Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P5 docx

efforts “necessary and essential to the prosecu-
tion of the war.”
Whereas the five defendants in Abrams were
released on
BAIL during March 1919, the
Supreme Court issued two decisions upholding
the convictions of several other antiwar protes-
tors. In the first case, the Court affirmed the
convictions under the 1917
ESPIONAGE Act.
SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct.
247, 63 L.Ed. 470 (1919). In the other case, the
Court affirmed the convictions under the 1918
Sedition Act. Debs v. United States, 249 U.S. 211,
39 S. Ct. 252, 63 L.Ed. 566 (1919) Both
decisions were unanimous, and both decisions
were written by Justice Holmes.
In Schenck, Holmes articulated what has
become known as the “clear-an d-present dan-
ger” doctrine, a doctrine by which the constitu-
tionality of laws regulating subversive expres-
sion are evaluated in light of the First
Amendment’s guarantee of free speech. “The
question in every case,” Holmes wrote in
Schenck, “is whether the words used are used
in such circumstances and are of such a nature
as to create a clear and present danger that they
will bring about the substantive evils that
Congress has a right to prevent. It is a question
of proximity and degree.”
In Schenck Holmes concluded that the

government did not run afoul of the Free
Speech Clause in suppressing the protestors’
antiwar expression, because Holmes said that
when “a nation is at war many things that might
be said in time of peace are such a hindrance to
its effort that their utterance will not be endured
so long as men fight and that no court could
regard them as protected by any
CONSTITUTIONAL
right.” Nor was Holmes’s opinion in Schenck
influenced by the possibility that the antiwar
protests had no practical effect in changing the
minds of passersby. “If the act (speaking, or
circulating a paper,), its tendency and the intent
with which it is done are the same,” Holmes
reasoned in Schenck, “we perceive no ground for
saying that success alone warrants making the
act a crime.”
Writing for the majority in Abrams, Justice
JOHN H. CLARKE echoed Holmes’s reasoning from
Schenck. The purpose of the pamphlets written
by Abrams and his comrades was to “excite”
riots, sedition, and disaffection with the war,
Clarke wrote. Distributed at a time when World
War I was at a “supreme crisis,” Clarke
continued, the pamphlets’ call for a general
strike among munitions workers would neces-
sarily have hindered the U.S. war effort. As a
result, Clarke concluded that Abrams’s pamph-
lets created a clear and present danger of

“defeating the military plans of the government
in Europe.”
Holmes dissented from the Abrams’s major-
ity’s application of the same clear and present
danger test Holmes himself had formulated just
eight months earlier. Holmes still agreed that
the government’s power to
SUPPRESS speech is
greater in times of war than in times of peace,
“because war opens dangers that do not exist at
other times.” But “nobody can suppose that the
surreptitious publishing of a silly leaflet by an
unknown man, without more, would present
any immediate danger that its opinions would
hinder the success of the government arms or
have any appreciable tendency to do so,”
Holmes cautioned.
“To allow oppositio n by speech,” Holmes
now thought, “seems to indicate that you think
the speech impotent, as when a man says that he
has squared the circle.” A
CIVIL WAR veteran who
had joined the Unio n Army in large part due to
Defendants in
Abrams v. United
States prior to their
1921 deportation to
Russia. Clockwise
from center, Molly
Steimer, Samuel

Lipman, Hyman
Lachowsky, and Jacob
Abrams.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
28 ABRAMS V. UNITED STATES
his support for the ABOLITION movement,
Holmes reminded readers that “time has upset
many fighting faiths,” and, accordingly, “the
ultimate good desired is better reached by free
trade in ideas—that the best test of truth is the
power of the thought to get itself accepted in
the competition of the market, and that truth is
the only ground upon which their wishes safely
can be carried out. That at any
RATE is the theory
of our Constitution.”
Holmes then moved to his application of the
clear-and-present-danger test. In
CIVIL LAW,
Holmes observed that defendants may be held
liable for all the foreseeable consequences of their
negligent behavior. Not so in the
CRIMINAL LAW,
Holmes said, where a crime is not normally
committed unless done “with intent to produce a
consequence [and] that consequence is the aim of
the deed.” But intent alone is not the only factor
critical to a court’s First Amendment analysis,
Holmes observed. Instead, a court must also
evaluate the “success” of the speech “upon

others.” Unless the speech creates a “present
danger of immediate evil,” Holmes argued that
Congress cannot punish the speaker without
violating the federal constitution. In concluding
that the “silly” leaflets distributed by Abrams and
his co-defendants created no clear and present
danger, Holmes said that “we should be eternally
vigilant against attempts to check the expression
of opinions that we loathe and believe to be
fraught with death, unless they so imminently
threaten immediate interference with the lawful
and pressing purposes of the law that an
immediate check is required to save the country.”
Holmes’s opinion in Abrams cemented his
reputation for being one of the Supreme
Court’s exceptional writers of persuasive dis-
senting opinions. It also laid the buildin g blocks
for his reputation as a great defender of civil
liberties. But most importan tly, Holmes’s
dissenting opinion in Abrams changed the
course of First Amend ment law for the
remainder of the twentieth century. In Schenck
the clear-and-present-danger test had been
applied with minimal scrutiny as to whether
the antiwar pamphlets in question were likely
to have any practical impact on those who
might read them. Holmes’s opinion in Schenck
focused almost entirely on the gravity of the
dangers created by the pamphlets, without
paying much attention to whether those

