Wednesday, May 27, 2015

Are We About to See Further Erosion of Our Voting Rights by the High Court

Vote: If your right matters and survives the next court Ruling re: One-man/One-Vote
(we are about to find out)

This post is extensive but I strongly believe it's a defining issue: our protected right to vote - which is BTW: still under great pressure as I have posted many times. Having said that, let's dive into this the latest issue:

Eye-catching headline: One-man/One-vote Under Pressure (case pending for October session) *see more on this below.

Introduction and Historical Background: The United States Supreme Court has NEVER required legislative districts to be drawn based on the number of voters, rather than the total population of the district. That perfect sense: kids are residents/not voters; some are legal residents (and not yet citizens); some may be not legal residents, but still live under the rules and laws of the land. They have rights even if they are registered to vote, but don’t; or, who are not registered to vote, but eligible to register but don’t; or, are both registered to vote, but only vote when they feel the urge to vote, etc. They all are entitled to the same equal protections of the constitution.

What I sense in this move in Texas (yeah, the state that has talked about secession) is bogus and simply aimed at voting rights across the board plus another assault on those here illegally, but also living and working and trying to maintain some sort of dignity in America.

The high court has issued multiple precedents to confirm that total population is a permissible apportionment base under the Equal Protection Clause and nothing else.

Related Background Articles – two links:

#1:  ONE MAN, ONE VOTE (Decades of Court Decisions)
Published: November 21, 1986

“People, not land or trees or pastures vote,'' former Chief Justice Earl Warren wrote in 1964 in one of a series of cases that created the principle of one man, one vote.
The principle was also applied again when a Federal District Court in Brooklyn ruled that the structure of the New York City Board of Estimate was unconstitutional. It was unfair, the court found, that the boroughs, with their widely disparate populations, should have the same representation on the powerful board.
The one-man/one-vote concept – refined in numerous court decisions – has been regarded as an important civil liberties issue, aiding blacks generally and people in urban areas and, as populations shifted, assuring representation for those living in the suburbs.
Through all its interpretations, the plainly articulated position of Chief Justice Warren about land, trees and pastures still seems incontrovertible.
Professor Henry P. Monaghan, Professor of Law at Columbia University, says that ruling ranks in the top three rulings of all time by high court and a string of decisions have been completely accepted, there has been almost no resistance. Those top three: (1) the one-man, one-vote decision; (2) Brown v. Board of Education in 1954, which mandated school desegregation; and (3) Roe v. Wade in 1973 re: a woman’s right to abortion. Monaghan adds that the one-man, one-vote decision has proved to be the least controversial.  
Until 1962, the Supreme Court declined to tackle the issue of political representation and population. In Colegrove v. Green in 1946, the court said that the issue was of a “peculiarly political nature and advised that the courts not enter this political thicket.” 
But in Baker v. Carr in 1962, the Court found that people living in cities in Tennessee had been seriously underrepresented in the state legislature. 'Good-Faith Effort'
The one-man, one-vote language was first used in a 1964 case, Wesberry v. Sanders. It extended the principle to Congressional elections. “As nearly as practicable, the Court ruled, “one man's vote in a Congressional election is to be worth as much as another's.”
Later that same year, in Reynolds v. Sims, the Court applied the principle to state legislatures and Chief Justice Warren spoke of land, trees and pastures.
In subsequent cases, the Court acknowledged that it would be difficult, if not impossible, to achieve an exact equality for all voters, but required the states to make “a good-faith effort to achieve precise mathematical equality.”
In 1983, for example, the high court ruled that the New Jersey Legislature had not made such an effort and threw out its Congressional district lines.
In general, the high court has required more exact standards for Federal districts than for state and local districts, allowing as much as 20 percent deviations from the standard for the states.
Court decisions over the last 35 years have certainly brought the country a long way from the situation in Maryland that H. L. Mencken once described as “The vote of a malarious peasant on the lower Eastern Shore counts as much as the votes of 12 Baltimoreans.” 

#2: One Person One Vote (or Was That One Voter One Vote?) 

March 18, 2013

WASHINGTON — With the exception of the Senate, where voters from states with small populations have vastly more power than those from, say, California or Texas, the rest of the American political system is committed to the bedrock principle of “one person one vote.”

