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

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

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

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

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

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

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

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

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

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

Mil­wau­kee Jour­nal Sen­tinel

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

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

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

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

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

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

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

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

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

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

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

Exact­ly how tilt­ed is the cur­rent map?

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

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

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

Wis­con­sin’s tilt­ed map

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

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

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

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

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

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

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

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

Democ­rats had no prayer in Assem­bly

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

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

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

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

Urban-rur­al divide

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

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

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

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

...

———-

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

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

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

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

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

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

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

...

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

...

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

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

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

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

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

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

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

Slate

John Roberts Thinks Bil­lion­aires Deserve Greater First Amend­ment Pro­tec­tions Than Vot­ers

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

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

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

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

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

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

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

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

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

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

...

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

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

————

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

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

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

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

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

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

...

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

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

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

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

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

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

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

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

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

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

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

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

Vox.com

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

A big­ger threat to Amer­i­can democ­ra­cy than Don­ald Trump.

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

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

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

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

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

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

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

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

The Court’s rul­ing per­mits a sys­tem­at­ic attack on democ­ra­cy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

———-

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

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

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

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

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

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

...

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

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

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

...

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

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

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

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

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

...
The Court’s rul­ing per­mits a sys­tem­at­ic attack on democ­ra­cy

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

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

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

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

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

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

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

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

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

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

Sludge

ALEC Launch­es Effort to Pro­tect Ger­ry­man­der­ing from Judges

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

by Jose­fa Velasquez
Edit­ed by Alex Kotch and Don­ald Shaw

Aug 20, 2018 2:48PM EDT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

———-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BillMoyers.com

ALEC and Koch Broth­ers Want to Ger­ry­man­der the Sen­ate

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

By Mary Bot­tari and David Armi­ak | July 18, 2017

This post orig­i­nal­ly appeared at Exposed by CMD.

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

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

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

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

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

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

ALEC’s Mod­el Bill to Repeal the 17th Amend­ment

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

The res­o­lu­tion reads in part:

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

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

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

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

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

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

Ratio­nales Don’t Hold Water

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

...

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

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

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

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

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

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

———-

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

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

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

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

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

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

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

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

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

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

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

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

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

Asso­ci­at­ed Press

Con­ser­v­a­tives want to bypass usu­al way to amend Con­sti­tu­tion

By MATT SEDENSKY
Novem­ber 3, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

———-

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

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

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

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

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

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

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inter­na­tion­al Busi­ness Times

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

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

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

Orig­i­nal Sto­ry:

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

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

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

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

...

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

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

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

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

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

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

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

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

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

‘Trump is not the solu­tion’

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

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

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

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

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

‘A Very Real Threat’

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

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

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

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

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

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

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

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

...

Rescind­ing Out­stand­ing Con­ven­tion Calls

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

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

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

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

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

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

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

A Con­ven­tion Dress Rehearsal

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

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

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

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

The amend­ments passed would:

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

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

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

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

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

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

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

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

———-

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

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

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

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

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

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

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

...

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

...

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

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

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

...
‘A Very Real Threat’

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

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

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

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

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

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

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

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

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

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

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

...
A Con­ven­tion Dress Rehearsal

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

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

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

...
The amend­ments passed would:

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

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

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

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

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

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

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

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

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

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

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

So let’s review what we’ve learned:

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

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

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

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

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

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

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

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

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

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

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

Discussion

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

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

    Slate

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

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

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

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

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

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

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

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

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

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

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

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

    ...

    ———-

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

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

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

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

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

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

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

    ...

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

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

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

    Talk­ing Points Memo
    Edi­tor’s Brief

    The GOP Embraces Anti-Demo­c­ra­t­ic Ide­ol­o­gy

    Josh Mar­shall
    07.06.19. 2:26 pm

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

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

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

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

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

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

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

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

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

    ...

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

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

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

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

    ———-

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

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

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

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

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

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

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

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

    ...

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

    ...

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

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

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

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

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

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

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

    Dal­las Morn­ing News

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

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

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

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

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

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

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

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

    ‘Leg­isla­tive priv­i­lege’

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

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

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

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

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

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

    ...

    Lit­tle scruti­ny

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

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

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

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

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

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

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

    The bill passed on the Sen­ate floor with no debate.

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

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

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

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

    ‘Con­cerns about redis­trict­ing’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    ———-

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

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

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

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

    ...

    ‘Con­cerns about redis­trict­ing’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Texas Tri­bune

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

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

    by Alexa Ura June 25, 2018 Updat­ed: 12 PM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    ...

    ———-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Moth­er Jones

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

    Ari Berman
    07/17/2019

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

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

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

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

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

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

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

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

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

    ...

    ———-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    The News & Observ­er

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

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

    RALEIGH

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Tri­al near­ing the end

    This tri­al is expect­ed to wrap up Fri­day.

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

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

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

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

    ...

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

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

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

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

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

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

    ———–

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Slate

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

    By Jamelle Bouie
    Dec 07, 2018 6:07 PM

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

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

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

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

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

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

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

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

    ...

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

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

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

    ———-

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

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

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

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

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

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

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

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

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

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

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

    Posted by Pterrafractyl | July 28, 2019, 11:37 pm
  7. 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:

    Slate

    Instead of Fix­ing Their Ger­ry­man­der, North Car­oli­na Repub­li­cans Are Trolling the Court

    By Mark Joseph Stern
    Sept 10, 2019 5:59 PM

    When a North Car­oli­na court struck down the state’s leg­isla­tive ger­ry­man­der on Sept. 3, it gave the Gen­er­al Assem­bly two weeks to draw new maps unin­fect­ed by par­ti­san­ship. Repub­li­can law­mak­ers decid­ed not to appeal that deci­sion to the lib­er­al North Car­oli­na Supreme Court. Instead, they appear deter­mined to vio­late the court’s order and pro­duce taint­ed maps that dilute Demo­c­ra­t­ic votes. It’s a scheme that will clear­ly anger the court. That may be the point.

    In direct­ing the Gen­er­al Assem­bly to redraw North Carolina’s house and sen­ate dis­tricts, the court laid down a few rules. It declared that “all map draw­ing [must] occur at pub­lic hear­ings,” a require­ment meant to pre­vent Repub­li­cans from covert­ly manip­u­lat­ing dis­trict lines for par­ti­san gain. Leg­is­la­tors must pro­duce dis­tricts with equal pop­u­la­tion, con­ti­gu­i­ty, and com­pact­ness, tak­ing care not to undu­ly carve up precincts and cities. Notably, leg­is­la­tors are strict­ly pro­hib­it­ed from using “[p]artisan con­sid­er­a­tions and elec­tion results data.” The court also announced that it would appoint a “ref­er­ee” to assist “in review­ing any Reme­di­al Maps enact­ed by the Gen­er­al Assembly”—and to “devel­op reme­di­al maps” if the Gen­er­al Assem­bly fails its task.

