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!

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.

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.

Giv­en that GOP is doing every­thing it can to make the 2020 cen­sus and 2021 redistricting/reapportionment a bonan­za of ger­ry­man­der­ing and cor­rup­tion, here’s a sto­ry that’s a reminder that when it comes to the GOP’s planned bonan­zas of cor­rup­tion there’s no such thing as too cor­rupt:

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

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

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

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

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.

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.

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 want more gov­ern­ment ser­vices. They do. But they’ve been sold on the big lie that the rea­son they aren’t get­ting the gov­ern­ment ser­vices they want is because all the mon­ey for gov­ern­ment ser­vices is going to minori­ties and immi­grants in the big cities and over­paid pub­lic employ­ees.

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

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

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

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

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.

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.

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.

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.

It did it again: The Supreme Court’s con­ser­v­a­tive major­i­ty just gave its bless­ing to extreme hyper-par­ti­san ger­ry­man­der­ing. That was lit­er­al­ly in the rul­ing. The case involved a low­er fed­er­al court rul­ing from April that found a large num­ber of Michi­gan’s ger­ry­man­dered state dis­tricts were uncon­sti­tu­tion­al­ly ger­ry­man­dered due to the extreme par­ti­san nature of the Repub­li­can-drawn. In this new 5–4 rul­ing that that inval­i­dat­ed that low­er court rul­ing, John Roberts wrote that ger­ry­man­der­ing designed to reduce the rep­re­sen­ta­tion of vot­ers of a par­tic­u­lar polit­i­cal ide­ol­o­gy is indeed con­sti­tu­tion­al. He even con­ced­ed that such a rul­ing may enable increas­ing­ly unequal polit­i­cal rep­re­sen­ta­tion but even if that’s the result it’s still con­sti­tu­tion­al­ly valid. Sur­prise.

It was­n’t actu­al­ly a sur­pris­ing rul­ing since it’s in keep­ing with the Supreme Court’s his­tor­i­cal­ly cor­rupt June rul­ing in Rucho v Com­mon Cause that found that fed­er­al courts have no juris­dic­tion over ques­tions of par­ti­san ger­ry­man­der­ing. The spe­cif­ic legal rea­son­ing the con­ser­v­a­tive major­i­ty relied on in this lat­est case for strik­ing down the low­er court rul­ing against the Michi­gan Repub­li­cans’ ger­ry­man­der­ing relied on the same under­ly­ing log­ic used in the Rucho v Com­mon Cause rul­ing, that the ques­tion before the court– “deter­min­ing when polit­i­cal ger­ry­man­der­ing has gone too far”– could not be ground­ed in a “lim­it­ed and pre­cise ratio­nale” because the issue “lacks judi­cial­ly dis­cov­er­able and man­age­able stan­dards for resolv­ing.”

Keep in mind that Michi­gan is one of the states with the most egre­gious ger­ry­man­der­ing in the coun­try. Thanks to the Repub­li­can ger­ry­man­der­ing of 2011, as part of Project REDMAP, the GOP won 9 of 14 con­gres­sion­al races in 2016 with just 51 per­cent of the vote in con­gres­sion­al races, mak­ing Michi­gan one of the most ger­ry­man­dered states in the US. It points to the very sim­ple rules that fed­er­al courts could apply to par­ti­san ger­ry­man­der­ing cas­es that the would be implic­it­ly in keep­ing with the con­sti­tu­tion, like equal rep­re­sen­ta­tion.

So the con­ser­v­a­tive major­i­ty again ruled that fed­er­al courts can’t pos­si­bly come up with a ratio­nale for what con­sti­tutes an over­reach in par­ti­san­ship in ger­ry­man­der­ing (like, for instance, a mas­sive devi­a­tion from equal rep­re­sen­ta­tion) and there­fore the entire issue must be left up to the states even if the result is even greater sys­tem­at­ic polit­i­cal inequal­i­ty for peo­ple of par­tic­u­lar polit­i­cal ide­olo­gies. And it just hap­pens to be the case that the most egre­gious ger­ry­man­der­ing today is pre­dom­i­nant­ly weak­en­ing the polit­i­cal rep­re­sen­ta­tion of left-wing polit­i­cal ide­olo­gies. As Jus­tice Ele­na Kagan wrote in her scathing dis­sent, “I think it impor­tant to under­score that fact: The major­i­ty dis­putes none of what I have said (or will say) about how ger­ry­man­ders under­mine democ­ra­cy. Indeed, the major­i­ty con­cedes (real­ly, how could it not?) that ger­ry­man­der­ing is ‘incom­pat­i­ble with demo­c­ra­t­ic prin­ci­ples,’”:

Law & Crime

SCOTUS Vacates Rul­ing That Found Michi­gan Uncon­sti­tu­tion­al­ly Ger­ry­man­dered Con­gres­sion­al Dis­tricts

by Jer­ry Lambe | 10:51 am, Octo­ber 21st, 2019

The Unit­ed States Supreme Court on Mon­day can­celled a fed­er­al court’s deci­sion, which found Michigan’s con­gres­sion­al vot­ing dis­tricts were uncon­sti­tu­tion­al because they were ger­ry­man­dered to such a degree that it vio­lat­ed vot­ers’ First Amend­ment rights and the Constitution’s Equal Pro­tec­tion clause.

...

A three-judge pan­el on the U.S. Dis­trict Court of the East­ern Dis­trict of Michi­gan ruled in April that 34 of the state’s vot­ing dis­tricts were specif­i­cal­ly designed to dis­ad­van­tage Demo­c­ra­t­ic vot­ers, delib­er­ate­ly dilut­ing the pow­er of their vote to ensure a par­tic­u­lar par­ti­san out­come. The panel’s rul­ing ordered the state to redraw the vot­ing dis­trict maps, call­ing par­ti­san ger­ry­man­der­ing a “per­ni­cious prac­tice that under­mines our democ­ra­cy.”

The order was expect­ed in light of the Jus­tices June deci­sion in Rucho v. Com­mon Cause, a land­mark deci­sion which great­ly reined in fed­er­al court’s abil­i­ty to inter­vene in polit­i­cal ger­ry­man­der­ing cas­es. The Court ruled that the par­ti­san ger­ry­man­der­ing issue was “beyond the reach of fed­er­al courts.”

In a 5–4 vote along ide­o­log­i­cal lines, Chief Jus­tice John Roberts invoked the court’s Polit­i­cal Ques­tion doc­trine in find­ing it con­sti­tu­tion­al­ly per­mis­si­ble for vot­ing dis­tricts to be drawn with the spe­cif­ic intent to dis­ad­van­tage vot­ers of a par­tic­u­lar polit­i­cal ide­ol­o­gy. The rul­ing was seen as a severe blow to vot­ing rights advo­cates chal­leng­ing the dis­pro­por­tion­ate impact ger­ry­man­der­ing can have on vot­ing pow­er.

Roberts rea­soned that the ques­tion before the court– “deter­min­ing when polit­i­cal ger­ry­man­der­ing has gone too far”– could not be ground­ed in a “lim­it­ed and pre­cise ratio­nale” because the issue “lacks judi­cial­ly dis­cov­er­able and man­age­able stan­dards for resolv­ing.”

He con­ced­ed that the rul­ing may enable increas­ing­ly inequitable polit­i­cal rep­re­sen­ta­tion, but said that such a result does not vio­late any con­sti­tu­tion­al man­date where no stan­dard for deter­mi­na­tion exists. Roberts did not pre­vent the court from inter­ven­ing in cas­es of racial ger­ry­man­der­ing.

Jus­tice Ele­na Kagan wrote a scathing dis­sent in which she called the majority’s deci­sion a low-point for democ­ra­cy.

“I think it impor­tant to under­score that fact: The major­i­ty dis­putes none of what I have said (or will say) about how ger­ry­man­ders under­mine democ­ra­cy. Indeed, the major­i­ty con­cedes (real­ly, how could it not?) that ger­ry­man­der­ing is ‘incom­pat­i­ble with demo­c­ra­t­ic prin­ci­ples,’” she said from the bench.

———-

“SCOTUS Vacates Rul­ing That Found Michi­gan Uncon­sti­tu­tion­al­ly Ger­ry­man­dered Con­gres­sion­al Dis­tricts” by Jer­ry Lambe; Law & Crime; 10/21/2019

“Roberts rea­soned that the ques­tion before the court– “deter­min­ing when polit­i­cal ger­ry­man­der­ing has gone too far”– could not be ground­ed in a “lim­it­ed and pre­cise ratio­nale” because the issue “lacks judi­cial­ly dis­cov­er­able and man­age­able stan­dards for resolv­ing.””

Yes, accord­ing to the con­ser­v­a­tive major­i­ty, because the con­sti­tu­tion does­n’t explic­it­ly lay out a rule for what pre­cise­ly would be con­sid­ered ‘too par­ti­san’ for the draw­ing of dis­tricts, fed­er­al courts are there­fore con­sti­tu­tion­al­ly inca­pable of address­ing the issue, even if doing so results in ger­ry­man­der­ing sit­u­a­tions that are incom­pat­i­ble with the prin­ci­ples of democ­ra­cy:

...
He con­ced­ed that the rul­ing may enable increas­ing­ly inequitable polit­i­cal rep­re­sen­ta­tion, but said that such a result does not vio­late any con­sti­tu­tion­al man­date where no stan­dard for deter­mi­na­tion exists. Roberts did not pre­vent the court from inter­ven­ing in cas­es of racial ger­ry­man­der­ing.

Jus­tice Ele­na Kagan wrote a scathing dis­sent in which she called the majority’s deci­sion a low-point for democ­ra­cy.

“I think it impor­tant to under­score that fact: The major­i­ty dis­putes none of what I have said (or will say) about how ger­ry­man­ders under­mine democ­ra­cy. Indeed, the major­i­ty con­cedes (real­ly, how could it not?) that ger­ry­man­der­ing is ‘incom­pat­i­ble with demo­c­ra­t­ic prin­ci­ples,’” she said from the bench.
...

It’s a kind of ‘prin­ci­ple help­less­ness’ in the face of ques­tions of par­ti­san­ship that just so hap­pens to have a dis­tinct­ly par­ti­san out­come that over­whelm­ing helps Repub­li­cans. Imag­ine that.

And while we don’t real­ly get to see how this con­ser­v­a­tive major­i­ty would have ruled on this issue if the tables were turned and states were over­whelm­ing dom­i­nat­ed by Democ­rats who were imple­ment­ing hyper-par­ti­san ger­ry­man­der­ing to solid­i­fy their pow­er, it’s worth keep­ing in mind that it’s entire­ly pos­si­ble in upcom­ing decades that we will see such a sce­nario. Because the life­time-nature of Supreme Court appoint­ments — com­bined with the out­right theft of the Supreme Court seat that allowed Pres­i­dent Trump to appoint a jus­tice for a seat that should have been up to Pres­i­dent Oba­ma and the rel­a­tive­ly youth­full­ness of right-wing jus­tices — has giv­en the right-wing the kind of grip on the Supreme Court that could last for decades to come. And there’s no guar­an­tee that the right-wing dom­i­na­tion of state gov­ern­ments will endure dur­ing that peri­od. So it’s pos­si­ble this con­ser­v­a­tive Supreme Court major­i­ty will one day face this same ques­tion but from a sit­u­a­tion where they’ll be enabling this kind of ram­pant cheat­ing pri­mar­i­ly on behalf of Democ­rats. It’s an inter­est­ing future pos­si­bil­i­ty that’s also a reflec­tion of how thor­ough­ly the bil­lion­aire-dom­i­nat­ed con­ser­v­a­tive move­ment in Amer­i­ca has solid­i­fied its long-term grip on the reigns of pow­er in the Unit­ed States through aggres­sive, orga­nized, well fund­ed full-spec­trum cheat­ing. The Amer­i­can gov­ern­ment isn’t just bought and paid for by right-wing bil­lion­aires. There’s a long-term con­tract in the form of legal­ized ger­ry­man­der­ing.

Oh, but it turns out there’s actu­al­ly a bit of bonus cheat­ing now avail­able to the GOP in Michi­gan: There’s a state pro­vi­sion that allows for the pas­sage of laws with a sim­ple major­i­ty in both cham­bers of the state leg­is­la­ture that the gov­er­nor — an elect­ed offi­cial in a state-wide race where ger­ry­man­der­ing doen­s’t fac­tor in — can’t veto. So in Michi­gan the impact of the hyper-par­ti­san ger­ry­man­der­ing of state leg­isla­tive dis­tricts gets tur­bo-charged with this peti­tion option. It cur­rent­ly requires just over 340k sig­na­tures and right now there’s an ongo­ing dri­ve to use it to pass stricter abor­tion laws based on just a major­i­ty vote of Michi­gan’s ger­ry­man­dered state dis­tricts:

The Wash­ing­ton Post

An over­looked con­se­quence of the Supreme Court’s ger­ry­man­der­ing rul­ings: Stricter abor­tion laws

By Reis The­bault
Octo­ber 22, 2019 at 7:57 PM EDT

For the next two months, peti­tion­ers will swarm Michi­gan ahead of late-Decem­ber dead­lines. They’ll knock on doors, flock to fairs and hand out pam­phlets after church. Every day will be valu­able, and every sig­na­ture will get them a lit­tle bit clos­er to their goal: mak­ing it hard­er for women to get abor­tions in their home state.

If the vol­un­teer fleet is suc­cess­ful, Michi­gan will join the list of states that have tight­ened restric­tions on abor­tion rights this year. But, unlike those oth­er states, which have over­whelm­ing­ly con­ser­v­a­tive gov­ern­ments, Michi­gan could pass antiabor­tion laws with­out the governor’s approval and with­out the sup­port of a major­i­ty of vot­ers.

If that hap­pens, the legion of peti­tion­ers won’t be the only rea­son. Abor­tion rights advo­cates could also point the fin­ger at a famil­iar specter: ger­ry­man­der­ing.

In Michi­gan, as else­where, the spar­ring over access to abor­tion spans local pol­i­tics, the state judi­cia­ry and fed­er­al courts. On Mon­day, the U.S. Supreme Court gave Repub­li­cans a vic­to­ry when it threw out a low­er court’s rul­ing that the state’s polit­i­cal dis­trict maps were ille­gal­ly ger­ry­man­dered — reaf­firm­ing the high court’s stance that fed­er­al judges have no pow­er to stop par­ti­san ger­ry­man­der­ing.

At the same time, Michigan’s recent­ly elect­ed Demo­c­ra­t­ic gov­er­nor has promised to veto antiabor­tion bills passed in the GOP-dom­i­nat­ed House and Sen­ate.

How­ev­er, an obscure but long-stand­ing pro­vi­sion in the state con­sti­tu­tion gives the state’s cit­i­zens the chance to work hand-in-hand with the leg­is­la­ture to pass bills that are exempt from a governor’s veto or a pop­u­lar vote.

That pro­vi­sion, known as the indi­rect ini­tia­tive process, gives antiabor­tion groups a way to push for new bans on the pro­ce­dure, and it puts ulti­mate pow­er back in the hands of Repub­li­can law­mak­ers, who crit­ics say are not rep­re­sen­ta­tive of the state’s cur­rent, most­ly Demo­c­ra­t­ic elec­torate. Under the process, peti­tion­ers who col­lect a cer­tain num­ber of sig­na­tures from vot­ers could force the pas­sage of a law with a sim­ple major­i­ty vote in the state­house.

“It’s clever but it’s deeply unde­mo­c­ra­t­ic,” said Nicholas Stephanopou­los, the Uni­ver­si­ty of Chica­go law pro­fes­sor who cre­at­ed the effi­cien­cy gap, a method for mea­sur­ing par­ti­san ger­ry­man­der­ing. “Through this loop­hole, they’re still able to pass laws as though the guber­na­to­r­i­al elec­tion nev­er hap­pened.”

Ger­ry­man­der­ing, in oth­ers words, can have an even more pro­found effect in Michi­gan.

...

———–

“An over­looked con­se­quence of the Supreme Court’s ger­ry­man­der­ing rul­ings: Stricter abor­tion laws” by Reis The­bault; The Wash­ing­ton Post; 10/22/2019

“That pro­vi­sion, known as the indi­rect ini­tia­tive process, gives antiabor­tion groups a way to push for new bans on the pro­ce­dure, and it puts ulti­mate pow­er back in the hands of Repub­li­can law­mak­ers, who crit­ics say are not rep­re­sen­ta­tive of the state’s cur­rent, most­ly Demo­c­ra­t­ic elec­torate. Under the process, peti­tion­ers who col­lect a cer­tain num­ber of sig­na­tures from vot­ers could force the pas­sage of a law with a sim­ple major­i­ty vote in the state­house.”

Veto-proof­ing the ger­ry­man­dered votes of the state leg­is­la­ture with a peti­tion that does­n’t require a major­i­ty to pass. It just has a thresh­old. It’s quite a loop­hole. And as we can see, this loophoe is being used to pass con­ser­v­a­tive leg­is­la­tion with a sim­ple major­i­ty of the hyper-par­ti­san ger­ry­man­dered state leg­is­la­ture. And if Michi­gan become a minor­i­ty-ruled one-par­ty state thanks to hyper-par­ti­san ger­ry­man­der­ing, the fed­er­al gov­ern­ment and courts can’t pos­si­bly deem this to be an uncon­sti­tu­tion­al arrange­ment, accord­ing to the Supreme Court’s lat­est rul­ing. States are con­sti­tu­tion­al­ly allowed to turn them­selves into one-par­ty rigged elec­toral bas­ket cas­es, accord­ing to the Supreme Court’s 5–4 con­ser­v­a­tive major­i­ty. A con­ser­v­a­tive major­i­ty that was achieved through Repub­li­can cheat­ing in the Sen­ate. And the 2000 Bush v Gore judi­cial out­rage when the Rehn­quist con­ser­v­a­tive 5–4 major­i­ty out­ra­geous­ly end­ed the Flori­da recount and hand­ed George W. Bush the elec­tion, which result­ed in the even­tu­al Bush nom­i­na­tion of John Roberts as chief jus­tice to replace Rehn­quist. It’s like the deep state of bil­lion­aire-financed cheat­ing. Out in the open.

Kel­li Ward, the far right Ari­zona Repub­li­can who aspires to the US Sen­ate and man­aged to become the state par­ty chair­man this year, just did what she does best: she said the qui­et parts out loud again. Because loud­ly say­ing the stuff that’s nor­mal­ly reserved for far right audi­ences in pri­vate is kind of her spe­cial­ty. She’s like the canary in the coal mine of bad GOP memes. And in this case it’s the kind of bad idea the broad­er GOP is clear­ly very inter­est­ed in but it’s so bad that it’s not nor­mal­ly said so blunt­ly. That’s what makes this more than just a sto­ry about anoth­er Kel­li Ward gaffe.

So what was Kel­li Ward’s loud bad idea? Pret­ty much the same idea used by for­mer Wis­con­sin gov­er­nor Scott Walk­er back in July to jus­ti­fy the Wis­con­sin GOP’s bla­tant­ly unde­mo­c­ra­t­ic pow­er grab after Walk­er lost his reelec­tion bid: Walk­er argued that the laws passed by the then-lame-duck Walk­er admin­is­tra­tion and GOP-con­trolled state leg­is­la­ture that sig­nif­i­cant­ly lim­it­ed the pow­ers of the incom­ing Demo­c­ra­t­ic gov­er­nor were jus­ti­fied because rur­al areas of the state need­ed extra pro­tec­tion from the polit­i­cal pow­er that urban areas get from hav­ing large num­bers of peo­ple. Walk­er was basi­cal­ly mak­ing the same under­ly­ing argu­ment used to jus­ti­fy the elec­toral col­lege sys­tem used to elect US pres­i­dents — that rur­al states and small states deserve extra rep­re­sen­ta­tion to off­set the pow­er of high-pop­u­la­tion states — and apply that to the state lev­el gov­ern­ment. But Walk­er was also echo­ing the oth­er implic­it GOP meta-argu­ment that’s also used to jus­ti­fy all of the var­i­ous laws that sys­tem­at­i­cal­ly vot­er GOP vot­ers: that right-wing vot­ers are the only ‘real Amer­i­cans’ and deserve a per­ma­nent grip on pow­er that should over­ride the pop­u­lar vote. It’s a dis­turb­ing sign for Amer­i­ca’s democ­ra­cy to hear a major par­ty jus­ti­fy a pow­er grab approach democ­ra­cy, but it’s extra dis­turb­ing when this is part of an ongo­ing cam­paign by the GOP to pro­mote an unpa­tri­ot­ic ‘urban Amer­i­ca is oppress­ing rur­al Amer­i­ca’ meme for par­ti­san gain and under­mine the prin­ci­ple of ‘one man, one vote’ in the process.

And that’s what Ward called for fol­low­ing the upset vic­to­ry of Demo­c­rat Andy Beshear in the Ken­tucky gov­er­nor’s race last week over the Trump-backed incum­bent Matt Bevin. Trump event trav­eled to the state on elec­tion eve to boost Bevin but Beshear nar­row­ly won with over­whelm­ing sup­port in Ken­tuck­y’s urban cen­ters and and a grow­ing sub­ur­ban back­lash against Trump. It was that elec­tion result in Ken­tucky that prompt­ed Ari­zon­a’s GOP chair­man Kel­li Ward to tweet out:

Should we look toward an #Elec­toral­Col­lege type sys­tem at the state lev­el? #Elections2019 pic.twitter.com/RLkdRfJCUT— Dr. Kel­li Ward ???? (@kelliwardaz) Novem­ber 7, 2019

Kel­li Ward and Scott Walk­er agree: rur­al vot­ers need extra rep­re­sen­ta­tion at the state lev­el too. ‘One man, one vote’ needs to be replaced with a sys­tem that gives peo­ple liv­ing in low-den­si­ty areas high­er rep­re­sen­ta­tion than peo­ple in high den­si­ty area because oth­er­wise the high den­si­ty areas will have the most polit­i­cal pow­er. That’s the core of their argu­ment and it’s entire­ly con­sis­tent with what the GOP has been try­ing to do for years with its strat­e­gy of win­ning by rig­ging the sys­tem. Whether its vot­er suppression/voter caging laws, or extreme ger­ry-man­der­ing, or racial­ly dri­ven mass incar­cer­a­tion, the strat­e­gy of the GOP has relied on win­ning with a minor­i­ty of the vote by gam­ing the sys­tem. And that’s a strat­e­gy that’s incom­pat­i­ble with ‘one man, one vote’.

Now, as the arti­cle notes, the ‘one man, one vote’ prin­ci­ple is the cur­rent legal prece­dent after it was estab­lished in the 1963 Gray v. Sanders rul­ing that found Geor­gia’s ‘coun­ty unit sys­tem’ that had been in place since 1917 uncon­sti­tu­tion­al. So, in the­o­ry, ‘one man, one vote’ is already a pro­tect­ed prin­ci­ple. But was can’t assume that any­more with the con­ser­v­a­tive major­i­ty. For exam­ple, there’s the wild­ly dis­turb­ing recent Supreme Court rul­ing on Michi­gan’s egre­gious par­ti­san ger­ry­man­der­ing where the con­ser­v­a­tive major­i­ty ruled in a 5–4 vote that hyper-par­ti­san ger­ry­man­der­ing drawn to favor vot­ers of one polit­i­cal ide­ol­o­gy over anoth­er to an extreme degree is con­sti­tu­tion­al­ly valid at the fed­er­al lev­el because there’s no con­sti­tu­tion cri­te­ria for estab­lish­ing what con­sti­tutes over­ly par­ti­san ger­ry­man­der­ing. Accord­ing to the con­ser­v­a­tive major­i­ty, only state courts can rule on whether or not ger­ry­man­dered dis­tricts are ille­gal­ly drawn for being too par­ti­san. It’s the kind of judi­cial sig­nal­ing that tells us it’s only going to get worse from the GOP and the Supreme Court’s con­ser­v­a­tive major­i­ty is ready and will­ing to give its bad faithed bless­ing to that worse future. So we should expect the Roberts Court to undo some of what Gray V. Sanders estab­lished. And that’s why Ward’s tweet was so dis­turb­ing. Ward was just say­ing (tweet­ing) out loud what the GOP has been qui­et­ly doing for years:

Won­kette

Genius Kel­li Ward: Matt Bevin Coul­da Won Ken­tucky If Dems’ Votes Did­n’t Count

Dok­tor Zoom
Novem­ber 08, 2019 03:00 PM

Fol­low­ing Ken­tucky Gov. Matt Bev­in’s appar­ent 5000-vote loss to known Demo­c­rat Andy Beshear Tues­day, Ari­zona state GOP chair Kel­li Ward, a per­pet­u­al­ly thirsty elec­toral also-ran her­self, pro­posed a sim­ple solu­tion on the Twit­ters: If Repub­li­cans can’t actu­al­ly win a major­i­ty of votes, why not give up on “majori­ties” alto­geth­er? After all, look at all the red ter­ri­to­ry that vot­ed for Bevin!

Should we look toward an #Elec­toral­Col­lege type sys­tem at the state lev­el? #Elections2019 pic.twitter.com/RLkdRfJCUT— Dr. Kel­li Ward ???? (@kelliwardaz) Novem­ber 7, 2019

Just look at those tiny lit­tle blue areas that inex­plic­a­bly have more peo­ple in them! How could they actu­al­ly rep­re­sent the will of Ken­tuck­ians, sim­ply because they result­ed in a high­er total num­ber of votes?

Clear­ly, some­thing must be done! Most­ly, Kel­li Ward must be mocked and ridiculed for sug­gest­ing that elec­tions should stop being won by “majori­ties” of “vot­ers.” In an ide­al world, she’d also rec­og­nize she made her­self look like a com­plete fool and resign, but why would she give up on her one most reli­able per­son­al­i­ty trait? Besides, call­ing for vote-rig­ging is rapid­ly becom­ing the norm for some Repub­li­cans, since “win­ning more votes” is so passe for them these days.

Ward’s coun­ty-by-coun­ty map is one way to visu­al­ize the data, if you pre­tend that 50 per­cent plus one is how every coun­ty vot­ed, and maybe she would also like you to ignore the vari­a­tions in pop­u­la­tion between those coun­ties. Haha, “maybe”! Of course she would!

[see coun­ty map of Ken­tucky used by Ward show­ing which par­ty one each coun­ty in last week’s elec­tion]

As folks on the Twit­ters were quick to point out, that’s pret­ty darn mis­lead­ing! For instance, sup­pose you were to shade the map to show not sim­ply a red-or-blue vote break­down, but the actu­al share of the vote in each coun­ty, with the vote by coun­ty list­ed by size for good mea­sure. That’s what the New York Times did::

[see coun­ty map of Ken­tucky show­ing the rel­a­tive wins for each par­ty in last week’s elec­tion ]

That’s a whole lot of coun­ties where the vote was actu­al­ly kind of in the mid­dle, huh? You could also break down the vote by the size of the lead in each area, as the Times also did:

[see coun­ty map of Ken­tucky show­ing which par­ty won each coun­ty in last week’s elec­tion and the rel­a­tive coun­ty pop­u­la­tions ]

Either way, you end up with a map that gives a far bet­ter sense of how close the elec­tion real­ly was, which is prob­a­bly why Kel­li Ward went with the most mis­lead­ing map she could find to sug­gest that all those red coun­ties were being cheat­ed by those med­dle­some lit­tle blue dots.

As for whether a “state elec­toral col­lege” would be a good idea or not, it depends on what you mean by “good.” If you mean “reflect­ing the will of the most peo­ple,” you prob­a­bly would­n’t want that if you’re Kel­li Ward, since that’s called a “major­i­ty.” But if you mean “Repub­li­cans win­ning elec­tions with­out actu­al­ly need­ing a major­i­ty,” it could be just ter­rif­ic, just like the Elec­toral Col­lege is nation­wide!

Unfor­tu­nate­ly for Ward, as New York Times edi­to­r­i­al board mem­ber Jesse Weg­man point­ed out on the Twit­ters, it’s been tried in the past, and was found uncon­sti­tu­tion­al by the Supreme Court in the 1963 Gray v. Sanders deci­sion, which estab­lished the prin­ci­ple of “one per­son, one vote.”

Here’s Weg­man, in con­ve­nient non-tweet­ed “para­graph” form! We’ve expand­ed some Twit­terisms into stan­dard Eng­lish for you, too:

Geor­gia assigned a set num­ber of “units” (elec­tors) to each coun­ty. The biggest coun­ties (like Ful­ton) got 6; the mid-sized coun­ties got 4; and the small­est got 2. Whichev­er pri­ma­ry can­di­date won the most pop­u­lar votes in a coun­ty got all that coun­ty’s units.

Of course, Ful­ton was not three times big­ger than the small­est coun­ties. It was about 275 times big­ger.

As a result, peo­ple liv­ing in small, rur­al coun­ties (who were dis­pro­por­tion­ate­ly white) got far more weight in choos­ing can­di­dates than those in the big coun­ties like Ful­ton, which includes Atlanta and had much larg­er African-Amer­i­can pop­u­la­tions.

To put it in oth­er terms: in the ear­ly 1960s Ful­ton Coun­ty had 14 per­cent of Geor­gia’s pop­u­la­tion but only 1.5% of its unit votes. Thus vot­ers in Echols Coun­ty, which had few­er than 2,000 res­i­dents, had about 100 times the vot­ing pow­er of those in Ful­ton.

Gol­ly, I bet you’re all just aston­ished that the sys­tem had the effect of water­ing down what­ev­er black vot­ing pow­er there was in Geor­gia! Weg­man quotes Jus­tice William O. Dou­glas’s rul­ing, on the patent unfair­ness of such a sys­tem:

How can one per­son be giv­en twice or ten times the vot­ing pow­er of anoth­er per­son in a statewide elec­tion mere­ly because he lives in a rur­al area or because he lives in the small­est rur­al coun­ty?

Kel­li Ward may not know how, but she sure likes the idea! Inci­den­tal­ly, because the Elec­toral Col­lege is already in the Con­sti­tu­tion, it’s the one part of Amer­i­can elec­tion law not affect­ed by Gray v. Sanders, a bit of unfair­ness the Court in 1963 did­n’t seem hap­py about but accept­ed, not­ing that the Founders’ “con­cep­tion of polit­i­cal equal­i­ty belongs to a bygone day.” Look at that crazy judi­cial activism!

For more on why a state-lev­el elec­toral col­lege would be anti­thet­i­cal to democ­ra­cy — which is what Repub­li­cans want, because rep­re­sen­ta­tive democ­ra­cy keeps get­ting in the way of what they want — see this fine dis­cus­sion at FairVote.org, which reveals that if Ore­gon, for instance, adopt­ed a state elec­toral col­lege, the polit­i­cal dif­fer­ences between the blue coastal cities and the red east­ern coun­ties would mean vir­tu­al­ly all gov­er­nors races would be decid­ed by just three coun­ties where there’s a rough bal­ance of Ds and Rs.

...

But Kel­li Ward isn’t the sort of doc­tor (an osteopath, at the risk of defam­ing a whole med­ical spe­cial­ty) to wor­ry about lit­tle details. Today, she was right back on Twit­ter, explain­ing that the New Deal, which was passed in 1933, caused the Great Depres­sion, which start­ed with the 1929 stock mar­ket crash.

#Wealth­Hater­War­ren is back to #You­Did­nt­BuildThat while propos­ing 1930s poli­cies that led to the deep­est depres­sion our coun­try has ever seen — don’t be fooled by sociaL­IZm & the false promise of wealth redis­tri­b­u­tion! #VoteRe­pub­li­can #KAG pic.twitter.com/7XXA7D19Qk— Dr. Kel­li Ward ???? (@kelliwardaz) Novem­ber 8, 2019

...

———-

“Genius Kel­li Ward: Matt Bevin Coul­da Won Ken­tucky If Dems’ Votes Did­n’t Count” by Dok­tor Zoom; Won­kette; 11/08/2019

“As for whether a “state elec­toral col­lege” would be a good idea or not, it depends on what you mean by “good.” If you mean “reflect­ing the will of the most peo­ple,” you prob­a­bly would­n’t want that if you’re Kel­li Ward, since that’s called a “major­i­ty.” But if you mean “Repub­li­cans win­ning elec­tions with­out actu­al­ly need­ing a major­i­ty,” it could be just ter­rif­ic, just like the Elec­toral Col­lege is nation­wide!”

It’s one of the grand quirks of the GOP: while much of the Repub­li­can Par­ty’s mod­ern day far right agen­da is an assault on laws and reg­u­la­tions that fall under the umbrel­la of ‘minor­i­ty rights’ for all sorts of minor­i­ty groups, the long-term strat­e­gy for the par­ty relies on argu­ing that a par­tic­u­lar minor­i­ty group — con­ser­v­a­tive vot­ers — deserve ‘true Amer­i­can’ spe­cial pro­tec­tions in the form of guar­an­teed polit­i­cal pow­er. Kel­li Ward’s idea for elec­toral col­lege sys­tems for state elec­tions so rur­al areas get extra vot­ing pow­er is just one of the log­i­cal con­clu­sions of that long-term strat­e­gy. It’s also what the Supreme Court reject­ed in Gray vs. Sanders back in 1963 when Geor­gia’s “coun­ty unit sys­tem” for state offi­cer hold­ers was ruled uncon­sti­tu­tion­al and the ‘one man, one vote’ prin­ci­ple was estab­lished in US. It was the sys­tem Geor­gia held from 1917 to 1963, which is a reminder that there’s a prece­dent in US law for what Ward was tweet­ing about. That prece­dent hap­pens to be Amer­i­ca’s his­to­ry of racist white nation­al­ism that treats rur­al white Chris­t­ian con­ser­v­a­tives as a polit­i­cal­ly pro­tect­ed class:

...
Unfor­tu­nate­ly for Ward, as New York Times edi­to­r­i­al board mem­ber Jesse Weg­man point­ed out on the Twit­ters, it’s been tried in the past, and was found uncon­sti­tu­tion­al by the Supreme Court in the 1963 Gray v. Sanders deci­sion, which estab­lished the prin­ci­ple of “one per­son, one vote.”

Here’s Weg­man, in con­ve­nient non-tweet­ed “para­graph” form! We’ve expand­ed some Twit­terisms into stan­dard Eng­lish for you, too:

Geor­gia assigned a set num­ber of “units” (elec­tors) to each coun­ty. The biggest coun­ties (like Ful­ton) got 6; the mid-sized coun­ties got 4; and the small­est got 2. Whichev­er pri­ma­ry can­di­date won the most pop­u­lar votes in a coun­ty got all that coun­ty’s units.

Of course, Ful­ton was not three times big­ger than the small­est coun­ties. It was about 275 times big­ger.

As a result, peo­ple liv­ing in small, rur­al coun­ties (who were dis­pro­por­tion­ate­ly white) got far more weight in choos­ing can­di­dates than those in the big coun­ties like Ful­ton, which includes Atlanta and had much larg­er African-Amer­i­can pop­u­la­tions.

To put it in oth­er terms: in the ear­ly 1960s Ful­ton Coun­ty had 14 per­cent of Geor­gia’s pop­u­la­tion but only 1.5% of its unit votes. Thus vot­ers in Echols Coun­ty, which had few­er than 2,000 res­i­dents, had about 100 times the vot­ing pow­er of those in Ful­ton.

Gol­ly, I bet you’re all just aston­ished that the sys­tem had the effect of water­ing down what­ev­er black vot­ing pow­er there was in Geor­gia! Weg­man quotes Jus­tice William O. Dou­glas’s rul­ing, on the patent unfair­ness of such a sys­tem:

How can one per­son be giv­en twice or ten times the vot­ing pow­er of anoth­er per­son in a statewide elec­tion mere­ly because he lives in a rur­al area or because he lives in the small­est rur­al coun­ty?

Kel­li Ward may not know how, but she sure likes the idea! Inci­den­tal­ly, because the Elec­toral Col­lege is already in the Con­sti­tu­tion, it’s the one part of Amer­i­can elec­tion law not affect­ed by Gray v. Sanders, a bit of unfair­ness the Court in 1963 did­n’t seem hap­py about but accept­ed, not­ing that the Founders’ “con­cep­tion of polit­i­cal equal­i­ty belongs to a bygone day.” Look at that crazy judi­cial activism!
...

Is the Roberts Court’s con­ser­v­a­tive major­i­ty ready to rule in a way that makes state-lev­el elec­toral col­lege sys­tems that sys­tem­at­i­cal­ly over­weight rur­al votes allow­able? It sure looks like it. And that’s all why Ward’s tweet was more than just the dis­turb­ing com­mu­ni­ca­tion from a sin­gle dis­turb­ing politi­cian. Ward’s menagerie of bad ideas are high­ly illus­tra­tive of con­tem­po­rary GOP thought. Because of course this isn’t some­thing Ward alone wants to see. The idea of elec­toral col­leges for state elec­tions to boost rur­al rep­re­sen­ta­tion is like one of the most GOP-ish pro­pos­als ever. When Kel­li Ward, the canary in the coal mine of bad GOP ideas, tweets a real­ly bad idea, it’s a warn­ing.

Of all the depress­ing aspects of the Trump era of US pol­i­tics, per­haps the most depress­ing part is how deeply embed­ded a sense of fore­bod­ing and doom is built into the polit­i­cal appeal of ‘pop­ulist’ fig­ures like Don­ald Trump. Because as study after study has shown, one of the biggest fac­tors dri­ving white vot­ers towards Trump (and the Repub­li­can Par­ty in gen­er­al) has been a grow­ing sense of fore­bod­ing sense of doom over demo­graph­ic changes in Amer­i­ca where white Chris­tians are no longer the major­i­ty. When we learn about key White House advi­sor Stephen Miller secret­ly encour­ag­ing Bre­it­bart News to give more atten­tion to white nation­al­ist sto­ries that pro­mote the ‘white geno­cide’ meme and one of Steve Ban­non’s favorite books is The Camp of the Saints, it’s pret­ty clear that much of what ani­mates the GOP these days is an intense and grow­ing fear of liv­ing in a non-major­i­ty white soci­ety. And that intense and irra­tional sense of demo­graph­ic doom and despair has cul­ti­vat­ed a kind of zero-sum ‘it’s us or them’ polit­i­cal zeit­gi­est where hyper-trib­al­ism sub­sti­tutes for thought­ful pol­i­cy and fig­ures like Trump are por­trayed as a kind of white nation­al­ist ‘last chance for Amer­i­ca’.

It’s also the sense of fore­bod­ing and doom that’s used to jus­ti­fy poli­cies like extreme hyper-par­ti­san ger­ry­man­der­ing, and that’s where the fol­low­ing arti­cle comes in. Because that deep (and deeply un-Amer­i­can) fear of liv­ing in non-white major­i­ty soci­ety that appears to be ani­mat­ing so much of the col­lec­tive insan­i­ty that’s gripped the con­tem­po­rary con­ser­v­a­tive US elec­torate hap­pens to be the per­fect excuse for final­ly address­ing to the irra­tional ‘win­ner-take-all’ nature of the US elec­toral sys­tem.

It’s one of the pec­u­lar­i­ties of Amer­i­can democ­ra­cy com­pared to the rest of the world: There is no pro­por­tion­al rep­re­sen­ta­tion. It’s a win­ner take all sys­tem that encour­ages just two major par­ties and a con­tin­u­al bat­tle between those two major par­ties for com­plete con­trol. But what hap­pens when one of those two major par­ties vying for con­trol in Amer­i­ca’s win­ner take all sys­tem starts defin­ing itself as the par­ty for anx­ious white peo­ple and anx­ious white peo­ple slip into a demo­graph­ic minor­i­ty? It’s the kind of dynam­ic that does­n’t bode well for the Amer­i­can social con­tract.

As the fol­low­ing piece describes, while issues like ger­ry­man­der­ing have cer­tain­ly con­tributed to the extreme par­ti­san­ship in the US pol­i­tics, there’s a more fun­da­men­tal struc­tur­al issue that’s sys­tem­at­i­cal­ly cre­at­ed a ‘only one side can win’ dynam­ic to US pol­i­tics and that’s the ‘win­ner take all’ nature of US elec­tions, where the per­son who gets the most votes wins office and the broad­er dis­tri­b­u­tion of votes are oth­er­wise ignored. It’s the kind of sys­tem that might work well enough in a high­ly homo­ge­neous soci­ety. But in the kind of mod­ern mul­ti-eth­nic, mul­ti-cul­tur­al Amer­i­ca that includes are broad array of ide­olo­gies and inter­ests, ‘win­ner take all’ is a grand recipe to ensure almost no one wins (except bil­lion­aires, who win every­thing thanks to US cam­paign finance laws). And in the age of extreme ger­ry­man­der­ing, ‘win­ner take all’ is a recipe to ensure only the minor­i­ty group (of white con­ser­v­a­tives) that dom­i­nates the ger­ry­man­der­ing process actu­al­ly wins, at least for a while. But even­tu­al­ly that minorty of white con­ser­v­a­tives is going to be out­num­bered enough where even ger­ry­man­der­ing can’t guar­an­tee elec­toral vic­to­ry.

