John Greabe – “Your Vote Is Your Voice”
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John Greabe – “Your Vote Is Your Voice”


[ Silence ]>>Hello, my name is Matt Cravens
[phonetic], and I’m a co-manager of the Policy Research Shop here at the Rockefeller Center, and
also a post-doctoral fellow. It’s with special excitement that I
introduce to you today Professor John Greabe, whose talk is on the New Voter
Registration Law in New Hampshire and its anticipated effects
for state residents here. As one or two of you may know, there is
an election that’s slowly approaching [small laugh]. In New Hampshire, a new law allowing poll
workers to ask for photo identification to cast a ballot and requiring out-of-state
college students to list New Hampshire as their permanent residence to vote
was passed in June of this year. But its implementation, specific provisions,
has sort of been slowed down and debated in the courts as recently as September. Many of you may know that Stratford
County Superior Court ruled that the new law would discourage
some college students from voting, and so its implementation
might now be put on hold, and the New Hampshire Supreme Court two
weeks ago made some further clarification. These laws, as many of you know, are
taking a lot of sort of debate in many of the courts in many of the states. As a scholar of voter turn-out and
electoral policies, I’m confident in saying that electoral laws often shape voters’
behaviors in non-subtle little ways that we don’t always know about, for
some groups more than others, of course, for college students maybe more, maybe less. But often times the effect is more than
the public would like to recognize. Voter Identification Laws such as New
Hampshire’s have diffused very quickly throughout state capitals since 2010, and have
really kind of changed the way that we talk about elections here in the United States. They’ve transformed the debate
over electoral policies from their often quiet administrative discussion
among state and local officials to a national, often very heated and partisan, debate. We were just talking about sometimes how
electoral laws can shape up to be more partisan than they have been in previous years. But at the heart of the issue is whether New
Hampshire’s Voter Identification Law has the intended effect of reducing in-person
voter fraud as some proponents claim, or whether it prevents eligible
voters from casting ballots. Specifically, to what extent does New
Hampshire’s law require permanent residency changes for college students,
and how does it affect you all, college students and other groups? Several Rockefeller Center
students here, actually, have contributed to this debate this year,
presenting a non-partisan research report. If any of you are here — I don’t see any of the
students, but they were actually able to testify in the New Hampshire house
on this very issue in March, and so it was an exciting time
for those Rockefeller students. And that being said, this talk
comes to us today on a very timely and important topic in a
very unique time and place. And so it is with very great sentiment
that I introduce Professor John Greabe. Professor Greabe is a professor of law at the
University of New Hampshire School of Law, where he has taught constitutional law,
First Amendment law, civil procedure, conflict of laws, and judicial opinion-writing. His scholarship covers numerous areas,
including constitutional law, civil rights, and federal jurisdiction, and work has
appeared in the “Columbia Law Review”, the “Notre Dame Law Review”, “Boston University
of Law Review”, and “Constitutional Commentary”, along with several others
including the “William and Mary Bill of Rights Journal”, just to name a few. Earlier this year, his paper entitled “A Federal
Baseline for the Right to Vote” was published in the “Columbia Law Review” sidebar, and
additionally, on a more personal note, Professor Greabe is a Dartmouth
alum and, as I understand it, his son is also a student here at Dartmouth. This, of course, makes the talk a very special
one for us here at the Rockefeller Center, and we, of course, hold no biases whether or not he is a public policy major
or minor or not [small laugh]. Professor Greabe also received his
law degree from Harvard Law School, and has served as a law clerk to
numerous judges within the US Supreme — oh, sorry, Court of Appeals
for the First Circuit. We couldn’t be happier to
have him with us today, so please join me in giving him a warm welcome. [ Audience Applause ]>>John Greabe: Thank you very much, everybody. It’s really — my parents would be so proud. I get invited to — I went to Dartmouth;
now I get to come back and speak. And I do want to say, my son does
love me but he’s not here [laughs]. He, ironically, is at UNH, so I’m up
here from UNH today and he’s at UNH, but he’s playing on a club baseball
team here and they have a — which I love baseball, but I wouldn’t
want to play baseball at night on October 22nd in New Hampshire. They have a night game in
Durham on a Monday night. I don’t know; you’ve got
to love the game, I guess. So anyway — but I’m really
— thank you, Matthew — I’m really, really pleased to be here. I wanted to start by really just making sure,
especially as I look around the room, you know, there — I already know that there are
people here with a great deal more expertise than I certainly have about
the new law, and the mechanics. And, you know, Matthew and I were talking about,
before the talk, how sometimes issues that come up with respect to electoral law tend to be considered a little too
much maybe individual silos, like the wonky people will evaluate the — you know, what the empirical evidence is telling
them perhaps with less dialogue than there ought to be with some of the people
who are more generalists. And I know, certainly, this isn’t even an area that I have historically
written in or been involved in. I mean, my area is constitutional
law, generally, in civil rights, and federal jurisdiction. But I’m really glad that — to — starting about
a — well, almost two years ago now, I guess, to have been drawn into this topic with a phone
call from somebody who is in the audience today, David Pierce, who is a member of the house
and, I understand, running for the Senate, standing for election in the Senate, and
became involved in this particular topic because of concerns that the New Hampshire house
was disregarding some federal constitutional limits when it began the process of thinking
about changing New Hampshire’s voting law. And when I took a look at
the issue, I agreed strongly. I think that what the New Hampshire house was at least initially considering
doing was patently unconstitutional. So what I thought I would do — I think the
idea’s for me to talk for about a half-hour or so, and then for some questions and answers. If I say something along
the way that is wrong — for those of you who know
how all of this works — or is confusing, please feel free
to stop me along the way to — and I’m happy to clarify anything. My plan is to talk for about 10 or 15 minutes
about what I understand to have unfolded here in New Hampshire over the last — well, really,
since the 2010 elections with respect to voting in New Hampshire, and then to argue for about
10 or 15 minutes that the US Constitution, and United States constitutional
law, actually has more to say than I think has been fully appreciated
about what states indeed can do with respect to regulating the right to
vote within a particular state. And then I’ll be glad to answer questions or
really facilitate any conversations that all of you who are interested in this
might like to have among yourselves. So anyway, David called me last year when
the New Hampshire house proposed legislation that would have created a conclusive presumption
that students and military personnel — focus on students, though —
are domiciled in the state from which they moved to attend school, okay? So New Hampshire law was basically going to say,
“If you move from out of state to New Hampshire to attend a school, we are going to conclusively
presume, without any more examination of the facts, that you are a domiciliary
of the state from which you moved.” Does that — that’s the correct
characterization of the initial law as proposed. And we talked on the phone,
and I said, “Wow, you know, that’s not something I know a lot about,
but that doesn’t sound right to me.” And David really educated me. And the more I looked into it, the more
jarring I found this proposed legislation. I mean, think about what this meant. I teach at the University of
New Hampshire School of Law, which is formerly Franklin Pierce. Those of you who have been in New
Hampshire for a while probably know us more as Franklin Pierce, but located in Concord. We regularly have a mid-career
— people come as law students. So under this law, imagine a new law
student who comes from out of state to attend the University of
New Hampshire School of Law. She’s married. Perhaps her husband takes a job
in Manchester or in Concord. They buy a house in Concord, and she settles in
to go to law school for the next three years. Under this law, this particular law student
couldn’t vote within the state of New Hampshire. She would be conclusively presumed to be a
domiciliary of the state from which she moved. Well, think about that for a second. There’s a big problem with that. Would the state from which she moved consider
her to be a domiciliary on those facts? I mean, she has no intention to return. She has no tie to the state. New Hampshire can’t decide that you’re
a domiciliary of someplace else, okay? Perhaps New Hampshire has
something to say about whether or not you’re a domiciliary of New Hampshire. I’m going to get into that in a moment
because I think it actually has less to say about that than it thinks it does. But it certainly can’t be in the business
of defining domiciliary status for people from other states, and saying that
people in other states will be considered to be domiciliaries of those other states. I mean that runs counter to all sorts of
constitutional principles about full faith in credit, privileges or immunities, and the
way more generally that the states are obliged under our constitution to interact with one
