When the Supreme Court declared the poll tax unconstitutional no one questioned the right of a state’s subdivision to raise taxes. The issue was the imposition of a cost on people because they vote. The Court held that “Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” Forty-three states use voter lists to choose people to serve jury duty. Some use it as the only source. Since blue collar workers and poorer workers are more likely to suffer economically from jury duty this is like a tax (and is a “tax” according to one definition of the word . This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. Subjecting voters to the possibility of loss of their regular wages creates no less an invidious distinction based on wealth than does the $1.50 poll tax in the Supreme Court case.
The statutes we complain of are neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Oklahoma system, or even the Texas system. (Several US Supreme Court cases call this a “reasonable alternatives test.”)
There is no law that says every citizen, unless specifically excepted, must serve jury duty. Rather, the laws says that citizens (unless excepted) must serve jury duty when called. Names are selected from lists that, except in Massachusetts, do not include all citizens. Just as everyone is allowed to arrange their affairs to pay the least amount of taxes, all persons are allowed to arrange their affairs to reduce or eliminate their likelihood of being called for jury duty. Statutes in forty-three states and the District of Columbia make not voting such an option for some or all citizens. (See Appendix 3.) These statutes are bad for both jury trials and voting rights bcause of the economic inequity.
To: Public service lawyers and voter registration advocates
From: Donald Marcus, Harvard Law School, LL.B. 1958
(See Appendix 1 for points of contact.)
A skilled litigator could eliminate a major deterrent to poor people’s voting. Certain surveys say a significant number of people exercised their option not to vote in order to reduce the likelihood of jury duty. (“Electoral Participation and Non-participation in New Jersey”, 1981, Eagleton Institute of Politics, Rutgers University, New Brunswick, New Jersey, 08901 and the Los Angeles Times January 9, 1977, Part One, Page 1, Column 3. See appendices 2 and 4.) Some citizens might not admit to that for fear that their admission might defeat their purpose. (People in voter registration drives hear some people candidly volunteer their reasons for not voting, however.)
Many states use voter lists to choose people to serve jury duty. Arkansas, Mississippi, South Carolina, and Wyoming use it as the only source. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. However, since some people can better afford to take time off for jury duty than can poor working people, there is an equal protection issue. The U.S. Supreme Court, in Harper v. Virginia Board of Elections, which found the poll tax to be illegal, said "We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax." (See Appendix 2 for full citations and further analysis.) (Finding the jury selection law illegal also aids wealthy voters, since such laws are inseparable no matter how written. See Thiel v. Southern Pacific Co., a case involving selection of juries from
a city directory.) (See Appendix 2 for a full memo and an index at its end and Appendix 3 for statutes on calling people for jury duty.)
If penalizing voters were not part of the system to give people trial by jury, the voting penalty would clearly be illegal. Since it is, we must look at the law of conflicting constitutional principles. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be “. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) The statutes we complain of are neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Pennsylvania, the Texas, and the Oklahoma systems. (Several cases call this a “reasonable alternatives test.”) (See Appendix 3.) Pennsylvania calls prospective jurors from voter lists and other lists, which reduces the probability that a person will be called due to voting. While better than the South Carolina system it is inferior in all ways to the Texas system. Texas also calls people from various lists, but it also eliminates duplications to create a master list. In Pennsylvania, the more lists you are on, the greater your likelihood of being called. In Texas, if you are on one of the other lists (because you are a licensed driver or for some other reason) you do not increase that likelihood by voting. Elimination of duplications eliminates the voting penalty for some voters, reduces it for others, and provides a broader base for selecting jurors. In Oklahoma, Florida, Tennessee, and Michigan, voting lists aren't used to call people for jury duty.
The most important part of our Constitution is the right to vote. History teaches that. We left elementary school realizing this. In “The House I Live In,” democracy is the first of the few Constitutional provisions mentioned. The Supreme Court said “other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders. To say that moral obligations (both to vote and to serve more than one’s fair share of jury duty) overcome the injustice “is pure cant”, in the words of L. Hand, dissenting in Comm. v. Newman, in a comparable situation. He said “... There is nothing sinister in so arranging one’s affairs so as to keep taxes as low as possible ... [t]o demand more in the name of morals is pure cant”
The state practice of choosing people for jury selection from voters in federal elections violates the principle of federal supremacy. See Oregon v. Mitchell, and Southern Pacific Co. v. Arizona. (It might also be considered to violate the Poll tax amendment. See, also, “The American College Dictionary” concerning the definition of “tax.” See, also, Gibbons v. Ogden concerning constitutional construction.)
If the issue can be raised in several jurisdictions, prime targets are South Carolina and Mississippi, which use voters’ lists exclusively even though less than half of eligible voters vote, according to 28 C.F.R., Appendix to Part 51.
I have an extensive file concerning refinement relevant to many jurisdictions and responses to counter-arguments that may be made.
In any event, your comments on this proposal would be appreciated. Presently, you may write me at JDMAR58@Juno.com.
Sincerely,
Donald Marcus
Harvard Law School, LL.B. 1958
Appendix 1, Points of Contact
For Donald Marcus, Harvard Law School, LL.B. 1958
Address (fall, winter and spring): 1936 East 24 Street, Brooklyn, New York 11229-2420
Address (summer): 80 Westchester Avenue, Pittsfield, MA 01201-1652
Phone (fall, winter and spring; day, evening, weekdays, weekend): (718) 375 5586
Phone (summer; day, evening, week days, weekend): (413) 443 9325
E-mail: JDMAR58@Juno.com
ON REDUCING UNEMPLOYMENT, go to www.keynesignored.blogspot.com or send e-mail request with your e-mail address.
Appendix 2, a Memorandum on Voting Rights
Table of Contents: (An index is at the end of this appendix)
Point
Preface
A. A Suggested Procedure
B. The State Procedure is Prima Facie Illegal.
C. Reasonable Alternatives
D. “Moral Obligation”
E . Other Points
PREFACE
All citizens have an obligation to serve jury duty, no matter how burdensome this is, unless properly exempted or excused. However, citizens have no obligation to shoulder more than their fair share of the burden for the reason that they vote. Great as the obligation is, it is no more laudatory to accept a discriminatory amount of it because you vote than it would be to surrender your seat on a bus to an infirm person if your selection for that sacrifice were based on your race. It is fallacious to say that we should not sympathize with those who would disregard their right to vote to avoid serving more than one’s share of jury duty because there are moral obligations, both to vote and to serve jury duty. (This matter is discussed below.)
Many states use voter lists to choose people to serve jury duty. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. It coerces some voters, burdens some voters more than other voters, and interferes with federal elections. Burdening voters is bad and if it were not part of the system that guarantees people trial by jury in state courts (Duncan v. Louisiana, 391 U.S. 145 (1968)), the voter burden would be obviously illegal. Since it is, we must look at the law of conflicting constitutional principles. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be “. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) The statute we complain of is neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Texas or Oklahoma systems. (Several cases call this a “reasonable alternatives test.”) Texas calls people from various lists and it eliminates duplications to create a master list. In Texas, if you are on one of the other lists, because you are a licensed driver or for some other reason, you do not increase the likelihood of being called for jury duty by voting. That system eliminates the burden for some voters, reduces it for others, and provides a broader base for selecting jurors. It is better in all respects than non-elimination of duplications, as in Pennsylvania, or voter lists being the only source, as in South Carolina.
A. A Suggested Procedure
A complaint could be filed in the United States District Court on behalf of a voter who has been, or may be, called for jury duty by an appropriate state or local agency [henceforth “State”] demanding a declaratory judgment that the citizen’s selection is void. The rational for the demand is that the jury pool is fairer, the more sources, including voter lists, are used and as long as duplications are eliminated the only voters burdened by jury duty are those who are on none of the other sources. In states where other lists are possible for selection, the complaint should be conditioned, saying the citizen’s selection is void unless the State proves to the court that selection for jury duty was from a source other than voter registration rolls.
B. The State Procedure is Prima Facie Illegal
B. Three separate points of law, supported by decisions of the Supreme Court, independently indicate that, facially, the State practice, which discourages people from voting by selecting people for jury duty if they vote, is illegal. If it does not discourage people from voting it penalizes them (in the sense penalize is used in Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972)) for voting and is therefore void.
B1. States may not interfere in federal elections without specific congressional authorization. Article I, Section 4 of the Constitution empowers Congress to impose limits on the states as to setting voter standards for federal elections, according to Oregon v. Mitchell, 400 U.S. 112 (1970). Nothing in the Constitution authorizes state officials to interfere with the voting of those who qualify. In Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (concerning interstate commerce) the Court said the mere existence of the congressional power in a field denies the states the power to interfere in that field without specific congressional authorization, saying at page 767 “This . . . is predicated upon the implication of the commerce clause itself . . . or . . . the presumed intention of Congress, where Congress has not spoken. . . .” (Congress has legislated on the subject, to restrict, not authorize, states’ power to impede citizens’ voting rights, but in a setting that is primarily one of equal protection, as is noted in the next section of this text.) Similarly, the courts should rule that the jury duty practice is illegal because it substantially impedes voting in federal elections. Voting in federal elections may keep citizens on the voters’ registration lists whether or not they vote in state and local elections. (See New York’s Election Law § 5-400.) Typical laws on jury duty selection do not distinguish between those who vote in federal elections and those who vote in state elections. See Appendix 3a. I contend, also, that many more people serve state jury duty than federal while more people go to the polls because of federal elections than for other elections. Under the rule of Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, a state law is unconstitutional if it penalizes (the word is used broadly in that decision) someone for exercising a right even if it does not deter exercising it.
B2. The constitution’s equal protection clause forbids discrimination against the poor in voting. In Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Court held that payment of a $1.50 tax could not be a precondition for voting in a state election. The Court said: “We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” At page 668 it said “[a citizen’s right to vote is] the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.” Blue collar workers and poorer workers are more likely to suffer economically from jury duty and would therefore be more likely not to vote. Therefore, subjecting voters to the possibility of loss of their regular wages creates no less an invidious distinction based on wealth than does a $1.50 poll tax. The principle of protection for the poor was expanded in M.L.B. v. S.L.J., 117 S. Ct. 555 (1996). Furthermore, the Court in Reynolds v. Sims, 377 U.S. 533 (1964), stated that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, ECONOMIC STATUS, or place of residence within a State.” (Emphasis added.) There are absolute rights and situational rights. There are no absolute rights not to serve jury duty, even if it is a great hardship. Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946). But you may not have that hardship imposed on you more than on others, either because you criticize the political or judicial system or because you vote. See M.L.B. v. S.L.J., 117 S. Ct. 555 (1996), supra, as to a state’s obligation to have a system of appeals.
