Patterico's Pontifications

10/23/2005

Harriet Miers vs. The United States Supreme Court

Filed under: Constitutional Law,Court Decisions,Judiciary — Patterico @ 5:00 pm



Harriet Miers:

While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.

The Supreme Court:

The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization. The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States.

Mobile v. Bolden, 446 U.S. 55 (1980) (addressing a voting dilution claim under Section 2 of the Voting Rights Act brought against at-large Commissioners of the Mobile, Alabama Commission).

So: it’s not just pointy-headed legal scholars who say that the Equal Protection Clause does not have a “proportional representation” requirement. If you disagree with that assertion, then you don’t just have a problem with the legal scholars. You have a problem with the Supreme Court.

And yes, I understand the argument that Miers was referring to the “one man person, one vote” rule. That may be. But the Supreme Court quote I just gave you should establish beyond any doubt that Miers’s language was, at a minimum, both 1) sloppy and 2) contrary to a settled understanding of the phrase.

Thanks to commenter Neil J. Lehto.

P.S. As was discussed extensively in John Roberts’s hearings, the holding of Mobile v. Bolden relating to Section 2 of the VRA was superseded by later Congressional amendments. These amendments do not affect the Court’s holdings regarding the Constitution in the slightest.

P.P.S. I await the commentary from those who claimed that the Equal Protection Clause obviously does require “proportional representation”; and/or that only pointy-headed legal scholars, “socialist, group-rights advocating, racial-demagoguery spewing civil rights lawyer[s],” and out-of-touch Con Law geeks would deny that simple truth; and/or who claimed that I was digging myself into a hole by claiming that Miers was either woefully ignorant or hopelessly imprecise. You know who you are. Let’s hear from you. I’d like you to acknowledge that, at a minimum, Miers used misleading and imprecise language.

UPDATE: Thanks to Jonathan Adler at Bench Memos for the link.

32 Responses to “Harriet Miers vs. The United States Supreme Court”

  1. While I don’t feel like I have a dog in this fight–I think another conservative jurist will do many things I hate anyway–I must admit it seems Miers’ stock is plummeting.

    Dean Esmay (0e0491)

  2. As other posters have been writing, Harriet Miers is now just basically Lani Guinier, with a Texas drawl. She’s in favor of race-based quotas? How can any conservative (or moderate– or even self-respecting liberal) favor her when she supports such an utterly destructive policy? This should be the final straw for Bush to withdraw this diastrous nomination.

    Firebreather (4fd023)

  3. One Man, One Vote —

    Ms. Miers was not possibly referring to the one-man, one vote requirement of the constitution. As a Dallas city councul member she was engaged defending a court with section 2 of the Voting Rights Act, which under its adminstration by the Department of Justice in 1989, when she was elected, was being used to challenge at-large election districts in cities where minority voters were disproportionately represented on elected bodies. She also was dealing with creating with creating the boundaries of smaller neighborhood districts, which needed to comply with the one-man, one-vote rule — equal in population, geographically compact, contiguous, reasonable, non-gerrymandered, perhaps, in her view — that would allow the city’s minority voters to elect minority candidates. The primary object of such an exercise for an incumbent council member is complicated by everybody’s effort to do all that and to protect their own re-election. So, I do not criticize her for whatever the outcome of what she did during her role in the resolution of the case and the re-districting of the city, but that her report of what she did to the U.S. Judiciary Committee was so badly muddled on a legal and, more sadly, practical basis. If anybody knows about legislative re-districting since the 1970s, it is U.S. Senators.
    She was preaching to the faithful. That she did not know so is what is so damning in her response to the Judiciary Committee questionnaire.