another which, you know, requires mutual respect in commonality, respect for
judgments of other states. Okay, so we started to look at
this, and there was a hearing held. It was in February, and there were all
sorts — it was an interesting day. It was interesting for me. There were all sorts of students from different
schools, including Dartmouth, in attendance. And I gave testimony before the
House Election Law Committee. And I opined; as I’ve looked into it, it was
clear that this statute was unconstitutional. I mean, I think the out-of-state law school
example that I give provides, you know, a real-life example of somebody who could not
be disenfranchised, constitutionally speaking. But — and I’ll get into the federal
law a little bit more in just a moment, but just for now, take my word for
it; New Hampshire couldn’t do that. And I basically got up and I
talked about some federal cases that made clear why New Hampshire could not
conclusively presume that people who came to the state for certain purposes
were not domiciled within the state. I keep, by the way, using this term domicile. This is a term that, you know, in law schools
we get used to [chuckles] pretty quickly because it’s a term that’s used
throughout different areas of the law. It’s an instrumental term. It’s a term that arose — it’s
an idea that’s driven by the fact that for certain legal purposes the law needs
to assign you to a particular jurisdiction. All right, so we see domicile come up with
respect to wills, trusts, and estates, for example, because the law of the place
where you die generally governs, okay, the administration of your estate. Domicile is also an important concept
in the area of federal litigation, especially under a grant of jurisdiction that the constitution provides
known as diversity jurisdiction. It goes all the way back to the founding, the idea being that we cannot trust
home state courts to be fair in cases where there is a lawsuit between somebody
from out of state and somebody in-state. And so in many of those cases the out-of-state
person has the power either to bring the case in federal court in the first instance or to
remove — you know, if you’re a defendant, to remove the case to a federal court where the
idea would be you’d have a more neutral judge. Okay, well, in order to figure out what
state you’re a citizen of for purposes of diversity jurisdiction, domicile is used. Domicile is used for a number
of other purposes as well, so that’s why I keep coming
back to this word domicile. In any event, we — you have a question?>>In the state of New Hampshire,
you have two different terms, domicile and [inaudible], the
difference between the two?>>John Greabe: Yes, I mean, domicile,
everybody — under the Law of Domicile, everybody has one domicile and only one
domicile at any particular point in time. You can, however, be a resident of
more than one jurisdiction at a time. So the problem is, those laws are — those
words, rather, are often used interchangeably by people who aren’t thinking
specifically about the term. But domicile — again, the idea
of a domicile law is to assign you to one particular jurisdiction in situations
where the law needs you to be considered within one particular jurisdiction, all right? So you can be a resident of more than one state. You cannot be domiciled in more than
one state at any one point in time. As long as I’m talking about it, why don’t I go
ahead and give you the definition for domicile. What does domicile require? It requires a physical presence in
a state, okay, and it requires — and this is going to sound really weird,
but I’ll explain why it goes this way — it requires an absence of any intention
to be domiciled elsewhere, okay? And it gets framed in the negative, that way to
avoid the problem of, well, college students. What about people who come to Hanover? They have no intention of moving back
home, moving back in with their parents, but they don’t know where
they’re going afterwards, but they’re pretty sure they’re
not staying in New Hampshire. Okay, lots of older definitions of
domicile would say that that group of people are not domiciled
within the state of New Hampshire because they don’t have any definite or a
permanent intention to stay in New Hampshire. Well, what’s the problem with that? The problem is that that group of people,
okay, would not be domiciled anywhere. They’re not domiciled in their old state,
and if we say they’re not domiciled here because they have plans to move on in the
future, okay, they would be without a domicile. And those people, if they’re United States
citizens and they live within the United States, okay, they wouldn’t be able to
vote within any particular state, okay, so that would be a problem. So domicile is often most usefully understood
in negative terms in that way, okay? And it’s basically what you think it is; it’s,
you know, what’s the center of your life? Now for certain people, it’s kind of hard. It’s kind of hard to know
where you’re domiciled. I know when I came to Dartmouth — I grew up in
Chicago, you know — when I came to Dartmouth, I didn’t plan to move back in with my parents. I didn’t know where I was going next. In fact, I was thinking about law school
pretty early in my college career, but I didn’t know where I was
going to go to law school. I would argue that I was domiciled
here in New Hampshire, okay? It was the center of my life, and I didn’t
have an express intention at any one point in time to be domiciled elsewhere. All right, so anyway, to get back to the story of what New Hampshire was trying
to do, the bill was proposed. I gave the testimony suggesting
there was a constitutional problem with creating a conclusive presumption that out-of-state students were
not domiciled within the state. The bill’s sponsor stood up and gave
really a quite a provocative speech. Representative Gregory Sorg from Easton,
who had sponsored the bill, suggesting — and I’ll actually read to you from his
testimony on the floor of the state, okay? He said — Representative Sorg defended
the bill, explaining that it was necessary to keep — and I’m quoting here — “transient
inmates of a college from drowning out the votes of permanent inhabitants with a long-term
stake in the future of their community.” Provocatively, Representative Sorg
also denigrated student voters as “a largely monolithic demographic group
comprised of people with a dearth of experience and a plethora of the easy self-confidence that
only ignorance and inexperience can produce, whose youthful idealism is focused on remaking
the world with themselves in charge, of course, rather than with the mundane
humdrum of local government.” Okay [background laughter], striking, right,
because the representative is being clear. This is a disfavored group of voters, right? This isn’t a fight about where
they’re domiciled; this is an argument that this group of voters are dangerous. They’re dangerous generally; I mean,
that criticism doesn’t just apply to students who vote in college towns. I mean, that’s just as much of a
problem for students who vote anywhere. Well, you know, unfortunately the 26th Amendment
says that everybody 18 years of age and older who is a United States citizen has a right to
vote, you know, unless you’ve committed a felony or something like that, so that’s not really
I don’t think a terribly strong argument. But what was most interesting to me
was when the federal case law that ran against his position was pointed out to
him, Representative Sorg, who’s a lawyer and who took an oath presumably to
defend the United States Constitution when he assumed his seat, basically said, “I’m
not interested in federal decisions about this because we know that federal courts
don’t respect state rights sufficiently.” And I remember thinking, “Wow, well,
you know, there’s disagreement, but then there’s just dismissing out of hand.” And I say this because I think it’s really,
really important to understand this dynamic with respect to the student
voter law in New Hampshire, and with respect to what’s going
on in our legislature right now. Representative Sorg also chaired a
committee that issued a report last December which recommended that New
Hampshire no longer participate in any joint federal state programs unless
you could point to a specific provision of the constitution which authorized
federal government involvement in the area and a provision of the “Federalist Papers” which
contemplated federal involvement in the area. Now the “Federalist Papers”, as many of you may
know, were newspaper editorials written by — predominantly by Alexander
Hamilton and James Madison. Also, a few of them were written by John
Jay, trying to persuade voters in New York to ratify the constitution when it was out
for ratification, when it was proposed. It’s not a user’s manual for the constitution; it’s not a legislative history
of the constitution. It’s the subjective views of some
admittedly influential people at the time arguing in favor of ratification. You know, we are a country of laws, not of men. The idea that the “Federalist Papers” would
determine the legitimacy of federal involvement in an area, not so persuasive to me. But even more troubling, we see another idea. In that same committee report,
Representative Sorg — and he got a majority of his committee
to vote in favor of this report. They said that federal decisions, decisions
by federal courts, would be inadmissible — that’s the term — inadmissible
in determining whether or not the federal government
had a right to be involved in the particular policy
area under consideration. This is the language of nullification. This is Mississippi, Circa 1860, okay? And the idea that that sort of analysis is
carrying the day in one of our two branches of government, that to me is something that has been under-appreciated
in the last couple of years. You know, we fought a civil war about the right
of states to opt out of the federal system. Okay, and I bring all that up today
because I do want to suggest, again, that federal law does supply more
constraints in this area on what states may do than has been popularly appreciated. Now that doesn’t mean —
that doesn’t mean that — I just want to sort of jump to the end of my
talk because I actually think I have something to say that’s not good news for either
