Vote: If your right matters and survives the next court Ruling re: One-man/One-Vote
(we are about to find out)
This post is extensive but I strongly believe it's a defining issue: our protected right to vote - which is BTW: still under great pressure as I have posted many times. Having said that, let's dive into this the latest issue:
Eye-catching headline: One-man/One-vote Under Pressure (case pending
for October session) *see more on this below.
Introduction and Historical Background:
The United States Supreme Court has NEVER required legislative districts to
be drawn based on the number of voters, rather than the total population of the
district. That perfect sense: kids are residents/not voters; some are legal
residents (and not yet citizens); some may be not legal residents, but still
live under the rules and laws of the land. They have rights even if they are
registered to vote, but don’t; or, who are not registered to vote, but eligible
to register but don’t; or, are both registered to vote, but only vote when they
feel the urge to vote, etc. They all are entitled to the same equal protections
of the constitution.
What I sense
in this move in Texas (yeah, the state that has talked about secession) is
bogus and simply aimed at voting rights across the board plus another assault
on those here illegally, but also living and working and trying to maintain
some sort of dignity in America.
The high court
has issued multiple precedents to confirm that total population is a
permissible apportionment base under the Equal Protection Clause and nothing
else.
Related Background Articles – two links:
#1: ONE MAN, ONE VOTE (Decades
of Court Decisions)
By ARI L.
GOLDMAN – NY Times
Published: November 21, 1986
“People, not land or trees
or pastures vote,'' former Chief Justice Earl Warren wrote in 1964 in one of a
series of cases that created the principle of one man, one vote.
The principle was also applied
again when a Federal District Court in Brooklyn ruled that the structure of the
New York City Board of Estimate was unconstitutional. It was unfair, the court
found, that the boroughs, with their widely disparate populations, should have
the same representation on the powerful board.
The one-man/one-vote
concept – refined in numerous court decisions – has been regarded as an
important civil liberties issue, aiding blacks generally and people in urban
areas and, as populations shifted, assuring representation for those living in
the suburbs.
Through all its
interpretations, the plainly articulated position of Chief Justice Warren about
land, trees and pastures still seems incontrovertible.
Professor Henry P.
Monaghan, Professor of Law at Columbia University, says that ruling ranks in
the top three rulings of all time by high court and a string of decisions have been
completely accepted, there has been almost no resistance. Those top three: (1) the
one-man, one-vote decision; (2) Brown v. Board of Education in 1954, which
mandated school desegregation; and (3) Roe v. Wade in 1973 re: a woman’s right
to abortion. Monaghan adds that the one-man, one-vote decision has proved to be
the least controversial.
Until 1962, the Supreme
Court declined to tackle the issue of political representation and population.
In Colegrove v. Green in 1946, the court said
that the issue was of a “peculiarly political nature and advised that the
courts not enter this political thicket.”
But in Baker
v. Carr in 1962, the Court found that people living in cities in
Tennessee had been seriously underrepresented in the state legislature.
'Good-Faith Effort'
The one-man, one-vote
language was first used in a 1964 case, Wesberry v. Sanders. It extended the principle
to Congressional elections. “As nearly as practicable, the Court ruled, “one
man's vote in a Congressional election is to be worth as much as another's.”
Later that same year, in Reynolds v. Sims, the Court applied the principle to state
legislatures and Chief Justice Warren spoke of land, trees and pastures.
In subsequent cases, the
Court acknowledged that it would be difficult, if not impossible, to achieve an
exact equality for all voters, but required the states to make “a good-faith
effort to achieve precise mathematical equality.”
In 1983, for example, the high
court ruled that the New Jersey Legislature had not made such an effort and
threw out its Congressional district lines.
In general, the high court
has required more exact standards for Federal districts than for state and
local districts, allowing as much as 20 percent deviations from the standard
for the states.
Court decisions over the last 35 years have
certainly brought the country a long way from the situation in Maryland that H.
L. Mencken once described as “The vote of
a malarious peasant on the lower Eastern Shore counts as much as the votes of
12 Baltimoreans.”
#2: One Person One Vote (or Was That One Voter One Vote?)
March 18, 2013
By
WASHINGTON
— With the exception of the Senate, where voters from states with small
populations have vastly more power than those from, say, California or Texas,
the rest of the American political system is committed to the bedrock principle
of “one person one vote.”
