The vote from beyond the grave.

• Author: Edwards, Krysta R.

TABLE OF CONTENTS INTRODUCTION I. FEDERALISM AND CONGRESSIONAL PREEMPTION OF ELECTION LAWS II. THE PROBLEM DEFINED A. The Fundamental Nature of the Right To Vote B. The Variant Standards Employed by the States C. Equal Protection D. Can Dead Voters Have Equal Protection Rights? 1. Analysis by Analogy: Wrongful Death, Civil Rights, and Privilege 2. Effect on Surviving Voters E. The Likelihood of Success (or Failure) on the Merits III. NECESSITY OF VOTERS' FAITH IN THE SYSTEM IV. RECOMMENDATION CONCLUSION INTRODUCTION

On November 4, 2008, Americans watched the networks declare Barack Obama the next President of the United States. As the historical election came to an end, some may have turned their thoughts to Madelyn Dunham, the President-elect's grandmother, who lost her battle with cancer just the day before at the age of eighty-six. Though she did not live to see her grandson elected to the highest office in the country, Ms. Dunham played a part in putting him there--she voted absentee. (1)

Because her ballot had been legally cast and received, Hawaii Chief Elections Officer Kevin Cronin assured reporters that it would be counted along with the rest of the state's votes in determining which presidential candidate would receive Hawaii's four electoral votes. (2) Notably, if Dunham resided in her grandson's home state of Illinois, her ballot would have been rejected. (3)

Since the 2000 presidential election and the storm of litigation that it produced, (4) the American public has exhibited heightened concern about the integrity of the voting process. (5) The media debated the implications of hanging, dimpled, and pregnant chads on Florida ballots, and the certification of the Florida returns--leading to the election of President George W. Bush--did not silence the controversy. (6) Despite the passage of the Help America Vote Act of 2002 (HAVA), (7) during the 2004 election news stories swirled about the thousands of deceased whose names had yet to be purged from the voter rolls (8) and, in other districts, votes being cast by deceased voters. (9) Although outright fraud--such as a person assuming the identity of a deceased person in order to vote more than once or in various locations--is clearly illegal, there is another class of votes whose legitimacy is less clearly defined: absentee and advanced voting ballots cast by those who passed away before election day. (10)

Millions of Americans cast their votes prior to election day in the 2008 election in an unprecedented mail-in and in-person early voting turnout. (11) Due to the overwhelming prevalence of absentee voting and the importance of improving an already skeptical electorate's faith in the system, the government should promote certainty in absentee voting. There are volumes of legal scholarship on election law and voting rights. Accordingly, there are a number of topics that are beyond the scope of this Note. (12) This Note seeks to answer three interrelated questions: (1) whether the federal government could mandate a uniform approach to nonfraudulent "ghost-voting"; (2) whether the federal government should adopt such a standard; and (3) if so, what that standard should be.

Thus, Part I of this Note evaluates the dual grants of control over the election process, divided between the states and the federal government, and concludes that the constitutionality of federal election regulation is well-settled. Part II weighs the arguments in favor of and against congressional intervention in the area, assessing the chance of success of an equal protection claim brought by the survivor of a deceased person whose vote was rejected. Although the analysis ultimately indicates that an equal protection claim brought on behalf of a disenfranchised voter might not have a strong chance of success, Part III considers whether voters' distrust of the electoral system provides independent reasons warranting federal action establishing guidelines for the states' treatment of these votes. Finally, Part IV provides a recommendation that, though Congress is unlikely to exercise its preemptive authority in this area of election administration, a uniform national standard to deal with these votes would further the governmental interest in burgeoning voters' faith that, when they vote, their voices will be heard.