The post-Trump GOP is either going to be a post-democ­ra­cy GOP or minor­i­ty white nation­al­ist GOP. Ger­ry­man­der­ing is only going to work for so long. Why not tran­si­tion to a form of democ­ra­cy designed to fac­tor in the diver­si­ty of the nation? A form of democ­ra­cy that would ensure the white Chris­t­ian con­ser­v­a­tives don’t have to wor­ry about being on the short end of a ‘win­ner take all’ sys­tem soon­er or lat­er. And that’s why the Trumpian era might be the per­fect time to address ‘win­ner take all’. Trump is the symp­tom of a lot of awful things, but one of the biggest awful thing is white freak out over the prospect of being a major­i­ty non-white coun­try. The basic math of glob­al demo­graph­ics has always meant that the US could only remain a major­i­ty white coun­try if it inten­tion­al­ly set up its immi­gra­tion sys­tem to pre­fer white immi­grants one way of the oth­er. If the US is to be a glob­al bea­con of eng­light­en­ment, democ­ra­cy, and a bea­con for immi­grants, that bea­con audi­ence is implic­it­ly a major­i­ty non-white audi­ence. The US tran­si­tion­ing from a major­i­ty white, for­mer slave-hold­ing soci­ety into a mul­ti-eth­nic, mul­ti-cul­tur­al bas­tion of free­dom and peace­ful co-exis­tence is one type of bea­con the US can strive towards. Or the US can become a right-wing white Chris­t­ian nation­al­istm bea­con that’s most­ly just a bea­con for white peo­ple. But it can’t be both. Wrestling with that is part of what the Trumpian angst is all about.

And much of the con­scious and sub­con­scious white freak­out over the US fol­low­ing the lat­ter path — into becom­ing a major­i­ty non-white glob­al bea­con of mul­ti-eth­nic, mul­ti-reli­gious peo­ple peace­ful­ly co-exist­ing in the spir­it of democ­ra­cy and enlight­en­ment — is root­ed in a fear that such a soci­ety isn’t pos­si­ble. That part of what makes reform­ing the ‘win­ner takes all’ sys­tem so use­ful for today’s pol­i­tics. It’s a great way to talk about a post-white major­i­ty future for the US that won’t freak out angsty white con­ser­v­a­tives that have been bing­ing right-wing media about ‘the Great Replac­ment’ and read­ing the Miller/Bannon read­ing list. And it’s a great way to show­case the val­ue of soci­eties built for diver­si­ty. White Chris­t­ian con­ser­v­a­tives will get to do all sorts of coali­tion build­ing on var­i­ous issues under a sys­tem that gives bet­ter pro­por­tion­al rep­re­sen­ta­tion that the cur­rent sys­tem dis­cour­ages. It would be great.

If the GOP strat­e­gy of ger­ry­man­der­ing, vot­er sup­pres­sion, and bil­lion­aire dark mon­ey paired with polit­i­cal­ly orga­nized white Chris­t­ian con­ser­v­a­tives can’t main­tain the GOP’s cur­rent dom­i­na­tion of at the state and fed­er­al lev­el it’s almost cer­tain the that GOP elec­torate will be bet­ter rep­re­sent­ed under a pro­por­tion­al rep­re­sen­ta­tion sys­tem. Along with every­one else. It’s win-win-win across the board.

So what’s the pro­posed pro­por­tion­al rep­re­se­n­a­tion sys­tem? It’s the idea pushed by a group called Fair­Vote called the Fair Rep­re­sen­ta­tion Act. The Fair Rep­re­sen­ta­tion Act pro­pos­es states merge 3–5 con­gres­sion­al dis­tricts into super-dis­tricts (cre­at­ed by non-par­ti­san com­mis­sions so no ger­ry­man­der­ing) and then the vot­ers in those super-dis­tricts vote in a ranked-choice elec­tion and the 3–5 rep­re­sen­ta­tives are cho­sen based on that rank-choice sys­tem. It turns out states can indi­vid­u­al­ly do this on their own and don’t need fed­er­al approval. Demo­c­ra­t­ic con­gress­man Don Bey­er of Vir­ginia has intro­duced leg­is­la­tion to imple­ment this. The idea would not just elim­i­nate the efects of ger­ry­man­der­ing but also allow the US to tran­si­tion to the kind of diverse coali­tion-build­ing pol­i­tics that allow every­one to work togeth­er bet­ter. It’s bridge build­ing pol­i­tics. That’s kind of dynam­ic is an option if the US decides to do it. Or indi­vid­ual states decide to do it. It’s the kind of project a post-Trump Amer­i­ca should real­ly keep in mind, because it’s lit­er­al­ly a form of elec­toral reform that’s premised on the idea that we can get past our zero-sum pol­i­tics by embrac­ing our com­mon inter­ests by bet­ter rep­re­sent­ing every­one. That seems like a use­ful nation­al uni­ty project in light of the post-Trump-impeach­ment polit­i­cal sit­u­a­tion (GOP super-whin­ing) that the US is head­ing towards:

The Hill

Replac­ing ‘win­ner-takes-all’ sys­tem would end ger­ry­man­der­ing

By David Daley, opin­ion con­trib­u­tor —
12/13/19 08:00 AM EST

Many North Car­oli­na con­gres­sion­al can­di­dates — even some incum­bents — haven’t announced their plans yet, and Elec­tion Day remains 11 months away. But there’s one thing you prob­a­bly can set your clock by: North Carolina’s con­gres­sion­al del­e­ga­tion after 2020 will con­tain eight Repub­li­cans and five Democ­rats.

A major­i­ty of vot­ers could back Demo­c­ra­t­ic can­di­dates, but the par­ty nev­er­the­less is cer­tain to earn less than 40 per­cent of the seats. Repub­li­cans could win a big red wave; they’ll hold no more than those eight, even with a land­slide. Incum­bents will coast, with no account­abil­i­ty in the gen­er­al elec­tion.

That’s because a pan­el of North Car­oli­na judges recent­ly upheld the use of a con­tro­ver­sial new con­gres­sion­al map, drawn and approved by the state’s Repub­li­can leg­is­la­tors in response to an Octo­ber rul­ing by the same court that warned the state’s pre­vi­ous map had a “sub­stan­tial like­li­hood” of being thrown out as an uncon­sti­tu­tion­al par­ti­san ger­ry­man­der.

This was not the out­come that the cit­i­zens who brought this case want­ed. They argued that the leg­is­la­ture mere­ly sub­sti­tut­ed a slight­ly-less ger­ry­man­dered map for the rad­i­cal­ly ger­ry­man­dered one that the court threat­ened to inval­i­date. They asked for an inde­pen­dent “spe­cial mas­ter” — with­out ties to either par­ty — to draw new lines instead.

The court, how­ev­er, with­out bless­ing the new map’s fair­ness or con­sti­tu­tion­al­i­ty, said that there sim­ply wasn’t time to hear such a com­pli­cat­ed case and still hold the sched­uled con­gres­sion­al pri­maries in March. These maps were not as bad as the old maps, so the court declared vic­to­ry and went home: Slight­ly-less ger­ry­man­dered will have to do.

This shouldn’t be so hard. It shouldn’t take so long. Slight­ly-less ger­ry­man­dered shouldn’t be an accept­able stan­dard for the people’s house. And the entire, decade-long bat­tle in North Car­oli­na is a good argu­ment for why we should com­plete­ly change the way we dis­trict. It’s time for not just fair maps but fair rep­re­sen­ta­tion.

Think of it this way: Yes, the new map rep­re­sents a small win for Democ­rats, who will, in all like­li­hood, pick up two con­gres­sion­al seats next fall. If so, these seats will be the Democ­rats’ first flips in this pur­ple state since Repub­li­cans redis­trict­ed after the 2010 cen­sus, and will end a 10–3 edge that has held Democ­rats to less than a quar­ter of the seats, even when they win a major­i­ty of the votes. Those two seats will make it that much eas­i­er for Democ­rats to hold the U.S. House next fall.

But it’s not much of a vic­to­ry at all for North Car­oli­na vot­ers who care more about gen­uine choic­es, com­pet­i­tive elec­tions and the abil­i­ty to hold law­mak­ers account­able. It sim­ply replaces a locked-in, 10–3 map with a locked-in, 8–5 edge instead.

All of North Carolina’s dis­tricts remain safe­ly under the con­trol of one par­ty or the oth­er. Democ­rats are packed into five non­com­pet­i­tive dis­tricts. Repub­li­cans dom­i­nate the oth­er eight. All the action will remain in low-turnout par­ty pri­maries. No out­comes will be in ques­tion. No votes will tru­ly mat­ter. Accord­ing to a study by Jowei Chen of the Uni­ver­si­ty of Michi­gan, which com­pared the new map against 1,000 neu­tral maps drawn by a com­put­er, at least 10 of the 13 dis­tricts are “extreme par­ti­san out­liers.” In those 10 dis­tricts, the map drawn by politi­cians was more par­ti­san than the entire set of neu­tral maps more than 94 per­cent of the time.

This is the prob­lem with sin­gle-mem­ber, win­ner-take-all dis­tricts, espe­cial­ly those craft­ed by par­ti­sans. Instead of giv­ing North Car­olini­ans an incre­men­tal­ly fair­er map, they should be giv­en a fair vote. That wasn’t the case with the old maps. It’s not the case now.

It’s time for a tru­ly com­pre­hen­sive, for­ward-look­ing solu­tion that gen­er­ates fair out­comes but also pro­vides vot­ers with mean­ing­ful choic­es and pro­duces politi­cians who look to rep­re­sent every­one.

We defeat the ger­ry­man­der not by tin­ker­ing around the edges, but by solv­ing the root prob­lem. If we want to cure redis­trict­ing, it’s clear that we must start by tak­ing on dis­trict­ing itself. This means think­ing dif­fer­ent­ly about the prob­lem and also the solu­tion: Reimag­in­ing our cri­sis of democ­ra­cy as a cri­sis of win­ner-takes-all democ­ra­cy — the kind that cre­ates safe seats for par­ties, but leaves vot­ers with­out thought­ful alter­na­tives.

After all, these dis­tricts should not belong to par­ties as the exclu­sive prop­er­ty of Team Red or Team Blue. A bill before Con­gress would solve this fair­ness issue in North Car­oli­na and fun­da­men­tal­ly ren­der ger­ry­man­der­ing irrel­e­vant at a time when courts either refuse to get involved or, as in this case, believe that such a large prob­lem would take far too long to solve.

Con­gress could sim­ply pass the Fair Rep­re­sen­ta­tion Act, as pro­posed by Rep. Don Bey­er (D‑Va.). Bey­er would replace our win­ner-takes-all sys­tem with a fair­er sys­tem that would allow every vote to mat­ter and every­one to win their fair share of seats. It calls for ranked choice vot­ing to elect House mem­bers, com­bined with mod­er­ate­ly larg­er dis­tricts of three, four or five rep­re­sen­ta­tives (drawn by non­par­ti­san com­mis­sions) along the lines of ones used wide­ly in state and local elec­tions. Togeth­er, these two reforms would ensure that all sides win only the seats they deserve in every state.

But it goes fur­ther. The beau­ty of this approach is that, across North Car­oli­na and every oth­er state, these larg­er dis­tricts would pro­duce Democ­rats, Repub­li­cans and even inde­pen­dents. Every dis­trict would have actu­al swing seats. Women and can­di­dates of col­or would have a bet­ter chance of win­ning. No one would feel as if their voice did not count. And no vot­er — not even a Repub­li­can in Mass­a­chu­setts or a Demo­c­rat in Nebras­ka — would be locked into a dis­trict where the out­come is pre­de­ter­mined.

It’s Decem­ber 2019 and North Car­olini­ans have been fight­ing about their maps for a decade. The maps have been declared racial and par­ti­san ger­ry­man­ders, inval­i­dat­ed mul­ti­ple times, and they have gen­er­at­ed mil­lions of dol­lars in court costs. Repub­li­cans would say that the ger­ry­man­der­ing prob­lem goes back even fur­ther, point­ing to the many maps Democ­rats drew pri­or to 2011 to advan­tage them­selves. Let’s stop argu­ing about where the indi­vid­ual lines go, how many seats each par­ty ought to be hand­ed, and think instead about how we guar­an­tee that all cit­i­zens get rep­re­sen­ta­tion they deserve.

...

———-

“Replac­ing ‘win­ner-takes-all’ sys­tem would end ger­ry­man­der­ing” by David Daley; The Hill; 12/13/2019

“It’s Decem­ber 2019 and North Car­olini­ans have been fight­ing about their maps for a decade. The maps have been declared racial and par­ti­san ger­ry­man­ders, inval­i­dat­ed mul­ti­ple times, and they have gen­er­at­ed mil­lions of dol­lars in court costs. Repub­li­cans would say that the ger­ry­man­der­ing prob­lem goes back even fur­ther, point­ing to the many maps Democ­rats drew pri­or to 2011 to advan­tage them­selves. Let’s stop argu­ing about where the indi­vid­ual lines go, how many seats each par­ty ought to be hand­ed, and think instead about how we guar­an­tee that all cit­i­zens get rep­re­sen­ta­tion they deserve.”

Yes, now would be a good time to stop argu­ing about where the indi­vid­ual dis­trict lines go and the rel­a­tive bal­ance of uncom­pet­i­tive seats and think instead about how sys­tems that guar­an­tee a diverse soci­ety allows for diverse rep­re­sen­ta­tion that bet­ter reflects the actu­al elec­torate. And that’s going to include bet­ter rep­re­sen­ta­tion pf con­ser­v­a­tive white Chris­tians in a future Amer­i­ca where they don’t have near­ly enough votes to win even with extreme ger­ry­man­der­ing and an alliance with bil­lion­aires. Shift­ing to a pro­por­tion­al rep­re­sen­ta­tion sys­tem is a win-win approach when the dom­i­nant par­ty’s long-term strat­e­gy relies on ger­ry­man­der­ing and oth­er schemes to win with a minor­i­ty of vot­ers. Con­ser­v­a­tive white Chris­tians are big win­ners under the Fair Vote sys­tem. Along with every­one else. Post-Trump needs to be post-zero sum. Giv­en today’s prob­lems, a zero-sum Amer­i­ca is a doomed Amer­i­ca. And the cur­rent win­ner-take-all sys­tem is a big sys­temic fac­tor is encour­ag­ing zero-sum pol­i­tics:

...
We defeat the ger­ry­man­der not by tin­ker­ing around the edges, but by solv­ing the root prob­lem. If we want to cure redis­trict­ing, it’s clear that we must start by tak­ing on dis­trict­ing itself. This means think­ing dif­fer­ent­ly about the prob­lem and also the solu­tion: Reimag­in­ing our cri­sis of democ­ra­cy as a cri­sis of win­ner-takes-all democ­ra­cy — the kind that cre­ates safe seats for par­ties, but leaves vot­ers with­out thought­ful alter­na­tives.

After all, these dis­tricts should not belong to par­ties as the exclu­sive prop­er­ty of Team Red or Team Blue. A bill before Con­gress would solve this fair­ness issue in North Car­oli­na and fun­da­men­tal­ly ren­der ger­ry­man­der­ing irrel­e­vant at a time when courts either refuse to get involved or, as in this case, believe that such a large prob­lem would take far too long to solve.

Con­gress could sim­ply pass the Fair Rep­re­sen­ta­tion Act, as pro­posed by Rep. Don Bey­er (D‑Va.). Bey­er would replace our win­ner-takes-all sys­tem with a fair­er sys­tem that would allow every vote to mat­ter and every­one to win their fair share of seats. It calls for ranked choice vot­ing to elect House mem­bers, com­bined with mod­er­ate­ly larg­er dis­tricts of three, four or five rep­re­sen­ta­tives (drawn by non­par­ti­san com­mis­sions) along the lines of ones used wide­ly in state and local elec­tions. Togeth­er, these two reforms would ensure that all sides win only the seats they deserve in every state.

But it goes fur­ther. The beau­ty of this approach is that, across North Car­oli­na and every oth­er state, these larg­er dis­tricts would pro­duce Democ­rats, Repub­li­cans and even inde­pen­dents. Every dis­trict would have actu­al swing seats. Women and can­di­dates of col­or would have a bet­ter chance of win­ning. No one would feel as if their voice did not count. And no vot­er — not even a Repub­li­can in Mass­a­chu­setts or a Demo­c­rat in Nebras­ka — would be locked into a dis­trict where the out­come is pre­de­ter­mined.
...

Is the US at all inter­est­ed in merg­ing dis­tricts and have a ranked-chance elec­tion? Maybe a few states? We’ll see. It would make for much more inter­est­ing races. The ‘every­one for all’ pol­i­tics that keeps civ­i­liza­tion flow­ing. The kind of civ­i­liza­tion that white Chris­t­ian con­ser­v­a­tives would have a ton of fun liv­ing with lots of polit­i­cal rep­re­sen­ta­tion.

Now that Pres­i­dent Trump has put the US on the path to anoth­er war in the Mid­dle East, per­haps it’s an appro­pri­ate time for Amer­i­cans to take a moment and reflect upon the fact that if it was­n’t for the Repub­li­can Par­ty’s decades of work­ing to rig Amer­i­ca’s democ­ra­cy through tac­tics like vot­er sup­pres­sion, there prob­a­bly would­n’t be a crazy man in the White House tweet­ing about his plans for war crimes. Because there’s noth­ing quite like a ‘wag­ging the dog into WWIII’ sit­u­a­tion to remind a nation of the impor­tance of tak­ing seri­ous­ly the threat the sys­tem­at­ic rig­ging of democ­ra­cy pos­es to a nation, although Chief Jus­tice John Roberts, a one-man sys­tem­at­ic threat to democ­ra­cy, just wrote some­thing that rivals it in terms of being a poignant reminder of the risks the sys­temic rig­ging of democ­ra­cy pos­es for a nation. Because of course he did.

So what did Roberts write? Well, in the pre­am­ble to his annu­al Year-End Report on the Fed­er­al Judi­cia­ry, Roberts decid­ed to focus on how, “We have come to take democ­ra­cy for grant­ed, and civic edu­ca­tion has fall­en by the way­side.” Yep, that’s the sys­temic risk to Amer­i­ca’s democ­ra­cy that he decid­ed to focus on. It’s like some sort of dark iron­ic judi­cial joke from the guy who brought us unlim­it­ed secret polit­i­cal spend­ing with Cit­i­zens Unit­ed and con­sti­tu­tion­al­ly blessed hyper-par­ti­san ger­ry­man­der­ing with Rucho v. Com­mon Cause. He even men­tions Bar­rack Oba­ma’s blocked Supreme Court nom­i­nee Mer­rick Gar­land in the pre­am­ble, prais­ing him for vol­un­teer­ing “as a tutor at a local ele­men­tary school, inspir­ing his court col­leagues to join in the effort” as an exam­ple of how judges can help fos­ter civic edu­ca­tion. Mer­rick Gar­land, the guy who was blocked in the ‘no holds barred’ spir­it of end­less GOP dirty-tricks. It’s a pre­am­ble about the lack of civic spir­it that is so dark­ly cyn­i­cal that it actu­al­ly dam­ages the civic spir­it of the nation. It’s a pow­er­ful ‘in your face’ reminder of the fact that the con­ser­v­a­tive major­i­ty on the Supreme Court led by John Roberts rep­re­sents one of the biggest and most fun­da­men­tal sys­temic risks to Amer­i­ca’s democ­ra­cy. The US con­sti­tu­tion sys­tem isn’t built for a rul­ing major­i­ty of judges behold­en to oli­garchs and hell bent on empow­er­ing the pow­er­ful at the con­sti­tu­tion­al lev­el.

And it’s not just the Roberts Court. The US Supreme Court has been mov­ing hard to the right since Ronald Rea­gan. It was the con­ser­v­a­tive 5–4 major­i­ty led by William Rehn­quist that brought us the George W. Bush admin­is­tra­tion with its bless­ing of Flori­da’s rigged 2000 elec­tion count, and all the mad­ness and wars based on false evi­dence that fol­lowed. But now, fol­low­ing the elec­tion of Trump and the block­ing of Mer­rick Gar­land, the con­ser­v­a­tive major­i­ty is tilt­ed so far to the right that it’s pret­ty much legal­ly sanc­tion­ing a whole­sale sell­out of polit­i­cal pow­er Amer­i­ca to the rich and pow­er­ful. The mask is almost entire­ly dropped, with John Roberts now in the posi­tion of being the ‘mod­er­ate’ swing vote on the court.

Now, as Ian Mill­his­er points out in the fol­low­ing Vox piece, there is a pro-democ­ra­cy strain in Robert­s’s rul­ings in that he does tend to dif­fer with the oth­er four con­ser­v­a­tives in his gen­er­al def­er­ence to the leg­is­la­ture on most mat­ters. So as long as the leg­is­la­ture isn’t cap­tured by pow­er­ful pri­vate inter­ests, that tilts the US sys­tem of gov­ern­ment more towards fol­low­ing the will of the elec­torate. But, of course, Roberts is also the guy who keeps rul­ing in ways that ensure the rich and pow­er­ful are going to con­trol the leg­is­la­tures at the state and fed­er­al lev­el.

And that’s all why all Amer­i­cans should lis­ten very close­ly to Chief Jus­tice Robert­s’s wise words. Because at this point, thanks to the sat­u­ra­tion of pro­pa­gan­da and sys­temic cheat­ing sanc­tioned by decades now of right-wing Supreme Court majori­ties, the only thing that’s going to save the Amer­i­can pub­lic is some very wise vot­ing done in the face of that pro­pa­gan­da and rig­ging so leg­is­la­tures aren’t stocked with oli­garch cronies. Vot­ers real­ly need to be informed. Very informed. There’s a huge num­ber of things going hor­ri­bly awry. All at once. The elec­torate does­n’t need to know about every prob­a­bly, but they prob­a­bly should know about every exis­ten­tial one. And there are a lot of exis­ten­tial prob­lems fac­ing Amer­i­ca these days. Like a crazy ‘wag the WWIII’ pres­i­dent from a par­ty that’s cap­tured the reigns of pow­er and turned polit­i­cal cheat­ing into a con­sti­tu­tion­al­ly pro­tect­ed right. So Amer­i­cans real­ly do need to know that they need to know a lot more about how their gov­ern­ment works, what it’s doing, and espe­cial­ly who is influ­enc­ing those deci­sions. Because Amer­i­cans des­per­ate­ly needs to some­how coun­ter­act the whole­sale sell­ing out of the reigns of pow­er that the 5–4 con­ser­v­a­tive major­i­ty on the court has been sanc­tion­ing. And elect pres­i­dents who won’t nom­i­nate more right wing judges.

So hope­ful­ly the 2020 elec­tion includes a big pub­lic dis­cus­sion about how the ‘mod­er­ate’ on the court is the cur­rent chief archi­tect of the whole­sale sell­ing out of the US gov­ern­ment to the rich and pow­er­ful. And he’s very con­cerned Amer­i­cans are tak­ing their democ­ra­cy for grant­ed:

Vox

Chief Jus­tice Roberts warns we’re tak­ing “democ­ra­cy for grant­ed.” His rul­ings haven’t helped.

Roberts wor­ries about the state of our democ­ra­cy even as his deci­sions have weak­ened demo­c­ra­t­ic struc­tures.

By Ian Mill­his­er
Jan 3, 2020, 8:10am EST

Chief Jus­tice John Roberts hand­ed down his 2019 Year-End Report on the Fed­er­al Judi­cia­ry Tues­day evening, an annu­al tra­di­tion that sends Supreme Court reporters scram­bling to read the doc­u­ment before they can dis­perse to New Year’s Eve par­ties.

The chief jus­tice typ­i­cal­ly begins each report with a lengthy pre­am­ble. In some cas­es, the pre­am­ble cross­es the line into sub­tle polit­i­cal com­men­tary and even advo­ca­cy. The bulk of Roberts’s 2019 pre­am­ble is a call for “civic edu­ca­tion.”

“We have come to take democ­ra­cy for grant­ed,” the chief writes, “and civic edu­ca­tion has fall­en by the way­side.”

Roberts, who flirt­ed with becom­ing a his­to­ri­an before choos­ing law school instead, likes to begin his annu­al reports with his­tor­i­cal anec­dotes. His most recent report is no excep­tion: He begins it with a sto­ry of how future Chief Jus­tice John Jay was injured as he tried to quell a riot. The les­son of this sto­ry, accord­ing to Roberts, is that the Constitution’s “prin­ci­ples leave no place for mob vio­lence,” and that the risk of mob rule grows in an era when “social media can instant­ly spread rumor and false infor­ma­tion on a grand scale.”

Some com­men­ta­tors read Roberts’s warn­ings about democ­ra­cy and mob rule as, in the New York Times’ Adam Liptak’s words, addressed, at least in part, to the pres­i­dent him­self.” Roberts is about to play a cen­tral, if large­ly cer­e­mo­ni­al, role in Pres­i­dent Trump’s impeach­ment tri­al, as the Con­sti­tu­tion requires the chief jus­tice to pre­side when the Sen­ate tries a pres­i­dent.

“Even a casu­al read­er could detect a time­ly sub­text,” Lip­tak wrote, “one con­cerned with the foun­da­tion­al impor­tance of the rule of law.” Lip­tak also points to a line in the report that prais­es Oba­ma Supreme Court nom­i­nee Mer­rick Gar­land for vol­un­teer­ing “as a tutor at a local ele­men­tary school, inspir­ing his court col­leagues to join in the effort” as an exam­ple of how judges can help fos­ter civic edu­ca­tion.

Yet, even if the chief did intend his report as a sub­tle dig on Trump, the pre­scrip­tion Roberts offers is rather mild. Civic edu­ca­tion is a good thing, but it is no solu­tion to prob­lems like par­ti­san ger­ry­man­der­ing or vot­er sup­pres­sion — prob­lems that Roberts has exac­er­bat­ed in his judi­cial opin­ions.

How John Roberts thinks about democ­ra­cy

A state­ment from the Chief Jus­tice of the Unit­ed States about not tak­ing democ­ra­cy for grant­ed would nor­mal­ly seem like an ano­dyne exhor­ta­tion. But com­ing from the author of SShel­by Coun­ty v. Hold­er (2013), the Court’s 5–4 deci­sion strik­ing down much of the Vot­ing Rights Act, it might raise an eye­brow.

Con­sid­er that Roberts also wrote the Court’s deci­sion hold­ing that fed­er­al courts may do noth­ing to stop par­ti­san ger­ry­man­der­ing. And that he decid­ed that it is uncon­sti­tu­tion­al to pre­vent rich donors from buy­ing access to elect­ed offi­cials. “Gov­ern­ment reg­u­la­tion may not tar­get the gen­er­al grat­i­tude a can­di­date may feel toward those who sup­port him or his allies, or the polit­i­cal access such sup­port may afford,” Roberts wrote in McCutcheon v. FEC (2014).

Roberts, in oth­er words, hand­ed down a series of rul­ings that add up to a rejec­tion of the idea that democ­ra­cy depends on a legal frame­work that allows free and fair elec­tions to exist. He’s spent much of his judi­cial career tear­ing down parts of that frame­work, even as he uses his annu­al report to warn against threats to democ­ra­cy.

...

Roberts’s most famous opin­ion may be the one he wrote in NFIB v. Sebe­lius (2012), which large­ly upheld the Afford­able Care Act. The chief broke with his four Repub­li­can col­leagues, each of whom vot­ed to strike down the entire law. In the process, he laid out a fair­ly robust the­o­ry explain­ing why elim­i­nat­ing a health law hat­ed by Repub­li­cans was not the prop­er role of the judi­cia­ry.

Mem­bers of this Court are vest­ed with the author­i­ty to inter­pret the law; we pos­sess nei­ther the exper­tise nor the pre­rog­a­tive to make pol­i­cy judg­ments. Those deci­sions are entrust­ed to our Nation’s elect­ed lead­ers, who can be thrown out of office if the peo­ple dis­agree with them. It is not our job to pro­tect the peo­ple from the con­se­quences of their polit­i­cal choic­es.

A few years lat­er, Roberts con­clud­ed his opin­ion in King v. Bur­well (2015), anoth­er deci­sion reject­ing a polit­i­cal law­suit seek­ing to under­cut Oba­macare, with a sim­i­lar warn­ing: “In a democ­ra­cy, the pow­er to make the law rests with those cho­sen by the peo­ple. Our role is more con­fined.”

The very next day, Roberts hand­ed down a dis­sent­ing opin­ion that received far less love from the sort of peo­ple who sup­port Oba­macare: his dis­sent in Oberge­fell v. Hodges (2015), which argued that the Con­sti­tu­tion does not pro­tect a right to mar­ry peo­ple of the same sex. But Roberts’s Oberge­fell opin­ion was as much a warn­ing against con­ser­v­a­tive judi­cial over­reach as it was an attack on mar­riage equal­i­ty.

...

What makes his Oberge­fell deci­sion inter­est­ing is that he also rails against efforts to imple­ment con­ser­v­a­tive eco­nom­ic pol­i­cy through lit­i­ga­tion. Much of Roberts’s opin­ion is an attack on Lochn­er v. New York (1905), an infa­mous deci­sion from an age when the Supreme Court rou­tine­ly struck down pro­gres­sive labor leg­is­la­tion. A grow­ing move­ment of legal con­ser­v­a­tives hope to revive Lochn­er and sim­i­lar deci­sions, but Roberts wants no part of this move­ment.

Lochner’s sin, Roberts wrote in his Oberge­fell dis­sent, was the Court’s deci­sion to impose its “naked pol­i­cy pref­er­ences” upon a nation that should be gov­erned by elect­ed law­mak­ers.

So, while Roberts’s actu­al vot­ing rights deci­sions show lit­tle regard for vot­ing rights, there is still a pow­er­ful thread of pro-demo­c­ra­t­ic rhetoric woven into Roberts’s opin­ions. When he breaks with his Repub­li­can col­leagues, he often does so on the grounds that those col­leagues want to imple­ment pol­i­cy deci­sions that should be left to elect­ed offi­cials.

What Roberts gets wrong

That brings us back to the chief’s 2019 report. The the­o­ry behind that report is that democ­ra­cy is suf­fer­ing because the pub­lic lacks an ade­quate under­stand­ing of how our gov­ern­ment func­tions. “In our age, when social media can instant­ly spread rumor and false infor­ma­tion on a grand scale,” Roberts writes, “the public’s need to under­stand our gov­ern­ment, and the pro­tec­tions it pro­vides, is ever more vital.”

Roberts prais­es judi­cial efforts to close this knowl­edge gap, includ­ing a project by the Admin­is­tra­tive Office of the Courts to pro­duce “class­room-ready cur­ricu­lum mate­ri­als on teen-rel­e­vant top­ics,” and retired Jus­tice San­dra Day O’Connor to help “found iCivics, a non-prof­it that engages stu­dents in mean­ing­ful civic learn­ing through free teacher resources, includ­ing video gam­ing.”

The vision of democ­ra­cy that emerges from Roberts’s writ­ings, in oth­er words, is less anti-demo­c­ra­t­ic than it is blink­ered. Roberts appears to view democ­ra­cy as an indi­vid­ual bur­den, car­ried by cit­i­zens who must be prop­er­ly informed (per­haps through cam­paign ads fund­ed by wealthy donors), rather than as a sys­tem that can only be main­tained through legal struc­tures such as a cam­paign finance regime and laws pro­tect­ing vot­ing rights.

Lib­er­als — and sup­port­ers of lib­er­al democ­ra­cy gen­er­al­ly — are unlike­ly to find much com­fort in Roberts’s vision. It mat­ters lit­tle to a dis­en­fran­chised black vot­er if Roberts act­ed with­out mal­ice when he struck down the Vot­ing Rights Act.

There is a very real divide between Roberts and, say, the four con­ser­v­a­tive jus­tices who dis­sent­ed in NFIB. Roberts is unlike­ly to do much to pro­tect free and fair elec­tions direct­ly — though he has shown some will­ing­ness to break with his Repub­li­can col­leagues in extreme cas­es — but he has been sig­nif­i­cant­ly more will­ing to pro­tect the pow­er of law­mak­ers to actu­al­ly make laws once those law­mak­ers are in office.

The prob­lem for both small‑d democ­rats and large‑d Democ­rats, how­ev­er, is that the abil­i­ty to make laws means lit­tle if you can­not win elec­tions because the Supreme Court has dis­man­tled the country’s vot­ing rights regime. Civic edu­ca­tion is nec­es­sary to a func­tion­ing democ­ra­cy, but it is not suf­fi­cient. Democ­ra­cy also requires the kinds of struc­tures and insti­tu­tions that Roberts’s deci­sions have done so much to weak­en.

———-

“Chief Jus­tice Roberts warns we’re tak­ing “democ­ra­cy for grant­ed.” His rul­ings haven’t helped.” by Ian Mill­his­er; Vox; 01/02/2020

“Roberts, who flirt­ed with becom­ing a his­to­ri­an before choos­ing law school instead, likes to begin his annu­al reports with his­tor­i­cal anec­dotes. His most recent report is no excep­tion: He begins it with a sto­ry of how future Chief Jus­tice John Jay was injured as he tried to quell a riot. The les­son of this sto­ry, accord­ing to Roberts, is that the Constitution’s “prin­ci­ples leave no place for mob vio­lence,” and that the risk of mob rule grows in an era when “social media can instant­ly spread rumor and false infor­ma­tion on a grand scale.””

The Chief Jus­tice who just hand­ed state leg­is­la­tures over to the Koch Net­work of mega-donors with Rucho v Com­mon Cause starts his warn­ing about civic edu­ca­tion with a sto­ry about mob vio­lence. But his mod­el of how soci­ety should work does­n’t actu­al­ly assume the oli­garchs rule. It’s instead based on the idea that it’s up to the US pub­lic to all indi­vid­u­al­ly make sure we’re all informed enough to make an over­all intel­li­gent choic­es dur­ing elec­tion and legal frame­works that pro­tect rel­a­tive­ly unin­formed vot­ers, like cam­paign finance restric­tions, are uncon­sti­tu­tion­al. Bil­lion­aires can secret­ly spend all they want on spread­ing rumor and false infor­ma­tion on a grand scale dur­ing elec­tions and the only thing ‘the mob’ gets to pro­tect itself against that mis­in­for­ma­tion is their wits and knowl­edge. Col­lec­tive­ly. It’s up to every­one. No legal pro­tec­tions allowed. That’s a key part of John Robert­s’s gov­ern­ing phi­los­o­phy. So being informed real­ly is going to be super extra impor­tant dur­ing the Roberts Court era. And then he men­tions Mer­rick Gar­land. It’s kind of rub­bing our noses in it:

...
Some com­men­ta­tors read Roberts’s warn­ings about democ­ra­cy and mob rule as, in the New York Times’ Adam Liptak’s words, addressed, at least in part, to the pres­i­dent him­self.” Roberts is about to play a cen­tral, if large­ly cer­e­mo­ni­al, role in Pres­i­dent Trump’s impeach­ment tri­al, as the Con­sti­tu­tion requires the chief jus­tice to pre­side when the Sen­ate tries a pres­i­dent.

“Even a casu­al read­er could detect a time­ly sub­text,” Lip­tak wrote, “one con­cerned with the foun­da­tion­al impor­tance of the rule of law.” Lip­tak also points to a line in the report that prais­es Oba­ma Supreme Court nom­i­nee Mer­rick Gar­land for vol­un­teer­ing “as a tutor at a local ele­men­tary school, inspir­ing his court col­leagues to join in the effort” as an exam­ple of how judges can help fos­ter civic edu­ca­tion.

Yet, even if the chief did intend his report as a sub­tle dig on Trump, the pre­scrip­tion Roberts offers is rather mild. Civic edu­ca­tion is a good thing, but it is no solu­tion to prob­lems like par­ti­san ger­ry­man­der­ing or vot­er sup­pres­sion — prob­lems that Roberts has exac­er­bat­ed in his judi­cial opin­ions.

...

Roberts, in oth­er words, hand­ed down a series of rul­ings that add up to a rejec­tion of the idea that democ­ra­cy depends on a legal frame­work that allows free and fair elec­tions to exist. He’s spent much of his judi­cial career tear­ing down parts of that frame­work, even as he uses his annu­al report to warn against threats to democ­ra­cy.

...

The vision of democ­ra­cy that emerges from Roberts’s writ­ings, in oth­er words, is less anti-demo­c­ra­t­ic than it is blink­ered. Roberts appears to view democ­ra­cy as an indi­vid­ual bur­den, car­ried by cit­i­zens who must be prop­er­ly informed (per­haps through cam­paign ads fund­ed by wealthy donors), rather than as a sys­tem that can only be main­tained through legal struc­tures such as a cam­paign finance regime and laws pro­tect­ing vot­ing rights.

...

The prob­lem for both small‑d democ­rats and large‑d Democ­rats, how­ev­er, is that the abil­i­ty to make laws means lit­tle if you can­not win elec­tions because the Supreme Court has dis­man­tled the country’s vot­ing rights regime. Civic edu­ca­tion is nec­es­sary to a func­tion­ing democ­ra­cy, but it is not suf­fi­cient. Democ­ra­cy also requires the kinds of struc­tures and insti­tu­tions that Roberts’s deci­sions have done so much to weak­en.
...

“Civic edu­ca­tion is nec­es­sary to a func­tion­ing democ­ra­cy, but it is not suf­fi­cient. Democ­ra­cy also requires the kinds of struc­tures and insti­tu­tions that Roberts’s deci­sions have done so much to weak­en.”

Yep, and that’s all why it’s increas­ing­ly impor­tant for Amer­i­can vot­ers to learn that the con­ser­v­a­tive major­i­ty on the Supreme Court is doing every­thing it can to make it dan­ger­ous for Amer­i­cans to be unin­formed. Like, straight up dan­ger­ous for the nation. That’s part of the Chief Jus­tice’s vision for the coun­try. If ‘the mob’ becomes col­lec­tive­ly unin­formed it’s all sup­posed to go to hell in a hand­bas­ket and/or get sold off to bil­lion­aires. That’s ‘democ­ra­cy’ under Robert­s’s vision, so Amer­i­cans needs to start inten­sive­ly edu­cat­ing them­selves about their coun­try’s pow­er struc­ture and polit­i­cal dynam­ic right now. That was always impor­tant, but the Chief Jus­tice just remind­ed us that it’s extra impor­tant now.

An aware­ness of the long-term dis­as­trous con­se­quences of elect­ing Repub­li­can pres­i­dents and nom­i­nat­ing ever more con­ser­v­a­tive judges to the the Supreme Court is anoth­er one of those things the ‘mob’ of the US elec­torate should prob­a­bly get informed about in 2020, but Chief Jus­tice Roberts prob­a­bly does­n’t want too much vot­er atten­tion on that par­tic­u­lar sys­temic threat to democ­ra­cy.

Here’s a pre­view of how the chal­lenge of hold­ing elec­tions dur­ing the coro­n­avirus pan­dem­ic will play out if it turns out vot­ing from mail is the only safe option:

First, the Repub­li­can Speak­er of the Geor­gia House gave an inter­view this week that includ­ed a ques­tion about the pos­si­bil­i­ty of switch­ing to a mail-in bal­lot for the 2020 elec­tion this fall if COVID-19 is still mak­ing social dis­tanc­ing a pub­lic health neces­si­ty. This was a par­tic­u­lar­ly inter­est­ing ques­tion giv­en the fact that the Repub­li­can Par­ty has long been sour on the idea of vot­ing by mail (or any sys­tem that makes vot­ing eas­i­er) and the Geor­gia Repub­li­can Par­ty in par­tic­u­lar is noto­ri­ous for using every trick in the book to sup­press the vote. Don’t for­get that the cur­rent gov­er­nor of Geor­gia is Repub­li­can Bri­an Kemp, who was the Sec­re­tary of State when he ran in 2018 and refused to relin­quish his over­sight over his own elec­tion. And Kemp hap­pened to just bare­ly win that race over pop­u­lar Demo­c­rat Sta­cy Abrams using what appears to have been some sort of exten­sive vot­er sup­pres­sion and rig­ging of the elec­tron­ic vot­ing machines. There’s a whole law­suit over it that looks like a giant coverup. Clas­sic GOP. So the ques­tion of how the Geor­gia Repub­li­can House Speak­er will respond to calls for vot­ing by mail is impor­tant for get­ting a sense of whether or not elec­tions will even be viable in the fall if the pan­dem­ic still has things shut down.

So what was the Geor­gia House Speak­er’s response to a ques­tion about shift­ing to a mail-in bal­lot this year? No way. Because it would dri­ve turnout so much that it “will be extreme­ly dev­as­tat­ing to Repub­li­cans and con­ser­v­a­tives in Geor­gia”:

Talk­ing Points Memo
News

In Echo Of Trump, GA House Speak­er Despairs That Coro­n­avirus Vote-By-Mail Mea­sures Would Help Dems

By Kate Riga
April 2, 2020 10:45 a.m.

Geor­gia House Speak­er David Ral­ston ® said the qui­et part out loud Wednes­day, bash­ing the sec­re­tary of state’s move to mail out absen­tee bal­lot appli­ca­tions to the state’s reg­is­tered vot­ers because the high­er vot­er par­tic­i­pa­tion “will be extreme­ly dev­as­tat­ing to Repub­li­cans and con­ser­v­a­tives in Geor­gia.”

“Every reg­is­tered vot­er is going to get one of these,” he added in an inter­view with FetchY­ourNews, a local news site. “This will cer­tain­ly dri­ve up turnout.”

Ral­ston echoed Pres­i­dent Don­ald Trump in his sen­ti­ments, who Mon­day aired a sim­i­lar fear about Demo­c­ra­t­ic pro­pos­als like increas­ing vote by mail and same-day reg­is­tra­tion.

“The things they had in there were crazy,” Trump said on “Fox and Friends.” “They had things — lev­els of vot­ing that, if you ever agreed to it, you’d nev­er have a Repub­li­can elect­ed in this coun­try again.”

