Sneaking Suspicions

Archives--March 31- April 6, 2002 (Week 13)

Commentary from a practical perspective

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This page includes posts from the site's thirteenth week, March 31- April 6, 2002 in the usual reverse order. Each week's postings are perma-linked to these pages.

April 5, 2002

Time for spring training--for my golf game, that is.

Four brothers invite their friends to join them each spring for a four-day golf trip to the Myrtle Beach, South Carolina area. I believe this is my eleventh year as a guest, and it's a great time, even if our collective golf skills are quite a bit short of professional standards.

My buddy and I have the farthest to travel, so we're leaving tonight to make the 1 p.m. tee time on Saturday.

While I'm not writing any essays for this site, please browse around at your leasure.

You can also click here for this week's golf column, if you'd like.

April 4, 2002

Should non-voters count in deciding how to apportion those who do?

The pseudonymous Robert Musil recently posed an extensive intriguing pair of essays concerning the Supreme Court’s "one person-one vote" jurisprudence.

The Man Without Qualities argued that the Warren Court’s Olympian pronouncements on this issue could not stand up to the type of analysis suggested in studies of the mathematics of voting authored by Charles L. Dodgson and Duncan Black. He also suggested the following:

[T]he Supreme Court’s "one-person-one vote" line of cases insists that total population – not the population of qualified or actual voters – be used exclusively in the creation and definition of voting districts at most levels (other than Federal Senators), an insistence which the Court justifies as needed to preserve the equal voting weight of each qualified voter. But the Court’s rule does no such thing. In fact, the "one-person-one vote" rule actually requires that disproportionate weight be given to voters in districts in which high concentrations of the disenfranchised happen to reside. Nor is the Court’s rule even easy to reconcile with districts with known disparities in voter turnout. If the need to protect the "equal weight" of different votes is paramount (as the Court says it is), then the Court’s rule should seek to maximize the chance that equal numbers of voters in fact vote in the election of their district’s representative. Because the "one-person-one vote" rule does not seek to ensure equal weight be given to each vote, the rule is at odds with its putative justification. [Emphasis in original post.]

Or, rather, the rule is at odds with its putative justification unless all non-voters are deemed to "vote" notwithstanding their voluntary or involuntary failure to participate in the election. Otherwise, the "one-person-one vote" rule simply does not result in equal weight being given to each "vote." The "deemed votes" are just necessary accounting entries needed to balance the Court’s rhetorical books.

I share Musil’s misgivings about some aspects of this area of the law. The redistricting and Voting Rights Act decisions since the Warren Court’s heyday tend to focus on allegedly precise percentages and other arcane elements, without seeming to appreciate fully the other, less noble features of some of the approved plans.

There are parallels here with the false hopes generated by campaign finance reform legislation, in that in legislative redistricting, incumbents will use every means possible to preserve their electoral advantages.

To some extent, it’s a matter of keeping the uglier parts of politics down to a dull roar, and otherwise hoping for the best.

On the other hand, I’m not convinced courts must consider regional disparities in either voter turnout or residential concentrations of the legally disenfranchised in order to determine if the Equal Protection Clause is violated.

First, I don’t read the Reynolds v. Sims decision as attempting to justify its result by reference to any fully fleshed out model of virtual representation of those citizens who either cannot or do not vote. Its justification was far more simply stated:

[T]he weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. [377 U.S. 533, 568] A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. ... The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races. [footnote omitted.]

We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.

Second, in the companion case of Roman v. Sincock, 377 U.S. 695 (1964), in which the Delaware reapportionment scheme was found wanting, the Court stressed its understanding that strict adherence to mathematical modeling would not be necessary. The Court noted that their affirmance of the District Court should not be taken as an agreement with one aspect of the lower court’s opinion, as described in Footnote 21:

The court below suggested that population-variance ratios smaller than 1 1/2-to-1 would presumably comport with minimal constitutional requisites, while ratios in excess thereof would necessarily involve deviations from population-based apportionment too extreme to be constitutionally sustainable. See 215 F. Supp., at 190.

