As we head into Election Day tomorrow, we should note that there were two decisions last week in federal courts of appeal that directly impact on the right to a secure and fair election, one good and one bad.
In Johnson v. Tennessee, a three-judge panel of the U.S. Sixth Circuit Court of Appeals upheld the right of the State of Tennessee to condition restoration of the voting rights of convicted felons on payment of restitution and child support obligations. The decision was two to one and it will probably come as no surprise that the dissenting judge who believed that these felons had an imaginary constitutional right to ignore court orders and restitution requirements was a Clinton appointee.
Three felons had filed suit claiming that Tennessee was violating their constitutional right to vote. But the Fourteenth Amendment specifically grants states the ability to abridge the right to vote for “participation in rebellion, or other crime.” Like 48 other states (with the exception of Vermont and Maine), Tennessee bars felons from voting until their voting rights have been restored. Felons can start voting again in Tennessee as soon as they complete their sentences pursuant to a proper showing that they have paid all of the victim restitution ordered by a court, as well as child support. As the two federal judges opined in upholding this requirement, Tennessee possesses valid interests in promoting payment of child support, requiring criminals to fulfill their sentences, and encouraging compliance with court orders. This lawsuit was just another of a long series of suits filed against felon disenfranchisement laws that have, so far unsuccessfully, sought to override states’ constitutional authority in this area through what amount to largely frivolous constitutional and statutory claims. The dissenting judge in this case even likened requiring payment by felons of restitution and child support to a poll tax in violation of the Twenty Fourth Amendment!
The bad decision last week was not surprisingly out of the Ninth Circuit, the most overturned federal appeals court in the nation. In Gonzalez v. Arizona, a three judge panel overturned Arizona’s 2004 law that requires anyone registering to vote to provide proof of citizenship, a common sense requirement that should be adopted by every state. The court held that this requirement violates the National Voter Registration Act (better known as Motor Voter).
This decision was also two to one, with retired Supreme Court Justice Sandra Day O’Connor unfortunately sitting by designation and continuing her largely unbroken string of bad decisions. However, there was an absolutely stinging dissent written by Chief Judge Alex Kozinski. As Kozinski cogently pointed out, a prior panel of the Ninth Circuit in this very case had already held that Motor Voter “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” That makes it the law of the circuit and the law of this case and O’Connor and her fellow activist judge were bound by that prior, published opinion. As Kozinski said, “The majority refuses to accept the consequences of this reality.”
The claim that Motor Voter prohibits a state like Arizona from requiring proof of citizenship has no basis in the legislation or its history. Motor Voter does not supersede Arizona’s law and as Kozinski says, “To get its way, the majority invents a broad rule of same-subject matter preemption.” There is no conflict between Motor Voter and the state law requirement and there is no question that this case was wrongly decided.
It is a pretty good bet that this decision will be overturned on appeal. Fortunately, now that Justice O’Connor is no longer on the Supreme Court, there are actually higher courts than can overrule her bad judgment and her willingness to ignore the law to achieve the policy outcomes she favors (Ed Whelen actually makes a strong argument that “O’Connor has not been a federal judge since Justice Alito’s confirmation in January 2006 and has not been constitutionally eligible to take part in the many federal appellate panels on which she has sat since that time.”).