Balkinization: Why the Court can't really solve the problem of fair representation

Comments:

Simply curbing gerrymandering would be an important step in the direction of democracy. But other steps would be important too:

1. Increase the size of the House to at least 550 (about the number needed for WY to be the size of a district) or, better still, to 657 (the size of Parliament). No constitutional amendment is needed for this.

2. Take districting away from the states and put it in the hands of a commission, as is now the case in many states. There should be guidelines in the law to curb gerrymandering if the Court fails to impose them. This is probably Constitutional, since the Constitution is silent on whether states or the federal government get to draw the lines.

3. Pass a national voting procedure act for federal elections. This should establish minimum number of polling places; hours of voting; voting dates; automatic voter registration; vote by mail rules; and similar provisions. This is constitutional under the "time, place, and manner" clause.

4. Pass a national voter rights act regulating the need for things like voter ID. Again, this should be constitutional under the "time, place, and manner" clause.

All this can probably be accomplished by statute (the one doubt being item 2). If enacted, I think it would solve the basic problems you identify in the post.

What it would not do is curb gerrymandering in state legislatures. There are more aggressive measures that could be taken both at the national level and in at least some of the states. I'll leave those for a later thread.

# posted by

Mark Field : 5:27 PM

Mark's right on 1. Indeed, in general, legislatures should be larger rather than smaller.

2. I don't think you can take districting away from the states entirety unless they fail to act. At least that's my reading of the Arizona Independent Redistricting Commission case, which is going to be the controlling authority. However, states can appoint commissions.

3 and 4 are fine.

What I would say more generally on this topic is that the root unsolveable problems in this area come from having a stupid Constitution written by people who were both idiots of historic proportion and whose main priority was locking in the privilege of southern whites to rape their slaves while telling a bunch lies about freedom and democracy and equality that some rubes even now continue to believe.

What you actually want are multi-member districts electing a legislature which then elects a prime minister to head the government. That way gerrymandering is less effective and partisan accountability is absolutely clear. Unfortunately, such a government would have threatened Thomas Jefferson's ability to rape Sally, so it was a nonstarter.

Until we junk our undemocratic Constitution, we are always going to have these problems.

# posted by

Dilan : 6:19 PM

Sandy:

Districting to achieve partisan advantage is as old as elections by districts and is still far superior to the alternatives. Multi-member districting and proportional voting severs the representative from the voters and instead reinforces their obligations to a political party. It also substantially destroys the distinction between a House representing localities and a Senate representing states.

Mark:

Commissions and courts do not eliminate partisan districting. Instead of elected state and congressional representatives making decisions to favor their political party, you have commissioners making the same partisan decisions. Democrats tend to favor commissions and courts making these decisions (especially in states with GOP majorities) because the decisions are far more likely to be made by progressives appointed from the political and legal establishments.

# posted by

Bart DePalma : 7:34 PM

Bart's comment shows that many of today's conservatives are radical relativists. Expertise and objectivity are impossible, everyone is biased, and equally so. No possible best way to build a road or deliver the mail, but a liberal or a conservative way; no possible best way to make districts, but a liberal or conservative way. It's a post-modernist fight to the finish. This is exactly how marxists and post-modernists that I went to school with think.

# posted by

Mista Whiskas : 8:04 PM

Mr. W:

When there is power and money at stake, there are no objective people.

# posted by

Bart DePalma : 8:35 PM

There are various things that can be done within the Constitution in place but it also has various aspects that make it harder to do them. Some of them required a new understanding of the Constitution in place as we saw in the New Deal era and at other times. We have seen some of this in recent years too, including changing constitutional norms on certain matters.

I think there are a limited amount of people who really have "great hopes" that the Supreme Court will do much regarding partisan gerrymandering, though there are certain ones who are. They should be wary as Election Law Blog expert Richard Hasen etc. has noted; for instance, it is no gimmee that Justice Kennedy will provide the fifth vote. He is the assumed fifth.