    Neil J. Lehto (77bed1)

  4. FIXING TYPOS:

    Ms. Miers was not possibly referring to the one-man, one vote requirement of the constitution. As a Dallas city council member she was engaged defending a court action under section 2 of the Voting Rights Act, which, under its adminstration by the Department of Justice in 1989, when she was elected, was being used to challenge at-large election districts in cities where minority voters were disproportionately represented on elected bodies. She also was dealing with creating the boundaries of smaller neighborhood districts, which needed to comply with the one-man, one-vote rule — equal in population, geographically compact, contiguous, reasonable, non-gerrymandered, perhaps, in her view — that would allow the city’s minority voters to elect minority candidates. The primary object of such an exercise for an incumbent council member is complicated by every other council member’s effort to do all that and to protect their own re-election. So, I do not criticize her for whatever the outcome of what she did during her role in the resolution of the case and the re-districting of the city, but that her report of what she did to the U.S. Judiciary Committee was so badly muddled on a legal and, more sadly, practical basis. If anybody knows about legislative re-districting since the 1970s, it is U.S. Senators.
    She was preaching to the faithful. That she did not know so is what is so damning in her response to the Judiciary Committee questionnaire.

    Neil J. Lehto (77bed1)

  5. Miers, or no Miers, how can any SCOTUS Justice be a strict constructionist when we have the Fourteenth Amendment? It is, or could be, a malleable stencil for Satan.

    I am thinking that we need one, or two, intelligent, experienced and sound patriots before we need a brilliant legal technician. I do doubt that Harriet Miers has the brains and strength, and youth, even if she were qualified by right thinking.

    RJN (c3a4a3)

  6. This woman is such a palpable lightweight that her nomination is an affront to the work of serious Conservative Jurists. She is not qualified for this vacancy, and the fact that this White House continues to pretend that she is sickens me. I knocked on doors and manned phones last October, for what? Dubya’s very average attorney to be given a lifetime appointment to the highest court in the land? I don’t think so.

    Martin Hague (8199db)

  7. Miers is a quota pick, and anyone who supports or benefits from affirmative racism/sexism would have to be ignorant of or hostile to basic constitutional concepts like equal protection under the law. Bush made the quota pick, so obviously he is not a conservative, much less a strict constructionist. Andrew Card was a strong supporter of Souter, and here he is again pushing another stealth candidate.

    R LaBonte (9f68e6)

  8. Who cares if she used the phrase in a manner contrary to “a” settled understanding of the phrase “proportional representation?” It’s not a term of art. Without having read Mobile recently, I don’t know if it does or does not contradict Miers’s apparent view that the Equal Protection Clause requires one-man, one vote – or at least a system of representation that is not grossly disproportional to it. Even if it does, that doesn’t mean the dissent is wrong, or that Miers is wrong to agree with it.

    I’m still not sure I understand what you think “the” meaning of “proportional representation” is, but I’d be willing to bet that it isn’t the most common one, which is a European-style parliamentary government such as Germany’s, where each party gets a number of representatives in proportion to the popular vote. If Miers believed the Equal Protection Clause required that, then I would agree she should not be confirmed, nor even allowed to practice law. But I think it’s pretty clear to everyone, including the pointy-headed constitutional junkies, that she wasn’t talking about that.

    Xrlq (428dfd)

  9. Some questions for Harriet Miers during the hearings reagarding her responses to the first questionnaire:

    1. Who wrote your responses to questions 17, 18 and 28?

    2. Did you read and agree with them?

    3. Staff has provided you with a copy of your responses which was put through the standard retail version of Microsoft Word spell/grammar checker. I want to go through your responses and ask you to explain if you agree which the change suggested for each highlighted word or phrase.

    4. Did you work for the Southwestern Medical School while you were clerking for U.S. District Judge Joe Estes?

    5. What was your mailing address with the D.C. Bar Association?

    6. Who paid the delinquent D.C. Bar Association dues? Were you reimbursed by the U.S. government?

    7. Are you a member of the American Bar Association?

    8. Were you assigned the note you wrote for the Law Review when you were a student at the Southern Methodist Law School?

    9. Was Fisher v. Carousel Motor Hotel correctly decided?

    10. Please answer the questions you raise in footnote 46?

    11. Why did you seek a summer clerkship with Melvin Belli? Did you want to do personal injury work?

    12. Are records of your speeches as president of the Dallas Bar Association and State Bar of Texas available at your old law firm?

    13. Does the Equal Protection Clause of the 14th Amendment require proportional representation?

    14. Did section 2 of the Voting Rights Act require proportional representation while you served on the Dallas City Council?

    15. Please elaborate on your answer to question 17 regarding section 2 of the Voting Rights Act, proportional representation and the Equal Protection clause of the 14th amendment to the U.S. Constitution.

