There was a time when the courts in this country we populated by people who when they placed their judicial robes on set aside set aside their partisan pasts and tried to wrap the legalistic part of their intellects around what decision made for the most common good. Judges appointed as conservatives once fully immersed in the whole cloth of the Constitution would focus on the balance of individual obligation to the social compact and protection of individual freedoms and rights. Their were no litmus tests except what is just and in accord with our valued principles of freedom. It does not feel that way anymore. It seems that the courts have shifted and that judges no longer are taking the long view of what is best for our survival as a democracy. I offer the following piece from today's Detroit Free Press as exemplary of that shift.
Democracy wounded
Jocelyn Friedrichs Benson • July 2, 2008
A few years ago, I served as a law clerk to Federal Circuit Judge Damon J. Keith, who famously wrote that “Democracies die behind closed doors.”
Democracies also die, I believe, when citizens’ fundamental right to vote is limited or disregarded. They die when Americans seeking to cast a ballot are turned away or deterred. And they die, as we have seen in Zimbabwe, when governments fail to ensure that avenues of competition and access are free and unfettered by threats and acts of intimidation.
Taking this analogy a bit further, this “death” does not always manifest through one fatal blow.
It comes through a series of wounds and injuries, often times seemingly minor or insignificant, but that collectively threaten the constitutional right of all voters to participate in the electoral process.
Last week, the Michigan Court of Appeals struck such a blow to the health of our democracy.
In a per curiam opinion, three judges concluded that Macomb County Clerk Carmella Sabaugh was not permitted to mail thousands of absentee ballot applications to citizens over the age of 60, who under state law are permitted to vote absentee without having to provide an excuse. (Voters under the age of 60 in Michigan who wish to vote with an absentee ballot are generally only permitted to do so if they state that they are physically unable to get to their polling place on Election Day).
So in other words, though these senior citizens are automatically able to request an absentee ballot, their county clerk – who produces the ballots – is not permitted to simply send these voters a form that enables them to request such a ballot.
In fact, the clerk is not permitted to do this even when her county government – in this case the Macomb County Board of Commissioners – expressly authorizes her to do so. According to yesterday’s decision, the county commission’s authority to “pass ordinances that relate to county affairs” does not include ordinances that address elections – even if county offices are on the ballot.
But what is perhaps the most striking aspect of the court’s opinion is its conclusion that county clerks duties – which include preparing and distributing ballots to voting precincts and distributing election materials - do not “relate to increasing voter turnout or making the election process less onerous for voters.”
This distressing conclusion is more than a confused interpretation of state law.
It is also a conclusion that appears forgetful of the fundamental right to vote that the United States Supreme Court found to be implicit in the rights guaranteed under the U.S. Constitution.
The Michigan Court of Appeals seems to omit consideration of this basic tenet of our democracy in declaring that local election administrators have no authority to lessen a burden on the right to vote - even where it involves such a simple act as mailing an application for absentee ballots to a community that under state law is expressly permitted to cast such ballots.
In span of years that has seen the enactment of new identification requirements for voters and a botched presidential primary where one party’s eventual nominee was not even on the ballot, yesterday’s decision by the Michigan Court of Appeals struck yet another wound to the health of our democracy.
Michigan voters deserve better.
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Jocelyn Friedrichs Benson is an assistant professor of law at Wayne State University Law School.
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