All Other Issues Moot in Face of Republican Assault on Voter Franchise


     As important as issues such as health care and Russian interference in our elections may be, they pale in comparison to the single most important threat to our whole way of life.  That threat is to the right to vote and to the protection of that right under the First Amendment.  In fact, after reading, for the umpteenth time, an article by the eminent Professor Stanley Fish (Is Voting Speech? New York Times 6/20/11) trying to compare a private voter trying to change his vote after results are in and a biased private voter being asked to recuse himself to the actual casting of a public vote, I finally realized that even many law professors may not “get it,” let alone the average citizen.

     Professor Fish brings up the case of a colleague claiming to have confused the person for whom he had voted with someone else.  He was not permitted to re-vote,  According to Professor Fish, since this voter legitimately had not been permitted to express his “true” opinion in a re-vote, that his first vote was not an expression of opinion at all and thus voting is never the expression of opinion.  His second example, (Nevada Commission on Ethics v. Carrigan) is one in which a city council member was censured for failure to recuse himself in a case involving a conflict of interest.  Because the Supreme Court ruled the state statute requiring his recusal valid, again Professor Fish claimed that since a voter with a conflict of interest in a private matter was not permitted to express his opinion in a private vote, that no public vote is ever  protected by the First Amendment and that no vote should ever come under the purview of the amendment  The Professor further points out that Justice Scalia reminds us that “The act of voting symbolizes nothing.”  Scalia further admonishes “The fact that a non symbolic act [voting] is the product of deeply held personal belief- does not transform action into First Amendment speech.”  Given Scalia’s “vote” in the Citizens United case, doesn’t that mean that a poll tax would change the ensuing vote into a “symbolic act” representing First Amendment speech?

     Meanwhile, for Professor Fish, voting does not involve the expression of an opinion except when that expression is denied!  Something about that argument smells very bad indeed!  Both Misters Fish and Scalia deign to discuss the issue of voting as speech only when the right to vote is denied!!  The Professor at least has to go out of his way to find  reasons to justify denying someone the right to vote.  Ironically’ the only cases that he can find are a re-vote and a recusal, while  Mr. Scalia apparently respects no one’s vote except his own, which, by the way, the “loveable” curmudgeon unwittingly admits “symbolizes nothing!”  I certainly agree with him there.  By the way, gentlemen, does the fact that shouting fire in a crowded place not being protected by the First Amendment abdicate the right to shout anything?

     I would remind readers that probably the most famous instance of registered voters trying to re-vote occurred in Palm Beach Florida in the “butterfly ballot” case in which thousands of voters unintentionally voted for Pat Buchanan in 2000.  The ballot, specifically forbidden in Florida, but the forbidden parts not addressed in Federal rules, as well as the initial votes of the complaintants, were upheld, not because of the First Amendment denial, but because it was deemed inappropriate for someone to re-vote after knowing the results of the election.  A re- vote was not permitted because information obtained after one has voted could potentially provide an illegitimate excuse for the change, not because of a rejection of the First Amendment.  In fact, in this case, the Court went out of its way to protect a first vote.  Re-voting is simply not the same as voting.

     To make matters worse and the reason that, some six years after reading Professor Fish’s article in The Opinionator section of the New York Times, I felt it necessary to write this article, is that I found the names  Ken Blackwell and Kris Kobach on a list of Mr. Trump’s appointees to his dubious Election Integrity Commission.  Blackwell, the ex secretary of state of Ohio in 2004 was also the head of the Ohio Republican State Committee and the state election supervisor.  He later admitted to using his own company’s questionable voting machines in the election.  He was implicated with Karl Rove and RNC IT expert Michael Connell in the “Middle Man” scheme to divert and alter legitimate voting results using intermediary servers and he and Rove became persons of interest in Connell’s apparent homicide.  Connell was killed very shortly after reports that he was about to testify against Rove and Blackwell.  In March of 2006 Blackwell’s office “accidentally” released the social security numbers of 1.2 million Ohio citizens,  Then, in April of that same year, despite promising not to  do it again, he released the social security numbers of 5.7 million Ohio registered voters. Meanwhile, Kris Kobach, chairman of the questionable commission, like Florida Governor Scott, did his damnedest in his own state of Kansas to illegally selectively purge thousands of voters from registration rolls.  At the very least, does anyone believe that Blackwell, Kobach or other possible sociopaths on the commission would hesitate to use any voter information in their possession to influence or harm voters or that their real purpose is to dissuade citizens from voting?  There are already reports of voters unregistering for fear of the release of their personal information.  More than a case of the fox guarding the henhouse, the commission is the definition of  “the [criminally insane] inmates running the asylum.”

     I believe that the last hope for the preservation of the voting franchise, which, with a free press remain the only things ultimately preventing us from authoritarian rule, is to make sure that voting is finally sheltered under the First Amendment where it rightfully belongs. It will be a sad day indeed if our country’s eventual obituary reads: “Alas, a truly grand experiment foolishly destroyed by its own Supreme Court.”


Al Finkelstein  7/9/17