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7th Cicruit holds no constitutional right to absentee ballot

In Griffin v. Roupas, the Seventh Circuit (through Judge Posner) held that there is no constititutional right to an absentee ballot. Here is how Judge Posner described the suit:

The plaintiffs, who appeal from the grant of a motion by the defendants (the members of the Illinois State Board of Elections) to dismiss the complaint for failure to state a claim, are working mothers who contend that because it is a hardship for them to vote in person on election day, the U.S. Constitution requires Illinois to allow them to vote by absentee ballot. Illinois allows voting by absentee ballot only if the voter either “expects to be absent [on election day] from the county in which he is a qualified elector” or is unable to vote in person because of physical incapacity, religious observance, residing outside his precinct for attendance at a college or university, or having to perform specified official duties—election judge in another precinct, certain other election duties, or serving as a sequestered juror. 10 ILCS 5/19-1. Failing as they do to qualify for any of these exceptions, the plaintiffs ask us to order in the name of the Constitution weekend voting, all-mail voting, an unlimited right to an absentee ballot, a general hardship entitlement to such a ballot, or some other change in Illinois law (Internet voting from home, perhaps?) that would allow people who find it hard for whatever reason to get to the polling place on election day nevertheless to vote.

Comments

Yo, you owe it to yourself to listen to the oral arguments and read the briefs in Griffin v. Roupas to see that what Posner actually did was completely distort the plaintiff's arguments in order to invent a constitution doctrine that nobody has any right to challenge anything any legislature does to suppress the vote.

I ask you to check in at Villagevoice.com on Tuesday to read my piece on the case.

I read the Village Voice piece, as well as the ruling and the briefs, and it is Perlstein who completely distorts Posner's ruling.

The most fundamental problem is that the case was not about something the legislature did to "suppress the vote." The plaintiffs did not allege such, and no facts support that.

Another problem is the insinuation that the decision was "rushed" to come out before election day -- implying that the ruling was designed to impact the election. But Perlstein misunderstands the procedural history. Had the decision not been rushed, the situation would have been the same -- the plaintiffs would not have been entitled to absentee ballots. The ruling left the status quo in place, so there was no reason to "rush" it if the goal was to affect the election.

Moreover, he places great emphasis on the fact that Posner wrote the decision. But four judges (Posner, his two fellow circuit court judges, and the district court judge) have now ruled the same way. The district court judge, Ronald Guzman, was appointed by Clinton.

He rants that Posner "fantasized" that the plaintiffs wanted the court to order weekend voting, but in fact Posner mentioned that as a possible remedy, as did the plaintiffs in their brief. (I don't know whether Perlstein didn't read the brief or didn't read Posner's opinion.)

Finally, Perlstein complains that the ruling will "make it difficult for anyone to challenge any voting statute passed by any state legislature anywhere." That is an overstatement, but it also misses the point, which is that it is supposed to be difficult. The courts are not the place to write statutes. To challenge a statute, one must show a constitutional violation -- a high standard -- not merely show that one has a better proposal than the one currently in place.

For the plaintiffs in this case to prevail based on their arguments, they had to, essentially, show that it was unconstitutional to not permit absentee voting for everyone.

Perlstein mentions "fraud," but to the extent it was part of their case, they did not have standing to bring it, and to the extent that Perlstein points out the historical "machine pol" problem with absentee ballots and fraud, it undermines their argument. That would be an argument for eliminating the use of absentee ballots, not expanding their use.