political side, and yet I do think it means that students should have great, great latitude
to determine their domiciles for themselves and vote where they believe
that they are domiciled. But I also do think that once a
student makes that determination, that the student should view himself or
herself as a citizen of the particular state in which they have said that they’re
domiciled, and that may well carry along with it certain other civic entitlements,
yes, but also civic obligations, all right? So I don’t think it’s simply a matter
of a college student saying, “Well, where will my vote count more, the state
I come from, the state I go to school?” and allowing that determination
to guide the decision. I don’t think that’s the principle upon
which the decision ought to be based. It ought to be based on where that
student in good faith believes herself to be domiciled at the relevant point in time. Okay, so that gives the basic
New Hampshire background. That law, by the way, was tabled. It was never enacted, but subsequently, as we
know, New Hampshire did take up voter ID again, and the law that, you know, I think
many people here are familiar with, which is going to require the presentation
of a photo ID, a government-issued photo ID, not this election cycle but
starting in 2013, okay? That law was enacted. That law, by the way, has been
approved also by the Justice Department. Okay, it’s been upheld under
the Voting Rights Act, a federal statute that bizarrely
applies to New Hampshire, okay? The Voting Rights Act is a
federal statute you may all know. It was passed in the mid-1960’s, and
it was a civil rights statute designed to counteract measures, particularly in southern
states, that were undertaken to interfere with the right to vote along racial
lines by a course of history, and coverage under the Voting Rights
Act was dictated by certain statistics, as I understand it, about
minority voting participation. For whatever reason, okay, at the relevant
point in time, New Hampshire had so — such a low level of minority participation in
voting that it, along with the entire south, okay, became subject to this Voting Rights Act. And it still is subject to
the Voting Rights Act today, and so when New Hampshire changes its voting
laws, it has to actually submit its laws to the Justice Department in Washington,
DC, okay, for what’s known as preclearance. The New Hampshire statute that was enacted over Governor Linch’s veto earlier this
year has been precleared and approved, and quite honestly it’s a relatively
mild version of photo ID when compared to some other measures that have been adopted
elsewhere in the country that are running into, by the way, trouble in court
systems throughout the country. So in a nutshell, okay, those of you who are students are interested
about this upcoming election. If you are — my argument is if
you are domiciled here, okay, you all have a physical presence here so that’s
taken care of, okay, unless you view yourself as domiciled elsewhere, okay, and
that’s something inside your mind. That’s something that you’re going
to have to decide for yourself. You are perfectly entitled to register in
New Hampshire and vote in New Hampshire. There’s still a few days to register
to vote prior to the election. It’s 10 days before the election, which I believe it is October
27th; is that the deadline? But then if you don’t register by that deadline,
you can still register to vote on the same day. Okay, there still is same-day voting in New
Hampshire, which may be surprising to people because you would think, “Wow, the people who passed this recent law must not
be enthusiasts of same-day voting. Why did they leave that provision alone?” Well, the reason they left that provision
alone is if they got rid of that provision, New Hampshire would then be subject to
the Federal Motor Voter legislation. Okay, you can opt out of Motor Voter if you have
same-day registration, okay, so in any event, if you are a student, you can register to
vote and you can vote in New Hampshire. Okay, you can vote in New
Hampshire if this is your domicile. You will not be required to show a photo ID
this upcoming election, though I would guess that almost — that everybody here on Dartmouth
campus would actually have a valid photo ID because your student ID is sufficient
for this upcoming election, right? Now after September First of 2013,
that’s not going to be true anymore. You’re going to need — it’s a narrower list of
identifications that are going to be sufficient to permit you to vote, but still
even after September First of 2013, an out-of-state driver’s license is
going to be adequate, for example. So you don’t have to have a New
Hampshire driver’s license down the road. I’m going to keep the focus
on this upcoming election. You — if you don’t — if you
go in to vote in this election and you don’t have the requisite ID, or you
choose not to show it, you can still vote by filling out an affidavit, okay, attesting
that you are entitled to vote in the state of New Hampshire, that you meet
the voting requirements, okay, which basically again boils down to domicile. Now if you do that, okay, you will get
a follow-up letter from the Secretary of State’s office asking you
whether in fact you did vote, okay? You don’t suffer any criminal penalties
or anything if you don’t respond to that Secretary of State’s letter. There’s no penal sanction attached to it, but
if you don’t, reference will then get made to the Attorney General’s office of the state, and the Attorney General
will follow up with a letter. Again, there’s no actual positive law
requirement that you do anything in response to these letters, but if you don’t
it will trigger an investigation, or that’s the idea, at least. It would still, I suppose, be up to
the Attorney General in his discretion, or his office’s discretion, whether or
not to undertake such an investigation, but the idea is to create data to analyze
whether in fact voter fraud is taking place, and whether people are fraudulently using these
affidavits to vote in New Hampshire elections. Okay, what’s the federal law story here? And you might be surprised to know that for most of our history there’s been very little
federal protection of the right to vote. Okay, the constitution itself doesn’t in
terms say that we have a right to vote. Okay, it assumes that we will be voting, okay? The original constitution, the one that came out of Philadelphia before all the
amendments were attached to it, okay, made those who are eligible to vote in
states for members of the State House of Representatives also eligible to vote
for the Federal House of Representatives. Okay, that’s Article One of the constitution. The 17th Amendment to the
constitution passed in the second half of the 19th century changed the selection
of United States senators from being within the prerogative of state
legislatures to popular election. Okay, it wasn’t until the 17th Amendment that
we voted for United States senators, okay, and the same process was adopted with
respect to senators as had been the case with members of House of Representatives. But it’s not really until you get
into the amendments that you start to see explicit mention made of
federal rights with respect to voting. The big one, of course, is in
the 15th Amendment, 13th, 14th, and 15th amendments were the three amendments
adopted right after the Civil War ended. 13th Amendment did away with slavery. 14th Amendment did a whole bunch of things,
contains the equal protection clause, a state due process clause, all sorts of stuff; that’s the most heavily litigated
of these three amendments. And the 15th Amendment made it illegal
to discriminate on basis of race with respect to the franchise, okay? The 19th Amendment, okay,
wasn’t — that’s still less than a hundred years old, believe it or not? That’s when women received the franchise,
okay, with the adoption of the 19th Amendment. Okay, and the 24th and 26th amendments
also make mention of the franchise. The 24th Amendment outlaws poll taxes,
okay, which were used to dissuade, in particular, minorities from voting. The 26th Amendment lowered the voting
age from 21 to 18 during the Vietnam War when it struck people as anomalous that
people could be conscripted and sent to war and die for their country but didn’t have a say in who was being elected to
represent them in Washington. But all of that is just indirect evidence of an
understanding that there is something special about the right to vote at the federal level. But again, for most of our history, the vote was
pretty much left to the states, okay, to handle, to regulate, and to administer as they saw fit. It wasn’t until the Warren court in the
1950’s, okay, and, you know, the Warren court, of course, led all sorts of
changes in civil rights law. Well, one of those was to elevate the right to
vote as a specially protected federal right. It was done in conjunction with
the equal protection clause. But we start to see references being made to
the right to vote being fundamental in cases in the late 1950’s, and into the early 1960’s. Well, that use of that word
fundamental is a very important word in constitutional law; it’s a signifier. It means that if you interfere
with a fundamental right, you are facing more skeptical
scrutiny from a court. Okay, so fundamental rights, okay, trigger
what is known as skeptical judicial scrutiny, and regulations that infringe fundamental rights
are presumptively at least problematic, okay? Now if the right to vote were a full,
unadulterated fundamental right, we would see all sorts of lawsuits striking
down the various measures that have been taken around the country over the
last couple of years, okay? What complicates things is that the right
to vote, although described as fundamental, really isn’t fundamental in the same way
that the right to free speech is, okay? What’s happened over the past couple of
decades is the Supreme Court has backed off that characterization and said, “Well, states still have enormous
latitude to regulate the franchise.” And so there’s a threshold
question that needs to be asked. First question is, is what the state’s doing, is that severely impacting the
right to vote, severely, okay? If the answer to that question is no, well,
