Gerrymandered
July 20, 2007 6:23 AM Subscribe
The shortest-splitline algorithm for drawing N congressional districts. You can seee examples of their unbiased district-drawing algorithm in action compared with the gerrymandered districts drawn by politicians.
One of the problems is that lines are angled, so you end up with lots of weird anomalies, like congressional districts going through houses, splitting towns, etc.
posted by delmoi at 6:34 AM on July 20, 2007
posted by delmoi at 6:34 AM on July 20, 2007
Wow, this is a good idea. I wish it had a snowball's chance in hell of being implemented.
posted by GrammarMoses at 6:34 AM on July 20, 2007
posted by GrammarMoses at 6:34 AM on July 20, 2007
I'm not sure if it's logically possible to have an "unbiased" algorithm to map districts. If it has criteria for determining where the lines go (which it obviously must), it is biased toward those criteria.
posted by aaronetc at 6:38 AM on July 20, 2007 [1 favorite]
posted by aaronetc at 6:38 AM on July 20, 2007 [1 favorite]
How about an independent board overseen and selected by the Supreme Court? That would remove a few degrees of party loyalty.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 6:39 AM on July 20, 2007
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 6:39 AM on July 20, 2007
They consider splitting houses in their algorithm, and that idea could be extended for splitting towns. You just need to decide which side of the line a whole town will go, and redraw accordingly. As long as that decision is made in a deterministic fashion -- we always put towns on the north side of the line -- I don't see how you have a big issue.
posted by chunking express at 6:40 AM on July 20, 2007
posted by chunking express at 6:40 AM on July 20, 2007
I'm not sure if it's logically possible to have an "unbiased" algorithm to map districts.
Yeah, well, it's definitely possible to have an algorithm that doesn't use detailed socioeconomic demographic data down to the house level for every house on every street to determine how districts are drawn. I actually know a little about this first hand: They analyze all that kind of data extensively when creating district boundaries, using detailed maps that provide drill-downs all the way down to the level of individual houses--seriously.
posted by saulgoodman at 6:52 AM on July 20, 2007
Yeah, well, it's definitely possible to have an algorithm that doesn't use detailed socioeconomic demographic data down to the house level for every house on every street to determine how districts are drawn. I actually know a little about this first hand: They analyze all that kind of data extensively when creating district boundaries, using detailed maps that provide drill-downs all the way down to the level of individual houses--seriously.
posted by saulgoodman at 6:52 AM on July 20, 2007
this is very cool, chunking express--thanks!
posted by saulgoodman at 6:52 AM on July 20, 2007
posted by saulgoodman at 6:52 AM on July 20, 2007
Nonpartisan computerized district drawing could do much more than this, though this is nice.
Imagine a world where -every- district was contested, every election. With 465 HR seats to juggle at once, the parties wouldn't be able to throw gargantuan amounts of money at any of them in particular. Instead of focusing on a few battleground states or districts, they'd have to spread their resources and attentions to the whole country. Instead of comfortably democratic or republican strongholds, there would be a constant attempt to determine the needs of one's actual constituents and satisfy them. Rather than toe a party line, our representatives could represent us.
posted by anotherpanacea at 6:53 AM on July 20, 2007 [8 favorites]
Imagine a world where -every- district was contested, every election. With 465 HR seats to juggle at once, the parties wouldn't be able to throw gargantuan amounts of money at any of them in particular. Instead of focusing on a few battleground states or districts, they'd have to spread their resources and attentions to the whole country. Instead of comfortably democratic or republican strongholds, there would be a constant attempt to determine the needs of one's actual constituents and satisfy them. Rather than toe a party line, our representatives could represent us.
posted by anotherpanacea at 6:53 AM on July 20, 2007 [8 favorites]
GIS technology is what they currently use in at least one extremely gerrymandered state.
posted by saulgoodman at 6:54 AM on July 20, 2007
posted by saulgoodman at 6:54 AM on July 20, 2007
I'm not sure if it's logically possible to have an "unbiased" algorithm to map districts.
It's not. Every possible set of districts makes it more likely that one person can get elected, and less likely that another can. They could be unbiased ex ante -- drawing random district lines would do this -- but the realized districts would still be biased ex post.
posted by ROU_Xenophobe at 6:55 AM on July 20, 2007 [1 favorite]
It's not. Every possible set of districts makes it more likely that one person can get elected, and less likely that another can. They could be unbiased ex ante -- drawing random district lines would do this -- but the realized districts would still be biased ex post.
posted by ROU_Xenophobe at 6:55 AM on July 20, 2007 [1 favorite]
Imagine a world where -every- district was contested, every election.
The problem with this isn't gerrymandered districts. The problem with this is that high-quality (potential) challengers are themselves strategic actors who choose when to time their congressional runs with great care.
With 465 HR seats to juggle at once
435.
the parties wouldn't be able to throw gargantuan amounts of money at any of them in particular
Donations from parties to congressional campaigns are already limited at a fairly low amount.
Instead of comfortably democratic or republican strongholds, there would be a constant attempt to determine the needs of one's actual constituents and satisfy them.
MCs already do this. This is a big part of why they stay elected: they are highly skilled at delivering what their constituents actually demand, and avoiding what they actually dislike.
Note that what constituents actually like and dislike can differ strongly from what constituents say they like or dislike. Lots of people say they favor or dislike things that in practice they don't give a shit about.
You've also counteracted the goals of these people. They're not trying to make districts that have close to a 50-50 partisan balance. If anything, a state with lots of 55-45 or closer districts would indicate very strong gerrymandering, since that's what you would do if you were trying to get the highest possible number of your party elected.
posted by ROU_Xenophobe at 7:03 AM on July 20, 2007
The problem with this isn't gerrymandered districts. The problem with this is that high-quality (potential) challengers are themselves strategic actors who choose when to time their congressional runs with great care.
With 465 HR seats to juggle at once
435.
the parties wouldn't be able to throw gargantuan amounts of money at any of them in particular
Donations from parties to congressional campaigns are already limited at a fairly low amount.
Instead of comfortably democratic or republican strongholds, there would be a constant attempt to determine the needs of one's actual constituents and satisfy them.
MCs already do this. This is a big part of why they stay elected: they are highly skilled at delivering what their constituents actually demand, and avoiding what they actually dislike.
Note that what constituents actually like and dislike can differ strongly from what constituents say they like or dislike. Lots of people say they favor or dislike things that in practice they don't give a shit about.
You've also counteracted the goals of these people. They're not trying to make districts that have close to a 50-50 partisan balance. If anything, a state with lots of 55-45 or closer districts would indicate very strong gerrymandering, since that's what you would do if you were trying to get the highest possible number of your party elected.
posted by ROU_Xenophobe at 7:03 AM on July 20, 2007
How about an independent board overseen and selected by the Supreme Court?