    16. You said, “In representing a media client, I was involved in First Amendment matters concerning libel allegations, prepublication review, and sourcing issues.” What are prepublication review issues? What are sourcing issues?

    17. How do you spell lawsuits?

    Neil J. Lehto (77bed1)

  10. Proportional representation was an equal protection argument raised and rejected in Mobile v. Alabama. There is no possibility that she was referring to anything except the notion that a city such as Dallas when she was elected had an at large council election system, which black leaders said excluded black candidates from serving. It had nothing to do with the equal protection clause or one-man, one vote. It had to with section 2 of the Voting Rights Act,which, by an admittedly hazy standard, tried to push for representative election schemes,which empowered minority neighbors, districts and communities. Who cares? The U.S. Congress cared. Dallas responded by tossing out its at-large scheme in settlement of litigation pending while she served. She my earlier post here.

    Neil J. Lehto (77bed1)

  11. Ok Patterico, I finally broke away from real work long enough to see your invitation. I suppose the issue of Miers’ language confusing pointy-headed Con Law geeks (I think I said nerds) never really was an issue, and I’ll acknowledge that someone who understands that one of the most intensely interested portions of the audience will by those lawyers who take a keen interest in equal protection clause and voting rights issue (backing away from terms like geek or nerd, at least for now. I didn’t include “pointy-headed” in my comment — maybe next time). But I still don’t think it’s plausible that when Miers said “proportional” the notion of racially proportional representation had even crossed her mind. I’m sticking with my plain English explanation, and it still seems like 99.9% of the population, and probably nearly that proportion of lawyers (see — I managed to use proportion without having it have anything to do with race) wouldn’t use it in the same way as Sunstein (among others). There are far better reasons to oppose Miers’ confirmation, and this one just makes the conservative-lawyer-opposition camp look out of touch with ordinary people who use ordinary words assuming they’ll have the usual meanings. Sure, it can be used more narrowly, and given the position for which she’s been nominated, she probably should have been aware of the narrow meaning and chosen words that would have avoided the confusion. Nevertheless, in the context — not just the subject matter, but also considering Miers’ own background — there’s not much reason to think that’s how Miers was using it, and a lot of people jumped all over it as if the meaning of the word as understood by almost everyone who speaks English no longer was a valid definition. ‘Cause Cass said so. Sorry, but my backing off stops well before the point where I say ok to Sunstein & Co.’s hijacking of the language.

    TNugent (6128b4)

  12. Sure, it can be used more narrowly, and given the position for which she’s been nominated, she probably should have been aware of the narrow meaning and chosen words that would have avoided the confusion.

    I think you and I agree. Isn’t this what I said, once you and others had pointed out the possible alternate explanation for her use of the phrase? I think I said that perhaps you were right, and maybe she did indeed mean that — but if she did, it was a poor use of language, and that is not a good sign.

    Here’s my basic point: when you say x, and the Supreme Court has said “not x,” it’s not encouraging. When that happens, you have some ‘splainin’ to do. Don’t you agree?

    How many times do I have to say this: I am not insisting that she definitely believes in a constitutional requirement of “proportional representation” in the sense I had originally feared. (In fact, I never insisted that — I just said: that’s what it really sounded like to me; that possibility had me very concerned; and I invited alternate explanations, which you and others provided.) So all the numerous comments and posts, both here and on other blogs, that accuse me of maintaining that stubborn insistence: STOP. I am willing to entertain the possibility that she meant something more defensible — and if so, that means that her use of language was imprecise. Her fault — not that of the scholars.

    Not good.

    Understand?

    Patterico (f94290)

  13. Ms. Miers’ Diction

    I’m still not following the Miers debate in great detail, mostly because the hearings have not started and most of the debate is based on rumor, but this is troubling: Harriet Miers: While I was an at-large member of the…

    The Four Horsemen (fe7c9d)

  14. Patterico, I was ready to let you have the last word, but since you ended your reply with a question, I’ll respond. And yes, I’m sure we agree, but some clarification is called for.

