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View Diary: an Obama voter as 3/5 of a person (113 comments)

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  •  So if everyone opposes it (0+ / 0-)

    why is it a big deal?  This would never pass a court challenge - so bring it on so we can be done with yet another distraction.

    The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government. - Thomas Jefferson

    by ctexrep on Sat Jan 26, 2013 at 05:18:15 AM PST

    •  never pass court challenge? (18+ / 0-)

      As far as I know, the constitution says that states can apportion their electoral votes any way the state legislature sees fit.

      I think this would never pass public challenge, just as the turnout numbers this past election "stunned" the GOP.  This sort of attempt to dilute the vote of urban areas would piss off a lot of people normally disinclined to vote.

      I think that there are some marginally sane people in the GOP who realize that a naked grab at power like this would boomerang on them really fast.  There are just not enough angry white folk out in the countryside to outvote the cities, even with such weighting.  These marginally sane people probably realize that the other side would figure out the best way to combat this type of rigging with GOTV efforts.

      •  Nebraska and Maine split the vote that way now. (2+ / 0-)
        Recommended by:
        Chitown Kev, Grabber by the Heel

        In Nebraska, the votes corresponding to the two Senators are winner-takes-all, but the other three are decided district by district. That's how the Nebraska vote split McCain 4/ Obama 1 in 2008. After that happened some of the state GOP leaders wanted to go back to state-wide winner-takes-all. Funny how they don't like it if it works in our favor.

        Nebraska's vote-splitting system initially had bipartisan support.

        'Socialism never took root in America because the poor see themselves not as an exploited proletariat but as temporarily embarrassed millionaires.' -John Steinbeck

        by Eddie L on Sat Jan 26, 2013 at 07:24:33 AM PST

        [ Parent ]

        •  not quite (3+ / 0-)
          Recommended by:
          Eddie L, PrahaPartizan, latts

          NE and ME would give 2 EVs representing the senators to winner of state-wide popular vote

          proposal in Virginia would give those 2 to the winner of the most Congressional districts.

          In VA, Obama won the popular vote and 4 CDs.  If following the ME and NE example the split would be 6 DEM EVs and 7 Republican, not 4 and 9 which his how you get to counting the Obama voters as 3/5

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sat Jan 26, 2013 at 07:45:48 AM PST

          [ Parent ]

      •  Repugs with statewide and national Ambitions may (1+ / 0-)
        Recommended by:
        Temmoku

        put the kibash on this themselves. They are trying to rig blue states after all and Wisconsin, Michigan, Ohio, Pennsylvania, and Virginia are none too happy with their repug govs and other statewide office holders who belong to The National White Peoples Party formerly known as republicans.

      •  Actually, there IS authority to strike this down, (0+ / 0-)

        e.g. the Apportionment Cases of the '60s.  That is where the phrase 'one man, one vote' comes from.

        While they concerned Congresional apportionment, the language of the Constitutiion is fundementally the same for EC apportionment. Thus, there is no reason those cases should not apply to apportionment, i.e., 'appoint[ment]', of Electors as well.

        As Congressional districting law has developed, the 'one man, one vote' rule has become one of the outer boundaries.  There should be no doubt that a map which put twice as many voters in 1 district as the other 2 (in a 3 district state) would be unconstitutional, as it literally and unnecessarily would give the voters one the former only 1/2 the vote of the voters of the later.

        Since the Va plan does exactly the same thing for voters re: weight of their vote for Electors, this method of 'appoint[ing' same should be just as unConstitutional.  While Art. 2 says "each State shall appoint, in such manner as the Legislature thereof may direct", that is not a blank check.  The State exercised that power when it chose to appoint by popular election.  The apportionment of that 'appointment' is an entirely different question.

        OTOH, whether Kennedy and Roberts would have the guts not to simply rubberstamp (or affirming by ducking) thier Thug masters is also another question entirely.

        •  you are wrong (0+ / 0-)

          districts are not based on equal numbers of registered voters, but on equal numbers of residents.  that was what comes from the two one man one vote decisions, one applying to state legislative districts and one to congressional districts

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sat Jan 26, 2013 at 03:20:12 PM PST

          [ Parent ]

          •  My argument has nada to do with who votes. (0+ / 0-)

            When you apportion, you have to assumeall registered voters might vote.*  Therefore, if it helps understand, substitute elgible to register, for voter.

