(Suffer Loss of Representatives to Congress)
by Asa Gordon
“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.”
– US Supreme Court Justice Black – Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964)
The original politics of “Redemption” was to overturn Reconstruction following the Civil War and reclaim the South for white Democratic, one-party rule. Southern States were “Redeemed” by preventing black political activity by any means, by intimidation, or by the enactment of restrictive rules for the exercise of the franchise.
Now the Republican party has adopted a modern-day form of Redemption politics to reverse civil rights gains and claim the nation for white Republican one-party rule by the suppression of black political activity. The GOP would “Redeem” the nation for a white partisan majority that represents a national minority by changing the rules of the Electoral College.
The Washington Post has reported that “The GOP is trying to rig the electoral college”, Harold Meyerson, Sept. 21, 2011. Meyerson’s article presents a summary of “Conservative” rigging of the Electoral College based on gerrymandered congressional districts:
“[T]he Republican Party becomes more and more a white folks’ party. As minorities and the poor tend to cluster in cities, in heavily Democratic congressional districts, apportioning a state’s electoral votes by congressional district creates an opportunity for GOP electoral gains even though the party’s share of the popular vote is waning.”
However, Meyerson makes a common mistaken assertion in his article that “it is perfectly legal … suppose a Republican wins only by virtue of vote suppression … There would be no basis to challenge the legality of the winner’s claim”. This false assertion is echoed universally in all media reports and is augmented by “expert” political and professional media consultants. Federal district judges presiding over civil actions to Democratize the Electoral College (www.electors.us) have not been so dismissive of the Electoral College reform embodied in the Reconstruction era Fourteenth Amendment to the Constitution.
On May 8, 1866, during a debate on the Fourteenth Amendment, Thaddeus Stevens, the leader of the Republicans in the House of Representatives, delivered a very important speech on the amendment’s intent. he said:
“I can hardly believe that any person can be found who will not admit every one of these provisions (of the 14th Amendment) is just. They are all asserted, in some form or other, on our DECLARATION or organic law. … The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.”
This Reconstruction era remedy provides today’s minority voters with a potent constitutional redress for any efforts to rig the Electoral College based on bias gerrymandered congressional districts. The Reconstruction congress of 1868 passed the Fourteenth Amendment with an electoral reform provision to establish the franchise for freedmen based on the nations founding DECLARATION. The Fourteenth Amendment’s second section would punish southern states that restrict the franchise. Any state that would engage in any contemporary “neo-Redemption” legislation to rig or game the Electoral College is exposed to the Amendment’s malapportionment penalty clause.
The Supreme Court ruled in BELL v. MARYLAND, 378 U.S. 226,289 (1964) that:
“Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and purposes of the Framers. We must, therefore, consider the history and circumstances indicating what the Civil War Amendments were in fact designed to achieve.”
Section 2 of the Fourteenth Amendment to the Constitution mandates a state’s representation in Congress be reduced to the extent that state denies or abridges the “right to vote at any election for the choice of electors for President”. Section 6 of title 2 of the United States federal code (2 U.S.C. § 6) imposes a de jure mandate for the reduction of a state’s representatives to Congress should the right to vote at any election “named in the amendment to the Constitution, article 14, section 2” be denied or abridged.
Pending in the United States District Court is a Civil Action (Gordon et. al. v. Clerk , U.S. House of Representatives, 1:11-cv-00003) to enforce this malapportionment penalty provision on the state of Georgia.
The presiding District Court Judge Henry H. Kennedy Jr. , Jan. 3rd, 2011, stated at the preliminary hearing before the federal bench that the civil action:
“raises some weighty issues having to do with the consequences or results of an electoral system where a minority, a minority number of votes are not recognized, that is when there is a winner-take-all system.”
The consequences for the state of Georgia would be a reduction of its 15 Congressional members by 7 representatives. The Democratic candidate in the 2008 Presidential election received 47% of the popular vote representing 7 presidential electors by proportional weighting. Under the “winner take all” rule these 7 electors were transferred to the Republican candidate. Georgia has no state election law that directs the allocation of the states’ presidential electors on a winner take all basis. Therefore, the selection of the Republican slate of electors on a winner take all basis constitutes an abridgment of the citizens’ “right to vote” and a debasement in the weight of the citizens vote in violation of Amend. 14§2. as implemented by 2U.S.C. § 6.