then, we just review what the state’s done to make sure that it’s properly tailored,
that it’s an appropriate measure. But if the answer to that question is yes, if
there’s a severe impact on the right to vote, well, then, we do the old strict judicial
scrutiny that almost inevitably leads to a conclusion that the
law is unconstitutional. All right, so that has paved the way, okay, for
all sorts of decisions that would seem to be at odds with treating the
right to vote as fundamental. For example, literacy tests, okay? Although under federal law literacy
tests are precluded, that’s federal law. The Supreme Court upheld the constitutionality
of literacy tests under the Warren court, and that’s never been overturned, okay? Felons can’t vote, okay, so you can have —
you can be stripped of your right to vote. Of course, we know that voter ID, in a fracture
decision by the Supreme Court a few years ago, the constitutionality of voter ID measures
was upheld, so there’s all sorts of ways in which the state can permissibly regulate. I don’t think — I have to tell you, I don’t think that New Hampshire’s
new Voter ID Law is very likely to be successfully attacked
on constitutional grounds. Again, it’s much more moderate than many
of its counterparts around the nation. Now that said, okay, the constitutionality
of a law doesn’t establish its wisdom, right? I think may people would ask,
okay, “Is this necessary? Is this going to have a salutary
effect on our public policy? How much voter fraud has
taken place in New Hampshire?” Because the idea of adopting this photo ID — the idea behind that is to
counteract voting fraud. Well, do — have we developed evidence? Have we developed an empirical basis
for concluding that this is necessary, especially in view of the fact that there are
populations for whom getting this ID is going to prove to be a significant
barrier to casting a vote, right? And that’s a public policy argument. Now as long as there’s no change in the
Supreme Court, no significant change in the Supreme Court, I don’t
think there’s a lot of hope of the New Hampshire law ever being struck
down again in litigation as unconstitutional. That said, okay, things could
change in the state house here. I usually — I teach constitutional
law, and I really pride myself. At the end of the semester, my students
don’t’ know what political party I — they’re always trying to guess and get me to
tell them, and I’ve sort of made an exception in terms of advocating on this
position, not because I see this as a partisan issue; I don’t, okay? I think everybody, regardless
of what party you belong to, should have a default rule
in favor of the franchise. I mean, our history is too ugly, and, you know,
it’s not a democratic principle to believe that the right to vote should be made easy and
that people should be encouraged to vote, okay? Unfortunately, it’s being framed
that way, okay, given the way — you know, facts on the ground are
unfolding in states around the country. But, you know, I — so I’m not here to take, you
know, a partisan position, other than to say, you know, to the extent that
our state legislature — okay, and I’m talking about the
House of Representatives here — is using the language of nullification, okay, in
areas like voting rights, in areas, by the way, that that committee report that
I told you that was approved — that was approved less than a year ago, okay? It basically took the position that New
Hampshire should no longer participate and accept any federal money for education, for nutrition assistance,
for home heating oil, okay? There was actually a line at
the end of the report that said, “The citizens of New Hampshire are hereby put
on notice that it gets cold in New Hampshire in the winter, and that they should
have plans for heating their homes.” Okay, and that’s what it — in so many
words — what the end of the report said. You know, I mean, this idea — and to me,
even that, that’s policy stuff, you know, you can take a very, very
strong states’ rights view — but this idea that federal court decisions
should be rejected because they’re not congenial to your world view, that to me, that’s
kind of scary stuff when it comes from more than just one or two people
in an elective legislature. Again, people who swear an oath to uphold the
constitution — and I would say that, you know, the supremacy of federal law and the principle of judicial review has served this nation
pretty well for a couple hundred years, and the idea that we have
sizable numbers of people in our home state legislature
rejecting that idea I find troubling. So I’ll leave it off with that, and sort of
invite questions, comments, conversations.>>Two things. Back in the question about residency
versus domiciliary in the…>>[Inaudible] the mike [inaudible] recording.>>John Greabe: Oh, oh, I’m sorry.>>Thank you.>>Back to the question of residency versus
domiciliary, in the current language, what — where do they stand and what
arguments could one — are able to be made within the
current legislation that could be used to dissuade somebody from voting? If I wanted to dissuade, what
could I say and do within the law?>>John Greabe: Okay, I think the law — my
personal view is the law is pretty muddled about the difference between
domicile and residency. I mean, I think it’s fairly well-established. I think part of the problem for that is
that the terms are used interchangeably without an appreciation that they have
different connotations, as I said before. What I think one could legitimately advocate
for is that students, military people, anybody, you should vote; you should vote
in the state of your domicile because that is what state citizenship turns
on, and that’s a federal constitutional concept. So, okay, it’s just not accurate
in my view; it’s just not accurate that college students should just say,
“Well, you know, I’m in New Hampshire. That’s going to be a state
that matters, you know. I come from a farm in Vermont, and my plan
— everybody knows I’m going back to the farm to take over the farm for the rest of my life, but I’m going to vote in New
Hampshire because I can.” Now you can, it’s true. I mean, you’re never — there — one
of the most difficult things to prove in a court is intent, and
that somebody’s lying, okay? We’ve experienced this throughout
all sorts of areas of the law. It’s unconstitutional for a legislature to enact
a law that is facially neutral with the idea, however, of discriminating
against a racial minority. So it’s technically unconstitutional
for a local — a locality to say, “We’re going to start to
administer a written test for people who want to become fire fighters in this state,
and the reason why we’re going to do that is we know we can write a test that’s going
to discriminate in favor of white applicants.” Now if you could prove that that’s really going
on, the Supreme Court has said you can make out a claim of unconstitutional
discrimination on those facts. The problem is in the proof because how do you
ever prove, okay, the mind set of legislators? How do you ever prove the mindset of a student? Okay, again, the domicile question is all up
here, okay, it’s in the student’s control. And you can change it from day to day. Okay, Article Four of the constitution, we — there’s no limitation on migrating
interstate in this country. So you could say, “I’m never going home again. This is my domicile,” because you’ve had
a terrible fight with your parents, right? And then the next day, you make up and say,
“Oh, I guess I’m going to go home and live.” I mean, theoretically, it’s that fluid, and what
I would say is basically the idea of domicile, it’s really not judicially administratible,
okay, unless you’re talking about obvious fraud, unless you’re talking about somebody who has
no connection to a state like New Hampshire, who’s been bussed up, you know, like the — you
know, some of the horror stories that you hear. But basically, if we’re talking about
choosing between where you came from and where you are now, it’s going to be up
to the student because nobody’s ever going to be able to disprove, okay,
a choice between those two. That said, however, I do think that students
shouldn’t just make a strategic choice. I think they should say,
“What’s the center of my life?” Okay, and then they should do — you know, that
affords them certain privileges like voting, but it also can impose on them
certain obligations, okay? And if that domicile doesn’t change, “Well,
then, look, you’re a citizen of this state. You should be subjected to the
same laws and the same expectations that other citizens of the state are as well.” I’m sympathetic to that argument. You could say that; I think
that’s — I think that’s — but I think that’s the limit
of it because I think — I think it’s a matter of state citizenship,
and we decided a long time ago that people within the United States should be
permitted to freely travel and relocate, and change their state citizenship, so long as they have United States
citizenship, really at their own will. [ Sound of Walking ]>>I thought that the New Hampshire law
required that in the case of students that they would have to attest to the fact that
if they had an out-of-state driver’s license that they were going to commit
themselves as if they were residents, which seems to be contrary to
the concept of domiciliary…>>John Greabe: Hey…>>…and is that — you know, are they
then treading on a particular group? We mentioned two groups, the military families
and students, and the question is, is the — the law almost seems to target those. I’m looking at it perhaps narrowly,
and if they’re being targeted, while it might not be targeted in racial terms,
they’re still picking out a specific population and trying to disenfranchise them.>>John Greabe: Absolutely. I — yes, there’s a couple things that I’d like
— that you mentioned that I’d like to unwind. As to your latter point, absolutely,
and the constitution prohibits that. There are no disfavored voters. So long as you are eligible to vote, okay,
the local polity cannot make a decision. “This group of voters is favored
because we think they do a better job with their vote than this group.” That would raise an equal protection
problem, and I think that’s at the heart of what some of these challenges are. You had asked about the specific