To help enforce the anti-discrimination parts of the Civil War Amendments Congress enacted 42 U.S.C. § 1973i, subsection (b). It provides “No person, whether acting under color of law or otherwise, shall intimidate, threaten or coerce . . . any person for voting . . . .” (§ 1973i follows § 1973 and is not part of it.) This makes it illegal for a state official to use voter registration rolls as a source of names for jury duty, (with the possible exception of it using the Texas statutory practice) for if the voter called by the State relies on income from a daytime job and that income stops, this economic hardship constitutes “coercion”. In addition, some workers have no job security, so they may fear they will find their job given permanently to their replacement when they finish jury duty. (Any state law that attempts to prevent such discharge is likely to be ineffective if it does not require employers who violate the law to pay attorneys’ fees of successful plaintiffs.) This situation certainly discourages some people from voting. It follows from this that federal statutory law makes it illegal for a State official to use voter registration rolls as a source of names for jury duty (with the possible exception of it using the Texas statutory practice). See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979) and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), in different contexts, for cases that broadly interpret the statute.
B3. Does the twenty-fourth amendment to the United States Constitution forbid the State practice? I maintain it does. (This is a gut reaction based on the interpretation of “tax.” I can see my contention being thrown out, out of hand. However, it is another string to the bow.) It bars the abridgment of any citizen’s right to vote in federal elections by any state by reason of failure to pay any poll tax or other tax. “The American College Dictionary”, published by Random House in 1956, gives as the first two definitions of “tax” “a payment of money or performance of services for the use of the government or the benefit of the public” and “a burdensome charge, obligation, duty, or demand.” “The Handy American Dictionary”, published by Random House in 1999, gives as the second and fourth definitions of “tax” “burdensome duty” and “burden.” In constitutional
construction we must not give words their narrowest possible construction. Gibbons v. Ogden, 9 Wheat. 1 (U.S. S. Ct. 1824). Therefore, the State practice is barred by this Amendment. The Supreme Court said “Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.” Harman v. Forssenius, 380 U.S. 528, 542 (1965) and cases cited therein for that principle. See also Gray v. Johnson, 234 Fed. Supp. 743 (S.D. Miss. 1964).
C. Reasonable Alternatives
C. The State procedure is illegal since reasonable alternatives exist. The bad State procedure is not the only way to achieve fair jury trials. When two constitutional principles oppose each other, the principle of Dunn v. Blumstein must apply.
C1. There is a long line of cases in which a government tries to justify stifling a fundamental right with a law with an otherwise legitimate purpose. Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) said such laws are unconstitutional unless the state can demonstrate they are“. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) Dunn v. Blumstein also said (at page 343, pages 284 and 285 of L. Ed. 2d) “… a heavy burden of justification is on the State, [and the] statute will be closely scrutinized in light of its asserted purposes.” Even when health is involved the principle of possible alternatives applies. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). See, also, Schneider v. State, 308 U.S. 147 (1939) and other cases cited in these three cases.
The State practice fails to meet the Dunn v. Blumstein test. If voter lists were retained as a source, many sources were added, and duplications were eliminated from jury sources, venire panels would be more inclusive yet fewer citizens would be burdened on account of their voting. The jury pool is fairer, the more sources, including voter lists, are used. (Each list has its own biases, which are balanced by the other lists.) As long as duplications are eliminated the only voters penalized are those who are on none of the other sources. (Of course, under the present system, any alternatives used in addition to voter registration lists for selection of prospective jurors, without elimination of duplicates, do not remove completely the fact that voter registration can lead to jury duty because, whether or not a person is on another list, being registered to vote adds to the probability of being chosen for jury duty.)
When a state’s law does not provide for elimination of duplications it is unconstitutional on its face. Laws exempting people who served recently (such as in the previous two years) do not change this. Many will not be affected by such laws. Some will never be called. As long as duplications are not eliminated your probability of being called is still greater the more lists you are on. See Appendix 3b for possible sources. Every source added would improve the mix and not detract from representativeness of the mix. Welfare recipients and state income tax payers are each included once. As long as duplications are effectively eliminated any other list added would increase the total number of people included, thus diminishing fear of being underrepresentative.
C2. The recognition of the illegality of the state’s practice would not affect prior jury trials, since the judgment would not affect the composition of prior juries. The present issue involves the rights of citizens called illegally to jury service, not parties in trials. The citizens that are involved are those who have been called but not yet served and those who may be called in the future. Furthermore, the Court can adopt the rule announced in United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978), when the defendant argued that he could stand in the shoes of the possible jurors. The court rejected that argument, in part because the right of these people to serve on a jury was not as significant as their right to vote. (The test for protection of voters is more rigorous than the test for selecting venire people, at least with respect to practices that were not intended to be discriminatory. 42 U.S.C. § 1973 prior to its 1982 amendment simply forbade states and localities to deny or abridge voting rights “on account of race or color.” Subsequent legislation, Voting Rights Act Amendment of 1982, broadened the law to forbid procedures that result in diminished opportunities for members of any race to elect representatives regardless of intent. (In any state or county singled out in 28 C.F.R. Appendix to Part 51 (see part E1, paragraph 3, below) we can add: Even without the 1982 amendment, by federal law intent is irrelevant to some governmental action regarding voting in the state, [or county] because of the degree of non-voting and non-registration by voting age citizens there. 28 C.F.R. Appendix to Part 51; Rome v. United States, 446 U.S. 156 (1980).) Another reason is that any claim to overthrow a prior verdict would be based on an assumption that an improper jury pool made the jury less representative than it should be. Aside from the obvious (that such a claim must have been made and rejected before the trial and have an appeal extant) juries need not mirror the community, according to Taylor v. Louisiana, 419 U.S. 522, 538 (1975) and other decisions. See Appendix 5, Point A1.
D. “Moral Obligation”
D1. It is fallacious to say that there are moral obligations, both to vote and to serve more than one’s fair share of jury duty, so we should not sympathize with those who would disregard one to avoid the other. It would be wonderful if there were lists of all people eligible to serve jury duty, so that such lists could be used. Where no such list exists the courts must select people from a list or lists that exist. Such lists must not burden people because they vote. Just as “... There is nothing sinister in so arranging one’s affairs so as to keep taxes as low as possible ... [T]o demand more in the name of morals is pure cant” (L. Hand, dissenting, in a comparable situation.) Comm. v. Newman, 159 F.2d 848 (CA-2, 1947), quoted favorably in Atl. Coast Line v. Phillips, 332 U.S. 168, 173 (1947) and several other cases), one may arrange one’s affairs to minimize the chance of being called to jury duty, to the extent that one wants. But no state may make surrendering one right a condition of exercising a fundamental right. Dunn v. Blumstein, 405 U.S. 330, 341, 31 L. Ed. 2d 274, (1972), supra, Harman v. Forssenius, 380 U.S. 528, 542 (1965.), supra. However, even if by fiat we create a moral obligation to serve jury duty, with legal consequences, and even if the importance of not burdening the franchise and of not discriminating against the poor were both ignored, the relevant laws of South Carolina and other states by not adopting the Texas system instead, and thus treating voters as they do, can be considered to be “a patently arbitrary classification, utterly lacking in rational justification.” (Flemming v. Nestor 363 U.S. 603, 611, 4 L ed 1435, 1445 (1960), dictum) and therefore unconstitutional.
Don’t exempt the state practice from judicial oversight for the reason that jury duty is an honor. To the extent that legislatures or members of the executive branch can make abusive rules that are not subject to judicial review we have a police state. Obligations must be apportioned fairly. Calling them honors or moral obligations does not mean they are not judicable, just as calling a dog’s tail a leg does not give the dog five legs. “The very essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws, whenever he receives any injury.” Marbury v. Madison, 1 Cranch 137, 163, 2L.Ed. 60, 69, (1803), quoted in Baker v. Carr, 369 US 186, 208, 7 L.Ed. 663, 680, (1962.)
E. Other Points
E1. There is evidence that the State practice not only illegally burdens voting but also makes juries less representative than the ideal. A significant number of people exercise their option not to vote in order to reduce the likelihood of jury duty, according to polls conducted by Eagleton Poll, “Electoral Participation and Non-participation in New Jersey”, 1981, Eagleton Institute of Politics, Rutgers University, New Brunswick, New Jersey, 08901, and the Los Angeles Times January 9, 1977, Part One, Page 1, Column 3. See Appendix 4. They are cognizable by courts, per Muller v. Oregon, 208 U.S. 412, 421 (1908). Such statistics aid not only the substantive case but also the case for having defendants pay large attorneys’ fees to plaintiffs’ lawyers under the Civil Rights Attorneys Fees Award Act of 1976, 42 USC 1988.
It is extremely unlikely that any election will be decided by a single vote, which may be another reason that individuals might fail to exercise the franchise that is so important to the community.
E2. [In any state or county singled out in 28 C.F.R. Appendix to Part 51 we can add the following:
Voter lists are not representative in any state or county, where less than half of the voting age citizens vote. Official statistics list the many states and counties where less than half of the voting age citizens vote. 28 C.F.R. Appendix to Part 51. Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, as reported in United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205. (1988) supra, notes “. . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a fair cross section.”]
E3. Granted, there is a congressional preference for voter registration lists as a source for prospective federal jurors shown in 28 U.S.C. § 1863(b)(2) (1992). However, federal jury selection legislation is not relevant to the instant case, per a holding of the Supreme Court. State law is not impliedly approved by parallel federal law, per South-Central Timber Dev. v. Wunnicke, 467 U.S. 82.
Nor is it so that the state legislation cannot be found contrary to the Constitution without finding the federal parallel procedures unconstitutional. There are several grounds for distinguishing the two. One such ground lay in an argument that does not apply to federal legislation, namely the one at point B1 concerning Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945), supra. Also, we could probably sustain allegations that more people go to the polls because of federal elections than for other elections and that in the state more people serve jury duty in state and local courts than in federal courts. This would indicate that the state tail is waving the national dog.
Federal law requires states to offer jury trials to criminal defendants. The requirement does not stem from Amendment VI, since the Bill of Rights does not apply to the states. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 8 L. Ed. 672 (1833). It is Amendment XIV that imposes impose that requirement. Duncan v. Louisiana, 391 U.S. 145 (1968), supra. That imposition is less strict than Amendment VI’s requirements for grand and petit juries. See the opinion of Justice Powell in Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184 (1972), which was necessary to the result. (Justice Powell’s opinion for that case appears at Johnson v. Louisiana, 406 U.S. 356, 366, 32 L. Ed. 2d. 152, 162 (1972).)
