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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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  •  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 [Footnote 43] Representation schemes once fair and equitable become archaic and outdated.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

      [ Parent ]

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