            Now, if a rural district had twice as many eligible to register as , you might have something.  But they don't.  Nor would they inherently, if by chance one did.  IOW, you're distinction isn't significant to my argument.
            __
            * Yes, you can conceive of situations where a district might have a disporportionate # of children and of prisoners (in state's where they can't vote), but 1) its very unlikely that discrepancy would significant for these purposes, and 2) it woudl isolated districts and thus not support the scheme as a whole.

            •  representation is by population (0+ / 0-)

              not by who votes.

              We established that with the 3/5 compromise, where slaves gave some states significantly higher representation than they had actual voters.

              Presume three districts.  each for sake of simplicity has 700,000 people recorded in the census.

              District 1 has 600,000 people of voting age, of whom 90% are citizens.  That gives the district 540,000 voter eligibles, of whom 80% vote.  That gives 432,000 people.  

              District 2 has 550,000 people of voting age -  there are a number of ethnic groups with large families.  Of these only 400,000 are citizens - some of those ethnic groups with large families are recent immigrants, or even undocumented aliens.   Of those 400,000 however, 50,000 have felony convictions in a state which makes it almost impossible for felons to get their rights including voting restored.  Now we are down to 350,000, of whom 90% vote.  That district has only 316,800 voters.

              District 3 is a rural district in the midwest, say IA 04.   650,000 are of voting age.  They have the same 90% voting rate. They have 576,000 voters.

              Is there unbalanced representation?  Not if the basis of representation is residents -  and the Constitutional counting never specified citizens.  

              Yet the range of voters is quite wide

              from a low of 316,800 to a high of 576,000.

              "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

              by teacherken on Sun Jan 27, 2013 at 04:28:30 AM PST

              [ Parent ]

              •  I addressed this in the footnote. Bc your hypos (0+ / 0-)

                are 1) unlikely, and 2) at most isolated to a single district, there is no significant difference bt the # of person who might be able to vote and population in districts.  IOW, your turnout-based examples are irrelevant.  
                Turnout varies from elections to election, year to year.  

                The same is generally likely as regards residents not eligible to register to vote.  Yes, I can envision a map where 1 district has 75% of the potential voters of another.  (Note, your IA 4 example assumes all adults are eligible to vote, impossible, and completely different from the other two. More likely is at least 10% are not eligible, meaning the greatest pop difference is 350k to 585k, not 350 to 650.  In fact, only 10% would be very unlikely, given children, non-citizens, felons etc. are not likely to be so asymmetrically distributed.  Also, asymmetry would mostly be a function of having so few districts -3- vs. Va - 11.)  Now, you are correct that an effective ratio of 1 to .75 is likely not sufficient to show significant disadvantage to the right to vote of residents/potential voters of the former.  Especially if there are other districts where the ratio is smaller.

                But that is not what we have here.  We do not have a single, isolated outlier.  Rather, the scheme is to apportion EVs in such a way that every urban district's residents/potential voters count less than 1/2 as every rural district's residents/potential voters in electing the State's EV slate.  Turn out or district population composition is irrelevant: e.g. even if turnout was 100% is all districts, or the urban districts had twice as many actually voting (or even if only 1 actually voted in the rural) there would be no possible scenario where the urban residents votes did not count at least less than 1/2 that of the rural counties, simply bc the district drawing scheme created twice as many plus of the later as the former.

                Does that help explain?  'Cause otherwise, we're just not communicating here imo.

                P.S. Also, you might consider that Congresscritters represent districts, while the language of Art. 2 and Amend. 12 at least strongly imply that Electors represent the State as a whole.  Thus, there is an absolute minimum of 3 for any State's weight in the EC.  But that's a different argument.

                •  no, no such implication (0+ / 0-)

                  since legislature is given full power to determine how electors should be awarded.  You are really stretching now

                  "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                  by teacherken on Sun Jan 27, 2013 at 12:36:59 PM PST

                  [ Parent ]

                  •  Nope, ur just not understanding. The righ to vote (0+ / 0-)

                    for electors for POTUS/VP is expressly enshrined in A14, Sec.2.  Express constitutional rights are some mere formality to be disposed of with 'well at least they can still vote'.  A14, Sec 1 means there are limits to how much difference you can weight discrete groups votes for same.  DCs are discrete groupings.  The Va scheme enforces a 2 to 1 advantage to one groups votes, or put another way a 100% burden on the other's ability to have their votes counted equally for P/VP Electors.