    The first indi­ca­tion that leg­isla­tive lead­ers might not com­ply in good faith with the order came on Sept. 6. That day, GOP leg­is­la­tors filed a rec­om­men­da­tion that the court appoint two “co-ref­er­ees”: Art Pope and Ger­ry Cohen. This sug­ges­tion is, to put it mild­ly, absurd. Pope is the con­ser­v­a­tive mul­ti­mil­lion­aire who mas­ter­mind­ed North Carolina’s Repub­li­can ger­ry­man­der. He bankrolled REDMAP, the GOP’s ger­ry­man­der­ing pro­gram, and helped to draw the state’s Repub­li­can ger­ry­man­der. Cohen is a more rea­son­able nom­i­nee: He once served as coun­sel to the Gen­er­al Assem­bly and is now a mem­ber of the Wake Coun­ty Board of Elec­tions. Repub­li­cans seem to have tossed in his name mere­ly to cre­ate a sense of balance—and they did not con­sult him before­hand: He learned he had been nom­i­nat­ed when I shared the news on Twit­ter. (The court has not yet act­ed on the GOP’s fil­ing.)

    After essen­tial­ly flip­ping off the court, Repub­li­can leg­is­la­tors got to work draw­ing the new dis­tricts. They quick­ly set­tled on a plan to get around the ban on par­ti­san ger­ry­man­der­ing. Law­mak­ers announced that they would work off maps cre­at­ed by Jowei Chen, a polit­i­cal sci­en­tist who served as an expert for the plain­tiffs in this case. Their stat­ed plan is to iden­ti­fy which if Chen’s maps best com­ports to the court’s guide­lines and adopt them with min­i­mal alter­ations.

    There are many prob­lems with this plan. First, and most obvi­ous­ly, Chen did not draw the maps in pub­lic hear­ings, as the court demand­ed. The court even clar­i­fied that “any rel­e­vant com­put­er screen” must be “vis­i­ble to leg­is­la­tors and pub­lic observers” to pre­vent sub­tle chi­canery.

    Sec­ond, Chen’s maps were nev­er intend­ed to serve as a mod­el for redis­trict­ing. Instead, they were cre­at­ed as evi­dence to gauge the sever­i­ty of the exist­ing ger­ry­man­der. Chen ran 1,000 sim­u­la­tions for both the house and sen­ate maps using non-par­ti­san dis­trict­ing cri­te­ria but allow­ing for incum­ben­cy pro­tec­tion. Every sin­gle map pro­duced more seats for Repub­li­cans; not a sin­gle one exhib­it­ed “the same extreme lev­el of Repub­li­can bias.” The court relied upon these maps to illus­trate just how exten­sive­ly the GOP ger­ry­man­der dilut­ed Demo­c­ra­t­ic votes. Leg­is­la­tors claimed that Chen’s maps can serve as a base­line for redis­trict­ing because they have already been “accept­ed” by the court. That is sim­ply false. The court nev­er said “accept­ed” these plans as reme­di­al maps, but as evi­dence of the cur­rent map’s infir­mi­ty.

    Third, work­ing off Chen’s maps will allow Repub­li­cans to smug­gle par­ti­san bias into the new plan. These maps, after all, were drawn using a sim­u­la­tion designed to pro­tect incum­bents. And most incum­bents at that time were Repub­li­cans because of the par­ti­san ger­ry­man­der. As Chen explained, the maps there­fore “distort[ed] the par­ti­san dis­tri­b­u­tion of vot­ers across dis­tricts” to favor Repub­li­cans. In oth­er words, they have a built-in par­ti­san bias. More­over, Repub­li­can leg­is­la­tors, who are very famil­iar with the par­ti­san dis­tri­b­u­tion of vot­ers at this point, can eas­i­ly assess which sim­u­lat­ed maps have the most bias toward the GOP. They will then rank their favorite plans and use a lot­tery machine to select which ones they will use. This per­for­mance is a bit mys­ti­fy­ing since the final­ists will all be extreme­ly similar—and, most like­ly, extreme­ly favor­able to Repub­li­cans.

    ...

    Again, GOP law­mak­ers prob­a­bly don’t need elec­tion data to fig­ure out which of Chen’s sim­u­la­tions will best pre­serve their elec­toral advan­tage. But they may have it any­way. Even though the court express­ly for­bade leg­is­la­tors from look­ing at this data, Repub­li­can attor­neys sent this data to the Gen­er­al Assem­bly on Mon­day via email. The email pro­vid­ed par­ti­san scores of Chen’s maps, stat­ing which ones most favored Repub­li­cans. It’s unclear if this email was sent in error, but either way, law­mak­ers now know which maps will best main­tain the cur­rent ger­ry­man­der. There is vir­tu­al­ly noth­ing Democ­rats can do to stop these shenani­gans. Repub­li­cans con­trol the com­mit­tee in charge of redraw­ing the maps and have plowed ahead with their scheme over Demo­c­ra­t­ic objec­tions.

    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.

    Repub­li­cans sure­ly know they stand lit­tle chance of win­ning this round. By trolling the court, they are all but ensur­ing the appoint­ment of a spe­cial mas­ter. At that point, Repub­li­cans can accuse the judges of over­reach and demo­nize the judi­cia­ry. A num­ber of impor­tant judi­cial seats are up for elec­tion in 2020, and GOP law­mak­ers may hope to pro­voke a back­lash against pro­gres­sive judges to ral­ly the base. What­ev­er the cause for their bad behav­ior, North Car­oli­na Repub­li­cans have spent the last few days prov­ing once again that they could not draw a fair map to save their lives.

    ———-

    “Instead of Fix­ing Their Ger­ry­man­der, North Car­oli­na Repub­li­cans Are Trolling the Court” by Mark Joseph Stern; Slate; 09/10/2019

    “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:

    ...
    In direct­ing the Gen­er­al Assem­bly to redraw North Carolina’s house and sen­ate dis­tricts, the court laid down a few rules. It declared that “all map draw­ing [must] occur at pub­lic hear­ings,” a require­ment meant to pre­vent Repub­li­cans from covert­ly manip­u­lat­ing dis­trict lines for par­ti­san gain. Leg­is­la­tors must pro­duce dis­tricts with equal pop­u­la­tion, con­ti­gu­i­ty, and com­pact­ness, tak­ing care not to undu­ly carve up precincts and cities. Notably, leg­is­la­tors are strict­ly pro­hib­it­ed from using “[p]artisan con­sid­er­a­tions and elec­tion results data.” The court also announced that it would appoint a “ref­er­ee” to assist “in review­ing any Reme­di­al Maps enact­ed by the Gen­er­al Assembly”—and to “devel­op reme­di­al maps” if the Gen­er­al Assem­bly fails its task.

    The first indi­ca­tion that leg­isla­tive lead­ers might not com­ply in good faith with the order came on Sept. 6. That day, GOP leg­is­la­tors filed a rec­om­men­da­tion that the court appoint two “co-ref­er­ees”: Art Pope and Ger­ry Cohen. This sug­ges­tion is, to put it mild­ly, absurd. Pope is the con­ser­v­a­tive mul­ti­mil­lion­aire who mas­ter­mind­ed North Carolina’s Repub­li­can ger­ry­man­der. He bankrolled REDMAP, the GOP’s ger­ry­man­der­ing pro­gram, and helped to draw the state’s Repub­li­can ger­ry­man­der. Cohen is a more rea­son­able nom­i­nee: He once served as coun­sel to the Gen­er­al Assem­bly and is now a mem­ber of the Wake Coun­ty Board of Elec­tions. Repub­li­cans seem to have tossed in his name mere­ly to cre­ate a sense of balance—and they did not con­sult him before­hand: He learned he had been nom­i­nat­ed when I shared the news on Twit­ter. (The court has not yet act­ed on the GOP’s fil­ing.)

