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

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  •  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

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      •  See my comment, below. (1+ / 0-)
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        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

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      •  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

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

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        •  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

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          •  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

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    •  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

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      •  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

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        •  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

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