On Wednesday, October 26, 2011 6:45:10 AM UTC-5, Jameson Quinn wrote:
> 2011/10/26 Jim Riley <jim...@pipeline.com>
>> I think that is an unrealistic interpretation of current law in the
>> United States.
> Thanks a lot for your legal analysis; you clearly know a lot more about
> this than I. I won't address your (very interesting) case-by-case
> discussion, but I will respond to your point about the politics of this:
I did a little more looking. The requirement for election by districts was
first enacted in 1842 as part of the Apportionment Act
"That in every case where a State is entitled to more than one
Representative, the number to which each State shall be entitled under this
apportionment shall be elected by districts composed of contiguous
territory equal in number to the number of Representatives to which said
State may be entitled, no one district electing more than one
Representative"
I hope I copied this correctly from an image. It appears that 1846/7 were
the first elections where all representatives were elected from districts.
In then 1st Congress, about half of the representatives were elected at
large, though in some cases, the representatives were from districts, while
the voters were at large. Larger States tended to use districts, as did
new States. Connecticut, Georgia, New Hampshire, New Jersey appeared to
use at large election up until the federal law was passed, and in 1840, so
did Mississippi and Missouri. CT and NJ switched in 1842/3; GA in 1844/5;
and the other 3 in 1846/7.
Since the intent was to eliminate the practice of at large elections, I
don't think it can be interpreted as requiring districts, but somehow
allowing election based on some PR scheme. And there have been 10s of
thousands elected from districts since then. Because the number of
districts is so closely tied to the apportionment of representatives, the
laws tend to be expressed in terms of how and when the districts are drawn,
rather than how the districts are to be used.
The "old" law before 1967 read this way. Old is in quotes, because it is
actually still part of the US Code (more about this below). It is
subsection (c), because (b) and (a) are dealing more with the actual
apportionment and this is about the transition following a new
apportionment.
2 U.S.C. § 2a(c)
(c) Until a State is redistricted in the manner provided by the
law thereof after any apportionment, the Representatives to which
such State is entitled under such apportionment shall be elected in
the following manner: (1) If there is no change in the number of
Representatives, they shall be elected from the districts then
prescribed by the law of such State, and if any of them are elected
from the State at large they shall continue to be so elected; (2)
if there is an increase in the number of Representatives, such
additional Representative or Representatives shall be elected from
the State at large and the other Representatives from the districts
then prescribed by the law of such State; (3) if there is a
decrease in the number of Representatives but the number of
districts in such State is equal to such decreased number of
Representatives, they shall be elected from the districts then
prescribed by the law of such State; (4) if there is a decrease in
the number of Representatives but the number of districts in such
State is less than such number of Representatives, the number of
Representatives by which such number of districts is exceeded shall
be elected from the State at large and the other Representatives
from the districts then prescribed by the law of such State; or (5)
if there is a decrease in the number of Representatives and the
number of districts in such State exceeds such decreased number of
Representatives, they shall be elected from the State at large.
So this is simply a transitional procedure following a new apportionment.
It is not a law permitting proportional representation that the 1967 law
squashed. The timing of the 1967 law suggests that it probably was tied
into the one man one vote decisions of the early 1960s, and possibly the
Civil Rights movement. At the time of the OMOV decisions, it was perceived
that this would mean a big shift to the Democrats because rural seats would
be dismantled and placed into the cities. But by that time, they ended up
getting moved to the suburbs. 1964 was a Democratic landslide (295-140),
but that was because of LBJ-Goldwater and not redistricting.
It was understood at the time of *Wesberry v Sanders* that at large
elections did comply with the Constitution since the representatives were
chosen by the voters of their respective States. In his dissent, Justice
Harlan ridiculed the notion that Congress intended for districts to be of
equal population, since so few representatives were elected at large, or
from districts of remotely equal population. And at the time of the 1967
statute, 6 federal courts were considering imposing at large elections as
remedies for OMOV violations.
This is the section added in 1967, but 2a(c) was not repealed - it appears
that there was some conflict between the Senate and the House of
Representatives, and that was the reason 2c was enacted in an totally
unrelated bill. It wasn't a sneaky anti-PR bill.
2 U.S.C. § 2c
In each State entitled in the Ninety-first Congress or in any
subsequent Congress thereafter to more than one Representative
under an apportionment made pursuant to the provisions of section
2a(a) of this title, there shall be established by law a number of
districts equal to the number of Representatives to which such
State is so entitled, and Representatives shall be elected only
from districts so established, no district to elect more than one
Representative (except that a State which is entitled to more than
one Representative and which has in all previous elections elected
its Representatives at Large may elect its Representatives at Large
to the Ninety-first Congress).
The last sentence is a one time exception for Hawaii and New Mexico (the
91st Congress was elected in 1968. New Mexico did not use the exception,
Hawaii did, and then redistricted before the 1970 election.
After the 2c was added, it was accepted that 2a(c) had been implicitly
repealed, since they seem to contradict each other.
