11 million American “Citizens” mostly people of color, are denied the right to vote in Federal Elections- and it affects the Electoral College

This affects the outcome of the Presidential election, House and Senate balances of power, because Apportionment- a unwieldy and obscure word that holds the keys to Constitutional Power In America. It’s also important to make sure the Constitution is being followed.

Apportionment Definition – Dictionary.com

The proportional distribution of the number of members of the  US House of Representatives on the basis of the population of each state.

Constitutionally mandated process for Apportionment, requires a national voting rights review, which has never happened. This map is used to develop the Electoral College, if Congress has not completed this step. Like any process with statutory requirements, the result of skipping necessary legal steps is null and void.  Also, the electoral college doesn’t include 10 million citizens with no voting representation in Congress(more than 60% people of color)- 4 million because they live on tropical islands, don’t deserve or voting national legislature representation, the literal cause the United States was founded upon.

14TH AMENDMENT (DUE PROCESS, PRIVILEGES AND IMMUNITIES) AND 14-2, AND 14-3, 13th and 15th, Declaration of Independence, Baker vs Carr (1962), 12thAmendment

1)      Wesberry v Sanders(1964)

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. In urging the people to adopt the Constitution, Madison said in No. 57 of The Federalist:

“Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. . . . “[47]

US Constitution Amendment 14-2

But when the right to vote at any election , is denied to 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 ofcitizens shall bear to the whole number of citizens in such State.

Declaration of Independence, 2nd indictment

 He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

  1.  “No serious effort was ever made In Congress to effectuate § 2,” Government Publishing Office Annotated Constitution.
  2. 14-2 is a replacement amendment, much the same as the 12th amendment, making the resulting situation as absurd to the Constitution as Walter Mondale showing up for work to the VP’s office in 1985.
  3. To sum for clarity, the reigning official Constitutional formula for Congressional and Electoral College Apportionment,[1]; has never been applied.
  4. This is an arbitrary and capricious inaction by Congress, much like the state legislatures in Baker v Carr, Wesberry v Sanders series of cases.
  5. In 2016, nearly 10 million American citizens, primarily of color were unable to vote for President of the United States, amounting to 3% of the American population.
  6. This number represents approximately 3.5 times the difference in the popular vote in the 2016 Presidential election, and approximately 100x the difference in the 4 swing states that resulted in the electoral college win.
  7. The review of this amendment’s lack of implementation, the failure of Congress to follow a Constitutional mandate, necessitates a conjecture of what a good faith attempt to enforce it might look like.
  8. 14-2 proscribed a Constitutionally mandated process for Congressional Apportionment. Congress was not giving itself new powers, that the legislature has responsibilities (and a predilection for dereliction of these duties a la Baker, Wesberry, etc.) for Apportionment as it sees fit does not need illumination here.
  9. Instead, the scope of taking on this process, having a mandatory regular pre, and possibly also post Census reapportionment discussion of the meaning of “in any way abridged” would almost certainly provide the desired space for review of ALL of the elements of this complaint, and potentially even the Voting Rights Act, either through the 14th amendment or via Congress’s Constitutional elections powers.
  10.  It may be, for example likely that they would find that registration was an “abridgement”. In this day and age a compelling state interest in maintaining multiple databases and processes is hard to imagine, especially given the additional cost, and the likelihood that many tens of thousands of voters would for various reasons not be able to vote on Election day because of registration issue. This wouldn’t be as radical as might be supposed, as voter registration rate was the criterion used for the Voting Rights Act preclearance. If there is a Census year mandatory reapportionment review and bill passed, like the budget, this would presumably be the negotiation time for the territories to make their demands/requests for Apportionment. The hope, and a reasonable tradition would be to simply make any elections changes at that Census time, which would sharply limit the number of election law cases to a particular scheduled focus rather than an ongoing responsibility for the Courts.
  11. Florida’s state legislature making a play for more power to one political party, kneecapping a ballot initiative the voters of the state approved to restore voting rights to post sentence felons, is an obvious example of the sort of  problem that a Constitutional amendment

Apportionment: Island territories and the District of Columbia

Wesberry vs Sanders (1964)

Justice Black, speaking for the Majority-

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.

