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As we all know, one hot topic here over the last few weeks has been the planned Republican coup d'état of rigging the electoral vote system in Virginia, Wisconsin, Pennsylvania, Ohio, and Michigan such that votes will be apportioned by Congressional district and not statewide vote.  And one comment I have seen repeatedly is that, if this is pulled off, it is plainly constitutional because of Article II, Section 1, Clause 2 of the Constitution:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Every time I see this, I want to scream.  Yes, the Constitution allows states to choose the method of selecting presidential electors.  But the method they choose must otherwise comply with the Constitution, including the Equal Protection Clause.  Don't believe me?  Here's the majority decision in Bush v. Gore:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. . . . it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.  History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors.

When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. . . .  The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.

531 U.S. 98, 104-05 (2000).   The Court cited for this proposition two earlier cases dealing with state elections: Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment") and Reynolds v. Sims, 377 U. S. 533, 555 (1964) ("the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.")

So let's get that out of the way.  The fact that the Republican state legislators are allowed to select the method of electors is not the end of the story.  They are still (for now) allowing people to vote; therefore, these plan must be consistent with equal protection.

There do not appear to be any precedents expressly dealing with a plan to divide electoral votes by congressional district instead of by statewide vote.  The constitutionality of the Maine and Nebraska systems have never been addressed by the Supreme Court (or any appellate court for that matter), so their existence is not proof of the current plans' constitutionality.  

After the jump, I'll discuss some basic law regarding equal protection principles (including one-person, one-vote) from Congressional gerrymandering cases which are relevant here.  I'll also argue that the current Supreme Court likely has 5 votes that would agree that a political party's use of politically gerrymandered Congressional districts to entrench itself in the White House contrary to the popular will of each state's citizens is unconstitutional.

Let's discuss the one-person, one-vote principle of Constitutional law, all of which has arisen in the context of Congressional districting.  

I.  The Equal Population Principle of One-Person, One-Vote

In Wesberry v. Sanders, 376 U.S. 1 (1964), the Supreme Court said that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.  This rule is followed automatically, of course, when Representatives are chosen as a group on a statewide basis, as was a widespread practice in the first 50 years of our Nation's history."   In Reynolds v. Sims, 377 U.S. 533 (1964), the Court explained that this principle was required by the Equal Protection Clause of the Fourteenth Amendment, and that "[d]iluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race."  

Under these laws, one-person, one vote requires that single-member districts be substantially equal in population.  That is not a problem for the Virginia, Pennsylvania, etc., plans here, since each Congressional district has the same amount of voters in it.  But one-person, one-vote requires more.

II.  The Anti-Dilution and Anti-Discrimination Principles of One-Person, One-Vote

While these cases involved Congressional districts with unequal numbers of voters in them, the Court made clear that the one-person, one-vote standard was not limited to requiring equally-sized districts.  It also applied to the shape of voting districts.  In Gomillion v. Lightfoot, 364 US 339 (1960), the city of Tuskegee, Alabama redrew its shape from that of a square to an "uncouth twenty-eight sided figure," with the effect of "remov[ing] from the city all save only four or five of its 400 [African-American] voters while not removing a single white voter or resident."  The Court found that the petitioners could challenge this system as a violation of equal protection, and that "[a] statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries."

In cases not involving race, the Supreme Court likewise continued to suggest that political gerrymandering could violate Equal Protection.  In Gaffney v. Cummings, 412 U.S. 735, the Court noted that "districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment," including districting plans "perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed "to minimize or cancel out the voting strength of racial or political elements of the voting population."

Then, in Karcher v. Daggett, 462 U.S. 725 (1980), the Supreme Court invalidated New Jersey's new congressional districts.  Four votes were based solely on the equal-population principle, but Justice Stevens, who concurred and provided the fifth vote for invalidation, explained that he was also considering political gerrymandering.  Analyzing prior precedents, Justice Stevens explained that

political gerrymandering is one species of 'vote dilution' that is proscribed by the Equal Protection Clause," and concluded that "[t]he Equal Protection Clause requires every State to govern impartially. When a State adopts rules governing its election machinery or defining electoral boundaries, those rules must serve the interests of the entire community.  If they serve no purpose other than to favor one segment — whether racial, ethnic, religious, economic, or political — that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community, they violate the constitutional guarantee of equal protection.
 The four dissenters likewise correctly anticipated that "with ever more sophisticated computers, legislators can draw countless plans for absolute population equality," and then use that "equality" in order to discriminate politically: "[e]ven more than in the past, district lines are likely to be drawn to maximize the political advantage of the party temporarily dominant in public affairs."

III. The Dilution Principle in Political Gerrymandering: Justiciability Issues

In Davis v. Bandemer, 478 U.S. 109 (1986), a six-justice majority agreed that the Supreme Court could hear and resolve issues of political gerrymandering as a violation of equal protection.  There, Indiana's Republican-dominated legislature and governor passed a redistricting plan that contained a "political gerrymander intended to disadvantage Democrats."  In the first election with the new lines, Democrats won 51.9% of the state-wide Congressional vote but only 43% of the legislative seats.  But while the Court found it had the power to resolve the case, a majority found the gerrymander constitutional.  The largest plurality on the Court (four liberal justices) held that:

where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Again, without specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionately underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.
Two other justices (including Justice Stevens) agreed that vote dilution stated an equal protection violation, but disagreed with the plurality's approach as to how such a claim would be proved.  It believed that a challenger had to address "shapes of voting districts and adherence to established political subdivision boundaries," and "the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals."

After more than a decade of partisan gerrymander claims, the Supreme Court essentially threw up its hands, on grounds of justiciability (the power of the Court to adequately fashion a remedy for the alleged violation.)  In Vieth v. Jubelirer, 541 U.S. 267 (2004), the entire court--even the conservatives--agreed that “partisan gerrymanders [are incompatible] with democratic principles.”  But a conservative plurality of four justices found that political gerrymandering issues were never justiciable, because there was no way for a court to determine what a constitutionally-required "fair" single-member district would look like, among other things.  

Justice Kennedy was the fifth vote to uphold the Pennsylvania gerrymander.  But he disagreed with the majority that political gerrymanders could NEVER be heard in federal court.  The four liberals at the time agreed with that.  (It was Stevens, Souter, Breyer, and Ginsberg.)  On the merits, Kennedy suggested that that political gerrymandering would violate EP if the law used "though generally permissible [political line drawing], were applied in an invidious manner or in a way unrelated to any legitimate legislative objective."  Kennedy also suggested that victims of political gerrymandering might have a First Amendment challenge.  

The liberal justices all agreed that political gerrymandering could state an equal protection violation, under somewhat different rationales.  Justice Stevens said that when "partisanship is the legislature's sole motivation — when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage — the governing body cannot be said to have acted impartially."  Breyer stated that "use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely the unjustified use of political factors to entrench a minority in power."  Justice Souter and Ginsburg laid out a complicated 5-part test, designed to determine whether a district was drawn sufficiently "unfairly" for a person in that district to have his vote matter.

IV.  Applying this law to the Republican Electoral College Schemes

Under these precedents, I believe that any Democratic voter of a state would have a strong equal protection challenge to the Republican scheme.  On the merits, there can be little doubt--indeed, it is all but admitted--that Republicans wish to change the way their states' electoral votes for purely political reasons, if not coded racial reasons.  ("Rural" voters, indeed.)  Given the facts on the ground, any of the various Vieth tests could arguably be satisfied here.  Republicans are attempting to "entrench a minority in power," to "unfairly" prevent states with a clear Democratic majority from electing a Democratic president, and using districts created for legislative purposes for an ulterior motive: to manipulate the vote for President.  Indeed, this added "twist" is something not seen in the redistricting cases: artificially-drawn legislative districts are not just being used to deny residents of those districts of the right to have a fair opportunity at electing their own representatives; these laws make sure that the political minority statewide can adversely affect the statewide majority from electing its preferred candidate.  In other words, this scheme will "consistently degrade a voter's or a group of voters' influence on the political process as a whole."  A majority of democrats statewide will cast 55% of the vote for Hilary Clinton, and give her maybe 20% of the state's electoral votes.  Republican's votes will be vastly more influential under this plan.  That is statewide vote dilution, anti-democratic, unequal, and unconstitutional.

Moreover, there is no justiciability problem here.  The Court will not need to get involved in drawing new, "fair" borders for Congressional districts.  Merely striking the new law down as unconstitutional, and returning to the old system of awarding electoral votes to the state-wide winner, would be a complete remedy that is plainly consistent with one-person, one-vote standard.  This is the purest democratic principle: he or she with the most votes wins.

