The Unconstitutional Redistricting of Nevada
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The Sixteenth Amendment was controversial. The first time that the Supreme Court had a chance to clarify this Amendment was in 1916 in the case of Brushaber v. Union Pacific R. Co. – 240 U.S. 1 (1916). The Supreme Court was flooded with so many different arguments that it became difficult even to classify all of them. Chief Justice White carefully cut through the mess by explaining that the purpose of the Amendment was to clarify the Powers of the Constitution; otherwise the interpretations sought would result in one portion of the Constitution destroying another part of the Constitution and such destructive ends could not possibly be the intention of the authors of the Amendment.
“But it clearly results that the proposition and the contentions under it, if acceded to, would cause one provision of the Constitution to destroy another; that is, they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned. Moreover, the tax authorized by the Amendment, being direct, would not come under the rule of uniformity applicable under the Constitution to other than direct taxes, and thus it would come to pass that the result of the Amendment would be to authorize a particular direct tax not subject either to apportionment or to the rule of geographical uniformity, thus giving power to impose a different tax in one state or states than was levied in another state or states. This result, instead of simplifying the situation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our constitutional system and multiply confusion”.
Over forty years later, the Supreme Court looked to interpret the Fourteenth Amendment to the Court’s political agenda while disregarding the valid precedent from the earlier Court that, “When an Amendment to the Constitution has multiple choices for interpretation, that Amendment must be interpreted as enhancing the Constitution rather than destroying key constitutional principles”.
The Supreme Court made a series of decisions in the early 1960s such as Baker v. Carr 369 U.S. 186 (1962) and Reynolds v. Sims 377 U.S. 533 (1964). The Supreme Court argued that citizens of lightly populated areas had more representation than the citizens of heavily populated areas and that the Constitution required all citizens to have the same representation because of the Equal Protection Clause of the Fourteenth Amendment. This novel interpretation of the Fourteenth Amendment should require the Supreme Court to alter the makeup of Congress. A more reasonable interpretation of the Fourteenth Amendment would be that the Laws of Congress and the Laws made by the Legislatures of the several States must be applied by government officials to each citizen in the same manner and without prejudice. Rather than subject their bad interpretation to close examination, the Supreme Court simply exempted Congress with historical excuses and applied their interpretation to the Legislatures of some of the States. In Reynolds v. Sims 377 U.S. 533 (1964):
“Since neither of the houses of the Alabama Legislature, under any of the three plans considered by the District Court, was apportioned on a population basis, we would be justified in proceeding no further. However, one of the proposed plans, that contained in the so-called 67-Senator Amendment, at least superficially resembles the scheme of legislative representation followed in the Federal Congress. Under this plan, each of Alabama’s 67 counties is allotted one senator, and no counties are given more than one Senate seat. Arguably, this is analogous to the allocation of two Senate seats, in the Federal Congress, to each of the 50 States, regardless of population. Seats in the Alabama House, under the proposed constitutional amendment, are distributed by giving each of the 67 counties at least one, with the remaining 39 seats being allotted among the more populous counties on a population basis. This scheme, at least at first glance, appears to resemble that prescribed for the Federal House of Representatives, where the 435 seats are distributed among the States on a population basis, although each State, regardless of its population, is given at least one Congressman. Thus, although there are substantial differences in underlying rationale and result, [Footnote 49]
Page 377 U. S. 572
the 67-Senator Amendment, as proposed by the Alabama Legislature, at least arguably presents for consideration a scheme analogous to that used for apportioning seats in Congress.