*snort* Another problem made worse by Bush's handpicked 5-4 crew.
posted by Blazecock Pileon at 7:04 AM on July 20, 2007
*snort* Another problem made worse by Bush's handpicked 5-4 crew.
posted by Blazecock Pileon at 7:04 AM on July 20, 2007
I assume he means state supreme courts, as districting happens at the state level, not federal.
posted by absalom at 7:12 AM on July 20, 2007
posted by absalom at 7:12 AM on July 20, 2007
Rather than toe a party line, our representatives could represent us.
I like it, but...
posted by anotherpanacea
...eponysterical.
posted by DU at 7:12 AM on July 20, 2007
I like it, but...
posted by anotherpanacea
...eponysterical.
posted by DU at 7:12 AM on July 20, 2007
I assume he means state supreme courts
There's no reason to assume that would be better than SCOTUS -- many states (though I think not all) have elected Supreme Courts, and though they're officially non-partisan they do operate under many of the same partisan pressures as elected legislators.
posted by aaronetc at 7:19 AM on July 20, 2007
There's no reason to assume that would be better than SCOTUS -- many states (though I think not all) have elected Supreme Courts, and though they're officially non-partisan they do operate under many of the same partisan pressures as elected legislators.
posted by aaronetc at 7:19 AM on July 20, 2007
I'm not sure about this idea. It doesn't account for account for watersheds, geographic barriers, major, metropolitan areas, and cultural differences. For example Maryland’s congressional districts give 7 of the 9 districts direct Chesapeake Bay frontage, where as under the redrawn map only 5 have frontage. The current setup gives Baltimore a stronger voice in congress, by assigning a small piece of the city to multiple representatives. This is beneficial to getting congressional funding on large infrastructure projects necessary for the health of a city. Party identity is hardly fixed anymore anyway. Consider the drop in the number of people who identify as Republicans in the last few years.
posted by humanfont at 7:32 AM on July 20, 2007 [1 favorite]
posted by humanfont at 7:32 AM on July 20, 2007 [1 favorite]
I think that there are problems deeper than gerrymandering which if fixed would make it almost irrelevant.
First is plurality voting. It is one of the worst methods you could come up with.
Second is the unfortunate tie of local politicians to national identities. Here in IL, I might want a moderate republican over the insanely corrupt democrats in power (to keep them honest). However, I will not send a republican to Washington/Springfield who votes for the R candidate for speaker/majority leader and advances the agenda of right-wing extremists. Reverse the identities if you're a moderate conservative in the south. Without third parties or functional primaries (below) you're trapped.
Third is the completely broken primary system. Incumbents always win, and only axe-grinding party die-hards (to a close approximation) vote in primaries anyway. This is 100% caused by the fact that real voters are too busy/lazy to get involved in the intricacies of intra-party politics. Hell, I'm a pol junkie and I don't bother to vote in primaries.
If you used IRV or another system (or people cared about primaries) there wouldn't be such thing as a safe district where corrupt and incompetent incumbents could sit around, because they'd be replaced by better candidates from within. If you had 55:45 districts the candidates would move to the center rather than just cash in on 55% with no real choice. It's unfortunate that this can't really happen because a) people are busy/lazy b) that would take away money parties would rather spend elsewhere c) no incumbent would conceivable want to do this and d) the issue is too complex to matter to voters.
posted by a robot made out of meat at 7:37 AM on July 20, 2007 [4 favorites]
First is plurality voting. It is one of the worst methods you could come up with.
Second is the unfortunate tie of local politicians to national identities. Here in IL, I might want a moderate republican over the insanely corrupt democrats in power (to keep them honest). However, I will not send a republican to Washington/Springfield who votes for the R candidate for speaker/majority leader and advances the agenda of right-wing extremists. Reverse the identities if you're a moderate conservative in the south. Without third parties or functional primaries (below) you're trapped.
Third is the completely broken primary system. Incumbents always win, and only axe-grinding party die-hards (to a close approximation) vote in primaries anyway. This is 100% caused by the fact that real voters are too busy/lazy to get involved in the intricacies of intra-party politics. Hell, I'm a pol junkie and I don't bother to vote in primaries.
If you used IRV or another system (or people cared about primaries) there wouldn't be such thing as a safe district where corrupt and incompetent incumbents could sit around, because they'd be replaced by better candidates from within. If you had 55:45 districts the candidates would move to the center rather than just cash in on 55% with no real choice. It's unfortunate that this can't really happen because a) people are busy/lazy b) that would take away money parties would rather spend elsewhere c) no incumbent would conceivable want to do this and d) the issue is too complex to matter to voters.
posted by a robot made out of meat at 7:37 AM on July 20, 2007 [4 favorites]
Party identity is hardly fixed anymore anyway. Consider the drop in the number of people who identify as Republicans in the last few years.
It's not about party identity, humanfront. Politicians from both parties use gerrymandering to create more or less demographically and ideologically homogeneous groupings of voters, and then they play off of the relatively predictable political interests of those groups. This happens at all levels of government, and the politicians all work together to game the system. For example, one of our city commissioners recently negotiated a hugely unpopular land development settlement on behalf of the city commission for a district he doesn't represent. The vast majority of the voters from the district affected wanted to see the development deal scuttled; the commission as a whole wanted the deal to move forward (and the one representative from the district in question wasn't powerful enough to stop them, having only one vote). But the voters from the district of the commissioner who actually made the unpopular development deal could care less about that issue, so he's not likely to see any decline in support among his own constituents.
I cite this as only one example of the kind of political game-playing politicians more and more frequently use to serve their personal interests at the expense of the citizens they purportedly represent. And having the explicit legal authority to draw district boundaries which take partisan interests into account (as the courts have affirmed) at any level of government only empowers them that much more to game the system. Anything that can be done to standardize the redistricting process would be an improvement, IMO, imperfect a solution as it might be.
posted by saulgoodman at 7:56 AM on July 20, 2007
It's not about party identity, humanfront. Politicians from both parties use gerrymandering to create more or less demographically and ideologically homogeneous groupings of voters, and then they play off of the relatively predictable political interests of those groups. This happens at all levels of government, and the politicians all work together to game the system. For example, one of our city commissioners recently negotiated a hugely unpopular land development settlement on behalf of the city commission for a district he doesn't represent. The vast majority of the voters from the district affected wanted to see the development deal scuttled; the commission as a whole wanted the deal to move forward (and the one representative from the district in question wasn't powerful enough to stop them, having only one vote). But the voters from the district of the commissioner who actually made the unpopular development deal could care less about that issue, so he's not likely to see any decline in support among his own constituents.