Anyway, these are just my thoughts after a few hours.  But do not simply acquiesce when you hear someone say that the Republican electoral-vote rigging scheme is constitutional.  It is not.  And it will be challenged in the Courts if it passes.  And there may be five votes already--more, if God willing, some of the conservative justices find themselves off the bench.

Originally posted to scrivener76 on Tue Jan 29, 2013 at 11:55 AM PST.

Also republished by Barriers and Bridges.

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  •  Tip Jar (301+ / 0-)
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  •  A half truth is still a lie, thanks for the diary (80+ / 0-)

    Your diary effectively summarizes why such schemes can be seen as "well, on the face..." but when you get to the heart of the measure you realize that no matter how it's phrased it still violates.

    A well informed rebuttal.

    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 12:10:28 PM PST

    •  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

          [ Parent ]

      •  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

        [ Parent ]

        •  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

            [ Parent ]

      •  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

        [ Parent ]

      •  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

        [ Parent ]

  •  Would your argument (27+ / 0-)

    make the National Popular Vote Compact unconstitutional, too?  It would require a state to bind its electors to a candidate not voted for by the majority of the STATE if the NATIONAL vote went in that person's favor.

    •  That would be a novel EP claim (21+ / 0-)

      The fact that the citizenry of the United States as a whole has an equal vote, but the individual states do not?  I don't think so.

      I suppose someone could make a structural constitutional argument: that the federal system set forth in the constitution expressly gives smaller states a somewhat larger influence on Presidential elections than their population would suggest.  And a national-popular-vote plan deprives the small states of that influence.   But that's not an equal protection claim.

      •  But wouldn't voters (8+ / 0-)

        in an NPV state which cast electors for a candidate who lost the popular vote in the state have an EP claim that their votes didn't end up counting?  I'm not a lawyer and don't have a dog in the fight: I'm genuinely curious.  Thanks.

        •  Not really (9+ / 0-)

          No because their votes did count for electing the president.  Weighed exactly equally to everyone else.  A Democrat in Texas and a Republican in Vermont would have exactly the same influence on the final popular vote tally, and hence the election of the President.

          I think you'd have to have some hybrid Equal Protection/Federalism claim that my vote should count more because I'm in a smaller state.  

          There are other issues with NPV, not the least of which is that it cannot take effect without Congressional approval.  Fat chance right now.

          •  If that's true then there should be (3+ / 0-)
            Recommended by:
            PipeUp, Lujane, elwior

            a constitutional argument for NPV right now under the equal protection clause you bring up.  It would be just as valid as if used against the state by state nonsense the GOP is trying to pull.

            discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.
            That's what occurs now under the EC, that means equal protection should annul the EC just like you say it should annul the right of legislators to choose how they choose electors.
          •  I'd add that while you or I might find (2+ / 0-)
            Recommended by:
            chrismorgan, NM Ward Chair

            these things unconstitutional I highly doubt that the Supreme Court as currently composed will do the same.

            •  Kennedy's already on record agreeing with EP (4+ / 0-)
              Recommended by:
              AoT, Old Lefty, VirginiaBlue, elwior

              How he would address this?  I think he could easily revert to pure, naked partisanship.  But at least in Vieth, he could have joined the majority and killed off political vote-dilution claims, but he didn't.  It's still 4-1-4, assuming that Roberts, Alito, Sotomayor, and Kagan all vote as their predecessors did.

          •  Why would congressional approval (2+ / 0-)
            Recommended by:
            VirginiaBlue, Jim M

            be required for several states (more than 268 EV worth) to change they way they allocate their electoral votes?

            A conservative is a man with two perfectly good legs who, however, has never learned how to walk forward. Franklin D. Roosevelt

            by notrouble on Tue Jan 29, 2013 at 02:22:37 PM PST

            [ Parent ]

            •  That darned Constitution again... (3+ / 0-)
              Recommended by:
              notrouble, GeoffT, Seneca Doane
              It is possible that Congress would have to approve the NPVIC before it could go into effect. Article I, Section 10 of the US Constitution states that
              No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.
              The U.S. Supreme Court has ruled in Virginia v. Tennessee, 148 U.S. 503 (1893), and several more recent cases, that such consent is not necessary except where a compact encroaches on federal supremacy.[41] Every Vote Equal argues that the compact could never encroach upon federal power since the Constitution explicitly gives the power of casting electoral votes to the states, not the federal government. Derek Muller, an opponent of the compact, argues that the NPVIC would nonetheless affect the federal system in such a way that it requires Congressional approval.[42] Regardless, supporters of the NPVIC plan to seek congressional approval if the compact is approved by a sufficient number of states.[43]
              http://en.wikipedia.org/...

              "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

              by HeyMikey on Tue Jan 29, 2013 at 03:22:14 PM PST

              [ Parent ]

              •  But NPV isn't an interstate compact (2+ / 0-)
                Recommended by:
                WisePiper, Jim M

                It's a series of bills in individual states that determine how each state's EV's are cast.  It's not a treaty between them - states could unilaterally change their NPV participation statutes, not being bound to others to keep them.

                Sure there's co-ordination, but if that were a problem in itself then ALEC would be in deep doo-doo.

                Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

                by GeoffT on Tue Jan 29, 2013 at 04:48:42 PM PST

                [ Parent ]

                •  It's compact-ier than ALEC. (0+ / 0-)

                  1. Are states bound to the NPV compact once in? I don't know.

                  2. Unless they get out, however, then the NPV law, once passed, binds the state contingent on the actions of other states. "If all you other states do this, then we'll do it too." That's reasonably compact-y. This is what makes the NPV different from ALEC legislation.

                  "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

                  by HeyMikey on Tue Jan 29, 2013 at 07:08:48 PM PST

                  [ Parent ]

        •  OTOH, the countervailing argument would be that (9+ / 0-)

          since the NPV states are awarding their EVs to the winner of the national vote, then every vote in the state counts equally toward that national vote.

          The problem, as the diarist notes, is that under the current scheme, not every vote within the state counts the same, and the will of the majority of the state can be thwarted by the machinations of the minority in that same state.

          We don't want our country back, we want our country FORWARD. --Eclectablog

          by Samer on Tue Jan 29, 2013 at 12:44:11 PM PST

          [ Parent ]

    •  Good Diary, but (0+ / 0-)

      anti-discrimination would be a tough sell in some of the states that have discussed rigging the game.

      Voting Rights Act was clear that is was to stop discrimination, but some of the states would not be subjected to this notion.

    •  I would think not. (0+ / 0-)

      Because that person's vote is counted equally with all other person's voting in that election.

      In the Electoral College system, a voter in a smaller state actually has a higher impact. That generally isn't commented on because the small states tend to be highly polarized (a.k.a. gerrymandered), but is true nonetheless. So actually NPV is an equalizer when compared to the EC system.

      "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

      by nosleep4u on Tue Jan 29, 2013 at 02:26:04 PM PST

      [ Parent ]

  •  As a non-lawyer, wasn't the take home (18+ / 0-)

    message of Bush v. Gore that it established precedent for nothing?

    In any event, this whole episode shows that Dems just need to be as clever as the Repubs at exploiting the system, however it is configured.

    Seriously, if they can do, why can't we?  

  •  Awesome diary. Glad you made this point. (24+ / 0-)

    I hope these points start to permeate the current discussion, because for me, it's far more compelling than the rhetoric of how Obama would have lost to Romney despite 5 million votes.

    Of course, unconstitutionality doesn't seem to deter the GOP from passing stinky legislation.

  •  Well, you certainly have a point. And mostly the (10+ / 0-)

    stronger arguments do prevail. But usually only after at least some degree of mischief has been created. And then when the dust settles from one right wing BS trick, there they are again, already to go with a new one. And on and on.

    Case in point - "Oh look at all of the voter fraud that will be ended if we make elderly black voters produce documents that many of them will never be able to obtain". I wouldn't call that one a failure, even though it should have been a 100% non-starter.

    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

    by oldpotsmuggler on Tue Jan 29, 2013 at 12:31:56 PM PST

    •  There have also been good political arguments (9+ / 0-)

      why this won't happen.  Not the least of which is that Congressional races in reddish districts will become nationalized.  We'll win the urban districts without a single GOTV call; we could flood all our resources into the suburbs and maybe get the House back as well.  

      •  Part of me wants to see this happen (2+ / 0-)
        Recommended by:
        MPociask, Andrew F Cockburn

        for that very reason.