Ral­ston, joined by U.S. Repub­li­can Sens. David Per­due and Kel­ly Loef­fler, has been urg­ing Sec­re­tary of State Brad Raf­fensperg­er to delay the Geor­gia pri­ma­ry, sched­uled for May 19, amid the coro­n­avirus pan­dem­ic. Raf­fensperg­er, who already delayed the pri­ma­ry once, said he doesn’t have the author­i­ty to push it back fur­ther, per the Atlanta Jour­nal-Con­sti­tu­tion.

Democ­rats are call­ing for the elec­tion to go on as planned, but want the gov­ern­ment to pay for postage on the absen­tee bal­lots.

...

————–

“In Echo Of Trump, GA House Speak­er Despairs That Coro­n­avirus Vote-By-Mail Mea­sures Would Help Dems” by Kate Riga; Talk­ing Points Memo; 04/02/2020

““Every reg­is­tered vot­er is going to get one of these,” he added in an inter­view with FetchY­ourNews, a local news site. “This will cer­tain­ly dri­ve up turnout.””

Yes, send­ing every reg­is­tered vot­er a bal­lot that they can con­ve­nient­ly mail back would cer­tain­ly turn up turnout. Espe­cial­ly in urban areas long plagued by inad­e­quate num­bers of vot­ing sites and machines where vot­ing in-per­son can take hours on elec­tion day. The very same vot­ers Repub­li­cans have spent years try­ing to dis­cour­age from vot­ing are going to be strong­ly encour­aged to vote with a mail in bal­lot. So of course the House speak­er is opposed to it. It’s just a lit­tle sur­pris­ing that he put it so blunt­ly. Then again, he’s just echo­ing what Trump him­self said on Mon­day on Fox & Friends, when he con­demned a House Demo­c­ra­t­ic push for a vote-by-mail option:

...
Geor­gia House Speak­er David Ral­ston ® said the qui­et part out loud Wednes­day, bash­ing the sec­re­tary of state’s move to mail out absen­tee bal­lot appli­ca­tions to the state’s reg­is­tered vot­ers because the high­er vot­er par­tic­i­pa­tion “will be extreme­ly dev­as­tat­ing to Repub­li­cans and con­ser­v­a­tives in Geor­gia.”

...

Ral­ston echoed Pres­i­dent Don­ald Trump in his sen­ti­ments, who Mon­day aired a sim­i­lar fear about Demo­c­ra­t­ic pro­pos­als like increas­ing vote by mail and same-day reg­is­tra­tion.

“The things they had in there were crazy,” Trump said on “Fox and Friends.” “They had things — lev­els of vot­ing that, if you ever agreed to it, you’d nev­er have a Repub­li­can elect­ed in this coun­try again.”
...

“They had things — lev­els of vot­ing that, if you ever agreed to it, you’d nev­er have a Repub­li­can elect­ed in this coun­try again.” That was the sen­ti­ment Geor­gia’s House speak­er David Ral­ston was echo­ing. Trump’s sen­ti­ment from Fox & Friends about a House Demo­c­rat vot­ing rights bill that would have had sim­i­lar mail-in pro­vi­sions for the entire nation. There would nev­er be anoth­er Repub­li­can elect­ed if encour­aged every reg­is­tered vot­er to vote. It’s the kind of thing Repub­li­can deep strate­gists are sup­posed to dis­cuss qui­et­ly in smoke-filled rooms and par­ty lead­ers are just straight up say­ing that out in pub­lic.

And note how the Geor­gia Repub­li­cans are open to at least one response to the coro­n­avirus: delay­ing the pri­maries:

...
Ral­ston, joined by U.S. Repub­li­can Sens. David Per­due and Kel­ly Loef­fler, has been urg­ing Sec­re­tary of State Brad Raf­fensperg­er to delay the Geor­gia pri­ma­ry, sched­uled for May 19, amid the coro­n­avirus pan­dem­ic. Raf­fensperg­er, who already delayed the pri­ma­ry once, said he doesn’t have the author­i­ty to push it back fur­ther, per the Atlanta Jour­nal-Con­sti­tu­tion.
...

So if the pan­dem­ic is still mak­ing large scale in-per­son vot­ing a pub­lic health risk in Novem­ber, keep in mind that the Repub­li­cans will prob­a­bly be open to one par­tic­u­lar option instead of mail-in bal­lots: post­pon­ing the elec­tion.

Now here’s an arti­cle from Fri­day about anoth­er Repub­li­can leader echo­ing Trump’s pub­lic acknowl­edg­ment that if every­one vot­ed Repub­li­cans would lose: Pres­i­dent Trump. It was dur­ing one of his new dai­ly coro­n­avirus press brief­in­gs. Trump was asked about the House Democ­ra­t’s push for addi­tion­al fund­ing to sup­port mail-in and absen­tee vot­ing avail­abil­i­ty. He came out not just against the pro­pos­al but against the idea of mail in vot­ing at all. He declared that he thinks a lot of peo­ple are cheat­ing with mail-in vot­ing and that peo­ple should be forced to show up and show an ID. So if mail-in vot­ing becomes a neces­si­ty to hold the Novem­ber elec­tion in the midst of a deep­en­ing pan­dem­ic, don’t be sur­prised if there’s a big GOP push for post­ing elec­tions because that’s the only pan­dem­ic rem­e­dy they’re leav­ing on the table:

The Hill

Trump says he oppos­es mail-in vot­ing for Novem­ber

By Brett Samuels
04/03/20 07:29 PM EDT

Pres­i­dent Trump on Fri­day said he’s con­fi­dent the gen­er­al elec­tion in Novem­ber won’t be delayed by the coro­n­avirus, but he reject­ed the idea of hav­ing every state pre­pare to con­duct mail-in vot­ing.

The pres­i­dent, speak­ing at the dai­ly White House brief­ing on the pan­dem­ic, made clear he does not sup­port using vote-by-mail as a back­stop in the event the out­break keeps peo­ple from going to the polls.

“No, because I think a lot of peo­ple cheat with mail-in vot­ing,” said Trump, who has levied base­less accu­sa­tions about vot­er fraud that he claims kept him from win­ning the pop­u­lar vote in 2016. “I think peo­ple should vote with ID, vot­er ID. I think vot­er ID is very impor­tant, and the rea­son they don’t want vot­er ID is because they intend to cheat.”

“It shouldn’t be mail-in vot­ing,” he added. “It should be you go to a booth and you proud­ly dis­play your­self. You don’t send it in the mail where peo­ple can pick up — all sorts of bad things can hap­pen … by the time it gets in and is tab­u­lat­ed.”

Democ­rats have pushed for addi­tion­al fund­ing to bol­ster mail-in and absen­tee vot­ing avail­abil­i­ty. Speak­er Nan­cy Pelosi (D‑Calif.) and oth­ers argue that vot­ing by mail could be nec­es­sary in the event the virus is still preva­lent and keeps poll work­ers and vot­ers from cast­ing their bal­lots in Novem­ber.

The coro­n­avirus relief pack­age signed into law last week by Trump includ­ed $400 mil­lion for states to beef up prepa­ra­tions for pri­maries and the gen­er­al elec­tion dur­ing the coro­n­avirus cri­sis. Democ­rats had ini­tial­ly pushed for $4 bil­lion.

Trump and oth­er Repub­li­cans have large­ly reject­ed the idea of wide­spread vote-by-mail, with some argu­ing it would harm the elec­toral prospects of GOP can­di­dates.

The pres­i­dent on Fri­day said the gen­er­al elec­tion will go for­ward as sched­uled Nov. 3, even though numer­ous states have post­poned their pri­maries or moved them to all-mail bal­lots amid the pan­dem­ic.

In Wis­con­sin, the state is expect­ed to go for­ward with its pri­ma­ry on Tues­day. Gov. Tony Evers (D) on Fri­day urged the state leg­is­la­ture to allow all-mail vot­ing and accept bal­lots cast in the com­ing weeks.

...

———–

“Trump says he oppos­es mail-in vot­ing for Novem­ber” by Brett Samuels; The Hill; 04/03/2020

“It shouldn’t be mail-in vot­ing, it should be you go to a booth and you proud­ly dis­play your­self. You don’t send it in the mail where peo­ple can pick up — all sorts of bad things can hap­pen … by the time it gets in and is tab­u­lat­ed.”

And that’s what’s going to hap­pen if mail-in vot­ing is the only option if there hap­pens to be a viral pan­dem­ic going on this fall: it’s going to have to be in-per­son vot­ing or no vot­ing at all. We can just delay the elec­tion until the pan­dem­ic is over. Or maybe we will have mail-in vot­ing and if Trump los­es he’ll cry elec­tion fraud and can­cel the results. Then again, if there is an mail-in elec­tion, there won’t be exit polling so that could make rig­ging the vote for Trump and all the Repub­li­cans even eas­i­er. All of this hyper­ven­ti­lat­ing about mail-in vot­er fraud could just be pre­emp­tive pro­jec­tion in antic­i­pa­tion of car­ry­ing out mas­sive vot­ing-count­ing fraud of all those mail-in bal­lots. A clas­sic GOP move. There’s all sorts of pos­si­bil­i­ties. The worst pos­si­bil­i­ties because we’re talk­ing about the GOP and elec­tions but it’s a vari­ety of the worst pos­si­bil­i­ties. Be on the look­out for some­thing awful.

Welp, it looks like we won’t need to wor­ry about the GOP using the COVID-19 pan­dem­ic to indef­i­nite­ly post­pone elec­tions. No, instead we need to start wor­ry about the GOP using the pan­dem­ic as a new method for sup­press­ing vot­er turnout. That’s what the Wis­con­sin GOP just demon­strat­ed with a key assist from the con­ser­v­a­tive major­i­ty on the US Supreme Court. Because of course that’s what just hap­pened:

Wis­con­sin had an elec­tion sched­uled for Tues­day, April 7 (today). In addi­tion to the Demo­c­ra­t­ic pri­maries, the elec­tion includ­ed a num­ber of state and local offices, includ­ing a crit­i­cal 10-year seat on the Wis­con­sin Supreme Court which is already dom­i­nat­ed by con­ser­v­a­tives. So it was­n’t a triv­ial elec­tion but instead one of those local elec­tions that could have a sig­nif­i­cant impact on the future of the state.

But what about the COVID-19 pan­dem­ic? Would­n’t encour­ag­ing peo­ple to go out an vote go direct­ly against the ‘shel­ter-at-home’ pub­lic health advi­so­ry? Yep. And what about poll work­ers? Isn’t there going to be dire short­age of them avail­able to work? Yep. But that did­n’t stop the GOP from essen­tial­ly demand­ing that peo­ple do so any­way. In far few­er loca­tions than nor­mal in major met­ro­pol­i­tan areas due to the lack of poll work­ers. Every­one who got to vote was forced to go to a rel­a­tive hand­ful of loca­tions. Does­n’t that sound super safe?

The par­ti­san fight over whether or not to push back the elec­tion reached was still fran­ti­cal­ly evolv­ing on Mon­day, a day before the vote, when Wis­con­sin’s Demo­c­ra­t­ic Gov­er­nor, Tony Evers, issued an exec­u­tive order sus­pend­ing in-per­son vot­ing, draw­ing an almost imme­di­ate chal­lenge from Repub­li­can state lead­ers. Evers him­self admit­ted he was­n’t even sure he had the pow­er to issue that exec­u­tive order but it was the last des­per­ate attempt to push back the in-per­son vot­ing after the Repub­li­can state leg­is­la­ture blocked Ever­s’s attempt over the week­end. The con­ser­v­a­tive-run Wis­con­sin Supreme Court shot down the exec­u­tive order late Mon­day night.

Evers had issued an ear­li­er order on Fri­day that called the leg­is­la­ture to con­vene a spe­cial ses­sion on Sat­ur­day so they could work out the details of push­ing back the elec­tion. But the Repub­li­cans refused to do so and instead opened and then adjurned the spe­cial ses­sion in 17 sec­onds. So the Wis­con­sin GOP real­ly did want to ensure that in-per­son vot­ing had to hap­pen today. In the mid­dle of a pan­dem­ic. And that includes the GOP-dom­i­nat­ed Wis­con­sin Supreme Court.

The case that end­ed up mak­ing it to the US Supreme Court had been work­ing its way through Wis­con­sin’s courts late last week when Judge William Con­ley of the west­ern dis­trict court of Wis­con­sin bit­ter­ly ruled that he did­n’t have the pow­er to post­pone the elec­tion despite the urgent pub­lic health need to do so. But Judge Con­ley did extend the dead­line for absen­tee vot­ing by mail to April 13 and waived the need for a wit­ness’s sig­na­ture. This also drew an imme­di­ate legal chal­lenge from the Repub­li­cans. Then, on Fri­day the 7th Cir­cuit Court of Appeals ruled that the April 13th absen­tee dead­line could stand but the waiv­er of the wit­ness sig­na­ture on the absen­tee bal­lot was invalid and any absen­tee bal­lots with­out that sig­na­ture would be invalid. If some­one did mail in their absen­tee bal­lot with­out the wit­ness sig­na­ture they must either phys­i­cal­ly bring a wit­ness to the clerks office or polling place on elec­tion day or else get the mailed in bal­lot returned and then resent with the added sig­na­ture. So there are like­ly thou­sands of cast votes that are going to be thrown out by that rul­ing.

That Appeals Court rul­ing was fur­ther appealed up to the Supreme Court which ruled Mon­day night. In that 5–4 par­ti­san rul­ing, the high court reject­ed the April 13th absen­tee dead­line, mean­ing every­one who had­n’t yet vot­ed was either going have to either mail in their bal­lots or vote in-per­son on elec­tion day. And as Jus­tice Gins­burg point­ed out in her dis­sent of that rul­ing, “While I do not doubt the good faith of my col­leagues, the Court’s order, I fear, will result in mas­sive dis­en­fran­chise­ment. A vot­er can­not deliv­er for post­mark­ing a bal­lot she has not received. Yet tens of thou­sands of vot­ers who time­ly request­ed bal­lots are unlike­ly to receive them by April 7, the Court’s post­mark dead­line.” That’s right. Thou­sands of vot­ers who request­ed their absen­tee bal­lots prob­a­bly had­n’t received them by elec­tion day, mean­ing they’ll be forced to choose between vot­ing in-per­son and risk­ing infec­tion or skip­ping the vote alto­geth­er.

So the Wis­con­sin GOP got its wish with a huge assist from the con­ser­v­a­tive major­i­ty on the US Supreme Court GOP. A wish that was obvi­ous­ly root­ed in a desire to sup­press the vote with the expec­ta­tion that this would help the con­ser­v­a­tive can­di­date for the Wis­con­sin Supreme Court.

Ok, first, here’s a TPM piece about Gov­er­nor Ever­s’s hail may move to delay in-per­son vot­ing. A hail mary neces­si­tat­ed by the GOP leg­is­la­ture’s refusal to even con­sid­er that option over the week­end:

Talk­ing Points Memo
News

Wis­con­sin Gov. Throws Hail Mary To Delay In-Per­son Vot­ing For Tues­day Elec­tions

By Kate Riga
April 6, 2020 3:53 p.m.

Just hours before polls in Wis­con­sin were sched­uled to open, Gov. Tony Evers (D) issued an exec­u­tive order Mon­day after­noon sus­pend­ing in-per­son vot­ing in response to the coro­n­avirus out­break.

Per the order, the in-per­son vot­ing would be pushed to June 9 unless the leg­is­la­ture pass­es a new date that Evers approves. Vot­ers would be able to vote absen­tee in the mean­time. Evers also called for anoth­er spe­cial ses­sion of the leg­is­la­ture on Tues­day to con­sid­er the new date.

The move brought an almost instan­ta­neous chal­lenge from the state Repub­li­can con­gres­sion­al lead­er­ship:

Joint State­ment with @SenFitzgerald: We are imme­di­ate­ly chal­leng­ing this exec­u­tive order in the Wis­con­sin State Supreme Court. pic.twitter.com/76QItl3qxE— Speak­er Robin Vos (@SpeakerVos) April 6, 2020

Evers doesn’t even seem to know him­self if he has the pow­er to make the order. As recent­ly as Fri­day, he said that his “hands are tied” when it comes to delay­ing the elec­tion uni­lat­er­al­ly.

Evers’ long shot exec­u­tive order is just the last in a chaot­ic flur­ry of attempts to delay the pri­ma­ry, as Wis­con­sin was left with the unen­vi­able dis­tinc­tion of being the last hold­out state plow­ing ahead with in-per­son vot­ing in the month of April.

Most states have delayed their elec­tions in the hopes of skirt­ing the worst of the coro­n­avirus pan­dem­ic. On March 15, the CDC issued guid­ance that gath­er­ings of over 50 peo­ple should be can­celled for the next eight weeks.

Democ­rats’ last-ditch attempts to delay the elec­tion, joined by Evers after his pre­vi­ous oppo­si­tion to push­ing back the date, were stymied this week­end by the Repub­li­can leg­is­la­ture.

After his change of heart, Evers signed an exec­u­tive order forc­ing the leg­is­la­ture to hold a spe­cial ses­sion last Sat­ur­day to hash out push­ing back the elec­tion. Rep. Tyler August ® opened and adjourned the ses­sion in 17 sec­onds, refus­ing to take any action.

The GOP’s resis­tance is like­ly relat­ed to a desire to keep turnout low for a cru­cial state supreme court race slat­ed for Tues­day. Repub­li­cans think low­er turnout ben­e­fits their can­di­date, incum­bent Jus­tice Daniel Kel­ly, who’s try­ing to fend off lib­er­al chal­lenger Jill Karof­sky for a 10-year term on the bench.

Evers had ini­tial­ly balked at the idea of mov­ing the pres­i­den­tial pri­ma­ry, which is also the day of major state and local gen­er­al elec­tions. Some of those terms were slat­ed to begin April 20. In his exec­u­tive order, Evers grant­ed an exten­sion to the cur­rent office­hold­ers to con­tin­ue serv­ing until the new elec­tions take place.

Evers was also opposed to the delay because he may need leg­isla­tive sup­port to make it hap­pen, a flat-out non­starter with the Repub­li­can-major­i­ty cham­bers. He reversed his posi­tion in recent days after hear­ing from local offi­cials, call­ing the elec­tion a “very unnec­es­sary health risk.”

Mean­while, out­side of the leg­is­la­ture, par­al­lel bat­tles have been play­ing out in the courts.

On Thurs­day, Judge William Con­ley of the west­ern dis­trict court of Wis­con­sin wrote in a bit­ing deci­sion that he did not have the author­i­ty to delay the elec­tion, but extend­ed the dead­line for absen­tee vot­ing to April 13 and waived the need for a wit­ness’ sig­na­ture.

“With­out doubt, the April 7 elec­tion day will cre­ate unprece­dent­ed bur­dens not just for aspir­ing vot­ers, but also for poll work­ers, clerks, and indeed the state,” he wrote. “As much as the court would pre­fer that the Wis­con­sin Leg­is­la­ture and Gov­er­nor con­sid­er the pub­lic health ahead of any polit­i­cal con­sid­er­a­tions, that does not appear in the cards. Nor is it appro­pri­ate for a fed­er­al dis­trict court to act as the state’s chief health offi­cial by tak­ing that step for them.”

He also issued a fol­lowup order allow­ing an extra week for elec­tion offi­cials to report the results of the vote.

Wis­con­sin Repub­li­cans imme­di­ate­ly appealed Conley’s deci­sions, send­ing the case to an appeals court.

On Fri­day, the 7th Cir­cuit Court of Appeals split the baby: it upheld the extend­ed time­line for absen­tee bal­lots to be sent in, but struck down Conley’s waiv­er of the need for a wit­ness sig­na­ture on absen­tee bal­lots.

Per the Wis­con­sin Elec­tions Com­mis­sion, even vot­ers who sent in absen­tee bal­lots with­out a wit­ness sig­na­ture while Conley’s order stood will cur­rent­ly not see their bal­lots count­ed. To cor­rect the bal­lot, they must either haul a wit­ness to the clerk’s office or polling place on the day of the elec­tion, or get the bal­lot mailed back and add the miss­ing infor­ma­tion.

On top of the leg­isla­tive and legal chaos, it is not clear that the state is any­where near logis­ti­cal­ly equipped to deal with exe­cut­ing the elec­tion amid the out­break.

Accord­ing to the Wis­con­sin Elec­tions Com­mis­sion, 60 per­cent of the state’s munic­i­pal­i­ties report a short­age in poll work­ers. Over 100 juris­dic­tions are cat­e­go­rized as hav­ing “crit­i­cal” short­ages, or lack­ing the per­son­nel to staff even one polling place.

And that’s just antic­i­pat­ed absences – in a let­ter to the mem­bers of the Com­mis­sion, admin­is­tra­tor Mea­gan Wolfe cit­ed an addi­tion­al con­cern about fur­ther, unex­pect­ed absences from elec­tion work­ers who are either ill or in fear of becom­ing so.

That scarci­ty is lead­ing to “con­sol­i­da­tion” of polling places, espe­cial­ly in the larg­er munic­i­pal­i­ties. Per the Mil­wau­kee Jour­nal Sen­tinel, this means that Mil­wau­kee will have 10 to 12 polling places on elec­tion day — down from its usu­al 180.

At the same time, elec­tion work­ers are being drowned in an avalanche of absen­tee bal­lots. As of Mon­day, 1,275,154 absen­tee bal­lots had been request­ed — more than the total num­ber of votes cast, in-per­son and absen­tee, in the 2016 Demo­c­ra­t­ic pri­ma­ry.

...

———-

“Wis­con­sin Gov. Throws Hail Mary To Delay In-Per­son Vot­ing For Tues­day Elec­tions” by Kate Riga; Talk­ing Points Memo; 04/06/2020

“Evers’ long shot exec­u­tive order is just the last in a chaot­ic flur­ry of attempts to delay the pri­ma­ry, as Wis­con­sin was left with the unen­vi­able dis­tinc­tion of being the last hold­out state plow­ing ahead with in-per­son vot­ing in the month of April.”

The last state still hold­ing elec­tions in April. Thanks to the state GOP, of course. Every oth­er state pub­lic the pub­lic’s health ahead of par­ti­san con­cerns. But not Wis­con­sin’s GOP. That state Supreme Court seat is more pre­cious the pub­lic health and any­thing that sup­press­es turnout helps the GOP. Espe­cial­ly a viral hyper-infec­tious pan­dem­ic:

...
Democ­rats’ last-ditch attempts to delay the elec­tion, joined by Evers after his pre­vi­ous oppo­si­tion to push­ing back the date, were stymied this week­end by the Repub­li­can leg­is­la­ture.

After his change of heart, Evers signed an exec­u­tive order forc­ing the leg­is­la­ture to hold a spe­cial ses­sion last Sat­ur­day to hash out push­ing back the elec­tion. Rep. Tyler August ® opened and adjourned the ses­sion in 17 sec­onds, refus­ing to take any action.

The GOP’s resis­tance is like­ly relat­ed to a desire to keep turnout low for a cru­cial state supreme court race slat­ed for Tues­day. Repub­li­cans think low­er turnout ben­e­fits their can­di­date, incum­bent Jus­tice Daniel Kel­ly, who’s try­ing to fend off lib­er­al chal­lenger Jill Karof­sky for a 10-year term on the bench.
...

And note that, while Gov­er­nor Evers had also ini­tial­ly resist­ed push­ing back the elec­tion, that was in part because it was always clear he was going to need the GOP’s sup­port on that and it was always obvi­ous the GOP was­n’t going to allow that to hap­pen. So when Evers called that spe­cial ses­sion over the week­end in that last-minute gam­bit it was kind of like a hail mary for GOP decen­cy. A hail mary that com­plete­ly failed:

...
Evers had ini­tial­ly balked at the idea of mov­ing the pres­i­den­tial pri­ma­ry, which is also the day of major state and local gen­er­al elec­tions. Some of those terms were slat­ed to begin April 20. In his exec­u­tive order, Evers grant­ed an exten­sion to the cur­rent office­hold­ers to con­tin­ue serv­ing until the new elec­tions take place.

Evers was also opposed to the delay because he may need leg­isla­tive sup­port to make it hap­pen, a flat-out non­starter with the Repub­li­can-major­i­ty cham­bers. He reversed his posi­tion in recent days after hear­ing from local offi­cials, call­ing the elec­tion a “very unnec­es­sary health risk.”
...

And note how the pre­dictable severe poll work­er short­age result­ed in major met­ro­pol­i­tan areas dra­mat­i­cal­ly con­sol­i­dat­ing the num­ber of vot­ing loca­tions, thus ensure any­one infect­ed with COVID-19 who vot­ed on elec­tion day would be allowed to spread the virus to a larg­er num­ber of peo­ple from far­ther away. It real­ly is like the GOP is try­ing to max­i­mize the spread of the dis­ease. Specif­i­cal­ly in big cities like Mil­wau­kee where the 180 polling loca­tions got con­sol­i­dat­ed down to around 10:

...
Accord­ing to the Wis­con­sin Elec­tions Com­mis­sion, 60 per­cent of the state’s munic­i­pal­i­ties report a short­age in poll work­ers. Over 100 juris­dic­tions are cat­e­go­rized as hav­ing “crit­i­cal” short­ages, or lack­ing the per­son­nel to staff even one polling place.

And that’s just antic­i­pat­ed absences – in a let­ter to the mem­bers of the Com­mis­sion, admin­is­tra­tor Mea­gan Wolfe cit­ed an addi­tion­al con­cern about fur­ther, unex­pect­ed absences from elec­tion work­ers who are either ill or in fear of becom­ing so.

That scarci­ty is lead­ing to “con­sol­i­da­tion” of polling places, espe­cial­ly in the larg­er munic­i­pal­i­ties. Per the Mil­wau­kee Jour­nal Sen­tinel, this means that Mil­wau­kee will have 10 to 12 polling places on elec­tion day — down from its usu­al 180.
...

Then there’s the par­al­lel fight that was tak­ing place in the courts. When a dis­trict court of Wis­con­sin judge ruled that the absen­tee bal­lots dead­line could be extend­ed to April 13 and waived the need for a wit­ness sig­na­ture the GOP imme­di­ate­ly appealed and won a rul­ing in the 7th Cir­cuit Court of Appeals that rein­stat­ed the wit­ness sig­na­ture require­ment, poten­tial­ly inval­i­dat­ing any bal­lots cast with­out that sig­na­ture:

...
Mean­while, out­side of the leg­is­la­ture, par­al­lel bat­tles have been play­ing out in the courts.

On Thurs­day, Judge William Con­ley of the west­ern dis­trict court of Wis­con­sin wrote in a bit­ing deci­sion that he did not have the author­i­ty to delay the elec­tion, but extend­ed the dead­line for absen­tee vot­ing to April 13 and waived the need for a wit­ness’ sig­na­ture.

...

Wis­con­sin Repub­li­cans imme­di­ate­ly appealed Conley’s deci­sions, send­ing the case to an appeals court.

On Fri­day, the 7th Cir­cuit Court of Appeals split the baby: it upheld the extend­ed time­line for absen­tee bal­lots to be sent in, but struck down Conley’s waiv­er of the need for a wit­ness sig­na­ture on absen­tee bal­lots.

Per the Wis­con­sin Elec­tions Com­mis­sion, even vot­ers who sent in absen­tee bal­lots with­out a wit­ness sig­na­ture while Conley’s order stood will cur­rent­ly not see their bal­lots count­ed. To cor­rect the bal­lot, they must either haul a wit­ness to the clerk’s office or polling place on the day of the elec­tion, or get the bal­lot mailed back and add the miss­ing infor­ma­tion.
...

So that’s just all around awful. As we should have expect­ed giv­en both the grav­i­ty of the sit­u­a­tion and the fact that the GOP’s coop­er­a­tion was required to make it non-awful. But as the fol­low­ing arti­cle makes clear, this was­n’t just a Wis­con­sin GOP effort in awful­ness. The con­ser­v­a­tive major­i­ty on the US Supreme Court did­n’t miss its oppor­tu­ni­ty to be absolute­ly hor­ren­dous when it fol­lowed up on that Appeals Court rul­ing and decid­ed to get rid of the April 13th absen­tee bal­lot exten­sion too, thus ensur­ing a max­i­mal in-per­son vote for elec­tion day and max­i­mal in-per­son germ swap­ping:

CNBC

US Supreme Court sides with GOP in Wis­con­sin: Absen­tee bal­lots must be sent by Tues­day

Tuck­er Hig­gins
Pub­lished Mon, Apr 6 2020 8:42 PM EDT Updat­ed 3 hours ago

* The Supreme Court vot­ed 5–4 on Mon­day to reverse an order extend­ing the absen­tee bal­lot dead­line for vot­ing in the Wis­con­sin elec­tions sched­uled for Tues­day, step­ping into a back-and-forth between Democ­rats and Repub­li­cans in the state over when vot­ing would take place.
* Gov. Tony Evers, a Demo­c­rat, signed an exec­u­tive order sus­pend­ing in-per­son vot­ing in the state ear­li­er on Mon­day after try­ing and fail­ing to con­vince the GOP-dom­i­nat­ed state leg­is­la­ture to post­pone elec­tions until May. His order was blocked by the Wis­con­sin Supreme Court in the evening.
* The top court, in an unsigned opin­ion from which the four lib­er­al jus­tices dis­sent­ed, rea­soned that extend­ing the date by which vot­ers could mail absen­tee bal­lots “fun­da­men­tal­ly alters the nature of the elec­tion.”

The Supreme Court vot­ed 5–4 on Mon­day to reverse an order extend­ing the absen­tee bal­lot dead­line for vot­ing in the Wis­con­sin elec­tions sched­uled for Tues­day, step­ping into a back-and-forth between Democ­rats and Repub­li­cans in the state over when vot­ing would take place.

Gov. Tony Evers, a Demo­c­rat, signed an exec­u­tive order sus­pend­ing in-per­son vot­ing in the state ear­li­er on Mon­day after try­ing and fail­ing to con­vince the GOP-dom­i­nat­ed state leg­is­la­ture to post­pone elec­tions until May. His order was blocked by the Wis­con­sin Supreme Court in the evening.

The Supreme Court, which was con­sid­er­ing a case brought before Evers issued his exec­u­tive order, was not con­sid­er­ing whether vot­ing would take place on Tues­day, but only whether to keep in place an order that extend­ed the dead­line for absen­tee bal­lots to be post­marked.

In an unsigned order from which the court’s four lib­er­al jus­tices dis­sent­ed, the court did away with the exten­sion.

The top court’s five Repub­li­can-appointees, none of whom attached their name to the court’s order, rea­soned that extend­ing the date by which vot­ers could mail absen­tee bal­lots “fun­da­men­tal­ly alters the nature of the elec­tion.”

“Wis­con­sin has decid­ed to pro­ceed with the elec­tions sched­uled for Tues­day, April 7. The wis­dom of that deci­sion is not the ques­tion before the Court,” the order reads. “The ques­tion before the Court is a nar­row, tech­ni­cal ques­tion about the absen­tee bal­lot process.”

...

Democ­rats and vot­ing rights groups had gone to court to push for an extend­ed dead­line, warn­ing that coro­n­avirus fears could keep vot­ers from the polls. On Fri­day, a fed­er­al appeals court upheld a one-week exten­sion for absen­tee bal­lots.

Repub­li­cans asked the Supreme Court to halt that order, issued by the 7th U.S. Cir­cuit Court of Appeals.

“A last-minute change to a vot­er dead­line car­ries an increased risk that vot­ers will not appre­ci­ate when votes actu­al­ly must be cast,” Patrick Straw­bridge, the attor­ney for the Repub­li­cans, warned in a fil­ing with the top court. Straw­bridge wrote the Supreme Court should “main­tain the sta­tus quo of state elec­tion laws.”

In response, Democ­rats said that Repub­li­cans were ignor­ing the health risks posed by coro­n­avirus, which has sick­ened more than 2,000 in the state, accord­ing to data from local health author­i­ties.

“The ‘elec­toral sta­tus quo’ already has been upend­ed — not by any judi­cial order, but by the COVID-19 pan­dem­ic and the ‘vot­er con­fu­sion and elec­toral chaos’ it is caus­ing,” wrote Marc Elias, an attor­ney for the Democ­rats, in a brief sub­mit­ted to the court.

“Until very recent­ly, Wis­con­sin vot­ers rea­son­ably expect­ed they would be able either to vote safe­ly in per­son on elec­tion day or through a reli­able, well-func­tion­ing absen­tee bal­lot sys­tem,” Elias wrote. “Now they can­not — and not because of any court order, but because of the pan­dem­ic.”

The order from the Supreme Court puts a heavy empha­sis on the fact that the date for the bal­lots to be post­marked — not just received by elec­tions offi­cials — had been extend­ed. That rem­e­dy went beyond what Democ­rats had even sought, the court wrote.

“By chang­ing the elec­tion rules so close to the elec­tion date and by afford­ing relief that the plain­tiffs them­selves did not ask for in their pre­lim­i­nary injunc­tion motions, the Dis­trict Court con­tra­vened this Court’s prece­dents and erred by order­ing such relief,” the Supreme Court wrote.

“This Court has repeat­ed­ly empha­sized that low­er fed­er­al courts should ordi­nar­i­ly not alter the elec­tion rules on the eve of an elec­tion,” the order reads.

Jus­tice Ruth Bad­er Gins­burg called the majority’s deci­sion “ill advised” in a dis­sent joined by Jus­tices Sonia Sotomay­or, Stephen Brey­er and Ele­na Kagan.

“While I do not doubt the good faith of my col­leagues, the Court’s order, I fear, will result in mas­sive dis­en­fran­chise­ment,” Gins­burg wrote. “A vot­er can­not deliv­er for post­mark­ing a bal­lot she has not received. Yet tens of thou­sands of vot­ers who time­ly request­ed bal­lots are unlike­ly to receive them by April 7, the Court’s post­mark dead­line.”

Wis­con­sin remains under a shel­ter-in-place order, signed by Evers, and fed­er­al offi­cials have urged Amer­i­cans not to gath­er in groups of 10 or more until the end of April.

A dozen states and Puer­to Rico, a ter­ri­to­ry, have post­poned elec­tions since the coro­n­avirus pan­dem­ic erupt­ed in the Unit­ed States. The Supreme Court itself has post­poned argu­ments sched­uled for its March and April ses­sions because of health con­cerns relat­ed to the virus.

————

“US Supreme Court sides with GOP in Wis­con­sin: Absen­tee bal­lots must be sent by Tues­day” by Tuck­er Hig­gins; CNBC; 04/06/2020

“The top court’s five Repub­li­can-appointees, none of whom attached their name to the court’s order, rea­soned that extend­ing the date by which vot­ers could mail absen­tee bal­lots “fun­da­men­tal­ly alters the nature of the elec­tion.””

Extend­ing the absen­tee bal­lot dead­line six days “fun­da­men­tal­ly alters the nature of the elec­tion.” That was the ‘rea­son­ing’ used by the right-wing major­i­ty. And yet forc­ing vot­ers to choose between risk­ing their life or not vot­ing does­n’t fun­da­men­tal­ly alter the elec­tion. It’s exact­ly the kind of non­sense rea­son­ing we should fear the most from the Robert­s’s Court because so many of the major his­toric deci­sions under Roberts — like Cit­i­zens Unit­ed or Rucho v Com­mon Cause — end up rely­ing are weird non­sense rea­son­ing that involves some sort of sweep­ing action based on dec­la­ra­tion of some sort of fun­da­men­tal moral clar­i­ty that relies on high­ly ten­u­ous rea­son­ing. Fun­da­men­tal­ly alter­ing the nature of the elec­tion is indeed a sig­nif­i­cant issue but it’s not at all clear why extend­ing the absen­tee bal­lot six days fun­da­men­tal­ly alters an elec­tion and the con­ser­v­a­tive major­i­ty does­n’t both­er try­ing to make it clear.

Instead, it sounds like they threw out the absen­tee bal­lot exten­sion based on a tech­ni­cal­i­ty. OR a cou­ple of tech­ni­cal­i­ties. One tech­ni­cal­i­ty is that when the Wis­con­sin dis­trict court extend­ed the dead­line it extend­ed it so that absen­tee bal­lots only need­ed to be post­marked by April 13th, not just received in the mail by that date. Bas­ing the dead­line on post­marks was an addi­tion­al ben­e­fit not request­ed by the plain­tiffs who orig­i­nal­ly brought — Democ­rats and vot­ing rights groups — and that meant the court was going beyond what the plain­tiffs asked for which appar­ent­ly real­ly irked the con­ser­v­a­tive jurists. So they had a prob­lem with that part of the rul­ing and a prob­lem with these changes hap­pen­ing at the last minute so close to the elec­tion. Their rul­ing chas­tised the dis­trict judge by remind­ing him that, the Supreme Court “has repeat­ed­ly empha­sized that low­er fed­er­al courts should ordi­nar­i­ly not alter the elec­tion rules on the eve of an elec­tion.” And while that’s a sound prin­ci­ple, it’s not like this is an ordi­nary sit­u­a­tion. But that’s the kind of thing that just kind of gets glossed over in the Roberts Court era, when strate­gi­cal­ly play­ing dumb and cov­er­ing it up with legal argle bar­gle is the ulti­mate pow­er play. That gets played over and over and just got played again:

...
The Supreme Court, which was con­sid­er­ing a case brought before Evers issued his exec­u­tive order, was not con­sid­er­ing whether vot­ing would take place on Tues­day, but only whether to keep in place an order that extend­ed the dead­line for absen­tee bal­lots to be post­marked.

In an unsigned order from which the court’s four lib­er­al jus­tices dis­sent­ed, the court did away with the exten­sion.

...

“Wis­con­sin has decid­ed to pro­ceed with the elec­tions sched­uled for Tues­day, April 7. The wis­dom of that deci­sion is not the ques­tion before the Court,” the order reads. “The ques­tion before the Court is a nar­row, tech­ni­cal ques­tion about the absen­tee bal­lot process.”

...

The order from the Supreme Court puts a heavy empha­sis on the fact that the date for the bal­lots to be post­marked — not just received by elec­tions offi­cials — had been extend­ed. That rem­e­dy went beyond what Democ­rats had even sought, the court wrote.

“By chang­ing the elec­tion rules so close to the elec­tion date and by afford­ing relief that the plain­tiffs them­selves did not ask for in their pre­lim­i­nary injunc­tion motions, the Dis­trict Court con­tra­vened this Court’s prece­dents and erred by order­ing such relief,” the Supreme Court wrote.

“This Court has repeat­ed­ly empha­sized that low­er fed­er­al courts should ordi­nar­i­ly not alter the elec­tion rules on the eve of an elec­tion,” the order reads.
...

And as Jus­tice Gins­burg point­ed out in her dis­sent, mas­sive dis­en­fran­chise­ment is going to take place as result of that rul­ing. Vot­ers who request­ed bal­lots at the last minute and had­n’t received them by Tues­day did­n’t get to vote. That’s a pre­dictable con­se­quence of the Supreme Court’s rul­ing that was being jus­ti­fied on a pair of tech­ni­cal­i­ties. Mas­sive dis­en­fran­chise­ment:

...
Jus­tice Ruth Bad­er Gins­burg called the majority’s deci­sion “ill advised” in a dis­sent joined by Jus­tices Sonia Sotomay­or, Stephen Brey­er and Ele­na Kagan.

“While I do not doubt the good faith of my col­leagues, the Court’s order, I fear, will result in mas­sive dis­en­fran­chise­ment,” Gins­burg wrote. “A vot­er can­not deliv­er for post­mark­ing a bal­lot she has not received. Yet tens of thou­sands of vot­ers who time­ly request­ed bal­lots are unlike­ly to receive them by April 7, the Court’s post­mark dead­line.”
...

Because that how the Roberts Court rolls. Find­ing lit­tle legal tech­ni­cal­i­ties that — when com­bined with play­ing dumb — can be used as excus­es for accom­plish­ing key right-wing objec­tives. Maybe those objec­tive include flood­ing the US polit­i­cal sys­tem with unlim­it­ed cash or allow­ing hyper-par­ti­san ger­ry­man­der­ing of dis­tricts (which requires GOP con­trol of state Supreme Courts). Or maybe it’s the object of sup­press­ing the vote. Though any means nec­es­sary appar­ent­ly. Forc­ing the vote in the mid­dle of pan­dem­ic. That’s one of those “wow, that’s bad even for the GOP” moves. And it was just endorsed up and down the par­ty. From the entire Wis­con­sin GOP up to the Supreme Court. That’s the sig­nal that was just sent by the Roberts Court. COVID-19 is a per­fect­ly accept­able method of vot­er sup­pres­sion. Just ensure the pan­dem­ic is still bub­bling right before the elec­tion. Prefer­ably in the big cities. Maybe like a sec­ond COVID wave that hits just the big cities in swing states. Demand­ing that in-per­son vot­ing take place on elec­tion day in the midst of COVID-20 out­break will be total­ly fine as far as the Supreme Court goes. The in-per­son vot­ing can even be held in con­sol­i­dat­ed num­bers of polling sta­tions due to work­er short­ages and ill­ness­es that ensure lots of peo­ple from all over the area all con­gre­gate in extra long lines to swap the virus before head­ing home. That fine. Turn­ing the elec­tion into a game of patri­ot­ic COVID-Roulette does­n’t fun­da­men­tal­ly alter the elec­tion in the eyes of the Roberts Court’s con­ser­v­a­tive major­i­ty. Plague elec­tions are all fine. Just don’t try to address the plague elec­tion too close to elec­tion day.

