A quick overview of the election-related disputes that are likely to reach the justices between now and next Tuesday—and the big one that almost certainly won't.
The efforts of some judges or legislators to deprive people of the liberty of voting or the power of their votes remind me of some of the finer points of Citizens United.
In our “republic” clearly “the people are sovereign.” Citizens United also quoted an earlier dissenting opinion by Justice Douglas, who was joined by Chief Justice Warren and Justice Black: “Under our Constitution it is We The People who are sovereign. The people have the final say. [Public officials] are their spokesmen. The people determine through their votes the destiny of the nation.”
So in Citizens United, SCOTUS emphasized that our powers as sovereigns necessarily included “the ability of the citizenry to make informed choices” about many public servants and public issues. This "ability" is "essential.” “Political speech” (including voting) is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters,” (it is more accurate to say the Constitution secures to voters as sovereigns) the “power to choose” (directly or indirectly) some of our public servants.
“Speech” (including voting) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” (including by voting) is essential “to enlightened self-government and a necessary means to protect it.” The power of enlightened self-government is synonymous with sovereignty. Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power of sovereignty.
“Political speech” (especially voting) is “indispensable to decisionmaking in a democracy.” Voters’ decisions “are integral to the operation of the system of government established by our Constitution.” Any purported “law” that would deprive sovereign citizens of the liberty or the power of voting clearly “must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“For” the “reasons,” stated above, “political speech” (including the liberty and power to vote) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
Montesquieu, too, emphasized the nexus between sovereignty and suffrage. In The Spirit of the Laws he highlighted the spirit of sovereignty:
“In a democracy the people are in some respects the sovereign, and in others [the people are] the subject," i.e., of the laws they create. The primary “exercise of sovereignty” in a democracy is by citizens “by their suffrages.” Suffrage is the speech of sovereigns.
The plain text of our Constitution establishes who is sovereign in America: essentially every “citizen” (Amendment XIV, Section 1) who has the right and the power to vote (Amendment XIV (Section 2); Amendments XV, XIX, XXIV, XXVI). "The sovereign people" of America essentially include all citizens regardless of creed, color, race, sex, wealth or age (after 17). Our public servants should (and should be required to) respect our sovereignty. They should not be permitted to undermine it by obsessing over interests that clearly are not compelling.
You were (unfortunately, but understandably) wrong in your guess about the Virginia case. There was no rationale given because it was an emergency appeal. Will we ever get some kind of written explanation of the reasoning, or will we just never know what the conservatives claim their rationale was?
Well, this morning the Supreme court overruled the District Court and is allowing Virginia to purge 1,600 voters (more to come?). SCOTUS and Roberts have no interest in following the law or the Purcell principal, are completely partisan. What other surprises will we get in the next 8 days, and what hope is there for after the election?
Steve, thank you for this very informative installment! I feel better knowing that the 6 power-hungry justices can't really muddy the water between now and the election. It helps to be able to compartmentalize them (for now).
The efforts of some judges or legislators to deprive people of the liberty of voting or the power of their votes remind me of some of the finer points of Citizens United.
In our “republic” clearly “the people are sovereign.” Citizens United also quoted an earlier dissenting opinion by Justice Douglas, who was joined by Chief Justice Warren and Justice Black: “Under our Constitution it is We The People who are sovereign. The people have the final say. [Public officials] are their spokesmen. The people determine through their votes the destiny of the nation.”
So in Citizens United, SCOTUS emphasized that our powers as sovereigns necessarily included “the ability of the citizenry to make informed choices” about many public servants and public issues. This "ability" is "essential.” “Political speech” (including voting) is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters,” (it is more accurate to say the Constitution secures to voters as sovereigns) the “power to choose” (directly or indirectly) some of our public servants.
“Speech” (including voting) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” (including by voting) is essential “to enlightened self-government and a necessary means to protect it.” The power of enlightened self-government is synonymous with sovereignty. Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power of sovereignty.
“Political speech” (especially voting) is “indispensable to decisionmaking in a democracy.” Voters’ decisions “are integral to the operation of the system of government established by our Constitution.” Any purported “law” that would deprive sovereign citizens of the liberty or the power of voting clearly “must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“For” the “reasons,” stated above, “political speech” (including the liberty and power to vote) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
Montesquieu, too, emphasized the nexus between sovereignty and suffrage. In The Spirit of the Laws he highlighted the spirit of sovereignty:
“In a democracy the people are in some respects the sovereign, and in others [the people are] the subject," i.e., of the laws they create. The primary “exercise of sovereignty” in a democracy is by citizens “by their suffrages.” Suffrage is the speech of sovereigns.
The plain text of our Constitution establishes who is sovereign in America: essentially every “citizen” (Amendment XIV, Section 1) who has the right and the power to vote (Amendment XIV (Section 2); Amendments XV, XIX, XXIV, XXVI). "The sovereign people" of America essentially include all citizens regardless of creed, color, race, sex, wealth or age (after 17). Our public servants should (and should be required to) respect our sovereignty. They should not be permitted to undermine it by obsessing over interests that clearly are not compelling.
It does not matter if it’s one voter or 100,000…
S. Ct. order entered granting Youngkin's stay of the injunction. I guess Purcell applies only against measures that hurt one particular party.
You were (unfortunately, but understandably) wrong in your guess about the Virginia case. There was no rationale given because it was an emergency appeal. Will we ever get some kind of written explanation of the reasoning, or will we just never know what the conservatives claim their rationale was?
Well, this morning the Supreme court overruled the District Court and is allowing Virginia to purge 1,600 voters (more to come?). SCOTUS and Roberts have no interest in following the law or the Purcell principal, are completely partisan. What other surprises will we get in the next 8 days, and what hope is there for after the election?
Steve, thank you for this very informative installment! I feel better knowing that the 6 power-hungry justices can't really muddy the water between now and the election. It helps to be able to compartmentalize them (for now).