Also, Reynolds v. Sims, 377 U.S. 533 (1964), supra, relies on Baker v. Carr, 369 U.S. 186 (1962), supra, which relies on the Supremacy Clause of Article VI. There is another possible distinction. While I can find no case, either way, it would seem that states’ equal protection requirements are greater than that of the federal government, because the former is specified in the Fourteenth Amendment while the latter is merely implied by the Fifth Amendment.
E4. Bershatsky v. Levin, 99 F.3d 555 (1996), cert. den., 521 U.S. 1105 (6/23/97), is on point, but should not be followed, for several reasons. Most significantly, it does not discuss Dunn v. Blumstein, 364 U.S. 479, (1960), supra, discussed in Topic C, above, or any case that gives the reasonable alternative doctrine. Not only doesn’t Bershatsky discuss Dunn, it gives doctrines directly contrary to the reasonable alternative test. It upheld the governmental practice because it is “the most effective means of pursuing the compelling interest of achieving a reasonably representative venire.” The test noted in Dunn v. Blumstein, 364 U.S. 479, 488 (1960), supra, is whether it is “. . . necessary to promote a compelling state interest.” It would ignore reality to assert that the anti-littering ordinance stricken in Schneider v. State, 308 U.S. 147 (1939), supra, was not “the most effective means” of accomplishing its purpose, but the other possible means were better to resolve the conflict between opposing constitutional principles. Likewise, the inspection procedure demanded by the City of Madison in Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951), supra, when considered only from the viewpoint of public health, had an advantage of efficiency over the alternative method noted by the Supreme Court. Nevertheless, it was not acceptable when its effect on interstate commerce was also considered. The most effective means of achieving one goal may be more effective than other means by only a small margin. To make that margin determinative is to ignore all other considerations.
Bershatsky made a blatant mistake that is unconscionable if deliberate. See Appendix 5, B2d.
E5. If a state uses voters lists as a source of choosing people for jury duty and does not both use additional lists and eliminate duplications it is acting illegally. The analysis above, which gives the major arguments to support that claim, should be sufficient. Other factors strengthen that claim and also strengthen the claim that, to better protect the rights of citizens, voter lists should not be used at all. (They are not used in Oklahoma and other states. See Exhibit 3 for citations.) These factors are given in Appendix 5. While they are apparently superfluous, at least in jurisdictions without both use of additional lists and elimination duplications, for the sake of completeness I include them. (I lack the knowledge of judges’ astuteness to know when the apparently superfluous is actually superfluous.)
Index of Selected Cases
Case/ Section
Atl. Coast Line v. Phillips, 332 U.S. 168, 173/ D1
Bershatsky v. Levin, 99 F.3d 555, 1996), cert. den., 521 U.S. 1105
(6/23/97) / E4
Comm. v. Newman, 159 F.2d 848 (CA-2, 1947, L. Hand, dissenting)/ D1
Dunn v. Blumstein, 405 U.S. 330, 341, 31 L. Ed. 2d 274, (1972.)/ B1
Gibbons v. Ogden, 9 Wheat. 1 (U.S. S. Ct. 1824)/ B3
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)/ B2
Oregon v. Mitchell, 400 U.S. 112 (1970) /B1
Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) /B1
Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) /B2
Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481 (1964) /Appendix 5, B1
Appendices 3a and 3b
Appendix 3a, Selected Citations On Calling People For Jury Duty:
UNITED STATES, 28 U.S.C. § 1863 (b)(2); ARKANSAS: ACA SEC. 16-32-103;
CALIFORNIA, Code of Civ. Proc. § 197; COLORADO: 13-71-107; CONNECTICUT, Conn. Gen. Stat. Ann. §§ 51- 222a (b) & (c); DELAWARE: 10 Del C. 4507; GEORGIA: 15-12-40; FLORIDA, Fla. Stat. Ann. § 40.01; ILLINOIS, Courts, ch. 705, 305/1a & 310/2a; INDIANA, Ind. Code 33-4-5.5-14; IOWA, Iowa Code Ann. § 609.1; KENTUCKY: KRS sec. 90A.040; LOUISIANA, La. C.Cr.P. Art. 408.1; MAINE, Rev. Stat. Annot., Title 14, §§ 1252-A; MARYLAND: Md COURTS AND JUDICIAL PROCEDINGS Code Ann sec, 8-202; MASSACHUSETTS, Mass. Gen.Laws, chapter 234, § 4 & chapter 234A, § 10; MICHIGAN, Mich. Comp. Laws Ann. § 600.1304; MINNESOTA, Minn. Stat. Ann. 593.36; MISSISSIPPI, Miss. Code Ann. § 13-5-8; MINNESOTA, Minn. Stat. Ann. 593.36; NEVADA, Nev. Rev. Stat. 6.045; NEW HAMPSHIRE: RSA, Title 51, 500-A:1 IV and A:2; NEW JERSEY, Title 2B: Court Organization and Civil Code, 2B: 20-2; NORTH CAROLINA, Laws of North Carolina § 9-2; NORTH DAKOTA: laws of North Dakota, 27-09.1-05; OHIO, Ohio Rev. Code Ann. § 2313.06; OKLAHOMA, Okla. Stat. Anno., Jurors, §18 B. 1; PENNSYLVANIA, Judiciary & Judicial Procedure, § 4521 (a); RHODE ISLAND, R.I. Gen. Laws §9-9-1; SOUTH CAROLINA, S.C. Code § 14-7-14; TENNESSEE: Tenn. Code Ann. § 22-2-302; TEXAS, Tex. Codes Ann.-Gov. 62.001 (1) & (9); UTAH Code ann. § 78-46-4(4); VIRGINIA, Va. Code § 8.01-345; WASHINGTON, RCW § 2.36.054; WEST VIRGINIA: West Virginia law, WVC 52-1-5; WISCONSIN: Wis. Stat § 756.04; WYOMING, Wyo. Stat. § 18-3-402 (xix).
Appendix 3b, Possible Sources For Calling People For Jury Duty: (Per New York law) voter registration lists, utility subscribers, licensed motor vehicle drivers, registered owners of motor vehicles, recipients of, or applicants for, medical assistance, recipients of, or applicants for, welfare benefits, recipients of, or applicants for, unemployment benefits, volunteers; (per Texas law) citizens who hold a personal identification card or certificate; (per Connecticut law) personal income tax return records; (per Virginia law) personal property tax books, telephone directories; (per New Jersey law) filers of
homestead rebate application returns; (per Pennsylvania law) persons listed in city, municipal, and similar directories, persons who pay taxes or are assessed for taxes imposed by any political subdivisions, persons in the applicable county participating in any State, county or local program authorized by law and, to the extent such names are available, persons participating in any federal program authorized by law, persons who are on school census lists; (other possible sources) students, people accused of driving without a license, and real property owners.
Appendix 4
ELECTORAL PARTICIPATION AND NON-PARTICIPATION IN NEW JERSEY
Prepared for New Jersey Department of State Election Division
Prepared by The Eagleton Poll, The Eagleton Institute of Politics
Rutgers, The State University, April 1981
TABLE 3
MAIN REASON GIVEN FOR NOT BEING REGISTERED TO VOTE
Percent Number
Ineligible [24 of 39 reportedly due to change of address] 33% 39
. . .
To avoid jury duty 6 8
. . .
100% 118 Total
PORTION OF ARTICLE FROM THE LOS ANGELES TIMES DATED SUNDAY,
JANUARY 9, 1977 (Part I, page 7)
WHY THEY DIDN’T VOTE
* * *
When those who failed to register were asked why, they responded as follows (Some gave more than one answer):
General apathy or disinterest 58% . . . . . . . . . . . . . . 58
Don’t believe, little or no faith in political system . . . . 26
Don’t understand politics, . . . . . . . . . . . . . . . . . . 9
Don’t want to be called for jury duty . . . . . . . . . . . . 5
Illness, in hospital . . . . . . . . . . . . . . . . . . . . . 3
All other mentions . . . . . . . . . . . . . . . . . . . . . 13
* * *
Appendix 5, Supplementing Appendix 2.
Table of Contents:
Point
Preface
A. The bad State procedure is neither the ONLY nor the BEST way to achieve fair jury trials.
B. Other Points
Preface
The analysis in Appendix 2 supports the claim that the only way voter lists could be used for selection of people for jury duty would be to both use additional lists and eliminate duplications. Other factors strengthen that claim and also strengthen the claim that to better protect the rights of citizens, voter lists should not be used at all.
A. The bad State procedure is neither the only nor the best way to achieve fair jury trials.
A1. To better protect the rights of citizens, voter lists should not be used at all. Since this would reduce the number of potential jurors by the number of voters who are not on other lists, we now have the question of whether the alternative is reasonable. In many states we are comparing the alternative of many different sources, but no voter lists, with only the voter lists or the voter lists with just a few other sources. The alternative is reasonable because the Supreme Court (unfortunately) narrowly interprets the degree of community representation required in juries and because there is a heavy burden of justification on the State.
There are quite a number of decisions that uphold jury selections against the claim that they do not sufficiently represent the community. Since they reach that conclusion by narrowly interpreting the degree of community representation required in juries, said conclusion argues against the state practice of using voter lists to select jurors. Taylor v. Louisiana, 419 U.S. 522, 538 (1975) said “. . . we impose no requirement that petit juries actually chosen must mirror the community . . . .”) It follows that there are some degrees of reducing the extent to which juries do resemble the community that do not run afoul of Duncan v. Louisiana, 391 U.S. 145 (1968). Therefore, there are reasonable alternatives. Lockhart v. McCree, 476 U.S. 162 (1986), in which the Court reinstated a conviction, said (at page 174) “. . . groups defined solely in terms of shared attitudes that would . . . substantially impair members . . . from performing one of their duties . . . are not ‘distinctive groups’ for fair-cross-section purposes,” even though that duty (deciding after conviction, if the death penalty was to be imposed) was not to be performed by the jury in question. In Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276 (1945), some people were disqualified who would not have been if they had owned real property. (See qualification 2 of the applicable statute law, quoted at footnote 3 of the decision, at page 402 (page 1279 of Supreme Court Reports).) That decision said “Fairness of selection has never been held to require proportional representation of races upon a jury.” (Tollett v. Henderson, 411 U.S. 258, 262 (1973) and Patton v. State of Mississippi, 332 U.S. 463, 466, 92 L. Ed. 76, 79 (1947) modify Akins without detracting from the principle of Akins.) See also Fay v. New York, 332 U.S. 261, 284, 67 S. Ct. 1613, 1626 (1947) and Brown v. Allen, 344 U.S. 443 (1953). Carter v. Jury Commission, 396 U.S. 320, 330 (1970) notes that juries need not have proportional representation. At pages 327 and 328 of Carter we see the juries were very far from proportional. Blacks in 1967 were 32% of potential voters, compared to an estimated 65% of the population.
