united-states constitutional-law legislature voting
Fences around the laws; vote swapping
<p>I don't know whether this is on topic because I'm not asking what the laws <em>are</em> but what the laws <em>should be</em>. On the 2nd thought, I <em>can</em> phrase it as a factual question:</p>

<p>Is criminalizing suspiciousness constitutional? There are quite a few laws that make harmless acts criminal for the sole reason that such acts make law enforcement suspect the person of something else. Let's call such laws "fences" around the actual intents. These fences in effect circumvent the principle of presumption of innocence, and more: even if the person proves his innocence of the <em>real</em> cause of the fence laws they still can be found guilty of breaking the fence law.</p>

<p>Example: it's illegal in CA (and probably most other states) to have an open container of alcohol in a motor vehicle. This is clearly a fence law around DUI law: there is no harm when a sober person drives while another one drinks in the back seat, but the driver still may be punished.</p>

<p>Example: I was made recently aware that it's illegal to share with other people a photograph of a completed voting bulletin. Apparently even some congressmen weren't aware of that and publicly shows pictures of their votes. This is a fence against purchasing votes, although it also effectively prevents vote swapping, which is perfectly legal. It would seem that this particular fence law also interferes with the citizens' right to vote by vote swapping, which is a whole other constitutional issue.</p>

<p>I am sure one can quote far more examples of the above.</p>

<p>Thus the questions:</p>

<p>Are the above "fence" laws constitutional? If so then <em>should</em>, in your opinion, legislature engage in creating laws for the sole purpose of circumventing presumption of innocence for the cases involving other laws?</p>

<p>For the 2nd example in particular, is it constitutional to interfere with voting right by criminalizing the only known method for voting via vote swapping, which has been found legal by 9th circuit court a few years ago?</p>

<h1>Ballot photos</h1>

<p>Anti-ballot-photo laws may not be constitutional.</p>

<p>Two of them have been struck down for violating the 1st Amendment.</p>

<ul>
<li><a href="http://www.leagle.com/decision/In%20FDCO%2020150812C02/RIDEOUT%20v.%20GARDNER#" rel="nofollow">Rideout v Gardner Case 1:14-cv-00489-PB</a></li>
<li>Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML</li>
</ul>

<p>California's has been <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1494" rel="nofollow">amended by the legislature</a> to allow disclosure of a filled-in ballot as long as it isn't part of violating some other law (like vote buying).</p>

<h1>Open container laws</h1>

<p><a href="https://en.wikipedia.org/wiki/United_States_open-container_laws" rel="nofollow">Open-container laws</a> have never been held to be unconstitutional. These are state laws, and states have broad freedom to legislate as long as they don't violate their constitution or elements of the Federal Constitution that have been incorporated by the 14th Amendment. My guess is that they would be upheld because they would pass <a href="https://en.wikipedia.org/wiki/Rational_basis_review" rel="nofollow">rational basis review</a>: they are rationally related to a legitimate government interest. <a href="http://articles.sun-sentinel.com/1986-08-14/news/8602180124_1_open-container-ordinance-alcoholic-beverage-containers" rel="nofollow">Here</a> is an example of an open-container law surviving a constitutional challenge.</p>

<p>State are encouraged to pass open-container laws by <a href="https://www.law.cornell.edu/uscode/text/23/154" rel="nofollow">23 USC 154</a>. If a state does not have an open container law, they receive less federal highway funding. This kind of condition was upheld by <a href="https://supreme.justia.com/cases/federal/us/483/203/case.html" rel="nofollow">South Dakota v. Dole</a>.</p>
