While most of the media was blathering about the Democratic debate dog-and-pony-shows, the story of the week was the Gerrymandering decision that the Supreme Court announced on Thursday. Its decision in Rucho v. Common Cause says that the federal courts have no business policing partisan gerrymanders. That issue is for states to handle.
Chief Justice John Roberts:
“Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void….The States, for example, are actively addressing the issue on a number of fronts.”
The Conservative justices are saying that citizens have no recourse to the federal courts to solve what has become a major weakness in our democracy.
Roberts is now three-for-three, with Citizens United opening the floodgates to unlimited corporate money funding candidates. Then, with Shelby County vs. Holder, he eviscerated part of the Fourteenth Amendment and defanged the Voting Rights Act. And now, in Rucho v. Common Cause, he delegates to state legislative majorities that were enabled by the first two rulings, the ability to perpetualize (? probably not a word) their party’s time in office by drawing unrepresentative district maps with no recourse to judicial appeal.
Justice Elena Kagan dissented:
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights….Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections….”
Wrongo’s shorter John Roberts:
“The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”
This has enabled a charade of a democracy to replace the one that we thought we had. Chief Justice Roberts’s legacy will be the death of democracy. All of today’s cartoons will concern gerrymandering.
Lighting at Devils Tower, Wyoming. It is considered sacred by Northern Plains Indians – photo by Shaun Peterson
It isn’t a secret that aggressive gerrymandering (dividing election districts to give one political party a majority in many districts, while concentrating the voting strength of the other party into as few districts as possible) has been a cornerstone of Republican political strategy for more than a decade. It has been a stunning success.
And in several (mostly Republican) states, officials have also used vote suppression, such as reduced voting hours, closed polling stations, or other barriers to voting, like strict ID rules to create a political advantage.
Democrats tend to win the majority of votes nationally, and in many Congressional and state-wide elections, only to win less than a pro-rata share of seats. 2016 showed the political impact of gerrymandering. Republicans held a 54-46 majority in the US Senate. They used that majority to deny a Supreme Court appointment to President Obama on the pretext that it was an election year. At the time, the 46 Democrats represented 20 million more citizens than their GOP Senate counterparts.
And then there is the single most frightening projection facing both large-D Democrats and small-d democrats in the United States. By 2040, according to Dean David Birdsell of the school of public and international affairs at Baruch College, ‘about 70% of Americans are expected to live in the 15 largest states.’ That means that 70% of Americans ‘will have only 30 senators representing them, while the remaining 30% of Americans will have 70 senators representing them.’
If this is our future, what does “one person, one vote” mean? “One person, one vote” can have several connotations, but it should denote that fairness is inherent in our electoral system. Gender, race, and importantly, where you live, shouldn’t enhance or diminish the value of your ballot.
Winning the gerrymander battle will only be accomplished on the state and district levels. Whoever controls the state legislature and the governor’s chair will decide how fair or unfair the state’s apportionment of seats will be. Rolling Stone’s Ari Berman writes about North Carolina:
On January 9th, a federal court struck down North Carolina’s US House map, which gives Republicans a 10-to-three advantage over Democrats, the first time a federal court has invalidated congressional lines for partisan gerrymandering. But on January 18th, the Supreme Court blocked the redrawing of North Carolina’s maps, pending appeal.
GOP-drawn districts have also been struck down in Alabama, Florida, Virginia and Texas. Many of these rulings are being appealed by Republicans, making it unlikely these districts will be redrawn before the 2018 elections.
If you’re handicapping the likelihood of the Republicans losing control of the House, you need to adjust your odds in light of this news. If it stands, it could be the decisive factor that changes the ultimate outcome.
This is a good reminder that bad laws can be challenged under state constitutions (but not federal laws). States are free to recognize more rights than those recognized under the US Constitution, they just can’t recognize fewer rights. And cases decided under state constitutions are usually outside the US Supreme Court’s jurisdiction. For example, a number of states have stricter search and seizure provisions than the federal constitution. This is the sort of “federalism” that conservatives hope you don’t learn about.
Voter suppression and partisan gerrymandering are the greatest threats to our democracy. Suppression provides states with the opportunity to gerrymander. Taken together, suppression and gerrymandering provide the means to disenfranchise significant parts of the electorate from our democracy.