      •  Excellent point! (1+ / 0-)
        Recommended by:
        Wednesday Bizzare

        Right now, lots of energy goes into GOTV in cities so that  those votes will outweigh suburban and rural Republican votes.  The process would be reversed, and as you say it might turn some suburban districts blue...

      •  I've seen this ploy as petard from the start (0+ / 0-)

        The GOP thinks they have found the first free lunch in history. Gobble-gobble.

      •  Would you address the point I raised above (0+ / 0-)

        Such that a legislature may be able to achieve a similar goal in some states (but not others) by use of formula, as with delegate selection in the 2008 Democratic primaries?

        For example a state with three electoral votes could decree that, perhaps after screening out  votes below a certain threshold, anyone getting 60% of the vote would receive all three electoral votes and that anyone receiving 33.3% of the vote would receive at least 1 EV (with other rules to address all eventualities.)  The same could go for every state up to California's 55 EVs.

        The issue at that point becomes: are individual voters harmed, in a way cognizable under the equal protection clause, by the decisions in other states to enact, or not to enact, such laws?  My fear is that such a system might not run afoul of the "making red districts more competitive" problem that you identify; one could look at those 2008 primaries for a good example of what districts (not states in that case) do and don't become competitive.

        The best thing we have going for us, in that case, is the recent behavior of Reince Priebus, which may suffice to show malignant intent.

        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 08:24:08 PM PST

        [ Parent ]

      •  You could do all the GOTV you want in parts of PA (0+ / 0-)

        and it wouldn't turn our red districts blue -- there are just too many Republicans in those districts. The state legislature is always Republican controlled with occasional wins for a democratic governor only because it's a state-wide contest.

  •  The Repugs have been driven out of urban areas... (20+ / 0-)

    ...and they are trying to remain in power by giving rural areas in swing states a very unfair advantage.  I don't think there is another democracy where this is happening.

    It's a naked power grab.

    Thanks for giving us hope that we can stop them.

    The blue counties, where Obama got more votes, are mostly urban areas;

    2012electionmapbycountynyt

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Tue Jan 29, 2013 at 12:32:34 PM PST

  •  Im still not buying it (9+ / 0-)

    Any voter would have equal access to their fundamental right in their perfectly proportional share of electing the elector of their district.

    If this argument were true once could use these citations to challenge Maine and Nebraska's codified method of splitting electoral votes by congressional districts.

    That's all these states are seeking to do.  You could make somewhat of a nuanced argument about the differences between how they might or might not be appointing to two Electoral Votes that correspond to their state-wide Senator, but breaking up Electoral Vote assignments from an winner-take-all model to one that aligns perfectly with congressional districting is legal.

    Yes, these could face the same challenges of gerrymandering with regard to the 14th amendment.  But Florida already has to submit some of its district plans to the DOJ for pre-clearance under the VRA and not only have they been cleared as-in but there has never been a challenge alleging political gerrymandering.  TO now decide to use the same in-place model to distribute Electoral College votes under their explicit Article II right would be very very hard to successfully challenge in Federal Court.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Tue Jan 29, 2013 at 12:38:59 PM PST

    •  Read the diary again (5+ / 0-)

      Vote dilution can violate the equal protection  clause.  Full stop.  There are no real good ways to challenge it for legislative districts right now, based on the Supreme Court's decision.

      What these bills do is something new--using politically-gerrymandered legislative districts to fundamentally disenfranchise a majority of voters STATEWIDE.  That is a different issue than "disenfranchising" the democrats that happen to live in the single-member congressional districts, as noted above.  This law gives one favored, minority political party outsized power in electing the entire nation's president, not just a single district's representative.

      Moreover, no one has ever raised an EP challenge to the Nebraska scheme.  Just because they passed it, doesn't make it constitutional.  Moreover, it might be that the Nebraska and Maine plans are not really diluting people's votes to any degree.  Only one time has a district gone differently than the state as a whole (NE-02 in 2008) and the overtly discriminatory legislative intent is not present.

      •  okay.. I'll go one more round (4+ / 0-)

        Telling me to re-read your diary is hardly a compelling argument.

        This is specious at best.

        Vote dilution can violate the equal protection  clause.  Full stop.
        That is the one thing we can all agree on.  This isn't a new argument.  This is a legal fact.  I am not challenging this.  My point is that you can not magically parlay that truism into a compelling Constitutional argument that splitting EV's based on existing Congressional Districts is unconstitutional.  

        Your argument seems to rest on the fact that all these states have illegally gerrymandered districts constructed to explicitly dilute the vote which strikes me as a vivid case of Slothful Induction.

        A) If these districts are so woefully unconstitutional why haven't we seen a challenge to any of them anywhere?  Electoral College assignments aside, such supposedly unlawful disparity would be already in use to allow one party to unfairly control the House of Representatives.  

        B) If the current rigged system of hand-tailored congressional districts worked together to provide such an unassailable lock for Republican Majority thereby guaranteeing the Presidency, how is that the Democrats had a majority of the nation's 435 Congressional Districts as recently as January 3rd 2011 when Nancy Pelosi was Speaker?

        C) These laws and districts are all drafted by State legislatures.  Again, if the Republican party could work such an unconstitutional voter dilution conspiracy it would suggest they have some covertly crafted design to preserve their dominance in state-wide offices... and yet the Democrats have held a majority of the Senate (comprised of 100 explicitly state-wide elected officials) since January of 2007.

        Despite all of this and with a utter and complete lack of citations showing where a court would actively step in to override existing  district maps, you seem ever so confident that this whole system is unconstitutional NOW when the GOP is considering altering not the districts themselves (which routinely draws scrutiny) but just the apportionment of EV's based on current maps.

        Yet we have glaring affirmative evidence in two states that, regardless of results, have statutorily enacted this EXACT methodology without a single challenege much less a Constitutional finding against them.  Your argument to this is just an argumentum ad ignorantiam proposition that since no one has ever challenged it in the FORTY YEARS its been in place there is no way to say it IS in fact Constitutional?

        The only way I could see your point possibly being valid is some kind of reverse winner-take-all whereby a state would count up not the total votes but the number of congressional districts won by a candidate and who ever had the most districts would get ALL of their EVs including those representing districts the candidate lost.  This could be seen as disenfranchising the majority, but if each district gets the appropriate elector it chose by popular vote, I simply fail to either see a Constitutional issue or evidence whereby you have made anything close to a compelling argument supporting one.

        Красота спасет мир --F. Dostoevsky

        by Wisper on Tue Jan 29, 2013 at 02:55:26 PM PST

        [ Parent ]

        •  Massachusetts also used the CD method (0+ / 0-)

          back in the early 1800's

        •  This is a strawman. (3+ / 0-)
          Recommended by:
          chrismorgan, Larsstephens, chmood

          I make several points:

          (1) Equal protection principles are brought into play when a voting plan dilutes votes of a party.  This arises out of the gerrymander cases.  You seem to agree.

          (2) The fact that Congressional District challenges to political gerrymandering have failed, is that the Supreme Court (while finding these claims justiciable) cannot agree on a standard for remedying the alleged injury, and hence have never set that standard.

          (3) The current EV rigging scheme presents a question heretofore not answered by the Supreme Court, for any state: Does a state violate the equal protection clause when it adopts a plan to award electoral votes by reference to politically-gerrymandered legislative districts, where both the intent and effect is to reduce the voting power of the state's majority in selecting a President?

          I believe that the justiciability problem of legislative gerrymanders are not at issue.  Using the legislative districts as the basis to award the state's electoral votes is just a facade.   We know it's a facade because Reince Preibus and all these sponsors are admitting as much.  It's solely to elect Republican presidents contrary to the popular votes in specific states.  If that's unconstitutional vote dilution, then the remedy, and a simple one at that, is that one-person one vote is satisfied by the current electoral scheme.  The only issue is whether there is substantive vote dilution or not.  

          Maybe you disagree.  But there are smart lawyers who will disagree with you, and make their best arguments.

          •  I've met countless strawmen on the internet (1+ / 0-)
            Recommended by:
            Sparhawk

            I don't think Whisper erected one of them. IANAL but I do not see where he improperly re-stated your proposal and then attacked the false construction.

            •  uh (1+ / 0-)
              Recommended by:
              chmood

              "Your argument seems to rest on the fact that all these states have illegally gerrymandered districts constructed to explicitly dilute the vote which strikes me as a vivid case of Slothful Induction."  No, that's not what I was arguing.  So yes, it's a strawman.

