Supreme Court to Consider the of Constitutionality of Ballot Initiated Independent Redistricting

[Brian Goldman]

http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_ARIZONA_REDISTRICTING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2015-03-02-03-30-16

The big issue before the court is whether voters can take away the power given by the U.S. Constitution to elected state legislatures to decide how members of the U.S. House are elected.

 

The court's conservative justices indicated that they think the answer is, no. And some liberal justices also seemed troubled by arguments put forth by lawyers for the Obama administration and the Arizona commission.

This also seems relevant to the legality of algorithmic redistricting, and potentially of ballot initiatives to change voting systems.

[Douglas Cantrell]

I'm pretty sure this is relevant to voting systems, and just about anything else that might be described as electoral reform. Can anyone think of an argument stronger than 'every voter in the state is a member of the legislature' ?

[Frank]

Sure: a state legislature is a deliberative body which exercises legislative power on behalf of the state's Citizens; America has no history of any state declaring All Citizens to be Members of the legislature and, even if it did, the use of the word "legislature" in the constitution, if substituted with "Citizens", would result in absurd results.

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[Frank]

The way I see it, the Citizens cannot take that power away but the legislature might be able to delegate that power at least to and apolitical advisory group.

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[Douglas Cantrell]

I meant an argument in defense of the initiative process. I recognize that the 'everybody is in the legislature' argument is weak; I'm worried because that's the argument they seem to be going with.

I could see the legislature being able to delegate this authority, but I don't interpret the language in the US constitution as allowing any restriction on their authority to reverse that decision whenever they wish. So, for example, what the state constitution said about the matter would be irrelevant.

On Monday, March 2, 2015 at 9:58:26 AM UTC-8, Brian Goldman wrote:

[Frank]

Yeah, no, I don't see one. The Constitution places the authority squarely in the hands of the delegated legislatureand not the citizenry as a whole.I think the best argument which could be made in favor of the initiative process would be if the Constitution were to equate the legislature with the state but that simply is not the case.

On Tuesday, March 3, 2015, Douglas Cantrell <cantrell...@gmail.com> wrote:

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[Dick Burkhart]

Here are a couple of quotes from http://www.usconstitution.net/constnot.html :

 

“No where in the Constitution, however, will you find any mention of how elections should be conducted.”

 

Yet: “The United States Code acknowledges districting, but leaves the "how's" to the states (gerrymandering, however, is unconstitutional [as seen in Davis v Bandemer, 478 U.S. 109 (1986), though, the intent of gerrymandering is difficult to prove]).”

 

Also there are several provisions for voting rights in the US Constitution, and these have been interpreted as prohibiting practices that are designed to disenfranchise certain classes of voters, such as by gerrymandering or using at-large elections in a way that locks out certain minorities (where district elections have been mandated). Thus you cannot claim that the US Constitution gives absolute authority to the states in regard to elections.

 

Dick Burkhart

4802 S Othello St,  Seattle, WA  98118

206-721-5672 (home)  206-851-0027 (cell)

dick...@gmail.com

[Frank]

I don't recall saying anything about "absolute authority" being given to the states.

[Warren D. Smith (CRV cofounder, http://RangeVoting.org)]

This sounds devastating.

If every citizen initiative to get rid of gerrymandering, is unconstitutional, then we will never

get rid of gerrymandering, because you know that legislatures are not interested in getting rid of it.

[Frank]

Have faith. Optimism is good for morale. Remember, similar statements were made about getting the direct election of Senators.

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[Warren D Smith]

it does seem somewhat odd that in the US constitution
(1) a state's legislature is awarded power over elections, but
(2) states are nowhere required to HAVE a legislature.

Suppose a state in its constitution decided to be governed by some
direct-democracy system, with no legislature. Then what?

Another argument: if a state, in its constitution, says the People get
to overrule the legislature via referenda, can we conclude this (if
applied to elections) is unconstitutional
federally? What if the state's legislature itself approved said state
constitution?
(And in which, if any, states did that happen?)


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[Warren D Smith]

On 3/6/15, Frank <frankdm...@gmail.com> wrote:
> Have faith. Optimism is good for morale. Remember, similar statements were
> made about getting the direct election of Senators.
>
> On Friday, March 6, 2015, Warren D. Smith (CRV cofounder,
> http://RangeVoting.org) <warre...@gmail.com> wrote:
>
>> This sounds devastating.
>> If every citizen initiative to get rid of gerrymandering, is
>> unconstitutional, then we will never
>> get rid of gerrymandering, because you know that legislatures are not
>> interested in getting rid of it.