    I understand very clearly that you aren’t saying she advocates implementing programs for racially proportionate representation or that she thinks such a thing is required by the constitution. After a little background reading back when the remarks were reported, it was clear to me that Miers’ comment, on its face, meant that she had previously dealt with the issue of whether at-large representation intended to ensure representation of particular minorities on the Dallas City Council would be within the limits imposed by the equal protection clause — as interpreted by the S.Ct. in the Baker v. Carr and Reynolds v. Sims cases. Miers used “proportional” whereas the word “proportionate” appears in various places in Warren’s (Burger’s, that is) opinion in Reynolds v. Sims.

    Unfortunately for Miers, advocates for the absurd and divisive idea of racially proportionate representation have used “proportional” as though it were a term of art, whereas Miers, as a former math teacher, undoubtedly understands it, and used it, intending its ordinary meaning.

    I’ve had three issues with the resulting criticism of Miers’ statement. The first is that the critics should have given some thought to the ordinary meaning of the words Miers’ used, rather than just assuming that those words were used in a very narrow sense. The second, related to the first, is that by responding so forcefully to what could very well have been Miers correct, if not entirely clear, use of a common word in our language, critics do indeed look like pointy-heads to everyone who’s not a constitutional scholar.

    The third is that at least some of the criticism has depended on a mixing of apples and oranges — Miers’ comment covered two separate ideas, the first being that of proportionate (as to population) representation, and the second being non-proportionate (such as at-large) representation as a limited, permissible deviation from the general requirement of proportionate representation. Reading the reactions, it appears that some critics concluded that she was speaking only of the second of these two ideas, and had suggested that racially proportional representation was a constitutional requirement. But that conclusion requires a misreading of what Miers actually said. Misreadings are easy to do when one is preparing for or rushing off to court, or whatever those of us who work for a living do with most of our time, and maybe that’s enough to give even Sunstein a pass. (did I say that?!).

    I’m not sure that Miers could have anticipated the problems that confusion over her remarks would cause. That’s probably related to her background — she’s not a constitutional scholar; if she were, she would have realized just how loaded a term like “proportional” representation is. But we don’t really need this remark to tell us that she’s not a constitutional scholar, and criticism of it has some potential to be exaggerated and then used as ammunition for an ad hominem attack against Miers’ critics (as if there haven’t already been enough of those).

    TNugent (6128b4)

  15. Nobody “misprepresentated” what she wrote. Harriet Miers was responding to a questionnaire from the U.S. Senate Judiciary Committee seeking confirmation as associate justice of the U.S. Supreme Court.

    These were not notes for a visit to a high school civics class in Washington, D.C.
    Words really do have very specific meanings in constitutional jurisprudence.

    The separation of church and state does not mean you cannot build City Hall next to the First Methodist downtown. Holy cow!!

    What’s even more remarkable about her flabbergasting error is that its apparent that nobody with any constitutional law experience proofread her response.

    Otherwise, please explain how this occurred.

    Neil J. Lehto (77bed1)

  16. TNugent wrote:

    “After a little background reading back when the remarks were reported, it was clear to me that Miers’ comment, on its face, meant that she had previously dealt with the issue of whether at-large representation intended to ensure representation of particular minorities on the Dallas City Council would be within the limits imposed by the equal protection clause — as interpreted by the S.Ct. in the Baker v. Carr and Reynolds v. Sims cases. Miers used “proportional” whereas the word “proportionate” appears in various places in Warren’s (Burger’s, that is) opinion in Reynolds v. Sims.”

    You got that backwards.

    When she was elected to the Dallas City Council there was pending ligitation against the City under section 2 of the Voting Right over whether the city should adopt a plan doing away with council members elected at large, an election method that minority groups in Dallas criticized as marginalizing them from municipal politics.

    Ms. Miers, elected as an at-large council member, initially favored the at-large system, but her position evolved to support a proposal that would create a collection of different districts in the city.

    The resulting settlement created 14 districts, the boundaries of which council incumbents fought bitterly over. Four districts were eventually agreed upon that led to breat Hispanic and black representation on the City Council. She was not dealing with “one man, one vote” or “proportionate” legislative districts.

    Neil J. Lehto (77bed1)

  17. The separation of church and state does not mean you cannot build City Hall next to the First Methodist downtown.

    “Separation of church and state” is a term of art. “Proportional representation” is not. The end.

    Xrlq (6c76c4)

  18. “Proportional representation” is not.

    Sez who?