              •  That is still not a strawman (1+ / 0-)
                Recommended by:
                Sparhawk

                A strawman would be something like "You said it's unconstitutional to gerrymander districts, but we all know that's not true".

                It seems to me that the two of you are arguing over wetehr or not the gerrymandering is so bad it rises to a level of abuse. And that strikes me as a disagreement of analysis over the crux of the matter.

                [shrug] It really does not matter much in the long run. I just think you and Whisper can make a more interesting debate than calling on strawmen. But I suspect the issue will will be won or lost in the political trenches. And here I see the GOP as vulnerable.

        •  If a state makes the weight of 4CDs population (0+ / 0-)

          less than 1/2 of the other CDs with the express intent of doing so and for the express purpose of reducing the weight of the 4CDs populations votes in the overall national election for President, is that not enough of a dilution for an e/p claim?  I believe it is more than enough.

          The differnece, as diarest says, is that these schemes are not writing on a blank slate.  They are changing existing law.  The intent and effect of that change is the only issue.

          Now, what is the difference bt reverse-winner-take-all and reverse-winner-take-almost-all?  For constitutional purposes there should be none.  The change causes a dilution (or burdens) the fundamental voting right of the 4 CDs population that is different only in degree and not kind in the 2.

      •  sure it can (1+ / 0-)
        Recommended by:
        Sparhawk

        of course it also cannot. Depends.

        You slough off the Nebraska/Maine question but it seems to me that those two states are clearly not equal in how they district.

        All of the blue votes in Nebraska are shoe-horned into one CD for example. While it's also true that the overall numbers favor the red votes, it still is set-up in a way to benefit one side.

        I doubt that the Supreme's would find either state's scheme unconstitutional. I doubt they'd even grant cert.

        Don't get me wrong, i think the scheme is wrong, it should be fought, but legislatively. I think folks use the word unconstitutional a heckuva lot more than is true or necessary.

        The Constitution gives states a lot of room. You make it seem like it's clear-cut unconstitutional, and I think that's going way too far...it isn't.

        •  No, I'm saying I think it is unconstitutional (1+ / 0-)
          Recommended by:
          Larsstephens

          And I laid out my argument as to why.  This, in contrast to a lot of people who just assume it's ok, either because of the Article II provision I cited at the very beginning, or "because Maine and Nebraska do it."

          Things aren't that simple, and Democrats should not concede the legality of these schemes without a fight.

          •  well that position (1+ / 0-)
            Recommended by:
            Sparhawk

            is intellectually more defensible.  I can't say there's anything wrong with that position, but my personal belief is that it's very likely constitutional, and I don't think opponents would be able to gather the necessary arguments to get cert granted at the Supremes unless the law were written in such a way that it's either facially unfair (highly unlikely), or that affects a group other than political parties (race, sex, etc).

  •  That said, though, why do Nebraska and Maine (5+ / 0-)

    have vote by CD?

    Do they have a justifiable case for vote by CD, or is the entire concept inherently flawed?

    We don't want our country back, we want our country FORWARD. --Eclectablog

    by Samer on Tue Jan 29, 2013 at 12:45:31 PM PST

    •  It's in the diary (2+ / 0-)
      Recommended by:
      Old Lefty, politicalmetrics

      They passed it, but it doesn't appear that they've been challenged constitutionally (and certainly not at the Supreme Court.)  

      Further,  the Nebraska and Maine plans might not really be diluting people's votes to any degree.  Only one time has a district gone differently than the state as a whole (NE-02 in 2008), in that case, it went AGAINST the long-standing political preference of the state's legislature as a whole, and I doubt that the plans were passed with the overtly discriminatory legislative intent as here.

      In short, I doubt Maine and Nebraska's legislators decided to split their electoral votes to dilute the votes of "urban" Democrats to favor Republicans.  So it wouldn't necessarily be the same analysis.

      •  Ironically... (0+ / 0-)

        when NE-02 went for President Obama in 2008, Republicans screamed bloody murder and wanted to change the sysytm back to winner-take-all.

      •  Also, there's a big difference bt a majority (Rs) (0+ / 0-)

        choosing to give away some of their advantage (the 1 CD in Ne or Me) and it acting to severly disadvantage the minority (by CD), which just happens to actually be the majority statewide.

        The shame is this is one of the things the 14th As P&I clause was intended to address before it got 'Slaughter(house)'ed.

  •  basing any part of your argument on Bush v Gore (5+ / 0-)

    is a non-starter

    Politics is like driving. To go backward put it in R. To go forward put it in D.
    Drop by The Grieving Room on Monday nights for support in dealing with grief.

    by TrueBlueMajority on Tue Jan 29, 2013 at 12:46:12 PM PST

    •  It's happened before. (1+ / 0-)
      Recommended by:
      nosleep4u

      Making arguments based on the arguments the court found compelling, even in a case that's not strictly precedent, is fair game.

      That's not even "gun control". It's more like "massacre control".

      by Inland on Tue Jan 29, 2013 at 12:54:15 PM PST

      [ Parent ]

    •  Hmm. No, it's really not. (2+ / 0-)
      Recommended by:
      burlydee, MKinTN

      The fact that a majority of the conservatives on the Supreme Court have recognized, based on other, long-standing precedent, that Equal Protection applies to a state's choice of voting plans for President means that Equal Protection doesn't apply to a state's choice of voting plans?

      If you say so.

    •  Bush v. Gore has been cited quite a bit (3+ / 0-)

      ...for something that was explicitly stated wasn't available as precedent.  The trick is that you don't actually say its precedent.  You just present a situation, describe its similarity to the Bush v. Gore situation, and note that in this similar circumstance, the Court found a certain way, therefore the reasonable expectation is that in the current case, the court will find in a similar manner.

      SCOTUS's efforts to make Bush v. Gore a one-and-done abomination didn't get the "one-and-done" part right at all (the other half, that succeeded).

      "All opinions are not equal. Some are a very great deal more robust, sophisticated and well supported in logic and argument than others." -Douglas Adams

      by Serpents Choice on Tue Jan 29, 2013 at 12:57:41 PM PST

      [ Parent ]

  •  Scalia said (7+ / 0-)

    in Bush v Gore that if an elected State Legislature decided that it wanted to enact a statute which was then signed by the Governor that they could choose the electors themselves, that was valid under the Constitution.

    So, according to him, if they still have Repub control, MI, WI, FL, VA, OH, PA could all say no popular vote in 2016, the legislature would assign the EVs any way they want.

    He of course was speaking for himself, but that is how radical Scalia is (and likely would find support from others).

    •  Scalia is just one Justice and I don't (0+ / 0-)

      know where the others stand.

      President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

      by Drdemocrat on Tue Jan 29, 2013 at 01:21:06 PM PST

      [ Parent ]

      •  Nor do I (0+ / 0-)

        But aren't we one Repub presidency from getting a couple clones for him on board?

        The scary thing is that Scalia might indeed have a Constitutional case for his POV.

        The point mentioned above that if these schemes are illegal, so is the Maine and Nebraska CD allocation - which to my knowledge haven't been challenged.

        I'd like to think courts might rule against blatant gamemanship like this, but unfortunately this diary doesn't convince me.

        •  What effect does A14, Sec. 2 have on this? (0+ / 0-)

          "... the right to vote at any election for the choice of electors for President and" VP...

          Personally, I believe this, and the clear intent of the 14th's Framers that newly enfranchised black had the right to elect Republicans President, means Scalia is full of it.  Imagine if a Confederacy state simply eliminated popular vote of Electors knowing the white majoirty would elect enough white State legislators to ensure all EVs went to the white voter's candidate.  Is there a doubt the Radical Republican courts would have struck that as unconstitutional in violation of A14, Sec.2?  So why not also now?  

          You could also make an argument under a 'living' Art. 4, Sec.4 (Republican form of government clause) but that'd likely be a stretch for this SCOTUS.

    •  Sort of addressed in the diary - (0+ / 0-)

      the point is, that if you're going to use a popular vote to determine which candidate wins, then you have to make the election fair. If you don't use a popular vote, well then, there's not much to be done about it.

      So it's constitutional to have an official's party select his appointed replacement if he resigns or dies in office (as happens with some state and local elections). But it would not be constitutional to weight voters from a particular party more heavily (i.e., give Democrats 2 votes for every 1 vote cast by a Republican) in an election.

      And I think if a state legislature adopted this "no vote" system for purely partisan reasons, or—even worse—in order to deny a minority the ability to vote in a presidential election, they might still be in violation of the constitution.