Or is it? Whatever else may be said about the odd shapes of voting districts around the nation, they do tend to contain, often with exquisite mathematical precision, the same number of people. But not all of those people are eligible to vote. The distinction matters in places like Irving, Tex., where the City Council’s six districts have almost exactly the same number of people. But one of them, heavily Hispanic, has only about half the number of people actually entitled to vote. The political power of voters in that district is therefore amplified.

Think of it as “one person two votes.”

Voters from the other districts sued to challenge this state of affairs, and the Supreme Court is scheduled to decide next week whether to hear their case. Surprisingly, the court has never resolved the question of whether “one person one vote” means that voting districts should contain the same number of people or, instead, the same number of voters.

That this issue is still unresolved, 50 years after the court announced the one-vote-one-person doctrine, is remarkable,” said Richard H. Pildes, a law professor at New York University. “That it is coming to a head now is another constitutional manifestation — this time, in the voting context — of the dramatic rise in the non-citizen population in states along the border, such as Texas and Arizona.”

The case, Lepak v. City of Irving, No. 12-777, was the brainchild of the Project on Fair Representation, the same small conservative advocacy group that persuaded the justices to hear challenges this term to affirmative action and to a central part of the Voting Rights Act.

This that old case, “Lepak v. City of Irving” as a reminder and starting point for this new assault on the one-man/one-vote rule.

So, now, the high court will hear the case, called Evenwel v. Abbott, as that issue returns to the high court in a politically delicate question of how to translate the constitutional guarantee of “one man/one vote.” The oral argument will be heard during the court’s next term that starts in October.

A few facts:

1. Almost all state and local government draw districts based on total population. Those districts include all sorts of people not eligible to vote, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners.

2.  Were such people evenly distributed around the nation, the difference between counting all people and, only counting eligible voters would be of no moment. But the new challenge contends that recent demographic developments require the Supreme Court to act.

“Changing immigration patterns and federal policies have converted a problem that once impacted only a few jurisdictions into a national concern,” the challengers’ brief says.

Were the challengers in this new case to succeed, the practical consequences would be enormous, says Joseph R. Fishkin, a law professor at the University of Texas at Austin who wrote last year in The Yale Law Journal, saying in part: “…[it would] shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”

Up to now, Federal appeals courts have uniformly ruled that counting everyone is permissible, and one court has indicated that it is required. In the process, though, several judges have acknowledged that the Supreme Court’s decisions in this area have been murky and provide support for both approaches. The federal appeals court in New Orleans said the issue “presents a close question,” partly because the Supreme Court had been “somewhat evasive in regard to which population must be equalized.”

Judge Alex Kozinski, in a partial dissent from a decision of the federal appeals court in San Francisco, said there were respectable arguments on both sides. On one theory, he said, counting everyone ensures “representational equality,” with elected officials tending to the interests of the same number of people, whether they are voters or not. Counting only eligible voters, on the other hand, he said, vindicates the principle that voters “hold the ultimate political power in our democracy.” He concluded that the Supreme Court’s decisions generally supported the second view.

Even if counting only adult citizens is the correct approach, there are practical obstacles such as: “A constitutional rule requiring equal numbers of citizens would necessitate a different kind of census than the one currently conducted,” writes Nathaniel Persily, a law professor at Columbia, wrote in 2011 in the Cardozo Law Review. For now, he further said, “The only relevant data available from the census gives ballpark figures, at best, and misleading and confusing estimates at worst.”

What is the thinking of this generally 5-4 conservative court? Back in 2001, the high court turned down an opportunity to decide who counts in a democracy, in another case from Texas. Then Justice Clarence Thomas objected and wrote: “We have never determined the relevant ‘population’ that states and localities must equally distribute among their districts. The one-person-one-vote principle may, in the end, be of little consequence if we decide that each jurisdiction can choose its own measure of population. But as long as we sustain the one-person-one-vote principle, we have an obligation to explain to states and localities what it actually means.”

Maybe all this adds up to perhaps a Rick Perry “oops” moment, but I also am holding my breath about possibly another 5-4 decision against common sense and rational thinking. What about you?

If anyone who reads this is registered to vote or not – now would be the time to do both and tell a friend. What is stake? Oh, no more than our very structure as we have grown to know it – that is before these awful nasty ugly right wing attacks on everything good and decent that they advocate as good and decent. The GOP goal? Win at any price no matter who is damages or whose rights are flushed down the toilet - just win.

One word does come to mind regarding this massive GOP-Conservative view on voting: Hypocrites.

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