A Couple of Election Law Thoughts

I have some, on occasion, and this is one of those occasions. The Supreme Court is considering taking up a case regarding whether a State may (not can) count absentee ballots received after voting day. The particular case involves Louisiana’s law that allows such ballots to be counted if received within five days after voting day; the 5th Circuit court said nope, absentee ballots must be received by voting day to be countable.

Those defending the law appealed to the Supremes, making this argument among others:

Adopting that ruling would require scrapping election laws in about 30 states, lawyers for Mississippi told the court.
“The decision below thus invites nationwide litigation against laws in most States—risking chaos in the next federal elections, particularly given the tendency of election law claims to spur last-minute lawsuits,” they said.

That a Supreme Court ruling upholding the appellate court (the only correct ruling IMNSHO) would invalidate election laws broadly is wholly irrelevant. All that matters here is what our Constitution requires and what statutes that are themselves within the bounds of our Constitution say. The convenience of government is distinctly unimportant.

The second beef, that concern about last-minute lawsuits filed just before an election, is legitimate, but it’s easily handled. States can enact laws (so can the Federal government under its Article I, Section 4 authority) that bar courts hearing lawsuits occurring within [six months] of an election from issuing injunctions or temporary restraining orders that alter the status quo and that bar court rulings that are handed down within those same [six months] from having effect until after the next occurring election.

There’s More To It Than Just Race

The Wall Street Journal‘s editors opined recently on race-based gerrymandering. Their second paragraph was this:

In recent years, the Justices have considered challenges to maps in Texas, South Carolina, Alabama, and Louisiana. They punted last term on deciding the Louisiana case (Louisiana v Callais) that they will reconsider Wednesday. They will also take up the question of whether the intentional creation of majority-minority districts violates the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment’s prohibition against abridging a citizen’s right to vote based on race. The right answer is yes.

The editors are absolutely right on this.

They missed a Critical Item point, though, as they closed with this:

The Justices would do the country and themselves a favor by correcting the Gingles error and declaring that the Constitution forbids race-based map-making. As the Chief wrote in a 2006 redistricting opinion, “it is a sordid business, this divvying us up by race.”

Here’s the Constitution on citizen representation in our Federal government.

Article I, Section 2:

The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative….

14th Amendment, Article 1:

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.

14th Amendment, Article 2:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

Our Constitution also forbids political party-based (faction-based in the Founders’ terms) map-making. Our Constitution also takes clear precedence over statutes, including 1965’s Voting Rights Act requiring racial gerrymanders or putative statutes allowing gerrymandering by political party.

What our Constitution does require, and all that it requires, is that Representatives’ districts have substantially equal populations of American citizens.

Full stop.