--actually, I lack faith.

Because I can practically guarantee that there will be lawsuits over
anti-gerrymandering
referenda. The history of gerrymandering shows tons and tons of
attempts to manipulate things via lawsuits. So if this is a
constitutional principle, then
yes: all referenda trying to stop gerrymandering, and hence (as a
political reality) all attempts to stop it, will be doomed. As a
result, the US constitution itself will outlaw democracy.

So I think that THIS is the real constitutional argument that needs to be used.
OUTLINE OF THE ARGUMENT:

1. The purpose of US constitution was to foster democracy. (Hopefully
undisputed.)

2. Gerrymandering removes democracy. Usual sources generally reckon
that only about
4% of congressional races are "competitive" and the rest are "sure
things" and the
net result is that one can predict them year-ahead with 98% accuracy:
http://www.rangevoting.org/NonVoters.html
This is not democracy. This is a rigged game where politicians choose
the voters far more than the reverse. The turnover rate in the US
congress is smaller than the old soviet politburo. Congressmen are
more likely to die in office than be defeated.

3. Only citizen referenda can stop gerrymandering. This is shown by
history. In the USA despite over 200 years of essentially universal
agreement gerrymandering was a Bad Thing, have legislatures ever
voluntarily stopped doing it? Very rarely if ever. It is a legalized
form of massive corruption, and then it fosters itself since once
started, automatically nobody in power is interested in changing it.

4. If the USA constitution outlaws the only way gerrymandering can
ever be got rid of, we conclude the USA constitution itself makes
gerrymandering un-opposable and mandates non-democracy. To an extent
so vast that the USA is the laughingstock of the world.
There is no comparison in, e.g. legislator turnover rates and
electoral competitiveness measures between the USA and many other
democracies.

5. But the claim "the USA constitution outlaws democracy" contradicts
(1). We conclude from this contradiction that the assumption that
referenda are not allowed to stop gerrymandering, must be wrong.

Here is my suggestion to AARON HAMLIN and any other lawyers in the CES.
Prepare an Amicus Curiae brief laying out this argument, and submit it
to the supreme court, rapidamente.
There are plenty of indications the Supreme Court doesn't even write
opinions and check facts anymore, they just crib from Amicus Curiae
briefs without even checking.

[Frank]

Point 2 is disputable, which I will address in a moment.

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[Frank]

Article IV, Section 4, of the U.S. constitution states, in part, "The United States shall guarantee to every State in this Union a Republican Form of Government". As was the premise of Luther v Borden, this clause requires every state to have a "republican form of government". While in that case, the Supreme Court said whether a state met the requirement was a political question and, therefore, not reviewable by the courts, two decades after Luther v. Borden was decided, the Fourteenth Amendment, which included the Equal Protection Clause, was added to the Constitution. Baker v. Carr, in which the Court found that the Court could examine Tennessee's apportionment of legislative districts, was based on the Equal Protection Clause, and many subsequent cases that covered much of the same ground as Luther v. Borden followed suit.

Since a republic is a state ruled by Representatives of a widely inclusive Electorate, I find constructing a scenario where a state can be a republic and not have a legislature hard to fathom. True, One could argue if the executive and/or judicial branches is/are elected, it might qualify but such a scenario would have the state administered, not ruled, by such Representatives. even if such a scenario were granted, I have a hard time finding any material from the time the constitution was written providing examples of republics without an elected legislature.

Therefore, the evidence would seem (and I am certainly open to admitting if I am wrong in this case) to conclude either one of the premises is incorrect or the logic is flawed in some fashion. My hunch is the error rests in point #1 which would then amount to the understandably common misconception the American form of government is a democracy when it is instead a republic with characteristics of democracy mixed throughout.

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[Warren D Smith]

https://en.wikipedia.org/wiki/Amicus_curiae
tells us the basics about amicus curiae briefs.

On 3/7/15, Frank <frankdm...@gmail.com> wrote:
> Article IV, Section 4, of the U.S. constitution states, in part, "The
> United States shall guarantee to every State in this Union a Republican
> Form of Government".

