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John Roberts Gives Bad Faith Blessing to Hyper-Partisan Gerrymandering, Paving Way for the Kochstitution.

There was an ominous warning about the direction American Democracy was heading When David Frum – a former speechwriter for George W. Bush turned Never-Trumper – wrote a piece in the Atlantic last year where he warned, “If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.” It was a warning about the mass of Republican voters eventually turning against the idea democracy if they conclude that conservatism isn’t popular enough to win a majority of the vote, but as we’re going to see in this piece, the most powerful component of the Republican party has already concluded that it can’t get the public behind its agenda and has already turned against democracy. This faction is, of course, the corporate/billionaire wing of the Republican party which knows full well that its agenda of slashing taxes on the wealthy and gutting government programs and regulations isn’t even going to be popular with most Republicans. Because it’s the faction of billions that wants policies only a billionaire could love.

And it’s that faction of the Republican party – the faction that comprises America’s real ‘elites’ of billionaires and large corporations – that won a major victory this week at the Supreme Court in its war on democracy: The Supreme Court just decided that it cannot make rulings on partisan gerrymandering cases. As a consequence, each state is now free to gerrymander its congressional districts as extremely as it wants. So if a state’s courts and legislature are effectively captured by a single party, that party can cheat as much as they want when it comes to partisan redistricting.

And partisan redistricting doesn’t just apply to federal House districts. State legislative districts are also vulnerable to gerrymandering. So when the Supreme Court ruled that it’s up to states to determine whether or not a redistricting map is too partisan that left open the opportunity of partisan state courts and state legislatures and governors working together to create and bless hyper-partisan redistricting maps for state legislative districts. Cheating isn’t against the rules for both state and federal if the cheaters win big enough run the redistricting approval process.

The timing of the Supreme Court’s approval of hyper-partisan redistricting is also particularly ominous: 2020 is the next census year and the redistricting process starts after the results of the 2020 elections. The new state legislature following the 2020 elections will draw new state and federal districts in all 50 states and those new districts will be in effect from 2022 through 2032. A gerrymandering bonanza is scheduled to take place in less than two years and now every state that’s under one-party rule following the 2020 election was just given a green light by the Supreme Court to make that redistricting process as partisan as possible. And while both parties have the ability to gerrymander and both parties do it, both parties do not gerrymander to a remotely even degree. Republicans practice “gerrymandering on steroids” and Democrats haven’t demonstrated that capacity yet.

The other big obvious reason that this Supreme Court ruling will net help Republicans is that Republicans control far more state legislatures and governorships than Democrats. Both chambers of the state legislative bodies for every state but Minnesota are controlled by a single party following the results of the 2018 mid-terms. One party having control of both chambers of the state legislature is a requirement of allowing one party to draw hyper-partisan districts and every state but Minnesota has one party legislative rule right now. The situation is poised for massive partisan gerrymandering abuse.

Now, in some states (mostly ‘Blue’ states), the redistricting is done by an independent commission so gerrymandering isn’t an issue. But following the 2018 mid-terms, if redistricting took place at that point the Republicans would have unified control over the redistricting process in states that make up a net 179 congressional seats compared to the Democrats having unified control over 79 seats. States where independent commissions control the redistricting process would cover 113 congressional seat, states under split control cover 60 seats, and states that don’t have to do redistricting because they only have one seat cover 7 congressional seat. So out of the 435 total congressional seat, the Republicans have a 100 seat advantage over the Democrats in the number of congressional seats where the Republicans will likely have unified control over the redistricting process following the 2020 elections. And that 100 seat advantage reflects the advantage the Republicans will have over the state legislative district lines too. The Republicans are poised to openly and legally cheat massively at the federal and state levels simultaneously. Or rather, openly and legally cheat even more massively than they did in 2010.

But as we’re going to see, the fact that the Republicans are now even more empowered to rig state legislative districts and therefore more likely to gain unified control of state governments has implications that threaten to go far beyond the obvious problem of giving Republicans a systematic boost in representation. For starters, it turns out that preventing state supreme courts from ruling on partisan redistricting has also been one of the core electoral strategies projects pushed by billionaires like the Koch brothers and the Koch-funded corporate front group, the American Legislative Exchange Committee (ALEC). So even state courts might not be able to state legislatures from the most extreme forms of gerrymandering if ALEC prevails.

As we’re also going to see, the Kochs’ ambitions don’t stop with extreme gerrymandering of House districts. They’re also working on effectively gerrymandering the Senate by repealing the 17th Amendment and returning the elections of senators to state legislatures. And that effort to repeal the 17th Amendment is part of a much larger long-standing effort to trigger Article V of the constitution and launch constitutional convention that could constitutionally enshrine their far right corporatist agenda. In other words, this Supreme Court ruling just made the Koch brothers planned far right corporatist overhaul of the US constitution – which is effectively a civil doomsday scenario for the US – A LOT more likely to succeed because that doomsday scenario is predicated on right-wing control of at least 34 out of 50 state legislatures. That’s the number of states that need to call for an Article V constitutional convention, a 2/3 majority of the states. And thanks to the egregious gerrymandering that the GOP turbocharged in 2010 the GOP dominates at the state level and the Kochs are almost there in reaching the 34 states they need for a far right constitutional overhaul.

That’s the civil doomsday scenario that the Supreme Court just turbocharged that we’re going to be looking at. First, let’s take a look at an example of how the GOP was already gerrymandering before this Supreme Court ruling. The example, Wisconsin, is an extreme example but that’s what makes it a model of what we should expect going forward. As the article points out, Wisconsin’s partisan gerrymandering is so extreme that if there was a vote of equal numbers of Democratic and Republican voters the Republicans would win 64 out of 99 state assembly districts. As the article also notes, the impact of gerrymandering is on top of the built in gerrymandering-like effect that comes from Democratic voters being concentrated in big cities that puts a high proportion of democratic voters in a relatively small number of districts. So the Democrats in Wisconsin basically can’t realistically win control of the Wisconsin state legislature even in a ‘good’ year as a result of the 2011 round of redistricting and that’s the kind of cheating that was possible before the Supreme Court’s ruling:

Milwaukee Journal Sentinel

New election data highlights the ongoing impact of 2011 GOP redistricting in Wisconsin

Craig Gilbert,
Published 10:06 a.m. CT Dec. 6, 2018 | Updated 10:55 a.m. CT Dec. 6, 2018

Detailed election data posted by the state this week illustrates once more the ongoing impact of Wisconsin’s gerrymandered, Republican-friendly legislative map.

GOP Gov. Scott Walker lost his bid for re-election by roughly 1 percentage point Nov. 6 to Democrat Tony Evers.

Yet Walker carried 63 of the state’s 99 state Assembly districts.

In fact, the data show that 64 of the 99 districts are more Republican than the state as a whole, based on their vote for governor.

In other words, Republicans enjoy a built-in 64-35 advantage in the partisan makeup of the 99 Assembly districts. In a hypothetical 50-50 election, in which there are equal numbers of Democratic and Republican voters in Wisconsin, no one crosses party lines and independents split down the middle, that translates into a massive 29-seat GOP advantage in the Assembly. That’s very close to the 27-seat margin (63-36) that Republicans won last month.

Every election since the current map was drawn has told the same story:

* Republicans enjoy a natural edge in the battle for the Legislature because Democratic voters are more concentrated geographically in urban areas, especially in Milwaukee and Madison, meaning their voting power is confined to a smaller number of districts.

* The legislative map drawn by the GOP in 2011 added greatly to that natural Republican advantage. Under the old map, Democrats had to outperform the GOP by 2 or 3 points statewide to have a good shot at winning control of the Assembly. But under the current map, Democrats need to out-perform the GOP by closer to 9 or 10 points statewide to have a good shot at winning an Assembly majority.

* Aside from locking in Republican control, the gerrymandered map has almost killed off competitive Assembly elections. To maximize their partisan advantage, Republicans drew a minority of hugely lopsided Democratic districts (minimizing the impact of the Democratic vote) and a sizable majority of less lopsided but safe GOP seats. That leaves hardly any truly “purple” Assembly districts in this “purple” state. In the Nov. 6 election, only five of 99 Assembly races were decided by less than 5 points. Only two were decided by less than 3 points.

Exactly how tilted is the current map?

One way to gauge this is to look at the results for governor or president by legislative district. That tells you how Republican and Democratic voters are distributed across districts and how many districts favor each party in their underlying partisan makeup.

The 2018 numbers below are based on the ward-level election returns posted by the state this week. John Johnson, a research fellow at Marquette University Law School who works with Marquette pollster Charles Franklin, used those returns to calculate the vote for governor in every Assembly district and shared his data for this analysis.

I’ve also done the same analysis for the past seven Wisconsin elections, using the district-by-district results for governor or president to measure the partisan tilt of the state’s legislative map.

Wisconsin’s tilted map

The numbers all show that the current map is far more tilted toward the GOP than the previous map — and all but ensures Republican control of the state Assembly in “good” years or “bad” for the GOP.

Let’s start with the 2010 race for governor, which was conducted under the old map. Walker won statewide by just under 6 points. Based on how they voted for governor, 56 of the 99 Assembly districts were more Republican than the state as a whole (meaning Walker did better in those places than he did statewide).

That meant the GOP had a built-in advantage under the old map of 13 seats (56 seats were more Republican than average, 43 were more Democratic).

Then Republicans redrew the lines in 2011 and that advantage grew dramatically. In the first midterm elections under the new map (2014), 62 seats were more Republican than the state as a whole based on how they voted for governor. A baked-in 13-seat GOP advantage (56-43) became a baked-in 25-seat edge (62-37).

Even that doesn’t tell the whole story, because not only did Republicans increase the number of GOP-leaning seats, they increased their partisan advantage in those individual seats. In order to win 50 seats under the old map, Democrats had to win at least seven seats that had a GOP lean. But those seven seats were fairly competitive, with a Republican lean of 0 to 3 points.

The math got far worse for Democrats under the new map. The 2014 results showed that to get a bare 50-seat majority, Democrats needed to win at least 13 seats with a Republican lean, including five seats with a GOP lean of more than 8 points.

The 2018 elections results tell a similar story. Of the 99 Assembly seats, 64 were more Republican in their vote for governor than the state as whole. Walker carried 63 of them despite losing statewide.

To win a bare majority of 50 seats, Democrats would have needed to win at least 14 seats that Walker carried, including nine he carried by more than 5 points. In an era of diminished ticket-splitting, that wasn’t remotely going to happen. Republican Assembly candidates won all but two of the 63 districts carried by Walker. And Democratic Assembly candidates won all by two of the 36 Assembly districts carried by Evers.

Democrats had no prayer in Assembly

In short, in a year when Democrats swept the statewide elections, they had no prayer of winning the state Assembly.

So how many Assembly seats would Democrats have won in 2018 with a “fair” map?

As critics of the map have pointed out, Democrats won 53% of all the Assembly votes cast statewide while coming away with only 36% of the seats. But it would be wrong to suggest Democrats should have won 53% of the Assembly seats under a fair map. The GOP didn’t bother to field candidates against 30 Democrats in ultra-blue Assembly districts, so using the statewide Assembly vote as a measure of how many seats Democrats “should have” won is misleading.

It would also be a stretch to suggest Democrats should have won an Assembly majority at all this year, even though their candidate for governor, Tony Evers, won just over 50% of the two-party vote.

Urban-rural divide

That’s because under even an unbiased map, the concentration of Democratic voters in urban areas is going to limit Democrats’ voting power across 99 Assembly districts. This has become an even bigger problem for Democrats because the party has lost ground in rural areas in recent years. Democrats are destined under these circumstances to underperform their statewide vote when it comes to how many Assembly seats they win.

But if a growing urban-rural divide has made it a challenge for Democrats to compete for Assembly control, any fair reading of the numbers shows that the gerrymandered GOP map has tilted the playing field a great deal more. That map has given Republicans a grip on the Legislature that is entirely disproportionate to the party’s level of popular support in the state and no doubt emboldened the party when it moved this week to diminish the powers of the incoming Democratic governor and attorney general.

The victory of Evers Nov. 6 means that the next legislative map (in place for the 2022 elections) will likely be less partisan than the current one because it will be the product of divided government.

But since 2011, that map has effectively locked in large GOP majorities, even in an election year like 2012, when Democrats carried Wisconsin for president by 7 points. These majorities are utterly predictable when more than 60% of the Assembly seats are more Republican than the state as a whole.

———-

“New election data highlights the ongoing impact of 2011 GOP redistricting in Wisconsin” by Craig Gilbert; Milwaukee Journal Sentinel; 12/06/2018

“In other words, Republicans enjoy a built-in 64-35 advantage in the partisan makeup of the 99 Assembly districts. In a hypothetical 50-50 election, in which there are equal numbers of Democratic and Republican voters in Wisconsin, no one crosses party lines and independents split down the middle, that translates into a massive 29-seat GOP advantage in the Assembly. That’s very close to the 27-seat margin (63-36) that Republicans won last month.

Out of Wisconsin’s 99 state assembly districts, the GOP has a 29-seat edge based on gerrymandering and the gerrymandering-like feature of Democratic voters being concentrated in urban areas. Effective gerrymandering requires strategically spreading out your party’s voters across districts and Republican voters are much more spread out than Democrats. And the mid-term elections accurately reflected that 29-seat edge with a 27-seat edge for the GOP following the Democrats winning 53% of the Assembly vote. As a result, the Wisconsin Democrats needs to outperform the GOP by closer to 9 to 10 points to have a decent shot of winning a majority in the Assembly. The cheating worked as expected. Races are so predictable and uncompetitive that the GOP didn’t even bother fielding candidates in 30 of the ulta-‘blue’ districts. Yes, of the 36 districts the Democrats won, 30 of them were uncontested by the Republicans. That’s how broken Wisconsin’s elections are as a result of partisan gerrymandering and how effectively the GOP gerrymandering concentrated Democrats into districts:


Every election since the current map was drawn has told the same story:

* Republicans enjoy a natural edge in the battle for the Legislature because Democratic voters are more concentrated geographically in urban areas, especially in Milwaukee and Madison, meaning their voting power is confined to a smaller number of districts.

* The legislative map drawn by the GOP in 2011 added greatly to that natural Republican advantage. Under the old map, Democrats had to outperform the GOP by 2 or 3 points statewide to have a good shot at winning control of the Assembly. But under the current map, Democrats need to out-perform the GOP by closer to 9 or 10 points statewide to have a good shot at winning an Assembly majority.

* Aside from locking in Republican control, the gerrymandered map has almost killed off competitive Assembly elections. To maximize their partisan advantage, Republicans drew a minority of hugely lopsided Democratic districts (minimizing the impact of the Democratic vote) and a sizable majority of less lopsided but safe GOP seats. That leaves hardly any truly “purple” Assembly districts in this “purple” state. In the Nov. 6 election, only five of 99 Assembly races were decided by less than 5 points. Only two were decided by less than 3 points.

To win a bare majority of 50 seats, Democrats would have needed to win at least 14 seats that Walker carried, including nine he carried by more than 5 points. In an era of diminished ticket-splitting, that wasn’t remotely going to happen. Republican Assembly candidates won all but two of the 63 districts carried by Walker. And Democratic Assembly candidates won all by two of the 36 Assembly districts carried by Evers.

As critics of the map have pointed out, Democrats won 53% of all the Assembly votes cast statewide while coming away with only 36% of the seats. But it would be wrong to suggest Democrats should have won 53% of the Assembly seats under a fair map. The GOP didn’t bother to field candidates against 30 Democrats in ultra-blue Assembly districts, so using the statewide Assembly vote as a measure of how many seats Democrats “should have” won is misleading.

And that’s just Wisconsin. It’s a bad example, but still just an example. Virtually every Republican-dominated state has engaged in as extreme gerrymandering as possible in 2011.

Why Rucho v. Common Cause Happened: Because John Roberts is a Champion of Freedom of Speech (For Billionaires Only)

Next, let’s take a look at the actual Supreme Court ruling that handed control of the redistricting process back to the states. The case, Rucho v. Common Cause, presented a simple question to the court: can federal courts place limits on partisan gerrymandering? It was a simple question the 5-4 conservative majority with a “No”. Why can’t federal courts rule on such matters? Because, according to Chief Justice John Roberts, there’s no established standard for what is too political and it that if the federal courts did limit partisan gerrymandering that would expand “judicial authority” into one of the most intensely partisan aspects of American political life. So federal courts can’t get involved with limited partisan gerrymandering because gerrymandering is extremely partisan in nature and there aren’t established standards for what’s too partisan. That was seriously the conservative majority’s ‘reasoning’.

Beyond that, as the following article describes, the ruling was predicated on a preposterous argument that partisan gerrymandering doesn’t impose any sort of burden on voters, in particular their free speech. As the plaintiffs in the case argued and Judge Kagan pointed out in her dissent, partisan gerrymandering is clearly punishing voters based on their expressed political viewpoints. That’s the entire point of partisan gerrymandering: to dilute the political representation of one party’s voters over another and this is done based on how the party identification of voters. But according to John Roberts, partisan gerrymandering does no harm to the freedom of expression of voters because they’re still free to campaign and persuade other voters in their gerrymandered districts.

As the article also points out, part of what makes this legal reasoning by Roberts so absurd is that Roberts has previously taken a very different attitude towards potential infringements of free speech when it came to the free of of billionaire mega donors. In 2011, When Arizona Free Enterprise v. Bennett was before the courts, Roberts argued that it was right to strike down an Arizona campaign finance law that provided public financing candidates that roughly matched the private donations from mega donors of opponents. Why did Roberts feel that public matching funds to balance private mega donor donations should be stopped? Because Roberts felt that such a system dissuaded the wealthy donors from contributing in the first place and that harmed their free speech. Yep, Roberts was against public matching funding because matching funds might convince wealthy donors that they won’t get as big a relative advantage in making large political donations and that harms their free speech. The fact that the matching funds would actually be used to pay for more speech didn’t was ‘trumped’ by the disincentives the law created for wealth donors.

That’s how delicately Roberts handled potential infringements of free expression when it came to the free expression of wealth donors. But when it comes to the free expression of average voters seeing their political representation systematically diluted through partisan gerrymandering based on the party self-identification, there’s no harm to freedom of expression in that case. That disparity between Roberts’s concerns over the potential damage to average voters’ freedom of expression and billionaire freedom of expression was a key factor in allowing the Roberts court to make this historically damaging Rucho v. Common Cause ruling, which underscores the fact that this ruling is simply unprincipled pay back by the conservative majority to the power brokers who put them there:

Slate

John Roberts Thinks Billionaires Deserve Greater First Amendment Protections Than Voters

By Mark Joseph Stern
June 27, 2019 2:53 PM

In February, Chief Justice John Roberts touted his commitment to free speech, declaring: “I think I’m probably the most aggressive defender of the First Amendment on the court now.”

On Thursday, he authorized one of the most effective and widespread attacks on free speech today, prohibiting federal courts from reining in partisan gerrymanders. Roberts’ decision in Rucho v. Common Cause will have a devastating impact on freedom of expression in the United States, allowing lawmakers to punish voters for their political views by diluting their votes. It is the court’s most disastrous betrayal of the First Amendment in recent memory.

Rucho posed a simple question: Can federal courts place limits on partisan gerrymandering? The answer should be obvious, for two simple reasons. First, these gerrymanders impose grave constitutional harm on citizens. Second, they are not at all difficult for courts to remedy. There is nothing uniquely challenging about measuring and fixing partisan gerrymanders, as multiple lower courts have already demonstrated. The task falls squarely within the court’s duty to protect Americans’ constitutional rights—indeed, to safeguard the most important right, an ability to participate equally in self-governance.

Yet Roberts, joined by the remaining conservatives, declared otherwise in a 5–4 decision. He insisted that partisan gerrymanders “present political questions beyond the reach of the federal courts.” To limit this practice, Roberts wrote, would be to expand “judicial authority … into one of the most intensely partisan aspects of American political life.” And he wrote that federal courts are ill-suited to decide when partisan gerrymandering “goes too far,” as they lack a standard by which to measure a party’s illegitimate entrenchment of political power.

To reach this conclusion, Roberts shrugged off the serious constitutional injuries inflicted by political redistricting. Most notably, he dismissed the plaintiffs’ theory that extreme partisan gerrymandering violates the First Amendment. There are, Roberts wrote, “no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district.” He scoffed at the putative “burden” that gerrymandering placed on the plaintiffs, citing “slight anecdotal evidence” that the minority party had “difficulty drumming up volunteers and enthusiasm.” This alone, Roberts suggested, did not prove a First Amendment infringement.

Unless the chief justice failed to grasp the plaintiffs’ actual theory, he must know this passage is incredibly misleading. The plaintiffs here argued, correctly, that partisan gerrymandering imposes a flagrant and immediate burden on First Amendment rights. It isn’t just about “drumming up volunteers”—it’s about lawmakers penalizing voters on the basis of their political expression and association. Take North Carolina, where Republican legislators intentionally diluted the votes of citizens who expressed support for the Democratic Party. In virtually any other context, this action would constitute viewpoint discrimination, a cardinal sin under the First Amendment. Why doesn’t it here?

Roberts seems to believe that this viewpoint discrimination is OK because it creates “no restrictions” on expression. If that’s true, I am not sure how Roberts can justify his opinion in 2011’s Arizona Free Enterprise v. Bennett, a 5–4 decision striking down a key component of Arizona’s publicly financed elections. Under the law, Arizona provided funds to publicly financed candidates that roughly matched the amount spent by their opponents. The goal was to create competitive races by ensuring that all candidates had sufficient resources to campaign.

Arizona’s law created “no restrictions” on expression and certainly didn’t penalize speech on the basis of viewpoint. But Roberts and the conservative justices struck it down anyway, writing that it “substantially burdens the speech of privately financed candidates” by frightening them into spending less. Really? According to Roberts, a law designed to increase political speech by helping more candidates participate in elections “substantially burdens protected political speech” because it dissuades big donors from writing bigger checks. To Justice Elena Kagan, writing in dissent, that was pure madness. “The system discriminated against no ideas and prevented no speech,” she wrote. To the contrary, it plainly furthered “First Amendment values.”

It is difficult to understand a theory of the First Amendment that permits partisan gerrymandering (in part because it imposes “no restrictions” on voters’ expression) while forbidding a matching-fund campaign finance scheme (because it “burdens” big donors’ speech). Roberts’ decisions in Rucho and Arizona Free Enterprise cannot be squared. The only plausible explanation is that the chief justice values the expression of high-dollar donors more than he values the expression of voters. “There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts wrote in another decision striking down campaign finance restrictions. Apparently, that right applies with greater force to billionaires writing checks than it does to voters casting ballots.

In her powerful Rucho dissent, Kagan pinpointed exactly where Roberts went so awry. She wrote that extreme partisan gerrymanders “undermine the protections” of “democracy embodied in the First Amendment.” She explained how courts can easily determine whether a gerrymander “substantially dilutes the votes of a rival party’s supporters.” She laid out all the tools that courts have already used to invalidate and correct partisan gerrymanders. “That kind of oversight,” Kagan noted, “is not only possible; it’s been done.”

But that didn’t matter to Roberts and his fellow conservatives. They abandoned the Constitution just when its guarantees were most necessary to protect democracy. And they ignored the courts’ proven ability to apply these guarantees in a manner that vindicates free expression. With Rucho, Roberts has turned the First Amendment on its head, denying voters a shield against lawmakers who rig elections by retaliating against political speech. “The practices challenged in these cases,” Kagan wrote, “imperil our system of government. Part of the Court’s role in that system is to defend its foundations.” Thanks in part to Rucho, those foundations will continue to crumble.