It’s also worth keep­ing in mind that any­one who vot­ed in Wis­con­sin in-per­son is some­one who is extreme­ly like­ly to vote in the fall. These are not casu­al vot­ers. So if any of them caught COVID dur­ing the in-per­son vot­ing and end up dying that’s a sure-fire vot­er in the Novem­ber elec­tion who just died. So if Tues­day’s elec­tion in Wis­con­sin end­ed up selec­tive­ly being more like­ly to result in Demo­c­ra­t­ic vot­er infec­tions than Repub­li­can vot­er elec­tions that’s going to rep­re­sent a form of real GOP vot­er sup­pres­sion. Vot­er sup­pres­sion in the form of selec­tive­ly killing off more Demo­c­ra­t­ic vot­ers than Repub­li­can vot­ers.

And we can’t say the GOP would nev­er do such a thing. They just did it. That’s what the forc­ing all of the vot­ing in places like Mil­wau­kee down to a hand­ful of “con­sol­i­dat­ed” cen­ters just did. That ensures mass selec­tive infec­tion of Demo­c­ra­t­ic vot­ers. Wis­con­sin’s hard core Demo­c­ra­t­ic strong­holds were just forced to hold their elec­tion in a hand­ful of giant viral incu­ba­tors. That just hap­pened and it did­n’t hap­pen in Repub­li­can strong­holds. Are we to believe the GOP did­n’t noticed this for­tu­itous asym­me­try? Of course not. The Wis­con­sin GOP must be gid­dy with them­selves. They just become a nation­al mod­el. Lit­er­al­ly killing off Demo­c­ra­t­ic vot­ers. And Repub­li­can vot­ers. But more Democ­rats. Poten­tial­ly way more Democ­rats if there’s exten­sive COVID spread­ing at one of the con­sol­i­dat­ed urban vot­ing cen­ters. The GOP is going to be doing this every­where. How many of the states that post­poned their elec­tion for like June or July are going to be still fac­ing a pan­dem­ic when the resched­uled date approach­es? And how many of those states will find their GOP demand­ing in-per­son vot­ing and resist­ing absen­tee vot­ing despite the pub­lic health risk? We’ll see. But now that the Robert­s’s Court gave its bless­ing on this there’s no way Wis­con­sin’s death pri­ma­ry is the last time we hear about the GOP demand­ing that a state hold its elec­tion in the mid­dle of a pan­dem­ic. It’s the ulti­mate vot­er sup­pres­sion and it culls the elder­ly. Espe­cial­ly elder­ly minori­ties. There’s no way the GOP can resist this. Wis­con­sin’s plague elec­tion was a show­case of what’s pos­si­ble as long as every­one works togeth­er at play­ing dan­ger­ous­ly dumb. From state offi­cials to the Wis­con­sin Supreme Court up to the Chief Jus­tice of the US Supreme Court. Plague elec­tions don’t hap­pen on their own. It takes a real­ly cor­rupt par­ty with its grip on almost all of the pow­er.

It’s been a cou­ple weeks since Pres­i­dent Trump made his now noto­ri­ous call for the lift­ing of the COVID-19 shel­ter-in-place order by East­er Sun­day. It was the kind of Trumpian form of ‘lead­er­ship’ that the US’s top infec­tious dis­ease expert Antho­ny Fau­ci was forced to quick­ly dis­miss as an “aspi­ra­tional pro­jec­tion”, a char­ac­ter­i­za­tion now shared by Trump as we’re at East­er Sun­day eve with no end of the shel­ter-in-place orders in site.

That ques­tion of when the US might “reopen” and lift the grow­ing num­ber of shel­ter-in-place orders has been a key ques­tion from the very begin­ning giv­en the extreme eco­nom­ic hard­ship and social dis­lo­ca­tion cre­at­ed by the poli­cies. Just a month ago it would have been unthink­able that this sit­u­a­tion would like­ly remain in place through June or July. And yet here we are with the gov­er­nor of Vir­ginia already issu­ing a stay-at-home order that’s going to be in effect through June 10th. The reopen­ing date just keeps get­ting pushed back to a more inde­ter­mi­nate “not now, maybe lat­er” sta­tus as the scope of the pan­dem­ic grows. Thanks to the Trump admin­is­tra­tion’s ongo­ing bungling of the COVID-19 mass test­ing that’s going to under­stand the basic nature of this virus we still have no idea how long the pre­vail­ing shel­ter-in-place sta­tus is going to in force because we still have no real idea of how rapid­ly the SARS-CoV­‑2 virus is sweep­ing through the pop­u­lace and build­ing up that ‘herd immu­ni­ty’ thresh­old of expo­sure. Is this virus only slow­ly rolling through the US or is there a qui­et epi­dem­ic of mild or asymp­to­matic cas­es. We still don’t know. And that rais­es the ques­tion: so is “reopen­ing” the US in time for the Novem­ber elec­tions now an “aspi­ra­tional” goal? Some­thing they maybe could hap­pen but real­ly we prob­a­bly should­n’t assume will hap­pen?

It’s an increas­ing­ly omi­nous ques­tion now that mail-in vot­ing restric­tions have become the lat­est GOP vot­er-sup­pres­sion dirty trick. As we saw with the recent elec­tion in Wis­con­sin, the GOP is more than will­ing to play the twist­ed game of doing every­thing they could to restrict mail-in vot­ing and forc­ing in-per­son vot­ing. Even in areas where shel­ter-in-place orders are in effect and there’s such a mas­sive short­age of poll work­ers that tha the vot­ing cen­ters need­ed to be con­sol­i­dat­ed into a a hand­ful of super-vot­ing cen­ters in urban areas. And the con­ser­v­a­tive major­i­ty on the Supreme Court is more than hap­py to endorse this and legal­ly back up this strat­e­gy. We now know beyond a shad­ow of a doubt that the GOP will hap­pi­ly exploit the coro­n­avirus threat to pub­lic health pan­dem­ic as a vot­er sup­pres­sion tech­nique because we just saw them do it.

So with that ques­tion of whether or not it’s going to be safe to vote in-per­son dur­ing the Novem­ber elec­tion omi­nous­ly in mind, here’s an arti­cle about an answer recent­ly giv­en by Antho­ny Fau­ci dur­ing an inter­view when he asked about the prospects of reopen­ing the US by Novem­ber. Fau­ci’s answer? “I would hope that by Novem­ber we would have things under such con­trol that we could have a real degree of nor­mal­i­ty.” Whether or not a “real degree of nor­mal­i­ty” includes in-per­son vot­ing is a mat­ter or inter­pre­ta­tion. But it sounds like he’s con­fi­dent, but not super con­fi­dent, that there will at least be a par­tial reopen­ing of the US by then. In oth­er words, in-per­son vot­ing in Novem­ber with­out the cloud of a pub­lic health threat is, at this point, kind of aspi­ra­tional:

Busi­ness Insid­er

Dr. Fau­ci hopes Amer­i­ca could return to some ‘degree of nor­mal­i­ty’ by Novem­ber pres­i­den­tial elec­tion

* After 16 states post­poned their pri­maries over coro­n­avirus con­cerns, many ques­tions have been raised about how the Novem­ber pres­i­den­tial elec­tion will be impact­ed.
* With most of the coun­try under var­i­ous stay-at-home orders, states have been strug­gling to bal­ance pub­lic health con­cerns with cit­i­zens’ abil­i­ty to vote.
* Dur­ing an MSNBC inter­view, Fau­ci declined to say whether Amer­i­cans would have to cast their bal­lots by mail but said he hopes that Amer­i­ca can return to some “degree of nor­mal­i­ty” by the fall.

Pauli­na Cachero
04/11/2020

The coro­n­avirus pan­dem­ic has large­ly been derailed 2020 pres­i­den­tial pri­ma­ry sea­son as most of the coun­try has been under vary­ing stay-at-home orders to help curb the virus’ spread.

With no clear end in sight to the pan­dem­ic, many ques­tions sur­round­ing the Novem­ber pres­i­den­tial elec­tions also remain unan­swered.

On MSNBC’s “The 11th Hour,” host Bri­an Williams tried to get answers from one of the coun­try’s lead­ing infec­tious dis­ease experts, Dr. Antho­ny Fau­ci, sur­round­ing the pos­si­bil­i­ty of Amer­i­cans hav­ing to cast their bal­lots this Novem­ber via mail.

“If you had your way – and I know Novem­ber to some peo­ple seems like a long time from now — would peo­ple in all 50 states have the right and abil­i­ty to vote by mail?” Williams asked Fau­ci in an inter­view Fri­day evening.

While declin­ing to com­ment about whether Amer­i­cans would be forced to vote by mail over the coro­n­avirus, not­ing that it was not his “area of exper­tise,” Fau­ci said he hoped that the US coro­n­avirus efforts would be effec­tive enough to have “degree of nor­mal­i­ty” by the time the pres­i­den­tial elec­tion rolled around.

“I would hope that by Novem­ber we would have things under such con­trol that we could have a real degree of nor­mal­i­ty,” Fau­ci answered.

The US has become a hotspot for the pan­dem­ic with over 501,000 con­firmed cas­es and over 18,000 deaths, accord­ing to data col­lect­ed by John Hop­kins. With most states under var­i­ous stay-at-home orders, the coro­n­avirus pan­dem­ic has cre­at­ed unprece­dent­ed issues with one of the US’ core pil­lars of democ­ra­cy — cit­i­zens’ abil­i­ty to elect a pres­i­dent.

...

So far, 16 states have post­poned their pri­maries as part of wide­spread lock­down mea­sures to help curb the spread of the coro­n­avirus, the New York Times report­ed. Even the Demo­c­ra­t­ic Nation­al Con­ven­tion was post­poned to August over fears of the thou­sands expect­ed to attend the qua­dren­ni­al gath­er­ing in July in which the Demo­c­ra­t­ic par­ty choos­es its pres­i­den­tial nom­i­nee.

Any attempts in this elec­tion cycle at pro­ceed­ing as sched­uled so far have come under fire.

Wis­con­sin held their pri­maries as sched­uled on Tues­day after a heat­ed face-off between state democ­rats and repub­li­cans, ask­ing thou­sands of res­i­dents to vio­late a stay-at-home order to cast their bal­lots.

Democ­rats attempt­ed to extend absen­tee bal­lots and move the pri­maries, how­ev­er, the US Supreme Court late Mon­day over­turned a low­er court rul­ing that allowed absen­tee bal­lots to be sent in late.

The deci­sion result­ed in long lines and crowd­ed polling places were seen Tues­day despite state-ordered social dis­tanc­ing and drew con­dem­na­tion from House Speak­er Nan­cy Pelosi.

“Peo­ple should not have to decide whether they can vote or be sick. That’s just not a good choice for any­one in a democ­ra­cy,” Pelosi told MSNBC’s Rachel Mad­dow.

How the Novem­ber pres­i­den­tial elec­tion will take place will depend on whether the US’ coro­n­avirus efforts will be suc­cess­ful enough to get the coro­n­avirus under con­trol. How­ev­er, the suc­cess of cur­rent efforts will con­tin­ue to be dif­fi­cult to eval­u­ate due in part to the coun­try’s lag­ging test­ing for the virus.

On the “The 11th Hour” Fau­ci said that test­ing to deter­mine how many peo­ple have been exposed, infect­ed, and have recov­ered from COVID-19 is part of a “mul­ti-faceted way of the things you might need to come back and make a grad­ual return to nor­mal­i­ty.”

Although Fau­ci declined to answer whether Amer­i­cans would be forced to vote by mail come Novem­ber, he said that the coun­try could slow­ly begin to get back to nor­mal before then.

“We’re not going to have test­ing for every­one in the coun­try tomor­row – it’s a grad­ual process,” Fau­ci told Williams. “But you can start to think about some aspect of get­ting back to nor­mal with­out test­ing every­body in the coun­try, that’s for sure.”

———–

“Dr. Fau­ci hopes Amer­i­ca could return to some ‘degree of nor­mal­i­ty’ by Novem­ber pres­i­den­tial elec­tion” by Pauli­na Cachero; Busi­ness Insid­er; 04/11/2020

““If you had your way – and I know Novem­ber to some peo­ple seems like a long time from now — would peo­ple in all 50 states have the right and abil­i­ty to vote by mail?” Williams asked Fau­ci in an inter­view Fri­day evening.”

“If you had your way ... would peo­ple in all 50 states have the right and abil­i­ty to vote by mail?” That was the ques­tion posed by Bri­an Williams to Antho­ny Fau­ci, which is an indi­rect way of ask­ing Fau­ci how con­fi­dent he is that the stay-at-home orders will be lift­ed across the US by then. And Fau­ci respond­ed with a strate­gic state­ment about hop­ing that we would have a degree of nor­mal­i­ty by Novem­ber:

...
While declin­ing to com­ment about whether Amer­i­cans would be forced to vote by mail over the coro­n­avirus, not­ing that it was not his “area of exper­tise,” Fau­ci said he hoped that the US coro­n­avirus efforts would be effec­tive enough to have “degree of nor­mal­i­ty” by the time the pres­i­den­tial elec­tion rolled around.

“I would hope that by Novem­ber we would have things under such con­trol that we could have a real degree of nor­mal­i­ty,” Fau­ci answered.
...

That was cer­tain­ly an aspi­ra­tional answer by Fau­ci. Yes, it hint­ed at some sort of con­fi­dence that things would improve by Novem­ber but it was still vague­ly word­ed enough to leave it very unclear how con­fi­dent Fau­ci is that in-per­son vot­ing will be wide­ly safe by Novem­ber. If you watch the video of the inter­view, Fau­ci does­n’t exact­ly exude extreme con­fi­dence when he makes that state­ment. It real­ly does sound large­ly aspi­ra­tional.

And that’s going to be a cru­cial fact for the US to keep in mind as elec­tion day creeps clos­er and clos­er and the push to pro­vide a mail-in back­up option descends into a par­ti­san fight and the lat­est GOP vot­er-sup­pres­sion dirty trick: Get­ting this coro­n­avirus under con­trol by Novem­ber to the point where in-per­son vot­ing is safe remains an aspi­ra­tional goal. We hope things will be under con­trol enough that there can be a return to a degree of nor­mal­i­ty. But that’s all it is at this point. Hope. The ques­tion is whether it’s a real­is­tic hope or a com­plete­ly unre­al­is­tic hope like reopen­ing every­thing by East­er. But either way, it’s still just hope. There’s no guar­an­tee at all that the pan­dem­ic will be under con­trol by Novem­ber, espe­cial­ly with the Trump admin­is­tra­tion lead­ing the response. The only real­is­tic way to guar­an­tee a viable elec­tion in Novem­ber is to make the prepa­ra­tions now to ensure mail-in bal­lot access to every­one, some­thing Trump and the GOP are com­plete­ly oppos­ing. So as we can see, a viable elec­tion in Novem­ber large­ly aspi­ra­tional at this point. Hope­ful­ly it goes bet­ter than Trump’s East­er wish.

Oh isn’t that classy: Jus­tice Daniel Kel­ly — the Wis­con­sin Supreme Court con­ser­v­a­tive judge who was fac­ing elec­tion dur­ing Wis­con­sin’s bizarre and dan­ger­ous spe­cial elec­tion last Tues­day in the mid­dle of a viral pan­dem­ic — thank­ful­ly lost his reelec­tion bid to pro­gres­sive chal­lenger Jill Karof­sky. Kel­ly was the favorite going into the race so Karof­sky’s 55% to 45% win was a sur­pris­ing­ly large mar­gin of vic­to­ry. And while the GOP would like to spin the loss as being reflec­tive of the fact that Bernie Sanders was still on the bal­lot in the Wis­con­sin Demo­c­ra­t­ic pres­i­den­tial pri­ma­ry that was also tak­ing place that day, that pri­ma­ry was already a fore­gone con­clu­sion by last Tues­day. Bernie on the bal­lot was no longer going to be a big draw. But the GOP forc­ing peo­ple to vote in per­son on elec­tion day in the mid­dle of a pan­dem­ic while block­ing all mail-in vot­ing as much as pos­si­ble appeared to be a pret­ty good draw for the Democ­rats, which is the exact oppo­site of the what the GOP hoped would hap­pen. It was a glim­mer of hope in the face of the GOP’s dom­i­na­tion of Wis­con­sin’s pol­i­tics. And a glim­mer of hope in the face of the GOP’s mas­tery of dirty tricks. This was a das­tard­ly GOP dirty trick that back­fired. That Wis­con­sin Supreme Court seat was the pri­ma­ry rea­son the GOP was so will­ing to risk look­ing like psy­chos who were will­ing to sup­press Demo­c­ra­t­ic vot­ers by turn­ing vot­ing into a pub­lic health threat in big cities.

But as the fol­low­ing arti­cle describes, Jus­tice Kel­ly’s loss does­n’t mean he’s done sup­press­ing the vote. It turns out there was a law­suit brought by a right-wing out­fit to purge the Wis­con­sin vot­er roles that had made its way up to the Supreme Court in Decem­ber that Judge Kel­ly recused him­self from because it the case could have affect­ed his own elec­tion that just took place. But the Wis­con­sin Supreme Court nev­er ruled on that case and now the elec­tion is over with a small win­dow for Jus­tice Kel­ly to rule before Jill Karof­sky takes over. And Kel­ly just told every­one his intent on rul­ing on that case. A case that would result in the purge of more than 200,000 vot­ers imme­di­ate­ly.

The law­suit case start­ed off with a vot­er roll purge by the Wis­con­sin Elec­tions Com­mis­sion, which noti­fied the vot­ers to ask if they’d changed address­es. Those who failed to respond would be removed from the rolls in 2021. Yep. If you did­n’t respond to a “did you change your address” query, you were dropped from the vot­er rolls in 2021. It’s a stan­dard GOP ploy, but at least it would­n’t impact the 2020 elec­tion. So of course a right-wing group called the Wis­con­sin Insti­tute for Law & Lib­er­ty sued, argu­ing that the purge should take place imme­di­ate­ly. Not 2021. So even this spe­cial elec­tion that took place last Tues­day would have had the peo­ple who did­n’t respond to that “did you move?” post­card purged from the vot­er rolls, which is why Jus­tice Kel­ly need­ed to recuse him­self. The court was split 3–3 with­out Kel­ly so he’s clear­ly going to vote in favor of the con­ser­v­a­tives and the purg­ing of 200,000 vot­ers imme­di­ate­ly. As the arti­cle notes, Don­ald Trump won Wis­con­sin in 2016 by 23,000 votes. A purge of 200,000 is a real­ly big deal for a state as close­ly divid­ed as Wis­con­sin. So after los­ing an elec­tion he was sup­posed to win via dirty pan­dem­ic pol­i­tics, Jus­tice Kel­ly final judi­cial act on his way out is an out­ra­geous vot­er purge law­suit. Classy. Clas­sic GOP Classy:

Talk­ing Points Memo

Wis­con­sin Supreme Court Jus­tice Sig­nals He’ll Par­tic­i­pate In Vot­ing Case After Los­ing Elec­tion

By Kate Riga
April 16, 2020 2:24 p.m.

Jus­tice Daniel Kel­ly, who lost his Wis­con­sin Supreme Court seat to lib­er­al Jill Karof­sky in the con­tro­ver­sial April 7 elec­tion, is angling to rejoin a case that might end in a mass vot­er purge before vacat­ing his seat in August.

Kel­ly pre­vi­ous­ly recused him­self from the case because it could’ve had some bear­ing on who vot­ed in an elec­tion in which he was on the bal­lot. Since that elec­tion has now passed, he said in a Wednes­day order, he sees no rea­son for his fur­ther lack of par­tic­i­pa­tion.

“The 2020 spring gen­er­al elec­tion is now com­plete, so it appears the rea­son for my recusal from con­sid­er­ing any aspect of this mat­ter no longer obtains,” he wrote. “I issue this order to give the par­ties an oppor­tu­ni­ty to state their posi­tion on whether I should recuse myself from con­sid­er­ing the pend­ing peti­tion for review and, poten­tial­ly, the mer­its of these con­sol­i­dat­ed appeals, before I make a final deci­sion on my par­tic­i­pa­tion.”

He gave the involved par­ties until April 22 to voice their opin­ions on his par­tic­i­pa­tion.

...

“Last week, Wis­con­sinites deliv­ered a resound­ing mes­sage that they are sick of Jus­tices who ignore the law to vote in lock­step with their spe­cial inter­est friends,” Sam Roeck­er, a spokesman for Karof­sky, told TPM in a state­ment. “We hope that Jus­tice Kel­ly has final­ly learned that les­son.”

Kel­ly telegraphed that he’d be open to rejoin­ing the case even before the elec­tion, earn­ing a jab from Karof­sky who called the move “cor­rup­tion in its purest form.”

“(He’s) basi­cal­ly say­ing, ‘Look, I’ll be there for you (to Repub­li­cans) — get me across the fin­ish line on April 7 and I’ll be there for you come Novem­ber,” she added then, per the Mil­wau­kee Jour­nal Sen­tinel.

The cur­rent com­po­si­tion of the court is five con­ser­v­a­tives to two lib­er­als, and the vot­er purge case will like­ly be decid­ed before Karof­sky takes her seat. When Kel­ly recused him­self from the case in Decem­ber, the remain­ing jus­tices split three-three on whether to take up the case before an appeals court ruled on it.

The case could ulti­mate­ly decide if more than 200,000 vot­ers stay on the vot­ing rolls for the elec­tion in Novem­ber.

The fight start­ed in Octo­ber when the Wis­con­sin Elec­tions Com­mis­sion noti­fied the vot­ers to ask if they’d changed address­es. Those who failed to respond would be removed from the rolls in 2021.

The con­ser­v­a­tive Wis­con­sin Insti­tute for Law & Lib­er­ty filed a law­suit demand­ing that the non­re­spon­sive vot­ers be removed before the 2020 elec­tion. Ozau­kee Coun­ty Cir­cuit Judge Paul Mal­loy came down in favor of the Insti­tute for Law & Lib­er­ty, and held the dead­locked Com­mis­sion in con­tempt for not imme­di­ate­ly purg­ing the vot­ers.

Demo­c­ra­t­ic Attor­ney Gen­er­al Josh Kaul asked the Dis­trict 4 Court of Appeals in Madi­son to review the case after Malloy’s rul­ing. The appeals court froze the order, and a judge in a sep­a­rate order blocked the con­tempt rul­ing.

The case has been high­ly scru­ti­nized, for good rea­son: in 2016, Pres­i­dent Don­ald Trump won the state by few­er than 23,000 votes.

...

———–

“Wis­con­sin Supreme Court Jus­tice Sig­nals He’ll Par­tic­i­pate In Vot­ing Case After Los­ing Elec­tion” by Kate Riga; Talk­ing Points Memo; 04/16/2020

“The case could ulti­mate­ly decide if more than 200,000 vot­ers stay on the vot­ing rolls for the elec­tion in Novem­ber.”

200,000 vot­ers thrown off the rolls this Novem­ber. That’s what’s at stake. It did­n’t start off that way. Ini­tial­ly the Wis­con­sin Elec­tions Com­mis­sion declared it was going to purge more than 200,000 from the rolls (sim­ply for not respond­ing to a change of address inquiry form) in 2021. So if peo­ple vot­ed in 2020 they pre­sum­ably would be kept on the rolls in 2021. It was a pret­ty bad purge but not awful. Then the Wis­con­sin Insti­tute for Law & Lib­er­ty made it awful with the help of all the Wis­con­sin judges who have sup­port­ed their absurd con­tention that the vot­ing roll purge should take place imme­di­ate­ly. That purge egre­gious vot­er purge is what Jus­tice Kel­ly is about to final­ize after los­ing his dirty pan­dem­ic elec­tion:

...
The fight start­ed in Octo­ber when the Wis­con­sin Elec­tions Com­mis­sion noti­fied the vot­ers to ask if they’d changed address­es. Those who failed to respond would be removed from the rolls in 2021.

The con­ser­v­a­tive Wis­con­sin Insti­tute for Law & Lib­er­ty filed a law­suit demand­ing that the non­re­spon­sive vot­ers be removed before the 2020 elec­tion. Ozau­kee Coun­ty Cir­cuit Judge Paul Mal­loy came down in favor of the Insti­tute for Law & Lib­er­ty, and held the dead­locked Com­mis­sion in con­tempt for not imme­di­ate­ly purg­ing the vot­ers.
...

Yes, it looks like the Wis­con­sin GOP is going to get its purge despite los­ing the Supreme Court seat last weel. And they’ll still have a 4–3 major­i­ty on the court after Karof­sky takes over. That’s how deep the GOP’s grip on pow­er is in Wis­con­sin. Even when their dirty pan­dem­ic trick back­fires they still have a Supreme Court major­i­ty.

So we’ll see how soon that purge takes place, but it’s worth not­ing that there’s anoth­er spe­cial elec­tion com­ing up on May 12th and this whole coro­n­avirus elec­tion fias­co is poised to take place all over again. Except not quite. At this point it sounds like the May 12 elec­tion is still going to pro­ceed as planned. That’s accord­ing to the Demo­c­ra­t­ic gov­er­nor’s office.

So why is Gov­er­nor Evers, a Demo­c­rat, not look­ing at push­ing back the May 12 elec­tion after the fias­co of last week? Well, it’s for a rea­son that under­lines exact­ly why the GOP is going to be so inter­est­ed in forc­ing in-per­son vot­ing dur­ing pan­demics in as many states as pos­si­ble: the May 12 spe­cial elec­tion is in a rur­al dis­trict. The elec­tion is real­ly not near­ly as dan­ger­ous from a pub­lic health per­spec­tive because it’s not a big city. So pan­dem­ic elec­tion days for the GOP are mild pub­lic health nui­sances for the GOP’s rur­al vot­er base and a seri­ous pub­lic health threat to the Democ­rats in the cities. As the May 12 spe­cial elec­tion pro­ceed­ing as planned makes clear:

Asso­ci­at­ed Press

Lawyer sig­nals delay unlike­ly in Wis­con­sin US House elec­tion

By SCOTT BAUER
2020-04-16 20:21:58 (Cen­tral Day­light Time)

MADISON, Wis. (AP) — Gov. Tony Evers’ legal coun­sel sig­naled Thurs­day that the May 12 spe­cial elec­tion in north­ern Wisconsin’s 7th Con­gres­sion­al Dis­trict will like­ly go on as sched­uled, a week after he said the gov­er­nor was eye­ing delay­ing it due to the coro­n­avirus out­break.

Evers had pushed to stop in-per­son vot­ing in the April 7 pres­i­den­tial pri­ma­ry and spring elec­tion but was blocked in court and the elec­tion went off as sched­uled. Vot­ers and poll work­ers wore masks and oth­er pro­tec­tive equip­ment and there were long lines at polling places in Mil­wau­kee and Green Bay.

The spe­cial elec­tion is to replace retired U.S. Rep. Sean Duffy, a Repub­li­can. The seat has been vacant for six months.

Evers on Thurs­day extend­ed until May 26 the state’s stay-at-home order that was to end on April 24. The order closed all K‑12 schools through the aca­d­e­m­ic year and kept most nonessen­tial busi­ness­es closed, didn’t make any changes to the elec­tion.

Evers’ attor­ney, Ryan Nilses­tuen, said that the gov­er­nor is keep­ing a “close eye” on the elec­tion, lis­ten­ing to clerks and pub­lic health offi­cials in the dis­trict.

He empha­sized dif­fer­ences between the spe­cial elec­tion and the one held last week. The con­gres­sion­al dis­trict is rur­al and few­er peo­ple have the coro­n­avirus than in urban areas like Mil­wau­kee, where peo­ple wait­ed in line for hours to vote last week. There has also been more time for clerks to pre­pare for the spe­cial elec­tion and for vot­ers to sub­mit absen­tee bal­lots, Nilses­tuen said.

The con­gres­sion­al dis­trict cov­ers all or parts of 20 north­ern and north­west­ern Wis­con­sin coun­ties and is the state’s largest con­gres­sion­al dis­trict, geo­graph­i­cal­ly.

The race pits Demo­c­rat Tri­cia Zunker, pres­i­dent of the Wausau school board, against Repub­li­can state Sen. Tom Tiffany. Zunker was endorsed Thurs­day by Demo­c­ra­t­ic U.S. Sen. Tam­my Bald­win. Tiffany on Thurs­day released a cam­paign ad, mak­ing a nod toward the social dis­tanc­ing rec­om­men­da­tions in place due to the coro­n­avirus out­break.

...

————

“Lawyer sig­nals delay unlike­ly in Wis­con­sin US House elec­tion” by SCOTT BAUER; Asso­ci­at­ed Press; 04/16/2020

“He empha­sized dif­fer­ences between the spe­cial elec­tion and the one held last week. The con­gres­sion­al dis­trict is rur­al and few­er peo­ple have the coro­n­avirus than in urban areas like Mil­wau­kee, where peo­ple wait­ed in line for hours to vote last week. There has also been more time for clerks to pre­pare for the spe­cial elec­tion and for vot­ers to sub­mit absen­tee bal­lots, Nilses­tuen said.”

That’s going to be one of the meta-nar­ra­tives for the 2020 elec­tion if COVID-19 is still stalk­ing every­one on elec­tion. Vot­ers in rur­al areas that hap­pen to be the GOP base will have lit­tle to wor­ry about when they go in to vote on elec­tion day. And urban vot­ers will all expect to stand in death lines for hours with bro­ken elec­tron­ic vot­ing machines and a lack of poll work­ers caus­es the sys­tem to grind to a halt while the virus spreads. A mas­sive rural/urban asym­me­try of expect­ed vot­er expe­ri­ences: most­ly like nor­mal vs super scary. It’s hard to see how that why that would­n’t be a huge boost for the GOP. As long as peo­ple can’t mail in their votes, which the GOP will make sure is the case one way or anoth­er. As many dirty tricks as it takes and even a few extra so if one back­fires you still have extra.

Then again, the elec­tion last week appeared to be an exam­ple of a real vot­er back­lash that brought out more Demo­c­ra­t­ic vot­ers in defi­ance of the GOP’s dirty pan­dem­ic tricks. So that’s one way this rural/urban asym­me­try in vot­ing expe­ri­ences can work out in a man­ner that does­n’t help the GOP. Vot­er out­rage over GOP out­ra­geous­ness. Might that apply at the nation­al lev­el if the COVID is still lurk­ing in Novem­ber? Vot­er out­rage over the GOP exploita­tion of the pan­dem­ic for vot­er sup­pres­sion pur­pos­es? It would be a very iron­ic back­lash but if Wis­con­sin is a sign of what’s to come who knows what to expect nation­al­ly.

Plus it’s 2020. This is the kind of year when the GOP would pull a stunt like exploit­ing a viral pan­dem­ic to sup­press the vote and hav­ing it actu­al­ly dri­ve peo­ple to the polls. It’s just a weird year. But it hap­pened once already in Wis­con­sin so at least that role mod­el was estab­lished. Assum­ing we don’t see a wave of COVID cas­es in Mil­wau­kee from peo­ple who vot­ed that day. If that hap­pens that’s going to make this a much more potent vot­er sup­pres­sion tool for the GOP. So we real­ly have to wait and see if that April 7 elec­torate comes down with a bunch of coro­na, espe­cial­ly in the big cities where they squeezed every­one into a hand­ful of super vot­ing cen­ters. Was there a bunch of infec­tion? The incu­ba­tion peri­od is two weeks so we have anoth­er week for cas­es to devel­op and then it’s going to take a while for epi­demi­ol­o­gists to know if there was an elec­tion-day out­break.

So the GOP’s dirty pan­dem­ic trick may still pay off. Mil­wau­kee’s role mod­el coro­n­avot­ers could end up becom­ing pub­lic health warn­ings. And the GOP’s dirty trick­ing will win again. Which isn’t a 2020 bizarro thing. GOP dirty tricks win every year. That’s kind of all the par­ty does at this point. Every trick in the book. Includ­ing mass pan­dem­ic dirty tricks. If mass pan­dem­ic dirty tricks weren’t in the GOP dirty tricks book they are now.

And that points to one of the worst aspects of 2020’s grow­ing awful­ness: the sense that the year isn’t an anom­aly but the start of some­thing new. A new crap­pi­er era. Which is amaz­ing because things were look­ing dire in 2019. But some­how we’re enter­ing into a whole new era that’s even worse. Like GOP pan­dem­ic vot­er sup­pres­sion dead­ly dirty tricks. The same ol’ awful with more oppor­tu­ni­ties for awful­ness. That kind of worse.

Here’s a sto­ry that’s an omi­nous­ly the­mat­i­cal­ly appro­pri­ate sto­ry for the day after the Fourth of July. At least omi­nous­ly the­mat­i­cal­ly appro­pri­ate for the US. It’s about a sce­nario that is both tech­ni­cal­ly and polit­i­cal­ly plau­si­ble that could allow Pres­i­dent Trump to win reelec­tion with­out a major­i­ty of the vote. And, no, it’s not the stan­dard sce­nario that allowed Trump to win elec­tion in 2016 despite get­ting mil­lions of few­er votes than Hillary Clin­ton via the elec­toral col­lege. Instead it’s the kind of sce­nario that would break the per­ceived legit­i­ma­cy of the US gov­ern­ment far more than Trump’s 2016 vic­to­ry or George W. Bush’s vic­to­ry in Bush v. Gore ever did and would rely on many of the same legal tac­tics used by the GOP in that 2000 deci­sion:

First, let’s assume Joe Biden clear­ly wins the elec­tion with both a major­i­ty of the pop­u­lar vote and elec­toral col­lege votes. Trump has no options at that point, right? Well, it turns out all he needs to do is declare the vote was some­how rigged in some key states where the out­come of the vote might be in ques­tion like Penn­syl­va­nia or Michi­gan and then have the Jus­tice Depart­ment begin inves­ti­gat­ing the alle­ga­tions. The idea is to pre­vent these states from being able to offi­cial­ly declare how their elec­toral votes are cast before the Decem­ber 14th dead­line.

Once that Decem­ber 14th dead­line is reached the case goes to the Supreme Court to decide how to pro­ceed, just like with Bush v. Gore in 2000, when the con­ser­v­a­tive major­i­ty ruled that the Decem­ber 14th dead­line required that the recount of the vote in Flori­da could­n’t con­tin­ue and there­fore the orig­i­nal dec­la­ra­tion of a George Bush vic­to­ry must be respect­ed. But under this new night­mare sce­nario the Supreme Court’s con­ser­v­a­tive major­i­ty would­n’t make the same rul­ing. Instead, it would rule that the elec­tion would fall back to the House of Rep­re­sen­ta­tives pur­suant to the rules of the con­sti­tu­tion under this cir­cum­stances. And those rules don’t sim­ply involve a vote by the rep­re­sen­ta­tives. Instead, each state gets one vote and the can­di­date that gets the major­i­ty of state votes wins the pres­i­den­cy.

Yep, it’s a con­sti­tu­tion gim­mick that oper­ates like the unde­mo­c­ra­t­ic Sen­ate where heav­i­ly pop­u­lat­ed states like Cal­i­for­nia and rur­al states like North Dako­ta both get rep­re­sen­ta­tion. A gim­mick that, based on the make­up of the Sen­ate, Trump would like­ly win today. And since Trump is already lay­ing the ground­work for pre­cise­ly this sce­nario by decry­ing mail-in vot­ing as an invi­ta­tion for mass Demo­c­ra­t­ic fraud it’s a sce­nario we should prob­a­bly be tak­ing very seri­ous­ly:

Newsweek

How Trump Could Lose the Election—And Still Remain Pres­i­dent | Opin­ion

Tim­o­thy E. Wirth and Tom Rogers , Edi­tor-at-Large for Newsweek
On 7/3/20 at 6:00 AM EDT

It is increas­ing­ly look­ing as if Joe Biden can beat Pres­i­dent Don­ald Trump in Novem­ber. The pres­i­dent seems more and more out of step with the nation­al mood, from his han­dling of the pan­dem­ic to his response to racial­ly biased polic­ing, not to men­tion a wide array of oth­er issues. Even in key swing states, Trump is los­ing ground that will be dif­fi­cult for him to make up.

For Trump, there are two broad path­ways to main­tain­ing pow­er. First, we can already see very clear­ly a strat­e­gy designed to sup­press vot­er turnout with the purg­ing of reg­is­tra­tion rolls of large num­bers of most­ly urban vot­ers; efforts to sup­press mail-in bal­lots, which are more nec­es­sary than ever, giv­en COVID-19; a re-elec­tion appa­ra­tus that is train­ing 50,000 poll watch­ers for the pur­pose of chal­leng­ing cit­i­zens’ right to vote on Elec­tion Day; and sig­nif­i­cant efforts to make in-per­son vot­ing in urban areas as cum­ber­some as pos­si­ble in order to have long lines that dis­cour­age peo­ple from exer­cis­ing their vot­ing rights.

The sec­ond path­way to sub­vert­ing the elec­tion is even more ominous—but we must be cog­nizant of it because Trump is already lay­ing the ground­work for how he can lose the pop­u­lar vote, and even lose in the key swing states nec­es­sary for an Elec­toral Col­lege vic­to­ry, but still remain pres­i­dent.

This spring, HBO aired The Plot Against Amer­i­ca, based on the Philip Roth nov­el of how an author­i­tar­i­an pres­i­dent could grab con­trol of the Unit­ed States gov­ern­ment using emer­gency pow­ers that no one could fore­see. Recent press reports have revealed the com­pi­la­tion by the Bren­nan Cen­ter at New York Uni­ver­si­ty of an exten­sive list of pres­i­den­tial emer­gency pow­ers that might be inap­pro­pri­ate­ly invoked in a nation­al secu­ri­ty cri­sis. Attor­ney Gen­er­al William Barr, known for his extrem­ist view of the expanse of pres­i­den­tial pow­er, is wide­ly believed to be devel­op­ing a Jus­tice Depart­ment opin­ion argu­ing that the pres­i­dent can exer­cise emer­gency pow­ers in cer­tain nation­al secu­ri­ty sit­u­a­tions, while stat­ing that the courts, being extreme­ly reluc­tant to inter­vene in the sphere of a nation­al secu­ri­ty emer­gency, would allow the pres­i­dent to pro­ceed unchecked.

...

Trump actu­al­ly tweet­ed on June 22: “Rigged 2020 elec­tion: mil­lions of mail-in bal­lots will be print­ed by for­eign coun­tries, and oth­ers. It will be the scan­dal of our times!” With this, Trump has begun to lay the ground­work for the step-by-step process by which he holds on to the pres­i­den­cy after he has clear­ly lost the elec­tion:

1. Biden wins the pop­u­lar vote, and car­ries the key swing states of Ari­zona, Wis­con­sin, Michi­gan and Penn­syl­va­nia by decent but not over­whelm­ing mar­gins.

2. Trump imme­di­ate­ly declares that the vot­ing was rigged, that there was mail-in bal­lot fraud and that the Chi­nese were behind a plan to pro­vide fraud­u­lent mail-in bal­lots and oth­er “elec­tion hack­ing” through­out the four key swing states that gave Biden his vic­to­ry.

3. Hav­ing railed against the Chi­nese through­out the cam­paign, call­ing Biden “soft on Chi­na,” Trump deliv­ers his nar­ra­tive claim­ing the Chi­nese have inter­fered in the U.S. elec­tion.

4. Trump indi­cates this is a major nation­al secu­ri­ty issue, and he invokes emer­gency pow­ers, direct­ing the Jus­tice Depart­ment to inves­ti­gate the alleged activ­i­ty in the swing states. The legal jus­ti­fi­ca­tion for the pres­i­den­tial pow­ers he invokes has already been devel­oped and issued by Barr.

5. The inves­ti­ga­tion is intend­ed to tick down the clock toward Decem­ber 14, the dead­line when each state’s Elec­toral Col­lege elec­tors must be appoint­ed. This is the very issue that the Supreme Court harped on in Bush v. Gore in rul­ing that the elec­tion process had to be brought to a close, thus for­bid­ding the fur­ther count­ing of Flori­da bal­lots.

6. All four swing states have Repub­li­can con­trol of both their upper and low­er hous­es of their state leg­is­la­tures. Those state leg­is­la­tures refuse to allow any Elec­toral Col­lege slate to be cer­ti­fied until the “nation­al secu­ri­ty” inves­ti­ga­tion is com­plete.

7. The Democ­rats will have begun a legal action to cer­ti­fy the results in those four states, and the appoint­ment of the Biden slate of elec­tors, argu­ing that Trump has man­u­fac­tured a nation­al secu­ri­ty emer­gency in order to cre­ate the ensu­ing chaos.

8. The issue goes up to the Supreme Court, which unlike the 2000 elec­tion does not decide the elec­tion in favor of the Repub­li­cans. How­ev­er, it indi­cates again that the Decem­ber 14 Elec­toral Col­lege dead­line must be met; that the pres­i­den­t’s nation­al secu­ri­ty pow­ers legal­ly autho­rize him to inves­ti­gate poten­tial for­eign coun­try intru­sion into the nation­al elec­tion; and if no Elec­toral Col­lege slate can be cer­ti­fied by any state by Decem­ber 14, the Elec­toral Col­lege must meet any­way and cast its votes.

9. The Elec­toral Col­lege meets, and with­out the elec­tors from those four states being rep­re­sent­ed, nei­ther Biden nor Trump has suf­fi­cient votes to get an Elec­toral Col­lege major­i­ty.

10. The elec­tion is thrown into the House of Rep­re­sen­ta­tives, pur­suant to the Con­sti­tu­tion. Under the rel­e­vant con­sti­tu­tion­al process, the vote in the House is by state del­e­ga­tion, where each del­e­ga­tion casts one vote, which is deter­mined by the major­i­ty of the rep­re­sen­ta­tives in that state.

11. Cur­rent­ly, there are 26 states that have a major­i­ty Repub­li­can House del­e­ga­tion. 23 states have a major­i­ty Demo­c­ra­t­ic del­e­ga­tion. There is one state, Penn­syl­va­nia, that has an even­ly split del­e­ga­tion. Even if the Democ­rats were to pick up seats in Penn­syl­va­nia and hold all their 2018 House gains, the Repub­li­cans would have a 26 to 24 del­e­ga­tion major­i­ty.

12. This vote would enable Trump to retain the pres­i­den­cy.

We can­not let our­selves believe that this is a far-fetched sce­nario. We have just seen Trump threat­en to invoke emer­gency pow­ers under the Insur­rec­tion Act of 1807 to call up the U.S. mil­i­tary against domes­tic pro­test­ers. The remark­able apol­o­gy by Joint Chiefs Chair­man Gen­er­al Mark Mil­ley, stat­ing that it was wrong to cre­ate a per­cep­tion that the mil­i­tary would get direct­ly involved in a domes­tic polit­i­cal protest and inter­vene against Amer­i­can civil­ians, under­scores the cor­rupt use of exec­u­tive pow­ers Trump is will­ing to employ. As Fareed Zakaria recent­ly said in sum­ming up the lessons of for­mer nation­al secu­ri­ty advis­er John Bolton’s new book: “Don­ald Trump will pay any price, make any deal, bend any rule, to assure his own sur­vival and suc­cess.”

So what do we do as cit­i­zens to face the impend­ing real­i­ty of The Plot Against Amer­i­ca? We must “out” this scenario—and do so loud­ly and con­sis­tent­ly. We have an imper­a­tive to build a “peo­ple’s fire­wall” that reach­es deeply across the coun­try and reflects pub­lic revul­sion at the poten­tial for Trump to under­mine our entire demo­c­ra­t­ic sys­tem of gov­er­nance.

Nan­cy Pelosi, the House speak­er, should imme­di­ate­ly ask the Judi­cia­ry, Com­merce, Armed Ser­vices and Intel­li­gence Com­mit­tees to hold hear­ings on how steps can be tak­en to safe­guard against this sce­nario, espe­cial­ly how to con­front any invo­ca­tion of emer­gency pow­ers by the pres­i­dent.

There needs to be an out­pour­ing at all lev­els of soci­ety that this will not be tolerated—from gov­ern­ment offi­cials and law­mak­ers at all lev­els; to civic asso­ci­a­tions and civ­il rights groups; to busi­ness groups and trade asso­ci­a­tions, who have to rec­og­nize the eco­nom­ic chaos that would result from this kind of coup; to lawyers, aca­d­e­mics and stu­dent groups prac­ticed in resist­ing gov­ern­ment poli­cies; and, of course, to the edi­to­r­i­al voic­es of the press, both local and nation­al.

The recent resis­tance of our mil­i­tary estab­lish­ment is an encour­ag­ing sign and nec­es­sary com­po­nent of the “peo­ple’s fire­wall.” The pres­i­dent has to know there will be over­whelm­ing resis­tance to any post-elec­tion chaos to under­mine our con­sti­tu­tion­al order. He must know that the “peo­ple’s fire­wall” will not yield to law­less­ness. He has to be con­front­ed with the real­i­ty that The Plot Against Amer­i­ca must remain a work of fic­tion.

———-

“How Trump Could Lose the Election—And Still Remain Pres­i­dent | Opin­ion” by Tim­o­thy E. Wirth and Tom Rogers; Newsweek; 7/3/2020

“Trump actu­al­ly tweet­ed on June 22: “Rigged 2020 elec­tion: mil­lions of mail-in bal­lots will be print­ed by for­eign coun­tries, and oth­ers. It will be the scan­dal of our times!” With this, Trump has begun to lay the ground­work for the step-by-step process by which he holds on to the pres­i­den­cy after he has clear­ly lost the elec­tion”

Yep, Trump is active­ly lay­ing the ground­work for pre­cise­ly this sce­nario. And that’s why this isn’t just some hypo­thet­i­cal night­mare sce­nario. It’s hap­pen­ing now in the mid­dle of a pan­dem­ic that’s almost cer­tain­ly going to make vot­ing by mail a pub­lic health neces­si­ty. So Trump is already tak­ing the steps to ensure that if he does lose the pop­u­lar vote he’s got a built in excuse. The ques­tion is whether or not he uses that excuse to hold onto pow­er or not and that right there cap­tures the per­il of this moment: The fate of Amer­i­ca’s democ­ra­cy is, to some extent, up to Trump’s whims. To some extent that’s always the case with pres­i­dents. Their whims are inher­ent­ly pow­er­ful. Which is kind of the whole point of demo­c­ra­t­i­cal­ly elect­ing a pres­i­dent in the first place: so the peo­ple have a say in who gets to pos­sess the immense pow­er of the pres­i­den­cy for the next four years.

And all that’s part of what makes this sto­ry about this night­mare sce­nario an appro­pri­ate July 5th sto­ry for Amer­i­ca. Because what bet­ter day than the day after Inde­pen­dence Day to reflect on all the sce­nar­ios that could result in the loss of democ­ra­cy. Espe­cial­ly July 5th, 2020, when a sce­nario that could result in the loss of democ­ra­cy is lit­er­al­ly play­ing out before our eyes and an already-ques­tion­ably-elect­ed pres­i­dent is the one doing it. And the pres­i­dent hap­pens to be an open fas­cist intent on divid­ing the nation for polit­i­cal gain. So while July 5th may not tech­ni­cal­ly be a nation­al hol­i­day where Amer­i­ca reflects on the sce­nar­ios that could result in a loss of democ­ra­cy, it should be. There’s clear­ly a need for such a hol­i­day.

We just got two more omi­nous hints that the Trump cam­paign’s 2020 reelec­tion strat­e­gy is going to cen­ter around the ‘one-state-one-vote-emer­gency-elec­tion’ scheme in the wake of Trump’s omi­nous tweet yes­ter­day about delay­ing the 2020 elec­tion due to the pan­dem­ic and right-wing fan­ta­sy fears of mail-in vot­er fraud:

First, recall how that scheme involves first con­test­ing the valid­i­ty of the pop­u­lar vote in var­i­ous states in the courts (by ques­tion­ing the valid­i­ty of mail-in bal­lots, for exam­ple) with the intent on pre­vent­ing enough the elec­toral col­lege from being able to cast a win­ning vote for a can­di­date by the Decem­ber 14 dead­line. The idea is that as long as the legal case is still stuck in the courts as the dead­line approach­es, the con­ser­v­a­tive major­i­ty on the Supreme Court will be able to jus­ti­fy send­ing the ques­tion of who gets elect­ed to the House of Rep­re­sen­ta­tives. But the full House, which is cur­rent­ly con­trolled by the Democ­rats, would­n’t get to vote for the next pres­i­dent. Instead, each state del­e­ga­tion casts a vote for pres­i­dent, mak­ing it a one-state-one-vote elec­tion of the pres­i­dent which is a vote Trump would like­ly win.

Next, here’s an arti­cle from last night about com­ments Trump had lat­er in the day when asked about his tweets call­ing for the delay of the elec­tion over fan­ta­sy mail-in vote fraud fears. Did he walk it back and act like it was just anoth­er Trumpian gaslight­ing moment? Of course not. He dou­bled down and jus­ti­fied his call for delay­ing the elec­tion by assert­ing that it might take years to accu­rate­ly count the vote any­way and say­ing that we should delay the elec­tion until a time when the vic­tor can be defin­i­tive­ly declared on elec­tion night. So that’s a new demand by Trump: that the win­ner be declared on elec­tion night.

Now why would Trump demand that a win­ner be declared on elec­tion night and now would that be a hint that is cam­paign is plan­ning on lock­ing up the elec­tion results in the courts for years? Well, Trump specif­i­cal­ly said dur­ing his Thurs­day after­noon press con­fer­ence that “For so many years, I’ve been watch­ing elec­tions and they say the pro­ject­ed win­ner or the win­ner of the elec­tion. I don’t want to see that take place in a week after Novem­ber 3, or a month or, frankly, with lit­i­ga­tion and every­thing else that can hap­pen, years.”

And he made that com­ment about years of lit­i­ga­tion in the con­text of an ongo­ing fear­mon­ger­ing cam­paign by the admin­is­tra­tion about the valid­i­ty of mail-in bal­lots and mass for­eign-gov­ern­ment elec­tion rig­ging involv­ing mail-in votes. And that’s why Trump demand that results be declared on elec­tion night is real­ly just a gaslight­ing-method of extend­ing his threat to lock of the elec­tion results in the courts over his fan­ta­sy mail-in vot­er fraud claims. And since the con­sti­tu­tion requires that a new pres­i­dent be select­ed by Jan­u­ary 20, that threat to lock up the elec­tion results for years is real­ly a threat to force the kind of ‘Supreme Court decides’ sit­u­a­tion that could result in the elec­tion get­ting turned into a one-state-one-vote con­test:

The Hill

Experts dis­miss Trump claim that it could take ‘years’ to declare elec­tion win­ner

By John Kruzel — 07/30/20 08:11 PM EDT

Pres­i­dent Trump on Thurs­day sug­gest­ed it could take “years” to deter­mine the win­ner of the upcom­ing pres­i­den­tial race, mark­ing the lat­est in a series of elec­tion-relat­ed state­ments that experts dis­missed as a legal or prac­ti­cal impos­si­bil­i­ty.

Trump’s com­ment came at a Thurs­day after­noon White House brief­ing just hours after he took to Twit­ter to sug­gest the Nov. 3 con­test be delayed and insist that defin­i­tive results be made avail­able on the night of the elec­tion.

“For so many years, I’ve been watch­ing elec­tions and they say the pro­ject­ed win­ner or the win­ner of the elec­tion,” Trump told White House reporters. “I don’t want to see that take place in a week after Novem­ber 3, or a month or, frankly, with lit­i­ga­tion and every­thing else that can hap­pen, years.”

...

While it may take longer than nor­mal to deter­mine this year’s out­come giv­en the high­er vol­ume of expect­ed absen­tee bal­lots, the process should not take longer than a month, accord­ing to Edward Foley, a law pro­fes­sor at Ohio State Uni­ver­si­ty.

“Any state should be able to count votes-by-mail and ver­i­fy it with­in a month unless some­thing derails the sys­tem,” Foley said.

Justin Levitt, a law pro­fes­sor at Loy­ola Law School, said it’s like­ly Amer­i­cans will not know the win­ner of the pres­i­den­tial race on elec­tion night. But pro­ce­dures cod­i­fied in fed­er­al law and the Con­sti­tu­tion pre­vent any lin­ger­ing uncer­tain­ty about the elec­tion results from grind­ing the gov­ern­ment to a halt.

Under cur­rent law, mem­bers of the elec­toral col­lege are sched­uled to meet and vote on Dec. 14. After that, Con­gress will con­vene on Jan. 6 to count the votes. The Con­sti­tu­tion also clear­ly states that the sit­ting president’s term ends Jan. 20.

“We should get ready for the fact that we may not know who won on Elec­tion Night,” Levitt said. “But there’s a process for count­ing, and a process for fight­ing over the count, and the Con­sti­tu­tion says that all of that is over, full stop, well before noon on Jan­u­ary 20.”

———–

“Experts dis­miss Trump claim that it could take ‘years’ to declare elec­tion win­ner” by John Kruzel; The Hill; 07/30/2020

““We should get ready for the fact that we may not know who won on Elec­tion Night,” Levitt said. “But there’s a process for count­ing, and a process for fight­ing over the count, and the Con­sti­tu­tion says that all of that is over, full stop, well before noon on Jan­u­ary 20.””

Yes, there is indeed a process for count­ing and a process for fight­ing over the count and this will all get worked out accord­ing to the Con­sti­tu­tion well before Jan­u­ary 20. But part of that process involves get­ting the Supreme Court involved, as we saw in with Bush v Gore in 2000, and that’s a process that includes the option of toss­ing the ques­tion over to the House for a one-state-one-vote emer­gency elec­tion. It’s obvi­ous­ly the kind option that would obvi­ous­ly only be used in an extreme emer­gency which is exact­ly what Trump is try­ing to cre­ate. That’s his strat­e­gy for reelec­tion: cre­at­ing an extreme elec­tion emer­gency, pre­sum­ably so he can jus­ti­fy what­ev­er scheme he can come up with that some­one leaves him in office or at a min­i­mum so he can declare him­self the right­ful Shad­ow Pres­i­dent and spend his future rep­re­sent­ing some sort of ‘Alt’ US gov­ern­ment. Which is the kidn of sit­u­a­tion that qual­i­fies as a giant extreme emer­gency. And that’s what’s so dis­tress­ing about this strat­e­gy: if Trump’s strat­e­gy depends on cre­at­ing a giant extreme elec­toral emer­gency in order to force the elec­tion results into the hands of the Supreme Court he real­ly can cre­ate a giant extreme elec­toral emer­gency. All he has to do is keep doing what he’s doing. Which is exact­ly what he did dur­ing today’s press con­fer­ence when he reit­er­at­ed is call for elec­tion-night results and warned that this elec­tion is going to be the great­est elec­tion dis­as­ter in US his­to­ry because of mail-in vote fraud. He also called for the elec­tion day to be moved up, seem­ing­ly to give more time for the court fights he’s pre­dict­ing:

Politi­co

Trump pre­dicts this year will bring the ‘great­est elec­tion dis­as­ter in his­to­ry’

The pres­i­dent also reversed him­self and said he wished the Nov. 3 elec­tion would be moved up.

By CAITLIN OPRYSKO
07/31/2020 03:09 PM EDT

Pres­i­dent Don­ald Trump on Fri­day con­tin­ued to deliv­er warn­ings of chaos sur­round­ing the use of mail-in bal­lots in November’s elec­tion, pre­dict­ing that the upcom­ing gen­er­al elec­tion will be “the great­est elec­tion dis­as­ter in his­to­ry.”

“This will be cat­a­stroph­ic for our nation. You’ll see it,” Trump assert­ed in a meet­ing at the White House with police groups. “I’m always right about things like this. I guess I must be, or I would­n’t be sit­ting here,” he added.

His dire pre­dic­tion came just a day after he float­ed delay­ing the elec­tion over unsub­stan­ti­at­ed con­cerns of wide­spread vot­er fraud amid the coro­n­avirus pan­dem­ic — a move he is not con­sti­tu­tion­al­ly empow­ered to take and that was round­ly reject­ed by mem­bers of Con­gress.

“Every­one knows mail-in bal­lots are a dis­as­ter,” Trump claimed. He reit­er­at­ed his view that it’s imper­a­tive to find out who won the elec­tion on elec­tion night, as some elec­tion experts have indeed warned that a dras­tic surge in mail-in bal­lots might mean a close race isn’t called on the evening of Nov. 3.

Trump point­ed to some House pri­ma­ry races in New York City last month that saw an influx of mail-in votes and have yet to be offi­cial­ly decid­ed, and sug­gest­ed with­out evi­dence that the final results may not be accu­rate.

“New York City has a lit­tle elec­tion,” he said, claim­ing that “they’re nev­er going to have the results of that elec­tion. Nev­er the cor­rect result. They’ll prob­a­bly announce some­thing at some point, but when did that take place? Five, six weeks ago?”

New York strug­gled with a mas­sive influx of mail-in bal­lots. The state, which does not nor­mal­ly allow for no-excuse absen­tee vot­ing, was unpre­pared for the wave of bal­lots. Absen­tee bal­lots did­n’t begin to be count­ed until well after in-per­son vot­ing, and tens-of-thou­sands were tossed out for tech­ni­cal­i­ties.

But even as he insist­ed lat­er Thurs­day he did not want to see the date of the elec­tion changed, on Fri­day Trump kept up his asser­tion that mail-in vot­ing is ripe for fraud. He also appeared to con­tra­dict his ini­tial stat­ed desire to delay the elec­tion until it’s safer to do so, and called for the date of the elec­tion to be moved up.

“Nobody wants that date more than me,” he said of Nov. 3, dis­miss­ing claims that his desire to post­pone the elec­tion stemmed from his poor stand­ing in the polls. “I wish we would move it up. Move it up.”

Vir­tu­al­ly all pub­lic polling of the White House race shows Trump trail­ing by sig­nif­i­cant mar­gins nation­al­ly and in bat­tle­ground states. His ini­tial tweet Thurs­day morn­ing came min­utes after the Com­merce Depart­ment report­ed that the pan­dem­ic had inflict­ed the worst eco­nom­ic con­trac­tion in mod­ern Amer­i­can his­to­ry, under­min­ing what was by far the president’s strongest argu­ment for reelec­tion.

The Trump cam­paign has sought to draw a dis­tinc­tion between uni­ver­sal mail-in vot­ing and absen­tee vot­ing, with Trump on Fri­day call­ing absen­tee bal­lots “secure” and “very good” com­pared with uni­ver­sal mail-in bal­lots, which he con­tend­ed are a “dis­as­ter.”

“Absen­tee bal­lots, great. Going to the polls, great,” Trump said. “If you do uni­ver­sal mail-ins with mil­lions and mil­lions of bal­lots, you are nev­er going to know what the real result of an elec­tion is. It’s going to be a very, very sad day for our coun­try,” he argued, repeat­ing claims that U.S. foes like Rus­sia and Chi­na could eas­i­ly forge bal­lots.

But vot­ing rights experts main­tain there is no dif­fer­ence between the terms mail-in vot­ing and absen­tee vot­ing, and some juris­dic­tions have scrubbed the lat­ter term to avoid con­fu­sion among vot­ers. In fact, Repub­li­cans have active­ly pro­mot­ed request­ing absen­tee bal­lots in states where no excuse is required, includ­ing in bat­tle­grounds Penn­syl­va­nia and Flori­da.

In Novem­ber, 42 states and the Dis­trict of Colum­bia will effec­tive­ly allow for, at a min­i­mum, no-excuse absen­tee bal­lot­ing — mean­ing any vot­er, regard­less of age, health or loca­tion on Elec­tion Day will be able to vote by mail should they choose to do so.

An analy­sis last month of vot­ing in three states that rou­tine­ly and proac­tive­ly mail every vot­er a bal­lot found that offi­cials iden­ti­fied an infin­i­tes­i­mal amount of poten­tial­ly fraud­u­lent bal­lots.

Despite the president’s repeat­ed insis­tence to the con­trary, cas­es of elec­tion fraud in the U.S. are exceed­ing­ly rare, though experts acknowl­edge that there are some slight­ly high­er fraud risks asso­ci­at­ed with mail-in bal­lot­ing when prop­er secu­ri­ty mea­sures are not put in place.

Still, the pres­i­dent assert­ed that his admin­is­tra­tion is “putting in all the resources you can” to secure November’s elec­tion, even as he sought to play up the poten­tial for chaos, repeat­ing fears elec­tion offi­cials are “not pre­pared” for the influx of mail-in bal­lots.

“You watch. They’re not going to announce any­thing on Nov. 3. They’re not going to announce it on the fourth or the fifth or the sixth. It’ll go on for­ev­er,” Trump said.

...

———–

“Trump pre­dicts this year will bring the ‘great­est elec­tion dis­as­ter in his­to­ry’ ” by CAITLIN OPRYSKO; Politi­co; 07/31/2020

“You watch. They’re not going to announce any­thing on Nov. 3. They’re not going to announce it on the fourth or the fifth or the sixth. It’ll go on for­ev­er...”

The hor­ror. Move over Antifa, not know­ing who won the elec­tion on elec­tion night is the new great­est threat fac­ing Amer­i­ca. And all because of those hor­ri­ble fraud-prone mail-in bal­lots, which are total­ly unlike absen­tee bal­lots that the Trump admin­is­tra­tion has no prob­lem with and no con­cerns about:

...
The Trump cam­paign has sought to draw a dis­tinc­tion between uni­ver­sal mail-in vot­ing and absen­tee vot­ing, with Trump on Fri­day call­ing absen­tee bal­lots “secure” and “very good” com­pared with uni­ver­sal mail-in bal­lots, which he con­tend­ed are a “dis­as­ter.”

“Absen­tee bal­lots, great. Going to the polls, great,” Trump said. “If you do uni­ver­sal mail-ins with mil­lions and mil­lions of bal­lots, you are nev­er going to know what the real result of an elec­tion is. It’s going to be a very, very sad day for our coun­try,” he argued, repeat­ing claims that U.S. foes like Rus­sia and Chi­na could eas­i­ly forge bal­lots.

But vot­ing rights experts main­tain there is no dif­fer­ence between the terms mail-in vot­ing and absen­tee vot­ing, and some juris­dic­tions have scrubbed the lat­ter term to avoid con­fu­sion among vot­ers. In fact, Repub­li­cans have active­ly pro­mot­ed request­ing absen­tee bal­lots in states where no excuse is required, includ­ing in bat­tle­grounds Penn­syl­va­nia and Flori­da.

In Novem­ber, 42 states and the Dis­trict of Colum­bia will effec­tive­ly allow for, at a min­i­mum, no-excuse absen­tee bal­lot­ing — mean­ing any vot­er, regard­less of age, health or loca­tion on Elec­tion Day will be able to vote by mail should they choose to do so.
...

But it’s impor­tant to acknowl­edge that, yes, if prop­er secu­ri­ty mea­sure’s aren’t put in place there can be prob­lems with mail-in vot­ing. As is the case with any sys­tem. So it’s going to be cru­cial for the remain­ing respon­si­ble por­tions of the gov­ern­ment to be on the look out for the Trump admin­is­tra­tion inten­tion­al­ly leav­ing mail-in vote unse­cure:

...
An analy­sis last month of vot­ing in three states that rou­tine­ly and proac­tive­ly mail every vot­er a bal­lot found that offi­cials iden­ti­fied an infin­i­tes­i­mal amount of poten­tial­ly fraud­u­lent bal­lots.

Despite the president’s repeat­ed insis­tence to the con­trary, cas­es of elec­tion fraud in the U.S. are exceed­ing­ly rare, though experts acknowl­edge that there are some slight­ly high­er fraud risks asso­ci­at­ed with mail-in bal­lot­ing when prop­er secu­ri­ty mea­sures are not put in place.
...

And, of course, the respon­si­ble remain­ing por­tions of gov­ern­ment are going to need to be on the look out for Repub­li­can cam­paigns exploit­ing those mail-in inse­cu­ri­ties that the Trump admin­is­tra­tion is going to be leav­ing open. It points to one of the fas­ci­nat­ing dynam­ics devel­op­ing here: the Trump cam­paign clear­ly wants exten­sive cheat­ing to take place so he can inval­i­date the results of the elec­tion and he’s threat­en­ing to go to court for years fight­ing over those claims of fraud. But that kind of a mul­ti-year court fight, which could involve exten­sive post-elec­tion inves­ti­ga­tions and data gath­er­ing, is pre­cise­ly the kind of thing that could uncov­er all of the Repub­li­can mail-in vot­er fraud attempts that are prob­a­bly going to be tak­ing place. It points to anoth­er hor­ri­ble aspect to this sit­u­a­tion: if the Trump team wants to lock up the courts with charges of vot­er fraud it’s a very easy out­come to ensure. Just let the Repub­li­cans do what they do best and bla­tant­ly steal a bunch of elec­tions via mail-in vot­er fraud and wait for all the jus­ti­fied law­suits. Let’s not for­get that the most recent major mail-in vot­er fraud con­spir­a­cy that was uncov­ered was the 2017 scheme in North Car­oli­na involv­ing bal­lot manip­u­la­tion by a Repub­li­can oper­a­tive. It’s not like the Repub­li­cans don’t know how to do mail-in vot­er fraud. And that’s why Trump is unfor­tu­nate­ly cor­rect. There will undoubt­ed­ly be plen­ty of mail-in vot­er fraud because it would almost be weird if there was­n’t wide­spread Repub­li­can mail-in vot­er fraud. Cheat­ing is half of the par­ty’s strat­e­gy at this point.

But let’s also not for­get that part of the rea­son Trump might be plac­ing so much atten­tion on mail-in vot­er fraud fan­tasies is that he knows there’s still going to be a siz­able amount of in-per­son vot­ing and he knows that the Repub­li­can Par­ty’s tra­di­tion­al elec­tion-rig­ging infra­struc­ture (like hacked elec­tron­ic vot­ing machines or cor­rupt­ed vote-count­ing sys­tem , etc) is a well-oiled machine that’s ready to go a ready to cheat the hell out of the in-per­son votes on the elec­tron­ic vot­ing machines — includ­ing elec­tron­ic vot­ing machines with a paper trail — in enough dis­tricts to secure a vic­to­ry. So we could look at a kind of head-fake cheat psy­op where Trump spends months lament­ing the mail-in vote and mak­ing it seem like he’s plan­ning on los­ing only to see him win a stun­ning vic­to­ry on elec­tion night when the rigged elec­tron­ic vot­ing machine vote is imme­di­ate­ly report­ed. And then Trump legal team can argue some­thing like the elec­tion night vote was the real vote and we should just rely on that vote alone or what­ev­er. It’s not hard to imag­ine the Trump team hop­ing to cheat out a huge elec­tion night mar­gin so his lawyers can argue that it’s only fair to kick the case to a House vote because of that huge mar­gin. It’s the kind of ques­tion­able legal argu­ment that would trag­i­cal­ly be in keep­ing with ‘unprece­dent’ set by Bush v Gore’s noto­ri­ous­ly shod­dy legal rea­son­ing in 2000.

So that’s Trump’s cam­paign strat­e­gy at this point: con­coct an extreme elec­tion emer­gency and use that to jus­ti­fy the use of extreme one-state-one-vote elec­tion res­o­lu­tion mech­a­nisms that hap­pen to favor him. Or at least one exam­ple of that strat­e­gy being put to use by the Trump cam­paign. There are oth­er extreme emer­gen­cies the Trump cam­paign has been work­ing on...

The issue of Repub­li­can vot­er sup­pres­sion of minori­ties is in the news again fol­low­ing a leaked audio record­ing of Pres­i­dent Trump brag­ging about how the rel­a­tive­ly low vot­ing rate by African Amer­i­cans helped him win in 2016. It turns out he was brag­ging about this to a group of US civ­il rights lead­ers who met him days before his 2017 inau­gu­ra­tion, sug­gest­ing that black vot­ers who chose not to vote were secret Trump sup­port­ers. It was a par­tic­u­lar­ly Trumpian reminder of the Repub­li­can Par­ty’s long-stand­ing minor­i­ty vot­er sup­pres­sion agen­da.

But as the fol­low­ing arti­cle also reminds us, the GOP’s minor­i­ty vot­er sup­pres­sion efforts aren’t lim­it­ed to actu­al­ly try­ing to pre­vent minori­ties from vot­ing and per­haps not even the biggest area of ongo­ing minor­i­ty vot­er sup­pres­sion. Because if you think about it, ger­ry­man­der­ing is vot­er sup­pres­sion. That’s the whole point, to make some votes more impact­ful than oth­ers. And as we’ve seen with the sto­ry of the Repub­li­can’s 2010 nation­al ger­ry­man­der­ing project, Project REDMAP, when it comes to Repub­li­can ger­ry­man­der­ing it’s almost focused on always pack­ing as many minor­i­ty vot­ers into a sin­gle dis­trict. So with the issues of struc­tur­al racism loom­ing large dur­ing the 2020 elec­tion sea­son it’s worth keep­ing in mind that when the Supreme Court’s con­ser­v­a­tive major­i­ty ruled Rucho v Com­mon Cause in favor or allow­ing basi­cal­ly extreme par­ti­san ger­ry­man­der­ing last year that rul­ing was effec­tive­ly an endorse­ment of struc­tur­al racism. Struc­tur­al racism that the GOP is plan­ning on deep­en­ing in as many states as pos­si­ble dur­ing the redis­trict­ing process next year:

The Guardian

Want to dis­man­tle struc­tur­al racism in the US? Help fight ger­ry­man­der­ing

The state leg­isla­tive races this fall will deter­mine how Amer­i­can polit­i­cal pow­er is dis­trib­uted for the next decade

Meaghan Win­ter

Fri 21 Aug 2020 06.27 EDT
Last mod­i­fied on Fri 21 Aug 2020 11.57 EDT

Amer­i­cans look­ing for imme­di­ate ways to work to dis­man­tle struc­tur­al racism can – and must – turn their atten­tion to this November’s state leg­isla­tive races. Down-bal­lot races may not receive the same hype as the Biden-Trump con­test, but those state races will deter­mine to what extent antiracist activists and law­mak­ers will be able to achieve con­crete pol­i­cy gains for the next decade. Fight­ing ger­ry­man­der­ing is one of the best ways to fight struc­tur­al racism.

Whichev­er par­ty wins biggest in state races in Novem­ber will be able to tip the polit­i­cal scales until 2031. In 35 states, the state leg­is­la­ture draws new dis­trict maps every 10 years. In many, con­gres­sion­al and state leg­isla­tive dis­trict maps are drawn with high­ly sophis­ti­cat­ed com­put­er pro­grams designed to rig the sys­tem for the incum­bent polit­i­cal par­ty. Politi­cians effec­tive­ly pick their vot­ers.

Ahead of 2010, the last redis­trict­ing elec­tion, Repub­li­can oper­a­tives designed a strate­gic plan to flip under-the-radar state seats so that they could con­trol con­gres­sion­al and leg­isla­tive map-draw­ing. Repub­li­cans swept state races, win­ning an addi­tion­al 675 state leg­isla­tive seats and anoth­er six gov­er­nor­ships. Democ­rats ced­ed ground across the coun­try, even in unan­tic­i­pat­ed places like Min­neso­ta, North Car­oli­na, Ohio and Wis­con­sin. Those wins enabled Repub­li­cans to ger­ry­man­der maps so that hun­dreds of state leg­isla­tive seats nation­wide were no longer com­pet­i­tive and the bal­ance of pow­er in Con­gress was changed by almost 20 House seats.

Unfair maps are a major form of struc­tur­al racism hid­ing in plain sight. In recent redis­trict­ing plans, Repub­li­cans have “packed” and “cracked” Black com­mu­ni­ties to secure their advan­tage. By rig­ging the sys­tem to reduce Demo­c­ra­t­ic rep­re­sen­ta­tion and keep incum­bents in office, ger­ry­man­dered maps dilute the vot­ing pow­er of peo­ple of col­or and their neigh­bors. Those vot­ers have lit­tle recourse when law­mak­ers pass or refuse to over­turn state-lev­el poli­cies that hurt peo­ple of col­or.

The US supreme court has pro­hib­it­ed explic­it racial ger­ry­man­ders but has declined to ban ger­ry­man­ders that effec­tive­ly achieve the same out­come. For decades, loud racist cam­paign rhetoric and behind-the-scenes ger­ry­man­der­ing plans have worked hand-in-glove: stump speech­es about “law and order” or “immi­grants steal­ing jobs” get a can­di­date elect­ed; ger­ry­man­der­ing incen­tivizes appeal­ing to the most polar­ized vot­ers and all but guar­an­tees an incum­bent will stay in office; the incumbent’s pres­ence in the leg­is­la­ture allows the state to enact increas­ing­ly extreme leg­is­la­tion on issues rang­ing from guns to health­care to cli­mate change to pris­ons to polic­ing – and, of course, vot­ing.

There’s no con­fus­ing the motive behind this cycle of rhetoric, ger­ry­man­der­ing, dis­en­fran­chise­ment and pol­i­cy. Some of today’s most entrenched ger­ry­man­ders were orig­i­nal­ly spear­head­ed by Lee Atwa­ter, a Repub­li­can oper­a­tive who infa­mous­ly described the tra­jec­to­ry of Repub­li­can mes­sag­ing on race by say­ing that by 1968 they couldn’t use the N‑word any­more because it “back­fired”, so instead “you say stuff like forced bus­ing, states’ rights and all that stuff”.

The con­cert­ed effort took off just before the 1990 cen­sus. Atwa­ter laid a plan to racial­ly ger­ry­man­der Flori­da, which for years Blue Dog Democ­rats had ger­ry­man­dered to keep them­selves in pow­er. By 1999, Flori­da Repub­li­cans held the tri­fec­ta – gov­er­nor­ship, house, and sen­ate – for the first time since Recon­struc­tion. And they’ve had a lock on pow­er on the state lev­el ever since. Atwa­ter and his allies went on to exe­cute a sim­i­lar plan in eight south­ern states.

As the pan­dem­ic and its eco­nom­ic fall­out have dev­as­tat­ed our nation, we have seen the real-life reper­cus­sions of Repub­li­can ger­ry­man­ders. In Flori­da, Repub­li­can law­mak­ers declined to expand Med­ic­aid, leav­ing rough­ly 800,000 low-income Florid­i­ans with­out health insur­ance. In 2013, after orga­niz­ers in Orange coun­ty suc­ceed­ed in win­ning sup­port for local ordi­nances that guar­an­teed work­ers paid sick days, the state leg­is­la­ture passed a law pre­vent­ing local munic­i­pal­i­ties from pass­ing their own paid sick leave poli­cies. The wild­fire spread of Covid-19 has made obvi­ous how harm­ful it is to require low-income work­ers to choose between stay­ing home when they’re sick and keep­ing their jobs.

These poli­cies are the build­ing blocks of struc­tur­al racism: work­ers of col­or are more like­ly than white work­ers to be paid pover­ty-lev­el wages. Black work­ers are more like­ly to hold jobs deemed “essen­tial” dur­ing Covid-19 shut­downs. Yet 20 states have pre-emp­tion laws on the books that pre­vent city lead­ers from pass­ing their own local sick leave poli­cies. In fact, as the virus spread this spring and sum­mer, moved to pro­hib­it local munic­i­pal­i­ties from enact­ing their own mask-wear­ing and stay-at-home poli­cies.

After Repub­li­cans took over state leg­is­la­tures in 2010, states imple­ment­ed an increas­ing num­ber of pre-emp­tion laws that pre­vent cities from hav­ing their own laws on guns, wages, employ­ment dis­crim­i­na­tion, clean ener­gy and more. States’ lee­way in pro­hibit­ing city lead­ers from com­ing up with their own solu­tions to their con­stituents’ prob­lems is only going to become more impor­tant as munic­i­pal­i­ties nation­wide face unprece­dent­ed bud­get short­falls, unem­ploy­ment and evic­tions as well as dis­sent and grief over polic­ing. No mat­ter how pro­gres­sive city lead­ers try to be, their efforts can be stymied by state offi­cials. State law­mak­ers who over­rep­re­sent white Amer­i­cans will con­tin­ue to over­ride law­mak­ers elect­ed by city-dwellers who are dis­pro­por­tion­ate­ly zlack, brown, immi­grant, and LGBTQ+. Unless, of course, we change the bal­ance of pow­er in Novem­ber.

In 2018, Democ­rats orga­nized across the coun­try and won back six leg­isla­tive cham­bers in six states – real gains, but not enough to undo Repub­li­can con­trol in large swaths of the coun­try. Repub­li­can donors have strate­gi­cal­ly invest­ed in state races to win in a redis­trict­ing year. Now, Repub­li­can oper­a­tives are act­ing on ambi­tious plans to win as many leg­isla­tive seats as pos­si­ble ahead of 2021. Those plans will have the side-effect of help­ing Trump and will poten­tial­ly enable Repub­li­cans to keep their grip on the under­ly­ing pow­er struc­ture even if Trump leaves office.

Reme­dies to our nation’s many forms of sys­temic injus­tice often feel so enor­mous as to be out of reach. But there are actions we can all take to min­i­mize unfair ger­ry­man­ders and to reform state poli­cies. You can sup­port efforts like the Nation­al Redis­trict­ing Action Fund, which aims to end par­ti­san ger­ry­man­der­ing, or groups like Sis­ter Dis­trict, which orga­nizes vol­un­teers to elect Democ­rats to state leg­isla­tive seats. You can find your local can­di­date and vol­un­teer. In local races, what­ev­er time or mon­ey you have to give will go far.

...

————-

“Want to dis­man­tle struc­tur­al racism in the US? Help fight ger­ry­man­der­ing” by Meaghan Win­ter; The Guardian; 08/21/2020

“Amer­i­cans look­ing for imme­di­ate ways to work to dis­man­tle struc­tur­al racism can – and must – turn their atten­tion to this November’s state leg­isla­tive races. Down-bal­lot races may not receive the same hype as the Biden-Trump con­test, but those state races will deter­mine to what extent antiracist activists and law­mak­ers will be able to achieve con­crete pol­i­cy gains for the next decade. Fight­ing ger­ry­man­der­ing is one of the best ways to fight struc­tur­al racism.”

Yes, in terms of fight­ing struc­tur­al racism in the US it’s hard to find of more effec­tive and direct means than fight­ing ger­ry­man­der­ing, a prac­tice that Repub­li­cans have turned into a sci­ence in recent decades. A sci­ence focused on pack­ing as many minor­i­ty vot­ers into as few dis­tricts as pos­si­ble, free­ing up more and more politi­cians to ignore minor­i­ty con­cerns and strip­ping minori­ties of real polit­i­cal influ­ence. It’s extreme­ly struc­tur­al racism val­i­dat­ed by the Supreme Court’s con­ser­v­a­tive major­i­ty just last year which is also a reminder that the con­ser­v­a­tive cap­ture of a long-term Supreme Court major­i­ty by adopt­ing a ‘though any means nec­es­sary’ polit­i­cal moral­i­ty also rep­re­sent a very real source of the struc­tur­al racism of Amer­i­ca. There’s going to be endur­ing struc­tur­al racism in Amer­i­ca as long as the court is prone to far right extrem­ist legal inter­pre­ta­tions and play­ing dumb about the impli­ca­tions. But for now the court is hap­py to play dumb about this major form of struc­tur­al racism hid­ing in plain sight in the form of ger­ry­man­der­ing:

...
Unfair maps are a major form of struc­tur­al racism hid­ing in plain sight. In recent redis­trict­ing plans, Repub­li­cans have “packed” and “cracked” Black com­mu­ni­ties to secure their advan­tage. By rig­ging the sys­tem to reduce Demo­c­ra­t­ic rep­re­sen­ta­tion and keep incum­bents in office, ger­ry­man­dered maps dilute the vot­ing pow­er of peo­ple of col­or and their neigh­bors. Those vot­ers have lit­tle recourse when law­mak­ers pass or refuse to over­turn state-lev­el poli­cies that hurt peo­ple of col­or.

The US supreme court has pro­hib­it­ed explic­it racial ger­ry­man­ders but has declined to ban ger­ry­man­ders that effec­tive­ly achieve the same out­come. For decades, loud racist cam­paign rhetoric and behind-the-scenes ger­ry­man­der­ing plans have worked hand-in-glove: stump speech­es about “law and order” or “immi­grants steal­ing jobs” get a can­di­date elect­ed; ger­ry­man­der­ing incen­tivizes appeal­ing to the most polar­ized vot­ers and all but guar­an­tees an incum­bent will stay in office; the incumbent’s pres­ence in the leg­is­la­ture allows the state to enact increas­ing­ly extreme leg­is­la­tion on issues rang­ing from guns to health­care to cli­mate change to pris­ons to polic­ing – and, of course, vot­ing.
...

But the theft of polit­i­cal rep­re­sen­ta­tion isn’t lim­it­ed to the removal of polit­i­cal influ­ence dur­ing elec­tions as a result of pack­ing minori­ties into a few con­cen­trat­ed dis­tricts and Repub­li­can over-rep­re­sen­ta­tion in the House and state leg­is­la­tures. And that over-rep­re­sen­ta­tion of state leg­is­la­tures, in turn, has giv­en Repub­li­cans the oppor­tu­ni­ty to squash pro­gres­sive laws passed by the local gov­ern­ments of the large cities. Large cities where minori­ties the major­i­ty of non-whites hap­pen to live. It’s struc­tur­al racism gen­er­at­ed by Repub­li­can ger­ry­man­der­ing is a mul­ti­fac­eted phe­nom­e­na:

...
After Repub­li­cans took over state leg­is­la­tures in 2010, states imple­ment­ed an increas­ing num­ber of pre-emp­tion laws that pre­vent cities from hav­ing their own laws on guns, wages, employ­ment dis­crim­i­na­tion, clean ener­gy and more. States’ lee­way in pro­hibit­ing city lead­ers from com­ing up with their own solu­tions to their con­stituents’ prob­lems is only going to become more impor­tant as munic­i­pal­i­ties nation­wide face unprece­dent­ed bud­get short­falls, unem­ploy­ment and evic­tions as well as dis­sent and grief over polic­ing. No mat­ter how pro­gres­sive city lead­ers try to be, their efforts can be stymied by state offi­cials. State law­mak­ers who over­rep­re­sent white Amer­i­cans will con­tin­ue to over­ride law­mak­ers elect­ed by city-dwellers who are dis­pro­por­tion­ate­ly zlack, brown, immi­grant, and LGBTQ+. Unless, of course, we change the bal­ance of pow­er in Novem­ber.

In 2018, Democ­rats orga­nized across the coun­try and won back six leg­isla­tive cham­bers in six states – real gains, but not enough to undo Repub­li­can con­trol in large swaths of the coun­try. Repub­li­can donors have strate­gi­cal­ly invest­ed in state races to win in a redis­trict­ing year. Now, Repub­li­can oper­a­tives are act­ing on ambi­tious plans to win as many leg­isla­tive seats as pos­si­ble ahead of 2021. Those plans will have the side-effect of help­ing Trump and will poten­tial­ly enable Repub­li­cans to keep their grip on the under­ly­ing pow­er struc­ture even if Trump leaves office.
...