The government of the United States no longer derives its powers from the consent of the governed. And by the time voters head to the polls in November to elect a new Congress, America will have existed in this state of profound un-democracy for nearly a decade.
Can this be fixed? Yes, by a combination of voter turnout at the state level, and state court challenges to bad re-districting. We also have to hope that the Supreme Court doesn’t act in a completely partisan manner like they did with Citizens United and the voiding of significant parts of the Voting Rights Act.
It is profoundly wrong that the way we draw legislative districts, and malapportionment, have conspired to rob American voters of much of their ability to choose their leaders.
Donald Trump was the fifth candidate in our history to win sufficient votes in the Electoral College (EC) to become president after losing the popular vote. Now, Republicans are making an effort at the state level to change how electoral votes are apportioned to presidential candidates, from winner take all, to being allocated to the winner of each congressional district.
Republicans call this a modest tweak to the EC process. But it will make gerrymandering of congressional districts even more important to electing the president than it is to electing Members of Congress today.
How today’s system works:
In 48 states, (all except Maine and Nebraska) the presidential candidate who wins the popular vote in their state receives all of that state’s electoral votes. A state’s number of electors equals its number of US Representatives and Senators.
Although ballots list the names of the presidential candidates, when voters within the 50 states and Washington, DC vote for President and Vice President, they’re actually choosing electors proposed by the Parties in their state. These presidential electors then cast electoral votes for those two offices, so the EC elects the President or Vice President, not the popular vote.
Despite what you might think, the Constitution reserves the power to appoint electors to the states. Here is Article 2, Section 1; Clause 2:
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
So it is clear that each state has the exclusive right to determine how their state electors are selected.
The proposed Republican “tweak”:
The Republican tweak apportions electoral votes to the presidential candidate who wins the vote in each congressional district. The two remaining electors would go to whomever wins the statewide vote. States considering moving to allocating electoral votes to the candidate winning in each congressional district include Minnesota, Ohio, Pennsylvania and Virginia – all have legislatures controlled by Republicans. Two, Virginia and Minnesota, currently have Democratic governors, so at this point, they could veto the proposed legislation.
After the 2010 census, 55% of all congressional districts were redrawn to favor Republicans, while just 10% were redrawn to benefit Democrats. In 2016, Trump carried 230 districts to just 205 for Hillary Clinton, even though Clinton won nearly 3 million more votes nationally. So if every state awarded electoral votes by congressional district, Trump would have still prevailed. And guess what? Mitt Romney would also have won in 2012, and George W. Bush would have won in 2000.
The tweak takes voting power away from cities and puts more in suburban and rural areas, making it more likely that a candidate with fewer votes over all could routinely win a larger share of electoral votes. And thanks in part to recent poor performance by Democrats, 32 States now have Republican-controlled legislatures.
Should we be talking about this at all? Debating whether to pass bills to reduce the value of an urban vote to a fraction of the value of other voters?
Sounds like a Republican paradise.
An advantage of the EC is that it tends to improve the winner’s margin of victory and thus the presidential mandate at the beginning of his/her term in office. Also, it ensures that candidates actually campaign in more states, rather than in fewer. Would anyone campaign in NH when they could garner many times more popular votes in a couple of counties in California? They do it today because NH’s four electoral votes can make a difference.
The president doesn’t represent congressional districts. The president represents all the people, which is why the ONLY reasonable reform to the EC is a nationwide popular vote.
The fact remains that Republicans have the ability to make this happen. Allowing statehouses to decide presidential elections will have undemocratic consequences. Keeping politicians from making the Electoral College subject to gerrymander is crucial.
To help us pause and reflect on this threat, here is Leonard Cohen with “Democracy” from his 1992 album, “The Future”, here performed in 2008 live in London:
It’s a song of deep intimacy and affirmation of the experiment of democracy in this country. That this is really where the experiment is unfolding. This is really where the races confront one another, where the classes, where the genders, where even the sexual orientations confront one another. This is the real laboratory of democracy.
Let’s hope the experiment doesn’t fail.
Those who read the Wrongologist in email can view the video here.
Sample lyrics:
I’m sentimental, if you know what I mean
I love the country but I can’t stand the scene.
And I’m neither left or right
I’m just staying home tonight,
getting lost in that hopeless little screen.
But I’m stubborn as those garbage bags
that Time cannot decay,
I’m junk but I’m still holding up
this little wild bouquet:
Democracy is coming to the U.S.A.
