Comments on: MBE Question of the Day #12 http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Tue, 07 Feb 2012 20:33:11 +0000 hourly 1 http://wordpress.org/?v=3.2 By: AB http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-10655 AB Sat, 29 Jan 2011 00:57:23 +0000 http://barexambrief.com/?p=724#comment-10655 O, oh, thrown by the language, compelling state interest vs. less restrictive means - B O, oh, thrown by the language, compelling state interest vs. less restrictive means – B

]]> By: AB http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-10654 AB Sat, 29 Jan 2011 00:55:49 +0000 http://barexambrief.com/?p=724#comment-10654 A A

]]> By: Maryann Herman http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-313 Maryann Herman Mon, 11 Jan 2010 13:32:53 +0000 http://barexambrief.com/?p=724#comment-313 Answer B is correct. Durational residence requirements for voters are subject to strict scrutiny because they curtail the fundamental right to vote and infringe on the right to travel. Durational residence requirements for voters will be struck down unless necessary to promote a compelling government interest and the means chosen must be the least restrictive possible. Some durational residency requirements are necessary to ensure that the state's interest in preventing fraud and ensuring voter knowledgeability are protected. However, a one-year residency requirement is too long. The court has struck down residency requirements ranging from one year to three months (Dunn v Blumstein (1972)), and upheld residency requirements of 50 days. Marston v Lewis (1973). Here, the state could require a shorter waiting period to ensure that only bona fide residents vote in the elections. Since this would be a less restrictive means of achieving the state interest, the state is obligated to eliminate or shorten the residency requirement and B is correct. Answer A is incorrect. A state does have a compelling interest allowing it to exclude entire classes of potential voters (i.e., convicted felons, aliens, those under 18 years of age, residents in the state less than 50 days, etc.). Answer A is incorrect because it fails to acknowledge that some classes of potential voters can be totally excluded from exercising the right to vote. Answer C is incorrect. The state does not have to provide voting rights to all persons who have met the age requirements. The state can also impose minimal residency requirements (50 days or less) to ensure that lists of eligible voters are accurate and to prevent people from coming into the state solely to vote. Answer C is not the best choice because it fails to acknowledge that the state can impose other requirements on the right to vote. Answer D is incorrect. The right to vote is not sufficiently tied to interstate commerce such that interference with voting rights will lead to a discrimination against interstate commerce. The relationship between the rights is too tenuous to support a strong argument under these facts. Answer D is not the best choice because it does not provide a strong challenge to the residency requirement. Answer B is correct. Durational residence requirements for voters are subject to strict scrutiny because they curtail the fundamental right to vote and infringe on the right to travel. Durational residence requirements for voters will be struck down unless necessary to promote a compelling government interest and the means chosen must be the least restrictive possible. Some durational residency requirements are necessary to ensure that the state’s interest in preventing fraud and ensuring voter knowledgeability are protected. However, a one-year residency requirement is too long. The court has struck down residency requirements ranging from one year to three months (Dunn v Blumstein (1972)), and upheld residency requirements of 50 days. Marston v Lewis (1973). Here, the state could require a shorter waiting period to ensure that only bona fide residents vote in the elections. Since this would be a less restrictive means of achieving the state interest, the state is obligated to eliminate or shorten the residency requirement and B is correct.

Answer A is incorrect. A state does have a compelling interest allowing it to exclude entire classes of potential voters (i.e., convicted felons, aliens, those under 18 years of age, residents in the state less than 50 days, etc.). Answer A is incorrect because it fails to acknowledge that some classes of potential voters can be totally excluded from exercising the right to vote.

Answer C is incorrect. The state does not have to provide voting rights to all persons who have met the age requirements. The state can also impose minimal residency requirements (50 days or less) to ensure that lists of eligible voters are accurate and to prevent people from coming into the state solely to vote. Answer C is not the best choice because it fails to acknowledge that the state can impose other requirements on the right to vote.

Answer D is incorrect. The right to vote is not sufficiently tied to interstate commerce such that interference with voting rights will lead to a discrimination against interstate commerce. The relationship between the rights is too tenuous to support a strong argument under these facts. Answer D is not the best choice because it does not provide a strong challenge to the residency requirement.

]]> By: Ken http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-311 Ken Mon, 11 Jan 2010 04:26:10 +0000 http://barexambrief.com/?p=724#comment-311 Answer is B: The state must be exhaustive in pursuit of its legitimate interest and seek the least unconstitutional means to achieve an important gvt objective --- Answer is B:

The state must be exhaustive in pursuit of its legitimate interest and seek the least unconstitutional means to achieve an important gvt objective —

