Monday, October 31, 2022

Minority Government — The Republican Advantage (Part II)

(Continued from post of October 28, 2022)

Hardball Politics and the Supreme Court

Despite the facts that no Republican president has won a popular majority since 2004 and Republican senators have not represented a majority of Americans since 1996, Republicans have appointed six of the nine current Supreme Court justices.  From 2017 to 2020 Donald Trump who lost the popular vote in 2016 appointed three justices who were confirmed by Republican senators who represented less than 45% of the American population.

In February 2016, during the last year of Democrat Barack Obama’s presidency, conservative Supreme Court Justice Antonin Scalia died suddenly.  Senate Majority Leader Mitch McConnell refused to allow the Senate to consider any appointment to the Court, claiming the appointment should await whomever was elected president ten months later, thus ultimately stealing the Democratic appointment, giving it to Republican Donald Trump who won the November 2016 election and subsequently nominated Neil Gorsuch, who was quickly confirmed by the Republican Senate.  Although McConnell’s action was technically constitutional, it was unique in American history and obviously went beyond the Senate’s responsibility to “advise and consent” on appointments.

When liberal Justice Ruth Bader Ginsburg died in mid-September of 2020, McConnell had no such qualms about awaiting the new president, rushing the confirmation of conservative Amy Coney Barrett through in less than thirty-six days, finishing just a week before the election of Democrat Joe Biden.

The minority party has firm control of the Supreme Court, most likely for a generation.

Statehouses Lock In Electoral Control

Since the “disputed” 2020 election, Republican controlled statehouses have implemented a raft of new laws that would make voting more difficult and other laws that take away control of the electoral process from traditional, nonpartisan, actors and give it to Republican partisans — setting up the potential for the Republican Party to control the electoral process in disputed elections.

US states have enacted more than thirty new voting restrictions since 2020, from stricter voter ID requirements to limits on mail-in voting.  Seven states have enacted laws that facilitated the de-listing of voters, without necessarily notifying the voter.  Twenty-five states have enacted laws that shifted power away from traditional election managers and, in many cases, ceded control to partisan actors.  All of these changes have been made in the name of election security, but it is important to remember that there is no evidence of significant election insecurity … prior to these laws that will now be in effect for next week’s mid-term election.

There is much debate about the actual impact of these legal changes (see here and here). What is not in debate from any except partisan election deniers, is that these laws are unnecessary and likely destructive to our democracy.

Minority Government Is Locked In

The Republican advantage is currently baked into the Constitution.  Extreme gerrymandering and hardball politics have made it worse, and the lies of the 2020 election fraud are cementing it ever more deeply.  Absent the collapse of the Republican Party due to Trump’s craziness, Republicans will continue their minority control of government for years.

Friday, October 28, 2022

Minority Government — The Republican Advantage (Part I)

If it seems to you that the Republican Party has more political power than it should, you’re not just a bitter partisan.  There is a powerful bias built into the US Constitution that currently benefits the Republican Party in both US Senate and in presidential politics.  In addition, through gerrymandering and hardball politics, the party has parlayed that constitutional bias to significant advantage in the US House of Representatives and the Supreme Court.  The party is also seeking to hardwire further advantage through changes to state electoral laws.

The US Constitution

The Senate

In the original politicking that created the US Constitution, low-population states — afraid of being overpowered by an out-of-control populism — structured the Senate so that every state had two senators, regardless of population.  Over the two-and-a-half centuries since the founding, the population discrepancy between states has widened so that California, the most populous state, now has approximately one senator per twenty million people while Wyoming, the least populous, has approximately one senator per 290,000 people.  In other words, a Wyoming resident has almost seventy times the power in the Senate as does a California resident.

There are, of course, small Democratic states, such as Delaware.  But overwhelmingly today, less-populated, rural states are Republican while larger urban states are Democratic.  In the current 50 – 50 Senate, Democrats represent almost 42 million more people than do Republicans.  In fact, as documented in The New York Intelligencer,

Republican senators haven’t represented a majority of the U.S. population since 1996 and haven’t together won a majority of Senate votes since 1998. Yet the GOP controlled the Senate from 1995 through 2007 (with a brief interregnum in 2001–02 after a party switch by Jim Jeffords) and again from 2015 until 2021.

