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

“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

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

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

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

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

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]).

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

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.

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;

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

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

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

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.

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

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

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.

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

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