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Sunday, October 16, 2016

Substantive Due Process Within Sunday Night's Florida Election Law Decision

Tonight a Florida district court issued an opinion enjoining a state law that does not allow voters to "cure" a signature mismatch in a vote-by-mail ballot.  If a Florida voter mails in their ballot without a signature, the state notifies the voter and allows that person to submit an affidavit with a signature.  But if the county election workers determine that the signature that is on the envelope does not match the signature on file from when the voter registered, then the vote is deemed "illegal" and is not counted.  Tonight the court ruled that refusing to allow a voter to cure this signature mismatch violates the Equal Protection Clause of the U.S. Constitution.

Most people (at least on Twitter) are focusing on the last line of the opinion, which is a doozy:  "Justice Stewart once quipped, in reference to pornography, 'I know it when I see it . . .' Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Likewise, this Court knows disenfranchisement when it sees it and it is obscene."

But another line caught my eye, this one in a footnote:  

The Supreme Court has consistently held that the right to vote is analyzed under equal protection. So, this Court does so. But, left to its own devices, this Court would hold that the right to vote is a fundamental right subject to substantive due process analysis and should always be subject to strict scrutiny. See, e.g., Terry Smith, Autonomy versus Equality: Voting Rights Rediscovered, 57 Ala. L. Rev. 261, 266 (2005) (“A continuing lamentation of scholars of voting is the failure of the Court to locate the right to vote within the contours of substantive due process rather than equal protection.”).
 
This relates to something I wrote with respect to the "Hurricane Canon" for election law cases and what I've written about more generally in my scholarship: courts should protect vigorously the fundamental right to vote and require states to provide actual evidence of its need for a law, especially if the law makes voting harder.  I've often wondered whether substantive due process is a better mechanism than equal protection for this purpose.  This judge agrees.

Posted by Josh Douglas on October 16, 2016 at 10:37 PM in Law and Politics | Permalink

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