In researching the history of the Electoral College, I came across something interesting which could have application in terms of Voter ID laws as well as gerrymandering. Now, I am NOT a lawyer, but I did take a few courses as a Paralegal/Poli-Sci double-major before being forced to drop out over the stupid bathroom issue….five days after Matt Shepard was killed.
Follow along with me...and I think that we have been missing the tool we actually need to fight both practices, which we all know are not-so-thinly-veiled attempts to disenfranchise voters who belong to demographic groups that do not traditionally tend to vote GOP...like the elderly, blacks, poor, women, LGBT, other POC’s…
So before I go further, I am going to quote-box the premise...so that everything that follows has context:
Section 2 of the Fourteenth Amendment allows for a state’s representation in the House of Representatives to be reduced if a state unconstitutionally denies people the right to vote. The reduction is in keeping with the proportion of people denied a vote. This amendment refers to “the right to vote at any election for the choice of electors for President and Vice President of the United States” among other elections, the only place in the Constitution mentioning electors being selected by popular vote.
On May 8, 1866, during a debate on the Fourteenth Amendment, Thaddeus Stevens, the leader of the Republicans in the House of Representatives, delivered a speech on the amendment’s intent. Regarding Section 2, he said:
The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.
I should note that Federal law (2 U.S.C. § 6) implements Section 2’s mandate.
OK...so, is everyone still with me? I know it’s boring legal-schmeagle stuff, right...but, try not to worry too much abut the above, because now I will provide some context and premise to the application of this, and I wanted the context to be front and center.
Obviously, as being it is part of the Fourteenth Amendment, given the time and context into which this passed into law, it is clear the original intent...was to prevent the Southern states, who had been “in rebellion to the United States” from deliberately disenfranchising newly-freed and male former slaves.
2 U.S.C. § 6 — even clearly states it refers, at the time of it’s passage into the USC, to male inhabitants, 21 years of age or older who is a citizen.
I am thinking that any reasonable Court today, would interpret this as any inhabitant of a State, male or female, and 18 years or older, as suffrage has expanded to 18 year olds and women since the time of the original was adopted into the U.S.C.
Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.
(R.S. § 22.)
I am thinking this could have implications today, and uses today, in dealing with problems not foreseen when such was adopted — namely Voter ID laws and gerrymandering...both of which are thinly-veiled attempts by those currently in power (mostly GOP) to cause the disenfranchisement of those least likely to vote for those currently in power.
Additionally, it could have some implication in the Electoral College itself. I will address each section of this. Let’s start with the Electoral College…
Electoral College Implications
Originally, most states apportioned their respective EV’s by district, or by the state legislature. Of course, with gerrymandering today, the results of EC by District would not be good. For this, I will example my own state of NC, which is actually fairly purple (we voted for Obama in ‘08 — barely for Romney in ‘12, and for Trump by just 3 percent in ‘16 — while at the same time tossing an incumbent GOP governor)
Now, in ‘08 we did not have the maps we do today, then we had a representation by 7D and 6R’s in the House. A reasonable representation given the actual registration of NC voters (and if it had been 7R to 6D I’d still say that was fairly reasonable representation...we are that purple here)
But imagine if we had today’s NC maps in ‘08 and we voted EV’s by District, as was customary in the beginning of the Republic? With our 10-3 split, Obama would have won the popular vote and received only 5 of NC’s 15 EV’s, the other 10 would have gone to McCain/Palin.
Winner-take-all was not standard until the 1830’s. Pennsylvania and Maryland were the first states to award EV’s on a winner-take-all basis, in order, at the time, to counter Virginia, a slave state, which had fully 25 percent of the EV’s needed to win a national election. Pennsylvania, especially, sought to counter this advantage of Virginia, by adopting winner-take-all — and by 1836, all other states had done the same thing, and EV by District was no longer done — winner-take-all became the way.