Mark Field provides some good options though as noted #2 might have to be narrowed, at least for the time being. Then, the others in the short term aren't likely either. The change that would require the other three might open up changes in the courts that in the long term would increase flexibility there too.

I would note that things like Puerto Rico democracy, the end of the natural born citizen provision and other matters should be looked at as well. Finally, when the Constitution was written, a means was set up to ratify it that did not follow the previous rule of unanimity. Madison referenced this in the Federalist Papers. He noted the old rule was basically to moronic to be taken totally seriously.

If there is a will for change, some flexibility in promotion of ideals will likely be accepted as well. It's a long battle that should be fought.

# posted by

Joe : 9:03 PM

If the Court disallowed statutory bans on gerrymandering, then it would become necessary to play Constitutional hard ball: expand the Court, for example; or refuse to seat representatives from gerrymandered states for violation of the republican form of government clause (enforceable by Congress under Luther v Borden). I'd hate to see things come to that over such an obviously corrupt process.

# posted by

Mark Field : 9:11 PM

I would have thought the court is not asked to assure fair representation, but to deal with the particular and egregious consequences of gerrymandering. It is all very well to say that gerrymandering as old as the hills, but computerised gerrymandering, as practiced in WI and elsewhere, is a whole new order of theft of people's votes.

Before computerised gerrymandering the rule of thumb was that a gerrymandering party needed to be within 5 points of a popular majority to achieve a narrow legislative majority. Computerised gerrymandering makes for results like WI 2012 where Republicans won 60 of the 99 Assembly seats in the Wisconsin Assembly on 48.6% of the two-party statewide vote and WI 2014 where Republicans won 63 of the 99 seats on 52% of the vote. Achieving a supermajority on a narrow popular majority is not as old as the hills and is a new and disturbing development.

Much as I approve of proportional representation, gerrymandering in the US is at crisis point and merits better ideas than opposing the good to advocate the perfect.

# posted by

Alan : 9:15 PM

SPAM's self-descriptive:

"When there is power and money at stake, there are no objective people."

summarizes the Robber Barons of The Gilded Age of the late 19th century when SPAM thought America was great. SPAM is reverting to his anarcho-libertarian mode.

# posted by

Shag from Brookline : 8:58 AM

Over at the Legal History Blog there is a post on the publication of "Gentlemen Revolutionaries Power and Justice in the New American Republic (Princeton University Press), by Tom Cutterham. I found the book description a quite interesting comparative to the views many of us have had over the years of reverence for the Founders/Framers. "Gentlemen" seems tongue-in-cheek, referencing certain professions, classes, such as property owners but avoiding slavery.

The Framers guaranteed to the states a republican form of government. But did the Constitution guarantee to "We the People" a republican form of government at the federal level? Was the former to be in the image of the federal government as laid out in the Constitution? There was no specific definition/standard provided in the Constitution for what constitutes a republican form of government. The Constitution was said to be a novel and noble experiment. How has this worked out, considering the issues raised in this post? Maybe the "Gentlemen" [and "Gentlewomen"] of today should take a knee - in prayer or whatever.

# posted by

Shag from Brookline : 9:22 AM

The thing is, while gerrymandering is a real problem, the plaintiffs aren't really trying to solve it.

Democrats in Wisconsin face two problems: Gerrymandering AND asymmetric clustering. The former the Court is open to treating as a constitutional violation, the latter the Court has already ruled isn't one.

Both Republicans AND Democrats engage in, and suffer at the hands of, gerrymandering. Only Democrats suffer from asymmetrical clustering. (That's the 'asymmetrical' part.)

So the plaintiffs proposed a two part test for "gerrymandering": Simulated redistricting, AND vote efficiency. A "gerrymander" would be declared only if both tests came up positive.

Simulated redistricting accurately detects gerrymandering. Vote efficiency can't tell the difference between gerrymandering and asymmetrical clustering. The combined test only detects Republican gerrymandering, not Democratic gerrymandering!

