Once again, ERM64man is giving us another wonderful display of "the sky will fall." It's very similar to the lyrics of that song they kept singing over and over again on
Hee-Haw:
"Gloom, despair, and agony on me. Deep, dark depression, excessive misery. ..." and so on. All (or mostly) because there is a possibility that the Supreme Court will overturn
Wesberry v. Sanders and
Reynolds v. Sims. If those decisions are overturned, then the United States democracy will be destroyed, according to ERM. Obviously, there had been no democracy before 1964. Democracy must have been truly non-existent in the United States for 175 years before those two decisions (I infer from ERM’s theory that
Wesberry and
Reynolds are the only things that ensure we have a democracy).
Wesberry was handed down Feb. 17, 1964, and
Reynolds was handed down June 15, 1964. (I was born later that year, in October.) I love Hugo Black, but ever since the first time I read his opinion for the Court in
Wesberry (which I didn’t read until quite some time after I started studying Con Law), I have disagreed with it. That was one of his worst opinions. I first learned the gist of
Reynolds when I was in St. Charles West High School, from my teacher in American Government class, Mr. Terry Hollander (who, btw, is still alive, and is currently serving on the St. Charles County Council). As soon as Mr. Hollander explained the gist of what the Court decreed in
Reynolds, I didn’t agree with it, and couldn’t understand why the Supreme Court would rule the way they did. Mr. Hollander taught us about the design of Congress: two chambers, with proportional representation of the people in the House and disproportionate representation in the Senate (equal power for every state, which has always given disproportionate power to the people who live in small states). Then Mr. Hollander taught us about the fact that, before 1964, most state legislatures were designed to be like Congress, with proportional representation in one of the chambers, but disproportionate representation in the other chamber, giving disproportionate power to rural areas, like the U.S. Senate is designed. That was how most state legislatures were for over 175 years of American history, until the Supreme Court found the latter design to be unconstitutional in 1964. Once the Court said so, every single state legislative chamber had to have proportional representation. I learned about this from Mr. Hollander, circa 1980 or ‘81; it made me go “WTF?” then, and I still do not agree with it, forty years later. The only thing I can say now about how the Court ruled on this issue is as follows: because Article IV of the Constitution requires that states have “a Republican Form of Government,” if NEITHER chamber of a bicameral state legislature has proportional representation, then yes, the federal courts should order that state to redistrict one of the chambers in such a way as to be proportional. And if a state, such as Nebraska, chooses to be unicameral, then that one chamber does have to be proportional. But the Republican Form of Government Clause surely was not intended to require proportional representation in both chambers of a bicameral legislature. There was no historically legitimate reason to invoke the Equal Protection Clause, for reasons spelled out by Justice Frankfurter in
Baker v. Carr and by Justice Harlan in
ReynoldsLet’s start by making one thing clear: it isn’t really about “one person, one vote,” as Black started off saying in
Wesberry. In
Reynolds, Chief Justice Warren said the constitutional ideal is BOTH “one person, one vote” AND it’s about having equal population in every district – two ideas which do not mean the same thing. Warren seemed to assume that the two concepts do mean the same thing, but in reality they don’t. I’ll address that in a long appendix to this post below.
An important follow-up case to
Wesberry was
Kirkpatrick v. Preisler, (1969), a case that came out of my home state, Missouri (James Kirkpatrick was the MO SoS from 1965 to 1985). The 1960 census reported that Missouri had a population of 4,319,813, and MO had ten seats in the House for 1962-1972, so according to the
Wesberry theory the population of each district should have been approximately 431,981. In fact, what Missouri had in the ten districts, as of the 1961 redistricting, ranged from as many as 506,854 in the largest district to 378,499 in the smallest district. After 1964, a lower federal court ordered Missouri to redistrict again in order to comply with
Wesberry. The state legislature did pass a new district map, but in the new map, there still wasn’t “approximately” equal population in each district, according to the Supreme Court’s draconian idea of what “approximately” must mean. The
Kirkpatrick Court said that the state legislature must “make a good faith effort to achieve precise mathematical equality” in each district. The new map that was adopted in 1967 put 419,721 in the smallest district and 445,523 in the largest district (2.84% less than the perfectly equal number in one and 3.13% more than the perfectly equal number in the other). James Kirkpatrick asked the Supreme Court to treat the range of 2.84% to 3.13% as being statistically insignificant to federal courts per the classic legal expression
de minimis non curat lex (“Law is not concerned with small (or trivial) things”). But no, most of the Supreme Court Justices were not going to accept that. They decided (by 6-3) that the Missouri legislature did not “make a good faith effort to achieve … equality,” in the most recent redistricting.
