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View Diary: An explanation of dispute on Fairfax County provisionals in AG race (66 comments)

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  •  So minimum wage Workers will skip a full day... (20+ / 0-)

    so their votes can be counted? Can they sue Virginia for loss of income?

    •  One hopes that data for a lawsuit is being (17+ / 0-)

      collected. People deprived of their rights and their income will now have standing, much as same-sex couples got standing after they were denied marriage certificates.

      •  I am told it is under consideration (15+ / 0-)

        but not clear that an injunction requiring allowing representation by Herring or FCDC folks where there are signed affidavits could be done in time to allow for certification to  be completed on Tuesday.

        I am told by someone from FCDC that they are exploring all legal options, but in meantime as the email makes clear are making all efforts to try to ensure counting of as many provisionals as possible in the belief they will break in favor of Herring.

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Sun Nov 10, 2013 at 05:03:30 AM PST

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        •  Regardless of the candidates, it's the principle (15+ / 0-)

          of the thing. The electorate should not be discomfited by insubordinate agents of government. This whole regimen of making the citizenry jump through hoops needs to be thrown out as an un-Constitutional deprivation of rights.
          It should go without saying that citizens govern, but it doesn't. That's still something to be achieved and constantly asserted because, like the poor, those who lust for power will always be with us.

          •  there is no constitutional right to vote (14+ / 0-)

            that is the problem

            if you parse the language of amendments dealing with voting - 14th, 15th, 19th, 26th -  the ban barring voting on specific grounds, but no where is there constitutional language asserting than any adult citizen (even excluding felons or ex-felons) has a constitutional right to vote.   That's the problem.

            "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

            by teacherken on Sun Nov 10, 2013 at 05:29:28 AM PST

            [ Parent ]

            •  True. But that is largely because the (3+ / 0-)

              Constitution is addressed to the duties and obligations of public officials, much as a cook book is addressed to the cook, rather than the diner.

              While the main body of the Constitution is positive in the sense of specifying what agents of government may and must do, the amendments introduced a series of prohibitions in response to certain fears. But, as we all know from other prohibitive regimens, a prohibition, regardless of what positive effects might be intended, prompts evasions. So, for a recent example, we have the prohibition against coercing self-incriminating testimony AFTER an arrest, evaded by law enforcement officers tricking individuals into providing information BEFORE an arrest is effected. Foreign persons aren't arrested at all, they're just detained to effectively evade the prohibitions.

              For another example, the Constitution permits Congress to make laws concering persons within its jurisdiction. That would seem to preclude Congress making laws about persons in foreign lands who might want to come into its jurisdiction for a short or longer period of time. That is, strictly speaking, immigration law is un-Constitutional on its face because it seeks to control the behavior of persons who aren't even here. Never mind that so-called immigrants are often just long-time visitors who happen not to have brought enough money to sustain themselves in comfort.
              I don't blame Congress for not wanting to do immigration law reform because, unless they deep-six the whole regimen, it's still going to be un-Constitutional and, practically speaking, unenforceable. How does a state decide who long a person intends to stay here before he does it?
              Congress and state legislative bodies have long passed un-Constitutional laws. The ones that affect foreigners are less likely to be challenged. So, they get away with it. But, it seems instructive that recent assertions of individual rights have been achieved by foreigners (Hamdan, Boumedien) bringing complaints to the Supreme Court.

              •  a problem with your reasoning (9+ / 0-)

                it is considered an inherent right of any nation-state to control its borders, and thus to determine who can come into the country and under what circumstances and for what purposes.  

                This is not parallel to the reasoning on the right to vote, which at the time of the Constitution was solely the province of the individual states, with the first constitutional application being the provision in the 14th amendment at the time citizenship was first constitutionally defined.

                Again, were I seeking any constitutional amendment - and I tend to be a minimalist when people advocate about constitutional changes - it would be a simple declarative statement that all adult citizens have a constitutional right to vote, the sole exception being those who are felons who have not completed their legal obligations under sentencing - in other words, I am for automatic restitution of voting rights once all provisions of sentencing are completed.

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Sun Nov 10, 2013 at 06:06:50 AM PST

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                •  Yes, well, if the people govern, then the nation (5+ / 0-)

                  state has outlived its usefulness. National boundaries have no more ethical justification than segregated neighborhoods.