A2. The citizen summoned should not be given the burden of either proving the adequacy of the alternatives or even rebutting factually any offers of proof by the Commissioner. In none of the cases concerning conflict of constitutional principles has any state’s violation of fundamental personal liberties been found justified by another constitutional principle. There is a “heavy burden of justification [that] is on the State” per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274, 284, 285 (1972). That burden is impossible to meet because of the rule of Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, Akins v. Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 1279 (1945), supra, et al. If one person is erroneously but accidentally omitted from the jury roles that is not grounds for voiding court proceedings. Any accidental skewing of a panel can be compensated for by the requirement that jurors who would allow their prejudices to influence their decisions are ineligible to sit. But all voters are allowed to vote their prejudices, per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, and it has never been suggested that it is proper to illegally disenfranchise some voters as long as the number is not too great. Thus, after people are called for jury duty, the jury selection process should alleviate the effect of any racial imbalance, by disqualification for cause. Furthermore, in all states some imbalances of juries cannot be aggravated by peremptory challenges of either a prosecutor or a litigant. (See Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994), respectively. (Neither can a criminal defendant so aggravate an imbalance in any state that follows People v. Kern, 75 N.Y. 2d 638 (1990).)
A3. Cases (United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993), United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978), United States v. Ashley, 54 F.3d 311, 314 (7th Cir. 1995), and cases cited there) say that the constitutional guarantee of a fair jury trial is not violated by selecting jurors from voter lists even if they are not the most representative. That is not inconsistent with the proposition that the constitutional right to vote is violated by selecting jurors from voting lists. To believe it is inconsistent is like believing the basic fallacy that if every bear is a mammal then every mammal is a bear. See, also, analysis of United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978),supra, at Appendix 2, point C2. Since there may be judges anywhere who are challenged by logic, it may help in some circuits to point out cases that differ with these cases. [In any event, since these cases are superfluous in light of Supreme Court cases on the need-not-mirror principle, it may be best not to raise these cases if the opposition doesn’t.] Probably most, and possibly all, differ with Broadway v. Culpepper, 439 F.2d 1253 (5th Cir., 1971). United States v. Lewis, 10 F.3d 1086 (4th Cir., 1993), supra, in holding a 20% racial disparity irrelevant is contrary to United States v. McDaniels, 509 F.2d 825 (5th Cir. 1973), cert. denied, 423 U.S. 857. When racial statistics are unavailable, some of these cases can be shown to be contrary to Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, as cited with approval in a dictum in United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988) supra. He notes “. . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a fair cross section.” Official statistics list the many states and counties where less than half of the voting age citizens vote. 28 C.F.R. Appendix to Part 51.
A4. For the purpose of fair trials alone, the Texas system is the best, but both sides must concede that other systems are not illegal merely because they aren’t as good. And while the system of other sources and elimination of duplications is best, it is always debatable which state’s other sources are the most comprehensive. In any state must every one of its trials, on whatever type of issue, also have a determination, before, during, or afterwards, of demographics to determine if its mix is the best? Suppose a federal court of appeals, despite the arguments above and in Appendix 2 said that use of voter lists alone is the only way to assure a fair state trial in, say, South Carolina. It would seem then that it would also have to say that in any jury trial in Virginia in which possibly no voters list was used (since Virginia uses multiple lists but state law does not require elimination of duplications) the verdict is suspect. Similar pairings within one circuit are Arkansas and Illinois, Nevada (which doesn’t use alternate lists in every district even though its legislature authorizes it, per Howard v. State, 84 Nev. 599, 446 Pac. 2d, (1968)) and California, and Wyoming and Utah. (The same argument, with sound logic, could also be made on behalf of objecting voters in said states of Virginia, Illinois, and California and Utah.)
B. Other Points
B1. Conflicting constitutional rights need not be weighed against each other. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be necessary to promote the state interest. The statute we complain of is not necessary because the end of a fair trial can be achieved in an alternative way, by the Texas or Oklahoma systems. However, if they had to be weighed, voting rights must prevail because of its great importance and because juries need not mirror the community. See Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, and other cases discussed at Point A1, supra. Therefore, if underinclusiveness of alternative lists without voter lists had been proven it would be irrelevant.
Special importance attaches to the electoral franchise. In Reynolds v. Sims, 377 U.S. 533 (1964), supra, the Court said “Especially since the right to exercise the franchise in a free and UNIMPAIRED manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” (Emphasis added.) In Baker v. Carr, 369 U.S. 186 (1962), another malapportionment case, Justice Clark noted that “the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government.” In Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481 (1964), the Court said “other rights, even the most basic, are illusory if the right to vote is undermined.” Other cases that note the special importance of the electoral franchise are Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (whose holding is restricted by Ball v. James, 451 U.S 355 (1981) in a way irrelevant to our general question), Hill v. Stone, 421 U.S. 289 (1975), Dunn v. Blumstein, 405 U.S. 330 (1972), supra, (at page 336) and cases cited there, Kusper v. Pontikes, 414 U.S. 51 (1973), and Yick Wo v. Hopkins, 118 U.S. 356 (1886).
B2. Here are Miscellaneous Points re Bershatsky v. Levin.
B2a. Bershatsky v. Levin, 99 F.3d 555 (1996), cert. den., 521 U.S. 1105 (6/23/97), conflicts directly with the test in Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972), supra, by finding relevant the overinclusiveness of alternative methods of selecting people. While alternative lists include significant numbers of non-citizens, this is relevant only to the convenience of the Commissioner and thus concern for it is contrary to the Dunn test. They can be readily eliminated in the jury selection process. “... Constitutional deprivations may not be justified by some remote administrative benefit to the State,” per Harman v. Forssenius, 380 U.S. 528 (1965.) See also cases cited therein for that principle. In fact, the questionnaire sent to Ms. Bershatsky by the Commissioner asks if she is a citizen of the United States, according to her allegations. (The voting list also is overinclusive, since New York’s Judiciary Law, § 510 requires a proficiency in the English language for jurors, which is not a requirement for voters.)
B2b. The Bershatsky court, in support of its holding, cited Taylor v. Louisiana, 419 U.S. 522, 538 (1975) and Lockhart v. McCree, 476 U.S. 162 (1986), supra. As noted at point A1, supra, these cases argue for Ms. Bershatsky’s position. Neither of these cases upholds the right of a state to burden persons with the obligation of jury duty as a result of their voting. Neither do any of the other cases cited at point A1, supra.
Similarly, the holdings of lower court cases like United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), supra, that rejected arguments that juries were improper because of the use of voter lists, which were significantly racially skewed, (unfortunate as they may be for fairness of jury trials) support my contention, because the more lax the requirement of representativeness of juries, the greater the case for there being a reasonable alternative. Yet both federal courts cited Cecil and similar cases against the plaintiff. (The courts in Bershatsky apparently thought Cecil was particularly relevant to the Bershatsky situation because it involved both juries and voting and the system was upheld. That would be the basic fallacy mentioned at point A3, supra.)
B2c. By narrowly interpreting 42 U.S.C. § 1973i, subsection (b), the Second Circuit differs from two cases outside their circuit. See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979), supra, and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), supra, in different contexts.
B2d. The Second Circuit opinion starts off its opinion in Bershatsky by quoting, at page 556, Felix Frankfurter, in Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946), supra, but leaving out six words, giving the quotation the exact opposite meaning of what Frankfurter said. The omitted words were “it is easy to say that”, which in that case had almost the same effect as leaving out “not.” The Second Circuit, quoting the lower court, with neither saying “it is easy to say that”, said:
“ ‘jury duty should be regarded as a patriotic service[;] . . . all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship,’ ” id . at 39 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) (Frankfurter, J., dissenting) (internal quotation marks omitted)). We affirm substantially for the reasons stated in the district court’s opinion.
In Thiel, Frankfurter (dissenting) said:
With respect to the item last-mentioned, IT IS EASY TO SAY THAT jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. (Emphasis added to show the words omitted by the Court of Appeals.)
He continues:
With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one's family is the first consideration of most men.
His opinion goes on to say it is proper to exempt day laborers from jury duty so that they should not have to make a great sacrifice. (In Thiel, the prospective voters had not been selected from voters’ lists, so the holding is not relevant, here.)
B2e. The plaintiff-appellant resided in and voted in Kings County, New York, and sued the Defendant-Appellee in his capacity of commissioner of jurors for the county because he had called her for jury duty. Kings County is one of the counties in which less than half of the voting age citizens vote, per 28 C.F.R. Appendix to Part 51. The appeal to the court of appeals contains an allegation stating “… Kings County is a county in which less than half of the voting age citizens vote. The likelihood of having evidentiary support of this fact is based on 28 CFR Appendix to Part 51.”
B2f. Before May 31, 1996, the date the brief for this case was timely filed with the Second Circuit, that court cited the opinion of the Eastern District in this case, giving the appearance of prejudging this case. In a per curiam decision, dated March 8, 1996, the Second Circuit, in Schanbarger v. Macy, 77 F.3d 1424 (2d Cir. 1996), cited the opinion of the Eastern District in this case. The result of this was especially unfortunate since the District Court failed to allude to many arguments made before it in Ms. Bershatsky’s brief.
B3. Since the laws creating the Pennsylvania and South Carolina systems are not separable, (see Thiel v. Southern Pacific Co., 328 U.S. 217, (1946)) if any voter is called for jury duty under those statutes and, before serving, demands not to serve, on the grounds of voting rights, that call to jury duty must be cancelled unless the state shows that that voter’s name was selected from a source other than voters’ lists. (On separability, generally, see Williams v. Standard Oil Co., 278 U.S. 235 (1929).)
B3. Eliminating duplications is not difficult. Several states do it. But even that small task can be passed on to the individual. The state need only assign a different number to each source for jury duty and, when informing individuals of selection for jury duty, inform them of the list and which list they were selected from and that if they are on a lower numbered list they can have the selection voided.
The statutes we complain of are neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Oklahoma system, or even the Texas system. (Several US Supreme Court cases call this a “reasonable alternatives test.”)