                    Now, you are correct that there are levels of unequalness SCOTUS will accept.  But, you are simply not understanding that Art. I is limited by the Civil War amendments, so its is not sufficient to stand on the literal language.  You might as well say Art. Sec. 4, cl. 1 similar language ("The... Manner of holding Elections for" Reps shall be prescribed in each State by the Legislature thereof) trumps the 14th for election of Congresspersons, thus obviating all apportionment claims.  That is clearly not the case.  So too, Art 2, Sec. 1 para. 2's ("Each State shall appoint, in such Manner as the Legislatures thereof may direct,... Electors") is similarly circumscribed by the 14th.

                    That is not a 'stretch'.  That's the how the Constitution works after the Civil War. It is why the Civil War amendments are often called 'The Second Constitution'.  IOW, everything in the pre-Civil War constitution which vests power in the States is limited, at least where as here a right in the Constitution or a fundemental interest (and its hard to see anything more fundamental than the right to popular vote of roughly equal weight for POTUS, just like Reps and Senators) is limited by the Civil War (and a few subsequent) amendments.  That's what the Incorporation Doctrine is all about and why the Bill of Rights even applies to the State's when they were so clearly limited to the federal government originally.  (Its also why the !0th-ers are full of it.)

                    But, hey, this SCOTUS may decide to repeal the Civil War if Kennedy gets a hair up his... just like the majority seems intent on trying to repeal the commerce clause.

    •  splitting by CD is clearly constitutional (13+ / 0-)

      I would argue the entire plan passes muster constitutionally because the legislature has full power to decide how to distribute electoral vots

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Sat Jan 26, 2013 at 05:34:34 AM PST

      [ Parent ]

        •  See my comment, below. (1+ / 0-)
          Recommended by:
          Heart of the Rockies

          Intolerance betrays want of faith in one's cause. - Gandhi

          by SpamNunn on Sat Jan 26, 2013 at 07:04:30 AM PST

          [ Parent ]

        •  does not apply for lots of reasons (4+ / 0-)

          1.  this does not involve redrawing districts

          2.  legislature has full power to assign electors any way it wants -  Voting rights act in no way can outweigh that constitutional provision

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sat Jan 26, 2013 at 07:16:44 AM PST

          [ Parent ]

          •  Maybe it's not quite so simple (1+ / 0-)
            Recommended by:
            stormicats

            The Constitution also says that the Federal government will guarantee that each state has a republican form of government. While it might be a stretch to apply that clause to the apportionment of electors, I think there is nonetheless some room to do so. (For example: a legislature that is acting in a way that clearly favors one class of voters over another is not following the principles of republican government.)

            Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

            by Nowhere Man on Sat Jan 26, 2013 at 07:53:06 AM PST

            [ Parent ]

          •  What about an equal protection argument? (0+ / 0-)

            It's been over three decades since I've taken a constitutional law course, and I never did any legal work focused on election rights, but it seems to me the equal protection clause could provide a potential basis for challenging the gerrymandering of the Electoral College. Especially since, as you point out, the net effect of such legislation – probably in all the states where it is being proposed – would be to elevate the votes of rural, white, conservative voters above those of urban, brown, liberal voters.

            That being said, I freely admit my ignorance on matters of election law, and I know you've been a lot closer to it in your teaching about American government. I saw where you stated below that this doesn't violate equal protection, and I'd love to get more information about why that is.

            "These are not candidates. These are the empty stand-ins for lobbyists' policies to be legislated later." - Chimpy, 9/24/10

            by NWTerriD on Sat Jan 26, 2013 at 09:56:22 AM PST

            [ Parent ]

            •  would not apply (0+ / 0-)

              because if the Congressional districts are constitutional - and gerrymandering for political purposes has been upheld, then assigning electoral votes by congressional district would also be constitutional.

