Proportionality Matters

Bringing them Home - Chapter 24 | Australian Human Rights CommissionThe 2020 election drew 155 million voters to the polls. On January 6, 2021, a violent mob of hundreds or more sought to nullify those votes by assaulting the Capitol Building where the Electoral College count was being conducted. One participant, a white 49- year-old Indiana grandmother, was the first to be sentenced for her actions on that day. A federal judge sentenced the woman to serve 36 months on probation, perform 120 hours of community service, and pay $500 in restitution. The negotiated plea was deemed a misdemeanor, preserving the offender’s right to vote in the future.

Material gathered by the FBI included an enthusiastic Facebook entry boasting: I’m here. Best day ever. We stormed the capital [sic] building me and [my friend] were in the first 50 people in.

The repentant grandmother portrayed herself as a mere MAGA tourist caught up in the emotion of the moment. In a letter to the judge, she submitted reports of her experience reading a book and watching Schindler’s List as evidence of her penitence and lessons learned from the incident. She wrote further: I’ve learned that even though we live in a wonderful country things still need to improve, People of all colors should feel as safe as I do to walk down the street.

Her safety and freedom now assured and self-improved, the woman might further benefit her lesson by becoming familiar with a person of color from Texas, whose freedom is far from safe.

In 2016, the presidential election generated 128.7 million votes, with nearly 9 million in the Lone Star state. A Black woman was on supervised release from prison in 2016 when she was urged by her family to go to the polls. There, she was told she was not registered and with the assistance of a poll worker filed a provisional ballot. Provisional ballots are authorized under a 2002 federal statute requiring election officials to offer a provisional ballot in circumstances where a question of eligibility arises. Hers was one of 67,000 in Texas in 2016. Of 4,000 submitted in her county, only 10 were validated.

Her ballot was rejected but nonetheless prosecutors subsequently charged her with voter fraud, securing a five-year prison sentence for the offense. Under Texas law, it is illegal for a person who “votes or attempts to vote in an election in which the person knows the person is not eligible to vote.” Voters sign an affidavit with a provisional ballot that certifies they have competed any felony sentence, including supervised release.    

The conviction is under appeal, with the defendant maintaining that she did not know she was ineligible, which counters the Texas requirement for knowingly casting a vote in violation of the statute. Since her ballot was ultimately not counted, it is not, in effect, a vote, and the clearance procedure was effective as provided by law.

The dichotomous results in these instances speak volumes about the disparate application of the rule of law in our nation. The white Indiana grandmother enjoyed her “best day” on January 6, . . . a Black Texas woman, mistaken about the law, faces imprisonment.  

The dichotomous results in these instances speak volumes about the disparate application of the rule of law in our nation. The white Indiana grandmother enjoyed her “best day” on January 6, adding her presence to a mob challenging the votes of 155 million fellow citizens. Her illegal behavior has neither restrained her freedom nor her right to vote. A Black Texas woman, mistaken about the law, faces imprisonment and a continued, perhaps lifetime,  impediment to qualification to vote.  Even were she not mistaken about the law, Texas voting procedures voided her vote.

Proportion, Aristotle commanded, is a crucial element of justice.

Proportion, Aristotle commanded, is a crucial element of justice. The law is fair when it is proportional. Achieving a fair balance between the penalties imposed by our laws requires consideration of the severity of the offense or transgression. If the decision of the federal judge is proportional with respect to the capitol trespasser, it is incumbent upon the Texas appellate court to do likewise for an individual wo cast an uncounted ballot. 

 

 



Categories: CIVIL RIGHTS, crime and punishment, FREE SPEECH, Issues, National, politics, RULE OF LAW, State, VOTING RIGHTS

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