  •  Excellent (2+ / 0-)

    It is good to see that precedent suggests this is not legal.

    Which is probably why the GOP will wait until October 2016 to pass these laws ... in the middle of the night ... with reporters barred from attending.

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Tue Jan 29, 2013 at 12:47:50 PM PST

  •  I'd like to see discussion re Maine and Nebraska (2+ / 0-)
    Recommended by:
    Andrew F Cockburn, mconvente

    How do these two situations figure into the discussion and what do they portend as precedents?

    •  See my comments above (1+ / 0-)
      Recommended by:
      sfbob

      Maybe it would be; maybe not.  No one has challenged them, so far as I can see.  There are some differences; there might not be the discriminatory intent to entrench a minority in power, like the RNC's approved plans.

      I do think it's a problem to piggyback a statewide decision onto artificially-drawn legislative districts, regardless of the intent.

    •  Maine and Nebraska are key (2+ / 0-)
      Recommended by:
      Sparhawk, politicalmetrics

      Because according to progressives, assigning EVs per congressional district (via popular vote in each district) would be unconstitutional.

      But why?

      This diary argues that because districts are so gerrymandered that it would violate the equal protection clause.  But if that's so, how come current and past gerrymandered districts haven't been challenged?  OK, so they were in Texas a while ago with the whole Tom Delay fiasco, but what about now?  They are even more gerrymandered today (thank you 2010...)

      Because I see nothing inherently unconstitutional about assigning EVs per congressional district, as Nebraska and Maine does now.  Perhaps that stands because those two states have few districts, which limits gerrymandering.

      Basically, to be it seems that either EVs by district are Constitutional or they aren't, and that you can't forbid some states not to do so while permitting other states the ability to.  But I'm just a scientist, not a Constitutional scholar, so perhaps I'm mistaken.

      It is done. Four More Years.

      by mconvente on Tue Jan 29, 2013 at 01:12:15 PM PST

      [ Parent ]

      •  I'm guessing you must dismiss all the challenges (2+ / 0-)
        Recommended by:
        scrivener76, Anne Elk

        that arise, with frequency, whenever decennial redistricting occurs.

        Or at any other time for that matter.

        Then, once past that you have to ignore that the diary is not merely arguing that assignment based on congressional districts are troublesome because they are gerrtmandered. You can have gerrymandered districts so drawn as to make for a perfect apportionement of voters representation.

        That is not what typically occurs of course. But, the point remains that gerrymandering, in and of itself, is not the primary problem. (It is a problem of course).

        No, it is the assignment of electoral votes by congressional district which is the problem. That then becomes amplified when districts are so drawn as to provide for a majority of representatives (and hence electoral votes) coming from a party carrying a minority of the votes. It is at that point, as I read scrivener's argument, that one person - one vote is thrown out.

        If this should make for ME and NE needing to change their method of electoral vote apportionment, then so be it.

    •  It seems much harder (0+ / 0-)

      to make the case that Maine and Nebraska, with just 2 CDs each, can gerrymander enough to make a difference in a national election.

      •  Right. that assumes they're gerrymandered at all (0+ / 0-)

        Nebraska has one district with people in it (NE-02, which is all of Omaha plus rural areas around it) and NE-01 and NE-03 are completely rural.  It's not as if they are dividing Omaha in half to break up that Democratic powerhouse.  (Yes, they shifted the districts a bit to make NE-02 more Republican after 2010, but not by splitting the only Democratic area in half)

        Maine has two districts - one with all the cities and one with the wilderness areas.  And both districts have voted in Democrats for 16 years.  

        Not quite the same as a Pennsylvania, where a 55%-45% D vote translates to an 80%-20% Republican delegation.  

        Plus they probably lacked the discriminatory intent which may be relevant to Kennedy.

  •  Thanks: it's a lot more complicated than I thought (1+ / 0-)
    Recommended by:
    Mr MadAsHell

    I'm particularly intrigued by the fact that a court doesn't HAVE to redraw districts, something that's likely to get a demurral.  It just says that a statewide election is statewide; it can be proportional, or winner take all, or even in the legislature.  No messy redraw is needed, unlike with congressional districtcs.

    That's not even "gun control". It's more like "massacre control".

    by Inland on Tue Jan 29, 2013 at 12:52:06 PM PST

  •  but that presupposes (3+ / 0-)
    Recommended by:
    MPociask, mconvente, Sparhawk

    that the other side would continue to argue that there are statewide elections.

    In Maine and Nebraska, the statewide election is only for two electors, while the other are apportioned by Congressional District. It may be a technical distinction, but in these states, the rest of the electors are not chosen by a statewide election: they're chosen by an election in each Congressional District.

    All that's needed to rebut your argument is to claim that the elections are no longer statewide. Doing that is certainly constitutional, and obviates the claim you've made based on the Equal Protection Clause.

    oops. I hope the gate wasn't too expensive.

    Twitter: @DanteAtkins

    by Dante Atkins on Tue Jan 29, 2013 at 12:55:00 PM PST

    •  No, because vote dilution is unconstitutional (0+ / 0-)

      even district-by-district.  The problem in the Supreme Court is the ability to fairly fix the issue: how can you say what a fair "neutral" district line is?  Not an issue with the presidential vote.

      •  You're interpretation relies upon (1+ / 0-)
        Recommended by:
        Sparhawk

        courts finding that districts are so gerrymandered that they violate the Equal Protection clause.

        Versus the already-existent situation (i.e. - Maine and Nebraska) that allocates EVs differently than all of the other states, yet is still within Constitutional bounds.  And has gone on just fine.

        Good luck having that happen.

        It is done. Four More Years.

        by mconvente on Tue Jan 29, 2013 at 01:16:17 PM PST

        [ Parent ]

        •  You keep saying ME and NE are constitutional (1+ / 0-)
          Recommended by:
          burlydee

          Please point me to the case that says it.  This is a novel issue that has not been addressed by any appellate court.  If no one bothers to challenge a law, then we don't know if it's constitutional or not.  Most likely because it made no difference to any election since 1968 and 1980 when those states passed their laws.

          I also disagree that you have to find the districts unconstitutional for legislative purposes, to find that hijacking them to steal the national Presidential election is unconstitutional.  Apples and oranges.  

          There's no justiciability problem here.  So the Supreme Court would have to directly address the constitutional standard for political vote dilution claims.  And a situation that allows 40% of a state's voters to award 80% of a state's electoral votes will be hard to justify.  Upholding this plan would be Bush v. Gore II.  Does Roberts have the guts to do it?  Does Kennedy?  If this is passed, it will go to the Supreme Court.

          •  Based on your above comment (1+ / 0-)
            Recommended by:
            Sparhawk

            you seem to argue that how Maine and Nebraska do split EVs is unconstitutional.  But I don't see how that is so because no one is claiming that those districts are gerrymandered.  And that is your whole point as to why you think that split EV is unconstitutional.

            The language is pretty clear in the Constitution that state legislatures can allocate EVs as they please.  If they could allocate the EVs themselves in the past, how is that ever worse than everyone getting the opportunity to vote, as is today?

            It is done. Four More Years.

            by mconvente on Tue Jan 29, 2013 at 01:35:09 PM PST

            [ Parent ]

            •  No I don't argue that at all. (2+ / 0-)
              Recommended by:
              burlydee, nosleep4u

              Maine and Nebraska's systems may be constitutional, they may not.  I'm saying that they have not been the subject of a constitutional challenge, so the fact that they exist does not mean they are constitutional.  It means that no one has sued to overturn them.

              Further, there are key differences.  I'm not certain that either state could be considered politically gerrymandered.  Nebraska has only 3 congressional seats.  It has been firmly red forever, and has 3 Republican congressmen for the last 20 years, even in the Omaha seat that Obama won in 2008.  (The ONLY time an EV went the opposite way from the state as a whole.)  Maine has only two seats; one district contains most of the cities and the other is mostly rural, yet they have elected only Democrats to the House for 16 years.  Plus, I doubt very highly that their apportionment schemes were intended or have the effect of diluting the votes of Republican or Democratic voters, respectively.  Those are important factors for a vote-dilution claim.  

              Your big mistake is the one I point out at the very beginning, and it's the one that's absolutely wrong.  Yes, the Constitution allows states to choose how to allocate its electors.  But IF IT CHOOSES voting, then the equal protection clause will apply to that voting scheme.  It's been the law for 50+ years, and even the Bush v. Gore conservatives agree on that point.