————

“John Roberts Thinks Billionaires Deserve Greater First Amendment Protections Than Voters” by Mark Joseph Stern; Slate; 06/27/2019

“On Thursday, he authorized one of the most effective and widespread attacks on free speech today, prohibiting federal courts from reining in partisan gerrymanders. Roberts’ decision in Rucho v. Common Cause will have a devastating impact on freedom of expression in the United States, allowing lawmakers to punish voters for their political views by diluting their votes. It is the court’s most disastrous betrayal of the First Amendment in recent memory. ”

American voters can now be targeted for political punishment in the form of intentionally diluted political representation and the federal courts can’t step in. And at the core of this decision was the conclusion that partisan gerrymandering doesn’t actually harm voters. Why doesn’t it harm voters? Because it doesn’t harm their freedom of expression, according to the conservative majority. It’s a ruling built on layers of bad faith reasoning from the chief justice:


Yet Roberts, joined by the remaining conservatives, declared otherwise in a 5–4 decision. He insisted that partisan gerrymanders “present political questions beyond the reach of the federal courts.” To limit this practice, Roberts wrote, would be to expand “judicial authority … into one of the most intensely partisan aspects of American political life.” And he wrote that federal courts are ill-suited to decide when partisan gerrymandering “goes too far,” as they lack a standard by which to measure a party’s illegitimate entrenchment of political power.

To reach this conclusion, Roberts shrugged off the serious constitutional injuries inflicted by political redistricting. Most notably, he dismissed the plaintiffs’ theory that extreme partisan gerrymandering violates the First Amendment. There are, Roberts wrote, “no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district.” He scoffed at the putative “burden” that gerrymandering placed on the plaintiffs, citing “slight anecdotal evidence” that the minority party had “difficulty drumming up volunteers and enthusiasm.” This alone, Roberts suggested, did not prove a First Amendment infringement.

Unless the chief justice failed to grasp the plaintiffs’ actual theory, he must know this passage is incredibly misleading. The plaintiffs here argued, correctly, that partisan gerrymandering imposes a flagrant and immediate burden on First Amendment rights. It isn’t just about “drumming up volunteers”—it’s about lawmakers penalizing voters on the basis of their political expression and association. Take North Carolina, where Republican legislators intentionally diluted the votes of citizens who expressed support for the Democratic Party. In virtually any other context, this action would constitute viewpoint discrimination, a cardinal sin under the First Amendment. Why doesn’t it here?

In her powerful Rucho dissent, Kagan pinpointed exactly where Roberts went so awry. She wrote that extreme partisan gerrymanders “undermine the protections” of “democracy embodied in the First Amendment.” She explained how courts can easily determine whether a gerrymander “substantially dilutes the votes of a rival party’s supporters.” She laid out all the tools that courts have already used to invalidate and correct partisan gerrymanders. “That kind of oversight,” Kagan noted, “is not only possible; it’s been done.”

But that didn’t matter to Roberts and his fellow conservatives. They abandoned the Constitution just when its guarantees were most necessary to protect democracy. And they ignored the courts’ proven ability to apply these guarantees in a manner that vindicates free expression. With Rucho, Roberts has turned the First Amendment on its head, denying voters a shield against lawmakers who rig elections by retaliating against political speech. “The practices challenged in these cases,” Kagan wrote, “imperil our system of government. Part of the Court’s role in that system is to defend its foundations.” Thanks in part to Rucho, those foundations will continue to crumble.

And part of what makes the bad faith behind this ruling so clear is how wildly different Roberts treated the possible damage to freedom of expression in the 2011 Arizona Free Enterprise v. Bennett, where the disincentives that public matching funds created for wealthy donors to continue donating was deemed by Roberts to be so damaging to the freedom of expression of those wealth donors that the law had to be struck down:


Roberts seems to believe that this viewpoint discrimination is OK because it creates “no restrictions” on expression. If that’s true, I am not sure how Roberts can justify his opinion in 2011’s Arizona Free Enterprise v. Bennett, a 5–4 decision striking down a key component of Arizona’s publicly financed elections. Under the law, Arizona provided funds to publicly financed candidates that roughly matched the amount spent by their opponents. The goal was to create competitive races by ensuring that all candidates had sufficient resources to campaign.

Arizona’s law created “no restrictions” on expression and certainly didn’t penalize speech on the basis of viewpoint. But Roberts and the conservative justices struck it down anyway, writing that it “substantially burdens the speech of privately financed candidates” by frightening them into spending less. Really? According to Roberts, a law designed to increase political speech by helping more candidates participate in elections “substantially burdens protected political speech” because it dissuades big donors from writing bigger checks. To Justice Elena Kagan, writing in dissent, that was pure madness. “The system discriminated against no ideas and prevented no speech,” she wrote. To the contrary, it plainly furthered “First Amendment values.”

It is difficult to understand a theory of the First Amendment that permits partisan gerrymandering (in part because it imposes “no restrictions” on voters’ expression) while forbidding a matching-fund campaign finance scheme (because it “burdens” big donors’ speech). Roberts’ decisions in Rucho and Arizona Free Enterprise cannot be squared. The only plausible explanation is that the chief justice values the expression of high-dollar donors more than he values the expression of voters. “There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts wrote in another decision striking down campaign finance restrictions. Apparently, that right applies with greater force to billionaires writing checks than it does to voters casting ballots.

Hyper-sensitivity for the freedom of expression of billionaires. No sensitivity for the freedom of expression of average voters experiencing hyper-partisan gerrymandering. That’s the legal standard now.

How Rucho v. Common Cause Became a Victory for Billionaires and Big Corporations vs Everyone Else

But as the next article points out, as devastating as the Supreme Court’s decision on gerrymandering is to American democracy and the basic principle of majority rule and equal representation, it’s important to keep in mind that this devastating blow is just one blow in a much broader anti-democracy agenda designed to blow up democracy and permanently implement America’s real ‘elite’ agenda.

In 2010, Karl Rove was completely out in the open about the intent of the Republicans to maximize the partisan gerrymandering during the then-upcoming redistricting cycle in 2011. He even wrote an op-ed in the Wall Street Journal advocating exactly that. Those efforts morphed into the Republican State Leadership Committee’s “Project REDMAP”, a shadow-money-financed national campaign to strategically target state races and governorships that would be most helpful giving the GOP control the 2011 redistricting process and then maximize the partisan gerrymandering.

It’s worth noting that Thomas Hofeller, the Republican Party’s go-to expert on gerrymandering who died last year, provided REDMAP with the expertise on using demographic data to draw district lines for maximum partisan advantage. Hofeller’s personal documents are now at the center of the ongoing legal dispute over whether or not to add a citizenship question to the census because the documents clearly establish that Hofeller was intentionally trying to reduce the voting power of Democrats and Hispanics while boosting the voting power of “Republicans and non-Hispanic Whites” by adding a citizenship question to the census. So the personal documents of the gerrymandering guru the Republicans relied on to maximize their partisan gerrymandering in 2011 reveal that he was also trying to use the citizenship census question to dilute the voting power of Democrats and Hispanics and bolster the voting power of Whites and Republicans. That’s in their own words.

As the article also points out, North Carolina Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was even more blunt during in a 2016 statehouse speech about his partisan motives for drawing the gerrymandered map. Lewis flatly state, “I think electing Republicans is better than electing Democrats…So I drew this map in a way to help foster what I think is better for the country.” And according to the conservative majority on Supreme Court, it’s not possible for federal courts to say whether or not Lewis was being too partisan. And this bad faith reasoning on the part of the Supreme Court’s conservative majority is part of a broader Republican abandonment of equal representation and democracy in general that the Republicans aren’t even hiding anymore:

Vox.com

The Supreme Court, gerrymandering, and the Republican turn against democracy

A bigger threat to American democracy than Donald Trump.

By Zack Beauchamp
Jun 27, 2019, 2:30pm EDT

The Supreme Court’s Thursday morning ruling in Rucho v. Common Cause amounts to a blank check for partisan gerrymandering. Chief Justice John Roberts’s opinion holds that federal courts should not have the power to declare particular maps unconstitutional, as doing so would be “unprecedented expansion of judicial power … into one of the most intensely partisan aspects of American political life.”

What this means, in practice, is that local authorities get to decide on the shape of House and state legislative districts. Parties that control statehouses will be freer to not only cement their own hold on power but ensure that their party sends more representatives to Washington as well.

While Republicans and Democrats both gerrymander, there is no doubt that Republicans do it more and more shamelessly. North Carolina Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was admirably honest about his motives in a 2016 statehouse speech.

“I think electing Republicans is better than electing Democrats,” hhe explained. “So I drew this map in a way to help foster what I think is better for the country.”

This principle — that Republicans believe their rule is better and are willing to do whatever it takes to ensure they take and hold power — does not merely lead to gerrymandering. It has produced a whole host of undemocratic actions, at both state and federal levels, that amount to a systematic threat to American democracy. Indeed, some of the best scholarship we have on American democracy suggests that this is even more alarming than it sounds; that it fits historical patterns of democratic backsliding both in the United States and abroad.

In her dissent to Roberts’s ruling, Justice Elena Kagan wrote that “gerrymanders like the ones here may irreparably damage our system of government.” I’d take it a step further.

The Court’s ruling in Rucho reveals that there’s a threat to American democracy more subtle and yet greater than the Trump presidency: the Republican Party’s drift toward being institutionally hostile to democracy.

The Court’s ruling permits a systematic attack on democracy

Partisan gerrymandering is, on its face, an obviously anti-democratic practice. State legislators pack large numbers of voters from the opposing party into a handful of legislative districts, thus ensuring their voters dominate the bulk of districts and hand them a majority. It gives their supporters’ votes more weight, a direct violation of the core democratic principles relating to equal citizenship and representation.

Historically, both parties have engaged in partisan gerrymandering: Rucho itself concerned both the Republican map in North Carolina and a Democratic map in Maryland. But the GOP has embraced the fashion in a far more systematic and troubling fashion.

In 2010, Republican strategist Karl Rove wrote an op-ed in the Wall Street Journal advocating a significant Republican push to gerrymander legislative districts after that year’s midterm elections. Rove’s idea manifested as Project REDMAP, a dark-money campaign to support Republican candidates for state legislature and then help them redraw House districts after the 2010 census.

We first saw the results of this process in 2012, when Republicans held the House despite more Americans voting for Democratic House candidates than Republican ones. The consequences persist, making it significantly harder for Democrats to win office in places around the country.

In the 2018 election, Republicans won about 50 percent of the US House vote in North Carolina. That translated into 70 percent of House seats due to heavily gerrymandered districts. Wisconsin Democrats won every statewide election in 2018 but did not win majorities in either chamber of the state legislature. Once again, gerrymanders are to blame.

The Rucho ruling allows Republicans to continue this campaign and even escalate it, as they don’t have to worry about outrageous maps getting rolled back by federal courts.. “John Roberts … gave the Republicans a green light to gerrymander to their hearts content,” UC Irvine election law expert Rick Hasen writes at Slate.

The national Republican campaign to cement their control over state legislatures and congressional delegations is not only harder to fight back but could very well get worse.

The Republican drift against democracy — and the Court’s role in it

But gerrymandering is just one piece of a much broader GOP offensive to rig the system in their favor. This isn’t some kind of master plan to destroy democracy so much as a series of discrete tactics, each a power grab in its own right, that add up to imperil American democracy itself.

Voter ID laws pushed in Republican states have created not-insignificant barriers to voting for many black and Hispanic voters. Republican state governments have conducted voter purges that disproportionately clear minority voters from the rolls. After two elections where Republicans lost control of the governorship, North Carolina in 2016 and Wisconsin in 2018, the state legislatures stripped power from new Democratic governors before they could take office. Florida’s Republican-controlled legislature just defanged a ballot initiative passed in 2018 that would allow ex-felons to vote, literally denying the franchise to a heavily black (and thus heavily Democratic) constituency.

While these examples come from the state level, as that’s where electoral law is primarily set in the US system, they’ve been either directly supported by the national party or tacitly approved.

Meanwhile, the federal GOP has engaged in its own forms of anti-democratic politics, the most infamous example being Senate Majority Leader Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination. Republicans in Congress have refused to consider statehood proposals for DC and Puerto Rico, essentially denying Senate and House representation for millions of US citizens. The party depends on undemocratic institutions like the Electoral College and the Senate — ones that give disproportionate weight to voters in Republican-dominated states — to maintain power, and thus needs to prevent reforms that would move the country towards a truer form of one person, one vote.

The GOP dominance of the Supreme Court has played an important role in this overall democracy-threatening drift. Under Chief Justice Roberts, the Court has struck down Voting Rights Act provisions that attempted to curtail gerrymanders along racial lines in the Shelby County case and removed restrictions on dark-money contributions in the infamous Citizens United ruling. Under Roberts, the Court is systematically removing judicial constraints on the nationwide GOP’s corrosions of democratic institutions.

“All of this talk about Roberts being the swing vote, or worried about appearances of being political: not on the issues he cares about the most, which are politics, race and power,” Hasen writes. “See Shelby County, Citizens United, and now … Rucho.”

This GOP turn didn’t arise because the party is ideologically opposed to democracy in the way that, say, fascists and Islamists are. It’s that they care more about power than they do about basic democratic principles and are willing to run roughshod over the latter if it helps them win the former. This Republican attitude is more democracy-indifferent than anti-democratic, reflecting a party so caught up in partisan combat that it can’t recognize the authoritarian road it’s traveling down.

This is part and parcel of extreme political polarization. In their book How Democracies Die, Harvard’s Daniel Ziblatt and Steven Levitsky argue that extreme polarization produces a sense among elected officials that the other party is a fundamental threat to the country’s survival, and that the consequences of allowing them to wield power will be catastrophic. This allows the party leaders to justify taking steps to undermine democracy in the name of saving the nation, which, they argue, is what the current Republican Party is doing through legislatures and the courts. Indeed, that’s essentially what Lewis, the North Carolina state representative, openly admitted.

This is much more fundamentally threatening to American democracy than the Trump presidency. Trump could do serious damage to the system, maybe even induce a constitutional crisis, but he is, on his own, neither competent enough nor institutionally powerful enough to outright destroy American democracy.

But the Republican Party’s democracy-indifferent attitude preceded the Trump presidency, and will likely survive beyond it. With Trump in power, the backing of a partisan court majority, and an electoral system that intrinsically advantages the GOP, it’s possible to imagine the party subtly rewriting the rules over time to make American democracy less and less competitive. This may even seem like a natural response, in the Republican mind, to the rise of a younger, more diverse, more progressive electorate.

A kind of quietly undemocratic America is not all that hard to imagine. In Paths Out of Dixie, Michigan political scientist Robert Mickey argues that a large swath of the United States — the entire South — was an authoritarian nation within a national democracy from the end of Reconstruction right up until the 1970s.

Jim Crow wasn’t just racially discriminatory; it was anti-democratic, rigging the system so racist whites couldn’t lose their grip on power. The transition to Southern democracy, Mickey argues, wasn’t easy and it wasn’t clean; the attitudes underpinning Southern authoritarianism have not gone away.

“The Court’s gerrymandering decision seems to lock-in an essentially non-democratic feature of American politics. Elected representatives can rig the system to remain in power indefinitely and this cannot be challenged,” writes Harvard political scientist Ryan Enos. “Combine this with the other increasingly consequential non-democratic features of the American system … and the longterm stability of the system seems worryingly compromised.”

———-

“The Supreme Court, gerrymandering, and the Republican turn against democracy” by Zack Beauchamp; Vox.com; 06/27/2019

“The Court’s ruling in Rucho reveals that there’s a threat to American democracy more subtle and yet greater than the Trump presidency: the Republican Party’s drift toward being institutionally hostile to democracy.

That’s right, the GOP’s massive legal victory in Rucho v. Common Cause that removes federal courts from questions about partisan gerrymandering isn’t just a blank check for extreme partisan gerrymandering. It’s also an implicit blessing of the Republican Party’s larger turn away from basic democratic principles.

And now local authorities get to draw their own partisan district maps, so if one party gains control of a state that party gets to legally rig the system for its own benefit without worrying about federal courts stepping in. It’s a blank check to be as extreme as possible:


The Supreme Court’s Thursday morning ruling in Rucho v. Common Cause amounts to a blank check for partisan gerrymandering. Chief Justice John Roberts’s opinion holds that federal courts should not have the power to declare particular maps unconstitutional, as doing so would be “unprecedented expansion of judicial power … into one of the most intensely partisan aspects of American political life.”

What this means, in practice, is that local authorities get to decide on the shape of House and state legislative districts. Parties that control statehouses will be freer to not only cement their own hold on power but ensure that their party sends more representatives to Washington as well.

In the 2018 election, Republicans won about 50 percent of the US House vote in North Carolina. That translated into 70 percent of House seats due to heavily gerrymandered districts. Wisconsin Democrats won every statewide election in 2018 but did not win majorities in either chamber of the state legislature. Once again, gerrymanders are to blame.

The Rucho ruling allows Republicans to continue this campaign and even escalate it, as they don’t have to worry about outrageous maps getting rolled back by federal courts.. “John Roberts … gave the Republicans a green light to gerrymander to their hearts content,” UC Irvine election law expert Rick Hasen writes at Slate.

The national Republican campaign to cement their control over state legislatures and congressional delegations is not only harder to fight back but could very well get worse.

“The Court’s gerrymandering decision seems to lock-in an essentially non-democratic feature of American politics. Elected representatives can rig the system to remain in power indefinitely and this cannot be challenged,” writes Harvard political scientist Ryan Enos. “Combine this with the other increasingly consequential non-democratic features of the American system … and the longterm stability of the system seems worryingly compromised.”

And, again, the Republican North Carolina Rep who drew one of the maps that Rucho was ruling on didn’t hide at all his motivations for drawing the map: he felt Republicans are better for the country than Democrats and openly said he drew the maps to help foster this:


While Republicans and Democrats both gerrymander, there is no doubt that Republicans do it more and more shamelessly. North Carolina Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was admirably honest about his motives in a 2016 statehouse speech.

“I think electing Republicans is better than electing Democrats,” hhe explained. “So I drew this map in a way to help foster what I think is better for the country.”

And Karl Rove was just as open about the Republicans’ plans for extreme gerrymandering in 2010. Project REDMAP was an open secret:


The Court’s ruling permits a systematic attack on democracy

Partisan gerrymandering is, on its face, an obviously anti-democratic practice. State legislators pack large numbers of voters from the opposing party into a handful of legislative districts, thus ensuring their voters dominate the bulk of districts and hand them a majority. It gives their supporters’ votes more weight, a direct violation of the core democratic principles relating to equal citizenship and representation.

Historically, both parties have engaged in partisan gerrymandering: Rucho itself concerned both the Republican map in North Carolina and a Democratic map in Maryland. But the GOP has embraced the fashion in a far more systematic and troubling fashion.

In 2010, Republican strategist Karl Rove wrote an op-ed in the Wall Street Journal advocating a significant Republican push to gerrymander legislative districts after that year’s midterm elections. Rove’s idea manifested as Project REDMAP, a dark-money campaign to support Republican candidates for state legislature and then help them redraw House districts after the 2010 census.

We first saw the results of this process in 2012, when Republicans held the House despite more Americans voting for Democratic House candidates than Republican ones. The consequences persist, making it significantly harder for Democrats to win office in places around the country.

Also keep in mind that gerrymandering is exactly the kind of issue that almost requires a federal ruling to handle it because neither party has an incentive to unilaterally ‘disarm’ and not gerrymander if the other party is doing it. This is a horrible questions send to the states for that reason alone, but that’s exactly what John Roberts just did because while Roberts might technically be a ‘swing’ vote on the court now, there’s no swinging when it comes to questions of billionaire influence over the political process. It was the Roberts Court that brought us Citizens United and unlimited anonymous political spending, after all:


The GOP dominance of the Supreme Court has played an important role in this overall democracy-threatening drift. Under Chief Justice Roberts, the Court has struck down Voting Rights Act provisions that attempted to curtail gerrymanders along racial lines in the Shelby County case and removed restrictions on dark-money contributions in the infamous Citizens United ruling. Under Roberts, the Court is systematically removing judicial constraints on the nationwide GOP’s corrosions of democratic institutions.

“All of this talk about Roberts being the swing vote, or worried about appearances of being political: not on the issues he cares about the most, which are politics, race and power,” Hasen writes. “See Shelby County, Citizens United, and now … Rucho.”

Welcome to the age of Roberts as the Supreme Court’s swing vote. When it comes to the issues Roberts cares about most – questions of race and power and pleasing billionaires – we know how the Roberts Court is going to swing.

Protecting Gerrymandering From State Courts: A Civic Project Brought to You By the Koch Brothers and ALEC

And in case it wasn’t clear that extreme partisan redistricting is a active goal of the Koch network of mega donors, here’s an article from last year describing how the Koch-backed The American Legislative Exchange Council (ALEC) has been pushing “model legislation” on state legislatures that would prevent state supreme courts from ruling on gerrymandering matters. They are literally trying to remove all checks and balances standing in the way of extreme partisan gerrymandering:

Sludge

ALEC Launches Effort to Protect Gerrymandering from Judges

Efforts to limit the courts’ role in creating district maps come as 2020 redistricting looms.

by Josefa Velasquez
Edited by Alex Kotch and Donald Shaw

Aug 20, 2018 2:48PM EDT

A conservative, industry-backed organization is pushing a proposal to ensure that issues involving redistricting are decided by state legislatures rather than by the judiciary.

The American Legislative Exchange Council (ALEC), a 501(c)(3) nonprofit that connects lawmakers and private-sector organizations to craft model legislation, introduced a draft resolution earlier this month “reaffirming the right of state legislatures to determine electoral districts.”

The draft resolution argues that intervention by state supreme courts to redistrict congressional maps “violates the fundamental rights” of residents of that state who have elected lawmakers to make such a decision.

“The courts should refrain from judicial overreach in the form of imposing redistricting schemes which have the effect of subverting the republican process intended by America’s Founding Fathers,” an ALEC summary of the draft resolution says.

Efforts to reach representatives for ALEC to discuss the draft proposal were unsuccessful. The non-profit, which until recently focused on state-level issues, has increasingly delved into national issues as former ALEC members, including Vice President Mike Pence, take high-ranking positions in the Trump administration and Congress.

The draft resolution by ALEC is part of an “increasing number of efforts to undermine the role of the judiciary,” Michael Li, the senior redistricting counsel at the Brennan Center for Justice, told Sludge.

The Brennan Center estimates that there are at least 51 bills in 16 states that seek to diminish the independence of the judicial branch either by changing how judges are selected, scaling back resources available to the judiciary, implementing disciplinary action or restricting the courts’ power to find legislative acts unconstitutional.

Unlike the courts, legislatures can be lobbied by industry officials and therefore influenced, which is why redistricting decisions should be left to the courts, Li argued.

“It’s important to have a check and balance in the process because state legislatures often are prone to be captured by special interests, especially when it comes to something like redistricting that your average member doesn’t understand and maybe never has done before—since it takes place only once every 10 years,” Li said. “In many places, it is leadership who, along with consultants and operatives—often from out of state—make the real decisions. And their goal is invariably to maximize power above all else.”

While the partisan redistricting battle has been mostly waged in federal courts, state constitutions and courts have been largely ignored, offering groups like ALEC and those in favor of partisan redistricting the opportunity to stack courts and push favorable policies, Li said in an interview.

The draft resolution by ALEC—which has been behind major laws like Stand Your Ground—also comes as several states consider independent redistricting measures on their ballots and courts around the country consider cases involving redistricting issues.

