DC Jews: Disenfranchised or Just Complaining?

Stephen Richer is President of Gather the Jews.  Do not blame GTJ as an organization for this article’s shortcomings or Stephen’s personal shortcomings.

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Given the large number of lawyers in the young Jewish adult community, this story is too good to pass up… Even though I’m a little late to the punch.

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Rabbi Herzfeld. Picture from the Jewish Outreach Institute

On January 6, 2012, Rabbi Shmuel Herzfeld of DC’s Ohev Sholom synagogue (and friend of this site) finalized a settlement with DC Mayor Vincent Gray and the District of Columbia Board of Elections and Ethics (“The Board”).

The settlement resolves a case that launched on April 13, 2011, when Rabbi Herzfled filed a complaint against The Board for holding a special election on April 26, 2011 – the last day of Passover.  As Herzfeld noted, and as most readers of this website can probably tell you, Orthodox Jews are religiously proscribed from writing on the final day of Passover – a ban that would keep them from voting.

When Herzfeld originally brought the issue to the attention of The Board, the election officials said that “their hands were tied” by the DC law that requires a special election to be held on the first Tuesday that is at least 114 days after the vacancy is certified.

Herzfeld requested that if The Board couldn’t change the date, it should extend poll closing time by two hours, from 8:00 pm to 10:00 pm, thereby allowing observant Jews to run to polls immediately after sundown.  The Board responded that the logistics of this would be impossible; they could not, at late notice, arrange for all 142 polling places to stay open two extra hours.

But The Board did not ignore the potential hardship caused by the date of election.  In light of the scheduling conflict, The Board arranged for absentee ballots, early voting ballots, and it even setup absentee ballot applications at several synagogues and Jewish organizations.

Steven Lieberman. Picture from Rothwell, Figg, Ernst & Manbeck, P.C.

Still, Herzfeld felt that this was not good enough, and he filed a suit alleging that The Board had violated the First (Freedom of Religion) and Fifth (Due Process) Amendment rights of DC’s observant Jews.  Herzfeld’s long-time friend and legal counselor Steven Lieberman (Rothwell, Figg, Ernst & Manbeck, P.C.) served as Herzfeld’s lawyer.

According to Lieberman, Herzfeld proceeded with the suit because “he saw that he would be unable to go to the polls and vote in this special election.  He considered it an important civic duty.”  Lieberman proceeded to say that the early voting measures taken by The Board “were inadequate” and that many in the Orthodox Jewish community would be effectively disenfranchised.

Not everyone in the Jewish community took this line, however, and some even rejected the ideas behind Herzfeld’s suit.  Rabbi Barry Freundel – the dynamo of Georgetown’s Kesher Israel Synagogue – filed a statement with the court on April 15, 2011 stating that,

“It is my view that, while it is unfortunate that by operation of law the election falls on the last day of Passover, and I am, therefore, unable to vote at a polling station on that day because of my religious beliefs, the District of Columbia Board of Elections and Ethics has made a fair and reasonable accommodation for me and my similarly situated congregants by having an early voting process and by being willing, if requested, to deliver absentee ballots for eligible voters to the synagogues on a Sunday before the election.”

Rabbi Freundel. Picture from Kesher Congregant

Over the phone, Freundel  remarked that there could be some potential backlash to the Herzfeld suit.  “[The Board] was remarkably, remarkably flexible.  [Herzfeld] potentially made enemies with a lot of people who were working to accommodate the Jewish community.”

Lieberman responded – on a separate phone call – to Freundel’s actions with some vitriol, “Rabbi Freundel was just wrong.  For whatever reason, Rabbi Freundel decided that he wanted to pander to the District of Columbia.  He made a statement that was not in the interests of the Jewish community or his congregants.  I thought it was shocking that an Orthodox rabbi would take that position.”

Undeterred by Freundel’s signed statement, Herzfeld and Lieberman pushed on.  By this point they couldn’t get change things to their liking for the special election day, but they could win a battle for the future.

Standing before U.S. District Court Judge Emmet G. Sullivan, Herzfeld and Lieberman argued that surely The Board wouldn’t have remained as inflexible had the special election day landed on Christmas.  The Board countered that it, in fact, would have.  Judge Sullivan expressed skepticism and hoped that all necessary steps would be taken in the future to avoid such a conflict.

The ramifications of the constitutional assertion – that The Board violated the First and Fifth Amendments of observant DC Jews – extends beyond this DC election.   The much-watched and much-discussed South Carolina GOP primary took place on January 21, 2012 – a Saturday.  The polls opened at 7:00 AM and closed at 7:00 PM (2012 Election Central).  Orthodox Jews are also not allowed to write on Saturday, and Havdallah (Shabbat closing prayers) took place at 5:58 PM on the 21st, hardly enough time to finish prayers and get to the polls.  Would Herzfeld and Lieberman argue that the South Carolina GOP also violated the First and Fifth Amendments?

Must government constitutionally avoid conflict with religions?  Is it enough that the government doesn’t actively prohibit or suppress the practice of a religion?  Or must the government draft its laws and set its dates with religions in mind?

If it must, then what about a hypothetical situation in which new religions emerge and every day of the week is filled with a day of rest (Jews Saturday, Christians Sunday, Group A Monday, etc.)?  Would governments be unable to schedule elections because it would inevitably conflict with the holy day of one religion?  Certainly the government couldn’t say the size of the religion dictates whether or not the religion has constitutional protection – it would be a true First Amendment violation to elevate one religion over another.

It certainly would be nice if elections avoided conflict with religions (much the same way you wouldn’t want to schedule a vote on the day of the Super Bowl), but does the Constitution mandate this?  Must government accommodate religion?  Or just allow for its free practice?

Ilya Shapiro. Picture from the Cato Institute

When asked the question, Ilya Shapiro – Senior Fellow in Constitutional Studies at the Cato Institute –  stated,  “Just as a broken clock is right twice a day, the District of Columbia has the better of the argument here.  The Constitution doesn’t even demand that D.C. accommodate those unable to vote on election day (for religious reasons or otherwise), though absentee ballots are good public policy.”

But for better or for worse, this issue will not be resolved through Herzfeld’s recent suit.   As noted at the beginning of this article, Herzfeld and Lieberman came to an agreement with The Board and Mayor Gray on January 6, 2012 that new legislative measures would be introduced to accommodate for future religious conflicts.

This seems an eminently practical solution.  But it does not answer the Constitutional question.  Perhaps I’ll bring a few experts (Nat and Alyza Lewin are you out there?) to shed further light on this topic.

Apologies for the long post, but this is really interesting subject with a great local spin!

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Since writing this article, The New York Times has posted this article on the Saturday caucus going in Nevada.

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