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 http://earlyvoting.net (accessed May 21, 2009). Federal Voting Assistance Program. Available online at http://www.fvap.gov (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 . at the polls. Between August 1, 19 91, and November 30, 19 92, Minnesota experimented with allowing GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABSENTEE VOTING 31 A sample absentee voting ballot application ILLUSTRATION. United States prior to their 19 21 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. 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, 19 94. All