The basic question in the case, Evenwel v. Abbott, No. 14-940, is who must be counted in drawing voting districts: all residents or just eligible voters?So there are 2 theories of which people to count as population proportionate districts are drawn. Think it through: 1. Which party is advantaged by each theory? 2. Which approach is better as a matter of nonpartisan principle? (Does the chosen official represent those who voted for him or everyone in the district?) 3. Is each state free to pick either theory or does the constitutional right to equal protection require one (and which one!)?
The difference matters, because people who are not eligible to vote — children, immigrants here legally who are not citizens, unauthorized immigrants, people disenfranchised for committing felonies, prisoners — are not spread evenly across the country. With the exception of prisoners, they tend to be concentrated in urban areas.
Did your answer on question 1 drive your answers on questions 2 and 3? You might have gotten question 1 wrong, you know, so be careful! I think a lot of people have an instinctive answer to #1 that's wrong. I recommend checking your work with a pencil-and-paper diagram.
ADDED: Here's the transcript of the argument. I'm surprised to see Justice Breyer bring up what he refers to as the Republican Form of Government Clause (which is more commonly called the Guarantee Clause ("The United States shall guarantee to every State in this Union a Republican Form of Government")). For a long long time, that clause has been held nonjusticiable (i.e., not within the purview of the courts). But Breyer suggests that it should affect the meaning of Equal Protection, permitting an interpretation based on "the kind of democracy where people, whether they choose to vote or whether they don't choose to vote, are going to receive a proportionate representation in Congress."
The lawyer trying to require the states to exclude noneligible voters from the calculation drew questions only from the liberal side of the Court. The state's Solicitor General stressed that the only question is whether the state is forbidden to use the whole population (which is what all the states currently do). On page 29, Justice Alito notes the difference between arguing that "total population figures are a good enough proxy for eligible voters" and arguing that "representational equality is the real basis, and therefore that's why you use population." The SG says he's not making either argument (because he wants it to be that the state is free to do it either way).
On page 31, we hear from Justice Kennedy: "Well, if the voter population is a permissible basis under the Constitution, I assume that's because there is is an ethical, a good government, a liberty interest in protecting these voters... Well, if in a case like this where there is a 45 percent deviation, something of that order, then why isn't Texas required at that point to recognize that these interests that are legitimate under the Constitution, which are voter based, should not be accommodated, and so that you should at least give some consideration to this disparity that you have among voters?" That is, at some point, the difference between the 2 approaches is so great that the usual reliance on total population may become an Equal Protection violation.
There's also argument from the United States taking the position that the state is not only permitted to district based on the whole population but it is also required to do so. "It would be very odd," the lawyer says, bolstering the state's argument, "for the Court to demand, as a constitutional standard, data that does not even have to be collected." But why is it not even permissible? Another way to look at that is: If it would be so incredibly difficult to do, no state will opt to try it, and the Court will never have to say whether it's permissible.
MORNING UPDATE: It's easy to predict that the Court will reject this claim and let the states keep relying on the longstanding population-based method of redistricting. Even though there's some principled sense to the eligible-voter-based method, there's also principled support for the existing method. It would need to be much more obvious that there's something wrong with the existing method before the Court would declare that what's been done for so long is not even permissible, especially when it would require states to undertake so much difficult and expensive new work and to draw many new and sure to be contentious lines.
If the Court were anywhere near to making a decision like this, Justice Scalia would have grilled the state's lawyer. In fact, he asked an astounding total of zero questions. This oral argument was interesting in the way it shone a light on the inaccuracy of the concept of "one person, one vote" that we've taken as a stunningly correct precept for half a century. So be a tad less fuzzy-headedly idealistic and face reality. That's always a pretty decent idea.
UPDATE, April 4, 2016: The Court decides as predicted and unanimously.
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93 comments:
I don't care which party is advantaged.
If you're an immigrant, then you are represented by the politician in your area. Same with felons.
If you're here illegally, then you shouldn't have a voice at all.
Therefore, there are people who shouldn't count. But not everyone mentioned. Just because you can't vote, doesn't mean you don't get representation. Think children.
I will start this one off.
People who cannot vote should not be counted in districting. Counting all persons for representation and allowing only some to vote is feudal.
Of course progressives would want to count non voters because they are typically poor and there are lots of poor people in progressive areas. Almost as if they want poor people to be under the thumb of their betters.
I like one man one vote better. The women voting screws it up.
"(Does the chosen official represent those who voted for him or everyone in the district?)"
There's a third relevant class of people. Can you identify it?
I suspect that counting illegal immigrants may benefit the Republicans,assuming the illegals are concentrated in Texas, Florida, and perhaps the south in general which would inflate the number of congressional seats available in what are now pretty republican areas. As a conservative, I suppose that republicans are marginally better than Democrats, so that is at least a minor'good' thing. Still, I think representation should be apportioned based on the number of citizens in a state, not voters and not the total population.
There's also a fourth relevant class that comes to mind.
1) I think in general counting all people will favor Democrats, although the results could be mixed. ( For example, Texas might get more Democrat congressmen, but deliver more Republican electoral college votes )
2) Representatives should represent the people eligible to vote.
3) Not sure, but lean towards required to follow my answer in 2
Did my answer on question 1 drive my answer on 2? Probably, but not intentionally.