Think that's an accident? Think the Supreme Court won't notice?

The plaintiffs had a shot at getting the Court to do something about gerrymandering. They threw it away in an effort to get the judiciary to declare only Republican gerrymanders unconstitutional.

# posted by

Brett : 9:26 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:29 AM

Alan: Achieving a supermajority on a narrow popular majority is not as old as the hills and is a new and disturbing development.

This development has far less to do with computers and far more to do with partisan residency.

Over the past generation, Democrats have become a geographic rump party heavily concentrated in cities and a minority everywhere else. This is because the more conservative and family centered middle class have fled Blue cities for the burbs and the Democrats have progressively alienated the white working class dominating the heartland.

The concentration of Democrats in urban areas makes it easy to draw compact districts centered on communities of interest which disadvantage Democrats without resorting to gerrymandering.

Indeed, the only manner to maintain representation by district and create districts with small Democrat majorities (which is the Democrats real goal here) is to create gerrymanders reaching out of the urban center across suburban and rural areas and ripping apart communities of interest. This is why Sandy favors multimember districting schemes.

May I suggest the Democrats instead broaden their electoral appeal outside of their urban enclaves.

# posted by

Bart DePalma : 9:34 AM

Asymmetric clustering is a myth. In Australia we have one of the most urbanised populations on the planet but the Australian Electoral Commission, an independent body, manages to make regular redistributions (redistricting plans) for the single-member federal house of representatives that are free of partisan bias. Ditto the state electoral commissions for the 5 states that have single-member lower houses. Asymmetric clustering sounds marvellously scientific but it is actually a mere talking point.

Lest it be thought that that I am some effete coastal type as it happens I live in an electoral district that is 256 643 sq km in area (Texas is 268 596.46 sq km), and the town where I live is 690 kilometres from the nearest town the same size and 1100 km from the coast.

It really is remarkable how the US right is constantly on about the evils of government power but as soon as it is a matter of politicians drawing their electoral districts it is 'Trust the politicians all the way'.

# posted by

Alan : 9:49 AM

It's not a myth in the United States. It may very well be a myth in Australia; Nations aren't interchangeable, you know.

# posted by

Brett : 10:01 AM

The mathematical process of drawing districts with equal population is universal. The urban population of Australia is 89%. The urban population of the US is 81%.

# posted by

Alan : 10:09 AM

I'm not sure "myth" is the right word. People do live in cities, and they tend to vote Democratic. The Rs look at this and say "let's draw a bunch of small districts in those cities and compress the Dem vote." The Dems point out that the Rs are gerrymandering districts because they drew districts for partisan advantage (that being what gerrymandering is). The Rs respond "oh no, we didn't do that. We just wanted everyone in cities to vote together. Compact districts are neutral. It's a shame our opponents suffer from that, but that's the way nature intended it."

# posted by

Mark Field : 10:15 AM

Alan: Asymmetric clustering is a myth. In Australia we have one of the most urbanised populations on the planet but the Australian Electoral Commission, an independent body, manages to make regular redistributions...

Non sequitur.

Urban populations per se are not the issue, but rather the US partisan divide between urban populations and the rest of the nation.

Australian districting looks like that in your average red state.

# posted by

Bart DePalma : 10:33 AM

# posted by

Brett : 10:41 AM

"Districts" are intended to produce representatives who represent groups of people with common interests and views. That's the only excuse for even having districts.

If you draw districts that aren't compact, that don't respect geography, then the districts don't serve that purpose.

I'm not sure how this follows. Why does a district have to be "compact" to represent people with common interests and views? If that is "the only excuse" I would think we would have quite funny looking districts since people with 'common interests and views' (I'm not sure how that is determined; e.g., I don't think "states" is necessarily as important there as our current Constitution determines; there are lots of interests and views; what ones count? plus maybe diversity of views is actually a good thing) don't all live in compact areas.

