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, 2018Detailed 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.
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“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 PMIn 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.
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“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 EDTThe 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 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 democracyPartisan 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 ShawAug 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.
...
———-
“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©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.
———-
“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©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, 2018NEW 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.”
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““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:
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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.
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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.
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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:
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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.
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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:
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“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.”
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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:
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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.”
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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 PMUpdate: 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.”
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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.)
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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.”
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“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:
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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.
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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.
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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.”
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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:
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‘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.
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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:
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“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.
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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:
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“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.)
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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:
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A Convention Dress RehearsalWhile 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.
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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:
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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.”
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“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.
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:
“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:
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:
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!
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:
“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:
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.
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’:
“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:
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:
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:
“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:
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:
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.
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 Ginsburg 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:
“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:
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:
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.
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:
“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:
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.
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:
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.
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:
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 want 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:
“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:
“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.
The North Carolina Republican-controlled legislature was accused of basically trolling the public on Friday. It was some pretty egregious trolling too. The legislature was ordered by a North Carolina state court on September 3rd to redraw the state legislative districts within two weeks after the court found that the districts were unconstitutionally gerrymandered. That redrawing process started this week and the legislature has reportedly working late into the night to complete the process. But it wasn’t until Friday that the N.C. House redistricting committee suddenly announced a public comment session on the new maps with almost no advanced notice. Not surprisingly, no one from the public showed up. Following the outcry over this stunt, the Republicans scheduled a formal public hearing for Monday. Again, it was some pretty egregious trolling.
But let’s not forget that in addition to being an act of trolling the public, the North Carolina GOP’s public hearing stunt was also an attempt to minimize public review of the new maps. Now why might that be? Well, as the following piece by Mark Joseph Stern describes, the North Carolina GOP hasn’t just been trolling the public after getting ordered by a state court to redraw the illegally gerrymandered district map. They’ve been trolling the North Carolina state courts too by basically ignoring the court order against overly partisan gerrymandering during the court mandated redrawing process.
The GOP has been so egregious in its violations of that court order that it almost appears to be designed to elicit the court’s ire. Which, as Stern points out, may be part of the GOP’s strategy for dealing with state court opposition to its egregious gerrymandering. A strategy designed to pick a fight with the state court with the plan of forcing the court itself into the position of drawing the maps and then politicizing and demonizing the courts as anti-conservative in order to gin up right-wing turnout for state judicial elections. And there happen to be a number of progressive state judges happen to be up for election in 2020. So disobeying the court’s rulings during the redrawing process and forcing the court to redraw the districts itself can be part of a devious political strategy to gain control of the courts. The kind of scheme the GOP unfortunately can’t resist.
And from an Machiavellian standpoint, forcing courts to draw maps in the face of rulings that would force the GOP to do so is an effective way to avoid the embarrassing juxtaposition of drawing fair maps vs the original hyper-partisan gerrymandered map. The GOP controlled legislatures would rather the courts do it instead. That way they can portray the fairer maps as ‘liberal court overreach’ and continue to pretend that their hyper-partisan gerrymandered maps that virtually guarantee the GOP state-level political power aren’t egregious. Pissing off the courts to the point where the courts give up on the GOP is a means of ‘handing off’ the responsibility for drawing the maps while creating an opportunity for useful ‘liberal courts’ political narrative. Which, again, is the kind of strategy the GOP unfortunately can’t resist. The stoking of right-wing grievance complexes against state courts is going to be increasingly important for the GOP’s short and long-term success because gerrymandering is required for the GOP’s short and long-term success and that requires compliant state courts. After the conservative majority on the Supreme Court ruled a few months ago that state supreme courts will have the last say on questions of partisan gerrymandering the state courts are the only thing standing in the way of the GOP’s gerrymandering efforts. 31 states has state court seats up for election in 2016. So finding a way to effectively capture those state courts inevitably became an even bigger priority for the GOP and demonizing them is an effective way to do that. There’s no reason the ‘working the refs’ strategy the right-wing has long used against the media (claims of ‘liberal bias’) to garner more favorable media coverage can’t work on courts too.
And we know with certainty that the GOP is going to continue making gerrymandering a core part of their short-term and long-term political strategy. It’s a hugely important part of keeping dominant political control as the GOP becomes more and more an overtly white nationalist party that relies on whipping up its base with far right narratives that demonize and scapegoat ‘others’ to keep a shrinking base politically turbocharged and radicalized. The kind of full-throated white nationalism the GOP has come to rely on (the GOP used to pretend to want minority voters during George W. Bush’s term in office) is the kind of political strategy that might work in the short-run but at a high cost in the long-term given the demographic changes that make the right-wing white voting base a shrinking voting base. Gerrymandering and other strategies like voter suppression laws are absolutely crucial if the GOP’s white nationalism strategy is going to work in the long-run. The party must tame the state courts one way or another in as many states as possible.
North Carolina is just an early test case of how the GOP will react when they lose gerrymandering cases and are ordered to redraw district maps. What we see here is a prelude to the GOP’s national strategy. Probably. So by being so flagrantly trollish towards both the state courts and the public in this redistricting process in a manner that invites negative rulings from those courts, North Carolina’s GOP may be giving us a sign of what’s to come regarding the GOP’s relationship and state courts at a national level: a new relationship of ‘working the refs’ against the state courts by courting effectively ignoring rulings, courting conflict, forcing state courts to take the responsibility of drawing fairer districts, and later waging a right-wing victim-complex grievance campaign against the courts during state judicial elections. Because controlling the state courts is now even more central to the GOP’s long-term chances for success. It’s the only way to consistently pull off the egregious gerrymandering required by the GOP’s white nationalist strategy. And using the power of right-wing media and the victim-complex narrative to delegitimize political opponents is kind of a GOP specialty at this point so deligitimizing the state courts is the strategy for controlling the courts that we should probably expect:
“Ultimately, the court may be forced to appoint a special master to draw genuinely nonpartisan maps now that the General Assembly’s process has been tainted. This may have been the goal all along.”
Tainting the process to force the court to appoint a special master to draw fair districts. That could be the strategy in play. It’s sleazy and effective. A strategy that revolves around breaking government by trollishly playing dumb. When the court order the GOP to not use partisan election result data when redrawing the maps, the GOP attorneys sent that data out to the caucus anyway. And when the court said it would appoint a “referee”, the GOP returns with a proposal to have two co-referees with one of the co-referees being Art Pope, the millionaire GOP mega-donor (and notorious right-wing crank) who funded the original REDMAP GOP project that worked out the GOP’s gerrymandering strategy during and after the 2010 elections when redistricting last took place. Pope’s REDMAP created exactly the kinds of egregiously partisan maps the North Carolina court ruled strongly against on September 3rd. So requesting Pope be a co-referee is clearly trolling.
But it’s also trolling that could be seen as anticipating a political campaign that portrays the single-referee appointed as a ‘liberal partisan’. The court ended up appointing Stanford Law professor Nathaniel Persily as referee. Persily has previously served as special master for the courts in assessing the fairness of district lines. So the GOP is in a position to pretend Art Pope, the REDMAP millionaire, deserved to be a co-referee for the redrawing of the district maps to balance out ‘liberal bias’ and then point to the appointment of a Stanford Law professor to fuel that grievance narrative. The rejection of Pope as a co-referee is exactly the kind of thing that right-wing media will fixate on as evidence of the biased nature of the court. It’s the classic GOP grievance script and exactly what the GOP needs to help the GOP win those open judicial seats in 2020. It’s the GOP ultimate strategy for dealing with gerrymandering legal challenges: take over the courts through the vote using right-wing grievance politics:
But perhaps the greatest trolling was the GOP settling on a plan to use a random sample of Jowei Chen’s maps as the basis for their new district lines using the argument that they were ‘court approved’ maps. Chen’s set of maps were, in fact, a simulation of 1,000 maps that were non-partisan but still allowed for protecting the incumbent. So that obviously would be a method strongly biased towards the Republicans since they had the most incumbencies due to their illegal gerrymandering. It’s just an endless string of GOP bad faith on this issue:
So heading into this deadline, the North Carolina GOP is behaving like it’s intent of turning this into a circus. That includes the recent antics of the last minute public hearing announced by state legislature. The North Carolina Republicans are giving all indications they are going to continue behaving egregiously. So we’ll find out if they can come up with a set of maps that passes the court’s review or if they force the court into appointing a special master to draw the lines. The state House passed the map the House Committee came up with. No Democrats voted for it. It’s up to the state Senate and then back to the courts for review. So we’ll presumably find out very soon if the North Carolina GOP is willing or capable of coming up with a map that isn’t egregious.
Now, it’s true that the GOP has been waging a full spectrum calculated campaign at all levels of government for decades. It’s one of the advantages of being a party run by and for the super-rich. A coalition of billionaires can afford to focus on systematically capturing government at all levels. A focus on state court elections isn’t new for the right-wing. But ever since the recent Supreme Court ruling on Rucho vs Common Cause that threw gerrymandering back to the states that makes state court elections suddenly a much more high stakes area of American politics. Which is unfortunately exactly why we should expect any and all GOP dirty tricks in upcoming state judicial elections in North Carolina and elsewhere. Dirty tricks like intentionally defying court orders for the purpose of forcing a court appointed special master so they can politicize the courts in the upcoming judicial elections. Or any other dirty tricks intended to get right-wing judges elected who will let the GOP get away with more dirty tricks. More dirty tricks like egregious gerrymandering. A strategy for political success built on a foundation of dirty tricks. And egregious trolling. Trollishly defying the courts in this case.
There’s a fascinating and troubling new development in the legal landscape surrounding gerrymandering in America: Much of the current wave of revelations around the egregious nature of the Republican Party’s gerrymandering efforts starting in 2010 (project REDMAP) have relied on the public learning about the contents of the personal files of the now-decease GOP gerrymandering guru, Thomas Hofeller. Recall how Hofeller’s estranged daughter found his hard drive full of files related to his gerrymandering work and handed them over to the advocacy group Common Cause. The hand over of those files to Common Cause resulted in Hofeller’s files getting introduced into the legal challenges against the gerrymandered maps of North Carolina and revealed that Republican officials had been lying to courts about various matters including the illegal use of racial data in the creation of North Carolina’s district lines.
Well, surprise, it looks like Hofeller’s company, Geographic Strategies, and the Republican National Committee are now waging a new legal challenge intended to ensure that any of Hofeller’s files that haven’t already been published or introduced in court never see the light of day so Hofeller’s remaining secrets remain secret forever. There are reportedly specific files the Republican National Committee doesn’t want to see released in public.
Hofeller’s files reportedly include files related to the Trump administration’s push to get a citizenship question on the 2020 census, so those files are presumably the kinds of files the GOP wouldn’t want to go public. But also keep in mind that every corrupt practice on display in this North Carolina gerrymandering case will almost certainly have been done in virtually every other state the Republicans controlled during the redistricting battles of the last decade. In other words, we shouldn’t assume the files the RNC is worried about getting published are necessarily related to North Carolina. Project REDMAP was a national project.
This new legal challenge by Geographic Strategies arose after an article in the New Yorker earlier this month titled “The Secret Files of the Master of Modern Republican Gerrymandering.” The new legal challenge asserts that Geographic Strategies owns the files found by Hofeller’s daughter and therefore the details in that New Yorker article were illegally leaked and the firm is calling for an investigation into how the leak happened. The courts have potentially allowed for that investigation to go forward. Geographic Strategies told the courts that Common Cause told them that it was Stephanie Hofeller who handed over her father’s files to the New Yorker for the story.
The new legal challenges is also trying to ban the New Yorker from any future stories about Hofeller’s files until this investigation is completed. So there appears to a palpable fear about what the New Yorker might publish next. This type of order that bans the New Yorker’s publication of information is considered a “prior restraint” and generally considered a First Amendment violation so this story could become a First Amendment story very soon.
Given how deeply intertwined First Amendment arguments were in the justifications for the unlimited dark money political finance landscape formalized by Citizen United and how deeply that dark money infrastructure was tied into the gerrymandering schemes of Hofeller’s Project REDMAP national gerrymandering efforts, it’s more than a little ironic that there’s now going to be a potential First Amendment restriction imposed on the press in order to keep the details of the GOP’s ongoing dark money-fueled national gerrymander schemes private. But that’s what the GOP is trying to do:
“Their order also included an acknowledgment that the national Republican Party is asking for certain files of Hofeller’s to be kept out of the public eye.”
The GOP has something to hide. That much is clear in the court order, which describes how the RNC requested that the courts “protect certain files” from the public. And Geostrategic Strategies is trying to keep virtually all of the remaining unpublished Hofeller files from public. Especially the files Stephanie Hofeller handed over to the New Yorker:
So, since it appears that there’s a very real chance the rest of these Hofeller files will be kept from the public forever if Geographic Strategies’s legal challenge succeeds, it’s worth noting what Stephanie Hofeller initially had to say about the matter of whether or not she had the right to publish her deceased father’s files: she is convinced he intended for her to find these files. What is the basis for this conclusion? Well, Thomas Hofeller had a reputation for being very careful when handling documents and emails. He was also careful to label which directories contained work or personal files. But Stephanie found several instances where work files and personal files were mingled together, which she interprets as intentionally done. In addition, he had years to delete those now scandalous files and yet never did so despite the obvious liability their existence represents, which she also interpreted as intentional. Stephanie also says she handed them over to Common Cause because she’s a history geek and wanted to preserve these documents for posterity.
So based on these statements by Stephanie Hofeller made back in June, it sounds like part of the legal fight over who owns these files and who has a right to publish them will hinge in part on arguments over whether or not Hofeller wanted his daughter to eventually find these files and blow the lid on this operation, along with a more general debate over whether or not the public deserves to know the secret history behind Project REDMAP and the current state of hyperpartisan gerrymandering in America:
“Stephanie Hofeller volunteered the files, she said, because she’s a “history geek” — she wanted a way of preserving the documents so that people could learn and better understand how her father worked and the work product behind excessive partisan gerrymandering. Although Stephanie Hofeller believes one party shouldn’t control the redistricting process, she doesn’t affiliate with a political party (she said had a summer job at the Republican National Committee in the 1980s).”
Should the American public get access to these secret files? Files that have already demonstrated how the Republican Party was lying to the courts over its extreme gerrymandering plans. A trove of files that contain information that hasn’t been published yet and the Republican Party is clearly very worried about getting published. Should the public get access to this information after fate (or perhaps Thomas Hofeller’s intent) ends up with this trove of files landing in the lap of his estranged daughter? Or does the Republican Party deserve to keep this trove of documents secret and away from the history books forever based on a legal technicality of who technically owns the files? These are the kinds of question facing the court in this case. Questions over whether or not the GOP was cheating fair and square and whether or not the attempts to expose and thwart GOP cheating are the real cheating? It’s sort of the meta-question regarding the GOP these days.
There was a recent article in Slate about a audio recording leaked from the American Legislative Exchange Council (ALEC) annual meeting this year. The audio was of the closed-door “How to Survive Redistricting” panel discussion, so this was a panel that’s particularly important for understanding what the GOP has in mind for its 2021 hyper-gerrymandering schemes. The panel’s advice included helpful tips like destroying evidence under the expectation that the district maps they draw up are guaranteed to end up challenged in court. The evidence they recommended attendees destroy included evidence they had attended this panel discussion. It’s that kind of panel discussion.
The panel had four experts: North Carolina election lawyer Thomas Farr, former Georgia Rep. Lynn Westmoreland (who co-chaired Project REDMAP in 2010), Texas state Rep. Phil King, and Hans von Spakovsky of the Heritage Foundation who happens to be one of the GOP’s biggest backers of voter suppression schemes. In particular, von Spakovsky has specialized in issuing fraudulent warnings about illegal immigrants voting in US elections and using those scare stories as justification for voter suppression laws. Von Spakovsky was also on Trump’s short-lived presidential commission aimed at uncovering proof of this alleged rampant voter fraud. In keep with this theme of whipping up fears about immigrants, von Spakovksy has been one of the chief advocates for using only population based on citizenship, and not the total number of people in a state, for redistricting purposes during the 2021 redistricting process.
And that’s all what makes the discovery that Hans von Spakovsky is leading the GOP’s 2021 gerrymandering schemes one of those ‘of course’ revelations, because of course we’re going to find that the same people behind the GOP’s voter suppression drive are also be behind the GOP’s hyper-gerrymandering operations too. It’s all part of the same ‘legalized cheating’ electoral agenda. A legalized cheating agenda that requires the preemptive destruction of evidence of plans of this agenda:
“Slate has obtained an exclusive audio recording of the closed-door panel called “How to Survive Redistricting,” moderated by influential Republican lawyer Cleta Mitchell. The panel’s four experts—Hans von Spakovsky of the Heritage Foundation, North Carolina election lawyer Thomas Farr, former Georgia Rep. Lynn Westmoreland, and Texas state Rep. Phil King—are among the architects and defenders of some of the most notorious gerrymanders and voter suppression plans of this decade.”
The architects and defenders of some of the most notorious gerrymanders and voter suppression plans of this decade. That’s who was on the panel at this year’s ALEC conference teaching Republicans around how to gerrymander. So it’s no surprise that the panel’s lessons include destroying evidence that they attended this panel discussion. Because a big part of successful gerrymandering apparently involves approaching it like your the director of a play. A play that’s going to be played out in court. So coming up with a fabricated story of reality is crucial to the GOP’s gerrymandering strategy. That’s literally the advice they were giving:
Then there’s the advice of Hans Von Spakovsky, one of the leading advocates of the myth of widespread illegal immigrant voter fraud. Von Spakovksy is outright telling the Republicans to just go ahead and base the maps they redraw exclusively on citizenship counts, and not population counts. It’s another indication that we should expect the 2021 redistricting process to turn into a legal battle over whether or not district lines should be based exclusively on citizenship, and not total population, counts:
And note how deeply cynical this all is: part of the underlying justification for these kinds of democracy-breaking extreme gerrymandering agendas is this idea that there is no such thing as non-partisan gerrymandering because whenever a district line is moved it implicitly helps one party and hurts another. And while that’s true on a technical level, it would take a profoundly shallow analysis of the situation to then conclude that there’s no point in trying to minimize the levels of partisanship. After all, there’s no rule that says there can’t be an attempt to balance the unfairness, which is precisely how non-partisan redistricting commissions work in numerous states. But these GOPers simply ignore all of that and pretend like there’s some sort of moral trap that forces them to engage in extreme partisan gerrymandering. It’s an example of how the moral theatrics involved with this scheme aren’t limited to the unavoidable court challenges. There’s a whole layer of how shallow moral confusion used to justify this behind closed doors too:
Redistricting can never fully neutral, and therefore it’s ok to try to make it as partisan as possible. That’s the morally blind excuse these panelist were apparently pushing during this close door meeting. A closed door meeting that, again, included the advice that attendees destroy evidence they attended this meeting so they could lie to the courts more easily later on.
But as the following article makes clear, there’s another reason attendees of this panel discussion may want to hide from future courts the fact that they attended this panel discussion: Hans von Spakovsky is so widely disreputable in these election law matters that his word is actually damaging to court cases. That’s what a federal judge stated last year when Judge Julie Robinson (a George W. Bush appointee) struct down a GOP-created Kansas voter ID law that von Spakovksy was trying to defend. As the judge put it in her ruling, “The Court gives little weight to Mr. von Spakovsky’s opinion and report because they are premised on several misleading and unsupported examples of noncitizen voter registration, mostly outside the State of Kansas. His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the Court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness.” That’s the kind of ‘expert’ von Spakovsky is: The kind of expert you need to take advice from secretly because it would be legally damaging to admit it in court.
And yet, as the following article describes, von Spakovsky is one of two experts the Republicans in the House Judiciary Committee invited to testify in opposition to a bill put forward by the Democrats after retaking control of the House. It was the first bill of 2019, HR 1. The For the People Act, which would make it easier to register to vote and harder to buy elections. It was widely praised by election experts like Rick Hasen, but of course the Republicans opposed it.
The other ‘expert’ invited by the Republicans to testify against HR 1 was J. Christian Adams of the Public Interest Legal Foundation. Like von Spakovksy, Adams was a member of Trump’s bad faith election integrity commission that was shutdown after it couldn’t find evidence of the widespread voter fraud figures like von Spakovksy and Adams insists exists. The two first worked together to roll back voting rights enforcement in the Civil Rights Division of the Justice Department under George W. Bush. As the article notes, Adams also had his testimony in a federal court case involving voter roll purging in Florida dismissed by the judge as misleading and inaccurate.
It’s a reminder that the same figures the GOP is relying on to craft its 2021 redistricting and voter suppression strategies are the same figures it relies on for crafting or opposing election legislation. And the word of these figures lacks credibility in court:
“Von Spakovsky and Adams were key members of President Donald Trump’s controversial election integrity commission, which shut down after failing to find evidence of widespread voter fraud. For more than a decade, they have led an aggressive push to make it harder to vote and have spread false claims about fraud. Their credibility has also been called into question recently by federal courts.”
‘Experts’ who get called out by federal judges for lacking credibility. That’s who the Republicans in Congress decided to rely on when they wanted to raise complaints about HR 1. It’s an indication of how central a figure Von Spakovsky is for the Republican Party. Whether its congressional ‘expert’ election law testimony, to designing redistricting and voter suppression schemes, to defending those schemes in court, to teaching people in closed-door panel discussions how to lie to the courts, Hans von Spakovsky is the guy the GOP turns to:
As we can see from these two articles, signs are pointing towards the GOP’s 2021 redistricting plan being the kind of plan the people behind it know won’t hold up in court, which is why part of the plan involves creating a false play-like narrative for the courts and another part of the plan involves destroying evidence of the plan. So pretty much the same plan as the GOP’s REDMAP project in 2011, but worse because they’ve had another decade to learn how to cheat better. And a lot of practice.
It did it again: The Supreme Court’s conservative majority just gave its blessing to extreme hyper-partisan gerrymandering. That was literally in the ruling. The case involved a lower federal court ruling from April that found a large number of Michigan’s gerrymandered state districts were unconstitutionally gerrymandered due to the extreme partisan nature of the Republican-drawn. In this new 5–4 ruling that that invalidated that lower court ruling, John Roberts wrote that gerrymandering designed to reduce the representation of voters of a particular political ideology is indeed constitutional. He even conceded that such a ruling may enable increasingly unequal political representation but even if that’s the result it’s still constitutionally valid. Surprise.
It wasn’t actually a surprising ruling since it’s in keeping with the Supreme Court’s historically corrupt June ruling in Rucho v Common Cause that found that federal courts have no jurisdiction over questions of partisan gerrymandering. The specific legal reasoning the conservative majority relied on in this latest case for striking down the lower court ruling against the Michigan Republicans’ gerrymandering relied on the same underlying logic used in the Rucho v Common Cause ruling, that the question before the court– “determining when political gerrymandering has gone too far”– could not be grounded in a “limited and precise rationale” because the issue “lacks judicially discoverable and manageable standards for resolving.”
Keep in mind that Michigan is one of the states with the most egregious gerrymandering in the country. Thanks to the Republican gerrymandering of 2011, as part of Project REDMAP, the GOP won 9 of 14 congressional races in 2016 with just 51 percent of the vote in congressional races, making Michigan one of the most gerrymandered states in the US. It points to the very simple rules that federal courts could apply to partisan gerrymandering cases that the would be implicitly in keeping with the constitution, like equal representation.
So the conservative majority again ruled that federal courts can’t possibly come up with a rationale for what constitutes an overreach in partisanship in gerrymandering (like, for instance, a massive deviation from equal representation) and therefore the entire issue must be left up to the states even if the result is even greater systematic political inequality for people of particular political ideologies. And it just happens to be the case that the most egregious gerrymandering today is predominantly weakening the political representation of left-wing political ideologies. As Justice Elena Kagan wrote in her scathing dissent, “I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles,’”:
“Roberts reasoned that the question before the court– “determining when political gerrymandering has gone too far”– could not be grounded in a “limited and precise rationale” because the issue “lacks judicially discoverable and manageable standards for resolving.””
Yes, according to the conservative majority, because the constitution doesn’t explicitly lay out a rule for what precisely would be considered ‘too partisan’ for the drawing of districts, federal courts are therefore constitutionally incapable of addressing the issue, even if doing so results in gerrymandering situations that are incompatible with the principles of democracy:
It’s a kind of ‘principle helplessness’ in the face of questions of partisanship that just so happens to have a distinctly partisan outcome that overwhelming helps Republicans. Imagine that.
And while we don’t really get to see how this conservative majority would have ruled on this issue if the tables were turned and states were overwhelming dominated by Democrats who were implementing hyper-partisan gerrymandering to solidify their power, it’s worth keeping in mind that it’s entirely possible in upcoming decades that we will see such a scenario. Because the lifetime-nature of Supreme Court appointments — combined with the outright theft of the Supreme Court seat that allowed President Trump to appoint a justice for a seat that should have been up to President Obama and the relatively youthfullness of right-wing justices — has given the right-wing the kind of grip on the Supreme Court that could last for decades to come. And there’s no guarantee that the right-wing domination of state governments will endure during that period. So it’s possible this conservative Supreme Court majority will one day face this same question but from a situation where they’ll be enabling this kind of rampant cheating primarily on behalf of Democrats. It’s an interesting future possibility that’s also a reflection of how thoroughly the billionaire-dominated conservative movement in America has solidified its long-term grip on the reigns of power in the United States through aggressive, organized, well funded full-spectrum cheating. The American government isn’t just bought and paid for by right-wing billionaires. There’s a long-term contract in the form of legalized gerrymandering.
Oh, but it turns out there’s actually a bit of bonus cheating now available to the GOP in Michigan: There’s a state provision that allows for the passage of laws with a simple majority in both chambers of the state legislature that the governor — an elected official in a state-wide race where gerrymandering doens’t factor in — can’t veto. So in Michigan the impact of the hyper-partisan gerrymandering of state legislative districts gets turbo-charged with this petition option. It currently requires just over 340k signatures and right now there’s an ongoing drive to use it to pass stricter abortion laws based on just a majority vote of Michigan’s gerrymandered state districts:
“That provision, known as the indirect initiative process, gives antiabortion groups a way to push for new bans on the procedure, and it puts ultimate power back in the hands of Republican lawmakers, who critics say are not representative of the state’s current, mostly Democratic electorate. Under the process, petitioners who collect a certain number of signatures from voters could force the passage of a law with a simple majority vote in the statehouse.”
Veto-proofing the gerrymandered votes of the state legislature with a petition that doesn’t require a majority to pass. It just has a threshold. It’s quite a loophole. And as we can see, this loophoe is being used to pass conservative legislation with a simple majority of the hyper-partisan gerrymandered state legislature. And if Michigan become a minority-ruled one-party state thanks to hyper-partisan gerrymandering, the federal government and courts can’t possibly deem this to be an unconstitutional arrangement, according to the Supreme Court’s latest ruling. States are constitutionally allowed to turn themselves into one-party rigged electoral basket cases, according to the Supreme Court’s 5–4 conservative majority. A conservative majority that was achieved through Republican cheating in the Senate. And the 2000 Bush v Gore judicial outrage when the Rehnquist conservative 5–4 majority outrageously ended the Florida recount and handed George W. Bush the election, which resulted in the eventual Bush nomination of John Roberts as chief justice to replace Rehnquist. It’s like the deep state of billionaire-financed cheating. Out in the open.
Kelli Ward, the far right Arizona Republican who aspires to the US Senate and managed to become the state party chairman this year, just did what she does best: she said the quiet parts out loud again. Because loudly saying the stuff that’s normally reserved for far right audiences in private is kind of her specialty. She’s like the canary in the coal mine of bad GOP memes. And in this case it’s the kind of bad idea the broader GOP is clearly very interested in but it’s so bad that it’s not normally said so bluntly. That’s what makes this more than just a story about another Kelli Ward gaffe.
So what was Kelli Ward’s loud bad idea? Pretty much the same idea used by former Wisconsin governor Scott Walker back in July to justify the Wisconsin GOP’s blatantly undemocratic power grab after Walker lost his reelection bid: Walker argued that the laws passed by the then-lame-duck Walker administration and GOP-controlled state legislature that significantly limited the powers of the incoming Democratic governor were justified because rural areas of the state needed extra protection from the political power that urban areas get from having large numbers of people. Walker was basically making the same underlying argument used to justify the electoral college system used to elect US presidents — that rural states and small states deserve extra representation to offset the power of high-population states — and apply that to the state level government. But Walker was also echoing the other implicit GOP meta-argument that’s also used to justify all of the various laws that systematically voter GOP voters: that right-wing voters are the only ‘real Americans’ and deserve a permanent grip on power that should override the popular vote. It’s a disturbing sign for America’s democracy to hear a major party justify a power grab approach democracy, but it’s extra disturbing when this is part of an ongoing campaign by the GOP to promote an unpatriotic ‘urban America is oppressing rural America’ meme for partisan gain and undermine the principle of ‘one man, one vote’ in the process.