  1. 3.5 million American citizens in the island territories; Puerto Rico, US Virgin Islands, Guam, American Samoa and the Northern Marianas, have no Congressional representation, no Presidential representation and have no timetable to.
  2. there has never been a serious attempt to apportion in millions of people, or to give them state hood.
  3. The set of cases normally used to justify this are the Insular cases. Normally, plaintiff’s modus operandi would be cut around Dred Scott level case law.  But careful examination of the text; if one insulates oneself from the minefield language, suggests, actually states, consistently and repeatedly, that the analysis framework was such a situation was not in any way intended to be long term. Despite the inarticulate language[2],  the end conclusion that disparate cultures may not allow full implementation of the United States’ complex and very bureaucratic system immediately. Whatever the situation was in 1900 ish to speak of alien ness, the territories now are assigned to specific appellate circuits, i.e. the VI to the 3rd Circuit 
  1. We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the ‘American empire.’ There seems to be no middle ground between this position and the doctrine that, if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges and immunities of citizens. If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States.”
  1. those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action,”
  2. Whatever  period “for a time” was intended, despite the problems in seeking to discern intent through the lens of a century may be, it is difficult to imagine the writers imagined that time period would stretch through 2 World Wars, a Moon Landing, instantaneous world wide communication, and last as long as the Constitution had up to that point. Whatever  burden “alienness” had, presumably this was pre- Circuit Court assignment of the territories(3rd, 2nd, and 9th I believe), one would assume that a society used to channeling their grievances through Circuit Courts, particularly American Circuit Courts would have filled that criterion.
  3. In other words, the plausible rationale of the first of the Insular Cases, and the license granted to keep people from representation, weak as it is against the bulk of the Constitutional and case law understanding of the right to vote as vital and fully necessary, expired, decades ago.
  4. From the John Marshall quotes, to the Insular Cases, to Tuaua, all note the Constitution is sparse in discussing acquisition of new territory, and people’s rights within that territory.
  5. Tiptoeing into the murky territory of divining original intent, here, the reason for this seems obvious. Why would the founders, having lived in an Empires’ acquired territories without representation, having spent near a decade fighting their former country, not include a mechanism for acquiring territories (colonies) and not extending rights to them? How would they have felt about a national legislature, located across a large body of water with sovereign authority that refused to allow their representatives a voting say? Rather than belabor the point, here,  Plaintiff holds this to be self evident. 
  6. More than 3.5  million people without voting representation are roughly the same population as Wyoming, Vermont, North Dakota, South Dakota and Alaska COMBINED, with 10 Senators, 15 Electoral College votes and 5 House reps.
  7. What differentiates these 2 sets of 3.5 million people, that one should have 0 representation for a full century plus 20 years, and the other, double the average US representation?
  8. Alaska, Hawaii, the Virgin Islands, Puerto Rico,etc, all came to be a part of the US at approximately the same time.
  9. Slightly different, be dealt with in the same reapportionment is Washington DC’s 750,000 with 0 voting  Congressional representation despite 3 Electoral College votes, as the area which needs voting representation more than any other, as Washington DC is literally centered around Congress. This is still covered by the scope of the Presidential and Congressional Apportionment; with the 435 cap on House Reps, changes in size of Washington DC also would shift representation in the United States, taking at least one, and just as likely to shift the decimals to affect the representation in several states.
  10. Eleanor Holmes Watson
  11. There is a provision in the Constitution about a non-voting Federal district; there’s also, with the later amendment prioritization,  mention in there about “privileges and immunities”, due process, “equal protection under the law”  but to think that disenfranchising the population the size of each of 7 states rather than, say, drawing a line around the federal buildings in DC
  12. Either the right to vote is a Constitutional one, requisite for citizenship or it is not.  Either the people in the Islands are Americans or they are not. Either the Privileges and Immunities Clause applies or it does not.  Either the Supreme Court’s words have meaning which must be carried through into effect, or Congress and the Judiciary, are the tyrant spoken of in the Declaration of Independence.