                  The use of the passive voice, as in

                  it is considered an inherent right of any nation-state to control its borders
                  is a signal that human rights are not predominant. The nation, in practice, is nothing more than a secular authority, whose claim to that authority is based on the use of force to coerce. Moreover, defining the "consent of the governed" as a one-time event which, like the traditional marriage vow to "love, honor and obey until death do us part," is presumably neither amendable or subject to renewal is a concession that governing people should not/would not make.
                  Authority that grows out of practical expertise and service is one thing; authority that is claimed per force or historical precedent is another.
                  Certainly, our Republican friends are royalists at heart and are inclined to believe that the revolution did nothing more than substitute a rotating royalty for life-time rule. But, it isn't necessarily so and it's not what the founders promised, despite all the restrictions whose imposition (on women, natives, slaves, immigrants, children) they countenanced.
                  If there is progress, it is towards the recognition and respect for individual human rights, including the right to participate in governing.

                  Nations, being artificial creations, have no natural rights. Ditto for private corporations, though we have yet to make that clear.

                  •  This is the only truly logically consistent stance (2+ / 0-)
                    Recommended by:
                    hannah, don mikulecky
                    Nations, being artificial creations, have no natural rights. Ditto for private corporations, though we have yet to make that clear.
                    It's an interesting and probably controversial point. But I would agree that it is simply a fact. "Nations" are as much a construct and abstraction as "corporations," even if they do go back quite a bit longer in human history.

                    The modern version of the construct is around three and a half centuries old, since a lot of the generally recognized rules and definitions applying to the nation-state were codified in 1648. It's still a construct though, even if it is an old one.

                    The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ♥ ♥ ♥ Forget Neo — The One is Minori Urakawa

                    by lotlizard on Sun Nov 10, 2013 at 09:20:01 AM PST

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                •  I'd actually go simpler than that (0+ / 0-)

                  Just state that the right of citizens, who are at least 18 years of age and who have not been declared mentally incompetent by a court of law, to vote shall not be infringed.

                  I see no reason to exclude felons.  Hell, they have enough time on their hands that they could easily make themselves significantly more well informed than people who are not incarcerated.  

                  "It was believed afterward that the man was a lunatic, because there was no sense in what he said." "The War Prayer" by Mark Twain

                  by Quanta on Sun Nov 10, 2013 at 09:30:06 AM PST

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                •  What is the logic for excluding felons? (0+ / 0-)

                  What is the purpose of disenfranchising felons - what does it accomplish?  How is society endangered by anyone voting?  Isn't the real danger that government may be able to disenfranchise a class of people by passing laws that may disproportionately tend to make them felons?

                  "But all in all, it's been a fabulous year for Laura and me." - bush, summing up his first year in office, 3 months after 9/11, Washington, D.C., Dec. 20, 2001

                  by rmx2630 on Sun Nov 10, 2013 at 01:55:34 PM PST

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                  •  we can argue this (0+ / 0-)

                    MA used to let incarcerated felons vote absentee

                    in general, felons have not been allowed to vote or hold certain licenses unless/until rights are restored.  In some states the process is automatic.  In others (Virginia for example) it has been very difficult

                    the assumption was that a felon has been convicted of a serious violation of the social contract, one punishment of which is loss of freedom (incarceration) but another is loss of some other rights/privileges.

                    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                    by teacherken on Sun Nov 10, 2013 at 04:37:11 PM PST

                    [ Parent ]

            •  9th.... (2+ / 0-)
              Recommended by:
              don mikulecky, GrumpyOldGeek

              "Just because we didn't say it somewhere in here doesn't mean it doesn't exist." or something like that.

              No snowflake in an avalanche ever feels responsible.

              by Magster on Sun Nov 10, 2013 at 10:12:50 AM PST

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            •  it's a fundamental right (1+ / 0-)
              Recommended by:
              don mikulecky

              implicit in Ordered liberty.

              as the constitution has certain amendments prohibiting
              restrictions on the right to vote, there is then an
              implicit right to vote for all others.

              •  actually not (0+ / 0-)

                you'd be hard-put to find that in any SCOTUS opinion, certainly not given the severe restriction of the franchise at the time of ratification, something to which originalists would inevitably point

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Sun Nov 10, 2013 at 12:46:41 PM PST

                [ Parent ]

                •  I'd suggest an alternate view (0+ / 0-)

                  https://en.wikipedia.org/...

