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Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:

I blogged about this case in September 2006, when the district court rejected the official's claim. The Tenth Circuit just affirmed the district court decision, though mostly on procedural grounds. Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:
  2. Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
tvk:
Eugene, going back to your original post, a question about your statement that voters can throw someone out for whatever reason they want. I have no doubt that judges cannot overturn such a voter decision. But there is a difference between a constitutional rule that is not judicially enforcable; and the absence of a rule at all.

Can voters constitutionally refuse to elect someone because they are a former slave? On the basis of race? Because of their religion? As an abstract question I think that is actually very hard to answer. Of course that is the problem with all political questions that are not subject to judicial enforcement.
3.14.2008 6:50pm
Thorley Winston (mail) (www):

Can voters constitutionally refuse to elect someone because they are a former slave? On the basis of race? Because of their religion?


Yes, not only can a voter vote against a candidate for any of those reasons, it is also perfectly constitutional for a political candidate to encourage voters to vote for them or against their opponent for any of those reasons.
3.14.2008 7:09pm
KeithK (mail):
tvk, I don't think it's a difficult question at all. Voters may choose to vote for someone or not for any reason at all. The Constitution restricts government, not the voters.
3.14.2008 7:25pm
Thorley Winston (mail) (www):
For any who are interested, I did some digging and found a copy of the actual ballot that was used for the recall and gave the reasons for removal.
3.14.2008 7:31pm
tvk:
"The Constitution restricts government, not the voters."

I am not questioning that this is true as a practical matter. But it is not true as a theoretical matter. The 13th amendment applies to all activity, public or private. The religious test for office clause does not, in its text, have a government-action requirement. The 18th amendment of course had no state action requirement, either.
3.14.2008 7:44pm
Cornellian (mail):
"The Constitution restricts government, not the voters."
I am not questioning that this is true as a practical matter. But it is not true as a theoretical matter. The 13th amendment applies to all activity, public or private. The religious test for office clause does not, in its text, have a government-action requirement.


I think the religious test clause, in context, clearly applies only against the government, not the voters, but the 13th amendment is more interesting. That clearly does apply to private activity. So what happens if the people of the state of Nebraska vote, by a 60-40 margin, to declare Mr. Smith an indentured servant? If an individual can't impose indentured servitude, presumably a group of people cannot do so either, even a group as large as 60% of those voting in a referendum.
3.14.2008 8:38pm
Brett Bellmore:

So what happens if the people of the state of Nebraska vote, by a 60-40 margin, to declare Mr. Smith an indentured servant?


The people of Nebraska might not be able to, but clearly according to the terms of the 13th amendment, a court could, as a penalty for a crime Mr. Smith was convicted of.
3.14.2008 9:07pm
Eli Rabett (www):
FWIW, try proving why ziggtity voters came out x+1 for removal and x against. The court was sane.
3.14.2008 9:41pm
Steve2:
Thorley, thank-you for posting that link. Quite informative.

Given those reasons, I'd have voted against recall and done my best to make life miserable for anyone I knew who'd signed the petition. But I can't say I think the courts came to anything but the right outcome.
3.14.2008 10:08pm
ras (mail):
If you thought Florida 2000 was bad enough for its trying to determine "voter intent," imagine the slippery slope of what elections in general would be like if officials could deem any voter's "intent" to be invalid and therefore that ballot to be nullified.
3.14.2008 10:17pm
John (mail):
I suspect that if he had just skipped the "under God," no one would have cared. In fact, the opinion notes, he did that at first but was miffed that nobody seemed to notice he wasn't speaking the words. So he took it to the next level with a more in-your-face approach that many voters appeared to interpret as, in effect, giving the finger.

Anyway, as other commenters have noted, the state can't control what makes you pull one lever or another in the voting booth. No one can.
3.14.2008 10:21pm
Mike S. (mail):

"...the state can't control what makes you pull one lever or another in the voting booth. No one can."


True, but the ballot copy linked above gives me pause to ask just what other motives were at play?

Merely as an aside, reciting the Pledge of Allegiance at local board meetings does seem a bit Kindergarten-ish, much in the same manner as singing the National Anthem at sporting events. I happen to believe that each of them do have significance, but like too much of any good thing tends to render it relatively meaningless and trivial to most participants.
3.15.2008 1:40am
Bad (mail) (www):
I'm not sure why he thought he had a case in the first place. You can't essentially sue the public for being stupid, or else lots of people would be millionaires.
3.15.2008 2:56am
Gaius Marius:

Can voters constitutionally refuse to elect someone because they are a former slave? On the basis of race? Because of their religion?


Yes.
3.15.2008 7:46am
Eugene Volokh (www):
Don't trust someone named Gaius Marius on political philosophy. (Don't trust our commenter Felix Sulla on that, either.)
3.15.2008 12:46pm
NickM (mail) (www):

If you thought Florida 2000 was bad enough for its trying to determine "voter intent," imagine the slippery slope of what elections in general would be like if officials could deem any voter's "intent" to be invalid and therefore that ballot to be nullified.


A trial judge in California tried this a few years ago in an election contest (Compton mayoral race), where she reallocated votes from the winner to the loser, thereby flipping the election result, based on a ruling that the loser should have been listed first on the ballot and that a certain percentage of the voters who voted for the winner would have instead voted for him.

She was slapped down hard by the Court of Appeal, who first showed how she was wrong on the law as to whom should have been listed first (CA conducts random alphabet drawings, and the appellate court found nothing wrong with using the pre-primary drawing for the runoff election), and then went on to explain that her vote reallocation theory was completely out of accord with CA law even if there had been a violation of the law on ballot order.

Nick
3.15.2008 3:38pm
ChuckC (mail):
"I suspect that if he had just skipped the 'under God,' no one would have cared"

Actually, I don't think anyone would have cared at all if he had just stood up and not said anything at all.

From the opinion: "Habecker joined in standing and reciting the Pledge [...] but declined to say the words 'under God.'"

Nobody noticed.

So, starting "at the September 14, 2004, Board meeting, Habecker sat silently during the recitation of the Pledge. [...] Habecker continued to sit silently through the Pledge for the remainder of his service as a Trustee"

Now, people noticed.

So, starting in September, Habecker was basically yelling "Look at me! I'm an atheist! Ain't I cool!"

The voters looked more closely and he lost 903-605.
3.15.2008 3:45pm
Smokey:
From Thorley's link above:
Prior to Town Board of Trustees meetings, he purposefully and irreverently chooses to publicly sit, facing away from the flag of the United States, during recital of the Pledge of Allegiance.
Sorta like this guy.
3.15.2008 9:32pm
Gaius Marius:
Gaius Marius has no political philosophy. On the other hand, there is a young fellow named Gaius Julius Caesar...
3.15.2008 9:53pm
Steve2:
Am I the only one here who looks at sitting and refusing to say the Pledge of Allegiance as a good thing? There's only nine words in the whole thing that ought to be said: "I pledge allegiance to liberty and justice for all." Everything else in it is either filler ("under God", "indivisible") or inappropriately pledging allegiance to things that shouldn't be given allegiance. There's a job, "liberty and justice for all," and there's a tool used to get the job done, "The Republic"/"one nation". What matters is the job, not the tool, and if you don't have the best tool for the job, you don't change the job, you change the tool.

And swearing allegiance to a symbol of a tool? Won't see me doing that.
3.16.2008 3:19pm
elscorcho (mail):
I always thought the Pledge of Allegiance should be to the Constitution of the United States of America.
3.17.2008 6:39pm