I cite this as only one example of the kind of political game-playing politicians more and more frequently use to serve their personal interests at the expense of the citizens they purportedly represent. And having the explicit legal authority to draw district boundaries which take partisan interests into account (as the courts have affirmed) at any level of government only empowers them that much more to game the system. Anything that can be done to standardize the redistricting process would be an improvement, IMO, imperfect a solution as it might be.
posted by saulgoodman at 7:56 AM on July 20, 2007
@humanfont:
I was thinking along similar lines when looking at the Minnesota map; Minneapolis and St. Paul (the 'core' cities, i.e., the ones that are most important and also have the greatest needs) look like they're lumped in together while most of the suburban vote is spread across several representatives.
I suspect this is a problem for most metropolitan areas under this scheme. I like an unbiased districting scheme in principle, but I think there are more important issues, such as most everything listed in a robot made out of meat's post.
posted by Ickster at 8:10 AM on July 20, 2007
I was thinking along similar lines when looking at the Minnesota map; Minneapolis and St. Paul (the 'core' cities, i.e., the ones that are most important and also have the greatest needs) look like they're lumped in together while most of the suburban vote is spread across several representatives.
I suspect this is a problem for most metropolitan areas under this scheme. I like an unbiased districting scheme in principle, but I think there are more important issues, such as most everything listed in a robot made out of meat's post.
posted by Ickster at 8:10 AM on July 20, 2007
Unless I don't fully understand the implications, this seems pretty naive. And while I'm sympathetic to the problems of boundaries being redrawn by the incumbent to suit their current authority I think to completely ignore the social and economic implications seems to render the point of politics null - the boundaries are drawn to be fair to people, not to the land.
(I think that it is possible for politics to have a positive role in bettering our lives and that wasting time over partisan problems isn't so useful.)
Also, fixing the boundaries by an 'objective' approach seems very dangerous. The fight over which algorithm to use would become the focus and merely displace the what is fought over - rather than the line of the boundary it would be the construction of the algorithm. And if an independent body is set up, they too, would have an agenda - and dividing by land area doesn't necessarily produce 'fairness' afterall - it just affects people by the degree to which they occupy land (both positively and negatively).
Dividing a state evenly by area can result in rural votes getting more authority (because a lower population density district has the same authority as a higher density one at the state level), unless there is a large conurbation in the district in which case it renders the rural vote pretty worthless. These are complicated problems.
(on preview: basically, I'm following humanfront's and ickstar's tone of thinking).
posted by blindsam at 8:16 AM on July 20, 2007
(I think that it is possible for politics to have a positive role in bettering our lives and that wasting time over partisan problems isn't so useful.)
Also, fixing the boundaries by an 'objective' approach seems very dangerous. The fight over which algorithm to use would become the focus and merely displace the what is fought over - rather than the line of the boundary it would be the construction of the algorithm. And if an independent body is set up, they too, would have an agenda - and dividing by land area doesn't necessarily produce 'fairness' afterall - it just affects people by the degree to which they occupy land (both positively and negatively).
Dividing a state evenly by area can result in rural votes getting more authority (because a lower population density district has the same authority as a higher density one at the state level), unless there is a large conurbation in the district in which case it renders the rural vote pretty worthless. These are complicated problems.
(on preview: basically, I'm following humanfront's and ickstar's tone of thinking).
posted by blindsam at 8:16 AM on July 20, 2007
You know what the funny thing is gerrymandering isn't the problem. the problem is the house being capped at 405 a matter which in fact is technically in violation of the constitution. Public Law 62-5 contravenes the constitution and changes the house from 10000+ members to 435 as you can imagine 435 people are easier to control than 10000. Gerrymander all you want as long as I don't have 1 rep for 400,000 people I'm cool.
posted by Rubbstone at 8:19 AM on July 20, 2007
posted by Rubbstone at 8:19 AM on July 20, 2007
Rubbstone: Pull out your constitution. All it says about the number of reps is "The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative."
But, you know, whatever.
posted by absalom at 8:41 AM on July 20, 2007
But, you know, whatever.
posted by absalom at 8:41 AM on July 20, 2007
And while I'm sympathetic to the problems of boundaries being redrawn by the incumbent to suit their current authority I think to completely ignore the social and economic implications seems to render the point of politics null - the boundaries are drawn to be fair to people, not to the land.
yeah, that all sounds nice and pretty, but in reality, redistricting is driven by the partisan interests of the party in power at the time of redistricting. this is not even something people in politics try to obfuscate, and the courts have actually weighed in affirming that taking partisan interests into account when redistricting is fair game, so don't think for one minutes current districting practices have got anything at all to do with the nobler egalitarian impulses you're describing.
posted by saulgoodman at 8:57 AM on July 20, 2007
yeah, that all sounds nice and pretty, but in reality, redistricting is driven by the partisan interests of the party in power at the time of redistricting. this is not even something people in politics try to obfuscate, and the courts have actually weighed in affirming that taking partisan interests into account when redistricting is fair game, so don't think for one minutes current districting practices have got anything at all to do with the nobler egalitarian impulses you're describing.
posted by saulgoodman at 8:57 AM on July 20, 2007
The reason we have such ridiculous districts is because of the made-up principle of "one person, one vote" that the Supreme Court completely invented out of whole cloth.
posted by dios at 9:48 AM on July 20, 2007
posted by dios at 9:48 AM on July 20, 2007
dios--can you elaborate? i've often seen passing references to the "one person, one vote" principle, but have never really understood the context.
posted by saulgoodman at 10:20 AM on July 20, 2007
posted by saulgoodman at 10:20 AM on July 20, 2007
dios--can you elaborate? i've often seen passing references to the "one person, one vote" principle, but have never really understood the context.
posted by saulgoodman at 12:20 PM on July 20
Sure.
"One person, one vote" according to the Warren Court's articulation in Reynolds v. Sims led to a rule that both houses of every state legislature had to be apportioned on a population basis so that, as far as possible, every vote had equal weight. Or to put it in other terms, my vote for my representative counts as 1 out X, just like your vote over there across the state counts as 1 out of X (where X is the number of people in your district). This is opposed to a scenario wherein my vote counts as 1 out of 500 and your vote counts as 1 out of 1,000 which means my vote counts roughly twice as much as your vote. So, rhetorically, I have twice as many votes as you. A little background on the subjects at play here, so I apologize for the history lesson.
The United States Constitution establishes a bicameral legislative branch: the House of Representatives and the Senate.
As per the Constitution, the House is constitutionally required to be compromised of members apportioned by "Numbers" or by people. (Article 1, Sect. 2). Apportioned by numbers is a "one person, one vote" like concept.