              Maybe you think there's no EP violation here.  Fine.  But that's NOT because the constitution doesn't apply to electoral-vote allocation plans.  It'd be because this scheme does not violate the one-person, one-vote principal.  

              •  Another item if I may (1+ / 0-)
                Recommended by:
                scrivener76

                (and this was touched on up above)

                Courts sometimes admit there's an unfairness, yet find themselves unable to prescribe a remedy.

                Cases involving gerrymandering have already gone to SCOTUS and ended just like that, or partially like that. Which isn't really surprising -- laying out fair electoral maps is extremely hard.

                For the court to lay out a remedy for a gerrymander means either drawing a map themselves, or sending the original drawers back to make another map, or assigning an independent body ... blah blah blah .. it's a horrid mess. Courts hate even getting involved.

                But what Republicans are doing is tying a gerrymander to Electoral Vote division. It is the tie that can be challenged, and which has a simple remedy (i.e. remove it and go back to the usual winner-takes-all).

                That's a much simpler scenario. No mess, no fuss ... very easy for the courts to handle.

                "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

                by nosleep4u on Tue Jan 29, 2013 at 03:35:01 PM PST

                [ Parent ]

  •  If the legislature wants, the office of elector (3+ / 0-)
    Recommended by:
    mconvente, Sparhawk, Laurence Lewis

    can revert to being appointed by the legislature, or the governor, or the frigging pope in rome.

    Whether or not the CDs are Gerrymandered or not makes no difference.

    •  If they revert to legislative selection then yes (1+ / 0-)
      Recommended by:
      sweatyb

      But so long as they allow the people to vote, everyone's vote must count equally.

      •  But if the state said that the Pope got to pick (2+ / 0-)
        Recommended by:
        sweatyb, nosleep4u

        Then I think it would be unconstitutional under the Establishment Clause.  Again, they can pick the method, but the method selected can't violate the constitution.

      •  Any Idea if Virginia Needs DOJ Pre-clearance (0+ / 0-)

        before it can enact such a scheme to apportion electoral votes? Or does the Voting Rights Act not cover such situations?

        "The problem with posting quotes off the Internet is you never know if they're genuine."--Gen. George Washington at the Battle of Gettysburg, February 30, 1908

        by Aspe4 on Tue Jan 29, 2013 at 01:35:43 PM PST

        [ Parent ]

      •  But isn't the point... (0+ / 0-)

        ...and please correct me if I am wrong, that it's not so much the gerrymandered districts that makes the difference but which states decide to do this crap? If for example WI, MI, VA, OH, PA and FL all decided to divide their EV in a way that reflected the popular vote (in other words, a perfect un-gerrymandered, one-person-one-vote redistricting that sounds as though it would be constitutional), the result would be that, in those states where Obama got 100% of the EV despite getting only 51% of the popular vote, suddenly 49% of the EV from those states would go away. That would mean about a 280-258 EV race even when Obama won by 3.85% in the national PV. One more medium-sized state switching and the race would go to the GOP.

        That to me is the problem -- that states with slight Dem popular vote advantages in Presidential elections but with crazy GOP governors and legislatures -- you know, like WI, MI, VA, OH, PA and FL -- would game the system to level the playing field in the EC despite a major  PV disadvantage.

        And it would not require gerrymandering, constitutional or otherwise -- just the right states switching their systems.

        NEW PALINDROMIC METAPHOR MEANING TO MAKE A PREDICTION THAT IS ASTOUNDINGLY OFF TARGET: "Pull a Gallup!" As in: "The weatherman said yesterday would be sunny and mild, but we got a foot of snow! Boy, did he pull a Gallup!"

        by Obama Amabo on Tue Jan 29, 2013 at 02:09:42 PM PST

        [ Parent ]

        •  Right (0+ / 0-)

          The gerrymandered districts are just a facade, a vehicle for dressing up a bill that, in intent and effect, is designed to disenfranchise one political party's voters.  

          That's my point.  Essentially, the case law we have involves gerrymandered districts, and not electoral vote allocation.  But the case law shows that (1) political vote-dilution can violate equal protection, but (2) with respect to Congressional district line-drawing, there's no good way for courts to draw "fair" lines for single-member districts.

          (1) is the source of the challenge to the EV rigging scheme; this is an attempt by one party in power today to entrench themselves against the statewide national will; and (2) should not be a concern when here, the pre-existing popular statewide vote plan is a judicially managable, complete remedy if there is an equal protection violation.

  •  Bush v. Gore is NOT precedent (2+ / 0-)
    Recommended by:
    Drdemocrat, Laurence Lewis
    "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
    Direct from the majority opinion.
    •  That's for the core holding re: county-specific (1+ / 0-)
      Recommended by:
      Anne Elk

      standards.  The part I'm citing is in the background section, citing well-established 1960s Warren Court decisions.  And I cite those background cases, too.

      There is 0% chance that the Supreme Court will hold that the Constitutional provision allowing states to decide how to appoint electors is completely immune to the rest of the constitution.  That's a fallacy, and it is not one that any Democrat should just accept at face value.  

      Bottom line, if the state says "the people can vote for President," then the voting methods have to comport with Equal Protection.  If you want to argue with the after-the-jump stuff, that these plans do not unconstitutionally dilute voting rights, then fine.  But before the jump is about as unambiguous as the law's going to get.

    •  Whether or not Bush v. Gore is precedent (1+ / 0-)
      Recommended by:
      scrivener76

      isn't something that gets decided by the person doing the ruling.  That is one of the many reasons Bush v. Gore is a travesty of justice.  They attempt to place limiting language on something that can't be limited.  They are so brazen and prideful not only in their decision, but in their inability to grasp that future attorneys and judges would find loopholes in their logic.  

      Since there is no bright line ruling of what precedent is, 5 people can't just declare a ruling isn't precedent, but it is law.  

      Indeed, the question of whether Bush v. Gore is good law has become the focus – even the focal point – of a recent 6th circuit decision, Stewart v. Blackwell.5 In that case, the decision turned partly on whether or not to treat Bush v. Gore as a precedent. The majority, seeing Bush v. Gore as the last in a long line of equal protection case, saw the court’s decision in Bush as binding precedent. Even if the reasoning was murky in that case, the court concluded, it still was obliged to follow it.6 The dissent disagreed, citing both the limiting language and also the fact that the Court despite having
      http://digitalcommons.law.yale.edu/...

      The case is being cited.  Its being used as precedent. The Supreme Ct. should have known this was the inevitable result when they released the decision.  No limiting language could stop it.  

      The question will likely return to the Supreme Ct. at some point.  

  •  I assumed there would be legal challenges... (2+ / 0-)
    Recommended by:
    PipeUp, nosleep4u

    ... to these heinous attempts to steal the next POTUS election, but did not know what precedents or rules would apply. Thank you for breaking it down so clearly and with so much detail.

    Progress 365 not just a slogan a goal - 300 progressive seats in the House and 65 progressive seats in the Senate.

    by jusjtim35 on Tue Jan 29, 2013 at 01:24:00 PM PST

  •  There is ample evidence (0+ / 0-)

    that the congressional districts have been drawn to disenfranchise minorities. But in the end this would all end up in SCOTUS. Now, where will that end up?

  •  But - didn't the SC put a clause into their (0+ / 0-)

    decision that says that this ruling can not be used as precedent for any other decision?

    Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
    So, doesn't this mean that whatever BS they spewed to get their man in the White House was counter to the actual protection clause?

    When collective bargaining is outlawed, only outlaws will have collective bargaining.

    My political compass: - 8.38,-6.97

    by pucklady on Tue Jan 29, 2013 at 01:30:51 PM PST

    •  To put it simply - the Supreme Ct. can't put (1+ / 0-)
      Recommended by:
      pucklady

      a clause into a decision that sets the decision is not binding precedent.  What is or isn't relevant precedent is always in the hands of the deciding judge(s).  Pretending that there are some bright light rules to precedent is one of the many failings of Bush v. Gore.  

    •  Then cite the cases SCOTUS cited (1+ / 0-)
      Recommended by:
      pucklady

      The Supreme Court was trying to stop the lower courts from addressing piddly, county-by-county challenges to vote-counting standards in cases where it "didn't matter" in the years to come after Bush v. Gore.  That is, "you are not bound by this ruling and should not apply it."

      That's a bullshit move, no doubt.  But it does not mean (1) you cannot cite it as persuasive authority (which, in reality, all precedent really is for SCOTUS since it can change the law if it wants) or (2) that you cannot cite the authorities IT cited for the exact same principle.  And like I point out right after the Bush v. Gore cite, the Supreme Court wasn't making new law there.  It was restating old law.