There is no law that says every citizen, unless specifically excepted, must serve jury duty. Rather, the laws says that citizens (unless excepted) must serve jury duty when called. Names are selected from lists that, except in Massachusetts, do not include all citizens. Just as everyone is allowed to arrange their affairs to pay the least amount of taxes, all persons are allowed to arrange their affairs to reduce or eliminate their likelihood of being called for jury duty. Statutes in forty-three states and the District of Columbia make not voting such an option for some or all citizens. (See Appendix 3.) These statutes are bad for both jury trials and voting rights bcause of the economic inequity.
To: Public service lawyers and voter registration advocates
From: Donald Marcus, Harvard Law School, LL.B. 1958
(See Appendix 1 for points of contact.)
A skilled litigator could eliminate a major deterrent to poor people’s voting. Certain surveys say a significant number of people exercised their option not to vote in order to reduce the likelihood of jury duty. (“Electoral Participation and Non-participation in New Jersey”, 1981, Eagleton Institute of Politics, Rutgers University, New Brunswick, New Jersey, 08901 and the Los Angeles Times January 9, 1977, Part One, Page 1, Column 3. See appendices 2 and 4.) Some citizens might not admit to that for fear that their admission might defeat their purpose. (People in voter registration drives hear some people candidly volunteer their reasons for not voting, however.)
Many states use voter lists to choose people to serve jury duty. Arkansas, Mississippi, South Carolina, and Wyoming use it as the only source. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. However, since some people can better afford to take time off for jury duty than can poor working people, there is an equal protection issue. The U.S. Supreme Court, in Harper v. Virginia Board of Elections, which found the poll tax to be illegal, said "We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax." (See Appendix 2 for full citations and further analysis.) (Finding the jury selection law illegal also aids wealthy voters, since such laws are inseparable no matter how written. See Thiel v. Southern Pacific Co., a case involving selection of juries from
a city directory.) (See Appendix 2 for a full memo and an index at its end and Appendix 3 for statutes on calling people for jury duty.)
If penalizing voters were not part of the system to give people trial by jury, the voting penalty would clearly be illegal. Since it is, we must look at the law of conflicting constitutional principles. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be “. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) The statutes we complain of are neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Pennsylvania, the Texas, and the Oklahoma systems. (Several cases call this a “reasonable alternatives test.”) (See Appendix 3.) Pennsylvania calls prospective jurors from voter lists and other lists, which reduces the probability that a person will be called due to voting. While better than the South Carolina system it is inferior in all ways to the Texas system. Texas also calls people from various lists, but it also eliminates duplications to create a master list. In Pennsylvania, the more lists you are on, the greater your likelihood of being called. In Texas, if you are on one of the other lists (because you are a licensed driver or for some other reason) you do not increase that likelihood by voting. Elimination of duplications eliminates the voting penalty for some voters, reduces it for others, and provides a broader base for selecting jurors. In Oklahoma, Florida, Tennessee, and Michigan, voting lists aren't used to call people for jury duty.
The most important part of our Constitution is the right to vote. History teaches that. We left elementary school realizing this. In “The House I Live In,” democracy is the first of the few Constitutional provisions mentioned. The Supreme Court said “other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders. To say that moral obligations (both to vote and to serve more than one’s fair share of jury duty) overcome the injustice “is pure cant”, in the words of L. Hand, dissenting in Comm. v. Newman, in a comparable situation. He said “... There is nothing sinister in so arranging one’s affairs so as to keep taxes as low as possible ... [t]o demand more in the name of morals is pure cant”
The state practice of choosing people for jury selection from voters in federal elections violates the principle of federal supremacy. See Oregon v. Mitchell, and Southern Pacific Co. v. Arizona. (It might also be considered to violate the Poll tax amendment. See, also, “The American College Dictionary” concerning the definition of “tax.” See, also, Gibbons v. Ogden concerning constitutional construction.)
If the issue can be raised in several jurisdictions, prime targets are South Carolina and Mississippi, which use voters’ lists exclusively even though less than half of eligible voters vote, according to 28 C.F.R., Appendix to Part 51.
I have an extensive file concerning refinement relevant to many jurisdictions and responses to counter-arguments that may be made.
In any event, your comments on this proposal would be appreciated. Presently, you may write me at JDMAR58@Juno.com.
Sincerely,
Donald Marcus
Harvard Law School, LL.B. 1958
Appendix 1, Points of Contact
For Donald Marcus, Harvard Law School, LL.B. 1958
Address (fall, winter and spring): 1936 East 24 Street, Brooklyn, New York 11229-2420
Address (summer): 80 Westchester Avenue, Pittsfield, MA 01201-1652
Phone (fall, winter and spring; day, evening, weekdays, weekend): (718) 375 5586
Phone (summer; day, evening, week days, weekend): (413) 443 9325
E-mail: JDMAR58@Juno.com
ON REDUCING UNEMPLOYMENT, go to www.keynesignored.blogspot.com or send e-mail request with your e-mail address.
Appendix 2, a Memorandum on Voting Rights
Table of Contents: (An index is at the end of this appendix)
Point
Preface
A. A Suggested Procedure
B. The State Procedure is Prima Facie Illegal.
C. Reasonable Alternatives
D. “Moral Obligation”
E . Other Points
PREFACE
All citizens have an obligation to serve jury duty, no matter how burdensome this is, unless properly exempted or excused. However, citizens have no obligation to shoulder more than their fair share of the burden for the reason that they vote. Great as the obligation is, it is no more laudatory to accept a discriminatory amount of it because you vote than it would be to surrender your seat on a bus to an infirm person if your selection for that sacrifice were based on your race. It is fallacious to say that we should not sympathize with those who would disregard their right to vote to avoid serving more than one’s share of jury duty because there are moral obligations, both to vote and to serve jury duty. (This matter is discussed below.)
Many states use voter lists to choose people to serve jury duty. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. It coerces some voters, burdens some voters more than other voters, and interferes with federal elections. Burdening voters is bad and if it were not part of the system that guarantees people trial by jury in state courts (Duncan v. Louisiana, 391 U.S. 145 (1968)), the voter burden would be obviously illegal. Since it is, we must look at the law of conflicting constitutional principles. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be “. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) The statute we complain of is neither necessary nor compelling because the end of a fair trial can be achieved in an alternative way, by the Texas or Oklahoma systems. (Several cases call this a “reasonable alternatives test.”) Texas calls people from various lists and it eliminates duplications to create a master list. In Texas, if you are on one of the other lists, because you are a licensed driver or for some other reason, you do not increase the likelihood of being called for jury duty by voting. That system eliminates the burden for some voters, reduces it for others, and provides a broader base for selecting jurors. It is better in all respects than non-elimination of duplications, as in Pennsylvania, or voter lists being the only source, as in South Carolina.
A. A Suggested Procedure
A complaint could be filed in the United States District Court on behalf of a voter who has been, or may be, called for jury duty by an appropriate state or local agency [henceforth “State”] demanding a declaratory judgment that the citizen’s selection is void. The rational for the demand is that the jury pool is fairer, the more sources, including voter lists, are used and as long as duplications are eliminated the only voters burdened by jury duty are those who are on none of the other sources. In states where other lists are possible for selection, the complaint should be conditioned, saying the citizen’s selection is void unless the State proves to the court that selection for jury duty was from a source other than voter registration rolls.
B. The State Procedure is Prima Facie Illegal
B. Three separate points of law, supported by decisions of the Supreme Court, independently indicate that, facially, the State practice, which discourages people from voting by selecting people for jury duty if they vote, is illegal. If it does not discourage people from voting it penalizes them (in the sense penalize is used in Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972)) for voting and is therefore void.
B1. States may not interfere in federal elections without specific congressional authorization. Article I, Section 4 of the Constitution empowers Congress to impose limits on the states as to setting voter standards for federal elections, according to Oregon v. Mitchell, 400 U.S. 112 (1970). Nothing in the Constitution authorizes state officials to interfere with the voting of those who qualify. In Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (concerning interstate commerce) the Court said the mere existence of the congressional power in a field denies the states the power to interfere in that field without specific congressional authorization, saying at page 767 “This . . . is predicated upon the implication of the commerce clause itself . . . or . . . the presumed intention of Congress, where Congress has not spoken. . . .” (Congress has legislated on the subject, to restrict, not authorize, states’ power to impede citizens’ voting rights, but in a setting that is primarily one of equal protection, as is noted in the next section of this text.) Similarly, the courts should rule that the jury duty practice is illegal because it substantially impedes voting in federal elections. Voting in federal elections may keep citizens on the voters’ registration lists whether or not they vote in state and local elections. (See New York’s Election Law § 5-400.) Typical laws on jury duty selection do not distinguish between those who vote in federal elections and those who vote in state elections. See Appendix 3a. I contend, also, that many more people serve state jury duty than federal while more people go to the polls because of federal elections than for other elections. Under the rule of Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, a state law is unconstitutional if it penalizes (the word is used broadly in that decision) someone for exercising a right even if it does not deter exercising it.
B2. The constitution’s equal protection clause forbids discrimination against the poor in voting. In Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Court held that payment of a $1.50 tax could not be a precondition for voting in a state election. The Court said: “We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” At page 668 it said “[a citizen’s right to vote is] the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.” Blue collar workers and poorer workers are more likely to suffer economically from jury duty and would therefore be more likely not to vote. Therefore, subjecting voters to the possibility of loss of their regular wages creates no less an invidious distinction based on wealth than does a $1.50 poll tax. The principle of protection for the poor was expanded in M.L.B. v. S.L.J., 117 S. Ct. 555 (1996). Furthermore, the Court in Reynolds v. Sims, 377 U.S. 533 (1964), stated that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, ECONOMIC STATUS, or place of residence within a State.” (Emphasis added.) There are absolute rights and situational rights. There are no absolute rights not to serve jury duty, even if it is a great hardship. Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946). But you may not have that hardship imposed on you more than on others, either because you criticize the political or judicial system or because you vote. See M.L.B. v. S.L.J., 117 S. Ct. 555 (1996), supra, as to a state’s obligation to have a system of appeals.
