Wednesday, June 3, 2009

Why Karen Handels Voting Policy is Unconstitutional

Strict Scrutiny is used:

in two basic contexts: when a “fundamental” constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the government action involves the use of a “suspect classification” such as race or national origin that may render it void under the Equal Protection Clause.

To pass strict scrutiny:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The government has an interest in regulating voting eligibility to ensure there is no fraud. You pass!

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

The policy is aimed at regulating voting behavior. It is regulating voting behavior. So she gets a pass here

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Is the Social Security Database the least restrictive means? No, and it fails on this part. There are other, lesser-restrictive means, such as checking state databases. Karen Handel did not do this, so her policy violated the law. That is why it was shot down by the DOJ.