provision about registering your car. That’s not written into the statute, but that
was — there was language to that effect, okay, that was put on the voter registration
form, and that’s the subject of the lawsuit that’s been filed by the
New Hampshire Civil Liberties Union, okay? And that — reference was
made to that at the beginning. A Superior Court judge in
Stratford County struck that down, held that to be unconstitutional. That was challenged on both state and
federal constitutional grounds, by the way. So the judge issued an injunction. The case hasn’t been decided with
finality, but the judge said, “I’m sufficiently troubled
about this announcement.” What it says, basically, at the
bottom of the form, and people who — you know, maybe you can correct me if I’m wrong,
but it basically says, “By signing up to vote, you are claiming residency within the state. And by claiming residency in the state, you
are obligating yourself, among other things, if you have a car to register
that car within the state, and to get an in-state driver’s
license within 60 days.” Is that…>>Well, in discussing it with
students that would appear in Town Hall, it says that you intend to get…>>John Greabe: That’s right.>>…a license, and so some — and
again, divine intend, right [laughter]?>>John Greabe:And I think that’s a problematic
— I think that’s a problematic thing — statement to put on a voter
registration form for a number of reasons. First of all, life can change in
60 days, and often does change in 60 days, for a student population. You may think you’re going back home, yet,
if you’re a senior in college here, right, that’s two months, and then zoom,
you get a surprise offer, you know, to stay and work for an extra
year, do research for professors. I mean, you know, and it’s
absolutely wrong to communicate that exercising your constitutional
right to vote obligates you to say that you will remain a resident
60 days down the road, okay? And, obviously, the intent of the form is
to dissuade one, I think, from voting — from lightly deciding to vote
within the particular state. So I think that’s what’s
problematic about that form. Now that’s been enjoined; that
language has been taken off, as I understand, the voter registration form. There was an appeal taken to the State Supreme
Court, and the State Supreme Court said, basically, “We’re not going to rush this. We’re going to uphold the injunction,
and we’re going to get into the merits.” So they basically sent it back down to
Judge Louis in Stratford County, and that — the constitutionality of that
language is still to be determined. It’s just a preliminary injunction right
now, so that answers the questions. You just — you just go to whoever’s
closest, though, now [laughs].>>How can we prophylactically head off
some of these measures, like what was struck by the Stratford Superior
Court or the Voter ID Law? Because, I mean, you’ve talked about the
right to vote under the federal constitution. The state constitution is a very
explicit guarantee of the right to vote, and I’m wondering is there something
that could be put into the constitution, and I don’t know what the language would
be, but something put into the constitution that would prevent things like this
from being enacted into law and upheld?>>John Greabe: Things like the statement on the
voter registration form, you mean, or — yes.>>Yes, I mean, like — and I’m
thinking — just off the top of my head, I’m thinking something like, you know,
“The state shall not enact any” — and I know this is not how it would go, but — “any administrative requirement that would
substantially impact the right to vote,” or something to that effect such that the
court would have a specific standard to look at when looking at something that doesn’t
get at the heart of the right to vote but tweaks the process of it,
but has the effect, you know, the disparate impact kind of argument.>>John Greabe: Well, a couple of things. First of all, one of the interesting
things about our federal system is that the federal constitution sets
the floor but not the ceiling, and so state constitutional rights
can protect individuals liberties and individual freedoms more robustly
than does the federal constitution. Just one example outside of this area, you know. Under the federal constitution,
police officers to not need a warrant; they don’t need probable cause, to
search through your trash, okay, but under the state constitution they do, okay, because the State Supreme Court interpreted
the parallel language in the state constitution to confer a greater liberty there. And so, as an initial matter, I
would say you’re absolutely right. I mean, I don’t know that it’s been worked out
yet because we haven’t really had occasion. You know, this is a relatively new
development, this sort of legislation, but we haven’t really had occasion to
ask the courts, “Is the right to vote under the New Hampshire constitution” — it can’t be any more parsimonious than the
federal right, but it could be broader, okay, and that would be initially up for
determination by the state courts in interpreting the scope of the constitution. And then you say, “Beyond that, could
we constitutionalize some language?” The federal standard, again, is that “The
state cannot adopt measures that severely” — okay, this is from this — a
Supreme Court case, court verdict — “that severely interfere
with the franchise,” okay? Doing so triggers strict scrutiny, which is
basically comon law speak for unconstitutional. Nothing, again, would prohibit the
state from adopting a higher standard. It’s kind of hard to sort
of think about how would — what would constitutional language
look like because there’s — you know, there’s so many ways and guises in which regulation can interfere
with the exercise of a liberty. I mean, it may be something that would
just need to be developed case by case, but that’s not to say that — I
don’t have any immediate reaction of like what some language would be that would
be appropriate to write into a constitution, but certainly nothing would stop
people elected to the [laughs] — to the legislature from proposing
such protections. [ Background Sounds ]>>My question has to do with the
affidavit where they both sign. What’s to prevent the Secretary of State or
the Attorney General keeping like a hit list of these people, even if they
respond and say, “Yes, I did vote,” but say, “Here’s someone who didn’t?” It’s very scary to think is
there a time limit or do they — even the town having a list of these people…>>John Greabe: …who didn’t have
an ID at — they don’t want to…>>…who didn’t want to — who didn’t
want to show — choose to show their ID.>>John Greabe: Right. [ Background Sounds ] I mean, I don’t — you know, state law
authorizes the generation of the document, and state law’s presumably constitutional
unless shown to be unconstitutional in some way. I think you’d have to make an argument
that the generation and then retention of such a document violates, you know, some
other provision of state law or, you know, the state constitution or
the federal constitution. I don’t — you know, in this day and age, where
government record-keeping is, to say the least, proliferated, I — that doesn’t strike me as a
promising constitutional argument, at least — I’m — I understand — I know more
about the federal constitution, quite honestly, than the state constitution. I teach federal constitutional law. That doesn’t strike me as a
promising constitutional argument. That said, again, we always have to draw the
distinction between what’s constitutional and what’s good public policy, and so if
citizens were uncomfortable with government — and New Hampshire has a strong
libertarian tradition, right — if people within New Hampshire
were uncomfortable with this sort of information being maintained, okay, by
public officials in the state, well, you know, there’s always the possibility of further
legislation to specify proper uses and how long they can be retained.>>Betsy McLean: I just wanted to follow up. On a piece of paper is one thing. The piece of paper that the
voter will be executing…>>John Greabe: [Inaudible], do you want to
say who you are just so everybody knows, too?>>Betsy McLean: I’m Betsy McLean. I’m the deputy town clerk for the town of
Hanover, so we’ve been wrestling with the back and forth of a lot of the changes that
have been coming down through this law. And in terms of the Challenge Voter
Affidavit, which is what will be executed if and when people choose not to
present their ID, that actually — the form is one thing, but then that fact that
that voter presented a Challenge Voter Affidavit to get their ballot will be maintained
in the state-wide voter database. There will be a radio button checked, and
that’s how the Secretary of State’s office, for example, will generate,
mass generate, those letters. There’s been no mention of that
field being updated, purged. My sense is, given everything else in
our election database stays forever and every change is tracked, that that will
forever be married to your voter record here in the state of New Hampshire,
that you opted not to — either didn’t have a photo ID or opted
not to show it at a particular election. [ Background Sounds ]>>I just have a couple of questions. Picking up on what Betsy just said, even if
I vote every year for 20 years in the town of Hanover and refuse to show my ID, then a record will be made
that I refused to show an ID?>>John Greabe: Unless — public
officials do have the discretion…>>Yes.>>John Greabe: …right? Could you — could you speak to that because you’ll be [laughs] —
you know it better than I do. Sorry. Okay.>>Betsy McLean: What the speaker is
referring to is for this upcoming election, certain local officials have the — have
the authority to be able to recognize and validate the identity of a voter. So, for example, if you came to the
polls, Barbara, and Willie recognized — you didn’t have any photo ID, Willie,
as our moderator, could recognize you, know that you are in fact Barbara Mackleroy
[assumed spelling], and you would not have to fill — for this election, you would not
have to fill out a Challenge Voter Affidavit. But again, the law changes after September
First, 2013, and I can’t speak to what happens, but my sense is that the discretion of