dangers were likely to result.
By contrast, Holmes’s dissenting opinion in
Abrams more carefully scrutinized the compet-
ing factors at work in evaluating whether the
subversive speech sought to be punished does in
fact create a clear and present danger of harm
that Congress may prohibit. Holmes contended
that the Abrams’s majority opinion should have
more closely examined the intent of the
pamphleteers. Additionally, Holmes believed
that the majority opinion should not only have
attempted to determine whether the pamphlets
would have any effect on readers, but also urged
the majority to allow the defendants to go
unpunished unless by distributing the pamph-
lets the defendants had created a danger that
was both clear and immediate.
Supreme Court scholars have spent much
time trying to explain why Holmes modified
his view of the Free Speech Clause in the eight
months that separated his m ajority opinion in
Schenck
and his dissenting opinion in Abrams.
There is evidence to suggest th at H olm es was
influenced by the anti-Communist and anti-
radical hysteria that was sweeping much of the
nation during those months, and the govern-
ment–instituted repression of radicals that
resulted. There is also evidence indicating that
Holmes was influenced by correspondence he

received from various acquaintances, including
Harvard Law School professor
ZECHARIAH
CHAFEE
, federal district judge Learned Hand,
and political theorist Harold J. Laski, all of
whom praised Holmes for articulating the
clear-and-present-danger test but also encour-
aged the
ASSOCIATE JUSTICE to apply it with more
exacting scrutiny.
Some 50 years after Holmes first enunciated
the clear-and-present-danger test in Schenck,
the majority of the Supreme Court reformu-
lated the doctrine in Brandenburg v. Ohio, 395
U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430
(1969). In Brandenburg, the Court reversed the
conviction of a
KU KLUX KLAN leader under a state
statute, Ohio Rev. Code Ann. § 2923.13,
prohibiting
ADVOCACY of crime and violence as
a necessary means to accomplish political
reform. The Court held that a state could not
forbid or proscribe advocacy of the use of force,
except where such advocacy is directed toward
producing imminent lawless action and is likely
to incite or produce such action. Though the
Court’s opinion fails to use the ph rase “clear
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

ABRAMS V. UNITED STATES 29
and present danger,” many CONSTITUTIONAL LAW
scholars have seen Brandenburg as a return to
the Holmes immediacy test first set forth in
Abrams.
FURTHER READINGS
Blasi, Vincent. 1997. “Reading Holmes through the Lens of
Schauer: The Abrams Dissent.” Notre Dame Law Review
72 (July).
Fagan, James F., Jr. 1991. “Abrams v. United States:
Remembering the Authors of Both Opinions.” Touro
Law Review 8 (winter).
Polenberg, Richard. 1999. Fighting Faiths: The Abrams Case,
the Supreme Court, and Free Speech. Ithaca, NY: Cornell
Univ. Press.
CROSS REFERENCES
American Civil Liberties Union; Constitutional Amend-
ment; Debs, Eugene Victor; Due Process of Law; Fourteenth
Amendment; Privacy.
ABROGATION
The destruction or annulling of a former law by
an act of the legislative power, by constitutional
authority, or by usage. It stands opposed to
rogation; and is distinguished from derogation,
which implies the taking away of only some part
of a law; from subrogation, which denotes the
substitution of a clause; from dispensation, which
only sets it aside in a particular instance; and
from antiquation, which is the refusing to pass
a law.

For example, the abrogation of the
EIGH-
TEENTH AMENDMENT
to the CONSTITUTION, which
prohibited the manufacture or sale of intoxicat-
ing liquors, was accomplished by the enactment
of the
TWENTY-FIRST AMENDMENT. Implied abro-
gation takes place when a new law contains
provisions that are positively contrary to a
former law, without expressly abrogating such
laws, or when the order of things for which the
law has been made no longer exists.
ABSCOND
To go in a clandestine manner out of the jurisdiction
of the courts, or to lie concealed, in order to avoid
their process. To hide, conceal, or absent oneself
clandestinely, with the intent to avoid legal process.
To postpone limitations. To flee from arresting or
prosecuting officers of the state.
ABSCONDING DEBTOR
One who absconds from creditors to avoid
payment of debts. A debtor who has intentionally
concealed himself or herself from creditors, or
withdrawn from the reach of their suits, with
intent to frustrate their just demands. Such act
was formerly an act of bankruptcy.
A person who moves out of the state may be
an absconding debtor if it is that person’s
intention to avoid paying money that he or she