    Patterico (31a936)

  19. “Proportional representation” makes a constitutional/municpal/election lawyer’s knee jerk sharply. If you don’t recognize legal jargon, get out of the discussion. Today, it is standard fare, easily understood shorthand over which Ted Kennedy will slowly turn up the heat.

    Neil J. Lehto (77bed1)

  20. …easily understood shorthand over which Ted Kennedy will slowly turn up the heat.

    Good god man, you mean there is more than ONE Ted Kennedy?

    Nooooooo!

    Christopher Cross (ee574f)

  21. I don’t understand what that means.

    Harriet Miers offered up an example of her understanding of the constitution in the exact same area of the voting rights law Ted Kennedy grilled Chief Justice Roberts over. Roberts smiled and put him away. Miers cannot possibly defend herself except to admit grievous error by herself, her writer or her handlers. Her response ranks up there with the greatest ever made in Judiciary Committee proceeding over a Supreme Court nominee. It amazes me that anyone finds what she in any way defensible. Measured by its wrongness, it exposes her and her handlers as just plain legally, politically and linguistically dumb.

    Neil J. Lehto (77bed1)

  22. You know, I gotta figure out how to spell/grammar check this stuff. Here is what I should have said:

    I don’t understand what that means.

    Harriet Miers offered up an example of her understanding of the constitution in the exact same area of the voting rights law that Ted Kennedy grilled Chief Justice Roberts over. Roberts smiled and put him away. Miers cannot possibly defend herself except to admit grievous error by herself, her writers or her handlers. Her response ranks up there as the greatest error ever made in Judiciary Committee proceeding over a Supreme Court nominee. It amazes me that anyone finds what she said is in any way defensible. Measured by its wrongness, it exposes her and her handlers as just plain legally, politically and linguistically dumb.

    Neil J. Lehto (77bed1)

  23. It’s a joke.

    over which Ted Kennedy will slowly turn up the heat.

    “Which” can be read to mean there is more than one Teddy that could turn up the heat. I know what you meant, but I was making a funny…oh screw it.

    Christopher Cross (ee574f)

  24. My editor would have skewered me over that, too.

    Neil J. Lehto (77bed1)

  25. Neil, thanks for the info. But it still sounds like she was referring to the EPC as establishing a requirement of proportionate (al?) representation according to population, applied to limit efforts to achieve racially proportionate representation. Whether that was the creation of at-large representation or doing away with it and re-drawing district lines doesn’t seem to matter much to the issue of whether she misused “proportional.”

    Her support for the re-districting policy is a different issue than her comment, in my opinion, and is probably more relevant to the question of whether we want her on the Court than her use or misuse of “proportional.”

    TNugent (6128b4)

  26. TNugent your response is incomprehensible to me. I am no constitution scholar. I hate to ask if you are a lawyer because I do not want to suggest that only the priesthood of lawyers can understand constitutional law. I know that is not so. But in law school these “concepts” are hammered into us and what we need to know to pass exams and the bar exam, too. You have a view of what she said that mis-construes what most law students/lawyers would say she said. And I doubt she was talking to non-lawyers in writng her response. Absolutely not. That is where I will leave this thread.

    Neil J. Lehto (77bed1)

  27. “Proportional representation”is not [a term of art].

    Sez who?

    Sez me – and should sez everyone else unless you can show that it is. After all, isn’t the burden of proof normally on the person making the affirmative claim, and not on the person doubting it? Neverthless, just to be a mensch I’ll go the extra mile and offer some evidence that the phrase “proportional representation” either is not a term of art, or is a term of art that means something completely different from what you think (and Neil “knows”) it means.

    First, when debating legal semantics a good place to start is Black’s Law Dictionary. Their definition, per the Sixth Edition, is “a method of election which gives representation to minority interests.” On the surface, that sounds consistent enough with your definition, if you assume “minority interests” refers to racial rather than partisan minorities. Fortunately or unfortunately, that assumption falls apart once you look up the case they cite, Davis v. Bandemer, 478 U.S. 109, 129 (1986), for the proposition that the Equal Protection Clause does not require proportional representation. Race was not an issue in Davis, only proportionality by party was. That alone is enough to warrant a change to the heading of this post, which really ought to read “The United States Supreme Court vs. The United States Supreme Court,” as the institution itself can’t seem to agree on what the allegedly established meaning of “proportional representation” is.

