Retired state supreme court justice: Voting is (and should be treated as) protected speech

Photo by Hill Street Studios/Getty Images.

When we think of freedom of speech, the spoken word is usually what comes to mind. But the First Amendment of the federal Constitution (and, hence, Article II, section 7 of Montana’s Constitution) also protect symbolic speech. [Editor’s note: North Carolina’s free speech clause can be found in Article I, Section 14 of its constitution.]

Symbolic speech is non-verbal action that clearly conveys a specific message to anyone who sees and reads it. It can take the form of public protests, such as sit-ins and marches, demonstrations, wearing buttons, armbands or clothing items such as t-shirts, nudity, flag-waving, flag-burning, burning draft cards and bras, braille, sign language and even non-criminal actions that others might find offensive (the universal “one-finger salute”), to name a few.

My friend, Alan Nicholson, and I were exchanging emails, and he raised an interesting question: Could the right to vote be an exercise of free speech? I believe that Alan is correct, voting is the exercise of free speech. I suggest that it is a form of symbolic speech.

One commentator put it this way: “Voting is an act of pure expression. It is one of the most consequential expressive acts in a persons’ life, when a voice becomes an action, and those actions dictate how we are governed.”

Another author states: “It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution.” This commentator notes, however, that the U.S. Supreme Court rarely interprets the regulation of voting as it does other regulation of speech—that is, with the most stringent form of review, strict scrutiny, applying robust First Amendment law. Ironically, this from the court that determined in the Citizens United decision that money equals speech.

However, keep in mind a fundamental principle of constitutional law: Under its own constitution, a state can provide more protection of a right protected under the federal constitution; but a state cannot provide less protection.

With that principle in mind, assume that registering to vote, filling out a ballot (either mailed or at a polling place) and casting that ballot are actions that are, at the very least, forms of symbolic free speech—an expressive non-verbal action that clearly conveys a specific message to anyone who sees and reads it.

Then, add to that the mandates and prohibitions of Montana’s Article II, section 13, which states: “All elections shall be free and open, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.” One could hardly craft a stronger protection of the right to vote—a constitutional guarantee that all elections must be free and open and prohibiting any civil power (including the legislature, of course) from interfering to prevent the exercise of this right. [Article 1, Section 10 of the North Carolina constitution states simply that “All elections shall be free.”]

Thus, reading together the rights in Articles II, section 7 (free speech and expression) and section 13 (right of suffrage) it is clear that under Montana constitutional law (and perhaps that of other states), the right to vote must be protected with no less rigor than is the right of free speech and expression. That is, that both rights, being fundamental rights, any restrictions on the right to vote must be subjected to free speech strict scrutiny analysis.

To that point, Montana’s right of free speech proclaims, in pertinent part that: “No law shall be passed impairing the freedom of speech or expression.” Voting being a form of speech and expression means that no law shall be passed impairing the right to vote. And the mandates and prohibitions of Article II, section 13 double-down on that point. [North Carolina’s Article I, Section 14 reads “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.”]

There is simply no constitutional basis by which the legislature, the governor or any public official or branch of government can impair or interfere with the right of suffrage in Montana or any state with similar constitutional protection. “No law shall be passed …” — [“… shall never be restrained ….”]

James C. Nelson is a retired lawyer, former Montana Supreme Court Justice, and contributor to the Daily Montanan which first published this essay.

The latest evidence that Mark Meadows is a hypocritical scoundrel

Former Congressman Mark Meadows

What is the deal with these right-wing politicos who rant and lecture about the “swamp” in Washington and a supposed massive, national conspiracy to fix elections through voter fraud, who then turn out to be dishonest fraudsters themselves?

Perhaps it’s just a matter of trying to mimic their hero — the all-time champ in this category of behavior, former President Donald Trump — but whatever it is that motivates such stupidly hypocritical action, it’s always quite something to behold.

As you’ve probably heard, the latest example that’s now sweeping the national news cycle involves former North Carolina congressman and Trump chief of staff, Mark Meadows.

Over the weekend, New Yorker magazine reporter Charles Bethea reported on the circumstances surrounding Meadows’ clearly preposterous claim that a dumpy rental property in rural Macon County that didn’t even have a mailbox was his domicile for voting purposes.