In North Carolina, voters will decide in November whether to amend the state constitution to give the Legislature more control over appointing judges. Currently, it’s up to the governor to fill judicial vacancies, in which case appointees serve until the next judicial election. But the constitutional amendment pushed by the Republican-controlled Legislature seeks to strip that power from the executive branch and put in place a nine-member commission appointed by the Legislature, the governor and the Supreme Court chief justice to select potential court appointees.

North Carolina Gov. Roy Cooper, a Democrat, has been in a constant state of war with the General Assembly, where Republicans have a supermajority in each chamber, allowing the party to easily pass legislation and override the governor’s vetoes.

In Pennsylvania, a dozen Republican lawmakers introduced legislation in March to impeach four Democratic state Supreme Court justices who ruled that the state’s congressional maps were unconstitutionally gerrymandered.

While the legislation in Pennsylvania stalled, lawmakers in neighboring West Virginia began the process of impeaching the state Supreme Court last week after allegations of lavish spending. But good government groups and Democrats say the lavish spending is the cover story of a more nefarious plot by Republicans to take control of the court.

Colorado, Michigan,, Missouri, Ohio and Utah all have ballot measures appearing before voters in November pertaining to redistricting initiatives. President Donald Trump won all of those states, with the exception of Colorado, in 2016.

———-

“ALEC Launches Effort to Protect Gerrymandering from Judges” by Josefa Velasquez; Sludge; 08/20/2018

“The American Legislative Exchange Council (ALEC), a 501(c)(3) nonprofit that connects lawmakers and private-sector organizations to craft model legislation, introduced a draft resolution earlier this month “reaffirming the right of state legislatures to determine electoral districts.”

It sounds innocuous, doesn’t it? A draft resolution “reaffirming the right of state legislatures to determine electoral districts.” And yet this draft resolution argues that intervention of state supreme courts in drawing those districts “violates the fundamental rights” of residents of that state who have elected lawmakers to make such a decision. Think about that for a second: the courts ruling on legislative actions, which is one of the core functions of the courts, is a violation of the fundamantal rights of voters because they elected lawmakers to make such a decision. It’s basically a resolution against checks and balances:


The draft resolution argues that intervention by state supreme courts to redistrict congressional maps “violates the fundamental rights” of residents of that state who have elected lawmakers to make such a decision.

“The courts should refrain from judicial overreach in the form of imposing redistricting schemes which have the effect of subverting the republican process intended by America’s Founding Fathers,” an ALEC summary of the draft resolution says.

And note one of the key distinctions between state courts and state legislatures: it’s a lot easier for private interests like the Kochs to buy off state legislators than judges:


The draft resolution by ALEC is part of an “increasing number of efforts to undermine the role of the judiciary,” Michael Li, the senior redistricting counsel at the Brennan Center for Justice, told Sludge.

The Brennan Center estimates that there are at least 51 bills in 16 states that seek to diminish the independence of the judicial branch either by changing how judges are selected, scaling back resources available to the judiciary, implementing disciplinary action or restricting the courts’ power to find legislative acts unconstitutional.

Unlike the courts, legislatures can be lobbied by industry officials and therefore influenced, which is why redistricting decisions should be left to the courts, Li argued.

“It’s important to have a check and balance in the process because state legislatures often are prone to be captured by special interests, especially when it comes to something like redistricting that your average member doesn’t understand and maybe never has done before—since it takes place only once every 10 years,” Li said. “In many places, it is leadership who, along with consultants and operatives—often from out of state—make the real decisions. And their goal is invariably to maximize power above all else.”

So as we can see, a central aspect of the attack on billionaire democracy is shifting power to the states, removing state courts from the oversight, and then buying off state legislatures and governors.

Gerrymandering the Senate By Repealing the 17th Amendment and Taking the Right to Vote for Senators Away: Another Project Brought to You By ALEC and the Kochs

And as the next article describes, there’s another major political power the Kochs and ALEC would like to see handed over exclusively to state legislatures and governors: selecting US Senators. Like it used to be. The plan is simple. Repeal the 17th Amendment and make the election of Senators exclusively up to state legislatures. It’s the kind of plan that would undoubtedly be popular with Republican party operatives and mega donors because, based on the current domination by Republicans of state governments, the GOP would pick up 17 Senate seats today and basically have a permanent Senate Majority.

So how are they planning on selling such an unpopular proposal to the rest of the public? Apparently by framing it as a “states’ rights” argument. Giving people the right to directly vote for Senators eroded states’ rights according to ALEC. In addition, they argue the cost of Senate races has spiraled out of control. Keep mind ALEC and the Koch brothers were major backers behind Citizens United which has contributed to an explosion in the cost of Senate races. But that’s the kind of bad faith arguments we should expect from the people arguing that direct election of Senators is a violation of states rights:

BillMoyers.com

ALEC and Koch Brothers Want to Gerrymander the Senate

The right wing is looking to accomplish through gerrymandering what it can’t do at the ballot box.

By Mary Bottari and David Armiak | July 18, 2017

This post originally appeared at Exposed by CMD.

Now that GOP state legislators have control over 32 state legislatures (both chambers), thanks in large part to partisan gerrymandering, some extremists are preparing to use their clout to gerrymander the US Senate.

This week in Denver, July 19-21, the American Legislative Exchange Council (ALEC) will welcome Republican state legislators and its corporate funders, including Koch Industries, ExxonMobil, K12 Inc., Peabody Energy and PhRMA, to vote on corporate legislative priorities and create cookie cutter “model” bills in task force meetings that are still closed to the press.

ALEC will welcome US Education Secretary Betsy DeVos, Labor Secretary Alexander Acosta, Secretary of the Interior Ryan Zinke, Newt Gingrich and other Trump loyalists to the meeting.

On the agenda for debate and discussion? A model bill to repeal the 17th Amendment, which established the popular election of United States senators in 1913.

Previously, US senators were selected by state legislatures and political party bosses beholden to powerful industries. The corruption scandals erupting from the wheeling and dealing fueled some of the great muckraking investigative journalism of the early 20th Century. In 1912, progressive Republican US Sen. Robert “Fighting Bob” La Follette campaigned for the popular election of US senators as a means of cracking down on political corruption and corporate control of the democracy. Reformers introduced direct primary elections, ballot initiatives and recall votes, in the same time period.

Now right-wing extremists want to roll back the clock to enable Republican state houses and Republican governors to hijack at least 10 US Senate seats held by Democrats in Republican trifecta states, and force an ever more extreme agenda through Congress.

ALEC’s Model Bill to Repeal the 17th Amendment

The “Draft Resolution Recommending Constitutional Amendment Restoring Election Of US Senators To The Legislatures Of The Sovereign States” is scheduled to be debated by ALEC’s Federalism and International Relations Task Force in Denver.

The resolution reads in part:

Section 1. The 17th article of amendment to the Constitution of the United States is hereby repealed.

Section 2. Senators shall be elected exclusively by the state legislature, upon a majority vote of legislators present and voting in a joint session. If a vacancy shall exist for more than 180 days, then the governor shall appoint the senator to serve the remainder of the vacant term. This procedure may not be modified by state initiative or referendum.

One only needs to examine the electoral map to understand why ALEC is pushing for a repeal of the 17th Amendment now.

With the majority of states under GOP control, Republicans could snatch some 17 US Senate seats from Democrats if the state legislatures are given the right to pick Senators.

ALEC politicians know that their extreme agenda of rolling back renewables, busting unions and privatizing schools is not popular with the American public and doesn’t fly at the ballot box. No state, for instance, has approved school vouchers via the ballot box, education expert Diane Ravitch tell us.

It is not easy to pass a constitutional amendment or repeal one. Only Utah has passed a resolution urging the repeal of the 17th Amendment. But a repeal would give the GOP a supermajority in the US Senate and a greatly enhanced ability to advance extremist policies.

Rationales Don’t Hold Water

This bill should be seen as the latest in a long line of ALEC bills to rig the system and rein in popular democracy. ALEC had a model resolution supporting the Electoral College; ALEC wanted to limit ballot initiatives and referendums put on the ballot by voters; ALEC stood behind the US Supreme Court’s Citizen’s United decision, and ALEC wanted to stomp on traditionally Democratic voters with voter-ID requirements and more.

ALEC has debated the repeal of the 17th Amendment before at the 2013 States and Nation Policy Summit. In the “Equal State’s Enfranchisement Act (ESEA),” ALEC required state legislatures to choose a candidate for US senator that will be placed on the ballot alongside other candidates for the general public to vote on. The Act did not call for a repeal of the 17th Amendment, but gave a leg up to a favored candidate. That draft did not become a model bill.

This latest iteration is a virtual copy of a bill on the site of a group called the Equal Justice Coalition, a small 501(c)3 nonprofit based out of Long Beach, California, run by a retired real estate developer: J. Jay Feinberg. IRS filings for the group show that it was founded in 2015 and did not report revenue until 2016, when it stated receiving $46,000.

Feinberg held a workshop on EJC’s repeal of the 17th Amendment that included John C. Eastman, founding director of the Claremont Institute‘s Center for Constitutional Jurisprudence and Trent England, executive vice president of the Oklahoma Council of Public Affairs at ALEC’s States and Nation Policy Meeting in Washington, DC in November 2016. Earlier, the trio held a “telepanel” on the subject hosted on the Claremont Institute’s site. (View the slideshow.)

In the Claremont panel and the ALEC workshop, Feinberg, Eastman and England argue that the power and sovereignty of the states has been eroded by direct election of the Senate and that the costs of US Senate elections have spun out of control.

Although the trio appears to quote a MapLight analysis stating that it now costs $10.5 million to win a US Senate seat on average, they fail to note that MapLight President Daniel Newman attributes the high cost to the 2010 US Supreme Court decision Citizens United v. FEC, which opened the door to an unlimited flow of corporate money into campaigns and elections.

Perhaps the Equal Justice Coalition should be promoting a constitutional amendment to roll back Citizens United instead.

———-

“ALEC and Koch Brothers Want to Gerrymander the Senate” By Mary Bottari and David Armiak; BillMoyers.com; 07/18/2017

“With the majority of states under GOP control, Republicans could snatch some 17 US Senate seats from Democrats if the state legislatures are given the right to pick Senators.”

A 17 Senate Seat pickup for the Republicans. That’s what repealing the 17th amendment would yield for the GOP now, and that’s before all the extreme gerrymandering makes state legislatures even more dominated by the Republicans. So it’s not hard to see why elected Republicans would support this. But what about everyone else? Well, that’s where the “states’ rights” and “races are too expensive” arguments are presumably supposed to win people over:


ALEC has debated the repeal of the 17th Amendment before at the 2013 States and Nation Policy Summit. In the “Equal State’s Enfranchisement Act (ESEA),” ALEC required state legislatures to choose a candidate for US senator that will be placed on the ballot alongside other candidates for the general public to vote on. The Act did not call for a repeal of the 17th Amendment, but gave a leg up to a favored candidate. That draft did not become a model bill.

This latest iteration is a virtual copy of a bill on the site of a group called the Equal Justice Coalition, a small 501(c)3 nonprofit based out of Long Beach, California, run by a retired real estate developer: J. Jay Feinberg. IRS filings for the group show that it was founded in 2015 and did not report revenue until 2016, when it stated receiving $46,000.

Feinberg held a workshop on EJC’s repeal of the 17th Amendment that included John C. Eastman, founding director of the Claremont Institute‘s Center for Constitutional Jurisprudence and Trent England, executive vice president of the Oklahoma Council of Public Affairs at ALEC’s States and Nation Policy Meeting in Washington, DC in November 2016. Earlier, the trio held a “telepanel” on the subject hosted on the Claremont Institute’s site. (View the slideshow.)

In the Claremont panel and the ALEC workshop, Feinberg, Eastman and England argue that the power and sovereignty of the states has been eroded by direct election of the Senate and that the costs of US Senate elections have spun out of control.

Still, it’s hard to see voters, even Republican voters, getting behind this plan. People aren’t generally in favor of not being able to vote for their representation.

The Bigger Agenda: The Kochs/ALEC Constitutional Overhaul, which is Going to Require A LOT of State Legislatures Under Koch Control

But while repealing the 17th Amendment might seem like some sort of outlandish goal that even billionaires can’t buy for themselves, when you consider the broader context of the Koch/ALEC agenda the repeal of the 17th Amendment is a relatively minor item. Because they want to repeal a lot more than just the 17th Amendment and they’d like to some some Amendments too. And they are shockingly close to achieving this. That’s because triggering Article V of the Constitution, and initiating a constitutional convention where amendments can be added and repealed, has been a right-wing goal for decades now. It takes 2/3rd of state legislatures, 34 out of 50, to pass a resolution for an Article V convention to trigger it and right now 28 states have already done so for a balanced budget amendment. Just six more states are needed. Maybe. It’s ambiguous. An Article V convention has never been triggered before and the exact rules are unclear. Different states have triggered different kinds of resolutions and some of them have rescinded those resolutions. Some state resolutions call for a constitutional convention intended to deal with specific amendment proposals while other states passed much vaguer resolutions and that’s why there are seriously concerns that even a convention called under the auspices of passing a specific set of amendments could turn into a ‘runaway’ convention where anything with enough votes can pass. And if you count all the states that have passed a resolution at all for any reason it’s already passed 34 states. It then takes 3/4 of states to approve of the proposed changes after the convention. So if a runaway convention takes place while the Republicans dominate 3/4 state legislatures there’s a serious possibility of a runaway convention that institutes a nearly irreversible far right overhaul of the US constitution. An overhaul being coordinated by and for right-wing billionaires.

The article also notes that the Supreme Court may need to rule on the unanswered questions. Questions like do the states have to call for a convention on the same topic? Must they pass resolutions with similar or identical wording? So there’s a good chance the Roberts Court will be ruling on these questions. Lovely.

Repealing the 17th Amendment is one the specific amendments most frequently proposed by the backers of an Article V convention, along with a federal balanced budget amendment and term limits. Keep in mind that while there are pluses and minuses to term limits, a balanced budget amendment is a mind-numbingly bad idea. It’s constitutionally imposing a recipe for economic disaster by mandating cuts in federal spending as the economy gets worse. It’s also a long-standing far right goal and a central goal of the right-wing billionaires because a balanced budget amendment would almost certainly likely result in a collapse of almost all federal government spending. Repealing the 16th Amendment, which allowed for a federal income tax, is another billionaire goal. And you can be sure that the push for repealing the 17th Amendment is going to include a parallel push for repealing the 16th Amendment if a constitutional convention happens.

So yes, repealing the 17th Amendment is an outlandish goal. But not as outlandish as a ‘runaway’ constitutional convention that institutes a far right overhaul of the US constitution. A ‘runaway’ constitution convention that is outlandishly feasible today thanks to the GOP’s domination of state legislatures:

Associated Press

Conservatives want to bypass usual way to amend Constitution

By MATT SEDENSKY
November 3, 2018

NEW YORK (AP) — Whatever success Republicans have amassed in taking control of all three branches of U.S. government, and whatever fate awaits them as midterm elections near, some on the right are working to cement change by amending the Constitution. And to the mounting alarm of others on all parts of the spectrum, they want to bypass the usual process.

They’re pushing for an unprecedented Constitutional convention of the states. While opponents are afraid of what such a convention would do, supporters say it is the only way to deal with the federal government’s overreach and ineptitude.

“They literally see this as the survival of the nation,” said Karla Jones, director of the federalism task force at the conservative American Legislative Exchange Council, which represents state lawmakers and offers guidance and model legislation for states to call a convention under the Constitution’s Article V.

Among the most frequently cited changes being sought: amendments enforcing a balanced federal budget, establishing term limits for members of Congress, and repealing the 17th Amendment, which put the power of electing the Senate in the hands of the public instead of state legislatures.

For the past 229 years, constitutional amendments have originated in Congress, where they need the support of two-thirds of both houses, and then the approval of at least three-quarters of the states.

But under a never-used second prong of Article V, amendments can originate in the states. Two-thirds of states — currently, 34 — must call for a convention at which three-fourths of states approve of a change.

The particulars of such a convention, though, are not laid out. Do the states have to call for a convention on the same topic? Must they pass resolutions with similar or identical wording? The U.S. Supreme Court may have to decide whether the threshold of states has been reached and, ultimately, the parameters of a convention and the rules delegates would be governed by.

A bill introduced in the U.S. House last year would direct the National Archives to compile all applications for an Article V convention.

Some believe enough states have already passed Article V resolutions, pointing to votes over the years across the country on a variety of potential amendment topics. Others contend the highest possible current count of states is 28 — the number of states with existing resolutions on the most common convention topic, a balanced budget amendment. Others point to lower total counts based on states that have passed near-identical resolutions.

Regardless, proponents of a convention believe they have momentum on their side more than any other time in American history.

“That second clause of Article V was specifically intended for a time like this, when the federal government gets out of control and when the Congress won’t deliver to the people what they want,” said Mark Meckler, a tea party leader who now heads Citizens for Self-Governance, which runs the Convention of States Project calling for an Article V convention. Legislation promoted by the group calls for a convention focused on the federal government’s budget and power, and term limits for office holders. It has passed 12 states and one legislative chamber in another 10.

The Convention of States Project says 18 other states are considering the measure.

Meckler, like other backers of a convention, believes there’s no reason why it can’t be limited in scope. Others aren’t so sure. Four states that previously had passed resolutions calling for a convention have rescinded them in recent years, often citing wariness over a “runaway” convention.

Karen Hobert Flynn, president of Common Cause, has sounded alarms on a possible convention and portrays the coast-to-coast emergence of resolutions on the issue “a game of Whack-a-Mole.”

“This is the most dangerous idea in American politics that most people know nothing about,” she said.

Nancy MacLean, a Duke University historian and author of “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” views the prospect of an Article V convention with fear — the next chapter of decades of work on the far right transforming the federal judiciary and supporting cases that go on to make broad constitutional points, all while suppressing votes and gerrymandering districts.

“The ultimate project,” MacLean said of conservatives, “is to transform our primary rules book, which is the Constitution.”

There are proponents of an Article V convention on the left who see it as a possible way to overturn the Citizens United campaign finance decision, pass the Equal Rights Amendment and otherwise address what they see as a stacked deck that has helped the GOP get an unfair advantage. But with more red states than blue ones, it seems an unlikely path to abolishing the Electoral College, reengineering apportionment of the Senate or otherwise devising a democracy they believe is more reflective of the American public’s views.

In that view, it’s baffling to some observers that conservatives are the ones pushing a convention.

“I don’t know what exactly they’re unhappy with. When I look at the current politics, it seems to me things for them are going really well,” said constitutional law professor Michael Klarman of Harvard University. “They’re already getting what they want from the Supreme Court. Gerrymandering is fine. Unlimited money in politics is fine. The Electoral College is OK. Voter purges, photo ID laws are OK. So I don’t know exactly what they’re looking for.”

Meckler acknowledges the loudest voices calling for a convention are conservative. (“You look at our website, it’s all right-wingers,” he says.) But he sees that as a reflection of a conservative culture in which the Constitution is more frequently discussed, not a reflection of the politics of it.

It’s not the first time a convention has been proposed.

In the 1890s, when the Senate refused to take up the issue of direct election of senators, states pursued a convention, falling just short. Eventually, the 17th Amendment passed in the usual way, fulfilling that aim. In the 1960s, states sought a convention over a Supreme Court decision dictating how legislative districts were apportioned.

But convention opponents have always feared that once one has been launched, it could tear up the Constitutions in all sorts of ways.

What’s to stop a convention from passing an abhorrent affront to the Founders, like an outright ban on Muslims, Klarman asks. He points to a 2009 Swiss referendum that resulted in outlawing the construction of minarets, the towers found beside mosques.

“It’s a dangerous route and an unpredictable one,” said Laurence Tribe, another Harvard University constitutional law expert.

Jones said such fears are “misguided” and that “so many stopgaps” would prevent a “runaway” convention.

“That suggests a failure of institutions that is so massive that the last thing we need to worry about is a constitutional amendment,” she said. “That would suggest that Congress failed in its duty to say, ‘Look, you dealt with an issue that is not contained in the resolution.’ That would require the judiciary to also not step in. It would require a failure of all of our democratic institutions and it would require a failure of the American people not to rise up.”

Still, several states have rescinded previous calls for a convention as lawmakers grew fearful of what it could bring.

Over the years, Nevada lawmakers have made various calls for a convention to consider a ban on abortion, to prohibit racial integration of schools and to abolish the 17th Amendment.

But when Democratic state Sen. Tick Segerblom saw how close advocates were to hitting the 34-state mark, he realized the idea was no longer far-fetched and that it would be safer to back off its Article V votes rather than take the chance of a runaway convention. So last year, he sponsored a resolution to do just that.

The goals of convention backers “are not the Democratic Party’s goals or even the Republican Party’s goals,” he said. “It’s some fringe groups.”

———-

“Conservatives want to bypass usual way to amend Constitution” by MATT SEDENSKY; Associated Press; 11/03/2018

“They literally see this as the survival of the nation,” said Karla Jones, director of the federalism task force at the conservative American Legislative Exchange Council, which represents state lawmakers and offers guidance and model legislation for states to call a convention under the Constitution’s Article V.”

Karla Jones, director of the federalism task force at ALEC, describes the advocates calling for the constitutional convention literally seeing the survival of the nation at stake. And ALEC is, of course, one of those advocates. They aren’t hiding the scope of their ambitions. Ambitions that include a balanced budget amendment in addition to repealing the 17th Amendment. 28 states have already voted for balanced budget amendments and more than 34 have voted for some amendment. That’s how close this is to happening:


Among the most frequently cited changes being sought: amendments enforcing a balanced federal budget, establishing term limits for members of Congress, and repealing the 17th Amendment, which put the power of electing the Senate in the hands of the public instead of state legislatures.

For the past 229 years, constitutional amendments have originated in Congress, where they need the support of two-thirds of both houses, and then the approval of at least three-quarters of the states.

But under a never-used second prong of Article V, amendments can originate in the states. Two-thirds of states — currently, 34 — must call for a convention at which three-fourths of states approve of a change.

A bill introduced in the U.S. House last year would direct the National Archives to compile all applications for an Article V convention.

Some believe enough states have already passed Article V resolutions, pointing to votes over the years across the country on a variety of potential amendment topics. Others contend the highest possible current count of states is 28 — the number of states with existing resolutions on the most common convention topic, a balanced budget amendment. Others point to lower total counts based on states that have passed near-identical resolutions.

Regardless, proponents of a convention believe they have momentum on their side more than any other time in American history.

And that ambiguity is why the Supreme Court might be needed to clarify whether or not the 2/3 state threshold has already been passed. Again, the Roberts court will be making this decision probably. That should go well:


The particulars of such a convention, though, are not laid out. Do the states have to call for a convention on the same topic? Must they pass resolutions with similar or identical wording? The U.S. Supreme Court may have to decide whether the threshold of states has been reached and, ultimately, the parameters of a convention and the rules delegates would be governed by.

And while the proponents are ominous assuring us not to worry about a runaway convention, Nancy MacLean warns us that a constitutional overhaul of American has been a far right project for decades. What we’re seeing now is the fruits of that labor:


“That second clause of Article V was specifically intended for a time like this, when the federal government gets out of control and when the Congress won’t deliver to the people what they want,” said Mark Meckler, a tea party leader who now heads Citizens for Self-Governance, which runs the Convention of States Project calling for an Article V convention. Legislation promoted by the group calls for a convention focused on the federal government’s budget and power, and term limits for office holders. It has passed 12 states and one legislative chamber in another 10.

The Convention of States Project says 18 other states are considering the measure.

Meckler, like other backers of a convention, believes there’s no reason why it can’t be limited in scope. Others aren’t so sure. Four states that previously had passed resolutions calling for a convention have rescinded them in recent years, often citing wariness over a “runaway” convention.

Karen Hobert Flynn, president of Common Cause, has sounded alarms on a possible convention and portrays the coast-to-coast emergence of resolutions on the issue “a game of Whack-a-Mole.”

“This is the most dangerous idea in American politics that most people know nothing about,” she said.

Nancy MacLean, a Duke University historian and author of “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” views the prospect of an Article V convention with fear — the next chapter of decades of work on the far right transforming the federal judiciary and supporting cases that go on to make broad constitutional points, all while suppressing votes and gerrymandering districts.

“The ultimate project,” MacLean said of conservatives, “is to transform our primary rules book, which is the Constitution.”

And it’s the fact that the Republican Party and the right-wing billionaires have so much power already that they can make something like this happen that raises the ironic question: What are they unhappy with? They already have a stranglehold on wealth and power in America. That existing stranglehold is why they are able to arrange for something as audacious as a constitutional convention that will repeal:


There are proponents of an Article V convention on the left who see it as a possible way to overturn the Citizens United campaign finance decision, pass the Equal Rights Amendment and otherwise address what they see as a stacked deck that has helped the GOP get an unfair advantage. But with more red states than blue ones, it seems an unlikely path to abolishing the Electoral College, reengineering apportionment of the Senate or otherwise devising a democracy they believe is more reflective of the American public’s views.

In that view, it’s baffling to some observers that conservatives are the ones pushing a convention.

“I don’t know what exactly they’re unhappy with. When I look at the current politics, it seems to me things for them are going really well,” said constitutional law professor Michael Klarman of Harvard University. “They’re already getting what they want from the Supreme Court. Gerrymandering is fine. Unlimited money in politics is fine. The Electoral College is OK. Voter purges, photo ID laws are OK. So I don’t know exactly what they’re looking for.”

Why do the most powerful people in America want to overhaul the constitution? That’s the question Americans need to start asking.

What Do the Wealthiest and Most Powerful Want? Lower Taxes And Fewer Regulations. Permanently. It’s the Kochstitution.

Fortunately, we don’t need to ask what the Kochs and other right-wing billionaires want to see from this constitutional overhaul agenda. As the following 2017 IBT article describes, a Koch-financed group called Convention of the States ran a simulated convention that year. It assumed each state gets one vote, which means the GOP would be dominating the votes at the convention. As we should expect from a Koch-backed convention simulation, it was a billionaire’s dream. The 16th amendment was repealed eliminating the income tax and raising taxes would require a 3/5 vote. Regulations would be dramatically weakened and congress would lose the ability to regulate anything that happens entirely within a state. Increasing the federal debt for a year would require a 2/3rd vote in both the House and Senate. That’s the kind of garbage that could become a constitutional amendment.

And as alarming as the idea of the Roberts Court ruling on constitutional convention questions, there’s a more alarming possibility raised by Georgetown law professor David Super: the Supreme Court doesn’t have jurisdiction. Super argues that because the Supreme Court has consistently argued that it only has jurisdiction within the constitution that could mean it could argue it doesn’t have jurisdiction of the constitutional convention. And if the Supreme Court doesn’t have jurisdiction over questions of the constitutional convention that makes it a free for all which is the great scenario for a runaway convention.

Super also notes that the ambiguous nature of the rules for triggering a convention means a “fuzzy math” argument – that the 34 state threshold can be met using any state resolution for any amendment and not for a specific resolution – can win out. And if the trigger for the convention is state count based on a conglomeration of different votes for different amendments that inherently makes the focus of the convention less likely to be limited to a specific set of amendments and more likely to become a runaway convention. In other words, ‘fuzzy math’ on the convention trigger could make the focus of the constitutional convention fuzzier too. And a fuzzy convention focus and ambiguous Supreme Court jurisdiction is the perfect recipe for a new constitution. A new constitution mostly brought to you by the Koch brothers:

International Business Times

The Koch Brothers Want A New Constitution — And They’re Closer Than You Think

By Josh Keefe
06/14/17 AT 12:30 PM

Update: The Wisconsin Assembly voted to call for a constitutional convention on Wednesday in a 54-41 vote. The Assembly also passed separate legislation that set the process for selecting convention delegates, and limited those delegates to voting on amendments related to balancing the budget.

Original Story:

The Wisconsin Assembly votes Wednesday on whether to call for a convention to change the U.S. Constitution. While that in itself is surprising — the American people have never exercised their legally enshrined right to convene a new Constitutional convention — what’s more surprising is that pro-business groups with ties to the Koch brothers have pushed for similar legislation in more than 30 states, and they’ve been remarkably successful: A dozen states have passed bills calling for a convention that would produce an altered Constitution that would likely limit federal spending and power.

According to Article V of the Constitution, just two thirds (34) of the 50 state legislatures need to call for a convention for the purposes of “proposing constitutional amendments” (no governor’s signature is required). Those amendments would then need to be ratified by three quarters of the states, currently 38, to become law. But beyond those very basic requirements, nobody knows what the rules for a convention would be, since one hasn’t occurred since the original in 1787. That single instance, Constitutional law experts warn, provides a harrowing precedent: Delegates tore up the Articles of Confederation they had convened to improve, and produced a whole new governing document.

The Wisconsin legislation, which is supported by Gov. Scott Walker, was introduced by Republican Sen. Chris Kapenga, who introduced similar legislation in January 2014 as a member of the Assembly. His bill would call a convention to pass constitutional amendments that would require the federal government to balance the budget, something that Congress will simply never do on its own, Kapenga told International Business Times.

“For the country to continue spending at this rate, where expenditures are exceeding revenues consistently, is not sustainable,” Kapenga said. “Whether it’s Democrats or Republicans in charge in Washington, it’s not getting fixed, and no solutions are being proposed to deal with it…I think this is the only option left.”

One of the two main groups pushing an Article V convention is the Convention of States, a project by Citizens for Self-Government, a nonprofit that doesn’t disclose its donors and has a variety of connections to David and Charles Koch, the billionaire industrialist brothers whose eponymous company is one of the country’s worst polluters and who have become synonymous with both overt and covert political spending in pursuit of limited government.

Another nonprofit supporting the movement is the American Legislative Exchange Council, or ALEC, an organization “dedicated to the principles of limited government, free markets and federalism” that brings corporations and lawmakers together to draft model legislation that is then introduced in the states. ALEC doesn’t disclose its members, although the group’s opposition to climate change measures, gun control and voting rights has led to a recent exodus of member corporations and lawmakers.

Another anonymous-donor group called the Balanced Budget Amendment Task Force is calling specifically for a balanced budget amendment, as its name would suggest. That group says it has 27 states on board, based on previous calls going back decades for a balanced budget amendment, starting with Indiana in 1957.

ALEC has drafted model Article V legislation and nearly identical legislation passed the state legislature in Missouri at the end of May; it called for a convention to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Texas also passed Article V legislation last month, but the bill’s language, like the Wisconsin bill, more narrowly limits convention delegates to voting on amendments that would balance the budget.

“We need to make sure it’s crystal clear that we have no legal authority outside of that discussion point,” Kapenga told IBT. The senator said the bill was not inspired by ALEC or other corporate interests and that his bill differed from ALEC’s model legislation.

“Just because somebody is pushing the same interest as me, doesn’t mean they are driving me,” Kapenga said.

Taylor attended ALEC’s 2013 conference in Chicago where Citizens for Self-Governance pitched the Article V convention to lawmakers. She told IBT she saw the same presentation that inspired Kapanga to author his bill.

“I can’t emphasize this enough: This was a call-to-action workshop,” Taylor told IBT. “This was a workshop where the legislators were told if you don’t do this, if you don’t lead this effort, if you don’t go home and push this amendment, then you will be failing the Republic. It was like a church revival… I’m sitting back there thinking ‘oh my god this is wacky.’

“I was sitting several rows behind the lead author of the bill, Chris Kapanga,” Taylor said. “He’s trying to present this as his own idea. It’s really kind of laughable. I was there. I said to myself ‘I will see this bill in six months.’ Sure enough, I saw the bill in January.”

‘Trump is not the solution’

Convention of the States is populated by Tea Party veterans. It was co-founded by Mark Meckler, co-founder of the Tea Party Patriots, and is chaired by Eric O’Keefe, veteran political operative and longtime Koch brothers ally who worked on David Koch’s 1980 presidential campaign, chaired the now-defunct Sam Adams Alliance, which trained tea party activists, co-founded the Campaign for Primary Accountability, a super PAC that supported primary challenges to incumbent lawmakers of both parties, and directs the Wisconsin Club For Growth.

On Monday, the Convention of States announced that former South Carolina Sen. Jim DeMint, R-SC, who was one of the first elected officials to embrace the Tea Party movement and was recently ousted as the head of the Heritage Foundation, had joined the group.

“I tried to rein in Washington from inside the House and Senate, then by starting the Senate Conservatives Fund to elect good conservatives, and finally as president of the Heritage Foundation, creating and promoting good, conservative policy,” Demit said in a statement. “But once I realized that Washington will never willingly return decision-making power back to the American people and the states, I began to search for another way to restrain the federal government.”

According to the Center for Media and Democracy, Koch-linked groups have donated nearly $5.4 million to Citizens for Self-Government between 2011, when the group was founded, until 2015, the last year tax records are available. IRS filings show Citizens for Self-Government funding increased from $1.8 million to $5.7 million over that period.

“The American people are fed up. Trump is not the solution. He’s a symptom of that frustration,” Meckler told USA Today earlier this week.“The American people are seeing that didn’t solve the problem, so now what? Eventually, they will come to this solution.”

‘A Very Real Threat’

Even though such a convention would be unprecedented, with no clear rules on how it would work, Constitutional law experts admit it could happen.

“I think it is very possible,” David Super, a law professor at Georgetown Law, told IBT. “It’s a very real threat.”

By using what Super calls “fuzzy math,” advocates of the effort say they are actually on the cusp of success. Article V advocates note that many states have called for conventions in decades and even centuries past. When counting those states, the total number of states calling for a constitutional convention is at 27. As Super points out, given that Republicans control Congress, the Executive and the legislatures in 32 states, it’s not hard to imagine a scenario where the “fuzzy math” is enough. If that happens and a convention is convened, Super warns, there would be no enforceable mechanism that would ensure delegates stick to the amendments they were called upon to consider, making a “runaway convention” possible.

“There’s nothing in the Constitution that provides for a limited purpose convention,” Super told IBT. There is precedent that suggests officials selected by the states become federal officials once they take office, and can’t be recalled by the states if they deviate from their stated objective, as convention proponents have argued. And, Super argued, the Supreme Court has largely established that it rules within the confines of the Constitution, so a convention would be outside of its jurisdiction.

“There is absolutely no referee,” Super said. This could open up the convention to a flood of special interest money. And there is no rule stating the convention would have to be open to the public. “We wouldn’t know if everybody with big money was working over the delegates… There are absolutely no rules at all.”

But the one rule that is clear in the current Constitution, a rule which some warn could be rewritten at a convention, is that 38 states, or three-quarters of the states, would have to ratify whatever came out of the convention.

“There is a risk of a runaway convention,” Michael Gerhardt, a constitutional law professor at the UNC School of Law told IBT. However, he said, “you could come up in theory with a relatively bizarre amendment, but you would need three-quarters of the states to ratify. That’s the presumed protection against a rogue amendment.”

But there’s no time limit for ratification. As the 27th Amendment’s 200-year wait for ratification shows, over time, state legislatures could change hands and a climb to 38 could be possible. (Congress has at times put time limits on ratification for several Constitutional amendments it sent to the states.)

Rescinding Outstanding Convention Calls

Still, the possibility of a convention is real enough that in the last few months lawmakers opposed to the idea in Nevada, New Mexico and Maryland have quietly combed through their legislative records to identify, and rescind, all previous calls for a convention so as not to have their states counted toward the 34-state threshold. In 2014, Vermont called for a constitutional convention to overturn Citizens United, but the state’s legislature recently recently rescinded that call in response to the growing Article V movement.

In Maryland, William Frick, the Democratic majority leader of the state’s House of Delegates, introduced legislation that rescinded at least four previous calls for a constitutional convention that had to do with prayer in schools and repealing income taxes, among other issues.

“We had a sense that there are groups out there looking to make radical changes to the Constitution through this convention process and we didn’t want Maryland to be contributing to that, regardless of what the ostensible subject matter was,” Frick told IBT.

A balanced budget amendment could wreak havoc on the Maryland economy, which is heavily dependent on federal jobs in nearby Washington, D.C. But experts warn the damage wouldn’t be limited to the beltway. While ALEC told IBT that exceptions to the balanced budget rules would exist for cases of war or an emergency, the natural economic cycle of recession and recovery could be exacerbated by a requirement the federal government balance its books.

In January, the Center on Budget and Politics Priorities said balanced budget amendment would “launch a vicious spiral of bad economic and fiscal policy: a weaker economy would lead to higher deficits, which would force policymakers to cut spending or raise taxes more, which would weaken the economy further.”

While nearly all states are legally required to have balanced budgets, the federal government is often there to fill the gaps and provide needed funding in the event of a recession. If the federal government were required to have balanced budgets, opponents argue, recessions would be longer and deeper, because when tax revenues fall, the government would have less money to spend on things like food stamps, unemployment insurance and investment in projects that could spur growth. Essentially, the government would be unable to use Keynesian economic tools.

For proponents, of course, this temporary pain would be an acceptable side effect for the benefits of ending the federal deficit.

A Convention Dress Rehearsal

While experts maintain there is simply no way to know what a convention would look like, what the rules are, or even who would make the rules, some groups have taken steps to turn the abstract concept of a modern constitutional convention into a concrete process. The Assembly of State Legislatures is, as the name implies, a group of state lawmakers who are developing a set of rules that could be used at a constitutional convention. The group is led by Kapanga and Missouri Democratic Sen. Jason Holsman, who introduced legislation in Missouri calling for a constitutional convention in order to implement “free and fair elections,” mirroring efforts by some on the left to use the Article V process to overturn the 2010 Citizens United Supreme Court decision.

Similar rules were developed and used at the Convention of States’ simulated convention convention in Williamsburg, Virginia, in September. Both sets of rules mandated that each state receive one vote, which means that Wyoming would have the same power at a convention as California. This would drastically tilt the balance of power at a convention toward Republicans. For example, while Hillary Clinton won the popular vote in last year’s election, she won just 20 states and the District of Columbia.

Champions of the Article V push say the simulated convention shows the process would work and wouldn’t become a free for all. “It demonstrates the convention is not going to run away,” Karla Jones, the director of ALEC’s federalism task force, told IBT. “We believe that the runaway convention is myth.”

Given that there was nothing at stake, and no special interests greasing delegate palms, it’s perhaps not surprising the simulated convention didn’t get out of hand. But the amendments the simulated convention did pass would be seen by many as radical changes to the system of American government.

The amendments passed would:

* Require a vote of two-thirds in both houses of Congress to increase the public debt for one year.

* Restrict Congress’ powers to regulate goods to only “the sale, shipment, transportation, or other movement of goods, articles or persons” across state lines. Congress would not have the power to “regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state.”

* Limit members of the House to six terms and senators to two terms.

* Give the collective states the power to void any law, statute, executive order, or regulatory rule issued by Congress, the president or regulatory agencies if three-fifths of the states vote against the federal action.

* Repeal the 16th Amendment and require a three-fifths vote by the House and Senate to increase or implement new taxes.

* Implement a mechanism that would allow a quarter of the House to declare opposition to any federal regulation. If that happened, it would trigger a congressional vote on the regulation and would require a majority of the House and Senate to affirm the regulation.

It’s hard to begin to untangle the myriad consequences of those amendments, but what’s clear is they would drastically reduce the power and scope of the federal government and radically realign the federalist system.

“This is very much abandoning everything our country has been,” Super told IBT. “This is not tweaking or improving — this is abandoning it.”

———-

“The Koch Brothers Want A New Constitution — And They’re Closer Than You Think” by Josh Keefe; International Business Times; 06/14/2017

“According to Article V of the Constitution, just two thirds (34) of the 50 state legislatures need to call for a convention for the purposes of “proposing constitutional amendments” (no governor’s signature is required). Those amendments would then need to be ratified by three quarters of the states, currently 38, to become law. But beyond those very basic requirements, nobody knows what the rules for a convention would be, since one hasn’t occurred since the original in 1787. That single instance, Constitutional law experts warn, provides a harrowing precedent: Delegates tore up the Articles of Confederation they had convened to improve, and produced a whole new governing document.”

The rules for a constitutional convention are ambiguous and the only one other example is the original constitutional converntion of 1787. And in that case they literally did have a runaway convention. The US constitution is the result of a runaway convention. So that’s a pretty powerful answer to the question of whether or not a runaway convention is possible.

And if there is a runaway convention, it’s going to be brought to us by ALEC and other Koch-backed entities like Convention of States. The Kochs have poured over $5 million into this since 2011. Another organization, the Balanced Budget Amendment Task Force, is backed by anonymous donors. Overhauling the Constitution is an elite hobby. Elite and discrete:


One of the two main groups pushing an Article V convention is the Convention of States, a project by Citizens for Self-Government, a nonprofit that doesn’t disclose its donors and has a variety of connections to David and Charles Koch, the billionaire industrialist brothers whose eponymous company is one of the country’s worst polluters and who have become synonymous with both overt and covert political spending in pursuit of limited government.

Another nonprofit supporting the movement is the American Legislative Exchange Council, or ALEC, an organization “dedicated to the principles of limited government, free markets and federalism” that brings corporations and lawmakers together to draft model legislation that is then introduced in the states. ALEC doesn’t disclose its members, although the group’s opposition to climate change measures, gun control and voting rights has led to a recent exodus of member corporations and lawmakers.

Another anonymous-donor group called the Balanced Budget Amendment Task Force is calling specifically for a balanced budget amendment, as its name would suggest. That group says it has 27 states on board, based on previous calls going back decades for a balanced budget amendment, starting with Indiana in 1957.

Convention of the States is populated by Tea Party veterans. It was co-founded by Mark Meckler, co-founder of the Tea Party Patriots, and is chaired by Eric O’Keefe, veteran political operative and longtime Koch brothers ally who worked on David Koch’s 1980 presidential campaign, chaired the now-defunct Sam Adams Alliance, which trained tea party activists, co-founded the Campaign for Primary Accountability, a super PAC that supported primary challenges to incumbent lawmakers of both parties, and directs the Wisconsin Club For Growth.

According to the Center for Media and Democracy, Koch-linked groups have donated nearly $5.4 million to Citizens for Self-Government between 2011, when the group was founded, until 2015, the last year tax records are available. IRS filings show Citizens for Self-Government funding increased from $1.8 million to $5.7 million over that period.

“The American people are fed up. Trump is not the solution. He’s a symptom of that frustration,” Meckler told USA Today earlier this week.“The American people are seeing that didn’t solve the problem, so now what? Eventually, they will come to this solution.”

And as Georgetown law professor David Super warns, the threat of a runaway convention is very real. Especially because it’s unclear what the rules are for hitting the 34 state threshold and a ‘fuzzy math’ scenario of counting any amendment resolution (and not 34 states passing the same resolution) could easily win out. And if that happens it’s a lot harder to keep the convention focused on a few pre-selected amendments making a runaway convention all the more likely:


‘A Very Real Threat’

Even though such a convention would be unprecedented, with no clear rules on how it would work, Constitutional law experts admit it could happen.

“I think it is very possible,” David Super, a law professor at Georgetown Law, told IBT. “It’s a very real threat.”

By using what Super calls “fuzzy math,” advocates of the effort say they are actually on the cusp of success. Article V advocates note that many states have called for conventions in decades and even centuries past. When counting those states, the total number of states calling for a constitutional convention is at 27. As Super points out, given that Republicans control Congress, the Executive and the legislatures in 32 states, it’s not hard to imagine a scenario where the “fuzzy math” is enough. If that happens and a convention is convened, Super warns, there would be no enforceable mechanism that would ensure delegates stick to the amendments they were called upon to consider, making a “runaway convention” possible.

And as Super warns, it’s possible the Supreme Court will rules it doesn’t have jurisdiction over a convention, which will make a runaway convention even more likely because no entity will have oversight. We don’t even know if the negotiations would have to be open to the public:


“There’s nothing in the Constitution that provides for a limited purpose convention,” Super told IBT. There is precedent that suggests officials selected by the states become federal officials once they take office, and can’t be recalled by the states if they deviate from their stated objective, as convention proponents have argued. And, Super argued, the Supreme Court has largely established that it rules within the confines of the Constitution, so a convention would be outside of its jurisdiction.

“There is absolutely no referee,” Super said. This could open up the convention to a flood of special interest money. And there is no rule stating the convention would have to be open to the public. “We wouldn’t know if everybody with big money was working over the delegates… There are absolutely no rules at all.”

But the one rule that is clear in the current Constitution, a rule which some warn could be rewritten at a convention, is that 38 states, or three-quarters of the states, would have to ratify whatever came out of the convention.

And while constitutional law professor Michael Gerhardt notes that the 3/4 threshold of states required to ratify anything coming out of a state convention will presumably protect society from the most radical results of a runaway convention, we have to keep in mind that there’s no time limit on ratification. A runaway convention could send a proposal back to the state legislature to ratify and the billionaires could spend the next century lobbying to get it ratified:


“There is a risk of a runaway convention,” Michael Gerhardt, a constitutional law professor at the UNC School of Law told IBT. However, he said, “you could come up in theory with a relatively bizarre amendment, but you would need three-quarters of the states to ratify. That’s the presumed protection against a rogue amendment.”

But there’s no time limit for ratification. As the 27th Amendment’s 200-year wait for ratification shows, over time, state legislatures could change hands and a climb to 38 could be possible. (Congress has at times put time limits on ratification for several Constitutional amendments it sent to the states.)

And note how the Republican domination of state governments would guarantee Republican domination of any convention based on the fact that a convention would likely entail using a one-state-one-vote model. Not a proportional representation model. It would be like the Senate, which is strongly skewed towards the Republicans. When the Koch-backed Convention of the States group did its convention simulation that was part of the rules and also when a bipartisan group of state lawmakers ran their own simulation to develop rules for the possibility. In both cases they assumed a one-state-one-vote model and that means Republican domination of any convention votes. And therefore Koch Brother domination of any convention votes:


A Convention Dress Rehearsal

While experts maintain there is simply no way to know what a convention would look like, what the rules are, or even who would make the rules, some groups have taken steps to turn the abstract concept of a modern constitutional convention into a concrete process. The Assembly of State Legislatures is, as the name implies, a group of state lawmakers who are developing a set of rules that could be used at a constitutional convention. The group is led by Kapanga and Missouri Democratic Sen. Jason Holsman, who introduced legislation in Missouri calling for a constitutional convention in order to implement “free and fair elections,” mirroring efforts by some on the left to use the Article V process to overturn the 2010 Citizens United Supreme Court decision.

Similar rules were developed and used at the Convention of States’ simulated convention convention in Williamsburg, Virginia, in September. Both sets of rules mandated that each state receive one vote, which means that Wyoming would have the same power at a convention as California. This would drastically tilt the balance of power at a convention toward Republicans. For example, while Hillary Clinton won the popular vote in last year’s election, she won just 20 states and the District of Columbia.

So what did the Koch’s simulated convention pass? An elimination of the 16th amendment (the income tax) and an assault on regulations. And a 2/3 vote on both chambers of congress to raise the debt. It would basically undo almost all federal government advances since the New Deal:


The amendments passed would:

* Require a vote of two-thirds in both houses of Congress to increase the public debt for one year.

* Restrict Congress’ powers to regulate goods to only “the sale, shipment, transportation, or other movement of goods, articles or persons” across state lines. Congress would not have the power to “regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state.”

* Limit members of the House to six terms and senators to two terms.

* Give the collective states the power to void any law, statute, executive order, or regulatory rule issued by Congress, the president or regulatory agencies if three-fifths of the states vote against the federal action.

* Repeal the 16th Amendment and require a three-fifths vote by the House and Senate to increase or implement new taxes.

* Implement a mechanism that would allow a quarter of the House to declare opposition to any federal regulation. If that happened, it would trigger a congressional vote on the regulation and would require a majority of the House and Senate to affirm the regulation.

It’s hard to begin to untangle the myriad consequences of those amendments, but what’s clear is they would drastically reduce the power and scope of the federal government and radically realign the federalist system.

“This is very much abandoning everything our country has been,” Super told IBT. “This is not tweaking or improving — this is abandoning it.”

“This is very much abandoning everything our country has been…This is not tweaking or improving — this is abandoning it.”

An abandonment of everything our country has been. That’s a pretty good way to describe what would happen if the Convention of the States’s constitutional convention simulation version became the new law of the land. A shriveled federal government and permanently low taxes and regulations. The Koch agenda enshrined in the constitution.

And that’s more or less the answer to the question of “what could those who have almost everything want?” Having their desires enshrined in the constitution is the answer. The future brought to you by Koch.

So let’s review what we’ve learned:

1. The Supreme Court just made a historically tragic ruling in Rucho v. Common Cause that removed federal courts from issues of partisan redistricting maps.

2. The Kochs and ALEC are working on removing state courts from partisan redistricting questions too, leaving it entirely up to state legislatures.

3. This situation means state legislators can potentially gerrymander their own districts as extremely as they want in addition to gerrymandering congressional districts, so the GOP can potentially lock in its historic domination of state governments.

4. The Kochs and ALEC are also working on repealing the 17th Amendment and returning the selection of US Senators to state legislatures. Given the GOP’s domination of state government this would net the GOP 27 Senators today.

5. The repeal effort for the 17th Amendment is part of a larger Koch/ALEC effort to trigger a constitutional convention. That 34 state threshold has already arguably been passed if ‘fuzzy math’ is used and is close to being passed if the balanced budget amendment alone is used.

6. There are no clear rules on how a constitutional convention would be run. And the Supreme Court might rule that it doesn’t have jurisdiction. It’s a perfect scenario for a runaway convention.

7. The simulated constitutional convention created by the Koch-backed Convention of the States group would be an abandonment of what the United States has become and permanently enshrine a regime of low taxes and low regulations.

So we’re basically looking at the most elaborate and diabolical tax cut ever that’s one part of a much larger capture of government. A capture of government predicated on corrupting state governments by corrupting state election laws then using those captured state governments to overhaul the constitution.

And the Supreme Court’s conservative majority seems largely cool with this agenda so far. At least with the capture of state government. That’s clearly something Justice Roberts is fine with. He championed Citizens United. He championed Rucho v. Common Cause. Roberts is clearly very protective if the rights of the billionaires to capture government. Their freedoms to do so must not be curtailed at all. And that includes the freedom to direct their captured state legislatures to draw the most hyper-partisan redistricting lines as possible. That’s a freedom Justice Roberts is very keen on protecting.

It’s all another grim reminder that elections have consequences. And one of the consequences of repeatedly electing Republicans despite the party blatantly selling out to billionaires is that elections in hyper-gerrymandered districts might not actually have consequences anymore. The outcomes will be a foregone conclusion.

So that’s one of the sleeper issues for the 2020 election: whether or not elections should have consequences. It’s an alarmingly contested issue.

Discussion

6 comments for “John Roberts Gives Bad Faith Blessing to Hyper-Partisan Gerrymandering, Paving Way for the Kochstitution.”

  1. There was a recent piece in Slate by Dahlia Lithwick and Mark Joseph Stern that contains an observation about Chief Justice Roberts that’s going to be vital for the American public to keep in mind going forward: John Roberts cleraly genuinely wants to take the Supreme Court in a far right direction and is happy to do so when given the opportunity, but he doesn’t want to be embarrassed by his rulings and he doesn’t want the public overly pissed off. In other words, Roberts is a genuine crypto-fascist. He’s happy to systematic empower the already powerful under the guise of ‘freedom of speech’ with rulings like Citizens United. And he’s happy to encourage egregious partisan gerrymandering with cases like Rucho v. Common Cause. But he’s not a guaranteed vote for the far right and will vote against the conservative majority if voting with the conservatives would otherwise push the public perception of the court too far to the right. And that means that as long as the public is paying close attention to court rulings and makes it clear that the public perception of the legacy of the Roberts Court is at risk, Roberts will be relatively well-behaved compared to his utterly shameless Republican colleagues in Congress. So public attention on the Supreme Court is now vital for the future of the United States thanks to fact that the chief justice is intent on handing the country over to the oligarchs but only if no one sees him do it:

    Slate

    John Roberts Played This Supreme Court Term Perfectly
    He will move the law as far to the right as he possibly can without breaking the court.

    By Dahlia Lithwick and Mark Joseph Stern
    June 28, 2019 1:14 PM

    When Justice Anthony Kennedy retired a year ago, it was obvious that Chief Justice John Roberts—nobody’s median anything—would become the court’s center of gravity, while remaining its center of gravitas.

    As Roberts’ first term as the court’s decisive vote in major political cases has drawn to a close, he has centered that gravity around upholding the legitimacy of the court as an institution—while pushing our nation’s laws as far to the right as possible without cracking the façade of that institutional integrity. In an age of crudeness and ugliness, the Last Reasonable Man still values moral seriousness over scoring points or throwing tantrums, much to the chagrin of the enemies on his own side.

    If there could be a one-sentence summary of his majority opinion in the term’s census case—in which the chief joined the court’s liberals to refuse to allow Donald Trump’s commerce secretary, Wilbur Ross, to add a citizenship question to the 2020 census—it would be this: “Go ahead and lie to me, but at least do it with gravitas.” Ross and his crew of Keystone Cops had attempted to add the citizenship question that would depress Hispanic response rates and boost white voting power in future redistricting, using pretextual reasons about which the secretary lied. But his goals did not offend John Roberts’ politics; that much is clear from his opinion, which accepts the premise that Ross has the right to do what he did so long as he gives a better reason next time. They offended his sense of dignity and politesse with their sloppiness. Lie better next time. That’s the real holding of this case, and it tells you what you need to know about the chief.

    To the extent Roberts is the “swing” vote, the chief justice is a very, very different swing voter than Kennedy. When Kennedy defected to join with the liberals, he was all in, ideologically and emotionally. Whether he was the fifth vote to bless marriage equality or a reluctant vote to prop up affirmative action or the right to choose, he consulted with his own conscience and made the most dignity-affording call he could muster. A conservative at heart, Kennedy was also a romantic, with grandiose notions about the centrality of the court in public life. Kennedy’s votes were about Kennedy.

    Roberts is not a romantic. He is a tactician and an able steward of the court’s path through troubled political times. It is true that he is principally concerned about the court’s legacy and his own, but it is also true that he knows exactly which lines to push before producing a public outcry, and precisely how far to push them. He was fine with Donald Trump’s racist tweets and statements that became the travel ban because they were ably covered by government lawyers (the third time around). He would not have been fine having his name tacked onto the shoddy lawyering and feeble cover-up produced by the DOJ lawyers in the census case. He will, should the opportunity arise, be mollified with better pretexts next time. Appearances matter a lot to the chief justice, and the appearance of blatant corruption and craven lawlessness offends him.

    John Roberts is, as Joan Biskupic reveals in her new biography of the man, a fundamentally political animal, and he will triangulate against politics in ways that make him an enemy to the right and a much more lethal long-term threat to the left. He will do it decorously, genteelly, and with moral seriousness not in evidence in, say, Justice Clarence Thomas’ accusations that a federal judge in the census case might as well have been a JFK conspiracy theorist. Thomas’ conservatism has arrived at a place of the theater of grievance. Roberts will continue to try to counterprogram that with the appearance of studied fairness and moderation. Does it mean that the court will continue to chart a middle course under Roberts’ leadership? Hardly. It was not charting a middle course when Kennedy held the tiller, either. But it does mean that at moments of greatest political turmoil, when the court is in the crosshairs because governmental bad behavior or Trumpian bungling puts it there, Roberts will take public sentiment into account and modulate the uproar.

    There is at least some reason to believe that recent census revelations—indicating that the citizenship question had been added thanks to the overtly racist and white supremacist values of a Republican operative—made blessing the question that much more unpalatable to the canny chief. There is, similarly, reason to believe that states passing cruel and unconstitutional abortion bans will make it harder for the chief to vote in support of TRAP laws that shutter clinics without technically banning abortion. In short, the more badly Trumpists (like Ross) and Trump enthusiasts (like Thomas) behave, the more likely Roberts will be drawn to a center, or at least to an appearance of center.

    Because there is, in fact, no real center to this court. We haven’t had a truly centrist justice since Sandra Day O’Connor retired in 2006; Kennedy was, as Jeffrey Toobin famously put it, “not a moderate but an extremist—of varied enthusiasms.” Roberts sometimes plays the role of a centrist, as when he votes to push Eighth Amendment law one centimeter to the left or tells the Trump administration to lie better when it wants to undermine civil rights. But when Roberts casts a “liberal” vote, it’s cramped and qualified, sometimes laying the groundwork for a doctrinal shift to the right. When he casts a conservative vote, meanwhile, it’s often sweeping and momentous, overturning decades of progressive precedent. Where Kennedy veered wildly left and right, the chief’s swinginess is largely a one-way ratchet. He feeds liberals a few crumbs, then breaks their hearts.

    Indeed, if Kennedy is to have a swingy successor, it won’t be Roberts or even Kennedy’s replacement on the court, Justice Brett Kavanaugh, who cast staunchly conservative votes throughout his first term. It might be Justice Neil Gorsuch. Make no mistake: Gorsuch is a rock-ribbed conservative who is no consistent friend to criminal defendants. But his skepticism of state power occasionally eclipses his Republican instincts. Twice this term, Gorsuch joined the liberals in 5–4 decisions, authoring opinions that led his conservative colleagues to accuse him of triggering an earthquake in constitutional law. After Gorsuch invalidated one criminal law as unconstitutionally vague, Kavanaugh howled that he had “destabilize[d] the criminal justice system” and led the court “off the constitutional cliff.” After Gorsuch struck down another law depriving defendants of a jury trial, Justice Samuel Alito warned that his “dangerous” opinion had “potentially revolutionary implications.”

    Do not expect Roberts to write an opinion that spurs his conservative colleagues to accuse him of being a liberal revolutionary. Don’t expect Gorsuch to do it, either, when a case has political implications. The five justices who shut partisan gerrymandering claims out of federal court forever on Thursday will stick together in the big, front-page cases unless Republican officials lie so egregiously, or break the law so incompetently, that Roberts cannot rule in their favor without embarrassing himself and bringing shame upon the court. Avoiding humiliation, personal and institutional: That appears to be Roberts’ M.O. in the Trump years. Which means the Supreme Court will do everything it can to shore up the Trump administration’s pro-business, deregulatory, anti–civil rights, pro–religious establishment, and vote-suppressive goals without openly degrading itself in service of the president. If you’re counting small blessings, that’s more than Senate Republicans have been willing to do.

    ———-

    “John Roberts Played This Supreme Court Term Perfectly” by Dahlia Lithwick and Mark Joseph Stern; Slate6/28/2019

    “As Roberts’ first term as the court’s decisive vote in major political cases has drawn to a close, he has centered that gravity around upholding the legitimacy of the court as an institution—while pushing our nation’s laws as far to the right as possible without cracking the façade of that institutional integrity. In an age of crudeness and ugliness, the Last Reasonable Man still values moral seriousness over scoring points or throwing tantrums, much to the chagrin of the enemies on his own side.”

    Upholding the facade of legitimacy for the Supreme Court as an institution at the the same time he pushes the court as far to the right as possible. That’s a pretty good description of John Roberts as Chief Justice. When he does disappoint the right-wing, it’s probably because the right-wing lawyers were so sloppy in their arguments that it would be too damaging to the Court’s reputation to rule in their favor:


    If there could be a one-sentence summary of his majority opinion in the term’s census case—in which the chief joined the court’s liberals to refuse to allow Donald Trump’s commerce secretary, Wilbur Ross, to add a citizenship question to the 2020 census—it would be this: “Go ahead and lie to me, but at least do it with gravitas.” Ross and his crew of Keystone Cops had attempted to add the citizenship question that would depress Hispanic response rates and boost white voting power in future redistricting, using pretextual reasons about which the secretary lied. But his goals did not offend John Roberts’ politics; that much is clear from his opinion, which accepts the premise that Ross has the right to do what he did so long as he gives a better reason next time. They offended his sense of dignity and politesse with their sloppiness. Lie better next time. That’s the real holding of this case, and it tells you what you need to know about the chief.

    The other main reason Roberts might disappoint the right-wing is when the public is actually paying attention to the case and demonstrably cares about the results of the ruling:


    Roberts is not a romantic. He is a tactician and an able steward of the court’s path through troubled political times. It is true that he is principally concerned about the court’s legacy and his own, but it is also true that he knows exactly which lines to push before producing a public outcry, and precisely how far to push them. He was fine with Donald Trump’s racist tweets and statements that became the travel ban because they were ably covered by government lawyers (the third time around). He would not have been fine having his name tacked onto the shoddy lawyering and feeble cover-up produced by the DOJ lawyers in the census case. He will, should the opportunity arise, be mollified with better pretexts next time. Appearances matter a lot to the chief justice, and the appearance of blatant corruption and craven lawlessness offends him.

    John Roberts is, as Joan Biskupic reveals in her new biography of the man, a fundamentally political animal, and he will triangulate against politics in ways that make him an enemy to the right and a much more lethal long-term threat to the left. He will do it decorously, genteelly, and with moral seriousness not in evidence in, say, Justice Clarence Thomas’ accusations that a federal judge in the census case might as well have been a JFK conspiracy theorist. Thomas’ conservatism has arrived at a place of the theater of grievance. Roberts will continue to try to counterprogram that with the appearance of studied fairness and moderation. Does it mean that the court will continue to chart a middle course under Roberts’ leadership? Hardly. It was not charting a middle course when Kennedy held the tiller, either. But it does mean that at moments of greatest political turmoil, when the court is in the crosshairs because governmental bad behavior or Trumpian bungling puts it there, Roberts will take public sentiment into account and modulate the uproar.

    Do not expect Roberts to write an opinion that spurs his conservative colleagues to accuse him of being a liberal revolutionary. Don’t expect Gorsuch to do it, either, when a case has political implications. The five justices who shut partisan gerrymandering claims out of federal court forever on Thursday will stick together in the big, front-page cases unless Republican officials lie so egregiously, or break the law so incompetently, that Roberts cannot rule in their favor without embarrassing himself and bringing shame upon the court. Avoiding humiliation, personal and institutional: That appears to be Roberts’ M.O. in the Trump years. Which means the Supreme Court will do everything it can to shore up the Trump administration’s pro-business, deregulatory, anti–civil rights, pro–religious establishment, and vote-suppressive goals without openly degrading itself in service of the president. If you’re counting small blessings, that’s more than Senate Republicans have been willing to do.

    So as long as the public pays attention to what Roberts is doing and cares about the Court’s actions, Roberts is much less likely to vote like a fascist. He’s like the Weeping Angel of institutional subversion. Don’t look away!

    Posted by Pterrafractyl | July 1, 2019, 1:57 pm
  2. Josh Marshall flagged a recent NPR piece about the dilemma facing Democrats over whether or not they should follow the GOP’s embrace of over-the-top gerrymandering that contains a profoundly disturbing hint from former Wisconsin governor Scott Walker about the new direction the GOP is taking in its drive to rig elections through any means necessary: According to Walker, who is now the finance chair for the National Republican Redistricting Trust, partisan gerrymandering that benefits Republicans is necessary for “fairness” because Democrats have a numeric advantage and that numeric advantage is unfair to rural areas because it gives too much power to urban areas. So according to Scott Walker, partisan gerrymandering that benefits Republicans is necessary out of fairness for rural voters so cities don’t dominate a state’s politics. And as Josh Marshall notes, this isn’t a novel argument Walker is making. Voting districts with wildly different numbers of people that systematically overrepresented rural voters were common throughout the US specifically in response to the growth of urban areas until the mid-20th century when the Supreme Court cracked down on such practices. But one big difference between the systematic overrepresentation of rural voters in the past is that the rural vote was more evenly divided between the parties in the past. It was a rural vs urban conflict that wasn’t explicitly partisan in nature. But that’s no longer the case, as Scott Walker made clear in his statements. So the next phase of the GOP’s assault on voting rights appears to focus on tapping into that history of giving rural voters outsized weight over urban voters and exploiting the fact that urban vs rural voting patterns are more partisanly divided today:

    Talking Points Memo
    Editor’s Brief

    The GOP Embraces Anti-Democratic Ideology

    Josh Marshall
    07.06.19. 2:26 pm

    Throughout American history, majoritarianism has been the dominant and usually winning political ideology. But throughout that history there’s been a persistent contrary view as well: the idea that majoritarianism isn’t the ideal but actually a problem in itself. This was the core principle of John C. Calhoun, the great ideologue of pro-slavery ideology in the decades before the Civil War. This anti-democratic ideology took further root in the final decades of the 19th century as the native born, the wealthy and the white looked for a framework to justify excluding African-Americans and an expanding population of immigrant Slavs, Jews and southern Europeans from the vote and other kinds of democratic inclusion.

    Now, we can treat it as a separate matter that what we see as the country’s democratic principles have been as often honored in the breach as the fulfillment. Moreover, much of American constitutionalism is bound up with protecting the rights of minorities against untrammeled majorities. Here though I’m focused on something distinct and separate: the creation of anti-majoritarian ideologies, fully articulated arguments for why democratic majorities should not in fact, as a matter of principle, hold political power.

    And here I want to focus on a passage in an NPR write-up about redistricting which features a quote from Scott Walker, until recently the Governor of Wisconsin and now heading up the GOP committee trying to protect gerrymandering.

    Critics fault districts that sprawl and stretch to sometimes wild extremes in order to include as many voters as possible desirable to Republicans, and exclude those considered unsympathetic — often in cities with more Democrats and nonwhite voters.

    But as Walker observed, what Democrats call “fair” maps are those that effectively advantage them instead, because of their national popular vote edge. Proportional representation isn’t always necessary, Walker argued, because he feels it gives urban areas too large of an influence over the politics of an entire state.

    If lawmakers are going to be in charge of drawing districts, they’re going to reflect partisanship one way or the other, he said.

    This is a bracingly candid statement of the position: We need to reevaluate how we define “fair”. Because if “fair” means whoever gets the most votes (i.e., proportional representation) then Republicans are at an inherent disadvantage “because of their national popular vote edge.” I don’t think my explication really goes beyond Walker’s statement really at all: what Democrats call “fair” is the candidate with the most votes winning.
    s
    Where it gets interesting, and where Walker seems to be resting his argument, is on the idea that our political society is divided into cities and non-cities (suburbs, exurbs, rural areas, everyone not living in a major conurbation). If you’re just counting numbers then that gives the cities the inherent advantage because they have … not ‘have’, they are large concentrations of people. The fix is totally in, in other words.

    This is slightly different from just saying the largest number of people shouldn’t win. And it’s worth getting our heads around the concept even if we disagree with it. If there were two countries with a dispute, no one would say that the country with more people should automatically get its way. If we have a border dispute with Mexico or Canada do we get our way just because we have a dramatic larger population? Of course not. We see states as national communities that have broadly equal standing and claims to sovereignty regardless of their size.

    Beyond the opportunism and the fact that city vs non-city has a deeply racial dimension, at a basic level Walker wants to see city and non-city as two contending entities which deserve to contend on equal terms. But of course these concepts, city and non-city or city and rural areas have no existence in American law. Nor does the idea even have a factual grounding. There are plenty of Republicans in cities and Democrats outside the cities. It is simply a broad brush way of capturing a political division in American society which Walker – and a growing number of Republicans – has formalized to explain why laws and districts should be changed to ensure that his preferred candidates win even when they get fewer votes. When you break it down, it’s really as simple as that.

    Until the middle of the 20th century, it was commonplace that legislative districts might contain vastly different numbers of people. In the Vermont General Assembly the smallest district included 36 people and the largest 35,000. The largest Nevada state Senate district included well over 100,000 people while the smallest had 568. Some of these extreme cases were mere oddities. But there was a clear and overriding pattern: rural districts were given vastly more weight so their voting power (and that of organized wealth generally) wouldn’t be overwhelmed by the cities. It was a pattern and practice that grew rapidly in the first half of the 20th century as cities and immigrant populations grew. The Supreme Court abolished this practice with a series of “one man one vote” decisions from the early 1960s, starting with Baker v Carr in 1962. In Reynolds v Sims (1964) Chief Justice Warren wrote, contra Walker, “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”

    In today’s gerrymandering battles no one seriously disputes that legislative districts should contain roughly the same number of residents. The whole issue is how much you can pick and choose residents for different districts for maximum partisan advantage. But having lost the popular vote all but once in three decades Republicans are increasingly making arguments in principle that majority rule is in fact not a good thing. And we shouldn’t ignore the fact that a massive proof of that principle is staring us in the face. In those “one man one vote” decisions the Supreme Court first outlawed malapportioned state legislative districts and then did the same for federal House districts. But of course it could not apply the same principle to the federal Senate since the representation of states rather than voters (if not trees and acres precisely) is written into the very foundation of the constitution and by definition cannot be unconstitutional. That is the foundation and built on that foundation is the choice of presidents through the electoral college.

    Of course, the advantage to small states is nothing new. It was written into the constitution by design. The difference between the biggest and smallest states is much larger today than it was in 1787. But the real difference is that the big state/small state divide has seldom lined up so clearly with the broader partisan division in the country. As long as Democrats and Republicans both had their parcels of small states it was more an oddity than anything one big political faction or the other needed to worry about. That’s changed significantly over just the last couple decades.

    All of this is part of the central dynamic of our time: Republicans increasingly turning against majority rule and a widely shared franchise because majorities, when not sliced up into gerrymandered districts or state borders, increasingly favor Democrats. That’s why we have voter ID laws. It’s why we have resistance to early voting, felon voting and basically everything else that doesn’t keep the voting electorate as small as old and as white as possible. Most of these strategies have focused on things like election security, or cost or convenience or whipped up fears about voter fraud. But that’s starting to change. The explicit embrace of special advantages for Republicans outside major urban concentrations, the explicit embrace of majority rule not being the essence of electoral fairness, is coming to the fore.

    ———-

    “The GOP Embraces Anti-Democratic Ideology” by Josh Marshall; Talking Points Memo; 07/06/2019

    “Now, we can treat it as a separate matter that what we see as the country’s democratic principles have been as often honored in the breach as the fulfillment. Moreover, much of American constitutionalism is bound up with protecting the rights of minorities against untrammeled majorities. Here though I’m focused on something distinct and separate: the creation of anti-majoritarian ideologies, fully articulated arguments for why democratic majorities should not in fact, as a matter of principle, hold political power.