There are actually various "excuses" or let's use a better word -- decent reasons -- to draw districts. By Brett's own logic, compactness very well might violate the one reason. But, then, when people cite one thing as the reason for something, it's probably time to be worried. Since that often isn't true. I think this just reaffirm's Mark "artificial rules" argument.

BTW, I appreciate Alan's perspective both international and otherwise. The "myth" to me is not that people cluster somehow in urban areas but that we lack an ability to appropriately address the situation in a good districting scheme. It very well might be easier to violate that ideal in respect to cities since "neutral" rules "require" us to do so, but analysis has shown otherwise.

# posted by

Joe : 11:10 AM

BD: "When there is power and money at stake, there are no objective people."

Shag: summarizes the Robber Barons of The Gilded Age of the late 19th century when SPAM thought America was great. SPAM is reverting to his anarcho-libertarian mode.

Everyone acts out of self or family interest.

In a free market, all transactions are voluntary and you can only become a "Robber Baron" by producing goods and services at a price which consumers are willing to purchase. Self or family interest is thus transformed into positive public interest.

In a progressive political economy, government directs or forbids the people's transactions. Progressives justify this totalitarian system by claiming a mandarin class running the government can objectively allocate power and money better than we can for ourselves. However, totalitarians cannot outlaw human nature. You become a "Robber Baron" by buying off elected representatives and capturing the unelected absolute bureaucracy. Self or family interest is thus transformed into negative public corruption.

# posted by

Bart DePalma : 11:22 AM

"Districts" are intended to produce representatives who represent groups of people with common interests and views. That's the only excuse for even having districts.

No, the reason for having districts was to make sure that everyone got a say:

“It was a provision everywhere established that the Country should be divided into districts and representatives taken from each, in order that the Legislative Assembly might equally understand and sympathize with the rights of the people in every part of the Community.” Madison, 26 July 1787.

This is not because of "common interests", it's to assure universality. As I pointed out in the previous thread, quoting Wilson and Adams, the purpose of representation is to "mirror" society at large. People with interests in common get to vote to express those interests. They don't need gerrymandering to do that.

In fact, gerrymandering exists for the express purpose of preventing the representation of common interests. For the umpteenth time, it considers one, and only one, "common interest": party. Districts aren't gerrymandered to lump farmers together or apartment dwellers together, they're gerrymandered to lump Ds together or Rs together.

# posted by

Mark Field : 11:27 AM

"learn to appeal to people who don't live in urban centers, and the problem goes away"

This is done -- people in urban areas aren't aliens or something that don't have interests that overlap with those in non-urban areas. Coalitions are also important to obtain electoral victories. There are differences and they can be taken advantage of. OTOH, there is the basic concept of majoritarian government where the government reflects the people at large. The problem perhaps is lack of respect of that.

# posted by

Joe : 11:27 AM

Our dynamic dyslexic Muffets duo Bert and Brat suggest:

"As Bart says, learn to appeal to people who don't live in urban centers, and the problem goes away."

Perhaps if the people who don't live in urban centers learn to appeal to those who do, the problem might go away. The former may be avoiding diversity by geographical/gerrymandering means but there's the changing demographics to contend with.

# posted by

Shag from Brookline : 11:29 AM

Reference is made gerrymandering to advance party interests.

I gather gerrymandering can be for other interests such as race or religion. These often are done to advance party interests but need not be. Thinking big, e.g., certain national lines might have been drawn rather artificially for such purposes.

# posted by

Joe : 11:35 AM

Joe: Why does a district have to be "compact" to represent people with common interests and views?

In my state of Colorado, the Denver megalopolis has fundamentally different needs and wants than the remainder of the state made up of small cities and towns set in largely rural areas.

When we have state-wide initiatives (analogous to Sandy's preferred multi-member districts or a presidential election without the electoral college), Denver voters often force their costly preferences on the rest of the state, like solar/wind power mandates or forbidding rural areas economic use of their own land so they can remain playgrounds for urban residents.

