Gerrymandering Damages?

Great Debates
1

During the Gilded Age, parties were known to buy votes from people:

Now while it may be the case that it’s illegal for me to sell my vote - either by taking money to vote in a certain way or selling my name to another, so that they can vote as me - it is likewise criminal for me to possess heroin. If I had heroin and someone stole it, that person could be prosecuted for theft. Whether it’s legal to sell your vote or not, it is a thing of monetary value.

Even today, when we want to affect the results of an election in a certain place the most common way of doing it is to grant money. Political science scholars do math to determine the dollar value of campaign donations to converting public opinion in a certain direction. Money, conclusively, does but votes even if - today - it’s indirect and very expensive.

How does a “vote” slot in to the concept of “property”. When I sell my vote, it’s still “my vote”, I was just convinced (by money) to use it in a particular way, so despite the term “sell”, I haven’t actually transferred it to anyone.

I could argue that a vote is similar to copyrightable material similar to if I was to write a journalistic article about a politician. I did research, formed my own creative idea about who this person is and what they mean for the world, and chronicled this in the form of a single ink blob on a piece of paper. And like a journalist, I could “sell out” and pre-decisively write an article positive or negative to a particular candidate, as chosen by the purchaser.

Now, let’s say that said politician is aware that I am liable to write a negative article against him and so he corruptly creates and enacts a law that prevents anyone from being able to publish my work?

Certainly, my freedom of speech has been impacted. Technically, I can still go out into the public square and shout my thoughts to all who pass but the government shouldn’t make any law that reduces my and others abilities to freely share our views. Likewise, if I have been gerrymandered against, I haven’t been prevented entirely from voting but I have had my right to vote reduced in total value.

We didn’t spend much time on it but I believe that we have established that a vote is a thing of monetary value. The exact values in todays market are unknown and I’m unable to find the average going rate in history. But we should be able to assume that it would behave in a somewhat reasonable way and that party/candidate spending would match what we see today.

In today’s market, most campaign money goes towards swing states. From a marketplace standpoint, we should probably understand this to mean that 1) people who are less partisan will switch parties at a lower cost than someone who is deeply committed to a particular candidate, politically, and 2) the cost difference between a swing voter and a partisan has proven to be low enough by current market research to say that it’s more economical for the buyer to purchase in swing districts. If I want to sell my vote, and I’m a non-partisan, I can make more money in a competitive district than a non-competitive district even though I could maybe list a higher price for being someone willing to switch parties in a non-competitive district. It’s just not worth the cost to try and buy off a partisan district. No customers are going to come to try and buy me.

By being pushed into a gerrymandered/non-competitive district, I have had the monetary value of my vote reduced for the corrupt purpose of a politician/party to retain power.

Now, you might say that this can’t be considered for purposes of damages because defining the boundaries of districts is thoroughly within the bounds of power of said government official. But likewise, property ownership is at the end of the day a legal record maintained by the government. If an official were to make a law giving ownership of my house to his girlfriend, as a birthday present, this would be abuse of office, the court might order the house be returned, the law struck down, and I would be able to sue for damages. Corrupt use of government powers for personal enrichment and empowerment is not protected.

Corrupt use of districting powers reduces the value of some people’s vote. Those individuals have standing to sue for damages.

2

However, you would not be entitled to damages.

Votes aren’t property, and as you say ‘selling’ your vote is simply promising to act. A person who ‘steals’ your vote by physically destroying your voted ballot and submitting a falsified one in its stead actually commits a fraud against the government and violates your right to vote.

This is not cut and dry. The whole one person one vote doctrine works to protect your vote itself from being significantly diluted by any redistricting scheme. Your sense of value might mean the district is politically competitive but you have no right to that.

No, you haven’t.

You’ve totally lost me. Now I don’t have any idea what you’re talking about.

Even if this were true you would not be entitled to any form of damages because exchanging money for votes is illegal for both individuals involved. 42 U.S. Code § 1973i paragraph (3).

You cannot claim damages for an unlawful property interest.

~Max

3

Okay, going down the list. Officials don’t make laws in this country, legislative bodies do. Sometimes officials can make rules that carry the force of law, but only when a legislative body gave them the power to do so. Giving an official the power to make a law giving ownership of your house to a private individual is not abuse of office, because that implies that the office has the power to do such a thing, but doing it in this particular case is abuse. You are probably talking about abuse of power (a.k.a. abuse of authority).