To help enforce the anti-discrimination parts of the Civil War Amendments Congress enacted 42 U.S.C. § 1973i, subsection (b). It provides “No person, whether acting under color of law or otherwise, shall intimidate, threaten or coerce . . . any person for voting . . . .” (§ 1973i follows § 1973 and is not part of it.) This makes it illegal for a state official to use voter registration rolls as a source of names for jury duty, (with the possible exception of it using the Texas statutory practice) for if the voter called by the State relies on income from a daytime job and that income stops, this economic hardship constitutes “coercion”. In addition, some workers have no job security, so they may fear they will find their job given permanently to their replacement when they finish jury duty. (Any state law that attempts to prevent such discharge is likely to be ineffective if it does not require employers who violate the law to pay attorneys’ fees of successful plaintiffs.) This situation certainly discourages some people from voting. It follows from this that federal statutory law makes it illegal for a State official to use voter registration rolls as a source of names for jury duty (with the possible exception of it using the Texas statutory practice). See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979) and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), in different contexts, for cases that broadly interpret the statute.
B3. Does the twenty-fourth amendment to the United States Constitution forbid the State practice? I maintain it does. (This is a gut reaction based on the interpretation of “tax.” I can see my contention being thrown out, out of hand. However, it is another string to the bow.) It bars the abridgment of any citizen’s right to vote in federal elections by any state by reason of failure to pay any poll tax or other tax. “The American College Dictionary”, published by Random House in 1956, gives as the first two definitions of “tax” “a payment of money or performance of services for the use of the government or the benefit of the public” and “a burdensome charge, obligation, duty, or demand.” “The Handy American Dictionary”, published by Random House in 1999, gives as the second and fourth definitions of “tax” “burdensome duty” and “burden.” In constitutional
construction we must not give words their narrowest possible construction. Gibbons v. Ogden, 9 Wheat. 1 (U.S. S. Ct. 1824). Therefore, the State practice is barred by this Amendment. The Supreme Court said “Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.” Harman v. Forssenius, 380 U.S. 528, 542 (1965) and cases cited therein for that principle. See also Gray v. Johnson, 234 Fed. Supp. 743 (S.D. Miss. 1964).
C. Reasonable Alternatives
C. The State procedure is illegal since reasonable alternatives exist. The bad State procedure is not the only way to achieve fair jury trials. When two constitutional principles oppose each other, the principle of Dunn v. Blumstein must apply.
C1. There is a long line of cases in which a government tries to justify stifling a fundamental right with a law with an otherwise legitimate purpose. Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) said such laws are unconstitutional unless the state can demonstrate they are“. . . NECESSARY to promote a COMPELLING state interest.” (Emphasis added in Dunn while quoting a prior case.) Dunn v. Blumstein also said (at page 343, pages 284 and 285 of L. Ed. 2d) “… a heavy burden of justification is on the State, [and the] statute will be closely scrutinized in light of its asserted purposes.” Even when health is involved the principle of possible alternatives applies. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). See, also, Schneider v. State, 308 U.S. 147 (1939) and other cases cited in these three cases.
The State practice fails to meet the Dunn v. Blumstein test. If voter lists were retained as a source, many sources were added, and duplications were eliminated from jury sources, venire panels would be more inclusive yet fewer citizens would be burdened on account of their voting. The jury pool is fairer, the more sources, including voter lists, are used. (Each list has its own biases, which are balanced by the other lists.) As long as duplications are eliminated the only voters penalized are those who are on none of the other sources. (Of course, under the present system, any alternatives used in addition to voter registration lists for selection of prospective jurors, without elimination of duplicates, do not remove completely the fact that voter registration can lead to jury duty because, whether or not a person is on another list, being registered to vote adds to the probability of being chosen for jury duty.)
When a state’s law does not provide for elimination of duplications it is unconstitutional on its face. Laws exempting people who served recently (such as in the previous two years) do not change this. Many will not be affected by such laws. Some will never be called. As long as duplications are not eliminated your probability of being called is still greater the more lists you are on. See Appendix 3b for possible sources. Every source added would improve the mix and not detract from representativeness of the mix. Welfare recipients and state income tax payers are each included once. As long as duplications are effectively eliminated any other list added would increase the total number of people included, thus diminishing fear of being underrepresentative.
C2. The recognition of the illegality of the state’s practice would not affect prior jury trials, since the judgment would not affect the composition of prior juries. The present issue involves the rights of citizens called illegally to jury service, not parties in trials. The citizens that are involved are those who have been called but not yet served and those who may be called in the future. Furthermore, the Court can adopt the rule announced in United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978), when the defendant argued that he could stand in the shoes of the possible jurors. The court rejected that argument, in part because the right of these people to serve on a jury was not as significant as their right to vote. (The test for protection of voters is more rigorous than the test for selecting venire people, at least with respect to practices that were not intended to be discriminatory. 42 U.S.C. § 1973 prior to its 1982 amendment simply forbade states and localities to deny or abridge voting rights “on account of race or color.” Subsequent legislation, Voting Rights Act Amendment of 1982, broadened the law to forbid procedures that result in diminished opportunities for members of any race to elect representatives regardless of intent. (In any state or county singled out in 28 C.F.R. Appendix to Part 51 (see part E1, paragraph 3, below) we can add: Even without the 1982 amendment, by federal law intent is irrelevant to some governmental action regarding voting in the state, [or county] because of the degree of non-voting and non-registration by voting age citizens there. 28 C.F.R. Appendix to Part 51; Rome v. United States, 446 U.S. 156 (1980).) Another reason is that any claim to overthrow a prior verdict would be based on an assumption that an improper jury pool made the jury less representative than it should be. Aside from the obvious (that such a claim must have been made and rejected before the trial and have an appeal extant) juries need not mirror the community, according to Taylor v. Louisiana, 419 U.S. 522, 538 (1975) and other decisions. See Appendix 5, Point A1.
D. “Moral Obligation”
D1. It is fallacious to say that there are moral obligations, both to vote and to serve more than one’s fair share of jury duty, so we should not sympathize with those who would disregard one to avoid the other. It would be wonderful if there were lists of all people eligible to serve jury duty, so that such lists could be used. Where no such list exists the courts must select people from a list or lists that exist. Such lists must not burden people because they vote. Just as “... There is nothing sinister in so arranging one’s affairs so as to keep taxes as low as possible ... [T]o demand more in the name of morals is pure cant” (L. Hand, dissenting, in a comparable situation.) Comm. v. Newman, 159 F.2d 848 (CA-2, 1947), quoted favorably in Atl. Coast Line v. Phillips, 332 U.S. 168, 173 (1947) and several other cases), one may arrange one’s affairs to minimize the chance of being called to jury duty, to the extent that one wants. But no state may make surrendering one right a condition of exercising a fundamental right. Dunn v. Blumstein, 405 U.S. 330, 341, 31 L. Ed. 2d 274, (1972), supra, Harman v. Forssenius, 380 U.S. 528, 542 (1965.), supra. However, even if by fiat we create a moral obligation to serve jury duty, with legal consequences, and even if the importance of not burdening the franchise and of not discriminating against the poor were both ignored, the relevant laws of South Carolina and other states by not adopting the Texas system instead, and thus treating voters as they do, can be considered to be “a patently arbitrary classification, utterly lacking in rational justification.” (Flemming v. Nestor 363 U.S. 603, 611, 4 L ed 1435, 1445 (1960), dictum) and therefore unconstitutional.
Don’t exempt the state practice from judicial oversight for the reason that jury duty is an honor. To the extent that legislatures or members of the executive branch can make abusive rules that are not subject to judicial review we have a police state. Obligations must be apportioned fairly. Calling them honors or moral obligations does not mean they are not judicable, just as calling a dog’s tail a leg does not give the dog five legs. “The very essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws, whenever he receives any injury.” Marbury v. Madison, 1 Cranch 137, 163, 2L.Ed. 60, 69, (1803), quoted in Baker v. Carr, 369 US 186, 208, 7 L.Ed. 663, 680, (1962.)
E. Other Points
E1. There is evidence that the State practice not only illegally burdens voting but also makes juries less representative than the ideal. A significant number of people exercise their option not to vote in order to reduce the likelihood of jury duty, according to polls conducted by Eagleton Poll, “Electoral Participation and Non-participation in New Jersey”, 1981, Eagleton Institute of Politics, Rutgers University, New Brunswick, New Jersey, 08901, and the Los Angeles Times January 9, 1977, Part One, Page 1, Column 3. See Appendix 4. They are cognizable by courts, per Muller v. Oregon, 208 U.S. 412, 421 (1908). Such statistics aid not only the substantive case but also the case for having defendants pay large attorneys’ fees to plaintiffs’ lawyers under the Civil Rights Attorneys Fees Award Act of 1976, 42 USC 1988.
It is extremely unlikely that any election will be decided by a single vote, which may be another reason that individuals might fail to exercise the franchise that is so important to the community.
E2. [In any state or county singled out in 28 C.F.R. Appendix to Part 51 we can add the following:
Voter lists are not representative in any state or county, where less than half of the voting age citizens vote. Official statistics list the many states and counties where less than half of the voting age citizens vote. 28 C.F.R. Appendix to Part 51. Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, as reported in United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205. (1988) supra, notes “. . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a fair cross section.”]
E3. Granted, there is a congressional preference for voter registration lists as a source for prospective federal jurors shown in 28 U.S.C. § 1863(b)(2) (1992). However, federal jury selection legislation is not relevant to the instant case, per a holding of the Supreme Court. State law is not impliedly approved by parallel federal law, per South-Central Timber Dev. v. Wunnicke, 467 U.S. 82.
Nor is it so that the state legislation cannot be found contrary to the Constitution without finding the federal parallel procedures unconstitutional. There are several grounds for distinguishing the two. One such ground lay in an argument that does not apply to federal legislation, namely the one at point B1 concerning Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945), supra. Also, we could probably sustain allegations that more people go to the polls because of federal elections than for other elections and that in the state more people serve jury duty in state and local courts than in federal courts. This would indicate that the state tail is waving the national dog.
Federal law requires states to offer jury trials to criminal defendants. The requirement does not stem from Amendment VI, since the Bill of Rights does not apply to the states. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 8 L. Ed. 672 (1833). It is Amendment XIV that imposes impose that requirement. Duncan v. Louisiana, 391 U.S. 145 (1968), supra. That imposition is less strict than Amendment VI’s requirements for grand and petit juries. See the opinion of Justice Powell in Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184 (1972), which was necessary to the result. (Justice Powell’s opinion for that case appears at Johnson v. Louisiana, 406 U.S. 356, 366, 32 L. Ed. 2d. 152, 162 (1972).)
Also, Reynolds v. Sims, 377 U.S. 533 (1964), supra, relies on Baker v. Carr, 369 U.S. 186 (1962), supra, which relies on the Supremacy Clause of Article VI. There is another possible distinction. While I can find no case, either way, it would seem that states’ equal protection requirements are greater than that of the federal government, because the former is specified in the Fourteenth Amendment while the latter is merely implied by the Fifth Amendment.
