42 USC 1971 and the definition of "election"Submitted by lucky225 on Wed, 05/30/2012 - 08:51
I have seen several posts now where folks erroneously point to the definition of "election" either in Title 11 of the Code of Federal Regulations which regulates Title 2 of the United States Code *NOT* Title 42 USC, or the definition found at Title 2 USC 431 it's self. Please note the Code of Federal Regulations run PARALLEL to the STATUTES they regulate. In law we have statutes (United States Code) and regulations which give FORCE to the statutes(Code of Federal Regulations). For the most part, CFRs are basically the same thing as the USC that they represent. If you go to http://www.gpo.gov/fdsys/pkg/CFR-2011-title11-vol1/xml/CFR-2... you will see that it only regulates Title 2 USC ("CFR 11 § 100.2 Election (2 U.S.C. 431(1))."
Thus, the term "Election", as defined in 11 CFR 100.2 and 2 USC 431 only defines that term for Federal Election Campaign laws, not for 42 USC 1971 which is a separate statute dealing with voting rights.
However, while "election" is not defined in 42 USC 1971. "vote" or "voting" is defined at 42 USC 1971(e) and it states in part:
42 USC 1971(e) When used in the subsection, the word “vote” includes //all action necessary to make a vote effective//
This is where the courts ARE on our side. While "election" is not defined, "vote" is.
Most cases to date have dealt with a separate section, 42 USC 1973. 42 USC 1973l however also defines "vote" almost verbatim identically as it is defined in 42 USC 1971. In Morse v. Republican Party of Va. - 517 U.S. 186 (1995)(http://www.law.cornell.edu/supct/html/94-203.ZO.html)
The court held:
We have consistently construed the Act to require preclearance of any change in procedures or practices that may bear on the "effectiveness" of a vote cast in "any primary, special, or general election." 42 U. S. C. § 1973l(c)(1). Rules concerning candidacy requirements and qualifications, we have held, fall into this category because of their potential to "undermine the effectiveness of voters who wish to elect [particular] candidates." Allen, 393 U. S., at 570; see also Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 40 (1978). Changes in the composition of the electorate that votes for a particular office-that is, situations that raise the specter of vote dilution-also belong to this class because they could "nullify [voters'] ability to elect the candidate of their choice just as would prohibiting some of them from voting." 393 U. S., at 569. This nexus between the changed practice and its impact on voting in the general election has been a recurring theme in our cases interpreting the Act. See Chisom v. Roemer, 501 U. S. 380, 397 (1991) ("Any abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election"). In its reenactments and extensions of the Act, moreover, Congress has endorsed these broad constructions of § 5. See, e. g.,
A filing fee for party delegates operates in precisely the same fashion as these covered practices. By limiting the opportunity for voters to participate in the Party's convention, the fee undercuts their influence on the field of candidates whose names will appear on the ballot, and thus weakens the "effectiveness" of their votes cast in the general election itself. As an elementary fact about our Nation's political system, the significance of the nominating convention to the outcome in the general election was recognized as long ago as Justice Pitney's concurrence in Newberry v. United States, 256 U. S. 232 (1921). Joined by Justices Brandeis and Clarke, he wrote: "As a practical matter, the ultimate choice
of the mass of voters is predetermined when the nominations [by the major political parties] have been made." Id., at 286 (opinion concurring in part). See also United States v. Classic, 313 U. S. 299, 319 (1941) (endorsing the Newberry concurrence). Just like a primary, a convention narrows the field of candidates from a potentially unwieldy number to the serious few who have a realistic chance to win the election. We have held, in fact, that the State's compelling interest in winnowing down the candidates justifies substantial restrictions on access to the ballot. American Party of Tex. v. White, 415 U. S. 767, 782, and n. 14 (1974). Virginia, no doubt, would justify its own ballot access rules-including those for the major parties-on just this basis.22
We have previously recognized that § 5 extends to changes affecting nomination processes other than the primary. In Whitley v. Williams, one of the companion cases decided with Allen, this Court affirmed § 5 coverage of a scheme that placed new burdens on voters who wished to nominate independent candidates by petition. The Court was unconcerned that the changes did not directly relate to the conduct of a primary, because they had an effect on the general election. See Allen, 393 U. S., at 570. One of those changes was a requirement that each nominator sign the petition personally and state his or her polling precinct and county. See id., at 551. Like the filing fee in this case, that condition made it more difficult for voters to participate in the nomina-
22 Virginia created its first signature requirement for self-nominated candidates in 1936. See Va. Code Ann., Tit. 6, § 154 (1936) (requiring petition signed by 250 qualified voters of the Commonwealth). Although the Commonwealth maintains limited legislative history records, contemporary news accounts reported that the provision was designed to "discourage cranks and persons who for personal glorification take advantage of the very liberal terms of the election code." New Qualification, The Richmond News Leader, Mar. 6, 1936, p. 8. Then as now, political parties were exempt from the signature requirement.
tion process, and therefore properly fell within § 5's scope. A fee of $45 to cast a vote for the Party nominee is, if anything, a more onerous burden than a mere obligation to include certain public information about oneself next to one's name on a nominating petition. In dissent, Justice Harlan agreed that "the nominating petition is the functional equivalent of the political primary." Id., at 592 (opinion concurring in part and dissenting in part).
Delegate qualifications are in fact more closely tied to the voting process than practices that may cause vote dilution, whose coverage under § 5 we have repeatedly upheld. Virginia, like most States, has effectively divided its election into two stages, the first consisting of the selection of party candidates and the second being the general election itself. See United States v. Classic, 313 U. S., at 316. Exclusion from the earlier stage, as two appellants in this case experienced, does not merely curtail their voting power, but abridges their right to vote itself. To the excluded voter who cannot cast a vote for his or her candidate, it is all the same whether the party conducts its nomination by a primary or by a convention open to all party members except those kept out by the filing fee. Each is an "integral part of the election machinery." Id., at 318.
The reference to "party office" in § 14, which defines the terms "vote" and "voting" as they appear throughout the Act, reinforces this construction of § 5. Section 14 specifically recognizes that the selection of persons for "party office" is one type of action that may determine the effectiveness of a vote in the general election. Delegates to a party convention are party officers. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 32 (1965) ("Thus, for example, an election of delegates to a State party convention would be covered by the act"). The phrase "votes cast with respect to candidates for public or party office" in § 14 is broad enough to encompass a variety of methods of voting beyond a formal elec-
tion.23 Cf. Classic, 313 U. S., at 318. The Party itself recognizes this point, for both in its brief to this Court and in its Plan of Organization, it repeatedly characterizes its own method of selecting these delegates as an "election." 24
So there you go, that is the precedent we have to enforce 42 USC 1971, don't focus on the word "election", focus on the word "vote".