My vote at a national level is meaningless. I am a conservative living in NY state. My congressman is a leftist, my senators are 2 of the most progressive in the chamber, and of course the last time New York chose the Republican presidential candidate (who happened to be conservative) was Reagan in 1984.
One man, no vote.
Scalia didn't say a word?
"all residents or just eligible voters?" Haven't read the briefs, but don't see why those should be the only options. "All legal residents" seems the obvious standard. Legal aliens don't have the right to vote but are (should be) entitled to representation. Children are a red herring. "All residents" rewards illegality and gives jurisdictions an incentive to violate the law by importing illegals to enhance power and resources.
I don't like the word "resident". It sounds like a once, but no-longer-accurate, synonym for "citizen".
The question should be "citizens" or "eligible voters".
Another partisan meltdown in June expected, sigh.
Same topic was in the editorial page of the Wall Street Journal. Interesting read.
The implications are profound.
I'm sure someone has already brought this up (no comments are visible yet), but originally the Constitution counted slaves as for the purposes of determining districts. They discounted them to just 3/5ths of a person each, but at that time I don't think slaves were even considered citizens of the US.
I personally don't think illegal aliens should count towards representation, but it looks like I may not have the law on my side.
I could only read so much of this, but the argument that voters are being discriminated against, though novel, seems sound. Particularly if there are 11 (?) million illegal aliens being counted as citizens.
I think the official should represent all the people in her district/state/nation. It's "We the people...", not "We the eligible voters..." The reality of politics is that elected officials will respond to the actual voters more strongly than eligible voters, and eligible voters more than children, and children more than legal immigrants... and so on. That's why NRA has power,they can mobilize real voters around their issue. But we shouldn't give that logic a bigger advantage by basing redistricting on eligible voters.
There's also the consideration of what's practical--what data do we have?
A question I don't believe is on the SCOTUS agenda is the definition of "resident"--do college students reside at the college or their parents home, do prisoners reside in prison or their home, do people stationed overseas still count as residents, and if so where (service members, expats)?
Ann Althouse said...(Does the chosen official represent those who voted for him or everyone in the district?
I don't think that's the correct distinction, Professor; I think it should be "everyone who was eligible to vote" or everyone in the district regardless of their eligibility to vote.
"Scalia didn't say a word?"
Correct. I noticed that too. Strange!
"I'm sure someone has already brought this up (no comments are visible yet), but originally the Constitution counted slaves as for the purposes of determining districts. They discounted them to just 3/5ths of a person each, but at that time I don't think slaves were even considered citizens of the US."
That's the first thing I searched for in the transcript. Slaves are not mentioned.
But I'd note that the principle of representation worked out differently under slavery, since the southern voters got more voting power by using the population of slaves whose partisan choices (if they could have voted) would have (presumably) been very different. But in today's cities, the voters are probably Democrats and the ineligible persons would probably also vote Democrat if they could. So those who vote are sort of voting on behalf of the nonvoters, and giving them more voting power could be said to serve the representational interests of the nonvoters.
"A question I don't believe is on the SCOTUS agenda is the definition of "resident"--do college students reside at the college or their parents home, do prisoners reside in prison or their home, do people stationed overseas still count as residents, and if so where (service members, expats)?"
Think of what it means to be a taxpayer in Madison, Wisconsin, with the tens of thousands of students who are able to vote here.
WASHINGTON — A closely divided Supreme Court on Tuesday struggled to decide “what kind of democracy people wanted,”
That's not part of his job description.
as Justice Stephen G. Breyer put it during an argument over the meaning of the constitutional principle of “one person one vote.”
A phrase that is not in the Constitution: "one person one vote".
Buncha jokers.
Anyone want to bet that at least 44% of them will be wrong?
How about just counting citizens and legal residents?
"Illegal immigrants" referred to twice in the argument; "undocumented" once.
There is a possible differece between the standard for members of Congress and members of state legislatures. In neither case is there a basis for not counting only unauthrized immigrants.
The basis of apportionment for the House of Representatives is total population. That's written into the constitution. It does not exclude illegal aliens. They are not non-people.
Even if you could argue it could, it's up to Congress to say to exclude them from the Census, or as part of its power to regulate federal elections. Or maybe up to the state to exclude them from being counted in apportioning districts because they are the nly ones who have the power to regulate immigration. Not up to judges.
The constitution does not give the Congress any power to regulate immigration. I don't see how people imagine a word in the constitution that's not in there.
At the time of the writing of tne constutution, that power belonged to the states.
The Know-Nothing party never proposed any federal immigration law. Only changes to naturalization laws.
And there was no such thing as an illegal immigrant. Congress had the power of naturalization - states had the power to regulate the presence or rights of non-citizens. Some states excluded Free Negroes.
Even the 1876 Supreme Court decision Henderson v Mayor of the City of New York didn't give the Congress any power to regulate aliens in the United States, but only entry, and was derivative of the commerce power.
So that's that.
Equal apportionment on the state level is based on equal protection (which does not apply to the federal government by the way)
The Supreme Court, perhaps carelessly, considered Census figures to be appropriate, although courts more recently they did allow a change from that in Hawaii so as to exclude tourists and people living on a military base.
If there is to be some other basis than total population for apportioning state legislative districts, based on the idea of equal protection, it can't merely exclude illegal immigrants. It can't even merely exclude non-citizens, if we are talking about voters. And how would you get the numbers?
It has to be based on registered voters.
Or maybe even actual voters, who voted.
