Reply #166: Absolutely. [View All]

[Laelth]

The right to vote is fundamental to ordered liberty and is protected at strict scrutiny. No need to find a suspect class. But who's arguing that someone's right to vote has been taken away impermissably? The facts don't justify that argument. As far as we know, it didn't happen, and, therefore it would be useless to bring a suit on that basis. Let me quote from my post, above:

If the plaintiff can show that his or her right to vote has been denied for an impermissible (unconstitutional) reason, then the court will protect that right at strict scrutiny. For example, the 15th Amendment says that the right to vote can't be denied on the basis of race or previous condition of servitude. The 19th Amendment says that the right to vote can't be denied on the basis of sex. The 24th Amendment has been interpreted to mean that the right to vote can't be denied on the basis of wealth (the Amendment explicitly prohibits poll taxes). The 26th Amendment says the right to vote can't be denied to citizens on the basis of age, provided those citizens are 18 years of age or older. In order to bring a challenge on one of these grounds, it seems, plaintiff must be able to show that he or she was denied the right to vote for one of these impermissable reasons.

The facts of election 2004 more readily lend themselves to an equal protection argument. It's not that people were impermissibly denied the right to vote in 2004, what happened was that the methods of voting and the burdens placed on voters were different from county to county within a given state. In order to get heightened scrutiny on an equal protection challenge (and have a chance to win), we need to show that some state law or act adversely affected a suspect class.

Sure, the right to vote is protected at strict scrutiny, all by itself. But was anyone impermissibly disenfranchised? Was anyone who should have been able to vote not allowed to vote? If not, then we must look elsewhere for a constitutional challenge, and the chances for success will be different.

Hope that makes sense. :)

-Laelth