1. FEDERALISM AND CONGRESSIONAL PREEMPTION OF ELECTION LAWS

   The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof. (13) The Constitution delegates the authority to regulate elections to the states. (14) This power, coupled with the Tenth Amendment right of the states to retain "[t]he powers not delegated to the United States by the Constitution," creates a presumption of legitimacy regarding the states' regulation of elections. (15) But this authority is not absolute. The Constitution reserves to Congress the ability to "at any time by law make or alter such Regulations, except as to the Places of chusing Senators." (16) Therefore, Congress has a "general supervisory power over the whole subject" and may insert itself into the administration of elections when it deems it necessary to do so. (17)

   Congress began to regulate certain state election procedures in the 1860s and 70s. (18) The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments guaranteed voting rights to a new class of voters (19) but could not unilaterally erase the prejudices that were at the core of disenfranchisement. To ensure that African Americans were able to exercise their newly guaranteed rights, Congress passed a series of enforcement acts. (20) The Enforcement Act of May 31, 1870 (21) prohibited state officials from "discriminat[ing] among voters on the basis of race or color in the application of local election laws" and outlawed interference with the right to vote through force or intimidation. (22) The Force Act of February 28, 1871 further expanded federal control over the election process. (23) Intended to curb voter fraud and false registration, the Act allowed federal election supervisors, at the request of two or more citizens in a town of at least 20,000 residents, to observe the registration and election process. (24)

   Nearly ninety years later, Congress again adopted regulations for election procedures in response to state practices that continued to disenfranchise African American voters. (25) After the passage of the Civil Rights Acts of 1957, (26) 1960, (27) and 1964, (28) the courts were forced to intervene when the states crafted discriminatory policies as a rebellion against the perceived federal encroachment. (29) Finding this "case-by-case litigation ... inadequate to combat widespread and persistent discrimination in voting," (30) Congress instead "cut through the protective barrier of federalism" (31) by enacting the Voting Rights Act of 1965. (32) Sections 4, 5, and 8 of the Act established broad powers for the federal government. (33) Perhaps the greatest expansion of federal authority over voting administration was embodied in section 5, which provides for federal review of any change in "voting qualification or prerequisite to voting, or standard, practice, or procedure" by the states. (34) Section 4 of the Act also prohibits the use of "tests or devices in determining eligibility to vote." (35) Finally, section 8 allows the federal assignment of observers at the polls upon a court order or at the request of the Attorney General. (36)

   Congress has not limited its involvement in election supervision solely to legislation implementing the achievements of the 1960s civil rights movement. In 1993, the legislature adopted the National Voter Registration Act (NVR or Motor Voter Act). (37) Among its purported purposes are "establish[ing] procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; ... protect[ing] the integrity of the electoral process; and ... ensur[ing] that accurate and current voter registration rolls are maintained." (38) To accomplish these goals, the statute requires the states to offer voter registration to residents when obtaining a driver's license, as well as at other designated locations. (39)

   A number of states have litigated the constitutionality of the Motor Voter Act, contending that contemporary Supreme Court decisions advocate federal restraint in preempting state authority. (40) Yet to mount a successful challenge to Congress's intervention in election procedures, a proponent of states' rights would have to prove "consequences of the Act that impose an undue burden on state sovereignty." (41) No such challenge has convinced the courts to discredit the statute's constitutionality. (42) In fact, the Seventh Circuit reasoned that Article I "requires the states to create and operate such a system," while at the same time it "authorizes Congress to alter the state's system." (43) Furthermore, the court determined that the burden the NVR imposes was insufficient to warrant an order of relief on constitutional grounds. (44) Therefore, Congress's authority to involve itself in the election process is broad and well-established. (45)

   Many in Congress claim to prefer to avoid interfering in traditional areas of state authority. (46) Nevertheless, some have observed a legislative trend of federal preemption of state law. (47) Although the Supreme Court, under the leadership of Chief Justice William Rehnquist, somewhat curbed the expansion of federal regulation in deference to state authority, (48) federal election regulation clearly is within the purview of the federal government and should not invite the more stringent scrutiny applied to statutes that infringe upon fundamental state functions. (49) Still, Congress might be hesitant to exercise its authority in the administration of qualifying absentee ballots unless there is a compelling reason for such legislation. Those reasons...