]]> By: Wrelyea http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-308 Wrelyea Sun, 10 Jan 2010 22:58:30 +0000 http://barexambrief.com/?p=724#comment-308 Restrictions on the Right To Vote: Residency requirements: Reasonable time periods for residency will generally be deemed valid e.g., 30-60 -90 day etc…Conditioning the right to vote based on property ownership is generally invalid, unless it is an election which deals with a specific district, such as a water district or some other specific local issue, which effects only the local residents. If the right to vote is denied to everyone, it is an issue of Substantive Due Process. If the right to vote is denied to some individuals but not others, it is an issue of Equal Protection. Any restrictions on the right to vote on the basis of race or religion are evaluated with strict scrutiny. The Due Process Clause of the 14th Amendment applies to state and local regulations. When a fundamental right is limited the law or action will be evaluated using strict scrutiny, in all other situations the rational basis standard is applied. Here, the state is attempting to limit the fundamental right to vote on the students who move into the community to attend school on a full time basis. There are less restrictive means for them to accomplish this goal, thus they are trying to regulate an entire class of persons and are treating them differently from others. This raises the Equal Protection rights and is looked at under strict scrutiny. The law must be necessary to achieve a compelling government purpose. If there is a less burdensome means to achieve the government’s goal, the law will be invalidated. The government has the burden of proof. Answer A is too broad, it presumes that a state does not have a compelling interest….we don’t know this, it is based on a case by case basis and the government is given the opportunity to prove their case. Answer B is correct in my opinion, if there are less restrictive means for the state to achieve their goals, then that portion of the law which is unconstitutional will be invalidated and the other portions may be valid. Answer C is incorrect, because, it is looking at the age of majority, which is not the issue. Answer D is incorrect, because, this is not an interstate commerce issue. Restrictions on the Right To Vote:

Residency requirements: Reasonable time periods for residency will generally be deemed valid e.g., 30-60 -90 day etc…Conditioning the right to vote based on property ownership is generally invalid, unless it is an election which deals with a specific district, such as a water district or some other specific local issue, which effects only the local residents.
If the right to vote is denied to everyone, it is an issue of Substantive Due Process. If the right to vote is denied to some individuals but not others, it is an issue of Equal Protection. Any restrictions on the right to vote on the basis of race or religion are evaluated with strict scrutiny.

The Due Process Clause of the 14th Amendment applies to state and local regulations. When a fundamental right is limited the law or action will be evaluated using strict scrutiny, in all other situations the rational basis standard is applied.

Here, the state is attempting to limit the fundamental right to vote on the students who move into the community to attend school on a full time basis. There are less restrictive means for them to accomplish this goal, thus they are trying to regulate an entire class of persons and are treating them differently from others. This raises the Equal Protection rights and is looked at under strict scrutiny. The law must be necessary to achieve a compelling government purpose. If there is a less burdensome means to achieve the government’s goal, the law will be invalidated.
The government has the burden of proof.

Answer A is too broad, it presumes that a state does not have a compelling interest….we don’t know this, it is based on a case by case basis and the government is given the opportunity to prove their case.

Answer B is correct in my opinion, if there are less restrictive means for the state to achieve their goals, then that portion of the law which is unconstitutional will be invalidated and the other portions may be valid.

Answer C is incorrect, because, it is looking at the age of majority, which is not the issue.

Answer D is incorrect, because, this is not an interstate commerce issue.

]]> By: BV http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-307 BV Sun, 10 Jan 2010 22:23:24 +0000 http://barexambrief.com/?p=724#comment-307 CORRECTION: B is correct; I should have typed B as the answer and not A. Strict scrutiny does apply (my earlier posting). The least restrictive alternative analysis is used here; the means chosen must be necessary to obtain the objective. "A state" must demonstrate that no less restrictive alternative can achieve its objective. CORRECTION: B is correct; I should have typed B as the answer and not A. Strict scrutiny does apply (my earlier posting). The least restrictive alternative analysis is used here; the means chosen must be necessary to obtain the objective. “A state” must demonstrate that no less restrictive alternative can achieve its objective.

]]> By: mimi http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-306 mimi Sun, 10 Jan 2010 22:23:03 +0000 http://barexambrief.com/?p=724#comment-306 Answer A. I. Equal Protection i. Rule: EPC protects against discrimination of people who are similarly situated 1. EPC of the 14th Amend is limited to state action. However, grossly unreasonable discrimination by the federal govt violates the DPC of the 5th Amend. ii. Distinguish from Equal Protection, which treats person or class of persons differently vs. Substantive Due Process which limits liberty of all persons engaged in some activity. iii. Fundamental rights (1st Amendment rights, interstate travel, privacy, voting) must meet strict scrutiny. 1. Right to Travel a. Fundamental right to migrate from state to state + be treated equally b. E.g., laws that prevent people from moving into a state or impose durational residency requirements 2. Right to Vote a. Restrictions on right to vote, except on basis of residence, age, citizenship are invalid unless pass strict scrutiny. b. Strict scrutiny required for: racial gerrymandering, poll taxes, property ownership requirement, one-person-one-vote in state/local elections Answer A.
I. Equal Protection
i. Rule: EPC protects against discrimination of people who are similarly situated
1. EPC of the 14th Amend is limited to state action. However, grossly unreasonable discrimination by the federal govt violates the DPC of the 5th Amend.
ii. Distinguish from Equal Protection, which treats person or class of persons differently vs. Substantive Due Process which limits liberty of all persons engaged in some activity.
iii. Fundamental rights (1st Amendment rights, interstate travel, privacy, voting) must meet strict scrutiny.
1. Right to Travel
a. Fundamental right to migrate from state to state + be treated equally
b. E.g., laws that prevent people from moving into a state or impose durational residency requirements
2. Right to Vote
a. Restrictions on right to vote, except on basis of residence, age, citizenship are invalid unless pass strict scrutiny.
b. Strict scrutiny required for: racial gerrymandering, poll taxes, property ownership requirement, one-person-one-vote in state/local elections

