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View Diary: Stop saying Republican electoral-vote rigging is constitutional. It's not. Here's why. (193 comments)

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  •  except for the fact that the gerrymandering (7+ / 0-)

    itself hasn't been declared unconstitutional. If the gerrymandering itself isn't illegal, then the electoral college rigging isn't, either. It's both or none.

    •  I disagree (19+ / 0-)

      I think you have to look at the equal protection issue in terms of what the bill is actually doing: diluting the votes of one political party, entrenching Republican control against the large state-wide majorities of Democrats, by admission.

      The gerrymandered districts are just the tool.  But what the gerrymandering cases I cite tell us, is that EP challenges for political vote dilution are valid, and I think the justiciability problems are not nearly as problematic here.

      Maybe you disagree, but the gerrymander doesn't have to be unconstitutional for legislative purposes, to hold that hijacking a political gerrymander as a means towards an unrelated end--a nakedly political redistribution of electoral voting power towards a political minority--is a violation of Equal Protection.

      •  I would like to see the gerrymandering challenged (7+ / 0-)

        using the dilution theory because a district gerrymandered to capture a practically insurmountable number of members of one party or persuasion in order to engineer working majorities of another party in several districts would appear to be dilution on the face of it.

        It may not be all or nothing but I'm leaning towards both means of rigging could be tossed out under the dilution principle, not all or nothing.

      •  There is pretty strong language in the Alabama (0+ / 0-)

        case,  Reynolds v. Sims on that. I quote it in this comment and that case is explicitly about rural v. urban. This is worth quoting again:

        To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. The complexions of societies and civilizations change, often with amazing rapidity. A nation once primarily rural in character becomes predominantly urban. [Footnote 43] Representation schemes once fair and equitable become archaic and outdated. But the basic principle of representative government remains, and must remain, unchanged -- the weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. [Footnote 44]
        And Footnote 43 is particularly applicable to this discussion:
        Although legislative apportionment controversies are generally viewed as involving urban-rural conflicts, much evidence indicates that presently it is the fast-growing suburban areas which are probably the most seriously underrepresented in many of our state legislatures. And, while currently the thrust of state legislative malapportionment results, in most States, in underrepresentation of urban and suburban areas, in earlier times, cities were, in fact, overrepresented in a number of States. In the early 19th century, certain of the seaboard cities in some of the Eastern and Southern States possessed and struggled to retain legislative representation disproportionate to population, and bitterly opposed according additional representation to the growing inland areas. Conceivably, in some future time, urban areas might again be in a situation of attempting to acquire or retain legislative representation in excess of that to which, on a population basis, they are entitled. Malapportionment can, and has historically, run in various directions. However and whenever it does, it is constitutionally impermissible under the Equal Protection Clause.
        Chief Justice Warren delivered the opinion of the Court that included a finding the "District Court properly exercised its judicial power in this case by ordering reapportionment of both houses of the Alabama Legislature for purposes of 1962 elections."

        Then, as  I noted in that comment, "With this court who knows . . ."

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Wed Jan 30, 2013 at 08:30:04 AM PST

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    •  Gerrymeandering proves my point (2+ / 0-)
      Recommended by:
      elwior, Headlight

      IN fact, Gerrymeandering is one of the best examples of where 1 vote equals 1 vote.   In order to make sure that districts are as close to apportioned as such, house of reps divide districts or shrink population of districts by dishonest means.

      But in cases where people have tried to unbalance a district by having districts with significantly more population then other districts, constitutional challenges have ensued.   This has occurred in Kansas and Missouri several times.

      While gerrymeandering seems unfair because of the geographic gaming - which is a complete and dishonest game to divide areas to make them zoned, if it wasn't for the need to have population balanced districting, there would be no effort at gerrymeandering at all, you'd just create random districts of random population sizes to get the results.  

      It's that need for a population similarity that creates gerrymeandered districts.

      Gandhi's Seven Sins: Wealth without work; Pleasure without conscience; Knowledge without character; Commerce without morality; Science without humanity; Worship without sacrifice; Politics without principle

      by Chris Reeves on Tue Jan 29, 2013 at 03:52:38 PM PST

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      •  Not quite. (5+ / 0-)

        Gerrymandering is redrawing the districts to favor one political party.  Every state has to have equipop districts, but they are not all gerrymandered.  States with neutral commissions that attempt to hew to natural political boundaries (i.e., not splitting up cities between 4 districts to neutralize urban voters in all 4) do not gerrymander.

