I was asked to write a guest column for the new Oxford Enterprise; the managing editor suggested I comment on the recent lawsuit in federal court here in Oxford asking that the House of Representatives increase in members up to a thousand. Here’s my commentary.
A lawsuit filed in federal court in Oxford on September 17th seeks to require an increase in the membership of the U.S. House of Representatives to as many as a thousand members to adjust for disparities in the population of congressional districts in the various states. It is an attempt to overturn the congressional apportionment for the entire nation, requiring that the numbers of congressmen for every state be reassigned.
The suit’s complaint notes that congressional districts in Mississippi average 713,232 citizens each, while the sole congressional district in Wyoming has 495,304 citizens, meaning that each Wyoming congressional vote has roughly the impact of 1.4 Mississippi votes.
The lawsuit is based on the Supreme Court’s “one man-one vote” principle, that legislative districts be drawn as closely as possible in number so votes in one district have the same impact as votes in other districts. While the plaintiffs’ attorneys have claimed in press releases that this issue has never been raised, the central premise of their case—that one man-one-vote principles require setting aside the assignment of congressmen between the states—has been explicitly rejected by the U.S. Supreme Court.
One of the plaintiffs, Tyler Clemmons, is a senior at Ole Miss and a former editor of the Daily Mississippian. Two others are also college students, in other states.
The lead plaintiffs’ lawyer is Michael Farris, who has been an activist for conservative Christian groups since the mid-80s, and is a major figure in legal fights between home schoolers and state education officials. He founded Patrick Henry College in Virginia, with the avowed purpose of providing a conservative, Christian environment for college students who had been home schooled. Farris requires all faculty to explictly subscribe to a “Biblical worldview” about the inerrancy of the Bible that includes requiring that all biology or other courses teach that the world was created in six days as described in Genesis. Farris has taken the position in accreditation fights that any consideration of this issue was religious discrimination. During the Bush presidency, students from Patrick Henry were placed in great numbers as interns in the Bush administration and with Republicans in Congress.
Public statements about the case by Farris and others involved do not really explain the motivation behind it. They argue that increasing the number of congressmen will make them more in touch with their constituents, and somehow weaken the power of lobbyists.
Since it was filed, the case has drawn national attention, including coverage in the New York Times and on the Wall Street Journal’s Law Blog.
The federal court is taking it seriously. Redistricting cases must be heard by a court of three federal judges, and the assigned judge, Allen Pepper, asked the Fifth Circuit to convene such a court. On September 25th, the Fifth Circuit convened a court of Judge Pepper, Judge Michael Mills from Oxford, and Fifth Circuit Judge Leslie Southwick. All three are Mississippians and Pepper is a Clinton appointee and the other two appointees of George W. Bush.
Prior similar challenges have been rejected—one was dismissed as so frivolous that the district court judge held that convening a three judge court was not even required.
The issue of Congress’s assignment of numbers of congressmen to the various states came before the Supreme Court in 1992 in United States Department of Commerce v. Montana. The Court unanimously rejected the State of Montana’s effort to apply one-man-one-vote to overturn a national reapportionment that had cost Montana a congressman.
The case has a little good news for the plaintiffs—the Court directly grappled with the question of whether one-man-one-vote applies between the states and not just within states. But Montana lost, which suggests the Mississippi case will not go very far.
In rejecting Montana’s claim, the Supreme Court began by stating that this is not the sort of problem with one clearly correct solution, and was thus one where the Court would not second-guess Congress. Justice Stevens wrote: “In none of these alternative measures of inequality do we find a substantive principle of commanding constitutional significance. The polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course.” Even though the variance between Montana and Washington was forty percent—and the court’s one-man one-vote cases had held variances of a fraction of a percent unconstitutional within a state—the Court rejected Montana’s claim, stating that the constitutional guarantee of at least one representative per state “inexorably compels a significant departure from the ideal” of one man, one vote. Because of constitutional constraints, the Court thought the application of one-man-one-vote sought by Montana, was “illusory for the Nation as a whole.” Congress’s “apparently good faith choice of a method of apportionment of Representatives among the several States ‘according to their respective Numbers’ commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard.”
It is difficult to see how application of the same principles won’t mean that the plaintiff’s claims are just as illusory as those Montana lost in the U.S. Supreme Court.
Update: Corrected appointment information about Judge Pepper’s appointment, the history of which was noted in comments. Light punctuations changes were made at the same time.
The federal courts have forced the states to go to some pretty extreme lengths to enforce the one-man, one-vote doctrine, right down to splitting precincts. So it’s hard to see how the court can accept the huge disparity that now exists between states.
Any comment on the Northern District’s request that its divisional separation be abolished? It looks like the judges want to consolidate everything into the Oxford courthouse.
Could the plaintiff’s goal be reached by decreasing the number of members in the House of Representatives? If so, this might be a good thing.
Not everyone with too much free time is spending it on blog comment threads, it seems.
Tobias, because of the states that are single-districts (as a matter of express constitutional provision they are required to have a congressman per district), reducing the number can’t work, I don’t think.
QB at 1:32:
Good question. It’s not about centralizing every in Oxford– it’s more about formalizing the existing arrangement. There were a couple of recent decisions, first one by Judge Pepper that got successfully (but cryptically) mandamused by the Fifth Circuit and then a more recent one by Judge Mills with a long opinion, all expaining the current judge/division point/trial/jury assignment mechanisms, which by definition must be jury-rigged (no pun intended) because there is no longer a courtroom in one of the statutory division points (at Clarksdale). They underlying goal is to have no division automatically associated with a particular judge, while dealing with the fact that there were not visiting judge chambers available any longer in all of the courthouses. I’m going to post Judge Mills opinion, the bar request, and more about this tonight.
NMiss, superb legal analysis as always, but I am curious about some of the background you provide on the players in this lawsuit. I found the Bush connections somewhat interesting, but what is the connection to the lawsuit? Specifically, I am trying to see the connection with the lead attorney’s affiliated college and thier students’ internships in the Bush administration as well as the 3 judge panel being Bush appointees. Is the expanding of Congress something the Bush administration or Republicans in general support?
Has a date for argument before the panel at the 5th been set at this point?
This is stupid. The only way for all districts to be equal would be to allow them to cross state lines. Within states, county and city lines are not sacred so equal representation is easy to do. You can’t apportion whole seats among the states without giving the smallest states at least one or without rounding up or down for a bunch of small to medium size states. In the 80s and 90s Mississippi had smallish districts because we rounded up. Now we have big districts because we rounded down. In both cases we deserved about 4 and a half.
Did these genouses think about how their plan would affect the Electoral College? 565 more representatives would add more EVs. And voting power to California and other large states because it would dilute the impact of giving every state 2 EV for its Senators.
What happened to the courtroom in the federal building in downtown Clarksdale? Is the building still being used by the post office? It was a really nice courtroom and nobody used it. I thought the DRA took over the space but it has been a while since I have been to the post office in C’dale (probably 10-12 years).
MS Born & Bred:
I honestly don’t see an advantage to one established party or the other that’s obvious from this. I think the point of view may be “shake things up– instability is an opportunity.”
Or, alternatively, I may be mistaken to insist that this is about rational political calculations. There seems be an extreme end of the “originalist” folks who are approaching the constitution like the people who think the Bible is the literal unerring word of God– some sort of belief that the Constitution speaks to us with a clear, unvarrying message to be followed, and some of those people have decided that’s so about congressional districts. Some of these same people are writing essays saying that the direct election of senators violates our founding father’s intent (uh, yeah, that’s why we amended the Constitution in the 17th amendment to allow direct election of senators. We changed our mind about that).