              What might not be constitutional is the idea of awarding the two electors equivalent to the senators not on the basis of the winner of the state wide popular vote but on the basis of who wins the most congressional districts.  The Supreme Court has ruled that all legislative districts must have equal numbers of people except for the United State Senators who represent entire states, and thus states can be of different populations but have equal representation.  By that logic, apportioning two electors by statewide popular vote winner would be constitutional, but awarding them based on winners of congressional districts might well be subject to being rejected as unconstitutional.

              remember, I am not a lawyer nor did I sleep at a Holiday Inn Express last night.

              I have taught this stuff for a number of years in college level courses to high school students, for whatever that is worth.  And with a mother who was a brilliant lawyer I grew up reading appellate court opinions (including decents) from both the NY State Court of Appeals and the US Supreme  Court.

              "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

              by teacherken on Sat Jan 26, 2013 at 03:25:25 PM PST

              [ Parent ]

      •  i would argue it's not (0+ / 0-)

        there is a power given to state legislatures to direct the manner in which electors are appointed, in Article II.  However, if the race goes to the House of Representatives, the votes are by states as blocs. That arguably expresses the intent of the framers that states should vote as one.  The Article II power is more about setting voting precincts, rules for ballot access, and administrative stuff like that.  

        Then there is the 14th amendment, which changes the federal/state balance.  It first of all should require a revisit of these apparently racially gerrymandered districts, but I think states have a little more latitude in setting congressional boundaries because there's never a way to make them exactly equal.  The problem is solvable for state-wide elections by ignoring district boundaries for the purpose of electing Presidents.  At minimum, awarding the extra two electoral votes to the winners of certain districts amplifies those votes impermissibly and would violate 1p1v.  

        You're right to single out the symbolic aspects -- this won't happen because these knuckleheads think they can deliver all 13 EVs to a Republican in 2016.

        Difficult, difficult, lemon difficult.

        by Loge on Sat Jan 26, 2013 at 11:55:30 AM PST

        [ Parent ]

        •  sorry, electoral college is example of federalism (0+ / 0-)

          which is why it is up to state legislature to decide how to award electors.  And no one has ever successfully challenged what Maine and Nebraska have done for years, although the only recorded split is that of NE-02 for Obama in 2008

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sat Jan 26, 2013 at 03:27:06 PM PST

          [ Parent ]

          •  yes, it's 50 state elections (0+ / 0-)

            which is why the 14th amendment arguments are stronger.  in a way, the "in such a manner as the legislature thereof may direct" isn't really a creation of a right in state legislatures, but an acknowledgment of an existing power, but one that the Equal Protection clause limits.  The argument from  federalist structure, however, cuts against states splitting votes.  It's certainly what the framers expected at the time of ratification, and "a Number of Electors" can be interpreted as a "single slate," though it's unclear.  At minimum, it's not cut and dried, and if a court were inclined to strike the Virginia plan, it could hang its hat on something.  

            There's no standing for anyone to challenge the Maine/Nebraska split -- you'd need one of those to be number 270 / 268.

            Difficult, difficult, lemon difficult.

            by Loge on Sat Jan 26, 2013 at 04:09:06 PM PST

            [ Parent ]

    •  But it is likely to happen in PA from what we are (3+ / 0-)
      Recommended by:
      Dirtandiron, Eddie L, cybersaur

      hearing on local tv news and reading in our papers here. It could very well happen in PA and they are moving on this now.

      Follow PA Keystone Liberals on Twitter: @KeystoneLibs

      by wishingwell on Sat Jan 26, 2013 at 05:41:40 AM PST

      [ Parent ]

      •  PA's plan slightly different (4+ / 0-)

        2 electors representing Senators will be awarded on basis of who wins statewide popular vote

        current gerrymandered congressional districts are a problem, but this scheme exactly matches that in ME and NE

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Sat Jan 26, 2013 at 05:43:39 AM PST

        [ Parent ]

      •  I am hopeful that PA's large Democratic (4+ / 0-)

        edge in voters will convince the State House of the rage they'll be facing if they attempt this disenfranchisement.

        Also, Corbett is quite unpopular as it is. This would make him the unwelcome focus of a lot of anger--not typical for sleepy Pennsylvania.

