Rethinking vote by mail, free speech case

Phil Keiling makes the case for voting by mail.

I’m not too big a man to admit when I’m wrong. But I might be too small.

Now that refusal to admit error has become a keystone of political success in America, it has become easier to stand by positions even against growing opposing evidence. Like Martin Luther, “Here I stand. I can do no other.”

Two recent opinions in this space have been cast into doubt by further evidence. One was last week’s column, in which I argued that a Colorado case involving a baker who refused to bake a wedding cake for a same-sex couple revolved more around freedom of speech than freedom of religion. That made the case similar, I argued, to the question of whether professional football players have a free-speech right to kneel rather than stand during the National Anthem.


David Crisp

Some readers accused me of false equivalency and, sure enough, when the court ruling came out on Monday, the case was decided 7-2 in favor of the baker on narrow religious grounds. The majority opinion, delivered by Justice Anthony Kennedy, held that Colorado agencies failed to give sufficient and respectful consideration to the baker’s sincerely held religious beliefs.

The ruling basically ignored the free speech aspect of the case, and Kennedy suggested that similar cases may be on the way.

“The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech,” Kennedy wrote. “This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

In other words, too close to call – and he’s not calling it until he has to.

Two other justices weren’t so shy. In a concurring opinion, justices Clarence Thomas and Neil Gorsuch specifically addressed the free-speech claim. They argued that a wedding cake was protected speech, even if it did not include words or any particular message. Restricting free speech to a “particularized message” would leave unprotected Jackson Pollock’s paintings, Arnold Schöenberg’s music and Lewis Carroll’s nonsense verses about the Jabberwocky, they said.

They noted that courts have protected as free speech such forms of expression as nude dancing, burning the American flag, refusing to salute the flag, displaying an upside-down flag and wearing a black armband. The baker cannot be compelled to engage in speech of which he disapproves, they said.

“From the beginning,” Thomas wrote, “this Court’s compelled-speech precedents have rejected arguments that ‘would resolve every issue of power in favor of those in authority.’” He added, “States cannot put individuals to the choice of ‘be[ing] compelled to affirm someone else’s belief’ or ‘be[ing] forced to speak when [they] would prefer to remain silent,’” he wrote. And, he said, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”

The justices did not address the question of whether private employers, such as the National Football League, can compel speech even if states cannot. But reports surfaced last week that NFL owners were bowing to political, and possibly illegal, pressure from President Trump when they instituted new rules about standing for the anthem and when they refused to sign protesting quarterback Colin Kaepernick. That adds weight to possible claims by football players that the government, not the NFL, is responsible for suppressing their speech.

A reporter at the daily press briefing on Tuesday asked specifically why the president supported the baker’s right to free speech but not the football players’. Spokeswoman Sarah Huckabee Sanders tap danced a response: “The president doesn’t think this is an issue strictly of free speech. He thinks it’s about respecting the men and women of the military, respecting our National Anthem, and it’s about standing out of pride for that.”

All three elements of her answer have everything to do with free speech. She also pointed out that most Americans agree with the president, which shows exactly why the Constitution is so important. We don’t need a First Amendment to protect popular opinions.

Both the majority and concurring opinions in the baker’s case, as well as the dissent by justices Ruth Bader Ginsburg and Sonia Sotomayor, left plenty of unanswered questions about exactly how the rights of gays and lesbians intersect with the rights of those who oppose their behavior. That, perhaps, reinforces my underlying point: These complex matters are better settled by reason and good will than by ideological rigidity.

As Justice Kennedy put it, “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

I’m also not quite willing to give in to a gracious objection raised to a column I wrote last year about the perils of voting by mail. Gerry Langeler, interim executive director of the National Vote at Home Coalition, said in an email than he ran across my column while gathering information for a “stunning new study” on the effectiveness of voting by mail in Utah.

He wasn’t ready to release the study, but he did send along press releases about high voter turnout in mail elections in Minnesota, North Dakota, Alaska and Nebraska. He also sent along a brief speech by Phil Keisling, chairman of the coalition, that is well worth listening to, even if you are just looking for evidence that I am an idiot.

Keisling says that of active registered voters, nearly 30 percent didn’t vote in 2016. In the 2014 mid-term election, only half voted, he said, and up to 80 percent don’t vote in primary elections.

“The single biggest obstacle to getting higher voter turnout – the traditional polling place,” he said. Voting by mail makes younger voters twice as likely to cast a ballot, he said, and it helps offset some of the increasingly widespread obstacles to traditional voting: gerrymandered districts, ID requirements, registration barriers, and so on.

“Voting is basic to everything,” he said, “and it is our ballot, and it belongs in our hands and on our kitchen and dining room tables.” Voting by mail could have added 40 million votes in the 2014 elections, he said.

I’m wavering but not giving in. I still worry about the long-term effects of mail voting on turnout and voting accuracy. And I still think the ideal solution is to make Election Day a national holiday with free transportation to the polls for everybody.

Besides, if I admit I’m wrong, what kind of American would I be?

Comments are closed.