the local officials is severely limited.>>Yes, so another couple observations. One is that many college students are
here with a car owned by their parents so I don’t know what happens to that auto
registration and the parents [laughs] as far as the state of New Hampshire is concerned.>>John Greabe: That — that… It doesn’t seem to seem logically
valid, but my further concern — observation is that we’re very happy to count
college students when it comes to the census.>>John Greabe: Yes [chuckles].>>And the state, then, is eligible
for greater federal aid in various ways because the population of the student body here
counts towards the state’s share of federal aid, so if we all of a sudden disenfranchised
all these students, then I would think that the state would think more than once
or twice about, say, the transportation aid which I’m sure they’re happy to take. [ Background Sounds & Voices ]>>As — I attended that
hearing in Representatives Hall when Representative Sorg spoke in favor
of the bill, and I remember at the time as I was listening, thinking, as if I’d
just walked through the looking glass. So it was a fascinating — I felt like I’d
gone through the looking glass at that hearing in the winter of 2011, and I’m fascinated
to ask folks, as a professor of the law in New Hampshire, what do you think happened
between 2008 and 2010 in New Hampshire that unleashed the sort of fascinating
shift we’ve seen in our legislature, particularly on the house
side, with this new approach to all things state and federal constitution?>>John Greabe: I have to
sort of take my professor hat. I don’t know any more — I mean, everyone in the room has probably a
different answer to that question. I mean, it seemed to be to be a wave
election premised on economic distress, and wave elections bring in change. But the change that came into being
in 2010 was a different sort of change than I think we’ve seen before in this state. And, you know, I mean, we have things going on
here, like the Free State Project and the rise of the Tea Party Movement, which uses a
rhetoric that hearkens back to the founding about the division of power and authority
between the federal government and the states. And I — you know, I’m enthused
about federalism. I’m not somebody who would like to see the
federal government regulate everything, and I’m not somebody who would like to
see the federal courts completely get out of the business of enforcing
federalism limits. I think that’s a very, very worthwhile
conversation to continue to have. It’s something that we’ve talked
about for 230 years as a nation. How do we calibrate that division of power? But what’s troubled me, and
now I’m stepping out of my — and this goes back to me to “Bush Versus Gore”. One of the things that I found
most striking about the whole “Bush Versus Gore” phenomenon was — I don’t know
if people remember this, but things being said in Florida — this was before the
Supreme Court stepped in and ended it — it was quite clear to me that the legislature in
Florida was not going to recognize the validity of the Florida Supreme Court’s determination
about the meaning of Florida law, okay? That’s judicial review; that’s
at the state level. But we have — since “Marbury [phonetic]
Versus Madison”, and it’s the same thing in all the states — we have said that the
last word about the meaning of law, okay, belongs to the judiciary, and everybody who’s a
citizen of the United States has at times chafed at what some court has said about
the meaning of the law, okay? I mean, I don’t — I can tick off the —
in other people in the abortion context, in citizens united and free speech, the
— you know, the health care decision. You know, you win and you
lose, but what I was — I found really, really striking during
that time was there was this articulation that “We’re not going to accept it. We’re not going to accept it,” because the
Florida Supreme Court, if you’ll remember at the time, was mostly appointed by Democrats. That was — it was being articulated
in partisan terms and, therefore, “We’re not going to accept it
because the Florida legislature” — I’m not saying everybody was willing to do it, but that sort of talk was
taking place at the time. And Richard Posener [assumed
spelling], who’s a famous federal judge, has actually written a book saying the Supreme
Court actually did the nation a service by stepping in and taking a bullet in “Bush
Versus Gore” because that was going to get very, very ugly because Florida’s
electors, the state Supreme — the state Supreme Court’s holding
had remained in effect and it had led to a recount which said that Gore was ahead. There was going to be popular resistance
to that, and, you know, to me I view — I think there’s a lot of wisdom in sort of
Burquean conservatism, incremental steps, okay, and not kicking out the structures that have
served us quite well on balance as a nation, you know, for a couple of centuries. Things like judicial review, things like, you
know, mutual respect among the states, you know, full faith in credit and things like that. And I fear that there’s something afoot
in this country right now where, you know, people generally feel empowered
to say, “If I disagree with that, I’m going to attach the label “illegitimate”
to it, and I’m not going to go along with it.” And I think that — I mean, that’s what’s
happening right now, the ballot question, so again, I’ll — but I’m — I mean, the — you know, the takeover of the courts
by the legislature, the attempt to take over the courts by the legislature. I mean, you know, do we have — what’s the
empirical evidence for the need to do this? And, again, this talk of nullification. It’s not a matter of disagreement at that point. It’s a sort of fundamental rejection of
arrangements that we have worked out over time. I don’t know; it worries me. It worries me. [ Background Sounds ]>>Since you mentioned that, I guess my wife
and I are former residents of the Commonwealth of Pennsylvania, which we are terribly
disappointed with their recent Voting Rights Law which makes New Hampshire seem very kind. Doesn’t, you know, this whole class of voter
right enactments to protect the country against fraud when there’s no evidence of
fraud, I mean, people cite anecdotal evidence that no one has proved about busloads of people
coming in to vote, but there are no cases. I mean, even in the state of Pennsylvania, they
came out and said — the Attorney General said, “We have no evidence of fraud, nor
have we had any cases involving fraud in the last ump-di-dump [phonetic] years.” And yet the legislatures, which are short
of money — this is a general statement — all of the state legislatures are pretty much
short of money; it’s a recession-type time, and they’re spending all this money on
voter ID when there’s no evidence — the underlying point is, “Well,
we’re protecting you against fraud,” and there’s no evidence of fraud at all. I’m not saying there isn’t any fraud. I’m saying that the incidents of
fraud, it seems to be so minor as to who needs protection from it?>>John Greabe: I would probably —
I probably should defer to Matthew. I don’t mean to drag you in, but I mean, I
— you know, we all — we’re in this time — era right now where you can — you can sort
of find what you want to believe to be true. You know, you could — you can — you
know, we’re all so empowered, where — you know, we’re all connected, we’re all plugged
into the Internet, and so, you know, I’m amazed; I’m a Chicago Cubs fan, and I’ve been
on this Cubs board since 1998, you know, when I’d first started on the Internet. And there’s a thread on there — it’s the
most frightening thread on the Internet — called “Religion and Politics” [laughs], where
these people, like they debate climate change, and everybody’s got an opinion, and everybody’s
linking studies, and I’m like, “Jeez, you know.” You know, I say that, yet — I
come from Chicago, right — I — where supposedly, you know, the vote from the
graveyard put Kennedy over the top in 1960. At least that’s the — that’s the popular
story, so I can’t discount the possibility. I — you know, I read, I try to read widely. It seems to me as a fellow citizen
I agree with you that the — that the evidence of voter fraud
in incommensurate with the measures that have been taken to combat it,
especially when we know what the effects of those measures are going to be on
particularly vulnerable populations. So I agree [laughs]. Do you have any — is there
anything you wanted to say?>>Yes, I…>>John Greabe: I don’t mean to — is
this — are you okay — is that okay? Okay, great.>>Absolutely. No, that sounds like a great — a great
interpretation, and I would actually defer back to your original comment about, you know, the
value of public policy is not always dictated by the law and, you know, I mean,
there has been sort of a diffusion of these Voter Identification Laws since 2010. Of course, there were, too, before 2010,
but they’ve really taken off, and then — and I think that evidence shows pretty clearly
that there’s a lot of partisan motivations for it, I mean, because they have been passing in very strongly Republican legislatures
with the Republican governors. But, I mean, I have yet to see sort of a
cost benefit analysis on sort of the fraud versus all the, you know, the massive sort of
PR, the PR, sort of firms that need to be hired to get out information about
the different things. And so, I mean, I would just be curious to
see actually some evidence about confusion. How much do voters get confused, and
will that have an effect on the ballot? And I’m not sure; you might
have a better idea than me.>>Well, if you’ve studied
the issue, have you — have you heard of any people
talking about widespread — not even widespread, narrow-spread
voter law [laughter]?>>I should probably defer to
someone who has more evidence, but I think the Brennan [assumed
spelling] Center for Justice and various other places have
found very low incidences of fraud. That being said, a lot of people on the
other side of the argument would say, “No evidence of fraud doesn’t
mean it’s not happening.”>>I’m not arguing that either [laughter]. [ Background Audience Talking ]>>Well, the court in the Stratford County