The US Constitution has given the minority Republican Party control of the Senate for seven of the most recent twelve legislative sessions.

The Electoral College

The Constitution provides for the indirect election of the president: Voters select electors who then actually choose the president.  Every state sends electors to the Electoral College equal to its number of representatives in the House of Representatives plus its number of senators.  The number of Representatives is roughly proportional to the state’s population (and is thus democratic) but, again, the two senators give smaller states disproportionate, non-democratic power.  While not as egregious as the Senate (due to the moderating effects of the House of Representatives number), the Electoral College still gives Wyoming three votes (or one for every 190,000 residents) while California receives 55 votes (or one for every 715,000 residents); the Wyoming voter has almost four times the power in electing the president.  States small in population — and thus, current Republicans — have disproportionate impact in choosing the president.

Gerrymandering

Gerrymandering is the process of drawing voting districts to benefit one party.  As I have showed in some detail in this previous post, gerrymandering is accomplished by packing the opposition party’s voters tightly into one or several districts while spreading your own party’s voters out  over the remaining districts.  Thus, the opposition wins its proportionately fewer districts in landslides while your party wins its proportionately more districts by narrower margins.  Both parties gerrymander (the Democratic gerrymandering of Maryland’s Third District wins the prize for the most bizarre shape), but Republicans have in general been far more aggressive and successful in their gerrymandering.  Furthermore, as I explained in my last post, in 2010 the Republican Redistricting Majority Project (REDMAP) project, went after local state legislative races (as opposed to US congressional races), 

rais[ing] $30 million and target[ing] local state legislative races in sixteen states, including swing states like Wisconsin, Michigan, Ohio, Pennsylvania, and Florida, funding negative ads in lower-profile state legislative races.  The Republicans commissioned polls, brought in high-powered consultants, and flooded out-of-the-way districts with ads.  Democrats were caught unaware and flatfooted.  All told, in 2010 Republicans gained nearly seven hundred state legislative seats.

The Republican Party has not won the popular vote for president since 2004 (George W Bush’s reelection) and Republican Senators have not represented a majority of the country’s voters since 1996, yet Republicans now control 62 state chambers (House or Senate) to the Democrats’ 36.  There are currently 23 Republican trifectas (where one party controls governor, House and Senate), 14 Democratic trifectas, and 13 divided governments where neither party holds trifecta control.

Dominant Republican statehouse control gives the minority Republican Party control of American politics.  Furthermore, its capacity to continue gerrymandering state legislative districts gives it the power to remain in control of statehouses.

(To be continued here.)

Friday, October 7, 2022

The Independent State Legislature Theory

In June of this year, the United States Supreme Court agreed to hear a case from North Carolina — Moore v Harper — that could give state legislatures sole authority to set electoral rules for state and congressional elections even if their actions violated state constitutions and resulted in extreme partisan gerrymandering.  This case, invoking the so-called “independent state legislature theory,” arises because the North Carolina state legislature tried to gerrymander the purple, evenly divided Republican/Democratic state to give ten of the fourteen congressional house seats to the Republicans.  The Court has already ruled that partisan political gerrymandering is beyond the reach of federal courts.*   In response, North Carolina voters went to their state courts to contest the Republican gerrymandering.  The state supreme court agreed that the gerrymandering was illegal under the North Carolina state constitution.  In Moore v Harper, however, the state’s Republican controlled legislature is now claiming that it has absolute authority to write election laws and is not limited either by its own constitution or the state court system.

The claim seems so bizarre that the US Supreme Court’s willingness even to entertain it sent shock waves throughout the nation’s prodemocracy forces.

So, what’s going on?

The “elections clause” in Article I of the United States Constitution reads,

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.

The proponents of the independent state legislature theory fasten on to the word “legislature” as if the state legislative body were independent of its state constitution or not subject to its state courts, ie subject to the same checks and balances that safeguard our American system of government.

The nonpartisan Brennan Center for Justice writes:

The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent.  The framers famously distrusted state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections.  The framers would not have established — and indeed did not establish — a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power.  State practice, from the country’s founding to today, also refutes the theory.  For example, many framers — including James Madison — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today.

On top of this overwhelming historical evidence, the theory makes no sense: it would be absurd for a state legislature to be allowed to violate the very state constitution that created it.  Other problems doom the theory, as an avalanche of recent scholarship demonstrates.  For these reasons, the Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.

