One Person ... Five Votes

This election is important because of the death of Antonin Scalia and the aging of other members. The balance of the Supreme Court of the United States (SCOTUS) is at stake. Both sides have made this a campaign issue, citing the controversies that cause the most concern among passionate voters: abortion, the 2^nd Amendment, minority rights, criminal justice. 

An issue that is never mentioned is the most important. That involves interpretation of Article I, section 2 as it relates to the right of the People to vote in elections.

In 1982, SCOTUS, in Karcher v. Daggett, struck down a New Jersey redistricting scheme. The Court ruled that the 14^th Amendment Equal Protection Clause should apply to the right to vote, affirming the principle of “one person, one vote.” 

The NJ plan was discriminatory to minorities by reducing their power vis a vis districts that had a non-minority majority.

The precedent was followed in Davis v. Bandemer, in 1986. SCOTUS decided that Indiana’s redistricting plan could be challenged in court, but the justices split on the standards to apply to the practice. 

The case was complicated by the contradictory briefs sent to the court. In Indiana, the minority Democrats objected to Republican gerrymandering that watered down Democratic votes. But an amicus brief was filed by Democrats in other states—including California, where Dems controlled the Legislature and hence the redistricting—urging the court to stay out of politics. 

The members of the court agreed that the issue was one that should be presented to the court, but had trouble deciding the appropriate standards for deciding constitutionality. Justices White, Brennan, Marshall, Blackmun, Powell and Stevens agreed on parts of the majority opinion, but not others. C.J. Burger, O'Connor, Powell all filed separate opinions concurring, dissenting, joining - in different parts. 

Then, in 2004, in Vieth v. Jubelirer, the court ruled that gerrymandering was a political issue and not a fit subject for the courts. They upheld Pennsylvania’s plan that eliminated two Democrats from office in the next election, by redrawing districts after the state lost 2 seats in the 2000 census.

The plurality opinion was written by Antonin Scalia, who denied that he was overruling the precedents, merely following "original intent." He was joined by C.J. Rehnquist, Sandra Day O’Connor, and Clarence Thomas.

Anthony Kennedy concurred, providing the 5^th and deciding vote. Kennedy agreed with Scalia that the issue should not be “justiciable” because he couldn’t think of a way to establish standards for defining when gerrymandering was unconstitutional, but he didn’t fully agree with Scalia, hoping that some future court could come up with acceptable standards.

The dissenting votes in favor of striking the Pennsylvania plan were J.P.Stevens, David Souter, and Stephen Breyer, and Ruth Bader Ginsburg.

 And that is the current law.

In the “off-year election of 2010, when Democrats were numbed by the effects of the 2008 crash and the cries against the bail-out and the bruising fight of the ACA (enacted in March). Republicans elected many governors and state legislatures. It was a disaster for Democrats and democracy because it was a Census year, when redistricting is required because population shifts cause losses or gains of seats in the House of Representatives.

The national Republican Party anticipated this and were ready with computerized plans for gerrymandering Democratic voters out of any possibility of controlling the House. Districts were redrawn so that all Democrats were packed in one district. Other districts were drawn so that any remaining Democrats were outnumbered by Republicans.

Of course this is made possible because African-Americans make up a large share of Democratic votes. Minority communities are often densely populated, while minorities are excluded from suburbs and rural areas. That makes it easy to take a county with a gross majority of Democratic votes result in more Republicans in Congress than Democrats.

California eventually tried to solve the confusion that resulted in radical redistricting every time the Legislature shifted power in the volatile population state. California often had Republican governors ready to veto any plan that gave Democrats an edge.

California created a Redistricting Commission that is nominally impartial, or at least bipartisan. In other democratic countries, this sort of plan has been in place for many years.

So, a new president will nominate one or more judges, possibly changing the balance of the court. Since 2004, only Breyer and Ginsburg on one side, and Thomas on the other side, remain on the court.

If the court gets to decide a redistricting case, will it be willing to impose a standard for evaluation of redistricting plans based on a principle of Equal Protection, and one person, one vote?

And then . . . they could deal with the Voter ID laws that are clearly aimed at reducing the minority vote.

"THE FUTURE IS WHERE WE WILL SPEND THE REST OF OUR LIVES" ... CRISWELL

THE FUTURE IS HERE

When I was young and thought I was going to hell along with the rest of the world unless I worried about it, I survived by making a list of my worries. I found that micro fears (personal worries, such as cancer) paled before my many macro horrors (eg: nuclear fallout).