Much has been written since our decision in Baker v. Carr about the applicability of the so-called federal analogy to state legislative apportionment arrangements. [Footnote 50] After considering the matter, the court below concluded that no conceivable analogy could be drawn between the federal scheme and the apportionment of seats in the Alabama Legislature under the proposed constitutional
Page 377 U. S. 573
amendment. [Footnote 51] We agree with the District Court, and find the federal analogy inapposite and irrelevant to state legislative districting schemes. Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements. The original constitutions of 36 of our States provided that representation in both houses of the state legislatures would be based completely, or predominantly, on population. [Footnote 52] And the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted. [Footnote 53] Demonstrative of this is the fact that the Northwest Ordinance, adopted in the same year, 1787, as the Federal Constitution, provided for the apportionment of seats in territorial legislatures solely on the basis of population. [Footnote 54]
Page 377 U. S. 574
The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic. [Footnote 55] Arising from unique historical circumstances, it is based on the consideration that, in establishing our type of federalism a group of formerly independent States bound themselves together under one national government. Admittedly, the original 13 States surrendered some of their sovereignty in agreeing to join together “to form a more perfect Union.” But at the heart of our constitutional system remains the concept of separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government. The fact that almost three-fourths of our present States were never, in fact, independently sovereign does not detract from our view that the so-called federal analogy is inapplicable as a sustaining precedent for state legislative apportionments. The developing history and growth of our republic cannot cloud the fact that, at the time of the inception of the system of representation in the Federal Congress, a compromise between the larger and smaller States on this matter averted a deadlock in the Constitutional Convention which had threatened to abort the birth of our Nation”.
The Supreme Court admitted that the Fourteenth Amendment could not touch the makeup of the United States Congress when it said, “The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic. [Footnote 55] “. Essentially, the Fourteenth Amendment could not be interpreted to undo the “Will of the People” as expressed in the United States Constitution for Congress.
The United States Constitution created a Republic by design that provided for representation that was not based upon equal population (as would be required to establish a Democracy). The purpose of the Equal Protection Clause of the Fourteenth Amendment was to insure that government applied the law in the same manner to all citizens. In this respect, the Fourteenth Amendment applies equally to the federal government and to all State governments. The Fourteenth Amendment was not intended as a mechanism to alter Constitutions. The Fourteenth Amendment did not authorize the Supreme Court to change the makeup of Congress as that would cause one provision of the Constitution to destroy another. The Constitution can only be Lawfully changed by the Amendment process. Although Congress is allowed to propose Amendments, only the States can Amend the Constitution. The Supreme Court has no authority to alter any provision of the Constitution through interpretation.
The Supreme Court correctly did not change the makeup of Congress. The Supreme Court did, however, change the makeup of some State Legislatures. The Supreme Court decided that State Legislatures were required under the Constitution to be apportioned to give equal representation. This interpretation was as wrong to be applied to the Legislatures of the States as it would have been if the Supreme Court had applied it to Congress. What the Supreme Court overlooked is the fact that while the United States Constitution created the federal government and was the source of the Supreme Court’s Power, the Constitution did not create any of the several States. The Legislatures of the several States were created outside the authority of the United States Constitution “by the Will of the People” of those States through their State Constitutions.
In 2012 the Supreme Court heard the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, ( ) 648 F. 3d 1235. Chief Justice Roberts brilliantly stated the federal system as a part of the majority decision.
“Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro-hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution”.
“The same does not apply to the States, because the Con-stitution is not the source of their power. The Consti-tution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions donot apply, state governments do not need constitutional au-thorization to act. The States thus can and do perform many of the vital functions of modern government —punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598”.
The Supreme Court has no Power to alter the makeup of Congress because the Fourteenth Amendment was not intended to grant that Power. The federal government has no Power to alter the makeup of a State Legislature because the Authority for the makeup of the State Legislature comes from that State’s Constitution not the United States Constitution. It should be noted that the United States Constitution guarantees each State a republican form of government, but a republican form of government allows for representation based upon political subdivisions as well as population.
In 1965 the federal government forced the State of Nevada to change the composition of the Nevada Legislature through a federal District court decision. See Dungan v. Sawyer, 250 F.Supp.480 (D. Nev. 1965).
The federal District court found that it had jurisdiction to hear this case and that it had the authority under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution to find and to declare Article IV Section 5 of the Nevada Constitution to be unconstitutional. The federal District court ordered the State of Nevada to change the composition of the Nevada State Legislature. The 1967 and the 1969 Legislatures were radically altered to have their members elected from population based districts. This was done prior to any possible Constitution change allowed by the Nevada Constitution. Subsequently the change became permanent as part of the Nevada Constitution.