Or is it? Whatever
else may be said about the odd shapes of voting districts around the nation,
they do tend to contain, often with exquisite mathematical precision, the same
number of people. But not all of those people are eligible to vote. The
distinction matters in places like Irving, Tex., where the City Council’s six
districts have almost exactly the same number of people. But one of them,
heavily Hispanic, has only about half the number of people actually entitled to
vote. The political power of voters in that district is therefore amplified.
Think of it
as “one person two votes.”
Voters from
the other districts sued to challenge this state of affairs, and the Supreme
Court is scheduled to decide next week whether to hear their case.
Surprisingly, the court has never resolved the question of whether “one person
one vote” means that voting districts should contain the same number of people
or, instead, the same number of voters.
That this
issue is still unresolved, 50 years after the court announced the
one-vote-one-person doctrine, is remarkable,” said Richard H. Pildes, a law
professor at New York University. “That it is coming to a head now is another
constitutional manifestation — this time, in the voting context — of the
dramatic rise in the non-citizen population in states along the border, such as
Texas and Arizona.”
The case,
Lepak v. City of Irving, No. 12-777, was the brainchild of the Project on Fair
Representation, the same small conservative advocacy group that persuaded the
justices to hear challenges this term to affirmative action and to a central
part of the Voting Rights Act.
This that old case, “Lepak v. City of Irving” as a reminder
and starting point for this new assault on the one-man/one-vote rule.
A few facts:
1. Almost all state and local government draw districts based on total population. Those districts include all sorts of people not eligible to vote, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners.
2. Were such people evenly distributed around
the nation, the difference between counting all people and, only counting
eligible voters would be of no moment. But the new challenge contends that
recent demographic developments require the Supreme Court to act.
“Changing
immigration patterns and federal policies have converted a problem that once
impacted only a few jurisdictions into a national concern,” the challengers’
brief says.
Were the
challengers in this new case to succeed, the practical consequences would be
enormous, says Joseph R. Fishkin, a law professor at the University of Texas at
Austin who wrote last year in The Yale Law Journal, saying in part: “…[it
would] shift power markedly at every level, away from cities and neighborhoods
with many immigrants and many children and toward the older, whiter, more
exclusively native-born areas in which a higher proportion of the total
population consists of eligible voters.”
Up to now, Federal
appeals courts have uniformly ruled that counting everyone is permissible, and
one court has indicated that it is required. In the process, though, several
judges have acknowledged that the Supreme Court’s decisions in this area have
been murky and provide support for both approaches. The federal appeals court
in New Orleans said the issue “presents a close question,” partly because the
Supreme Court had been “somewhat evasive in regard to which population must be
equalized.”
Judge Alex
Kozinski, in a partial dissent from a decision of the federal appeals court in
San Francisco, said there were respectable arguments on both sides. On one
theory, he said, counting everyone ensures “representational equality,” with
elected officials tending to the interests of the same number of people,
whether they are voters or not. Counting only eligible voters, on the other
hand, he said, vindicates the principle that voters “hold the ultimate
political power in our democracy.” He concluded that the Supreme Court’s decisions
generally supported the second view.
Even if counting
only adult citizens is the correct approach, there are practical obstacles such
as: “A constitutional rule requiring equal numbers of citizens would
necessitate a different kind of census than the one currently conducted,” writes
Nathaniel Persily, a law professor at Columbia, wrote in 2011 in the Cardozo
Law Review. For now, he further said, “The only relevant data available from
the census gives ballpark figures, at best, and misleading and confusing
estimates at worst.”
What is the
thinking of this generally 5-4 conservative court? Back in 2001, the high court
turned down an opportunity to decide who counts in a democracy, in another case
from Texas. Then Justice Clarence Thomas objected and wrote: “We have never
determined the relevant ‘population’ that states and localities must equally
distribute among their districts. The one-person-one-vote principle may, in the
end, be of little consequence if we decide that each jurisdiction can choose
its own measure of population. But as long as we sustain the
one-person-one-vote principle, we have an obligation to explain to states and
localities what it actually means.”
Maybe all
this adds up to perhaps a Rick Perry “oops” moment, but I also am holding my
breath about possibly another 5-4 decision against common sense and rational
thinking. What about you?
If anyone who
reads this is registered to vote or not – now would be the time to do both and tell
a friend. What is stake? Oh, no more than our very structure as we have grown
to know it – that is before these awful nasty ugly right wing attacks on
everything good and decent that they advocate as good and decent. The GOP goal? Win at any price no matter who is damages or whose rights are flushed down the toilet - just win.
One word
does come to mind regarding this massive GOP-Conservative view on voting: Hypocrites.
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