E4. Bershatsky v. Levin, 99 F.3d 555 (1996), cert. den., 521 U.S. 1105 (6/23/97), is on point, but should not be followed, for several reasons. Most significantly, it does not discuss Dunn v. Blumstein, 364 U.S. 479, (1960), supra, discussed in Topic C, above, or any case that gives the reasonable alternative doctrine. Not only doesn’t Bershatsky discuss Dunn, it gives doctrines directly contrary to the reasonable alternative test. It upheld the governmental practice because it is “the most effective means of pursuing the compelling interest of achieving a reasonably representative venire.” The test noted in Dunn v. Blumstein, 364 U.S. 479, 488 (1960), supra, is whether it is “. . . necessary to promote a compelling state interest.” It would ignore reality to assert that the anti-littering ordinance stricken in Schneider v. State, 308 U.S. 147 (1939), supra, was not “the most effective means” of accomplishing its purpose, but the other possible means were better to resolve the conflict between opposing constitutional principles. Likewise, the inspection procedure demanded by the City of Madison in Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951), supra, when considered only from the viewpoint of public health, had an advantage of efficiency over the alternative method noted by the Supreme Court. Nevertheless, it was not acceptable when its effect on interstate commerce was also considered. The most effective means of achieving one goal may be more effective than other means by only a small margin. To make that margin determinative is to ignore all other considerations.
Bershatsky made a blatant mistake that is unconscionable if deliberate. See Appendix 5, B2d.
E5. If a state uses voters lists as a source of choosing people for jury duty and does not both use additional lists and eliminate duplications it is acting illegally. The analysis above, which gives the major arguments to support that claim, should be sufficient. Other factors strengthen that claim and also strengthen the claim that, to better protect the rights of citizens, voter lists should not be used at all. (They are not used in Oklahoma and other states. See Exhibit 3 for citations.) These factors are given in Appendix 5. While they are apparently superfluous, at least in jurisdictions without both use of additional lists and elimination duplications, for the sake of completeness I include them. (I lack the knowledge of judges’ astuteness to know when the apparently superfluous is actually superfluous.)
Index of Selected Cases
Case/ Section
Atl. Coast Line v. Phillips, 332 U.S. 168, 173/ D1
Bershatsky v. Levin, 99 F.3d 555, 1996), cert. den., 521 U.S. 1105
(6/23/97) / E4
Comm. v. Newman, 159 F.2d 848 (CA-2, 1947, L. Hand, dissenting)/ D1
Dunn v. Blumstein, 405 U.S. 330, 341, 31 L. Ed. 2d 274, (1972.)/ B1
Gibbons v. Ogden, 9 Wheat. 1 (U.S. S. Ct. 1824)/ B3
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)/ B2
Oregon v. Mitchell, 400 U.S. 112 (1970) /B1
Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) /B1
Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) /B2
Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481 (1964) /Appendix 5, B1
Appendices 3a and 3b
Appendix 3a, Selected Citations On Calling People For Jury Duty:
UNITED STATES, 28 U.S.C. § 1863 (b)(2); ARKANSAS: ACA SEC. 16-32-103;
CALIFORNIA, Code of Civ. Proc. § 197; COLORADO: 13-71-107; CONNECTICUT, Conn. Gen. Stat. Ann. §§ 51- 222a (b) & (c); DELAWARE: 10 Del C. 4507; GEORGIA: 15-12-40; FLORIDA, Fla. Stat. Ann. § 40.01; ILLINOIS, Courts, ch. 705, 305/1a & 310/2a; INDIANA, Ind. Code 33-4-5.5-14; IOWA, Iowa Code Ann. § 609.1; KENTUCKY: KRS sec. 90A.040; LOUISIANA, La. C.Cr.P. Art. 408.1; MAINE, Rev. Stat. Annot., Title 14, §§ 1252-A; MARYLAND: Md COURTS AND JUDICIAL PROCEDINGS Code Ann sec, 8-202; MASSACHUSETTS, Mass. Gen.Laws, chapter 234, § 4 & chapter 234A, § 10; MICHIGAN, Mich. Comp. Laws Ann. § 600.1304; MINNESOTA, Minn. Stat. Ann. 593.36; MISSISSIPPI, Miss. Code Ann. § 13-5-8; MINNESOTA, Minn. Stat. Ann. 593.36; NEVADA, Nev. Rev. Stat. 6.045; NEW HAMPSHIRE: RSA, Title 51, 500-A:1 IV and A:2; NEW JERSEY, Title 2B: Court Organization and Civil Code, 2B: 20-2; NORTH CAROLINA, Laws of North Carolina § 9-2; NORTH DAKOTA: laws of North Dakota, 27-09.1-05; OHIO, Ohio Rev. Code Ann. § 2313.06; OKLAHOMA, Okla. Stat. Anno., Jurors, §18 B. 1; PENNSYLVANIA, Judiciary & Judicial Procedure, § 4521 (a); RHODE ISLAND, R.I. Gen. Laws §9-9-1; SOUTH CAROLINA, S.C. Code § 14-7-14; TENNESSEE: Tenn. Code Ann. § 22-2-302; TEXAS, Tex. Codes Ann.-Gov. 62.001 (1) & (9); UTAH Code ann. § 78-46-4(4); VIRGINIA, Va. Code § 8.01-345; WASHINGTON, RCW § 2.36.054; WEST VIRGINIA: West Virginia law, WVC 52-1-5; WISCONSIN: Wis. Stat § 756.04; WYOMING, Wyo. Stat. § 18-3-402 (xix).
Appendix 3b, Possible Sources For Calling People For Jury Duty: (Per New York law) voter registration lists, utility subscribers, licensed motor vehicle drivers, registered owners of motor vehicles, recipients of, or applicants for, medical assistance, recipients of, or applicants for, welfare benefits, recipients of, or applicants for, unemployment benefits, volunteers; (per Texas law) citizens who hold a personal identification card or certificate; (per Connecticut law) personal income tax return records; (per Virginia law) personal property tax books, telephone directories; (per New Jersey law) filers of
homestead rebate application returns; (per Pennsylvania law) persons listed in city, municipal, and similar directories, persons who pay taxes or are assessed for taxes imposed by any political subdivisions, persons in the applicable county participating in any State, county or local program authorized by law and, to the extent such names are available, persons participating in any federal program authorized by law, persons who are on school census lists; (other possible sources) students, people accused of driving without a license, and real property owners.
Appendix 4
ELECTORAL PARTICIPATION AND NON-PARTICIPATION IN NEW JERSEY
Prepared for New Jersey Department of State Election Division
Prepared by The Eagleton Poll, The Eagleton Institute of Politics
Rutgers, The State University, April 1981
TABLE 3
MAIN REASON GIVEN FOR NOT BEING REGISTERED TO VOTE
Percent Number
Ineligible [24 of 39 reportedly due to change of address] 33% 39
. . .
To avoid jury duty 6 8
. . .
100% 118 Total
PORTION OF ARTICLE FROM THE LOS ANGELES TIMES DATED SUNDAY,
JANUARY 9, 1977 (Part I, page 7)
WHY THEY DIDN’T VOTE
* * *
When those who failed to register were asked why, they responded as follows (Some gave more than one answer):
General apathy or disinterest 58% . . . . . . . . . . . . . . 58
Don’t believe, little or no faith in political system . . . . 26
Don’t understand politics, . . . . . . . . . . . . . . . . . . 9
Don’t want to be called for jury duty . . . . . . . . . . . . 5
Illness, in hospital . . . . . . . . . . . . . . . . . . . . . 3
All other mentions . . . . . . . . . . . . . . . . . . . . . 13
* * *
Appendix 5, Supplementing Appendix 2.
Table of Contents:
Point
Preface
A. The bad State procedure is neither the ONLY nor the BEST way to achieve fair jury trials.
B. Other Points
Preface
The analysis in Appendix 2 supports the claim that the only way voter lists could be used for selection of people for jury duty would be to both use additional lists and eliminate duplications. Other factors strengthen that claim and also strengthen the claim that to better protect the rights of citizens, voter lists should not be used at all.
A. The bad State procedure is neither the only nor the best way to achieve fair jury trials.
A1. To better protect the rights of citizens, voter lists should not be used at all. Since this would reduce the number of potential jurors by the number of voters who are not on other lists, we now have the question of whether the alternative is reasonable. In many states we are comparing the alternative of many different sources, but no voter lists, with only the voter lists or the voter lists with just a few other sources. The alternative is reasonable because the Supreme Court (unfortunately) narrowly interprets the degree of community representation required in juries and because there is a heavy burden of justification on the State.
There are quite a number of decisions that uphold jury selections against the claim that they do not sufficiently represent the community. Since they reach that conclusion by narrowly interpreting the degree of community representation required in juries, said conclusion argues against the state practice of using voter lists to select jurors. Taylor v. Louisiana, 419 U.S. 522, 538 (1975) said “. . . we impose no requirement that petit juries actually chosen must mirror the community . . . .”) It follows that there are some degrees of reducing the extent to which juries do resemble the community that do not run afoul of Duncan v. Louisiana, 391 U.S. 145 (1968). Therefore, there are reasonable alternatives. Lockhart v. McCree, 476 U.S. 162 (1986), in which the Court reinstated a conviction, said (at page 174) “. . . groups defined solely in terms of shared attitudes that would . . . substantially impair members . . . from performing one of their duties . . . are not ‘distinctive groups’ for fair-cross-section purposes,” even though that duty (deciding after conviction, if the death penalty was to be imposed) was not to be performed by the jury in question. In Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276 (1945), some people were disqualified who would not have been if they had owned real property. (See qualification 2 of the applicable statute law, quoted at footnote 3 of the decision, at page 402 (page 1279 of Supreme Court Reports).) That decision said “Fairness of selection has never been held to require proportional representation of races upon a jury.” (Tollett v. Henderson, 411 U.S. 258, 262 (1973) and Patton v. State of Mississippi, 332 U.S. 463, 466, 92 L. Ed. 76, 79 (1947) modify Akins without detracting from the principle of Akins.) See also Fay v. New York, 332 U.S. 261, 284, 67 S. Ct. 1613, 1626 (1947) and Brown v. Allen, 344 U.S. 443 (1953). Carter v. Jury Commission, 396 U.S. 320, 330 (1970) notes that juries need not have proportional representation. At pages 327 and 328 of Carter we see the juries were very far from proportional. Blacks in 1967 were 32% of potential voters, compared to an estimated 65% of the population.