        •  I just looked up some numbers in PA. (7+ / 0-)

          In the 14th Cong. district - urban city of Pittsburgh - approx. 327,000 people voted. In the 9th district - SW PA gerrymandered to look like a doughnut with a bite taken out - about 274,000 folks, mostly not urban voted. If each of those districts is worth one electoral college vote, 53,000 votes in Pittsburgh, many by urbanites, wouldn't matter.
          Those of us in PA need to stop this from happening.

          •  but CDs are not decided by # of voters (3+ / 0-)

            but by percentage of state's population.  Does not even matter whether those people are eligible voters -  could be a district with a higher percentage of children or a higher percentage of non-citizens.  Reapportionment to the states and redistricting in the states is done on the basis of counted population

            SCOTUS has ruled drawing lines for partisan political purposes is not unconstitutional.

            When it has declared a district unconstitutional, it has either been because it does not represent one man one vote, or because the district is too artificial, such as when to cram a blacks into one district in NC the district consisted of two innercities and the interstate connecting them.  Districts are expected to be continguous but do not have to be compact nor do they have to respect existing political jurisdictions

            "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

            by teacherken on Sat Jan 26, 2013 at 07:20:15 AM PST

            [ Parent ]

            •  Okay, but isn't this an issue.. (1+ / 0-)
              Recommended by:
              wishingwell

              The way that PA's electoral votes are decided now is the popular vote within PA. In PA now,  I vote for Obama, my vote goes toward him taking all the electoral votes of the state. With the change, my vote only goes toward the popular vote in my district, not the state.  Actually, I live in the 18th district which went for Romney. So, my vote for Obama would have been meaningless if the new system had been in effect because my district's EV would have gone to Romney. Yes? NO?

              •  no different than if you had lived in AL (2+ / 0-)
                Recommended by:
                wishingwell, OHeyeO

                which went for Romney and which awards its EVs by result of statewide popular vote

                should we go to national popular vote?

                we cannot get there by amendment since it would take only 13 small states to block it, and now some relatively small states get a lot of attention because of their battleground states, specifically NH  and NV.

                We could get their by the national popular vote initiative, but that has possible 14th amendment consequences that would have to be sorted out by the Courts.

                Also, if we were doing national popular vote, you would still have the problem of different standards for (a) qualifying to vote) and (b) the mechanics of voting varying from state to state.

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Sat Jan 26, 2013 at 07:51:55 AM PST

                [ Parent ]

            •  Ken, a plan that explicitly apportioned so that (1+ / 0-)
              Recommended by:
              Val

              R voters (or 'rural', or 'white', or whatever-discreet-easily identifiable group) got twice as many electors as Ds (or 'urban', or whatever-other) even as the latter group won the majority of the 'method' the State legislature chose 'to Appoint' electors (to use the Art. 2 language) would obviously violate equal protection.

              The explicitness would be its deathknell, as there would be by law no basis to presume the legislation's constitutionality, sodeference by the courts would be inappropriate (and indeed forbidden by current caselaw).

              The statements of the supporters of the Va bills likely rise to that level, explicitly saying the intent is to give rural voters more than equal weight.  I don't know if the Pa folks have been as stupid, but considering the 'voter ID so Romney will win' geniuses I suspect they have.

              But, even if not so explicit, the effect would be so obviously to make the weight of the voters of these groups so unequal, that any SCOTUS that wanted to exercise the power it has and enforce the Constitution as written would strike it down in a heartbeat.

              The question is are there 5 Justices on the present Court who have sufficient integrity and respect for the Constitution - and indeed, the Framers intent (both original and Civil War) - that they would do so.  Given Bush v. Gore, I doubt it.  But then I'm a cynic when it come to whether Justice has anything to do with our current courts. :)

              •  sorry, it would not necessarily (0+ / 0-)

                if the Congressional districts were themselves constitutional, then there is no sustainable challenge to distributing electoral votes by Congressional district.

                The only part of the Virginia plan that would be subject to challenge is to award the two electors equal to the Senators on the basis of who won the most congressional districts.  That might be an equal protection violation.  Please note - MIGHT BE -  except that even there it is not clear that an equal protection argument outweighs the plenipotentiary power the state legislature has to decide how the state's electors shall be awarded.