  •  The founding fathers were idiots n/t (1+ / 0-)
    Recommended by:
    Clem Yeobright

    The next Noah will work a short shift. - Charles Bowden

    by Scott in NAZ on Tue Jan 29, 2013 at 01:34:07 PM PST

  •  Thank you for this. (3+ / 0-)
    Recommended by:
    scrivener76, burlydee, Old Lefty

    I am highly, highly suspect that any of the proposed changes to the way these states choose their electors will take effect, either because sufficient numbers of Republicans in these states back away from the changes or, if any changes are enacted, the changes are struck down in court.

    As you note, there is a strong equal protection argument for why these proposed changes will not withstand a constitutional challenge.  Also, and maybe I'm in the minority here: I think enough Republicans will realize these changes will not necessary be to their advantage in the long run.  Not because of the potential electoral backlash (I'm still waiting for the backlash from voter suppression, vaginal probes, etc.) but because this is a severe case of fighting the last battle.  

    First, while these schemes would have made for closer elections in 2008 and 2012, they would not have resulted in a Republican victory in either year.  In 2012, Obama won the electoral college 332-206, meaning Romney needed to take 65 votes from Obama to hit 271.  MI, OH, PA, VA and WI account for 77 electoral votes.  Allocating based on congressional district would not have given Romney the win; he would have needed to win a few of these states outright and/or won another state or two (e.g., Iowa, Colorado).  And given the right candidates and conditions, Republicans are in no way, shape or form out of the running to win any of these states outright.  Pennsylvania and Michigan have been nice and blue for a while, but they are not New York and Illinois.  Splitting the votes in these states does not make the 2016 election a slam dunk for Republicans, and they would risk losing precious electoral votes should their candidate win any of these states outright.

    Second, after two more decades of demographic development, do you think Republicans, if they in any way resemble their current party, are ever going to be able to sniff the White House without winning all of the electoral votes from the whiter-than-average states in the upper Midwest?  Splitting the votes in these states will be deadly for the Republicans in 2030, when Texas will be in play and Arizona will be solid blue.

    •  self-serving Repubs will be to our advantage. (1+ / 0-)
      Recommended by:
      VirginiaBlue

      This nationalizes every congressional race in these states.  These lazy fat cats who get reelected every year will face an entirely new election landscape that could put their individual sorry asses in jeopardy.  

      Also, I agree with Steve Benen.  We made our voices heard on this - sunlight is the best disinfectant.  We're fighting often, we're fighting smart and we're fighting for the long haul.  We have a long way to go before we match this winning combination that Republicans have used for 30 years but we're making significant progress.  

  •  Snyder is now coming out AGAINST (1+ / 0-)
    Recommended by:
    VirginiaBlue

    the vote rigging plan.

    http://www.bloomberg.com/...

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Tue Jan 29, 2013 at 02:06:35 PM PST

  •  Makes sense. Too bad that's not enough. (1+ / 0-)
    Recommended by:
    shmuelman

    "Sense" is no longer a factor in either legislation or court decisions. The situation has almost completely devolved into a pure dance of power.

    I am become Man, the destroyer of worlds

    by tle on Tue Jan 29, 2013 at 02:15:24 PM PST

  •  Don't be a sap... Time to take back the state (2+ / 0-)
    Recommended by:
    saluda, VirginiaBlue

    legislatures.

    "You can die for Freedom, you just can't exercise it"

    by shmuelman on Tue Jan 29, 2013 at 02:23:01 PM PST

  •  Thanks for this diary. (1+ / 0-)
    Recommended by:
    Old Lefty

    The Republican conspiracies to rig the vote violate both the Constitution and the years of case law relating to one man one vote and both the spirit and letter of the Voting Rights Act.

    Why the fucking Department of Justice is not on this like stink on shit remains a mystery to me.

    I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

    by bobdevo on Tue Jan 29, 2013 at 02:29:26 PM PST

    •  If Obama comes out against it (1+ / 0-)
      Recommended by:
      Old Lefty

      every one of these states will pass it.  He's doing the smart thing here.  Let some sunshine in, get some press on how blatantly undemocratic these bills are, and keep Obama out of it.

      So far, so good.  Virginia killed the bill today in committee, 11-4 (check ThinkProgress).  Michigan's governor and senate majority leader have come out against it.  Pennsylvania didn't pass it last time and it's got a less Republican legislature than it did before.

      The threat of lawsuits should not come until the deed is almost done.  Right now, keep exposing these bastards and hope that the few Republicans with a sense of shame and/or political self-preservation kill these bills.

      •  Ahhh, well reasoned dialogue (1+ / 0-)
        Recommended by:
        Anne Elk

        Both the Diary and the Dialogue here are a model of the best this community has to offer (see subject line above); substance, thrust and parry, well informed, illuminating and without rancor.

        Well done all y'all, encore!

        Just getting a handle on the knobs and dials.... Hey, don't touch that!

        by Old Lefty on Tue Jan 29, 2013 at 02:57:38 PM PST

        [ Parent ]

      •  And it won't come up in Ohio because (0+ / 0-)

        it would guarantee every statewide Republican would be swept out of office next year.

        Jon Husted is a dick.

        by anastasia p on Tue Jan 29, 2013 at 09:19:08 PM PST

        [ Parent ]

    •  Is it time? Doesn't an election (0+ / 0-)

      have to occur and [damages] actual disenfranchisement have to occur before a case can be filed? Or can one or many be filed in anticipation of an impending mess?

      If cases can be filed before, then we should go after Maine and Nebraska and any state which puts forth this crap. Full court press. It's what the Republicans would do. They break the law then go to court all of the time.

  •  We all know Walker Gerrymanered (0+ / 0-)

    Wisconsin, using tax dollars to higher high priced attorneys to draw a map up behind closed doors...and they friggen got away with it.

    We should be all over that!

    I have decided to stick with love. Hate is too great a burden to bear. Martin Luther King, Jr.

    by cyeko on Tue Jan 29, 2013 at 03:06:48 PM PST

  •  Outstanding Legal Analysis. (0+ / 0-)

    Thank You.

    If Not Us, Who,..... If Not Now, When?

    by VirginiaBlue on Tue Jan 29, 2013 at 03:14:01 PM PST

  •  It would also seem that any drawing (0+ / 0-)

    of political boundaries designed to produce a structured outcome would be unconstitutional for all the reasons you have pointed out, if the intent was to dilute the political power of a specific group of voters, right? So, for example, a State electoral commission slices a town in two solely to dilute the votes of a conservative rural county. Or, an ethnic minority is squeezed into a single district in order to make 4 surrounding districts much safer for the incumbents. The first might be actionable, depending, but the second clearly would be. Yes?

    For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

    by Anne Elk on Tue Jan 29, 2013 at 03:20:57 PM PST

  •  Excellent diary (0+ / 0-)

    Thank you so much for this hard work!

  •  What about PA's proposed proportional (0+ / 0-)

    allocation?

    One plan PA is considering would allocate the house based electoral votes proportionally based on the proportion of the state wide vote each candidate gets. The 2 remaining (senatorial based) votes would be given to the state wide winner. The problem with that plan is that it sounds quite reasonable but of course if it were only done in state the Democrats win narrowly and never in the states the Republicans win narrowly it would only benefit the Republicans.  Will it be possible to challenge this on the above grounds as looking at PA in isolation it does actually sound like a fair way to allocate the electors? Perhaps the blatant comment by leaders of the GOP suggesting that legislatures in such states consider such plans might make clear to the courts the agenda here?

    As an aside, I personally think such a plan enacted nationwide might be better than a national popular vote in electing a president. All areas would become potentially important and it would hopefully track the national popular vote better than the current electoral college. However, differences in voting systems leading to differing voter turnouts would not be an issue nor would there be an incentive to run up the score in areas controlled by one party.

    Of course such a plan should not start with PA and other similar Democratically leaning states alone.

    •  It was. But not anymore. They're pushing CD plan (1+ / 0-)
      Recommended by:
      scotths

      But, I do think that the older plan might have a better chance against an EP challenge.  Everyone's statewide vote would count equally under such a scheme, in direct proportion to the actual vote.  So 55% of the voters would have 55% of the Presidential electoral vote allocation.

      To win here, I think you'd have to argue that the intent is still vote dilution, but that assumes that the Constitution REQUIRES the statewide popular vote winner win 100% of the electoral vote.  That's certainly the first-past-the-post system we have here, but other democracies have proportional voting for their legislature/executive and it's not undemocratic.  Just different.