Democrat and Democrat court districting plans are designed to have the same effect by creating districts radiating out from the Denver megalopolis where urban voters narrowly outnumber suburban and rural voters.

However, a standard districting plan which keeps communities of interest intact gives suburban and rural voters their own representation and forces a compromise between urban and suburban/rural needs and wants.

# posted by

Bart DePalma : 11:36 AM

The Merriam-Webster definition of gerrymander is “to divide (a territorial unit) into election districts to give one political party an electoral majority in a large number of districts while concentrating the voting strength of the opposition in as few districts as possible”.

Race and religion discrimination generally are handled via restrictions on voting. Discrimination against minorities does occur with gerrymandering, but as the Rs themselves say nowadays, they aren't trying to discriminate against blacks, that just happens because blacks are Dems.

# posted by

Mark Field : 11:57 AM

Shag: but there's the changing demographics to contend with.

People may be fixed forever by color and ethnicity in your mind, but most people see these as social constructs which change over time.

Hispanics are much like Mediterranean immigrants like my Italian ancestors in this way.

When my people first arrived from a village outside of Brindisi, they were consider "swarthy" and not really "white" like Americans with northern European heritage. After generations of assimilation and intermarrying, though, Italian-Americans like myself are lumped together with WASPs in their own minds and those of most other Americans as part of "white' America.

The same thing is happening with Hispanic immigrants, who increasingly self identify as both Hispanic and "white," even though most of them have some Indian or African heritage. From a personal perspective, men and women of Hispanic heritage are marrying into my family. They are not "Hispanics" no more than I am "Italian." We are all one big rambunctious family.

I wonder if the increasing use of DNA tests to determine our genetic heritage will change perspectives of race and ethnicity like ultrasound changed views of the humanity of the unborn. We are all interbred mutts. The idea of a pure race or ethnicity is genetic nonsense.

# posted by

Bart DePalma : 12:07 PM

Mark's idea of refusing to seat elected representatives would lead to civil war and properly so. I thought that crap was settled by Powell v. McCormick.

Mark's ideas are as dangerous in their own way as Roy Moore's. We lose some power so we throw a temper tantrum and destroy democracy? I fear for the country.

# posted by

Dilan : 12:20 PM

This comment has been removed by the author.

# posted by

Joe : 12:41 PM

The second M-W definition is "to divide (an area) into political units to give special advantages to one group; gerrymander a school district." The term "political" also might be used broadly if it fits at all. For instance, you hear in various cases about preventing "religious gerrymanders" that apply not just to school district lines, but in a wider sense regarding dividing benefits and burdens (e.g., Harlan's usage in Walz). Republican usage today is duly noted, sure.

BTW, voters in NY -- this might interest Sandy Levinson -- have to decide in November whether to support a new state constitutional convention. I'm sympathetic. Someone gave me a flyer against it yesterday & when I asked her a basic question about how it would be set up, she wasn't aware. The public's ignorance regarding ballot measures are particularly problematic here.

# posted by

Joe : 12:42 PM

"We lose some power so we throw a temper tantrum and destroy democracy?"

Lose some power? In what sense? Mark is concerned about overall republican principles here. Not merely losing an election or "some power."

He cites the Guarantee Clause. After the Civil War, Congress did not seat members that were elected from certain states because they were deemed not to be republican. It is "democracy" for the majority in Congress to apply the Constitution in this sense. At the very least, how exactly are we "destroying" it?

The Reconstruction was hard medicine and Mark says it would be unfortunate if it got that far. How far? Well, a majority in Congress (two branches, one that has a filibuster at the moment, signed by the President) passes a law forming a commission system that he argues is essential to truly uphold republican democracy as set forth in our Constitution & the Supreme Court strikes it down as unconstitutional.