Conversely, the United States Senate compromised by two members of each state. Since states have fluctuating populations, this is emphatically not a "one person, one vote" scenario. Those voting for a Senator of California live in a state where their vote counts as 1 out of roughly 36,000,000 votes. Someone living in Wyoming has their vote count as 1 out of roughly 400,000. Thus, someone in Wyoming has a lot more weight behind their vote than someone in California. In short, the United States Senate as specifically designed in the Constitution violates a principle of one person, one vote.
The issue before the Supreme Court back in Reynolds and some other notable voting cases was state legislatures. The issue of state legislatures raises another point. The Constitution specifically requires in article IV, section 4, that "The United States shall guarantee to every State in the Union a Republican Form of Government..." Well what does that mean? James Madison writing about the proposed Constitution made clear that the "Guarantee Clause" meant that state governments must be structured as representative democracies and could take any form so long as they do not become "aristocratic or monarchical." In short, the states were free to choose how to set up their representative governments.
This brings us to Alabama, the state complained of in Reynolds. Alabama had established their bicameral state legislature to be composed of a House of Representatives and a Senate. Alabama's House was apportioned based on Numbers; the Senate was compromised from a member from each county. In short, Alabama mirrored the United States Congress' structure in their state legislature. This was challenged under the Equal Protection clause because one person decided that it was not equal to have Alabama's senate compromised as such. Alabama argued since they mirrored the federal government, their structure could hardly be unconstitutional. But Judge Warren--in what he later called his most important opinion--decided that it was unconstitutional for Alabama to structure their legislature like the federal government's.
In the amazing opinion, Warren argued that the United State Senate's structure was done for compromise reasons and therefore irrelevant to the question of political philosophy of whether such a structure is morally fair and equal. Or, in other words, Warren said the Senate was unfair and violative of equal protection.
The Court had no Constitutional grounds to rule as it did. The Constitution did not contain any requirement that state legislatures apportion as the Court required. Justice Frankfurter in a similar case (Baker v. Carr) and Justice Stewart in a companion case (Lucas v. Assembly) offered dissents that excoriated the rationale taken by Warren:
As a constitutional rule, it is baseless. As an act of judicial will, it was short-sighted and inappropriate for a judge. As a political idea, it was a failure as well.
I should note that "one person, one vote" is not a bad principle. Surely there is virtue in it. But it is not a constitutional rule required by the Constitution, and by inventing it, the Supreme Court caused more harm than good (as well as undermined the moral legitimacy of the federal government). Suddenly, states had to be more diligent in reapportioning districts in order to attempt to get to equal representation. It actually encourages gerrymandering as districts are drawn to get down to extremely low deviations (this is compounded by the extensions of the Reynolds cases that resulted in requirements about minority districts). And ironically, though it was putatively done to help cities according to Warren, the effect appears to have been to make suburbs more influential.
The concept is good. But it is not a constitutional rule, and the opinion that attempted to enshrine it in the constitution was an illegitimate act of demagoguery that resulted in unintended consequences and forces these kinds of things. At this point, abandoning the constitutional rule established by Warren probably wouldn't end gerrymandered districts, but it certainly was a major cause of them.
posted by dios at 12:09 PM on July 20, 2007 [8 favorites]
posted by saulgoodman at 12:20 PM on July 20
Sure.
"One person, one vote" according to the Warren Court's articulation in Reynolds v. Sims led to a rule that both houses of every state legislature had to be apportioned on a population basis so that, as far as possible, every vote had equal weight. Or to put it in other terms, my vote for my representative counts as 1 out X, just like your vote over there across the state counts as 1 out of X (where X is the number of people in your district). This is opposed to a scenario wherein my vote counts as 1 out of 500 and your vote counts as 1 out of 1,000 which means my vote counts roughly twice as much as your vote. So, rhetorically, I have twice as many votes as you. A little background on the subjects at play here, so I apologize for the history lesson.
The United States Constitution establishes a bicameral legislative branch: the House of Representatives and the Senate.
As per the Constitution, the House is constitutionally required to be compromised of members apportioned by "Numbers" or by people. (Article 1, Sect. 2). Apportioned by numbers is a "one person, one vote" like concept.
Conversely, the United States Senate compromised by two members of each state. Since states have fluctuating populations, this is emphatically not a "one person, one vote" scenario. Those voting for a Senator of California live in a state where their vote counts as 1 out of roughly 36,000,000 votes. Someone living in Wyoming has their vote count as 1 out of roughly 400,000. Thus, someone in Wyoming has a lot more weight behind their vote than someone in California. In short, the United States Senate as specifically designed in the Constitution violates a principle of one person, one vote.
The issue before the Supreme Court back in Reynolds and some other notable voting cases was state legislatures. The issue of state legislatures raises another point. The Constitution specifically requires in article IV, section 4, that "The United States shall guarantee to every State in the Union a Republican Form of Government..." Well what does that mean? James Madison writing about the proposed Constitution made clear that the "Guarantee Clause" meant that state governments must be structured as representative democracies and could take any form so long as they do not become "aristocratic or monarchical." In short, the states were free to choose how to set up their representative governments.
This brings us to Alabama, the state complained of in Reynolds. Alabama had established their bicameral state legislature to be composed of a House of Representatives and a Senate. Alabama's House was apportioned based on Numbers; the Senate was compromised from a member from each county. In short, Alabama mirrored the United States Congress' structure in their state legislature. This was challenged under the Equal Protection clause because one person decided that it was not equal to have Alabama's senate compromised as such. Alabama argued since they mirrored the federal government, their structure could hardly be unconstitutional. But Judge Warren--in what he later called his most important opinion--decided that it was unconstitutional for Alabama to structure their legislature like the federal government's.
In the amazing opinion, Warren argued that the United State Senate's structure was done for compromise reasons and therefore irrelevant to the question of political philosophy of whether such a structure is morally fair and equal. Or, in other words, Warren said the Senate was unfair and violative of equal protection.
The Court had no Constitutional grounds to rule as it did. The Constitution did not contain any requirement that state legislatures apportion as the Court required. Justice Frankfurter in a similar case (Baker v. Carr) and Justice Stewart in a companion case (Lucas v. Assembly) offered dissents that excoriated the rationale taken by Warren:
It has been unanswerably demonstrated before now that [one person, one vote] 'was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of the adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today.'"Justice Stewart went on to point out that if the goal was equally weighted votes, "I do not understand why the Court's constitutional rule does not required the abolition of of districts and the holding of all elections at large." Quite simply, the principle embraced by Warren in the absence of any constitutional basis did not even fulfill its own promise in the law created by Warren.