    But maybe the Supremes just had a bad day, and Patterico and Neil’s pet definition – um, I mean, the “real” one – just got left out of Black’s by mistake. Could happen. I’m sure all the real lawyers here plus Neil can agree that his other example, “separation of church and state,” is a term of art, and that’s left out of the Sixth Edition altogether, so maybe that happened here, as well. Moving on to Wikipedia, you’ll find references to a wide range of voting methods, including party-list proportional representation, shared candidate democracy, cumulative voting, and several other systems, the only common thread of which is that all are intended to make representation more … um … proportional. You won’t find the specific issue of one-man, one-vote in there, but you also won’t find anything about racial proportionality, either, or whatever the hell else the Supremes may have been alluding to in Mobile.

    Then again, this “proportional representation” non-issue has recently become a cause celebre among anti-Miers jihadists, so it is possible that by the time you read this entry, some of your fellow travelers may have hijacked it. So let’s try Google as a fall back option, with the caveat that we exclude “Miers” as a search term since the object is to find out what everyone thought “proportional representation” meant before the Miers hullabaloo rather than after. The first entry is this site on party-based proportional representation. The Wikipedia entry, which we’ve already discussed, is second. Third is this site, which advocates proportional representation by … you guessed it, party. This one is a bit different from the rest, advocating “choice voting” to make the outcomes of city elections more proportional, but again the proportionality is to how people voted by party, not the color of anybody’s skin. The rest are from other countries which, surprise of all surprises, all have parliamentary systems with “proportional representation” by party – and most of which are so racially homogenous that discussions of race-based “proportional representation” would not even make sense.

    Thus far, between Blacks and Google you and Neil are 0 for 11, but I’m sure if you keep digging under Google you’ll find something eventually. There are 1,620,000 more where those came from.

    Xrlq (6c76c4)

  28. Too frequently, too easily, like myself, lawyers, who suffer from dealing in the jargon of their profession, run up against someone whose mindless argument is that what we’re doing is mumbo-jumbo.

    Well, okay.

    However, you cannot rewrite settled constitutional law by citing Google or Blacks Law Dictionary. There are lots of proportional representation election schemes out there that have different meanings under different foreign and domestic voting laws. That, however, means nothing whatsoever, in the context of section 2 of the Voting Rights Act and the Equal Protection Clause of the U.S. Constitution as construed by the U.S. Supreme Court. Absolutely nothing!!

    It is senseless to argue about this anymore. Harriet Miers was writing about specific litigation then pending in Dallas under section 2 of the Voting Rights Act, which has a hazy proportional voting guideline, which was being used by the U.S. Justice Department to force a change in how the city elected it council and mayor.

    The litigation DID NOT involve the Equal Protection Clause or one man, one vote. Professor Sunstein should be slapped for what he said, if quote accurately and, especially if was not speaking from specific knowledge of what was then pending in Dallas. He was half-right but fully over-anxious to be quoted.

    Anyone who responds otherwise should be required to post a copy of the lawsuit and the settlement and cite, chapter and verse, any contrary information.

    I only seek to clarify and explain and to be understood. To suggest otherwise is just mindless acceptance of third-hand hearsay and rump legal argument.

    Neil J. Lehto (77bed1)

  29. Too frequently, too easily, like myself, lawyers, who suffer from dealing in the jargon of their profession, run up against someone whose mindless argument is that what we’re doing is mumbo-jumbo.

    Give me a friggin’ break. It’s bad enough playing the “I’m a lawyer, you just don’t understand” card on non-lawyers, but playing it on other lawyers is just plain sad. If you have any expertise in Fourteenth Amendment law, the Voting Rights Act, or any related area of law that sets your credentials apart from mine, Patterico’s or those of any other lawyers in this thread, consider updating your M/H listing to reflect that. Otherwise, spare us the ‘tude; your opinions are just opinions like everyone else’s, not “settled constitutional law.”

    However, you cannot rewrite settled constitutional law by citing Google or Blacks Law Dictionary.