The Supreme Court ruled in Terry v. Adams, 345 U.S. 461, 469 (1953) 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.”
Defendant Counsel for the House has informed the majority and minority speakers of the House of the issues raised in this civil action to “Democratize the Electoral College“, so some Republican blue state legislators are adapting to the reality that rigged electoral reforms risk the debilitating mandate of the reduction of representation clause of Amend14§2 by making proposals for proportional apportionment of electoral votes based on the percentage of the vote.
The media has reported that Republican lawmakers in the GOP controlled swing states of Pennsylvania, Ohio, Wisconsin, Florida, Virginia and Michigan propose to apportion electoral votes in presidential elections based on biased gerrymandered congressional districts. The plan is to allocate electoral votes by congressional districts, with the winner of each district receiving one electoral vote and the statewide winner getting a two-electoral-vote bonus. This method invokes the Constitutional mandate for a reduction of representatives to congress for states that abridge votes for presidential electors.
Conservative legislators controlling swing States that rig the Electoral College based on gerrymandered congressional districts that result in a disproportionate bias gain in presidential electors are required to suffer a proportional loss of representatives to Congress by the constitutional mandate of Amend14§2.
Let us examine the effect of the malapportionment penaty if the Republican Governors proposed electoral reform had been adopted for the 2012 presidential election in the swing states of Pennsylvania, Ohio, Wisconsin, Florida, Virginia and Michigan. Under the winner take all rule Obama was awarded 106 electoral votes for these swing states, Romney received 0. Under the GOP plan, based on gerrymandered congressional districts, Romney would have been awarded a majority of 64 electoral votes to Obama’s 42. Yet Obama won a 52% majority of the popular vote in these states. Thus the GOP plan would have resulted in Obama with a 52% to 48% popular vote majority to suffer a 40% to 60% reversal in electoral votes in favor of Romney with ~ 1.4 million less popular votes (CNN Election Center 2012). The popular vote of 52% for Obama translates to a allocation of 55 electors by proportional weighting. The GOP gerrymandered congressional district plan would have awarded Obama only 42 electors. Thus Obama would have received 13 less electors then is warranted by a proportional apportionment of electors based on the popular vote split. The GOP gerrymandered congressional district plan would have transferred 13 electors to the Republican candidate. This transfer of 13 electors represents the abridgment of 12% of the popular votes cast for Obama. Therefore the GOP congressional district plan for the swing states in question constitutes a debasement in the weight of the citizens’ vote in violation of Section 2 of the Fourteenth Amendment. For these states the allocation of electors based on gerrymandered Congressional Districts results in a malapportionment of electors representing the abridgment of popular votes cast for Obama. Then the malapportionment penaty clause of Amend. 14§2 would have required a reduction of 13 representatives to congress from these GOP controlled swing states pursuant to 2 USC § 6.
The principle of the Fourteenth Amendment’s malapportionment penalty clause was upheld in Colegrove v. Green, 328 U.S. 549, 569-70 (1946):
“[T]he Constitutionally guaranteed right to vote and the right to have one’s vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast.”
GOP Blue state controlled legislators are uncertain about abandoning faith that voter suppression tactics such as passing Voter ID laws and curtailing early voting may prove to be sufficient to win without the political risk of partisan electoral reforms. Also the Supreme Court’s gutting of the Voting Rights Act by judicial sophistry in the recent Shelby County v. Holder decision provides a neo-redemptionist ruling for uninhibited racist gerrymandering.
Robert Barnes reports in The Washington Post article “Court blocks key part of Voting Rights Act”, June 26, 2013 that:
“There could be immediate consequences from the court’s ruling. Just hours after the ruling, Texas Attorney General Greg Abbott said his state will move forward with a voter-identification law that had been stopped by a panel of federal judges and will carry out redistricting changes that had been mired in court battles”.