As a constitutional rule, it is baseless. As an act of judicial will, it was short-sighted and inappropriate for a judge. As a political idea, it was a failure as well.
I should note that "one person, one vote" is not a bad principle. Surely there is virtue in it. But it is not a constitutional rule required by the Constitution, and by inventing it, the Supreme Court caused more harm than good (as well as undermined the moral legitimacy of the federal government). Suddenly, states had to be more diligent in reapportioning districts in order to attempt to get to equal representation. It actually encourages gerrymandering as districts are drawn to get down to extremely low deviations (this is compounded by the extensions of the Reynolds cases that resulted in requirements about minority districts). And ironically, though it was putatively done to help cities according to Warren, the effect appears to have been to make suburbs more influential.
The concept is good. But it is not a constitutional rule, and the opinion that attempted to enshrine it in the constitution was an illegitimate act of demagoguery that resulted in unintended consequences and forces these kinds of things. At this point, abandoning the constitutional rule established by Warren probably wouldn't end gerrymandered districts, but it certainly was a major cause of them.
posted by dios at 12:09 PM on July 20, 2007 [8 favorites]
thanks for the history and context dios.
posted by saulgoodman at 1:03 PM on July 20, 2007
posted by saulgoodman at 1:03 PM on July 20, 2007
The Court had no Constitutional grounds to rule as it did. The Constitution did not contain any requirement that state legislatures apportion as the Court required.
Except of course for that pesky equal-protection clause. I'd have gotten away with that malapportionment, too, if it weren't for that 14th Amendment!
I suppose you can argue that the court just got it wrong and doesn't know what equal protection means, but I'll take the word of eight justices over yours.
Alabama's House was apportioned based on Numbers; the Senate was compromised from a member from each county. In short, Alabama mirrored the United States Congress' structure in their state legislature.
This would only be true if the US Congress could abolish, merge, and alter the boundaries of states at their whim. Relationships between states and counties are utterly unlike those between the federal government and the states.
posted by ROU_Xenophobe at 6:15 PM on July 20, 2007 [1 favorite]
Except of course for that pesky equal-protection clause. I'd have gotten away with that malapportionment, too, if it weren't for that 14th Amendment!
I suppose you can argue that the court just got it wrong and doesn't know what equal protection means, but I'll take the word of eight justices over yours.
Alabama's House was apportioned based on Numbers; the Senate was compromised from a member from each county. In short, Alabama mirrored the United States Congress' structure in their state legislature.
This would only be true if the US Congress could abolish, merge, and alter the boundaries of states at their whim. Relationships between states and counties are utterly unlike those between the federal government and the states.
posted by ROU_Xenophobe at 6:15 PM on July 20, 2007 [1 favorite]
this is compounded by the extensions of the Reynolds cases that resulted in requirements about minority districts
AFAIK, those were DoJ requirements under the Voting Rights Act, not from case law.
posted by ROU_Xenophobe at 6:16 PM on July 20, 2007
AFAIK, those were DoJ requirements under the Voting Rights Act, not from case law.
posted by ROU_Xenophobe at 6:16 PM on July 20, 2007
This would only be true if the US Congress could abolish, merge, and alter the boundaries of states at their whim. Relationships between states and counties are utterly unlike those between the federal government and the states.
Just wanted to echo this: the Warren court was confronting a number of different southern strategies to preserve segregation, and this was one of them. They acted under the authority of the 14th amendment, and well within its original intention and text: to prevent the South from re-enslaving the newly freed black populations or disenfranchising them politically. The fact that it took them a century to start delivering on the 14th's promise is no argument against the constitutionality of their actions, nor is the complaint that States had set themselves up similarly to the Federal gov't: they are different entities.
Donations from parties to congressional campaigns are already limited at a fairly low amount.
Yet the parties direct individual contributors and PAC money to the local races with ease. Don't you get the e-mails? "Support this candidate from bumfuck! She's one of us and can help us push -your- agenda!" For some reason, a lot of PACs think I share their agenda. Maybe it's because I like to give them my e-mail address to see what their campaign materials look like.
This is a big part of why they stay elected: they are highly skilled at delivering what their constituents actually demand, and avoiding what they actually dislike.
Where do you live? Sign me up.
posted by anotherpanacea at 6:00 PM on July 22, 2007
Just wanted to echo this: the Warren court was confronting a number of different southern strategies to preserve segregation, and this was one of them. They acted under the authority of the 14th amendment, and well within its original intention and text: to prevent the South from re-enslaving the newly freed black populations or disenfranchising them politically. The fact that it took them a century to start delivering on the 14th's promise is no argument against the constitutionality of their actions, nor is the complaint that States had set themselves up similarly to the Federal gov't: they are different entities.
Donations from parties to congressional campaigns are already limited at a fairly low amount.
Yet the parties direct individual contributors and PAC money to the local races with ease. Don't you get the e-mails? "Support this candidate from bumfuck! She's one of us and can help us push -your- agenda!" For some reason, a lot of PACs think I share their agenda. Maybe it's because I like to give them my e-mail address to see what their campaign materials look like.
This is a big part of why they stay elected: they are highly skilled at delivering what their constituents actually demand, and avoiding what they actually dislike.
Where do you live? Sign me up.
posted by anotherpanacea at 6:00 PM on July 22, 2007
Except of course for that pesky equal-protection clause.
You've completely missed the point. The Equal Protection clause only applies to the extent you find that there was some discrimination that deprives individuals rights (and then of course address what standard of review one would use). Thus, you have to begin from the question whether have one house of a state government that apportions its seats to the facially neutral entity of "one per county" somehow violates anyone's rights in a discriminatory manner.
If you want to argue that the equal protection clause was properly applied, then you have to answer how equal protection was denied to each individual when each individual equally was given one state senator based on their county and one representative based on their "numbers." Moreover, you have to overlook the incontrovertible facts contained the quote of Frankfurter above that at the time the Equal Protection clause came into being, there was no discussion or understanding that it would apply to state senates or that anything was wrong with state senates constituted in a manner similar to the US Senate. A fundamental tenet of constitutional interpretation is to look at the facts as they existed at the time of enactment to determine what the language was intended to address.
Equal protection clause does not mean "everything must be equal in every regard."
AFAIK, those were DoJ requirements under the Voting Rights Act, not from case law.
posted by ROU_Xenophobe at 8:16 PM on July 20
Correct. But the whole issue derived from the holdings in those cases.