    You didn’t actually bother reading the case I linked to, did you? I didn’t rely on Black’s definition; I cited it, and then pointed to the Supreme Court case they cited to, Davis v. Bandemer, where the Court itself used the phrase “proportional representation” to mean something different from what it obviously meant in Mobile v. Bolden. That leaves only two possibilities:

    1. The Supreme Court does not consider “proportional representation” a term of art, but rather, uses it generically just like the rest of us to describe exactly what the phrase suggests.

    2. The Supreme Court does consider “proportional representation” a term of art, but you got the definition wrong by relying on Mobile, which was implicitly overruled by Davis six years later (and three years before Miers took her seat on the City Council).

    I’ll leave it up to you, Counselor, to tell me which of those two possibilities is the correct one.

    Xrlq (428dfd)

  30. Neil, I don’t know when you went to law school, but when I was a law student, the Socratic method was used. No hammering was involved.

    Perhaps the hammering is necessary to cause obviously intelligent people to accept as a mere term of art what is actually a euphemism for an idea that is highly offensive to the vast majority of people.

    Kidding aside, you’re obviously familiar with the Dallas City Council issue, and perhaps you have inside info on whether Miers thinks that racially proportionate representation (the offensive idea hidden by the euphemistic term of art) is permissible under the equal protection clause. Not having your particular knowledge of those facts, I’ve relied on Miers’ comment, as reported, and other basic information readily available without having to spend to much time digging for it.

    I understand that “proportional representation” is shorthand for “racially proportionate representation” among a relatively small group of lawyers specializing in voting rights issues. And it’s easy to understand that Miers’ use of the term struck a nerve. But on the face of what she said, even in the context of a Voting Rights issue, it’s not apparent that she was using the shorthand, without also assuming that she’s among the relatively small group of lawyers for whom that shorthand is part of the jargon; particularly in light of her math teacher background (widely known info; and the meaning of “proportional” as commonly used in math is consistent with my position) and the similarity of the term she used with the non-loaded term “proportionate representation,” it appeared that she was merely using the phrase as a descriptive term.

    I’ll defer to your greater knowledge of the facts regarding Miers’ past activities in this area. But I’m still not buying the notion that the fringe Left’s euphemisms for the ideas that form the basis of their racial balkanizing agenda should be accepted by the rest of us. Heck, even “substantive due process,” a phrase we can all probably agree is a term of art, gives a clearer idea of the meaning behind it than “proportional representation” as you’ve insisted that it be used.

    TNugent (6128b4)

  31. In Davis v. Bandemer 478 U.S. 109 (1986) the court split various ways over parts of the plurality opinion, unimportant to examining whether it implicitly overruled Mobile v. Bolden. Justice White said:
    “Since Baker v. Carr, 369 U.S. 186 (1962), we have consistently adjudicated equal protection claims in the legislative districting context regarding inequalities in population between districts. In the course of these cases, we have developed and enforced the “one person, one vote” principle. See, e. g., Reynolds v. Sims, 377 U.S. 533 (1964). [478 U.S. 109, 119]
    “Our past decisions also make clear that even where there is no population deviation among the districts, racial gerrymandering presents a justiciable equal protection claim. In the multimember district context, we have reviewed, and on occasion rejected, districting plans that unconstitutionally diminished the effectiveness of the votes of racial minorities. See Rogers v. Lodge, 458 U.S. 613 (1982); Mobile v. Bolden, 446 U.S. 55 (1980); White v. Regester, 412 U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971); Burns v. Richardson, 384 U.S. 73 (1966); Fortson v. Dorsey, 379 U.S. 433 (1965). We have also adjudicated claims that the configuration of single-member districts violated equal protection with respect to racial and ethnic minorities, although we have never struck down an apportionment plan because of such a claim. See United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977); Wright v. Rockefeller, 376 U.S. 52 (1964).”
    Later, the he again cited Mobile v. Bloden:
    “We also agree with the District Court that in order to succeed the Bandemer plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. See, e. g., Mobile v. Bolden, 446 U.S., at 67 -68.”
    Regarding proportional representation, the majority observed:
    “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be. Whitcomb v. Chavis, 403 U.S., at 153 , 156, 160; White v. Regester, 412 U.S., at 765 -766.”
    It continued, again citing Mobile v. Bolden:
    “Thus, a group’s electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. See Mobile v. Bolden, 446 U.S., at 111 , n. 7 (MARSHALL, J., dissenting).”