owes.
It is difficult or impossible for a creditor
to serve an absconding debtor with a
SUMMONS
in order to start a lawsuit and collect his or
her money. Where a court is convinced
that a debtor has absco nded, it may permit
the creditor to begin the lawsuit in some way
other than
PERSONAL SERVICE of a summons.
For example, a franchisee bought a dough-
nut franchise and opened up a small shop. He
also bought a hous e for his family. Unfortu-
nately, the business failed after a year, and he
turned all of the equipment and materials back
to the franchisor. The franchisor claimed that
additional money was owed to him and
decided to
SUE the former franchisee. A PROCESS
SERVER
was sent to take a summons to the
apartment that was listed as the address in
the original application for the franchise. The
LANDLORD there told the process server that
the former franchisee had moved and left no
forwarding address. The franchisor applied to
the court for permission to serve him as an
absconding debtor. The co urt allowed the
franchisor to publish notice of the lawsuit on
three occasions in the legal section of the local

newspaper. The franchisee did not see the
notice and did not appear in court. The court
entered a
DEFAULT JUDGMENT against him
without hearing his side of the story. After
that, the franchisor began searching public
records to see if the franchisee owned any
property that could be seized to pay off the
amount of the judgment. He discovered the
recorded deed for the house and went back to
court, seeking an order to have the house sold.
This time the franchisee, who was served
personally with the court papers, appeared
with his
ATTORNEY. He explained at the hearing
that he had never intended to conceal himself
or to avoid paying the money he owed. The
court found that he had never been an
absconding debtor who could be served merely
by publication. The default judgment, there-
fore, could not be enforced, and the franchisor
could not have the house seized and sold.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
30 ABROGATION
ABSENTEE
One who has left, either temporarily or perma-
nently, his or her domicile or usual place of
residence or business. A person beyond the
geographical borders of a state who has not
authorized an agent to represent him or her in

legal proceedings that may be commenced against
him or her within the state.
An absentee
LANDLORD is an individual who
leases
REAL ESTATE to another but who does not
reside in the leased premises.
An absentee corporation is one that con-
ducts business within a state other than the
place of its incorporation but has not designated
an agent for purposes of
SERVICE OF PROCESS,
which might ensue from disputes involving its
business transactions there.
ABSENTEE VOTING
Participation in an election by qualified voters
who are permitted to mail in their ballots.
The Uniformed and Overseas Citizens Ab-
sentee Voting Act (42 U.S.C.A. § 1973ff et seq.)
covers absentee
VOTING in presidential ELECTIONS,
but the states regulate absentee voting in all other
elections. According to Article I, Section 4, of the
U.S.
CONSTITUTION, “The Times, Places and
Manner of holding Elections for Senators and
Representatives, shall be prescribed in each state
by the
LEGISLATURE thereof; but the Congress may
make or alter such Regulations, except as to

the Places of ch[oo]sing Senators.”
Originally created to accommodate overseas
military service personnel in
WORLD WAR I ,
absentee voting has since expanded to include
all voters expecting to be absent from their
precincts on election day. The right to vote,
even by absentee ballot, is no trifling concern.
A state may restrict it only to the extent that
doing so serves a compelling
STATE INTEREST such
as preventing
FRAUD.
State laws governing absentee voting are
based on statutes. federal courts that have
reviewed absentee ballot laws have established
general principles regarding these laws. For
instance, the Fifth Circuit determined that
because Mississippi’s absentee voting law was
designed to protect the integrity of the absentee
ballot, voters had to comply with the law strictly
(United States v. Brown, 561 F.3d 420 [5th Cir.
2009]). In another example, the Ninth Circuit
ruled that a state law that establishes different
requirements for in-person voters than require-
ments applied to absentee voters did not violate
the
EQUAL PROTECTION rights of the in-person
voters (ACLU of N.M. v. Santillanes, 546 F.3d
1313 [10th Cir. 2008]).

Although all states allow absentee voting, the
procedures and qualifications vary from state to
state. According to statistics as of 2008, compiled
by the Early Voting Information Center at Reed
College in Oregon, 32 states allow individuals to
vote without having to provide an excuse. Under
these state laws, individuals may vote early on a
voting machine or submit absentee ballots in
person. Conversely, 14 states require an excuse
for in-person absentee voting. The majority of
states allow voters to submit ballots by mail
without excuse, whereas 22 states req uire an
excuse. Oregon is the only state that requires all
early voting to take place via mail.
The amount of time that an appli cation for
an absentee ballot must precede the election can
vary. In Minnesota, it is one day (M.S.A. §
203B.04[1]). In Louisiana, it depends on the
voter. For example, a voter who goes in person
to apply for an absentee ballot must do so
between 12 and 6 days before the election (LSA-
R.S. 18:1309[a][1]); a voter who registers for an
absentee ballot by mail must get the registration
form to the registrar not more than 60 days and
not less than 96 hours before the election (LSA-
R.S. 18:1307[b]); military personnel must return
the application not more than 12 months and
not less than 7 days before election day (LSA-
R.S. 18:1307[c]).
Many states allow absentee voters to vote