    The creation of anti-majoritarian ideologies of why democratic majorities should not in fact, as a matter of principle, hold political power. As Scott Walker has made clear, it’s the next phase of GOP voter suppression. And it’s going to rely on making an urban vs rural “fairness” argument and then pointing out that the partisan divide between urban vs rural voting patterns means gerrymandering that favors Republicans by proxy benefits rural voters and therefore partisan gerrymandering that specific helps Republicans should be considered necessary for fairness:


    And here I want to focus on a passage in an NPR write-up about redistricting which features a quote from Scott Walker, until recently the Governor of Wisconsin and now heading up the GOP committee trying to protect gerrymandering.

    Critics fault districts that sprawl and stretch to sometimes wild extremes in order to include as many voters as possible desirable to Republicans, and exclude those considered unsympathetic — often in cities with more Democrats and nonwhite voters.

    But as Walker observed, what Democrats call “fair” maps are those that effectively advantage them instead, because of their national popular vote edge. Proportional representation isn’t always necessary, Walker argued, because he feels it gives urban areas too large of an influence over the politics of an entire state.

    If lawmakers are going to be in charge of drawing districts, they’re going to reflect partisanship one way or the other, he said.

    This is a bracingly candid statement of the position: We need to reevaluate how we define “fair”. Because if “fair” means whoever gets the most votes (i.e., proportional representation) then Republicans are at an inherent disadvantage “because of their national popular vote edge.” I don’t think my explication really goes beyond Walker’s statement really at all: what Democrats call “fair” is the candidate with the most votes winning.

    Beyond the opportunism and the fact that city vs non-city has a deeply racial dimension, at a basic level Walker wants to see city and non-city as two contending entities which deserve to contend on equal terms. But of course these concepts, city and non-city or city and rural areas have no existence in American law. Nor does the idea even have a factual grounding. There are plenty of Republicans in cities and Democrats outside the cities. It is simply a broad brush way of capturing a political division in American society which Walker – and a growing number of Republicans – has formalized to explain why laws and districts should be changed to ensure that his preferred candidates win even when they get fewer votes. When you break it down, it’s really as simple as that.

    All of this is part of the central dynamic of our time: Republicans increasingly turning against majority rule and a widely shared franchise because majorities, when not sliced up into gerrymandered districts or state borders, increasingly favor Democrats. That’s why we have voter ID laws. It’s why we have resistance to early voting, felon voting and basically everything else that doesn’t keep the voting electorate as small as old and as white as possible. Most of these strategies have focused on things like election security, or cost or convenience or whipped up fears about voter fraud. But that’s starting to change. The explicit embrace of special advantages for Republicans outside major urban concentrations, the explicit embrace of majority rule not being the essence of electoral fairness, is coming to the fore.

    So rural voters should be a protected class of voter who require systematic overrepresentation and because rural voters skew towards Republicans that means Republicans should be a protected class of voters. That’s the perverse next phase of the GOP’s campaign to make elections meaningless: framing the power grab as the defense of minorities…specifically Republican electoral minorities.

    Posted by Pterrafractyl | July 6, 2019, 5:54 pm
  3. Here’s a look at the kinds of dirty tricks we should expect from state legislatures the closer we get to the 2021 redistricting process: The Texas state legislature just passed a new law that allows lawmakers to conceal their emails and other communications from the public. Two Republicans authored the bill. It was characterized as simply updating some old rules and passed with almost no debate.

    The bill focuses on “legislative privilege”. The bill will allow state lawmakers and legislative employees to keep secret all communications that deal with “a legislative activity or function” and are “given privately”. Lawmakers have long had the authority to withhold many internal documents but law will extend that privilege to nearly every person who works for the legislature.

    And while the law doesn’t specifically protect communications related to the redistricting, suspicions are that protecting communications from challenges of the redistricting process was a key goal here. Part of the reason for those suspicions is the justification for the bill by its own authors. Rep. Charlie Geren defended the law as a pay to protect legislative independence. More to the point, Geren specifically cited a 2011 lawsuit during the last redistricting process over whether or not the districts were drawn in a racially discriminatory manner. As part of that lawsuit, lawmakers and legislative employees were ordered to release damning emails that helped prove that the voting maps were racially gerrymandered. Geren cited that as an example of the kind of forced release of communications that his legislation would avoid in the future.

    Due to concerns over this law obstructing legal inquiries over matters like racially biased gerrymander, the Democrats added an amendment to the law that it wouldn’t affect a court’s “rules of evidence.” But as the article points out, Rep Geren asserts that even with this amendment the law would still protect communications regarding any redistricting-related inquiries because redistricting, “would not apply to this scenario as it does not involve a criminal proceeding.”

    So it sounds like the Texas state legislature just put in place a set a rules designed to make legal challenges of the 2021 redistricting process effectively impossible, under the banner of upholding ‘legislative independence’:

    Dallas Morning News

    ‘Hide the evidence’: New Texas law may help GOP keep secrets about its redistricting strategy

    Written by Lauren McGaughy, Texas Government Reporter
    JUN 28, 2019

    AUSTIN — Texas has passed a new law that lets lawmakers conceal their emails and other communications from public scrutiny, as they prepare to redraw the state’s voting maps.

    The law’s Republican authors, North Texas’ Rep. Charlie Geren and Sen. Kelly Hancock, billed it as a housekeeping matter, a routine update to rules governing how lawmakers retain records and run debates. It passed easily with almost no discussion and little media attention.

    Geren, R-Fort Worth, later defended the new law in multiple statements to The Dallas Morning News as a way to protect the separation of powers and, specifically, legislative independence.

    But transparency advocates warn that the new measure will dramatically expand what legislative documents can be kept secret, allowing the men and women who write laws to hide why they make the decisions they do and who is influencing them to act. The bill was passed ahead of the 2021 redistricting process, leading some to worry it was written specifically to help state lawmakers and legislative staffers responsible for redrawing the Texas’ political maps to hide their tracks.

    “This is very clearly an attempt to hide communications about redistricting from any future court review,” said Nina Perales, part of a team of lawyers who successfully challenged the state’s 2011 maps. “Normally, Texas legislators have only had two options: lie or tell the truth about their motives.

    “The new bill is an attempt to create a third option, which is hide the evidence.”

    ‘Legislative privilege’

    House Bill 4181, which became law June 14, allows state lawmakers and legislative employees to keep secret all communications that deal with “a legislative activity or function” and are “given privately,” a phrase not defined in the statute.

    This “legislative privilege” extends to any discussions “among or between” the lieutenant governor; parliamentarians; members of all legislative boards, commissions, councils, departments or offices except the Texas Ethics Commission; and any “person performing services under a contract” with the Legislature.

    Communications between legislative lawyers, or their employees, and lawmakers are also confidential because of attorney-client privilege, the new law spells out. It also shifts some responsibilities from records custodians at the Texas State Library and Archives to the Texas Legislative Reference Library.

    While lawmakers have long had the authority to withhold many internal documents, this change allows nearly every person who works under the Capitol dome to cite “legislative privilege” in order to refuse to turn over almost any communication. The new law itself this privilege is necessary “to protect the public’s interest in the proper performance of the deliberative and policymaking responsibilities of the legislature” and to preserve the separation of powers.

    Joe Larsen, an Austin-based attorney who advocates for open government, said this effectively creates “a black box” that will let lawmakers and their staffs avoid accountability. The public and the press will no longer have access to their communications, including emails, memos and other documents, allowing them to keep Texans in the dark about their decisions, he added.

    It will “completely allow the legislators to control the message, keep anyone from looking behind the curtain,” said Larsen, a board member on the Freedom of Information Foundation of Texas. “It’s a power grab.”

    Little scrutiny

    The legislative privilege law was little noticed this year, when legislators were busy patting themselves on the back for passing a handful of bipartisan open government bills that improve transparency in state contracting and public meetings.

    Geren filed the bill March 8, the deadline for submitting legislation. It was referred to the Committee on House Administration, which he chairs, for debate. Members of the public were not invited to speak on the bill that day, so the hearing where it was first introduced was not recorded, his staff confirmed.

    During the bill’s introduction on the House floor on May 2, Geren described it as a cleanup measure to modernize the day-to-day workings of the legislative branch of state government.

    “The statutes governing legislative organization and operation have not been updated in probably 30 years,” Geren said. “There are other updates in this, as well as codifying what is privileged and what is confidential. … I’d be happy to take questions.”

    But there was no substantive debate on the bill that day. After Rep. Giovanni Capriglione, R-Southlake, amended it to specify which contractors can claim legislative privilege, House lawmakers approved it by a vote of 136-0.

    The bill received even less attention in the Senate. In Hancock’s Business and Commerce Committee, no one testified before it was approved 7-1. Just one person, Wendy Woodland with the Texas Library Association, registered her opposition.

    “It makes such a monumental change to how official legislative records are managed, impacting public access,” Woodland told The Dallas Morning News last week. “We never got an understanding of why this is necessary.”

    The bill passed on the Senate floor with no debate.

    Four senators voted against it: Brandon Creighton, R-Conroe; Bryan Hughes, R-Mineola; Angela Paxton, R-McKinney; and Kirk Watson, D-Austin. None responded to requests for comment to explain their votes.

    The Texas Democratic Party also declined to weigh in, and Gov. Greg Abbott, who let the bill become law without his signature, did not return inquiries.

    Rep. Briscoe Cain, a member of the hard-right Freedom Caucus, was one of six House members who abstained from voting on the measure. This week, he said he didn’t vote for it because he had ethics concerns.

    “It would have looked self-serving on my behalf as a legislator to support the bill,” Cain, R-Deer Park, told The News. He added that the complex measure passed committee and was set for a floor debate before lawmakers could properly vet it. “People didn’t know what the hell it actually did.”

    ‘Concerns about redistricting’

    In a statement to The News, Geren said the new law codifies existing practice and protects lawmakers from overreach and outside pressure.

    “Legislative privilege ‘serves important public purposes’ and ensures that members and their staffs are protected from substantial intrusions by the executive and judicial branch seeking to second guess the Legislature’s motives,” Geren said, citing a recent Texas Supreme Court case.

    He then specifically mentioned the last round of redistricting in 2011. After a legal challenge, state lawmakers and legislative employees were ordered to release damning emails that helped advocates prove the state’s voting maps were racially gerrymandered.

    Geren’s Fort Worth district was adjacent to one that the courts eventually ordered to be redrawn.

    “They reached this conclusion in part because they said the privileges were not explicitly and completely spelled out in the Legislative Council statute,” Geren said, referring to the Legislature’s nonpartisan research agency. “House Bill 4181 codifies the common law of legislative privilege, developed from the Speech and Debate Clause of the Texas Constitution, as traditionally understood by the Legislature and the Texas courts.”

    Rep. Chris Turner, who leads the House Democratic Caucus, was immediately worried about the bill’s intent.

    “I specifically raised the concern about redistricting,” Turner, D-Grand Prairie, said. “This bill could serve as a barrier to discovery of very relevant documents and communications in the legal process around redistricting or other matters.”

    So he amended it, saying the bill did not affect a court’s “rules of evidence,” in the hopes that Texas would again have to comply with a judge’s requests for documents if the state is sued over its 2021 voting maps.

    “There’s already federal judicial precedent of breaking this type of legislative privilege if plaintiffs can demonstrate the need to do so,” Turner added. “I believe the amendment will help fortify that ability, but obviously we will have to see if this is ever put to the test.”

    But it’s unclear whether Turner’s amendment will have that effect. When asked to clarify, Geren issued another statement: “Redistricting would not apply to this scenario as it does not involve a criminal proceeding.”

    While federal judges often set aside state laws, saying federal rules or laws override them, they sometimes allow documents to be withheld if common practice dictates that legislators assume they’re communicating in confidence. But there are still “several ways” lawyers would be able to gain access to these communications. Legislative privilege can be waived or broken, or a judge can choose to set it aside.

    On Thursday, the U.S. Supreme Court ruled 5-4 that federal judges cannot curb partisan gerrymandering. However, it affirmed its authority to consider whether race was a factor in drawing voting maps.

    But even if the new law has no effect on redistricting, said Perales, the lawyer involved in the challenge of the 2011 maps, it could still help lawmakers withhold documents relate to challenges in state courts to state laws, like the ban on sanctuary cities or school finance. She remembers deposing lawmakers who cited “legislative privilege” when she was a lawyer for the Texas Latino Redistricting Task Force.

    “[The new law is] an attempt to cloak communications on lots of issues,” she said. “I am confident the tools remain to expose racial discrimination in policymaking.”

    When asked about the measure’s general effect on transparency, Turner said public records laws regarding lawmaker communications were confusing and needed to be fixed.

    “There has been ambiguity as to what is protected and what is not,” Turner said. “If in practice this proves to shut off the release of records that would previously be subject to public records, the Legislature should revisit that and make sure we’re holding us to a transparency standard.”

    ———-

    “‘Hide the evidence’: New Texas law may help GOP keep secrets about its redistricting strategy” by Lauren McGaughy; Dallas Morning News; 06/28/2019

    “But transparency advocates warn that the new measure will dramatically expand what legislative documents can be kept secret, allowing the men and women who write laws to hide why they make the decisions they do and who is influencing them to act. The bill was passed ahead of the 2021 redistricting process, leading some to worry it was written specifically to help state lawmakers and legislative staffers responsible for redrawing the Texas’ political maps to hide their tracks.”

    It’s just an innocent housekeeping matter. That’s how the advocates of the law spun it, which only adds to the concerns about the bill. But the biggest source of concern is the timing: It’s coming up right before the 2021 redistricting process. Concerns that are completely validated by one of the authors of the bill, Rep. Geren, who explicitly cites the communications involving the 2011 redistricting legal disputes, where damning emails played a role in demonstrating the districts were racially gerrymandered, as an example of the kind of communications he wanted his bill to protect:


    Geren, R-Fort Worth, later defended the new law in multiple statements to The Dallas Morning News as a way to protect the separation of powers and, specifically, legislative independence.

    ‘Concerns about redistricting’

    In a statement to The News, Geren said the new law codifies existing practice and protects lawmakers from overreach and outside pressure.

    “Legislative privilege ‘serves important public purposes’ and ensures that members and their staffs are protected from substantial intrusions by the executive and judicial branch seeking to second guess the Legislature’s motives,” Geren said, citing a recent Texas Supreme Court case.

    He then specifically mentioned the last round of redistricting in 2011. After a legal challenge, state lawmakers and legislative employees were ordered to release damning emails that helped advocates prove the state’s voting maps were racially gerrymandered.

    Geren’s Fort Worth district was adjacent to one that the courts eventually ordered to be redrawn.

    “They reached this conclusion in part because they said the privileges were not explicitly and completely spelled out in the Legislative Council statute,” Geren said, referring to the Legislature’s nonpartisan research agency. “House Bill 4181 codifies the common law of legislative privilege, developed from the Speech and Debate Clause of the Texas Constitution, as traditionally understood by the Legislature and the Texas courts.”

    And while the Democrats added an amendment that the new rules would not affect a court’s “rules of evidence,” Geran suggests that this provision wouldn’t apply to redistricting cases because redistricting questions don’t involve a criminal proceeding:


    Rep. Chris Turner, who leads the House Democratic Caucus, was immediately worried about the bill’s intent.

    “I specifically raised the concern about redistricting,” Turner, D-Grand Prairie, said. “This bill could serve as a barrier to discovery of very relevant documents and communications in the legal process around redistricting or other matters.”

    So he amended it, saying the bill did not affect a court’s “rules of evidence,” in the hopes that Texas would again have to comply with a judge’s requests for documents if the state is sued over its 2021 voting maps.

    “There’s already federal judicial precedent of breaking this type of legislative privilege if plaintiffs can demonstrate the need to do so,” Turner added. “I believe the amendment will help fortify that ability, but obviously we will have to see if this is ever put to the test.”

    But it’s unclear whether Turner’s amendment will have that effect. When asked to clarify, Geren issued another statement: “Redistricting would not apply to this scenario as it does not involve a criminal proceeding.”

    While federal judges often set aside state laws, saying federal rules or laws override them, they sometimes allow documents to be withheld if common practice dictates that legislators assume they’re communicating in confidence. But there are still “several ways” lawyers would be able to gain access to these communications. Legislative privilege can be waived or broken, or a judge can choose to set it aside.

    On Thursday, the U.S. Supreme Court ruled 5-4 that federal judges cannot curb partisan gerrymandering. However, it affirmed its authority to consider whether race was a factor in drawing voting maps.

    But even if the new law has no effect on redistricting, said Perales, the lawyer involved in the challenge of the 2011 maps, it could still help lawmakers withhold documents relate to challenges in state courts to state laws, like the ban on sanctuary cities or school finance. She remembers deposing lawmakers who cited “legislative privilege” when she was a lawyer for the Texas Latino Redistricting Task Force.

    Keep in mind that the one area of redistricting that the Supreme Court’s recent ruling left open to oversight by federal courts is questions involving racially-targeted gerrymandering. So if this law blocks communications involving legal disputes over racial gerrymandering that’s going to mean there’s effectively nothing that will prevent racial gerrymandering given the importance of such communications in establishing a racially-targeted intent or not (e.g., were the districts drawn for racial vs partisan gerrymandering purposes).

    Also keep in mind that the Supreme Court’s right-wing majority basically endorsed racial gerrymandering in 2018 in a 5-4 ruling when it found that 10 out of the 11 Texas districts that were challenged for racial gerrymandering were fine. Specifically, the case hinged on the adoption of court-ordered temporary districts in 2013. A panel of judges at the time ruled that because the temporary districts were largely based on the 2011 map that was being challenged these temporary district lines were still open to legal challenge over being racially gerrymandered. So the legislature adopted the temporary districts and called them permanent. Later a court ruled that the temporary districts were still racially gerrymandered but the legislature argued that it was just following the court’s orders. So the legislature basically played dumb in its legal defense and the Supreme Court’s conservative majority ruled in its favor last year:

    Texas Tribune

    U.S. Supreme Court rules Texas lawmakers did not intentionally discriminate in drawing political maps

    The court also upheld 10 of 11 districts that had been flagged as problematic.

    by Alexa Ura June 25, 2018 Updated: 12 PM

    Extinguishing the possibility that Texas could be placed back under federal electoral supervision over the enactment of its current political maps, the U.S. Supreme Court on Monday pushed aside claims that lawmakers intentionally discriminated against voters of color when they signed off on boundaries for the state’s congressional and state House districts in 2013.

    In a 5-4 vote, the high court upheld 10 of 11 congressional and state House districts that the maps’ challengers said intentionally undercut the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. The Supreme Court found that the evidence was “plainly insufficient” to prove that the 2013 Legislature acted in “bad faith” when it enacted the districts.

    The one exception was Fort Worth-based House District 90, which is occupied by Democratic state Rep. Ramon Romero and was deemed an impermissible racial gerrymander because lawmakers illegally used race as the predominant factor in deciding its boundaries.

    The Supreme Court’s ruling, which keeps all but one of the state’s districts in place through the end of the decade, is a major blow to the maps’ challengers — civil rights groups, voters of color and Democratic lawmakers — who have been fighting the Republican-controlled Legislature’s adjustment of district boundaries since 2011.

    That year, Republicans were forced to grapple with how to redraw the state’s political maps to account for 2010 U.S. census numbers that showed that the state’s demographics were shifting against them. Most of the state’s growth was attributable to people of color, particularly Hispanics, who are more likely to vote for Democrats. Still, lawmakers managed to redraw electoral maps to add more Republican-friendly districts, particularly in Congress where Republicans gained three surefire districts and Democrats gained just one.

    The maps lawmakers first drew in 2011 to account for that growth never actually went into effect because they were immediately tied up in litigation over claims they were unfair to voters of color.

    The current litigation focused instead on Republicans’ actions in 2013, when lawmakers adopted temporary maps that a three-judge federal panel in San Antonio had ordered up in 2012 amid legal wrangling over the 2011 maps.

    The San Antonio panel of judges at the time had warned that the interim maps — based largely on the state’s original map-drawing — were meant to be temporary and that districts could still be subject to legal scrutiny. After lawmakers adopted those maps, the lower court ruled that lawmakers intentionally discriminated against voters of color in their 2011 maps and that the 2013 maps were tainted by that same discrimination in places where district boundaries were left unchanged.

    But on Monday, the conservative majority of the Supreme Court sided with the state’s lawyers who had argued that they could not have discriminated against voters of color in 2013 because they simply “embraced” maps that the lower court had deemed were okay.

    Writing for the majority, Justice Samuel Alito echoed conservatives’ remarks during oral arguments that state lawmakers had earned the presumption of good faith when they leaned on the map the lower court approved, which “gave the Legislature a sound basis” for believing that the maps were legally sound. Alito pointed to the lower court’s “careful analysis” of legal claims at play and “detailed examination” of individual districts, some of which were modified.

    “Its work was anything but slapdash,” Alito wrote. “All these facts gave the Legislature good reason to believe that the court-approved interim plans were legally sound.”

    HD 90, which the high court upheld as a racial gerrymander, was virtually the only district that lawmakers significantly readjusted in 2013.

    Alito also said the lower court “committed a fundamental legal error” when it held the 2013 Legislature liable for not curing any “unlawful intent” behind the 2011 maps.

    Even if the lower court found the 2013 Legislature acted with discriminatory intent, “the problem is that, in making that finding, it relied overwhelmingly on what it perceived to be the 2013 Legislature’s duty to show that it had purged the bad intent of its predecessor,” Alito noted.

    Joined by the court’s three other liberal justices, Justice Sonia Sotomayor denounced the majority’s opinion as a “disregard of both precedent and fact” in light of the “undeniable proof of intentional discrimination” against voters of color.

    “Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will,” Sotomayor wrote. “The fundamental right to vote is too precious to be disregarded in this manner.”

    In siding with the state, the Supreme Court tossed out claims of intentional vote dilution in state House districts in Nueces County and Bell County, as well as claims that Hispanic voters were “packed” into Dallas County districts to minimize their influence in surrounding districts. The high court also rejected challenges to Congressional District 27 — where the lower court said lawmakers diluted the votes of Hispanics in Nueces County — and Congressional District 35, which the lower court flagged as an impermissible racial gerrymander.

    But perhaps most significant on the voting rights front was the Supreme Court’s ruling that the state could be not be held liable for intentional discrimination of Hispanic and black voters in the 2013 case.

    The Texas redistricting case was largely seen as a possible test case for the effectiveness of the Voting Rights Act after the Supreme Court in 2013 gutted the portion of the law that for decades required Texas and other states and localities to obtain the federal government’s permission to change their election laws, a safeguard for voters of color called preclearance. The Supreme Court wiped clean the list in 2013 and lifted federal oversight for Texas and other jurisdictions, noting that conditions for voters of color had “dramatically improved.”

    But the court left open the possibility that future, purposeful discrimination could mean a return to preclearance. And the lower court’s finding of intentional discrimination in the Texas redistricting case was key to efforts by advocates for voters of color to persuade the courts to put Texas back under federal oversight of its election laws.

    After years of litigation, Monday’s loss in the redistricting case — coupled with failed efforts to challenge the state’s voter identification law on discriminatory grounds — nixes the possibility that the state will be placed back under preclearance.

    Texas Attorney General Ken Paxton, whose office defended the maps in court, praised the ruling as a win for Texans who want the “power to govern themselves.”

    “The court rightly recognized that the Constitution protects the right of Texans to draw their own legislative districts, and rejected the misguided efforts by unelected federal judges to wrest control of Texas elections from Texas voters,” he said in a statement.