    ...

    Again, GOP law­mak­ers prob­a­bly don’t need elec­tion data to fig­ure out which of Chen’s sim­u­la­tions will best pre­serve their elec­toral advan­tage. But they may have it any­way. Even though the court express­ly for­bade leg­is­la­tors from look­ing at this data, Repub­li­can attor­neys sent this data to the Gen­er­al Assem­bly on Mon­day via email. The email pro­vid­ed par­ti­san scores of Chen’s maps, stat­ing which ones most favored Repub­li­cans. It’s unclear if this email was sent in error, but either way, law­mak­ers now know which maps will best main­tain the cur­rent ger­ry­man­der. There is vir­tu­al­ly noth­ing Democ­rats can do to stop these shenani­gans. Repub­li­cans con­trol the com­mit­tee in charge of redraw­ing the maps and have plowed ahead with their scheme over Demo­c­ra­t­ic objec­tions.

    ...

    Repub­li­cans sure­ly know they stand lit­tle chance of win­ning this round. By trolling the court, they are all but ensur­ing the appoint­ment of a spe­cial mas­ter. At that point, Repub­li­cans can accuse the judges of over­reach and demo­nize the judi­cia­ry. A num­ber of impor­tant judi­cial seats are up for elec­tion in 2020, and GOP law­mak­ers may hope to pro­voke a back­lash against pro­gres­sive judges to ral­ly the base. What­ev­er the cause for their bad behav­ior, North Car­oli­na Repub­li­cans have spent the last few days prov­ing once again that they could not draw a fair map to save their lives.
    ...

    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:

    ...
    After essen­tial­ly flip­ping off the court, Repub­li­can leg­is­la­tors got to work draw­ing the new dis­tricts. They quick­ly set­tled on a plan to get around the ban on par­ti­san ger­ry­man­der­ing. Law­mak­ers announced that they would work off maps cre­at­ed by Jowei Chen, a polit­i­cal sci­en­tist who served as an expert for the plain­tiffs in this case. Their stat­ed plan is to iden­ti­fy which if Chen’s maps best com­ports to the court’s guide­lines and adopt them with min­i­mal alter­ations.

    There are many prob­lems with this plan. First, and most obvi­ous­ly, Chen did not draw the maps in pub­lic hear­ings, as the court demand­ed. The court even clar­i­fied that “any rel­e­vant com­put­er screen” must be “vis­i­ble to leg­is­la­tors and pub­lic observers” to pre­vent sub­tle chi­canery.

    Sec­ond, Chen’s maps were nev­er intend­ed to serve as a mod­el for redis­trict­ing. Instead, they were cre­at­ed as evi­dence to gauge the sever­i­ty of the exist­ing ger­ry­man­der. Chen ran 1,000 sim­u­la­tions for both the house and sen­ate maps using non-par­ti­san dis­trict­ing cri­te­ria but allow­ing for incum­ben­cy pro­tec­tion. Every sin­gle map pro­duced more seats for Repub­li­cans; not a sin­gle one exhib­it­ed “the same extreme lev­el of Repub­li­can bias.” The court relied upon these maps to illus­trate just how exten­sive­ly the GOP ger­ry­man­der dilut­ed Demo­c­ra­t­ic votes. Leg­is­la­tors claimed that Chen’s maps can serve as a base­line for redis­trict­ing because they have already been “accept­ed” by the court. That is sim­ply false. The court nev­er said “accept­ed” these plans as reme­di­al maps, but as evi­dence of the cur­rent map’s infir­mi­ty.

    Third, work­ing off Chen’s maps will allow Repub­li­cans to smug­gle par­ti­san bias into the new plan. These maps, after all, were drawn using a sim­u­la­tion designed to pro­tect incum­bents. And most incum­bents at that time were Repub­li­cans because of the par­ti­san ger­ry­man­der. As Chen explained, the maps there­fore “distort[ed] the par­ti­san dis­tri­b­u­tion of vot­ers across dis­tricts” to favor Repub­li­cans. In oth­er words, they have a built-in par­ti­san bias. More­over, Repub­li­can leg­is­la­tors, who are very famil­iar with the par­ti­san dis­tri­b­u­tion of vot­ers at this point, can eas­i­ly assess which sim­u­lat­ed maps have the most bias toward the GOP. They will then rank their favorite plans and use a lot­tery machine to select which ones they will use. This per­for­mance is a bit mys­ti­fy­ing since the final­ists will all be extreme­ly similar—and, most like­ly, extreme­ly favor­able to Repub­li­cans.
    ...

    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.

    Posted by Pterrafractyl | September 14, 2019, 11:23 pm
  8. 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:

    The Char­lotte Observ­er

    Who leaked the Hofeller files? NC ger­ry­man­der­ing bat­tle spawns new court case

    By Will Doran
    Sep­tem­ber 23, 2019 07:05 PM, Updat­ed

    After Repub­li­can oper­a­tive Thomas Hofeller died in Raleigh last year, his secret per­son­al files made their way into the nation­al media. They showed the extent of his involve­ment in ger­ry­man­der­ing North Car­oli­na and oth­er states, as well as in the Trump administration’s efforts to add a con­tro­ver­sial ques­tion about cit­i­zen­ship to the U.S. Cen­sus.

    Now, the ques­tion over how his files end­ed up in such pub­lic view — intro­duced as evi­dence in court, and splashed across the pages of nation­al pub­li­ca­tions — is sub­ject to new court­room over­sight in North Car­oli­na.

    Hofeller’s com­pa­ny asked this month for an inves­ti­ga­tion of the lat­est leaks from the files, and on Mon­day judges laid out the process for how the courts will deal with the request.

    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.

    Ear­li­er this sum­mer, a pan­el of judges in Raleigh threw out the maps used to elect mem­bers of the state leg­is­la­ture, rul­ing many of them uncon­sti­tu­tion­al due to the way they were drawn for Repub­li­can par­ti­san advan­tage.

    Hofeller’s files were used dur­ing the tri­al as evi­dence that he had secret­ly drawn the state’s maps with­out fol­low­ing the rules the leg­is­la­ture claimed he was bound by — and that he had poten­tial­ly used improp­er racial data, too. The maps in ques­tion were drawn to replace pre­vi­ous maps, also drawn by Hofeller, that had been struck down as uncon­sti­tu­tion­al racial ger­ry­man­ders by a dif­fer­ent court.

    There was more in Hofeller’s files, show­ing how he was also involved in North Carolina’s 2013 vot­er ID law, which was sim­i­lar­ly ruled uncon­sti­tu­tion­al for vio­lat­ing minori­ties’ rights, as well as the Cen­sus cit­i­zen­ship ques­tion con­tro­ver­sy.

    None of that came out in this summer’s ger­ry­man­der­ing tri­al, how­ev­er, because the judges said that any of the Hofeller files not being used as evi­dence should be kept con­fi­den­tial. That’s because there’s a sep­a­rate legal bat­tle brew­ing over who real­ly owns the files — Hofeller’s com­pa­ny, or his clients, or his daugh­ter, who was the one who gave them to Com­mon Cause, the nation­al anti-ger­ry­man­der­ing group that was part of the law­suit against North Carolina’s maps.

