Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
Breaking News: A re-districting case was actually decided today before another case was heard. It dealt with a limited issue but this discussion suggests it is of some importance. The discussion explains the "three judge courts" system in place that statutorily at least shows how important this issue is seen.
We are winding down are the twelve part series of "Landmark Cases" with another Warren Court entry (it stops with Roe v. Wade, so if they do this again, they can have a Burger-Roberts Court heavy series). The guests this week for a case concerning "one person, one vote" were Ted Olson and Douglas Smith, who wrote On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought One Person One Vote to the United States. Both did a good job, especially Smith, who at times had to summarize a lot of stuff, and did so succinctly. Stopping reading the book about a third through and skimmed the rest, but it was okay. Do think book should have provided a summary of the cases after the Reynolds v. Sims set, which could have been done quickly enough.
When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.... The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.
There is an important case (see Election Law Blog etc.) involving apportionment this week to determine who specifically needs to be counted to determine population. It's an important week (the Fisher affirmative action case is back) with a footnote yesterday with various orders. One involved the Supreme Court not taking a case (with Scalia and Thomas dissenting) involving possession of a certain type of "assault weapons." Note the discussion there on "rights" (very tedious and pretentious) by one person and how voting "rights" (Rights?) are seen as second class as compared to guns. But, I'm open to equal time here -- those who commit crimes should not blatantly be disenfranchised or disarmed.
Various provisions of the Constitution concern voting and protect voting rights in various respects while also structuring things in ways that are not always egalitarian. The U.S. Senate is an obvious example here -- equal as to states, but not to population. In a summary, Justice Douglas in Baker v. Carr argues:
So far as voting rights are concerned, there are large gaps in the
Constitution. Yet the right to vote is inherent in the republican form
of government envisaged by Article IV, Section 4 of the Constitution.
Other possible sources would be the First Amendment (including the right to petition), as a "liberty" or 9A right, a privilege of citizenship (perhaps joined with the Equal Protection Clause) and the Equal Protection Clause (once you grant voting rights, which will be done somehow, denying them would have to be done for some good reason). The Supreme Court just calls it a "fundamental right," which requires special concern. But, I do think a good argument can be made that as a whole at this time there is a constitutional right to vote. At any rate, denial has to be for a compelling reason, even under current law. A law not fully applied these days in respect to voting id laws and so forth.
The Constitution provides the states and Congress various powers to regulate elections, including setting suffrage requirements and apportionment rules. Justice Frankfurter in Colegrove v. Green to argue apportionment in general is a "political thicket" that the courts should not get involved in except for narrow cases (like racial gerrymanders). His concerns were in large part pragmatic and prudential -- Frankfurter (joined later in the Warren Court by Harlan) thought the federal courts were just not adequately skilled at this sort of thing and the political backlash would hurt their prestige. As the Supreme Court got more involved in protecting voting rights, though it did so in a limited way back to the 1880s, this line was seen as rather artificial. The seminal case itself was only 4-3 (two justices absent), the deciding justice not actually saying he felt the whole thing was non-justiciable. In fact, the book cited has a tidbit where a journalist informed Brennan the justice in question purposely decided things narrowly as a way to avoid a firmer statement of just that. Baker v. Carr in part is an expression of the courts at a major moment of activism, helped here by support of the executive department -- as with school segregation and later (under Kennedy) separation of church and state -- this is an important part of the story. The book, which has some good stuff though I got bored by the style (might just be me these days), does discuss there was strong opposition, led by the minority leader of the Senate. This led to an attempt -- only missing by one vote though the last couple states votes were controversial and eventually a couple took them back -- to have states force Congress to call a convention to amend the Constitution to give states more power to apportion without strings.