And that’s what Ward called for following the upset victory of Democrat Andy Beshear in the Kentucky governor’s race last week over the Trump-backed incumbent Matt Bevin. Trump event traveled to the state on election eve to boost Bevin but Beshear narrowly won with overwhelming support in Kentucky’s urban centers and and a growing suburban backlash against Trump. It was that election result in Kentucky that prompted Arizona’s GOP chairman Kelli Ward to tweet out:
Kelli Ward and Scott Walker agree: rural voters need extra representation at the state level too. ‘One man, one vote’ needs to be replaced with a system that gives people living in low-density areas higher representation than people in high density area because otherwise the high density areas will have the most political power. That’s the core of their argument and it’s entirely consistent with what the GOP has been trying to do for years with its strategy of winning by rigging the system. Whether its voter suppression/voter caging laws, or extreme gerry-mandering, or racially driven mass incarceration, the strategy of the GOP has relied on winning with a minority of the vote by gaming the system. And that’s a strategy that’s incompatible with ‘one man, one vote’.
Now, as the article notes, the ‘one man, one vote’ principle is the current legal precedent after it was established in the 1963 Gray v. Sanders ruling that found Georgia’s ‘county unit system’ that had been in place since 1917 unconstitutional. So, in theory, ‘one man, one vote’ is already a protected principle. But was can’t assume that anymore with the conservative majority. For example, there’s the wildly disturbing recent Supreme Court ruling on Michigan’s egregious partisan gerrymandering where the conservative majority ruled in a 5–4 vote that hyper-partisan gerrymandering drawn to favor voters of one political ideology over another to an extreme degree is constitutionally valid at the federal level because there’s no constitution criteria for establishing what constitutes overly partisan gerrymandering. According to the conservative majority, only state courts can rule on whether or not gerrymandered districts are illegally drawn for being too partisan. It’s the kind of judicial signaling that tells us it’s only going to get worse from the GOP and the Supreme Court’s conservative majority is ready and willing to give its bad faithed blessing to that worse future. So we should expect the Roberts Court to undo some of what Gray V. Sanders established. And that’s why Ward’s tweet was so disturbing. Ward was just saying (tweeting) out loud what the GOP has been quietly doing for years:
“As for whether a “state electoral college” would be a good idea or not, it depends on what you mean by “good.” If you mean “reflecting the will of the most people,” you probably wouldn’t want that if you’re Kelli Ward, since that’s called a “majority.” But if you mean “Republicans winning elections without actually needing a majority,” it could be just terrific, just like the Electoral College is nationwide!”
It’s one of the grand quirks of the GOP: while much of the Republican Party’s modern day far right agenda is an assault on laws and regulations that fall under the umbrella of ‘minority rights’ for all sorts of minority groups, the long-term strategy for the party relies on arguing that a particular minority group — conservative voters — deserve ‘true American’ special protections in the form of guaranteed political power. Kelli Ward’s idea for electoral college systems for state elections so rural areas get extra voting power is just one of the logical conclusions of that long-term strategy. It’s also what the Supreme Court rejected in Gray vs. Sanders back in 1963 when Georgia’s “county unit system” for state officer holders was ruled unconstitutional and the ‘one man, one vote’ principle was established in US. It was the system Georgia held from 1917 to 1963, which is a reminder that there’s a precedent in US law for what Ward was tweeting about. That precedent happens to be America’s history of racist white nationalism that treats rural white Christian conservatives as a politically protected class:
Is the Roberts Court’s conservative majority ready to rule in a way that makes state-level electoral college systems that systematically overweight rural votes allowable? It sure looks like it. And that’s all why Ward’s tweet was more than just the disturbing communication from a single disturbing politician. Ward’s menagerie of bad ideas are highly illustrative of contemporary GOP thought. Because of course this isn’t something Ward alone wants to see. The idea of electoral colleges for state elections to boost rural representation is like one of the most GOP-ish proposals ever. When Kelli Ward, the canary in the coal mine of bad GOP ideas, tweets a really bad idea, it’s a warning.
Of all the depressing aspects of the Trump era of US politics, perhaps the most depressing part is how deeply embedded a sense of foreboding and doom is built into the political appeal of ‘populist’ figures like Donald Trump. Because as study after study has shown, one of the biggest factors driving white voters towards Trump (and the Republican Party in general) has been a growing sense of foreboding sense of doom over demographic changes in America where white Christians are no longer the majority. When we learn about key White House advisor Stephen Miller secretly encouraging Breitbart News to give more attention to white nationalist stories that promote the ‘white genocide’ meme and one of Steve Bannon’s favorite books is The Camp of the Saints, it’s pretty clear that much of what animates the GOP these days is an intense and growing fear of living in a non-majority white society. And that intense and irrational sense of demographic doom and despair has cultivated a kind of zero-sum ‘it’s us or them’ political zeitgiest where hyper-tribalism substitutes for thoughtful policy and figures like Trump are portrayed as a kind of white nationalist ‘last chance for America’.
It’s also the sense of foreboding and doom that’s used to justify policies like extreme hyper-partisan gerrymandering, and that’s where the following article comes in. Because that deep (and deeply un-American) fear of living in non-white majority society that appears to be animating so much of the collective insanity that’s gripped the contemporary conservative US electorate happens to be the perfect excuse for finally addressing to the irrational ‘winner-take-all’ nature of the US electoral system.
It’s one of the pecularities of American democracy compared to the rest of the world: There is no proportional representation. It’s a winner take all system that encourages just two major parties and a continual battle between those two major parties for complete control. But what happens when one of those two major parties vying for control in America’s winner take all system starts defining itself as the party for anxious white people and anxious white people slip into a demographic minority? It’s the kind of dynamic that doesn’t bode well for the American social contract.
As the following piece describes, while issues like gerrymandering have certainly contributed to the extreme partisanship in the US politics, there’s a more fundamental structural issue that’s systematically created a ‘only one side can win’ dynamic to US politics and that’s the ‘winner take all’ nature of US elections, where the person who gets the most votes wins office and the broader distribution of votes are otherwise ignored. It’s the kind of system that might work well enough in a highly homogeneous society. But in the kind of modern multi-ethnic, multi-cultural America that includes are broad array of ideologies and interests, ‘winner take all’ is a grand recipe to ensure almost no one wins (except billionaires, who win everything thanks to US campaign finance laws). And in the age of extreme gerrymandering, ‘winner take all’ is a recipe to ensure only the minority group (of white conservatives) that dominates the gerrymandering process actually wins, at least for a while. But eventually that minorty of white conservatives is going to be outnumbered enough where even gerrymandering can’t guarantee electoral victory.
The post-Trump GOP is either going to be a post-democracy GOP or minority white nationalist GOP. Gerrymandering is only going to work for so long. Why not transition to a form of democracy designed to factor in the diversity of the nation? A form of democracy that would ensure the white Christian conservatives don’t have to worry about being on the short end of a ‘winner take all’ system sooner or later. And that’s why the Trumpian era might be the perfect time to address ‘winner take all’. Trump is the symptom of a lot of awful things, but one of the biggest awful thing is white freak out over the prospect of being a majority non-white country. The basic math of global demographics has always meant that the US could only remain a majority white country if it intentionally set up its immigration system to prefer white immigrants one way of the other. If the US is to be a global beacon of englightenment, democracy, and a beacon for immigrants, that beacon audience is implicitly a majority non-white audience. The US transitioning from a majority white, former slave-holding society into a multi-ethnic, multi-cultural bastion of freedom and peaceful co-existence is one type of beacon the US can strive towards. Or the US can become a right-wing white Christian nationalistm beacon that’s mostly just a beacon for white people. But it can’t be both. Wrestling with that is part of what the Trumpian angst is all about.
And much of the conscious and subconscious white freakout over the US following the latter path — into becoming a majority non-white global beacon of multi-ethnic, multi-religious people peacefully co-existing in the spirit of democracy and enlightenment — is rooted in a fear that such a society isn’t possible. That part of what makes reforming the ‘winner takes all’ system so useful for today’s politics. It’s a great way to talk about a post-white majority future for the US that won’t freak out angsty white conservatives that have been binging right-wing media about ‘the Great Replacment’ and reading the Miller/Bannon reading list. And it’s a great way to showcase the value of societies built for diversity. White Christian conservatives will get to do all sorts of coalition building on various issues under a system that gives better proportional representation that the current system discourages. It would be great.
If the GOP strategy of gerrymandering, voter suppression, and billionaire dark money paired with politically organized white Christian conservatives can’t maintain the GOP’s current domination of at the state and federal level it’s almost certain the that GOP electorate will be better represented under a proportional representation system. Along with everyone else. It’s win-win-win across the board.
So what’s the proposed proportional represenation system? It’s the idea pushed by a group called FairVote called the Fair Representation Act. The Fair Representation Act proposes states merge 3–5 congressional districts into super-districts (created by non-partisan commissions so no gerrymandering) and then the voters in those super-districts vote in a ranked-choice election and the 3–5 representatives are chosen based on that rank-choice system. It turns out states can individually do this on their own and don’t need federal approval. Democratic congressman Don Beyer of Virginia has introduced legislation to implement this. The idea would not just eliminate the efects of gerrymandering but also allow the US to transition to the kind of diverse coalition-building politics that allow everyone to work together better. It’s bridge building politics. That’s kind of dynamic is an option if the US decides to do it. Or individual states decide to do it. It’s the kind of project a post-Trump America should really keep in mind, because it’s literally a form of electoral reform that’s premised on the idea that we can get past our zero-sum politics by embracing our common interests by better representing everyone. That seems like a useful national unity project in light of the post-Trump-impeachment political situation (GOP super-whining) that the US is heading towards:
“It’s December 2019 and North Carolinians have been fighting about their maps for a decade. The maps have been declared racial and partisan gerrymanders, invalidated multiple times, and they have generated millions of dollars in court costs. Republicans would say that the gerrymandering problem goes back even further, pointing to the many maps Democrats drew prior to 2011 to advantage themselves. Let’s stop arguing about where the individual lines go, how many seats each party ought to be handed, and think instead about how we guarantee that all citizens get representation they deserve.”
Yes, now would be a good time to stop arguing about where the individual district lines go and the relative balance of uncompetitive seats and think instead about how systems that guarantee a diverse society allows for diverse representation that better reflects the actual electorate. And that’s going to include better representation pf conservative white Christians in a future America where they don’t have nearly enough votes to win even with extreme gerrymandering and an alliance with billionaires. Shifting to a proportional representation system is a win-win approach when the dominant party’s long-term strategy relies on gerrymandering and other schemes to win with a minority of voters. Conservative white Christians are big winners under the Fair Vote system. Along with everyone else. Post-Trump needs to be post-zero sum. Given today’s problems, a zero-sum America is a doomed America. And the current winner-take-all system is a big systemic factor is encouraging zero-sum politics:
Is the US at all interested in merging districts and have a ranked-chance election? Maybe a few states? We’ll see. It would make for much more interesting races. The ‘everyone for all’ politics that keeps civilization flowing. The kind of civilization that white Christian conservatives would have a ton of fun living with lots of political representation.
Now that President Trump has put the US on the path to another war in the Middle East, perhaps it’s an appropriate time for Americans to take a moment and reflect upon the fact that if it wasn’t for the Republican Party’s decades of working to rig America’s democracy through tactics like voter suppression, there probably wouldn’t be a crazy man in the White House tweeting about his plans for war crimes. Because there’s nothing quite like a ‘wagging the dog into WWIII’ situation to remind a nation of the importance of taking seriously the threat the systematic rigging of democracy poses to a nation, although Chief Justice John Roberts, a one-man systematic threat to democracy, just wrote something that rivals it in terms of being a poignant reminder of the risks the systemic rigging of democracy poses for a nation. Because of course he did.
So what did Roberts write? Well, in the preamble to his annual Year-End Report on the Federal Judiciary, Roberts decided to focus on how, “We have come to take democracy for granted, and civic education has fallen by the wayside.” Yep, that’s the systemic risk to America’s democracy that he decided to focus on. It’s like some sort of dark ironic judicial joke from the guy who brought us unlimited secret political spending with Citizens United and constitutionally blessed hyper-partisan gerrymandering with Rucho v. Common Cause. He even mentions Barrack Obama’s blocked Supreme Court nominee Merrick Garland in the preamble, praising him for volunteering “as a tutor at a local elementary school, inspiring his court colleagues to join in the effort” as an example of how judges can help foster civic education. Merrick Garland, the guy who was blocked in the ‘no holds barred’ spirit of endless GOP dirty-tricks. It’s a preamble about the lack of civic spirit that is so darkly cynical that it actually damages the civic spirit of the nation. It’s a powerful ‘in your face’ reminder of the fact that the conservative majority on the Supreme Court led by John Roberts represents one of the biggest and most fundamental systemic risks to America’s democracy. The US constitution system isn’t built for a ruling majority of judges beholden to oligarchs and hell bent on empowering the powerful at the constitutional level.
And it’s not just the Roberts Court. The US Supreme Court has been moving hard to the right since Ronald Reagan. It was the conservative 5–4 majority led by William Rehnquist that brought us the George W. Bush administration with its blessing of Florida’s rigged 2000 election count, and all the madness and wars based on false evidence that followed. But now, following the election of Trump and the blocking of Merrick Garland, the conservative majority is tilted so far to the right that it’s pretty much legally sanctioning a wholesale sellout of political power America to the rich and powerful. The mask is almost entirely dropped, with John Roberts now in the position of being the ‘moderate’ swing vote on the court.
Now, as Ian Millhiser points out in the following Vox piece, there is a pro-democracy strain in Roberts’s rulings in that he does tend to differ with the other four conservatives in his general deference to the legislature on most matters. So as long as the legislature isn’t captured by powerful private interests, that tilts the US system of government more towards following the will of the electorate. But, of course, Roberts is also the guy who keeps ruling in ways that ensure the rich and powerful are going to control the legislatures at the state and federal level.
And that’s all why all Americans should listen very closely to Chief Justice Roberts’s wise words. Because at this point, thanks to the saturation of propaganda and systemic cheating sanctioned by decades now of right-wing Supreme Court majorities, the only thing that’s going to save the American public is some very wise voting done in the face of that propaganda and rigging so legislatures aren’t stocked with oligarch cronies. Voters really need to be informed. Very informed. There’s a huge number of things going horribly awry. All at once. The electorate doesn’t need to know about every probably, but they probably should know about every existential one. And there are a lot of existential problems facing America these days. Like a crazy ‘wag the WWIII’ president from a party that’s captured the reigns of power and turned political cheating into a constitutionally protected right. So Americans really do need to know that they need to know a lot more about how their government works, what it’s doing, and especially who is influencing those decisions. Because Americans desperately needs to somehow counteract the wholesale selling out of the reigns of power that the 5–4 conservative majority on the court has been sanctioning. And elect presidents who won’t nominate more right wing judges.
So hopefully the 2020 election includes a big public discussion about how the ‘moderate’ on the court is the current chief architect of the wholesale selling out of the US government to the rich and powerful. And he’s very concerned Americans are taking their democracy for granted:
“Roberts, who flirted with becoming a historian before choosing law school instead, likes to begin his annual reports with historical anecdotes. His most recent report is no exception: He begins it with a story of how future Chief Justice John Jay was injured as he tried to quell a riot. The lesson of this story, according to Roberts, is that the Constitution’s “principles leave no place for mob violence,” and that the risk of mob rule grows in an era when “social media can instantly spread rumor and false information on a grand scale.””
The Chief Justice who just handed state legislatures over to the Koch Network of mega-donors with Rucho v Common Cause starts his warning about civic education with a story about mob violence. But his model of how society should work doesn’t actually assume the oligarchs rule. It’s instead based on the idea that it’s up to the US public to all individually make sure we’re all informed enough to make an overall intelligent choices during election and legal frameworks that protect relatively uninformed voters, like campaign finance restrictions, are unconstitutional. Billionaires can secretly spend all they want on spreading rumor and false information on a grand scale during elections and the only thing ‘the mob’ gets to protect itself against that misinformation is their wits and knowledge. Collectively. It’s up to everyone. No legal protections allowed. That’s a key part of John Roberts’s governing philosophy. So being informed really is going to be super extra important during the Roberts Court era. And then he mentions Merrick Garland. It’s kind of rubbing our noses in it:
“Civic education is necessary to a functioning democracy, but it is not sufficient. Democracy also requires the kinds of structures and institutions that Roberts’s decisions have done so much to weaken.”
Yep, and that’s all why it’s increasingly important for American voters to learn that the conservative majority on the Supreme Court is doing everything it can to make it dangerous for Americans to be uninformed. Like, straight up dangerous for the nation. That’s part of the Chief Justice’s vision for the country. If ‘the mob’ becomes collectively uninformed it’s all supposed to go to hell in a handbasket and/or get sold off to billionaires. That’s ‘democracy’ under Roberts’s vision, so Americans needs to start intensively educating themselves about their country’s power structure and political dynamic right now. That was always important, but the Chief Justice just reminded us that it’s extra important now.
An awareness of the long-term disastrous consequences of electing Republican presidents and nominating ever more conservative judges to the the Supreme Court is another one of those things the ‘mob’ of the US electorate should probably get informed about in 2020, but Chief Justice Roberts probably doesn’t want too much voter attention on that particular systemic threat to democracy.
Here’s a preview of how the challenge of holding elections during the coronavirus pandemic will play out if it turns out voting from mail is the only safe option:
First, the Republican Speaker of the Georgia House gave an interview this week that included a question about the possibility of switching to a mail-in ballot for the 2020 election this fall if COVID-19 is still making social distancing a public health necessity. This was a particularly interesting question given the fact that the Republican Party has long been sour on the idea of voting by mail (or any system that makes voting easier) and the Georgia Republican Party in particular is notorious for using every trick in the book to suppress the vote. Don’t forget that the current governor of Georgia is Republican Brian Kemp, who was the Secretary of State when he ran in 2018 and refused to relinquish his oversight over his own election. And Kemp happened to just barely win that race over popular Democrat Stacy Abrams using what appears to have been some sort of extensive voter suppression and rigging of the electronic voting machines. There’s a whole lawsuit over it that looks like a giant coverup. Classic GOP. So the question of how the Georgia Republican House Speaker will respond to calls for voting by mail is important for getting a sense of whether or not elections will even be viable in the fall if the pandemic still has things shut down.
So what was the Georgia House Speaker’s response to a question about shifting to a mail-in ballot this year? No way. Because it would drive turnout so much that it “will be extremely devastating to Republicans and conservatives in Georgia”:
““Every registered voter is going to get one of these,” he added in an interview with FetchYourNews, a local news site. “This will certainly drive up turnout.””
Yes, sending every registered voter a ballot that they can conveniently mail back would certainly turn up turnout. Especially in urban areas long plagued by inadequate numbers of voting sites and machines where voting in-person can take hours on election day. The very same voters Republicans have spent years trying to discourage from voting are going to be strongly encouraged to vote with a mail in ballot. So of course the House speaker is opposed to it. It’s just a little surprising that he put it so bluntly. Then again, he’s just echoing what Trump himself said on Monday on Fox & Friends, when he condemned a House Democratic push for a vote-by-mail option:
“They had things — levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.” That was the sentiment Georgia’s House speaker David Ralston was echoing. Trump’s sentiment from Fox & Friends about a House Democrat voting rights bill that would have had similar mail-in provisions for the entire nation. There would never be another Republican elected if encouraged every registered voter to vote. It’s the kind of thing Republican deep strategists are supposed to discuss quietly in smoke-filled rooms and party leaders are just straight up saying that out in public.
And note how the Georgia Republicans are open to at least one response to the coronavirus: delaying the primaries:
So if the pandemic is still making large scale in-person voting a public health risk in November, keep in mind that the Republicans will probably be open to one particular option instead of mail-in ballots: postponing the election.
Now here’s an article from Friday about another Republican leader echoing Trump’s public acknowledgment that if everyone voted Republicans would lose: President Trump. It was during one of his new daily coronavirus press briefings. Trump was asked about the House Democrat’s push for additional funding to support mail-in and absentee voting availability. He came out not just against the proposal but against the idea of mail in voting at all. He declared that he thinks a lot of people are cheating with mail-in voting and that people should be forced to show up and show an ID. So if mail-in voting becomes a necessity to hold the November election in the midst of a deepening pandemic, don’t be surprised if there’s a big GOP push for posting elections because that’s the only pandemic remedy they’re leaving on the table:
“It shouldn’t be mail-in voting, it should be you go to a booth and you proudly display yourself. You don’t send it in the mail where people can pick up — all sorts of bad things can happen … by the time it gets in and is tabulated.”
And that’s what’s going to happen if mail-in voting is the only option if there happens to be a viral pandemic going on this fall: it’s going to have to be in-person voting or no voting at all. We can just delay the election until the pandemic is over. Or maybe we will have mail-in voting and if Trump loses he’ll cry election fraud and cancel the results. Then again, if there is an mail-in election, there won’t be exit polling so that could make rigging the vote for Trump and all the Republicans even easier. All of this hyperventilating about mail-in voter fraud could just be preemptive projection in anticipation of carrying out massive voting-counting fraud of all those mail-in ballots. A classic GOP move. There’s all sorts of possibilities. The worst possibilities because we’re talking about the GOP and elections but it’s a variety of the worst possibilities. Be on the lookout for something awful.
Welp, it looks like we won’t need to worry about the GOP using the COVID-19 pandemic to indefinitely postpone elections. No, instead we need to start worry about the GOP using the pandemic as a new method for suppressing voter turnout. That’s what the Wisconsin GOP just demonstrated with a key assist from the conservative majority on the US Supreme Court. Because of course that’s what just happened:
Wisconsin had an election scheduled for Tuesday, April 7 (today). In addition to the Democratic primaries, the election included a number of state and local offices, including a critical 10-year seat on the Wisconsin Supreme Court which is already dominated by conservatives. So it wasn’t a trivial election but instead one of those local elections that could have a significant impact on the future of the state.
But what about the COVID-19 pandemic? Wouldn’t encouraging people to go out an vote go directly against the ‘shelter-at-home’ public health advisory? Yep. And what about poll workers? Isn’t there going to be dire shortage of them available to work? Yep. But that didn’t stop the GOP from essentially demanding that people do so anyway. In far fewer locations than normal in major metropolitan areas due to the lack of poll workers. Everyone who got to vote was forced to go to a relative handful of locations. Doesn’t that sound super safe?
The partisan fight over whether or not to push back the election reached was still frantically evolving on Monday, a day before the vote, when Wisconsin’s Democratic Governor, Tony Evers, issued an executive order suspending in-person voting, drawing an almost immediate challenge from Republican state leaders. Evers himself admitted he wasn’t even sure he had the power to issue that executive order but it was the last desperate attempt to push back the in-person voting after the Republican state legislature blocked Evers’s attempt over the weekend. The conservative-run Wisconsin Supreme Court shot down the executive order late Monday night.
Evers had issued an earlier order on Friday that called the legislature to convene a special session on Saturday so they could work out the details of pushing back the election. But the Republicans refused to do so and instead opened and then adjurned the special session in 17 seconds. So the Wisconsin GOP really did want to ensure that in-person voting had to happen today. In the middle of a pandemic. And that includes the GOP-dominated Wisconsin Supreme Court.
The case that ended up making it to the US Supreme Court had been working its way through Wisconsin’s courts late last week when Judge William Conley of the western district court of Wisconsin bitterly ruled that he didn’t have the power to postpone the election despite the urgent public health need to do so. But Judge Conley did extend the deadline for absentee voting by mail to April 13 and waived the need for a witness’s signature. This also drew an immediate legal challenge from the Republicans. Then, on Friday the 7th Circuit Court of Appeals ruled that the April 13th absentee deadline could stand but the waiver of the witness signature on the absentee ballot was invalid and any absentee ballots without that signature would be invalid. If someone did mail in their absentee ballot without the witness signature they must either physically bring a witness to the clerks office or polling place on election day or else get the mailed in ballot returned and then resent with the added signature. So there are likely thousands of cast votes that are going to be thrown out by that ruling.
That Appeals Court ruling was further appealed up to the Supreme Court which ruled Monday night. In that 5–4 partisan ruling, the high court rejected the April 13th absentee deadline, meaning everyone who hadn’t yet voted was either going have to either mail in their ballots or vote in-person on election day. And as Justice Ginsburg pointed out in her dissent of that ruling, “While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline.” That’s right. Thousands of voters who requested their absentee ballots probably hadn’t received them by election day, meaning they’ll be forced to choose between voting in-person and risking infection or skipping the vote altogether.
So the Wisconsin GOP got its wish with a huge assist from the conservative majority on the US Supreme Court GOP. A wish that was obviously rooted in a desire to suppress the vote with the expectation that this would help the conservative candidate for the Wisconsin Supreme Court.
Ok, first, here’s a TPM piece about Governor Evers’s hail may move to delay in-person voting. A hail mary necessitated by the GOP legislature’s refusal to even consider that option over the weekend:
“Evers’ long shot executive order is just the last in a chaotic flurry of attempts to delay the primary, as Wisconsin was left with the unenviable distinction of being the last holdout state plowing ahead with in-person voting in the month of April.”
The last state still holding elections in April. Thanks to the state GOP, of course. Every other state public the public’s health ahead of partisan concerns. But not Wisconsin’s GOP. That state Supreme Court seat is more precious the public health and anything that suppresses turnout helps the GOP. Especially a viral hyper-infectious pandemic:
And note that, while Governor Evers had also initially resisted pushing back the election, that was in part because it was always clear he was going to need the GOP’s support on that and it was always obvious the GOP wasn’t going to allow that to happen. So when Evers called that special session over the weekend in that last-minute gambit it was kind of like a hail mary for GOP decency. A hail mary that completely failed:
And note how the predictable severe poll worker shortage resulted in major metropolitan areas dramatically consolidating the number of voting locations, thus ensure anyone infected with COVID-19 who voted on election day would be allowed to spread the virus to a larger number of people from farther away. It really is like the GOP is trying to maximize the spread of the disease. Specifically in big cities like Milwaukee where the 180 polling locations got consolidated down to around 10:
Then there’s the parallel fight that was taking place in the courts. When a district court of Wisconsin judge ruled that the absentee ballots deadline could be extended to April 13 and waived the need for a witness signature the GOP immediately appealed and won a ruling in the 7th Circuit Court of Appeals that reinstated the witness signature requirement, potentially invalidating any ballots cast without that signature:
So that’s just all around awful. As we should have expected given both the gravity of the situation and the fact that the GOP’s cooperation was required to make it non-awful. But as the following article makes clear, this wasn’t just a Wisconsin GOP effort in awfulness. The conservative majority on the US Supreme Court didn’t miss its opportunity to be absolutely horrendous when it followed up on that Appeals Court ruling and decided to get rid of the April 13th absentee ballot extension too, thus ensuring a maximal in-person vote for election day and maximal in-person germ swapping:
“The top court’s five Republican-appointees, none of whom attached their name to the court’s order, reasoned that extending the date by which voters could mail absentee ballots “fundamentally alters the nature of the election.””
Extending the absentee ballot deadline six days “fundamentally alters the nature of the election.” That was the ‘reasoning’ used by the right-wing majority. And yet forcing voters to choose between risking their life or not voting doesn’t fundamentally alter the election. It’s exactly the kind of nonsense reasoning we should fear the most from the Roberts’s Court because so many of the major historic decisions under Roberts — like Citizens United or Rucho v Common Cause — end up relying are weird nonsense reasoning that involves some sort of sweeping action based on declaration of some sort of fundamental moral clarity that relies on highly tenuous reasoning. Fundamentally altering the nature of the election is indeed a significant issue but it’s not at all clear why extending the absentee ballot six days fundamentally alters an election and the conservative majority doesn’t bother trying to make it clear.
Instead, it sounds like they threw out the absentee ballot extension based on a technicality. OR a couple of technicalities. One technicality is that when the Wisconsin district court extended the deadline it extended it so that absentee ballots only needed to be postmarked by April 13th, not just received in the mail by that date. Basing the deadline on postmarks was an additional benefit not requested by the plaintiffs who originally brought — Democrats and voting rights groups — and that meant the court was going beyond what the plaintiffs asked for which apparently really irked the conservative jurists. So they had a problem with that part of the ruling and a problem with these changes happening at the last minute so close to the election. Their ruling chastised the district judge by reminding him that, the Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” And while that’s a sound principle, it’s not like this is an ordinary situation. But that’s the kind of thing that just kind of gets glossed over in the Roberts Court era, when strategically playing dumb and covering it up with legal argle bargle is the ultimate power play. That gets played over and over and just got played again:
And as Justice Ginsburg pointed out in her dissent, massive disenfranchisement is going to take place as result of that ruling. Voters who requested ballots at the last minute and hadn’t received them by Tuesday didn’t get to vote. That’s a predictable consequence of the Supreme Court’s ruling that was being justified on a pair of technicalities. Massive disenfranchisement:
Because that how the Roberts Court rolls. Finding little legal technicalities that — when combined with playing dumb — can be used as excuses for accomplishing key right-wing objectives. Maybe those objective include flooding the US political system with unlimited cash or allowing hyper-partisan gerrymandering of districts (which requires GOP control of state Supreme Courts). Or maybe it’s the object of suppressing the vote. Though any means necessary apparently. Forcing the vote in the middle of pandemic. That’s one of those “wow, that’s bad even for the GOP” moves. And it was just endorsed up and down the party. From the entire Wisconsin GOP up to the Supreme Court. That’s the signal that was just sent by the Roberts Court. COVID-19 is a perfectly acceptable method of voter suppression. Just ensure the pandemic is still bubbling right before the election. Preferably in the big cities. Maybe like a second COVID wave that hits just the big cities in swing states. Demanding that in-person voting take place on election day in the midst of COVID-20 outbreak will be totally fine as far as the Supreme Court goes. The in-person voting can even be held in consolidated numbers of polling stations due to worker shortages and illnesses that ensure lots of people from all over the area all congregate in extra long lines to swap the virus before heading home. That fine. Turning the election into a game of patriotic COVID-Roulette doesn’t fundamentally alter the election in the eyes of the Roberts Court’s conservative majority. Plague elections are all fine. Just don’t try to address the plague election too close to election day.
