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Equal representation in House of Delegates in question

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Charles McElwee Charles McElwee
Charles McElwee is a Charleston lawyer with the firm Robinson & McElwee PLLC. The views expressed are his own.

The United States Supreme Court has ruled that as a basic constitutional requirement, the Equal Protection Clause of the federal constitution requires seats in both houses of a bicameral state legislature be apportioned among senatorial and delegate districts that are nearly of equal population as is practicable.

When the population-per-representative varies significantly from the equal-population principle, the votes of those living in the least populated districts are overweighted and overvalued, while the votes of those living in the most populated districts are undervalued, diluted or debased.

The debased votes cause voters to be denied the equal protection of the laws.

The question considered here is whether the concept of political equality underlying what the court has called “one person, one vote” extends to the value or quality of elected representation of a district vis-à-vis elected representation of other districts in the proceedings of the house to which they have been elected.

I believe that a credible argument can be made that it does.

The rationale for the “one person, one vote” concept should apply with equal force to representation-debasement in that it discriminates against the populations whose representation in legislative proceedings has been undervalued or diluted.

“The idea that every voter is equal to every other voter in his state” should also embrace the idea that every representative of the voters in one house of the legislature should be equal to each other in its proceedings.

This statement of the court also supports the postulate: “Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.”

Concomitantly, each citizen should have an equally effective voice in the proceedings of the Legislature through his/her elected representative. Call it “one representative, one vote.”

Representation-debasement or undervaluation may have occurred in the West Virginia House of Delegates in its regular session ended March 8, 2014, as well as in other sessions when the same procedural rules apply.

How? By the adoption of two rules: one of them by the House (H.R. 2) applicable to its daily proceedings on and after Jan. 9, 2014; the other of them by house committees applicable to their proceedings during the 60-day session, including the House Judiciary, Finance, Education and Government Organization Committees.

H.R. 2 allowed 10 members of the 18-member Rules Committee or a mere six of them, if only a bare quorum was present, to control what matters would be considered and acted upon by the House each legislative day through the mechanism of two calendars, one called “the Daily Calendar,” the other “the House Calendar.”

When a matter was reported from committee(s) to which referred, it was automatically placed on the Daily Calendar, thus entitling it to be considered and acted upon by the House.

However, if the Rules Committee by the vote indicated removed a matter from the Daily Calendar and placed it on the House Calendar as H.R. 2 authorized it to do, the House members would be deprived of an opportunity to consider or act upon the matter even to the end of the session if kept there.

The decisions of the Rules Committee in that regard could only be reversed by two-thirds of the House members present and voting.

It is, therefore, apparent that having been selected by the Speaker of the House as a member of the Rules Committee exalted his/her representation of the delegate district from which elected.

Having been chosen as the Chair of a House Committee such as the Judiciary, Finance, Education or Government Organization Committee also added value or weight to his/her representation of the delegate district from which elected in relation to representatives from delegate districts not chosen to chair a committee.

The Chair controlled the agenda of the Committee, determining, like the Rules Committee was authorized to do for the agenda of the entire House, what matters the Committee would consider and act upon unless the Committee by its two-thirds vote directed otherwise.

Consider the 50th Delegate District, on the one hand, and the 37th Delegate District, on the other. The 50th District was represented by three delegates based on its population, one of whom chaired the House Judiciary Committee and two of whom were members of the House Rules Committee.

The 37th District was represented by one delegate based on its population who neither chaired a committee nor was a member of the House Rules Committee.

Accordingly, representation of the population of the 50th Delegate District had far more value, weight and strength in that session than the representation of the population of the 37th delegate district.

Thus, the chair of the House Judiciary Committee had two opportunities to either move a bill or resolution forward or effectively to kill it: by controlling the agenda of the House Judiciary Committee with respect to bills or resolutions referred to it, and by voting with the majority of the House Rules Committee to keep or not to keep a matter on the Daily Calendar.

In contrast, the representative of the 37th Delegate District did not control the agenda of any House committee nor have a voice in the control of the agenda of the entire House of Delegates.

When the residences of the Speaker of the House, House Committee chairs and members of the House Rules Committee are considered together, it appears that political power in the House of Delegates (representation overvaluation) during its regular session earlier this year was concentrated in the representations of those delegate districts in the north central part of the state, comprising parts or all of Braxton, Barbour, Harrison and Marion counties.

In conclusion, it is my opinion that a credible case can be made that the referenced House Rule and the committee rules resulted in an overvaluation and an undervaluation of some representations in the House’s 2014 regular session in violation of the Equal Protection clause for the populations of delegate districts with undervalued representation.

Those delegates who voted in favor of H.R. 2 and/or in favor of the committee rules may face a political issue in the delegate districts they represent: why did you vote to devalue your representation of us in the last session of the Legislature?

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