again on election day if they are present in the
state. If voters so choose, they may change their
votes. Officials in states that allow this practice
count the absentee ballots after the poll ballots
have been counted, and any duplicate absentee
ballots are simply disregarded. This is the case in
Minnesota (M.S.A. § 203B.13[3a]). In Louisiana,
however, a person who has voted by absentee
ballot may not vote again on election day
(LSA-R.S. 18:1305). In 1977 Louisiana amended
its law to allow absentee voters to change their
votes on election day, but in 1980 it changed the
law again to prohibit the practice.
In any state, to cast an absentee ballot,
citizens must be eligible voters and have a
reason for being unable to vote at the polls.
Between August 1, 1991, and November 30,
1992, Minnesota experimented with allowing
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABSENTEE VOTING 31
A sample absentee
voting ballot
application
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Absentee Ballot Application Instructions

If you would like to have an absentee ballot mailed to you, PRINT legibly on the application below and sign where it says
"Signature of Voter." All applications for an absentee ballot submitted by mail (or by a relative or guardian in person at the
Election Board office) must be in the office of the Jackson County Board of Election Commissioners by 5:00 P.M. on the
Wednesday prior to the election. Pursuant to Missouri law, (115.279) absentee ballots cannot be mailed if the application is
received after this deadline.
For your application to be complete, you must have the following:
• The date of the election
• The date of the application
• If it is a primary election you must state which political party ballot you would like
• The applicant's daytime phone number
• The name of the applicant as registered
• The address at which the applicant is registered
• The reason for which an absentee ballot is needed
• The signature of the applicant
If you are going to be away from home and need a ballot mailed to a location other than your home address, fill out the section
labeled "Mailing Address if different than Home Address."
Note: An Absentee Ballot Application may be forwarded to us by facsimile but must be followed by a hard copy with an original
signature. If the original application is not in our office by 7:00 P.M. CST on the day of the election, the absentee ballot will NOT
be counted. This application is good for the Jackson County Board of Election Commissioners only.
MAILING ADDRESS IF DIFFERENT
THAN HOME ADDRESS:
________________________________
________________________________
________________________________
City State Zip
Absentee Voting Ballot Application
OFFICE USE ONLY
Cert. # ________________
OFFICE Township
Precinct _______________

Style _________________
MAILOUT Color _________________
Ballot # _______________
ABSENTEE BALLOT APPLICATION
(FOR REGISTERED VOTERS)
Election Date ________________________ Date of Application ________________________
Party Primary Election,
Indicate Party _______________________ Phone Number ___________________________
Print Name __________________________________________________________________

Registered
Address ____________________________________________________________________
LAST
MIDDLE NAME / INITIAL
FIRST
ZIP
CITYAPT
STREET
DIRECTION
NUMBER
I expect to be prevented from going to the poll on election day due to the following
checked reason:
____ Absence on election day from the jurisdiction of the election authority in which I am
registered;
____ Incapacity or confinement due to illness or physical disability, including caring for a
person who is incapacitated or confined due to illness or disability;
____ Religious belief or practice;
____ Employment as an election authority or by an election authority at a location other
than my polling place;
____ Incarceration, although I have retained all the necessary qualifications for voting.

________________________________________________________________________________________
Signature of Voter
Signature of Guardian or relative; Relationship
or Witness, If signed with an “X” _________________________________to applicant ___________________
Mail This Application To:
JACKSON COUNTY ELECTION BOARD
POST OFFICE BOX 296
INDEPENDENCE, MISSOURI 64051
ٗ
ٗ
MISSOURI ELECTION LAW 115.279
No application for an absentee ballot
submitted by mail or by a guardian or
relative after 5:00 p.m. on the
Wednesday immediately prior to the
election shall be accepted by any
election authority. No application for
an absentee ballot submitted by the
applicant in person after 5:00 p.m. on
the day before the election shall be
accepted by any election authority.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
32 ABSENTEE VOTING
voters to cast absentee ballots without explana-
tion, but this practice was discontinued on
January 1, 1994. All states allow persons with
permanent disabilities and military personnel to
cast votes by absentee ballot. Other valid
reasons for voting in ab sentia include illness,
temporary