Instead, the Court avoided that kind of specificity:

In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.

The evil allegedly addressed by Reynolds and Roman, after all, was the legislative emphasis on geography over the general population distribution.

Virtual representation in the American electoral system is a given, whether by reference to current norms or the more sordid "three-fifths" history of the original U.S. Constitution.

Those too young to vote have always been represented by their elders. Other adults similarly represent the mentally or physically infirm.

In fact, it’s hard to read these decisions and conclude that Equal Protection analysis would or should require states to ignore these commonly accepted understandings.

I also think there’s no real violation of fundamental principles by ignoring the fact that some population areas may include more of those who choose not to vote, or those whose other choices led to their disenfranchisement, such as felons.

If others decide not to vote, which is an additional personal right, the state legislatures can hardly be held to have violated anyone else’s constitutional rights by failing to guess when or where those choices would be made.

Furthermore, the fact that there may be current racial disparities based upon felony convictions and subsequent disenfranchisement cannot be taken as a permanent feature of the American electoral landscape. This too, shall pass, and in any event, the issue presents a near-impossible task of accurate determination and apportionment.

The Supreme Court in the Warren era often made use of sweeping phrases in its opinions, with the messy details intentionally left for others to handle. Musil is correct to call them on it, but the practical realities of redistricting do not compel a slavish adherence to the full scope of less than precise language.

Besides, if you don’t like it, you can always vote with your feet.

April 3, 2002

They must be from some other planet--or maybe they're just evil.

I grew up reading comic books.

A six-mile bike ride to the Newark Newstand and back home again would be no big deal, because I could always find the newest editions of Metal Men, The Creeper, and other favorites on the shelves along its crowded aisle.

I would also make sure I bought the special Superman editions whenever they featured the Bizarro World.

The Bizarros could be counted on to do and say the opposite of what would be expected in the normal world. As a short Amazon review of a Bizarro comic book collection put it in part,

What's ... most irritating... about the whole Bizarro thing is that sometimes Bizarro World is opposite Earth, and sometimes it's just... well, bizarre.

Today’s Reuters story about Islamic ministers and terrorism made me think that the Bizarro worldview has now infected a large part of the planet.

And it’s not where I live.

Here are some examples, with commentary:

[Bizarro] Organisation of the Islamic Conference (OIC) foreign ministers, whose talks were dominated by the crisis in the Middle East, said the term terrorism could not apply to struggles or resistance of people under colonial or foreign occupation.

Interesting. I therefore assume that any past resistance by the Northern Alliance against the foreign-born Taliban occupiers of Afghanistan would not have qualified as terrorism.

Somehow I doubt that’s what these Bizarros really meant.

"We reject any attempt to link terrorism to the struggle of the Palestinian people in the exercise of their inalienable right to establish their independent state with Al-Quds Al-Shrif (Jerusalem) as its capital," a declaration issued at the end said.

Oh, now I understand. Any acts by the Palestinians cannot qualify as terrorism in the Bizarro World.

Silly ol’ me.

[Bizarro] Malaysian Foreign Minister Syed Hamid Albar, conference host and OIC spokesman for the event, said the declaration, approved by consensus, had made clear their countries' stand on terrorism. …

"The Israeli military action clearly demonstrates the practice of state terrorism," Syed Hamid said in concluding remarks to the conference.

But wait a minute. I thought Jerusalem was within Israel’s borders. So exactly why wouldn’t the Israeli response to the Palestinian suicide bombers be considered as heroic "resistance" to attempts at "foreign occupation"?

I forgot. We’re talking about the Bizarro World here, and not Earth.

The OIC also condemned any linking of Islamic states and Lebanese resistance against Israel with terrorism, saying that to do so would impede the global struggle against terrorism.

In the Bizzaro World, that statement makes perfect sense. After all, on their planet, pure evil is pure good, and terrorism is not terrorism.

[U]nfortunately the U.S. has supported the action by the Israeli government which amounts to terrorism," Malaysian Prime Minister Mahathir Mohamad said during the meeting.

"And it is difficult for the world to unite against terrorism when there is ambiguity or double standard," he added.

