The Volokh Conspiracy

In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the “No” campaign.   ”John Doe,” who works for a Catholic organization in Minnesota, gave $600 to Minnesotans United for All Families, the main group opposing the amendment.  (I serve as Treasurer of the group.)  He told the Board that he feared the Church would fire him if it knew he made the donation.  Under state law, he was entitled to exemption from itemized disclosure of his donation by Minnesotans United if he could demonstrate that he faced ”loss of employment or other specified harms.” The Board determined he met that statutory standard. But supporters of the amendment, who have long claimed a need to shield the identity of their own donors, are saying that protection from harassment, intimidation, and retribution arising from amendment contributions should be a one-way street protecting only them.

The background to the Board’s decision provides some context for why John Doe sought anonymity.  In May 2011, the Minnesota legislature placed a constitutional amendment on the November 2012 ballot limiting marriage to opposite-sex couples. The Catholic Church hierarchy in Minnesota, led by Archbishop John Nienstedt of Minneapolis and St. Paul, has made passing the marriage ban a top priority.  So far, the Church has given more than $1 million to the “Yes” campaign, the largest donation on either side. But the Minnesota Church’s activism on the issue predates the campaign. In 2007, Nienstedt argued that those who “promote or encourage” homosexual acts cooperate in a ”grave evil” and are “guilty of mortal sin.”  In 2010, on the eve of statewide elections, Nienstedt advocated a constitutional gay marriage ban in DVDs distributed to 400,000 parishioners.  Last year, Nienstedt informed churches that he would brook no open disagreement with the Church’s support for the amendment. Speakers against the amendment have been “uninvited” from local churches when the hierarchy learned of their planned appearances. Earlier this year, Catholic  students were left in tears after approved speakers at a mandatory school assembly tore into gay marriage, comparing homosexual love to bestiality, according to a report in the Minneapolis Star Tribune.  Earlier this summer, Trish Cameron, a teacher at a Catholic school in Moorhead, Minnesota, was fired when she privately told her supervisors that she personally opposed the amendment, even though she did not promote her views in the classroom.

The Campaign Finance Board analyzed Doe’s request as follows (the full text of the decision can be found at the Board’s website under the tab, “Board Issues Order Regarding the Application of John Doe for an Exemption from Disclosure. “):

 The Board granted Mr. Doe’s request for an anonymous and confidential proceeding because it concluded that publication of Mr. Doe’s application, even if under a pseudonym, would expose Mr. Doe to the loss of his employment. For the same reason, this Analysis and Order are issued in terms intended to protect Mr. Doe’s confidentiality so that this document, itself, will not expose Mr. Doe to the loss of his employment. . . .

Mr. Doe is employed by a Catholic organization in a position where he may, from time to time, be required to represent the organization’s policies to the public and to other organizations. Mr. Doe has strong opinions regarding the pending marriage amendment ballot question. Mr. Doe’s opinions are in contrast to the official position of the Catholic Church in Minnesota, which is one of the main supporters of the amendment.

Mr. Doe’s job does not require him to advocate for or against the marriage amendment. Nor does Mr. Doe argue that he is entitled to an exemption solely because he is employed by a Catholic organization. Instead, Mr. Doe argues that because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships. Mr. Doe believes that this strain may be enough that his employment would be terminated....

Mr. Doe believes that Ms. Cameron’s situation provides evidence in support of his position. Mr. Doe points out that Ms. Cameron acknowledged her opposition to the marriage amendment only in private, yet her employment was terminated as a result. On the other hand, Mr. Doe, who sometimes represents a Catholic organization regarding policy, made a $600 contribution to an association diametrically opposed to the Catholic Church’s position on the same issue. Mr. Doe believes that the Catholic Church’s actions with respect to Ms. Cameron provide clear and convincing evidence that public disclosure of his opposition to the marriage amendment would expose him to the loss of his employment.