I don’t think it’s an equal protection issue and it should be left up to each State to decide for themselves whether to draw districts along population lines or based on the estimated number of eligible voters.
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."
"But! when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
And!
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators."
Only Spartiates should be allowed to vote.
Maybe I should, but I'm not going to read the briefs. My inclination is to say that all persons legally present in the state or district at the time of the census should be counted, whether they are qualified voters or not. That seems to be consistent with the 3/5 provision for slaves, as Graham Powell observed upthread. I can't see a reasonable rationale for counting people who are in the country illegally, and who (if there were a President who gave a sh*t about faithfully executing the laws) would be on their way home. And besides, you can't have an accurate count of people who aren't here legally and will presumably hide from census takers.
I don't know if it's an issue in this case, but I think the census is supposed to be an actual count, as accurate as we're able to make it, not adjusted to reflect someone's estimate of the number of people the census takers missed.
I favor a three-fist compromise: Every time an illegal alien votes, or a student votes in his home district AND in his college residence district, or a Democrat votes early and often, or a dead person votes, a liberal gets three fists to the face.
Think of what it means to be a taxpayer in Madison, Wisconsin, with the tens of thousands of students who are able to vote here.
I see the point, but what's the problem? Don't the indoctrinated students vote in the same leftward tilt as the residents and faculty? The bigger problem is if they vote at school and vote again back at home.
But it seems to me that Madison would rather influence the students as a large left wing voting block, rather than have them go home and maybe face the influence of their family. If you let that kid go back to Waukesha he might vote for Walker.
In writing the Constitution the founding fathers established the principle that slaves were to be counted slaves as 3/5ths of a person in anticipation of slavery's demise: as a signal, if you will, that it should be and was a doomed institution. If slaves had been counted as persons in terms of determining the number of representatives a state might have, the slave-holding South would have amassed great political power vastly out of proportion to the number of voting citizens. In other words the slavery states would have used slavery not only to maintain the status of white elites but also to politically dominate the entire nation. It would have been a situation whereby a minority wielded power over a majority through the manipulation of the cruel and immoral system of chattel slavery. As it was, the slave-holding South tried its best to establish political dominance by increasing the number of slave-holding states and through the Dred Scott decision, a travesty that entailed forcing non-slave-holding states to knuckle under and submit to Southerners on the issue of slavery. Thankfully, the Civil War put an end to the moral outrage of chattel slavery and the shenanigans the South had resorted to in order to preserve that system and increase its political power.
People who are not eligible to vote are so for a reason: Felons (anti-social), non-citizens (they can vote in their own country), children (immature) etc. If so, why should their interests matter? Their interests may be diametrically opposed to ours. Why should we care what an alien wants from a government that is not theirs?
On a practical level, a politician only rationally "cares" about the interests of voters--they being the subset of the population he needs to please.
Only adult American citizens should be allowed vote and only adult American citizens should be counted when determining representation in government. Otherwise the nation will be ruled by the cities on the east and west coasts, less populous states and regions within states will functionally lose representation, and the Democrat Party will be politically dominant.
You count U.S. citizens of voting age. Ideally, every one of them would have voted (the parent population). The election is a sample of the parent population.
I suspect that Scalia wanted to explode when Roberts said, "It is called 'one person, one vote,'" as that phrase does not actually appear in the Constitution.
The Texas complainants will lose for the reason cited by Kagan:
"The Constitution requires 'counting the whole number of persons in each state' for apportioning seats in the House of Representatives among the states. Justice Elena Kagan said it struck her as unlikely that a different rule should apply for purposes of drawing state districts."
The question of what a State could do if they chose to may yield some interesting dicta. But that question isn't really before the Court, is it?
Disparities are the inevitable result of districting, and we know that taking into account various factors in districting is Constitutional. A State could eliminate districts and elect all its Representatives at large, which would give each voter the same effect. Or, a State could use proportional representation, it seems to me, which would give each voter the same effect, but with a potentially very different result than at large districts or geographic districts.
If living in a city gave one a proportionally greater voting power, and that had any value, presumably you would see people moving to cities to get that extra voting power. But that's hypothetical, as in actual fact the Congressional races in city districts aren't very close, and so city voters actually get less voting power.
I would say the context of the Constitution's counting of persons allows for the argument that those not subject to taxation be excluded from the count. Otherwise, people must be counted - children, felons, invalids, legal aliens, etc...just not corpses. It might help Democrats a little in terms of getting more EVs into blue states with large urban areas, but at the same time, having non-competitive election districts tends to suppress the urban vote even in elections that have broader implications (e.g. locally, Democrats have been complaining for years that Republicans tend to no longer run city candidates, which then suppresses the city's vote total in county-wide elections which Republicans do well in, despite being hugely outnumbered in total registration).
On the other hand with residency and voter registration lists, I am of the opinion that those should be purged with every new census and rebuilt from scratch.
AA:
"That is, at some point, the difference between the 2 approaches is so great that the usual reliance on total population may become an Equal Protection violation."
Giving people extra voting power based on the number of imported serfs they have living in the hovels underneath them is a poor way to organize a society.
Common sense would dictate that an actual tally of registered voters who have to report their residence would be used. This is a hard count with known locations. In addition do not allow party registration to be seen by the people that set up districting.
Common sense does not help the progressive cause however. Maybe they will be more amenable now that they are gerrymandered out of power in over 30 states though.