Dungan v. Sawyer, 250 F. Supp. 480 (D. Nev. 1965)
U.S. District Court for the District of Nevada – 250 F. Supp. 480 (D. Nev. 1965)
September 23, 1965
IIIProceedings in This Action
This court, on its own initiative, on May 12, 1965, issued its order joining each member of the Nevada Legislature, both Senate and Assembly, and the Legislature itself, as parties defendant in this litigation. Fed.R.Civ.P. 24(a) (2). Kozak v. Wells, 278 F.2d 104 (8th Cir. 1960); California v. United States, 180 F.2d 596 (9th Cir. 1950).
The remedy sought by this litigation is to have this court declare Article IV, Section 5, of the Constitution of the State of Nevada unconstitutional, and, *483 as well, all statutory laws based thereon (particularly § 218.050 to § 218.080, inclusive, of the Revised Statutes of Nevada) as invidiously discriminatory, and to issue certain restraining and other orders to insure adequate and constitutional representation to all persons.
In 1950, the people of the State of Nevada by vote of 32,150 to 9,331, amended Article IV, Section 5, of their Constitution to include the following as the second paragraph thereof:
“The senate shall consist of one senator from each county. The members of the assembly shall be apportioned on the basis of population; provided, that each county shall be entitled to at least one assemblyman. It shall be the mandatory duty of the legislature at its first session after the taking of the decennial census of the United States in the year 1950, and after each subsequent decennial census, to fix by law the number of assemblymen, and apportion them among the several counties of the state, according to the number of inhabitants in them, respectively.” (Stipulation of Facts, paragraph 7.)
Both before and after 1951, the Nevada Legislature, in implementation of Section 5 of Article IV, enacted apportionment laws described as Nevada Revised Statutes 218.050 to 218.080.*485 (Assembly Bill No. 120, Chapter 189, approved March 27, 1947; Assembly Bill No. 93, Chapter 270, approved March 22, 1951; Assembly Bill No. 111, Chapter 88, approved March 13, 1961.)
In 1965, certain reapportionment bills were introduced in the Nevada Legislature.
We learn from the Stipulated Facts that Assembly Bill No. 1 was defeated in the Assembly by a vote of 18 to 17, and did not reach the Senate.
It appears obvious that the 1965 legislature had full opportunity during its recent session to enact a valid plan of reapportionment, but that it adjourned without doing so, and failed, neglected and refused to enact into law any plan of reapportionment.
Dilution of political power between thinly and heavily populated counties of a state is no longer permissible. (Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963).)
*487 Where votes of citizens are “watered-down” solely because of their residence in one political subdivision rather than another, such difference in weight of vote is an invidious discrimination against the least favored voter, and unconstitutional because violative of the Equal Protection Clause, as well as the Fifteenth and Nineteenth Amendments, which require, stated in shorthand, “one man, one vote.” Cray v. Sanders, supra.
Nevada, with its larger number of rural counties, and its smaller number of heavily populated urban counties, faces the same unpleasant task as does its neighbor, California, of recognizing inequality in its apportionment. (See Silver v. Jordan, supra, and its discussion of Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), and Reynolds v. Sims, supra, 377 U.S. at 581, 84 S. Ct. 1362, 12 L. Ed. 2d 506.)
Nevada’s apportionment of both its Senate and Assembly, under Article IV, Section 5 of its Constitution, and as implemented by § 218.050, Nev.Rev.Stat., is invidiously discriminatory, being based upon no constitutionally valid policy. We therefore find such apportionment to be invalid under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as interpreted and determined by the Supreme Court of the United States, in that it substantially dilutes a voter’s right to vote solely because of the county wherein he chooses to reside.
The problem regarding the validity of the provisions of Nevada’s Constitution arises solely because of the adoption in 1950 of the Amendment to Article IV, Section 5, of the Constitution. The Nevada Constitution, as originally adopted in 1864, was in complete harmony with the present view of legislative apportionment as declared by the Supreme Court of the United States.