DISABILITY, and religious observances
or practices. In Louisiana, any person age 65 or
older may vote by absentee ballot.
All states require that the application for an
absentee ballot be requested before election day,
but this rule has some exceptions. In Minne-
sota, for example, a health care patient who
becomes a resid ent or patient in a health care
facility on the day before the election may vote
by absentee ballot on election day if she or he
telephones the municipal clerk by 5:00
P.M. the
day before the election (M.S.A. § 203B.04[2]).
Each county enlists election judges to deliver
absentee ballots to hospitalized voters (M.S.A. §
203B.11[3]).
Some people have had to fight for the right
to vote by absentee ballot. In Cepulonis v.
Secretary of the Commonwealth, 452 N.E.2d
1137, 389 Mass. 930 (Mass. 1983), Richard
Cepulonis and Kevin Murphy, two Massachu-
setts residents and long-term prisoners in the
Walpole Massachusetts Correctional Institution,
asserted their right to vote by absentee ballot.
Cepulonis, eligible for
PAROLE in 1997, and
Murphy, eligible for parole in 1985, attempted
to vote from prison in 1982. City officials in
Worcester told Cepulonis that he could not vote
by absentee ballot without registering in person;

officials in Boston told Murphy the same.
Cepulonis and Murphy filed suit together in
superior court, asking for a
CLASS ACTION on
behalf of Massachusetts prisoners and a judicial
declaration that the class of prisoners be
declared eligible to vote by absentee ballot.
The judge denied the requests, holding specifi-
cally that prisoners who did not register to vote
prior to their
IMPRISONMENT, and prisoners who
are not imprisoned in the city of their domicile,
may not register to vote by absentee ballot
because they must register to vote in person.
The absentee voting statutes of Massachusetts
contained no provision for voter registration
of Massachusetts prisoners through the postal
service.
Cepulonis and Murphy asked the Massa-
chusetts Supreme Judicial Court to review the
case; on August 15, 1982, the court denied the
request. On October 21, Cepulonis and Murphy
moved for a court order allowing prisoners to
vote in the November 2 elections; the Massa-
chusetts high court denied this request as well.
Cepulonis and Murphy then filed a
MOTION for
injunctive relief—a court order—with the U.S.
Supreme Court. Justice William J. Brennan Jr.
denied the motion

WITHOUT PREJUDICE, which
meant that Cepulonis and Murphy were free to
bring the matter before the Court in the future.
Justice
JOHN PAUL STEVENS referred the case to the
full bench of the Supreme Court, which, after
consideration, refused to co mmand Massachu-
setts to institute procedures enabling incarcer-
ated residents to vote by absentee ballot.
Undaunted, Cepulonis and Murphy applied
directly to the Massachusetts Supreme Judicial
Court for review of the case; the court granted
the application. On April 4, 1983, Cepulonis
and Murphy argued that Massachusetts’s failure
to install an absentee registration procedure for
incarcerated residents deprived those residents
of their state the
CONSTITUTIONAL right to vote
in state elections. Although some states had
chosen to prohibit convicted crim inals from
voting in elections, Massachusetts had not.
The court began the analysis in its opinion
by discussing the
CASE LAW of Massachusetts on
the subject of voting. Without exception, the
precedents held that voting laws should be
interpreted to facilitate voting, and not to
impair or defeat the right to vote. In light
of this principle, the court announced that
it agreed with Cepulonis and Murphy; the

Massachusetts statutory scheme was denying
deserving citizens a state constitutional right.
The court then examined the Massachusetts
statutory scheme and observed that some eligible
prisoners could vote, whereas others could not.
The absentee voting laws of Massachusetts
provided that prisoners incarcerated in the
municipality of their domicile, if already regis-
tered, could vote by absentee ballot. However,
registered voters incarcerated in a municipality
other than their own could not register for
absentee ballots. Furthermore, prisoners who
were adult registered voters before they were
incarcerated could vote, but prisoners reaching
the
AGE OF MAJORITY while incarcerated could not
vote. These distinctions were arbitrary and,
according to the court, unconstitutional.
The court then cited relevant case law that
held that Massachusetts must prove the existence
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABSENTEE VOTING 33
of a compelling state interest when i t denies a
FUNDAMENTAL RIGHT such as voting. The state
argued that the registration laws existed in their
present form to prevent voter fraud. The court
countered by pointing out that Maine, New
York, Vermont, Georgia, and Pennsylvania had
all seen fit to permit prisoners domiciled in their
states to register as absentee voters. This showed

that it was possible to create a system allowing
eligible prisoners to vote by absentee ballot.
The state also argued that prisoners not
registered to vote had had the opportunity to
register before
INCARCERATION. Requiring the
state to supply special absentee voting proce-
dures to disinterested citizens seemed unneces-
sary. However, failure to register to vote before
incarceration did not mean that prisoners who
were otherwise eligible should be denied the
right to vote, and, according to the court, no
case law supported such a denial.
Ultimately, the court held that Massachu-
setts prisoners must be given the means to
vote in state elections. The Massachusetts
absentee voting statutes were unconstitutional
to the extent that they prevented incarcerated,
eligible Massachusetts voters from registering to
vote. The court refrained from giving the vote
to Cepulonis and Murphy, and instead left the
job of revising the Massachusetts absentee
voting laws to the legislature.
The issue of absentee voting became a
particularly contested topic during the 2000
presidential election, when every vote was
needed to determine the ultimate outcome.
The seat of controversy was Florida, where a
recount became necessary in several counties
because the vote was so close. Between