Another part of the story was the changing demographics of states with population shifts to urban and later suburban (at the end of the day, an important part of the story) areas. Not a new story -- even before there was an independent U.S., back-country residents of various states were upset at legislatures being dominated by coastal concerns. As with the "rotten boroughs" of Great Britain, the overall sense of injustice there was long lasting though getting the courts into the mix was more a latter day matter. One notable thing was that the U.S. Congress in the 1920s took out a requirement that protected equality when setting rules for apportionment of its own body. In the 1840s, the rule that members of Congress must be broken down by districts, which possibly can further malapportioment, was established. (One wrinkle there is that "at large" membership can make it harder to equitably represent minority voters.)
The net result, including states ignoring their own constitutional rules requiring some type of equality (though often they had "federal" plans where only one body had to be by population) or simply not updating given changing demographics, was obvious unreasonableness. This led Justice Clark in the end to change his vote -- when he actually looked at Tennessee's practices, he saw that the "total picture reveals incommensurables of both magnitude and frequency
can it be said that there is present an invidious discrimination." And, he ended his striking concurrence with a strong argument for judicial review when the case so compels. Another more conservative member, the now forgotten Justice Whittaker, was torn between the injustice of the thing and granting an at one point deciding vote for such a great enterprise.
He ultimately resigned from exhaustion though it looks like he would have voted with the state. The ultimate vote turned out to be 6-2 with Justice Stewart (who asked for re-argument, 4-4 at that time) adding a reluctant sounding concurrence. Stewart noted that all the opinion did was to allow the courts to decide the question -- on equal protection grounds (the Guarantee Clause a logical path, but was long deemed non-justiciable) -- without deciding the merits. The book notes that he really wasn't quite that naive -- he knew "one person, one vote" or something like that was coming, and wasn't happy about it. The dissenters realized this too, thus showing their strong comments, even if the opinion itself was limited.
conception of political equality from the Declaration of Independence,
to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and
Nineteenth Amendments can mean only one thing - one person, one vote.
One more wrinkle added to the affair -- Whittaker retired and was replaced by Justice White while Frankurter retired for medical reasons as well (a stroke) and was replaced by Justice Goldberg. What this did was give Justice Warren six votes when the eventual "one person, one vote" rule was applied to both branches of state legislatures. The rule eventually did allow some breathing room in various cases such as a differential of ten percent or more, but as seen in an application to NYC (each borough, with different population, could not have a single vote on a local electoral body), population remained the general test.
The test was a choice -- Ted Olson noted his on the show, that it is not explicitly expressed in the Constitution. This doesn't mean it was wrong. We should be upfront here about the choices made -- Justice Black's argument in Wesberry v. Sanders that "by the people" in Art. I compelled one person, one vote as applied to the House of Representatives. Justice Harlan might have at times went overboard (a reference to apportionment and voting in part of the Fourteenth Amendment does not mean the Equal Protection Clause provides an overall limit here), but his dissent there had bite as to history. It cannot "only mean one thing," but it very well can reasonably lead to the current result, including providing a clear test to follow. One with exceptions and perhaps a bit to neat in some cases, but with a general logical principle, which as Olson also noted, is now firmly established.
As noted above, voting rights continue to be a concern today, as well as apportionment matters. One major issue (Justice Stevens particularly concerned) is addressing political gerrymandering, which is going to be inherently favored by a system where political actors do the work. Five justices ultimately determined it is a problem but only four deemed it a "political thicket" that they should get involved in addressing. A promising path here are independent commissions, which the Supreme Court helped along last term though the matter is back in another form.
A final matter is the U.S. Senate, which is a blatant violation of the "one person, one vote" principle, especially given modern day population differentials. (The other main concern there would be D.C. and federal territories.) Realistically, this would involve a constitutional amendment, Art. V. tossing in a joker (which I think can be amended away first, which the U.K. sort of did with its own somewhat similar attempt to set in stone a provision for the House of Lords) even there. But, realizing this is unrealistic, the equal protection component of the Fifth Amendment comes after Art. I. So, is it totally crazy to think the Senate is unconstitutional?! Kinda yeah ... for now.