The Supreme Court has taken up a Wisconsin gerrymandering case, Whitford v Gill, in which some Liberal plaintiffs claim the State’s Republican legislature went too far in gerrymandering the State’s state legislature districts. The plaintiffs are centering their beef on the idea that Republicans are overrepresented in the State’s legislature compared to State-wide voting tallies; Democrats didn’t get their “fair share” of the seats.
The plaintiffs are targeting Justice Anthony Kennedy in what is likely to be a sharply divided court, and some of Kennedy’s remarks at oral argument are, indeed, troubling.
[A]s Justice Kennedy noted in League of United Latin American Citizens v Perry the Constitution doesn’t require proportional representation, which would mean representation according to voter population.
It’s more than “doesn’t require,” and it’s bothersome that Kennedy seems not to understand this. The Constitution prohibits proportional representation by requiring equal representation of each citizen. This is in two Sections of the 14th Amendment. Section 1 has this on the matter:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Equal representation at the polls is both a matter of privileges and immunities and of equal protection of the laws. As all citizens are alike in the eyes of the law, so are all members of a subset of citizens—voters—alike at the voting booth. There can be no other demarcation of voters, one from another, much less one group from another group, and preserve that identity.
Section 2 makes the thing explicit, with the sole modification of the 19th Amendment, which extended the franchise to women:
[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
This is the only place where proportionality is permitted, and it’s permitted only in the relation of disenfranchised individuals to the whole of the eligible-to-vote population of individuals. Party affiliation proportionality, the center of the present case, is both utterly absent in the Constitution and entirely illegitimate as an apportion criterion under the Constitution.
The Supremes need to uphold Wisconsin’s districts as they currently exist.