Minnesota Statutes section 10A.20, subdivision 8, requires an applicant to demonstrate by clear and convincing evidence that an exemption from itemized disclosure is needed to protect the applicant from exposure to the loss of employment or other specified harms. In this matter, the Board concludes that this requirement has been met.

In reaction to the decision, the “Yes” campaign dismissed the idea that gay-marriage supporters might need the same kind of anonymity that gay-marriage opponents have long claimed they needed.  Chuck Darrell, the spokesperson for the “Yes” campaign, told the Star Tribune: “[The] history of donor harassment on the marriage issue overwhelmingly shows that it is only the donors to traditional marriage who are harassed.” The anti-gay marriage campaign also criticized protection for the Catholic donor on its Facebook page on August 22.  The Yes campaign has effectively shielded the identity of most of its individual supporters by funneling their contributions through anti-gay marriage organizations like the Catholic Church, the Minnesota Family Council, and the National Organization for Marriage (NOM) — which then make bulk organizational contributions to the Yes campaign.  Under Minnesota campaign finance rules, these groups do not have to list individual donors in these circumstances.  NOM has gone to great lengths in other states to protect its donor lists.  So far there has been no word from the Catholic Church itself or from NOM about whether Doe should be able to have his identity protected.

Have there been enough big election law decisions this week? Apparently not, as earlier today a federal district court in Ohio has held that a change in the Ohio Revised Code that ends in-person early voting the Friday before election day (for all voters other than overseas military personnel) is unconstitutional and issued an injunction ordering that such voting be allowed through the weekend. Here are the decision, local Ohio coverage, and (as usual) early analysis from Election Law Blog’s Rick Hasen. According to this report, Ohio Attorney General says he plans to appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

Earlier today a special three-judge panel held that the Texas voter ID law violates Section 5 of the Voting Rights Act. This is the second time this week courts have ruled against a Texas election law. (The first was noted here.) Here are the opinion and early analysis from Rick Hasen.

Today a special three-judge panel in Washington, D.C. threw out Texas’ new congressional map for violating the Voting Rights Act. Here’s the decision and some early analysis from Rick Hasen.

Missouri GOP Senate candidate Todd Akin may have won the party primary, but his idiotic and offensive comments about rape and pregnancy have caused party leaders to question his candidacy. Republican National Committee Chairman Reince Priebus and Senate Minority Leader Mitch McConnell have both suggested that Akin step aside. But can he do that?

According to this Roll Call report, under Missouri law a party’s nominee may withdraw from the race before “5 p.m. on the 11th Tuesday before the election,” at which point the party would have 28 days to pick his replacement. The twist is that the 11th Tuesday before the election is tomorrow. Should Akin seek to withdraw at some point after tomorrow (but before September 25), however, he would need a court order and would have to pay for the cost of reprinting ballots.

This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold.

Continue reading ‘ACS Panel on Citizens United’ »

So reports Richard Winger (Ballot Access News) about the effects of California’s open primary law, under which the top two vote-getters in the primary — regardless of party — compete in the general election. (The more common system, of course, is for the top vote-getters of each party to compete in the general.)

California’s 31st U.S. House district ballot in November 2012 will list two Republicans, Gary G. Miller and Bob Dutton. At the June 5, 2012 primary, Miller placed first with 26.9% of the vote, and Dutton placed second, with 25.1% of the vote.

However, the district has more registered Democrats than registered Republicans. The registration in the district is: Democratic 40.8%, Republican 35.3%, independent 19.3%, other parties 3.6%. The district is centered on San Bernardino County and had no incumbent running this year.

Four Democrats, but only two Republicans, ran in the June 5 primary. It is virtually certain that if fewer Democrats had run, Pete Aguilar, a Democratic candidate and Mayor of Redlands, would have placed among the top two. Aguilar placed third, with 22.5% of the vote. Democrats had been expecting to win this seat in November, but now it is impossible, because no Democrat is on the November ballot....