      Politically, of course, while the proportional vote plan helps Republicans, it doesn't outright steal a majority of the vote, so that won't work for them.  It's much easier to conclude, IMO, that an anti-majoritarian scheme that gives a substantial minority unequal voting power (35% of rural voters get to choose 80% of the electoral votes, every time) is unconstitutional and some other plan is needed.

  •  I sure hope you are right (0+ / 0-)

    I find this whole idea repugnant. If Dems were sleazy like this the screeching would be deafening.

    the future begins

    by zozie on Tue Jan 29, 2013 at 04:19:11 PM PST

  •  I say let's do it BUT (0+ / 0-)

    not just for Virginia, Wisconsin, Pennsylvania, Ohio, and Michigan.  Do it for ALL the states.  In this way Obama would have still one and in the future more presidents will be Democrats!

    "Attempting to debate with a person who has abandoned reason is like giving medicine to the dead." - Thomas Paine

    by liberalconservative on Tue Jan 29, 2013 at 04:31:47 PM PST

  •  I'm confused (1+ / 0-)
    Recommended by:
    Sparhawk

    If Nebraska's and Maine's existing systems cannot said to be constitutional because they have never been challenged in court, then how can you declare them to be unconstitutional. Even if you are a JSCOTUS you are not all seven of them.

    Sorry, today I have to go with the notion this stuff is legal, based on the observation two states have done this.

    •  Let me clarify for you. (0+ / 0-)

      A lot of people say "of course this is constitutional, Maine and Nebraska do it."  But laws are not "pre-cleared" for constitutionality before they are allowed to go into effect.   If a state passes a law, it goes into effect.  Period.  If someone is hurt by it, they can bring a lawsuit and claim it is unconstitutional.  DOMA, for instance, was the law and is in effect, and will be until and unless the Supreme Court finds it unconstitutional.  The fact that it stood for 10+ years without legal challenge does not mean that it's constitutional.  It just means no court had addressed the issue.

      Here, for whatever reason (but probably because the Maine and Nebraska laws have never had any effect or likely effect on the outcome of a Presidential race) no one has ever bothered to sue Maine or Nebraska to challenge their electoral-vote statute.  So we just don't know if those states' plans are constitutional or not; no one's asked a Court to answer the question.  They're the law now, and they're applied now, and will be until and unless a lawsuit is brought and a Court strikes them down.  Until then, who knows if they pass equal protection muster?

      I'm only saying that the Republican schemes for VA, MI and the other states are arguably unconstitutional due to their intent and effect of diluting the vote of the majority of those states' voters.  I'm not opining on the Nebraska and Maine plans, which do not appear to have the same intent behind them or diluting effect.  All I'm saying is that if you have a law that has never been challenged, the mere existence of the law is not an argument for its constitutionality.  

      •  But this all flies in the face of your title (1+ / 0-)
        Recommended by:
        Sparhawk

        You are telling your readers the GOP proposal is unconstitutional. If an existing law might be one day ruled unconstitutional, is it not prudent to think one day a blogger's opinion might be refuted by the actual SCOTUS?

        Myself, I am going to assume the GOP ploy is constitutional and politic to head it off. That is the best mindset to advertise IMO.

        •  Yes, I think it's unconstitutional (0+ / 0-)

          Of course it's my opinion.  It's a legal argument.  I'm not a judge.  I think most people understand that, without the need to have wishy-washy titles.  Your hostility is really bizarre.  Where is it written that you can't politically fight something while also preparing to argue that a law is illegal?

  •  To go from theory to the political. (2+ / 0-)
    Recommended by:
    scrivener76, Sister Havana

    I can't see Kennedy, as wackily unpredictable as he is at times, going along with such a blatantly undemocratic con job, especially given what he's said in EP voting cases before.  And even Roberts might go along with the obviously democratic alternative out of the same desire to avoid the court looking too obviously partisan that led him to find a way to uphold the Obamacare individual mandate.

    P.S.  GREAT diary!  Thank you so much. And you have extraordinary patience.

    •  Yep. This case would be Bush v. Gore on steroids (1+ / 0-)
      Recommended by:
      marsanges

      A 5-4 Republican majority voting that Republican state legislatures may openly rig the electoral college vote in only Democratic states, in such a way that Democrats have no plausible means for winning presidential elections, even with 55% or more of the popular vote?  A state of affairs that would last for at least the next 2 presidential cycles (2016 and 2020) until redistricting?  And which would ensure that the aging five-member Supreme Court majority could retire and be replaced by Republicans at any point between when the decision is handed down and January 2021?

      That kind of a ruling would be far more damaging than Bush v. Gore.  Roberts is very big on institutional credibility.  I think there would also be a high degree of social unrest from such a decision.  This is the kind of thing tinpot dictators do--not the United States of America.  

  •  Thanks, scrivener76, I sleep better tonight! n/t (0+ / 0-)
  •  Thanks for posting this. I made the same argument (0+ / 0-)

    s to teacherken but didn't have the time to research the caselaw.  I completely agree the scheme seems to violation e/p both in intent and effect.

    Query: you considered the effect of the language in A.14 Sec. 2 which imo establishes (recognizes really but that's another argument) "the right to vote... [for] electors for" P/VP ?

    •  I don't think so (0+ / 0-)

      That language just says that if 21 year old males are not given the right to vote, then states lose population for purposes of allocating Representatives, based on the amount of disenfranchised voters.  

      •  Ah but that's the remedy for denying vote for (0+ / 0-)

        inter alia Electors for P/VP by its express terms.  

        Hard to have a constitutional remedy for a violation if you don't have a constitution right.  IOW, the fact that there's a remedy is pretty strong evidence the 14th A Framers saw and intended each person* has a right to vote for all federal offices, regardless of what State's did (could do by the pre-Civil War Constitution's terms, i.e., Art. 2, sec. 1, cl.2), no?

        U have to remember, the idea here was to ensure the Confederacy state's did not suddenly reverse the Civil War result by seziing the federal gov thru elections for federal offices in which newly freed blacks were disenfranchised.
        __
        * BTW, the 'men' language is anachronistic and modified to persons over 18 by Amends. 19,  23 & 26, which of course post-date it.

  •  Perfect. Beautiful. Spot-On! <n/t> (0+ / 0-)

    The Meek Shall Inherit NOTHING -- Frank Zappa

    by LickBush on Tue Jan 29, 2013 at 05:43:40 PM PST

  •  I believe the courts should rule (0+ / 0-)

    in the same general way that the SCOTUS ruled in Brown v Board of Education. That court ruled that separate was inherently unequal. Today's court could simply rule that partisan redistricting inherently violates the equal protection clause in the 14th amendment. This is perfectly justiciable (sp?), since a very reasonable alternative exists, in fact at least two reasonable alternatives. First, software could be employed to divide the state into districts that adhere to objective criteria. Second, a non-partisan body could redraw the districts without recourse to demographic data.

    Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

    by Tim DeLaney on Tue Jan 29, 2013 at 06:16:24 PM PST

  •  Bush v. Gore comes back to bite (1+ / 0-)
    Recommended by:
    bontemps2012
  •  It's a Good Argument, But (0+ / 0-)

    The Electoral College system does not yield one-human-one-vote. I did not get the same weight for my vote in California as I get in Washington.

    But, I wouldn't put too much stock in Article II, Section 1, Clause 2, either. What it literally says is that legislatures determine the manner in which that state appoints its electors. It does not say how they must vote.

    By default how they vote is according to the will of the people in the state. The people in a state can direct that the votes of those electors all go to one person or be apportioned according to whatever scheme they devise. We just assume that when the legislature determines, for example, that all the votes will go to the person with the highest electoral totals for that office in the state that all the electors will vote that way (except in ME and NE, where they've decided to apportion them).

    In practical terms, I think this means that a state initiative in Virginia or Ohio, for example, would override what the legislature says. We should be working on those ballot initiatives right now.

    What I'd suggest they say is that the state will maintain winner-take-all until such time as a sufficient number of states have agreed to use the national winner of the popular vote to determine the votes of their electors. This would more rapidly result in the elimination of the Electoral College as the mechanism for determining presidential elections. It would give impetus to the system of the biggest states giving their votes to the national winner, and in that way we could use the momentum the Republicans have created to get rid of it, once and for all.

  •  Great Analysis! (0+ / 0-)

    This is the best analysis on this topic I have seen. You have noticed an issue no one else has picked up.

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