Legislators, officials, or citizens don't cherry pick their laws

‘For the last 200 years, under our system of government, it has been the role of the courts to declare what is constitutional and what is not’

NEWFANE — I'm sad to say that the recent Viewpoint by Dale and Nancy Gassett fails three key tests that I always found useful when I was in the Legislature - regardless of whether I was in the minority or the majority.

To summarize, they are outraged that a "tyrannical" legislature passed a law allowing Brattleboro to have people under 18 to vote on local issues, and they demand that Brattleboro officials do their supposed duty under their constitutional oaths by refusing to implement it.

The first test I used was the MYOB Test. Whenever I received calls and emails from people in other states telling me what I should do, I thought perhaps I should listen to the folks who elected me instead.

For a couple from Vernon to demand that Brattleboro officials do what they personally wish regarding Brattleboro's local elections obviously fails that little test on its face.

My second test was the Hyperbolic Ranting Test. There almost always seemed to be a direct relationship between the strength or weakness of an argument and the way it was presented. This fit in nicely with the old legal maxim that if you've got the law, argue the law; if you've got the facts, argue the facts; but if you haven't got either one, stand up and make a lot of noise.

Now, I often had occasion to differ with other legislators - including, at times, with some in my own party. But regardless of all that, I never saw any of the hundreds of people with whom I served up there as "arrogant and power-hungry tyrants."

Terms like that flow through the Gassetts' commentary with such tiresome frequency that I eventually stopped counting. And every time I saw another one, I felt more of the shards of their argument crumbling around them as it was weakened by all the noise.

The third test - to which having failed the Hyperbolic Ranting Test directly leads - is the Do You Even Begin to Have Your Facts Straight Test. Not surprisingly, their Viewpoint also fails that one on multiple counts.

Contrary to what the Gassetts claim, it really wasn't those nefarious legislators who cooked up the idea of changing Brattleboro's local voting age. Charter changes like that invariably come about because the residents or officials of the affected municipality ask the Legislature to consider making them, just as was the case here.

So if local voices do matter, they were heard here.

* * *

Beyond that, the Vermont Constitution doesn't actually say what they claim it does - setting some absolute voting age for Brattleboro.

Section 42 of the Vermont Constitution simply says that "Every person of the full age of 18 years" who is a U.S. citizen, meets a residency requirement, is quiet and peaceable, and takes the required oath "shall be entitled to all the privileges of a voter of this state."

Note that little word "all." It doesn't say that someone under that age might not be allowed to vote on some more limited matters on a local basis, just that they wouldn't be allowed to vote in state or federal elections because they wouldn't qualify for "all the privileges of a voter in this state."

I'm not personally qualified for all of lots of things, but that doesn't mean I'm not qualified for any of them!

So, finally, what about the Gassetts' claim that Brattleboro's local officials somehow are duty-bound to honor their oaths of office by following the Constitution as the Gassetts personally choose to interpret it?

Well, it should come as no surprise that this sort of argument - that doing or not doing something would violate the Constitution - arises repeatedly in legislative debates from those who are pushing one position or another.

But the answer to all that is really quite simple.

For the last 200 years, under our system of government, it has been the role of the courts - not of legislators, public officials, or individual citizens - to declare what is constitutional and what is not. Anyone having a problem with something which directly impacts them certainly is free to litigate the constitutionality of the matter, but once that has happened, the oath of a public official simply requires abiding by the court's decision.

Having everyone's oath somehow require each of them to try to decide the constitutionality of things on their own obviously could only create complete chaos. So, unless a court decides otherwise, the presumption is that enacted laws are constitutional and that they are to be obeyed.

* * *

And that brings us to the real reason that the Gassetts can only vent in these pages by demanding that Brattleboro's officials do things that they can't do and shouldn't even try to.

The Gassetts, being from Vernon, have no more legal standing to challenge the constitutionality of Brattleboro's local voting than I would from Newfane, because it doesn't directly affect us.

Only someone from Brattleboro can do that, and apparently no one has.

Which, I think, brings me full circle to MYOB.

Richard Marek is a former Democratic member of the Vermont House of Representatives, where he served from 2002 to 2015.

This Voices Response was submitted to The Commons.

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