                  The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution, including but not limited to:
                  The right to interstate travel
                  The right to intrastate travel
                  The right to privacy[10] (which includes within it a set of rights) including:
                  a. The right to marriage[11][12]
                  b. The right to procreation [13]
                  c. The right for a woman to choose to have an abortion before fetal viability [14][15]
                  d. The right to contraception (the right to use contraceptive devices) [16]
                  e. The right of family relations (the right of related persons to live together)
                  Any restrictions on these rights are evaluated with strict scrutiny. If a right is denied to everyone, it is an issue of substantive due process. If a right is denied to some individuals but not others, it is also an issue of equal protection. However, any action that abridges a right deemed fundamental, when also violating equal protection, is still held to the overriding standard of strict scrutiny, instead of simply a rational basis test.
                  http://law2.umkc.edu/...
                  The right to vote is the fundamental right that has been the source of the most significant Supreme Court litigation.  The Constitution addresses voting in Article II and four subsequent amendments (the 15th, forbidding discrimination in voting on the basis "of race, color, or previous condition of servitude;" the 19th, forbidding discrimination in voting based on sex; the 24th, prohibiting "any poll tax" on a person before they can vote; and the 26th, granting the right to vote to all citizens over the age of 18).  The Court has chosen to also strictly scrutinize restrictions on voting other than those specifically prohibited by the Constitution because, in its words, the right to vote "is preservative of other basic civil and political rights."

                  Kramer v Union Free School District (1969) is an example of a case in which strict scrutiny resulted in the invalidation of a state voting restriction.  The Court found for a bachelor living with his parents, who challenged a N.Y. law that limited voting in school board elections to persons who either owned or leased property in the district or had children attending schools in the district.  The Court found the law was not  sufficiently narrowly tailored to serve its interest of limiting voting to interested persons.
                  San Antonio Independent School District v Rodriquez (1973) made clear the Court's desire to confine strict scrutiny to cases involving rights that are either explicitly or implicitly guaranteed by the Constitution.  It will NOT be enough, the Court said in its 5 to 4 decision, that a right is very important or has a clear nexus to the exercise of constitutional rights.  In upholding a Texas state financing scheme that left poor school districts with substantially less money to fund education than richer districts, the Court said that however important education might be, and however helpful education might be to voting or the exercise of First Amendment rights, it is not a "fundamental right" of the sort that triggers strict scrutiny under the Equal Protection Clause.
                  sometime, we can sit over a beer and discuss this, but
                  I thought i'd give you some reading.
                  •  well aware of the literature (0+ / 0-)

                    but in fact the Court has never outright declared a Constitutional right to vote and it is important that you cite a case I note well, San Antonio ISD.  Note that is is NOT a fundamental right subject to strict scrutiny.

                    Also note that the current constitutional framework does not prohibit poll taxes except for federal elections.  A state may impose a poll tax as a barrier to voting for state or local office.

                    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                    by teacherken on Sun Nov 10, 2013 at 04:39:41 PM PST

                    [ Parent ]

                    •  ken sometimes something is so fundamental (0+ / 0-)

                      it's not ever litigated.

                    •  i'd suggest you revist Kramer (0+ / 0-)

                      https://en.wikipedia.org/...

                      Chief Justice Warren's opinion began by observing that under then-recent Equal Protection Clause caselaw, alleged infringements of the right to vote must survive careful judicial scrutiny, because "any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government." Therefore, to be upheld, a statute restricting the right to vote must survive "strict scrutiny" by being necessary to serve a "compelling state interest"; the mere "rationality" of the statute is not sufficient.
                      •  Pat, you are missing something (0+ / 0-)

                        despite all the cases you are citing, there are a siginificant number of people, Members of Congress, Law School Professors, who argue that we need an explicit constitutional guarantee of the right to vote because it is not explicit and thus always subject to interpretation that it is not applicable.

                        Sorry, but knowing that I am not going to engage further in this sub thread.  I simply do not have the time.