Enhanced voter suppression techniques may yet prove to be sufficient to redeem Virginia in 2016 as North Carolina was redeemed in 2012. The convoluted “Blue States” Republican legislative actions, Democratic reactions, and Republican retrenchments and the ambivalent media reporting on GOP-rigged electoral college reforms expose an electoral lottery mentality that cannot break an addiction to the prospect of hitting the “winner-take-all” electoral jackpot. Nor are party leaders prepared to suffer the painful withdrawal from the existing “winner-take-all” electoral fix that rigs the electoral college for a two party duopoly.
Meyerson’s article also presents the “Liberal” alternative, gaming of the Electoral College by the National Popular Vote (NPV) initiative.
“By contrast, a number of states controlled by Democrats (most recently, California) are trying to scrap the electoral college by conditionally pledging their electoral votes to the winner of the nationwide popular vote; the shift would take effect if and when enough states to elect a president go this route.”
Liberal advocates for gaming the Electoral College by the NPV initiative have received favorable reporting by confused MSNBC news media pundits who unwittingly defend regressive winner-take-all rules as fair and label progressive proportional rules as unfair rigging. The NPV initiative is based on an extreme Redemption-era Supreme Court decision that overturned Reconstruction to reestablish white supremacy (http://www.nationalpopularvote.com/). Presided over by Chief Justice Melville Weston Fuller, the Redemption-era Fuller court ranks among the most notoriously reactionary in history. The Fuller court in 1896 issued Plessy v. Ferguson, 163 U.S. 537 (1896), the precedent that enshrined “Jim Crow” racial apartheid in America and in 1906 created the doctrine of “substantive due process” in Lochner v. New York, 198 U.S. 45 (1905) in order to strike down state laws seeking to protect the health, safety and wages of workers. Written by Chief Justice Melville Weston Fuller, the Fuller court in McPherson v. Blacker, 146 U.S. 1 (1892) held that state legislatures had plenary power to select presidential electors. McPherson, the infamous judicial precedent for Bush v Gore and the reactionary foundation for NPV, is completely out of line with contemporary notions of democratic rights. McPherson hinges on a distortion of the 14th Amendment, which was ratified to guarantee people their democratic rights to due process of law and equal protection. Section 2 of the 14th Amendment expressly protects the right to vote, including the right to vote for “the choice of electors for President and Vice President.”
Liberal legislators controlling Blue States, that game the Electoral College by a gerrymandered award of a state’s electors to the national popular vote winner, that negates the votes cast for the national popular vote loser, are required to suffer a proportional loss of representatives to Congress by the constitutional mandate of Amend14§2.
It is ironic that the McPherson v. Blacker ruling used to justify the NPV initiative is invalidated by that very same precedent.
The Supreme Court held in McPherson v. Blacker, 146 U. S. 39 that:
“[T]he second provides that if the right to vote is denied or abridged… and being a citizen of the United States, then the basis of representation to which each state is entitled in the Congress shall be proportionately reduced. Whenever presidential electors are appointed by popular election, then the right to vote cannot be denied or abridged without invoking the penalty, and so of the right to vote for representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof.”
Thus the very precedent that is at the foundation of the National Popular Vote initiative rationale to declare all of its state electors to a presidential candidate representing the national popular vote for which the citizens of the state did not vote (page 35&38), would be penalized by that very same precedent with a loss of electors and members to congress (page 39) pursuant to Section 2 of the Fourteenth Amendment. This is a severe penalty indeed for a self-serving selective reading of a redemption era reactionary Supreme Court ruling with a stupefying denial of historical context.
The longer that right wing rigging and left wing gaming proposals for electoral reform remain on the mainstream media radar, the more liberal and conservative media pundits are becoming aware of an increased risk of loss of control over the boundaries of debates about electoral reform. Prolonged coverage increases the danger of broad public exposure to the ignored malapportionment penalty provision of the constitution raised in civil action’s to Democratize the Electoral College (http://asagordon.byethost10.com/ADW-viewpoints.pdf) by enforcement of Amend14§2. The Constitution’s malapportionment penalty clause mandates the reduction of a state’s representatives to Congress in the event citizens exercise of the franchise is denied or abridged.
