Fundamental Rights Flashcards
What are fundamental rights?
Fundamental rights are those rights that are so deeply rooted in our nation’s tradition and history that they are considered fundamental. They include:
- The right to vote
- the right to travel
- the right to privacy (including marriage, sexual relations, abortion, child rearing, and the right of related persons to live together)
NOTE: if the question is talking about a fundamental right being infringed for al person, the issue is likely one of substantive due process; if the right is being denied to only a particular class of persons, then equal protection is in play.
What is the fundamental right to travel?
There is a fundamental right to travel from state to state. This includes the right to enter one state and leave another, to be treated as a welcome visitor, and, as long as the person wants to be a permanent resident, the right to be treated equally to native-born citizens with respect to state benefits (so welfare waiting rules were struck down even though the state was trying to prevent fraud and establish an objective residency test. Those are not compelling state interests)
Reasonable residency restrictions may be placed on benefits like in-state tuition, but once they qualify as a resident they must be treated equally.
Is international travel a fundamental right?
No, the right to international travel is not a fundamental one and does not invoke strict scrutiny. So the gov’t can limit travel to say, cuba, as long as it has a rational basis for doing so.
How is the right to vote generally defined?
Under the 26th amendment, the right to vote is fundamental to all U.S. citizens who are 18 years age or older. The right applies to all federal, state, and local elections, including primary elections.
The degree of scrutiny which a governmental restriction of this right is subject to depends on the degree to which the restriction affects the exercise of this right; the more significant the impact, the greater the degree of scrutiny.
When the fundamental right to vote is restricted by residency, what is the scrutiny called for?
A governmental unit may restrict, subject to rational basis, the right to participate in the political process to those who reside within its borders; non-residents can generally be prohibited from voting (even if they are subject to business fees in the city/district)
A person must be given the opportunity to prove residency before being denied the right to vote because of residency.
BUT: if a gov’t tries to say that a person must have lived in an area for a certain amount of time before qualifying to vote, that is subject to STRICT scrutiny. 50 day periods were upheld, but 3-month and longer were not.
When it comes to the fundamental right to vote, can Congress supersede state residency requirements with respect to presidential elections?
Yes; Congress can supersede state residency requirements with respect to presidential elections.
Fundamental right to vote: how are property ownership requirements treated?
Generally, property ownership is not a valid ground on which to restrict the right to vote. So in school board elections you can’t say that only property owners with school-aged children can vote.
BUT: there is a limited exception for elections involving special -purpose entities like water-storage districts.
Fundamental right to vote: how are poll taxes treated?
Payment of a fee in order to vote (i.e. a poll tax) in an election for federal office is prohibited by the 24th amendment. More broadly, poll taxes for any election violates the EP clause because a poll tax is unrelated to voter qualifications.
Fundamental right to vote: Voter ID laws
A state may require that a citizen who votes in person present a gov’t-issued ID. Applying a balancing test to a facial challenge to this neutral, non-discriminatory requirement, the state’s interests, including the prevention of voter fraud and the advancement of public confidence in the integrity of the voting process, outweighed the limited burden on the right to vote.
Fundamental right to vote: Felons rights to vote
A state may prohibit a felon from voting, even one who has been unconditionally released from prisonn (pursuant to Section 2 of the 14th amend)
to what extent can the right to hold office through election or appt be restricted?
There is no fundamental right to hold office through election or appt., BUT: all persons do have the right to be considered for office without the burden of invidious discrimination.
The right to hold office: can property ownership be required?
No; the ownership of property cannot be made a condition of holding public office (appt to local school board)
Right to hold public office: can there be a filing fee?
Yes, a candidate for public office generally may be required to pay a reasonable filing fee.
BUT: an exorbitant one, such as one that imposes the entire cost of the election on the candidates, is unconstitutional, and provisions must be made for a candidate who is unable to pay the fee even in the case of constitutional fees.
Right to hold office: Can there be a ‘public support requirement’?
Yes; an independent candidate for elected public office can be required to obtain the signature of voters on a petition in order to appear on the ballot, but such a requirement cannot deny independent candidates ballot access (so state requirement that an indy candidate obtain the signatures of 5% of the voters in the last election for that office was upheld).
Indie candidates can’t be banned altogether.
If an indie candidate does not meet a sufficient number of votes in primary they can be left off of general ballot (in this case the threshold was 1%)
Right to hold elected office: can write-ins be banned?
Yes; a state may ban all write-in candidates in both primary and general elections, but only when the state provides other reasonable means by which a candidate can get on the ballot.