When we say “make a good faith effort” we mean it, damnit!! The
Kirkpatrick decision also had another follow-up over a dozen years later in
Karcher v. Daggett (
which I discussed in this forum about five years ago, shortly after I joined Atlas).
Another thing that has bugged me a lot was that the Court came up with a different clause of the Constitution for
Wesberry than it did for
Reynolds. The former case cited a clause in Article 1, Section 2, whereas the latter cited the Equal Protection Clause of the 14th Amendment. At one point in the 1970's, the Court decided that the first rule, as originally announced in
Wesberry, is much more mathematically strict than the second rule, as originally announced in
Reynolds. Why? Look at the pertinent words in Article 1, Section 2 and compare that to the words of the Equal Protection Clause, and then explain to me why the former is stricter than the latter? It makes absolutely no sense.
I can tell, from other threads he has created, that ERM is also afraid of many other ways, besides eliminating population equality in all districts, that the current conservative majority on the SCOTUS can destroy democracy. If he thinks it’s a terrible thing for the SCOTUS to have too many conservatives on it, imagine how most conservative Republicans felt in the 1960’s when there was a clear liberal majority on the Court. “Eminent scholars from many fields have commented upon [the Warren Court’s] tendency towards overgeneralization, the disrespect for precedent, even those of recent vintage, the needless obscurity of opinions, the discouraging lack of candor, the disdain for the fact finding of the lower courts, the tortured reading of statutes, and the seeming absence of neutrality and objectivity.” (Milton Handler,
The Supreme Court and the Antitrust Laws: A Critic’s viewpoint, 1 Georgia L. Rev. 339, 350 (Spring 1967).)
But I am only, so far, disparaging ERM64man, and his paranoid description of a doomed democracy. (Look at the fact that, so far, only 2 posters agree with him about how bad the future is going to be (one of which is undoubtedly himself), and 6 posters disagree.) Here is a comment made on this thread that I almost completely agree with:
I fully expect SCOTUS to overturn the 2024 election if a Democrat wins. If they're going to toss a 50-year precedent aside in Roe v. Wade, they'll have no problem following the precedent set by Bush v. Gore.
There have been more than a dozen times - in the last 5+ years since I joined Atlas - in which I have said that
Bush v. Gore is the worst decision the Court has ever rendered. And I have often said that that decision drove me to decide that I didn't want to vote ever again, which I didn't for 2003 to 2015 (inclusive). The fear that another
Bush v. Gore could occur is a fear that I absolutely, completely understand. And I am also prepared to say that if the shoe ever gets on the other partisan foot - if there are five liberals on the Court anytime soon - they could pull the same horrible stunt in favor of a Democratic nominee for President.
Judicial activism is always wrong, no matter who does it. As I have said before,
qualitatively, Bush v. Gore is the worst single decision, but
quantitatively, the liberal wing of the Supreme Court engages in judicial activism far more often. Every time the Court strikes down a law that they weren't supposed to strike down, they whittle away at our democracy. So, ERM64man, I am not worrying about the death of democracy, but I am extremely worried about how many different ways and how often the Court keeps on whittling away at it. I don't seriously thing we are ever going to be completely controlled by the Supreme Court, but I am disgusted - beyond words can say - at how many different times, how many different ways, so far and into the future, the Court keeps on diminishing the power of the people. That is why I want to rewrite the 14th Amendment, and in my proposal for rewriting it, I condemn the
Bush v. Gore decision and insist that nothing like it must ever occur again.
Now, to make this the second-longest post I have ever made, I have an
APPENDIX
I have lived a little over 80% of my life in Missouri, so I basically still consider it my home. And I have studied that state’s election results for much of my life. I’m going to focus on the election of 2012, since that was only two years after the 2010 census, and the 2011 redistricting was designed to put approximately equal population in each legislative district (34 districts for the state senate and 163 districts for the state house).