It’s also worth keeping in mind that anyone who voted in Wisconsin in-person is someone who is extremely likely to vote in the fall. These are not casual voters. So if any of them caught COVID during the in-person voting and end up dying that’s a sure-fire voter in the November election who just died. So if Tuesday’s election in Wisconsin ended up selectively being more likely to result in Democratic voter infections than Republican voter elections that’s going to represent a form of real GOP voter suppression. Voter suppression in the form of selectively killing off more Democratic voters than Republican voters.
And we can’t say the GOP would never do such a thing. They just did it. That’s what the forcing all of the voting in places like Milwaukee down to a handful of “consolidated” centers just did. That ensures mass selective infection of Democratic voters. Wisconsin’s hard core Democratic strongholds were just forced to hold their election in a handful of giant viral incubators. That just happened and it didn’t happen in Republican strongholds. Are we to believe the GOP didn’t noticed this fortuitous asymmetry? Of course not. The Wisconsin GOP must be giddy with themselves. They just become a national model. Literally killing off Democratic voters. And Republican voters. But more Democrats. Potentially way more Democrats if there’s extensive COVID spreading at one of the consolidated urban voting centers. The GOP is going to be doing this everywhere. How many of the states that postponed their election for like June or July are going to be still facing a pandemic when the rescheduled date approaches? And how many of those states will find their GOP demanding in-person voting and resisting absentee voting despite the public health risk? We’ll see. But now that the Roberts’s Court gave its blessing on this there’s no way Wisconsin’s death primary is the last time we hear about the GOP demanding that a state hold its election in the middle of a pandemic. It’s the ultimate voter suppression and it culls the elderly. Especially elderly minorities. There’s no way the GOP can resist this. Wisconsin’s plague election was a showcase of what’s possible as long as everyone works together at playing dangerously dumb. From state officials to the Wisconsin Supreme Court up to the Chief Justice of the US Supreme Court. Plague elections don’t happen on their own. It takes a really corrupt party with its grip on almost all of the power.
It’s been a couple weeks since President Trump made his now notorious call for the lifting of the COVID-19 shelter-in-place order by Easter Sunday. It was the kind of Trumpian form of ‘leadership’ that the US’s top infectious disease expert Anthony Fauci was forced to quickly dismiss as an “aspirational projection”, a characterization now shared by Trump as we’re at Easter Sunday eve with no end of the shelter-in-place orders in site.
That question of when the US might “reopen” and lift the growing number of shelter-in-place orders has been a key question from the very beginning given the extreme economic hardship and social dislocation created by the policies. Just a month ago it would have been unthinkable that this situation would likely remain in place through June or July. And yet here we are with the governor of Virginia already issuing a stay-at-home order that’s going to be in effect through June 10th. The reopening date just keeps getting pushed back to a more indeterminate “not now, maybe later” status as the scope of the pandemic grows. Thanks to the Trump administration’s ongoing bungling of the COVID-19 mass testing that’s going to understand the basic nature of this virus we still have no idea how long the prevailing shelter-in-place status is going to in force because we still have no real idea of how rapidly the SARS-CoV‑2 virus is sweeping through the populace and building up that ‘herd immunity’ threshold of exposure. Is this virus only slowly rolling through the US or is there a quiet epidemic of mild or asymptomatic cases. We still don’t know. And that raises the question: so is “reopening” the US in time for the November elections now an “aspirational” goal? Something they maybe could happen but really we probably shouldn’t assume will happen?
It’s an increasingly ominous question now that mail-in voting restrictions have become the latest GOP voter-suppression dirty trick. As we saw with the recent election in Wisconsin, the GOP is more than willing to play the twisted game of doing everything they could to restrict mail-in voting and forcing in-person voting. Even in areas where shelter-in-place orders are in effect and there’s such a massive shortage of poll workers that tha the voting centers needed to be consolidated into a a handful of super-voting centers in urban areas. And the conservative majority on the Supreme Court is more than happy to endorse this and legally back up this strategy. We now know beyond a shadow of a doubt that the GOP will happily exploit the coronavirus threat to public health pandemic as a voter suppression technique because we just saw them do it.
So with that question of whether or not it’s going to be safe to vote in-person during the November election ominously in mind, here’s an article about an answer recently given by Anthony Fauci during an interview when he asked about the prospects of reopening the US by November. Fauci’s answer? “I would hope that by November we would have things under such control that we could have a real degree of normality.” Whether or not a “real degree of normality” includes in-person voting is a matter or interpretation. But it sounds like he’s confident, but not super confident, that there will at least be a partial reopening of the US by then. In other words, in-person voting in November without the cloud of a public health threat is, at this point, kind of aspirational:
““If you had your way – and I know November to some people seems like a long time from now — would people in all 50 states have the right and ability to vote by mail?” Williams asked Fauci in an interview Friday evening.”
“If you had your way ... would people in all 50 states have the right and ability to vote by mail?” That was the question posed by Brian Williams to Anthony Fauci, which is an indirect way of asking Fauci how confident he is that the stay-at-home orders will be lifted across the US by then. And Fauci responded with a strategic statement about hoping that we would have a degree of normality by November:
That was certainly an aspirational answer by Fauci. Yes, it hinted at some sort of confidence that things would improve by November but it was still vaguely worded enough to leave it very unclear how confident Fauci is that in-person voting will be widely safe by November. If you watch the video of the interview, Fauci doesn’t exactly exude extreme confidence when he makes that statement. It really does sound largely aspirational.
And that’s going to be a crucial fact for the US to keep in mind as election day creeps closer and closer and the push to provide a mail-in backup option descends into a partisan fight and the latest GOP voter-suppression dirty trick: Getting this coronavirus under control by November to the point where in-person voting is safe remains an aspirational goal. We hope things will be under control enough that there can be a return to a degree of normality. But that’s all it is at this point. Hope. The question is whether it’s a realistic hope or a completely unrealistic hope like reopening everything by Easter. But either way, it’s still just hope. There’s no guarantee at all that the pandemic will be under control by November, especially with the Trump administration leading the response. The only realistic way to guarantee a viable election in November is to make the preparations now to ensure mail-in ballot access to everyone, something Trump and the GOP are completely opposing. So as we can see, a viable election in November largely aspirational at this point. Hopefully it goes better than Trump’s Easter wish.
Oh isn’t that classy: Justice Daniel Kelly — the Wisconsin Supreme Court conservative judge who was facing election during Wisconsin’s bizarre and dangerous special election last Tuesday in the middle of a viral pandemic — thankfully lost his reelection bid to progressive challenger Jill Karofsky. Kelly was the favorite going into the race so Karofsky’s 55% to 45% win was a surprisingly large margin of victory. And while the GOP would like to spin the loss as being reflective of the fact that Bernie Sanders was still on the ballot in the Wisconsin Democratic presidential primary that was also taking place that day, that primary was already a foregone conclusion by last Tuesday. Bernie on the ballot was no longer going to be a big draw. But the GOP forcing people to vote in person on election day in the middle of a pandemic while blocking all mail-in voting as much as possible appeared to be a pretty good draw for the Democrats, which is the exact opposite of the what the GOP hoped would happen. It was a glimmer of hope in the face of the GOP’s domination of Wisconsin’s politics. And a glimmer of hope in the face of the GOP’s mastery of dirty tricks. This was a dastardly GOP dirty trick that backfired. That Wisconsin Supreme Court seat was the primary reason the GOP was so willing to risk looking like psychos who were willing to suppress Democratic voters by turning voting into a public health threat in big cities.
But as the following article describes, Justice Kelly’s loss doesn’t mean he’s done suppressing the vote. It turns out there was a lawsuit brought by a right-wing outfit to purge the Wisconsin voter roles that had made its way up to the Supreme Court in December that Judge Kelly recused himself from because it the case could have affected his own election that just took place. But the Wisconsin Supreme Court never ruled on that case and now the election is over with a small window for Justice Kelly to rule before Jill Karofsky takes over. And Kelly just told everyone his intent on ruling on that case. A case that would result in the purge of more than 200,000 voters immediately.
The lawsuit case started off with a voter roll purge by the Wisconsin Elections Commission, which notified the voters to ask if they’d changed addresses. Those who failed to respond would be removed from the rolls in 2021. Yep. If you didn’t respond to a “did you change your address” query, you were dropped from the voter rolls in 2021. It’s a standard GOP ploy, but at least it wouldn’t impact the 2020 election. So of course a right-wing group called the Wisconsin Institute for Law & Liberty sued, arguing that the purge should take place immediately. Not 2021. So even this special election that took place last Tuesday would have had the people who didn’t respond to that “did you move?” postcard purged from the voter rolls, which is why Justice Kelly needed to recuse himself. The court was split 3–3 without Kelly so he’s clearly going to vote in favor of the conservatives and the purging of 200,000 voters immediately. As the article notes, Donald Trump won Wisconsin in 2016 by 23,000 votes. A purge of 200,000 is a really big deal for a state as closely divided as Wisconsin. So after losing an election he was supposed to win via dirty pandemic politics, Justice Kelly final judicial act on his way out is an outrageous voter purge lawsuit. Classy. Classic GOP Classy:
“The case could ultimately decide if more than 200,000 voters stay on the voting rolls for the election in November.”
200,000 voters thrown off the rolls this November. That’s what’s at stake. It didn’t start off that way. Initially the Wisconsin Elections Commission declared it was going to purge more than 200,000 from the rolls (simply for not responding to a change of address inquiry form) in 2021. So if people voted in 2020 they presumably would be kept on the rolls in 2021. It was a pretty bad purge but not awful. Then the Wisconsin Institute for Law & Liberty made it awful with the help of all the Wisconsin judges who have supported their absurd contention that the voting roll purge should take place immediately. That purge egregious voter purge is what Justice Kelly is about to finalize after losing his dirty pandemic election:
Yes, it looks like the Wisconsin GOP is going to get its purge despite losing the Supreme Court seat last weel. And they’ll still have a 4–3 majority on the court after Karofsky takes over. That’s how deep the GOP’s grip on power is in Wisconsin. Even when their dirty pandemic trick backfires they still have a Supreme Court majority.
So we’ll see how soon that purge takes place, but it’s worth noting that there’s another special election coming up on May 12th and this whole coronavirus election fiasco is poised to take place all over again. Except not quite. At this point it sounds like the May 12 election is still going to proceed as planned. That’s according to the Democratic governor’s office.
So why is Governor Evers, a Democrat, not looking at pushing back the May 12 election after the fiasco of last week? Well, it’s for a reason that underlines exactly why the GOP is going to be so interested in forcing in-person voting during pandemics in as many states as possible: the May 12 special election is in a rural district. The election is really not nearly as dangerous from a public health perspective because it’s not a big city. So pandemic election days for the GOP are mild public health nuisances for the GOP’s rural voter base and a serious public health threat to the Democrats in the cities. As the May 12 special election proceeding as planned makes clear:
“He emphasized differences between the special election and the one held last week. The congressional district is rural and fewer people have the coronavirus than in urban areas like Milwaukee, where people waited in line for hours to vote last week. There has also been more time for clerks to prepare for the special election and for voters to submit absentee ballots, Nilsestuen said.”
That’s going to be one of the meta-narratives for the 2020 election if COVID-19 is still stalking everyone on election. Voters in rural areas that happen to be the GOP base will have little to worry about when they go in to vote on election day. And urban voters will all expect to stand in death lines for hours with broken electronic voting machines and a lack of poll workers causes the system to grind to a halt while the virus spreads. A massive rural/urban asymmetry of expected voter experiences: mostly like normal vs super scary. It’s hard to see how that why that wouldn’t be a huge boost for the GOP. As long as people can’t mail in their votes, which the GOP will make sure is the case one way or another. As many dirty tricks as it takes and even a few extra so if one backfires you still have extra.
Then again, the election last week appeared to be an example of a real voter backlash that brought out more Democratic voters in defiance of the GOP’s dirty pandemic tricks. So that’s one way this rural/urban asymmetry in voting experiences can work out in a manner that doesn’t help the GOP. Voter outrage over GOP outrageousness. Might that apply at the national level if the COVID is still lurking in November? Voter outrage over the GOP exploitation of the pandemic for voter suppression purposes? It would be a very ironic backlash but if Wisconsin is a sign of what’s to come who knows what to expect nationally.
Plus it’s 2020. This is the kind of year when the GOP would pull a stunt like exploiting a viral pandemic to suppress the vote and having it actually drive people to the polls. It’s just a weird year. But it happened once already in Wisconsin so at least that role model was established. Assuming we don’t see a wave of COVID cases in Milwaukee from people who voted that day. If that happens that’s going to make this a much more potent voter suppression tool for the GOP. So we really have to wait and see if that April 7 electorate comes down with a bunch of corona, especially in the big cities where they squeezed everyone into a handful of super voting centers. Was there a bunch of infection? The incubation period is two weeks so we have another week for cases to develop and then it’s going to take a while for epidemiologists to know if there was an election-day outbreak.
So the GOP’s dirty pandemic trick may still pay off. Milwaukee’s role model coronavoters could end up becoming public health warnings. And the GOP’s dirty tricking will win again. Which isn’t a 2020 bizarro thing. GOP dirty tricks win every year. That’s kind of all the party does at this point. Every trick in the book. Including mass pandemic dirty tricks. If mass pandemic dirty tricks weren’t in the GOP dirty tricks book they are now.
And that points to one of the worst aspects of 2020’s growing awfulness: the sense that the year isn’t an anomaly but the start of something new. A new crappier era. Which is amazing because things were looking dire in 2019. But somehow we’re entering into a whole new era that’s even worse. Like GOP pandemic voter suppression deadly dirty tricks. The same ol’ awful with more opportunities for awfulness. That kind of worse.
Here’s a story that’s an ominously thematically appropriate story for the day after the Fourth of July. At least ominously thematically appropriate for the US. It’s about a scenario that is both technically and politically plausible that could allow President Trump to win reelection without a majority of the vote. And, no, it’s not the standard scenario that allowed Trump to win election in 2016 despite getting millions of fewer votes than Hillary Clinton via the electoral college. Instead it’s the kind of scenario that would break the perceived legitimacy of the US government far more than Trump’s 2016 victory or George W. Bush’s victory in Bush v. Gore ever did and would rely on many of the same legal tactics used by the GOP in that 2000 decision:
First, let’s assume Joe Biden clearly wins the election with both a majority of the popular vote and electoral college votes. Trump has no options at that point, right? Well, it turns out all he needs to do is declare the vote was somehow rigged in some key states where the outcome of the vote might be in question like Pennsylvania or Michigan and then have the Justice Department begin investigating the allegations. The idea is to prevent these states from being able to officially declare how their electoral votes are cast before the December 14th deadline.
Once that December 14th deadline is reached the case goes to the Supreme Court to decide how to proceed, just like with Bush v. Gore in 2000, when the conservative majority ruled that the December 14th deadline required that the recount of the vote in Florida couldn’t continue and therefore the original declaration of a George Bush victory must be respected. But under this new nightmare scenario the Supreme Court’s conservative majority wouldn’t make the same ruling. Instead, it would rule that the election would fall back to the House of Representatives pursuant to the rules of the constitution under this circumstances. And those rules don’t simply involve a vote by the representatives. Instead, each state gets one vote and the candidate that gets the majority of state votes wins the presidency.
Yep, it’s a constitution gimmick that operates like the undemocratic Senate where heavily populated states like California and rural states like North Dakota both get representation. A gimmick that, based on the makeup of the Senate, Trump would likely win today. And since Trump is already laying the groundwork for precisely this scenario by decrying mail-in voting as an invitation for mass Democratic fraud it’s a scenario we should probably be taking very seriously:
“Trump actually tweeted on June 22: “Rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. It will be the scandal of our times!” With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election”
Yep, Trump is actively laying the groundwork for precisely this scenario. And that’s why this isn’t just some hypothetical nightmare scenario. It’s happening now in the middle of a pandemic that’s almost certainly going to make voting by mail a public health necessity. So Trump is already taking the steps to ensure that if he does lose the popular vote he’s got a built in excuse. The question is whether or not he uses that excuse to hold onto power or not and that right there captures the peril of this moment: The fate of America’s democracy is, to some extent, up to Trump’s whims. To some extent that’s always the case with presidents. Their whims are inherently powerful. Which is kind of the whole point of democratically electing a president in the first place: so the people have a say in who gets to possess the immense power of the presidency for the next four years.
And all that’s part of what makes this story about this nightmare scenario an appropriate July 5th story for America. Because what better day than the day after Independence Day to reflect on all the scenarios that could result in the loss of democracy. Especially July 5th, 2020, when a scenario that could result in the loss of democracy is literally playing out before our eyes and an already-questionably-elected president is the one doing it. And the president happens to be an open fascist intent on dividing the nation for political gain. So while July 5th may not technically be a national holiday where America reflects on the scenarios that could result in a loss of democracy, it should be. There’s clearly a need for such a holiday.
We just got two more ominous hints that the Trump campaign’s 2020 reelection strategy is going to center around the ‘one-state-one-vote-emergency-election’ scheme in the wake of Trump’s ominous tweet yesterday about delaying the 2020 election due to the pandemic and right-wing fantasy fears of mail-in voter fraud:
First, recall how that scheme involves first contesting the validity of the popular vote in various states in the courts (by questioning the validity of mail-in ballots, for example) with the intent on preventing enough the electoral college from being able to cast a winning vote for a candidate by the December 14 deadline. The idea is that as long as the legal case is still stuck in the courts as the deadline approaches, the conservative majority on the Supreme Court will be able to justify sending the question of who gets elected to the House of Representatives. But the full House, which is currently controlled by the Democrats, wouldn’t get to vote for the next president. Instead, each state delegation casts a vote for president, making it a one-state-one-vote election of the president which is a vote Trump would likely win.
Next, here’s an article from last night about comments Trump had later in the day when asked about his tweets calling for the delay of the election over fantasy mail-in vote fraud fears. Did he walk it back and act like it was just another Trumpian gaslighting moment? Of course not. He doubled down and justified his call for delaying the election by asserting that it might take years to accurately count the vote anyway and saying that we should delay the election until a time when the victor can be definitively declared on election night. So that’s a new demand by Trump: that the winner be declared on election night.
Now why would Trump demand that a winner be declared on election night and now would that be a hint that is campaign is planning on locking up the election results in the courts for years? Well, Trump specifically said during his Thursday afternoon press conference that “For so many years, I’ve been watching elections and they say the projected winner or the winner of the election. I don’t want to see that take place in a week after November 3, or a month or, frankly, with litigation and everything else that can happen, years.”
And he made that comment about years of litigation in the context of an ongoing fearmongering campaign by the administration about the validity of mail-in ballots and mass foreign-government election rigging involving mail-in votes. And that’s why Trump demand that results be declared on election night is really just a gaslighting-method of extending his threat to lock of the election results in the courts over his fantasy mail-in voter fraud claims. And since the constitution requires that a new president be selected by January 20, that threat to lock up the election results for years is really a threat to force the kind of ‘Supreme Court decides’ situation that could result in the election getting turned into a one-state-one-vote contest:
““We should get ready for the fact that we may not know who won on Election Night,” Levitt said. “But there’s a process for counting, and a process for fighting over the count, and the Constitution says that all of that is over, full stop, well before noon on January 20.””
Yes, there is indeed a process for counting and a process for fighting over the count and this will all get worked out according to the Constitution well before January 20. But part of that process involves getting the Supreme Court involved, as we saw in with Bush v Gore in 2000, and that’s a process that includes the option of tossing the question over to the House for a one-state-one-vote emergency election. It’s obviously the kind option that would obviously only be used in an extreme emergency which is exactly what Trump is trying to create. That’s his strategy for reelection: creating an extreme election emergency, presumably so he can justify whatever scheme he can come up with that someone leaves him in office or at a minimum so he can declare himself the rightful Shadow President and spend his future representing some sort of ‘Alt’ US government. Which is the kidn of situation that qualifies as a giant extreme emergency. And that’s what’s so distressing about this strategy: if Trump’s strategy depends on creating a giant extreme electoral emergency in order to force the election results into the hands of the Supreme Court he really can create a giant extreme electoral emergency. All he has to do is keep doing what he’s doing. Which is exactly what he did during today’s press conference when he reiterated is call for election-night results and warned that this election is going to be the greatest election disaster in US history because of mail-in vote fraud. He also called for the election day to be moved up, seemingly to give more time for the court fights he’s predicting:
“You watch. They’re not going to announce anything on Nov. 3. They’re not going to announce it on the fourth or the fifth or the sixth. It’ll go on forever...”
The horror. Move over Antifa, not knowing who won the election on election night is the new greatest threat facing America. And all because of those horrible fraud-prone mail-in ballots, which are totally unlike absentee ballots that the Trump administration has no problem with and no concerns about:
But it’s important to acknowledge that, yes, if proper security measure’s aren’t put in place there can be problems with mail-in voting. As is the case with any system. So it’s going to be crucial for the remaining responsible portions of the government to be on the look out for the Trump administration intentionally leaving mail-in vote unsecure:
And, of course, the responsible remaining portions of government are going to need to be on the look out for Republican campaigns exploiting those mail-in insecurities that the Trump administration is going to be leaving open. It points to one of the fascinating dynamics developing here: the Trump campaign clearly wants extensive cheating to take place so he can invalidate the results of the election and he’s threatening to go to court for years fighting over those claims of fraud. But that kind of a multi-year court fight, which could involve extensive post-election investigations and data gathering, is precisely the kind of thing that could uncover all of the Republican mail-in voter fraud attempts that are probably going to be taking place. It points to another horrible aspect to this situation: if the Trump team wants to lock up the courts with charges of voter fraud it’s a very easy outcome to ensure. Just let the Republicans do what they do best and blatantly steal a bunch of elections via mail-in voter fraud and wait for all the justified lawsuits. Let’s not forget that the most recent major mail-in voter fraud conspiracy that was uncovered was the 2017 scheme in North Carolina involving ballot manipulation by a Republican operative. It’s not like the Republicans don’t know how to do mail-in voter fraud. And that’s why Trump is unfortunately correct. There will undoubtedly be plenty of mail-in voter fraud because it would almost be weird if there wasn’t widespread Republican mail-in voter fraud. Cheating is half of the party’s strategy at this point.
But let’s also not forget that part of the reason Trump might be placing so much attention on mail-in voter fraud fantasies is that he knows there’s still going to be a sizable amount of in-person voting and he knows that the Republican Party’s traditional election-rigging infrastructure (like hacked electronic voting machines or corrupted vote-counting system , etc) is a well-oiled machine that’s ready to go a ready to cheat the hell out of the in-person votes on the electronic voting machines — including electronic voting machines with a paper trail — in enough districts to secure a victory. So we could look at a kind of head-fake cheat psyop where Trump spends months lamenting the mail-in vote and making it seem like he’s planning on losing only to see him win a stunning victory on election night when the rigged electronic voting machine vote is immediately reported. And then Trump legal team can argue something like the election night vote was the real vote and we should just rely on that vote alone or whatever. It’s not hard to imagine the Trump team hoping to cheat out a huge election night margin so his lawyers can argue that it’s only fair to kick the case to a House vote because of that huge margin. It’s the kind of questionable legal argument that would tragically be in keeping with ‘unprecedent’ set by Bush v Gore’s notoriously shoddy legal reasoning in 2000.
So that’s Trump’s campaign strategy at this point: concoct an extreme election emergency and use that to justify the use of extreme one-state-one-vote election resolution mechanisms that happen to favor him. Or at least one example of that strategy being put to use by the Trump campaign. There are other extreme emergencies the Trump campaign has been working on...
The issue of Republican voter suppression of minorities is in the news again following a leaked audio recording of President Trump bragging about how the relatively low voting rate by African Americans helped him win in 2016. It turns out he was bragging about this to a group of US civil rights leaders who met him days before his 2017 inauguration, suggesting that black voters who chose not to vote were secret Trump supporters. It was a particularly Trumpian reminder of the Republican Party’s long-standing minority voter suppression agenda.
But as the following article also reminds us, the GOP’s minority voter suppression efforts aren’t limited to actually trying to prevent minorities from voting and perhaps not even the biggest area of ongoing minority voter suppression. Because if you think about it, gerrymandering is voter suppression. That’s the whole point, to make some votes more impactful than others. And as we’ve seen with the story of the Republican’s 2010 national gerrymandering project, Project REDMAP, when it comes to Republican gerrymandering it’s almost focused on always packing as many minority voters into a single district. So with the issues of structural racism looming large during the 2020 election season it’s worth keeping in mind that when the Supreme Court’s conservative majority ruled Rucho v Common Cause in favor or allowing basically extreme partisan gerrymandering last year that ruling was effectively an endorsement of structural racism. Structural racism that the GOP is planning on deepening in as many states as possible during the redistricting process next year:
“Americans looking for immediate ways to work to dismantle structural racism can – and must – turn their attention to this November’s state legislative races. Down-ballot races may not receive the same hype as the Biden-Trump contest, but those state races will determine to what extent antiracist activists and lawmakers will be able to achieve concrete policy gains for the next decade. Fighting gerrymandering is one of the best ways to fight structural racism.”
Yes, in terms of fighting structural racism in the US it’s hard to find of more effective and direct means than fighting gerrymandering, a practice that Republicans have turned into a science in recent decades. A science focused on packing as many minority voters into as few districts as possible, freeing up more and more politicians to ignore minority concerns and stripping minorities of real political influence. It’s extremely structural racism validated by the Supreme Court’s conservative majority just last year which is also a reminder that the conservative capture of a long-term Supreme Court majority by adopting a ‘though any means necessary’ political morality also represent a very real source of the structural racism of America. There’s going to be enduring structural racism in America as long as the court is prone to far right extremist legal interpretations and playing dumb about the implications. But for now the court is happy to play dumb about this major form of structural racism hiding in plain sight in the form of gerrymandering:
But the theft of political representation isn’t limited to the removal of political influence during elections as a result of packing minorities into a few concentrated districts and Republican over-representation in the House and state legislatures. And that over-representation of state legislatures, in turn, has given Republicans the opportunity to squash progressive laws passed by the local governments of the large cities. Large cities where minorities the majority of non-whites happen to live. It’s structural racism generated by Republican gerrymandering is a multifaceted phenomena:
So let’s hope the fact that Trump’s open embrace of white nationalism is guaranteed to be a central issue in the US 2020 presidential election leads to a national discussion of whether or not the GOP’s extreme gerrymandering is acceptable. The Supreme Court’s conservative majority declared it basically acceptable with its Rucho v Common Cause ruling last year and 2021 is the round of extreme gerrymandering. And if history is a guide the GOP’s gerrymandering is going to be even more extreme in 2021. The structural racism that comes from Republican race-based gerrymandering is poised to be even more extreme for the next decade.
It’s also a reminder that one of the reasons Americans needs to overwhelmingly reject the Republican Party’s embrace of white nationalism is that overwhelming majorities are now required to overcome all the racist gerrymandering. And for that same reason they’ll need to be even more overwhelmingly rejected for the next decade after they get done gerrymandering it even more next year.
With all of the understandable concern over the prospect of the Trump administration not just stealing the 2020 election but effectively breaking America’s democracy in the process, it’s easy to forget that the 2020 Census count represents an opportunity for the GOP to rig the balance of power for the next decade. Rigging the census count may not be the threat of breaking democracy but it’s still a massive threat. As the Republican Party has consistently made clear decade after decade, a lot of permanent damage can be done in a decade. And that’s why the story of a new Census Bureau whistleblower providing documents to the House Oversight Committee describing a Republican plot to undermine the accuracy of the census is such a big deal:
“The documents, released Wednesday, provide new details on how the Census Bureau is planning to speed through not just the process of collecting the decennial census data, but the post-collection quality checks that happen afterwards.”
It’s a multipronged sabotage effort. The Commerce Secretary, who oversees the census, has been directing census officials to plan for an expedited count that assures the apportionment count will be delivered by the end of the year, cramming a quality control process that normally takes four to five months down to two and a half months. It’s literally planning on lower quality and reduced accuracy. And the underlying motive appears to be ensuring that the official reapportionment count gets established while Trump is still in office so they can force their new ruling that undocumented immigrants don’t get counted. Keep in mind that undocumented immigrants are also the group that’s the most likely to be miscounted in the initial count so reducing the quality checks is a means of systematically under-counting that group:
And while the Democrat-controlled House COVID-19 relief bill granted the Census Bureau extensions for the deadlines, those extensions just happen to be missing from the Republican-controlled Senate bill:
And of course the extensions were missing from the Senate COVID relief bill. Because if there’s one thing the Republican Party has made abundantly clear long before Trump came along it’s that the party is fully committed to winning power through any means necessary. Especially when it comes to gerrymandering and rigging the census us basically an gerrymandering at the interstate level. It would be bizarre and disorienting if the extensions weren’t missing from the Senate bill.
It points towards one of the grand ironies about the relative lack of attention given to this open census-rigging scheme: on the one hand, it’s an easy story to ignore because there’s so much bigger and more immediate Republican sabotage taking place like the open sabotage of the postal system. But on the other hand, it’s an easy story to ignore because Republican corruption and sabotage is so ubiquitous its barely news anymore. It’s two sides of the same awful strategy. An awful strategy that, at this point, is on track to cheat out another decade of skewed House district apportionment maps designed to help Republicans.