Well, we all know that the Bizzaro OIC foreign ministers condemn any double standard of any kind.

Of course they do.


The [Bizarro] Arab delegate said attempts to include Palestinian militant groups for condemnation were rebutted.

"There have been some attempts to single out resistance groups like Hamas and Islamic Jihad for committing suicide bombers against civilians as acts of terror. But those attempts were quickly rejected," he said.

Wouldn’t want any of those Bizarro non-double standards to impede the efforts to attack the real enemy, I suppose.

For one brief moment, it almost appeared that this OIC meeting took place on Earth, rather than the Bizzaro World:

Delegates … struggled to define whether acts such as suicide bombing of civilians should be deemed terrorism after Mahathir, long a staunch Palestinian supporter, suggested all attacks on civilians should be classified as acts of terror.

However, the article quickly corrected my initial impression:

Mahathir said later during a meeting with Palestinian officials that his remarks had been taken out of context.


Those who seek to do evil work hardest at disguising their intent. For those who seek to do good, the effort is unnecessary.

Those wacky OIC ministers just proved the point.

April 2, 2002

Eighty billion reasons to uphold an agency’s legal interpretation

Unlike its other decisions last week, the Supreme Court’s 9-0 decision in Barnhart v. Walton did not generate much media interest. On the other hand, it provided some helpful reminders for those of us who practice administrative law, or as it’s sometimes called, the law of bureaucracy.

Most of our lives are controlled far more by rules and regulations and by government agencies’ interpretations of their authority than by the direct operation of legislation. It is among the little-appreciated facts of life.

It’s also true that most laws are products of significant compromise. As a result, it’s common for some interpretive spaces to be left in the laws, for eventual completion by the agencies charged with administering them. Otherwise, the legislators would themselves face two unpalatable political choices: (a) work out all the details first, or (b) lose any chance for a general agreement.

Pundits and others frequently complain about the resulting fog generated by new and imprecise legislation. In the meantime, administrative agency staff are responsible for carrying out what they can discern as the law’s actual intent. It’s not always an easy task.

One saving grace is that Congress or state legislators can always return to the subject if they’re not happy with the results.

Cleveland Walton is a former teacher who developed a severe mental illness. A history of schizophrenia and related depression eventually caused him to lose his teaching job in October 1994. By mid-1995, however, he was able to return to a different kind of gainful employment, as a part-time cashier. His status improved to the point that he could and did work as a full-time cashier by December 1995.

In 1996, Walton applied for Social Security benefits, under two separate Titles—the disability income program and the supplemental security income program. Both parts of the Social Security law defined the critical term "disability" the same way, as an

[i]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 423(d)(1)(A) (1994 ed.) (Title II) (emphasis added [in original]); accord 1382c(a)(3)(A) (1994 ed., Supp. V) (Title XVI).

As the Social Security Administration (SSA) saw it, Walton’s application failed for two reasons. First, the agency’s reading of the term "inability" meant that Walton had to show he could not undertake gainful employment for at least 12 months. That wasn’t true in his case. Second, the agency refused to look backwards when interpreting the term "expected to last." Because Walton returned to work within 11 months, the SSA would not make a hypothetical decision that his inability could have been expected to last the full 12 months.

The Fourth Circuit Court of Appeals read the law differently, and overturned the SSA decision.

The Justice Department's appeal to the Supreme Court noted a few interesting facts:

  • The Fourth Circuit’s decision ran counter to the decisions of several other Circuits.
  • The appellate holding was contrary to well-settled law interpreting this statute.
  • Social Security costs would increase by $80 billion over ten years unless the Fourth Circuit decision was reversed.

That last point is not really a completely legal argument, of course. If Congress actually intended that result, then the legislature would have the additional interesting responsibility of finding the money to support it.

On the other hand, if the Fourth Circuit’s determination really reflected the true legislative intent instead of the long-standing SSA gloss on the federal law, then one would think Congress would have already noted a discrepancy worth billions of dollars long before Walton’s unfortunate career change.