Of course every single person in the district has representation. Once upon a time only those males who owned land were eligible to vote, neither were women or slaves. We must not go backwards. Everyone gets representation, that is the American way. If we count only eligible voters, think of the pandering to and privileges those people would get. Undemocratic.
The issue is not equality, but rather class diversity schemes (e.g. racism, sexism, transgenderism, etc.).
"If we count only eligible voters, think of the pandering to and privileges those people would get. Undemocratic."
Even if we count non-eligible voters, why would politicians pander to them? They can't vote. I'm not following your logic.
Original Mike, there should be no pandering or special privileges given to get people to vote for you. I'd think that would obvious. Why do you think people hate lobbyists? Equal representation is the cornerstone of a representative democracy.
Uh oh. Kennedy and his "liberty interest" again. That won't end well.
Amanda said...
"Of course every single person in the district has representation. Once upon a time only those males who owned land were eligible to vote, neither were women or slaves. We must not go backwards. Everyone gets representation, that is the American way. If we count only eligible voters, think of the pandering to and privileges those people would get. Undemocratic."
This doesn't go far enough. Sure there are illegals, but what about the people who stayed in Central America? Who is going to vote to represent them? And don't forget Europe. Africa. Not all Africans are in the US, but they wish they were! Who is going to vote for them? Citizenship and location are so limiting. Just like women and slaves or something! Forward! Democratic!
Amanda said...
"Original Mike, there should be no pandering or special privileges given to get people to vote for you. I'd think that would obvious. Why do you think people hate lobbyists? Equal representation is the cornerstone of a representative democracy."
This was posted by a progressive with a straight face. You are of course completely ignorant of basic civics as we are a Republic, not a Democracy. The country is in the position it is in because progressives act like it is a democracy. 20 Trillion in hard debt, $100+ trillion in unfunded liabilities to SS and medicaid, General Electric, General Motors, the big 5 banks gave all of the money to Obama to get him elected and were rewarded by Obama with record amounts of taxpayer cash. The DREAM act and amnesty are pure pandering.
Progressives are not acting in good faith.
OK, I didn't take the time to read the briefs, because I'm really more interested in what Tromp is going to say next (or what the rest of the country's going to say in response), but maybe I should have gone back to read the Constitution. If it says that representation is to be based on "the whole number of persons in each state", what basis do we have for excluding from that count illegal aliens, Muslims, Republicans, or anyone else that we find to be undesirable? It doesn't mean they can vote, just that they must be counted for the purpose of apportioning representatives. Can someone explain, in plain English, why this is a Supreme Court issue?
Sorry to be so ignorant.
"The constitution does not give the Congress any power to regulate immigration. I don't see how people imagine a word in the constitution that's not in there.
At the time of the writing of the constitution, that power belonged to the states."
Maybe so, but:
See Article I, Sec. 9: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."
Yes, that clause was about ending the slave trade, by 1808. But it is also an assertion of Congressional power to control immigration in general, just as the Constitution gives it the power "to establish an uniform rule of Naturalization".
After 1808 it would be peculiar, to say the least, that only the States could continue to control immigration of non-slaves, but only Congress could decide which such immigrants could become citizens.
During the 19th century the states did in fact control immigration policies.
Federal control over immigration was asserted in the early 1900's. cf Ellis Ilsand, after tens of millions flooded the country.
"In 1917, Congress enacted legislation requiring immigrants over 16 to pass a literacy test, and in the early 1920s immigration quotas were established. The Immigration Act of 1924 created a quota system that restricted entry to 2 percent of the total number of people of each nationality in America as of the 1890 national census–a system that favored immigrants from Western Europe–and prohibited immigrants from Asia." (wikipedia)
For legislating on immigration ---a subject it supposedly has no power over--- Congress has been awfully active on the subject for the last 100 years or so.
@Amanda,
Original Mike, there should be no pandering or special privileges given to get people to vote for you.
Political parties would instantly cease to exist if their capability to dispense patronage disappeared. One man's "morally necessary governmental program" is the other man's "government boondoggle". Likewise, for projects "vital to the national defense" are projects "feeding the military-industrial complex".
People expect their taxes to do what every other business & service they purchase does: solve a problem. Some folks might call that "pandering or special privileges".
My dear man, Original Mike, Jonathan Turley a well known Constitutional Scholar who is representing the Republican House in a lawsuit regarding Obamacare, has stated that we are a Representative Democracy. I don't think it's a good use of time arguing semantics. Call it what you want, our form of government is based on representation.
My answer: Anyone who is here legally should be counted, even the disenfranchised criminals. If you are not here legally, you should not be counted because you should not be here (and should be shown the door).
Sorry that last comment of mine should be addressed to Achilles. You all sound alike..
Limited blogger in New York has a vote that doesn't count in national elections. He's in a heavily blue state and he can vote for a Republican presidential candidate until the cows come home--and it won't count.
Living in California I've faced the same problem for at least 25 years. For that matter since the state legislature is gerrymandered sufficient to produce a permanent super majority of Dems in the lower house, my vote doesn't count in state elections either.
Amanda said...
"My dear man, Original Mike, Jonathan Turley a well known Constitutional Scholar who is representing the Republican House in a lawsuit regarding Obamacare, has stated that we are a Representative Democracy. I don't think it's a good use of time arguing semantics. Call it what you want, our form of government is based on representation."
