U.S. Bans Military Voting

You know, we already have too damn many people who don't take the time to vote as it is, without screwing with active duty service personnel...
 

Ak-84

Banned
I don't think the SC shoots it down. SCOTUS like English Courts before it; has given great deference to the Government's power to regulate the functioning and discipline of the armed forces.
 
I don't think the SC shoots it down. SCOTUS like English Courts before it; has given great deference to the Government's power to regulate the functioning and discipline of the armed forces.

First, this legislation has nothing to do with the functioning or discipline of the armed forces (if that justification was used, it would definitely be brought before the Supreme Court);
second, for voting rights to be changed at the national level requires a constitutional amendment.

I find in very unlikely that Congress and the states would ratify an amendment limiting voting rights when they just ratified amendments in 1964 (elimination of poll tax) and 1971 (lowering voting age to 18) removing restrictions.
 

Ak-84

Banned
The question is not whether it would be politically possible to make such a law, but whther such a law in the hypothetical it passed, would survive constitutional scrutiny.

The answer, not totally clear.
 
The question is not whether it would be politically possible to make such a law, but whther such a law in the hypothetical it passed, would survive constitutional scrutiny.

The answer, not totally clear.

I think it is clear that it would be declared unconstitutional. In my opinion, such a law would not even survive the "rational basis" test of ordinary Equal Protection Clause cases. But the Court has made it clear that a higher level of scrutiny is appropriate where "fundamental rights" like voting are concerned. "We have long been mindful that, when fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined." Harper v Virginia Board of Elections (1966) http://caselaw.findlaw.com/us-supreme-court/383/663.html And remember that here we are talking about depriving millions of people of their voting rights, and in a way without precedent--for there has *never* been any blanket prohibition of soldier voting, though the reluctance to allow absentee voting has at times discouraged it. Indeed, the Court has specifically used the Equal Protection Clause to protect soldiers' right to vote, as in Carrington v. Rash, 380 U.S. 89 (1965):

"It is argued that this absolute denial of the vote to servicemen like the petitioner fulfills two purposes. First, the State says it has a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community. Secondly, the State says it has a valid interest in protecting the franchise from infiltration by transients, and it can reasonably assume that those servicemen who fall within the constitutional exclusion will be within the State for only a short period of time.

"The theory underlying the State's first contention is that the Texas constitutional provision is necessary to prevent the danger of a "takeover" of the civilian community resulting from concentrated voting by large numbers of military personnel in bases placed near Texas towns and cities. A base commander, Texas suggests, who opposes local police administration or teaching policies in local schools might influence his men to vote in conformity with his predilections. Local bond issues may fail, and property taxes stagnate at low levels because military personnel are unwilling to invest in the future of the area. We stress -- and this a theme to be reiterated -- that Texas has the right to require that all military personnel enrolled to vote be bona fide residents of the community. But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. "Fencing out" from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. "[T]he exercise of rights so vital to the maintenance of democratic institutions," Schneider v. New Jersey, 308 U. S. 147, cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents. Yet that is what Texas claims to have done here..

"We deal here with matters close to the core of our constitutional system. "The right . . . to choose," United States v. Classic, 313 U. S. 299, 313 U. S. 314, that this Court has been so zealous to protect means, at the least, that States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State. Oyama v. California, 332 U. S. 633. By forbidding a soldier ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment." https://supreme.justia.com/cases/federal/us/380/89/case.html

Once again, what justification could be given for depriving members of the military of their right to vote, under either "rational basis" or heightened scrutiny? The initial post said to maintain civilian control of the military, but this misinterprets what civilian control means. It means that soldiers must obey orders of their Commander-in-Chief, the president, not that they have no say in determining who is elected. Once can argue that allowing certain speeches by soldiers, even if permissible for civilians, could have adverse effects on military morale or discipline. But how is a solider casting a secret ballot having any effect on morale or discipline?

Once again, remember that the Court in Carrington v. Rash not only saw soldier voting as normal, but condemned attempts to abridge it (whether from fear of how soldiers will vote or from other motivations) in the same kind of language it used to condemn abridgement of civilian voting rights.
 
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Cook

Banned
"Good morning, I'm you're local congressman, I'm running for reelection, and I'm hoping for your vote. Now, you may have heard that I support a proposed amendment restricting your right to vote in presidential elections but... wait..."

Yeah, that's never going to pass.
 

Ak-84

Banned
Carrington was against a State measure. Its not binding precedent for a federal regulation or law.