    The concurring opinion of Justice O’Connor said:
    “Implicit in the plurality’s opinion today is at least some use of simple proportionality as the standard for measuring the normal representational entitlements of a political party. That is why the plurality can say that “a history (actual or projected) of disproportionate results,” together with proof of “the denial of fair representation” and of “lack of political power,” will constitute an equal protection violation. Ante, at 139. To be sure, the plurality has qualified its use of a standard of proportional representation in a variety of ways so as to avoid a requirement of proportional representation.”
    She also observed:
    “If this Court were to declare that the Equal Protection Clause required proportional representation within certain fixed tolerances, I have no doubt that district courts would be able to apply this edict. The flaw in such a pronouncement, however, would be the use of the Equal Protection Clause as the vehicle for making a fundamental policy choice that is contrary to the intent of its Framers and to the traditions of this Republic. The political question doctrine as articulated in Baker v. Carr rightly requires that we refrain from making such policy choices in order to evade what would otherwise be a lack of judicially manageable standards. See 369 U.S., at 217 .”
    Justice Powell wrote a dissent joined by Justice Stevens. In a footnote he said:
    “The plurality correctly concludes that a redistricting plan is not unconstitutional merely because the plan makes it more difficult for a group of voters to elect the candidate of its choice or merely because the plan does not provide proportional representation. Ante, at 132. While the “Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters,” Mobile v. Bolden, 446 U.S. 55, 77 (1980) (plurality opinion), the Constitution does not guarantee proportional representation or protect any group from defeat at the polls, id., at 77-80; see White v. Regester, 412 U.S. 755, 765 -766 (1973).”
    So, I disagree that Mobile v. Bolden was implicitly overruled by Davis v. Bandemer.
    Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section’s prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act.
    In 1980, the Supreme Court held that the section, as originally enacted by Congress in 1964, was a restatement of the protections afforded by the 15th amendment. Mobile v. Bolden, 446 U.S. 55 (1980). Under that standard, a plaintiff had to prove that the standard, practice, or procedure was enacted or maintained, at least in part, by an invidious purpose.
    In 1982, Congress extended certain provisions of the Act such as Section 5 that were set to expire, and added protections for voters who required assistance in voting. At the same time, it examined the history of litigation under Section 2 since 1965 and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process. Congress also said, “Provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion of the population.” 42 USC 1973b.
    I concede the points made regarding the various ways in which laypersons might use and understand the phrase “ proportional representation.” However, what she wrote was:
    “While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.”

    What was she saying:

    1. She was involved in resolving constitutional questions.
    2. The questions arose in a lawsuit brought against the City of Dallas under section 2 of the Voting Rights Act.
    3. In resolving the lawsuit, the council had to be to comply with a proportional representation requirement.
    4. The proportional representation requirement arose under the Equal Protection Clause.

    The lawsuit, Williams v. City of Dallas, 734 F.Supp. 1317, (N.D.Tex., 1990), challenged the at large system used to elect Ms. Miers as violating the rights of minority voters in Dallas. Her testimony helped clinch the fact that the system was designed to disenfranchise minority voices on the Council. Her testimony can be found here:
    http://www.opinionjournal.com/best/miers.pdf. See also http://www.opinionjournal.com/best/?id=110007399 for some comments on her testimony.

    The City Council had an 8-3 system – eight single member districts and three at large seats. It was changed to a 14-1 system. This allowed more minorities to reach office. However, it also allowed more conservatives to reach office. Increasing the number of offices from eleven to fifteen officially diluted the power of the Mayor and ensured that the single at-large district would remain in the hands of white conservatives. While increasing the number of minority districts from two to four, it also raised the number of white districts from six to ten. As conservatives moved from the Texas Democratic Party to the Republican Party this meant that Dallas became a building block of Republican Party.

    Neil J. Lehto (77bed1)

  32. Neil, you missed my point. I wasn’t seriously arguing that Davis overruled Mobile, only pointing out that the two cases used the same phrase – “proportional representation” – in two ways different enough to make it clear they do NOT consider it a term of art, as you’ve insisted it is.

    Anyway, the issue is moot now.

    Xrlq (428dfd)


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