In the winner-take all scenario, D’s in Texas are effectively disenfranchised, as are R’s in CA….to say nothing of the other often-used argument against the EC as currently constituted, that a voter in Alaska, with 3 EV’s spread over its population...gives an Alaska voter nearly 3 times the voice of a California voter with 55 EV’s spread over its population, thus violating the premise of “one person, one vote”
There’s two arguments that could cause us to have to re-visit the Electoral College, were we to apply Section 2 of the Fourteenth Amendment to the issue, and successfully frame that argument. As we established above, going back to a vote-by-District is not a viable fix — though Maine and Nebraska currently do utilize a vote-by-District formula, but these are not exactly states that are easily gerrymandered, as North Carolina and Wisconsin are, and Pennsylvania was.
That takes us into the next area of disenfranchisement…
Gerrymandering Implications
As it stands now, many states are gerrymandered. California recently adopted redistricting reform. Pennsylvania was recently redistricted, as was my own state of North Carolina, though the NC redistrict solved no actual problem other than the deliberate racial gerrymander of the district we called “the Snake” down here.
The NC-GOP, which holds a Supermajority in both Chambers of our State Legislature, due to gerrymandering, drew new maps in 2011, that changed NC from a 7D — 6R representation in the US House...to a 10R — 3D representation. And even said, at the time, that the only reason it was now 10R — 3D was that they could not find a way to make it 11R — 2D.
Clearly, gerrymandering represents an active intent to render the votes of many to be ineffective (effectively disenfranchising them) and making it impossible in up to 10 Districts, for Democrats to have a vote that actually counts, thus a voice in their representation.
The Fourteenth Amendment argument is tougher here, as people are not denied the ability to actually cast a ballot...but they are clearly disenfranchised all the same — and this is the stated intent of the NC-GOP...thus there could be a use for a modern interpretation of the Fourteenth Amendment here.
Of course, Voter ID is all the rage, and even now there is a fight to get a Constitutional Amendment on our ballot to institute Voter ID in NC...so we need to look now at this third area of disenfranchisement which is intended to cause disenfranchisement, as I will demonstrate.
Voter ID Laws — Intent and Implications
Of course we all knew that preventing in-person voter fraud, was never the reason for Voter ID laws. It’s been shown that there are stunningly few proved examples of this occurring, and never enough to actually affect the outcome of any election. It’s about the GOP trying to block otherwise-legal voters from casting a ballot at all, thus making this an excellent case for possible Fourteenth Amendment litigation.
In 2012, then-Speaker of the Pennsylvania House of Representatives, Mike Turzai (GOP) let the cat out of the bag, when he said, quote-unquote “Voter ID, which will deliver Pennsylvania’s 20 electoral votes to Governor Romney...done.” Clearly, the intent was stated to deliberately deny legal voters access to the polls if they belonged to a demographic group that traditionally did not vote GOP.
There is also a Twenty-Fourth Amendment argument here in that it is an illegal end-run around illegal poll taxes, because obtaining acceptable ID is not free, therefore it costs you money to actually vote….but let’s just stick to the Fourteenth...because the Fourteenth also provides for penalties for such activity as attempting to or actually denying otherwise legal voters their rights to vote.
NOTE: the Twenty-Fourth Amendment argument would be a good one, because the Fourteenth states “unconstitutionally denies people the right to vote.”
Clearly, an end-run around the Twenty-Fourth Amendment’s ban on poll taxes...would constitute the action of “unconstitutionally denying people the right to vote.”
Now, if the INTENT was merely to stop nearly non-existent in-person voter fraud, it seems to me the DMV’s these days digitize pictures and put them on DL’s and State-Issued ID cards...thus this digitized photo could also be downloaded and placed on a Voter Registration card...and free pictures be taken at any DMV or post office or Board of Election — for those who possess neither DL or State ID, yet still legally register to vote...through the use of a birth certificate and Census Report and/or current utility bill proving residence address.
The problem, of course, is that this is logical, and it would work...and it would not serve the true and nefarious purpose of these kinds of laws.
See the following article and also this rating of MOSTLY FALSE to a claim that Voter ID does not suppress turnout.
So Now What??
What if a legal argument could be framed that the Electoral College, and particularly winner-takes-all, or even vote-by-District in this age of computer-aided gerrymandering — served to deprive many of their right to vote, by effectively denying them the right to cast a ballot that matters...or that it violates the “one-person-one-vote” premise? And the Fourteenth Amendment could be applied?