See more in this Inland Valley Daily Bulletin article. For whatever it’s worth, the district’s demographic breakdown seems to be 12% black, 7% Asian, 49% Hispanic, and 30% white, though Hispanics make up only 35% of the citizen voting age population (and of course many California Hispanics vote Republican, though generally most vote Democrat). The district went 56%-41% for President Obama, and 49%-41% for Governor Brown.

This morning, in Shelby County, Alabama v. Holder, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to Section 5 of the Voting Rights Act. The 60+ page opinion for the Court by Judge Tatel (joined by Judge Griffith) begins:

: In Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.

Senior Judge Williams dissented. His opinion begins:

Section 5 of the Voting Rights Act imposes rather extraordinary burdens on “covered” jurisdictions—nine states (and every jurisdiction therein), plus a host of jurisdictions scattered through several other states. See Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited May 9, 2012) (listing the covered jurisdictions). Unless and until released from coverage (a process discussed below), each of these jurisdictions must seek the Justice Department’s approval for every contemplated change in election procedures, however trivial. See 42 U.S.C. § 1973c. Alternatively, it can seek approval from a three-judge district court in the District of Columbia. See id. Below I’ll address the criteria by which the Department and courts assess these proposals; for now, suffice it to say that the act not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.

Section 4(b) of the act states two criteria by which jurisdictions are chosen for this special treatment: whether a jurisdiction had (1) a “test or device” restricting the opportunity to register or vote and (2) a voter registration or turnout rate below 50%. See 42 U.S.C. § 1973b(b). But § 4(b) specifies that the elections for which these two criteria are measured must be ones that took place several decades ago. The freshest, most recent data relate to conditions in November 1972—34 years before Congress extended the act for another 25 years (and thus 59 years before the extension’s scheduled expiration). See id. The oldest data—and a jurisdiction included because of the oldest data is every bit as covered as one condemned under the newest—are another eight years older. See id.

Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder. As I will try to show below, Congress hasn’t proven so adept. Whether the criteria are viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of § 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?), they seem to me defective. They are not, in my view, “congruent and proportional,” as required by controlling Supreme Court precedent. My colleagues find they are. I dissent.

Next stop, the Supreme Court.

The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens’ complaint that the Court’s broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin’s own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.

Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government’s fate.

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart’s oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It’s true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute’s language could apply to “full-length books” and that there would, in the government’s view, be no problem with banning corporate-funded pamphlets.

Like many of the decision’s critics, Toobin suggests Citizens United is best seen as the product of the “aggressive conservative judicial activism” of Chief Justice Roberts and the court’s conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.

The most interesting parts of Toobin’s article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin’s skill as a reporter, but I still have some misgivings. We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin’s narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

Prof. Rick Hasen (Election Law Blog) reports on today’s en banc decision in Gonzalez v. Arizona. An excerpt from the opinion (paragraph break added):

Proposition 200 requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote, see Ariz. Rev. Stat. § 16-166(F) (the “registration provision”), and requires registered voters to show identification to cast a ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the “polling place provision”). This appeal raises the questions whether Proposition 200 violates § 2 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments to the Constitution, or is void as inconsistent with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq.

We uphold Proposition 200’s requirement that voters show identification at the polling place, but conclude that the NVRA supersedes Proposition 200’s registration provision as that provision is applied to applicants using the National Mail Voter Registration Form (the “Federal Form”) to register to vote in federal elections.

Prof. Hasen’s post discusses the implications of the ruling.

Rick Hasen previews portions of his forthcoming book, The Voting Wars, on the Election Law Blog and in this excerpt. Among other things, Hasen argues that there is little evidence of significant in-person voter fraud of the sort that would justify strict voter ID laws. At the same time, there is little evidence that the adoption of voter ID requirements suppress voter turnout. Writes Hasen:

many Republican legislators and political operatives support voter i.d. laws for two purposes: first, to depress Democratic turnout, and second to gin up the base. . . .