November and December, Democrat
AL GORE
and Republican GEORGE W. BUSH appealed to the
state Supreme Court and even the U.S. Supreme
Court (
BUSH V. GORE, 531 U.S. 98 [2000]) over
whether or not ballots should be recounted. For
example, lawsuits filed by Florida’s
DEMOCRATIC
PARTY
involved the counting of absentee ballots
in Seminole and Martin Counties (Taylor v.
Martin County Canvassing Board, 773 So.2d 517
[2000]; Jacobs v. Seminole County Canvassing
Board, 773 So.2d 519 [2000]). The party alleged
that Republicans were allowed to correct
mistakes in some voter absentee ballots, while
Democrats were not given the same chance. In
Seminole County, Republican officials added
missing voter identification numbers at the county
election office, whereas in Martin County an
election supervisor let Republican workers take
home application forms and add missing voter
identification numbers. The stakes were high
because the 15,000 absentee votes in Seminole
County and the 10,000 in Martin County contrib-
uted to Bush’s razor thin majority over Gore.
The two state circuit judges who reviewed
the issues decided that, despite irregularities, the
ballots should be counted. On

APPEAL,the
Florida Supreme Court upheld these rulings.
The court, although acknowledging that there
were irregularities in the process, concluded
that there was no evidence of fraud,
GROSS
NEGLIGENCE
, or intentional wrongdoing.
The use of absentee ballots can complicate
elections when a candidate resigns or dies during
the last days of a campaign. The 2002 U.S. Senate
elections in New Jersey and Minnesota illustrated
these complications and led to
LITIGATION
over whether new absentee ballots could be
issued to include a substitute candidate.
The New Jersey Republican candidate for the
Senate asked the U.S. Supreme Court to overturn
a state supreme court
RULING that Democrat
Frank Lautenberg’s name could replace Senator
Robert Torricelli on the November ballot.
Torricelli, who had admitted to ethical violations
and been censured by the Senate, dropped his
reelection bid after public opinion polls indicated
that he would lose decisively. New Jersey
Republicans asked the Supreme Court to keep
Torricelli’s name on the ballot, arguing that there
would be delays in delivering military ballots,
which would violate the 1973 Uniformed and

Overseas Citizens Absentee Voting Act. In
addition, they contended that the state supreme
court order violated the due process rights of
military personnel and citizens who had already
received ballots and voted. Unlike the 2000
presidential election controversy, the Supreme
Court refused to intervene. Lautenberg went on
to win the election.
The Minnesota elections in 2002 were
thrown into turmoil when Democratic Senator
Paul Wellstone was killed in a plane crash just
10 days before the election. An estimated
104,000 absentee ballots had been distributed
and many had already been returned to county
election officials before Wellstone’s death. In
reviewing the state’s election laws, the
SECRETARY
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
34 ABSENTEE VOTING
OF STATE concluded that county elections could
not mail out new absentee ballots. This meant
that thous ands of absentee ballots that con-
tained votes for Wellstone woul d not count for
the substitute candidate, former
VICE PRESIDENT
Walter Mondale.
The state Democratic Party filed an emer-
gency election appeal with the state supreme
court, arguing that new ballots should be issued
immediately and that Minnesota voters should

be able to vote absentee using modern means
such as fax and
E-MAIL. The court held oral
ARGUMENT on the Thursday before the election
and issued an order later that day, ruling that
voters could request new absentee ballots be
mailed to them but they had to be returned to
county voting officials by the following Tuesday.
The court did not authorize any electronic
means as suggested by the Democrats. County
officials began to print ballots but the tight
deadline made it certain that many voters, such
as college students living far away, did not have
time to request, receive, and return their ballots.
In the end, Republican candidate Norm Cole-
man beat Mondale by a close but comfortable
margin. The Minnesota absentee ballot case
illustrates how absentee vote rs may risk having
their vote not count if an unusual chain of
events unfolds before an election.
Although commentators have expected de-
velopment in the use of the
INTERNET for
absentee voting, the states as of 2009 have not
moved to adopt this method. During the 2008
presidential election, the State of Florida
experimented with Internet voting for about
700 U.S. soldiers stationed overseas. These
soldiers voted at special kiosks set up in
Germany, Japan, and the United Kingdom.

Officials took a number of security precautions,
such as removing the hard drives from the
computers used for the voting, but commenta-
tors still expressed concerns about the integrity
of this method of absentee voting.
FURTHER READINGS
Booth, Michael. 2002. “Republicans Sue in N.J. Federal
Court to Block Senate Ballot Substitution.” New Jersey
Law Journal (October 7).
The Early Voting Information Center. Available online
at (accessed May 21, 2009).
Federal Voting Assistance Program. Available online at
(accessed May 21, 2009).
McCauley, William T. 2000. “Florida Absentee Voter Fraud:
Fashioning an Appropriate Judicial Remedy.” Univ. of
Miami Law Review 54 (April).
“Supreme Court Asked to Block Lautenberg: N.J. Republi-
can Candidate Files Appeal.” 2002. Washington Post
(October 5).
CROSS REFERENCES
Elections; Prisoners’ Rights; Voting.
ABSOLUTE
Complete; perfect; final; without any condition or
incumbrance; as an absolute bond in distinction
from a conditional bond. Unconditional; complete
and perfect in itself; without relation to or
dependence on other things or persons.
Free from conditions, limitations or qualifica-
tions, not de pendent, or modified or affected by
circumstances; that is, without any condition or

