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: