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April 22, 2011

When The Supreme Court Dismantled Democracy

Joe Charlebois

The most recent General Assembly session in Annapolis demonstrates why democracy holds very little in the way of checks and balances.


It also shows us why the Founders – when they designed the House of Representatives and the Senate – were wise to hold that the two chambers of a bicameral legislature should have the effect of allowing for representation by an even distribution of representatives based on a decennial census count as well as an even number of senators – two each – from each state or commonwealth to effectively represent both the large and small states in Congress.


During the 1960s, in a sweep of civil rights decisions by the Supreme Court of The United States, headed by Chief Justice Earl Warren, the individual states, which had sole discretion of how their own legislatures would establish representative and senatorial districts, were stripped of that discretion. The decision in the case of Maryland Committee for Fair Representation v. Tawes, (U.S. Supreme Court, 1964) was in part a response to the inaction of the General Assembly to change the districts to a division of districts based on population and not on a geographical construct.


At the time of the decision the rural counties of Maryland held far more power per capita than the more populated counties surrounding Baltimore and Washington, and the City of Baltimore itself. The urban areas, with nearly three-fourths of the state’s population held nearly one-third of the seats in the Senate and a little less than half of the delegate seats in the House of Delegates.


Clearly a remedy was in order and those in power in Annapolis did not want to give it up so easily.


Enter the Supreme Court.


The Supreme Court found that not only would they vacate the lower court’s ruling, but would require the state to redistrict not only the House of Delegates but would require that the state Senate districts be based on a strict population basis as well.


Opponents of the decision pointed out that the United States Senate which allows two senators for each State – no matter the population – is essential to the proper and fair representation of our country as a whole. But in a strict interpretation of the Fourteenth Amendment to the U.S. Constitution, the Supreme Court’s majority opinion pointed out that unlike the sovereign states the “artificial” geographical designations such as counties are not comparable and thus are not valid considerations for either body of a bicameral legislature. Representation must be based on population.


The decision in Maryland Committee for Fair Representation v. Tawes was only one of several like-minded decisions that affected several states throughout the country. This not only corrected the outright misrepresentation in many states, it has also had the long term effect of neutering the “representation” of less populated rural counties.


The states across the country with various levels of representation – many unfairly – were like grandfather clock with the arm of the pendulum tied fast to its oak wall. Simply put – it was broken.


Once the pendulum was cut loose and set into motion by the 1964 Warren Court ruling, it corrected the “ill-fitting” districts and kept on going. It did not come to rest but rather it built momentum.


The result is such that it’s as if the Supreme Court affixed a blade to that same pendulum and subsequently cut off the states’ rights to have sparsely populated counties and districts in many rural states represented in a similar manner to that of the Unites States Senate. Thus, it consolidated much of the power in the hands of legislators in urban areas with little ability for legislators of less populated areas to stand up for the concerns of their constituents.


What these series of decisions maintained is that the sovereign states that maintained a system of governance – based on the federal model – in essence were discriminatory. No legislative districts – house or senate – could be derived on a strictly geographical basis. Each district, no matter the body, must hold to the Fourteenth Amendment’s principle of “one man, one vote.”


The idea of “one man, one vote” is true democracy. Our Constitution didn’t create a democracy but rather a federal republic and, contrary to the opinions of the Supreme Court, it provides power to even the smallest of states allowing for equal representation in our Senate. The value of the senator’s vote from California compared to the senator from North Dakota is not diminished, nor should it be.


The fact that most states had a similar construct to that of the federal government was a good thing. States like Maryland which represents such disparate groups and populations should be allowed, for example, to have one house – the state Senate – with two senators from each county – as well as the City of Baltimore, while the House of Delegates should remain based on a straight population basis with districts reflecting such.


What the Supreme Court ordered in 1964 was the destruction of a true bicameral system as we knew it. There is little reason to have a state Senate and House if each is elected in a similar fashion. Without a change the State of Maryland will never again see true rural representation again.


The disproportionate appropriation of tax revenues to the largest counties as a payoff for supporting certain tax increases is just the latest example of the corruption of this system. Just as two wolves and a sheep deciding on what is for dinner may be democracy, but not exactly fair.


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