Ruth Bader Ginsburg just died. The cause appears to be complications from metastatic pancreatic cancer. And while the implications of her death are profound and bound to become a defining issue for the rest of the 2020 election — Obamacare is basically dead now, as is Roe v Wade — here’s a quick reminder that one of the immediate implications of her death is that any Supreme Court votes that involve the resolution of elections, including the presidential election, will have to be done by a 5–3 conservative majority court. And that means the potential Trump re-election strategy we’ve been warned about — the strategy of creating electoral chaos and legal challenges to state electoral vote counts cases intended for the Supreme Court in the hopes that the court kicks the decision to the House of representatives where each state delegation gets one vote, effectively guaranteeing a Trump victory — it going to be even more tempting than ever. That’s assuming President Trump and the Republican-run Senate doesn’t ram through a Supreme Court nominee over the next six weeks and create a 6–3 conservative majority on any upcoming votes which would make such a re-election-by-House-vote strategy even more tempting:
“Perhaps the even bigger question is what her death means for any hypothetical disputes — a la Bush v. Gore — that arise after the election. The speculation on how those would play out center on Chief Justice Roberts’ instinct towards stirring the court away from highly politicized decisions when possible. But he may lose some leverage if the other conservatives can band together to deadlock a case. This means the way lower courts handle major post-election disputes will take on extra importance.”
Who will win what promises to be one of the most legally contested presidential elections of all time. It’s the big immediate legal issue immediately looming over the court and the kind of legal case that could either set or destroy a sense of legitimacy for the new court going forward.
And right now it’s a court with a 5–3 right-wing majority although, depending on the case, it’s possible John Roberts would side with the liberals resulting in a 4–4 tie. So what might happen if there’s a legal challenge involving the vote tallying that results in 4–4 tie? Well, it just upholds the last lower court decision in the case. So it’s not like a constitutional emergency. The US has operated with an even number of judges plenty of times in the past. As the following article points out, back in 2016 Senator Ted Cruz was pledging to block any new justice appointed by then-President Obama or a President Hillary Clinton indefinitely. The US would have had an 8‑judge Supreme Court for any election-related legal challenges in 2016 and Cruz was just fine with that. Flash forward to 2020 and Cruz is now characterizing the possibility of a 4–4 ruling election-related ruling as a constitutional crisis and the reason he is calling for a swift confirmation of a new justice
““Democrats and Joe Biden have made clear they intend to challenge this election,” he said in a Friday night interview on Fox News. “They intend to fight the legitimacy of the election. As you know, Hillary Clinton has told Joe Biden, ‘Under no circumstances should you concede, you should challenge this election.’ And we cannot have election day come and go with a four-four court. A four-four court that is equally divided cannot decide anything, and I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested litigation and a contested election.””
A four-four court that is equally divided cannot decide anything. That was the declaration of supposed constitutional lawyer Ted Cruz. A declaration intended to be a justification for rapidly replacing Ginsburg with a new far right justice. And a declaration that is completely contradicted by Cruz’s own stance on this exact same scenario in 2016 when Justice Scalia died:
Lindsey Graham has competition.
And note the critical detail on how cases could be handled in the event of a 4–4 tie: the lower court ruling stands:
It’s a detail that could be particularly important if the Trump administration is simply planning on waging any legal challenge it can come up with in order to get the case before the Supreme Court. Because if the Trump campaign’s legal challenge is a legal joke that makes it much more likely that the lower court ruling that would be upheld in the event of 4–4 ruling would be a ruling against the Trump campaign. Might that be one of the concerns facing the GOP and Trump campaign? The Trump team has made clear rampant legal challenges intended to delegitimize a loss are going to be central to its re-election strategy. The risk of a 4–4 tie upholding a lower court ruling might be a serious complication to that strategy.
But let’s not forget that a 4–4 tie requires Justice Roberts siding with the three remaining left-leaning justices. And while Republicans have grown accustomed to pretending like Roberts is some sort of left-winger over his decision to not completely invalidate Obamacare it’s absurd to think of him as anything other than a dedicated movement conservative. A dedicated movement conservative with the burden of having to hold a check on the most politically idiotic judicial ambitions of the right like undoing Obamacare. Roberts is effectively the new punching bag excuse that Republicans leaders and pundit can use to explain to the party base why the party hasn’t been able to execute the key ruling the party base demands — like undo Obamacare or ending Roe v Wade — that would be politically suicidal. All indications are that Roberts will strive to find a way to assist the Republicans and Trump campaign, just not necessarily the politically insane decisions that the right’s base often demands. And that’s part of what makes the scenario of the Supreme Court kicking the election to the House for a one-state-one-vote presidential election so intriguing at this point. Because it’s going to be up to Roberts whether or not it’s a 5–3 ruling or a 4–4 ruling. And if it’s a ruling that involves a highly questionable or absurd legal challenge by the Trump campaign a 5–3 ruling just might fall into that category of being too politically suicidal for Roberts to do it. And yet a 4–4 ruling that kicks upholds a lower court ruling is likely to uphold a ruling against the Trump campaign.
It’s the kind of scenario that could result in the ‘kicking it to the House’ option becoming the most politically palatable solution that results in a Trump victory, especially if the Trump campaign’s legal challenges are legally dubious. Instead of upholding a legally dubious challenge — the kind of ruling could do immense damage to the Roberts’s Court legacy and the legitimacy of the Republican Party — the conservative majority could rule 5–3 to kick it to the the House in the hopes of effectively giving Trump the win without looking overtly partisan.
It’s also worth keeping in mind another meta consideration that has to be on Roberts’s mind with any upcoming ruling on the election: At this point virtually every governing institution in the US is stacked in favor of the Republicans. The Senate is heavily skewed towards Republicans thanks to the fact that states large and small get the same two Senators. The House and state legislatures are is heavily skewed towards Republicans thanks to the kind of hyper-partisan gerrymandering that Roberts himself upheld last year. The Supreme Court had already skewed towards the Republicans for decades and is now set to be absurdly lop-sided. Voter suppression laws are ubiquitous and then there’s the ongoing mega-scandal of rigged electronic voting machines. The GOP has been so wildly successful at achieving a near permanent minority grip on power that the party is risking ‘Jumping the Shark’ with cheating.
And ‘Jumping the Shark’ on cheating really is a massive existential risk for a modern day conservative movement, something that’s not necessarily obvious given Trump’s open flagrant out-of-control corruption. There’s no denying the Republican Party has rooted its contemporary success over the last forty years (since Reagan, really) by effectively promoting a grievance narrative that conservatives are this powerless oppressed minority living in a country run by a ‘liberal elite’ establishment. It’s a narrative where government is inherently utterly corrupt and the only viable solution to dealing with this corruption is to elect Republicans so they can cut taxes and deregulation and, in doing so, fight corruption. Even today Trump is basically falling back on mass tax cuts and deregulation as his primary re-election ‘accomplishment’ and at the core of those ‘accomplishments’ is the sense that Democrats and ‘Big Government’ are deeply corrupt and Republicans will fix that corruption. It’s a narrative relies on selling foolish voters on the ahistorical narrative that the collapse of the American middle-class and ever-growing wealth inequality over the past four decades are somehow the result of an all powerful Democratic establishment that runs everything and has culminated in QAnon. And it’s a narrative the GOP must maintain going forward. It’s absurdly ironic that a party dedicated to securing a minority grip on power relies on a grievance narrative of powerlessness and subjugation but that’s how it is and the Republican Party under Trump is arguably more reliant on a grievance narrative of powerlessness and subjugation than ever before. That narrative is the pretext for stealing the election and virtually everything else crooked Trump does, after all, including his open strategy of stealing the election by preemptively delegitimizing the vote and bogging the outcome down with legal challenges. And maintaining that grievance narratives of GOP powerlessness has got be something John Roberts is thinking about has he plays out the various scenarios that will allow Trump to cheated out another term in office.
The issue of court packing has become a Republican talking point in the final stretch of the US presidential race now that the gross hypocrisy of the rushed confirmation of Amy Coney Barrett and warped nature of a 6–3 Supreme Court dominated by the far right has made the idea of adding new judges to the Supreme Court much more fashionable within Democratic circles. So it’s worth noting one of the key point in a recent piece by David Atkin’s on the topic of ‘court packing’: Not only is the Supreme Court already packed by the Republicans and about to get even more packed with Barrett, but the federal courts have been egregiously packed too by Trump and the Republicans during Trump’s first term after they blocked hundreds of federal judicial nominees during President Obama’s last two years in office. In other words, the stunt the GOP pulled blocking Merrick Garland’s nomination to the Supreme Court was replicated hundreds of times by the GOP at the federal level. So the relevant questions about court packing aren’t questions of whether or not a Joe Biden would pack the court. It’s a question of how a Biden administration is planning on unpacking the courts and a question of which need will get priority: unpacking the grossly Supreme Court or unpacking the absurdly packed federal courts:
“The fact that a president elected by minority vote, aided by a Senate representing a minority of Americans, in a system already designed to advantage conservative voices over liberal ones, should be able to rig the courts for decades with judges who will not only thwart future legislation but reverse hard-won gains, is an absurd insult to democracy. The courts have already been packed. If Barrett is confirmed to the Supreme Court, they will have been intolerably packed, in the service of a revanchist apartheid regime designed to overrule America’s growing progressive majority and prevent it from solving pressing crises like inequality, corporate consolidation and climate change.”
An absurd insult to democracy. It’s an apt way to describe the wild amount of court packing — in the form of cheated seats — that the Republican Party has managed to at the Supreme Court level and the federal court level — that’s already taken place, not even counting the gross absurdity of the Barrett appointment. \
And when it comes to absurd insults to democracy there’s an obvious optimal solution: correcting that insult within the confines of the rules of democracy. Like expanding the size of courts as has been cone many times in history. It’s just one of the many Constitutionally allowable options a Biden administration would have at its disposal:
And that’s why the big question about Joe Biden’s plans for the judiciary raised by the nomination of Amy Coney Barrett shouldn’t be a question of whether or not he’s planning on ‘packing’ the courts. The Democrats can’t pack courts the Republicans already packed. The question facing a Biden administration is how he’s planning on unpacking courts that were already packed by a party with so little public support it’s no longer able to win national elections without cheating.
There’s been a fair amount of hand wringing and head scratching over the fact that the Democrats lost seats in the House of Representatives and barely hung onto the Democratic House majority following an election that saw President Trump ultimately lose the popular vote by an even larger margin than 2016. So it’s worth recalling one of the key overarching grim realities of US politics: Gerrymandering has simply given the Republicans a MASSIVE default edge in the House, where somewhere between a quarter and third of the House is net-gerrymandering by Republicans and that’s factoring in Democratic gerrymandering.
It’s not even remotely equal which is why we should entirely expect Republicans to pick up seats in the House even when the Republican candidate gets fewer net votes because that’s how the system is rigged. States are so gerrymandered that Republicans have ensure they’ll get a majority of the House seats for that state even when they get a minority of the vote in some states.
But it’s not just House districts that are egregiously gerrymandered in favor of the Republicans. The district lines for state-legislatures are also gerrymandered and poised to be even more gerrymandered than ever. Recall how the Supreme Court followed up on its June 2019 Rucho v Common Cause ruling that removed the federal courts from issues of partisan gerrymander with another October 2019 ruling that concluded that it was perfectly fine that Michigan’s Republican-controlled legislature intentionally drew state district lines to minimize the representation of Democrats. That’s now going to be allowed in across the US with the next round of redistricting. The historically gerrymandered districts of the last decade are set to be more egregiously gerrymandered for the next decade.
And as the following article also grimly points out, since the Democrats didn’t manage to take back any state legislatures this election — and actually lost the New Hampshire state legislature — that upcoming decade of historically extreme gerrymandering is almost entirely going to be rigged in favor of the Republicans. Which means the GOP is almost certainly set to retake control of the House of Representatives in 2022. The only thing that could realistically avoid a the GOP recapturing the House in 2022 is the kind of overwhelming anger at the GOP that Trump himself generated for the 2018 when the Democrats recaptured the House after losing it in 2010.
And with a Democratic controlled White House and House of Representatives forced with a Republican-controlled Senate the situation is perfectly set up for a repeat of the exact same cynical tactics that helped lead the Republicans to the overwhelming victory they experienced in 2010. All the Republicans need to do is obstruct anything useful in the Senate and wait for the electorate to get frustrated. Sabotage in the Senate and an overwhelming right-wing media complex that will sell a narrative designed to exploit that sabotage. That’s all that’s required for Republican victories these days. The gerrymandering is really just the cherry on top and it’s set to be worse than ever for the next decade:
“Ten years ago, the midterm wave that swept Republicans to power in the House gave the GOP an advantage in state legislatures, too. That election year eventually cost Democrats control of 20 legislative chambers across the country.”
20 state legislative chambers were lost by the Democrats in 2010, a giant reward to the Republicans for their plot to block everything the Obama administration attempted in the middle of a historic recession. It’s a proven playbook that paid off not just for the next entire last decade but the next decade too. Even in 2018, when the Democrats took back control of the House of Representatives — despite all the gerrymandering — the Republicans still maintained their grip on state legislatures. In 2010, 198 of the House seats were gerrymandering by Republican-controlled legislatures compared to 51 seats in Democratic-controlled states. In 2020 it’s going to be . Democrats controlled just 51 seats. A net 147 seat advantage for Republicans. Basically one third of the House is reserved for Republicans due solely to legalized cheating. Systematic cheating that is seemingly systematically ignored by analysts whenever election day comes about. Somehow massive legalized Republican cheating isn’t a national issue:
And in 2020, it’s again going to be an overwhelmingly Republican-dominated gerrymandering process. 175 seats House seats will be gerrymandering by Republicans and 47 by Democrats. The only reason the Republicans don’t have more seats to gerrymander is because fives states did the right thing over the last decade and implemented new non-partisan commissions. Still a 128 net seat GOP advantage, well over a quarter of the House:
And thanks to the Supreme Court’s 2019 rulings that effectively legalized the most extreme partisan gerrymandering theoretically possible, this next cycle of gerrymandering is going to be even more stupidly lopsided than ever. Anything goes, at least in the states that still allow gerrymandering:
So as we appear to be poised for a period of American politics where allegations of a stolen election and massive Democratic voter fraud are going to be a Republican mantra for years to come, it’s going to be worth keeping in mind that every time the Republicans make an allegation of Democratic voter fraud — allegations that will almost certainly be fabrications and disinformation — that’s an opportunity to bring up the very real and absolutely undeniable massive legalized cheating that has basically handed the Republican Party between and quarter and third of the House of Representatives. Every single election. And thanks to the conservative majority on the Supreme Court that Trump has made into a super-majority it’s only going to get worse. The closest thing to good news here is that the GOP has already gerrymandered things so egregiously that there’s a limit to how much worse it can get.
There was a bizarre but informative interview this week by the Sinclair Broadcast Group. “America This Week” Eric Bolling interviewed Steve Bannon to discuss the Trump campaign’s election lawsuits. And as we should expect, Bannon laid out a path to victory for Trump that’s basically the strategy of trying to stall the certification of votes in enough states to get the election eventually tossed to the House of Representatives where it will be subject to a one-state-one-vote decision. As Bannon described in the interview, if the Trump campaign can block states from certifying their results by Dec. 8, the so-called “safe harbor” day, or by Dec. 14, the day electors have to cast their votes for president, then neither candidate may get the 270 electoral votes needed for victory and the decision will get kicked to the House. That’s the plan. Just stall and lock things up in the courts until December 14. Recall how Bannon recently alluded to the need for ‘patriots’ who will be willing to die for a second Trump term around the first week of December in places like Michigan, Pennsylvania, and Georgia. So this plan to stall the vote is presumably what he’s referring to when he made that declaration. And as we’ve seen, Bannon isn’t just a voice trying to influence Trump. He’s been working closely with the Trump campaign. Bannon’s plans are effectively the Trump team’s plans at this point. Some sort of stunts, potentially deadly stunts, that delays the certification of the vote in key states. That’s the plan:
“According to Bannon, if the Trump campaign can block states from certifying their results by Dec. 8, the so-called “safe harbor” day, or by Dec. 14, the day electors have to cast their votes for president, then neither candidate may get the 270 electoral votes needed for victory.”
Stall through any means necessary. Buy time through any means necessary. And get states to avoid certifying the vote through any means necessary. That’s the plan:
But all of the voter fraud allegations aren’t just about stalling and hoping that December 14 deadline is hit. It’s also about giving Republican-controlled state delegations the political cover to vote to give Trump the electoral college votes in states that Joe Biden won:
Many more lawsuits are coming up. As many as they can muster.
And that brings us to an update on this plan: A federal judge just threw out the Trump campaign’s lawsuit to get delay the certifications of the vote in Pennsylvania. And Pennsylvania was a crucial state to delay for this scheme to work. So barring some sort of highly unusual event, the Pennsylvania vote that gives Joe Biden those electoral votes going to happen. Which means Steve Bannon is presumably working on some highly unusual events right now. Highly unusual extralegal events that required some ‘patriots’ who are willing to die for a second Trump term in the next a couple of weeks.
It’s hard to guess what the most damaging part of the 2020 post-election GOP melt-down will end up being in the long-run. But it’s pretty easy to say at this point that the greatest long-term damage isn’t coming from President Trump himself, who has already flirted with everything from extortion to martial law. The greatest damage has come from the near uniform support of Trump’s behavior by his fellow Republicans because now nearly the entire Republican base has a new boogeyman to fixate on that’s going to be animating GOP politics for years to come and that new boogeyman is elections. Elections Republicans lose and that are assumed to have been completely stolen by a rigged deep state when Republicans don’t win. And that’s going to make the long-standing GOP tactics that really have rigged US elections (overwhelmingly in Republican favor) like gerrymandering even more popular with the Republican base. 2021 is going to be a year of unprecedented Republican gerrymandering that will be so disgustingly obviously rigged no one will be able to argue that it’s not a form of blatant cheating. But now that Republicans have laughingly convinced themselves that US elections are rigged against Republicans, blatant cheating like extreme gerrymandering will be not sure brushed off but actually demanded. We’re set to see the GOP base, not just the billionaire puppeteers, turn into gerrymandering super-fans over the course of 2021. That’s the demented nature of contemporary US politics.
So with that in mind, here’s a reminder that the extreme gerrymandering can include literally creating new opportunities to gerrymander races that previously couldn’t be gerrymandered. That’s precisely what Pennsylvania’s Republican party is attempting to do to state-level judicial races, which currently are state-wide races and therefore not the kinds of races you can gerrymander. As the following article notes, the Pennsylvania Republicans first brought this scheme up in 2018, after the state Supreme Court (which had a Democratic majority) shot down the heavily gerrymandered congressional map created by state Republicans in 2011. The scheme would create new regions for judges and each region would elect their own judge. There are 7 Supreme Court seats, 15 Superior Court seats, and 9 Commonwealth Court seats. So for each of those tiers there would be separate regional districts that would each election one judge. And all of these judicial districts would be vulnerable to gerrymandering. So it’s basically a scheme to allow the same GOP-dominated (and gerrymandered) state legislature to replace the state’s supreme court with a new gerrymandered Republican majority.
What is the likelihood of the plan succeeding? Well, the state House Republicans announced a few weeks ago that they were planning on reintroducing the bill. It would then need to pass the legislature. If the bill manages to pass the legislature by the end of February, it goes on the May 2021 primary ballot. So the May 2021 primary voters, which will likely to be a tiny segment of the overall electorate, will ultimately get to decide if this becomes law. Which means if there are more Republican primary voters than Democratic primary voters in May of 2021 — something highly likely — there’s a high probability of this becoming law. So overall, there’s actually a high probability of this becoming law.
Pennsylvania’s Democratic governor will have no say, and Pennsylvania will descend into becoming a rigged GOP fiefdom. A rigged fiefdom the GOP base is convinced is required to counter the mythical mass anti-Republican vote-rigging that stole the election from Trump:
“This week, Republicans in the House of Representatives announced plans to reintroduce their proposed constitutional amendment that would require Supreme Court justices, and judges of the Superior and Commonwealth Courts, to run for election in regional districts rather than statewide.”
The plan is clear: sell this scheme to the public as a means of giving the public, in particular rural Pennsylvania, more direct representation. And when people point out that these districts are going to be gerrymandered, howl in response about the deep state rigging elections against Republicans and the latest election conspiracy theory that Trump tweeted about. And then put it up for a ballot election during a low turnout election. Like the May 2021 primaries:
Note the voter turnout in the May 2017 Pennsylvania primaries, which are the most analogous in terms of being and off-year primary right after an election: voter turnout was described as ‘abysmal’ and ‘pitiful’ by election observers, with around 15 percent of eligible voters participating. That’s the group of who will be deciding whether or not Pennsylvania decides to gerrymander its state-level judicial system.
For the GOP voters in that primary, it’s going to heavily be people who listen closely what Trump and the right-wing Big Lie machine are spewing out. And thanks to the GOP’s embrace of the ‘stolen election’ hyper-grievance Big Lie, the idea of going out to vote for the gerrymandering of judges is probably going to be pretty popular with the Republican chunk of that 15 percent sliver of the electorate that shows up in May.
It’s a look at the next phase of the GOP’s strategy for maintaining its rigged grip on state-level offices: start turning the state-wide offices into regional hyper-gerrymandered offices, and if there’s a Democratic governor in the way get it passed as a ballot initiative during a primary. At least for states for that’s an option. And for the other states it will be the same general strategy: find a way to win through any means necessary. Any. Any at all. Really. But only ‘any means necessary’ in order to counter the anti-Republican deep state conspiracy that stole the election from Trump, of course. It’s only fair.
Here’s a pair of stories that’s a reminder that the Trump/GOP efforts to delegitimize the 2020 presidential vote — over allegations of mass voter fraud that somehow only impacted the presidential race and not the down ballot races — are by no means limited to the Trump White House and the GOP. The right-wing lobbyists of corporate America and the Koch-network of mega-donors has been deeply involved in this too. Long before the first votes were ever cast.
First, here’s a story about how Cleta Mitchell — a long-time conservative attorney who was one of the Trump lawyers who participated in the now-infamous phone call over the weekend between President Trump and Georgia’s Secretary of State Brad Raffensperger — just resigned from her law firm. Although it sounds more like she was basically kicked out of the firm, Foley & Lardner, over their embarrassment with her involvement with that phone call.
As the following article notes, senior White House officials reportedly had no idea Mitchell was working with Trump on the current post-election efforts, although she was long seen as one of the lawyers the White House would rely on to argue their cases in court...except that never happened since all of their joke lawsuits were thrown out of court. The article also note that Mitchell has for years been one of the loudest right-wing voices aledging voter fraud. Given that those claims by the right-wing of fraud have, for years, been utterly bogus, Mitchell was clearly a solid pick by Trump to participate in a phone call where they attempt to shake down Raffensperger based on made up allegations. Which is why Foley & Lardner apparently decided she’s the wrong pick for the them:
“Law firms, which often take pride in representing unpopular positions, rarely react strongly to political discourse. But Trump’s weekend call to the Georgia officials and insistence in trying to change the election’s result has been perceived by the legal community to be extraordinary and, in many instances, ethically and democratically out of bounds.”
Too sleazy for her law firm. The undemocratic Trump taint was just too much. At least when it became public. Which raises the question of when she actually started working with the Trump team on these post-election overturn-by-hook-or-crook efforts. We only learned about her involvement because this phone call was leaked. And senior White House officials are telling CNN they didn’t about her involvement until that leak. Is this true? Or might we be seeing an effort to obscure the extent of her involvement by everyone claiming ignorance? Part of the reason that’s such a compelling question is that Mitchell was clearly going be involved in these efforts because she’s been one of the leading right-wing ‘voter fraud’ voices for years:
So was Mitchell’s involvement a secret to protect the her reputation and the reputation of her law firm? Maybe. But as the following article notes, there’s another major association of Mitchell’s that we should be keeping mind here: Cleta Mitchell has been working closely with the American Legislative Exchange Council (ALEC) and the Koch network on their own long-standing voter suppression efforts. Efforts that go as far as repealing the 17th Amendment and no longer directly electing senators. In fact, she was the featured speaker at a ‘FreedomWorks Election Protection Summit’ in early October of last year, where members strategized to challenge the validity of mail-in votes should Biden win. So when Mitchell was revealed to be secretly working on the Trump campaign’s post-election ‘legal’ efforts, she was indirectly revealing the secret involvement of groups like ALEC in these efforts too:
“Prominent conservative Republican lawyer Cleta Mitchell — a partner in the politically connected law firm Foley & Lardner — has been working with the American Legislative Exchange Council to challenge the results of the presidential election.”
Cleta Mitchell isn’t just a legal darling of the White House. The Koch network clearly loves hers, making her the featured speaker of the FreedomWorks Election Protection Summit. A summit that, again, raises the question: what might the rest of the vast network of Koch-financed entities like ALEC be doing right now to assist the Trump/GOP efforts to overturn the election? We don’t know but secret efforts are likely underway if Mitchell’s secret work for Trump is any indication:
Would the Koch network dare back Trump’s efforts to basically steal the election? Well, it’s not like they haven’t been trying to overturn and capture democracy for years. You don’t propose overturning the 17th Amendment and eliminating the direct election of senators if you’re in favor of democracy. If anything, the national crisis Trump’s post-election fight is creating is simultaneously creating one of the greatest opportunities for the Koch network to succeed in capturing democracy its ever seen:
Note that even Republican Senator Ben Sasse, a relative moderate these days, publicly opined about the virtues of repealing the 17th Amendment back in September. That’s how popular this idea is within the GOP and it just happens to be one of the Koch network’s pet projects.
And that’s all why the dismissal of Cleta Mitchell from her law firm over her secret Trump efforts should be raising the question of how many other people are making similar secret efforts and how many of them just happen to be deeply involved with the Koch network.
What’s to be done with the Republican Party? It’s a question many within the GOP have been asking ever since Donald Trump effectively took over the party in 2016, and is now perhaps the question facing the party after reports that Trump is considering starting his own “Patriot Party”. And while there are no easy answers to this question, it’s worth beating the following dead horse one more time: nothing will moderate the Republican Party until gerrymandering is ended:
“The outlines of Ohio’s Fourth Congressional District have left Mr. Jordan, like scores of other congressional and state lawmakers, accountable only to his party’s electorate in Republican primaries. That phenomenon encouraged the Republican Party’s fealty to President Trump as he pushed his baseless claims of election fraud.”
It’s no secret. Gerrymandering encourages Republicans to be as extreme as possible. That’s why almost of the Republican members of the House who supported Donald Trump’s election-rigging claims and refuse to condemn Trump’s role in the Jan 6 storming of the Capitol are basically guaranteed to win reelection thanks to gerrymandering. Gerrymandering specifically designed to guarantee Republican victories in the general election which, in turn, essentially hands political power to the Republican primary voters. The same Republican primary voters who overwhelmingly continue to support Donald Trump no matter what he does:
There’s no denying that gerrymandering turbo-charges Republican extremism. And at this point, given the wild extent of Republican control at the state-level and all of the gerrymandering that entails, most of the Republican caucus in the House comes from districts gerrymandered to elect Republicans. For the 116th congress (2019–2020), there were 197 Republicans in the House. 139 of those 197 representatives voted to object to Joe Biden’s election, fully supporting Trump’s claims of mass voter fraud. If those 139, 85 came from states where the GOP completely controls the redistricting process and another 28 come from districts gerrymandered by the GOP om 2011 without any Democratic input. So 113 out of the 139 Republicans who voted to object to Biden’s election came from gerrymandered districts:
And that’s why there should be absolutely no expectation of any moderation in the Republican Party until gerrymandering ends. A majority of the party comes from districts designed to ensure exclusive fealty to the most extreme elements of party’s voter base.
Also keep in mind that with 2021 kicking off a whole new round of redistricting and Republicans maintaining their grip on state offices, the gerrymandering is probably going to be even worse over the next decade, especially after the Supreme Court’s conservative majority ruled in Rucho v Common Cause to remove federal oversight of gerrymandering for most cases. The systematic incentives for Republican members of the House to be as extreme as possible are only going to get worse.
Also keep in mind that, should Donald Trump following through with his threat to form a new party, as long as the Republican voter base remains loyal to Trump, all of those gerrymandered districts will suddenly become gerrymandered for Trump’s new “Patriot Party”. And that, in turn, would actually moderate the Republican Party because the only members left would presumably be the never-Trumper Republicans, although the moderate Republicans nominated by the remaining moderated GOP electorate would presumably fair poorly during the general election and likely lose to either the “Patriot Party” candidate or the Democrat. In other words, the only realistic way to moderate the Republican Party at this point is to effectively let it die by allowing the majority of extremists to leave for an even more extreme party. Or end gerrymandering.