The theory has been widely discredited, yet Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have indicated support for it.  Brett Kavanagh has seemed on the fence and Amy Coney Barrett hasn’t expressed herself about it.  The theory really only came to more public attention with Trump’s effort to overturn the 2020 election.  For the Court to accept the case, four judges would have had to vote for it.  Although votes to accept cases are not public, presumably Thomas, Alito, Gorsuch and Kavanagh voted to accept it.

The conservatives of the Court claim to be “originalists,” that is holding to the original intent of the founders.  But one cannot read the Constitution or the history of its writing and see an iota of “original” support for the independent state legislature theory.

The crucial political backdrop to this case is the significant Republican advantage in gerrymandered control of statehouses.  Both parties gerrymander when they can, but the redistricting that occurred in 2010 followed a particularly powerful national Republican effort to take control of state politics.  After the losses of the 2008 election, the Republican Party looked to be facing a long period in the political wilderness.  Reviewing David Daley’s Ratf**ked: The True Story Behind the Secret Plan to Steal America’s Democracy, Elizabeth Kolbert wrote in the New Yorker about how things looked prior to 2010.

In twenty-seven states, Democrats held the majority of seats in both houses of the legislature, and in six more they held a majority in one house.  The Presidency, the US Senate, and the House of Representatives were all in Democratic hands.  To describe their own party, Republicans were using words like “wounded” and “adrift.”

And, as bad as things looked at the time, the GOP’s prospects down the road looked even worse.  In 2011, new census figures were due to be released, and this would trigger a round of redistricting.  Republicans, Daley writes, were facing “a looming demographic disaster.”

The Republican response was REDMAP, the Redistricting Majority Project.  In several state legislatures, Democratic majorities were thin.  Taking advantage of the radical-right energy of the Tea Party movement and the Supreme Court’s January 2010 Citizens United decision allowing unlimited political dark money, REDMAP raised $30 million and targeted local state legislative races in sixteen states, including swing states like Wisconsin, Michigan, Ohio, Pennsylvania, and Florida, funding negative ads in lower-profile state legislative races.  The Republicans commissioned polls, brought in high-powered consultants, and flooded out-of-the-way districts with ads.  Democrats were caught unaware and flatfooted.  

Kolbert writes

All told, in 2010 Republicans gained nearly seven hundred state legislative seats, which, as a report from REDMAP crowed, was a larger increase “than either party has seen in modern history.” The wins were sufficient to push twenty chambers from a Democratic to a Republican majority.  Most significantly, they gave the GOP control over both houses of the legislature in twenty-five states.  …  The blue map was now red.

We most often consider gerrymandering in relation to congressional elections for the US House of Representatives.  But gerrymandering of state legislative districts is in some cases more pronounced and important.  In Wisconsin and Michigan, for instance, Democrats have recently won all statewide elections (eg, governor and attorney general where gerrymandering doesn’t come into play), but both statehouses remain firmly in Republican control.  The majority of voters in those states are Democrat but the Republicans control the statehouses, which — if the independent state legislature theory is approved by the Court — will control election policy in the 2024 election.

The consequences of the Supreme Court approving the independent state legislature theory would be chaotic since state legislatures would be able to ignore not only the state constitutions and courts but also public referenda, independent redistricting commissions, delegations of electoral authority to secretaries of state and election commissions.  Other state constitutional rights, such as the right to a secret ballot, could also be on the block.

It all seems so bizarre that it’s hard to believe the Supreme Court would really decide this way.  But three justices have already indicated support for it and a fourth apparently wants to look at it.  It’s important that we recognize how extremist the Supreme Court has already become.  We know that Justice Thomas’s wife Ginni is deeply involved in election denial and attempts to overturn state elections, so presumably Justice Thomas is at least sympathetic to these views.

All six of the conservative justices have been members of the Federalist Society, which has as a major goal federalism, that is, returning power to the states.  So, as in West Virginia v EPA dismantling the federal administrative state and Dobbs v Jackson Women’s Health Organization overturning the constitutional right to abortion, these conservatives are about radically reducing the power of the federal government to govern.  

The independent state legislature theory is not about originalism; it is about partisanship, pure and simple.

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* Racial gerrymandering has been ruled unconstitutional but political gerrymandering has not.