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Wednesday, December 12, 2012

Speaking Of The Fourteenth Amendment

Was a dozen years ago today, Justice Scalia stopped the recount play...er, something.

Anyway, an obligatory reminder that I sometimes revisit.  Bush v Gore did NOT say there's no constitutional right to vote, but rather:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1.

From where I sit, it's an absolutely shitty decision--both the outcome and the ultimate reasoning--but that part is an absolutely correct one.  What's more, this is pretty damned spot on, too:

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964).

I think that's just as important an observation which can be used to fight this shit:

The Carrico bill would award one of Virginia’s 13 electoral votes to the presidential candidate who gets the most votes in each of the Commonwealth’s 11 Congressional Districts. The remaining two electors would go to the candidate who won the majority of Congressional Districts. With a Republican-controlled redistricting passed earlier this year, Virginia Democrats were heavily packed into three districts. Under these maps, Obama won Virginia by almost a 4 point margin, yet he carried just four Virginia Congressional Districts. Were Carrico’s scheme in place, Mitt Romney would have received seven of Virginia’s 11 electoral votes despite receiving just 47.28% of the vote statewide.

SCOTUS said Bush v Gore wasn't supposed to establish any precedent (yaright), and the opinion's Equal Protection discussion isn't original, but wouldn't it be nice to cite that case to shut down CD-based Electoral Vote allocation?  Silver lining and all that on this anniversary...

ntodd

December 12, 2012 in Constitution, Schmonstitution | Permalink

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Comments

I think the Bush v. Gore precedent was already cited in the case that tossed Ohio's "Service members can vote on these days, but not ordinary citizens" case.

It would be good to rub Scalia's nose in that particular stinking turd of jurisprudence as often as possible.

Posted by: Snarki, child of Loki | Dec 12, 2012 2:50:19 PM

December 12, 2000: A Date That Will Live...

This was my 12/12/2001 effort. Somebody had to rhyme it. It may as well have been me. Give it a read.

Posted by: Steve Bates | Dec 12, 2012 3:25:08 PM

Oh, and on a topic not related to presidential elections... we "debase[] or dilut[e] the weight of a citizen's vote just as effectively" in choosing Senators all the time, and residents of large states are repeatedly told to suck it up and like it. The large/small state ratio is such that an amendment changing this could never pass, and so as an individual Texan I have less of a voice in the Senate than you as a Vermonter. I know the basis of this compromise, and I understand that the Senate is supposed to represent the states not the individuals in them, but it still rankles with me.

I suppose I should be grateful that John Cornyn's vote is a dilution of his constituents' votes, considering the typical politics of an individual Texas voter. I got a reply to an email I sent Cornyn that was practically in Rudy Giuliani style... every sentence was a noun, a verb and "9/11". I shall be grateful if I live to see him retire, even if we end up with another GOP senator.

Posted by: Steve Bates | Dec 12, 2012 4:03:12 PM

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