    ———-

    “U.S. Supreme Court rules Texas lawmakers did not intentionally discriminate in drawing political maps” by Alexa Ura; Texas Tribune; 06/25/2018

    “In a 5-4 vote, the high court upheld 10 of 11 congressional and state House districts that the maps’ challengers said intentionally undercut the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. The Supreme Court found that the evidence was “plainly insufficient” to prove that the 2013 Legislature acted in “bad faith” when it enacted the districts.

    So the Texas legislature wasn’t acting in “bad faith” when it made the temporary court-ordered districts the permanent districts because the court ordered it despite the fact that the court that ordered those temporary districts made clear that these districts were temporary and still open to challenge because they were based on the original 2011 districts that were being challenged. That was the Supreme Court’s bad faith redistricting ruling last year. A bad faith ruling about a lack of bad faith.

    And note how obvious it was that the 2011 gerrymandering was based on race: most of Texas’s population growth over the prior decade was in people of color who are more likely to vote Democrat and yet the new districts added more Republicans. Those districts immediately get challenged. Then in 2013, the legislature adopts temporary maps that a federal court ordered in 2012. When the courts ordered these temporary maps it made clear they were meant to be temporary and still subject to legal scrutiny. So the legislatures implements the temporary maps and the courts ruling that these temporary maps are indeed racially discriminatory but the Republicans argue that they couldn’t be discriminating because they were simply implementing the court-ordered maps. That’s how bad faith this all is…they argued that court ordered maps that the court said could be challenged can’t actually be challenged and the Supreme Court agrees with them:


    The Supreme Court’s ruling, which keeps all but one of the state’s districts in place through the end of the decade, is a major blow to the maps’ challengers — civil rights groups, voters of color and Democratic lawmakers — who have been fighting the Republican-controlled Legislature’s adjustment of district boundaries since 2011.

    That year, Republicans were forced to grapple with how to redraw the state’s political maps to account for 2010 U.S. census numbers that showed that the state’s demographics were shifting against them. Most of the state’s growth was attributable to people of color, particularly Hispanics, who are more likely to vote for Democrats. Still, lawmakers managed to redraw electoral maps to add more Republican-friendly districts, particularly in Congress where Republicans gained three surefire districts and Democrats gained just one.

    The maps lawmakers first drew in 2011 to account for that growth never actually went into effect because they were immediately tied up in litigation over claims they were unfair to voters of color.

    The current litigation focused instead on Republicans’ actions in 2013, when lawmakers adopted temporary maps that a three-judge federal panel in San Antonio had ordered up in 2012 amid legal wrangling over the 2011 maps.

    The San Antonio panel of judges at the time had warned that the interim maps — based largely on the state’s original map-drawing — were meant to be temporary and that districts could still be subject to legal scrutiny. After lawmakers adopted those maps, the lower court ruled that lawmakers intentionally discriminated against voters of color in their 2011 maps and that the 2013 maps were tainted by that same discrimination in places where district boundaries were left unchanged.

    But on Monday, the conservative majority of the Supreme Court sided with the state’s lawyers who had argued that they could not have discriminated against voters of color in 2013 because they simply “embraced” maps that the lower court had deemed were okay.

    Writing for the majority, Justice Samuel Alito echoed conservatives’ remarks during oral arguments that state lawmakers had earned the presumption of good faith when they leaned on the map the lower court approved, which “gave the Legislature a sound basis” for believing that the maps were legally sound. Alito pointed to the lower court’s “careful analysis” of legal claims at play and “detailed examination” of individual districts, some of which were modified.

    “Its work was anything but slapdash,” Alito wrote. “All these facts gave the Legislature good reason to believe that the court-approved interim plans were legally sound.”…

    And note how this case was intended to be a challenges to the 2013 Supreme Court ruling that gutted the parts of the Voting Rights Act that required federal oversight of election law changes for Texas and other states with a history of racial discrimination. So the Supreme Court was also essentially condoning the discriminatory actions that almost immediately made a mockery of its repeal of that section of the Voting Rights Act:


    But perhaps most significant on the voting rights front was the Supreme Court’s ruling that the state could be not be held liable for intentional discrimination of Hispanic and black voters in the 2013 case.

    The Texas redistricting case was largely seen as a possible test case for the effectiveness of the Voting Rights Act after the Supreme Court in 2013 gutted the portion of the law that for decades required Texas and other states and localities to obtain the federal government’s permission to change their election laws, a safeguard for voters of color called preclearance. The Supreme Court wiped clean the list in 2013 and lifted federal oversight for Texas and other jurisdictions, noting that conditions for voters of color had “dramatically improved.”

    But the court left open the possibility that future, purposeful discrimination could mean a return to preclearance. And the lower court’s finding of intentional discrimination in the Texas redistricting case was key to efforts by advocates for voters of color to persuade the courts to put Texas back under federal oversight of its election laws.

    After years of litigation, Monday’s loss in the redistricting case — coupled with failed efforts to challenge the state’s voter identification law on discriminatory grounds — nixes the possibility that the state will be placed back under preclearance.

    Texas Attorney General Ken Paxton, whose office defended the maps in court, praised the ruling as a win for Texans who want the “power to govern themselves.”

    “The court rightly recognized that the Constitution protects the right of Texans to draw their own legislative districts, and rejected the misguided efforts by unelected federal judges to wrest control of Texas elections from Texas voters,” he said in a statement.

    So Texas’s legislature has found a particular legal loophole for getting formal approval for racially gerrymandered districts: wait for the case to go to court, drag it out until temporary districts based on the gerrymandered districts are ordered, and then implement those temporary districts as permanent districts.

    It’s all part of the context of the Texas legislature’s recent moves to block all communications for legislator and their staffs from the public. A move that is clearly being done in anticipation of protecting egregious redistricting plans from legal challenge but it could impact investigations into all sorts of legislative actions, not just redistricting. And it could be argued that the rule change will have the smallest impact on redistricting fights given that the Supreme Court has already pretty much given the Texas legislature permission to engage in basically any kind of redistricting abuses it desires right out in the open at this point.

    So it appears that Texas’s legislature is going to get all the ‘legislative independence’ it desires, including independence from competitive elections.

    Posted by Pterrafractyl | July 8, 2019, 2:08 pm
  4. Given that GOP is doing everything it can to make the 2020 census and 2021 redistricting/reapportionment a bonanza of gerrymandering and corruption, here’s a story that’s a reminder that when it comes to the GOP’s planned bonanzas of corruption there’s no such thing as too corrupt:

    Ari Berman has a new piece that points out an especially ominous statement President Trump made last week when he formally announced the ended of his administration’s push to get the citizenship question added to the 2020 census. When Trump announced an executive order that called on the Census Bureau to gather citizenship data separately from the census, he floated a suggested use of that data: “Some states may want to draw state and local legislative districts based upon the voter-eligible population.” It was that reference to “voter-eligible populations” that’s so ominous. Because we already knew that Trump and the GOP wanted to limit the people considered for redistricting purposes to citizens only, which would wildly benefit the GOP. But by suggesting states might consider “voter-eligible populations” only, Trump is say children shouldn’t be counted either. And given that immigrants tend to live closer to cities and tend to have more kids, many of whom citizens who were born here, the move to only count “voter-eligible populations” would allow for even more egregious gerrymandering that shifts political representation away from the state’s high-population centers and towards rural areas.

    Ex-felons in states where ex-felons can’t vote would presumably also not be counted. So when the GOP moves to ban voting rights for ex-felons (who are disproportionately non-white), they aren’t just limiting voting rights. They’re also going to be banning ex-felon representation for redistricting purposes if the GOP succeeds in limiting redistricting population counts to eligible voters only as Trump suggests.

    So it’s clear that this is some the GOP is interested in. But, of course, it gets more ominous. In 2015, the Supreme ruled on a case, Evenwel v. Abbott, that involved whether or not a state could be forced to not use total population for state legislative redistricting. The conservative challengers were suing to force Texas to abandon total population as the metric for drawing state legislative districts and instead rely on a more restrictive metric like the number of citizens or eligible voters. The Supreme Court ruled unanimously against them, with Ruth Bader Ginsberg pointing out in the majority opinion that, “Nonvoters have an important stake in many policy debates and in receiving constituent services. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.” In other words, the Supreme Court ruled that elected representatives are still responsible for representing nonvoters because nonvoters are still constituents who have a stake in policy debates and government services. The court therefore found that using total population for redistricting provides equitable political representation because because it ensures that all representatives have roughly equal numbers of constituents they need to represent. Counting total population, including kids and non-citizen immigrants, when it comes to government services is an acceptable means of achieving the mandate of balancing representation during the redistricting process. That’s what the Supreme Court unanimously ruled in 2015.

    But while the Supreme Court unanimously ruled against the challengers, the court didn’t technically rule against the idea of using a different metric other than total population for redistricting. As right-wing Supreme Court Justice Samuel Alito wrote, “Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.” It’s that ambiguity in how the Supreme Court would respond to a redistricting plan that only relied on citizen or eligible voter counts that’s so ominous about Trump’s executive order to collect citizenship counts and his floating of the idea that states might use this information for redistricting purposes. In other words, kids and non-citizens can count when it comes to redistricting count purposes, but that might not be necessarily. Which is now pretty ominous:

    Mother Jones

    Trump Dropped the Census Citizenship Question. He Could Still Shift Power to White Republicans.
    Republicans have a new plan to stop counting huge numbers of people of color.

    Ari Berman
    07/17/2019

    Last Thursday, President Donald Trump dropped his bid to add a citizenship question to the 2020 census, abandoning a push that was expected to lead to a severe undercount of communities of color. But on the same day, he made another move that could still cause a massive shift in power to white Republican areas during the next redistricting cycle in 2021.

    Trump issued an executive order calling on the Census Bureau to gather citizenship data using administrative records. In announcing the order in the White House Rose Garden, Trump suggested how that data might be used: “Some states may want to draw state and local legislative districts based upon the voter-eligible population.”

    That’s a radical proposal. GOP officials have already been contemplating drawing districts based on citizenship, which would be a huge boon for Republicans, who overwhelmingly represent areas with fewer immigrants. (Democrats represent 95 of the 100 House districts with the highest percentage of foreign-born residents.) Drawing districts based on eligible voters rather than just citizens, as Trump suggested, would benefit white Republicans even more. The overwhelming majority of American citizens who aren’t eligible to vote are children, and more than half of all children born in the United States are now nonwhite. Ceasing to count them would take even more political power away from cities, regions, and states with large minority populations.

    That might be the point. Thomas Hofeller, the GOP’s late gerrymandering mastermind who initiated the push for the citizenship question, wrote in 2015 that drawing districts based on the citizen voting-age population “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” Throughout the legal debate over the citizenship question, the administration argued, dubiously, that the question was needed to better enforce the Voting Right Act. But now Trump seems to be making clear that the intention all along was to change the system for allocating political representation.

    Republicans have tried this before—and failed. In 2015, a conservative group that had challenged the constitutionality of the Voting Rights Act sought to force the state of Texas to draw state legislative districts based on citizens or eligible voters instead of total population. Hofeller noted that this would “decrease representation for Hispanics, who tend to vote Democratic, and increase representation for white Republicans.”

    The Supreme Court unanimously ruled against the conservative challengers in Evenwel v. Abbott, finding that they could not force Texas to abandon total population as the metric for drawing legislative districts. “Nonvoters have an important stake in many policy debates and in receiving constituent services,” Justice Ruth Bader Ginsburg wrote for the court’s majority. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

    However, the court did not decide whether a state could choose to draw legislative districts based on a different standard in the future. “Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts,” Justice Samuel Alito wrote in a concurring opinion.

    Part of the problem for the conservative challengers was that states did not possess the data needed to draw districts based on citizenship. Thanks to Trump’s executive order, they will in 2021. The administration is practically begging Republican-controlled states to draw districts based on citizenship or voter eligibility during the next redistricting cycle. (That would no doubt bring a new challenge before the Supreme Court, which has moved to the right since the Evenwel decision.) “I understand that some State officials are interested in such [citizenship] data for districting purposes,” Trump wrote in his executive order. “This order will assist the [Commerce] Department in securing the most accurate and complete citizenship data so that it can respond to such requests from the States.”

    Excluding noncitizens or nonvoters from counting toward representation would facilitate a whole new round of extreme gerrymandering in 2021, especially since the Supreme Court ruled last month that federal courts cannot strike down partisan gerrymandering. GOP legislators could pack even more people of color into a small number of districts, since many of them wouldn’t be counted, leaving more majority-white and Republican districts. Using voting-eligible population instead of total population as the metric for drawing districts would exclude 55 percent of Latinos, 45 percent of Asian Americans, and 30 percent of African Americans from being counted, according to a brief filed by the Leadership Conference on Civil Rights before the Supreme Court in 2015. “This would amount to a massive shift in political power away from groups that are already disadvantaged in the political process and further concentrate power in the hands of a white plurality that does not adequately represent the full diversity of the total population,” the group said.

    ———-

    “Trump Dropped the Census Citizenship Question. He Could Still Shift Power to White Republicans.” by Ari Berman; Mother Jones; 07/17/2019

    “Trump issued an executive order calling on the Census Bureau to gather citizenship data using administrative records. In announcing the order in the White House Rose Garden, Trump suggested how that data might be used: “Some states may want to draw state and local legislative districts based upon the voter-eligible population.”

    “Some states may want to draw state and local legislative districts based upon the voter-eligible population.” Ominous words, even by GOP standards of ominousness. Limiting the redistricting count to citizens only was already a massive GOP power-grab. But limiting redistricting counts to eligible-voters only, cutting out citizen kids and ex-felons, is impressive even by GOP power grab standards. The 2011 redistricting process was a GOP power grab of historic proportions and it’s going to look like amateur hour compared to what the party has planned for 2021:


    That’s a radical proposal. GOP officials have already been contemplating drawing districts based on citizenship, which would be a huge boon for Republicans, who overwhelmingly represent areas with fewer immigrants. (Democrats represent 95 of the 100 House districts with the highest percentage of foreign-born residents.) Drawing districts based on eligible voters rather than just citizens, as Trump suggested, would benefit white Republicans even more. The overwhelming majority of American citizens who aren’t eligible to vote are children, and more than half of all children born in the United States are now nonwhite. Ceasing to count them would take even more political power away from cities, regions, and states with large minority populations.

    But it’s not just Trump and the rest of the GOP that’s making this so ominous. It’s the conservative majority on the Supreme Court that explicitly made this ominous in 2015 when Justice Alito wrote a concurring opinion that made it clear that the court hadn’t actually ruled on whether or not something other than total population could be used for redistricting purposes. Alito’s 2015 concurring opinion was an invitation for Trump’s recent push for limiting who counts for redistricting:


    Republicans have tried this before—and failed. In 2015, a conservative group that had challenged the constitutionality of the Voting Rights Act sought to force the state of Texas to draw state legislative districts based on citizens or eligible voters instead of total population. Hofeller noted that this would “decrease representation for Hispanics, who tend to vote Democratic, and increase representation for white Republicans.”

    The Supreme Court unanimously ruled against the conservative challengers in Evenwel v. Abbott, finding that they could not force Texas to abandon total population as the metric for drawing legislative districts. “Nonvoters have an important stake in many policy debates and in receiving constituent services,” Justice Ruth Bader Ginsburg wrote for the court’s majority. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

    However, the court did not decide whether a state could choose to draw legislative districts based on a different standard in the future. “Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts,” Justice Samuel Alito wrote in a concurring opinion.

    Part of the problem for the conservative challengers was that states did not possess the data needed to draw districts based on citizenship. Thanks to Trump’s executive order, they will in 2021. The administration is practically begging Republican-controlled states to draw districts based on citizenship or voter eligibility during the next redistricting cycle. (That would no doubt bring a new challenge before the Supreme Court, which has moved to the right since the Evenwel decision.) “I understand that some State officials are interested in such [citizenship] data for districting purposes,” Trump wrote in his executive order. “This order will assist the [Commerce] Department in securing the most accurate and complete citizenship data so that it can respond to such requests from the States.”

    The upcoming 2021 GOP gerrymandering bonanza was already looking like a guaranteed unprecedented power grab. And now it’s an even greater unprecedented power grab. Kids won’t count. Ex-felons won’t count. Who else won’t count by the time we get to 2021? We’ll see, but when it comes to GOP schemes it always gets worse. And let’s not forget that all of the teenagers who are going to become eligible voters over the next decade but who are under the age of 18 during the 2020 census will be extra-cheated if the eligible-voter criteria is used because they’ll be eligible voters who weren’t actually counted. And if they live in a region of the state with a relatively high number of teenagers (cities, where most of the teens live), they’ll get even more cheated because those regions are going to be super-gerrymandered under this scheme. So if any high school or junior high teachers are on the lookout for a highly topical civics issue that might engage teenage soon-to-be eligible voters, the fact that Trump and the GOP are planning on cheating teens the most when it comes to their 2021 gerrymandering power grab seems like a potentially engaging civics topic for students.

    Posted by Pterrafractyl | July 17, 2019, 11:21 pm
  5. When the Supreme Court ruled last month in that historic Rucho vs Common Cause ruling that federal courts have no jurisdiction over questions of partisan gerrymandering, it was the egregiously gerrymandered federal congressional districts of North Carolina that were under examination. So following that ruling, one of the first obvious questions was how egregiously bad the partisan gerrymandering was going to end up being for the state legislative districts in North Carolina. Because those state district lines, which were originally drawn in 2011 and then redrawn in 2017 after they were found to be illegally racially gerrymandered, are also facing court challenges. This is following a 2018 election where the Republicans won 50.3 percent of the state-wide vote for congressional seats and yet took 10 out 13 congressional seats. At the state level, the Democrats actually won a majority of the state-wide vote for both the state House and Senate and yet they still have a minority in both chambers. So here’s an update on how the trial over the NC state district lines is going:

    A state judge just threw out parts of the testimony of one of the expert witnesses for making false claims. That expert witness, Claremont McKenna College political scientist Douglas Johnson, was, of course, one of the GOP’s expert witnesses.

    The underlying charge in the lawsuit was the GOP used the district lines crafted by the now-deceased GOP gerrymandering expert Thomas Hofeller and Hofeller’s maps were fundamentally illegal because they factored in race into drawing the district lines. Hofeller’s maps were used for both the original 2011 map and the subsequent 2017 redrawn map. Recall how Hofeller’s recent death lead to the revelations that Hofeller was actively advocating for gerrymandering based on race for the purpose of increasing the political power of Republicans and white voters after his estranged daughter found his hard drive containing the documentation of this motive behind Hofeller’s proposed gerrymandering district lines. In other words, while it was completely obvious before Hofeller’s death that the GOP was intentionally trying to minimize the political representation of non-whites, the GOP could at least deny this because Hofeller’s files were secret. But now that his daughter has released those files the GOP can’t feasibly deny it anymore. Not that this has stopped them from denying it anyway.

    Those ongoing farcical denials are at the heart of the testimony by Douglas Johnson that as just thrown out by the NC state courts. The GOP had been arguing that the proposed districts found on Hofeller’s hard drive were just an independent hobby of his and had nothing to do with the districts that the NC GOP ended up drawing. Douglas Johnson, as the GOP’s expert witness, backed up this claim during his expert testimony. But upon cross-examination, Johnson had to admit that his analysis that led to his conclusion that the GOP’s district lines weren’t based on Hofeller’s proposals left out 11 of the state districts. And those 11 districts just happened to have the exact shape of the districts found in Hofeller’s files. So Hofeller just happened to leave out the districts that were identical to Hofeller’s proposed districts in his analysis. It was such obvious deception that it’s kind of amazing Johnson even tried to do it but that’s the status of the GOP’s bad faith on these matters.

    As the article also notes, one of the arguments used by the GOP in this case appears to be that rural voters should have districts draw to give them disproportionate political power in order to balance out the high-population urban centers. As part of the GOP’s defense in this case, they called the state House majority leader Republican Rep. John Bell to testify. In response to the Democrats pointing out that they won a majority of the state-wide vote for the state House and senate and yet still have a minority in both chambers and that is is robbing Democratic voters of a political voice, Bell responded that North Carolina is a rural state and rural areas tend to be more conservative. Now, to some extent, Bell was making a valid observation in that Democratic voters do tend to be highly concentrated in urban areas and that sort of creates a natural gerrymandering situation because having relatively compact geography is one of the goals of drawing districts. It’s one of the inherent challenges Democrats face on this issue. But as we’ve already seen in Wisconsin, the GOP is now arguing that rural voters really should get districts gerrymandered in their favor in order to balance the power of large Democratic-leaning urban centers. So it looks like a similar argument might be at work in this case. Or maybe Bell was arguing that even Democratic voters in rural areas should be happy with GOP representation because rural voters tend to be conservative, even rural Democratic voters. It’s unclear what exactly Bell was arguing but it doesn’t appear to be a very compelling argument. Bell went on to suggest that Democratic voters still get representation from their Republican representatives so none of this should matter anyway.

    So thanks to the Supreme Court’s ruling on NC’s gerrymandered congressional districts in Rucho v Common Cause, it’s going to be solely up to NC’s state courts to decide whether this is fine. One of the big tests going forward has been whether or not state courts would be willing to stand up to absurd gerrymandering arguments and now we have the GOP’s expert witness blatantly lying to the court at the same time one of the elected state GOP leaders was arguing that gerrymandering doesn’t matter anyway because, hey, people still get represented by someone no matter what. So this case is obviously a pretty big test of how bad things will get in the post-Rucho v Common Cause world:

    The News & Observer

    False testimony in NC gerrymandering trial? Judges exclude GOP expert witness claims

    By Will Doran
    July 25, 2019 01:01 PM, Updated

    RALEIGH

    The trial challenging North Carolina’s legislative lines as unconstitutional partisan gerrymanders took a dramatic turn Thursday when an expert witness for Republican lawmakers admitted some of his testimony on their behalf was incorrect.

    The challengers used that admission to ask that testimony by Claremont McKenna College political scientist Douglas Johnson be struck from the record.

    “His testimony in his direct (examination) is just incorrect,” said Daniel Jacobson, a lawyer who represents the redistricting reform group Common Cause NC. “The numbers are wrong.”

    The three-judge panel overseeing the case agreed to strike parts of Johnson’s testimony.

    Wake County Superior Court Judge Paul Ridgeway, who is leading the panel, said North Carolina’s rules for expert witnesses say that “his opinions must be the product of reliable methods and principles … and the principles used by Dr. Johnson were not reliable.”

    It’s not clear yet how the decision will affect the outcome of trial, which is still ongoing. But expert witness testimony is important in cases like gerrymandering challenges, which rely on highly technical arguments and data.

    A main issue has been the personal files of the late Tom Hofeller, a well-known mapmaker responsible for redistricting in North Carolina and other Republican-controlled states. Hofeller drew the maps being challenged in this case in 2017, to replace North Carolina’s maps from 2011 — which Hofeller also drew — that had been overturned as unconstitutional racial gerrymanders.

    This case is challenging the maps used to elect North Carolina’s state legislature. It’s different from the case that ended last month, which had challenged North Carolina’s maps for the U.S. House of Representatives. In that case, the U.S. Supreme Court ruled in favor of Republicans and did not overturn the congressional maps. This current case over the General Assembly maps is in state court, not federal court.

    The plaintiffs in this case, who include the North Carolina Democratic Party as well as Common Cause, say Hofeller’s files show he didn’t follow the rules when drawing North Carolina’s maps. He used racial data and completed much of his work before the legislature ever approved the rules he was supposedly bound by, they say.

    But Republican lawmakers have defended the maps they approved, saying anything on Hofeller’s personal computer was merely a hobby, and not official work for the legislature. And Johnson had testified for them that Hofeller’s personal maps were not actually all that similar to the maps the legislature ultimately approved.