Yet, even in a really bad year for macro trouble (e.g., 1968) my imagination faltered after listing so many ills, resorting to minimal angst about things like UFO's. There may not be any more items on the macro list today than there were in 1968 but they seem worse because so many of these problems appear to be intractable.

Even in the depressing ‘’60’s” when assassinations, wars, crime, racial strife, were rampant, there was still a sense that we “shall” eventually “overcome” the problems. Today we are justified if we are far more pessimistic.  So many of today’s problems have passed the event horizon: the point of no return. They are too complicated to be solved. 

Here are some examples — not necessarily in order of importance or insolubility: 

The boomer generation scourge. The most entitled and largest generation in American history is about to use up all the remaining resources that they haven't yet sopped up. By continuing to live, they (we) endanger the prosperity of our children and grandchildren, who reasonably believe that they will be denied the chance for prosperity because of us. 

Climate change: Some scientists suggest that climate change has reached the tipping point and that the earth’s ecology is beyond repair. In the U.S. one of our two major political parties (the one that currently – and for the foreseeable future – controls the Congress, and almost all of its presidential candidates, deny that it is a problem at all. The influence of wealthy anti-environmentalists is too powerful to be overcome. Even if we were willing to sacrifice in order to solve this problem, emerging nations in Africa, Asia, and elsewhere would not. Thus, a solution is hopeless.

Gun violence in the U.S. The will does not exist to reduce or even limit the amount and type of weapons of mass destruction in the hands of almost anyone living in this country. The Supreme Court’s decision broadly interpreting the Second Amendment and the power of the NRA mean that any meaningful limit on weaponry is impossible. The federal government is handcuffed and state laws are ineffectual as long as neighboring states don’t care.

Use of excessive force by local police officers. Perhaps related to the availability of weapons almost as much as profiling that inevitably involves race- and ethnic-based stereotypes, patrol officers in local departments fear the public they serve. Fear breeds contempt; authoritarianism breeds arrogance and anger on both sides. The institutional norm of militaristic unity leads to the code of silence among brothers in arms (and this usually crosses race and gender lines within the department). Coupled with inherent pro-police bias by prosecutors, judges (usually former prosecutors), legislators (also frequently former prosecutors) and city officials, there is little hope of serious reform. Increasing militancy by racial minorities who feel victimized by police brutality and political impotence will encourage a violent reaction (probably more serious than the Black Power / separatist movement of the 60’s).

Permanent underclass that is underemployed, uneducated, hopelessly mired in poverty. Urban and suburban police (the borderline in our megacities is blurred) are dealing with communities (ghettos) in which all the common ills are rampant and by now, have existed for decades. Schools in these areas have been poor for generations. This is particularly true in a sizeable percentage of the African American population, unable to assimilate into the mainstream of middle class culture. The concept of “upward mobility” that has been a myth of American exceptionalism doesn’t apply to the permanent underclass.  

Permanent homelessness. When I returned from a trip around the world in July 1975, I saw for the first time men sleeping in cartons on the streets of downtown L.A. I had been in Calcutta a few months before and saw similar things. Today it is so common a sight on our streets that we ignore it. Public and private charities provide minimal life support and our mental health care and drug rehabilitation systems have failed to solve the problem.

Incompetence in our major institutions: education; health care; criminal and civil justice; religion; government services (veterans, taxes, licenses, etc.). I lump these all together because it all seems that, like the organs of a dying body, all of these systems are beyond reclamation. The beginning of the end for these institutions happened with the so-called taxpayer’s revolt at the start of the 1970’s in California. Conservative radicals used the initiative process (that had been a progressive instrument intended to override official corruption in the early part of the century) to defund state and local governments. Proposition 13 reduced property taxes that were the main source of funding for state and local government. That was its intent; and it worked. The trend is now permanent. The public demands lower taxes but more and better government services. Science fantasy.  

Economic decline: loss of high paying unionized manufacturing jobs that built the middle class. We will never get these jobs back from overseas, no matter how much demagogic politicians moan about it. Outsourcing assembly line work is needed for the multi-national corporate bottom line. Low paying service jobs in health care, food, retail, and other such industries are going to be the backbone of US employment from now on. The transition to “green” and “high tech” related employment is promised but very uncertain. Globalization is generally good for Asians and Africans who strive to join the developed nations, but the transition is going to be painful for all societies.  