Semantics. Seriously? It is impossible to carry on an intelligent conversation with someone who does not understand the difference between a republic and a democracy. Go do some research and come back a little smarter.
Think of what it means to be a taxpayer in Madison, Wisconsin, with the tens of thousands of students who are able to vote here.
In a globally mobile society, residency is such an important concept that it really deserves to be addressed in a constitutional amendment. And I am very conservative when it comes to such things.
Libertarian Mark.
Sorry that last comment of mine should be addressed to Achilles. You all sound alike.
And you sound like every boilerplate lefty troll who's ever decided to come here and give Althouse Hillbillies what-for.
"You might have gotten question 1 wrong, you know, so be careful! I think a lot of people have an instinctive answer to #1 that's wrong."
Presumably this means Republicans benefit, so let me construct an argument that reaches that conclusion.
Assume that currently the whole population is used. Assume also that non-eligible-voter density is higher in Democratic urban areas. Now change the rules so that non-eligible-voters are not counted. Urban districts lose more than rural and the boundaries of the urban districts must expand to compensate. This expansion is necessarily into the rural areas, diluting the urban Democratic vote. No "harm" comes to the rural areas in this process.
Of course arguing to an already "known" conclusion is not a safe strategy. See: anthropogenic global warming
Does Florida get to count the visitors to Disney World for apportioning representatives?
This could end up benefitting those states with higher tourism.
Conclusions dithering, differing, albeit inspired-right, to me will always be Althouse-tortly.
I think we just resurrect the 3/5 compromise. Illegal immigrants are, after all, people that a wealthy elite wants to have here to provide them labor for less than they would have to pay a full citizen with full rights. It's sort of analogous.
Credit should be given to the court that represents the people as directly opposed to life.
No matter that life, 'cause if you be saying it's a life we'll just be all "it ain't no damn life yo" and we will say "no!" and the response "ha! you ain't even be knowing disparate damn damned."
So if the court "hears" Thomas doesn't respond then Thomas is wrong?
Let us all know how the only True Representative of American values, Justice Thomas, stood so alone?
Y'all done been writing alot about things bitchily falsecunt.
Truth, FACE STARING YOU, made you wilt. And wonder.
So now we are, alas, wondering too.
Fucking bullshit.
Oh oh oh okay, you done did see you some moving images in your day.
They moved around, you felt emotion, such as a religious* person slavering away toward their "false" God in earnest with a sense of purpose overwhelmed by a being purposely sensing all-unspoken toward all encountered, namely of Jesus but with a Spirit that cannot be denied.
*Silly goose, we are all Jesus every moment we aspire to faith.
We are all away from God when we make ourselves thus.
There are reasons, they rarely present themselves as Rahm Emmanuel or Barrack Obama or Ted Kennedy. But when they do, rejoice their naked condemnations.
The 3/5 clause inflated the votes of white southerners. This is surely a bad thing. That is weight by pop, not weight by voters.
England had for centuries what were called rotten boroughs: a seat in parliament but perhaps 4 voters in it. This was surely a bad thing. That is weight by pop not weight by voters.
How the House of Representatives are apportioned among the States is, I take it, not at issue here. That is decided by counting warm bodies.
How the State apportions its share of Representatives within itself is a matter of State sovereignty. No requirement that all States use the same method.
If each vote is to have equal worth, the system should not be contaminated by acknowledging non-voting warm bodies.
Therefore at most, count persons eligible to vote. For practicality, maybe count registered voters.
If voting is a civic duty, then count only those who honor that duty. For practicality, count the number of voters in the most recent General Election.
("One person, one vote" makes no sense. Only Amanda - who makes no sense - would argue that every warm body gets a vote.)
My first thought is, obviously only eligible voters should count, because otherwise some representatives are elected from a pool of say 100,000 eligible voters and others are elected from a pool of twice that many because the former have districts with say lots of children living there. But at the same time, the work to be done by the representative in representing that district would be far greater if he had a much larger non-eligible voter population.
Then of course many of our existing districts vary quite a bit in population from one state to another, and the Constitution isn't very clear on any of this. Plus, partisan gerrymandering has made the system less democratic anyway.
So it's a big jumbled mess, and people are going to be pissed off no matter what the Court does. It should be fun when this ruling comes down.
To me the elephant in the room is the gerrymander. To have officials from both parties intentionally draw districts to keep those same officials in office is obscene. If you want to enforce the republican form of government, strike down the gerrymander. Make that the subject of your inquiry and the subject of your ire.
And it's ridiculous to interpret the United States Constitution in such a way that the United States Senate is unconstitutional. "One man, one vote" is bumper sticker jurisprudence, a catchy slogan that has little to do with the reality you are describing. Sure, if states were giving specific individuals two votes or ten votes or extra votes for being superior human beings, that would offend the Constitution. But all they are doing is drawing up districts on the basis of geography. One might ask why the Supreme Court needs a bumper sticker jurisprudence, but if you are going to adopt a bumper sticker jurisprudence, we might ask that you confine yourself to the facts as opposed to attacking a straw man that never existed.
A citizen who is unhappy that her vote "counts" less than the votes of people in the next county can move to that county. Problem solved. But a person who is unhappy about the gerrymander has no redress other than the court system. Certainly our corrupt officials are not going to make it easier on the citizens to kick them out of office. The gerrymander is precisely when courts should step in. And they can do so in bipartisan fashion. (While "one man, one vote" is obviously rigged to empower cities and city voters, and Democrat machines).