Apportionment: Prison Gerrymandering and Felony Disenfranchisement

  • 6 Million Americans- 2.47% of the United States voting age population are ineligible to vote due to felony disenfranchisement, and more than 3 million of these post sentence completion, a de facto life sentence as a second class citizen. Normally this is thought to be a side effect of the United State’s (colloquially known as “the land of the free”) role as the number 1 jailer in terms of a)total numbers as well as b)per capita in the world today, and likely in human history,  it is likely an incentive.
  • 29)   In 5 states, African American disenfranchisement reaches 20% of the black male voting age population. This is a clear red flag, especially in states where Voting Rights Act preclearance (not to be confused with RNC preclearance) (such a history of racial discrimination that the Congress required those states to check in before changing their voting laws) previously existed (3/5),
  • It is fairly clear, from the intent- is that this possible loop hole, has morphed into the exact thing it was designed to prevent – the disenfranchisement of black voters by southern states through state action, in this case, it seems disproportionate enforcement of crimes against minority populations.  In fact, in a manner is now worse than slavery- the infamous 3/5 ths compromise, gave slave states less credit for disenfranchised people. Felony disenfranchisement is now, the complete transfer of the agency and voting representation rights, from the person charged with a crime- to the people of the community, and more importantly, to state officials of the area, along with jobs, and a source of cheap labor, often paid for by the state, and not the locality. In other words if you have power that you believe someone else might want you to share, it’s worth your while to push people further down- all thanks to the “Equal Protection Amendment?”
  • Further, it is hardly clear that today’s interpretation is the correct one from a textualist-constructionist or an intentionalist view of the Constitution.
  • Justice Marshall- Richardson vs Ramirez
  • The Court construes § 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for “participation in rebellion, or other crime” from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words “or 73*73 other crime”; the proposed § 2 went to a joint committee containing only the phrase “participation in rebellion” and emerged with “or other crime” inexplicably tacked on.[16] In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the “other crimes” provision—a reference which is unilluminating at best.
  • The historical purpose for § 2 itself is, however, relatively clear and in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance.[18] There were two alternatives available—either to limit southern representation, which was unacceptable on a long-term basis,[19] or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time.[20] Section 2 of the Fourteenth Amendment was the resultant compromise. 74*74 It put Southern States to a choice—enfranchise Negro voters or lose congressional representation.
  • Given that in Florida, felon disenfranchisement renders 25% of male African American voters ineligible, it would seem to be an unfortunate form of voter suppression via race.
  • Plaintiff would say that the meaning of the passage to be a modifier probably best expressed as “rebellion or other such crime” would have been a less ambiguous way of stating the meaning, meant to encompass other, similar treasonous acts for which participation in democratic society would be dangerous, and likely to be manipulated to the detriment of the people of the state/country. Given the time period, it seems inconceivable that the framers of the 14th Amendment were unaware that rebellion is in fact a crime,[3]and thus would have said, simply, crime, were that the true intent.  