    But on Thursday, Johnson admitted to several errors under cross-examination.

    Those included, in one example, an admission that his analysis left out 11 districts that had the exact same shape in both Hofeller’s personal files and in the maps that were ultimately adopted by the legislature.

    Jacobson, the Common Cause attorney, asked Johnson, “You don’t think that including those would have significantly changed your calculations?”

    Johnson responded he still stands by his findings, saying, “It would have been a change in degrees, but not a change in conclusion.”

    Jacobson continued to press Johnson on how he could stand by his findings “when you don’t know what the correct numbers are.”

    The judges agreed, ruling to strike all of Johnson’s testimony in which he compared Hofeller’s maps to the maps enacted by the General Assembly, as well as comparing Hofeller’s maps to maps Common Cause had submitted in a different court case in 2017.

    That related in part to a statement that N.C. Senate leader Phil Berger’s spokesman, Pat Ryan, made to The News & Observer earlier this month about the case.

    Ryan had said “the Hofeller play maps are more similar to what Common Cause submitted to the federal court in 2017 than the maps enacted by the legislature.”

    Jacobson asked Johnson on Thursday if Berger’s office got that information from him, and if it was based on the analysis he now admits was flawed.

    “Correct,” Johnson said. “I probably owe Pat Ryan an apology.”

    Trial nearing the end

    This trial is expected to wrap up Friday.

    Earlier this week, Johnson was one of several witnesses that Republican lawmakers called on.

    On Wednesday, Republicans called on Bill Gilkeson, a Raleigh attorney and former General Assembly staffer. After North Carolina’s 2011 maps were ruled unconstitutional, Gilkeson helped Democrats draw up proposed replacements.

    Gilkeson testified that he discussed both racial and partisan data of the districts with some Democratic lawmakers. Many of those discussions happened at the Raleigh offices of Nexus Strategies, the political consulting firm that ran Democratic Gov. Roy Cooper’s 2016 campaign.

    Gilkeson’s maps were not approved by the Republican-led legislature, which went with Hofeller’s maps instead. But since a large part of this trial focuses on Hofeller’s use of racial and partisan data, and the Democratic Party is one of the plaintiffs, Republicans highlighted Gilkeson’s testimony with strong criticism.

    The Republican lawmakers defending the maps have also called on the party’s two majority leaders in the House and Senate, Republican Sen. Harry Brown of Onslow County and Republican Rep. John Bell of Wayne County.

    The challengers in the case have claimed that since Democratic candidates statewide received a majority of the votes in 2018, but did not win a majority in either the House or the Senate, the maps unfairly deprive Democratic voters of their right to voice their opinions in state politics.

    But Bell shot back against those claims, saying that North Carolina is mostly a rural state, and rural areas tend to be more conservative. And he said that just because he’s a Republican doesn’t mean his Democratic constituents get ignored.

    “We have a number of small-town mayors who are Democratic, so we have to work together,” Bell said, listing off a litany of Democrat-led towns in his district, which covers parts of Johnston, Wayne and Greene counties. “We work together to better our district.”

    Bell also pointed out that while he represents this heavily agricultural area in the N.C. House, a Democrat represents much of the same area in the N.C. Senate. Bell said he and that Democrat, Sen. Don Davis, frequently work together on issues like hurricane relief for their constituents.

    “I represent a lot of Democrats,” Bell said. “Personally, I’m a Republican. … I’m well aware that without Democratic support and unaffiliated support, I would not get elected.”

    ———–

    “False testimony in NC gerrymandering trial? Judges exclude GOP expert witness claims” by Will Doran; The News & Observer; 07/25/2019

    “Wake County Superior Court Judge Paul Ridgeway, who is leading the panel, said North Carolina’s rules for expert witnesses say that “his opinions must be the product of reliable methods and principles … and the principles used by Dr. Johnson were not reliable.””

    “The principles used by Dr. Johnson were not reliable.” That was a rather kind of of saying Dr. Johnson flat out lied to the courts during his expert testimony. A lie intended to buttress the GOP’s blatant lies that the district maps they drew weren’t based on Thomas Hofeller’s racially gerrymandering maps:


    A main issue has been the personal files of the late Tom Hofeller, a well-known mapmaker responsible for redistricting in North Carolina and other Republican-controlled states. Hofeller drew the maps being challenged in this case in 2017, to replace North Carolina’s maps from 2011 — which Hofeller also drew — that had been overturned as unconstitutional racial gerrymanders.

    This case is challenging the maps used to elect North Carolina’s state legislature. It’s different from the case that ended last month, which had challenged North Carolina’s maps for the U.S. House of Representatives. In that case, the U.S. Supreme Court ruled in favor of Republicans and did not overturn the congressional maps. This current case over the General Assembly maps is in state court, not federal court.

    The plaintiffs in this case, who include the North Carolina Democratic Party as well as Common Cause, say Hofeller’s files show he didn’t follow the rules when drawing North Carolina’s maps. He used racial data and completed much of his work before the legislature ever approved the rules he was supposedly bound by, they say.

    But Republican lawmakers have defended the maps they approved, saying anything on Hofeller’s personal computer was merely a hobby, and not official work for the legislature. And Johnson had testified for them that Hofeller’s personal maps were not actually all that similar to the maps the legislature ultimately approved.

    But on Thursday, Johnson admitted to several errors under cross-examination.

    Those included, in one example, an admission that his analysis left out 11 districts that had the exact same shape in both Hofeller’s personal files and in the maps that were ultimately adopted by the legislature.

    And note how, even after the 11 districts identical to Hofeller’s that Johnson just happened to leave out of his analysis were discovered, Johnson continued to assert that his underlying conclusion – that the GOP’s districts weren’t based on Hofeller’s maps – wouldn’t have changed. And the GOP is claiming that Hofeller’s maps were just a hobby that had nothing to do with their own maps, despite the fact that Hofeller was the GOP’s gerrymandering guru and all those incriminating files were released by his daughter. That’s how bad faithed the GOP case is at this point.


    Jacobson, the Common Cause attorney, asked Johnson, “You don’t think that including those would have significantly changed your calculations?”

    Johnson responded he still stands by his findings, saying, “It would have been a change in degrees, but not a change in conclusion.”

    And then the Republicans leaders of the state House and Senate were invited to give their own testimonies in defense of the maps. Maps that ensure they were the majority leaders despite the fact that the Democrats won a majority of the vote for both the state House and Senate in 2018. According to Republican House Leader John Bell, the GOP’s gerrymandering isn’t robbing Democratic voters of representation because North Carolina is a rural state and rural voters tend to be conservative:


    The Republican lawmakers defending the maps have also called on the party’s two majority leaders in the House and Senate, Republican Sen. Harry Brown of Onslow County and Republican Rep. John Bell of Wayne County.

    The challengers in the case have claimed that since Democratic candidates statewide received a majority of the votes in 2018, but did not win a majority in either the House or the Senate, the maps unfairly deprive Democratic voters of their right to voice their opinions in state politics.

    But Bell shot back against those claims, saying that North Carolina is mostly a rural state, and rural areas tend to be more conservative. And he said that just because he’s a Republican doesn’t mean his Democratic constituents get ignored.

    Again, keep in mind that Republicans are arguing in other state gerrymandering cases that rural voters deserve extra political representation to balance out large urban centers. And now we have the NC state House leader arguing that gerrymandering doesn’t actually rob Democratic voters of a political voice because they’re getting represented (by Republicans) anyway.

    So as we can see, pretty much all of the NC GOP’s arguments in defense their state district gerrymandering were bad faith arguments. It’s so bad faithed that even when the GOP’s expert witness had is lies pointed out in court he continued to push his bad faith conclusions. Surprise.

    Posted by Pterrafractyl | July 25, 2019, 8:59 pm
  6. President Trump once again made clear that stoking white nationalism is going to be the core of his 2020 reelection strategy a couple days ago with his latest racist rage tweeting incident. This time he was rage-tweeting against Democratic congressman Elijah Cummings of Maryland. Cummings surprised many at the start of Trump’s term in 2017 when, as a senior member of the Congressional Black Caucus, he met with Trump and had a talk about race issues that appeared to end with Cummings optimistically giving Trump the benefit of the doubt holding out hope for a non-insanely racist Trump presidency. Trump’s ‘both sides’ Charlottesville comments pretty much ended that benefit of the doubt later that year and Trump has apparently hated Cummings extra intensity ever since. The feud flared up again on Friday when Trump disparaged the city of Baltimore, which Cummings represents, as a “rat infested” place “no human being” would want to live in:

    Why is so much money sent to the Elijah Cummings district when it is considered the worst run and most dangerous anywhere in the United States. No human being would want to live there. Where is all this money going? How much is stolen? Investigate this corrupt mess immediately!— Donald J. Trump (@realDonaldTrump) July 27, 2019

    As many have observed over the years, Trump has a pattern of using the word “infested” almost exclusively when he’s referring to places with a high non-white population. For example, in June of 2018, Trump tweeted again that Democrats want illegal immigrants to “infest” America. And in January of 2017, before he was sworn in as president, as Trump was feuding with Rep. John Lewis, whose district covers Atlanta, Trump tweeted that Lewis’s district was “in horrible shape and falling apart (and not to mention crime infested) …” in response to Lewis saying earlier that he didn’t view Trump as a legitimate president as a result of all the election shenanigans. Trump clearly like to refer to “infestations” of brown people doing bad things when making partisan attacks against Democrats. On Twitter. It’s one of Trump’s Twicks (Twitter ticks).

    It’s also important to note that Trump’s recent attack on Baltimore came minutes after Fox News ran a segment where they sent a reporter to the poorest parts of West Baltimore that are a part of Cummings’s district. So Fox News gets another ‘assist’ on this latest Presidential racist outburst. It highlights how Trump’s short-term plans of stoking white nationalist sentiments and smear/fear campaigns against America’s big cities to drive white voter turnout are also central to the GOP’s long-term plans of holding onto power in a browning America while maintaining a white nationalist brand by stoking an urban vs rural divide as part of the GOP’s divide-and-conquer hyper-partisan gerrymandering strategy. Hating on cities is a big part of the Fox News universe and right-wing media in general. And disempowering the voting power of people living in big cities is a core element of the GOP’s gerrymandering tactic at the heart of its long-term strategy for holding power while maintaining a white nationalist message.

    Portraying cities as being filled with illegally-voting immigrants and people who aren’t ‘real’ Americans is an extremely important meme for the GOP. A Republican coalition dominated by right-wing white Christian voters can hold onto power for decades to come as whites transition for majority to plurality status as a percent of the voting population, but only if they pull off extreme gerrymandering in 2021 that allows them to cement control at the state level and the House for the next decade. The Senate is already effectively gerrymandered for the GOP. It’s one reason we should expect the right-wing dirty-tricks of 2016 to be a warm-up for what’s in store for 2020, because the 2021 gerrymandering bonanza is vital for the GOP’s grip power for the 2030’s and beyond.

    And as the following December article by Jamelle Bouie reminds us, part of that GOP urbana demonization propaganda campaign targeting rural white voters includes the myth that the reason rural voters aren’t getting the government services they believe they paid for with their tax dollars is because all the money is going to minorities and illegal immigrants in the cities or being spent on overpaid and underworked public employees. In other words, it’s not that white rural non-wealthy voters don’t won’t more government services. They do. But they’ve been sold on the big lie that the reason they aren’t getting the government services they want is because all the money for government services is going to minorities and immigrants in the big cities and overpaid public employees.

    By framing things this way the GOP can portray cutting welfare as something rural voters should want because welfare cuts will free up more money for the programs for rural people. It’s a core GOP big lie vital to the Great Grift. Reagan’s ‘welfare queen’ myth remains the GOP’s meta-meme explanation for why they always fail to deliver to anyone but the rich. It’s the same meme used by the GOP even after decades of the right-wing’s wildly successful assault on the safety-net and public employees. It’s a fantasy right-wing truism used to create an ‘us or them’ mentality toward government and trick poor Republicans into supporting welfare cuts. Keep in mind that the GOP dominates at the state level and runs almost every state, especially rural states, so the idea that Democrats in big cities are the reason poor white rural Americans don’t get adequate government services is extra absurd, but it’s still a core foundational right-wing meta-meme.

    So Trump’s demonization of Baltimore was an application of one of the core big lies the right-wing tells itself in order to keep the poor right-wing masses satisfied with nothing but ‘owning the libs’. And that includes ‘owning the libs’ with cuts to the safety-net that, right-wing voters are told, will primarily impact ‘those people’ living in the big cities. Trump’s attack on the people of Baltimore was an application of a core pillar of the GOP’s foundation of self-delusion used as a moral pretext for fusing racist nativist sentiments with the right-wing billionaire agenda.

    As Bouie points out below, this meta-meme of minorities in big cities not being really equal with the ‘real’ Americans was at the center of the Wisconsin Republican Party’s support for a power grab following Governor Scott Walker’s loss in November. Walker and the GOP-controlled Wisconsin legislature had just passed a series of laws that would lock in right-wing policies and preventing the incoming Democrats from wielding the power they just won. And part of the justification for this power grab given by Republican Senate Majority Leader Scott Fitzgerald was that, “If you took Madison and Milwaukee out of the state election formula, we would have a clear majority—we would have all five constitutional officers and we would probably have many more seats in the Legislature.” It was literally an argument that, hey, if you ignore the state’s biggest cities, the GOP would have a clear majority and that’s why the power grab is justifiable. Which happens to be the same argument Walker used to justify the GOP’s extreme gerrymandering. Portraying cities as a threat to rural areas, not as partners that could provide political support for rural government investments, is one of the most destructive GOP memes in existence. It creates, channels, and reinforces the racist sentiments for the benefit of billionaires at the expense of the poor.

    So while Trump’s “infestation” smear against Baltimore is clearly part of an overt white nationalist 2020 reelection campaign, that smear also fuels the long-standing GOP power grab through extreme gerrymandering:

    Slate

    The GOP Sees Rural Voters as More Legitimate Than Urban Voters
    The current move to punish Democratic victors in Wisconsin underscores a sinister philosophy that’s been brewing for years.

    By Jamelle Bouie
    Dec 07, 2018 6:07 PM

    On Tuesday, Wisconsin Republicans escalated their lame-duck power grab, confirming 82 appointees from outgoing Gov. Scott Walker after passing bills to lock in conservative policy and keep incoming Democratic Gov.-elect Tony Evers from exercising meaningful power over state government.

    The hypocrisy is striking. In 2010, then–Gov.-elect Scott Walker asked outgoing Democratic incumbent Jim Doyle not to “finalize any permanent civil service personnel” as he finished his term. “I believe these appointees should be required to go through the same application process as any other civil servants,” wrote Walker, “and my Administration will review any new permanent hires during the next two months so they can be considered for termination during the probationary period.” He also opposed a lame-duck session to approve public employee union contracts as they would “tie the hands of the governor and the newly elected Legislature as they work to balance the state budget.”

    Walker, a dedicated partisan, has no interest in reciprocity and has endorsed the GOP-controlled Legislature’s constitutional coup despite his previous stance. “Members of the Legislature were elected not on a term that ended on election day—they were elected in a term that ends in January, just like my term ends in January,” he said, attempting to justify his party’s open attack on the democratic transfer of power.

    This is just public relations. More interesting are the statements from Republican legislative leaders that reveal the actual basis for this power grab, beyond extreme partisan self-interest. “Law written by the legislature and passed by a governor should not be erased based on the political maneuvering of an incoming administration,” said state Senate Majority Leader Scott Fitzgerald on Tuesday, before adding “Citizens from every corner of Wisconsin deserve a strong legislative branch that stands on equal footing with an incoming administration that is based almost solely in Madison.” His last line echoes a comment made by state Assembly Speaker Robin Vos just after the election. “If you took Madison and Milwaukee out of the state election formula, we would have a clear majority—we would have all five constitutional officers and we would probably have many more seats in the Legislature.”

    The idea that you could remove the state’s major population centers and still have an acceptably democratic result is a reasoning that gets to the heart of the matter. It’s not just that Democrats are poised to undo gains made under Walker’s administration, but that Democrats themselves are illegitimate because of who they represent. Vos isn’t saying that Republicans should do better in Madison and Milwaukee, he’s saying that the state’s major cities shouldn’t count. And if they do count, says Fitzgerald, they don’t count the same way.
    They are the wrong voters, and the Democrats they elect have no right to roll back a Republican administration backed by the right ones.

    Their understanding of who counts, and who ought to count, is tied to an urban and rural divide that encompasses divisions along race, economic class, education, and ideology. In The Politics of Resentment: Rural Consciousness and the Rise of Scott Walker, Katherine Cramer, a political scientist at the University of Wisconsin–Madison, shows how the state’s politics have been shaped by a rural sense of “distributive injustice—a sense that rural folks don’t get their fair share.” “(Their) sense of identity as people from a place that was disadvantaged economically coexisted with the perception that wherever their hard-earned money was going, it was not coming to them. It seemed instead to be going, in part, to bloated government programs and overpaid and underworked public employees.”

    It’s impossible to disentangle these views from racist attitudes and racial assumptions embedded in the ideologies and identities that shape white Americans everywhere. But that’s particularly true of Wisconsin, which is “extremely racially segregated” with just 29 percent of its black population residing outside of Milwaukee and Madison. Even these two cities are highly segregated—the Milwaukee metro area is among the racially segregated in the country. For Cramer, “antiurban resentment is not simply resentment against people of color,” but it’s not unrelated. “Since the cities, particularly Madison, are perceived as liberal and vote Democratic in elections, people who harbor racial resentment may indeed be equating city people with racial liberalism. Now as in the past, racial animosity is directed toward groups of whites that help minorities, such as government employees and academics.”

    Indeed, Scott Walker’s climb to the governor’s mansion, and his eight years in office, are marked by skillful use of rural consciousness, weaponizing resentments against urban liberals and racial minorities. As Cramer puts it, paraphrasing her conversations with voters across the state, “To people who perceived that public employee benefits came directly from their own pockets … Walker’s proposals were a victory for small-town Wisconsinites like themselves.”

    The broader implications are clear. The nation at large is wracked by a rural and urban divide that encompasses deep divisions along race, culture, and education. Increasingly polarized along partisan identity, those divides have helped produce a Republican Party—led by Donald Trump—that sees its opposition as illegitimate and seeks to restrict its influence on the nation’s politics and governance.

    The national Republican Party has yet to adopt the aggressively anti-democratic tactics of its state-level counterparts. But the ingredients are there. Indeed, if Hillary Clinton had won the 2016 presidential election, we have may have seen it in action: Several Republican senators all but pledged to keep a President Clinton from ever filling a vacancy on the Supreme Court, directly challenging the president’s constitutional authority to fill the federal judiciary.

    Should a Democrat—backed by a broad, diverse coalition of urbanites and suburbanites—win the presidency in 2020, will the GOP relinquish power? Or, facing not just defeat but reversal, will it bring the experiment in anti-democratic resistance currently being piloted in North Carolina, Wisconsin, and Michigan to Washington?

    ———-

    “The GOP Sees Rural Voters as More Legitimate Than Urban Voters” by Jamelle Bouie; Slate; 12/07/2018

    “On Tuesday, Wisconsin Republicans escalated their lame-duck power grab, confirming 82 appointees from outgoing Gov. Scott Walker after passing bills to lock in conservative policy and keep incoming Democratic Gov.-elect Tony Evers from exercising meaningful power over state government.”

    A lame-duck power grab. That’s basically what we should expect from the GOP at this point because the depiction of the GOP’s opponents as illegitimate is a core GOP meme. A meme that turns frustrations over a lack of government services by poor Republicans into support for cutting government services:


    This is just public relations. More interesting are the statements from Republican legislative leaders that reveal the actual basis for this power grab, beyond extreme partisan self-interest. “Law written by the legislature and passed by a governor should not be erased based on the political maneuvering of an incoming administration,” said state Senate Majority Leader Scott Fitzgerald on Tuesday, before adding “Citizens from every corner of Wisconsin deserve a strong legislative branch that stands on equal footing with an incoming administration that is based almost solely in Madison.” His last line echoes a comment made by state Assembly Speaker Robin Vos just after the election. “If you took Madison and Milwaukee out of the state election formula, we would have a clear majority—we would have all five constitutional officers and we would probably have many more seats in the Legislature.”

    The idea that you could remove the state’s major population centers and still have an acceptably democratic result is a reasoning that gets to the heart of the matter. It’s not just that Democrats are poised to undo gains made under Walker’s administration, but that Democrats themselves are illegitimate because of who they represent. Vos isn’t saying that Republicans should do better in Madison and Milwaukee, he’s saying that the state’s major cities shouldn’t count. And if they do count, says Fitzgerald, they don’t count the same way.
    They are the wrong voters, and the Democrats they elect have no right to roll back a Republican administration backed by the right ones.

    Their understanding of who counts, and who ought to count, is tied to an urban and rural divide that encompasses divisions along race, economic class, education, and ideology. In The Politics of Resentment: Rural Consciousness and the Rise of Scott Walker, Katherine Cramer, a political scientist at the University of Wisconsin–Madison, shows how the state’s politics have been shaped by a rural sense of “distributive injustice—a sense that rural folks don’t get their fair share.” “(Their) sense of identity as people from a place that was disadvantaged economically coexisted with the perception that wherever their hard-earned money was going, it was not coming to them. It seemed instead to be going, in part, to bloated government programs and overpaid and underworked public employees.”

    It’s impossible to disentangle these views from racist attitudes and racial assumptions embedded in the ideologies and identities that shape white Americans everywhere. But that’s particularly true of Wisconsin, which is “extremely racially segregated” with just 29 percent of its black population residing outside of Milwaukee and Madison. Even these two cities are highly segregated—the Milwaukee metro area is among the racially segregated in the country. For Cramer, “antiurban resentment is not simply resentment against people of color,” but it’s not unrelated. “Since the cities, particularly Madison, are perceived as liberal and vote Democratic in elections, people who harbor racial resentment may indeed be equating city people with racial liberalism. Now as in the past, racial animosity is directed toward groups of whites that help minorities, such as government employees and academics.”

    Indeed, Scott Walker’s climb to the governor’s mansion, and his eight years in office, are marked by skillful use of rural consciousness, weaponizing resentments against urban liberals and racial minorities. As Cramer puts it, paraphrasing her conversations with voters across the state, “To people who perceived that public employee benefits came directly from their own pockets … Walker’s proposals were a victory for small-town Wisconsinites like themselves.”

    “Indeed, Scott Walker’s climb to the governor’s mansion, and his eight years in office, are marked by skillful use of rural consciousness, weaponizing resentments against urban liberals and racial minorities. As Cramer puts it, paraphrasing her conversations with voters across the state, “To people who perceived that public employee benefits came directly from their own pockets … Walker’s proposals were a victory for small-town Wisconsinites like themselves.””

    As the researchers found, exploiting this urban vs rural divide was a key to Scott Walker’s political success. That’s how diabolical it is as a strategy. It helps the GOP win races by stoking white nationalist sentiments in a manner that furthers the billionaire agenda and when the GOP does lose the urban vs rural divide justifies power grab moves like what Walker and the Wisconsin GOP just tried to do. And it’s a strategy that justifies the GOP’s hyper-partisan gerrymandering strategy that threatens to make its power grabs permanent.

    So while it’s likely that President Trump’s attack on the Baltimore was a Fox News-fueled bout of out of control rage tweeting at a political foe, it was impulsive rage tweeting that channeled one of the central big lies at the heart of the GOP’s increasingly successful campaign to divide and conquer America for the profit of right-wing billionaires.

    Posted by Pterrafractyl | July 28, 2019, 11:37 pm

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