this information for a randomly selected group of roughly 150 aspiring voters. Jones v. DeSantis, 2020 WL 2618062, at *17 (N.D. Fla. May 24, 2020). At the state’s rate of checking financial obligations (“just 57 registrations per day”), figuring out these obligations for the 1.4 million citizens now potentially eligible to register will take decades: “The projected completion date” for the 85,000 citizens who had begun the process “is early in 2026” and “[w]ith a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s. Id. at*24.  The district court declared Florida’s “pay-to-vote system” unconstitutional with respect to court fees and costs under the Twenty-Fourth Amendment, as well as declaring the other parts of pay-to-vote unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount or whose financial obligations cannot be determined. But the Eleventh Circuit reversed that judgment. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), after the Supreme Court refused to lift the court of appeals’ stay of the district court’s injunction. Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (per curiam).

Whatever happens on Tuesday, our election system is sick when it makes it so difficult for so many people to vote.  More than a few defective ballots need to be “cured” if we are to promote the general Welfare, and secure the Blessings of Liberty.

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