]]> By: BV http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-305 BV Sun, 10 Jan 2010 21:59:35 +0000 http://barexambrief.com/?p=724#comment-305 A is correct. The right to vote is fundamental. Restrictions on voting are invalid unless they pass strict scrutiny; the law must be necessary to achieve a compelling government purpose. The A state statute violates the Equal Protection Clause. A is correct. The right to vote is fundamental. Restrictions on voting are invalid unless they pass strict scrutiny; the law must be necessary to achieve a compelling government purpose. The A state statute violates the Equal Protection Clause.

]]> By: Mona http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-304 Mona Sun, 10 Jan 2010 21:48:22 +0000 http://barexambrief.com/?p=724#comment-304 Answer is (D) - where a fundamental right is involved, the government has the burden of showing that the statute is necessary to promote a compelling interest. Here, fundamental right to vote is involved and the state will not be able to show any compelling interest. It is a very hard test. Answer is (D) – where a fundamental right is involved, the government has the burden of showing that the statute is necessary to promote a compelling interest. Here, fundamental right to vote is involved and the state will not be able to show any compelling interest. It is a very hard test.

]]> By: ANY http://barexambrief.com/2010/01/10/mbe-question-of-the-day-12/comment-page-1/#comment-302 ANY Sun, 10 Jan 2010 19:56:38 +0000 http://barexambrief.com/?p=724#comment-302 The answer is B. Where a state statute discriminates against classifications of people, a possible equal protection problem arises. The Equal Protection clause only applies to state action or action of private citizens under the color of state action. Where the right involved is one deemed to be fundamental (i.e. right to an aborition, right to procreate, right to vote), to be constitutional, the statute must show that the statute is the necessary to achieve a compelling state interest. Here, the equal protection clause applies because a state statute is being challenged. Further because the right to vote is a fundamental right, the state must show that restricting out-of-state students from voting in local and state elections is necessary to achieve the compelling state interest of ensuring that state and local candidates are elected only be the constituents they serve. This is a difficult burden for the state to meet and denying a group of people the right to vote for the rational stated above is not compelling enough to warrant such a restriction. Therefore, the strongest argument for the out-of-state students is that a state does not have a compelling interest sufficient to justify exclusion from voting of an entire class. B is wrong. The least restrictive means test applies where the Priviliges and Immunities clause is relevant - where the state favors in-state people over out-of-state people with respect to essential activities (i.e. pursuing a livelihood) basic right (i.e. the state's interest in protecting its resources). C is wrong. This may be a sound public policy argument for the state to make, but is not the strongest argument for the disenfranchized students. D is wrong. Interstate commerce is not the strongest argument in favor of the students in this instance as the statute is not attempting to regulate the channels, instrumentalities, items or activities having a substantial impact on interstate commerce. The lesser effect of the statute regulating people who travel in the stream of commerce is not as strong as a equal protection action because of the fact the fundamental right to vote is in issue. The answer is B. Where a state statute discriminates against classifications of people, a possible equal protection problem arises. The Equal Protection clause only applies to state action or action of private citizens under the color of state action. Where the right involved is one deemed to be fundamental (i.e. right to an aborition, right to procreate, right to vote), to be constitutional, the statute must show that the statute is the necessary to achieve a compelling state interest. Here, the equal protection clause applies because a state statute is being challenged. Further because the right to vote is a fundamental right, the state must show that restricting out-of-state students from voting in local and state elections is necessary to achieve the compelling state interest of ensuring that state and local candidates are elected only be the constituents they serve. This is a difficult burden for the state to meet and denying a group of people the right to vote for the rational stated above is not compelling enough to warrant such a restriction. Therefore, the strongest argument for the out-of-state students is that a state does not have a compelling interest sufficient to justify exclusion from voting of an entire class.

B is wrong. The least restrictive means test applies where the Priviliges and Immunities clause is relevant – where the state favors in-state people over out-of-state people with respect to essential activities (i.e. pursuing a livelihood) basic right (i.e. the state’s interest in protecting its resources).

C is wrong. This may be a sound public policy argument for the state to make, but is not the strongest argument for the disenfranchized students.

D is wrong. Interstate commerce is not the strongest argument in favor of the students in this instance as the statute is not attempting to regulate the channels, instrumentalities, items or activities having a substantial impact on interstate commerce. The lesser effect of the statute regulating people who travel in the stream of commerce is not as strong as a equal protection action because of the fact the fundamental right to vote is in issue.

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