But in *Branch v Smith* (2003) the US Supreme Court seemed to possibly
maybe suggest that 2a(c) was still in effect. After the 2000 census,
Mississippi's apportionment was reduced from 5 to 4. The legislature was
not able to redistrict. Eventually, a state court took over, and the
Mississippi Supreme Court made a ruling that the lower state court could
under the Mississippi Constitution redistrict. There were lawsuits in both
federal and state courts. The federal court ruled that having a state
court perform redistricting was a change in the baseline election
procedures; and therefore had to be precleared under Section 5 of the
Voting Rights Act (state court decisions have to be precleared, it is no
different than legislation, or an executive decree, they are considered
actions of the State). Federal court decisions don't have to be
precleared. It also enjoined the State from seeking preclearance because
it didn't appear that the Justice Department would preclear in time for the
election.
This doesn't really have anything to do with 2c and 2a(c), but is
background, and explains why most of the decision is about the VRA and
jurisdiction of the state and federal court.
Those who had taken the case to the federal court made the additional
argument that though the federal court had jurisdiction to stop the state
court, that they shouldn't have imposed their own redistricting plan, but
rather should have applied 2a(c) and ordered at large elections. I just
listened to the oral arguments at the Oyez project. One of the justices
asked whether at large elections in Mississippi would be racially
discriminatory. He said that (1) since they would be enforcing a law
passed by Congress (2a(c)) that the VRA does not apply; and (2) that they
could enforce the 15th Amendment by ordering alternative forms of election
- he seemed to imply cumulative voting.
This is the ruling of the district court. Beyond the VRA argument, it
makes the case that the Mississippi court did not have authority to create
a redistricting plan.
http://www.senate.mn/departments/scr/redist/redsum2000/MS_301-CV-855W...
The US Supreme Court split 3 ways on whether 2a(c) applied.
3 justices (Souter, Breyer, Stevens) said that it didn't, and that 2c
implicitly replied it.
2 justices (O'Connor and Thomas) said it did, since 2a(c) can be construed
in a manner that they didn't conflict.
4 justices (including Scalia and Ginsburg) said that 2a(c) was still valid,
but only in instances where there was no time for any other solution. So
basically it doesn't really apply since it would almost always be possible
for a federal court to fashion some sort of districting plan.
But let's imagine that you convinced a State that Congress left a
>> loophole. You would likely then have a legislature where the party that is
>> advantaged by district elections, is also advantaged in legislative
>> elections. So you go to Maryland or Illinois and tell the legislature that
>> if they adopted this new system, that more Republicans would be elected to
>> Congress.
> Very good point. A state legislature which performs a partisan
> gerrymander, will not want to undermine all that hard work by adopting FMV
> or PAL...
>> That their good friends who they had just contributed the maximum amount
>> to, might lose his seat, and all their efforts at gerrymandering were for
>> naught. And in particular, you tell them that it is the white Democrats
>> from swingy districts that will lose their seats. If they were honest,
>> they would tell you it was not to their partisan advantage. But they could
>> simply say that it doesn't appear to be legal and thank you for your time.
> ...and thus they will tend to (or pretend to) interpret any gray area of
> the law against the new system.
> This is a pretty solid argument that FMV will not pass until the 1967 law
> is overturned.
If the 1967 law were repealed (it is unlikely to be overturned - since
Congress has the authority of dictating the manner of electing
representatives), then 2a(c) would remain in place. But that doesn't
necessarily get you much closer, since it doesn't permit a State to
arbitrarily switch to at large elections. You could only have full at
large elections in States that lost representatives. And you might get
into problems if a State deliberately avoided redistricting (the
transitional provisions are "until a State redistricts" under the "laws
thereof". Could a state lose a seat, and then change its laws so that
redistricting doesn't happen, and then switch to at large. Texas has no
laws about congressional redistricting, so its "laws thereof" simply
consist of the Texas Constitution vesting legislative authority in the
Texas Legislature.
> It is not an argument that the law will be impossible to overturn.
> Undermining partisan gerrymanders on a state-by-state level will tend to
> balance out more on a national level. And counting all the states with
> under 3 reps plus all the states with reasonably non-partisan redistricting
> rules (AK, AZ, CO, CA, HI, ID, IA, MO, MT, NJ, PA, WA), you can reach a
> majority of the House; so gerrymandered representatives don't have veto
> power over an overturn.
Arizona has a lot of controversy whether it was a non-partisan plan since
the husband of the "independent" chairwoman was quite active in the
Democratic Party, and she also ordered shredding of documents related to
the hiring of consultants. The representatives elected from those States
might either favor retention of district elections since their State did
such a wonderful job of redistricting; or they might believe that they won
despite the "fair" system trying to do them. Their election from a
district proves that election from districts is the best way.
> Once the law is overturned, the fight will move to the states. There, it
> will be a tough fight, but there are two ways to overcome the
> pro-gerrymander bias Jim described. First, voter initiatives (in states
> which allow them); and second, states where partisan control has switched
> since the last redistricting.
The reason for 2c was not to impose the use of districts; but to require
States to switch to new districts immediately after an apportionment.
Election from districts has been the law for 169 years, and has been the
general practice for 222 years. You need to convince Congress to either
require proportional representation or at least permit it. It won't come
from interpreting 2c as a sneaky anti-PR amendment.
Alternatively, would be to use the initiative power to switch to PR for a
legislature. The legislature will be wary because they were chosen from
districts. It works for them.