case actually asked the Attorney General, “What’s the evidence of fraud?” and he said, “We have none.” So here in New Hampshire,
the state is on record…>>[Inaudible] point.>>Right. The state is on record,
but the thing is is that the — whether the legislature has concluded correctly
or incorrectly, under constitutional law if it believes something
and it’s rationally related to what they’re enacting, then
the courts will uphold it. And that’s why we saw what we
did in the redistricting case, where the court didn’t uphold the redistricting
plan despite what the state constitution says, but it said, “Because the legislature had
reasonable belief that it had to enact this plan because of some other factors,
then we’ll uphold it,” even though, to my mind, it’s facially unconstitutional. And that gets into the quark of rational basis
and strict scrutiny and all that kind of stuff.>>John Greabe: Courts defer to the
coordinate branches whenever they can.>>Yes.>>John Greabe: That’s what
rational basis review’s about.>>Right.>>John Greabe: Doesn’t mean it isn’t happening;
it’s just — isn’t clear enough for us.>>Right, yes.>>John Greabe: I mean here — there’s no doubt
about the partisan roots to this, and, I mean, here was the quote the day
the bill was introduced. This was house speaker Bill O’Brien on tape
saying, “You know, this legislation” — this was the initial bill — “this legislation
is motivated because these towns” — and he was talking about
Hanover, Cain, and Plymouth — “these towns have lost the ability to
govern themselves” — that’s a quote — “because college students are “basically
doing what I did when I was a kid and foolish, voting as a liberal.” Now, you know, that — has everyone seen that? That went — that was on the
Cobear [phonetic] Report. That went viral, and it didn’t stop anything,
you know, and you know, the problem is — and we come back to a point before — how do you
ever show a nefarious purpose to legislation? I mean, legislation is passed
by hundreds of representatives. It has to go through, you know, two houses
in every legislative body in this country. You know, this — you know, I talked
— I made reference before to this. There’s a doctrine in constitutional law
known as the “Political Question Doctrine , and it’s — basically, it’s a misnomer
because it makes people think that courts stay out of political issues, which, of course, “Bush
Versus Gore” [laughs], tells you they don’t. But that there — it basically refers
to the idea that there are some things that courts are just not institutionally
capable of figuring out and resolving. Now that doesn’t mean that in extreme
cases courts won’t step in and say, “This law was passed for an
illegitimate purpose, a bad purpose.” And, in fact, the nation protection of same-sex
couples and sexual orientation is really rooted in court decisions which have said that
certain laws can be explained by nothing other than animists toward the particular group. I mean, that’s how Texas’s
anti-sodomy law was struck down in 2003. So I don’t want to overstate it, but I do
want people to appreciate it’s very, very, very hard to get legislation struck down
as being based on an illegitimate purpose. I mean, courts don’t look into the subjective
views of the legislators, typically. They say, “Objectively, is
there some basis for this?” I mean, and, yes, you know, is
there a public policy interest in combating voter fraud if it exists? Of course there is, right? Does presenting an ID, okay, to make sure that
the person is who he or she said they are, I mean, is that rational if
that’s the purpose of the law? Okay, it’s hard for a court to
say no to that sort of thing. Lots of these things are
really political questions. You mentioned — somebody mentioned jury
mandering before on the federal side. I mean, on the state level,
it sounds like the courts are at least taking a look, though
they didn’t step in. On the federal side, the Supreme Court has said
it’s basically a political question right now. I mean, do you know like what happened — you
know, there used to be sort of an understanding that you don’t redistrict until every
10 years, until there’s a new census. That understanding is by the boards. I mean, that was what, you
know, happened down in Texas. Do you all remember that news
story a few years ago where the — you know, the people left the state of Texas — the legislators all left to
prevent a quorum from taking place. It was all because of an early attempt; and a successful one ultimately,
to redraw district lines. Well, those have been challenged under the
equal protection clause as unconstitutional. I mean, it’s quite clear what’s
happening in these cases. You know, legislatures are taken
over by one party or the other, and that party immediately
starts redrawing district lines to maximize their political advantage. And the Supreme Court has said, “We
basically can’t develop a standard. We don’t know what’s too much
partisanship for Equal Protection purposes. We’re just not going to be
involved in this class of cases.” And so what we have, you know, until we
get to a point where there’s some sort of national consensus that “Look,
this doesn’t benefit either one of us. We both should stop doing it. Let’s, you know, let’s devise some sort of
commission for figuring out how to redistrict.” We’re not there yet. You know, sometimes courts just aren’t
available, though, to supply a solution. That’s the idea behind the
“Political Question Doctrine”. You’ve got to get your satisfaction, if any,
through the political process, which means, you know, you don’t like —
and voting is really a big one. I mean, that’s what was so — I
remember when “Bush Versus Gore” — I remember when the lawsuit was filed. I told — I was teaching at
Vermont Law School at the time — I told my students — I never make predictions. I used to always tell them, “I’m
not going to make predictions, but I’m going to make one prediction,
the Supreme Court won’t touch that with a 30-foot pole, you know.” It’s like, well, you know, our
professor’s an idiot, right? I mean, that was — I mean,
people were astonished that the Supreme Court took that case. I mean, do you remember that? You know, a lot of people are old enough. I mean, you know, the idea of the
Supreme Court wading into a legal issue that could impact the outcome
of a presidential race — I mean, nobody thought the court
was going to get involved in that. That’s why these lawsuits that, you know,
challenging these Voter ID Laws, these are — there’s not a lot of old precedent. First of all, the laws themselves
are relatively new, but there’s just not a lot
of precedent of courts. Courts don’t like to oversee elections. Courts like to defer to the
Coordinate Legislative Branch. We do have some cases — I mentioned them — in the ’50’s and ’60’s, but those were race
discrimination cases predominantly, okay, and a federal statute was passed to address
that problem, the Voting Rights Act, which basically said to the courts, “Look, you
have to get involved in these cases because, if we leave it to local officials,
we know what’s going to happen, the disenfranchisement of
African American voters. But that’s the exception, okay, to the rule
which is that generally the courts stay out of it so — oh, well, I’m sorry [inaudible].>>All right, in terms of conspiracy theories
and the — and voting, if you recall, a few years ago, we all worried
about the paperless ballot. Do you know anything about, I
mean, we — here is voter ID. It’s an identification of people — we don’t
have evidence of that being very widespread — of people voting when they shouldn’t be voting,
but the notion that a lot of votes may be cast and manipulated and not reported correctly was
talked about in 2006, I guess, and 2004, 2000 — a number of those years when these
other paperless machines came to be. And that wasn’t the case in
New Hampshire, but nationwide, and I haven’t heard a thing about that since. Do you know anything about it?>>John Greabe: I — that’s not my area —
I know just this last week I’ve been reading about it a little bit because
— because in Ohio, I guess, some machines are owned [background talking]
by a company, that Bane [phonetic] or — I’ve only read headlines, so I don’t know. I mean, is that something that you know
of that’s taking place right now, Matthew?>>You never know. I hesitate to get into any kind of
conspiracy theory [laughs] because…>>John Greabe: Me too, yes.>>…I don’t think it’s
all conspiracy, of course…>>John Greabe: Right.>>…because Ohio has consistently many
electoral administration issues every election to go, but I don’t know about
these current ones.>>John Greabe: Yes, I don’t know, either.>>Well, thee’s — I mean, I read a big report
and it was pretty convincing, quite frankly, about these machines and about, you know,
that the vote count was not accurate, and this is something I worry about
more in terms of the national vote, and I don’t know if — how many states are
still using paperless machines, but they…>>John Greabe: So you’re making —
yes, you’re making a more general point. Voter fraud comes in all sorts of guises…>>Yes, exactly, there’s the point.>>John Greabe: …and there’s types of
voter fraud that you think should be…>>And New Hampshire has been wonderful.>>John Greabe: Yes.>>You — we…>>John Greabe: Right, I mean purging
eligible voters from voter rolls with a partisan purpose,
that’s voter fraud, too, right?>>Absolutely.>>John Greabe: I mean, most people would
place that within that descriptor so — there was a question down
here, before two, I think.>>I have a question on voter ID. I have a question on voter ID. You mentioned a poll tax, and I’m
thinking of the disabled and elderly when they stop getting their driver’s license
and all, what is New Hampshire going to be doing if now they’re not — right now it’s on hold,
but so in the future, do you have an idea where it’s going to be leading with voter ID?>>John Greabe: The Voter ID Law?>>Yes.>>John Greabe: All I know is after
September First of 2013, you have to…>>You have to have it.>>John Greabe: It’s a requirement
then, and there are provisions — I think it’s, what, going to cost
$10.00, but that’s waivable, to get — if you don’t have a driver’s
license to get a state-issued ID. Passports are acceptable. I mean, a number of forms of ID are