So let’s hope the fact that Trump’s open embrace of white nation­al­ism is guar­an­teed to be a cen­tral issue in the US 2020 pres­i­den­tial elec­tion leads to a nation­al dis­cus­sion of whether or not the GOP’s extreme ger­ry­man­der­ing is accept­able. The Supreme Court’s con­ser­v­a­tive major­i­ty declared it basi­cal­ly accept­able with its Rucho v Com­mon Cause rul­ing last year and 2021 is the round of extreme ger­ry­man­der­ing. And if his­to­ry is a guide the GOP’s ger­ry­man­der­ing is going to be even more extreme in 2021. The struc­tur­al racism that comes from Repub­li­can race-based ger­ry­man­der­ing is poised to be even more extreme for the next decade.

It’s also a reminder that one of the rea­sons Amer­i­cans needs to over­whelm­ing­ly reject the Repub­li­can Par­ty’s embrace of white nation­al­ism is that over­whelm­ing majori­ties are now required to over­come all the racist ger­ry­man­der­ing. And for that same rea­son they’ll need to be even more over­whelm­ing­ly reject­ed for the next decade after they get done ger­ry­man­der­ing it even more next year.

With all of the under­stand­able con­cern over the prospect of the Trump admin­is­tra­tion not just steal­ing the 2020 elec­tion but effec­tive­ly break­ing Amer­i­ca’s democ­ra­cy in the process, it’s easy to for­get that the 2020 Cen­sus count rep­re­sents an oppor­tu­ni­ty for the GOP to rig the bal­ance of pow­er for the next decade. Rig­ging the cen­sus count may not be the threat of break­ing democ­ra­cy but it’s still a mas­sive threat. As the Repub­li­can Par­ty has con­sis­tent­ly made clear decade after decade, a lot of per­ma­nent dam­age can be done in a decade. And that’s why the sto­ry of a new Cen­sus Bureau whistle­blow­er pro­vid­ing doc­u­ments to the House Over­sight Com­mit­tee describ­ing a Repub­li­can plot to under­mine the accu­ra­cy of the cen­sus is such a big deal:

Talk­ing Points Memo
News

Whistle­blow­er Docs Warn Of Risk Of ‘Seri­ous Errors’ With Rushed 2020 Cen­sus

By Tier­ney Sneed
Sep­tem­ber 2, 2020 3:59 p.m.

Inter­nal Cen­sus Bureau doc­u­ments a whistle­blow­er pro­vid­ed to the House Over­sight Com­mit­tee warn that the Trump administration’s plan to rush the 2020 count will “reduce accu­ra­cy,” “neg­a­tive­ly” impact the redis­trict­ing data the count pro­duces, and cre­ates “risk for seri­ous errors not being dis­cov­ered in the data.”

The doc­u­ments, released Wednes­day, pro­vide new details on how the Cen­sus Bureau is plan­ning to speed through not just the process of col­lect­ing the decen­ni­al cen­sus data, but the post-col­lec­tion qual­i­ty checks that hap­pen after­wards.

Ear­li­er this year the bureau had said that it need­ed Con­gress to give it four extra months to release appor­tion­ment data and redis­trict­ing data from the 2020 count, because of the delays caused by the pan­dem­ic.

It reversed course in recent weeks, how­ev­er, in a move wide­ly believed to be relat­ed to Pres­i­dent Trump’s legal­ly dubi­ous request that the appor­tion­ment num­bers — which deter­mine the num­ber of House seats each state gets — exclude undoc­u­ment­ed immi­grants.

If Con­gress grant­ed the four-month exten­sions the bureau ini­tial­ly had been seek­ing, then a Joe Biden admin­is­tra­tion could reverse the new appor­tion­ment pol­i­cy, which is also being chal­lenged in court.

The new doc­u­ments — which are an inter­nal slide show and excerpts of com­mit­tee inter­views of career bureau offi­cials — sug­gest the admin­is­tra­tion is putting a pri­or­i­ty on rush­ing the appor­tion­ment num­bers out while Trump is guar­an­teed to still be in office, to the risk of the accu­ra­cy of all the oth­er data the decen­ni­al count is sup­posed to pro­duce.

The slideshow stat­ed that the pro­cess­ing work that will begin in Octo­ber, after the count­ing oper­a­tions end, is being lim­it­ed to what is required to pro­duce the appor­tion­ment num­bers.

“Deliv­ery of redis­trict­ing data prod­ucts will be neg­a­tive­ly impact­ed under this
revised plan and we are deter­min­ing full impacts,” the slideshow said.

The House Over­sight Com­mit­tee released the doc­u­ments along with an urgent plea that Con­gress give the bureau more time to fin­ish the count — an idea that has bipar­ti­san sup­port in the Sen­ate and has already been approved the House.

The slideshow was from a pre­sen­ta­tion that was giv­en Aug. 3 to Com­merce Sec­re­tary Wilbur Ross, who over­sees the cen­sus. Bureau offi­cials told the com­mit­tee that they received a phone call from one of Ross’ top aides on July 29 request­ing that they cre­ate the plan for expe­dit­ing the count so that the appor­tion­ment num­bers could be deliv­ered at the end of the year.

Nei­ther the Cen­sus Bureau nor the Com­merce Depart­ment imme­di­ate­ly respond­ed to TPM’s request for com­ment. But out­side redis­trict­ing experts and demog­ra­phers were alarmed by what was described in the new doc­u­ments.

“This real­ly is a polit­i­cal attack on the accu­ra­cy of the cen­sus,” Andrew Bev­eridge, a soci­ol­o­gist and demo­graph­ics expert at CUNY, told TPM.

“Wow, all the fears are com­ing true,” Kim­ball Brace, a redis­trict­ing expert, said in an email respond­ing to the doc­u­ments.

The recent announce­ment that the Cen­sus Bureau will stop its data col­lec­tion activ­i­ties — includ­ing both self response and the oper­a­tions aimed at count­ing those who don’t respond to the sur­vey on their own — a month ear­ly, at the end of the Sep­tem­ber, was already caus­ing deep anx­i­ety among the researchers, busi­ness­es, map draw­ers and oth­er enti­ties that rely on the data. More than $1 tril­lion in fed­er­al fund­ing is allo­cat­ed based on cen­sus data, as is cer­tain state and local gov­ern­ment fund­ing — in addi­tion to the role the data play in deter­min­ing polit­i­cal rep­re­sen­ta­tion.

After it fin­ish­es col­lect­ing the data, bureau usu­al­ly spends four to five months on post-col­lec­tion qual­i­ty checks. Under the new plan, it will now have just two and half months. This “high­ly com­pressed” sched­ule, in cut­ting back or elim­i­nat­ing cer­tain oper­a­tions, “will reduce accu­ra­cy,” the pre­sen­ta­tion warned.

“A com­pressed review peri­od cre­ates risk for seri­ous errors not being dis­cov­ered in the data—thereby sig­nif­i­cant­ly decreas­ing data qual­i­ty,” the pre­sen­ta­tion said.

Among the activ­i­ties being cut back, accord­ing to the pre­sen­ta­tion, are so-called re-inter­views, which is how the Cen­sus Bureau goes back to check the accu­ra­cy of the respons­es it received.

The House com­mit­tee was briefed by Cen­sus Deputy Direc­tor Ron Jarmin, Asso­ciate Direc­tor for Decen­ni­al Pro­grams Al Fontenot, and Asso­ciate Direc­tor for Field Oper­a­tions Tim Olson last week. Accord­ing to the sum­ma­ry released Wednes­day, Com­merce Depart­ment offi­cials inter­vened repeat­ed­ly to pre­vent those offi­cials from giv­ing full answers when asked about the risks of the expe­dit­ed sched­ule.

Even as the Cen­sus offi­cials “expressed opti­mism,” accord­ing to the com­mit­tee sum­ma­ry, about their abil­i­ty to com­ply with the new sched­ule, they “made clear that they were forced to dra­mat­i­cal­ly trun­cate their plans because the statu­to­ry dead­lines have not yet been extend­ed.”

Olson told the com­mit­tee that “it was too ear­ly to cry under­count,” accord­ing to the new doc­u­ments, but acknowl­edged that “if Con­gress were to give a leg­isla­tive relief, that’s a dif­fer­ent con­ver­sa­tion.”

“They haven’t done that. So I have a man­date to get an accu­rate count by Sep­tem­ber 30th, and we’re going to do every­thing under the sun to get there,” he said.

The House passed a COVID-19 bill ear­li­er this year that did grant those exten­sions. But when the Sen­ate GOP released its lat­est coro­n­avirus pro­pos­al, the exten­sions were notably absent. The White House asked Sen­ate Major­i­ty Leader Mitch McConnell (R‑KY) to instead appro­pri­ate an extra $1 bil­lion for the bureau’s count­ing oper­a­tion, accord­ing to the New York Times.

Olson recount­ed to the com­mit­tee how the Com­merce Depart­ment and the White House Office of Man­age­ment Bud­get had been on board with the orig­i­nal request for the four-month exten­sions. Not­ing that the House approved the exten­sions, Olson said that “through the grapevine, I was told that there was sup­port in the Sen­ate for that,” accord­ing to the sum­ma­ry.

...

———–

“Whistle­blow­er Docs Warn Of Risk Of ‘Seri­ous Errors’ With Rushed 2020 Cen­sus” by Tier­ney Sneed; Talk­ing Points Memo; 09/02/2020

“The doc­u­ments, released Wednes­day, pro­vide new details on how the Cen­sus Bureau is plan­ning to speed through not just the process of col­lect­ing the decen­ni­al cen­sus data, but the post-col­lec­tion qual­i­ty checks that hap­pen after­wards.”

It’s a mul­ti­pronged sab­o­tage effort. The Com­merce Sec­re­tary, who over­sees the cen­sus, has been direct­ing cen­sus offi­cials to plan for an expe­dit­ed count that assures the appor­tion­ment count will be deliv­ered by the end of the year, cram­ming a qual­i­ty con­trol process that nor­mal­ly takes four to five months down to two and a half months. It’s lit­er­al­ly plan­ning on low­er qual­i­ty and reduced accu­ra­cy. And the under­ly­ing motive appears to be ensur­ing that the offi­cial reap­por­tion­ment count gets estab­lished while Trump is still in office so they can force their new rul­ing that undoc­u­ment­ed immi­grants don’t get count­ed. Keep in mind that undoc­u­ment­ed immi­grants are also the group that’s the most like­ly to be mis­count­ed in the ini­tial count so reduc­ing the qual­i­ty checks is a means of sys­tem­at­i­cal­ly under-count­ing that group:

...
Ear­li­er this year the bureau had said that it need­ed Con­gress to give it four extra months to release appor­tion­ment data and redis­trict­ing data from the 2020 count, because of the delays caused by the pan­dem­ic.

It reversed course in recent weeks, how­ev­er, in a move wide­ly believed to be relat­ed to Pres­i­dent Trump’s legal­ly dubi­ous request that the appor­tion­ment num­bers — which deter­mine the num­ber of House seats each state gets — exclude undoc­u­ment­ed immi­grants.

If Con­gress grant­ed the four-month exten­sions the bureau ini­tial­ly had been seek­ing, then a Joe Biden admin­is­tra­tion could reverse the new appor­tion­ment pol­i­cy, which is also being chal­lenged in court.

The new doc­u­ments — which are an inter­nal slide show and excerpts of com­mit­tee inter­views of career bureau offi­cials — sug­gest the admin­is­tra­tion is putting a pri­or­i­ty on rush­ing the appor­tion­ment num­bers out while Trump is guar­an­teed to still be in office, to the risk of the accu­ra­cy of all the oth­er data the decen­ni­al count is sup­posed to pro­duce.

The slideshow stat­ed that the pro­cess­ing work that will begin in Octo­ber, after the count­ing oper­a­tions end, is being lim­it­ed to what is required to pro­duce the appor­tion­ment num­bers.

...

The slideshow was from a pre­sen­ta­tion that was giv­en Aug. 3 to Com­merce Sec­re­tary Wilbur Ross, who over­sees the cen­sus. Bureau offi­cials told the com­mit­tee that they received a phone call from one of Ross’ top aides on July 29 request­ing that they cre­ate the plan for expe­dit­ing the count so that the appor­tion­ment num­bers could be deliv­ered at the end of the year.

...

After it fin­ish­es col­lect­ing the data, bureau usu­al­ly spends four to five months on post-col­lec­tion qual­i­ty checks. Under the new plan, it will now have just two and half months. This “high­ly com­pressed” sched­ule, in cut­ting back or elim­i­nat­ing cer­tain oper­a­tions, “will reduce accu­ra­cy,” the pre­sen­ta­tion warned.

...

The House com­mit­tee was briefed by Cen­sus Deputy Direc­tor Ron Jarmin, Asso­ciate Direc­tor for Decen­ni­al Pro­grams Al Fontenot, and Asso­ciate Direc­tor for Field Oper­a­tions Tim Olson last week. Accord­ing to the sum­ma­ry released Wednes­day, Com­merce Depart­ment offi­cials inter­vened repeat­ed­ly to pre­vent those offi­cials from giv­ing full answers when asked about the risks of the expe­dit­ed sched­ule.
...

And while the Demo­c­rat-con­trolled House COVID-19 relief bill grant­ed the Cen­sus Bureau exten­sions for the dead­lines, those exten­sions just hap­pen to be miss­ing from the Repub­li­can-con­trolled Sen­ate bill:

...
The House passed a COVID-19 bill ear­li­er this year that did grant those exten­sions. But when the Sen­ate GOP released its lat­est coro­n­avirus pro­pos­al, the exten­sions were notably absent. The White House asked Sen­ate Major­i­ty Leader Mitch McConnell (R‑KY) to instead appro­pri­ate an extra $1 bil­lion for the bureau’s count­ing oper­a­tion, accord­ing to the New York Times.

Olson recount­ed to the com­mit­tee how the Com­merce Depart­ment and the White House Office of Man­age­ment Bud­get had been on board with the orig­i­nal request for the four-month exten­sions. Not­ing that the House approved the exten­sions, Olson said that “through the grapevine, I was told that there was sup­port in the Sen­ate for that,” accord­ing to the sum­ma­ry.
...

And of course the exten­sions were miss­ing from the Sen­ate COVID relief bill. Because if there’s one thing the Repub­li­can Par­ty has made abun­dant­ly clear long before Trump came along it’s that the par­ty is ful­ly com­mit­ted to win­ning pow­er through any means nec­es­sary. Espe­cial­ly when it comes to ger­ry­man­der­ing and rig­ging the cen­sus us basi­cal­ly an ger­ry­man­der­ing at the inter­state lev­el. It would be bizarre and dis­ori­ent­ing if the exten­sions weren’t miss­ing from the Sen­ate bill.

It points towards one of the grand ironies about the rel­a­tive lack of atten­tion giv­en to this open cen­sus-rig­ging scheme: on the one hand, it’s an easy sto­ry to ignore because there’s so much big­ger and more imme­di­ate Repub­li­can sab­o­tage tak­ing place like the open sab­o­tage of the postal sys­tem. But on the oth­er hand, it’s an easy sto­ry to ignore because Repub­li­can cor­rup­tion and sab­o­tage is so ubiq­ui­tous its bare­ly news any­more. It’s two sides of the same awful strat­e­gy. An awful strat­e­gy that, at this point, is on track to cheat out anoth­er decade of skewed House dis­trict appor­tion­ment maps designed to help Repub­li­cans.

Ruth Bad­er Gins­burg just died. The cause appears to be com­pli­ca­tions from metasta­t­ic pan­cre­at­ic can­cer. And while the impli­ca­tions of her death are pro­found and bound to become a defin­ing issue for the rest of the 2020 elec­tion — Oba­macare is basi­cal­ly dead now, as is Roe v Wade — here’s a quick reminder that one of the imme­di­ate impli­ca­tions of her death is that any Supreme Court votes that involve the res­o­lu­tion of elec­tions, includ­ing the pres­i­den­tial elec­tion, will have to be done by a 5–3 con­ser­v­a­tive major­i­ty court. And that means the poten­tial Trump re-elec­tion strat­e­gy we’ve been warned about — the strat­e­gy of cre­at­ing elec­toral chaos and legal chal­lenges to state elec­toral vote counts cas­es intend­ed for the Supreme Court in the hopes that the court kicks the deci­sion to the House of rep­re­sen­ta­tives where each state del­e­ga­tion gets one vote, effec­tive­ly guar­an­tee­ing a Trump vic­to­ry — it going to be even more tempt­ing than ever. That’s assum­ing Pres­i­dent Trump and the Repub­li­can-run Sen­ate does­n’t ram through a Supreme Court nom­i­nee over the next six weeks and cre­ate a 6–3 con­ser­v­a­tive major­i­ty on any upcom­ing votes which would make such a re-elec­tion-by-House-vote strat­e­gy even more tempt­ing:

Talk­ing Points Memo
News

3 Big Ways RBG’s Death Could Have An Imme­di­ate SCOTUS Impact

By Tier­ney Sneed
Sep­tem­ber 18, 2020 10:31 p.m.

Even before it’s deter­mined whether Pres­i­dent Trump will get to fill the seat left vacant by the Jus­tice Ruth Bad­er Ginsburg’s death, her absence could have a big impact on dis­putes already before or like­ly head­ed to the Supreme Court.

...

Here are three ways Ginsburg’s death could shift the dynam­ics of issues that are now on their way to the Supreme Court.

Oba­macare: The Supreme Court already has sched­uled for oral argu­ments in Novem­ber a major chal­lenge to the Afford­able Care Act. Texas and oth­er GOP states are seek­ing to dis­man­tle the Afford­able Care Act under the dubi­ous the­o­ry that, when the con­gres­sion­al Repub­li­cans zeroed out Obamacare’s indi­vid­ual man­date, they ren­dered the entire law uncon­sti­tu­tion­al.

Because Chief Jus­tice John Roberts had vot­ed in favor of uphold­ing Oba­macare when the argu­ments against it were more plau­si­ble, legal observers — and even Sen­ate Repub­li­cans — did not see much of a chance of him cast­ing a decid­ing vote to demol­ish it. But if the four oth­er con­ser­v­a­tives side with Texas, that will cre­ate a 4–4 split that will defer back to the low­er courts. A dis­trict court had ful­ly inval­i­dat­ed the law. The con­ser­v­a­tive U.S. Court of Appeals for the 5th Cir­cuit punt­ed, send­ing it back to the dis­trict court for review before the Supreme Court took the case.

Elec­tion Dis­putes: A half dozen emer­gency legal dis­putes over elec­tion rules have been kicked up to the Supreme Court. In most cas­es, the con­ser­v­a­tive court has stuck togeth­er to side with the par­ty want­i­ng to main­tain restric­tive vot­ing laws that have been relaxed by low­er courts. So, Ginsburg’s death doesn’t change that dynam­ic.

How­ev­er, the one excep­tion to the trend was a case out of Rhode Island, where the RNC was try­ing to over­turn a con­sent decree the state had reached with vot­er advo­cates that opened up absen­tee vot­ing. Three con­ser­v­a­tives not­ed their dis­sents pub­licly, but it’s pos­si­ble that a fourth con­ser­v­a­tive also would have ruled in the RNC’s favor (jus­tices aren’t required to note their dis­sents pub­licly in these kinds of emer­gency dis­putes). So Ginsburg’s death may open up the door for the RNC or oth­er out­side groups to over­turn at SCOTUS the legal agree­ments states have reached to make vot­ing eas­i­er.

Per­haps the even big­ger ques­tion is what her death means for any hypo­thet­i­cal dis­putes — a la Bush v. Gore — that arise after the elec­tion. The spec­u­la­tion on how those would play out cen­ter on Chief Jus­tice Roberts’ instinct towards stir­ring the court away from high­ly politi­cized deci­sions when pos­si­ble. But he may lose some lever­age if the oth­er con­ser­v­a­tives can band togeth­er to dead­lock a case. This means the way low­er courts han­dle major post-elec­tion dis­putes will take on extra impor­tance.

Cen­sus: It’s already guar­an­teed that the Supreme Court will be the final word on whether Pres­i­dent Trump can exclude undoc­u­ment­ed immi­grants from the con­gres­sion­al appor­tion­ment —a move wide­ly believed to be uncon­sti­tu­tion­al and vio­la­tion of fed­er­al statute. But the tim­ing of when the mat­ter will be decid­ed by the Supreme Court is still up in the air. The Jus­tice Depart­ment for­mal­ly noticed its appeal to the Supreme Court this week.

Last week, a three-judge pan­el ruled that Trump’s pol­i­cy vio­lat­ed the law. (The pan­el opt­ed not to decide the con­sti­tu­tion­al ques­tions.) Because the case deals with appor­tion­ment, it goes direct­ly to the Supreme Court after get­ting its ini­tial review from a three-judge pan­el. And the Supreme Court has to issue some sort of judge­ment on the dis­pute — though it’s up to the court whether to have full argu­ments on the case or to issue a deci­sion more quick­ly. The jus­tices will also have before them fair­ly soon a deci­sion whether to imme­di­ate­ly block the Trump pol­i­cy while the case is on appeal.

The oppor­tu­ni­ty Trump has to put on the court a jus­tice more like­ly to rule in his favor makes the deci­sions about tim­ing and whether to block the pol­i­cy now much more con­se­quen­tial.

————

“3 Big Ways RBG’s Death Could Have An Imme­di­ate SCOTUS Impact” by Tier­ney Sneed; Talk­ing Points Memo; 09/18/2020

“Per­haps the even big­ger ques­tion is what her death means for any hypo­thet­i­cal dis­putes — a la Bush v. Gore — that arise after the elec­tion. The spec­u­la­tion on how those would play out cen­ter on Chief Jus­tice Roberts’ instinct towards stir­ring the court away from high­ly politi­cized deci­sions when pos­si­ble. But he may lose some lever­age if the oth­er con­ser­v­a­tives can band togeth­er to dead­lock a case. This means the way low­er courts han­dle major post-elec­tion dis­putes will take on extra impor­tance.”

Who will win what promis­es to be one of the most legal­ly con­test­ed pres­i­den­tial elec­tions of all time. It’s the big imme­di­ate legal issue imme­di­ate­ly loom­ing over the court and the kind of legal case that could either set or destroy a sense of legit­i­ma­cy for the new court going for­ward.

And right now it’s a court with a 5–3 right-wing major­i­ty although, depend­ing on the case, it’s pos­si­ble John Roberts would side with the lib­er­als result­ing in a 4–4 tie. So what might hap­pen if there’s a legal chal­lenge involv­ing the vote tal­ly­ing that results in 4–4 tie? Well, it just upholds the last low­er court deci­sion in the case. So it’s not like a con­sti­tu­tion­al emer­gency. The US has oper­at­ed with an even num­ber of judges plen­ty of times in the past. As the fol­low­ing arti­cle points out, back in 2016 Sen­a­tor Ted Cruz was pledg­ing to block any new jus­tice appoint­ed by then-Pres­i­dent Oba­ma or a Pres­i­dent Hillary Clin­ton indef­i­nite­ly. The US would have had an 8‑judge Supreme Court for any elec­tion-relat­ed legal chal­lenges in 2016 and Cruz was just fine with that. Flash for­ward to 2020 and Cruz is now char­ac­ter­iz­ing the pos­si­bil­i­ty of a 4–4 rul­ing elec­tion-relat­ed rul­ing as a con­sti­tu­tion­al cri­sis and the rea­son he is call­ing for a swift con­fir­ma­tion of a new jus­tice

Moth­er Jones

The New Repub­li­can Talk­ing Point on Replac­ing RBG Before the Elec­tion is Non­sense
Ted Cruz is wor­ried about a con­sti­tu­tion­al cri­sis. The Repub­li­cans are cre­at­ing it.

Tim Mur­phy
Senior Reporter
09/19/2020

With­in a few hours of Jus­tice Ruth Bad­er Ginsburg’s death, an argu­ment was begin­ning to crys­tal­lize on the right: the Sen­ate need­ed to fill her vacan­cy on the Supreme Court, so as to pre­vent a con­sti­tu­tion­al cri­sis if a con­test­ed elec­tion went to the Supreme Court.

The main dri­ver of this think­ing was, nat­u­ral­ly, Texas Repub­li­can Sen. Ted Cruz, a mem­ber of the judi­cia­ry com­mit­tee who Pres­i­den­tial Don­ald Trump has float­ed as a poten­tial nom­i­nee for the court.

“Democ­rats and Joe Biden have made clear they intend to chal­lenge this elec­tion,” he said in a Fri­day night inter­view on Fox News. “They intend to fight the legit­i­ma­cy of the elec­tion. As you know, Hillary Clin­ton has told Joe Biden, ‘Under no cir­cum­stances should you con­cede, you should chal­lenge this elec­tion.’ And we can­not have elec­tion day come and go with a four-four court. A four-four court that is equal­ly divid­ed can­not decide any­thing, and I think we risk a con­sti­tu­tion­al cri­sis if we do not have a nine-jus­tice Supreme Court, par­tic­u­lar­ly when there is such a risk of a con­test­ed lit­i­ga­tion and a con­test­ed elec­tion.”

Cruz invoked his own expe­ri­ence as part of the Repub­li­can legal team in Bush v. Gore, which effec­tive­ly decid­ed the 2000 elec­tion in favor of George W. Bush by end­ing the Flori­da recount. “Thir­ty-sev­en days the [pub­lic] did not know who the pres­i­dent was going to be,” he said, “and if we had a four-four court it could have gone weeks if not months.”

We are one vote away from los­ing our fun­da­men­tal con­sti­tu­tion­al lib­er­ties. I believe @realDonaldTrump should nom­i­nate a suc­ces­sor next week and the Sen­ate should take up and con­firm that suc­ces­sor before Elec­tion Day. pic.twitter.com/pS8i860RTa— Sen­a­tor Ted Cruz (@SenTedCruz) Sep­tem­ber 19, 2020

For­mer George W. Bush speech­writer and tor­ture apol­o­gist Marc Thiessen agreed:

Ted Cruz with an excel­lent point. If elec­tion is lit­i­gat­ed can’t risk hav­ing just 8 jus­tices and the pos­si­bil­i­ty of a dead­locked court. Could cause a con­sti­tu­tion­al cri­sis.— Marc Thiessen (@marcthiessen) Sep­tem­ber 19, 2020

And the Wash­ing­ton Post‘s Robert Cos­ta report­ed that the idea had some trac­tion in the rest of the Sen­ate Repub­li­can cau­cus.

From my notebook/calls over the past hour: there are dis­cus­sions with­in the Sen­ate GOP about vot­ing *before* the elec­tion, mak­ing the argu­ment that 9 jus­tices are need­ed in case of an elec­tion cri­sis. But Rs who want that aren’t sure if Collins/Murkowski would fight it.— Robert Cos­ta (@costareports) Sep­tem­ber 19, 2020

To the extent there might be a con­sti­tu­tion­al cri­sis, it’s more like­ly to be Trump’s doing. The pres­i­dent has spent four years attack­ing the demo­c­ra­t­ic process, lodg­ing base­less accu­sa­tions of vot­er fraud and call­ing into ques­tion the legit­i­ma­cy of absen­tee bal­lot­ing. A top aide at the Depart­ment of Health and Human Ser­vices recent­ly went on leave after telling sup­port­ers to buy ammo. Joe Biden is…not say­ing things like this.

There’s a lit­tle bit of sleight of hand here from Repub­li­cans, too, because the argu­ment implies that a pres­i­den­tial elec­tion being decid­ed by the Supreme Court—for the sec­ond time in two decades, and almost cer­tain­ly in favor of a Repub­li­can can­di­date who lost the pop­u­lar vote—could be any­thing oth­er than a con­sti­tu­tion­al cri­sis. Bush v. Gore was a deci­sion so par­ti­san and unusu­al that the court itself stip­u­lat­ed that it shouldn’t set a prece­dent; Trump v. Biden would be noth­ing short of con­sti­tu­tion­al hell.

Cruz, a for­mer Texas solic­i­tor gen­er­al who clerked for William Rehn­quist, knows per­fect­ly well how the Supreme Court works and doesn’t. Which is to say he knows per­fect­ly well the court can func­tion with eight jus­tices, and that doing so hard­ly pos­es some kind of exis­ten­tial threat in an elec­tion year. You don’t have to take my word for this, you can take Cruz’s. In 2016, when the death of Jus­tice Antonin Scalia left the cham­ber one man down—Scalia died in Feb­ru­ary, sev­en months ear­li­er in the cycle than his good friend Ginsburg—Cruz was adamant the court would be fine. Even as Trump called into ques­tion the legit­i­ma­cy of the elec­tion, in the months lead­ing up to the vote, and both par­ties steeled them­selves for a poten­tial con­tentious after­math, Cruz said that he’d do every­thing in his pow­er to pre­vent a Demo­c­ra­t­ic pres­i­dent from appoint­ing a ninth jus­tice. If nec­es­sary, he said he would con­tin­ue block­ing a con­fir­ma­tion vote even if Clin­ton won.

“There is cer­tain­ly long his­tor­i­cal prece­dent for a Supreme Court with few­er jus­tices,” he said at the time. “I would note, just recent­ly, that Jus­tice [Stephen] Brey­er observed that the vacan­cy is not impact­ing the abil­i­ty of the court to do its job.”

And he was right. An eight-jus­tice court is not that big of a deal. At var­i­ous points in its his­to­ry, the court sim­ply had an even num­ber of mem­bers (the num­ber of jus­tices is not stip­u­lat­ed by the Con­sti­tu­tion). Some­times jus­tices recuse them­selves; some­times bull­head­ed sen­a­tors refuse to vote a nom­i­nee and leave the court to work short­hand­ed for a full year. In the event of a 4–4 deci­sion, there’s not a cri­sis; the deci­sion of the low­er court—the deci­sion that one par­ty appealed to the Supreme Court—simply stands, with­out set­ting any fur­ther prece­dent. (Like in Bush v. Gore.) Not that it’s like­ly to even come to that. With the loss of the court’s lib­er­al lion, the make­up of the cur­rent court is tilt­ed heav­i­ly toward con­ser­v­a­tives, so Cruz’s night­mare sce­nario of a split court isn’t even all that like­ly. The most like­ly out­come of an elec­tion deci­sion, as Cruz cer­tain­ly knows, is a 5–3 deci­sion in his favor.

...

————

“The New Repub­li­can Talk­ing Point on Replac­ing RBG Before the Elec­tion is Non­sense” by Tim Mur­phy; Moth­er Jones; 09/19/2020

““Democ­rats and Joe Biden have made clear they intend to chal­lenge this elec­tion,” he said in a Fri­day night inter­view on Fox News. “They intend to fight the legit­i­ma­cy of the elec­tion. As you know, Hillary Clin­ton has told Joe Biden, ‘Under no cir­cum­stances should you con­cede, you should chal­lenge this elec­tion.’ And we can­not have elec­tion day come and go with a four-four court. A four-four court that is equal­ly divid­ed can­not decide any­thing, and I think we risk a con­sti­tu­tion­al cri­sis if we do not have a nine-jus­tice Supreme Court, par­tic­u­lar­ly when there is such a risk of a con­test­ed lit­i­ga­tion and a con­test­ed elec­tion.””

A four-four court that is equal­ly divid­ed can­not decide any­thing. That was the dec­la­ra­tion of sup­posed con­sti­tu­tion­al lawyer Ted Cruz. A dec­la­ra­tion intend­ed to be a jus­ti­fi­ca­tion for rapid­ly replac­ing Gins­burg with a new far right jus­tice. And a dec­la­ra­tion that is com­plete­ly con­tra­dict­ed by Cruz’s own stance on this exact same sce­nario in 2016 when Jus­tice Scalia died:

...
Cruz, a for­mer Texas solic­i­tor gen­er­al who clerked for William Rehn­quist, knows per­fect­ly well how the Supreme Court works and doesn’t. Which is to say he knows per­fect­ly well the court can func­tion with eight jus­tices, and that doing so hard­ly pos­es some kind of exis­ten­tial threat in an elec­tion year. You don’t have to take my word for this, you can take Cruz’s. In 2016, when the death of Jus­tice Antonin Scalia left the cham­ber one man down—Scalia died in Feb­ru­ary, sev­en months ear­li­er in the cycle than his good friend Ginsburg—Cruz was adamant the court would be fine. Even as Trump called into ques­tion the legit­i­ma­cy of the elec­tion, in the months lead­ing up to the vote, and both par­ties steeled them­selves for a poten­tial con­tentious after­math, Cruz said that he’d do every­thing in his pow­er to pre­vent a Demo­c­ra­t­ic pres­i­dent from appoint­ing a ninth jus­tice. If nec­es­sary, he said he would con­tin­ue block­ing a con­fir­ma­tion vote even if Clin­ton won.

“There is cer­tain­ly long his­tor­i­cal prece­dent for a Supreme Court with few­er jus­tices,” he said at the time. “I would note, just recent­ly, that Jus­tice [Stephen] Brey­er observed that the vacan­cy is not impact­ing the abil­i­ty of the court to do its job.”
...

Lind­sey Gra­ham has com­pe­ti­tion.

And note the crit­i­cal detail on how cas­es could be han­dled in the event of a 4–4 tie: the low­er court rul­ing stands:

...
And he was right. An eight-jus­tice court is not that big of a deal. At var­i­ous points in its his­to­ry, the court sim­ply had an even num­ber of mem­bers (the num­ber of jus­tices is not stip­u­lat­ed by the Con­sti­tu­tion). Some­times jus­tices recuse them­selves; some­times bull­head­ed sen­a­tors refuse to vote a nom­i­nee and leave the court to work short­hand­ed for a full year. In the event of a 4–4 deci­sion, there’s not a cri­sis; the deci­sion of the low­er court—the deci­sion that one par­ty appealed to the Supreme Court—simply stands, with­out set­ting any fur­ther prece­dent. (Like in Bush v. Gore.) Not that it’s like­ly to even come to that. With the loss of the court’s lib­er­al lion, the make­up of the cur­rent court is tilt­ed heav­i­ly toward con­ser­v­a­tives, so Cruz’s night­mare sce­nario of a split court isn’t even all that like­ly. The most like­ly out­come of an elec­tion deci­sion, as Cruz cer­tain­ly knows, is a 5–3 deci­sion in his favor.
..

It’s a detail that could be par­tic­u­lar­ly impor­tant if the Trump admin­is­tra­tion is sim­ply plan­ning on wag­ing any legal chal­lenge it can come up with in order to get the case before the Supreme Court. Because if the Trump cam­paign’s legal chal­lenge is a legal joke that makes it much more like­ly that the low­er court rul­ing that would be upheld in the event of 4–4 rul­ing would be a rul­ing against the Trump cam­paign. Might that be one of the con­cerns fac­ing the GOP and Trump cam­paign? The Trump team has made clear ram­pant legal chal­lenges intend­ed to dele­git­imize a loss are going to be cen­tral to its re-elec­tion strat­e­gy. The risk of a 4–4 tie uphold­ing a low­er court rul­ing might be a seri­ous com­pli­ca­tion to that strat­e­gy.

But let’s not for­get that a 4–4 tie requires Jus­tice Roberts sid­ing with the three remain­ing left-lean­ing jus­tices. And while Repub­li­cans have grown accus­tomed to pre­tend­ing like Roberts is some sort of left-winger over his deci­sion to not com­plete­ly inval­i­date Oba­macare it’s absurd to think of him as any­thing oth­er than a ded­i­cat­ed move­ment con­ser­v­a­tive. A ded­i­cat­ed move­ment con­ser­v­a­tive with the bur­den of hav­ing to hold a check on the most polit­i­cal­ly idi­ot­ic judi­cial ambi­tions of the right like undo­ing Oba­macare. Roberts is effec­tive­ly the new punch­ing bag excuse that Repub­li­cans lead­ers and pun­dit can use to explain to the par­ty base why the par­ty has­n’t been able to exe­cute the key rul­ing the par­ty base demands — like undo Oba­macare or end­ing Roe v Wade — that would be polit­i­cal­ly sui­ci­dal. All indi­ca­tions are that Roberts will strive to find a way to assist the Repub­li­cans and Trump cam­paign, just not nec­es­sar­i­ly the polit­i­cal­ly insane deci­sions that the right’s base often demands. And that’s part of what makes the sce­nario of the Supreme Court kick­ing the elec­tion to the House for a one-state-one-vote pres­i­den­tial elec­tion so intrigu­ing at this point. Because it’s going to be up to Roberts whether or not it’s a 5–3 rul­ing or a 4–4 rul­ing. And if it’s a rul­ing that involves a high­ly ques­tion­able or absurd legal chal­lenge by the Trump cam­paign a 5–3 rul­ing just might fall into that cat­e­go­ry of being too polit­i­cal­ly sui­ci­dal for Roberts to do it. And yet a 4–4 rul­ing that kicks upholds a low­er court rul­ing is like­ly to uphold a rul­ing against the Trump cam­paign.

It’s the kind of sce­nario that could result in the ‘kick­ing it to the House’ option becom­ing the most polit­i­cal­ly palat­able solu­tion that results in a Trump vic­to­ry, espe­cial­ly if the Trump cam­paign’s legal chal­lenges are legal­ly dubi­ous. Instead of uphold­ing a legal­ly dubi­ous chal­lenge — the kind of rul­ing could do immense dam­age to the Robert­s’s Court lega­cy and the legit­i­ma­cy of the Repub­li­can Par­ty — the con­ser­v­a­tive major­i­ty could rule 5–3 to kick it to the the House in the hopes of effec­tive­ly giv­ing Trump the win with­out look­ing overt­ly par­ti­san.

It’s also worth keep­ing in mind anoth­er meta con­sid­er­a­tion that has to be on Robert­s’s mind with any upcom­ing rul­ing on the elec­tion: At this point vir­tu­al­ly every gov­ern­ing insti­tu­tion in the US is stacked in favor of the Repub­li­cans. The Sen­ate is heav­i­ly skewed towards Repub­li­cans thanks to the fact that states large and small get the same two Sen­a­tors. The House and state leg­is­la­tures are is heav­i­ly skewed towards Repub­li­cans thanks to the kind of hyper-par­ti­san ger­ry­man­der­ing that Roberts him­self upheld last year. The Supreme Court had already skewed towards the Repub­li­cans for decades and is now set to be absurd­ly lop-sided. Vot­er sup­pres­sion laws are ubiq­ui­tous and then there’s the ongo­ing mega-scan­dal of rigged elec­tron­ic vot­ing machines. The GOP has been so wild­ly suc­cess­ful at achiev­ing a near per­ma­nent minor­i­ty grip on pow­er that the par­ty is risk­ing ‘Jump­ing the Shark’ with cheat­ing.

And ‘Jump­ing the Shark’ on cheat­ing real­ly is a mas­sive exis­ten­tial risk for a mod­ern day con­ser­v­a­tive move­ment, some­thing that’s not nec­es­sar­i­ly obvi­ous giv­en Trump’s open fla­grant out-of-con­trol cor­rup­tion. There’s no deny­ing the Repub­li­can Par­ty has root­ed its con­tem­po­rary suc­cess over the last forty years (since Rea­gan, real­ly) by effec­tive­ly pro­mot­ing a griev­ance nar­ra­tive that con­ser­v­a­tives are this pow­er­less oppressed minor­i­ty liv­ing in a coun­try run by a ‘lib­er­al elite’ estab­lish­ment. It’s a nar­ra­tive where gov­ern­ment is inher­ent­ly utter­ly cor­rupt and the only viable solu­tion to deal­ing with this cor­rup­tion is to elect Repub­li­cans so they can cut tax­es and dereg­u­la­tion and, in doing so, fight cor­rup­tion. Even today Trump is basi­cal­ly falling back on mass tax cuts and dereg­u­la­tion as his pri­ma­ry re-elec­tion ‘accom­plish­ment’ and at the core of those ‘accom­plish­ments’ is the sense that Democ­rats and ‘Big Gov­ern­ment’ are deeply cor­rupt and Repub­li­cans will fix that cor­rup­tion. It’s a nar­ra­tive relies on sell­ing fool­ish vot­ers on the ahis­tor­i­cal nar­ra­tive that the col­lapse of the Amer­i­can mid­dle-class and ever-grow­ing wealth inequal­i­ty over the past four decades are some­how the result of an all pow­er­ful Demo­c­ra­t­ic estab­lish­ment that runs every­thing and has cul­mi­nat­ed in QAnon. And it’s a nar­ra­tive the GOP must main­tain going for­ward. It’s absurd­ly iron­ic that a par­ty ded­i­cat­ed to secur­ing a minor­i­ty grip on pow­er relies on a griev­ance nar­ra­tive of pow­er­less­ness and sub­ju­ga­tion but that’s how it is and the Repub­li­can Par­ty under Trump is arguably more reliant on a griev­ance nar­ra­tive of pow­er­less­ness and sub­ju­ga­tion than ever before. That nar­ra­tive is the pre­text for steal­ing the elec­tion and vir­tu­al­ly every­thing else crooked Trump does, after all, includ­ing his open strat­e­gy of steal­ing the elec­tion by pre­emp­tive­ly dele­git­imiz­ing the vote and bog­ging the out­come down with legal chal­lenges. And main­tain­ing that griev­ance nar­ra­tives of GOP pow­er­less­ness has got be some­thing John Roberts is think­ing about has he plays out the var­i­ous sce­nar­ios that will allow Trump to cheat­ed out anoth­er term in office.

