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

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  •  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. :)

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