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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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  •  okay.. I'll go one more round (4+ / 0-)

    Telling me to re-read your diary is hardly a compelling argument.

    This is specious at best.

    Vote dilution can violate the equal protection  clause.  Full stop.
    That is the one thing we can all agree on.  This isn't a new argument.  This is a legal fact.  I am not challenging this.  My point is that you can not magically parlay that truism into a compelling Constitutional argument that splitting EV's based on existing Congressional Districts is unconstitutional.  

    Your argument seems to rest on the fact that all these states have illegally gerrymandered districts constructed to explicitly dilute the vote which strikes me as a vivid case of Slothful Induction.

    A) If these districts are so woefully unconstitutional why haven't we seen a challenge to any of them anywhere?  Electoral College assignments aside, such supposedly unlawful disparity would be already in use to allow one party to unfairly control the House of Representatives.  

    B) If the current rigged system of hand-tailored congressional districts worked together to provide such an unassailable lock for Republican Majority thereby guaranteeing the Presidency, how is that the Democrats had a majority of the nation's 435 Congressional Districts as recently as January 3rd 2011 when Nancy Pelosi was Speaker?

    C) These laws and districts are all drafted by State legislatures.  Again, if the Republican party could work such an unconstitutional voter dilution conspiracy it would suggest they have some covertly crafted design to preserve their dominance in state-wide offices... and yet the Democrats have held a majority of the Senate (comprised of 100 explicitly state-wide elected officials) since January of 2007.

    Despite all of this and with a utter and complete lack of citations showing where a court would actively step in to override existing  district maps, you seem ever so confident that this whole system is unconstitutional NOW when the GOP is considering altering not the districts themselves (which routinely draws scrutiny) but just the apportionment of EV's based on current maps.

    Yet we have glaring affirmative evidence in two states that, regardless of results, have statutorily enacted this EXACT methodology without a single challenege much less a Constitutional finding against them.  Your argument to this is just an argumentum ad ignorantiam proposition that since no one has ever challenged it in the FORTY YEARS its been in place there is no way to say it IS in fact Constitutional?

    The only way I could see your point possibly being valid is some kind of reverse winner-take-all whereby a state would count up not the total votes but the number of congressional districts won by a candidate and who ever had the most districts would get ALL of their EVs including those representing districts the candidate lost.  This could be seen as disenfranchising the majority, but if each district gets the appropriate elector it chose by popular vote, I simply fail to either see a Constitutional issue or evidence whereby you have made anything close to a compelling argument supporting one.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Tue Jan 29, 2013 at 02:55:26 PM PST

    [ Parent ]

    •  Massachusetts also used the CD method (0+ / 0-)

      back in the early 1800's

    •  This is a strawman. (3+ / 0-)
      Recommended by:
      chrismorgan, Larsstephens, chmood

      I make several points:

      (1) Equal protection principles are brought into play when a voting plan dilutes votes of a party.  This arises out of the gerrymander cases.  You seem to agree.

      (2) The fact that Congressional District challenges to political gerrymandering have failed, is that the Supreme Court (while finding these claims justiciable) cannot agree on a standard for remedying the alleged injury, and hence have never set that standard.

      (3) The current EV rigging scheme presents a question heretofore not answered by the Supreme Court, for any state: Does a state violate the equal protection clause when it adopts a plan to award electoral votes by reference to politically-gerrymandered legislative districts, where both the intent and effect is to reduce the voting power of the state's majority in selecting a President?

      I believe that the justiciability problem of legislative gerrymanders are not at issue.  Using the legislative districts as the basis to award the state's electoral votes is just a facade.   We know it's a facade because Reince Preibus and all these sponsors are admitting as much.  It's solely to elect Republican presidents contrary to the popular votes in specific states.  If that's unconstitutional vote dilution, then the remedy, and a simple one at that, is that one-person one vote is satisfied by the current electoral scheme.  The only issue is whether there is substantive vote dilution or not.  

      Maybe you disagree.  But there are smart lawyers who will disagree with you, and make their best arguments.

      •  I've met countless strawmen on the internet (1+ / 0-)
        Recommended by:
        Sparhawk

        I don't think Whisper erected one of them. IANAL but I do not see where he improperly re-stated your proposal and then attacked the false construction.

        •  uh (1+ / 0-)
          Recommended by:
          chmood

          "Your argument seems to rest on the fact that all these states have illegally gerrymandered districts constructed to explicitly dilute the vote which strikes me as a vivid case of Slothful Induction."  No, that's not what I was arguing.  So yes, it's a strawman.

          •  That is still not a strawman (1+ / 0-)
            Recommended by:
            Sparhawk

            A strawman would be something like "You said it's unconstitutional to gerrymander districts, but we all know that's not true".

            It seems to me that the two of you are arguing over wetehr or not the gerrymandering is so bad it rises to a level of abuse. And that strikes me as a disagreement of analysis over the crux of the matter.

            [shrug] It really does not matter much in the long run. I just think you and Whisper can make a more interesting debate than calling on strawmen. But I suspect the issue will will be won or lost in the political trenches. And here I see the GOP as vulnerable.

    •  If a state makes the weight of 4CDs population (0+ / 0-)

      less than 1/2 of the other CDs with the express intent of doing so and for the express purpose of reducing the weight of the 4CDs populations votes in the overall national election for President, is that not enough of a dilution for an e/p claim?  I believe it is more than enough.

      The differnece, as diarest says, is that these schemes are not writing on a blank slate.  They are changing existing law.  The intent and effect of that change is the only issue.

      Now, what is the difference bt reverse-winner-take-all and reverse-winner-take-almost-all?  For constitutional purposes there should be none.  The change causes a dilution (or burdens) the fundamental voting right of the 4 CDs population that is different only in degree and not kind in the 2.

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