                        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                        by teacherken on Sun Nov 10, 2013 at 06:25:22 PM PST

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    •  umm - look at the schedule (19+ / 0-)

      There are few minimum wage workers who would be working Sat-Sun and on a Monday Holiday

      those workers already have a problem with having to vote on a Tuesday, although Virginia does allow someone who expects to be outside their jurisdiction during the hours the polls are open on election day to vote absentee either by mail or in person (and most jurisdictions allow in person voting on saturday).

      Rather than sniping on this, why not recognize that the Fairfax Board, which is majority Republican, is doing all it can to ensure that the votes of those who cast them provisionally can be included?

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Sun Nov 10, 2013 at 04:58:43 AM PST

      [ Parent ]

      •  My issue is not with the local board; it is with (4+ / 0-)
        Recommended by:
        jan4insight, codairem, delver, Tortmaster

        the State Board of Elections.  And since the vote is so close, the ruling by the State Board could alter the outcome of the election.  

        And as for your Bush v. Gore comment above, I thought that the decision said very clearly that it was not precedent.  

        •  it did, but SCOTUS has since referred to it (7+ / 0-)

          on several occasions, and it is has been referenced in a number of lower federal courts as well

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sun Nov 10, 2013 at 07:34:51 AM PST

          [ Parent ]

        •  no need to invoke Bush v. Gore at all (3+ / 0-)
          Recommended by:
          don mikulecky, codairem, Woody

          The State Board said that it was acting "in order to 'obtain uniformity in their [local election officials'] practices and proceedings and legality and purity in all elections.'" That is quoting Virginia statute on the legal obligations of the state board.

          Of course that quotation doesn't prove that the state board got this decision right. I'm just pointing out that this is, at least initially, a matter of state law, not federal law.

          "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

          by HudsonValleyMark on Sun Nov 10, 2013 at 07:42:11 AM PST

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          •  The big question is, was Fairfax the only Co. (5+ / 0-)

            allowing this variant procedure? And, if not, were all the other counties similarly stopped?

            It's similar to what originally happened in Ohio, where the (R) SOS had tie-breaking powers, and broke ties in (R) strongholds in favor of expanded early voting, and broke ties in (D) strongholds against expanded early voting . . . and somehow claimed with a straight face that he was upholding uniformity.

            We don't want our country back, we want our country FORWARD. --Eclectablog

            by Samer on Sun Nov 10, 2013 at 08:56:42 AM PST

            [ Parent ]

            •  fair question (3+ / 0-)
              Recommended by:
              patbahn, don mikulecky, rmx2630

              I've seen people who seem to know say that yes, Fairfax was the only such county. At any rate, the memo clearly applies to all counties -- although, as a matter of logic, it could have differential impact if some counties completed their meetings before the memo was issued. I have no reason to think that is the case. (But I'm HudsonValleyMark, just relying on what I've heard and read.)

              It is far from obvious what impact the memo will have in Fairfax, but maybe we will know after the dust settles.

              "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

              by HudsonValleyMark on Sun Nov 10, 2013 at 10:04:15 AM PST

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      •  I "looked at the schedule" so to speak thinking of (4+ / 0-)

        going the absentee route as we have a usual Tuesday commitment that would have to be adjusted to vote in person.

        Yes, it would be possible, but the hoops one has to jump through in our case made it easier to adjust schedule. For many we know, including neighbors not seen between the hours of about 5:30 a.m. through as late as 8 p.m. as they commute and work long hours, that adjustment is less possible. While federal employees get, I believe two hour, voting leave many private firms do not give such leave—and an important meeting trumps voting if you value your job in the contractor world. I know people, past and this election, that fully intended to vote but had to be in the commute grind to make such meetings before six and then got stuck in a meeting or traffic until after seven. The schedule is an effective voter suppression mechanism for NOVA.

        What is needed is early voting without the "absentee" frills of signing affidavits of "valid" excuse and then commuting to one of the in person polling stations in this large county or coping with the schedule of mail that is useless unless you know well in advance you have a valid excuse. If I recall correctly a few decades ago, before the area was as urbanized as now and political divisions were so deep, NOVA representatives tried to change the law making our voting easier and downstate representatives of both parties blocked that effort.

        If we ever get a legislative majority we need to ram that one through, preferably as a constitutional amendment after the quick fix of a statute.

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Sun Nov 10, 2013 at 07:38:55 AM PST

        [ Parent ]

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