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Sat Jan 26, 2013 at 03:29:51 PM PST

                [ Parent ]

                •  No, Ken. There is an entire body of equal protect (0+ / 0-)

                  ion law that holds that what be otherwise constitutional is not if it was done for a discriminatory purpose.  Romer v. Evans is just one of the more recent.  Now, you might argue that 'rural' or 'urban' are not 'invidious categories', but then you would be ignoring the clear evidence that they are code words, both in intent and effect, for race.

                  It is not enough to quote the Art. 2 language.  The langauge in Art. I is fundementally the same, yet SCOTUS applies limits to Congressional apportionment, including equal protection.  (It also ignores that oddly enough Art. 1, Sec. 4 actually vests the ultimate power to determine "Time, Place and Manner of hold elections for... Representatives" in Congress, not the States.)  By that logic, States could simply do away with popular vote for POTUS/VP, as some originally did, and e.g. choose names out of a hat or the Governor's cronies, or the leaders of only the Thug or D parties.  That may seem allowed by Art. 2, sec. 1, cl. 2, but, while Scalia might accept that 'original intent', I doubt a majority of SCOTUS would brave that crapstorm.  More importantly, it ignores Sec. 2 of the 14th, which explicitly states there is a "right to vote .. for the choice of electors for President and" V/P.  IOW, it mandates popular election of the Electors.

                  Given that, it is hard to see how a modern SCOTUS would not rule denying all of a State's citizens or a racial susbset violate equal protection (or due process perhaps, depending on how lively substantive d/p is today) as it would deny thier existing right to elect POTUS/VP Electors as established and recognized by Sec. 2.  The same would be true if it excluded all 'urban' residents from voting for Electors.  The States are not writing on a blank page.  

                  If it can not eliminate this right of urban voters (or minority voters, which the evidence will show is both the intent and effect), then significantly disadvantaging it constitutes a equal protection violation, whether it is called a 'liberty', right or fundamental interest.  Just as doing so for other rights, e.g., any of the Bill of Rights.  

                  The only question then is: how much disadvantage is too much?  I have little difficulty seeing a scheme that counted 'urban' votes for electors at half or less than 'rural' votes violates e/p and d/p both under sctrict scrutiny as a racially discriminatory scheme both in intent and effect and under the rational relation test (as there can be no legitimate state interest justifying such disproportionate treatment on the basis of degree of urbanization.

                  You may disagree.  But that doesn't mean there is not a potentially valid constitutional argument here.

                  Hopefully, we'll never have to find out.

                  •  several things (0+ / 0-)

                    1.  You would have to show that it was done solely for discriminatory purpose discrimination on the basis of either a protected class or the violation of a fundamental liberty.  Since people are still able to vote under such a scheme, there is no violation of a fundamental liberty.  Then one gets to the idea of one man one vote which is the applicable standard, and that is not violated within the state the way Maine and Nebraska do it, although one might question whether the way Virginia proposed to award two electors to the winner of the most CDs does.

                    2.  The fact that one person expressed his intent that might be interpreted as a discriminatory purpose is almost certainly insufficient.  That does not mean that would be why the legislature as whole might agree.  If their purpose was purely political, that is, to advantage their party over the other party, SCOTUS has already held that gerrymandering for political advantage is not constitutional.

                    3.  Romer was a 6-3 decision.  Since then, Rehnquist has been replaced by Roberts on the dissenting side, O'Connor by Alito and Souter by Kagan.  Thus in theory there might be a 5-4 vote to uphold the reasoning of Romer.  Except that while Kennedy applied that principle in a matter of sexuality, his jurisprudence does not seem to apply that same principle in other areas, especially in voting matters.  He did vote for the majority in Citizens United.

                    I admit I am not a lawyer.  But with the exception of how the two electors representing the Senators are awarded in the Virginia proposal, I see nothing the Supreme Court would even consider in proposals to change awarding of electoral votes to by CD, especially in a case like Virginia where the CDs were themselves subject to review under VRA and upheld.

                    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                    by teacherken on Sun Jan 27, 2013 at 04:40:43 AM PST

                    [ Parent ]

                    •  Consider: (0+ / 0-)

                      1. You ignore the effect of the scheme, an independent means to test intent, and apart from intent an independent grounds (and the most common).