    All the anec­dotes about oth­er work Hofeller had done came out in arti­cles pub­lished by the nation­al media, par­tic­u­lar­ly a New York Times arti­cle about the Cen­sus con­tro­ver­sy and a New York­er arti­cle that dug into more gran­u­lar detail.

    It was that New York­er arti­cle, pub­lished ear­li­er this month, that gave raise to the newest legal devel­op­ments here in North Car­oli­na.

    David Daley, the author of books on vot­ing rights, pub­lished an arti­cle in the New York­er on Sept. 6 titled “The Secret Files of the Mas­ter of Mod­ern Repub­li­can Ger­ry­man­der­ing.”

    Three days lat­er, Hofeller’s com­pa­ny Geo­graph­ic Strate­gies filed a request with the judges in the North Car­oli­na redis­trict­ing case — where they’re also fight­ing over own­er­ship of the files — ask­ing for a full inves­ti­ga­tion into how Daley got the files.

    Monday’s court order will allow that inves­ti­ga­tion to poten­tial­ly go for­ward, not under the purview of the three-judge pan­el but rather over­seen by Wake Coun­ty Supe­ri­or Court Judge Vin­cent Rozi­er. The order says Geo­graph­ic Strate­gies “request­ed an order from the Court that all copies of the Hofeller files be destroyed,” except those already used as evi­dence in tri­al.

    They also asked the court to make Com­mon Cause and its attor­neys prove they weren’t the ones who leaked the files. Geo­graph­ic Strate­gies rep­re­sen­ta­tives said Com­mon Cause told them that Hofeller’s estranged daugh­ter, Stephanie Hofeller, is the one who gave the files to Daley, accord­ing to the court order.

    The com­pa­ny asked that Stephanie Hofeller and her lawyer be held in con­tempt of court, and asked for the New York­er to be banned from pub­lish­ing any­thing else about the Hofeller files until a hear­ing takes place, accord­ing to the court order.

    That last part, ban­ning the pub­li­ca­tion of infor­ma­tion, is known as “pri­or restraint” and is often con­sid­ered a First Amend­ment vio­la­tion.

    ...

    Monday’s court order also revealed the nation­al Repub­li­can Par­ty is now get­ting involved.

    Cam­paign finance reports show that the Repub­li­can Nation­al Com­mit­tee had been pay­ing Hofeller’s com­pa­ny more than $22,000 a month before his death. And Monday’s court fil­ing says that last month, the RNC asked the court “to pro­tect cer­tain files” from being seen by the pub­lic. North Car­oli­na Repub­li­can law­mak­ers have also asked Com­mon Cause to destroy files of Hofeller’s it had come to pos­sess.

    ———-

    “Who leaked the Hofeller files? NC ger­ry­man­der­ing bat­tle spawns new court case” by Will Doran; The Char­lotte Observ­er; 09/23/2019

    “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:

    ...
    It was that New York­er arti­cle, pub­lished ear­li­er this month, that gave raise to the newest legal devel­op­ments here in North Car­oli­na.

    David Daley, the author of books on vot­ing rights, pub­lished an arti­cle in the New York­er on Sept. 6 titled “The Secret Files of the Mas­ter of Mod­ern Repub­li­can Ger­ry­man­der­ing.”

    Three days lat­er, Hofeller’s com­pa­ny Geo­graph­ic Strate­gies filed a request with the judges in the North Car­oli­na redis­trict­ing case — where they’re also fight­ing over own­er­ship of the files — ask­ing for a full inves­ti­ga­tion into how Daley got the files.

    Monday’s court order will allow that inves­ti­ga­tion to poten­tial­ly go for­ward, not under the purview of the three-judge pan­el but rather over­seen by Wake Coun­ty Supe­ri­or Court Judge Vin­cent Rozi­er. The order says Geo­graph­ic Strate­gies “request­ed an order from the Court that all copies of the Hofeller files be destroyed,” except those already used as evi­dence in tri­al.

    ...

    Monday’s court order also revealed the nation­al Repub­li­can Par­ty is now get­ting involved.

    Cam­paign finance reports show that the Repub­li­can Nation­al Com­mit­tee had been pay­ing Hofeller’s com­pa­ny more than $22,000 a month before his death. And Monday’s court fil­ing says that last month, the RNC asked the court “to pro­tect cer­tain files” from being seen by the pub­lic. North Car­oli­na Repub­li­can law­mak­ers have also asked Com­mon Cause to destroy files of Hofeller’s it had come to pos­sess.
    ...

    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:

    The Huff­in­g­ton Post

    Daugh­ter Of GOP Ger­ry­man­der­ing Archi­tect Believes Her Father Intend­ed For Her To Dis­cov­er Doc­u­ment Trove
    “He had years to delete those files,” Stephanie Hofeller said in an inter­view.

    By Sam Levine
    06/21/2019 02:58 pm ET Updat­ed Jun 21, 2019

    The daugh­ter of a deceased Repub­li­can ger­ry­man­der­ing expert says she believes her father intend­ed for her to find a trove of doc­u­ments that could shed unique light on how Repub­li­cans ger­ry­man­dered vot­ing dis­tricts in North Car­oli­na and across the coun­try.

    The woman, Stephanie Hofeller, 49, dis­cov­ered four exter­nal hard dri­ves and 18 thumb dri­ves last year after her father, a well-known GOP ger­ry­man­der­ing expert, Thomas Hofeller, died. Stephanie Hofeller even­tu­al­ly turned over the files to lawyers for Com­mon Cause, who are chal­leng­ing ger­ry­man­dered maps in North Car­oli­na.

    Com­mon Cause lawyers dis­cov­ered what they say is explo­sive evi­dence in the files show­ing Thomas Hofeller played a role in get­ting the Trump admin­is­tra­tion to add a cit­i­zen­ship ques­tion to the 2020 cen­sus. Adding the ques­tion, which has not been asked since 1950, would ulti­mate­ly ben­e­fit Repub­li­cans and whites, accord­ing to one of Thomas Hofeller’s doc­u­ments. Sep­a­rate­ly lawyers say they dis­cov­ered that North Car­oli­na law­mak­ers lied to a fed­er­al court about the way it drew dis­tricts in 2017.

    ...

    Stephanie Hofeller said in an inter­view with Huff­Post Thurs­day she believes her father, who had a rep­u­ta­tion for care­ful­ly han­dling doc­u­ments and emails, intend­ed for her to find the files. She was estranged from her father, had not spo­ken with him since 2014, and learned of his death after putting his name into Google.

    “He had years to delete those files,” she said. “Any day he could have plugged it into the com­put­er and delete, delete, delete, delete. He also had many oppor­tu­ni­ties to put it in a place that I nev­er would have had any access.” She added that her father usu­al­ly clear­ly not­ed what was a work-relat­ed on her com­put­er, but when Stephanie Hofeller looked through the hard dri­ves she dis­cov­ered sev­er­al instances where work and per­son­al files min­gled togeth­er — a sign she believes he want­ed her to find them.

    North Car­oli­na law­mak­ers accused Stephanie Hofeller ear­li­er this week of improp­er­ly obtain­ing the files, but both she and her attor­ney say the accu­sa­tions are base­less. Stephanie Hofeller said Repub­li­cans were try­ing to embar­rass and intim­i­date her by por­tray­ing her as a crim­i­nal.