Specifically, we find and hold:
1. That the first paragraph of Article IV, Section 5, of the Constitution of the State of Nevada, wherein it is stated “and the number of senators shall not be less than one-third nor more than one-half of that of the members of the assembly,” was and is unconstitutional only if, and to the extent, it prohibits the adoption of a valid system or plan of apportionment.
2. That the first sentence of the second paragraph of Article IV, Section 5, of the Constitution of the State of Nevada, wherein it is stated: “The senate shall consist of one senator from each county,” and the “proviso portion” of the second sentence of the second paragraph wherein it is stated: “provided, that each county shall be entitled to at least one assemblyman,” are, and each is, unconstitutional, so long as the present or *489 comparable inequalities of population exist among the various counties of Nevada.
3. That Article XV, Section 6, of the Nevada Constitution (limiting the numbers of both branches of the legislature to seventy-five) is unconstitutional only if, and to the extent, it prohibits the creation of a valid and lawful plan of apportionment.
4. That Nevada Revised Statute 218.050(1) is unconstitutional only if, and to the extent, it prohibits a valid system or plan of apportionment which does not follow the number of senators and assemblymen prescribed within said 218.050(1).
5. That Nevada Revised Statute 218.050(2) is unconstitutional in its entirety;
6. Because of a lack of evidence as to the makeup thereof, we do not presently pass upon the constitutionality of Nevada Revised Statute 218.060, relating to Clark County Assembly Districts, or 218.080, relating to Washoe County Assembly Districts.
*490 Keeping uppermost in mind the necessity of the Nevada State Legislature to properly reapportion itself at the earliest possible moment, it is the Order of this Court as follows:
1. That the defendant, Grant Sawyer, Governor of the State of Nevada, call and convene by proclamation a special session of the Nevada Legislature, under Article IV, Section 2, of the Nevada Constitution, not later than October 30, 1965; and
2. That the said defendant, Grant Sawyer, Governor of the State of Nevada, pursuant to Article V, Section 9, of the Nevada Constitution, state to both houses, when organized, that the purpose for which they have been convened and have organized is to properly and constitutionally reapportion each respective house at the earliest possible moment, and that the legislature shall transact no legislative business except that for which they were especially convened; excepting the appropriation of funds necessary to defray the expenses of said special session; and
3. That the respective members of the Nevada Legislature appearing as parties defendants herein act at their earliest opportunity to reapportion both houses of the Nevada Legislature in a manner consistent with this opinion, and the decisions of the Supreme Court of the United States; and
4. That the Nevada State Legislature submit to this Court for approval not later than November 20, 1965, (and earlier, if possible) duly enacted and approved legislation creating a constitutionally valid reapportionment and redistricting plan, consistent with this opinion, opinions of the Supreme Court of the United States, and all Nevada constitutional provisions not rendered invalid by this opinion; and
5. That this Court hereby retains jurisdiction of this action and cause, so that in the event a valid reapportionment plan both for the Nevada Senate and Assembly is not timely adopted, it may make and enter such orders as it may deem appropriate; including a valid reapportionment plan for each house of the Nevada Legislature, or directing that each house be elected at large pending a valid reapportionment by the State Legislature itself; and
6. That the facts found herein are deemed the Findings of Facts in the case, and that the law stated herein shall be deemed the Conclusions of Law herein.
None of the actions of the federal District court in 1965 are valid because the federal government has no Constitutional grant of Power to do them. The Supreme Court reexamined the relationship of the federal government to the several States in 2012 in the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, ( ) 648 F. 3d 1235. That reexamination overturns the findings of the Supreme Court in the 1960s that made several States reapportion their Legislatures.
There are many avenues the citizens of Nevada could pursue to get their Constitution back from federal interference. The simplest solution in my opinion is for the counties to sue in their local courts to void the federal District court’s decision and reestablish the portions of the Nevada Constitution (and NRS sections) that the federal District court mandated be removed.
William F. Horne (click here to contact Mr. Horne and freeNfair will forward to him)
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