WASHINGTON -- A civil action filed by Green Party member Asa Gordon is challenging the constitutional legitimacy of several US Representives from southern states.
The civil action, which is now pending before a US District Court, seeks to enforce the US Constitution's malapportionment penalty (14th Amendment, Section 2).
The Amendment mandates reduction of a state's presidential electors and congressional Representatives ("the basis of representation therein shall be reduced") if "the right to vote at any election for the choice of electors for President and Vice President of the United States... is denied... or in any way abridged."
The civil action would enjoin the Clerk of the US House of Representatives from recognizing the full slate of Representatives from "unbounded Southern electoral states." It requests that the court take judicial notice that Arkansas, Georgia, Louisiana, Tennessee, and Texas are "unbound presidential elector states." After the November 2008 election, these 'unbounded' states allocated their presidential electors on a 'winner take all' basis, even though there exists no 'winner take all' election statute in their state election laws.
"The 'winner take all' apportionment of electors in these states effectively disenfranchised their citizens who voted for the presidential electors pledged to any candidate with less than the popular majority vote," said Asa Gordon, chair of the DC Statehood Green Party's Electoral College Task Force.
"These southern states in particular awarded all of their unbounded presidential electors on a 'winner take all' basis that isn't grounded in any state or federal law. In particular, they engaged in de-facto disenfranchisement of those electors based on the votes of the states' African-American citizens. We're seeking either a temporary restraining order or a preliminary injunction that would prohibit the Clerk of the US House from including the full slate of unbounded electoral states' congressional Representatives, which are subject to the malapportionment penalty in the 14th Amendment to the US Constitution," said Mr. Gordon.
District Court Judge Henry H Kennedy Jr., in a hearing on the civil action's request for a temporary restraining order on Jan. 4, said, "Mr. Gordon raises some weighty issues having to do with the consequences or results of an electoral system where a minority, a minority number of votes are not recognized, that is when there is a winner-take-all system."
The civil action notes that Section 2 the 14th Amendment requires that unbounded southern states allocate their presidential electors in proportion to the popular vote split or suffer the federal statutory mandate to reduce the states' representatives in Congress. The 'winner take all' allocation of electors triggers the malapportionment penalty in Section 2, as implemented by the "Reduction of Representation" federal statute Section 6 of Title 2 of the US Code. This statute creates a remedy for the abridgment in the right "to vote at any election for the choice of electors for President and Vice-President of the United States."
"The original intent of Section 2 of the 14th Amendment -- sometimes called the Reconstruction Amendment -- as implemented by the federal statute was to place a ruinous penalty on those former confederate states that would effect 'minority vote dilution.' It took over a century to enforce properly Section 1 of the 14th Amendment. Let us not allow another century to pass before enforcing Section 2," said Mr. Gordon.
"The de facto disqualification of legitimate votes in many southern states is as much an outrage as the irregularities in Florida in 2000 and in Ohio and other states in 2004 that changed the outcome of presidential elections," said Darryl L.C. Moch, member of the DC Statehood Green Party and the Green Party Black Caucus. "It's also consistent with the obstructions imposed by many states on alternative party and independent candidates on the extra-legal assumption that only two parties deserve recognition."
In earlier civil action, Gordon v. Cheney/Biden, Mr. Gordon addressed Electoral College malapportionment. The current action addresses the malapportionment of Congress.
A letter to House Speaker John Boehner from the DC Statehood Green Party proposed that the Speaker form a House Committee of Congressional Legitimacy to study and recommend House rules and procedures to ensure that, in the current and subsequent sessions of Congress, all US Representatives are in full compliance with the Constitution and the US Code. In a companion letter to the Honorable Karen L. Haas, Clerk of the US House, the DC Statehood Green Party requested that the Clerk advise the party on how the Office of the Clerk views its responsibility in this matter. The party specifically requested information regarding House procedures for recognizing members from any state that may be subject to the Constitution's "Reduction of Representation" mandate and the requirements of the US Code.
Two Louisiana voters have filed a Motion to Intervene as co-plaintiffs in Gordon et al. v. Clerk, US House, with a plea to "permit the Intervenors to adopt the existing pleadings, briefs and legal arguments by Plaintiffs". In response, the Defendant replied to the court that the Defendant "takes no position on the Motion to Intervene as Co-Plaintiffs" taking exception that the Intervenors have not been â€œgiven an unconditional right to intervene by a federal statute.