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View Diary: an Obama voter as 3/5 of a person (113 comments)

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  •  No, Ken. There is an entire body of equal protect (0+ / 0-)

    ion law that holds that what be otherwise constitutional is not if it was done for a discriminatory purpose.  Romer v. Evans is just one of the more recent.  Now, you might argue that 'rural' or 'urban' are not 'invidious categories', but then you would be ignoring the clear evidence that they are code words, both in intent and effect, for race.

    It is not enough to quote the Art. 2 language.  The langauge in Art. I is fundementally the same, yet SCOTUS applies limits to Congressional apportionment, including equal protection.  (It also ignores that oddly enough Art. 1, Sec. 4 actually vests the ultimate power to determine "Time, Place and Manner of hold elections for... Representatives" in Congress, not the States.)  By that logic, States could simply do away with popular vote for POTUS/VP, as some originally did, and e.g. choose names out of a hat or the Governor's cronies, or the leaders of only the Thug or D parties.  That may seem allowed by Art. 2, sec. 1, cl. 2, but, while Scalia might accept that 'original intent', I doubt a majority of SCOTUS would brave that crapstorm.  More importantly, it ignores Sec. 2 of the 14th, which explicitly states there is a "right to vote .. for the choice of electors for President and" V/P.  IOW, it mandates popular election of the Electors.

    Given that, it is hard to see how a modern SCOTUS would not rule denying all of a State's citizens or a racial susbset violate equal protection (or due process perhaps, depending on how lively substantive d/p is today) as it would deny thier existing right to elect POTUS/VP Electors as established and recognized by Sec. 2.  The same would be true if it excluded all 'urban' residents from voting for Electors.  The States are not writing on a blank page.  

    If it can not eliminate this right of urban voters (or minority voters, which the evidence will show is both the intent and effect), then significantly disadvantaging it constitutes a equal protection violation, whether it is called a 'liberty', right or fundamental interest.  Just as doing so for other rights, e.g., any of the Bill of Rights.  

    The only question then is: how much disadvantage is too much?  I have little difficulty seeing a scheme that counted 'urban' votes for electors at half or less than 'rural' votes violates e/p and d/p both under sctrict scrutiny as a racially discriminatory scheme both in intent and effect and under the rational relation test (as there can be no legitimate state interest justifying such disproportionate treatment on the basis of degree of urbanization.

    You may disagree.  But that doesn't mean there is not a potentially valid constitutional argument here.

    Hopefully, we'll never have to find out.

    •  several things (0+ / 0-)

      1.  You would have to show that it was done solely for discriminatory purpose discrimination on the basis of either a protected class or the violation of a fundamental liberty.  Since people are still able to vote under such a scheme, there is no violation of a fundamental liberty.  Then one gets to the idea of one man one vote which is the applicable standard, and that is not violated within the state the way Maine and Nebraska do it, although one might question whether the way Virginia proposed to award two electors to the winner of the most CDs does.

      2.  The fact that one person expressed his intent that might be interpreted as a discriminatory purpose is almost certainly insufficient.  That does not mean that would be why the legislature as whole might agree.  If their purpose was purely political, that is, to advantage their party over the other party, SCOTUS has already held that gerrymandering for political advantage is not constitutional.

      3.  Romer was a 6-3 decision.  Since then, Rehnquist has been replaced by Roberts on the dissenting side, O'Connor by Alito and Souter by Kagan.  Thus in theory there might be a 5-4 vote to uphold the reasoning of Romer.  Except that while Kennedy applied that principle in a matter of sexuality, his jurisprudence does not seem to apply that same principle in other areas, especially in voting matters.  He did vote for the majority in Citizens United.

      I admit I am not a lawyer.  But with the exception of how the two electors representing the Senators are awarded in the Virginia proposal, I see nothing the Supreme Court would even consider in proposals to change awarding of electoral votes to by CD, especially in a case like Virginia where the CDs were themselves subject to review under VRA and upheld.

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Sun Jan 27, 2013 at 04:40:43 AM PST

      [ Parent ]

      •  Consider: (0+ / 0-)

        1. You ignore the effect of the scheme, an independent means to test intent, and apart from intent an independent grounds (and the most common).

        2. You do not address A14, Sec. 2 which recognizes the right to vote for POTUS/VP, not simply the Electors (and thus changes the Art. 2 scheme, could you seriously see the Civil War Congress allowing Confederacy states to abolish population vote of Electors and thus deprive all 13A elible voters of a vote for POTUS?)

        3. You do not address the 'disproportionate disadvantage' (nee, treatment) argument.  Simply allowing hypothetical exercise of a right (or fund'l interest) is insufficient to escape e/p-d/p.  Significant difference of burden or advantage of the exercise to similarly situated persons is prohibited.  Put another way, if the Va scheme gave 2 EV votes to each rural district and 1/2 to each urban, we would see an obvious violation.  Yet, that would not be prohibted under your expansive reading of state authority here.  But that is exactly the effect the Va scheme has on the rights of each individual eligible to vote.  (BTW, Me and Ne are unique and not controlling primarily bc of their small size and relative similar pop-sized districts).

        3. 'Intent' ala Romer is not measured solely - or even primarily - by what the Legislative majority claims (they always claim a legit intent), or even the statements of its leaders (though that may be significant to show invidious intent, as here where the sponsor of the legislation explicitly states such).  All other sources can be considered, including necessary effect (which here is to always give rural districts 2 plus the EVs as urban, or more appropriately 'mostly white' vs 'significantly minority' - courts are not fools).  In any event, the 'intent' is whatever the parties prove in the litigation.

        As I see it, the treatment of the Senate Electors is merely the icing on the cake of intent to significantly advantage rural or urban and conversely burden the later as against similarly situated persons in the former.

        4. Your #3 is merely my 'there is a valid argument here, but whether they will follow precedent or pull another Bush v. Gore remains to be seen' argument.  We may not actually disagree here (though my position has to do with the perfidity of certain Justices) but that does not address th merits of the constitutional argument.

        5. IMO the VRA is irrelevant.  They're not talking about changing the districts, which all the VRA covers in this regard.

        You may or may not already know, I am a lawyer. But, I am not an election law or constitutional scholar, so even my informed opinion could certainly be wrong.  Or put another way, I disagree with how you're analyzing this, but that and $5 will buy me a Starbucks. :)

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