--there are many states which have citizen initiative & referendum.
This is a form of direct democracy, not republicanism. In principle
one could completely overturn that state's govt including removing
every legislator from his/her job (although I do not think that ever
has happened, it certainly could).

So: are we to conclude that all of those state constitutions are (and
for a hundred years have been) unconstitutional? And that all of the
laws that have been enacted in this way, are hereby abolished? Talk
about changing history.

I think we have to conclude the problem here is in taking the word
"republican" too literally. Does "republican" forbid having some
reasonable fraction of direct democracy? I think not. Is "republican"
compatible with "massive gerrymandering and riggedness"? I think it
should not be compatible. If we have a pseudo-democracy where 98% of
elections are rigged, that is not a "republican form of government" in my view.

(The real fix, which absolutely nobody in power ever says, but I've
been saying for decades,is that the US constitution has to be amended
to make it EASIER TO AMEND. In particular we need nationwide citizen
init+referendum for that. It should be made easy enough to amend that
we are considering about 1 amendment per year from here on out.)

[Warren D Smith]

One basic question is: are we too late to submit briefs? The supreme
court already heard oral arguments 1-2 weeks back, though their
decision not expected until July.

[Frank]

I think You mean "5 days ago", no? In either case, yes, You are too late. The Justices vote at the Friday conferences to determine the decisions of cases; any delay in releasing the decisions comes from the need to draft the opinions, unless the court were to return a ruling without comment, which is rather infrequent.

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[Frank]

The point I was making was whether a state is required to have a legislature. From what I can tell, all signs point to "Yes" if not explicitly then in practice. As to whether or not the initiative/referendum process is unconstitutional, to My knowledge, that issue has never been presented to the court and, under Ashwander principles, the court generally does not decide issues which have not been argued before it.

In re amendments: I don't see a compelling reason to conclude the current method of amending the constitution is insufficient. Remember, there is always the "legal revolution" of a constitutional convention which, admittedly, the states are loathed to have to do for various reasons, not the least of which is fear of a "run away convention" which is what happened last time. The idea of a convention came very close to fruition during the debate over whether to directly elect Senators; so much so, in order to prevent the risk of a run away convention, the congress quickly passed an amendment proposal. As much as I would like to amend the constitution for various reasons, I'm convinced the "gauntlet" left by the Framers is sufficiently flexible while making sure adopted ideas have appeal which is both broad and deep.

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[Frank]

One possible alternative to the independent commission approach could be to make the commission an advisory committee providing a proposed map which the legislature would then have to approve or reject with zero amendments. This approach would allow for Someone to explicitly propose a publicly available gerrymander-free redistricting map and Legislators would be obligated to explain to the Voters why They would vote against it.

[Warren D Smith]

On 3/7/15, Frank <frankdm...@gmail.com> wrote:

> I think You mean "5 days ago", no? In either case, yes, You are too late.
> The Justices vote at the Friday conferences to determine the decisions of
> cases; any delay in releasing the decisions comes from the need to draft
> the opinions, unless the court were to return a ruling without comment,
> which is rather infrequent.

--well, we may be too late, but I don't necessarily buy that. There
definitely have been supreme court cases where some judge changed his
mind after months had gone by past oral arguments, in some cases a
swing judge.

[Frank]

While You may be right, I am not aware of any case where amicus briefs post-conference have made any difference. I'm not saying there are none. I just don't know of any.

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[Warren D Smith]

well, I sure do not know much, but probably if you make an amicus
curiae brief & also
post on web -- the worst that can happen is it is ignored. The best:
it can get used.
And the web post will have educational benefit.

I keep feeling I am behind the game, not ahead of the game, finding
out about stuff all the time when it is too damn late. This being one
example.

[Clay Shentrup]

On Saturday, March 7, 2015 at 4:30:20 PM UTC-8, Warren D. Smith (CRV cofounder, http://RangeVoting.org) wrote:

I keep feeling I am behind the game, not ahead of the game, finding
out about stuff all the time when it is too damn late.  This being one
example. 

Why not run for office to push your agenda? Take some public speaking courses like Warren Buffett did when he realized he wasn't good at pitching prospective investors. Get out of your mathematician shell and maybe you'll surprise yourself.