Forced Voting and the Constitution
Obama: In Australia and some other countries there is mandatory voting. It would be transformative if everybody voted. That would counteract money more than anything. If everybody voted, then it would completely change the political map in this country.
Steve Malzberg: You mean fundamentally change the political map? Welcome back folks, Kendall Coffey, a partner at Coffey & Burlington LLC, former U.S. attorney, author of Spinning the Law is going to spin the law with us a little bit. Kendall: a lot of talk about the fact that the president has suggested mandatory voting…what would have to happen for that to happen?
Kendall Coffey: Well, I think Steve, you’d probably have to amend the United States constitution. I mean, voting is a fundamental right just like the right of religion is a fundamental right. But also, I think having a fundamental right means you have a fundamental right to choose not to participate. One of the reasons people don’t vote, and there are a varied number of reasons and we’d all prefer a much higher level of voting, is that they are alienated from the system and they are in a way expressing their disenchantment with what is happening in the government by not registering and not voting. So, in effect, to put some sort of legal gun to their head and to say “you gotta vote anyway” I think would be a violation of the constitution as it currently exists.
Could you change the constitution? Yeah, and then we could have a long conversation about whether that’s a good idea to force somebody to do what they don’t want to do is really a spectacular privilege in a democracy. If somebody doesn’t want to avail themselves to this great privilege and this great society then that’s their prerogative.
Malzberg: Do you agree with Judge Andrew Napolitano who said it’s a totalitarian idea?
Coffey: Well, it’s certainly not consistent with the liberty and freedom we have. Again, we’ve had a number of court cases that have stated that you have the right to practice your religion, but you also have a right not to practice a religion. So whether we agree with that or not, it is in our constitutional fabric. So, to move closer in a direction that adds things that you have to do, especially something like you have to vote, I think it’s not only unconstitutional but I think it would be a mistake.”
Malzberg: Okay, let’s move on to the Eric Garner case. A judge yesterday denied the request to release the grand jury testimony, all the details from the grand jury, and when I hear this reported it’s shock, it’s almost as if “Oh, boy they really do want to cover this thing up” when the fact of the matter is, as the judge stated somewhere in his decision: first of all, that no good reason was shown to break precedent.
It’s never, at least in New York and maybe you can tell me about the rest of the country, but grand jury testimony in New York is secret and that’s the process, so it would have been a landmark, boom-boom decision if this judge decided any other way, right?
Coffey: Yeah, and there are actually good reasons for grand jury secrecy. It can protect witnesses, people who participate. It can frankly protect people who are innocent from committing a crime of having their reputations unnecessarily tarnished. If someone is talking about you in a grand jury and nobody is going to charge you with anything because they don’t think you committed the crime, do you really want that getting out in the press?
So, I could give you a lot of examples for why it protects the investigative and prosecution processes, so we have a lot of compelling reasons. It’s a very deep tradition and if someone were making a request for grand jury notes and proceedings on someone never indicted in the federal system, it would just be seen as preposterous.
In this case, what the judge did is he looked for any example of a case where simply because something was of the public interest, and a newspaper or another media wanted it, or people were curious about it. With that and the history of New York legal judicial precedents, enough to violate grand jury secrecy? He found that it wasn’t.
Malzberg: You’ve gotta protect the witnesses too, because you know…
Coffey: It protects witnesses, it protects prosecution strategies, but you know, and I want to emphasize this, you protect a lot of innocent reputations from people whose names that sort of get tossed around into the Cuisinart and their names shouldn’t be out there and implicated when really they didn’t do anything wrong. So really, the secrecy is much much more protective of all of us than anything else.
Malzberg: Hey Kendall, I know you have a big weekend planned, you’re daughter is getting married—congratulations! Thanks for doing this and we’ll speak to you soon my friend.
Coffey: Okay, all the best.