United States vs. Williams, 1951

  • The dominant conditions of the Reconstruction Period were not conducive to the enactment of carefully considered and coherent legislation. Strong post-war feeling caused inadequate deliberation, and led to loose and careless phrasing of laws relating to the new political issues.”
  • Are we to believe then, that a loophole in a passage meant to ensure national reapportionment as a check on voter disenfranchisement in an amendment, THE amendment, to ensure equal protection for all men(not being quite enlightened yet to include the fairer sex), after the bloody and protracted war was then meant to have the effect of millions enumerated, for 5/5ths representation, or an even better deal for the “real” citizens in terms of national power, than slavery?   It strains credulity that in developing a remedy to ensure southern black people had the right to vote, and a penalty paid for removing voter rights, should become the very instrument of voter right suppression through an ill-defined word. Also, if one is to assume then, that people who are, taken out of the voting, would they not then qualify as “all other persons” and have us back at 3/5s? 
  • The following section- 14-3 explicitly describes a methodology by which rights, specifically removed for participation in “rebellion or insurrection” can be restored- but says nothing at all about restoration of criminal rights. Is it that the post bellum Congress thought that, rebellion was the only redeemable crime, more so than petty larceny? Or that one or two beat the committee and refused to let it adjourn on their section of the amendment. It seems simpler- and far more congruent with equal protection under the law, and the protection of the right to assuming “treason or other crime” means  “treason or other such crime” than “any crime.” 
  • It is well established that the legal justification for the involuntary servitude of prison labor is contained within the 13th amendment, virtually uncontested.

13th Amendment

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

                        15th Amendment

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

  • It seems clear that jailhouse involuntary servitude, allowed by the 13th Amendment, after completed sentence is a previous condition of servitude., as defined by the 15th amendment effectively mandating an automatic full restoration of voting rights post sentence.
  • Further, given the moral hazard presented by the awkwardly phrased, and intent inverted Amendment, we must also look to see the limits of the right. Much like the Plaintiff’s  right to free speech  not extending to the practice of lyrical prose (not “pro se”) from the benches in the audience while in the Supreme Court while in session,  there are necessary limits to even  Constitutional rights, and the states’ rights under the Constitution therefore can also be held to have limits.
  • The last remaining loophole to legally and permanently remove voters permanently from the rolls- disproportionate enforcement of the same laws, would yield a significant enough advantage.
  • Consider that we have already reviewed several instances in which it is abundantly clear that there are people willing to go to great and illegal attempts to suppress votes, and hence federal civil rights.
  • Sadly, the Black Codes in the South provide adequate example of previous attempts to disproportionally affect black voters  That prisons are sometimes placed in districts to make them more safe is hardly unknown.
  • At the time of Richardson vs Ramirez, 1974, the total number of disenfranchised was still large for a society of this size- a million plus would be one of the largest prison countries on the planet even today; but today that number has reached 6 million or 2% of the US population; in Florida, the number of felony disenfranchised reaches 10% of their population, and approximately 25% of the black male population. In and of itself;  numbers that merit investigation.
  • After a ballot initiative Floridians passed overwhelmingly- which clearly stated unequivocally that former felons would have their rights to vote restored, the Florida State Legislature passed a law adding penalties to be recovered before voting rights restored.
  • The matter went to Federal Court, but was already in the wrong Jurisdiction. Congress mandated in  52 USC 10101- the Voting Rights Act of 1965 that such alleged violations of voting rights were to be special Jurisdiction of the Federal District Court for the District of Columbia, with both the Circuit Court

[1] one that became far more important with the cap on House Representatives at 435

[2] Being overly generous here. Tuaua v United States, did not believe the language of the ruling precedent being “politically incorrect” invalidated it’s logic. Without bending the knee to the colloquially nomenclatured “woketarians”, there are several places where the Court seems to be dancing a precariously close to racism cliff, or simply using a professional sounding language in the public record for less palatable private conversation.  As much as possible without re writing history, pulling forth the good parts of the analysis to a new reigning precedent that doesn’t refer to American citizens as savages wherever possible may be a worthy endeavor.

[3]somewhat arguably in a nation whose initial legal document defines the case for which revolution is a responsibility, beyond it’s status as a right. Though of course the irony of claiming a document proclaiming all men to be created equal and any government impinging upon a person’s liberty or pursuit of happiness was inherently invalid ,was the legal foundation for forming a government based upon the inequality of man, and the ability to literally bind humans in chain was lost on the Confederacy.

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