    “I must say I’ve been a lit­tle bit blown away by the bold­ness of it,” she said, refer­ring to how mis­lead­ing the attacks have been. “These peo­ple don’t have a speck­le of hon­or.”

    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).

    Stephanie Hofeller said she’s sur­prised at how quick­ly the doc­u­ments have bal­looned into a con­tro­ver­sy — she hadn’t even seen the doc­u­ment at the cit­i­zen­ship ques­tion dis­pute — but she has no regrets about turn­ing them over.

    “I don’t have a belief sys­tem that involves cov­er­ing things up,” she said.

    ———-

    “Daugh­ter Of GOP Ger­ry­man­der­ing Archi­tect Believes Her Father Intend­ed For Her To Dis­cov­er Doc­u­ment Trove” by Sam Levine; The Huff­in­g­ton Post; 06/21/2019

    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.

    Posted by Pterrafractyl | September 24, 2019, 9:56 am
  9. 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

    How to Get Away With Ger­ry­man­der­ing
    A leaked audio record­ing reveals how state law­mak­ers are taught to trash evi­dence, avoid the word ger­ry­man­der, and cre­ate an appear­ance of bipar­ti­san­ship.

    By David Daley
    Oct 02, 2019 1:16 PM

    Lux­u­ry cabanas atop Austin’s JW Mar­riott kept state leg­is­la­tors cool pool­side as August-in-Texas tem­per­a­tures soared above 103 degrees dur­ing each day of the Amer­i­can Leg­isla­tive Exchange Council’s 2019 annu­al meet­ing. The gath­ered Repub­li­can offi­cials could enjoy a $14 rooftop Pep­pered Palo­ma cock­tail with Patrón sil­ver, house­made grape­fruit poblano soda, and Chilean salt, all while gaz­ing over Lady Bird Lake and the near­by state Capi­tol, or catch­ing a ball­game on the cabana’s 55-inch pri­vate TV.

    Down­stairs, mean­while, five of the GOP’s most sea­soned redis­trict­ing minds and über-lawyers would teach them the fin­er points of tilt­ing maps and draw­ing dis­tricts that would allow them to retain such spoils for anoth­er decade.

    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.

    Dur­ing the ses­sion, the leg­is­la­tors were advised to treat redis­trict­ing as “polit­i­cal adult blood sport,” trash poten­tial evi­dence before it can be dis­cov­ered through lit­i­ga­tion, avoid the word ger­ry­man­der, and make deals with black and Lati­no leg­is­la­tors that guar­an­tee them easy reelec­tions by pack­ing as many minor­i­ty vot­ers as pos­si­ble into their dis­tricts, there­by mak­ing the rest of the map whiter and more con­ser­v­a­tive.

    Pan­elists offered com­pli­cat­ed tech­ni­cal advice, such as adding a legal pro­vi­sion that would allow a leg­is­la­ture to defend its maps in court even if the state attor­ney gen­er­al refus­es. And then there was less-tech­ni­cal advice, like being sure to put “sharp” leg­is­la­tors on redis­trict­ing com­mit­tees because they’ll spend a lot of time explain­ing the maps in court.

    “You are going to be sued. Let’s start with that,” Mitchell told a packed room at the ALEC gath­er­ing, attend­ed by more than 1,400 peo­ple, includ­ing Trump admin­is­tra­tion offi­cials and top con­ser­v­a­tive law­mak­ers, thinkers, donors, and activists. Mitchell made light of ALEC’s rep­u­ta­tion as a con­vey­or belt for cook­ie-cut­ter con­ser­v­a­tive leg­is­la­tion enact­ed by state after state. “Mind­less state leg­is­la­tors, we’re just pour­ing in infor­ma­tion and we’re indoc­tri­nat­ing you, pour­ing into your emp­ty skulls!” she said, sar­cas­ti­cal­ly. “We’re going to teach you how to ger­ry­man­der.”

    And then she did. “Let us begin with the fact that, prob­a­bly, your notes from this con­fer­ence, and this work­shop, will prob­a­bly be part of a dis­cov­ery demand,” Mitchell said on the record­ing, drop­ping the sar­casm. “My advice to you is: If you don’t want it turned over in dis­cov­ery, you prob­a­bly ought to get rid of it before you go home.”

    Farr, the vet­er­an North Car­oli­na elec­tion lawyer whose nom­i­na­tion to the fed­er­al bench in North Car­oli­na end­ed amid per­sis­tent alle­ga­tions that he had defend­ed efforts to sup­press the black vote, com­pared law­suits against GOP redis­trict­ing plans to a can­cer diag­no­sis. “You bet­ter get some chemother­a­py,” he said, “because if you don’t, things aren’t going to turn out real well for you.” He also told leg­is­la­tors that they need­ed to think about any tri­al as a play that he would direct as the coun­sel, and to be sure that they cre­at­ed a script that an attor­ney could work with before a judge.

    West­more­land, the for­mer Geor­gia con­gress­man who co-chaired a Repub­li­can 2010 redis­trict­ing ini­tia­tive called REDMAP, told a sto­ry about giv­ing black Democ­rats in his state map­mak­ing soft­ware and encour­ag­ing them to draw their “per­fect dis­trict,” know­ing that dis­tricts filled with minor­i­ty vot­ers would make sur­round­ing dis­tricts whiter and more Repub­li­can.

    “We end­ed up being very suc­cess­ful with it,” West­more­land said.

    West­more­land recalled invit­ing the mem­bers of the “black cau­cus” to his office, “off cam­pus,” to cre­ate their “per­fect map.” One incum­bent, he said, “final­ly fell into the trap and came over there and drew his per­fect dis­trict.” To show the redis­trict­ing plan ben­e­fit­ed black Democ­rats too, he “imme­di­ate­ly got the local paper down there” to run an arti­cle on that lawmaker’s per­fect dis­trict. West­more­land then includ­ed a dis­trict as close as pos­si­ble to that over­whelm­ing­ly black and Demo­c­ra­t­ic one in the state’s offi­cial map. The leg­is­la­tor, he said, vot­ed against the map and soon lost his seat.

    “I promise you it’ll be ben­e­fi­cial to you,” he told the ALEC atten­dees. “They still want to be reelect­ed. They still want to have the best dis­trict they can have.”

    The speak­ers repeat­ed­ly insist­ed that there is no such thing as a non­par­ti­san redis­trict­ing process. Farr argued that maps can nev­er be neu­tral. “Every time you draw a dis­trict­ing line, it ben­e­fits one par­ty and hurts the oth­er par­ty,” he said.

    The idea that Repub­li­cans are sim­ply fight­ing sim­i­lar­ly skewed Demo­c­ra­t­ic ger­ry­man­ders has been debunked. Accord­ing to a Uni­ver­si­ty of South­ern Cal­i­for­nia study, 59 mil­lion Amer­i­cans live in states where at least one cham­ber of the state leg­is­la­ture is con­trolled by the par­ty that won few­er votes in 2018. In every case, Repub­li­cans drew the lines, and hold minor­i­ty con­trol. That the process is inher­ent­ly polit­i­cal has been dis­proved as well: Sev­er­al states, includ­ing Cal­i­for­nia, Iowa, and New Jer­sey, use inde­pen­dent com­mis­sions or var­i­ous neu­tral or bipar­ti­san process­es that have suc­cess­ful­ly cre­at­ed fair­er and more com­pet­i­tive maps. Three-quar­ters of the seats that flipped dur­ing the 2018 U.S. House elec­tions were drawn by com­mis­sions or courts. Stud­ies show that maps become more rep­re­sen­ta­tive and equi­table when more par­ties have a seat at the table.

