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View Diary: Stop saying Republican electoral-vote rigging is constitutional. It's not. Here's why. (193 comments)

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  •  You keep saying ME and NE are constitutional (1+ / 0-)
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    burlydee

    Please point me to the case that says it.  This is a novel issue that has not been addressed by any appellate court.  If no one bothers to challenge a law, then we don't know if it's constitutional or not.  Most likely because it made no difference to any election since 1968 and 1980 when those states passed their laws.

    I also disagree that you have to find the districts unconstitutional for legislative purposes, to find that hijacking them to steal the national Presidential election is unconstitutional.  Apples and oranges.  

    There's no justiciability problem here.  So the Supreme Court would have to directly address the constitutional standard for political vote dilution claims.  And a situation that allows 40% of a state's voters to award 80% of a state's electoral votes will be hard to justify.  Upholding this plan would be Bush v. Gore II.  Does Roberts have the guts to do it?  Does Kennedy?  If this is passed, it will go to the Supreme Court.

    •  Based on your above comment (1+ / 0-)
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      Sparhawk

      you seem to argue that how Maine and Nebraska do split EVs is unconstitutional.  But I don't see how that is so because no one is claiming that those districts are gerrymandered.  And that is your whole point as to why you think that split EV is unconstitutional.

      The language is pretty clear in the Constitution that state legislatures can allocate EVs as they please.  If they could allocate the EVs themselves in the past, how is that ever worse than everyone getting the opportunity to vote, as is today?

      It is done. Four More Years.

      by mconvente on Tue Jan 29, 2013 at 01:35:09 PM PST

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      •  No I don't argue that at all. (2+ / 0-)
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        burlydee, nosleep4u

        Maine and Nebraska's systems may be constitutional, they may not.  I'm saying that they have not been the subject of a constitutional challenge, so the fact that they exist does not mean they are constitutional.  It means that no one has sued to overturn them.

        Further, there are key differences.  I'm not certain that either state could be considered politically gerrymandered.  Nebraska has only 3 congressional seats.  It has been firmly red forever, and has 3 Republican congressmen for the last 20 years, even in the Omaha seat that Obama won in 2008.  (The ONLY time an EV went the opposite way from the state as a whole.)  Maine has only two seats; one district contains most of the cities and the other is mostly rural, yet they have elected only Democrats to the House for 16 years.  Plus, I doubt very highly that their apportionment schemes were intended or have the effect of diluting the votes of Republican or Democratic voters, respectively.  Those are important factors for a vote-dilution claim.  

        Your big mistake is the one I point out at the very beginning, and it's the one that's absolutely wrong.  Yes, the Constitution allows states to choose how to allocate its electors.  But IF IT CHOOSES voting, then the equal protection clause will apply to that voting scheme.  It's been the law for 50+ years, and even the Bush v. Gore conservatives agree on that point.

        Maybe you think there's no EP violation here.  Fine.  But that's NOT because the constitution doesn't apply to electoral-vote allocation plans.  It'd be because this scheme does not violate the one-person, one-vote principal.  

        •  Another item if I may (1+ / 0-)
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          scrivener76

          (and this was touched on up above)

          Courts sometimes admit there's an unfairness, yet find themselves unable to prescribe a remedy.

          Cases involving gerrymandering have already gone to SCOTUS and ended just like that, or partially like that. Which isn't really surprising -- laying out fair electoral maps is extremely hard.

          For the court to lay out a remedy for a gerrymander means either drawing a map themselves, or sending the original drawers back to make another map, or assigning an independent body ... blah blah blah .. it's a horrid mess. Courts hate even getting involved.

          But what Republicans are doing is tying a gerrymander to Electoral Vote division. It is the tie that can be challenged, and which has a simple remedy (i.e. remove it and go back to the usual winner-takes-all).

          That's a much simpler scenario. No mess, no fuss ... very easy for the courts to handle.

          "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

          by nosleep4u on Tue Jan 29, 2013 at 03:35:01 PM PST

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