You speak of the courts interceding on your behalf. You did not mention the part where you ask the courts to intercede on your behalf, and therein lies the rub. In law there is a concept of sovereign immunity, and it is very old, going back to the days when the courts of England operated by the King’s authority. It would be said, “you cannot sue the King in his own courts”. Supposing the legislature really did authorize the taking of your house… or we can drop this whole house business and just say the legislature gerrymandered your district and you ask the courts to force the legislature to pay you back. You would need to point to a statute of some sort abridging the State’s presumed immunity from suit in its own courts.

(Alternatively you could go to a federal court but the federal courts have limited jurisdiction which does not include cases brought by citizens against their own State. So you would still have to find a statute that lets you sue your own State.)

Most of the time this statute is 42 U.S.C. § 1983, from the Civil Rights Act of 1871. As amended this federal law reads,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Notice that this statute does not let you sue the State itself. It relies on a legal fiction that the State is incapable of depriving you of any rights, privileges, or immunities secured by the federal Constitution and federal law. You are only permitted to sue the person who enforces a State law which has the effect of depriving you of a federal right, privilege, or immunity. This might be your local supervisor of elections who tells you that you can only vote on a ballot for the gerrymandered district, and probably also the secretary of state who oversees statewide elections.

If you win these people will be personally liable to you. The legislators in the state house are still immune.

You don’t get to sue the State for any right. Only the ones that the courts think are “secured by the Constitution and laws”. So it is not enough for you to successfully argue that some State action reduced the value of your vote, and that your vote is a thing of monetary value, and that you have a property interest in the monetary value of your vote. You also have to argue that you have a federal right that secures your property interest in the monetary value of your vote, and that is a hard sell.

~Max

4

I should add that the current state of jurisprudence, as of 2019, is that claims of unconstitutional partisan gerrymandering are nonjusticiable under the federal Constitution and its laws. Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019). Meaning you are entirely at the mercy of the State allowing it or any of its officers to be sued for any alleged injury to you resulting from partisan gerrymandering.

For all practical purposes it looks like you won’t get your day in court, much less an award.

~Max

5

I was demonstrating that a thing can have value without being legally transferrable. I don’t believe that it’s reasonable to take from that, that damages aren’t applicable for loss of voting power. Heroin is illegal to possess; voting is a legal activity.

The apportionment paradox says that it’s fundamentally impossible for me to ever truly have an equal vote compared to everyone else. Even before getting to the question of competitiveness, we’re all already screwed by mathematical reality interacting with a representative style of government.

The issue isn’t the fairness, it’s the corrupt use of power.

Just as I don’t have any inherent expectation to be placed in a competitive district, I also don’t have any inherent expectation to be in a fancy, beautiful home or even any home at all. And yet, if a fully empowered government official (or set of such persons) were to create a law that corruptly took away my home, for their own personal enrichment, and I could demonstrate that corrupt intent in a court, then I could sue them. When they’re faithfully executing their duties, I’m not guaranteed that they always act in a way that I find favorable, but corruption is never protected by law and is actionable.

I would assume that your complaint is that even if it used to be sellable when we take into account that it isn’t so today, that renders it value-less?

This is part of why I mentioned campaign spending. People spend vast sums of money to try and move my vote from one position to another. Clearly to them, my vote has value. I would ask why it would have value for them, but not for me?

If we view a vote as a way to enrich oneself, gain favor to ones group, improve the lot of ones children and family, etc. then certainly it would make sense that it has value. Some of that is financial - wanting regulatory choices to go one way or the other, for example - and other more sentimental or unquantifiable. But certainly, if I sell my vote, am deprived of my vote, or whatever then I have lost an amount of my ability to guide the world.

Let’s imagine, for example, that I have been given control over a brokerage account that’s been granted to my niece. At some point, she’ll become old enough to want to go to university, buy a house, or whatever, and this account has been set aside for that purpose. Legally, I have no method by which to transfer this account to another person. It’s hers.

Is this account valueless to me? I can’t profit from it, directly. The money in it can, legally, only be used for her to go to school and start her life. But do you think that I want to see the amount of money in the account go up or go down? Is it conceivable that I would be willing to spend money to see to it that the numbers in the account become larger? I might hire experts to help guide me, I might donate money to politicians who would do things favorable to the businesses that my niece has invested in, and so forth. Would I spend money on this thing if it had no value to me?

People spend money to convert my vote and I spend money to convert their vote. Every vote has, even today, a monetary value. We don’t directly buy it off one another but we do spend money to lobby our fellow citizens, with the expectation that we’re getting something of value from that exchange. If there wasn’t that expectation, we wouldn’t do it.

And now let’s say that my brokerage decided that it wasn’t worth the cost of hardware and support to give me access to my niece’s account. They suspend modifications. News comes along that one of the companies that I had invested in might be a sham, fraudulent business. I’d like to pull out and move the money to something else, but I can’t.