One might add that the Supreme Court should also enforce the titles of nobility clause, and strike down any attempt by our officials to exempt themselves from their own legislation. For instance, Congress has made itself exempt from insider trading laws, and made itself exempt from Obamacare. It's this sort of behavior that makes Congress deeply unpopular, and our federal courts could and should step in and right the wrong.
I couldn't tell you who it will advantage. I imagine Republicans in some places and Democrats in others.
Elected officials represent everybody present legally, not just the people who voted for them. But, I man, one vote means every eligible voter's vote counts the same. It says nothing about the non-voters. Every citizen has a right to be represented, other people, not so much.
So, I think apportionment should be based on number of citizens, not total population. But districting should be based on legal residents. Redistricting is only an onerous process because it is so corrupt. The Supreme Court should ban most forms of gerrymandering and require that districts have compact, sensible boundries.
"To me the elephant in the room is the gerrymander. To have officials from both parties intentionally draw districts to keep those same officials in office is obscene. If you want to enforce the republican form of government, strike down the gerrymander. Make that the subject of your inquiry and the subject of your ire."
Political gerrymandering is a subject the Court has struggled with for a long time and that I've discussed in other posts. I'm not going to focus on that instead of this when this is the subject of a pending Supreme Court case. But the difficulty the Court has had finding a proper role for courts in pushing back the political forces that do the line drawing probably informs what the Court is willing to do about this new problem. About half the Court has wanted to completely end the judicial role monitoring political gerrymandering, so I don't think they are looking for new ways for courts to supervise something that's hard for judges to deal with.
Back in 1986, Justice O'Connor cogently observed that "there is good reason to think that political gerrymandering is a self-limiting enterprise":
"In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat -- risks they may refuse to accept past a certain point. Similarly, an overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerrymander becomes more ambitious. More generally, each major party presumably has ample weapons at its disposal to conduct the partisan struggle that often leads to a partisan apportionment, but also often leads to a bipartisan one. There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves. Absent such proof, I see no basis for concluding that there is a need, let alone a constitutional basis, for judicial intervention."
"I couldn't tell you who it will advantage. I imagine Republicans in some places and Democrats in others."
It will advantage Republicans.
"'Think of what it means to be a taxpayer in Madison, Wisconsin, with the tens of thousands of students who are able to vote here.' I see the point, but what's the problem? Don't the indoctrinated students vote in the same leftward tilt as the residents and faculty? The bigger problem is if they vote at school and vote again back at home."
30% of voters in Dane County voted for Scott Walker in 2014. I think it's pretty standard that 30% of us vote for GOP candidates. And it's not just the difference between Democrats and Republicans at the local level. It's between moderate Democrats and lefty Democrats. I just don't think the students care much about the issues that long-term residents must deal with, like property taxes, which are shockingly high, so high that every time I get my bill, I feel like a chump for living here and not relocating a little further out.
States are perfectly free to allow immigrants to vote, a fact that surprises some people. But it is the states that set voting qualifications subject only to Constitutional limitations. There is no constitutional limitation preventing immigrants from voting.
"It will advantage Republicans."
True, but confusingly it also advantages the power of the Federal government over the states.
@Ann:"There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves."
Damn right. There are at least two states with redistricting processes that do not allow gerrymandering.
Why do we have to call for laws to stop things that can be stopped at any time by just not doing them?
"face reality." The reality that our robed overlords can decide anything they damn well please, unconstrained by text or meaning, even if they despise, as in Posner's case, the very document that authorizes them to rule in the first place?
" I think it's pretty standard that 30% of us vote for GOP candidates. And it's not just the difference between Democrats and Republicans at the local level. It's between moderate Democrats and lefty Democrats. I just don't think the students care much about the issues that long-term residents must deal with, like property taxes, which are shockingly high, so high that every time I get my bill, I feel like a chump for living here and not relocating a little further out. "
Cause meets effect. Many children are birthed.
Like Justice Scalia, I am very dubious when someone comes in saying that the way that we've always done something is unconstitutional and has been for a long time without anyone noticing. So you see this play out one way in the legislative prayer cases, for example, and the other way in the culture war cases. If you're going to say that all states have always understood marriage as being between a man and a woman, but actually the Fourteenth Amendment outlawed that and forced them to change it only no one noticed for a century and a half, I think you're crazy, and you're going to have to work pretty hard to convince me. For the same reason, if you're going to say that all states have always drawn lines based on whole population, but actually the Fourteenth Amendment outlawed that and forced them to change it only no one noticed for a century and a half... Well, you get the idea.
To be sure, our Fearless Leader is correct: That idea is at war with "one person one vote." But that doesn't mean that it loses. The "one person one vote" principle is Bill Brennan garbage, and as I seem to recall Althouse saying in her academic work... Or was it Alexander Bickell... Or Ely... Memory is a fickle thing... If "one person one vote" is inconsistent with other principles and structures, we ought to realize that that tells us that "one person one vote" is wrong and discard it.
Thorley Winston said...12/8/15, 5:14 PM
I don’t think it’s an equal protection issue and it should be left up to each State to decide for themselves whether to draw districts along population lines or based on the estimated number of eligible voters.
If there is no equal protection issue, then maybe they can make districs equal in acreage.
Hammond X. Gritzkofe said...12/9/15, 6:26 AM
How the House of Representatives are apportioned among the States is, I take it, not at issue here. That is decided by counting warm bodies.