Justice Breyer’s opinion took careful note of the SSA’s history of consistent interpretation of the disability statute. This history included a 1957 Insurance Letter, a 1965 Disability Manual, a 1982 Social Security Ruling, and a formal Regulation adopted into the CFR after publication and opportunity for public comment. The Court additionally found fault with the manner in which the Fourth Circuit attempted to divine the Congressional intent of this less than perfectly drafted definition.

In reversing the lower court, Breyer and his fellow Justices recalled the appropriate deference to be given to administrative agencies under these circumstances:

The statute’s complexity, the vast number of claims that it engenders, and the consequent need for agency expertise and administrative experience lead us to read the statute as delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to its administration. See Schweiker v. Gray Panthers, 453 U.S. 34, 43-44 (1981). The interpretation at issue here is such a matter. The statute’s language is ambiguous. And the Agency’s interpretation is reasonable.

We conclude that the Agency’s regulation is lawful.

I respectfully submit that in addition to the fact that the SSA happened to be correct, there were about 80 billion additional reasons to predict this reasonable result.

April 1, 2002

Reminders of September 11

On Easter Sunday we traveled from our hotel in Virginia to the District of Columbia. We had matinee tickets to the National Theatre to see Mama Mia, the musical based on the music of ABBA. (Don’t laugh out loud immediately; it was really a lot of fun.)

As we headed into the city on Interstate 395, we could see the reconstruction work ongoing at the Pentagon, where the plane hit it. It had been a while since I’d been in the area, and I forgot how massive that building is. Even so, the wound caused by that hijacking went deep, and I thought about the millions of travelers who have seen that side of the Pentagon since September 11.

We came straight in from I-395 onto 14th Street NW, past the beautiful cherry trees surrounding the Tidal Basin, gorgeous and in full bloom. We circled the 1300 block of Pennsylvania Avenue to go by the Theatre, and then went looking for a parking space. Fortunately, the underground parking garage at the Ronald Reagan Building across the street was open for the event.

As I stopped at the garage entrance, I received another reminder of September 11. The security officer checked my driver’s license photo (and my DAG badge). I opened the trunk of my car for his inspection, as requested. He then ran a mirror along the bottom edge of the car all the way around, searching for anything stuck to the bottom. He then called out, "He’s clean," to his companion, and the gates opened.

We took an elevator to the main lobby, and saw that we’d have to go through a similar security gauntlet ourselves when we returned after the performance.

The show started at 2 p.m., but it was only a little after 1 o'clock. We walked over to the Commerce Building and decided to look at the White House exhibit on its first floor. Again, we were required to walk through a highly sensitive metal detector before we could look at the silver Hiawatha centerpiece and other White House artifacts. The exhibit was well staged, but we always felt the heavy security presence.

We left there and walked the two blocks to the Theatre for the show. It’s always hard to tell in Washington, but I had the impression that most of the audience for Mama Mia was far more local than our family.

There were no obvious security measures in place at the Theatre. Then again, sometimes the best security is not so visible.

As we traveled home today, I thought again about the people in DC who see daily reminders of September 11 as they go about their routines. It reminded me of something friends of mine in the Rehoboth Beach restaurant and bed & breakfast trade told me.

Ever since September 11, there’s been a noticeable increase in weekend business at the beach from the DC-area crowd that usually does its part to fill the Rehoboth area primarily during the summer. It seems that many from the Capital region simply need to take a break from their weekday surroundings a bit more than they did before September 11.

That’s perfectly understandable. I wonder how much of a similar phenomenon is occurring among New Yorkers.

Those of us living elsewhere are not often confronted with the daily reminders of that awful day. Instead, we experience the occasional little shock of recognition of what happened, and what remains to be done about it.

I’m sure there are times when some of our fellow citizens from New York, the DC area, and western Pennsylvania wouldn’t mind trading places.

March 30, 2002

Easter Break

Thanks for stopping by!

There will be no essays posted here for a day or two. In the meantime, if you haven't visited in a while, or ever, click on over to the Table of Essays and browse around.


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Fritz Schranck
P.O. Box 88
Nassau, DE  19969

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002