        And, again, take a look at I. and II. after the jump.  Equal protection principles are brought into play if districts are not equipop, but also if political boundaries are equal but drawn to dilute some group's vote.

        Again, this is slightly different from my point; i.e., that there is precedent to argue that a electoral-vote apportionment scheme that ensures a state's political minority controls 80% of its electoral vote is a violation of the one-person, one-vote standard on dilution grounds.

        •  I think (2+ / 0-)
          Recommended by:
          elwior, Pluto

          We are dancing around the same ground.  The argument I was responding to was not in relation to court cases or law in relation to equal protection via political boundaries, but whether or not such case law would make gerrymandering on it's face invalid.

          My argument is that with the equipop insertion, a key touch, gerrymandering has unfortunately kind of been bared out by the court.

          But the fact that this is true, the equipop standard destroys the key component of apportionment based on # of districts, because the # of districts will not add up in any method to create an equipop waiting to even justify that leg of the stool.

          I think we're on the same page here, actually.  :)

          Gandhi's Seven Sins: Wealth without work; Pleasure without conscience; Knowledge without character; Commerce without morality; Science without humanity; Worship without sacrifice; Politics without principle

          by Chris Reeves on Tue Jan 29, 2013 at 04:14:13 PM PST

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    •  Presidents have a wider constituency that Reps (6+ / 0-)

      Just because you've balanced the votes within a district for a Representative does not mean you've balanced the votes statewide for President.

      Substitute "state" for "congressional district" and the legal argument is unchanged:  you can't make a vote in the inner city for president less valuable than a vote in the suburbs.

    •  "redistricting" isn't unconstitutional (2+ / 0-)
      Recommended by:
      NM Ward Chair, zhimbo

      "gerrymandering" is slang.  Redistricting in an abusive way CAN get your district map thrown out for violation of the constitution.

    •  I tend to agree with you here, spoon (3+ / 0-)
      Recommended by:
      Nulwee, marina, Lysis

      (which means that you should know that you are doomed) that the case isn't clear that it's unconstitutional.  (We have some 'splainin' to do over why we let the Maine/Nebraska systems sit for so long, if it's impermissible -- but I think that we can explain that that was before animus entered the picture.

      I agree with the author, though, to the extent that an action that would otherwise be found constitutional can be found unconstitutional if found to be undertaken with the intent of violating equal protection.  (This is the "rational-plus" scrutiny on which Adam has written for years -- and as the diary states Kennedy is its main proponent.)  I agree with the author that Kennedy's vote in Vieth -- nine years ago -- means that the outcome the diarist proposes is possible; I simply wouldn't count on it.  So put me down for agreeing that I shouldn't say that it's constitutional but unwilling to say that it clearly isn't.

      The comment just below your post is also a good one.  You have more latitude to screw around with even your lines to a federal house than you do with the election of the federal executive.  Imagine: why need this be done across Congressional district lines?  Why not across county lines?  Why not school district lines?  Why could they not gerrymander "electoral lines" to suit this particular function that might be even worse?  It would still be "in such Manner as the Legislature may elect"!

      The key to understanding this argument is to recognize that these Congressional district lines are not a priori any different from lines specifically drawn to ensure a Presidential result in a given state.

      The real problem is that they don't have to use CD lines or Electoral District lines at all -- the legislature could just use a formula of rounding off to the nearest split, as we remember so fondly from calculating Democratic delegate splits based on vote percentages five years ago around this time (and the next few months.)  Put that into effect -- so that red-controlled blue states all become virtual ties and red-controlled red states all remain winner-take-all -- and the Supreme Court has to confront head-on the question of whether a given state election for President belongs to that given state or to the nation.

      Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

      "I love this goddamn country, and we're going to take it back."
      -- Saul Alinsky

      by Seneca Doane on Tue Jan 29, 2013 at 08:08:27 PM PST

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    •  disagree (0+ / 0-)

      constitutional precedent is about the value of individual voters votes being equal.

      need not take into concideration the method at which suddenly one voters vote is worth less than another persons. It needs to be proportional representation.

    •  There is nothing in the Consitution barring (0+ / 0-)

      a state from electing all its representatives in state-wide races, i.e. not having any congressional districts.

      Form follows function -- Louis Sullivan

      by Spud1 on Wed Jan 30, 2013 at 03:36:35 AM PST

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