The issue of court pack­ing has become a Repub­li­can talk­ing point in the final stretch of the US pres­i­den­tial race now that the gross hypocrisy of the rushed con­fir­ma­tion of Amy Coney Bar­rett and warped nature of a 6–3 Supreme Court dom­i­nat­ed by the far right has made the idea of adding new judges to the Supreme Court much more fash­ion­able with­in Demo­c­ra­t­ic cir­cles. So it’s worth not­ing one of the key point in a recent piece by David Atk­in’s on the top­ic of ‘court pack­ing’: Not only is the Supreme Court already packed by the Repub­li­cans and about to get even more packed with Bar­rett, but the fed­er­al courts have been egre­gious­ly packed too by Trump and the Repub­li­cans dur­ing Trump’s first term after they blocked hun­dreds of fed­er­al judi­cial nom­i­nees dur­ing Pres­i­dent Oba­ma’s last two years in office. In oth­er words, the stunt the GOP pulled block­ing Mer­rick Gar­land’s nom­i­na­tion to the Supreme Court was repli­cat­ed hun­dreds of times by the GOP at the fed­er­al lev­el. So the rel­e­vant ques­tions about court pack­ing aren’t ques­tions of whether or not a Joe Biden would pack the court. It’s a ques­tion of how a Biden admin­is­tra­tion is plan­ning on unpack­ing the courts and a ques­tion of which need will get pri­or­i­ty: unpack­ing the gross­ly Supreme Court or unpack­ing the absurd­ly packed fed­er­al courts:

Wash­ing­ton Month­ly

Repub­li­cans Have Already Packed the Courts. It’s Up To Democ­rats How To Rebal­ance Them.

by David Atkins
Octo­ber 10, 2020

The last few days have seen sud­den, intense press inter­est in the ques­tion of whether Joe Biden intends to “pack the courts.” The ques­tion came up at the vice-pres­i­den­tial debate between Vice-Pres­i­dent Pence and Sen­a­tor Har­ris, and it seems that Biden gets asked about it repeat­ed­ly at every press avail. For their part, Biden and Har­ris have most­ly been play­ing coy with the answer, insist­ing that it’s an irrel­e­vant ques­tion that shouldn’t come up until after the elec­tion.

It’s no great secret why: “pack­ing” the court might scare off mod­er­ates cur­rent­ly lean­ing toward Biden, while com­mit­ting against it would infu­ri­ate pro­gres­sives who fear that a far-right Supreme Court would reverse a cen­tu­ry of hard-won vic­to­ries as well as stymie all future attempts at pro­gres­sive leg­is­la­tion.

The prob­lem, how­ev­er, is that the entire con­ver­sa­tion is in bad faith. It is Repub­li­cans who have spent the last six years “pack­ing” the courts. Repub­li­cans in the Sen­ate mount­ed a his­toric block­ade of Pres­i­dent Obama’s judi­cial nom­i­nees dur­ing the final two years of his sec­ond term, result­ing in short­ages on fed­er­al bench­es and back­logs in cas­es, all in the hopes of leav­ing them open for a Repub­li­can pres­i­dent. Repub­li­can Sen­ate Leader McConnell has been laugh­ing about it for years, con­sid­er­ing it finest accom­plish­ment. Most cru­cial was the refusal by McConnell to even allow a hear­ing for Obama’s Supreme Court nom­i­nee Mer­rick Gar­land, using the fig leaf jus­ti­fi­ca­tion that it was dur­ing the 2016 elec­tion year–only to attempt to rush through a far-right jus­tice to replace Ruth Bad­er-Gins­burg lit­er­al­ly just days before the 2020 elec­tion. Hypocrisy is a main­stay of Amer­i­can pol­i­tics, but even so the brazen­ness of this case by Repub­li­can Sen­a­tors like Lind­sey Gra­ham is remark­able.

The result of the Repub­li­can strat­e­gy has been a his­toric pack­ing of the courts by ultra-con­ser­v­a­tive activist judges. As of this writ­ing, Trump and the Repub­li­can Sen­ate have con­firmed an aston­ish­ing 218 fed­er­al judges, most­ly con­ser­v­a­tive white men, many of them deeply unqual­i­fied far-right activists with lit­tle judi­cial expe­ri­ence. These judges have altered the bal­ance not only of the Supreme Court, but also myr­i­ad low­er cir­cuit courts. These judges are not just tem­pera­men­tal­ly and philo­soph­i­cal­ly con­ser­v­a­tive: most are com­mit­ted Repub­li­can par­ti­sans, approved by the arch-right Fed­er­al­ist Soci­ety, and sub­scribe to a view of the Con­sti­tu­tion in Exile premised on the belief that essen­tial­ly every pro­gres­sive reform since the New Deal and even Ted­dy Roo­sevelt has been an uncon­sti­tu­tion­al infringe­ment on cor­po­rate and prop­er­ty rights. It is a degree of far-right judi­cial rad­i­cal­ism that most Amer­i­cans bare­ly begin to appre­ci­ate, only because the cas­es chal­leng­ing long set­tled law have only just begun to wind their way through the courts.

The oth­er impor­tant con­text for this Repub­li­can court-pack­ing is that it reflects an attempt to con­trol nation­al pol­i­cy even as con­ser­v­a­tives lose the abil­i­ty to win elec­tions nation­al­ly. Con­ser­v­a­tives already gov­ern ille­git­i­mate­ly through an array of anti-demo­c­ra­t­ic struc­tures that make white exur­ban con­ser­v­a­tive vot­ers count much more than urban lib­er­al vot­ers and peo­ple of col­or. Many of these struc­tures were explic­it­ly set up by the Founders or in the Jim Crow era to ben­e­fit Slave States and for­mer Con­fed­er­ate States. The elec­toral col­lege has allowed Repub­li­cans to con­trol the White House for 12 of the last 20 years despite win­ning the pop­u­lar vote only once dur­ing that time–and the process itself warps pres­i­den­tial elec­tions toward the inter­ests of more con­ser­v­a­tive-lean­ing vot­ers in “swing” states. The Sen­ate is con­trolled by a Repub­li­can “major­i­ty” despite the fact that Demo­c­ra­t­ic Sen­a­tors rep­re­sent 15 mil­lion more Amer­i­cans than Repub­li­can Sen­a­tors do. State leg­is­la­tures and House seats are ger­ry­man­dered such that Repub­li­cans dom­i­nate many state leg­is­la­tures despite los­ing the statewide vote, and con­trol more House seats than they would if dis­tricts were drawn across the coun­try in non-par­ti­san fash­ion. That’s on top of active vot­er sup­pres­sion efforts in many states that work to shut out the ris­ing voic­es of young peo­ple, urban pro­gres­sives and peo­ple of col­or.

The fact that a pres­i­dent elect­ed by minor­i­ty vote, aid­ed by a Sen­ate rep­re­sent­ing a minor­i­ty of Amer­i­cans, in a sys­tem already designed to advan­tage con­ser­v­a­tive voic­es over lib­er­al ones, should be able to rig the courts for decades with judges who will not only thwart future leg­is­la­tion but reverse hard-won gains, is an absurd insult to democ­ra­cy. The courts have already been packed. If Bar­rett is con­firmed to the Supreme Court, they will have been intol­er­a­bly packed, in the ser­vice of a revan­chist apartheid regime designed to over­rule America’s grow­ing pro­gres­sive major­i­ty and pre­vent it from solv­ing press­ing crises like inequal­i­ty, cor­po­rate con­sol­i­da­tion and cli­mate change.

The ques­tion for Democ­rats and a poten­tial Biden/Harris admin­is­tra­tion is not whether to “pack” the Courts; they have already been packed. The ques­tion is how to rebal­ance them. Biden put it suc­cinct­ly today when he said that “the only court pack­ing going on right now is with Repub­li­cans pack­ing the court.”

Rebal­anc­ing the court could take many forms. The sim­plest is adding jus­tices to both the Supreme Court and the low­er courts, some­thing that has been done many times in Amer­i­can his­to­ry. This solu­tion is Con­sti­tu­tion­al and easy to enact by a sim­ple major­i­ty. Many fear that this could lead to run­away par­ti­san court-stack­ing in future years, but even so it would only be pos­si­ble when one par­ty con­trols the White House, Sen­ate and House. As long as the courts remain key to leg­is­la­tion, it seem rea­son­able that a par­ty that wins all three should be able to con­trol the courts as well until the oth­er side takes sim­i­lar con­trol. If Repub­li­cans fear that they will nev­er again con­trol all three, then they may wish to attempt to cater their pol­i­tics toward win­ning nation­al majori­ties instead of extrem­ist minori­ties.

Oth­er more com­pli­cat­ed solu­tions involve poten­tial term lim­its for jus­tices or judi­cial rota­tions. All of these ideas and more should be on the table as a way to rebal­ance the judi­cia­ry to fix con­ser­v­a­tive court pack­ing.

...

————

“Repub­li­cans Have Already Packed the Courts. It’s Up To Democ­rats How To Rebal­ance Them.” by David Atkins; Wash­ing­ton Month­ly; 10/10/2020

“The fact that a pres­i­dent elect­ed by minor­i­ty vote, aid­ed by a Sen­ate rep­re­sent­ing a minor­i­ty of Amer­i­cans, in a sys­tem already designed to advan­tage con­ser­v­a­tive voic­es over lib­er­al ones, should be able to rig the courts for decades with judges who will not only thwart future leg­is­la­tion but reverse hard-won gains, is an absurd insult to democ­ra­cy. The courts have already been packed. If Bar­rett is con­firmed to the Supreme Court, they will have been intol­er­a­bly packed, in the ser­vice of a revan­chist apartheid regime designed to over­rule America’s grow­ing pro­gres­sive major­i­ty and pre­vent it from solv­ing press­ing crises like inequal­i­ty, cor­po­rate con­sol­i­da­tion and cli­mate change.”

An absurd insult to democ­ra­cy. It’s an apt way to describe the wild amount of court pack­ing — in the form of cheat­ed seats — that the Repub­li­can Par­ty has man­aged to at the Supreme Court lev­el and the fed­er­al court lev­el — that’s already tak­en place, not even count­ing the gross absur­di­ty of the Bar­rett appoint­ment. \

And when it comes to absurd insults to democ­ra­cy there’s an obvi­ous opti­mal solu­tion: cor­rect­ing that insult with­in the con­fines of the rules of democ­ra­cy. Like expand­ing the size of courts as has been cone many times in his­to­ry. It’s just one of the many Con­sti­tu­tion­al­ly allow­able options a Biden admin­is­tra­tion would have at its dis­pos­al:

...
Rebal­anc­ing the court could take many forms. The sim­plest is adding jus­tices to both the Supreme Court and the low­er courts, some­thing that has been done many times in Amer­i­can his­to­ry. This solu­tion is Con­sti­tu­tion­al and easy to enact by a sim­ple major­i­ty. Many fear that this could lead to run­away par­ti­san court-stack­ing in future years, but even so it would only be pos­si­ble when one par­ty con­trols the White House, Sen­ate and House. As long as the courts remain key to leg­is­la­tion, it seem rea­son­able that a par­ty that wins all three should be able to con­trol the courts as well until the oth­er side takes sim­i­lar con­trol. If Repub­li­cans fear that they will nev­er again con­trol all three, then they may wish to attempt to cater their pol­i­tics toward win­ning nation­al majori­ties instead of extrem­ist minori­ties.

Oth­er more com­pli­cat­ed solu­tions involve poten­tial term lim­its for jus­tices or judi­cial rota­tions. All of these ideas and more should be on the table as a way to rebal­ance the judi­cia­ry to fix con­ser­v­a­tive court pack­ing.
...

And that’s why the big ques­tion about Joe Biden’s plans for the judi­cia­ry raised by the nom­i­na­tion of Amy Coney Bar­rett should­n’t be a ques­tion of whether or not he’s plan­ning on ‘pack­ing’ the courts. The Democ­rats can’t pack courts the Repub­li­cans already packed. The ques­tion fac­ing a Biden admin­is­tra­tion is how he’s plan­ning on unpack­ing courts that were already packed by a par­ty with so lit­tle pub­lic sup­port it’s no longer able to win nation­al elec­tions with­out cheat­ing.

There’s been a fair amount of hand wring­ing and head scratch­ing over the fact that the Democ­rats lost seats in the House of Rep­re­sen­ta­tives and bare­ly hung onto the Demo­c­ra­t­ic House major­i­ty fol­low­ing an elec­tion that saw Pres­i­dent Trump ulti­mate­ly lose the pop­u­lar vote by an even larg­er mar­gin than 2016. So it’s worth recall­ing one of the key over­ar­ch­ing grim real­i­ties of US pol­i­tics: Ger­ry­man­der­ing has sim­ply giv­en the Repub­li­cans a MASSIVE default edge in the House, where some­where between a quar­ter and third of the House is net-ger­ry­man­der­ing by Repub­li­cans and that’s fac­tor­ing in Demo­c­ra­t­ic ger­ry­man­der­ing.

It’s not even remote­ly equal which is why we should entire­ly expect Repub­li­cans to pick up seats in the House even when the Repub­li­can can­di­date gets few­er net votes because that’s how the sys­tem is rigged. States are so ger­ry­man­dered that Repub­li­cans have ensure they’ll get a major­i­ty of the House seats for that state even when they get a minor­i­ty of the vote in some states.

But it’s not just House dis­tricts that are egre­gious­ly ger­ry­man­dered in favor of the Repub­li­cans. The dis­trict lines for state-leg­is­la­tures are also ger­ry­man­dered and poised to be even more ger­ry­man­dered than ever. Recall how the Supreme Court fol­lowed up on its June 2019 Rucho v Com­mon Cause rul­ing that removed the fed­er­al courts from issues of par­ti­san ger­ry­man­der with anoth­er Octo­ber 2019 rul­ing that con­clud­ed that it was per­fect­ly fine that Michi­gan’s Repub­li­can-con­trolled leg­is­la­ture inten­tion­al­ly drew state dis­trict lines to min­i­mize the rep­re­sen­ta­tion of Democ­rats. That’s now going to be allowed in across the US with the next round of redis­trict­ing. The his­tor­i­cal­ly ger­ry­man­dered dis­tricts of the last decade are set to be more egre­gious­ly ger­ry­man­dered for the next decade.

And as the fol­low­ing arti­cle also grim­ly points out, since the Democ­rats did­n’t man­age to take back any state leg­is­la­tures this elec­tion — and actu­al­ly lost the New Hamp­shire state leg­is­la­ture — that upcom­ing decade of his­tor­i­cal­ly extreme ger­ry­man­der­ing is almost entire­ly going to be rigged in favor of the Repub­li­cans. Which means the GOP is almost cer­tain­ly set to retake con­trol of the House of Rep­re­sen­ta­tives in 2022. The only thing that could real­is­ti­cal­ly avoid a the GOP recap­tur­ing the House in 2022 is the kind of over­whelm­ing anger at the GOP that Trump him­self gen­er­at­ed for the 2018 when the Democ­rats recap­tured the House after los­ing it in 2010.

And with a Demo­c­ra­t­ic con­trolled White House and House of Rep­re­sen­ta­tives forced with a Repub­li­can-con­trolled Sen­ate the sit­u­a­tion is per­fect­ly set up for a repeat of the exact same cyn­i­cal tac­tics that helped lead the Repub­li­cans to the over­whelm­ing vic­to­ry they expe­ri­enced in 2010. All the Repub­li­cans need to do is obstruct any­thing use­ful in the Sen­ate and wait for the elec­torate to get frus­trat­ed. Sab­o­tage in the Sen­ate and an over­whelm­ing right-wing media com­plex that will sell a nar­ra­tive designed to exploit that sab­o­tage. That’s all that’s required for Repub­li­can vic­to­ries these days. The ger­ry­man­der­ing is real­ly just the cher­ry on top and it’s set to be worse than ever for the next decade:

The Wash­ing­ton Post

Democ­rats had a decade to con­sol­i­date pow­er. They blew their chance.
State leg­is­la­tures are key to con­gres­sion­al redis­trict­ing. This year, none flipped to Demo­c­ra­t­ic con­trol.

By Reid Wil­son
Reid Wil­son is a cor­re­spon­dent at the Hill and an instruc­tor at George Wash­ing­ton Uni­ver­si­ty’s Grad­u­ate School of Polit­i­cal Man­age­ment.
Novem­ber 6, 2020 at 8:06 AM EST

Lead­ing up to Elec­tion Day, Democ­rats tout­ed their chances of win­ning back key seats in Repub­li­can-held state leg­is­la­tures around the coun­try. Recap­tur­ing ter­ri­to­ry in states such as Texas, North Car­oli­na and Penn­syl­va­nia could help the par­ty lock in polit­i­cal pow­er for a decade. If Democ­rats achieved this in enough dis­tricts, they could have avert­ed their fate after the 2010 tea par­ty wave.

“Democ­rats didn’t focus on those state leg­isla­tive races to the extent that we should have in 2010,” for­mer attor­ney gen­er­al Eric H. Hold­er Jr., who heads the Nation­al Demo­c­ra­t­ic Redis­trict­ing Com­mit­tee, said last week dur­ing a Wash­ing­ton Post Live event. “As a result, the 2011 redis­trict­ing went well for the Repub­li­cans and led to the ger­ry­man­der­ing that we have seen, and that has affect­ed our pol­i­tics over the course of this last decade. I think Democ­rats are focus­ing now on state-lev­el races.”

This week, they blew it. Instead of cement­ing con­gres­sion­al con­trol for a decade, Democ­rats’ major­i­ty is now at future risk.

In an era of Wash­ing­ton grid­lock, what hap­pens in state leg­is­la­tures mat­ters more than ever. A pol­i­cy adopt­ed today in Sacra­men­to or Austin or Albany, N.Y., can become a nation­al stan­dard tomor­row. Ini­tia­tives such as wel­fare reform, health-care reform and crim­i­nal jus­tice reform some­times orig­i­nate in state cap­i­tals. Every decade, state leg­is­la­tures get a say in fed­er­al pol­i­cy­mak­ing in anoth­er way: Fol­low­ing each cen­sus, pop­u­la­tion counts will mean reap­por­tion­ment of seats in the U.S. House of Rep­re­sen­ta­tives, with states redraw­ing polit­i­cal bound­aries. In most states, those bound­aries are drawn by state leg­is­la­tures.

Ten years ago, the midterm wave that swept Repub­li­cans to pow­er in the House gave the GOP an advan­tage in state leg­is­la­tures, too. That elec­tion year even­tu­al­ly cost Democ­rats con­trol of 20 leg­isla­tive cham­bers across the coun­try.

At the begin­ning of the pre­vi­ous redis­trict­ing cycle, in which leg­is­la­tors drew new polit­i­cal bound­aries, Repub­li­cans con­trolled the abil­i­ty to draw 198 of the 435 seats in the U.S. House. Democ­rats con­trolled just 51 seats; 95 were drawn with input from both sides, 84 were drawn in states where non­par­ti­san or bipar­ti­san com­mis­sions con­trolled the process, and sev­en more states sent only one at-large mem­ber to Con­gress.

Leg­is­la­tors in charge of the map­mak­ing process used their pow­er in states such as Wis­con­sin, North Car­oli­na, Texas and Penn­syl­va­nia, allow­ing the GOP to con­trol cer­tain House seats, even if Democ­rats won more statewide votes over­all: In 2018, Democ­rats won just three of Wisconsin’s eight U.S. House seats, even though their can­di­dates car­ried almost 200,000 more votes than did Repub­li­cans. Texas Demo­c­ra­t­ic House can­di­dates won around 47 per­cent of the vote that year, but they car­ried only 13 of 36 seats, about 36 per­cent.

Democ­rats accused Repub­li­cans of ram­pant ger­ry­man­der­ing, although they were notably silent on maps that dis­pro­por­tion­ate­ly favored their side in blue states.

Red state maps meant Democ­rats were com­pet­ing on an uneven play­ing field through much of the past decade. Even after the 2018 midterm Demo­c­ra­t­ic wave, Repub­li­cans main­tained most of their state leg­is­la­ture gains from 2010. In states such as Vir­ginia, Neva­da and Maine, Democ­rats have clawed back pow­er, but they remain in the ger­ry­man­dered minor­i­ty in many states that send larg­er del­e­ga­tions to the House.

This year, in the midst of a pan­dem­ic and with an unpop­u­lar pres­i­dent at the top of the GOP tick­et, Democ­rats had high hopes those seats would flip. Groups like the Demo­c­ra­t­ic Leg­isla­tive Cam­paign Com­mit­tee, Emily’s List and For­ward Major­i­ty, a Demo­c­ra­t­ic super PAC, spent mil­lions of dol­lars tar­get­ing leg­isla­tive races in Texas, North Car­oli­na and Penn­syl­va­nia, and Repub­li­cans spent mil­lions defend­ing their turf. If Democ­rats could flip just a few seats, they would win con­trol of one or both leg­isla­tive cham­bers, giv­ing them­selves at least a seat at the table when the new round of maps are drawn.

It didn’t hap­pen. Repub­li­cans main­tained con­trol of both leg­isla­tive cham­bers in all three of those states. They appear to have won con­trol of both the New Hamp­shire House and Sen­ate, cham­bers cur­rent­ly run by Democ­rats.

Democ­rats failed in key sub­ur­ban dis­tricts in key states across the coun­try, Austin Cham­bers, head of the Repub­li­can State Lead­er­ship Com­mit­tee, told reporters on Wednes­day, describ­ing Elec­tion Day as “an absolute­ly great night for state Repub­li­cans and an absolute­ly mis­er­able night for state Democ­rats.”

“We were going to have an offen­sive tar­get map and knew it was going to be tough to over­come ger­ry­man­dered dis­tricts and Repub­li­can spend­ing,” DLCC spokes­woman Christi­na Polizzi said in an email. “Leg­isla­tive Repub­li­cans won because Don­ald Trump over per­formed. It is easy to win in rigged dis­tricts.”

As the new redis­trict­ing cycle begins after the Cen­sus Bureau deliv­ers its for­mal pop­u­la­tion report, Repub­li­cans will con­trol the map­mak­ing process for 175 seats in the U.S. House, and Democ­rats will con­trol 47 dis­trict bound­aries. In the inter­ven­ing decade, five states have imple­ment­ed new com­mis­sions to draw lines, giv­ing inde­pen­dent pan­els con­trol of 161 seats. The two par­ties will have to com­pro­mise on 45 seats, and sev­en states will send only one at-large mem­ber to Con­gress.

Democ­rats still con­trol the House after Tuesday’s elec­tions, but Repub­li­cans will have the chance to draw new bound­aries that threat­en some Demo­c­ra­t­ic incum­bents: The GOP needs to add only a few thou­sand new con­ser­v­a­tive vot­ers to the dis­tricts of Democ­rats such as Rep. Col­in Allred, in Dallas’s sub­urbs, or Rep. Lizzie Fletch­er, who rep­re­sents the Hous­ton area in a seat once held by George H.W. Bush, to imper­il their 2022 chances.

The redis­trict­ing process was once the domain of back­room deals, in which leg­is­la­tors would pun­ish their ene­mies and pro­tect their allies through favor­able dis­trict lines. It’s become a sci­ence, over­seen by expert car­tog­ra­phers and demog­ra­phers who use block-by-block pop­u­la­tion data to craft the per­fect maps. Pack­ing one party’s vot­ers into a dis­trict their can­di­date will win over­whelm­ing­ly deprives that par­ty of the chance to win sev­er­al neigh­bor­ing dis­tricts; crack­ing a party’s votes between sev­er­al dis­tricts dilutes its chances of com­pet­ing for any one of those seats.

And this cycle, the par­ti­san influ­ence on new dis­trict lines is like­ly to be even more sub­stan­tial than a decade ago. In 2019, the Supreme Court ruled that redis­trict­ing with the intent of ben­e­fit­ing one par­ty over anoth­er is a polit­i­cal ques­tion, not a judi­cial one. In oth­er words: when it’s time to ger­ry­man­der, have at it — so long as you can demon­strate a polit­i­cal, rather than a racial, bias. The legal argu­ments that Democ­rats once used to strike down ger­ry­man­dered lines are no longer an option in many states.

...

————

“Democ­rats had a decade to con­sol­i­date pow­er. They blew their chance.” by Reid Wil­son; The Wash­ing­ton Post; 11/06/2020

“Ten years ago, the midterm wave that swept Repub­li­cans to pow­er in the House gave the GOP an advan­tage in state leg­is­la­tures, too. That elec­tion year even­tu­al­ly cost Democ­rats con­trol of 20 leg­isla­tive cham­bers across the coun­try.”

20 state leg­isla­tive cham­bers were lost by the Democ­rats in 2010, a giant reward to the Repub­li­cans for their plot to block every­thing the Oba­ma admin­is­tra­tion attempt­ed in the mid­dle of a his­toric reces­sion. It’s a proven play­book that paid off not just for the next entire last decade but the next decade too. Even in 2018, when the Democ­rats took back con­trol of the House of Rep­re­sen­ta­tives — despite all the ger­ry­man­der­ing — the Repub­li­cans still main­tained their grip on state leg­is­la­tures. In 2010, 198 of the House seats were ger­ry­man­der­ing by Repub­li­can-con­trolled leg­is­la­tures com­pared to 51 seats in Demo­c­ra­t­ic-con­trolled states. In 2020 it’s going to be . Democ­rats con­trolled just 51 seats. A net 147 seat advan­tage for Repub­li­cans. Basi­cal­ly one third of the House is reserved for Repub­li­cans due sole­ly to legal­ized cheat­ing. Sys­tem­at­ic cheat­ing that is seem­ing­ly sys­tem­at­i­cal­ly ignored by ana­lysts when­ev­er elec­tion day comes about. Some­how mas­sive legal­ized Repub­li­can cheat­ing isn’t a nation­al issue:

...
At the begin­ning of the pre­vi­ous redis­trict­ing cycle, in which leg­is­la­tors drew new polit­i­cal bound­aries, Repub­li­cans con­trolled the abil­i­ty to draw 198 of the 435 seats in the U.S. House. Democ­rats con­trolled just 51 seats; 95 were drawn with input from both sides, 84 were drawn in states where non­par­ti­san or bipar­ti­san com­mis­sions con­trolled the process, and sev­en more states sent only one at-large mem­ber to Con­gress.

Leg­is­la­tors in charge of the map­mak­ing process used their pow­er in states such as Wis­con­sin, North Car­oli­na, Texas and Penn­syl­va­nia, allow­ing the GOP to con­trol cer­tain House seats, even if Democ­rats won more statewide votes over­all: In 2018, Democ­rats won just three of Wisconsin’s eight U.S. House seats, even though their can­di­dates car­ried almost 200,000 more votes than did Repub­li­cans. Texas Demo­c­ra­t­ic House can­di­dates won around 47 per­cent of the vote that year, but they car­ried only 13 of 36 seats, about 36 per­cent.

Democ­rats accused Repub­li­cans of ram­pant ger­ry­man­der­ing, although they were notably silent on maps that dis­pro­por­tion­ate­ly favored their side in blue states.

Red state maps meant Democ­rats were com­pet­ing on an uneven play­ing field through much of the past decade. Even after the 2018 midterm Demo­c­ra­t­ic wave, Repub­li­cans main­tained most of their state leg­is­la­ture gains from 2010. In states such as Vir­ginia, Neva­da and Maine, Democ­rats have clawed back pow­er, but they remain in the ger­ry­man­dered minor­i­ty in many states that send larg­er del­e­ga­tions to the House.
...

And in 2020, it’s again going to be an over­whelm­ing­ly Repub­li­can-dom­i­nat­ed ger­ry­man­der­ing process. 175 seats House seats will be ger­ry­man­der­ing by Repub­li­cans and 47 by Democ­rats. The only rea­son the Repub­li­cans don’t have more seats to ger­ry­man­der is because fives states did the right thing over the last decade and imple­ment­ed new non-par­ti­san com­mis­sions. Still a 128 net seat GOP advan­tage, well over a quar­ter of the House:

...
As the new redis­trict­ing cycle begins after the Cen­sus Bureau deliv­ers its for­mal pop­u­la­tion report, Repub­li­cans will con­trol the map­mak­ing process for 175 seats in the U.S. House, and Democ­rats will con­trol 47 dis­trict bound­aries. In the inter­ven­ing decade, five states have imple­ment­ed new com­mis­sions to draw lines, giv­ing inde­pen­dent pan­els con­trol of 161 seats. The two par­ties will have to com­pro­mise on 45 seats, and sev­en states will send only one at-large mem­ber to Con­gress.
...

And thanks to the Supreme Court’s 2019 rul­ings that effec­tive­ly legal­ized the most extreme par­ti­san ger­ry­man­der­ing the­o­ret­i­cal­ly pos­si­ble, this next cycle of ger­ry­man­der­ing is going to be even more stu­pid­ly lop­sided than ever. Any­thing goes, at least in the states that still allow ger­ry­man­der­ing:

...
And this cycle, the par­ti­san influ­ence on new dis­trict lines is like­ly to be even more sub­stan­tial than a decade ago. In 2019, the Supreme Court ruled that redis­trict­ing with the intent of ben­e­fit­ing one par­ty over anoth­er is a polit­i­cal ques­tion, not a judi­cial one. In oth­er words: when it’s time to ger­ry­man­der, have at it — so long as you can demon­strate a polit­i­cal, rather than a racial, bias. The legal argu­ments that Democ­rats once used to strike down ger­ry­man­dered lines are no longer an option in many states.
...

So as we appear to be poised for a peri­od of Amer­i­can pol­i­tics where alle­ga­tions of a stolen elec­tion and mas­sive Demo­c­ra­t­ic vot­er fraud are going to be a Repub­li­can mantra for years to come, it’s going to be worth keep­ing in mind that every time the Repub­li­cans make an alle­ga­tion of Demo­c­ra­t­ic vot­er fraud — alle­ga­tions that will almost cer­tain­ly be fab­ri­ca­tions and dis­in­for­ma­tion — that’s an oppor­tu­ni­ty to bring up the very real and absolute­ly unde­ni­able mas­sive legal­ized cheat­ing that has basi­cal­ly hand­ed the Repub­li­can Par­ty between and quar­ter and third of the House of Rep­re­sen­ta­tives. Every sin­gle elec­tion. And thanks to the con­ser­v­a­tive major­i­ty on the Supreme Court that Trump has made into a super-major­i­ty it’s only going to get worse. The clos­est thing to good news here is that the GOP has already ger­ry­man­dered things so egre­gious­ly that there’s a lim­it to how much worse it can get.

There was a bizarre but infor­ma­tive inter­view this week by the Sin­clair Broad­cast Group. “Amer­i­ca This Week” Eric Bolling inter­viewed Steve Ban­non to dis­cuss the Trump cam­paign’s elec­tion law­suits. And as we should expect, Ban­non laid out a path to vic­to­ry for Trump that’s basi­cal­ly the strat­e­gy of try­ing to stall the cer­ti­fi­ca­tion of votes in enough states to get the elec­tion even­tu­al­ly tossed to the House of Rep­re­sen­ta­tives where it will be sub­ject to a one-state-one-vote deci­sion. As Ban­non described in the inter­view, if the Trump cam­paign can block states from cer­ti­fy­ing their results by Dec. 8, the so-called “safe har­bor” day, or by Dec. 14, the day elec­tors have to cast their votes for pres­i­dent, then nei­ther can­di­date may get the 270 elec­toral votes need­ed for vic­to­ry and the deci­sion will get kicked to the House. That’s the plan. Just stall and lock things up in the courts until Decem­ber 14. Recall how Ban­non recent­ly allud­ed to the need for ‘patri­ots’ who will be will­ing to die for a sec­ond Trump term around the first week of Decem­ber in places like Michi­gan, Penn­syl­va­nia, and Geor­gia. So this plan to stall the vote is pre­sum­ably what he’s refer­ring to when he made that dec­la­ra­tion. And as we’ve seen, Ban­non isn’t just a voice try­ing to influ­ence Trump. He’s been work­ing close­ly with the Trump cam­paign. Ban­non’s plans are effec­tive­ly the Trump team’s plans at this point. Some sort of stunts, poten­tial­ly dead­ly stunts, that delays the cer­ti­fi­ca­tion of the vote in key states. That’s the plan:

Sin­clair Broad­cast Group

‘Amer­i­ca This Week’: Ban­non says US House will install Trump as pres­i­dent

by Sin­clair Broad­cast Group
Wednes­day, Novem­ber 18th 2020

WASHINGTON (SBG) — “Amer­i­ca This Week” host Eric Bolling sat down with for­mer White House chief strate­gist Steve Ban­non to dis­cuss the Trump cam­paign’s elec­tion law­suits.

Also on the pro­gram, White House trade advis­er Peter Navar­ro, Trump cam­paign press direc­tor Erin Per­rine and Sen. Mar­sha Black­burn, R‑Tenn. Bolling was also joined by Alex Vogel, who served as coun­sel for the Bush-Cheney cam­paign in the 2000 Flori­da recount and Sharyl Attkisson, host of “Full Mea­sure.”

BANNON BELIEVES US HOUSE WILL INSTALL TRUMP AS PRESIDENT

Steve Ban­non, host of The War Room, refused to accept an elec­toral defeat for Pres­i­dent Don­ald Trump and said it could be pos­si­ble for the House of Rep­re­sen­ta­tives to over­turn Joe Biden’s pres­i­den­tial elec­tion vic­to­ry.

Accord­ing to Ban­non, if the Trump cam­paign can block states from cer­ti­fy­ing their results by Dec. 8, the so-called “safe har­bor” day, or by Dec. 14, the day elec­tors have to cast their votes for pres­i­dent, then nei­ther can­di­date may get the 270 elec­toral votes need­ed for vic­to­ry.

Ban­non is among Trump’s allies advo­cat­ing for fed­er­al courts to block states from meet­ing crit­i­cal dead­lines to cer­ti­fy elec­tion results in states like Michi­gan and Penn­syl­va­nia based on unproven alle­ga­tions of wide­spread vot­er fraud.

If there are not enough cer­ti­fied states cer­ti­fied to award 270 elec­toral votes, “this whole thing gets kicked to the House of Rep­re­sen­ta­tives, where you vote, not by indi­vid­ual mem­ber but by state par­ty del­e­ga­tion,” Ban­non said. By del­e­ga­tion, Repub­li­cans con­trol 26 states and Democ­rats con­trol 22. Penn­syl­va­nia and Michi­gan have a split del­e­ga­tion.

“I don’t think that state gen­er­al assem­blies are going to cer­ti­fy the votes to put elec­tors up,” Ban­non said. “I think this is going to get kicked into the House of Rep­re­sen­ta­tives where Don­ald J. Trump will be elect­ed pres­i­dent of the Unit­ed States.”

Ban­non said he believed Repub­li­cans would over­ride the pop­u­lar vote in their state and jus­ti­fy the action based on states fail­ing to meet the cer­ti­fi­ca­tion dead­lines because of ques­tions raised by the Trump cam­paign about elec­tion integri­ty.

On Tues­day, Repub­li­cans failed in their bid to block Wayne Coun­ty, Michi­gan’s largest coun­ty, from cer­ti­fy­ing their elec­tion results.

Ban­non pre­dict­ed there would be “many more law­suits com­ing up” in the next few days. He hint­ed at a law­suit relat­ed to Domin­ion Vot­ing Sys­tems, an elec­tion soft­ware com­pa­ny that Trump allies have claimed fraud­u­lent­ly tab­u­lat­ed votes. Trump recent­ly fired the direc­tor of the Cyber­se­cu­ri­ty and Infra­struc­ture Secu­ri­ty Agency, Christo­pher Krebs, after he report­ed that elec­tion sys­tems were not manip­u­lat­ed.

...

———–

“ ‘Amer­i­ca This Week’: Ban­non says US House will install Trump as pres­i­dent” by Sin­clair Broad­cast Group; Sin­clair Broad­cast Group; 11/18/2020

“Accord­ing to Ban­non, if the Trump cam­paign can block states from cer­ti­fy­ing their results by Dec. 8, the so-called “safe har­bor” day, or by Dec. 14, the day elec­tors have to cast their votes for pres­i­dent, then nei­ther can­di­date may get the 270 elec­toral votes need­ed for vic­to­ry.”

Stall through any means nec­es­sary. Buy time through any means nec­es­sary. And get states to avoid cer­ti­fy­ing the vote through any means nec­es­sary. That’s the plan:

...
Ban­non is among Trump’s allies advo­cat­ing for fed­er­al courts to block states from meet­ing crit­i­cal dead­lines to cer­ti­fy elec­tion results in states like Michi­gan and Penn­syl­va­nia based on unproven alle­ga­tions of wide­spread vot­er fraud.

If there are not enough cer­ti­fied states cer­ti­fied to award 270 elec­toral votes, “this whole thing gets kicked to the House of Rep­re­sen­ta­tives, where you vote, not by indi­vid­ual mem­ber but by state par­ty del­e­ga­tion,” Ban­non said. By del­e­ga­tion, Repub­li­cans con­trol 26 states and Democ­rats con­trol 22. Penn­syl­va­nia and Michi­gan have a split del­e­ga­tion.

“I don’t think that state gen­er­al assem­blies are going to cer­ti­fy the votes to put elec­tors up,” Ban­non said. “I think this is going to get kicked into the House of Rep­re­sen­ta­tives where Don­ald J. Trump will be elect­ed pres­i­dent of the Unit­ed States.”
...

But all of the vot­er fraud alle­ga­tions aren’t just about stalling and hop­ing that Decem­ber 14 dead­line is hit. It’s also about giv­ing Repub­li­can-con­trolled state del­e­ga­tions the polit­i­cal cov­er to vote to give Trump the elec­toral col­lege votes in states that Joe Biden won:

...
Ban­non said he believed Repub­li­cans would over­ride the pop­u­lar vote in their state and jus­ti­fy the action based on states fail­ing to meet the cer­ti­fi­ca­tion dead­lines because of ques­tions raised by the Trump cam­paign about elec­tion integri­ty.

On Tues­day, Repub­li­cans failed in their bid to block Wayne Coun­ty, Michi­gan’s largest coun­ty, from cer­ti­fy­ing their elec­tion results.

Ban­non pre­dict­ed there would be “many more law­suits com­ing up” in the next few days. He hint­ed at a law­suit relat­ed to Domin­ion Vot­ing Sys­tems, an elec­tion soft­ware com­pa­ny that Trump allies have claimed fraud­u­lent­ly tab­u­lat­ed votes. Trump recent­ly fired the direc­tor of the Cyber­se­cu­ri­ty and Infra­struc­ture Secu­ri­ty Agency, Christo­pher Krebs, after he report­ed that elec­tion sys­tems were not manip­u­lat­ed.
...

Many more law­suits are com­ing up. As many as they can muster.

And that brings us to an update on this plan: A fed­er­al judge just threw out the Trump cam­paign’s law­suit to get delay the cer­ti­fi­ca­tions of the vote in Penn­syl­va­nia. And Penn­syl­va­nia was a cru­cial state to delay for this scheme to work. So bar­ring some sort of high­ly unusu­al event, the Penn­syl­va­nia vote that gives Joe Biden those elec­toral votes going to hap­pen. Which means Steve Ban­non is pre­sum­ably work­ing on some high­ly unusu­al events right now. High­ly unusu­al extrale­gal events that required some ‘patri­ots’ who are will­ing to die for a sec­ond Trump term in the next a cou­ple of weeks.

It’s hard to guess what the most dam­ag­ing part of the 2020 post-elec­tion GOP melt-down will end up being in the long-run. But it’s pret­ty easy to say at this point that the great­est long-term dam­age isn’t com­ing from Pres­i­dent Trump him­self, who has already flirt­ed with every­thing from extor­tion to mar­tial law. The great­est dam­age has come from the near uni­form sup­port of Trump’s behav­ior by his fel­low Repub­li­cans because now near­ly the entire Repub­li­can base has a new boogey­man to fix­ate on that’s going to be ani­mat­ing GOP pol­i­tics for years to come and that new boogey­man is elec­tions. Elec­tions Repub­li­cans lose and that are assumed to have been com­plete­ly stolen by a rigged deep state when Repub­li­cans don’t win. And that’s going to make the long-stand­ing GOP tac­tics that real­ly have rigged US elec­tions (over­whelm­ing­ly in Repub­li­can favor) like ger­ry­man­der­ing even more pop­u­lar with the Repub­li­can base. 2021 is going to be a year of unprece­dent­ed Repub­li­can ger­ry­man­der­ing that will be so dis­gust­ing­ly obvi­ous­ly rigged no one will be able to argue that it’s not a form of bla­tant cheat­ing. But now that Repub­li­cans have laugh­ing­ly con­vinced them­selves that US elec­tions are rigged against Repub­li­cans, bla­tant cheat­ing like extreme ger­ry­man­der­ing will be not sure brushed off but actu­al­ly demand­ed. We’re set to see the GOP base, not just the bil­lion­aire pup­peteers, turn into ger­ry­man­der­ing super-fans over the course of 2021. That’s the dement­ed nature of con­tem­po­rary US pol­i­tics.

So with that in mind, here’s a reminder that the extreme ger­ry­man­der­ing can include lit­er­al­ly cre­at­ing new oppor­tu­ni­ties to ger­ry­man­der races that pre­vi­ous­ly could­n’t be ger­ry­man­dered. That’s pre­cise­ly what Penn­syl­va­ni­a’s Repub­li­can par­ty is attempt­ing to do to state-lev­el judi­cial races, which cur­rent­ly are state-wide races and there­fore not the kinds of races you can ger­ry­man­der. As the fol­low­ing arti­cle notes, the Penn­syl­va­nia Repub­li­cans first brought this scheme up in 2018, after the state Supreme Court (which had a Demo­c­ra­t­ic major­i­ty) shot down the heav­i­ly ger­ry­man­dered con­gres­sion­al map cre­at­ed by state Repub­li­cans in 2011. The scheme would cre­ate new regions for judges and each region would elect their own judge. There are 7 Supreme Court seats, 15 Supe­ri­or Court seats, and 9 Com­mon­wealth Court seats. So for each of those tiers there would be sep­a­rate region­al dis­tricts that would each elec­tion one judge. And all of these judi­cial dis­tricts would be vul­ner­a­ble to ger­ry­man­der­ing. So it’s basi­cal­ly a scheme to allow the same GOP-dom­i­nat­ed (and ger­ry­man­dered) state leg­is­la­ture to replace the state’s supreme court with a new ger­ry­man­dered Repub­li­can major­i­ty.