Mark's temper tantum seems rather sedate too. Anyway, Dilan agreed with much of what Mark had to say, so seems significant common ground. Given how much Dilan at times finds Mark's (and mine) opinions distasteful, that makes me a little less fearful if the country as a whole can do that as well.

# posted by

Joe : 1:22 PM

How far? Well, a majority in Congress (two branches, one that has a filibuster at the moment, signed by the President) passes a law forming a commission system that he argues is essential to truly uphold republican democracy as set forth in our Constitution & the Supreme Court strikes it down as unconstitutional.

And, in addition, the Court refuses to enforce democracy in its own rulings.

Mark's temper tantum seems rather sedate too.

Heh.

It's remarkable when you think it through. The Rs are refusing to seat Dem representatives by recourse to an obviously corrupt process. Nobody thinks that the Dems would or should start a "civil war" for that reason. Yet in an extreme case in which (a) the Court refuses to strike down that corrupt process; and (b) strikes down a legislative attempt to remedy the process and make fair, we're supposed to fear "civil war" from the Rs if Dems then (and only then) refuse to seat R representatives by exercising an expressly granted Constitutional power which (1) the Court has said Congress can exercise; and (2) which Congress has previously exercised.

# posted by

Mark Field : 1:39 PM

SPAM responds to a comment of mine opening with this:

"People may be fixed forever by color and ethnicity in your mind, but most people see these as social constructs which change over time."

While I can understand that "we're all mutts," that second clause ignores the recent events during the short Trump Administration to date. Consider how long it's been since the Civil War Amendments. Consider immigration controls aimed at Muslims. Consider how long it's been since Hitler was defeated. Trump is prepared to build walls against "social constructs." But SPAM's claim of "most people" suggest he's high in his Mile High State (of Mind).

But note that it was SPAM's comment earlier that Puerto Ricans were not assimilating that raised my comment.

# posted by

Shag from Brookline : 4:01 PM

" The Rs are refusing to seat Dem representatives by recourse to an obviously corrupt process. "

Get a grip. You losing elections DNE Republicans refusing to seat the winners of elections.

# posted by

Brett : 5:46 PM

"Winning elections" is an Orwellian phrase when it comes to gerrymandered districts.

# posted by

Mark Field : 6:41 PM

Bart, here is the map of federal electoral divisions in New South Wales, our largest state.

http://www.aec.gov.au/Elections/federal_elections/2016/files/nsw-results-map-2016.pdf

You will note there are rather large regions where adjoining districts vote the same way.

Labor voters cluster in cities. Liberal/National* voters cluster outside cities. Greens voters cluster in the inner city, which is why the Greens hold 1 seat out of 150.

I say the map disproves that:

1. Australian districting looks like Red state districting.

2. Australian voters are any less clustered along a partisan divide than US voters.

The Liberal Party of Australia lies roughly where the US Republicans do on the political spectrum although they are not as socially conservative.

# posted by

Alan : 8:21 PM

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# posted by

Joe : 8:56 PM

In 1790, the most populous state (VA) was found to have 747,610 people.

This would be about the average for a single district [710,767 in 2010] now though as things go certain districts (including four states) would not have that.

Let's see if, like after FDR and the 22A, if current events lead to constitutional change, either small or large scale.

# posted by

Joe : 9:31 PM

Alan:

You linked to a map of the results of a multi-party election in South Wales. Apart from the fact the US has a two party system, your map does not show the urban/suburban/rural areas nor the partisan breakdown of registered voters in each district.

# posted by

Bart DePalma : 10:02 PM

Bart

Thank you for confirming that when you made the statement about what Australian districting looks like you had not looked at any Australian districting. Australian lower house elections are fought between the Coalition and Labor. The Coalition comprises the Liberal and National parties except in the state of Queensland where they form a single Liberal-National party.

No dubt in your searching an;usis of the map you discovered that seats in NSW were won only by the Coalition Labor. Equally your searching analysis no doubt revealed only two districts, Richmond and Eden-Monaro, that do notvorder another district that votes the same way.

