WASHINGTON, D.C.—On May 23, 1866, a senator from Michigan named Jacob Howard rose to speak in support of the 14th Amendment to the Constitution, which he laboriously had worked to draft in the wake of the Civil War as one of the three great Reconstruction amendments that were aimed at codifying that new birth of freedom that the late Abraham Lincoln had said at Gettysburg was just occurring in America. His speech ranged far and wide, but it concentrated most on the principle of equality under the law. While discussing how the new amendment would impact how congressional districts would be apportioned to the various states, Howard first very clearly said that the old system, which depended on the odious three-fifths compromise at the Constitutional Convention, had been buried, very likely in an unmarked grave outside Appomattox Court House. He also looked into the future and saw Jim Crow mischief a'borning.

The three‐fifths principle has ceased in the destruction of slavery and in the enfranchisement of the colored race. Under the present Constitution this change will increase the number of Representatives from the once slave‐holding States by nine or ten. That is to say, if the present basis of representation, as established in the Constitution, shall remain operative for the future, making our calculations upon the census of 1860, the enfranchisement of their slaves would increase the number of their Representatives in the other House nine or ten, I think at least ten; and under the next census it is easy to see that this number would be still increased; and the important question now is, shall this be permitted while the colored population are excluded from the privilege of voting? Shall the recently slaveholding States, while they exclude from the ballot the whole of their black population, be entitled to include the whole of that population in the basis of their representation, and thus to obtain an advantage which they did not possess before the rebellion and emancipation? In short, shall we permit it to take place that one of the results of emancipation and of the war is to increase the Representatives of the late slaveholding States? I object to this. I think they cannot very consistently call upon us to grant them an additional number of Representatives simply because in consequence of their own misconduct they have lost the property which they once possessed, and which served as a basis in great part of their representation.

Howard got right down to the nut-cutting, however, when he talked about how the government could determine the number of representatives in Congress a state could now have while more equitably maintaining the original spirit of republican government that animated the framing of the Constitution in the first place.

The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.

Right at the beginning of Tuesday's oral arguments before the Supreme Court in the case of Evenwel et.al. v. Abbott, Justice Elena Kagan dropped Howard's explanation right into the lap of one William Consovoy, a lawyer representing two very strange plaintiffs in a case that could very well end the principle of one-man, one-vote in state elections—and, as an added bonus, throw every statewide redistricting plan into complete chaos.

To use an example that was used before the Court on Tuesday, under the current system, children are counted as people for the purpose of apportioning state legislative seats. In Manhattan, seven percent of the population is made up of children. In Brooklyn, the number is somewhere around 30 percent. If the court rules in favor of the plaintiffs, and the new standard becomes eligible voters, New York's state elections would turn into a monkeyfck of historic proportions.

The plaintiff's argument is that the calculations used in the construction of state legislative districts should be based on the number of eligible voters, and not the number of people living in the various districts. They are arguing their case on a theory that, somehow, eligible voters are having their votes "diluted" under the current system, and that, therefore, they are the ones being denied the equal protection guaranteed under the 14th amendment. (If you are catching the aroma of a long-dead fish under this argument, you're right. It is a second cousin to the "equal protection" argument that prevailed in the egregious Bush v. Gore, except, in that case, voters in counties using different recount standards were alleged to have suffered irreparable harm. As was, according to Justice Antonin Scalia, candidate George W. Bush, who suffered irreparable harm by not being made president of the United States.) Kagan asked Consovoy how he could square the circle that the Constitution would require one system of apportionment for federal purposes and yet mandate a different, contrary system in the states. Consovoy denied the premise of the question, and then argued that, yes, that was pretty much what the Constitution does.

To be brief, this case has a lot in common with King v. Burwell, the last gasp anti-Obamacare case that the Court shot down in June. Primary among these similarities is that the case never should have arrived at the Court at all. The intent of the framers of the 14th Amendment, as demonstrated by Howard's speech, was clear and unambiguous. Another similarity is that, when the conservative legal foundations behind this lemon went trolling for plaintiffs, and we'll get to the puppeteers in a minute, they found a couple of interesting specimens to attach their names to it, just as they did in King. Sue Evenwal, the named plaintiff is the case, is a Tea Party goober and longtime Birther who thinks Frank Marshall Davis was the president's real father. Her co-plaintiff, Ed Pfenninger, makes Evenwal sound like Margaret Chase Smith. He has called the Catholic Church "the mother of harlots" and he believes the sun revolves around the Earth. He also professes a belief in unicorns. Pace Dave Barry, but I am not making any of this up.

But the fact that they found a couple of doozies to slap their name on the case should not blind you to the fact that this one has been a longtime coming among the people who very much would like minority voters to have a hard time casting their votes—or living their lives in America, for all that. The brain behind the operation is one Ed Blum, a voter-suppressionist who already hung one big trophy on his wall when the Court eviscerated the Voting Rights Act in Shelby County. Blum already has won a small victory in that the Court agreed to hear this nonsense at all. However, things took an ominous turn during oral arguments yesterday.

First of all, Scalia said almost nothing. Second, Justice Anthony (Weathervane) Kennedy seemed open to the plaintiff's arguments, at least as far as his airless conception of "equal protection" is concerned. And third, the other side of the case is at cross-purposes with itself. Solicitor General Scott Keller of Texas made the principal opposing argument and he did it on the basis of Texas' right to devise its own legislative districts as it sees fit, and on the basis of the fact that using the total population of a district is the best system available. However, he distanced himself from the amicus argument made by Ian Gershengorn, the Deputy Solicitor General of the United States, whose position was a more global defense of voting rights as a whole, and that the use of total population as a guide for drawing districts was consonant with the purpose of Section 2 of the Voting Rights Act, which the Court left standing in Shelby County.

But the kitty did not come screeching from the burlap until Consovoy got up to conclude the proceedings. Earlier Tuesday, the Court had heard a challenge to Arizona's independent redistricting commission that was based partly on the contention that "partisanship" had unfairly contaminated the process. Consovoy referred to that case when he told the Court that, "Political and racial gerrymandering have come to dominate the redistricting process."

"Racial gerrymandering" is voter-suppression code equivalent to all those arguments against affirmative action based on your uncle who got passed over for a job on the county road crew. And, hey, in fact, on Wednesday, the Court once again is going to hear the case of Abigail Fisher, who claims she unfairly was denied admission to the University of Texas law school because of that institution's affirmative action policies. In 2013, the Court sent her case back to the appeals court, which subsequently ruled against her again. (It turns out that Fisher likely didn't have the grades to get in anyway.) It should be a surprise to absolutely nobody that Ed Blum is behind this case, too. At least Fisher doesn't believe in unicorns. I'm telling you, this week could be high noon of John Roberts's Day Of Jubilee.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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