The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Friday, November 03, 2006

Is "One Person One Vote" A Constitutional Right?


Ira Krakow - The United States Constitution - The United States Constitution


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You might think, because the Constitution begins with the phrase, "We, the People of the United States of America", that the Framers wanted all of our votes to count equally. Nothing could be further from the truth. Those (and these include current justices such as Clarence Thomas and Antonin Scalia) who wish to return to the original intent of the Framers whenever the constitutionality of a law is in question, will necessarily also force a return to the anti-democratic rules embodied in the Constitution.


Are you surprised? The Constitution indeed acknowledges that the people, instead of, say, the king or the nobles, are the source of the political system established by the Constitution. However, we need to examine that system itself in order to see if each person's vote was valued equally. A simple reading of how members of each branch of government (the House of Representatives and the Senate, the President, and the Supreme Court and lower Federal courts) are chosen, will reveal this.


According to Article 1, Section 2:



The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.



The members of the House are chosen by the people, but the only requirement for voters is that they qualify to vote in the same way that the "most numerous branch of the state legislature" qualify. Whatever the state voter qualification laws are - including hanging chads, electronic voting machines that don't count or count backwards, paper ballots, whatever - will work fine. In all states, this limited suffrage to adult white males. White women, native Americans, and slaves could not vote. Additional restrictions could, and did, mean having to own a certain amount of property (slaves count, of course) or to belong to a certain religious group. These were perfectly constitutional. Some states had more inclusive voting rules. In New Jersey, for example, white women were allowed to vote until 1807, when the vote was taken away from them. In four states, free blacks were allowed to vote if they satisfied the property requirements. In any case, we are far from the "one person one vote" principle.


Actually, some adult white male voters counted more than others. Article 1, Clause 3, states in part:



Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons



"...all other persons" meant slaves. The vote of a southern planter with slaves was worth more than the vote of a free white man without slaves. Call it "one person, 1 + (number of slaves) * 3/5 votes".


The Senate was not directly elected by the people. Article 1, Section 3 states in part:



The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years.



The eligible voters (each state could determine these) voted for state legislators, who in turn voted for the Senators. The Lincoln-Douglas Debates of 1858 were debates between the two candidates for Senator of Illinois. The debates took place in the county seats of each of the Illinois counties. The voters did not vote directly for either Lincoln or Douglas, but rather for state legislators who, presumably, would vote that way. Indirect election of senators in this fashion was the rule until 1913, when the Seventeenth Amendment mandated direct election of Senators.


An additional departure from "one person one vote" derived from the nature of the Senate. With two Senators from each state, a voter from a more populated state such as New York was worth less than a voter from a less populated state such as Rhode Island.


The President was also indirectly elected. The voters voted for electors, not for the Presidential candidate directly. The electoral college consisted of the total number of representatives, plus 2 for the senators. This formula also favored the smaller states somewhat.


The Supreme Court justices are nominated by the President, "by and with the Advice and Consent of the Senate". The voters did not participate in voting for Supreme Court justices.


Those were the guidelines set forth in the Constitution for voters; very far from One Person One Vote. Subsequent amendments extended the voting franchise to freed slaves (15th Amendment, 1870), and to women (19th Amendment, 1919), and to citizens above the age of 18 (26th Amendment). The 13th Amendment, ending slavery, rendered the 3/5 rule null and void. The basic constitutional guidelines for electing members of the 3 branches of government, however, remained.


Suppose you have absolute proof that your vote wasn't counted, for example, that the voter tally in your precinct never was included in the grand total. Can you sue the state? ABSOLUTELY NOT - that's against the Constitution. The 11th Amendment states:



The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.



States have sovereign immunity from lawsuits. The only way a state can be sued by a citizen is if the state waives its sovereign immunity. If your side didn't win the election, and the other side controls the state legislature, good luck trying to get the legislature to allow you to sue.


Voter suppression (not allowing certain groups to vote in the first place) and electoral fraud (not counting the voters who would be unlikely to vote for your side) are as American as applie pie. The most blatant form of voter suppression - the poll tax, used to discourage African-Americans from voting - was outlawed by the 24th Amendment in 1964. The Voting Rights Act of 1965, which President Bush extended for 25 years in 2006, outlawed literacy tests, which were also used in discriminatory ways to discourage voting by African Americans. So the more obvious forms of voter suppression have been outlawed. However, since the voter rolls are still maintained by state and local officials, and there is no recourse for the individual voter, there's plenty of potential for fraud.


Apparently, this tradition will continue come next Tuesday, Election Day. Yesterday, I saw the HBO documentary Hacking Democracy. It's a powerful expose of the security flaws in the voting machines made by Diebold Corporation. Diebold is a prominent contributor to the Bush campaign. It's CEO wrote a letter promising to deliver Ohio to Bush in 2004. This time around, the Congressional races in states like Ohio, Virginia, and Missouri are crucial. The documentary featured a demonstration of how the memory cards in the voting machines, as well as the Microsoft Access database called GEMS, which does the actual vote tally, can be changed without leaving any trace. As a developer of customized databases, I happen to know something about this, since I use SQL databases such as Access every day. Just from looking at the screen shots, I could tell that the tallying software uses Microsoft's ActiveX Data Objects, and an apparently unprotected copy of Microsoft Access. This is a security nightmare. A simple SQL UPDATE statement, such as:


UPDATE vote_totals SET vote_count = 1000000 WHERE candidate like '%KRAKOW%';


could get me a million votes. The hacker also could just change the particular row for the candidate's totals manually. This table editing is the first thing any of the millions of Access users learns. Diebold's voting machines will be used on Tuesday to count the votes in Cleveland, Ohio's largest city, and in many other places critical to the electoral decision.


I'm shocked and scared for our country. I've been duped all my life into believing that my vote counts exactly the same as Antonin Scalia's. I still plan to vote, but afterwards I will stop by at my favorite house of worship and exercise my First Amendment right to the Free Exercise of my religion. I suggest all of you do the same.

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