restrictive provisions.
Absolute can be used to describe
DIVORCE,
estates, obligation, and title.
ABSOLUTE DEED
A document used to transfer unrestricted title to
property.
An absolute deed is different from a
MORTGAGE deed, which transfers ownership
back to the mortgagee when the terms of the
mortgage have been fulfilled.
ABSTENTION DOCTRINE
The concept under which a federal court exercises
its discretion and equitable powers and declines to
decide a legal action over which it has jurisdiction
pursuant to the Constitution and statutes where
the state judiciary is capable of rendering a
definitive ruling in the matter.
The abstention doctrine was adopted by the
Supreme Court to allow the federal
JUDICIARY to
refrain from
RULING on CONSTITUTIONAL ques-
tions. Because it has no explicit source in
federal or state laws, it is the exception to the
general rule that a litigant may
SUE or be sued in
federal court if the federal court has jurisdiction,
or power to hear the case. A federal court has
jurisdiction over several species of cases and

controversies, such as those involving a federal
constitutional question, a federal statute, or
litigants of different states in a dispute totaling
over $50,000 (in which case, the court’s power
to hear is called diversity jurisdiction). Federal
courts have an obligation to hear the cases
properly brought before them, so abstention is
an extraordinary judicial maneuver.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABSTENTION DOCTRINE 35
Also known as the Pullman doctrine, the
abstention doctrine was first fashioned by the
Court in Railroad Commission of Texas v.Pullman
Co., 312 U.S. 496 61 S. Ct. 643, 85 L. Ed. 971
(1941). At issue in Pullman was a Texas Railroad
Commission regulation that prevented the oper-
ation of sleeping cars on trains without a Pullman
conductor. Before the regulation, Texas trains
used only one sleeping car in areas of light
passenger traffic. When only one sleeping car was
used, the trains had only Pullman porters to
watch over the sleepers. When more sleeping cars
were used, the trains employed Pullman con-
ductors, who supervised the porters. The regula-
tion eliminated a practice that deprived con-
ductors of wages, but it also effectively decreased
the earnings and eliminated the autonomy of
porters. This result introduced the issue of
DISCRIMINATION, since, at the time, Pullman
conductors were white and porters were black.

The Pullman Compan y and Texas railroads
objected to the regulation, and together they
brought suit in federal district court to keep the
commission from enforcing the order. Pullman
porters joined the Pullman Company and the
railroads as complainants, and Pullman con-
ductors joined the commission as defendants.
The federal district court granted the request of
the complainants, ruling that the commission
did not have the authority to make such an
order. The defendants appealed directly to the
U.S. Supreme Court.
The complainants argued that the regulation
violated constitutional rights, namely the protec-
tions provided under the Due Process and
commerce clauses of the U.S.
CONSTITUTION. The
porters specifically asserted that the order was
discriminatory against “negroes,” and thus
violated the
FOURTEENTH AMENDMENT to the
Constitution. The commi ssion answered that
its authority to order such a regulation was
created by Texas law. Vernon’s Texas Revised
Civil Statutes Annotated, article 6445, provided
in part that the commission was empower ed
to prevent “unjust discrimination and to
prevent any and all other abuses” in the Texas
railroad industry.
The Supreme Court acknowledged the

sensitive nature of the porters’
ALLEGATION of
discrimination, but declared that the fate of the
offending law should be decided first by the
state courts. The Court then faced the question
of whether a state
RESOLUTION was possible.
The Supreme Court noted that a federal
district court in the Fifth Circuit had ruled
against the commission, but called the decision
nothing more than a “forecast.” According to
the Court, the Texas state courts were more
capable of interpreting Texas laws and deter-
mining how they should be applied. Federal
courts were simply not competent to define the
concept of discrimination and its prevention as
understood in Texas.
Furthermore, deciding Texas law in a
federal court was of little use when the ruling
could later be displaced by the decision of a
state court. The Court conceded that federal
constitutional claims against state laws or
regulations may be appealed to federal courts,
but it emphasized the
PUBLIC INTEREST in avoiding
“needless friction with state policies.” This
meant that when a state had the means to
resolve a constitutional issue, the first word on
the meaning and constitutionality of the
challenged law should be left to the state.