How the State apportions its share of Representatives within itself is a matter of State sovereignty. No requirement that all States use the same method.
According to a 1962 Supreme Court decision, Baker vs Carr, which started all the re-apportionment litigation, they had to use equal population. A certain amount of deviation was allowed. I think about two years later, the Supreme Court said taht equal population also had to be used in state legislatve districts, both for their House and for their Senate, which often had had fixed districts or some other basis of apprortionment.
Later on, they figued how to gerrymander even within these nearly-equal-population constraints. And Politicisns thought that the closer to equal population the disricts were the better their apportionment (gerrymander) could be defended.
If each vote is to have equal worth, the system should not be contaminated by acknowledging non-voting warm bodies.
I think you could make an argument that representation has to be at large, and not by dstricts.
If voting is a civic duty, then count only those who honor that duty. For practicality, count the number of voters in the most recent General Election.
Yes, they could do that too. Of course turnout is affected by the question of whether an election, or an important one, is competitive. SO there'd be an incentive to make at least some elections competitive. Candidates with no hhope would be run just to get out the vote.
The thing that brought the litigatn that resulted in the Supreme Court decision taht state districts had to have equal population, was that Tennessee had ignored its own constitution, and had not changed districts since the year 1900. Many states neglected to change districts.
In fact his extended further. The House of Represtenatives was itself not reapportioned after the 1920 Census. My professor in 1986, Albert Fein, didn't want to believe this when I mentioned it to him. I told him it was true.
Through the reapportionment after the 1910 Census, the size of the House of Representatives had always been increased after each Census so that no representative was forced out of Congress by teh Census. The exact size or the method of apportionment was always chosen so as not to cause any state to lose represenatives. Then by law the size of the House was fixed at 435. I don't know why nobody ever tried to change it, or maybe they did.
Anyway after the 1920 Census, southern represenatives argued that the results of the 1920 Census were temprary - many Negroes had moved to the north starting in 1916, and they argued this was because of the war.
Now that wasn't a legal grounds, (and it wasn't true either that this was temporary) but Congress was also, probably not coincidentally, tied up in a dispute as to exactly how to apportion representatives between the states. This was finally settled in 1929, and the House was reapportioned after the 1930 Census. California really lost out in the 1920s.
By the way, the potential loss of representatives in Congress put an end to race riots by whites in the south. Southern leaders realized that the Negroes could just leave.
And also they were being chased out. There were things that can only be called pogroms. They came to an end around 1921. That's when the last ones were in Florida and Oklahoma. They had started about 1901 or 1902. It was called whitecapping I believe. There were some counties in Mississippi I think virtually all blacks had been chased out of.
But all that stopped when southern politicians realized the consequences this could have for the number of seats the state had in the House of Representatives.
The 14th amendment also provided for loss of represenation in Congress if a certain proportion of male citizens over the age of 21 were not allowed to vote, and some Republicans would occasionally call for its implementation, but this was never done, partly because deprivation of the right to vote was never official, it being unconstitutional after all.
political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves."
It can't, if it is already taking place, because all the people who could change it are selected on the basis of unequal or gerrymandered districts.
In Georgia even the Governor was mal-apportioned. They had a county unit vote counting system, which was supposed to be similar to the Electoral College. Since Fulton County had many fewer members of the state legislature than it should have had based on population, this hurt Atlanta.
Reformers used to say that if this was abolished a Governor who came from Atlanta might be elected, and when this was outlawed, one finally was: Lester Maddox.
Now actually he didn't come in first. But Georgia also had a provision in its constitution that if no candidate for Governor got 50% of the vote, the legislature would choose. There had been a very minor third party canddate. So the legslatre had to choose between Repubican Bo Calloway and Dempcrat Lester MAddox, and, it being just virtually all_Democrat, it chose Lester Maddox.
https://en.wikipedia.org/wiki/Lester_Maddox
In all states the apportionment scheme tended to overrepresent rural areas, since uraan areas were gaining population and rural areas losing them. And the fact that, as the Twentieth Century went on, reapportionment increasingly just wasn't done, even when required by the satte constitution. It wasn't done for the Federal House of Representatives after the 1920 census (the dispute may have been just cooked up, and the political excuse offered by southern members of Congress was that the loss of population was only temporary and caysed by the war, although the war was already aboit 1 1/2 years over at the time of the 1920 census.)
I think it ia good question for historians why the size of the House of Representatives was treated as a fixed principle (while the need to re-apportion was not!)
A gerrymander indeed can mean that if the political balance between the two parties changes, the balance in the legislature might change drastically if a party loses just alittle too bit too much of the 2-party vote.
Bit they mostly care about whether they have a majority or not.
In New York State, the State Senate has stayed Rpublican throughout the yeasr through the moacle of gerrymandering while the state Aseembly is about 2/3 Democratic and both are apportioned on the same basis.
Of course to retain their majority all kinds of things have happend, like the creation of a special "super-Jewish" distrct in Brooklyn for Simcha Felder, who runs as a Democrat and votes in the State Senate as a Republican.
Excessive and illegal immigration, and selective, subsidized (i.e. beholden, captive) distribution is a form of gerrymandering that insidiously disenfranchises American citizens. Abortion and planning are two more means and methods to not only circumvent The Constitution and human rights, but also to disenfranchise American citizens.