Just wanted to echo this: the Warren court was confronting a number of different southern strategies to preserve segregation
Huh? Alabama had since its inception had a system designed to mirror the US Senate. It not a system created to "preserve segregation" as a sneaky workaround or whatever you are alleging. Remember, they had a bicameral state legislature with an apportioned state house of representatives.
and well within its original intention and text:
Again, as noted, it violates every known theory of constitutional interpretation (and certainly the "original intent" standard) to say that a practice that was permitted and standard at the time of passing and not something that was intended to be fixed from its passage was somehow violative of the . In other words, somewhere in the debates regarding the Amendment and its passage or soon thereafter this widespread practice would have been brought up and challenged if it was something that the Amendment was designed to address.
nor is the complaint that States had set themselves up similarly to the Federal gov't: they are different entities.
That is besides the point. The question is this: does a system which apportions legislative members based on geography instead of numbers violate fundamental rights of the represented. The Court in Reynolds said it did. (There's the dicta about how people vote, not trees). The Court found it violated fundamental rights to derive legislative members based on anything other than numerical apportionment. Thus, by necessary implication, the Court concluded that the Senate violated fundamental rights. I fail to see how one can use a text-based interpretative standard which would read the equal protection clause in a way that results in the conclusion that the federal senate is violated of the clause. The only sane reading of the amendment is one that does not assume the drafters intended to undermine the US Senate and change most state's legislatures.
And I would add one more thing to the two of you who think this is a principled decision: why isn't the necessary result of the analysis that districts themselves should be abolished and all elections be done at large?
posted by dios at 7:31 AM on July 23, 2007
You've completely missed the point. The Equal Protection clause only applies to the extent you find that there was some discrimination that deprives individuals rights (and then of course address what standard of review one would use). Thus, you have to begin from the question whether have one house of a state government that apportions its seats to the facially neutral entity of "one per county" somehow violates anyone's rights in a discriminatory manner.
If you want to argue that the equal protection clause was properly applied, then you have to answer how equal protection was denied to each individual when each individual equally was given one state senator based on their county and one representative based on their "numbers." Moreover, you have to overlook the incontrovertible facts contained the quote of Frankfurter above that at the time the Equal Protection clause came into being, there was no discussion or understanding that it would apply to state senates or that anything was wrong with state senates constituted in a manner similar to the US Senate. A fundamental tenet of constitutional interpretation is to look at the facts as they existed at the time of enactment to determine what the language was intended to address.
Equal protection clause does not mean "everything must be equal in every regard."
AFAIK, those were DoJ requirements under the Voting Rights Act, not from case law.
posted by ROU_Xenophobe at 8:16 PM on July 20
Correct. But the whole issue derived from the holdings in those cases.
Just wanted to echo this: the Warren court was confronting a number of different southern strategies to preserve segregation
Huh? Alabama had since its inception had a system designed to mirror the US Senate. It not a system created to "preserve segregation" as a sneaky workaround or whatever you are alleging. Remember, they had a bicameral state legislature with an apportioned state house of representatives.
and well within its original intention and text:
Again, as noted, it violates every known theory of constitutional interpretation (and certainly the "original intent" standard) to say that a practice that was permitted and standard at the time of passing and not something that was intended to be fixed from its passage was somehow violative of the . In other words, somewhere in the debates regarding the Amendment and its passage or soon thereafter this widespread practice would have been brought up and challenged if it was something that the Amendment was designed to address.
nor is the complaint that States had set themselves up similarly to the Federal gov't: they are different entities.
That is besides the point. The question is this: does a system which apportions legislative members based on geography instead of numbers violate fundamental rights of the represented. The Court in Reynolds said it did. (There's the dicta about how people vote, not trees). The Court found it violated fundamental rights to derive legislative members based on anything other than numerical apportionment. Thus, by necessary implication, the Court concluded that the Senate violated fundamental rights. I fail to see how one can use a text-based interpretative standard which would read the equal protection clause in a way that results in the conclusion that the federal senate is violated of the clause. The only sane reading of the amendment is one that does not assume the drafters intended to undermine the US Senate and change most state's legislatures.
And I would add one more thing to the two of you who think this is a principled decision: why isn't the necessary result of the analysis that districts themselves should be abolished and all elections be done at large?
posted by dios at 7:31 AM on July 23, 2007
The only sane reading of the amendment is one that does not assume the drafters intended to undermine the US Senate and change most state's legislatures.
The fact that you continue to assert an equation between the US Senate and the state legislatures is telling. Moreover, we should be clear that both the original text and its intentions could quite easily go unenforced in a situation like the failure of Reconstruction: to argue otherwise is to assume that the intentions of later judges and legislatures should govern the meaning of a text or the intentions of its authors, rather than the authors or text themselves.
Actually, let's jettison this author-based orginalism right now, before it confuses the issue further: what matters is what the text says, not what the authors meant, since the authors are legion and have multiple and conflicting intentions. Scalia's attack on original intent (rather than original meaning) seems to me to be right on: legislative history is so much bunk, subject to undemocratic manipulation and by no definition is it reasonably a part of the final product.
What the text guarantees is equal protection of the laws, and followed as it is by the fifteenth amendment, the text gives us strong reason to believe that the laws protect voting rights for African-Americans. You would have it that that right is nonexistent (I recall from some other thread) or that it is simply the right to mark one's preference on a ballot, while the Warren Court holds that a vote must have equal weight as others in order to be adjudged equal. Since the political process is the primary guarantor of protection, equal access to that process is going to have some hefty requirements. Contra King, justice delayed is still justice.
why isn't the necessary result of the analysis that districts themselves should be abolished and all elections be done at large?
Because the court wanted to preserve the notion of a constituency and enunciate general principles rather than specific regulations:
The fact that you continue to assert an equation between the US Senate and the state legislatures is telling. Moreover, we should be clear that both the original text and its intentions could quite easily go unenforced in a situation like the failure of Reconstruction: to argue otherwise is to assume that the intentions of later judges and legislatures should govern the meaning of a text or the intentions of its authors, rather than the authors or text themselves.
Actually, let's jettison this author-based orginalism right now, before it confuses the issue further: what matters is what the text says, not what the authors meant, since the authors are legion and have multiple and conflicting intentions. Scalia's attack on original intent (rather than original meaning) seems to me to be right on: legislative history is so much bunk, subject to undemocratic manipulation and by no definition is it reasonably a part of the final product.
What the text guarantees is equal protection of the laws, and followed as it is by the fifteenth amendment, the text gives us strong reason to believe that the laws protect voting rights for African-Americans. You would have it that that right is nonexistent (I recall from some other thread) or that it is simply the right to mark one's preference on a ballot, while the Warren Court holds that a vote must have equal weight as others in order to be adjudged equal. Since the political process is the primary guarantor of protection, equal access to that process is going to have some hefty requirements. Contra King, justice delayed is still justice.
why isn't the necessary result of the analysis that districts themselves should be abolished and all elections be done at large?
