[SOUND] In talking about individual liberties, I started with economic liberties, I then talked about privacy. The third area that I want to talk about concerns the right to vote. The 15th Amendment to the Constitution says that the right to vote shall not be denied on account of race or national origin. Other constitutional amendments expanded the right to vote. Of course, the amendment in 1920, the 19th amendment says that the right to vote cannot be denied on account of sex. The court public amended the Constitution to say that the right to vote shall not be denied to those who are over the age of 18, amending the Constitution to create the 18 year old vote. The Constitution was amended in the 1960s to say there cannot be poll taxes. Require that people pay a fee in order to vote in federal elections. In addition to these constitutional amendments about the right to vote, the Supreme Court long has said that the right to vote is protected as a fundamental right under the Equal Protection Clause of the Constitution. Well, what does it mean to say that the right to vote is a fundamental right? Let me give five examples of what the court said about what can and can't be done in terms of government regulation with regard to the right to vote. The first is but generally, any laws that keep some citizens from voting must meet strict scrutiny. Let me again use the example of a poll tax, that require that people pay a fee in order to vote. The case of Harper verse the Virginia Board of Elections Involved the Virginia Law that required that people pay a $1.50 in order to be able to vote. The Supreme Court declared this unconstitutional. The court said the right to vote is a fundamental right. The court said to charge even $1.50 will keep some citizens from voting. The court used strict scrutiny and declare the poll tax unconstitutional. Another example of this is that property ownership requirements for being able to the almost always unconstitutional example City adopted ordinances. In order for a person to be able to vote in school board elections the person either had to own property in the city or have children attending the city schools. The supreme court declared this unconstitutional. Once more the court said to acquire ownership of property what keeps some citizens from voting. The court used strict scrutiny and declared this to be unconstitutional. Now I said generally any laws that keep some citizens from voting have to meet strict scrutiny. The court though has said that if a law is designed to prevent fraud to protect the integrity of electoral system, it'll be allowed so long as it's on balance desirable. This was what the Court said in a case called Crawford versus Marion County Board of Education, it was in 2008. Indiana had a law that required that order for people to be able to vote, they had to show identification. Or go at a later point to a government office, and there show their identification. Now, such laws have become increasingly common. As in Indiana, they are strongly favored by Republicans, and strongly disfavored by Democrats. In fact, every Republican in the Indiana state legislature voted for the Voter ID law. Every Democrat in the Indiana state legislature voted against it. Why is it? Well, it tends to be minority voters wee less likely to have ID more likely to be disenfranchised. These tend to be individuals who vote democratic. Nonetheless, the Supreme Court upheld the Indiana law at least in terms of its facial constitutionality. There was no majority opinion of the court. There were three justices in the majority, two separate opinions, and then three justices dissenting. But the justice and the majority, all six of them would agree that the Indiana law was about protecting the integrity of the electoral system. It was about preventing voter fraud. And the court said it should be allowed because the benefits of preventing fraud outweight the burdens with regard to the right to vote. The descent strongly disagreed. Just as David Suitor wrote the lead descending opinion he said there's no evidence that significant voter fraud occurs because of people going without voter ID. He says if someone wants to try and change the outcome of the election that's a very ineffective way of doing it. So they're all in Indiana's history. There were just two instances of individuals going to vote without proper ID trying to impersonate somebody else. So on the other hand, the laws that requires voter ID put a significant effect in keeping some voters from being able to vote. He would have struck it down. The Supreme Court upheld it saying on balance it was [INAUDIBLE]. Now it is important to note what I said in passing. This was the so-called facial challenge to the law. It was a challenge brought right after the law was adopted. It was about whether the law on its face was constitutional. There's now as applied challenges to these voter ID statutes. is one with regard to Texas law, one with regard to Wisconsin law, one with regard to North Carolina law,. It'll be interesting to see when they make their way back to the Supreme Court, the significant evidence that they do have a discriminatory effect, whether the outcome will be any different. In fact, right after the Supreme Court handed down the decision in 2008, Indiana held its Presidential Primary. And there was photos stories in the news, about a group of nuns who were kept from voting, because they didn't have photo ID. So, that's the first point with regard to the right to vote. That generally, any laws that keep some citizens from voting, have to meet strict scrutiny. The second is, that one person, one vote must always be maintained. That is for any elected body with districts, almost all districts must be about the same in population. Prior to the 1960s many state legislatures were badly malapportioned. You might have one district where 25,000 people were elected representative, and then another district for the same legislative body where 100,000 people elected a representative. Those in the latter district were obviously disadvantaged, thus the court announced the rule one person one vote. Any elected body with districts all districts must be about the same in population of Los Angeles city council 15 District almost the same as population. For Los Angeles County Supervisor, there's five districts All must be at the same in population. All of the districts for the California Assembly, all the districts for the California Senate, all the Congressional districts in California must be about the same in population. There's an important case pending in the Supreme Court about this in the spring of 2016. This case called Evenwel versus Abbott it comes out of Texas. And the challenger saying that districting you should be done not based on