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vote for a successor candidate in a recall election to also cast ballot on recall issue
violated First Amendment).
This is not a close question. As the Court ruled in the Distefano case, which is
directly on point: The right to vote is of the most fundamental significance under our
constitutional structure, and depriving a qualified voter of the right to cast a ballot
because of failure to vote in an earlier election is almost inconceivable. 37 F.3d at 727,
quoting Burdick v. Takushi, 112 S.Ct. 2059, 2063 (1992).
In addressing arguments that a second election to correct flaws in an earlier
election is somehow different, allowing the sort of restrictions the Election Board
proposes here, the Distefano Court ruled:
The original election was defective and invalid, and the Board deemed its
results unreliable. The primary objective of the second election therefore
must be viewed as identical to that of the original one, to choose through
valid procedures the candidates supported by a majority of the eligible
voters.
37 F.3d, at 728. Exclusion of voters who had not voted in the first election from the
second election blocks them from participating in the only election that counts, the court
ruled, concluding:
It bears repeating that [t]he right to vote is one of the most important and
cherished constitutional rights, Leaks v. Board of Elections of the City of
New York, 58 N.Y.2d 882, 883, 447 N.E.2d 42, 43, 460 N.Y.S.2d 494, 495
(1983). In a fresh election designed to determine which candidates are
supported by a majority of the properly registered voters, we cannot
conceive of a governmental interest sufficiently strong to limit the right to
vote to only a portion of the qualified electorate.
Id. at 731.
The same holds true here.
For these reasons, we urge Pocomoke City to schedule a new, curative election
open to all District 1 residents, with advance notice to the candidates and the electorate in
order to provide sufficient opportunity for all to prepare.
Please advise us as soon as possible and by no later than close of business on
Monday, April 11 as to your intentions in this regard. If we do not hear from you by that
date, we will conclude that you intend to proceed with the Boards proposal to conduct an
unlawfully restricted election, and will take action accordingly.
You can reach me by telephone at 410-889-8550, ext. 120.
constraints, we appreciate your urgent attention to this matter.
Given time
Sincerely,
Deborah A. Jeon
Legal Director
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