still going to be acceptable, but they — they’re going to be government issued. For example, you can’t use
your student ID’s anymore, as I understand it, after
September First of 2013.>>But won’t that cause a hardship
for the disabled and the elderly? I mean, from Hanover they have to
go down to Clairmont to do this, and isn’t that a form of
poll tax when you do that?>>John Greabe: That’s — well, and maybe
there’ll be a claim, depending on, you know — there’s always the — there’s always the
possibility for bringing such a claim when you have a plaintive who
has suffered facts, you know, has endured facts that would give rise to a
claim under– under the 24th Amendment so — there’d be other — there’d be other
arguments to be made, too, there. There’s other discrimination-based claims
that are at least theoretically possible on those facts, beyond just characterizing
what’s happening as a de facto poll tax. So… [ Background Sounds ]>>Sorry, you said earlier about New Hampshire’s
Voter ID Law probably would pass federal constitutional muster. I’m wondering about — I’m
not sure if you’re familiar — or how familiar you are with the
education component of the Voter ID Law. I argued pretty consistently
that the education component under the Voter ID Law was not sufficient as
it’s been articulated by other federal courts, and that was a reason to either amend the law —
well, this was during the legislative process — to either amend the law to beef up the
education requirements or just to kill it. Can — do you know — I mean,
can you speak generally to what the educational requirements are
under federal law for a Voter ID Law. I think the Indiana case, which
you referred to earlier…>>John Greabe: The Crawford case?>>…that was a facial challenge,
not an as applied, correct?>>John Greabe: That’s right.>>But can you speak to the
education component of these laws?>>John Greabe: I don’t know of anything more
specific than the sort of severe impact test, and I think it gets funneled into that, and if,
in fact, something that would be constitutional but for the fact that people don’t know about
it, and it precludes people from voting, that — and you’re — and you’ve — David makes
mention of a difference between a facial attack and an as applied challenge, and that’s an
important concept in constitutional law. A facial attack on a statute
means that the statue’s going to get struck down as unconstitutional. An as applied — and those are
possible, but they’re harder to win. An as applied challenge is a challenge
that said applying that statute to me — so this would be, you know,
your poll tax example — the application of this statute to me in my particular circumstances
interferes with my constitutional rights. And a court there won’t strike the whole law
down, but will say, “As applied to this person, or this set of people, it
would be unconstitutional.” I have to say, David, I don’t know — I don’t know how to articulate it other than
that there is a requirement that changes in the law be effectuated in such a way
as to not interfere with the exercise of the franchise, and so there’s an incumbent — you know, it’s incumbent
on states to articulate, to get the word out, of what the law is. And I had always thought that’s — you know,
that was a big reason why they delayed it for a year because, if they had tried
to ram it through before this election, it would have been really
susceptible on those grounds. Longer term, I feel less comfortable
predicting longer term how a challenge about the dissemination of information would
fare with respect to the New Hampshire law. I tend to think, really, 2013, how many elections are there really is
two — it’s going to be really 2014.>>Well, it’s just municipal elections.>>John Greabe: Right, so it’s really going to be a couple years of the
word being out, you know. Again, if I were a betting guy, I’d say
that’s probably going to be sufficient to meet constitutional standards, but I’m also
the guy who said they’d never take Bush to court so [laughs], you know, there’s just that.>>And then — and then one
other quick question.>>John Greabe: Oh, sure.>>The Voter Registration Statute, when
you register to vote on election day, lists a number of acceptable forms of proof
of your identity to get you into the system.>>John Greabe: Right.>>After 2013, and those forms of — proof of
identity mirror in the Voter ID Law that’s going to — that’s going to be applied
next month — those forms of — proof of identity mirror those
in the Registration Statute. What happens in 2013, though, as you pointed
out, is that the number of acceptable forms of proof has shrunk down to a very short list.>>John Greabe: Right.>>So we could have a situation,
after 2013, that a student could go and present her student ID
in order to register to vote, and that would be acceptable under the law…>>John Greabe: Right.>>…walk 10 feet over to the
ballot clerk to get her ballot and be denied her ballot
using the same form or proof.>>John Greabe: Right.>>In your opinion, is that — would
that pass rational — rational — you know, the rational basis test in a court?>>John Greabe: That to me sounds like
a promising — I mean, if you can — if you can make a convincing case to a
judge that the way it’s set up is likely to confuse people about what’s required,
and it’s going to lead to people showing up at the polls, having presented
an ID that allowed them to register, and have that ID rejected at the polls, that
sounds like perhaps a promising basis for, at the very least, an as applied challenge, and
for arguing, you know, that those two lists need to be brought into harmony with one another
to avoid misleading people, it seems to me. I don’t — it’s hard to…>>No, I know.>>…give opinions because it’s
such a vague standard, you know.>>Right, but, I mean, can — I guess the
broader question is can the legislature — actually, I think I’m answering my own
question, but can the legislature set up proofs of identity for one part of the statute
and a different set of proofs of identity to prove the exact same element of fact
in another part of the statute and have that upheld under rational basis scrutiny?>>John Greabe: I think — I mean, the default
rule is the legislature can do whatever it wants…>>Right.>>John Greabe: …unless it
causes a constitutional problem, but causing voter confusion does give rise to
constitutional claims so I think potentially — again, I think potentially there might
be something — might be something there.>>Yes, okay, thanks.>>John Greabe: I noticed
we have five minutes left. This is — so many of you are not students
[laughs], obviously, and so I thought — do you mind if I put out a plug for something that I’m thinking people
would find really interesting? Sonu Bady [assumed spelling] is going
to actually participate in this, who’s a Dartmouth professor,
who teaches the constitution. I don’t know if you know, but there was
a conversation in Concord in September between Justice Suder [phonetic] and
Margaret Warner of the “PBS News Hour”, and it launched this civic education
initiative throughout New Hampshire known as “Constitutionally Speaking”. And it’s an ongoing initiative. It’s precisely for stuff like this, for
people who are interested in civics, who want to become more educated and want to
have civil conversations about the constitution. And it’s just — I feel — because
I’m on the steering committee of it, so I’m being a little selfish here, but can —
do you mind if I put a website on the board? If any of you is interested
in becoming involved in this, it’s constitutionallyspeakingnh.com
— oops [laughs]. So — but what we’re — it’s — the idea is
that it would turn into an ongoing initiative for people in New Hampshire who are
concerned about civics and civic education, and interested in having discussions
about civics issues such as this. The next event that — we’re going to
actually have a symposium on November 17th, and we’re going to have nine people, including
Sonu Bady, who is a professor here at Dartmouth, Adam Kiptak [phonetic], who’s the Supreme
Court correspondent for the “New York Times”, a bunch of other constitutional law scholars. They’re going to give like 15-minute ted-type
talks, and the people who are attending — it’s not for, you know, lawyers; it’s for people
who teach civics in the schools and are — and/or people who are interested in
becoming trained as facilitators, who would then go out into the communities
and in town halls like, you know, maybe once a month, facilitate discussions
about various constitutional issues. And so if any of you is interested
in that, it just seems to me that there’s a lot of civic
interest in the room. You might want to attend that symposium
and think about do you want to go through a couple training
sessions and be somebody who in your town could lead
discussions about constitutional issues? It’s going to culminate in May. We’re going to have a joint address at the
law school by David Boys and Ted Olson, the opposing counsel in “Bush
Versus Gore”, who have come together to challenge successfully
California’s Proposition Eight, which overturned the state Supreme Court
decision which outlawed discrimination on the basis of same-sex marriage. So it’s kind of a cool thing, and we’ve got
a lot of interesting people involved so — that’s kind of parochial, but if you don’t
mind me throwing it out there [small laugh], I think — yes, I think it might be
of interest to people in the room. So I was just seeing the clock was getting
close so — were there any other questions? [ Background Talking & Sounds ]>>No, I don’t have a question.>>I’m from the [inaudible]. I just wanted to thank you
— I’m from the [inaudible]. I just wanted to thank you for coming.>>John Greabe: Oh, sure, sure.>>We really appreciate it,
and it was very inspiring and eliminating for what’s going on with that. And I just want to announce that on Wednesday
night the [inaudible] is holding a debate-like forum at the Kilton Library. It’s for New Hampshire Senate District Five. [Inaudible] running, and that
is Representative David Pierce and Representative Joe Posgood [phonetic], so
that’s at seven o’clock at the Kilton Library. We hope you all will attend. And again, thank you so much for coming>>John Greabe: Thank you for inviting me. [ Applause ]

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