Texas law provided for
JUDICIAL REVIEW of
administrative orders in state court, so the
complainants could have filed suit there. Like-
wise, the defendants could have brought suit
in state court to enforce the order in the event of
a railroad strike. Because these avenues existed
and had not been traveled, the Supreme Court
reversed the decision of the lower federal
court and ordered the case held in the federal
court pending the outcome of state proceedings.
The abstention doctrine has expanded since
the Pullman case. The Supreme Court has
identified three distinct types of cases from which
a federal court should abstain: (1) If the meaning
of a state law or regulation is claimed to be
unconstitutional, and the meaning of the statute
or regulation can be discovered in the state’s
court system, abstention is appropriate. (2)
Abstention is also appropriate when a federal
suit seeks to delay or upset an ongoing state
proceeding, such as a criminal prosecution or the
collection of state taxes. (3) Finally, a federal
court should yield to state courts when a case
PRESENTS a difficult policy question of vital
importance to the state. This last justification
for abstention breeds the most creative argu-
ments.
One difficult issue of vital importance to
states is domestic relations.

DIVORCE, ALIMONY,
and
CHILD CUSTODY cases involve legitimate local
policies concerning
MARRIAGE and RELIGION. Until
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
36 ABSTENTION DOCTRINE
the 1990s, domestic relations abstention has
been invoked by federal courts in virtually any
case concerning family members. In Anken-
brandt v. Richards, 504 U.S. 689, 112 S. Ct.
2206, 119 L. Ed. 2d 468 (1992), the Supreme
Court put a stop to this practice.
On September 26, 1989, Carol Ankenbrandt,
on behalf of her daughters, sued Jon Richards
and Debra Kesler in the U.S. District Court for
the Eastern District of Louisiana. Ankenbrand t,
a Missouri citizen, had been married to
Richards, a Louisiana citizen. After the couple
divorced, Richards became romantically in-
volved with Kesler. In her suit, Ankenbrandt
claimed that Richards and Kesler had sexually
and physically abused Ankenbrandt’s daughters.
Ankenbrandt filed the suit in federal court under
diversity jurisdiction; she was able to do so
because she did not live in the defendants ’ home
state and she was suing for over $50,000.
The federal court decided not to hear the
merits of Ankenbrandt’s case. The district court
granted the defendants’ earliest

MOTION to dismiss,
ruling that the case belonged in state court under
the domestic relations exception to federal
jurisdiction based on diversity. As an alternative
to that holding, the court declared that its refusal
to hear the case was also justified by the abstention
doctrine. The court of appeals affirmed these
holdings without a published opinion.
On
APPEAL, the Supreme Court reversed the
decision. The Court traced the origins of the
domestic relations exception to federal diversity
jurisdiction and concluded that the exception
was valid. Nevertheless, the exception contem-
plated federal abstention only from cases such
as di vorce , alimony, and child cu stody.
Ankenbrandt’sactionwasatort action, an
action for monetary recovery based on the
accusations of one individual against another.
Ankenbrandt’s previous marriage to Richards did
not provide a permissible reason for the federal
court to invoke the domestic relations exception.
The federal district court’s alternative hold-
ing of abstention was equally erroneous. The
district court had cited Younge r v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971),
as support for its abstention. However, the
Younger decision simply held that a federal
court could not interfere with a pending state
criminal prosecution. Here, no state proceeding

was pending, and the defense had not alleged
that any important
STATE INTEREST existed, so
reliance on that particular reason for abstention
was misplaced.
Although the
ARGUMENT had not been raised
by Richards or Kesler, the Supreme Court
anticipated another reason for abstention, to
foreclose the argument in future cases. The
federal district court may have sought to abstain
from the Ankenbrandt case because the suit
seemed to present a difficult state policy
question of vital importance to the public. The
case seemed to involve a determination of
the family status of the litigants, an area of
state interest that could bring the case within
the domestic relations exception. This basis for
abstention was not supportable, though, be-
cause the familial status of the parties had
already been determined in a divo rce proceed-
ing and a parental rights proceeding.
The Supreme Court further warned that the
family status of the litigants had no bearing on the
underlying case. In a
CIVIL ACTION for monetary
damages, where sexual and ph ysical abuse is
alleged, a federal court could not refuse to hear
the case because the litigants had at one time been
related. Ultimately, neither the domestic rela-

tions exception nor its close relative the absten-
tion doctrine would deprive Ankenbrandt of the
right to file her complaint in federal court.
Despite its expansion since Pullman, federal
court abstention is very rare. A federal court
may refuse to hear a case over which it has
jurisdiction only in unusual circumstances.
When a case poses federal constitutional ques-
tions, a federal court may abstain only when
the challenged state law or regulation is unclear.
In addition, the methods for determining the
meaning of the law or regulation must exist in
the state’s court system, and these methods
must not have been used. Then and only then
may a federal court refrain from hearing a
constitutional question. The boundaries of the
abstention doctrine are continually tested and
stretched, but in 1992 the Supreme Court sent
notice through the Ankenbrandt case to the
federal courts that its use is limited.
CROSS REFERENCES
Constitutional Law; Courts; Federal Courts.
ABSTRACT
To take or withdraw from; as, to abstract the
funds of a bank. To remove or separate. To
summarize or abridge.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABSTRACT 37