population. But on the basis of eligible voters that expect of the challengers it should be one voter Wonder about. Now think about areas where the significant number of non-citizens in the area. Imagine cities where there are a large number of non-citizens documented or undocumented. Imagine areas where there are a significant number of people who can't vote. Such because they've have been disenfranchised because of felony convictions or areas with high birth rates and a significant number of children. Often these are minority communities, if the Supreme Court in Evenwel vs. Abbott says districting should be done on the basis of eligible voters, and not on the base of population. It will require redistricting all through the country, to the tremendous detriment of minority communities and cities, and the great benefit of suburbs and rural areas. We'll know by the end of June 2016. A third principle with regard to voting is that at large elections are allowed unless there's proof of a discriminatory purpose. An at large election is where all of the voters vote for all of the office holders, I'll give you an example. The leading Supreme Court case on the subject City of Mobile versus Bolden in 2000 Mobile, Alabama had a three-person city council. It might have, but it didn't, divide the city in three districts and let each district elect one representatives of the city council. Instead, it had what's called an at large election. Every voter casts three votes for the Mobile, Alabama City Council Mobile at the time of litigation was two-third white and one-third black. In a long history of racially polarized voting, never in the 20th century had an African American been elected to the Mobile City Council. Nonetheless, the Supreme Court upheld this as constitutional. The Supreme Court said an at large election is allowed unless there's proof that it's purpose was to disadvantage minority voters. The 4th point I'd make with regard to voting is that the use of race in drawing election districts to benefit minorities must meet strict scrutiny. Often in the districting process, there've been efforts to help minority voters elect minority representatives. This is done by drawing the districts in such a way as to create majority/minority districts, majority black districts, majority Latino districts. In five separate cases the Supreme Court has said, if race is the predominant factor in drawing election districts. Then, it's unconstitutional, unless the government meets strict scrutiny. If race is the predominant factor in the way election districts are drawn, to benefit minorities, or for any other reason, it's unconstitutional unless it meets strict scrutiny. Final point with regard to voting, is that counting uncounted votes in a Presidential election without preset standards violates equal protection. This was the holding of an obscure Supreme Court decision, on December 12 2000, Bush vs. Gore. Bush vs. Gore arose in the context of the 2000 presidential elections. It was clear on election night that the outcome of the vote in the electoral college was going to depend on the State of Florida. It was clear that Al Gore was going to win the popular vote but who was going to be president. Based on the vote in the Electoral College was going to end in Florida. Initially a network called that Gore won Florida but then another network called it, it was too close and they said that Bush might have won Florida. Then they retracted it. And by Wednesday morning, no one knew who had won Florida. Legal proceedings then began. To make a long story short, the Gore supporters but a challenge to the counting or failure to count certain votes in Florida. It was a close enough election, several hundred votes, that counting uncounted votes could make all the difference. And so it was, on Friday, December the 8th, 2000 that the Florida Supreme Court in a 4-3 decision ordered that all of the uncounted votes in the state of Florida be counted. The Florida Supreme Court has assigned this to a judge, Judge Terry Lewis, to supervise the counting of the votes. On Friday night, December 8th, Louis said he wanted all the votes counted by Saturday afternoon, December 10th at 2 PM. Any disputes in the counting of the votes would come to him to be resolved. On Saturday morning, Bush campaign went to the United States Supreme Court, and he asked it to review the Florida Supreme Court decision. On Saturday morning, the Supreme Court granted a review and the Supreme Court ordered a halt to the counting of the uncounted votes in the state of Florida. The Supreme Court scheduled the whole argument for 10 AM. Two days later, on Monday December the 11th, the Supreme Court held oral argument. And on Tuesday night, December 12th, at about 10 PM Eastern time, the Supreme Court released it's opinion In a 5-4 ruling, the Supreme Court reversed the Florida Supreme Court. It was a so-called per curiam opinion per curiam simply means, it's an opinion of the court. It's not a single justice writing with others signing on. And the per curiam opinion that Florida was counting the uncounted votes without pre-existing standards, and that would then violate equal protection. There's too much risk, similar ballots being treated differently. And the court said, since Florida had indicated a desire to meet the Federal safe harbor date, the safe harbor date is the assurance that if a state chooses electors by December 12th. They would definitely be seated in the House of Representatives, that all counting should end in the state of Florida. Now as I said, this was a 5-4 decision. The majority opinion had, and they were Chief Justice Rehnquist, as well as Justice Connor, Scalia, Kennedy and Thomas. The dissents were Justices Steven, Suter, Ginsburg and Briar each wrote a separate dissent. Now, the dissents objected very strongly, rarely have there been more vehement dissents written on the Supreme Court. They said, there's no reason to believe that similar ballots will be treated differently. Florida has created a procedure, a judge to resolve the disagreements until he does so, how can we know that similar ballots are being treated differently? Also they said the appropriate recourse here should of send the case back to the State of Florida. For the Florida Supreme Court to decide whether to continue the counting, or whether to obey the safe harbor. What Florida wants to do is a matter of Florida law. But a five to four at 10 pm on Tuesday, December 12th, the Supreme Court ended the counting of the uncounted ballots in the State of Florida. Early on Wednesday morning December 13th, Al Gore announced his concession George W. Bush became President of the United States. For the first time in American history the Supreme Court decided the outcome of a Presidential election.