In light of the moves by Republicans in the Arizona state House to grant the state legislature unilateral power to reverse the state’s presidential election results, here’s a reminder of the full-spectrum nature of the Republican Party’s commitment to rigging American democracy:
In 2000, Arizona’s voters passed a referendum to minimize the impact of gerrymandering by setting up an independent commission to handle the redistricting process. The commission consists of two Democrats, two Republicans, and a fifth member that is supposed to be a non-partisan independent. Based on the design of the commission, the independence of that fifth member is obviously vital for the will of the voters to be carried out with non-gerrymandered districts. So, of course, the Arizona GOP is trying to fill it with a partisan stooge who will rubber-stamp the partisan gerrymandering the GOP has in mind for this year’s redistricting process:
“Arizona’s commission places the burden of drawing lines onto five people. Four of them are essentially chosen by lawmakers. One person must stand between the two political parties. It’s an impossible task — and of course one that both parties will look to warp to their own advantage. Democrats believed that Republicans got the better of the commission after 2000. Republicans thought Democrats worked the rules better than them after 2010. One former GOP member of the commission told me for “Ratf**ked,” my book on the weaponization of partisan gerrymandering, that in 2020, his party would look to dominate the appellate court application process. ”
It’s a simple design to avoid the destructive perils of gerrymandering: have an independent tie-breaker. A simple design with some very simple pitfalls. Like the risk of putting a partisan hack in that crucial tie-breaker position. The whole system becomes a hyper-partisan broken mess. And that mess is precisely what the Arizona Republicans have been working on creating for years now. A deliberate effort to corrupt Arizona’s non-partisan redistricting process with the full backing of Arizona’s Republican governor:
And keep in mind that that the national implications of this corruption of the Arizona’s redistricting process could have national implications that go beyond swinging control of the White House or Senate. If the initiative by the Arizona Republicans in the House to give the state legislature unilateral power to overturn presidential elections, the partisan composition of the Arizona state legislature is something that will take on new national importance. After all, imagine if Arizona’s legislature already had the power to unilaterally overturn the 2020 presidential election results. What were the odds that the NOT happening? They’re pushing this legislation now because they want to overturn the 2020 election results and lack the authority. Future overturned election results are a virtual certainty if Arizona gives its legislature the unilateral power to overturn election results...as long as a Democrat wins the state and Republicans controls the state legislature. And that Republican control of the state legislature is a virtual certainty if the GOP is allowed to rig the redistricting process as it is clearly planning to do.
And that’s all why the Arizona Republican Party’s push to corrupt the non-partisan redistrictricting board isn’t just the latest expected attempt to rig Arizona’s state elections, along with the Arizona congressional House races, with egregious gerrymandering. It’s also an attempt by the Arizona Republicans to ensure Republicans control of the Arizona legislature so they can guarantee Arizona goes to a Republican in upcoming presidential elections. It’s a power-grab that’s ambitious even by GOP standards. Or at least by the pre-Jan 6 insurrection GOP standards. It’s more or less in line with the GOP’s post-Jan 6 standards.
Is significant electoral reform actually on the way for the United States? That’s the tantalizing prospect following the passage of H.R. 1 by the House of Representatives last week, pushing the historic election reform bill to the Senate, where its fate remains uncertain. Uncertain but definitely not doomed. At least that’s what we can infer by the growing howls from the right about the existential dangers H.R. 1 poses to American Democracy, with one right-wing hit piece after another being published in a major media push back. Which is exactly what we should expect given the contents of HR 1. The bill would effectively end gerrymandering as we know it. So it’s a very, very big deal. Such a big deal that the predictable giant right-wing HR 1 misinformation campaign is already underway from the Koch-funded Heritage Foundation with Hans Spakovsky leading the way. Ironically, it’s a giant misinformation campaign that should be seen as a sign of hope. Because we wouldn’t be hearing this much howling and lying if there wasn’t a real threat to the powerful interests paying for this giant misinformation campaign:
“On March 1, the largest “dark money” group tied to House Republicans, the American Action Network (AAN), says it began an ad campaign hitting House Democrats for their support of H.R. 1. The nonprofit AAN, which does not disclose its donors, was the top donor in the 2020 election cycle to the Congressional Leadership Fund (CLF), the super PAC affiliated with House Republicans, giving at least $26.4 million. AAN and CLF share the same president.”
The deepest pockets in the underworld of dark money are writing big checks. Because you need to write big checks when you’re running a national media campaign. And that’s what this appears to be: at least $26.4 million national media campaign targeting Democrats who vote for H.R. 1 with misinformation about the bill. That’s what the top Republican congressional super PAC is buying with it’s $26.4 million. A targeted retributive misinformation campaign intended to confuse voters about what HR 1 actually does. And the AAN is just one of the major right-wing entities waging this campaign. The Heritage Foundation’s lobbying arm is chipping in another $10 million for disinformation. Although that $10 million was just an initial investment. It’s presumably grown:
And note how HR 1’s major reforms go far beyond ending gerrymandering as we know it. The power and influence of the dark money networks financing this disinformation campaign will also be diluted with a new public financing system that gives 6‑to‑1 matching public donations for candidates who gather $50,000 in small donations from at least 1,000 individuals and agree to disclosure rules and voluntary limits. So if a candidate takes their political financing out of the dark and stops relying on that big donor cash, they are given a viable means of competing with dark money candidates in the spending arena. Oh, and it turns out even Republican voters like the contents of H.R. 1. This is why the dark money-financed propaganda around H.R. 1 is like a reality black hole. If the dark money system is going to keep politicians forced to suckle at its teat, a bill like HR1 can’t be allowed to see the light of day:
Imagine ending gerrymandering at the federal level and providing politicians a viable alternative to the dark money system that was given a steroid injection in 2010 with Citizens United. That could conceivably happen in the coming months. This is why the Washington Post editorial board was forced to ask two weeks ago what was the GOP so scare of in HR 1 that prompted such a full-throated and preposterous rhetorical response to the bill? Or as the WaPo put it, Republicans’ apocalyptic rhetoric is so wildly disproportionate to the contents of the bill, one must wonder what they are really worried about:
“The bill that has these politicians frothing is H.R. 1, a long piece of legislation with a noble purpose: making it easier for Americans to vote and encouraging the government to be more responsive to the people. Republicans’ apocalyptic rhetoric is so wildly disproportionate to the contents of the bill, one must wonder what they are really worried about.”
It’s a genuinely important question that should be asked and answered. What is it that has driven the GOP using apocalyptic rhetoric about a bill that guarantees voting rights, ends gerrymandering, and offers an alternatives to dark money. And while the answer is obviously, in part, that such a reform package would be a major blow to the electoral prospects of Republican politicians long reliant on heavily gerrymandered districts and billionaire dark cash. But it’s important to keep in mind that it isn’t just the Republican politicians and party who would find their power and influence wane with this bill. It’s the billionaires financing the dark money system steering the GOP that lose power and influence too. A lot of people really would lose power and influence with this reform. Specifically, people who currently hold WAY too much power and influence and are fundamentally corrupting democracy. It’s a good bill.
The issue of police killings continued to dominate US headlines this week as one officer-involved shooter after another took place at the same time the trial of Minneapolis police officer Derek Chauvin over the death of George Floyd played out. So as the US continues to struggle with the question of what can be done to address issue of systemic police violence, here’s an article that points to a related systemic issue working to prevent meaningful reforms. A related systemic issue that has only grown in impact as a result of the US’s incarceration binge over the past four decades: prison gerrymandering, where prisoners — who typically aren’t allowed to vote — are treated as constituents in the districts where they are being incarcerated.
Unlike electoral gerrymandering, prison gerrymandering isn’t explicitly done for partisan advantage, although the impact is highly partisan, with the Republican Party gaining a distinct advantage from the practice. But the effect isn’t just partisan in nature. Due to the fact that the US prisons are filled with minorities from urban areas but tend to be located in rural areas, prison gerrymandering is effectively a transfer of political power from urban to rural areas. But beyond that, it’s a mechanism through which the communities most heavily impacted by the impacts of America’s over-reliance on policing and incarceration — the prisoners and their families — find their state and local representation diluted. Studies have even shown that the representatives of the rural districts with prison populations don’t actually view it as their job to represent those prisoners and are more inclined to represent the interests of former constituents of theirs who are incarcerated elsewhere. And that’s why it’s important to keep in mind reforming the justice system in the US would be a lot easier if the US political system wasn’t basically set up to dilute the political power of the communities most desperate for that reform :
“The practice is distinct from partisan electoral gerrymandering, where districts are intentionally drawn to give one party a political advantage, but has similar effects: It can significantly impact political maps, particularly state house and senate districts. And when incarcerated people are counted in districts where they do not normally live and cannot vote, the results are a systemic redistribution of representation away from communities most impacted by mass incarceration to prison towns.”
A systemic redistribution of representation away from communities most impacted by mass incarceration to prison towns. There’s way way to deny that this is what’s happening. It’s literally a sales pitch for towns to build prisons: they’ll get more representation of they do it:
And this is why the system of prison gerrymandering is being called a modern-day manifestation of the Three-Fifths Compromise: rural areas get their state and local representation boosted by a large non-voting population of primarily minority people at the same time the urban areas those people came from are deprived of that representation. Which means any efforts to implement the kind of judicial reforms that could avoid all this mass incarceration in the first place get subjected to this Three-Fifths Comprise too:
And note that this isn’t a situation where there’s nothing states can do other than wait for a constitutional amendment. Illinois just became the tenth state to ban the practice. Only 40 more states to go:
Yes, prison gerrymandering is still poised to happen during the 2021 redistricting process in 40 out of 50 states. And that’s on top of all of the overtly political gerrymandering that’s going to be taking place too. Prison gerrymandering is extra gerrymandering directly targeting the communities most impacted by the justice system. Communities that just happen to be the very same communities most heavily impacted by overt political gerrymandering, to the direct benefit of the communities that already benefit the most from political gerrymandering. So as we can see, the Three-Fifths Compromise may not be an adequate analogy. After all, if people are being sent to off to prisons outside of their communities, stripped of their voting rights, and then having their representative power held by communities that don’t actually try to represent them, that’s more like a Five-Fifths situation. Which obviously isn’t the best situation for policing reforms.
The Republican-controlled Florida legislature just a passed the latest Republican voter suppression bill in what has become a nation-wide wave of Republican ‘election integrity’ laws being pushed in nearly every state in the US in response to the 2020 election outcome. So here’s a chilling recent reminder that when it comes to concerted nation-wide right-wing attempts to permanently seize power by rigging the US political system, the GOP’s concerted nation-wide voter suppression drive is really only one of the ongoing the GOP’s current concerted nation-wide attempts to rig the system. There’s also the concerted nation-wide drive to trigger an Article V Constitutional Convention and rigged the Constitution. And as with the GOP’s concerted nation-wide attempts to rig the electoral system, the GOP’s concerted nation-wide attempts to rig the US Constitution is only picking up steam, with the far right mega-donor backers of the Convention of the States agenda, like Rebekah Mercer or Charles Koch, recognizing that the growing right-wing conviction that 2020 was a stolen election can be channeled into greater grassroots support for the Convention of the States project. In other words, the 2020 ‘stolen election’ myth fiasco hasn’t just turned into a boon for advocates of suppressive voting laws. It’s turning into a boon for any right-wing agenda that purports to oppose ‘the system’ and a Convention of the States can fit with that agenda...especially if it’s a wild runaway convention.
And as the following piece points out, while it’s unclear from a legal standpoint if or how the triggers for such a convention are met and what exactly the rules would be once it got underway that might prevent it from becoming a ‘runaway convention’, that legal ambiguity is a feature. At least a feature for anyone who wants to see the US’s internal tensions exacerbated even more. Because it’s hard to think of a more effective means of deepening the existing partisan divide over the validity of the 2020 election than having a Constitutional Convention that’s widely seen as a far right farce by Democrats and as a last-ditch attempt to save American from the ‘deep state’ cabal by Republicans. There’s almost no outcome that actually changes the constitution and isn’t viewed as illegitimate by at least half the country. But that’s all a feature if tearing the country apart is part of your agenda. And with major backers like Rebekah Mercer, we can say with confidence that the people behind the Conventions of the States movement is fine with tearing the country apart too. It’s a perfectly acceptable Plan B, and perhaps Plan A.
Along those lines, as the following piece notes, Rebekah Mercer apparently managed to get Mark Meckler — co-founder of the Tea Party Patriots, one of the first and most influential of the Tea Party organizations — to step in as the temporary CEO of Parler in the hopes that Meckler — who is deeply involved in the Convention of the States movement — would use the position to help popularize the Convention of the States movement within the broader far right grassroots community. It turns out a lot of the conservative grassroots are also suspicious that the Convention of the States agenda is just a front for a giant corporate power grab, so Mercer is hoping Meckler can address that. Recall how the previous CEO of Parler, John Matze, was fired in February after claiming that Rebekah was preventing him from kicking neo-Nazi extremists who advocate violence off the platform. Because when it comes to Rebekah Mercer, overhauling the constitution and violent far right domestic terrorism are apparently an ‘either/or’ pairing.
And as the article also points out, former Wisconsin Governor Scott Walker has a new scheme to sue the US Congress into calling a convention based on a Balanced Budget constitutional amendment. It doesn’t sound like the legal reason is very sound behind the lawsuit but we’re obviously in a period where sound legal reasoning doesn’t necessarily prevail. It’s at least one more insane Republican lawsuit to clog of the judicial system and maybe one day maybe it to the rigged right-wing Supreme Court. And part of the much larger right-wing effort to rig the constitution that is only growing and accelerating
Oh, and as David Super, a Georgetown University law professor who has closely followed the movement for a new convention, predicts, if the GOP retakes control of the House and Senate after the mid-terms in 2022 they will immediately call for an Article V convention. So Mark Meckler had better hurry up on getting the Republican base to support a Constitution Convention because the oligarchs backing the project are looking like they’re going to try to make it happen at the earliest opportunity:
“Led by a prominent right-wing activist — former Tea Party Patriots founder Mark Meckler, who is also the current acting CEO of Parler, a social media platform popular on the right — the Convention of States Project has spread the gospel of a convention to an increasingly radical audience. This year, lawmakers proposed 42 Convention of States resolutions in at least 24 new states, according to the Center for Media and Democracy, which has long monitored the convention push.”
It’s Mark Meckler — co-founder of the Tea Party Patriots and now CEO of Parler — who has been pushing the Convention of States idea to the radicalized Parler audience at the same time Republican state legislator have been pushing the legislation to make a convention happen in at least 24 new states this year alone. Keep in mind that ALEC is a major backer of this project so that more or less guarantees all Republican-controlled states are going to try to make this happen.
And even if the Convention of States can’t be triggered by passing the 34 state threshold, the Balanced Budget amendment backers have already filed a lawsuit arguing they’ve already met the threshold and have another plan, led by Scott Walker, to get Republican officials to sue Congress to force a convention call. It’s this kind of multi-faceted well-funded push by highly connected figures that lends credence to Professor Super’s prediction that if the GOP retakes control if congress it will immediately push for an Article V convention. It’s at the top of the actual right-wing power agenda. The tippy-top:
And note how the Balanced Budget amendment drive is a drive to call a convention convention supposedly with the sole focus of budget-related amendments. Like a restricted convention. But we have no idea if it could remain constricted because there’s no legal precedent. And since the same people behind the Balanced Budget convention also want to see a whole Convention of States (or at least there’s a heavy overlap in support), we should have every reason to expect there to be a significant push to expand such a convention well beyond a balanced budget. Any bad idea could be considered. Not just bad budget ideas:
And note how Scott Walker’s lawsuit scheme is related to the Balanced Budget convention, so the the questions of whether or not that convention can remained constraint to the Balanced Budget or become a runaway convention is potentially very relevant to the US. If the stars align in just the wrong way this could happen:
Underscoring how high a priority this project is, note how Jim DeMint called it the Tea Party’s “New Mission” when he took over in 2017. It’s a big deal. At least a big deal to the people paying the bills for these right-wing ‘grassroots’ organizations. Which happens to overlap with the people paying the bills for organizations like ALEC:
It’s all coming together at the top, from an organizational standpoint. ALEC has state legislatures passing Convention of State bills and the Tea Party can focus on the mainstream conservative grassroots outreach. The problem is the mainstream conservative grassroots is increasingly found on placed like Parler, a platform built to encourage the co-mingling of mainstream conservatives with extremists. So we shouldn’t have been surprised that Rebekah Mercer took the firing of Parler’s CEO as an excuse to bring Mark Meckler in as the CEO savior for the company. It was free advertising for the Convention of States Project. The neo-Nazis can start getting excited about the Convention of States too. Well, neo-Nazi rabble. The elite neo-Nazis like the Mercers are clearly already excited about it:
And perhaps the most exciting aspect of this whole thing for elite neo-Nazis like Rebekah Mercer is how it doesn’t really matter if a convention’s results are legally upheld by courts. A convention that gets ignored by the course might even be preferable. It would be another excuse to burn the government down, the meta-agenda here:
So this is all something we have to keep in the back of our minds every time we read another story about a Republican attack voter rights. This parallel attack on the entire constitution is being carried out at the same time and it’s the kind of attack where the public is unlikely to notice it until its too late to do anything about. One day Scott Walker wins the wrong court case and the US suddenly finds itself on the road to a constitutional crisis. Except it won’t be sudden. It will be a long time in the making. A slow-motion campaign building up over decades towards a ‘sudden’ situation like Scott Walker winning the wrong court case. And if not that, something else. Limited only by their imagination, because money really isn’t an issue for this project. A project that could hand damn near everything to the people behind it if this stunt works. A project orchestrated by the people who already have almost everything. An awful bad-faithed project just sneaking along day by day, but now with an infusion of Koch cash, Trump’s ‘stolen victory’ lost cause, and Parler neo-Nazis encouraged to dream of their own version of the next constitution.
The state of Colorado made history a couple weeks ago, sort of, when it became of the first US state to release a proposed redistricting map for the 2021 redistricting cycle. Like many largely Democrat-controlled states, Colorado relies on an independent non-partisan commission to draw its districts in order to avoid the kind of gross inequities that come from gerrymander, which probably makes is easier to quickly generate a map.
So while we wait for the rest of the states to submit their maps, from non-partisan maps like Colorado’s to the hyper-gerrymandered GOP-controlled states, here’s an article that’s a reminder that the systemic cheating in the US from the gerrymandering alone is stacked so heavily in favor of the GOP that the party is poised to retake controlled of the House from gerrymandering alone. Or rather, from the additive impact of the 2021 gerrymandering on top of the GOP’s historic gerrymandering of 2011. So if you think the GOP acted like it was drunk was power before, just wait until it’s drunk with the kind of power it can’t lose because it doesn’t need to win to get it:
“In fact, everyone could vote the exact same way for Congress next year as they did in 2020 – when Democratic candidates nationwide won more than 4.7m votes than Republicans and narrowly held the chamber – but under the new maps that will be in place, the Republican party would take control.”
It’s a very useful way to quantify the level of cheating that’s about to take place as the national redistricting process plays out: if everyone voted the same in 2022 as they did in 2020, the GOP would have control of the House. It’s one of the undeniable yet unspeakably undemocratic features of American democracy, which is why it was kind of surprising when GOP Rep Ronny Jackson just came out and said more or less exactly that a few weeks ago:
And, again, it’s crucial to keep in mind that the gains from 2021 will be additional cheating on top of the historic game-changing cheating of 2011. They’re going to make the already historic cheating more historic. The kind of history we don’t want to repeat:
Block everything. Do nothing. And cheat like never before. That’s the GOP’s plan to retake the House 2022. A plan that Democrats aren’t really in a position to stop. Even a majority of voters can’t stop it. Especially after the Supreme Court’s historic 2019 ruling. The only thing that can stop this plan is the GOP’s own sense of decency and moral restraint. So of course everything is going to plan.
But one thing that definitely isn’t part of that plan is for this level of historic double-down cheating to become a campaign issue in 2022. It’s undetstandably left out of the plan since gerrymandering is basically never a major campaign issue, with the rare exception of Republicans like Susan Wagle in Kansas who literally campaigned on the idea of gerrymandering the lone Democrat out of the state delegation:
It really is just blatant cheating out in the open. And in the case of Susan Wagle, celebrated blatant cheating.
It all raises an interesting question that gets raised with each redistricting cycle but should be historically relevant this year: so will the historic cheating in 2021 by the GOP across the nation be a campaign issue in 2022? Is that kind of cheating ever a campaign issue?
It’s a fascinating campaign issue. Can the GOP cheat egregiously enough for the public to care enough to punish it enough to overcome the cheating. A kind of meta existential issue that’s simultaneously hard for the public to latch onto but also very easy. It’s viscerally easy to get from a basic fairness standpoint. The cheating keeps increasingly. Full spectrum. Will the GOP ever cheat so badly that electorate basically can’t kick it out of power? It’s a weirdly compelling campaign issue but compelling nonetheless. Or at least should be broadly compelling to the electorate. If it isn’t, that probably answers the question.
With the US 2022 mid-term election cycle steadily creeping up as the the months of 2021 tick away, here’s another reminder that the 2022 election cycle is going to be the first round of elections under the newly redrawn congressional districts, and thanks to the the GOP’s gross exploitation of gerrymandering tactics and the fact that Democratic-run states tend to use non-partisan redistricting boards, the GOP is virtually guaranteed to retake control of the House in 2022 based on redistricting alone. The party just needs to win 5 more seats. That was the conclusion of a new series put out by the University of Virginia’s Center for Politics. The GOP can almost certainly retake the House based on redistricting alone if nothing else changes.
What about control of the House in 2024? Well, this report concluded that if the GOP only wins House 225–230 seats in total, they’ll have a decent shot of retaking control in 2024. But if it’s 235–240 seats, there’s no realistic chance the GOP will lose control in 2024.
The only real caveat for the GOP in the report is the same caveat pathological gerrymanderers always have: these lines are locked in for a decade and they may not be quite as favorable for the GOP at the end of the decade due to demographic changes in some of the most heavily gerrymandered states like Texas and Georgia. It relates to the technique of breaking up Democratic-leaning districts and distributing those voters to surrounding Republican-solid districts, in the hopes that the districts remain Republican despite the influx of Democrats. In other words, if the GOP gets too greedy in breaking up democratic-leaning districts and distributing those voters to seemingly ‘safe’ GOP-leaning districts, those districts may not stay safe for the GOP by the end of the 2020s. But that’s pretty much the only gerrymandering-related risk the GOP faces. A risk that won’t really be felt until the end of the decade anyway.
So the bad news is the GOP is more or less guaranteed control of the House in 2022. What passes for good news is the fact that it’s possible for the to GOP get overly greedy and maybe this will backfire. Later. And heading into 2024, the GOP will likely have control of the House and maybe even the Senate. And that all raises a question we have to ask sooner or later: now that the GOP has embraced the mantle of ‘stolen elections’ and insurrections, what’s going to happen when it has control of Congress again and has the power to act on these new impulses?
Because as we’ve seen in one GOP-controlled state after another this year, the party is intent on using all of the legislative power at its disposal to lock in power by any means necessary. The legislative equivalent of gerrymandering. So with the GOP increasingly falling into the ‘stolen election’ fever swamps and increasingly embracing a narrative where Democrats are in league with the Chinese Communist Party to engage in vast systematic cheating in order to carry out a Satanic Communist agenda, what’s going to happen when the GOP retakes control of Congress? What will they do when compelled by this narrative? We’re going to find out in 2022 thanks to gerrymandering, no matter how much crazier the GOP gets between now and then:
“Kondik pointed to Florida, Georgia, Texas and North Carolina as states where Republicans could torque up their aggressiveness and squeeze out handfuls of seats. Estimates of how many seats they could get out of the redraw here vary from six to 16. Republicans only need to win back five seats to win the House in 2022.”
Five seats. That’s all the GOP needs to ‘win back’. And since gerrymandering counts as ‘winning back’, the GOP is a shoo-in for 2022. And pretty much all the election cycles after that for the rest of the decade. The only thing that can realistically cause the GOP to not win control of the House is if it already has control and the public gets to see what a disaster the party is when given power. The political equivalent of painfully dropping a hot potato. As always, the GOP is its own worst enemy, in part because its genuinely awful and in part because all the rest of the rules are rigged so heavily in its favor. Rigged so heavily that if the GOP ends up getting 235–240 seats in 2022 — which is totally plausible — it becomes unrealistic for any hope that the Democrats could retake control of the House in 2024:
But there’s one real risk to the GOP’s grip on power over the next decade: if it breaks up those Democratic-leaning districts too much and turns too many GOP-solid districts into GOP-leaning districts in the process, it’s entirely possible those GOP-leaning districts will end up becoming Democrat-leaning districts in the latter half of the decade, especially after they see how the GOP actually governs. Again, the GOP really is its own worst enemy left after all this rigging:
So it’s looking like the only thing that could realistically challenge the GOP’s control of the House in 2022 is large numbers of new non-voters — chronic non-voters the GOP had left out of its political calculus in constructing their district maps — suddenly showing up to the polls. Which raises another question: How long after retaking power will it take before the GOP makes itself too politically toxic to stay in power? So toxic even non-voters come out of the woodwork to show their disgust. Two election cycles? One? It’s a tragically common question to ask in the modern era, but things really have changed. Significantly for the worse, which is amazing given how awful the GOP has been for decades. But it’s happened. The party has somehow devolved. Don’t forget that we’re now in the post-Roe v Wade QAnon-GOP era with a Supreme Court that appears to be ready and willing to rubber stamp whatever legal garbage the right-wing throws at it. And this is happening at the same time the GOP is fully embracing insurrectionary QAnon-style white nationalism. The party is poised to implement a political lock on power at the same time its dropping the mask and morphing into a Democracy End Times cult. And basically every Republican-run state is going to be competing to see who can implement the most stringent abortion restrictions. The stars have aligned in a kind of ‘Monkey’s Paw’ way for the GOP: It will finally have default power, but only if it can avoid scary voters and only after the party has devolved to the point where the only thing it can do with the power is burn everything down, itself included. The Monkey’s Paw always wins. And other enemies of democracy, in this case.
We’re still waiting to see how the 2021 redistricting/gerrymandering process plays out, but at this point the big question is how the GOP balances the short-term objective of retaking control of the House in 2022 with the medium-term objective of holding the House throughout the rest of the decade and positioning the party as best as possible for the next redistricting cycle. And as we’ve seen recently, there are indications the GOP is leaning towards ‘playing it safe’ in many states, where opportunities to steal new Democratic seats are in many cases being passed by in favor or shoring of vulnerable existing Republican districts. Part of the reasoning is a healthy fear of the kind of judicial backlash the GOP experienced over the last decade in states like Pennsylvania, where the hyper-gerrymandered districts drawn in 2011 were forced by state courts to be redrawn. Another major part of the reasoning is the simple reality that the Republican Party’s edge in the suburbs has been steadily dwindling in recent election cycles and that trend doesn’t appear to be reversing any time soon. Shoring up vulnerable suburban Republican seats really is a serious medium-term party priority. Especially in the age of Trump and the Big Lie, where electoral polarization is the core strategy of the GOP. With Donald Trump increasingly looking like he’s running in 2024, the long-term consequences of Trump’s impact on the Republican Party’s broader electoral appeal isn’t just a long-term issue for the party. It’s a very immediate medium-term issue that’s going to be directly shaping the political dynamic in the US for at least the next decade. What is the ‘Trump effect’ going to be on suburban voters in 2026, 2028, and 2030 following a hyper-divisve 2024 Trump re-run? What are the consequences for House races if Trump runs in 2024 and loses? What about if he wins? How about if he ‘wins’ by effectively stealing the election through a successful insurrection next time? These are the kinds of questions that underscore just how wildly tricky the political calculus is for this round of Republican gerrymandering.
It’s worth point out another tangentially related tension that the GOP is undoubtedly feeling right now: the GOP’s push to give state legislatures the power to determine the outcome of presidential votes. Beyond being an attack on basic democratic norms, the move is also makes control of the states all the more vital for the party’s future. And control of the states is very much a gerrymandering-related issue. State-level districts are gerrymandered too, after all. Imagine the GOP passing a wave of state-level laws giving the states the power to overturn presidential votes, followed by waves of state-level losses later in the decade. That’s a real scenario the GOP has to be worried about. What good is setting up the state-level cheating-system if you can’t guarantee control of the states.
Finally, it’s worth keeping in mind that, for all of the concern at the Republican Party level with ‘overreaching’ (over-cheating) during this gerrymandering process and triggering a backlash, those are the kinds of concerns that are probably being felt at a much higher level than just the Republican Party leadership. The billionaires who own and operate the GOP have to getting at least somewhat concerned about a public perception that these billionaires pulling the GOP’s strings are the same ones determining the outcomes of state presidential votes under the new ‘states get to decide the vote’ presidential system the GOP is currently setting up. Like, what happens if the GOP actually uses these powers in 2024, a Republican ends up getting installed as president following a Republican state legislature’s overturning of the vote? Does Charles Koch, for example, expect that the US public will never figure out he’s the most powerful figure in the country in terms of dictating what the GOP does at the state-level? How about the rest of the GOP mega-donors who control organizations like ALEC that more or less dictate to the state-level GOP how to operate? Are they at all worried about ‘overreach’ these days now that they’re setting up a system where billionaire GOP mega-donors get to dictate who wins presidential elections? Because if there’s any sort of ‘overreach’ public backlash to the US’s upcoming “let the billionaires who control the GOP decide” system for presidential elections, that backlash is probably coming in the latter half of this decade, especially if any state legislatures end up using these new powers in 2024. Donald Trump isn’t going to be the party’s standard bearer forever. At some point the electorate is going to default back to recognizing the billionaires they loathe actually control the GOP.
