Wednesday, July 12, 2006

Bridgeman v. McPherson (Cal. Ct. App. - July 11, 2006)

I'm not sure that you can do this, Justice Sims. It's superficially appealing, and I can understand why you might want to do it. But, upon reflection, I think the move is -- fairly clearly -- doctrinally illegitimate.

Here's the scoop. Sometimes overseas voters, who often get their ballots late, can't mail them back in time for them to be received (as required by California law) by election day. So California passes a law that says that a special absentee voter can fax their ballots back in lieu of mailing them. Fair enough. Unfortunately, because it all comes in one packet (the fax), unlike a ballot stuffed in an envelope, anyone who examines the fax will be able to see both the name of the voter and how they voted. Which means the ballot isn't secret.

Secret ballots are a pretty fundamental component of our democratic electoral system. But given the nature of the fax, California passes another statute, Elections Code 3103.5, that says that in order to return the ballot via telefax, the voter must sign an oath that says "that by returning my voted ballot by facsimile [(fax)] transmission I have waived my right to have my ballot kept secret.”

The thing is, that statute pretty flatly conflicts with the California Constitution, which expressly declares (in Article II, Section 7) that "[v]oting shall be secret." So some voters file a lawsuit.

Notwithstanding this clear conflict between the statute and the California Constitution, Justice Sims upholds the statute. Sure, he admits, the constitution trumps statutes. Justice Sims nevertheless holds that the law is valid because it's designed to enforce another critical constitutional right -- the right to vote -- and when two such constitutional provisions conflict, the Legislature can, as here, adopt a statute that seeks to effectuate the latter.

As I said, upon first reading the opinion, I thought that this doctrinal move had some facial appeal. Even though it conflicted with pretty much everything we're ever taught about constitutional supremacy. The more I thought about it, however, the more I realized that you can't do this. That a statute that conflicts with a provision of the constitution isn't constitutional even if it legitimately and in fact serves to protect another vital constitutional liberty.

I won't go through the complete analysis -- this is a blog, after all, not a law review article -- but let me just give you an example. Say the police are pretty darn sure that there's a serial killer sleeping peacefully in his home. In order to arrest him, rather than get a warrant, they decide to simply bust into his house. And, in order to convict him, maybe they also search his house, again without a warrant. Perhaps go even further. Maybe because they're darn sure that he's guilty, rather than risk letting some hotshot attorney get him off on a technicality, they also deprive him of his right to counsel at trial. Heck, let's go all the way. Rather than risk an adverse result from the right to "due process" and let this serial killer go free, after catching him, the police simply take him out in the backyard and fire a bullet into his brain.

All of this is utterly impermissible under the Constitution, right? We're super darn sure of that. Or at least I am.

But what if the police say: "Yeah, I know that stuff facially conflicts with the Fourth and Fifth and Sixth (and perhaps tons of other) Amendments. But we did all of it to protect other critical liberties. In particular, the critical constitutional rights of all of his future victims to vote, engage in free speech and free exercise, make contracts, breathe, etc." So, they say, what we did was categorically necessary to enforce other constitutional rights. Critical rights; moreover, rights for a number people rather than merely one.

I don't have any doubt whatsoever that we'd resoundingly laugh such an argument out of court. Even if it were true that the conduct of the police in fact had such a result; in other words, that each of these acts were indeed necessary. We wouldn't permit the police even to try to make such a showing in such a setting. And that's true even if they were acting pursuant to a state law that said "If the only way you can stop a future killing is to violate the constitution, go right ahead." We'd strike that puppy down.

The same is true here. You can't uphold a statute that conflicts with the constitution merely because it is designed to effectuate other constitutional rights. (I leave aside for now the difficult question of whether there's a potentially different result when constitutional provision X has an "effectuate" clause that might permit right X to be enforced at the expense of right Y pursuant to the constitutional provisions of X.)

So I think this one is wrong. It's a result that is understandable, and may make some superficial policy sense. But that's nonetheless inconsistent with the purposes and function of a constitution.

That's my take. Now I'm off to the courthouse to argue a far, far less important and theoretical case before the California Court of Appeal this afternoon. One that's interesting in its own right, mind you. But -- for some inexplicable reason -- people generally find the intricacies of civil procedure much less fascinating than constitutional law. Go figure.