Missouri voters cast a total of 2,757,323 for President in 2012, and that number divided by 34 is 81,098. So if there is a “one person, one vote” legal standard, there should have been approximately 81,098 votes cast for President in each senate district (I’ll come back to that later). There were 1,193,448 votes cast for candidates for the Missouri Senate; there were 13 Republican nominees for the Senate, 12 Democratic nominees, and 1 Libertarian nominee. 1,193,448 divided by 17 is 70,203 (only half of the 34 senate districts have elections in leap years), so there should have been an average of that many votes cast for the state Senate races. Actually, I should be more careful about the numbers: 8 districts had a D v. R contest, 4 districts had an unopposed Democratic nominee and 5 districts had an unopposed Republican nominee. Among those 9 districts that had just one candidate on the November ballot for state Senate, the total number of votes cast was 578,304; an average of 64,256 votes per candidate. But, in fact, the number of votes cast went from as little as 50,824 (District 11 in the KC area), to as much as 77,745 in St. Louis County (Eric Schmitt's unopposed reelection in District 15). Among the eight districts that did have a D v. R race (and one Libertarian), there were 615,144 votes cast, with an average of 76,893 per race. But the number of votes cast in these 8 districts were as little as 63,670 in District 25 (SE MO, including the Boot Heel and Poplar Bluff) and 65,719 in District 3 (the Lead Belt region of SE MO), to as many as 89,744 in District 1 (SE St. Louis County).
Compare how many votes should have been cast for President in each district - 81,098 - to how many actually were cast in some of them. Senate District 1 cast 91,867 votes for President. District 15 cast 104,780. District 25 cast 65,402. District 33 (south-central MO, just west of District 25) cast 71,188. I haven’t counted, but District 5 in St. Louis, Districts 9 and 11 in the KC area probably cast much fewer votes for President than average for the state.
In terms of state representative districts in Missouri, there are 163 districts, and the total number of votes cast for all candidates for the state House was 2,471,340 (that’s compared to the total number of votes cast for President, which was, again, 2,757,323). 2,471,340 divided by 163 is 15,161.6 votes per district, on average. There were 134 Republican nominees for state rep; there were 110 Democratic nominees; and 10 “other” candidates. There were a total of 82 districts that did not have a D v. R contest (although some of these had an “other” candidate), and that left 81 districts that did have a D v. R contest. Most of those 81 contests were in the suburbs of St. Louis and KC and in the city of Springfield. In the 82 contests without one of the major parties, the total number of votes cast were 1,146,143, for an average of 13,977 votes per election. The districts in this category that had the smallest number of votes cast were District 122 (Pulaski County, contains much of Ft. Leonard Wood), a heavily Republican district, only 6,498, and District 19 (an area just east of Downtown KC), a heavily Hispanic, Democratic district, only 6,570. The highest number of votes cast was in District 67 (predominantly black, heavily Democratic), NE St. Louis County, 18,856. The population of District 122 was approximately the same as the population of District 67, according to the 2010 census, but the latter had about 2.9 times as many votes as the former. The total number of votes cast in the other 81 districts that did have a D v. R contest was 1,325,197, for an average of 16,360 per D-and-R contested race. The smallest number of votes cast in any of these districts was 9,619 in District 132 (in Springfield), and the second smallest was 11,792 in District 150 (much of the Boot Heel). The largest numbers of votes cast were 22,610 in District 90 (most of Kirkwood and some adjoining areas) and 20,795 in District 25 (a little south of Downtown KC). District 132 had approximately the same amount of population, per the 2010 census, as District 90, but the latter had about 2.35 times as many votes as the former.
I have also carefully analyzed election results in the state of Massachusetts,
which I discussed in a thread I created a few months ago. You can see in that post that there were vast disparities among state senate districts in terms of voter turnout, as well as huge disparities in state representative districts. And in terms of congressional districts, you can look, for yourselves, at election results in Arizona, California, and Texas. You’ll see how there are huge differences in the number of votes cast for congressional districts that have Hispanic majorities compared to districts that are Anglo majority.
So tell me, when you put approximately equal amounts of population in districts within a state, does that really mean the same thing as “one person, one vote”?
Poll