Because the court wanted to preserve the notion of a constituency and enunciate general principles rather than specific regulations:
A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering. Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multimember or floterial districts. Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.posted by anotherpanacea at 8:15 AM on July 23, 2007
You still have answered the question, anotherpanacea: what is the fundamental right at stake that is being discriminated against when a state has a bicameral legislature with a House apportioned by numbers and a Senate apportioned based on 1 per county? If you arguing that an individual is denied equal protection of the laws when every individual has one representative based on numbers and one senator based on their country, who is being discriminated against and how? Moreover, how is it racial discrimination as you continually allege (even though that is a cop-out based on the unfortunate fact Alabama was at issue, when in reality, the issue of race is irrelevant to the legal question as this could have been in Oregon and the analysis would be the same).
That's the question that is not answered. The "Equal Protection Clause" is not shorthand for "everything must be completely equal in all regards." You have to identify the threshold right at issue, how that is being discriminated against, and by what standard. You haven't answered that.
And the reason why the comparative federal Senate is relevant to the discussion is because of the inability of the Court or you to answer the question presented in any way which makes Constitutional or historical sense.
(And its good you abandoned original intent that you argued earlier because that view informs completely against your position.)
Because the court wanted to preserve the notion of a constituency and enunciate general principles rather than specific regulations
So you concede this was purely an act of judicial will based on what the Court wanted to do? Because you would be right. That's all this opinion was. It was an act of judicial will and not one based on constitutional principles. If it was a principled decision, the only natural conclusion is an abolishment of districts nationwide. Because it cannot be an application of their stated principle to allow State X to have at large elections and State Y to have SMP districts because in that scenario, the citizens of State X and State Y have different weight of their votes (now we can bring privileges and immunities to the party to play with the equal protection clause!). When it gets down to it, this was an act of political will by the Court to constitute state governments how they preferred, and in doing so, they actually had the unintended consequences of causing more gerrymandering, and--though they intended to add power to urban centers as Warren said--they ended up giving more power to suburbs.
posted by dios at 8:37 AM on July 23, 2007
That's the question that is not answered. The "Equal Protection Clause" is not shorthand for "everything must be completely equal in all regards." You have to identify the threshold right at issue, how that is being discriminated against, and by what standard. You haven't answered that.
And the reason why the comparative federal Senate is relevant to the discussion is because of the inability of the Court or you to answer the question presented in any way which makes Constitutional or historical sense.
(And its good you abandoned original intent that you argued earlier because that view informs completely against your position.)
Because the court wanted to preserve the notion of a constituency and enunciate general principles rather than specific regulations
So you concede this was purely an act of judicial will based on what the Court wanted to do? Because you would be right. That's all this opinion was. It was an act of judicial will and not one based on constitutional principles. If it was a principled decision, the only natural conclusion is an abolishment of districts nationwide. Because it cannot be an application of their stated principle to allow State X to have at large elections and State Y to have SMP districts because in that scenario, the citizens of State X and State Y have different weight of their votes (now we can bring privileges and immunities to the party to play with the equal protection clause!). When it gets down to it, this was an act of political will by the Court to constitute state governments how they preferred, and in doing so, they actually had the unintended consequences of causing more gerrymandering, and--though they intended to add power to urban centers as Warren said--they ended up giving more power to suburbs.
posted by dios at 8:37 AM on July 23, 2007
You have to identify the threshold right at issue, how that is being discriminated against, and by what standard. You haven't answered that.
I don't mean to be short, and I'll try to return later to respond in more detail, but I think the right 'to vote' covers it, and I'm not sure why you don't. I understand your policy complaints, though I'd also like to think about them some more, but the rights/equality issue seems utterly clear to me, as I explained it. I'm reminded of an account of the first amendment, itself dicta from one of the substantive due process cases (Griswold?), that discussed the penumbral rights contained within the first amendment. I may be a fuddy-duddy or a fool from a jurisprudential point of view, but that argument seems absolutely right to me: the right of association is guaranteed even though it's not enumerated, and the same can be said for the right to roughly equal districts in the right to vote.
posted by anotherpanacea at 9:29 AM on July 23, 2007
I don't mean to be short, and I'll try to return later to respond in more detail, but I think the right 'to vote' covers it, and I'm not sure why you don't. I understand your policy complaints, though I'd also like to think about them some more, but the rights/equality issue seems utterly clear to me, as I explained it. I'm reminded of an account of the first amendment, itself dicta from one of the substantive due process cases (Griswold?), that discussed the penumbral rights contained within the first amendment. I may be a fuddy-duddy or a fool from a jurisprudential point of view, but that argument seems absolutely right to me: the right of association is guaranteed even though it's not enumerated, and the same can be said for the right to roughly equal districts in the right to vote.
posted by anotherpanacea at 9:29 AM on July 23, 2007
but I think the right 'to vote' covers it
But what does that mean? Surely this is not a ballot access question. That issue has nothing to do with this. So what are you saying this "right to vote" means that was denied to individuals under the equal protection clause and where is this right found?
Look. If White Guy in Eastern Alabama gets to cast two votes: 1 for a candidate who will represent a district based on apportionment and 1 for a candidate who will represent his county, and Black Guy in Western Alabama gets to cast two votes: 1 for a candidate who will represent a district based on apportionment and 1 for a candidate who will represent his county... which of these two guys is being denied "the right to vote" or being discriminated against in some way that would trigger equal protection analysis?
You may think I am being oblivious or dense or something, but trust me, I know the arguments on both sides very, very well, and I can tell you this: no matter how far you go to justify the act of judicial will in Baker and Reynolds, you ultimately end up with nothing to hang your hat on other than a policy statement. There is no constitutional principle at the heart of them--or at least no constitutional principle based on the text and how those principles are decided in every other case applying that principle. All you end up with is a well-intentioned Court dealing with a political question and making a policy decision that resulted in unintended consequences. If you read the robust academic treatment of the topic, you will find that the "one person, one vote" cases are attacked from (what can crudely be characterized as) both sides of the jurisprudential question. Some criticize the fact that the principle has actually restricted efforts of what states could be doing to advance racial representation; some criticize it for being a poorly reasoned opinion that undermined the cause; some criticize it for an exemplar of judicial "activism;" some criticize it for violating the "political question" doctrine; some criticize it on federalism grounds. There is robust criticism of the opinions, and none of the criticism is based on the idea that the rhetorical principle of "one person, one vote" is bad. It is just widely criticized as a poor, poor judicial decision.
posted by dios at 9:57 AM on July 23, 2007
But what does that mean? Surely this is not a ballot access question. That issue has nothing to do with this. So what are you saying this "right to vote" means that was denied to individuals under the equal protection clause and where is this right found?