That’s a real nice way of saying “this may be emanating from a loony part of the conservative movement.”
But I honestly don’t understand the political or legal calculus behind this suit, if there is one.
I do think there is relevance to the story about the background of the activist lawyers driving the suit, and am sure that if, say, lawyers from a radically left organization were pushing groundbreaking theories in a voting case in Mississippi, I’d report what their history was and whether I thought they were blowing smoke. I went actually pretty gently on the main plaintiffs lawyer, who was touted in the media as some sort of major constitutional lawyer when this suit was filed, and is not– he’s got a history as an activist raising losing theories. I ran a Westlaw search on his cases, and ticked off loss after loss, with only a few reported wins (one, I will add, in the US Supreme Court, in his one appearance there).
A couple or three things are clear:
1) The suit is being driven by a particular part of Christian conservatism.
2) The lawsuit involves more-or-less ignoring clear U.S. Supreme Court precedent that rejects the claims raised.
About the Judges being Bush appointees: I noted they all were. I think that’s a relevant issue in a political case.
Brian:
It’s not a Fifth Circuit argument, it’s a three-judge panel at the district court level, from which appeals go straight up to the US Supreme Court. Only a very few limited issues come before such courts, so they are unusual: Reapportionment cases (probably most common), issues about whether a state law changing voting qualifications have been precleared (second most). I think questions of the constitutionality of a federal statute can come before a three judge panel, but I’ve not thought about that in years and it could have been changed while I wasn’t paying attention.
Judge Pepper is a Clinton appointee- he was confirmed in 1999.
Finally: No hearing set yet on the 3 judge panel.
I’ll check Southman. I hope I didn’t get that wrong.
Mississimman:
The Clarksdale courthouse closed a long time ago as a federal courthouse. I tried a case there before Judge Keady, I’m not sure when, and have only been back once since for use as a courthouse. At the time, they didn’t have a proper clerks office. I’m not sure what is going on inside now– surely the post office is still there.
You did miss on that one, NMC, but it’s no biggie.
http://www.fjc.gov/servlet/tGetInfo?jid=2824
Pepper was nominated by President Bill Clinton on March 8, 1999, to a seat vacated by L.T. Senter, Jr.. He was confirmed by the United States Senate on June 30, 1999, and received his commission on July 7, 1999.
Hmmm… I like it! Double the idiots. That will solve our problems.
What is special about the number “435″? When the number was fixed in 1929 the population per Rep. was about than 200,000. Now it is on average 650,000 per Rep. I see no problem with a number of Reps. based on population from 1 for the least populous state (WY) and a proportionate number 69 (CA pop./WY pop.) for the most populous state (CA) and every other state receiving an equally aportioned number of Rep.s based on their pop. divided by the least populous state’s pop. That would give about 571 Rep.s (MS would have 6). To dilute even more the numbers could be doubled (138 for CA, 2 for WY etc.). Would lessen the Electoral “power” of smaller states by diluting the “Senator effect”, but not sure that that is as important as it use to be in Electoral politics. You don’t see a whole lot of Presidential candidates spending a whole lot of time in MS now anyway. Not sure what the effect on “gerrymandering” would be however. Maybe good, maybe bad. I do think that it would thin the influence of special intrests and other large controlling contributors hopfully returning more influence to the represented.
I know the courtroom was still there in 1994.
I guess Judge Pepper was a Trent Lott/Bill Clinton deal. We got a good judge out of it. Judge Pepper may have been appointed by Clinton, but he was Trent Lott’s roommate/Sigma Nu brother. Don’t forget that.
NMC, thanks for taking the time to answer my question with such detail. While I have a JD in a frame somewhere in the closets of my home, I will obviously defer to your interpretation that this challenge is in direct contradiction to SCOTUS precedent. I choose not to practice for reasons unrelated to this or any other issue. At the same time, I have never posted here but did post rarely on Lotus’ site, so allow me to define myself.