Political polarization; voter apathy; electoral control by the wealthy. At the turn of the 19^th century, federal state and local governments were controlled by the moneyed classes and used mostly for their own benefit. Corruption was normal. Progressive reforms swung the pendulum to some degree. Unions became a voting bloc that, along with the second generation of immigrant families that came of voting age in the 1930’s, made the system work. Americans are rarely energized enough to vote in high numbers by comparison to other democracies. Most are apathetic, confused, cynical, detached from the process. Each major party generally has about 40% of the vote; the remaining 10% who call themselves “independent” sway one way or the other for complex unpredictable reasons, often relating to momentary concerns. They are easily manipulated by the news, prejudices, or transitory emotions. A few wealthy contributors can manipulate elections by focusing on these few swing voters in a few swing states.  

Drug crime. As long as there is a demand, the supply will continue in this very profitable trade. Legalization of marijuana may change the economics relating to that drug, but there will be others. Illegality will always be part of the lure. So, methamphetamines, opiates, and recreational drugs such as ecstasy and whatever pharma can conceive will surely continue to thrive.

Fanatical radicalism; turning to terror as a tactic by the powerless for political or religious purpose; willingness to kill and commit suicide for a cause. Some people have always been attracted to these powerful self-destructive and murderous ideas. Combined with the increased availability of weaponry, there is no reason to expect this will abate.

Israel / Palestinians. This is on the list because it is the oldest of the deadly feuds that threaten world peace. As long as Islam resents the very existence of a Jewish nation on this “holy land” and as long as Israel distrusts any treaty with a neighboring Palestinian state as a threat to its existence, this sore spot will continue to be explosive. It provides a stimulus to pan-Islamic militancy.

The U.S. Supreme Court. You can blame the mess of our foreign policy in the Middle East and Persian Gulf to the Presidents Bush. And you can also blame them for the mess that four appointees to the Supreme Court have made of the constitution. Of all the far reaching mistakes, these appointments may have the most devastating impact. Election financing, reproductive rights, voting rights act limits, second amendment ruling, capital punishment . . . just the start of the damage. 

Reapportionment: In 2010, Republicans took advantage of low voter turnout during mid-term elections to win majorities in state legislatures and governorships even in previous “blue” states such as Wisconsin. The Republican legislators gerrymandered congressional districts so as to assure continuing majorities in congress and state legislatures at least until 2020 when the next reapportionment will occur. Once in control of state governments, Republicans rolled back progress on funding for poverty, health care, education, reproductive rights, unions, environment, etc. They also passed voter registration laws to further repress the Democratic Party vote in the future. 

Religion is here to stay. Some who argue that the greatest source of evil in the world is “religion” have a point, but it is irrelevant. Whether as some suggest, we are hard-wired to seek spiritual guidance, it is clear humans are drawn to religious faith and many are strongly influenced by faith, even when contrary to evidence. Many will prefer religious teaching to scientific proof. Thus, evolution, climate change, gender, family, and sexual issues are all subject to religious tests for many and will always be.

 A free press will not save us. Jefferson’s dictum was that democracy would work IF driven by an educated and informed electorate. We have depended on news media to inform us. They have failed. Corporate infotainment in commercial media is pervasive, permanent, and irretrievably flawed. The old saw, “if it bleeds, it leads,” is revealing. Anecdotal emphasis on violent, highly emotionally charged events instills fear. A crime spree in Atlanta causes people in Los Angeles to buy guns and vote to toughen laws. Sound bites replace analysis, politicians and experts need to give instant, short, meaningless answers to complex questions.

Social media is an unreliable savior. More people today get their news thru their portable devices than from print or traditional broadcast media. The argument in its favor is that it is broader, less corporate dependent, and freer. Others counter that reporting is notoriously unreliable. Vetting of reporting for accuracy is spotty. There are no accepted standards for fact checking, no limits relating to taste, sensationalism, gossip, or bias. Still, the future belongs to social media and there is no likelihood that it will go away. The threatened suppression by governments of this source will not defeat it; it is too pervasive now.

Privacy is a diminishing reality. Governments will continue to monitor telecommunications on the basis of national security and crime suppression. Corporations will come under increasing pressure from governments to cooperate by turning over customer records. The battle between encryption and decryption is permanent. Cyber crime and cyber terrorism will increase in importance and be a part of life for the foreseeable future.

This depressing list is probably incomplete. But what all of the examples have in common is a sense that we have lost the ability to make progressive meaningful change at least for the foreseeable future.

As to the micro worries . . . it turns out that we were right to put cancer at the top of the list. In fact, we could have ended the list right there. Yet, now at this stage of life, my personal worries are too ordinary, numerous and omni-present to be reduced to any list. 

Maybe it is nature’s trick to occupy our minds with impossible conundrums while it destroys us from the inside. Clever.