                      2. You do not address A14, Sec. 2 which recognizes the right to vote for POTUS/VP, not simply the Electors (and thus changes the Art. 2 scheme, could you seriously see the Civil War Congress allowing Confederacy states to abolish population vote of Electors and thus deprive all 13A elible voters of a vote for POTUS?)

                      3. You do not address the 'disproportionate disadvantage' (nee, treatment) argument.  Simply allowing hypothetical exercise of a right (or fund'l interest) is insufficient to escape e/p-d/p.  Significant difference of burden or advantage of the exercise to similarly situated persons is prohibited.  Put another way, if the Va scheme gave 2 EV votes to each rural district and 1/2 to each urban, we would see an obvious violation.  Yet, that would not be prohibted under your expansive reading of state authority here.  But that is exactly the effect the Va scheme has on the rights of each individual eligible to vote.  (BTW, Me and Ne are unique and not controlling primarily bc of their small size and relative similar pop-sized districts).

                      3. 'Intent' ala Romer is not measured solely - or even primarily - by what the Legislative majority claims (they always claim a legit intent), or even the statements of its leaders (though that may be significant to show invidious intent, as here where the sponsor of the legislation explicitly states such).  All other sources can be considered, including necessary effect (which here is to always give rural districts 2 plus the EVs as urban, or more appropriately 'mostly white' vs 'significantly minority' - courts are not fools).  In any event, the 'intent' is whatever the parties prove in the litigation.

                      As I see it, the treatment of the Senate Electors is merely the icing on the cake of intent to significantly advantage rural or urban and conversely burden the later as against similarly situated persons in the former.

                      4. Your #3 is merely my 'there is a valid argument here, but whether they will follow precedent or pull another Bush v. Gore remains to be seen' argument.  We may not actually disagree here (though my position has to do with the perfidity of certain Justices) but that does not address th merits of the constitutional argument.

                      5. IMO the VRA is irrelevant.  They're not talking about changing the districts, which all the VRA covers in this regard.

                      You may or may not already know, I am a lawyer. But, I am not an election law or constitutional scholar, so even my informed opinion could certainly be wrong.  Or put another way, I disagree with how you're analyzing this, but that and $5 will buy me a Starbucks. :)

    •  It has been done in Maine and Nebraska (8+ / 0-)

      It would pass Constitutional muster.

      It just means that gerrymanders would now affect Presidential elections not just Congressional ones.

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

      by blue aardvark on Sat Jan 26, 2013 at 06:11:02 AM PST

      [ Parent ]

      •  its never been challenged in those states (2+ / 0-)
        Recommended by:
        blue aardvark, Chitown Kev

        but,  the constitution seems pretty clear on the legislatures being the ones to decide.

      •  It isn't Constitutional (0+ / 0-)

        It violates the Equal Protection Clause. It is clearly and overtly intended to favor one group over another.

        +++ The law is a weapon used to bludgeon us peasants into submission. It is not to be applied to the monied elite.

        by cybersaur on Sat Jan 26, 2013 at 08:02:18 AM PST

        [ Parent ]

        •  sorry but you are wrong (0+ / 0-)

          Equal Protection Clause not applicable to simply doing what Maine and Nebraska have done.

          Possible conflict between Equal Protection Clause and power of legislature to determine how electors are awarded in Virginia proposal to distribute 2 EVs based on Congressional districts won.

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Sat Jan 26, 2013 at 08:15:18 AM PST

          [ Parent ]

          •  I have not read the full decisions yet, but I am (1+ / 0-)
            Recommended by:
            cybersaur

            very much wondering if courts would support this as solidly as many assume.

            How they would fare in Baker v. Carr, Reynolds v. Sims and Wesberry v. Sanders (all "one-man-one-vote" precedents) challenges is a question some of our lawyers might chime in on now. The court demise of Georgia's County Unit System of the same 1960s era may also apply. That was explicitly designed to counter Atlanta's influence with the three least populous counties being able to nullify Atlanta's six "unit" votes. That court series included Baker v. Carr, and also Gray v. Sanders.

            Relegating any urban voter, regardless of race, with intention and malice to well less than "full person" for voting just might not pass muster.

