Constitution Demands Voting representation for Puerto Rico, VI,Guam and Washington DC

The Courts have waxed too poetic for too long, to keep 11.5 million Americans from the right to vote, and the people of Florida have already spoken about felon voting. The courts have clear precedent to deliver the relief to many black and brown people who have been denied the right to vote for the sovereign since before America had electric lights. The case quoted is a hundred and 20 years old, the Insular cases, and does not mention the right to vote. If Congress does what the Constitution demands, millions more will have the right to vote. If they don’t the courts must, by clear law.

1)      Wesberry v Sanders

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 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.

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.

  • “No serious effort was ever made In Congress to effectuate § 2,” Government Publishing Office Annotated Constitution.
  • 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.
  • To sum for clarity, the reigning official Constitutional formula for Congressional and Electoral College Apportionment,[1]; has never been applied.
  • This is an arbitrary and capricious inaction by Congress, much like the state legislatures in Baker v Carr, Wesberry v Sanders series of cases.
  • In 2016, nearly 11 million American citizens, primarily of color were unable to vote for President of the United States, amounting to 3% of the American population.
  • 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.
  • 14-2 proscribed the process for Congressional Apportionment. Congress was not giving itself new powers, that the legislature has responsibilities (and a predilection for dereliction of these duties Baker, Wesberry, etc.) for Apportionment as it sees fit does not need illumination here.
  •  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.
  • 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. 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 time, which would sharply limit the number of election law cases to a particular scheduled focus rather than an ongoing responsibility.

[1] one that became far more important with the cap on House Representatives at 435 (which without looking also does not seem to have been reviewed with case law  with a suitable measure of care)


Darrell Prince

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