As Bethea reports, Meadows’ almost certainly false claim quite possibly runs afoul of federal law:

It’s a federal crime to provide false information to register to vote in a federal election. Under President Trump, the White House Web site posted a document, produced by the conservative Heritage Foundation, intended to present a “sampling” of the “long and unfortunate history of election fraud” in the U.S. Many of the cases sampled involve people who registered to vote at false addresses, including, for instance, second homes that did not serve as a person’s primary residence.

As the article also goes on to note, Meadows has a history of playing it fast and loose with the truth:

This would not be the first time that Meadows seemed to mislead the public on the matters of his credentials or his real-estate holdings. For a long time, news outlets, apparently relying on his official House biography, reported that Meadows had earned a B.A. from the University of South Florida, though he actually received an associate’s degree. And Meadows appears to have violated congressional ethics guidelines by not disclosing his ownership of a hundred and thirty-four acres in Dinosaur, Colorado, which he ultimately sold to a nonprofit that aimed to use dinosaur bones in an effort to prove the literal truth of the creation story in the Book of Genesis.

The bottom line: Law enforcement officials should pay a call on Mr. Meadows and demand an explanation. As the lead editorial in this morning’s edition of Raleigh’s News & Observer put it:

Others have been arrested and even imprisoned for honest mistakes that resulted in illegal voting, including a Black woman from Wake County who voted while on probation in 2016, not knowing it wasn’t allowed.

Lying, on the other hand, is hardly an honest mistake. As a former elected official and top-ranking member of the White House staff, Meadows has no excuse for not knowing the law, and despite his power and influence, he is not above it. As with any instance of potential voter fraud, the North Carolina State Board of Elections should investigate it. And if it’s found that Meadows did fraudulently register for and vote in an election, he ought to bear the consequences of doing so.

Click here to read Bethea’s report and here to read a follow-up article on WRAL.com.

Field notes from the North Carolina U.S. Senate campaign — Vol. 5

So many candidates

The cast of characters in the U.S. Senate race grew over North Carolina’s second candidate filing period, but the plot hasn’t changed.

After being halted by a court ruling in redistricting lawsuits last December, filing restarted February 24 and closed at noon Friday.
Although there were some surprises in congressional and state legislative races, the direction of U.S. Senate primaries remains unchanged. Marjorie Eastman and Mark Walker filed Wednesday and Thursday respectively, joining Pat McCrory and Ted Budd in the top tier of the GOP’s 14 candidates.

Cheri Beasley’s main challengers dropped out of the race last year and although she is one of 11 Democrats, she has effectively cleared the field.

Shannon Bray of Apex is the lone Libertarian in the race and already headed for the fall ballot.

The order of names on the ballot were determined Friday by the State Board of Elections in accordance with a state law requiring a random selection, which means, in the words of the official release, “The order was determined by selecting a ball out of a bingo machine, with the letter on the ball corresponding with the first letter of the candidate’s last name.”

Yes, there’s a video.

Here’s the list (towns are from filings):

Democrats: James L. Carr, Jr. (Harrisburg); Robert Colon (Wilmington); Alyssia Rose-Katherine Hammond (Raleigh); Constance (Lov) Johnson (Charlotte); Tobias LaGrone (Greensboro); B. K. Maginnis (Charlotte); Rett Newton (Beaufort); Marcus W. Williams (Lumberton); Greg Antoine (Fayetteville); Cheri Beasley (Raleigh) and; Chrelle Booker (Columbus).

Republicans: Marjorie K. Eastman (Wake Forest); David Flaherty (Cameron); Benjamin E. Griffiths (Cleveland); Kenneth Harper, Jr. (Archdale); Pat McCrory (Charlotte); Charles Kenneth Moss (Randleman); Lichia Sibhatu (Raleigh); Debora Tshiovo (Moravian Falls); Mark Walker (Summerfield); Jen Banwart (Holly Springs); Ms. Lee A. Brian (Clayton); Leonard L. Bryant (Fayetteville); Ted Budd (Raleigh) and; Drew Bulecza (Lincolnton).

If you’re wondering if that’s a lot of candidates, it is.

Key dates & deadlines

  • Absentee ballot requests for the May 17 primary are open until 5 p.m. Tuesday (March 10). Ballots must be returned by 5 p.m. Election Day (May 17). Click here for information on voting by mail.
  • Voter registration deadline for the primary is 5 p.m. Friday April 22. Click here to check your registration.
  • North Carolina’s 17 day early voting period runs from April 17 to May 14. Eligible voters can also register in person and vote at the sites. Click here for more information on voting early in-person and here to look up lookup early voting sites in any county.