            The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

            by pelagicray on Sat Jan 26, 2013 at 09:49:28 AM PST

            [ Parent ]

          •  That is not correct (0+ / 0-)
            Equal Protection Clause not applicable to simply doing what Maine and Nebraska have done.
            No one has challenged Maine and Nebraska, so Constitutionality isn't a given.
            This is also pretty clearly an effort to rig the outcome of the election in a way that the voting population is not given equal treatment. That is arguably different from what Maine and Nebraska have done.

            +++ The law is a weapon used to bludgeon us peasants into submission. It is not to be applied to the monied elite.

            by cybersaur on Sat Jan 26, 2013 at 11:41:59 AM PST

            [ Parent ]

            •  please tell me who has standing to challenge (0+ / 0-)

              again, remember that you have some originalists on SCOTUS, and the original intent was to leave it up to the state legislature to decide.

              If the Congressional districts are constitutional, then awarding one elector to the winner of each congressional district seems on its face to be constitutional.  Each voter within a valid congressional district has her vote counted the same way, and that some districts have a higher number of voters in no way invalidates that Congressional district so long as they have roughly equal population at the time the districts are drawn, are contiguous, and were not set up with explicitly racial purposes.  The barrier on redistricting based on race is avoided simply by claiming the gerrymander is based on political registration or voting patterns, even if both of those are an artifact of the racial makeup.  It is why even under VRA some heavily gerrymandered districts both for Congress and for state legislative bodies have been upheld.

              Similarly, to award 2 electors representing the Senators to the winner of the statewide popular vote is on its face constitutional.

              What is not so clear is how what Virginia proposed to do, which is award those two based on the winner of Congressional Districts.  But since the Virginia proposal is not going to be enacted into law, we are unlikely to find out.

              "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

              by teacherken on Sat Jan 26, 2013 at 03:35:50 PM PST

              [ Parent ]

        •  Gee if a state has a large minority population by (0+ / 0-)

          this supposed legal and constitutional method they could just pop every minority into one or two districts...Nah, nothing illegal about reducing the black vote to meaningless worth... Now if they could do the same for women they could ride to every office on the backs of racists white men who like to see women and minorities as powerless chattel. Now if only Romney had won he could have used trickery to return us to pre civil war days... those glorious days for white european immigrants.

          OK OK they could leave a few minorities and collared women in each district as a way of maintaining deniability (Gee Bush knew all about deniability as CIA) Maybe even a 3/5 ths ratio to white men. Everyone else could be in those one or two districts. Protest then they could pass laws to lock you up in "for Profit" New age slavery prisons....Maybe even redefine terrorist like they are attempting to do with Nazi........... Would be interesting to see how many of these pols have investments in those prisons.

          Fear is the Mind Killer...

          by boophus on Sat Jan 26, 2013 at 02:47:28 PM PST

          [ Parent ]

          •  already happens (0+ / 0-)

            you simply claim you are gerrymandering based on party registration or voting patterns.  That all the Dems happen to be black is coincidental to that.   which is why such gerrymanders have been upheld under review under VRA preclearance requirement

            "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

            by teacherken on Sat Jan 26, 2013 at 03:38:20 PM PST

            [ Parent ]

            •  So we do nothing because it is legal? So I guess (0+ / 0-)

              We have to just accept it right?  Its already happening. Well there we have it... game over , we lost and they have won. Boy do I feel stupid for being involved in politics when we never had a chance. I am so not into having my hair set afire. Enough.

              Fear is the Mind Killer...

              by boophus on Sat Jan 26, 2013 at 09:11:01 PM PST

              [ Parent ]

              •  you miss the point entirely (0+ / 0-)

                splitting by congressional district is as far as we know constitutional, it conforms with the one man one vote principle that applies within a state, provided the two "at large" electors are awarded on the basis of a statewide vote.  Vriginia's proposed awarding to whoever wins the most congressional districts might well not be sustained, but the way Maine and Nebraska have done it would be at least on the basis of one man one vote.

                I have never argued that just because something is constitutional means I think it is right. I am only responding to those who are arguing such distribution of electors is itself unconstitutional.

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Sun Jan 27, 2013 at 04:31:18 AM PST

                [ Parent ]

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