A2. The citizen summoned should not be given the burden of either proving the adequacy of the alternatives or even rebutting factually any offers of proof by the Commissioner. In none of the cases concerning conflict of constitutional principles has any state’s violation of fundamental personal liberties been found justified by another constitutional principle. There is a “heavy burden of justification [that] is on the State” per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274, 284, 285 (1972). That burden is impossible to meet because of the rule of Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, Akins v. Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 1279 (1945), supra, et al. If one person is erroneously but accidentally omitted from the jury roles that is not grounds for voiding court proceedings. Any accidental skewing of a panel can be compensated for by the requirement that jurors who would allow their prejudices to influence their decisions are ineligible to sit. But all voters are allowed to vote their prejudices, per Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, and it has never been suggested that it is proper to illegally disenfranchise some voters as long as the number is not too great. Thus, after people are called for jury duty, the jury selection process should alleviate the effect of any racial imbalance, by disqualification for cause. Furthermore, in all states some imbalances of juries cannot be aggravated by peremptory challenges of either a prosecutor or a litigant. (See Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994), respectively. (Neither can a criminal defendant so aggravate an imbalance in any state that follows People v. Kern, 75 N.Y. 2d 638 (1990).)
A3. Cases (United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993), United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978), United States v. Ashley, 54 F.3d 311, 314 (7th Cir. 1995), and cases cited there) say that the constitutional guarantee of a fair jury trial is not violated by selecting jurors from voter lists even if they are not the most representative. That is not inconsistent with the proposition that the constitutional right to vote is violated by selecting jurors from voting lists. To believe it is inconsistent is like believing the basic fallacy that if every bear is a mammal then every mammal is a bear. See, also, analysis of United States v. Huber, 457 F. Supp. 1221, 1232 (S.D.N.Y. 1978),supra, at Appendix 2, point C2. Since there may be judges anywhere who are challenged by logic, it may help in some circuits to point out cases that differ with these cases. [In any event, since these cases are superfluous in light of Supreme Court cases on the need-not-mirror principle, it may be best not to raise these cases if the opposition doesn’t.] Probably most, and possibly all, differ with Broadway v. Culpepper, 439 F.2d 1253 (5th Cir., 1971). United States v. Lewis, 10 F.3d 1086 (4th Cir., 1993), supra, in holding a 20% racial disparity irrelevant is contrary to United States v. McDaniels, 509 F.2d 825 (5th Cir. 1973), cert. denied, 423 U.S. 857. When racial statistics are unavailable, some of these cases can be shown to be contrary to Judge Gewin, writing on behalf of a Committee on the Operation of the Jury System, as cited with approval in a dictum in United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988) supra. He notes “. . . the unlikelihood that a registration list containing only half the eligible voting age population could produce a fair cross section.” Official statistics list the many states and counties where less than half of the voting age citizens vote. 28 C.F.R. Appendix to Part 51.
A4. For the purpose of fair trials alone, the Texas system is the best, but both sides must concede that other systems are not illegal merely because they aren’t as good. And while the system of other sources and elimination of duplications is best, it is always debatable which state’s other sources are the most comprehensive. In any state must every one of its trials, on whatever type of issue, also have a determination, before, during, or afterwards, of demographics to determine if its mix is the best? Suppose a federal court of appeals, despite the arguments above and in Appendix 2 said that use of voter lists alone is the only way to assure a fair state trial in, say, South Carolina. It would seem then that it would also have to say that in any jury trial in Virginia in which possibly no voters list was used (since Virginia uses multiple lists but state law does not require elimination of duplications) the verdict is suspect. Similar pairings within one circuit are Arkansas and Illinois, Nevada (which doesn’t use alternate lists in every district even though its legislature authorizes it, per Howard v. State, 84 Nev. 599, 446 Pac. 2d, (1968)) and California, and Wyoming and Utah. (The same argument, with sound logic, could also be made on behalf of objecting voters in said states of Virginia, Illinois, and California and Utah.)
B. Other Points
B1. Conflicting constitutional rights need not be weighed against each other. In Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972) the Supreme Court said that a law that violates a fundamental right must be necessary to promote the state interest. The statute we complain of is not necessary because the end of a fair trial can be achieved in an alternative way, by the Texas or Oklahoma systems. However, if they had to be weighed, voting rights must prevail because of its great importance and because juries need not mirror the community. See Taylor v. Louisiana, 419 U.S. 522, 538 (1975), supra, and other cases discussed at Point A1, supra. Therefore, if underinclusiveness of alternative lists without voter lists had been proven it would be irrelevant.
Special importance attaches to the electoral franchise. In Reynolds v. Sims, 377 U.S. 533 (1964), supra, the Court said “Especially since the right to exercise the franchise in a free and UNIMPAIRED manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” (Emphasis added.) In Baker v. Carr, 369 U.S. 186 (1962), another malapportionment case, Justice Clark noted that “the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government.” In Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481 (1964), the Court said “other rights, even the most basic, are illusory if the right to vote is undermined.” Other cases that note the special importance of the electoral franchise are Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (whose holding is restricted by Ball v. James, 451 U.S 355 (1981) in a way irrelevant to our general question), Hill v. Stone, 421 U.S. 289 (1975), Dunn v. Blumstein, 405 U.S. 330 (1972), supra, (at page 336) and cases cited there, Kusper v. Pontikes, 414 U.S. 51 (1973), and Yick Wo v. Hopkins, 118 U.S. 356 (1886).
B2. Here are Miscellaneous Points re Bershatsky v. Levin.
B2a. Bershatsky v. Levin, 99 F.3d 555 (1996), cert. den., 521 U.S. 1105 (6/23/97), conflicts directly with the test in Dunn v. Blumstein, 405 U.S. 330, 337, 31 L. Ed. 2d 274 (1972), supra, by finding relevant the overinclusiveness of alternative methods of selecting people. While alternative lists include significant numbers of non-citizens, this is relevant only to the convenience of the Commissioner and thus concern for it is contrary to the Dunn test. They can be readily eliminated in the jury selection process. “... Constitutional deprivations may not be justified by some remote administrative benefit to the State,” per Harman v. Forssenius, 380 U.S. 528 (1965.) See also cases cited therein for that principle. In fact, the questionnaire sent to Ms. Bershatsky by the Commissioner asks if she is a citizen of the United States, according to her allegations. (The voting list also is overinclusive, since New York’s Judiciary Law, § 510 requires a proficiency in the English language for jurors, which is not a requirement for voters.)
B2b. The Bershatsky court, in support of its holding, cited Taylor v. Louisiana, 419 U.S. 522, 538 (1975) and Lockhart v. McCree, 476 U.S. 162 (1986), supra. As noted at point A1, supra, these cases argue for Ms. Bershatsky’s position. Neither of these cases upholds the right of a state to burden persons with the obligation of jury duty as a result of their voting. Neither do any of the other cases cited at point A1, supra.
Similarly, the holdings of lower court cases like United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.), cert. denied, 487 U.S. 1205 (1988), supra, that rejected arguments that juries were improper because of the use of voter lists, which were significantly racially skewed, (unfortunate as they may be for fairness of jury trials) support my contention, because the more lax the requirement of representativeness of juries, the greater the case for there being a reasonable alternative. Yet both federal courts cited Cecil and similar cases against the plaintiff. (The courts in Bershatsky apparently thought Cecil was particularly relevant to the Bershatsky situation because it involved both juries and voting and the system was upheld. That would be the basic fallacy mentioned at point A3, supra.)
B2c. By narrowly interpreting 42 U.S.C. § 1973i, subsection (b), the Second Circuit differs from two cases outside their circuit. See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979), supra, and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), supra, in different contexts.
B2d. The Second Circuit opinion starts off its opinion in Bershatsky by quoting, at page 556, Felix Frankfurter, in Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946), supra, but leaving out six words, giving the quotation the exact opposite meaning of what Frankfurter said. The omitted words were “it is easy to say that”, which in that case had almost the same effect as leaving out “not.” The Second Circuit, quoting the lower court, with neither saying “it is easy to say that”, said:
“ ‘jury duty should be regarded as a patriotic service[;] . . . all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship,’ ” id . at 39 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) (Frankfurter, J., dissenting) (internal quotation marks omitted)). We affirm substantially for the reasons stated in the district court’s opinion.
In Thiel, Frankfurter (dissenting) said:
With respect to the item last-mentioned, IT IS EASY TO SAY THAT jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. (Emphasis added to show the words omitted by the Court of Appeals.)
He continues:
With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one's family is the first consideration of most men.
His opinion goes on to say it is proper to exempt day laborers from jury duty so that they should not have to make a great sacrifice. (In Thiel, the prospective voters had not been selected from voters’ lists, so the holding is not relevant, here.)
B2e. The plaintiff-appellant resided in and voted in Kings County, New York, and sued the Defendant-Appellee in his capacity of commissioner of jurors for the county because he had called her for jury duty. Kings County is one of the counties in which less than half of the voting age citizens vote, per 28 C.F.R. Appendix to Part 51. The appeal to the court of appeals contains an allegation stating “… Kings County is a county in which less than half of the voting age citizens vote. The likelihood of having evidentiary support of this fact is based on 28 CFR Appendix to Part 51.”
B2f. Before May 31, 1996, the date the brief for this case was timely filed with the Second Circuit, that court cited the opinion of the Eastern District in this case, giving the appearance of prejudging this case. In a per curiam decision, dated March 8, 1996, the Second Circuit, in Schanbarger v. Macy, 77 F.3d 1424 (2d Cir. 1996), cited the opinion of the Eastern District in this case. The result of this was especially unfortunate since the District Court failed to allude to many arguments made before it in Ms. Bershatsky’s brief.
B3. Since the laws creating the Pennsylvania and South Carolina systems are not separable, (see Thiel v. Southern Pacific Co., 328 U.S. 217, (1946)) if any voter is called for jury duty under those statutes and, before serving, demands not to serve, on the grounds of voting rights, that call to jury duty must be cancelled unless the state shows that that voter’s name was selected from a source other than voters’ lists. (On separability, generally, see Williams v. Standard Oil Co., 278 U.S. 235 (1929).)
B3. Eliminating duplications is not difficult. Several states do it. But even that small task can be passed on to the individual. The state need only assign a different number to each source for jury duty and, when informing individuals of selection for jury duty, inform them of the list and which list they were selected from and that if they are on a lower numbered list they can have the selection voided.
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