Nor is it immediately obvious why the number of parties that contest an election should effect redistricting unless redistricting is being deliberately done (as proved to be the case in Florida despite fervent, indignant and heart-wrenching claims to the contrary by the legislative majority) to favour one party at the expense of the other.

# posted by

Alan : 1:11 AM

Is there a Democrat plan to lure 3.5 million Puerto Ricans to the mainland and settle them in certain rural areas to address Republican gerrymandering?

Is it coincidence that the hurricane that devastated PR was named Maria? (Following Irma there were two tropical storms with names beginning with "J" and "K" which were non-threatening.) This was a reminder of the Broadway musical "West Side Story" that became a movie in 1961. It was about some difficulties of assimilation back in New York City, with some songs that remain popular today, e.g., "I just Met A Girl Named Maria." But there was another song I recall (with a different pronunciation) "They Call the Wind Maria) from a different Broadway musical perhaps more descriptive of the recent devastation of PR. Hurricane Maria was not the fault of the inhabitants of PR, although Trump and his base of Revengelicals (fka White Evangelicals) may think otherwise. Consider this verse:

ACTS OF GOD?

Cafeteria Agnostics
Engage in gymnastics
In dealing with such Acts
Not being based on facts.

The rain in Spain,
The hurricane,
Volcanic eruption,
Trump’s election?

The faithful proclaim
These in HIS name,
As the connection,
Even Trump’s election.

This may be the proof
The CREATOR’s a spoof:
Electing a President
Without any precedent.

Some disasters are natural,
Some may be Satanical.
GOD may claim the former,
While rejecting the latter.

If GOD does exist,
There is this twist:
Is Trump in HIS image
Or just a mirage?

September 12, 2017

# posted by

Shag from Brookline : 8:55 AM

President Trump has provided a rewrite for "The Mouse That Roared" with his reference to "Rocket Man." I wonder how his Secretary of State Rex Tillerson feels about that and his recent tweets directing Rex that it's a "NoNo" to pursue diplomatically with NoKo.

# posted by

Shag from Brookline : 11:51 AM

Since the right to vote is a "liberty" and a "privilege" of citizenship and cannot be denied without "equal protection," the 14th Amendment is of special note in this area. The First Amendment also has been argued to be a factor in voting disputes, including political parties, ballot access and perhaps voting as a form of petition.

[A 1A source for the right to vote is suggested in Harper v. Virginia Bd. of Elections, but it was decided on other grounds.]

There is also the little remembered second section:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

The overall constitutional (including the Guarantee Clause, protecting a republican form of government, small "r") system suggests to me that "according to their respective numbers" should be done without illicit gerrymandering.

If "the right to vote" is "in any way abridged" -- "in any way" -- there is a penalty in place. Specific exceptions (later amended) are included, emphasizing how strong that rule should be applied. Later amendments do not override this penalty; they provide a blanket protection in certain instances. But, "in any way abridged" is broad. For instance, the barrier to poll taxes in a later amendment only addresses federal elections.

A contributor on this blog has addressed the usage of this section; that is, the unconstitutional lack of application:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017614

Also, amendments protecting the right to vote expressly in various ways have enforcement mechanisms. Thus, e.g., if there is a denial of the right to vote by sex in such and such a state, the penalty that reduces congressional delegations would logically be reasonable enforcement. The article notes that it was assumed the provision in 14A, sec. 2 applied to women voters after the 19A was passed.

This provision might factor into Mark Field's hardball option.

# posted by

Joe : 12:18 PM

I am a software developer in the field of online maps and have volunteered to help shed light on gerrymandering by producing high quality Google + GIS maps showing voting districts at both the state and federal level. These maps all have a consistent look-and-feel.

There are two ways to see the maps. Below are a few examples. For more information please open any of these maps and then click "Map Tips" in the upper left corner.