Have I suffered damages? If I haven’t then, certainly, my niece has. But certainly, someone has standing to sue.

6

The government is under no obligation not to damage you in the course of their activities. They are under no obligation to let you sue them over damage they allegedly did. They are under no obligation to cure any particular ill of the society on any particular schedule or in response to any particular demand. Even if they (arguably) caused the ill in question.

Most significantly, once the state and federal Supremes have gone partisan in bed with the partisan legislators and partisan executives, bleating about rules and logic is simply silly. In Calvinball, and in one-party rule, there are no rules. Other than “might makes right.”

And you’re not the mighty one in their equation.

7

Your vote has value. It doesn’t have monetary value to you in the eyes of the law because it is illegal for you to exchange it for money. There’s no lawful interest in earning potential and there’s no significant equity value (what, the research you’ve done on the candidates?). Seems pretty straightforward to me.

Same thing with babies. If someone murders your baby you don’t go to court with research showing how much people pay (or used to pay!) for newborns on the black market. You claim damages for emotional distress and incurred medical bills, which is usually a relatively small amount.

~Max

8

You know, if you were going to steal our ideas to save your democracy from anarchy, about the minimum you could do as acknowledgement is spell the bloody country’s name correctly.

9

The account is not a thing of monetary value to you. All business you take part in on behalf of your niece’s account are just that, on behalf of your niece and not yourself. You may spend personal money on advice in handling the account and become emotionally invested in it, but you do not thereby acquire any sort of property interest in it. Once she comes of age she can blow the whole fund.

~Max

10

Rucho v. Common Cause addresses:

Suing for damages is not a question of Constitutionality. Likewise, suing for damages does not put you in front of any federal courts.

11

A lot of good that innovation did the now completely forgotten Austalian republic.

12

If I would spend money on it then I fail to see how you make that argument. If I put money into better digestion then there’s a monetary value to the cost of better digestion. I can’t sell my digestive comfort - nor my improved digestive comfort. I don’t get more money out of more comfortable digestion. It just makes me feel better.

If I’m spending money for it, then it has a monetary value.

13

You are getting something of value… political value. Not monetary value.

Just because I spend money on something doesn’t mean I expect something of monetary value in return.

~Max

14

I didn’t say otherwise.

15

If your congress has a better research department, I certainly won’t complain about taking some hints on how to acquire the same.

16

Small relative to whom? Wrongful death suits are usually presumptively seven figures, which it would be unusual to refer to that as a small amount.

Other posts have largely explained it, but no you do not. You cannot sue for damages due to monetary harm caused by duly passed legislation due to sovereign immunity, it is really that simple.

You can sue the State and Federal governments–when they allow you to do so, so any suit for damages against such an entity has to be associated with a clearly established statutory grant for the allowance of such suits. One such grant is the Federal Torts Claim Act (1946), which allows you to sue the Federal government for certain torts committed by someone acting on behalf of the United States.

I don’t have a good review of them in front of me, but most States have a tort claims act of some sort. However, a very important exception to all of them with which I am familiar: explicit exemption for judges and legislators.

There is simply no standing to file suit over pernicious legislation because it violates the principle of sovereign immunity, and to my knowledge no form of Federal or State law has expanded any sort of tort claim act to cover legislative acts.

17

So you sue the State legislature in state court. You go before the judge and the attorney for the State says, we do not consent to this lawsuit. He gives your attorney a mean and annoyed look. The judge then says suit dismissed.

~Max

18

The what doctrine? This is America; I’m pretty sure we don’t have any such doctrine, here.

19

It dates back to the Warren court in the 60s,

Baker v. Carr, 369 U.S. 186 (1962)
Reynolds v. Sims, 377 U.S. 533 (1964)
Wesberry v. Sanders, 376 U.S. 1 (1964)

Basically districts have to be of roughly equal population.

~Max

20

FWIW while it’s not entirely on topic, the Congress banned gerrymandering for congressional seats in the past, I think it was something like 1890 to 1920 this was the law of the land. [I fact checked myself, it was 1911 to 1929.] To my knowledge that law was fully within the Congress’s defined constitutional power to regulate Federal elections (the States have power to run elections where the Feds have not legislated, but the constitution contains a broad grant of authority to Congress on this.) The simple reality is you are not entitled to a well-drawn district, and certainly not one that is balanced by political party–the constitution was written quite deliberately on the assumption there were not going to be formal parties (one of its defects, but noting that it is a defect does not fix it.)

The proper mechanism to stop gerrymandering is to abolish it by State law or to abolish it by a Federal law, as was the case around 100 years ago.