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Fundamental rights are on the line as GOP seeks U.S. Supreme Court intervention in state gerrymandering case

Four months after the N.C. General Assembly enacted a new alignment of the districts in which our state’s congressional representatives are chosen, the gavel has come down: That district map was so skewed to benefit the Republican Party that it violated voters’ rights under the state constitution.

So declared the state Supreme Court in its ruling of Feb. 14 that sent legislators back to their drawing board.

No, the ruling wasn’t unanimous. Three of the seven justices filed a strong dissent, arguing that partisan gerrymandering, whatever its practical effects on election outcomes, is not expressly barred under the constitution and thus is a political matter beyond the state courts’ proper reach.

Yet here’s the deal. Those three, led by Chief Justice Paul Newby, were outvoted. They lost. In fact they went 0 for 3, since the maps for state House and Senate districts that they had supported also were tossed.

What happened then? Working on a tight schedule laid down by the high court, legislators redrew the districts. The revisions were submitted to a panel of three trial judges for review.

The panel, upon the advice of specially appointed experts including two retired Supreme Court justices and a former president of the University of North Carolina system, gave thumbs up to the two new state legislative maps.

But the proposed congressional map didn’t make the grade. It was found still to be too sharply tilted in favor of Republican candidates – a tilt achieved by diluting the power of voters likely to back Democrats. So the trial judges substituted another version devised by the outside experts, as the Supreme Court had authorized them to do.

The final package of three new maps was submitted to the justices on Wednesday, Feb. 23. A request to block the congressional map pending appeal, filed by attorneys for the legislature’s redistricting chiefs, was denied. For Democrats looking to shave perhaps a couple of seats off the Republicans’ projected 10-4 edge in the state’s congressional delegation — as well as for advocates seeking to give all voters a fairer chance to elect their preferred candidates – it seemed like the clouds had parted and the sun was shining.

Perhaps they should have known better. The legislature’s Republican leaders figured they had an ace up their sleeve.

Their idea wasn’t to dispute the unfairness of maps that virtually guaranteed a lopsided advantage for one party even when the overall vote was split about evenly.

It wasn’t to continue disputing what the state constitution allowed or didn’t allow under its foundational Declaration of Rights.

It was to look instead to the U.S. Constitution and its assignment of responsibility for determining the “manner” of election for senators and representatives. That duty, according to Article I, Section IV, falls to each state’s legislature, subject to laws passed by Congress itself. The plain language says nothing about oversight by a state’s courts.

Among the thorns

So, here we go into a classic legal briar patch – a favorite hang-out of judicial conservatives such as our Chief Justice Newby and his soul mates among the U.S. Supreme Court’s Republican-appointed majority.

The Constitution must be read literally, they maintain. And if it says the manner of congressional elections are set by the various legislatures, with no spelled-out role for state judiciaries, then by golly it’s legislators themselves who get to draw district lines without second-guessing by “activist” liberal judges.

That’s the gist of the argument now being pressed by lawyers operating on behalf of House Speaker Tim Moore, Senate President Pro Tem Phil Berger and their respective redistricting leaders. They played their ace in the form of a Feb. 25 motion to the U.S. Supreme Court seeking to invalidate the congressional map approved by the state justices.

In line with Supreme Court procedure, the request for a stay went to Chief Justice John Roberts Jr., who handles such motions originating in our part of the country. It was Roberts who, in 2019 in another case from North Carolina, wrote a majority opinion saying that the federal courts had no constitutional grounds for regulating extreme partisan gerrymandering even though it “leads to results that reasonably seem unjust.”

Roberts said the remedy lay in state-by-state constitutional and statutory provisions to keep gerrymandering under control. Well, North Carolina’s Supreme Court now discerns rights embedded in our state constitution having that precise effect. But the argument that our court has overstepped its bounds is meant to kick that conclusion to the curb. Will the chief justice bite?

If he does, it would seem to undercut a pillar of our American system of checks and balances: the doctrine of judicial review, by which the courts determine what rights are embedded in constitutions and whether legislative acts do or don’t uphold those rights. North Carolina’s courts have operated under that principle since 1787, according to documents in the current case. Read more

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