It’s all part of what makes these reports about apparent GOP caution in this year’s redistricting process so fascinating to watch play out. The GOP knows it need to cheat to maintain its grip on power. But it also knows it’s getting less and less popular over time and really has nothing to offer the electorate beyond the kind of divisive polarization that’s dooming the party into minority status. They need to hold onto power long enough to end democracy permanently and secure What’s the best strategic move for a party with immense power, unlimited cunning, and no moral compass in this situation? It’s a horrible question we never should have had to ask but we’re forced to ask it and we’re going to get our answer soon
“The goal, insiders and observers say, is to shore up as many potentially vulnerable Republican incumbents as possible for as long as possible, a strategy that would create a more durable base of representatives in Congress from which to grow a more lasting majority.”
The goal is NOT to grab as many new seats as possible. Instead, the goal is to protect existing seats. It’s the kind of strategy that could be interpeted by Democrats in a variety of ways. On the one hand, it might indicate the GOP is so confident it’s going to retake control of the House in 2022 it doesn’t need to be as aggressive as possible with the gerrymandering. On the other hand, it might represent genuine fears that the latter half of the 2020s are going to be a rough period for the GOP. And these aren’t mutually exclusive scenarios. And for a party that is currently doubling down on Trump 2024 rerun, it’s entirely possible and perhaps probable that the GOP is convinced it’s got a lock on the House in 2022 but is also genuinely quite concerned about 2026 and later. The party really is make a historic gamble with these days. A kind of ‘all or nothing’ gamble. Trying to capture and destroy democracy to protect Trump’s imaginary stolen valor might generate some backlash down the line, after all. The GOP is still in the relatively early stages of formally transitioning to a post-democracy party. The party has to planning for the inevitable backlash:
But there’s a far more depressing way to interpret the GOP’s relative caution: the US is so heavily gerrymandered in favor the GOP already there’s almost no more gains that can be squeezed from the electoral map:
And that brings us to the final, extremely depressing way to interpret the news of the GOP’s relative caution here: the party is so confident Donald Trump is going to win in 2024 — through hook or crook or insurrection if need be — that they have to already start planning on the anti-Trumpian backlash that will inevitably follow. It points towards what has to be a growing generic concern for the GOP: how can the party avoid turning its attempted capture of the US democracy into an electoral issue that voters actually care about? It’s not really a long-term issue since elections aren’t part of that long-term future. But it’s got to be one of the biggest medium-term issues GOP strategists are thinking about these days. How will voters feel about the GOP’s rapidly descent into a violent fascist movement during the 2026, 2028, 2030 election cycles? If you’re a GOP gerrymanderer in 2021 and you aren’t taking these questions into consideration you aren’t really doing your job.
What sort of horrors away us in the GOP’s pit of gerrymandering despair? We’re going to find out as the 2021 redistricting process plays out in GOP-controlled states across the US. And we just got a horrible update out of Ohio. A somewhat predictable update but not entirely predictable. We could reasonably predict it would involve GOP treachery, because of course. But 2021 is also the first time the redistricting process it playing out following a 2018 state constitutional amendment overwhelmingly passed by voters that handed the redistricting process to a bi-partisan Redistricting Commission, out of the hands of the state legislature. So we can be confident of GOP cheating and treachery, but that cheating and treachery is playing out in a new rules-space that will have to be subverted in new ways.
So how did the Ohio GOP’s redistricting deviousness evolve in the face of the new voter measures? Simple, by sabotaging the commission and then dissolving it and handing the process back to the legislature. Yep, they cheated. The last cheat move in a whole sequence of cheating and sabotage to effectively ignore the state amendment. As a result, the Ohio GOP just secured newly gerrymandered maps that are even worse than the egregiously gerrymandered maps of 2011. Ohio lost one House seat at the federal level, going down from 16 to 15 seats. The new congressional maps are likely to take Ohio from its current 12–4 GOP/Democrat House mix to a new 13–3 balance. That’s up to 86% of the state’s House delegation held by a party that gets a bare majority of the state vote. This new map was signed into law by Governor DeWine. The scheme worked.
DeWine had plenty of reason to veto the map, but instead acted like it was some sort of unprecedented achievement of fairness. Now, on the one hand, one might not expect DeWine to take issue with a map generated by his own party, especially since, as governor, DeWine was one of the seven members of the Redistricting Commission. But part of what makes this story so wild, even by GOP corruption-story standards, is that DeWine was one of the three GOP members of that commission who were frozen out of the process along with the two Democrats. The whole commission was hijacked by two of the GOP members — House Speaker Robert Cupp and Senate President Matt Huffman — who developed the maps in secret while not giving other members access to the proposed maps and expensive sophisticated software used to assess the maps. The members locked out of this process included fellow Republicans DeWine, Secretary of State Frank LaRose, and Ohio Auditor Keith Faber.
As we’ll see, Faber and LaRose both claim they were initially assured access to the proposed maps and software but that never happened. Additionally, as co-chair of the commission, Cupp used his power to block holding hearings on matter until the last minute shortly before the deadline. And when that hearing finally happened, Cupp didn’t reveal a set of maps, Instead, he used his power to dissolve the commission and kick the whole process back to the legislature.
As we’ll see, part of what made the 2018 state constitutional amendment setting up the Redistricting Commission so significant is that the commission is subject to the state’s sunshine public disclosure laws. The state legislature, which previous devised maps, isn’t subject to such law. So the smoke-filled backroom negotiations in the legislatures that previous dominated this process will be allowed to dominate it for another cycle. The GOP-controlled legislature provided its rigged maps and DeWine signed them into law.
Now, there is one additional important catch as a consequence of the 2018 state constitutional amendment that acts as a potential block on this kind of egregious abuse of power. Just not necessarily enough of a block to make the GOP determine it’s still not worth it. The catch is that if the final map doesn’t have bipartisan support, it only applies for 4 years and the redistricting process has to be redone. So that’s what’s set to happen. The GOP is going with its super extra-hyperpartisan-gerrymandered maps, but just for four years.
Will the GOP pay a price for this kind of open defiance of the voters’ wishes four years from now? Well that’s the thing...they’re gerrymandering their state districts too. So it kind of doesn’t matter if state voters get upset about this. The swings of the electorate are already gerrymandered into irrelevance.
So that’s the update on how the redistricting process is playing out in GOP-controlled states. It’s as shamelessly corrupt as you should expect, but actually probably worse:
“The goal of the amendment was to encourage lawmakers in both parties to work together in redistricting and produce maps that reflect the state’s political orientation. But the GOP, which controls every lever of state government in Ohio, is instead moving at break-neck speed on congressional lines that could favor the party in 13 of its 15 districts.”
The voters had a clear goal when they amended the state’s constitution three years ago. But a mere constitutional amendment won’t stop the GOP from gerrymandering. They’re just act like the amendment never happened while simultaneously lying about how they’re ignoring it, with the end result being the same: more hyper-partisan gerrymandered districts for the next decade. Except it’s not the same. It’s worse. They’re even more gerrymandered than before. This is three years following a voter-passed constitutional amendment banning these exact behavior.
But what about the fact that these maps will only apply for the next four years and need to be redrawn due to the lack of Democratic support? Well, the Ohio GOP is likely fine with that, because they’ve already secured control of the state legislature for the next four years due to gerrymandering too. It reveals a fatal flaw in the Ohio anti-gerrymandering strategy: limiting the amount of time gerrymandered maps can be used doesn’t really dissuade parties from gerrymandering when it’s the same gerrymandered legislature that gets to draw the next round of maps. If anything, it actually incentivizes even worse gerrymandering to guarantee control in the next four years:
And now here’s a Cleveland.com editorial about the new maps that underscores just how bad faith the GOP really has been during this entire process. Because it turns out two of the Republicans on the seven-person Redistricting Commission — House Speaker Robert Cupp and Senate President Matt Huffman — even froze out the three other Republicans on the Committee — Governor DeWine, Secretary of State Frank LaRose, and Ohio Auditor Keith Faber — from fully accessing the maps and software needed to assess the maps. The maps were effectively drawn in secret by these two Republicans, completely contradictory to the new state constitution. So what did the other three Republicans shut out of the process do about it? Nothing, despite the fact that Governor DeWine had the power to veto the maps. Yep. DeWine had the power to block this GOP power grab but didn’t and actually praised the maps he was frozen out of drawing right before signing them into law:
“Blatantly partisan gerrymanders were — supposedly — outlawed. For congressional redistricting, the state constitution states that, “The general assembly shall not pass a plan that unduly favors or disfavors a political party or its incumbents.””
The voters of Ohio have been unambiguous in their intent. Repeatedly, in 2015 and 2018. Blatant partisan gerrymandering is supposed to be illegal in Ohio. The only problem is the Republican legislators, who have apparently unilaterally decided they don’t have to follow the law. As a result, the newly drawn Ohio congressional map is even more skewed towards the GOP:
And while the Ohio GOP leadership has been uniform in acquiescing to this power grab, they’re peddling a narrative about just how disappointed they are in how the envisioned bipartisanship didn’t pan out. The kind of a narrative that attempts to portray it as a bipartisan failure, and not a blatant GOP power grab. Two of the Republican’s on the seven-person Redistricting Commission — House Speaker Robert Cupp and Senate President Matt Huffman — even froze out the three other Republicans — Governor DeWine, Secretary of State Frank LaRose, and Ohio Auditor Keith Faber — leaving DeWine in a strong position to veto the map outright. But nope, DeWine signed it anyway, while grousing about how the bipartisanship just didn’t materialize like voters hoped. A pageantry of bad faith to cover for the power grab:
Adding to the sleazy nature of these moves is the fact that House Speaker Robert Cupp didn’t just freeze out five other members of the Redistricting Commission. He also used his power as co-chair of the Commission to avoid convening the group, sending the map-drawing process back to the legislature where the state’s sunshine laws don’t apply. It was a blatant bad faith move done in order to facilitate even more bad faith by avoiding the sunshine laws. And the only punishment the Ohio GOP will get for this is angry editorials. The party really has captured the state government. The GOP is running Ohio like a fiefdom:
And sure, it’s possible the Ohio Supreme Court will strike down the maps. But note what happens at that point: the maps are just sent back to the legislature for a new round of the farce. It’s a game. A game where it doesn’t really matter if you win or lose because you’re just trying to buy time to stay in power:
Finally, here’s another Cleveland.com piece on how the the two Republicans on the Commission — House Speaker Bob Cupp and Senate President Matt Huffman — froze the rest of the members out. As the other GOP members on the Commission described, Cupp and Huffman initially pledged to provide them access to the expensive mapping software needed to accurately assess these maps. But that access was never provided. The Democrats, on the other hand, were very open with their proposed maps. Maps that were already quite generous to Republicans, just not generous enough apparently: In their final offer, Democrats proposed a map that favored Republicans to win 20 of 33 Senate seats and 57 of 99 House seats. That’s compared to the final GOP which would have given the GOP 23 Senate seats and 62 House seats, which would give the GOP veto-proof supermajorities in both chambers. It was the breakdown over the negotiations between the GOP’s super-majority maps and the Democrats near-but-not-quite super-majority maps that prompted Cupp to dissolve the commission and throw the map drawing process back to the legislature, where the state sunshine laws don’t apply.
As the article notes, the GOP-drawn map created by Cupp and Huffman was so absurd that even Secretary of State Frank LaRose privately called their rationale “asinine”. So which set up maps did the LaRose and his other two fellow Republicans on the commission who were locked out of the map-drawing process ultimately support? The maps drawn by their two fellow GOPers who locked them out? Or the Democrats’ map? All three supported the GOP map, of course.
The article also points towards the open sabotage by Cupp and Huffman: as co-chair of the Redistricting Commission, Cupp had the power to block the commission for convening, which he did until shortly before the deadline. And when the commission was allowed to finally meet, Cupp didn’t produce a set of proposed maps. He instead used his power to dissolve the commission, kicking the map-drawing process back to the legislature. Open blatant sabotage to be rewarded with a near complete lock on power:
“The documents show how House Speaker Bob Cupp and Senate President Matt Huffman held the process close, having their aides draw the maps in secret, preventing even other Republicans on the commission from working with them. Cupp and Huffman are chosen for their leadership positions by their fellow lawmakers, giving them a vested personal interest in what the maps end up looking like.”
Three years after the voters of Ohio passed a state constitutional amendment designed to ensure the redistricting process was carried out in an open manner, we find the Legislative leaders of the GOP having their aides draw up the maps in secret:
So what was the ostensible source of the Redistricting Commission’s impasse? The Democrats’ and Republicans’ final offers couldn’t be bridged. The Democrats’ incredibly generous offer wasn’t enough to satisfy the GOP’s incredible greed. Note that with the way Ohio’s supermajority rules work on creating veto-proof legislation, having 23 Senate seats and 62 House seat would grant the Ohio GOP a veto-proof supermajority in the legislature. So the GOP was basically demanding a supermajority in the state senate despite having a slim majority of the state support and the Democrats wouldn’t grant it to them. That’s the crux of this ‘bipartisan’ breakdown in these negotiations:
Adding to the gross bad faith nature of these negotiation, note how state Auditor Keith Faber, one of three GOPers locked out of the process by Cupp and Huffman, was acting like both sides broke off the negotiations at the same time fellow GOPer LaRose was privately describing the GOP rationales for its proposed maps as “asinine”. But it’s the behavior by Cupp as co-chair of the Redistricting Commission that makes clear just how much bad faith dominated this process: first Cupp used his power as co-chair to avoid holding a meeting until shortly before the deadline. And when they finally held the meeting, they didn’t produce a map for state districts but instead disbanded the commission, kicking the process to the state legislature. It was just open sabotage the whole way:
Finally, note what is going to be at the crux of the various inevitable lawsuits that are going to emerge from all this: The Republicans are arguing that the rules are optional. The new rules passed by over 70% of the voters in 2018. Those rules are optional. Democrats are ruling they are mandatory. That’s the legal fight:
But let’s not kid ourselves. In contemporary America, the rules are optional as long as you’re a Republican. That’s the effective state of affairs, whether or not those rules (or lack thereof) are enshrined in formal law. The contemporary GOP is the party of insurrection, after all. That’s why the Ohio GOP just did what it did. It’s been a post-rules party for a while now. And if you have no moral qualms about it, why not be a post-rules party in contemporary America? It’s been working quite splendidly for the GOP so far. Just look at Ohio. What’s punishment will the Ohio GOP facing for this open violation of the wishes of the electorate carried out in blatant bad faith: an even greater lock on power. It’s what justice for the GOP looks like in a Trumpian post-rules America. Which is a lot like the pre-Trump America, but more blatant and egregious because that’s apparently more on-brand now.
Here’s an update on the Koch network’s quest to convene an Article V Convention of the States and overhaul the US constitution. It’s an ominous update:
There was a merger of sorts between an existing ‘America First’ pro-Trump super-PAC, America First Works, and a newly formed ‘America First’ think-tank, America First Policy Institute.
America First Works, formed after Trump’s 2017 Inauguration, was first called America First Policies before become America First Works after Trump’s 2020 lost. The name change probably had something to do with the fact that there’s circumstantial evidence pointing in the direction of America First Policies playing a dark money role in financing Women for America First group that actually paid for and organized the “March to Save America” rally that morphed into the January 6 Capitol Insurrection. Circumstantial evidence that includes a track record of seeming like an ‘independent’ extension of the Trump White House for the very beginning.
It’s important to recall how America First Policies wasn’t just any pro-Trump super-PAC. While GOP mega-donor Linda McMahan (of pro-wrestling fame, yes) is the public face as chair of the group, the group was founded by like a ‘Who’s Who’ of Trump World in early 2017. One of its cofounders was none other than Nick Ayers, the then-campaign aide for then-Vice President Mike Pence. Ayers went on to become Pence’s Chief of Staff until he left to return to the world of dark money in December 2018, after he turned down an offer from Trump to become the new White House Chief of Staff. Ayers also happened to have a mastery of dark money laws for keeping donor anonymous. And Ayers was far from the only prominent 2016 Trump campaign official to cofound the group. Brad Parscale, Rick Gates, Marty Obst, David Bossie, and Katrina Pierson were all on board. Both Ayers and Bossie reportedly have close ties to the Mercers. The group immediately went on to act as an attack dog appendage of the Trump White House. Recall how, back in June of 2017, it ran ads against moderate Republican Senator Dean Heller after Heller shot down Trump’s healthcare proposal for being too cruel, a role it was playing across the country at the time against wayward Republicans. America First Policies was an elite Trumpworld PAC working in coordination with the Trump White House and enforcing Trump-rule inside the GOP.
Then there’s the newly formed ‘think tank’ America First Policy Institute (AFPI) launched seven months ago in April. It’s literally a think-tank dedicated to resurrecting Trump’s “America First” policy. A ‘non-profit’ and ‘non-partisan’ think-tank, officially speaking, in order to maintain its tax sheltered status. Guess who the chair of the board is: Linda McMahon. So the story of the merger of the super-PAC and think tank is the story of the merger of two pro-Trump Linda McMahon-led entities.
Figures involved with the AFPI included ‘alt-right’-friendly gold-bug former economic advisor Larry Kudlow. Trump’s former top domestic policy adviser, Brooke Rollins, Rick Perry, and ex-director of national intelligence John Ratcliffe. Jared and Ivanka will be informal advisers. Even Trump’s spiritual adviser Paula White-Cain, will lead a “Center for American Values” as part of the initiative. White is notable in the evangelical world for back Trump early on when most of her fellow evangelicals were still backing Ted Cruz. She went on to deliver the invocation at Trump’s inauguration and chair of Trump’s White House evangelical advisory board. She’s also a leading figure in the growing world of Christian Dominionism, where political capture is seen as a Biblical imperative. It’s a diverse group of extremists at this ‘think-tank’ unified by a shared ‘America First’ agenda. An agenda that mostly revolves around raising money for schemes that will put Trump back in power.
Now here’s the creepy part involving the Koch-financed decades-long drive to trigger an Article V Convention of the States and overhaul the constitution: It turns out America First Works gave $250,000 to the Convention of States Action. And, again, that’s what they disclosed. This is a dark money entity that specializes in keeping donations secrets. It’s the kind of money that signifies a real interest in this area. And that’s creepy. Because at the end of the day, this ‘America First’ movement is an urgent movement. It’s a feature of the whole ‘stolen election’/‘insurrections are common sense’ narrative that’s at the heart of what ‘America First’ is about today. Stolen elections require urgent redress. Plus, Trump could die any day now. They got to get him back in power through any means necessary ASAP. That’s why $250,000 in ‘America First’ money (that we know about) thrown in the convention of the states is such bad news. It means they’re looking at that as a path to putting trump back into power. a constitutional convention. because it can always get worse:
“Neither America First Works nor America First Policy Institute is required by law to publicly disclose their donors. America First Works has given money to a group that claimed to have helped write Georgia’s voting law and another organization that is pushing to amend the Constitution to further impose limits on the federal government’s powers.”
Who are the donors funding this ‘non-partisan’ 501(c)(4)? We don’t get to know thanks to the US’s dark money laws that allow basically any group to claim ‘nonpartisan’ status regardless of how obviously partisan the group is in practice. Trump himself spoke at a gala event for the group earlier this month hosted at Mar-a-Lago. You almost can’t get more partisan. But that’s how the rules work so any mega-donors who want to support Trump without the public taint will have another avenue to do so:
But it’s this group’s interest in the Convention of the States movement that is really the big story here. Because while the Convention of the States has long been a project of the Koch mega-donor network, this hasn’t really been one of Trump’s pet issues. But it is now:
So it’s looking like the ‘stolen election’ Big Lie movement that has become the driving force for the post-2020 GOP is set to merge with the Koch-financed Convention of the States movement. Keep in mind the stakes in play here and just how conveniently Trump’s support for this project boosts its chances of succeeding. They need 34 states to call for the convention. And yet there’s a great deal of ambiguity in terms of which states have formally called for the convention, with some states subsequently rescinding their calls. So how will appending the ‘stolen election’ narrative to the Convention of States project boost the chances of that 34 state limit getting eventually reached? That’s what we’re going to find out. That $250,000 is is presumably fueling all sorts of awful ideas already so we’ll probably find out sooner rather than later.
Also keep in mind that if they really do pull this off and hold that convention and the Koch-dream of a constitutionally neutered federal government becomes reality, that’s a dream where states hold almost all power, insurrections against the federal government aren’t really going to be an issue because the federal government won’t really have much function beyond the military and other core functions. No, all the future Trumpian insurrection will be taking place at the state level, where all the power will be relocated in permanently gerrymandered state fiefdoms, rigged into perpetuity. At least that’s the dream. A dream that got a cool $250,000 of insurrectionary ‘America First’ cash with more to follow. The market for pro-insurrection dark money operations has never looked brighter. Nick Ayers is going to make a lot of money by the time this ‘America First’ movement is finally done tearing the US apart.
Here’s a story to keep in mind in light of the recent indications that the ‘America First’ Trump world is interested in boosting the Koch-financed push for an Article V Convention of the States: The American Legislative Exchange Council (ALEC) is holding its first ever ‘cross-partisan Amendment Event for State Legislators’ in a few days as part of the ALEC 2021 States & National Policy Summit. So it’s like a Convention of States practice event. There are a number of groups co-sponsoring the event. As we should expect, the vast majority of these co-sponsors are right-wing groups largely backed by the Koch money. Beyond ALEC, the co-sponsors were:
* The Reason Foundation: long a recipient of Koch money pushing a libertarian agenda.
* The Association of Mature American Citizens (AMAC): a Koch-financed right-wing version of the AARP. Founded by Reason Foundation senior fellow John Ramsey.
* Bill of Financial Responsibilities: another John Ramsey group closely tied to AMAC, focused on constitutional balanced budget amendments.
* National Tax Limitation Committee: A group founded in 1975 by Lewis K. Uhler focused on lower taxes. It also has a focus on “smokers’ rights” and sought a partnership with Philip Morris in opposing ‘big governmnet’.
* Path to Reform: Co-founded by John Cogswell, the group has 44 proposed constitutional amendments focused on ‘government reforms’ The reforms range from benign-sounding proposals for term limits and restrictions on campaign financing, to a vague fixation on opposing ‘socialism’. Fun fact about Cogswell: one of the constitutional amendments he proposes would mandate the government disclosure of all information on UFOs.
* The Reagan Project: founded by Alaskan former state senator Fritz Pettyjohn, it claims to be a a volunteer group dedicated to an Article V convention, presumably to enforce a ‘Reaganesque’ vision in the constitution.
* The State Legislators Article V Caucus: Another group dedicated exclusively to an Article V Constitutional Convention for the purpose of limiting the site of government.
* US Term Limits: A group dedicated to constitutional amendments that would impose term limits. Their specific proposal appears to be based on term limit legislation proposed by Senator Ted Cruz and Representative Ralph Norman (both Republicans) which limit House members to three two-year terms and Senators to two six-year terms.
* Vote “Americans’ Prosperity First” Amendment: The group behind the “Let Us Vote for a Balanced Budget Amendment” group: This mysterious group gives basically no information about the people involved or behind it on their website. But as we’re going to see in the second article excerpt below, it’s another Koch-directed group dedicated to bringing about a constitutional convention, ostensibly focused on a balanced budget amendment. And it has a plan for making that convention happen. A plan shared by former Wisconsin Governor Scott Walker during an ALEC convention last year. The plan centers on the fact that 28 have already passed laws calling for a balanced budget constitutional amendment, 6 short of the 34 state threshold. But there also happen to be 6 other states that have, at some point in time, called for a general constitutional convention, with the oldest call being New York in 1789. The idea is to get state attorneys general to all for Congress to convene a convention based on that interpretation and, should Congress refuse as expected, sue and take it to the Supreme Court. As we’ll see, it’s the kind of scheme that constitutional scholars couldn’t dismiss out of hand. It really might work.
And that disturbing potentially viable plan to trigger a constitutional convention brings us to the final to groups participating in the upcoming ALEC event:
* American Promise: American Promise was founded by Jeff Clements, an attorney and author of Corporations Are Not People: Reclaiming Democracy From Big Money and Global Corporations. And while it’s not exclusively comprised of left-leaning members, its leadership does include Democrats like 2020 Bernie Sanders campaign co-chair Nina Turner. And Harvard Law Professor Lawrence Lessig joined the America Promise advisory board in 2017. It’s worth noting that Lessig himself wrote a piece published in The Atlantic back in 2014 advocating for an Article V Constitutional convention with the goal of passing amendments that would remove dark money from US politics. In other words, this does NOT appear to be another Koch-dependent far right shell entity. It is, instead, an anti-dark-money group.
An anti-dark-money group working with ALEC and the Kochs. Take a moment to digest that.
* WOLF-PAC: This group was founded by former Cenk Uygur of the “The Young Turks”. Uygur, a former conservative who left the Republican Party following the 2003 US invasion of Iraq, has long been viewed with suspicion by many on the left as a crytpo-conservative harboring right-wing sentiments. WOLF-PAC, like American Promise, is supposed to be singularly dedicated to the goal of getting dark money out of US politics, through either a direct constitutional amendment or an Article V Constitution Convention.
So we have two groups both ostensibly moderate and dedicated to removing the influence of dark-money in US politics. Both looking at constitutional amendments as the solution. And both ended up teaming up with the ultimate dark-money cabal that is simultaneously trying to use this same constitutional convention movement to capture the US Constitution. WTF is going on here? Politics creates a lot of strange bedfellows, but how does that happen?
That’s the disturbing update on the far right billionaire quest to capture the US constitution: the cabal has a plan to make this happen sooner rather than later. And it has leftist help, witting or unwitting:
“AoS2 cosponsors are American Legislative Exchange Council, American Promise, Association of Mature American Citizens, Bill of Financial Responsibilities, National Tax Limitation Committee, Path to Reform, Reason Foundation, Reagan Project, State Legislators Article V Caucus, US Term Limits, Vote Americans’ Prosperity First Amendment and Wolf-PAC.”
Most of those names aren’t unexpected for an ALEC-sponsored event. They’re either directly Koch-backed or ideologically closely aligned. But then there’s American Promise and Wolf-PAC. Not only are these two organizations ostensibly ‘non-partisan’ with a number of left-leaning individuals, but they are anti-dark money groups with the single goal of achieving a constitutional amendment that would overturn Citizens United and remove dark money from politics. How could they possibly participate in an event this dangerous? Who knows, but this event is actually happening in a few days. More practice for the constitution-shredding cabal.
Which raises the question: will ALEC’s upcoming First-of-Its-Kind Constitutional Amendment Event for State Legislators involve training include training on how to wage the planned legal crusade to prompt the Supreme Court to force a constitutional convention? Because as the following article from July of 2020 about the ALEC convention taking place then made clear at the time, suing their way to that convention really has become the plan. A plan that still involves state legislator, but will require attorneys general too to put this lawsuit in motion:
“Former Wisconsin Gov. Scott Walker outlined a legal strategy to a gathering of state lawmakers and corporate lobbyists earlier this month designed to force a convention to consider the amendment even though only 28 states have still-pending resolutions calling for one, well short of the 34 required.”
They have a plan. A plan to achieve that 34-state threshold and force a Constitution Convention: in order to get from the existing count of 28 states that have voted for a federal balanced budget constitutional convention up to the 34 state threshold, they need to argue that states that have voted for a generic constitutional convention at any time since the founding of the US would count towards that 34 state threshold. This would include resolutions like the one passed by New York in 1789.
But here’s the core part of the scheme: recruit state attorneys general to file a legal order demanding that Congress recognize the 34 state resolutions and convene a constitutional convention. If Congress refuses, they would sue in federal court. Yep, get the Supreme Court to force a Constitutional Convention. As David Biddulph, co-founder of Let Us Vote for a Balanced Budget Amendment, put it during his presentation at the ALEC convention, “We think that the shortest path to actually getting a date for an Article V convention is through the Supreme Court...That is definitely not through Congress.” They want to make this happen as soon as possible. Note that Biddulph has his own bio page on ALEC’s website. He’s basically speaking on behalf of ALEC at that convention, not just as a guest:
And note the warnings from experts: this scheme could actually work. Especially with today’s Supreme Court:
Don’t forget that Ruth Bader Ginsburg hadn’t yet died and been replaced by far right stooge Amy Coney Barrett when this article was written. So that assessment by David Super that this plan had a real shot of working was his assessment while Ginsburg was still alive! What are the odds now? Presumably a lot better with Barrett on the court. Along with the help of some unexpected allies.
Is Ron DeSantis still the next ‘Donald Trump’ in the GOP as we head into 2024? Well, as we’re going to see in the next set of articles, DeSantis does have that Trumpian swagger when it comes to bombast and bluster and proud shamelessness. Legal bombast and bluster in the case of the DeSantis’s recent efforts to hijack Florida’s congressional redistricting process. Efforts that run in conflict with the Florida GOP legislature’s prevailing strategies for withstanding legal challenges to its gerrymandered map. And efforts that, so far, appear to be succeeding.
Yes, Ron DeSantis has a “novel” legal theory about redistricting and racial gerrymandering laws and he’s demanding Florida’s GOP-controlled legislature. A novel legal theory that apparently allows him to draw a new map that eliminates two of the four majority black congressional district in part of a larger partisan gerrymandering effort to shift the state from 16–11 Republican vs Democratic leaning seats to a new 20–8 balance. So the Democrats will lose three seat, two of which are among the state’s four black districts. But this is definitely not an act of racial gerrymandering, according to DeSantis. How so? Because the new map was draw independent of race, using just partisan voting data.