The Court has a long tradition of defering to the opinions of military authorities on military matters. Once the military has stated something is necessary, unlike other litigants the Court rarely asks them to provide proof.
see for instance 65 Md . L. Rev. 907 (2006)
 
The problem with the military going to the government and eventually the Supreme Court to prevent military voting is that no sane military commander would do so. Even when the US had a peacetime draft, there were issues with getting enough qualified people to accept longer enlistments to take technical training and then stay in long enough to get a payback on that training. For folks to reenlist or to get volunteers to join once there is no draft when past of the deal is "join the military and become disenfranchised" you sinply aren't going to have much of a military force pretty soon. There very people you want in your military, those with education and/or aptitude for technical training are the very ones who tend to care the most about voting. You could hurt military recruiting worse if you required all personnel to be celibate as long as they were in uniform, but short of that hard to see another factor in keeping Americans from joining.

One way to get around this is universal military service, and forcing folks with skills or talents to take the training and stay in longer to get the payoff. How that solves reenlistment I don't know, and would you want to be flying an aircraft maintained by technicians forced to train and serve longer - not me.
 
The problem with the military going to the government and eventually the Supreme Court to prevent military voting is that no sane military commander would do so. ...

Plus such a officer would risk accuzations of unauthorized political activity if he or they did so on their own initiative. If the Congress asks sucha a question when interviewing officers, or the Sec Def & staff ask about this its different. But a officer going straight to the politicians with something like this would bring into imeadiate question his discipline and judgement.
 
Carrington was against a State measure. Its not binding precedent for a federal regulation or law.

The Court has a long tradition of defering to the opinions of military authorities on military matters. Once the military has stated something is necessary, unlike other litigants the Court rarely asks them to provide proof.
see for instance 65 Md . L. Rev. 907 (2006)

(1) Brown v. Board of Education also dealt with state laws; indeed, technically speaking, the Equal Protection Clause applies only to the states. Yet the Court in Bolling v.Sharpe also prohibited school segregation in the District of Columbia. Basically, the Court held that the same prohibitions apply to the federal government via the Due Process Clause of the Fifth Amendment. When the Court pointedly says that it is illegitimate to deprive the military or any other group of their vote because of worries about how they will vote, it seems unlikely to me that they will add, "but of course if Congress does it, it's OK." Carrington made it clear that the court regarded soldiers' voting as part of voting rights in general--and therefore subject to heightened scrutiny.

(2) The Court has indeed been deferential to the military's pleas of necessity--but disfranchising soldiers, unlike, say, excluding gays from the service or excluding women from combat, is hardly likely to be something that the military urges! It is far more likely to be something that Congress imposes on a military that does not want it--and the Court will know that. (True, some generals have declined to vote--General Marshall reportedly never voted. But if you had asked him whether ordinary soldiers should be deprived of voting rights--leaving aside questions of absentee voting--the idea would certainly have seemed strange to him.) And once again remember that things like military restrictions on the speech of soldiers are centuries-old. There is simply no analogy to the right of soldiers to vote, which existed from the beginning (again leaving aside the questions of absentee voting, bona fide residence, etc.--none of which could justify a blanket prohibition on soldiers' voting).

(3) Judicial deference to Congress in regulating the military, while great, is not unlimited. Suppose Congress today were to outlaw interracial marriages among soldiers. Do you think for a second that the court would sustain it?
 
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Ak-84

Banned
1) We are for this argument presuming that such a measure has been passed and is before SCOTUS. Ignoring the practical political issues, which are admittedly legion (no pun intended).
2) You cannot compare civilian cases decisions to ones on cases affecting military policy. As various SCOTUS decisions themselves state. Now secondly, Carrington was not about military policy, the military itself was ancillary to the case. It was about a State policy affecting a class of people, in this case, military personnel stationed in Texas, however, it could just as easily have been about a non-military group, say FBI agents or firefighters. In all cases, it would not be a case about military made policy and therefore not of much relevance to the question at hand.
3) Moving on from the above, in a case about military policy, once the military has stated that it is necessary for the proper functioning of military affairs, the opposing side has to convince the Court not to grant deference, a monumental task. I'll agree that deference is not unlimited, indeed I have specifically stated it is not. I doubt if the US Military decides to take a leaf out of their Afghan allies playbook and decide that gangrape is an appropriate disciplinary tool, SCOTUS would strike it down.

