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):
- Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:
- Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
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.
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.
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.
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.
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.
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.
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.
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.
Yes.
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
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.
And swearing allegiance to a symbol of a tool? Won't see me doing that.