States could be compelled to, by court ruling, move to a popular vote only, entirely getting rid of the EC...or move to a vote by proportion of actual votes cast (not by District) — or a vote-by-District, after moving to a nonpartisan redistricting reform system, like California.
What if a legal argument could be framed that partisan gerrymandering served to deprive many of their right to cast an effective vote (thus disenfranchising them) — and what if a legal argument could be framed in the same manner — addressing so-called Voter ID laws? And the Fourteenth Amendment could be applied?
Let’s take, for example, my own state of NC (15 EV’s, 13 Representatives.) I will use North Carolina here, because, as a resident of North Carolina and a Precinct Chair, I have ready access to the sort of information I need to make a case for the number of people thus affected.
As I already stated, we are actually a fairly purple state, believe it or not — those looking at us from outside NC may not believe it, but here are some figures of current voter registration, statewide, current up to this month.
Now scroll to the bottom. There are 2.66 million registered D’s in NC, versus about 2.09 million registered R’s and 2.19 million registered as unaffiliated/Independent. Additionally, some 36,000 are registered with minor Parties.
There are approximately 6.98 million registered voters, total in NC — a state with a population very close to 10 million. We are slightly over 10 million.
For this exercise, I want to focus only on gerrymandering and Voter ID disenfranchisement. Of course a good many of the registered Dems in NC live in Durham County, Mecklenburg County or Wake County (as I do) — and most of those Counties are within those aforementioned three Democratic Districts. Between the three, then, there’s 700,000 registered Dems, basically not disenfranchised by the current gerrymander, roughly, and about 2 million who are.
High concentration of Democrats also are in Cumberland, Forsyth, and Guilford Counties...and in other counties, like Edgecombe, Orange and Pitt, Democrats vastly outnumber Republicans, in terms of actual registered voters. Even Anson County...Dems outnumber Republicans and Unaffiliated combined. But, because of gerrymandering, the practice of “packing” as done around Wake, Durham, and Mecklenburg….and “cracking” as done around Cumberland, Forsyth and Guilford — about 2 million Democrats are effectively denied any say in their representation in the US House of Representatives.
What if a Fourteenth Amendment argument could be made that 2 million were disenfranchised in that alone, to say nothing of the Republicans who live in heavy-Dem Districts — plus the estimated 218,000 disenfranchised estimated by Voter ID..we could say that nearly 25 percent of the entire 10 million population of NC were improperly disenfranchised under the Fourteenth Amendment and
2 U.S. Code § 6?? What if...as a result, North Carolina were to be reduced from 13 Representatives to 10 Representatives (close to proportional) and in the process also go from 15 EV’s to 12 EV’s?
The Upshot — Wrapping It All Together
Of course, any such ruling would eventually go all the way to SCOTUS, so the chances of that actually happening are, of course, nil. But what if a good, effective legal argument that would win could be made, and then presented to the NC General Assembly, quietly, like a kettle of rotten fish?
Would the state not want to avoid the legal fees...to say nothing of the bad press and stigma that would come with such an action taken public?? Would, then, the State Legislature sing a different tune, and would we then get some fair, non-partisan redistricting reform...and either no Voter ID law...or pictures placed on actual Registration cards, with free pictures offered to all who did not already have a digitized photo on file with the DMV?
So maybe we are going about fighting this stuff the wrong way, and using the wrong tools? Perhaps we need to sharpen up a Fourteenth Amendment argument against the practices of effective, virtual disenfranchisement that gerrymandering and Voter ID laws represent?
Discussion?
Remember, I am NOT a lawyer, thus certainly, I do not know if the above framing would represent any kind of actionable case. I am just spitballing ideas here and from a layman’s point of view, as best I can interpret the law’s intent and effect...and the intent and effect of the practice of virtual disenfranchisement — where you DO get to cast a ballot...but one guaranteed to not actually matter.
Any actual lawyers, I’d love some input..all other Kossacks, just some discussion about the above.