Achilles, I doubt you are a better Constitutional scholar than Jonathan Turley. I take his word over yours. The US is a Representative Democracy, in other words, a Republic. Your problem is that you seem to have a very closed system of knowledge. I suggest broadening it.
Even though there's some principled sense to the eligible-voter-based method, there's also principled support for the existing method. It would need to be much more obvious that there's something wrong with the existing method before the Court would declare that what's been done for so long is not even permissible, especially when it would require states to undertake so much difficult and expensive new work and to draw many new and sure to be contentious lines.
Unless homo sex marriage. Then forget all that I just wrote.
I really enjoy how Ms. Althouse opens up her thought processes when she posts these updates and insights on the Supreme Court's docket.
The professor is really engaging reading when she's being pitched to her wheelhouse.
Makes me regret not having much formal legal training.
It was something she wrote in the weeks leading up to the Obamacare decision that motivated me to follow the trail of precedence and to ultimately come to the conclusion two days prior to the announcement, that it would be ruled a tax. As painful as that was, at least I had the joy of my wife saying to me: "My God, you were right!"
I feel that I have learned something coming here from the professor.
That I am sometimes, if not frequently, harsh in my comments when she goes bat shit crazy is as attributable to my character flaws as it is to my disappointment in her when she, in my opinion, doesn't measure up to the standards of logic and rational thought which she herself has set here.
Still, it would be nice to see moderation having an impact on the trolls. At least on the self-professed ones.
Livermoron, great name BTW, very apropos. So you want Althouse to silence me? It says a lot about you, that I, one liberal female so threatens you, or disturbs you. Althouse has repeatedly said she does not want an echo chamber, yet you call upon her to delete comments that make you uncomfortable, that shakes your tree a bit. Coward. There would be absolutely NO liberal that would comment here that would meet with your approval, because liberals do not march in lock step with you.
Power over immigration was primarily a state power.
There is a clause that indicates that:
Article I, Section 9, Clause 1 (emphasis mine)
SECTION. 9. The Migration or Importation of such Persons as any of the
States now existing shall think proper to admit, shall not be prohibited
by the Congress prior to the Year one thousand eight hundred and eight,
but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
That indicates some power of Congress, but it is undoubtably derivative
of the power to regulate foreign commerce, and perhaps of the power to
arrange relationships with other countries.
But certainly nothing about internal enforcement.
And the kind of laws that we have now were not even dreamed of.
With regard to bankruptcy there is a separate clause prohibitinbg states
from enacting bankruptcy laws:
Article I, Section 10, Clause 1
SECTION. 10. No State shall.... pass any... Law impairing the Obligation
of Contracts...
Wth regard to immigration there is:
Article IV, Section 2:
SECTION. 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
Which means they can pass laws discriminating against aliens (and only
Congress can grant citizenship) but not against citizens of other
states.
Creating new states could be considered a form of gerrymandering.
Remember the great pocket borough of Nevada?
Original Mike, there should be no pandering or special privileges given to get people to vote for you.
Free health care, bitches!!! --- Barack Obama.
Think of what it means to be a taxpayer in Madison, Wisconsin, with the tens of thousands of students who are able to vote here.
That's why letting college kids vote in their college town is ridiculous.
To me the elephant in the room is the gerrymander. To have officials from both parties intentionally draw districts to keep those same officials in office is obscene. If you want to enforce the republican form of government, strike down the gerrymander. Make that the subject of your inquiry and the subject of your ire.
Remember how unlikely it was to undo birthright citizenship? Welcome to that same party. Majority-minority districts won't be going away and, if they exist, gerrymandering has to
garagette, you yourself admit to not engaging, not providing substance, just trolling.
You are simply incapable of reasoned discourse.
Inferiority complex, no doubt.
You stink up the place with your pugnacious ignorance.
Ms. Althouse has asked for a better class of leftist to comment here. You ain't it, sister.
You are the coward because you don't even attempt to offer up a cogent argument.
Fuck off.
I mean that in the best possible sense of the term.
Liver... Moron...'nuff said.
Amanda said...
"Achilles, I doubt you are a better Constitutional scholar than Jonathan Turley. I take his word over yours. The US is a Representative Democracy, in other words, a Republic. Your problem is that you seem to have a very closed system of knowledge. I suggest broadening it."
Read a bit of Turley's stuff on your recommendation. His blog is somewhat anachronistic. I sympathize. He is a denizen of the Ivory Tower. He lives in a bubble and talks to a small number of people who all agree with him. His position that restricting the immigration of a particular race/religion is unconstitutional is totally wrong. You can say it is bad policy but it has been done repeatedly and found constitutional repeatedly. He seems to be consistently on the side of freedom though which is good.
We were founded as a Constitutional Republic. We used to elect representatives to go manage a constitutionally limited set of subjects.
A representative democracy is what we have become through concerted progressive effort. We are that now.
But this is bad for us little people. Now our federal government consumes almost a quarter of our GDP, and regulates every aspect of the other 75%. This means in order to get ahead you are forced to be connected in DC. My current business in a marijuana producer/processor in washington state. We have literally spent the last 6 months paying back taxes. We have so far payed nearly $200,000 in taxes on 600,000 gross revenue and haven't even filed our 2014 return yet. We have gone from 10 full time employees to 0.
Democracy fails because eventually the government always gets to the point where the majority votes itself their neighbors money and the bigger government grows the bigger the corporations that manipulate it grow.
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