In some cases its not totally clear. Your example of interracial marriage is one instance. The US Military bars lots of things civilians won't be permitted to. General Order No 1, forbids fraternisation with locals and sexual contact of any kind (and a hell of a lot more things), which they could never do for civilians (at least not with a criminal penalty). Adultery is a fairly serious crime in the military. So yeah, if the military can put up a half decent reason and one which is limited to scope, I can see the Court allowing it. Same with barring voting, if the military brass can give some sort of half-sensible reason, then again, it would be difficult to get it overturned,
 
1) We are for this argument presuming that such a measure has been passed and is before SCOTUS. Ignoring the practical political issues, which are admittedly legion (no pun intended).
2) You cannot compare civilian cases decisions to ones on cases affecting military policy. As various SCOTUS decisions themselves state. Now secondly, Carrington was not about military policy, the military itself was ancillary to the case. It was about a State policy affecting a class of people, in this case, military personnel stationed in Texas, however, it could just as easily have been about a non-military group, say FBI agents or firefighters. In all cases, it would not be a case about military made policy and therefore not of much relevance to the question at hand.
3) Moving on from the above, in a case about military policy, once the military has stated that it is necessary for the proper functioning of military affairs, the opposing side has to convince the Court not to grant deference, a monumental task. I'll agree that deference is not unlimited, indeed I have specifically stated it is not. I doubt if the US Military decides to take a leaf out of their Afghan allies playbook and decide that gangrape is an appropriate disciplinary tool, SCOTUS would strike it down.

In some cases its not totally clear. Your example of interracial marriage is one instance. The US Military bars lots of things civilians won't be permitted to. General Order No 1, forbids fraternisation with locals and sexual contact of any kind (and a hell of a lot more things), which they could never do for civilians (at least not with a criminal penalty). Adultery is a fairly serious crime in the military. So yeah, if the military can put up a half decent reason and one which is limited to scope, I can see the Court allowing it. Same with barring voting, if the military brass can give some sort of half-sensible reason, then again, it would be difficult to get it overturned,


(1) Once again, Carrington is relevant because it makes it clear the high priority the Court assigns to voting rights--including the voting rights of soldiers, which it clearly regards as a normal part of American democracy. That would at the very least still be an important factor even if the law were by Congress--Congress would be trampling on what had traditionally been a considered a basic right, including that of soldiers. (By contrast, most recent and unsuccessful attempts to vindicate the rights of soldiers in courts were trying to establish new rights for soldiers, and it is certainly true that in such cases the Court has tended to defer to the military's judgment. It had never been thought that women had the right to serve in combat, etc. By contrast, it had always been assumed that soldiers had the right to vote, at least if they were in the relevant jurisdiction.)

(2) It is true of course that some things are against the law for soldiers that could not be prohibited for civilians. (But adultery is a bad example, because the Supreme Court has never said that laws against it are unconstitutional, and they remain on the books in many states. http://www.nytimes.com/2012/11/15/us/adultery-an-ancient-crime-still-on-many-books.html) But I cannot take seriously the notion that a law forbidding the marriage of black and white soldiers today would be seen by the court as anything like a close case. (Admittedly, if there is a Congress crazy enough to pass it, the Supreme Court will in all likelihood be different from that of OTL, but that is another matter.) This is nothing like prohibitions against fraternizing with natives, which have an obvious security justification. Even for prisons--which like the military have traditionally been seen as an institution subject to special security concerns, where courts have been reluctant to second-guess officials' judgments--racial segregation has been declared unconstitutional, though the security arguments for it there are a thousand times stronger than for the military. http://www.washingtonpost.com/wp-dyn/articles/A46810-2005Feb23.html


(3) To get back to voting rights once again, and why it differs from other military prohibitions: all these other things are prohibitions that the military wanted to enforce. This will be something imposed on it by Congress. (Yes, I know we have to make the crazy assumption that Congress will pass such a law. But I don't think we have to add to it the even crazier assumption that the military will have requested them to do so!) There is just no halfway-plausible military justification for it. Preventing political brawls among soldiers? It's hard to see how it can do that--even people who can't vote can argue about politics! Maintaining civilian control of the military? Officers loudly objecting to presidential policy might present a problem for civilian control--but ordinary soldiers casting a secret ballot could hardly do so. (Civilian employees of the federal government, no less than military ones, have the obligation to obey the laws and the lawful orders of the President, who is the chief executive as well as the commander-in-chief of the military. But imagine if the Hatch Act prohibited not just certain political activities by federal employees--though even those have been subject to serious though unsuccessful constitutional challenges--but forbade them to vote!) Really, the only justification would be not liking the way soldiers vote, which has nothing to do with military discipline, and which the Court in Carrington specifically said was not a justification for restricting the right to vote of soldiers or any other group.
 
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