    Nev­er­the­less, Farr urged these law­mak­ers to make their process­es appear as open as pos­si­ble, even though they are dri­ven by par­ti­san­ship behind closed doors.

    The leg­isla­tive record, he told them, must appear to be busi­ness as usu­al, fol­low­ing every statute, with every tran­script and debate filed for the record.

    Giv­en that every map could end up in court, Farr advised extra­or­di­nary cau­tion. “You nev­er know what you might say, even if it’s unjust, that the left can take out of con­text and try to use to make the Repub­li­cans look like they’re evil.”

    Then, in court, Farr could take it from there.

    “It’s like I’m a direc­tor of a play,” he explained to the room. “I know what I want the play to look like for the judges when we actu­al­ly have to go and defend what we’ve done in court, and so this is why you want to make it look like—I know most of you know this already—you’re very cor­dial, coop­er­a­tive with the minor­i­ty par­ty or the oppos­ing par­ty. … The more you take the high road in the leg­isla­tive process, the bet­ter it’s going to look in court when you have to defend what you’ve done.”

    Repub­li­cans, Farr sug­gest­ed, are out­gunned by the lit­i­ga­tion pow­er and the expert wit­ness­es on the side of fair maps. He com­plained that Repub­li­cans have only five or six expert wit­ness­es, while Democ­rats have between 18 and 20 “real­ly out­stand­ing and smart peo­ple” able to explain “new­fan­gled the­o­ries” about iden­ti­fy­ing ger­ry­man­ders.

    Many of those expert wit­ness­es cre­ate tens of thou­sands of neu­tral maps using non­par­ti­san, legal redis­trict­ing cri­te­ria. Courts in North Car­oli­na, Penn­syl­va­nia, and Ohio were all per­suad­ed to over­turn maps as par­ti­san ger­ry­man­ders by rely­ing, in part, on sim­u­lat­ed maps that demon­strate that the ones drawn by leg­is­la­tors are wild par­ti­san out­liers. This tech­no­log­i­cal advance­ment offers the poten­tial of using the same tech­nol­o­gy that par­ti­sans use to rig maps to strip their intent bare. For Farr, this is a great threat. He warned the leg­is­la­tors that com­put­er-assist­ed maps would be the tac­tic deployed against their maps as par­ti­san ger­ry­man­der­ing moves to state courts dur­ing the upcom­ing 2020 redis­trict­ing cycle—and that he would help them defeat those maps.

    “Garbage in and garbage out,” he said. “You can read these things to get the results that you want.” Farr said that the pro­fes­sors work­ing on these sim­u­lat­ed maps were “very smart” and that the work is “very com­plex.” “You’ve got to get the right experts to look at their algo­rithm and all the back­up that they have. But there’s a def­i­nite way to defeat the con­cept of com­put­er-sim­u­lat­ed maps.”

    As Farr and West­more­land taught law­mak­ers to con­ceal the true intent of their maps and appear to play by the rules, Von Spakovsky envi­sioned a longer game to change the rules of redis­trict­ing entire­ly.

    Von Spakovsky, a mem­ber of the Trump-Kobach “elec­tion fraud” com­mis­sion, urged GOP law­mak­ers to use cit­i­zen­ship data to redis­trict state leg­is­la­tures rather than count the total pop­u­la­tions of dis­tricts, the lat­ter being the con­sti­tu­tion­al stan­dard for U.S. House dis­tricts and the long­time norm for states, as well. Most state leg­is­la­tures, how­ev­er, could redis­trict state leg­isla­tive lines based on cit­i­zen pop­u­la­tion, in most cas­es sim­ply by pass­ing a statute. (Recent rev­e­la­tions from the files of late GOP redis­trict­ing mas­ter­mind Thomas Hofeller demon­strat­ed that Repub­li­cans attempt­ed to place a cit­i­zen­ship ques­tion on the 2020 cen­sus to gath­er cit­i­zen­ship data for this pur­pose.)

    “All of you need to seri­ous­ly con­sid­er switch­ing to using cit­i­zen pop­u­la­tion to do redis­trict­ing,” he said, assert­ing that the con­cept of “one per­son, one vote” was just some­thing that lib­er­al jus­tices on the U.S. Supreme Court “cre­at­ed … out of whole cloth.”

    Von Spakovsky also told law­mak­ers that cen­sus data is impor­tant for two rea­sons: the appor­tion­ment of U.S. House seats, and state and fed­er­al redis­trict­ing. Con­gres­sion­al appor­tion­ment based on total pop­u­la­tion, as the Con­sti­tu­tion man­dates, is “fun­da­men­tal­ly unfair,” he said, because “states with large num­bers of aliens, par­tic­u­lar­ly ille­gal aliens, are get­ting more polit­i­cal pow­er.”

    “Lib­er­als do not want you doing this,” he said, because “the high­er the num­ber of nonci­t­i­zens in a dis­trict, the greater the chances they’re going to vote for a lib­er­al.”

    Von Spakovsky also praised Chief Jus­tice John Roberts’ major­i­ty, 5–4 opin­ion ear­li­er this year in Rucho v. Com­mon Cause, which essen­tial­ly closed the fed­er­al courts to par­ti­san ger­ry­man­der­ing claims. But he warned that oth­er legal avenues are still open to pro­po­nents of fair maps. “What you have to under­stand is this is not the end of this,” he said.

    Ger­ry­man­dered maps could get chal­lenged under state con­sti­tu­tions as a polit­i­cal ques­tion, he said, or in fed­er­al courts for uncon­sti­tu­tion­al use of race data and for dilut­ing the votes of minori­ties con­trary to Sec­tion 2 of the Vot­ing Rights Act. He called this “the Goldilocks prin­ci­ple of redis­trict­ing,” not­ing that “you can’t use too much race,” but if you don’t use race at all, “His­pan­ics, African Amer­i­cans are going to claim you didn’t cre­ate a dis­trict in which they can elect a can­di­date of their choice.”

    To with­stand these inevitable legal chal­lenges, the pan­elists said, it is impor­tant to con­trol not only leg­isla­tive majori­ties but also the judges approv­ing or reject­ing redis­trict­ing plans.

    “Always know who’s going to end up rul­ing on your maps,” West­more­land, the Geor­gia law­mak­er, advised. “It’s impor­tant to work with the judges, the judi­cial sys­tem. You need to work for your attor­ney gen­er­als. … You need to work with as many orga­ni­za­tions that you can to make sure that not only you win the major­i­ty, but that you elect peo­ple that are going to be able to super­vise what these maps, or what you, come up with.”

    ...

    ———–

    “How to Get Away With Ger­ry­man­der­ing” by David Daley; Slate; 10/02/2019

    “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:

    ...
    Dur­ing the ses­sion, the leg­is­la­tors were advised to treat redis­trict­ing as “polit­i­cal adult blood sport,” trash poten­tial evi­dence before it can be dis­cov­ered through lit­i­ga­tion, avoid the word ger­ry­man­der, and make deals with black and Lati­no leg­is­la­tors that guar­an­tee them easy reelec­tions by pack­ing as many minor­i­ty vot­ers as pos­si­ble into their dis­tricts, there­by mak­ing the rest of the map whiter and more con­ser­v­a­tive.