The novel legal theory apparently devise of DeSantis and his general counsel Ryan Newman, is that recent court decisions have determined that race should not take precedence over the 14th Amendment provisions of equal protection and therefore changes to the Legislature’s map were needed. In other words, they had a legal interpretation of recent Supreme Court decisions that led them to the conclusion that Florida’s majority black districts which were made, in part, to satisfy legal mandates to give minority groups equitable representation, were illegal and needed to be redrawn in a race-blind manner. That’s the legal justification for a map DeSantis is demanding the legislature pass that strips away two of the state’s four black majority districts and basically gives them to the GOP. Yep. He’s got that Trumpian reality/morality-defying swagger.
Part of what makes this story so gross is that DeSantis specifically cites the 2017 Supreme Court case Cooper v. Harris. As we’re going to see, this 2017 ruling was following a February 5, 2016 federal court ruling that found that two of North Carolina’s majority black districts — district 1 and 12 — were illegally partisan examples of racial gerrymandering. Specially, racially gerrymandering for the purpose of packing minority votes. Districts that started as racially gerrymandered districts in the 90s to protect black representation in the state had been turned into opportunities to pack votes. The case was a great example of the contextual nuance that complicates regulating something like racial gerrymandering: sometimes you want to do it to protect a minority group and sometimes it’s being used to abuse them and dilute their representation. And that legal nuance is even messier now that partisan gerrymandering is very legal, as the Supreme Court enshrined in its disastrous Rucho v. Common 2019 ruling.
And for black Americans, who overwhelming vote for the Democratic Party, the difference between an illegal racially-targeted gerrymander and a legal partisan gerrymander can come down to proving intent. Recall how the GOP’s expert witness in the ongoing lawsuits over North Carolina’s gerrymandering, Claremont McKenna College political scientist Douglas Johnson, had parts of his testimony tossed from the case after the judge found that he was making false claims. The GOP couldn’t even field honest expert witnesses.
In this case with Florida’s map, it would be a question intent of the person in Ron DeSantis’s office who drew those maps that just happened to get rid of to black majority districts as party of a GOP partisan power grab. Did that person factor in race at all when crafting that map? Ron DeSantis assures us that no, the new map definitely didn’t factor in race when it got rid of those black majority districts. Which is probably sort of true since those districts were indeed drawn by the Florida GOP to help fulfill the mandate of minority representation. Again, sometimes gerrymandering is actually what is required under the current legal precedents. That’s why having four racially gerrymandered black majority districts were seen by the Florida GOP as a way of protecting their map against legal challenges. But DeSantis has a new theory that just gets rid of them entirely on the premise that there can’t be any factoring of race in any redistricting decision at all. Partisanship, sure. But not race.
So how does DeSantis satisfy the legal requirements that minorities in Florida be represented? Apparently by declaring that they’ll have better representation under a map draw that doesn’t prioritize race so much. Getting rid of the black majority districts is the fix for black residents’ representation in Florida under this theory. At least that appears to be the gist of his argument. Regardless, it looks like the GOP-led legislature is going to pass his maps and the court will decide.
Interestingly, the one conservative justice who sided with the Courts four liberals in that 2017 Cooper v. Harris ruling was Clarence Thomas. As we’re going to see, it’s not as surprising as it may sound. Thomas has long opposed racial gerrymandering in all cases, whether it’s to harm or help the representation of a minority. DeSantis’s novel legal theory sure sounds a lot like Thomas’s calls for completely race-blind redistricting processes, which is something to keep in mind should we see the state of Florida take his maps to the Supreme Court.
And while DeSantis’s redistricting antics may not ultimate win out in the courts, that may not be the point. At least not in the medium-term. Because as we’re going to see, the conservative majority on the Supreme Court appears to be ready and willing to effectively block any real redistricting challenges still playing out in 2022. At least that’s what we can infer from a ruling two months ago in Merrill v. Milligan involving an Alabama redistricting case over new maps that have already been found by a panel of judges to be illegally racially gerrymandered against Alabama’s black population. The state appealed the Supreme Court using the preposterous argument that when the plaintiffs proved their case that the Alabama maps were illegally racially gerrymandered they did so with invalid evidence in the form of hypothetical maps showing alternative maps that were not racially gerrymandered. Alabama argued that, in creating those hypothetical maps, the plaintiffs were prioritizing race and that is illegal. In a 5–4 conservative majority ruling (Roberts dissented), the Supreme Court suspending the lower court ruling to immediately redraw the maps until the Supreme Court hears the case. Which won’t happen until after the 2022 election. So the maps that have already been found to be racially gerrymandered by a panel of judges are going to be used based on the nuisance trollish appeal to the Supreme Court by the state of Alabama.
Also, in that Merrill v. Milligan ruling, Brett Kavanaugh appeared to express the opinion that the redrawing of maps at all during an election year was an overreach. So when Ron DeSantis just demands the state of Florida pass his map that’s sure to face major legal challenges, he’s doing so following the troll-rewarding behavior by the Supreme Court in Merrill v. Milligan. It’s a reminder that, as awful as Ron DeSantis is on voting rights, it’s a group effort. A GOP-wide effort to rig the system in as many ways possible. It’s the GOP’s unspoken platform.
Ok, first, here’s a Miami Herald article about Ron DeSantis’s sudden demands that the legislature just pass his map, despite their reservations about its legal veracity and the ‘novel’ legal theory it’s predicated upon. Demands that the Florida GOP has been more than happy to submit to:
“Speaking to reporters earlier this week, DeSantis justified his decision to eliminate the districts that have elected Black candidates to office by citing Cooper v. Harris, a 2017 case in which the U.S. Supreme Court ruled 5–3 that the North Carolina General Assembly engaged in “unconstitutional racial gerrymanders” by relying on race too heavily when it drew two congressional districts following the 2010 Census.”
Ron DeSantis has his legal excuse all lined up: Cooper v. Harris, the 2017 Supreme Court ruling against North Carolina’s “unconstitutional racial gerrymanders” forms the legal basis for a new state congressional map that not only takes the GOP’s 16–11 majority in the Florida House delegation to 20–8, but does so at the expense of two black majority Democratic districts. Yes, DeSantis is citing the 2017 Cooper v. Harris Supreme Court ruling that struck down a set of maps that were proposed by North Carolina’s legislature after the original hyper-gerrymandered maps the GOP devised in 2010 were struck down and the GOP-led North Carolina legislature was tasked with redrawing them.
As we’re going to see, this 2017 ruling was following a February 5, 2016 federal court ruling that found that two of North Carolina’s majority black districts — district 1 and 12 — were illegally partisan examples of racial gerrymandering. Specially, racially gerrymandering for the purpose of packing minority votes. The Supreme Court’s Cooper v. Harris ruling was a 5–4 liberal majority ruling siding with the federal courts that found districts 1 and 12 to be examples of illegal racially-based gerrymandered packing, with Clarence Thomas playing the highly unusual role of siding with the 4 left-leaning justices then on the court. That’s the ruling Ron Desantis is citing in his attempts to justify getting rid of two of Florida’s black congressional districts and basically handing them to the GOP. A move that will give the GOP an even more absurd built in advantage in the Florida House delegation. Even Florida House leaders are referring to DeSantis’s arguments as a “novel” legal theory. And this does appear to be the first GOP attempt to turn the intent of Cooper v. Harris on its head and use it to justify dramatically reducing the representation of a state’s black voters. It is indeed novel cutting-edge BS in the GOP’s decades-long battle against minority voting:
And note how there was none of the required functional analysis on the impact DeSantis’s maps would have on minority voting rights. The GOP Senate had to step up and say it will do that on behalf of the governor’s office:
And now here’s another Miami Herald piece giving some more details on what exactly DeSantis’s legal arguments are in this case. And as the article points out, part of what makes DeSantis’s bid to break up two majority black districts is that it contradicts the legal approach embraced by GOP House and Senate Republican leaders to preserve Florida’s four Black congressional districts approved by the courts in 2015. It reflects a sense that the GOP has far less to worry about from legal challenges...or maybe DeSantis just wants to lock in extra corrupt maps for 2022. Either way, DeSantis’s “novel” legal theories really a break from the past for the Florida GOP’s recent approach to redistricting challenges. A very legally aggressive break from the past:
“The governor’s comments were the most explicit yet as tensions over the fate of redistricting have been festering for months. In January, the Republican governor broke with tradition and proposed his own congressional redistricting map that gave Republicans a 20–8 advantage over Democrats. It also contradicted the legal approach embraced by House and Senate Republican leaders, which preserved the four Black congressional districts approved by the courts in 2015.”
It’s not like the Florida GOP had the knives out for these four Black congressional districts. They had already agreed to preserve them. And presumably pack them when possible. And then Ron DeSantis comes along with his “novel” legal theory and comments about how these four districts were so wrong and “That is not the way we’ve governed in the State of Florida”. Just dripping with bad faith:
And at the core of DeSantis’s “novel” legal theory is that factoring in race when drawing district boundaries is illegal under all circumstances no matter what. Not just when it’s used to harm the representation of minorities as was happening in NC’s illegal packing of black voters into districts 1 and 12. It’s also illegal to factor in race even when you’re trying to afford protections for racial minorities. That appears to be the novel legal theory:
It’s also important to note that this case is scheduled to go to trial on May 12 in federal courts. As we’re going to see, that could put the case too close to the elections to redraw the maps once the Florida legislatures approves them. At least that’s the case if a “novel” legal theory being pushed by Supreme Court Justice Brett Kavanaugh serves as precedent:
And note how DeSantis is demanding that he be allowed to lead Florida’s redistricting process. But then when asked if he’ll be preserving a document trail, he dodges the question with a comment about how “I don’t really know how all this stuff works”. Even worse, DeSantis then pivoted to comments about how he really values the “compactness” of districts. It’s rather hilarious given that the GOP nationally has fully embraced the practice of oddly-shaped hyper-partisan gerrymandering:
After all, an embrace of overt hyper-partisan gerrymandering was literally the NC GOP’s defense of district 1 and 12 maps that were ultimate found to have illegally packed black voters in the 2017 Cooper v. Harris. That was literally what NC’s top map makers, Republicans Sen. Bob Rucho and Rep. David Lewis, claimed they were doing when those packed districts were drawn: merely drawing hyper-partisan maps based solely on the voting behaviors of voters, without consideration of race at all. Yes, the NC GOP literally claimed they didn’t realize they packed all those black voters in those two districts when they drew those oddly shaped districts. It’s just non-stop bad faith:
“The state’s two chief voting map makers, Republicans Sen. Bob Rucho and Rep. David Lewis, are responding to a Feb. 5 federal appellate court ruling that found they had illegally packed black voters into two districts and ordering them to draw new ones by Feb. 19. Lawmakers have asked the Supreme Court to issue a stay.”
Following that February 5, 2016, federal court ruling, it was up to North Carolina’s two chief map makers, both Republicans, to redraw the maps to address the illegal race-based packing of black voters into district 1 and 12. So how did they respond? By claiming that this packing of black voters wasn’t done with the knowledge that they were black. Nope. They purely used partisan voting information to draw these oddly-shaped districts. As Rep David Lewis put it, he would prefer it if they could do away with race entirely when constructing these maps. Which, is basically the “novel” legal theory Ron DeSantis is demanding Florida embrace today:
Lewis was clear: he was intent on partisan gerrymandering, and also wanted to avoid all questions of race. And he wasn’t hiding it. Because that’s the contemporary GOP’s legal approach to racial gerrymandering: it’s legal as long as you insist you were just be partisan and not racist.
Next, here’s a May 2017 piece in Slate by Mark Joseph Stern about the significance if the Cooper v. Harris. Significant in part because it represented a rare instance of Clarence Thomas being the sole conservative to join the liberal minority to help write a 5–4 ruling. As Stern notes, this is actually quite consistent for Thomas, who has long opposed race-based gerrymandering for any purposes, whether its to help or harm the representation of minorities. And that’s part of the significance of Cooper v. Harris that we’re only really seeing today with Ron DeSantis’s “novel” legal schemes: While Cooper v. Harris was indeed a victory against the bad faith claims that racially gerrymandering was actually just race-blind partisan gerrymandering, there’s also a way you can use the ruling to support the argument that race should never be factored into redistricting at all. Which is what Clarence Thomas was Cooper v. Harris presumably ruling at the time and Ron DeSantis is echoing today:
“Cooper v. Harris, Monday’s case, involves North Carolina’s two most infamous congressional districts, District 1 and District 12. In the 1990s, the Democratic-controlled state legislature gerrymandered both districts into bizarre shapes that appeared to be drawn along racial lines. A group of Republican voters sued, arguing that the state had used race to shape the districts in violation of the 14th Amendment’s Equal Protection Clause. North Carolina acknowledged that it had used race in redistricting, but argued that it did so for a constitutionally permissible reason: It wanted to comply with the Voting Rights Act, which bars states from diluting minority votes and, at the time, required the creation of majority-minority districts in historically racist states. To ensure compliance with the VRA, North Carolina asserted, it had drawn both districts to be majority black.”
So this whole legal battle over districts 1 and 12 started back in the 90s when a Republican voters sued over the districts, arguing that the state had used race to shape the districts in violation of the 14th Amendment’s Equal Protection Clause. Keep in mind that, at this time when the black population in the state was lower, the race-based gerrymandering was effectively protecting the black representation in the state. Flash forward to 2017, and these same two districts were now being used by the NC GOP to pack in black voters, using racial gerrymandering to harm minority representation. Same districts. Same practice. Very different context. And the NC GOP was justifying this race-based packing by preposterously claiming that they weren’t considering race at all, but only voting patterns. Cooper v. Harris ended that:
And regarding Clarence Thomas’s seemingly surprising decision to side with the court’s liberals to allow Cooper v Harris to happen, keep in mind all of the information we’ve learned in recent months in relation to the January 6 Capitol insurrection about the profound role Thomas’s wife Ginni has played not just in organizing the efforts to overturn the election but also her years of work in the Council for National Policy’s voter-suppression efforts.
But also keep in mind what we are now seeing revealed in Ron DeSantis’s redistricting demands: Clarence Thomas’s view that racial gerrymandering should be ignore in virtually all cases is basically what DeSantis is now arguing. And as we’re also now learning, it’s an argument that can apparently be used to gerrymandering away two black districts and give them to Republicans by first arguing that racially-gerrymandered districts drawn to protect minorities are unconstitutional and then argue that partisan gerrymandered maps are perfectly legal, even if they remove representation for minorities, as long as the map was allegedly drawn purely based on partisan voting patterns and not factoring in race. In other words, when DeSantis cites Cooper v. Harris in defending his map that hands to black districts over to the GOP, he’s specifically citing Thomas’s opinion in that majority ruling:
But there’s another angle to DeSantis’s sleazy strategy: the race to push his maps through and then argue that they can’t be changed because it’s too close the election. The odds of pulling that off are a lot higher following the Supreme Court’s 5–4 ruling back in February in Merrill v. Milligan. The case revolves around Alabama’s new congressional maps which have already been found by a panel of judges to be racially gerrymandered against Alabama’s black population. The Supreme Court ruled that the court ruling to redraw the districts have to wait until after the Supreme Court hears the case...which means the flawed maps will be in effect in 2022. And who knows, maybe long after 2022 depending on how the Supreme Court eventually rules.
But part of what makes this ruling notable is that the Supreme Court is blocking not just blocking efforts to address racially gerrymandered maps before the election. It’s doing so based on extremely bad faith arguments by the Alabama government. A bad faith argument rooted in the idea that race should never be factored into redistricting decisions at all under any circumstances. An absurd legal ‘gotcha’ argument:
In the 2017 Harris v. Cooper ruling, Justice Elena Kagan wrote that if plaintiffs are going to argue that a minority population is being underserved by a set of maps, it should at least show some examples of viable maps that do serve that minority. Hypothetical maps. So that’s what was provided in the Alabama case that eventually found the maps were illegally gerrymandered. But now, after appealing that case to the Supreme Court, the Alabama government is arguing that those hypothetical maps were invalid because they prioritized race when they were being constructed and that’s illegal. The legal challenge brought before the Supreme Court really was that trollish.
And while we don’t know how the Supreme Court will eventually rule, the fact that they suspended the lower court ruling to fix the map more or less granted Alabama a free victory by suspending the lower court ruling that required these maps be immediately fixed until after the 2022 election. Mission accomplished.
And then there’s Brett Kavanaugh, who seemed to make the case that any redrawing of maps in the same year would be too soon to the election. At least that’s what we can infer given that he felt a February redrawing of the Alabama maps would be a disruption to elections taking place in November. So when Ron DeSantis demands Florida’s GOP-run legislature just pass his maps despite all the obvious legal questions, it’s important to keep in mind that the bad faith on display in Merrill v. Milligan is presumably factoring in big in DeSantis’s overall strategy:
“The immediate impact of the Court’s 5–4 decision in Merrill v. Milligan is that Alabama’s new congressional maps, which a three-judge panel that includes two Trump appointees determined to be an illegal racial gerrymander, will take effect in the 2022 election. Under those maps, only one of the state’s seven districts — or 14 percent of the US House seats — has a real shot of electing a Black lawmaker. African Americans make up about 27 percent of the state’s population.”
As we should expect, the Supreme Court’s far right majority isn’t wasting any time eroding the US’s voting protections. Step by step, one ruling at a time. This time, in February’s Merrill v. Milligan 5–4 ruling — with John Roberts siding with the three liberal justices — that erosion comes in the form of ruling that forces Alabama to use maps already found to be discriminatory against Alabama’s black voters. The Supreme Court’s conservative majority wasn’t disputing that the maps are faulty and need to be changed. It was disputing the notion that these fixes could happen before the 2022 election:
Another area of erosion of voting rights comes form the fact that Merrill v. Milligan appears to set up new burden on plaintiffs challenging racial gerrymanders that may be impossible to overcome. A legal Catch-22 ‘gotcha’: As just Kagan laid out Cooper v. Harris, if plaintiffs are going to argue that a minority population should better represented under a new map, they should demonstrate that it’s possible and show some example maps. So that’s now a criteria for challenging maps based on racial gerrymandering. But in Merrill v. Milligan, the state of Alabama argued that a new restriction be imposed: none of the maps used by the plaintiffs can be drawn having prioritized race. Even the hypothetical maps showing it’s even possible to create a district for this minority group. Gotcha!
But then there’s the other way Merrill v. Milligan erodes voting rights, compliments of Brett Kavanaugh, the new ‘swing’ vote on the far right court:
In Kavanaugh’s opinion, the guidance of Purcell v. Gonzalez — that maps not be changed too close to the election — should apparently be extended to legal challenges that take place basically any time during the same year as the election. So even if there’s a challenge to the maps of an election held in November filed in January, the same maps would have to be used for the election and could only be changed after the elections. So when Ron DeSantis demands the Florida legislature adopt his map right now, he can hope for Kavanaugh’s reason to prevail in any attempts to redraw before the 2022 election:
What is Brett Kavanaugh going to rule should Ron DeSantis’s maps end up before the Supreme Court later this year? We can be pretty sure he’s going to rule that Florida had better keep those maps in place for the 2022 election while the Supreme Court takes its time working the case out. That’s the precedent Kavanaugh appears to be trying to set here and Ron DeSantis appears to be trying to help in that goal.
It’s all part of the much larger GOP precedent of winning through any means necessary. Through hook or crook or systemic rigging. Or insurrection. Ron DeSantis is just a cog in that system rigging machine, albeit a cog with a lot of “novel” ideas that he can just push through with bullying bluster. A Trumpian cog. It’s easy to forget how grossly corrupt the contemporary GOP was before Trump came along. And Ron DeSantis, being a kind of hybrid between Trump and a more traditional GOP sleazeball pol, is a reminder that the GOP doesn’t need Trump for Trumpian-style sleaze. There’s plenty of that go around. Again, it’s a group sleaze effort.
Well, it’s worked. At least so far. That would be Ron DeSantis’s grossly cynical scheme to just force a hyper-gerrymandered redistricting map that eliminates two majority black congressional district under the justification of fighting racism. DeSantis’s map was just signed into law by the GOP-controlled Florida legislature. And while the fate of this absurd map isn’t at all clear in the long run, what is clear is that the map will be used for the 2022 mid-term elections. Ron DeSantis and the GOP are blatantly cheating their way into extra congressional seats in front of every and are completely getting away with it.
And as the following TPM piece describes, Florida isn’t the only state where the GOP has just decided to openly violate the redistricting rules in an effort to cheat out legally dubious redistricting maps for the 2022 mid-terms. This is apparently going to be a popular strategy. At least in the states where the legal loopholes exist to do so. Loopholes like the one the Ohio GOP discovered in order to get around the 2015 amendment to the state constitution passed bay 71 to 29 percent margin that prevents overly partisan redistricting. Yes, it turns out Ohio’s new anti-gerrymandering laws which are being put to the test for the first time this year have a rather significant flaw: while the state Supreme Court has the power to review proposed redistricting maps generated by the state’s redistricting commission, the court doesn’t have the power to eventually just draw the maps itself if the commission refuses to produce reasonable maps. All the court can do is just keep sending the bad maps back for more revisions.
And that’s exactly what happened. Four maps have been produced and all four have been rejected by the Supreme Court. But that only begins to capture the levels of bad faith being deployed here. Following the rejection of the third map, the GOP-dominated redistricting commission hired independent map makers to generate a fourth set of maps. But instead of using those independently generated maps, the redistricting commission toss them out at the last minute and instead just delivered a slightly modified version of the third set of maps.
So how is this situation getting resolved? Well, all these delays in the redistricting process led an anti-abortion group to file a lawsuit seeking to have the rejected maps instituted as the official districts for the state legislature. Last week, a three-judge federal court panel ruled in favor of the right-wing plaintiffs, ruling that Ohio will have to use the third set of maps for the 2022 election cycle if the legislature can’t come up with an acceptable map by May 28.
Yes, the Ohio GOP is acting in open bad faith and was just rewarded by this federal court. So as long as the Ohio GOP continues its open bad faith defiance of both the Ohio Supreme Court and the Ohio voters, it’s going to be rewarded with hyper-partisan districts for the 2022 election cycle.
Oh, and it turns the two judges on the three-judge panel who ruled in favor of the conservative plaintiffs were both Trump appointees. Imagine that. As we’ve seen so many times before, when it comes to the GOP’s bad faith capture of power, it’s a group effort:
“On Wednesday, a federal court stepped into the redistricting process, ruling that they would order the state to use the commission’s third map — one of the four proposals that the state Supreme Court already rejected for being too slanted — unless the state produces a workable new map by May 28. Either that or the state’s Republican-majority General Assembly changes the state’s election deadlines. The primary is set for Aug. 2.”
Behold the ‘justice’: a federal court decided to intervene on the Ohio GOP’s blatant bad faithed repeated refusal to follow the Ohio Supreme Court’s order to follow the Ohio constitution mandating that they draw fair maps. As punishment for the GOP’s bad faith, the federal court rule that they’ll be forced to use one of the bad maps that was already rejected by the Ohio Supreme Court if they can’t come up with a new workable map by May 28. The federal courts basically told the Ohio GOP to stick with the plan. A plan to run out the clock in order to ignore the will of both the Ohio Supreme Court and the Ohio voters. Don’t forget that the 2015 referendum putting these gerrymandering rules in the Ohio constitution was passed overwhelmingly by a 71 to 29 percent margin. The Ohio GOP really is defying the public will here. Openly and repeatedly:
And look at that: it turns out the two judges on the three-judge federal court panel that just made this ruling were Trump appointees. Just imagine how many more bad faith rulings these judges are going to be issuing for the rest of their careers:
And note how the Ohio redistricting committee literally hired two independent mapmakers after the third map was rejected. Those map makers proceeded to make a map, which was tossed out by the redistricting committee at the last minute. Instead, they issued a slightly modified version of the already-rejected third map. And now, following this federal court ruling by a pair of Trump appointees, that third map is slated to be used in the next election cycle. At least as long as this bad faith scheme is allowed to continue:
Finally, note the key feature of Ohio’s redistricting rulings that appears to be what is facilitating this scheme: The state’s Supreme Court court can’t step in and draw maps themselves if the Legislature refuses to comply. The court can only keep sending it back to the bad faith legislature. In other words, the Ohio GOP will presumably get to do this again in 2032 if its still in control of the state:
Ohio...Florida...how many more states are we going to see newly discovered loopholes deployed to force through cheater maps? Presumably as many states as possible. Or at least enough for the GOP to retake control of the House and Kevin McCarthy to be reinstated as House Speaker. It’s not quite an insurrection. But in the same spirit.
With this year’s historic Supreme Court term having come to a merciful end, here’s a reminder that next year’s term will probably be worse. That’s how enduring extremist majorities on the court work: future rulings get to build upon the awful rulings of past. So it should come as no surprise to learn that the court just agreed to hear Moore v. Harper, a case that presents the next big opportunity for the court to subvert US elections. Interestingly, like Rucho v. Common Cause — the historic ruling that removed federal courts out of questions related to partisan gerrymandering and paved the way for states to utterly subvert and rig the outcome of elections — the questions in Moore now revolve around whether or not state courts or even state constitutions can play a role in questions related to election matters. In this case, it involves an attempt by the Republican-controlled North Carolina state legislature to reinstate gerrymandered district maps struck down by the state supreme court. The plaintiffs in the case — the North Caroline GOP — argue that the state supreme court doesn’t have the authority to strike down these maps either.
So if the federal courts don’t have a role to play in these questions following Rucho, and now the NC GOP is arguing state courts lack that authority too, does that mean state legislatures have the sole authority to decide on questions related to redistricting and gerrymandering? Yes, according to the radical legal theory upon which the NC GOP is basing its legal arguments. The “independent state legislature doctrine”, a theory that has been previously rejected by the Supreme Court numerous times over the course of a more than a century. That’s the legal theory poised to prevail during next year’s term. A theory so extreme that even state constitutions can be ignored in favor of the state legislature’s whims.
First the Supreme Court is removed by the equation. And now state courts. Soon, the hyper-gerrymandered state legislatures will have the sole authority in matters dealing with partisan gerrymandering. It’s the logical progression of the prevailing trends.
But as the following article points out, the dangers of a conservative victory in the upcoming Moore v. Harper case go far beyond questions of redistricting and gerrymandering. It’s a recipe to hand the sole power of state-level presidential election results to state legislatures too. Yep. So the next time the GOP just decides to assert that it won the presidential election, that’s it. They won. Game over:
“And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state court or agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip. (This is essentially the argument that Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas accepted in their concurrence in the 2000 Bush v. Gore case, ending the 2000 presidential election and handing it to Bush.)”
The writing is on the wall. Writing warning about the end of elections for the US presidency. Well, not the end of elections themselves. Just an end to their relevance. State legislatures are going to be determining the slates of presidential electors after the Supreme Court’s far right majority are done with this issue.
And sure, we don’t know yet how the court is going to rule on Moore v. Harper. But we have clues. The kinds of clues we should expect at this point. For starters, the strong dissent by John Roberts in the 2015 Arizona Independent Redistricting Commission v. Arizona Legislature case is a pretty big hint about how Roberts is planning on ruling on this case. And if Roberts — now seen as the ‘moderate’ member of the far right conservative majority — is ready to rule in favor of the “independent state legislature” (ISL), that tells us what to expect from the rest them:
Also note how, should Roberts and the rest of the far right majority rule in favor of the independent state legislature theory in Harper v Moore, it’s going to be contradicted his Roberts’s own arguments in Rucho v Common Cause, the ruling that removed federal courts from questions partisan of gerrymandering. Both Rucho and Moore hinge on whether or not the North Caroline state supreme court has the authority to play a role in state redistricting cases. With Rucho, the North Carolina state supreme court was seen by Roberts as the ultimate arbiter in cases of state-level gerrymandering. But with Mooore, Roberts in poised to remove state courts for issues involving election matters entirely...conveniently now that the court is controlled by a Democratic majority. In other words, should Roberts uphold the independent state legislature theory, he will be doing so in partisan bad faith refutation of his own prior rulings and pronouncements. The kind of partisan bad faith that is coming to define the current Roberts court:
So that’s the next phase of the Supreme Court’s dismantling of the US’s election infrastructure that we should probably expect during the upcoming term. On the plus side, we probably won’t have to worry about future insurrections since they won’t be needed to overturn election results. At least when its Republican-run state legislatures doing the overturning.
With the January 6 congressional investigation having just wrapped up its ‘Season 1’ series of televised hearings laying out the damning evidence of a plot to subvert the US’s democratic systems and criminally overturn the 2020 election using any legal means necessary, here’s a reminder from Adam Serwer in the Atlantic about the other right-wing insurrection taking place before our eyes. A judicial insurrection that doesn’t rely on angry mobs to block democratic mechanisms from being allowed to function but instead lets crank legal theories do the dirty work. Legal theories like the ‘independent-state-legislature’ (ISL) theory that posits that state legislatures have completely unchecked power over all matters involving elections. Including the power to determine election results without any judicial checks.
As Serwer reminds us, the ISL theory — which is poised to be enshrined by the conservative Supreme Court majority in the upcoming Harper v Moore case — isn’t just completely at odds with 230 year of US election law. The only real precedent for the idea that state legislatures have unchecked power over election matters was Bush v Gore, a ruling that was made on such shoddy jurisprudential foundations that the Bush v Gore ruling itself declared itself non-precedential. That’s the legal precedent conservative ISL legal advocates keep citing.