I am a Christian, and I am conservative. I do not think it appropriate to force my views or faith on ANYONE. All I would ever ask is that no one force me through police action or law to abandon my faith. I say that to state that the outliers of the far right or the far left deserve the right to their position, but they should accept that their position is not that of the majority and as such not one readily accepted.
I am just having a hard time ascertaining how expanding the Congress is something the Bush adminstration, the far right or even the “mostly right” would be championing and would benefit from.
I am not attempting to challenge your legal position and actually greatly value your opinion even when your political leanings may affect it. I proffer that your position against this case and its interpretation of the law is not furthered and possibly compromised by attempting to attach it to the right or far right movement without further evidence of such.
While I can understand your assumption that it is an originalist argument, your attempt to do so with these parties is folly at best. When/If Scalia or other originalist writes an opinion championing this postion, you will be justified in assuming such a position. In the meantime, I believe that you are attempting to attach a minority position to the position you generally disagree with. That is unfair in my opinion.
We probably could agree to disagree on many Constitutional issues, but we should probably agree on this one – attaching this outlier position to my general understanding and opinion of the Constitution is unfair at this point.
Ms Born:
I am not saying that the views expressed in this lawsuit are those of any large group within conservatism, or religious conservatism. I have no idea, and know nothing that would suggest that. On the other hand, this particular lawyer is definitely a power of some sort within religious conservatism, and, for whatever reason, he’s picked this issue to champion.
Next, I have no idea why he picked this cause. I said that several ways, above, and I think clearly. I can’t see a logical connect with this cause and his prior causes.
Finally, I just think you’re wrong to think that we won’t know what originalist thinking is until Scalia speaks. There are a lot of different points of view bundled up in that notion, and this is one instance where the textualism of religious conservatism may also produce an odd kind of textualist view of the constitution.
NMC,
1. “Definitely a power of some sort within religious conservatism” is a stretch. I have never heard of him before your post. I am a Christian conservative, and I disagree with Pat Robertson more than I agree with him. At the same time, I will concede that Robertson is a “a power of some sort within religious conservatism.”
2. If there is no logical connection to this cause and his prior causes, you are stretching to attach it to his Christian conservatism at this time. I think a more logical assumption at this time is his desire for attention/publicity. You must have also considered such a motive given the further lack of evidence.
3. Your “Finally” paragraph is akin to the assumption that Obama’s comment to Joe the Plumber about “redistributing wealth” automatically assumes President Obama is a socialist. I am not saying that until Scalia speaks nothing is known. What I am saying is that taking this unknown’s position and applying it to the originalist’s position is as folly as taking an out of context quote and ascertaining a “theory of governement” interpretaion to it.
“About the Judges being Bush appointees: I noted they all were. I think that’s a relevant issue in a political case.”
Does your statement above mean that you think that these federal judges will toe the party line in their judgments? If so, can you give some past examples upon which you base that opinion. Do you believe that Bush gave them some directive when they were appointed to follow the party line?
I don’t think judges decide by party line, NoMiss. From either party. I do think that judges have perspectives that can effect their rulings, and political perspectives are relevant in political cases.
But I did not say the things you are trying to put in my mouth.
But I did say this is a political case– it’s redistricting. The odd part about it is that I don’t see a clear partisan advantage either way, but it is certainly political.
It is clear to me that politics effected the three judge court’s selection of the redistricting plan in the Mississippi reditricting case early in this decade. The three judge court had 2 plans to pick, and the picked the Republican favored plan. And the state judge who’d previously ruled picked the Democratic favored plan.
I don’t think this lawsuit has enough merit to it for the outcome to be effected that way, but that’s just my prediction about the merits.
MS Born
“I have never heard of him before your post. ” There was a New Yorker profile of him and his university a few years back. I’d heard of him. The stretch is the media (Wall Street Journal and the New York Times for two) calling him a major con law figure, which I wouldn’t do. He did a lot of the lawyering for the Concerned Women for American in the 80s and early 90s, and his homeschool stuff has come to the attention of people following education law issues (me included). Just being able to establish and run and vaguely accredit that college of his suggests some power.