    ...

    “You are going to be sued. Let’s start with that,” Mitchell told a packed room at the ALEC gath­er­ing, attend­ed by more than 1,400 peo­ple, includ­ing Trump admin­is­tra­tion offi­cials and top con­ser­v­a­tive law­mak­ers, thinkers, donors, and activists. Mitchell made light of ALEC’s rep­u­ta­tion as a con­vey­or belt for cook­ie-cut­ter con­ser­v­a­tive leg­is­la­tion enact­ed by state after state. “Mind­less state leg­is­la­tors, we’re just pour­ing in infor­ma­tion and we’re indoc­tri­nat­ing you, pour­ing into your emp­ty skulls!” she said, sar­cas­ti­cal­ly. “We’re going to teach you how to ger­ry­man­der.”

    And then she did. “Let us begin with the fact that, prob­a­bly, your notes from this con­fer­ence, and this work­shop, will prob­a­bly be part of a dis­cov­ery demand,” Mitchell said on the record­ing, drop­ping the sar­casm. “My advice to you is: If you don’t want it turned over in dis­cov­ery, you prob­a­bly ought to get rid of it before you go home.”

    Farr, the vet­er­an North Car­oli­na elec­tion lawyer whose nom­i­na­tion to the fed­er­al bench in North Car­oli­na end­ed amid per­sis­tent alle­ga­tions that he had defend­ed efforts to sup­press the black vote, com­pared law­suits against GOP redis­trict­ing plans to a can­cer diag­no­sis. “You bet­ter get some chemother­a­py,” he said, “because if you don’t, things aren’t going to turn out real well for you.” He also told leg­is­la­tors that they need­ed to think about any tri­al as a play that he would direct as the coun­sel, and to be sure that they cre­at­ed a script that an attor­ney could work with before a judge.

    ...

    Nev­er­the­less, Farr urged these law­mak­ers to make their process­es appear as open as pos­si­ble, even though they are dri­ven by par­ti­san­ship behind closed doors.

    The leg­isla­tive record, he told them, must appear to be busi­ness as usu­al, fol­low­ing every statute, with every tran­script and debate filed for the record.

    Giv­en that every map could end up in court, Farr advised extra­or­di­nary cau­tion. “You nev­er know what you might say, even if it’s unjust, that the left can take out of con­text and try to use to make the Repub­li­cans look like they’re evil.”

    Then, in court, Farr could take it from there.

    “It’s like I’m a direc­tor of a play,” he explained to the room. “I know what I want the play to look like for the judges when we actu­al­ly have to go and defend what we’ve done in court, and so this is why you want to make it look like—I know most of you know this already—you’re very cor­dial, coop­er­a­tive with the minor­i­ty par­ty or the oppos­ing par­ty. … The more you take the high road in the leg­isla­tive process, the bet­ter it’s going to look in court when you have to defend what you’ve done.”
    ...

    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:

    ...
    Von Spakovsky, a mem­ber of the Trump-Kobach “elec­tion fraud” com­mis­sion, urged GOP law­mak­ers to use cit­i­zen­ship data to redis­trict state leg­is­la­tures rather than count the total pop­u­la­tions of dis­tricts, the lat­ter being the con­sti­tu­tion­al stan­dard for U.S. House dis­tricts and the long­time norm for states, as well. Most state leg­is­la­tures, how­ev­er, could redis­trict state leg­isla­tive lines based on cit­i­zen pop­u­la­tion, in most cas­es sim­ply by pass­ing a statute. (Recent rev­e­la­tions from the files of late GOP redis­trict­ing mas­ter­mind Thomas Hofeller demon­strat­ed that Repub­li­cans attempt­ed to place a cit­i­zen­ship ques­tion on the 2020 cen­sus to gath­er cit­i­zen­ship data for this pur­pose.)

    “All of you need to seri­ous­ly con­sid­er switch­ing to using cit­i­zen pop­u­la­tion to do redis­trict­ing,” he said, assert­ing that the con­cept of “one per­son, one vote” was just some­thing that lib­er­al jus­tices on the U.S. Supreme Court “cre­at­ed … out of whole cloth.”

    Von Spakovsky also told law­mak­ers that cen­sus data is impor­tant for two rea­sons: the appor­tion­ment of U.S. House seats, and state and fed­er­al redis­trict­ing. Con­gres­sion­al appor­tion­ment based on total pop­u­la­tion, as the Con­sti­tu­tion man­dates, is “fun­da­men­tal­ly unfair,” he said, because “states with large num­bers of aliens, par­tic­u­lar­ly ille­gal aliens, are get­ting more polit­i­cal pow­er.”

    “Lib­er­als do not want you doing this,” he said, because “the high­er the num­ber of nonci­t­i­zens in a dis­trict, the greater the chances they’re going to vote for a lib­er­al.”

    Von Spakovsky also praised Chief Jus­tice John Roberts’ major­i­ty, 5–4 opin­ion ear­li­er this year in Rucho v. Com­mon Cause, which essen­tial­ly closed the fed­er­al courts to par­ti­san ger­ry­man­der­ing claims. But he warned that oth­er legal avenues are still open to pro­po­nents of fair maps. “What you have to under­stand is this is not the end of this,” he said.
    ...

    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:

    ...
    The speak­ers repeat­ed­ly insist­ed that there is no such thing as a non­par­ti­san redis­trict­ing process. Farr argued that maps can nev­er be neu­tral. “Every time you draw a dis­trict­ing line, it ben­e­fits one par­ty and hurts the oth­er par­ty,” he said.

    The idea that Repub­li­cans are sim­ply fight­ing sim­i­lar­ly skewed Demo­c­ra­t­ic ger­ry­man­ders has been debunked. Accord­ing to a Uni­ver­si­ty of South­ern Cal­i­for­nia study, 59 mil­lion Amer­i­cans live in states where at least one cham­ber of the state leg­is­la­ture is con­trolled by the par­ty that won few­er votes in 2018. In every case, Repub­li­cans drew the lines, and hold minor­i­ty con­trol. That the process is inher­ent­ly polit­i­cal has been dis­proved as well: Sev­er­al states, includ­ing Cal­i­for­nia, Iowa, and New Jer­sey, use inde­pen­dent com­mis­sions or var­i­ous neu­tral or bipar­ti­san process­es that have suc­cess­ful­ly cre­at­ed fair­er and more com­pet­i­tive maps. Three-quar­ters of the seats that flipped dur­ing the 2018 U.S. House elec­tions were drawn by com­mis­sions or courts. Stud­ies show that maps become more rep­re­sen­ta­tive and equi­table when more par­ties have a seat at the table.
    ...

    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:

    Moth­er Jones

    To Fight Democ­rats’ First Bill, GOP Calls in Dis­cred­it­ed Advo­cates of Vot­er Sup­pres­sion
    This is how Repub­li­cans are plan­ning to resist an effort to expand vot­ing rights.

    Ari Berman
    Jan­u­ary 29, 2019

    With the House of Rep­re­sen­ta­tives set to debate its first leg­is­la­tion of the new ses­sion on Tues­day, Repub­li­cans are call­ing in two “expert wit­ness­es” to fight the mea­sure who are best known for dis­cred­it­ed claims about vot­er fraud that have been repeat­ed­ly debunked in fed­er­al court.