And as Serwer also reminds us, three of the current Supreme Court justices were actually lawyers in Bush v Gore on behalf of the Bush team. And don’t forget that Clarence Thomas also ruled in Bush v Gore to halt the vote recount. So we can already make a reasonable guess as to how the current Supreme Court will rule in the Harper v Moore case that presents the court with an opportunity to enshrine ISL. And that’s all why it’s important to keep in mind that the far right’s plans for judicial activism go far beyond just overturning all of the court-won rights going back to the 19th century. The plans include eliminating any remaining checks over the rights of state legislatures to ignore the will of the voters:
““We have run elections the same way for 230 years in this country. And under that 230-year history, the independent-state-legislature hearing has not been the law,” Thomas Wolf, an election-law expert with the Brennan Center, told me. “It’s mainly been moving forward under gas that’s been provided almost entirely by just a few conservative justices on the Supreme Court, effectively citing themselves for the proposition.””
It’s hard to find a bigger case of judicial activism than what the Supreme Court is poised to do with Moore v Harper: 230 years of election law precedent is set to be tossed out and replaced with an obscure legal theory. An obscure legal theory with basically no precedent. Well, one precedent: Bush v Gore, a ruling that famously declared itself non-precedential. A ruling that three of the current conservative justices worked as lawyers on. That’s the legal precedent behind what amounts to an electoral revolution:
Also note one of the other bad faith aspects to the Supreme Court’s upholding of the independent-state-legislature: it would completely gut the rationale behind the 2019 Rucho v Common Cause ruling, when the Roberts court removed the federal courts from questions related to partisan gerrymandering. The ruling was predicated on the notion that state courts would be in a position to settle these questions. And here we are, just three years later and the Roberts court is set to gut that last remaining check on out-of-control gerrymandering. Bad faith is turning out to be the defining feature of the Roberts Court:
But it’s not just the bad faith nature of the conservative’s legal reasoning at Supreme court that makes this such a disturbing and morally gross situation. Its also the fact that this upending of these basic checks and balances of the US’s electoral system appears to be widely embraced by elite conservative legal circles. In other words, the conservative majority on the Supreme Court isn’t comprised of exceptionally morally corrupt individuals. This kind of deep intellectual and moral rot is apparently quite common in the contemporary conservative legal community. A whole army of radicalized elite conservative lawyers hellbent on capturing power at all costs that already has a lock on power at the Supreme Court: it’s hard to think of a greater threat to democratic institutions:
It’s kind of weird to imagine a population that’s effectively captured by democratically elected state legislatures. And yet that’s the system we are seeing being constructed in real-time, one radical court ruling at a time. Populations captured by corrupted election systems without checks and balances, where the democratically elected leaders have the power to ignore the will of the voters. A kind of Bizarro Democracy.
There’s no shortage of dark questions raised this looming New Normal. But given that this is being done presumably with the backing of Republican voters, it’s worth asking what’s going to happen when we start seeing Red State legislatures not just defy the will of the left-leaning and moderate electors but also the will of their deeply conservative voters? Because that’s more or less inevitable, especially in the looming era of climate change and eco-collapse, when the interests of rural residents and the powerful economic interests who comprise the core of the Republican Party are no longer aligned. Can the coalition of right-wing oligarchs and the conservative ‘populists’ rabble hold in an era when those oligarchs have captured virtually all levels of the democratic institutions and have the power to exert their will as they see fit? We’ll see, but it’s hard to imagine these hyper-gerrymandered captured state legislatures choosing the side of the public over the wishes of the mega-donor class that finances their political machines once these legislatures have unchecked power. They’ll only need enough public support to win in their hyper-gerrymandered districts. It points towards one of the darkly perverse dynamics we can expect to emerge as the capture of democratic institutions proceeds: when right-wing legislatures only have to cater to the the most hard core elements of the conservative base, all they have to do is deliver an endless streaming of ‘owning the libs’ policies and laws to keep that base placated. An implicit arrangement of attacking the perceived enemies of right-wing populists as payback for the theft of democracy.
That’s all part of the context of the upcoming Harper v. Moore ruling after the overturning of Roe and the promise of rolling back rights to the 19th Century: the rolling back of those rights, and the ‘owning the libs’ mentality it placates, is part of the transactional nature of the contemporary conservative movement’s alliance between far right industrialist and socially conservative rabble. Because that conservative rabble is going to be losing its democracy too. It better get something in return. And yes, rolling back everyone’s rights to the 19th century might seem like strange payment in exchange for the loss of any checks and balances. But, again, we’re in Bizarro Democracy territory, where it all makes sense. Bizarro sense, but that’s good enough when it comes to the unchecked wielding of power.
Is the US on the cusp of a post-checks-and-balances form of constitutional government? Yes, if Leonard Leo, one of the most powerful figures in the US, has his way. Well, not just his way. Leonard Leo’s agenda is the agenda of the billionaires financing his efforts. Shadow dark money efforts. Recall how Leo isn’t just the head of the Federalist Society where he has long played a central role in Republican Supreme Court nominations. He also works as a key dark money fundraiser through front groups like the BG Group set up to anonymize the sources of the mega-donations. Leonard Leo wears a lot of hats, including his role as a founder of the ironically named Honest Elections Project. Recall how Jason Snead of the Honest Elections Project was named as one of the key figures involved with the creation of a new network of powerful conservative lawyers dedicated to ‘election integrity’ announced at the end of 2021. A network that includes figures like Cleta Mitchell, J Christian Adams, Hans von Spakovsky, and J Kenneth Blackwell and that appears of be a CNP project.
So when we learn the Honest Elections Project just filed an amicus brief in support of the North Carolina Republican Party’s diabolical lawsuit, Harper v Moore, it’s important to recognize that this was an endorsement from this larger powerful network. An endorsement of the dangerously twisted “Independent State Legislature” legal theory that promises to shred what’s left of the US’s constitutional checks and balances and effectively ends the relevance of the vote in determining the outcome of US elections:
“Last week, his Orwellian-monickered Honest Elections Project filed an amicus brief with the Supreme Court on behalf of the North Carolina legislature in support of that bizarre interpretation of the Elections Clause known as the “Independent State Legislature” theory. This theory maintains, essentially, that state courts have no jurisdiction over state election laws, and that jurisdiction exists solely with the state legislatures. This is an obvious recipe for mischief and chaos, and it was seen as such at the Constitutional Convention by no less than James Madison, who said, “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.””
It wasn’t just some random amicus brief. This was an endorsement of the Independent State Legislature theory coming from the leading shadow lord of the vast right wing conspiracy. An endorsement for a legal theory that hands elections over to state legislatures. Well, to be more precise and realistic, hands the elections over to the mega-donors who own those politicians. In other words, it’s an endorsement for a legal theory that hands elections over to Leonard Leo’s clients:
That’s all why the news about Leonard Leo’s Honest Elections Project filing this amicus brief is hardly surprising. As the leading shadow lord of the vast right wing conspiracy he’s the guy who is going to be telling all those state legislators who now the elections. After he gets his own orders from his anonymous billionaire clients, of course.
Just because it’s never happened before doesn’t mean it can’t. The unprecedented is highly precedented on politics. Just ask now-former Speaker Kevin McCarthy. Reality finds a way given enough time. And enough chaos agents.
So with unprecedented political events ‘in the air’, it’s worth keeping in mind another unprecedented political event that right-wing forces are working to make a reality and still gaining steam: the “Convention of States” initiative to trigger an Article V constitutional convention. The plan is still in the works. And with the GOP increasingly embracing the politics of constitutional nihilism, it’s going to be increasingly important to be aware of this potential ‘end game’ plot. Especially since, as we’re going to see, the network behind this ongoing push is more or less the same mega-donor networks that brought us the fight to overturn the 2020 election and the January 6 Capitol insurrection and the same network behind the ongoing Schedule F/Project 2025 plot to purge the government and society of left-wing influence. That would, of course, be the Council for National Policy (CNP) and closely allied Koch network.
As we’ve seen, when the COS project was founded in 2013 it was Tea Party leader Mark Meckler and conservative attorney Michael Farris back in 2013, the year Meckler met Farris. Both are listed on the leaked CNP member lists. Meckler had co-founded the Tea Party Patriots a few years earlier with CNP members Jenny Beth Martin and Amy Kremer. As we’ve seen, Martin and Kremer played important roles in the CNPs efforts to overturn the 2020 election.
Efforts that Farris turns out to have quietly played a very significant role in too. In particular, Farris was working closely with Mark Martin — dean of the Regent University Law School, a hub for Christian nationalist legal thinking — on coming up with legal strategies like the absurd attempt by Texas Attorney General Ken Paxton to sue to block the certification of the vote in other states. Farris and Martin were reportedly the legal minds behind that. Recall how Mark Martin was actively advising the Trump White House on its remaining options in the weeks leading up to January 6. In particular, there was the Decemeber 28, 2020, memo written by conservative lawyer William J. Olson addressed to President Trump laying out his options. Options that included basically declaring martial law. As Olson put it, “Our little band of lawyers is working on a memorandum that explains exactly what you can do.” Mark Martin was part of that little band of lawyers. Martin was so deeply involved with the Trump White House’s strategizing that call records show Trump spoke with Martin and CNP member Cleta Mitchell on the evening of January 6.
Michael Farris — founder of the Home School Legal Defense Association (HSLDA) — also served as the CEO of another CNP-dominated group that has been playing a prominent role in shaping the current political climate: the Alliance Defending Freedom (ADF, formerly the Alliance Defense Fund). Recall how the ADF received large donations from the Betsy DeVos and Erik Prince and funneled that money into supporting Christian nationalist movements in Europe and backed a 2016 Belize law that punished homosexual sex with 10 years in prison. Also recall how the ADF has been playing a major behind the scenes roll in shaping the current manufactured anti-trans panic. At the same time, the ADF shows up on the list of organizations involved with the Schedule F/Project 2025.
And that’s all why the threat posed by the Convention of States should really been seen as a rising threat. Because the forces that brought us January 6, the anti-trans/LGBTQ hysteria, and the current Schedule F/Project 2025 plot to purge progressives out of society are the same forces behind the Article V plot: the insurrectionary Christian nationalist forces of the CNP. That includes, as we’ll see, CNP members Rick Santorum (Opus Dei member), mega-donor Foster Friess, and dark money overlord Leonard Leo. All three have backed the COS. And when you see someone like Leonard Leo backing something, you know there’s a lot more mega-donor money behind it. The COS is a CNP project.
Ok, first, here’s a New York Magazine article from June of this year about Mark Meckler’s ongoing Article V crusade. A COS crusade assisted by one CNP member after another:
“It’s quite the façade. While Meckler says COS is funded by grandmas sending $5 per month, his group is in fact bankrolled by tens of millions of dollars in dark money. (He did not respond to requests for comment.) Just like his days as a leader of the tea party, Meckler is part of a vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism — this time armed with what Santorum called a “live weapon” pointed at the nation’s legal heart. “In my area of South Dakota, COS would be synonymous with dog shit,” said Lee Schoenbeck, a Republican state senator who has been targeted by COS. “They’re well-meaning folks; they’re patriotic,” he said about COS’s supporters. “But this fraud is taking advantage of them to line his family’s pockets … He’s just another scam artist.””
Yes, the Convention of States (COS) is quite the ‘populist’ endeavor. One that just happens to be bankrolled with tens of millions of dollars in dark money. And, lo and behold, what do find but one CNP member after in this COS network, starting with Meckler himself, and fellow Tea Party Patriots (TPP) co-founders Jenny Beth Martin and Amy Kremer. Recall the roles both Martin and Kremer played in the CNP’s efforts to overturn the 2020 election. Meckler has been acting as a CNP operative for effectively his entire political career:
Then there’s CNP member Michael Farris. It turns out Meckler met Farris in 2013. It was that year Meckler and Farris co-founded the COS. Farris was the CEO of the Alliance Defending Freedom (ADF, formerly the Alliance Defense Fund). We recently saw the ADF show up as one of the member groups of the Project 2025 coalition. Recall how the ADF received large donations from the Betsy DeVos and Erik Prince and funneled that money into supporting Christian nationalist movements in Europe and backed a 2016 Belize law that punished homosexual sex with 10 years in prison. Also recall how the ADF has been playing a major behind the scenes roll in shaping the current manufactured anti-trans panic. It’s a deeply influential organization and Michael Farris was its longtime CEO:
Finally, we get to the CNP members who have continued to support Meckler’s COS efforts along the way: Leonard Leo, Rick Santorum, and Foster Friess. All three members of the CNP. It’s one big happy family of mega-donors and power players:
And in case it’s not clear that the GOP shares the CNP’s ambitions, note how Jodey Arrington, the current Republican chair of the House Budget Committee, put forward a bill just this year declaring that the Article V threshold has already been met. The Republican Party is behind the Article V plot:
Now, to get a better idea of the role Farris played in formulating the Trump White House’s legal strategy for overturning the 2020 election, let’s take a closer look at that October 2021 NY Times report on Mark Farris’s roles the conservative efforts to overturn the 2020 election. A pretty significant role it turns out: Farris was working closely with Mark Martin on formulating legal options for overturning election. As we saw, Mark Martin, the dean of Regent University, was also working with William J. Olson, who wrote a December 28, 2020, memo to Trump suggesting strategies that included declaring martial law. Olson referred to the “little band of lawyers” in the memo he was working with to develop that strategy. And as this article makes clear, COS co-founder Michael Farris was very much a member of little band of conservative lawyers working on keeping Trump in office through any means necessary:
“Mr. Farris’s involvement in the effort, which has not previously been reported, came as part of a broad push by religious conservatives to get Mr. Trump re-elected. Their role intensified after the pandemic hit in early 2020 and states began to loosen absentee ballot rules, which the religious conservatives feared would lead to a surge in participation by liberal voters.”
Yes, Michael Farris’s role in the efforts to overturn the 2020 election were both little recognized and part of a much larger effort by the CNP to ensure Trump won a second term that went back to the months leading up to the election. Recall how CNP member Cleta Mitchell was giving seminars on how states could override election results back in August of 2019. Farris was playing a major role. But he was just one of many CNP members playing major roles:
It even turns out Ken Paxton’s bonkers lawsuit challenging the election results of other states was Michael Farris’s idea too. The guy is busy. And influential:
And Farris wasn’t developing these legal arguments alone. Mark D. Martin, the dean at Regent University School of Law, was right there with him concocting legal theories justifying the various moves intended to block or flip the election results. Recall how Regent was bought by Pat Robertson and turned into a legal home for a kind of neo-Confederate Christian nationalist view of the constitution that would roll back a large number of civil rights. And when we look at the lawyers working for the Farris’s ADF, it’s one Regent grad after another.
It was Farris and Martin — two prominent figures in the Christian nationalist legal community — who put together the legal justification for one state suing another one that Texas Attorney General Ken Paxton relied on in his lawsuit. As we’ve seen, Mark Martin was actively advising the Trump White House on its remaining options in the weeks leading up to January 6. Recall the December 28, 2020, memo written by conservative lawyer William J. Olson addressed to President Trump laying out his options. Options that included basically declaring martial law. As Olson put it, “Our little band of lawyers is working on a memorandum that explains exactly what you can do.” Mark Martin was part of that little band of lawyers. Martin was so deeply involved with the Trump White House’s strategizing that call records show Trump spoke with Martin and Cleta Mitchell on the evening of January 6. And as we can see, Michael Farris was part of this little band of lawyers too, working closely with Farris on coming up with Paxton’s silly lawsuit:
It should have always been clear that the COS folks mean business. But if it wasn’t clear before, Jan 6 should have made that abundantly clear. The CNP is ready to burn it all down. Whether we’re talking about the Constitution, or society at large. The CNP is ready for radical change. Or rather, ready to impose through undemocratic means the radical change it’s failed to achieve democratically over the last four decades. When the fascist mega-donors lose patience, watch out. Especially when it’s clear they lost patience years ago and have been quietly operating in full blown ‘by any means’ mode for a while now. And getting away with it.
It’s all connected. All part of one big strategy. Unfortunately. That’s the lesson we can take from the following Washington Post article published in late August of this year. The whipping up of hysteria over trans children. The hyperventilating about critical race theory, pornography in school libraries. The claims of mass voter fraud and the calls for overturning the 2020 election. The ongoing Schedule F/Project 2025 scheming to purge the federal government, and eventually the private sector, of left-wing influences. And the Convention of States plot to trigger the Article V Convention of States. It’s all one big plot. Capturing as much power as possible at all costs and keeping it. Build up extreme political tension and then offer an extreme ‘solution’, like overturning an election. Or overhauling the constitution. A kind of progaganda-centric ‘strategy of tension’ brought to us by the Council for National Policy (CNP).
And if there’s one figure that encapsulates this overarching CNP-driven strategy of tension, it’s CNP member Michael Farris. As we’ve seen, Farris is not just the co-founder of the Convention of Stations project along with fellow CNP member Mark Meckler. He also played an important behind-the-scenes role as a Trump White House legal advisor during the period leading up to the January 6 Capital insurrection.
And as the following Washington Post article describes, Farris has been one of the loudest voices advocating for ‘parental rights’ in education going back to the 80s. Parental rights specifically for conservative Christian parents, and most especially parents seeking state funding for home-schooling, with Farris founding the Home School Legal Defense Association (HSLDA) back in 1983. Yes, Farris has been the US’s leading home-schooling lobbyist for the past four decades. But while Farris’s HSLDA remains active to this day, Farris has much larger ambitions when it comes to education ‘reforms’. Ambitions he’s also held for decades, like inserting Christian doctrine back into public schools. As Farris puts it, all inculcation of values is inherently religious. In other words, you can’t actually carry out a secular education because secularism is its own religion. A godless religion that should be replaced with Christian values in the classroom. Deeply conservative Christian values, in particular.
And Farris’s HSLDA isn’t the only entity he’s using to wage this education ‘reform’ agenda. He was president and CEO of the Alliance Defending Freedom (ADF, formerly the Alliance Defense Fund) from 2017 until October of 2022 (when he was replaced in the role by CNP member Kristen Waggoner). Recall how the ADF received large donations from the Betsy DeVos and Erik Prince and funneled that money into supporting Christian nationalist movements in Europe and backed a 2016 Belize law that punished homosexual sex with 10 years in prison. Also recall how the ADF has been playing a major behind the scenes roll in shaping the current manufactured anti-trans panic. At the same time, the ADF shows up on the list of organizations involved with the Schedule F/Project 2025. And as we’ve seen, the CNP-controlled ADF has been playing a pivotal role in taking advantage of the hard right 6–3 conservative majority on the Supreme Court, bring case after case designed to eventually reach the Supreme Court with massive ramifications. Like the role the ADF played in formulating the Dobbs v Jackson Women’s Health Organization case that overturned Roe v Wade. The CNP’s influence over the US’s legal system is still peaking, and Michael Farris’s influence is along for the ride.
And that all brings us to the reports in the following article of an extremely interesting confidential conference call Farris participating in back in July of 2021. It was the kind of confidential call where plans that aren’t supposed to be discussed in public got discussed. Like plans to have the ADF file lawsuits they hoped would lead to a Supreme Court ruling that declared a constitutional right to vouchers for private and home schools. That was the plan Farris laid out to a secretive group of Christian millionaires known as “Ziklag”, the of a town in the Bible used by David to organize raids against enemies of the Israelites. Membership in the group requires a net worth of at least $25 million. According to the group’s (now private) website, the group envisions schools that welcome prayer and “a conservative, biblical worldview in science, humanities and the arts.”
Farris was initially invited to speak to the Ziklag group after attending a May 2021 event that also included former attorney general Bill Barr as a speaker. Barr used his speech to denounce the public schools’ “indoctrination with a secular belief system” that is “antithetical to the beliefs and values of traditional, God-centered religion.” Farris was reportedly approach Peter Bohlinger, a Southern California real estate magnate who helps lead Ziklag, after Barr speech. Bohlinger is, of course, a member of the CNP. Bohlinger later recounted in a video that he approached Farris about using the courts to achieve a far-reaching resolution to their concerns about public education. Weeks later, Farris gave that conference call, laying out the ADF’s plans. A plan to create a constitutional rights for private vouchers and home schools that, according to a document created by Ziklag’s education task force, could drain US public schools of roughly 1/3 of their funding. Tax records show the ADF received a $444,249 grant from Ziklag in 2021 and another $514,491 in 2022.
And those are just some of Michael Farris’s big ambitions when it comes to education. This is the co-founder of the Convention of States project, after all. Farris has spent a long time thinking about what a new Christian conservative constitution might look like. And while the current hard right Supreme Court presents a clear path to enshrining many of these sought after rights with a constitutional patina, that’s still a relatively slow, piecemeal process that only happens one lawsuit at a time. Farris’s ambitions are far greater than just taking advantage of a hard right Supreme Court majority, as we’ll see in the second article excerpt below. As Farris and Mark Meckler made clear during an appearance at the National Religious Broadcasters (NRB) conference in May of this year, they are still keenly interested in triggering a constitutional convention and see all the polarizing social issues of the day surrounding education as an underlying reason for their planned constitutional overhaul. An overhaul that will eviscerate the power of the federal government under the banner of ‘holding the country together’ to deal with all the political polarization.
Oh and it turns out Michael Farris has a new role of his own with the NRB: he’s the group’s current legal counsel. One of many CNP members playing a leadership role in the group. Others include Dr. Frank Wright — a current board member and current board member former president and CEO of the NRB — along with former President and CEO Jerry A. Johnson, former board member Richard “Dick” P. Bott, Sr. and current board member Richard “Rich” P. Bott, II. So when Farris and Meckler spoke to the NRB audience, this should really be seen as ‘CNP & friends’ kind of gathering, making it a natural spot for Meckler and Farris to lay out the long-term plan. As Meckler described during the presentation, “The problem we’re having today is, so many things are being decided from Washington, D.C., and that naturally makes us hate each other, because half of us are going to be mad at any given time, roughly...And so, if you go back to federalism, I think we can keep the country together.”
And that, right there, is the ‘strategy of tension’ end game: hyper-polarize society around issues like trans kids and the ‘godless secularism in schools’ and offer a ‘solution’ of hyper-federalism, where states are free to turn themselves into the kinds of Christian theocracies Meckler, Farris, and the rest of the CNP have been working towards for decades. And, of course, hyper-low tax/low-regulation states the Koch network of mega-donors has also been working towards for decades. All in the name of ‘holding the country together’. That’s the CNP’s plan Michael Farris is making a reality. A plan with nearly all of the necessary pieces for execution already in place:
“Now, speaking on a confidential conference call to a secretive group of Christian millionaires seeking, in the words of one member, to “take down the education system as we know it today,” Farris made the same points he had made in courtrooms since the 1980s. Public schools were indoctrinating children with a secular worldview that amounted to a godless religion, he said.”
It was quite the message Michael Farris delivered to that secretive group of Christian millionaires in that July 2021 confidential conference call. They had a plan. More or less the same plan that Farris has been working towards since the 80s: weaponize the political fights over ‘parental rights’ and ‘school choice’ into a full blown assault on the idea of a secular public school system. As Farris put it, public schools are already indoctrinating children into a religion. A godless secular religion. It’s not a question of whether or not schools should advocate for a religion or not. That’s not an option. The only choice is which religion the schools indoctrinate children into, and that should be Christianity. A particularly conservative form of Christianity, specifically. That was Farris’s message to this group two and a half years ago. A plan to morph the ‘home-schooling rights’ movement into a full blown assault on the idea of a secular public education system:
So who was this secretive group of Christian millionaires? The Ziklab group, named after a town in the Bible that David used to organize raids against enemies of the ancient Israelites and restricted to people with a net work of at least $25 million. It was Ziklag leader Peter Bohlinger who approached Farris — then the head of the ADF — in May of 2021 after Farris gave a speech at an event where Opus Dei affiliate Bill Barr denounced public schools’ “indoctrination with a secular belief system” that is “antithetical to the beliefs and values of traditional, God-centered religion.” Bohlinger is, of course, a member of the CNP. Weeks later, Farris gave that confidential conference call where he laid out the strategy of waging a war against the ‘godless secular’ public schools. And as Farris described, the strategy entailed tactics like having ADF lawyers file lawsuits intended to result in a Supreme Court ruling that declaring a constitutional right to vouchers for private and home schools. Such a legal victory would, Farris predicted, drain the public education system of about $238 billion a year — a third of its total funding. As Farris predicted, “More and more people will be upset about what’s going on in the public schools.” That’s the ADF plan Farris laid out two and a half years ago that is presumably still in motion today:
And as the article points out, it’s not just Farris and the ADF pursuing this strategy. Republican politicians from Trump to Youngkin to DeSantis are embracing it too. Because of course they are. When we’re talking about CNP front groups like the ADF, we’re talking about the goals of the GOP mega-donor class and Republican establishment:
Then we get the pushback on Farris’s influence from Tiffany Justice, co-founder of Moms for Liberty (M4L), who insists that Farris’s thinking on how to translates the home-schooling fights of the 80s into contemporary politics didn’t really influence her group, keep in mind that Moms for Liberty is another CNP front-group. Also keep in mind that Moms for Liberty likes to brand itself as an independent group of concerned parents. Which is a reminder of the farcical nature of the ‘populist’ branding of these movements:
And note how even Farris himself is renouncing his stances of yesteryear. Stances like the criminalization of gay sex that he argued for in 2003. Or the role Farris played formulated legal justifications for Trump overturning the 2020 election. It’s a sign that this network recognizes that its end goals — goals Farris has spent decades articulating — are not actually very popular. Like his 1993 book that made the case that “inculcation of values in inherently a religious act...What the public schools are doing is indoctrinating your children in religion, no matter what.” It’s still clearly the view that Farris is championing behind closed doors when meeting with millionaires. But when it comes to the public, Farris needs to stay in the background. His role in subverting the US government and society to the wishes of this group of oligarchs is too politically radioactive to publicly associate with:
Farris even took the effort to separate the ADF’s ongoing efforts from his stated vision, which is also an implicit admission that the extremism we’re seeing in the current ADF lawsuits is just a warm up for what comes next:
So what comes next? Constitutional amendments, of course. This is the co-founder of the the Convention of States we’re talking about. In this case, a ‘parental rights’ constitutional amendment:
And in case it’s not clear that a constitutional it overhaul really is the end goal here, here’s an article by the right-wing Daily Signal about a rather revealing talk both Farris and his Convention of States co-founder Mark Meckler gave at the National Religious Broadcasters (NRB), a group for which Farris happens to currently be playing the role of legal counsel. As Meckler described, “The problem we’re having today is, so many things are being decided from Washington, D.C., and that naturally makes us hate each other, because half of us are going to be mad at any given time, roughly...And so, if you go back to federalism, I think we can keep the country together.” In other words, we need a constitutional convention that will eviscerate the federal government to deal with all the divisive issues like transgendered kids and ‘parental rights’. The same divisive issues figures like Farris, Meckler, and the rest of their CNP colleagues have been secretly fomenting for decades. Quite successfully fomenting:
““They play with words. They played with the word ‘marriage.’ Now, they’re playing with the words ‘man’ and ‘woman,’” and that “ultimately leads to totalitarianism,” Michael Farris, founder of the Home School Legal Defense Association and currently legal counsel at the National Religious Broadcasters, told The Daily Signal. “The changing words, changing meanings, changing morality is a part of the totalitarian culture, because they have to rip everything down in order to build up the new country, the new agenda, the ew culture that they want.””
Check out the new role for Michael Farris: the current legal counsel for the National Religious Broadcasters (NRB). In case it’s not obviously that the National Religious Broadcasters is a CNP front group, keep in mind the roles of past and present CNP members on its board: Dr. Frank Wright — a current board member and current board member former president and CEO of the NRB — along with former President and CEO Jerry A. Johnson, former board member Richard “Dick” P. Bott, Sr. and current board member Richard “Rich” P. Bott, II. Two of the past CEOs and Presidents were CNP members, and along with two of the current board members.
So we shouldn’t be surprised to find CNP members Michael Farris and Mark Meckler — the two co-founders of the Convention of States project — speaking candidly at the NRB’s convention back in May about how political polarization, and issues like transgendered kids and how to address education, are now the basis for rationalizing a constitutional convention. As Mecker put it, “The problem we’re having today is, so many things are being decided from Washington, D.C., and that naturally makes us hate each other, because half of us are going to be mad at any given time, roughly,...And so, if you go back to federalism, I think we can keep the country together.” It’s a reminder that the the myriad of political projects Michael Farris has been developing over the decades — a constitutional convention, the home-schooling/parental rights, and the legal rationales for overturning the 2020 election — are all working towards the same overarching goal: an effective overturning of virtually all of the civil right gains of the last century. In the name of federalism and ‘getting along’:
“We take off a lot of the heat, cool a lot of the pressure, out of the system by just saying New York’s New York, California’s California, and the conservative states are whatever they want to be...That’s the solution. And the only way back to that, that I’m aware of, is to call a convention of states, rejigger the jurisdiction, bring the power back to the states, and let them be who they are.”
That’s the sales pitch: let’s gut the constitution and revert back to a collection of largely independent states. California can turn itself into a progressive utopia while states like Florida can turn themselves Christian Taliban theocratic enclaves. That’s the plan for ‘cooling off’ the tensions in US politics. The same tensions Michael Farris and the rest of his CNP colleagues have been cultivating and growing for decades. Plans Farris and Meckler haven’t exactly kept hidden. They may not be openly talking about the ‘strategy of tension’ they’re pursuing. But they do spend a lot of time talking about the tension they’ve succeeded in creating and their plans for how to deal with it once and for all.