Method #1 - Parameters in the link

Display Wisconsin state house districts.
These are the districts at issue in the Gill v Whitford “efficiency gap” case.
https://mappingsupport.com/p/gmap4.php?t=m&state=WI,house

Display Wisconsin state house districts with #70 highlighted:
https://mappingsupport.com/p/gmap4.php?t=m&state=WI,house,70

Display Wisconsin congressional districts:
https://mappingsupport.com/p/gmap4.php?t=m&congress=WI

Display Wisconsin congressional districts and highlight #3:
https://mappingsupport.com/p/gmap4.php?t=h&congress=WI,3

Method #2 - Basemap button

1. Open Gmap4. https://mappingsupport.com/p/gmap4.php?t=m
2. Click or tap the basemap button (next to the "Menu" button).
3. Look under the "Overlay" heading. Mobile users need to scroll down.
4. Select "State_legislature_districts" or "Congress_districts".
5. Refine your selection

Click a district and a popup will appear with information about the person(s) elected to represent that district.

Among other things, the "Map Tips" show how to turn geolocation on and how to search on an address.

# posted by

Joseph Elfelt : 12:39 PM

Alan:

I made my point about the similarlity in district shape. No need to play "yes they do, no they don't" with you.

Districting for partisan advantage is different with 4-5 parties in a parliamentary system with coalitions than a two party system, winner take all system like the US. I will explain it if you like.

Once again, you claimed that US asymmertic partisan clustering was a myth and offered Australia as the supposed cure. I noted that the Aussies operate under a different multi-party parliamentary system with coaltions and you have not provided any evidence the two major Aussie party voters are geographically distributed like the US parties.

# posted by

Bart DePalma : 1:31 PM

Joe:

There is a difference between a right to vote and a "right" to elect reprsentatives from a particular political political party, which is nowhere to be found in the Constitution.

# posted by

Bart DePalma : 1:34 PM

Query: Is there to be found in the Constitution a specific "right to vote"?

# posted by

Shag from Brookline : 1:53 PM

Shag:

Implied right. Mandatory elections require voters. Equal protection of the law requires an equal franchise.

# posted by

Bart DePalma : 2:04 PM

Query: Is there to be found in the Constitution a specific "right to vote"?

I think so though in a complete sense it is more implied and a matter of applying an existing right to vote in an equitable way.

For instance, upfront:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Since states always chose the most numerous branch by elections, this would in practice result in a right to vote, if limited by state law. The 14A references "the right to vote at any election" in the context of the penalty.

I think the right to vote is implicit in a republican form of government. I think that was always understood. It was just a matter of how broad it is and what is needed to truly protect it.

# posted by

Joe : 2:28 PM

Textualists in practice go beyond the actual text, as noted by one self-proclaimed textualist's responded "Implied right." This implication suggests a living constitution as surely dead people can't vote, except during The Gilded Age when the Robber Barons controlled politicians. The Constitution did not initially specifically state who could and could not vote. That was left to the states, each of which might have a different rule. Later Amendments addressed former slaves and women. There is much about the Constitution that is implied, but not necessarily consistently, including by the Court. One might ask why the Framers did not address a right to vote more specifically, including who could vote and at what age. Language-wise it wouldn't have been that difficult. This brings to mind that the Constitution does not specifically use the words "slave" or slavery and seems to avoid reference to females and female pronouns.

Before I posed my query, I did some Googling on the "right to vote" set forth in the Constitution. I found a site that focused on a long list of words and phrases that are not specified in the Constitution but are associated with constitutional law, including "separation of church and state." While the Constitution does include the phrase "republican form of government," it does not define the phrase. Sandy's title to this post suggests to me 5-4, either way, until ....

# posted by

Shag from Brookline : 4:26 PM

Shag:

Text can communicate express and implied meanings. Textualists have problems with courts creating powers and rights our of thin air without a basis in or sometimes in direct contradiction to the text.

# posted by

Bart DePalma : 4:44 PM