There is an emerging bipartisan awareness by cooler headed party leaders that there is a risk that any temporarily favorable electoral reform can backfire and endanger both parties by evolving into a truly democratic electoral reform that may empower third parties or risk public exposure to the unconstitutionality of biased electoral reforms.
The Supreme Court held in Anderson v. Celebrezze, 460 U.S. 780 (1983) that:
“A burden that falls unequally on independent candidates or on new or small political parties impinges, by its very nature, on associational choices protected by the First Amendment, and discriminates against those candidates and voters whose political preferences lie outside the existing political parties. And in the context of a Presidential election, state imposed restrictions implicate a uniquely important national interest, because the President and Vice President are the only elected officials who represent all the voters in the Nation, and the impact of the votes cast in each State affects the votes cast in other States.”
Abridging the citizens’ votes for presidential electors by gerrymandered congressional districts (rigging) or gerrymandered winner-take-all (gaming) inherently results in the malapportionment of a state’s electors. Malapportionment of a state’s electors invokes the Malapportionment Penalty of Section 2 of the Fourteenth Amendment. Malapportionment of state electors by the abridgment of the citizens’ right to vote shall suffer a proportional reduction of representatives to Congress subject to section 6 of title 2 of the United States Code (2U.S.C. § 6).
If the nation’s citizens favor the election of the President of the United States (POTUS) by a national popular vote there is no need to abolish the electoral college by a constitutional amendment, or for states to pass legislation to reform the Electoral College . We already in effect have the election of POTUS by popular vote, if we adhere to the Electoral College reform embodied in the Reconstruction Amend. XIV§2. The Electoral College was fixed in 1868. Amend. XIV§2 imposes a de jure mandate that states must allocate their presidential electors in proportion to the popular vote split or suffer a proportional “reduction of representation” in the state’s number of electors and representatives to Congress pursuant to 2 U.S.C.§6. Any abridgment of the franchise by a disproportionate biased allocation of electors by “winner take all” or “Congressional Districts” invokes the malapportionment penalty of Amend. XIV§2. Mathematical logic dictates that the only way to avoid a proportional penalty is to have proportional representation. The plain text of Amend. XIV§2 dictates that only a strictly proportional apportionment for all presidential electors is constitutionally acceptable. The excruciating fact is, there is a long-standing political, academic and judicial embarrassment that stifles public and professional discourse on the Electoral College. For over a century now, and still counting, the nation is ashamed to admit that section 2 of the Fourteenth Amendment is a provision of the constitution willfully ignored and ritually violated.
With apologies to Albert Einstein for modifying the meaning of his quotation: “Everything that can be counted does not necessarily count; everything that counts cannot necessarily be counted”. The true measure of a Democracy is not in counting how many votes are cast, but in how many of those votes that are cast truly count. Only a proportional apportionment in the counting of votes in every state ensures that every vote cast in the nation is an effective vote that represents a fair allocation of its weight in the total count. Thaddeus Stevens is to be admired for his selfless support of Lincoln in the passage of the Thirteenth Amendment that freed a people, but honor and praise is overdue to Thaddeus Stevens for his role in the passage of Section Two of the Fourteenth Amendment empowering all of the people, should they ever acquire the will to use it.
At the turn of the last Century, Congressman George Henry White, the last former slave to serve in Congress and by 1898 the only African American in the House of Representatives challenged the House to punish southern states for disfranchising blacks by calling for a reduction in their congressional delegations. Congressman White appealed in 1899 that southern delegations to Congress ought to be limited to “the benefit of the votes that are allowed to be cast in their representation … It is a question that this House must deal with some time, sooner or later.” That time has come, It took the nation nearly a century to enforce section one of the Fourteenth Amendment, let us not let another century pass without enforcing section two.
Asa Gordon, Executive Director of the Douglass Institute of Government and Chair of the DC Statehood Green Party Electoral College Task Force currently has a Civil Action pending in the United States District Court (Gordon et.al. v Clerk of HOR ) to Democratize the Electoral College as a matter of law ( http://www.electors.us).