With the exception possibly of this case– I don’t see how it’s religious conservatism– his whole career has been within the political movement, either as a lawyer (doing amicus briefs in the Supreme Court for Concerned Women for America, doing cases attacking education laws relating to home schooling, founding that very conservative college) has been about religious political conservative action. It’s totally his story, and this lawsuit is his in a large sense. It’s central to the story. What I didn’t do was draw conclusions, because I’m not sure what the point of this lawsuit is.
The irony here is that if a lawyer with an entire career of political lawyering on the left (not a lawyer who worked for liberal causes as a part of a practice– that’s not a parallel to what we are talking about here– we are talking about a lawyer who has made an entire career of working on “issue” cases from a political point of view, as near as I can tell from the public evidence) filed, say, a lender liability suit that made national news, conservatives would want to know why the whole store wasn’t told if his political activism as a lawyer wasn’t mentioned. And they’d be right– it’s part of the story.
I’ll try it another way: Do you think I’ve mentioned something bad about this guy? These are facts about his bio. Check out his wikipedia page, or any of the pages for his organizations or school. Have I insulted him by mentioning them?
I do not think you were insulting him at all. I know from your writings that you would not agree with him, but I do not think you insulted him. I was attempting to establish whether his political views were relevant to this case in your opinion, but you appear to agree with me that this is not a case furthering the political causes he has worked on in the past.
At first blush and even after your first answer, I thought you were either attaching it to those causes or discounting the merits of this case based upon the lawyer’s political opinions. As an example, had you written “the lead attorney for this case is Lawyer Joe who was a follower of Charles Manson . . .” That affects my opinion on the attorney and the case.
From your last answer, I see that you just think it is part of the story solely because it gives the reader the knowledge that this attorney is politically right of right. I don’t see that as relevant, but I also would not think a lawyer with an entire career lawyering on the left is relevant. So, I may be an exception.
There are a few attorneys out there who are classic hired guns with no agenda but that of their clients.
Theodore Olsen, who just argued against the Campaign Finance Act which he defended while the Solicitor General for Bush may be such a one.
However, particularly in cases with political/economic implications, you can usually infer something of the action’s motivation from the background of the attorney prosecuting the action, even if the named plaintiff is a cypher. It’s worth remarking upon and thinking about as a general rule.
“It is clear to me that politics effected the three judge court’s selection of the redistricting plan in the Mississippi reditricting.”
One of the benefits, IMO, of having life-time appointed federal judges is that once they are appointed, they become “apolitical,” relying on the Constitution and court rulings regarding the Consitution as their guide to making decisions. Ideally, one of the reasons these appointed judges must be approved by the Senate and questioned by the Senate Judiciary Committee is to rule out those persons who seem to be unwilling to let go of “politics” in order to rule fairly. I doubt that Bush–and any other president– personally knew the Mississippi district or appellate court judges he appointed, and I seriously doubt that he knew how they would rule or followed any of their rulings after he appointed them.
Whereas, elected state judges are political because they run for their offices on the party ticket and receive party and party affiliated monies to gain their office.
I’ll have to learn more about the differences in the two earlier redistricting plans you mentioned before I could agree with your statement that “It is clear to me that politics effected the three judge court’s selection of the redistricting plan in the Mississippi reditricting case early in this decade.” Could it be that the chosen plan was the better plan for the state or that the chosen plan could simply have appeared to be more fair to the whole? Is it “clear” to you that politics affected the earlier decision because the decision was made by Republican-appointed judges? Should “political” cases be decided by judges of mixed Dem-Repub appointments to lesson the perceived political bias?
This is one example
of the imperial judiciary. The only recourse to these total
perversions is to remove
attorneys from office.