But there’s another side to the issue of voter identification laws, and more broadly to claims on the left of “voter suppression.” Democrats/those on the left sometimes inflate the potential negative effect of voter identification and other laws on voter turnout, especially among poor and minority voters. Even though it is clear that some Republicans are motivated to pass these laws in an effort to suppress likely Democratic turnout, some of those efforts are counterproductive and even when such efforts work the effects seem likely to be small. Further, just as Republicans use the scare of voter id laws as a wedge issue to boost Republican turnout, Democrats use the scare of voter suppression to boost Democratic turnout.

So while Republicans exaggerate the threat of in-person voter fraud, Democrats exaggerate the threat of voter ID laws. In both cases, the claims far outstrip the available evidence. Concludes Hasen: “In short, we need to be honest about what we know, and what we don’t know, about the effects of these new laws on voter turnout. And we don’t know a lot.”

A new report from the Pew Center on the States finds widespread irregularities and inaccuracies in voter registration rolls, including nearly two million dead people who remain registered to vote.  As the NYT reports, approximately one-in-eight active voter registrations is “invalid or inaccurate.”  From the NYT:

The report found that there are about 1.8 million dead people listed as active voters. Some 2.8 million people have active registrations in more than one state. And 12 million registrations have errors serious enough to make it unlikely that mailings based on them will reach voters.

“These problems waste taxpayer dollars, undermine voter confidence and fuel partisan disputes over the integrity of our elections,” said David Becker, director of election initiatives at the center.

Mr. Becker warned that poor record keeping at the registration stage is not evidence of fraud at polling places. “These bad records are not leading to fraud but could lead to the perception of fraud,” he said.

The report also found over 50 million people who are eligible to vote are not properly registered.

Ed Crane and David Keating in the WSJ

It is instructive to recall the 1968 presidential campaign of Minnesota’s late Democratic Sen. Gene McCarthy (who was also a plaintiff in Buckley). Popular support for the war in Vietnam was declining, yet no establishment candidate was available to challenge the war—certainly not Richard Nixon. On the Democratic side, President Lyndon Johnson was escalating the conflict. McCarthy was the most outspoken and articulate opponent of the war in the U.S. Senate, but he lacked the resources to conduct a serious presidential campaign.

Had the 1974 amendments to FECA, with their $1,000 contribution limits, been in place in 1968, there would have been no “Clean Gene for President” campaign. As it was, wealthy liberals such as Stewart Mott, Stanley Sheinbaum and the recently deceased Max Palevsky stepped up to make six- and seven-figure contributions to fund the McCarthy campaign, donations worth nearly $10 million in today’s dollars.

Suddenly, tens of millions of antiwar Americans had a candidate. McCarthy didn’t win the New Hampshire Democratic primary, but he did so well that President Johnson, seeing the handwriting on the wall, announced he was not going to run for re-election. Such is the manner in which campaign-finance laws can affect history.

Indiana Secretary of State Charles White was convicted of voter fraud, among other charges, this week for lying about this address on voter registration forms and voting in the wrong precinct. White apparently continued to use his ex-wife’s address for his voter registration after they split, in part, because he didn’t want to lose a modest town council salary for moving out of the district. As Secretary of State, White was the highest ranking elections official in the state.

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn’t even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code ...: “Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor.”

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct.... [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

FURTHER UPDATE: I just ran across a 1891 Arkansas statute that did ban threat of expulsion from a church based on one’s vote: “No person shall coerce, intimidate or unduly influence, any elector to vote for or against the nominee of any political party, or for or against any particular question or candidate, by any threat or warning of personal violence or injury, or by any threat or warning of ejectment from rented or leased premises, or by the foreclosure of any mortgage or deed of trust, or of any action at law or equity, or of discharge from employment, or of expulsion from membership in any church, lodge, secret order or benevolent society, or by any oath, or affirmation or secret written pledge.” I could find no cases, though, applying this statute.