Look. If White Guy in Eastern Alabama gets to cast two votes: 1 for a candidate who will represent a district based on apportionment and 1 for a candidate who will represent his county, and Black Guy in Western Alabama gets to cast two votes: 1 for a candidate who will represent a district based on apportionment and 1 for a candidate who will represent his county... which of these two guys is being denied "the right to vote" or being discriminated against in some way that would trigger equal protection analysis?
You may think I am being oblivious or dense or something, but trust me, I know the arguments on both sides very, very well, and I can tell you this: no matter how far you go to justify the act of judicial will in Baker and Reynolds, you ultimately end up with nothing to hang your hat on other than a policy statement. There is no constitutional principle at the heart of them--or at least no constitutional principle based on the text and how those principles are decided in every other case applying that principle. All you end up with is a well-intentioned Court dealing with a political question and making a policy decision that resulted in unintended consequences. If you read the robust academic treatment of the topic, you will find that the "one person, one vote" cases are attacked from (what can crudely be characterized as) both sides of the jurisprudential question. Some criticize the fact that the principle has actually restricted efforts of what states could be doing to advance racial representation; some criticize it for being a poorly reasoned opinion that undermined the cause; some criticize it for an exemplar of judicial "activism;" some criticize it for violating the "political question" doctrine; some criticize it on federalism grounds. There is robust criticism of the opinions, and none of the criticism is based on the idea that the rhetorical principle of "one person, one vote" is bad. It is just widely criticized as a poor, poor judicial decision.
posted by dios at 9:57 AM on July 23, 2007
You may think I am being oblivious or dense or something....
No, I'm quite sure that you're making a well-justified assertion. But at present, you're not offering your justifications for scrutiny, which is to say that you've slid into making arguments from authority which will prevent me from continuing.
It may well be that most academics decry Reynolds, but that's what academics do: criticize. They criticize Griswold for looking like Lochner, and Lochner for looking like Dred Scott, &c. But I'd like to see the argument, and I haven't, for arguing that a right to vote, in order for that right to be meaningful, need not carry a right to roughly equal representation. You could say that the there is no such right, or that it offers no effective protections against the states, or that I ought to vote for representatives who will count my vote as a preference for fairer district-drawing, but I don't find those assertions persuasive without justification. How does the voting function without procedural guarantees of fairness?
You have to identify the threshold right at issue, how that is being discriminated against, and by what standard.
Again, the right is literally 'to vote', understood as the substantive right to have one's vote counted and to be represented equally with one's fellow citizens (all understood as logical emanations of that fundamental right 'to vote'), the discriminatory practice is reduced influence for African Americans, and some variation of strict judicial scrutiny in search of discriminatory intent seems to be the general standard applied in such cases.
Right now, the strongest argument I see is that this was simply outside of the court's purview, that they overstepped their legal authority by interpreting a constitutional amendment in a manner inconsistent with one exegetical strategy preferred by some jurists. But jurists disagree on exegesis, right? Why side with the originalists on this one?
In your hypothetical, I'd ask you this: what if I could show you the evidence (I'm still digging, but it looks like it's there) that Alabama deliberately redrew the county lines in 1903 to disenfranchise African-Americans? If I could show that they had deliberately redrawn school districts to segregate their schools, I'd be able to get relief, yet you'd argue that voting is somehow less important than education? (I'm extrapolating from Milliken here.) Surely state constitutions are not free from Supreme Court scrutiny, especially when equal protection issues arise. On your view, would my right to vote be fulfilled even if my ballot was trashed rather than counted?
When it comes to policy issues, I'd have to point out that democracy suffers from serious flaws in setting its membership and delimiting their scope: such issues are the hardest thing to settle democratically. Democracies run into catch-22s constantly (if you could vote you'd vote to be represented, but you can't, so you won't), and the Warren court acknowledged that and attempted to correct for it. Politically, that's something that the court was briefly able to do and may not be able to do any longer. Very briefly they tried to correct for democratic excesses and flaws, and they made it stick. Isn't that a strong argument in favor of their reasoning and methods? Why do you think that this precedent should be overturned?
posted by anotherpanacea at 12:25 PM on July 23, 2007
No, I'm quite sure that you're making a well-justified assertion. But at present, you're not offering your justifications for scrutiny, which is to say that you've slid into making arguments from authority which will prevent me from continuing.
It may well be that most academics decry Reynolds, but that's what academics do: criticize. They criticize Griswold for looking like Lochner, and Lochner for looking like Dred Scott, &c. But I'd like to see the argument, and I haven't, for arguing that a right to vote, in order for that right to be meaningful, need not carry a right to roughly equal representation. You could say that the there is no such right, or that it offers no effective protections against the states, or that I ought to vote for representatives who will count my vote as a preference for fairer district-drawing, but I don't find those assertions persuasive without justification. How does the voting function without procedural guarantees of fairness?
You have to identify the threshold right at issue, how that is being discriminated against, and by what standard.
Again, the right is literally 'to vote', understood as the substantive right to have one's vote counted and to be represented equally with one's fellow citizens (all understood as logical emanations of that fundamental right 'to vote'), the discriminatory practice is reduced influence for African Americans, and some variation of strict judicial scrutiny in search of discriminatory intent seems to be the general standard applied in such cases.
Right now, the strongest argument I see is that this was simply outside of the court's purview, that they overstepped their legal authority by interpreting a constitutional amendment in a manner inconsistent with one exegetical strategy preferred by some jurists. But jurists disagree on exegesis, right? Why side with the originalists on this one?
In your hypothetical, I'd ask you this: what if I could show you the evidence (I'm still digging, but it looks like it's there) that Alabama deliberately redrew the county lines in 1903 to disenfranchise African-Americans? If I could show that they had deliberately redrawn school districts to segregate their schools, I'd be able to get relief, yet you'd argue that voting is somehow less important than education? (I'm extrapolating from Milliken here.) Surely state constitutions are not free from Supreme Court scrutiny, especially when equal protection issues arise. On your view, would my right to vote be fulfilled even if my ballot was trashed rather than counted?
When it comes to policy issues, I'd have to point out that democracy suffers from serious flaws in setting its membership and delimiting their scope: such issues are the hardest thing to settle democratically. Democracies run into catch-22s constantly (if you could vote you'd vote to be represented, but you can't, so you won't), and the Warren court acknowledged that and attempted to correct for it. Politically, that's something that the court was briefly able to do and may not be able to do any longer. Very briefly they tried to correct for democratic excesses and flaws, and they made it stick. Isn't that a strong argument in favor of their reasoning and methods? Why do you think that this precedent should be overturned?
posted by anotherpanacea at 12:25 PM on July 23, 2007
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