    The House Judi­cia­ry Com­mit­tee is hold­ing its first hear­ing Tues­day on a sweep­ing democ­ra­cy reform bill intro­duced by Democ­rats that would make it far eas­i­er to vote and hard­er to buy elec­tions. HR 1: The For the Peo­ple Act includes reforms like auto­mat­ic and Elec­tion Day reg­is­tra­tion, nation­wide ear­ly vot­ing, inde­pen­dent redis­trict­ing com­mis­sions, and pub­lic financ­ing of con­gres­sion­al cam­paigns. Har­vard Law School pro­fes­sor Lawrence Lessig called it “the most impor­tant civ­il rights bill in half a cen­tu­ry.”

    While vot­ing rights lawyers are tes­ti­fy­ing in favor of the bill, Repub­li­cans on the judi­cia­ry com­mit­tee who oppose the leg­is­la­tion have recruit­ed two of the biggest vote sup­pres­sors in their par­ty to tes­ti­fy against it: Hans von Spakovsky of the Her­itage Foun­da­tion and J. Chris­t­ian Adams of the Pub­lic Inter­est Legal Foun­da­tion.

    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.

    Von Spakovsky and Adams first worked togeth­er to roll back vot­ing rights enforce­ment in the Jus­tice Department’s Civ­il Rights Divi­sion under George W. Bush. Von Spakosvky was spe­cial coun­sel to Bradley Schloz­man, the assis­tant attor­ney gen­er­al for civ­il rights, who said he want­ed to “ger­ry­man­der all of those crazy libs” out of the division’s vot­ing sec­tion. (Schloz­man was lat­er embroiled in scan­dal for the polit­i­cal­ly moti­vat­ed fir­ings of US attor­neys.) Six for­mer lawyers in the vot­ing sec­tion called von Spakovsky the “point per­son for under­min­ing the Civ­il Rights Division’s man­date to pro­tect vot­ing rights.”

    Adams, as a lawyer in the vot­ing sec­tion, sought to pros­e­cute African Amer­i­cans in reverse-dis­crim­i­na­tion cas­es and resigned from the Jus­tice Depart­ment when the Oba­ma admin­is­tra­tion refused to pros­e­cute the New Black Pan­ther Par­ty case, cit­ing “a hos­til­i­ty in the vot­ing sec­tion and in the Civ­il Rights Divi­sion to bring­ing cas­es on behalf of white vic­tims for the ben­e­fit of nation­al racial minori­ties.”

    As mem­bers of Trump’s elec­tion com­mis­sion, von Spakovsky and Adams helped then-Kansas Sec­re­tary of State Kris Kobach, the commission’s vice chair, for­mu­late a con­tro­ver­sial let­ter request­ing sen­si­tive vot­er data from all 50 states, which back­fired spec­tac­u­lar­ly when many states refused the request. Before join­ing the com­mis­sion, von Spakovsky called on the Trump admin­is­tra­tion to exclude Democ­rats and “main­stream Repub­li­can offi­cials and/or aca­d­e­mics” from join­ing it.

    Von Spakovsky was among the first fig­ures in the Repub­li­can Par­ty to lob­by for strict vot­er ID laws, and was retained by Kobach to defend Kansas’ proof-of-cit­i­zen­ship law for vot­er reg­is­tra­tion, which blocked 1 in 7 new vot­ers in Kansas from reg­is­ter­ing from 2013 to 2016. Dis­trict Judge Julie Robin­son, a Bush appointee, struck down the law last year and sharply crit­i­cized von Spakovsky’s tes­ti­mo­ny at the tri­al.

    “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,” Robin­son wrote. “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.”

    Adams, for his part, has made wild­ly unsub­stan­ti­at­ed charges about the preva­lence of mass vot­er fraud, false­ly claim­ing in a series of reports that there was an “alien inva­sion” of thou­sands of nonci­t­i­zen vot­ers in Vir­ginia.

    One of the “aston­ish­ing” exam­ples of fraud claimed by the Pub­lic Inter­est Legal Foun­da­tion, a right-wing legal group helmed by Adams, was that Mau­reen Erick­son, who list­ed an address in Guatemala, had “vot­ed in 14 dif­fer­ent elections—most recent­ly in 2008—before her reg­is­tra­tion was can­celed.” But as my col­league Pema Levy report­ed, Erick­son was a US cit­i­zen liv­ing in Guatemala as a mis­sion­ary who legal­ly vot­ed by absen­tee bal­lot in Vir­ginia.

    ...

    Adams has filed numer­ous law­suits to force states and counties—including some with large minor­i­ty populations—to aggres­sive­ly purge their vot­er rolls. One such law­suit filed against Florida’s Broward Coun­ty, a heav­i­ly Demo­c­ra­t­ic area, was dis­missed by a fed­er­al judge last year, who called the expert tes­ti­mo­ny by Adams’ group “mis­lead­ing” and “inac­cu­rate.”

    Adams has dubbed HR 1 “Nan­cy Pelosi’s plan to ter­mi­nate state con­trol over Amer­i­can elec­tions.” Elec­tion law experts have wide­ly praised the bill. Rick Hasen of the Uni­ver­si­ty of Cal­i­for­nia-Irvine School of Law said it would “go an enor­mous way toward repair­ing our bad­ly bro­ken democ­ra­cy.”

    But Republicans—as evi­denced by the tes­ti­mo­ny of von Spakovsky and Adams—have launched a coun­terof­fen­sive against what they view as a threat to the GOP’s pow­er. “Their pro­pos­al is sim­ply a naked attempt to change the rules of Amer­i­can pol­i­tics to ben­e­fit one par­ty,” Sen­ate Major­i­ty Leader Mitch McConnell wrote in the Wash­ing­ton Post on Jan­u­ary 17. “It should be called the Demo­c­rat Politi­cian Pro­tec­tion Act.”

    ———–

    “To Fight Democ­rats’ First Bill, GOP Calls in Dis­cred­it­ed Advo­cates of Vot­er Sup­pres­sion” by Ari Berman; Moth­er Jones; 01/29/2019

    “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:

    ...
    Von Spakovsky was among the first fig­ures in the Repub­li­can Par­ty to lob­by for strict vot­er ID laws, and was retained by Kobach to defend Kansas’ proof-of-cit­i­zen­ship law for vot­er reg­is­tra­tion, which blocked 1 in 7 new vot­ers in Kansas from reg­is­ter­ing from 2013 to 2016. Dis­trict Judge Julie Robin­son, a Bush appointee, struck down the law last year and sharply crit­i­cized von Spakovsky’s tes­ti­mo­ny at the tri­al.

    “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,” Robin­son wrote. “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.”

    ...

    Adams has filed numer­ous law­suits to force states and counties—including some with large minor­i­ty populations—to aggres­sive­ly purge their vot­er rolls. One such law­suit filed against Florida’s Broward Coun­ty, a heav­i­ly Demo­c­ra­t­ic area, was dis­missed by a fed­er­al judge last year, who called the expert tes­ti­mo­ny by Adams’ group “mis­lead­ing” and “inac­cu­rate.”
    ...

    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.

    Posted by Pterrafractyl | October 13, 2019, 9:00 pm

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