What is the like­li­hood of the plan suc­ceed­ing? Well, the state House Repub­li­cans announced a few weeks ago that they were plan­ning on rein­tro­duc­ing the bill. It would then need to pass the leg­is­la­ture. If the bill man­ages to pass the leg­is­la­ture by the end of Feb­ru­ary, it goes on the May 2021 pri­ma­ry bal­lot. So the May 2021 pri­ma­ry vot­ers, which will like­ly to be a tiny seg­ment of the over­all elec­torate, will ulti­mate­ly get to decide if this becomes law. Which means if there are more Repub­li­can pri­ma­ry vot­ers than Demo­c­ra­t­ic pri­ma­ry vot­ers in May of 2021 — some­thing high­ly like­ly — there’s a high prob­a­bil­i­ty of this becom­ing law. So over­all, there’s actu­al­ly a high prob­a­bil­i­ty of this becom­ing law.
Penn­syl­va­ni­a’s Demo­c­ra­t­ic gov­er­nor will have no say, and Penn­syl­va­nia will descend into becom­ing a rigged GOP fief­dom. A rigged fief­dom the GOP base is con­vinced is required to counter the myth­i­cal mass anti-Repub­li­can vote-rig­ging that stole the elec­tion from Trump:

Penn Cap­i­tal-Star

Can courts be ger­ry­man­dered, too? Absolute­ly | Opin­ion

By Patrick Beaty, Cap­i­tal-Star Op-Ed Con­trib­u­tor
Decem­ber 6, 2020

By now, vot­ers are depress­ing­ly famil­iar with the term “ger­ry­man­der­ing” and the many ways it has been used by leg­is­la­tors in Penn­syl­va­nia and oth­er states to draw dis­trict lines that pro­tect them from vot­ers of the oppo­site polit­i­cal par­ty. For almost as long as our sys­tem of gov­ern­ment has exist­ed, law­mak­ers have been draw­ing con­tort­ed dis­trict maps in order to lock in polit­i­cal pow­er in state leg­is­la­tures and U.S. Con­gress.

But, has any­one ever tried to ger­ry­man­der courts? Is that even pos­si­ble? Unfor­tu­nate­ly, Penn­syl­va­nia vot­ers may be about to find out.

This week, Repub­li­cans in the House of Rep­re­sen­ta­tives announced plans to rein­tro­duce their pro­posed con­sti­tu­tion­al amend­ment that would require Supreme Court jus­tices, and judges of the Supe­ri­or and Com­mon­wealth Courts, to run for elec­tion in region­al dis­tricts rather than statewide.

Under the bill, the Gen­er­al Assem­bly would cre­ate these new judi­cial dis­tricts based upon the num­ber of jus­tices or judges on each court. Since the three appel­late courts have dif­fer­ent num­bers of judges – Supreme Court (7), Supe­ri­or Court (15) and Com­mon­wealth Court (9) – this means the leg­is­la­ture would be able to carve the state into 31 new dis­tricts of vary­ing size.

The pur­pose of the bill, accord­ing to its spon­sor, is to increase the geo­graph­ic diver­si­ty of the courts and specif­i­cal­ly to encour­age the elec­tion of jurists from out­side the major met­ro­pol­i­tan areas of Philadel­phia and Pitts­burgh. By requir­ing one judge or jus­tice per dis­trict and near equal­i­ty of pop­u­la­tion in each dis­trict, the bill guar­an­tees that all parts of the state will have “rep­re­sen­ta­tion” on the appel­late courts. Unfor­tu­nate­ly, the pro­posed amend­ment does not guar­an­tee that all vot­ers will have an equal oppor­tu­ni­ty to elect their pre­ferred jurists.

On the con­trary, the lack of strict map­ping cri­te­ria or any pro­tec­tions for racial and lan­guage minori­ties – com­bined with a total lack of trans­paren­cy in the map­ping process – amounts to an open invi­ta­tion to leg­is­la­tors to engage in par­ti­san ger­ry­man­der­ing in order to increase the like­li­hood that can­di­dates of their polit­i­cal par­ty will be elect­ed to the courts.

The first time this bill came up, many seemed to dis­miss it as just an angry reac­tion to the state Supreme Court with its Demo­c­ra­t­ic major­i­ty act­ing in 2018 to throw out the ger­ry­man­dered con­gres­sion­al map approved by most­ly Repub­li­cans back in 2011.

It doesn’t real­ly mat­ter what is moti­vat­ing Repub­li­cans on this issue. What mat­ters is that it’s about to become real­i­ty – unless vot­ers rise up – with some seri­ous con­se­quences for our sys­tem of jus­tice and a lot of unan­swered ques­tions.

For exam­ple, what hap­pens to all those jus­tices and judges cur­rent­ly on the bench? Under cur­rent law, judges may run for reten­tion elec­tion after serv­ing their ini­tial ten-year term. His­tor­i­cal­ly, appel­late jurists are retained with an aver­age of about 72 per­cent vot­er sup­port.

The bill leaves it up to the Gen­er­al Assem­bly to deter­mine how the tran­si­tion to region­al judi­cial dis­tricts would occur, the order in which dis­tricts would elect new jus­tices and judges and even how the change would affect their abil­i­ty to seek reten­tion elec­tion.

Of the 29 jurists elect­ed and cur­rent­ly serv­ing on the appel­late courts, 15 are Repub­li­cans, 14 are Democ­rats. Near­ly two-thirds are women. All are in jeop­ardy of los­ing their right to seek reten­tion if this pro­pos­al becomes law. Some could be effec­tive­ly removed from office sim­ply because of where they live.

Does any­one real­ly think it’s a good idea to let leg­is­la­tors rather than vot­ers choose which judges deserve to con­tin­ue on the bench?

In order to appear on the bal­lot for vot­er approval, the bill must pass again in the 2021–22 ses­sion. If approved by the end of Feb­ru­ary, it will appear on the Pri­ma­ry Elec­tion bal­lot in May of 2021.

...

Patrick Beaty is the leg­isla­tive direc­tor of the advo­ca­cy group Fair Dis­tricts PA, an all-vol­un­teer, non-par­ti­san, grass roots orga­ni­za­tion ded­i­cat­ed to reform of Pennsylvania’s redis­trict­ing process for both con­gres­sion­al and state leg­isla­tive dis­tricts. For more infor­ma­tion, vis­it https://www.fairdistrictspa.com/.

————

“Can courts be ger­ry­man­dered, too? Absolute­ly | Opin­ion” by Patrick Beaty; Penn Cap­i­tal-Star; 12/06/2020

“This week, Repub­li­cans in the House of Rep­re­sen­ta­tives announced plans to rein­tro­duce their pro­posed con­sti­tu­tion­al amend­ment that would require Supreme Court jus­tices, and judges of the Supe­ri­or and Com­mon­wealth Courts, to run for elec­tion in region­al dis­tricts rather than statewide.”

The plan is clear: sell this scheme to the pub­lic as a means of giv­ing the pub­lic, in par­tic­u­lar rur­al Penn­syl­va­nia, more direct rep­re­sen­ta­tion. And when peo­ple point out that these dis­tricts are going to be ger­ry­man­dered, howl in response about the deep state rig­ging elec­tions against Repub­li­cans and the lat­est elec­tion con­spir­a­cy the­o­ry that Trump tweet­ed about. And then put it up for a bal­lot elec­tion dur­ing a low turnout elec­tion. Like the May 2021 pri­maries:

...
The pur­pose of the bill, accord­ing to its spon­sor, is to increase the geo­graph­ic diver­si­ty of the courts and specif­i­cal­ly to encour­age the elec­tion of jurists from out­side the major met­ro­pol­i­tan areas of Philadel­phia and Pitts­burgh. By requir­ing one judge or jus­tice per dis­trict and near equal­i­ty of pop­u­la­tion in each dis­trict, the bill guar­an­tees that all parts of the state will have “rep­re­sen­ta­tion” on the appel­late courts. Unfor­tu­nate­ly, the pro­posed amend­ment does not guar­an­tee that all vot­ers will have an equal oppor­tu­ni­ty to elect their pre­ferred jurists.

On the con­trary, the lack of strict map­ping cri­te­ria or any pro­tec­tions for racial and lan­guage minori­ties – com­bined with a total lack of trans­paren­cy in the map­ping process – amounts to an open invi­ta­tion to leg­is­la­tors to engage in par­ti­san ger­ry­man­der­ing in order to increase the like­li­hood that can­di­dates of their polit­i­cal par­ty will be elect­ed to the courts.

The first time this bill came up, many seemed to dis­miss it as just an angry reac­tion to the state Supreme Court with its Demo­c­ra­t­ic major­i­ty act­ing in 2018 to throw out the ger­ry­man­dered con­gres­sion­al map approved by most­ly Repub­li­cans back in 2011.

...

In order to appear on the bal­lot for vot­er approval, the bill must pass again in the 2021–22 ses­sion. If approved by the end of Feb­ru­ary, it will appear on the Pri­ma­ry Elec­tion bal­lot in May of 2021.
...

Note the vot­er turnout in the May 2017 Penn­syl­va­nia pri­maries, which are the most anal­o­gous in terms of being and off-year pri­ma­ry right after an elec­tion: vot­er turnout was described as ‘abysmal’ and ‘piti­ful’ by elec­tion observers, with around 15 per­cent of eli­gi­ble vot­ers par­tic­i­pat­ing. That’s the group of who will be decid­ing whether or not Penn­syl­va­nia decides to ger­ry­man­der its state-lev­el judi­cial sys­tem.

For the GOP vot­ers in that pri­ma­ry, it’s going to heav­i­ly be peo­ple who lis­ten close­ly what Trump and the right-wing Big Lie machine are spew­ing out. And thanks to the GOP’s embrace of the ‘stolen elec­tion’ hyper-griev­ance Big Lie, the idea of going out to vote for the ger­ry­man­der­ing of judges is prob­a­bly going to be pret­ty pop­u­lar with the Repub­li­can chunk of that 15 per­cent sliv­er of the elec­torate that shows up in May.

It’s a look at the next phase of the GOP’s strat­e­gy for main­tain­ing its rigged grip on state-lev­el offices: start turn­ing the state-wide offices into region­al hyper-ger­ry­man­dered offices, and if there’s a Demo­c­ra­t­ic gov­er­nor in the way get it passed as a bal­lot ini­tia­tive dur­ing a pri­ma­ry. At least for states for that’s an option. And for the oth­er states it will be the same gen­er­al strat­e­gy: find a way to win through any means nec­es­sary. Any. Any at all. Real­ly. But only ‘any means nec­es­sary’ in order to counter the anti-Repub­li­can deep state con­spir­a­cy that stole the elec­tion from Trump, of course. It’s only fair.

Here’s a pair of sto­ries that’s a reminder that the Trump/GOP efforts to dele­git­imize the 2020 pres­i­den­tial vote — over alle­ga­tions of mass vot­er fraud that some­how only impact­ed the pres­i­den­tial race and not the down bal­lot races — are by no means lim­it­ed to the Trump White House and the GOP. The right-wing lob­by­ists of cor­po­rate Amer­i­ca and the Koch-net­work of mega-donors has been deeply involved in this too. Long before the first votes were ever cast.

First, here’s a sto­ry about how Cle­ta Mitchell — a long-time con­ser­v­a­tive attor­ney who was one of the Trump lawyers who par­tic­i­pat­ed in the now-infa­mous phone call over the week­end between Pres­i­dent Trump and Geor­gia’s Sec­re­tary of State Brad Raf­fensperg­er — just resigned from her law firm. Although it sounds more like she was basi­cal­ly kicked out of the firm, Foley & Lard­ner, over their embar­rass­ment with her involve­ment with that phone call.

As the fol­low­ing arti­cle notes, senior White House offi­cials report­ed­ly had no idea Mitchell was work­ing with Trump on the cur­rent post-elec­tion efforts, although she was long seen as one of the lawyers the White House would rely on to argue their cas­es in court...except that nev­er hap­pened since all of their joke law­suits were thrown out of court. The arti­cle also note that Mitchell has for years been one of the loud­est right-wing voic­es aledg­ing vot­er fraud. Giv­en that those claims by the right-wing of fraud have, for years, been utter­ly bogus, Mitchell was clear­ly a sol­id pick by Trump to par­tic­i­pate in a phone call where they attempt to shake down Raf­fensperg­er based on made up alle­ga­tions. Which is why Foley & Lard­ner appar­ent­ly decid­ed she’s the wrong pick for the them:

CNN

Attor­ney who assist­ed Trump on call with Geor­gia offi­cials resigns from law firm

By Kate­lyn Polantz and Car­o­line Kel­ly, CNN
Updat­ed 11:04 PM ET, Tue Jan­u­ary 5, 2021

(CNN) Cle­ta Mitchell, a lawyer who assist­ed Pres­i­dent Don­ald Trump on the Jan­u­ary 2 call when Trump pres­sured Geor­gia offi­cials to “find” him votes, has resigned from her law firm.

Nation­al law firm Foley & Lard­ner pre­vi­ous­ly said it was “con­cerned” with Mitchel­l’s involve­ment in Trump’s call with Geor­gia Sec­re­tary of State Brad Raf­fensperg­er, and said the firm was­n’t engaged in any legal work chal­leng­ing the elec­tion results. Tues­day, it announced Mitchell was no longer with the firm.

“Cle­ta Mitchell has informed firm man­age­ment of her deci­sion to resign from Foley & Lard­ner effec­tive imme­di­ate­ly. Ms. Mitchell con­clud­ed that her depar­ture was in the fir­m’s best inter­ests, as well as in her own per­son­al best inter­ests,” firm spokesman Dan Far­rell said in a state­ment Tues­day. “We thank her for her con­tri­bu­tions to the firm and wish her well.”

Mitchell told her friends and clients on Tues­day in a per­son­al email that she had left her law firm after almost two decades, blam­ing “a mas­sive pres­sure cam­paign in the last sev­er­al days mount­ed by left­ist groups” against her, the firm and her clients stem­ming from her affil­i­a­tion with Trump and his post-elec­tion lit­i­ga­tion and efforts in Geor­gia.

...

Mitchell has for many years been one of the right wing’s most promi­nent voic­es alleg­ing vot­ing fraud.

On Trump’s call Jan­u­ary 2 with Raf­fensperg­er, White House chief of staff Mark Mead­ows iden­ti­fied Mitchell as an attor­ney hav­ing some involve­ment with Trump’s effort.

She spoke sev­er­al times on the call about a law­suit Trump had brought to decer­ti­fy Geor­gia’s results, and Trump’s effort to get records from the state. A lawyer for the state told her that the infor­ma­tion she had was “not accu­rate.”

Law firms, which often take pride in rep­re­sent­ing unpop­u­lar posi­tions, rarely react strong­ly to polit­i­cal dis­course. But Trump’s week­end call to the Geor­gia offi­cials and insis­tence in try­ing to change the elec­tion’s result has been per­ceived by the legal com­mu­ni­ty to be extra­or­di­nary and, in many instances, eth­i­cal­ly and demo­c­ra­t­i­cal­ly out of bounds.

In excerpts of the stun­ning one-hour phone call, Trump lam­bast­ed his fel­low Repub­li­can for refus­ing to false­ly say that he had won the elec­tion in Geor­gia and repeat­ed­ly tout­ed base­less claims of elec­tion fraud.

“The peo­ple of Geor­gia are angry. The peo­ple of the coun­try are angry. And there’s noth­ing wrong with say­ing that, you know, um, that you’ve recal­cu­lat­ed,” Trump said in one part of the call. Raf­fensperg­er respond­ed, “Well, Mr. Pres­i­dent, the chal­lenge that you have is, the data you have is wrong.”

Offi­cials in Raf­fensperg­er’s office record­ed the call with Trump, accord­ing to a source who was on the call and had direct knowl­edge of the con­ver­sa­tion. Raf­fensperg­er told his advis­ers he did not want the record­ing or a tran­script of the call released unless Trump attacked him or mis­rep­re­sent­ed the call, accord­ing to the source. Trump attacked Raf­fensperg­er in a Sun­day morn­ing tweet and ref­er­enced the call.

Mitchel­l’s involve­ment took some by sur­prise. CNN pre­vi­ous­ly report­ed that sev­er­al senior offi­cials had been unaware that Mitchell was work­ing with the Pres­i­dent until she sur­faced on Trump’s call with Raf­fensperg­er. Repub­li­can sources told CNN late last year that Mitchell, who has been active in Repub­li­can caus­es, includ­ing gun rights, was among promi­nent con­ser­v­a­tive lawyers that a GOP pres­i­den­tial cam­paign would turn to for a seri­ous con­test­ed elec­tion legal fight.

But that effort nev­er mate­ri­al­ized, and courts have resound­ing­ly and repeat­ed­ly reject­ed Trump’s post-elec­tion law­suits, includ­ing in a fed­er­al court in Geor­gia on Tues­day morn­ing.

In some parts of the Jan­u­ary 2 call, Mitchell pushed the Geor­gia offi­cials to help Trump. She told the state that the Pres­i­dent sought its vot­ing-relat­ed data and records. “I think what the Pres­i­dent is say­ing, and what we’ve been try­ing to do is to say, look, the court is not act­ing on our peti­tion,” she said on the call. “But the peo­ple of Geor­gia and the peo­ple of Amer­i­ca have a right to know the answers. And you have data and records that we don’t have access to.”

Trump has spent the final weeks of his term large­ly focused on under­min­ing the elec­tion results, spread­ing unsub­stan­ti­at­ed alle­ga­tions of vot­er fraud and urg­ing state offi­cials to inter­vene in his favor. Last month, Trump called Geor­gia Gov. Bri­an Kemp, push­ing the Repub­li­can to con­vince state leg­is­la­tors to over­turn Demo­c­rat Joe Biden’s win in the state, a source famil­iar with the con­ver­sa­tion told CNN.

The Pres­i­dent spoke on mul­ti­ple occa­sions with the speak­er of the House in Penn­syl­va­nia, a state Biden also won, about the Key­stone State’s elec­tion results, inquir­ing about their elec­toral process, a spokesman for the law­mak­er said last month.

In Novem­ber, Trump invit­ed Repub­li­can state law­mak­ers from Michi­gan to the White House and called two Repub­li­can can­vass board mem­bers from Wayne Coun­ty to offer his sup­port after they went back and forth on vot­ing to cer­ti­fy the elec­tion results from the state’s largest coun­ty, accord­ing to a per­son famil­iar with the mat­ter.

———–

“Attor­ney who assist­ed Trump on call with Geor­gia offi­cials resigns from law firm” by Kate­lyn Polantz and Car­o­line Kel­ly; CNN; 01/05/2021

“Law firms, which often take pride in rep­re­sent­ing unpop­u­lar posi­tions, rarely react strong­ly to polit­i­cal dis­course. But Trump’s week­end call to the Geor­gia offi­cials and insis­tence in try­ing to change the elec­tion’s result has been per­ceived by the legal com­mu­ni­ty to be extra­or­di­nary and, in many instances, eth­i­cal­ly and demo­c­ra­t­i­cal­ly out of bounds.”

Too sleazy for her law firm. The unde­mo­c­ra­t­ic Trump taint was just too much. At least when it became pub­lic. Which rais­es the ques­tion of when she actu­al­ly start­ed work­ing with the Trump team on these post-elec­tion over­turn-by-hook-or-crook efforts. We only learned about her involve­ment because this phone call was leaked. And senior White House offi­cials are telling CNN they did­n’t about her involve­ment until that leak. Is this true? Or might we be see­ing an effort to obscure the extent of her involve­ment by every­one claim­ing igno­rance? Part of the rea­son that’s such a com­pelling ques­tion is that Mitchell was clear­ly going be involved in these efforts because she’s been one of the lead­ing right-wing ‘vot­er fraud’ voic­es for years:

...
Mitchell has for many years been one of the right wing’s most promi­nent voic­es alleg­ing vot­ing fraud.

...

Mitchel­l’s involve­ment took some by sur­prise. CNN pre­vi­ous­ly report­ed that sev­er­al senior offi­cials had been unaware that Mitchell was work­ing with the Pres­i­dent until she sur­faced on Trump’s call with Raf­fensperg­er. Repub­li­can sources told CNN late last year that Mitchell, who has been active in Repub­li­can caus­es, includ­ing gun rights, was among promi­nent con­ser­v­a­tive lawyers that a GOP pres­i­den­tial cam­paign would turn to for a seri­ous con­test­ed elec­tion legal fight.

But that effort nev­er mate­ri­al­ized, and courts have resound­ing­ly and repeat­ed­ly reject­ed Trump’s post-elec­tion law­suits, includ­ing in a fed­er­al court in Geor­gia on Tues­day morn­ing.
...

So was Mitchel­l’s involve­ment a secret to pro­tect the her rep­u­ta­tion and the rep­u­ta­tion of her law firm? Maybe. But as the fol­low­ing arti­cle notes, there’s anoth­er major asso­ci­a­tion of Mitchel­l’s that we should be keep­ing mind here: Cle­ta Mitchell has been work­ing close­ly with the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC) and the Koch net­work on their own long-stand­ing vot­er sup­pres­sion efforts. Efforts that go as far as repeal­ing the 17th Amend­ment and no longer direct­ly elect­ing sen­a­tors. In fact, she was the fea­tured speak­er at a ‘Free­dom­Works Elec­tion Pro­tec­tion Sum­mit’ in ear­ly Octo­ber of last year, where mem­bers strate­gized to chal­lenge the valid­i­ty of mail-in votes should Biden win. So when Mitchell was revealed to be secret­ly work­ing on the Trump cam­paign’s post-elec­tion ‘legal’ efforts, she was indi­rect­ly reveal­ing the secret involve­ment of groups like ALEC in these efforts too:

The Huff­in­g­ton Post

Attor­ney On Trump’s Geor­gia Call Works With Group Aim­ing To Elim­i­nate Sen­ate Elec­tions
Right-wing lawyer Cle­ta Mitchell began strate­giz­ing with the Amer­i­can Leg­isla­tive Exchange Coun­cil to chal­lenge a Trump loss long before the first vote was cast.

By Mary Papen­fuss
01/03/2021 11:21 pm ET Updat­ed

One of the attor­neys on Don­ald Trump’s dis­turb­ing phone call Sat­ur­day demand­ing that Geor­gia “find” votes for him is work­ing with an orga­ni­za­tion fight­ing to ter­mi­nate demo­c­ra­t­ic elec­tions of U.S. sen­a­tors.

Promi­nent con­ser­v­a­tive Repub­li­can lawyer Cle­ta Mitchell — a part­ner in the polit­i­cal­ly con­nect­ed law firm Foley & Lard­ner — has been work­ing with the Amer­i­can Leg­isla­tive Exchange Coun­cil to chal­lenge the results of the pres­i­den­tial elec­tion.

The pow­er­ful, cor­po­rate-fund­ed right-wing orga­ni­za­tion that includes state leg­is­la­tors and lob­by­ists is also bat­tling to change the Con­sti­tu­tion to elim­i­nate Sen­ate elec­tions. Under the ALEC strat­e­gy, sen­a­tors would instead be named by their var­i­ous state leg­is­la­tures, where the Repub­li­can Par­ty has worked for decades to increase its pow­er and influ­ence.

ALEC pre­pared a draft res­o­lu­tion in 2018 for state leg­is­la­tures to call for the repeal of the 17th Amend­ment that required sen­a­tors be cho­sen by vot­ers.

Just over a year after Sen. Ted Cruz (R‑Texas) won his first elec­tion, he spoke out in sup­port of the strat­e­gy at an ALEC con­fer­ence, say­ing in 2013 that he’d pre­fer it if state leg­is­la­tors, not vot­ers, picked sen­a­tors. Cruz is now lead­ing the fight to chal­lenge vot­ers’ choice of Pres­i­dent-elect Joe Biden.

ALEC has con­sis­tent­ly worked to “under­mine democ­ra­cy by the major­i­ty,” ALEC expert and Colum­bia Uni­ver­si­ty assis­tant pro­fes­sor Alexan­der Her­tel-Fer­nan­dez has told Huff­Post. The orga­ni­za­tion is con­tin­u­al­ly “seek­ing ways to con­trol by a minor­i­ty,” he said.

ALEC and Mitchell began last year prepar­ing to chal­lenge mail-in bal­lots for the pres­i­den­tial elec­tion only if Trump lost — long before the first vote was cast.

Mitchell was the fea­tured speak­er at a Free­dom­Works Elec­tion Pro­tec­tion Sum­mit in ear­ly Octo­ber, where mem­bers strate­gized to chal­lenge the valid­i­ty of mail-in votes, again, only if Biden won. She appeared mask­less just days after attend­ing the Rose Gar­den COVID-19 super-spread­er event hon­or­ing new Supreme Court Jus­tice Amy Coney Bar­rett.

“I thought I was wear­ing a mask,” Mitchell told Huff­Post, though pho­tos and videos of the con­fer­ence revealed she wasn’t, nor did she main­tain social dis­tance.

In Novem­ber, Mitchell trig­gered a jaw-drop­ping reac­tion from a Fox News anchor after the lawyer refused to accept that Trump had lost the elec­tion.

Fox News pun­dit refus­es to admit Joe Biden won the election.The anchor reacts but does­n’t real­ize she’s live on air. pic.twitter.com/dCuh5anCku— Strict­ly (@christoq) Novem­ber 9, 2020

ALEC is best known as a “bill mill,” writ­ing cor­po­rate-friend­ly leg­is­la­tion that is then hand­ed off to its politi­cian mem­bers to intro­duce in their state leg­is­la­tures. ALEC claims that near­ly a quar­ter of state leg­is­la­tors and oth­er pub­lic pol­i­cy “stake­hold­ers” are mem­bers of the orga­ni­za­tion.

...

ALEC keeps its mem­ber­ship secret, but records obtained from 2017 by the watch­dog group Doc­u­ment­ed, which probes cor­po­rate influ­ence on pub­lic pol­i­cy, list­ed Koch Indus­tries, Hon­ey­well, Exxon Mobil, UPS, Chevron and South­west Air­lines as mem­bers or event spon­sors, among sev­er­al oth­er cor­po­rate back­ers.

ALEC has qui­et­ly increased their activ­i­ty on vot­ing and elec­tion issues, includ­ing ger­ry­man­der­ing and elec­tion admin­is­tra­tion with “an eye to boost­ing the polit­i­cal clout of con­ser­v­a­tives,” Her­tel-Fer­nan­dez told Huff­Post. “They were an ear­ly pro­po­nent of vot­er ID laws and restric­tions on vot­er reg­is­tra­tions thought to dis­ad­van­tage left-lean­ing con­stituen­cies,” he said.

...

————-

“Attor­ney On Trump’s Geor­gia Call Works With Group Aim­ing To Elim­i­nate Sen­ate Elec­tions” by Mary Papen­fuss; The Huff­in­g­ton Post; 01/03/2021

“Promi­nent con­ser­v­a­tive Repub­li­can lawyer Cle­ta Mitchell — a part­ner in the polit­i­cal­ly con­nect­ed law firm Foley & Lard­ner — has been work­ing with the Amer­i­can Leg­isla­tive Exchange Coun­cil to chal­lenge the results of the pres­i­den­tial elec­tion.”

Cle­ta Mitchell isn’t just a legal dar­ling of the White House. The Koch net­work clear­ly loves hers, mak­ing her the fea­tured speak­er of the Free­dom­Works Elec­tion Pro­tec­tion Sum­mit. A sum­mit that, again, rais­es the ques­tion: what might the rest of the vast net­work of Koch-financed enti­ties like ALEC be doing right now to assist the Trump/GOP efforts to over­turn the elec­tion? We don’t know but secret efforts are like­ly under­way if Mitchel­l’s secret work for Trump is any indi­ca­tion:

...
ALEC and Mitchell began last year prepar­ing to chal­lenge mail-in bal­lots for the pres­i­den­tial elec­tion only if Trump lost — long before the first vote was cast.

Mitchell was the fea­tured speak­er at a Free­dom­Works Elec­tion Pro­tec­tion Sum­mit in ear­ly Octo­ber, where mem­bers strate­gized to chal­lenge the valid­i­ty of mail-in votes, again, only if Biden won. She appeared mask­less just days after attend­ing the Rose Gar­den COVID-19 super-spread­er event hon­or­ing new Supreme Court Jus­tice Amy Coney Bar­rett.

...

ALEC has qui­et­ly increased their activ­i­ty on vot­ing and elec­tion issues, includ­ing ger­ry­man­der­ing and elec­tion admin­is­tra­tion with “an eye to boost­ing the polit­i­cal clout of con­ser­v­a­tives,” Her­tel-Fer­nan­dez told Huff­Post. “They were an ear­ly pro­po­nent of vot­er ID laws and restric­tions on vot­er reg­is­tra­tions thought to dis­ad­van­tage left-lean­ing con­stituen­cies,” he said.
...

Would the Koch net­work dare back Trump’s efforts to basi­cal­ly steal the elec­tion? Well, it’s not like they haven’t been try­ing to over­turn and cap­ture democ­ra­cy for years. You don’t pro­pose over­turn­ing the 17th Amend­ment and elim­i­nat­ing the direct elec­tion of sen­a­tors if you’re in favor of democ­ra­cy. If any­thing, the nation­al cri­sis Trump’s post-elec­tion fight is cre­at­ing is simul­ta­ne­ous­ly cre­at­ing one of the great­est oppor­tu­ni­ties for the Koch net­work to suc­ceed in cap­tur­ing democ­ra­cy its ever seen:

...
The pow­er­ful, cor­po­rate-fund­ed right-wing orga­ni­za­tion that includes state leg­is­la­tors and lob­by­ists is also bat­tling to change the Con­sti­tu­tion to elim­i­nate Sen­ate elec­tions. Under the ALEC strat­e­gy, sen­a­tors would instead be named by their var­i­ous state leg­is­la­tures, where the Repub­li­can Par­ty has worked for decades to increase its pow­er and influ­ence.

ALEC pre­pared a draft res­o­lu­tion in 2018 for state leg­is­la­tures to call for the repeal of the 17th Amend­ment that required sen­a­tors be cho­sen by vot­ers.

Just over a year after Sen. Ted Cruz (R‑Texas) won his first elec­tion, he spoke out in sup­port of the strat­e­gy at an ALEC con­fer­ence, say­ing in 2013 that he’d pre­fer it if state leg­is­la­tors, not vot­ers, picked sen­a­tors. Cruz is now lead­ing the fight to chal­lenge vot­ers’ choice of Pres­i­dent-elect Joe Biden.
...

Note that even Repub­li­can Sen­a­tor Ben Sasse, a rel­a­tive mod­er­ate these days, pub­licly opined about the virtues of repeal­ing the 17th Amend­ment back in Sep­tem­ber. That’s how pop­u­lar this idea is with­in the GOP and it just hap­pens to be one of the Koch net­work’s pet projects.

And that’s all why the dis­missal of Cle­ta Mitchell from her law firm over her secret Trump efforts should be rais­ing the ques­tion of how many oth­er peo­ple are mak­ing sim­i­lar secret efforts and how many of them just hap­pen to be deeply involved with the Koch net­work.

What’s to be done with the Repub­li­can Par­ty? It’s a ques­tion many with­in the GOP have been ask­ing ever since Don­ald Trump effec­tive­ly took over the par­ty in 2016, and is now per­haps the ques­tion fac­ing the par­ty after reports that Trump is con­sid­er­ing start­ing his own “Patri­ot Par­ty”. And while there are no easy answers to this ques­tion, it’s worth beat­ing the fol­low­ing dead horse one more time: noth­ing will mod­er­ate the Repub­li­can Par­ty until ger­ry­man­der­ing is end­ed:

The New York Times

How Ger­ry­man­der­ing Will Pro­tect Repub­li­cans Who Chal­lenged the Elec­tion
Tak­ing a posi­tion as inflam­ma­to­ry as refus­ing to cer­ti­fy a fair elec­tion would be riski­er for G.O.P. law­mak­ers if they need­ed to appeal to an elec­torate beyond their next set of pri­ma­ry vot­ers.

By Reid J. Epstein and Nick Corasan­i­ti
Jan. 19, 2021

WASHINGTON — Rep­re­sen­ta­tive Jim Jor­dan of Ohio comes from a duck-shaped dis­trict that stretch­es across parts of 14 coun­ties and five media mar­kets and would take near­ly three hours to dri­ve end to end.

Designed after the 2010 cen­sus by Ohio Repub­li­cans intent on keep­ing Mr. Jor­dan, then a three-term con­gress­man, safe­ly in office, the dis­trict has pro­duced the desired result. He has won each of his last five elec­tions by at least 22 per­cent­age points.

The out­lines of Ohio’s Fourth Con­gres­sion­al Dis­trict have left Mr. Jor­dan, like scores of oth­er con­gres­sion­al and state law­mak­ers, account­able only to his party’s elec­torate in Repub­li­can pri­maries. That phe­nom­e­non encour­aged the Repub­li­can Party’s feal­ty to Pres­i­dent Trump as he pushed his base­less claims of elec­tion fraud.

That unwa­ver­ing loy­al­ty was evi­dent on Jan. 6, when Mr. Jor­dan and 138 oth­er House Repub­li­cans vot­ed against cer­ti­fy­ing Joseph R. Biden Jr. as the win­ner of the pres­i­den­tial elec­tion. Their deci­sion, just hours after a vio­lent mob had stormed the Capi­tol, has repelled many of the party’s cor­po­rate bene­fac­tors, exposed a fis­sure with the Sen­ate Repub­li­can lead­er­ship and tarred an ele­ment of the par­ty as insur­rec­tion­ists.

But while Mr. Trump faces an impeach­ment tri­al and poten­tial crim­i­nal charges for his role in incit­ing the riot­ing, it is unlike­ly that Mr. Jor­dan and his com­pa­tri­ots will face any reck­on­ing at the bal­lot box.

Almost all of them are guar­an­teed to win re-elec­tion.

Of the 139 House Repub­li­cans who vot­ed to object to Mr. Biden’s Elec­toral Col­lege vic­to­ry, 85 come from states in which Repub­li­cans will con­trol all levers of the redis­trict­ing process this year. An addi­tion­al 28 rep­re­sent dis­tricts drawn by Repub­li­cans in 2011 with­out Demo­c­ra­t­ic input in states where the G.O.P. still holds majori­ties in state leg­isla­tive cham­bers.

Tak­ing a posi­tion as inflam­ma­to­ry as refus­ing to cer­ti­fy a free and fair elec­tion would be much riski­er for law­mak­ers in Con­gress and in state­hous­es if they need­ed to appeal to elec­torates beyond their next sets of pri­ma­ry vot­ers — a group that itself remains loy­al to the out­go­ing pres­i­dent.

“With redis­trict­ing com­ing up this year, many mem­bers clear­ly made the deci­sion that the big­ger risks they faced were in the pri­ma­ry, and what­ev­er risk they faced in the gen­er­al elec­tion, the next round of ger­ry­man­der­ing would take care of that,” said Michael Li, a senior coun­sel for the Democ­ra­cy Cen­ter at the Bren­nan Cen­ter for Jus­tice.

Not all of the House mem­bers who declined to cer­ti­fy the elec­tion results were from Repub­li­can-con­trolled states. Rep­re­sen­ta­tive Mike Gar­cia of Cal­i­for­nia, from a com­pet­i­tive dis­trict north of Los Ange­les, vot­ed against cer­ti­fi­ca­tion, as did Rep­re­sen­ta­tive Paul Gosar of Ari­zona, where the redis­trict­ing author­i­ty is inde­pen­dent.

And some polit­i­cal sci­en­tists main­tain that grass-roots move­ments and the whims of big donors can be more influ­en­tial than ger­ry­man­der­ing as a cause for incum­bents to drift to more extreme posi­tions.

Democ­rats, too, have been guilty of ger­ry­man­der­ing, par­tic­u­lar­ly in states like Mary­land and Illi­nois, and law­mak­ers in New Jer­sey drew a rebuke from nation­al Democ­rats for their efforts to write a form of ger­ry­man­der­ing into their state Con­sti­tu­tion in 2018 (they ulti­mate­ly with­drew it). But Repub­li­cans have weaponized ger­ry­man­der­ing far more fre­quent­ly, and to greater effect, across the coun­try than have Democ­rats.

With Repub­li­cans run­ning strong in November’s down-bal­lot con­tests, the par­ty is poised to draw favor­able dis­trict lines for the next decade, cement­ing con­trol of state gov­ern­ments and con­gres­sion­al dis­tricts in the large bat­tle­ground states of Geor­gia, Flori­da, Ohio and Texas.

Repub­li­cans con­trol state leg­isla­tive cham­bers and governor’s man­sions in 23 states; in sev­en oth­ers, includ­ing Michi­gan, Penn­syl­va­nia and Wis­con­sin, Repub­li­cans con­trol the leg­is­la­tures, but the gov­er­nors are Democ­rats who would most like­ly veto new dis­trict maps, set­ting up court bat­tles lat­er this year.

Mr. Jordan’s dis­trict, which snakes from the west­ern Cleve­land sub­urbs south to the Colum­bus exurbs and then west, near­ly touch­ing the Indi­ana state line, has made him invul­ner­a­ble to Demo­c­ra­t­ic oppo­nents. It has also made the task of a Repub­li­can pri­ma­ry chal­lenge vir­tu­al­ly impos­si­ble, giv­en the logis­ti­cal hur­dles of build­ing an appeal across an array of oth­er­wise dis­con­nect­ed com­mu­ni­ties.

“It takes two and a half hours to dri­ve from where I live in Ober­lin to the far­thest point in the dis­trict,” said Janet Gar­rett, a retired kinder­garten teacher and a Demo­c­rat who ran against Mr. Jor­dan three times. “The dis­trict is shaped like a duck, and I live up in the bill of the duck.”

The Repub­li­can-drawn maps in Ohio haven’t just insu­lat­ed Trump allies like Mr. Jor­dan. They have also result­ed in an embold­ened state Leg­is­la­ture that has aggres­sive­ly pushed back against efforts by the Repub­li­can gov­er­nor, Mike DeWine, to com­bat the coro­n­avirus. Repub­li­can law­mak­ers pushed out Mr. DeWine’s pub­lic health direc­tor, sought to have Mr. DeWine crim­i­nal­ly charged over his impo­si­tion of statewide pub­lic health restric­tions and late last year filed arti­cles of impeach­ment against Mr. DeWine.

The polit­i­cal atmos­phere in Ohio has left Repub­li­cans striv­ing hard to stress their Trump loy­al­ties while leav­ing Democ­rats demor­al­ized.

“It’s very hard to recruit can­di­dates — they basi­cal­ly know that they can’t win,” said David Pep­per, a for­mer chair­man of the Ohio Demo­c­ra­t­ic Par­ty. “Even if they were run­ning in 2020, the out­come of their race was deter­mined in 2011 when the map was final­ized.”

Though both par­ties have ger­ry­man­dered some con­gres­sion­al dis­tricts in states across the coun­try, the cur­rent maps favor Repub­li­cans; as a result, they have to win a small­er share of votes nation­al­ly in order to main­tain con­trol of the House, and there­fore the speak­er­ship.

“There’s a sub­stan­tial bias favor­ing Repub­li­cans in the House,” said Nick Stephanopou­los, a law pro­fes­sor at Har­vard Law School. “When Democ­rats win the pop­u­lar vote by three or four points, like they did in the last elec­tion, they bare­ly, bare­ly win con­trol of the House. If Repub­li­cans were to win the nation­al vote by three or four points, they would have a very large major­i­ty in the House, as they did in 2014.”

He con­tin­ued, “Absolute­ly, at the moment, ger­ry­man­der­ing is arti­fi­cial­ly sup­press­ing the num­bers of Demo­c­ra­t­ic votes in the House.”

The pro­tec­tions afford­ed by par­ti­san ger­ry­man­der­ing extend even fur­ther in state leg­isla­tive races, where the lack of nation­al atten­tion has allowed some Repub­li­can-con­trolled leg­is­la­tures to build sig­nif­i­cant advan­tages into the maps, even though a statewide par­ty break­down might favor Democ­rats.

Take Michi­gan. It has often been a reli­ably Demo­c­ra­t­ic state when it comes to statewide fed­er­al elec­tions, hav­ing elect­ed only Demo­c­ra­t­ic U.S. sen­a­tors since 2001 and hav­ing vot­ed for Democ­rats for pres­i­dent every elec­tion since 1988, except for 2016.

But Repub­li­cans have con­trolled the State House since 2008 and the State Sen­ate since 1990. While there can often be a dis­crep­an­cy between fed­er­al and state elec­tions, the advan­tage Michi­gan Repub­li­cans hold in the State House often extends even beyond the nor­mal vari­ances in state elec­tions.

In 2020, for instance, the vote share for State House races in Michi­gan was essen­tial­ly a 50–50 split between the two par­ties, accord­ing to data from The Asso­ci­at­ed Press, with Repub­li­cans hold­ing a slim 14,000-vote lead. But Repub­li­cans retained a 58–52 advan­tage in the House, or a split of rough­ly a 53 per­cent to 47 per­cent.

Sim­i­lar advan­tages were evi­dent in Penn­syl­va­nia and Wis­con­sin, in ways that proved favor­able to Mr. Trump. Repub­li­can-con­trolled leg­is­la­tures in both of those states, as well as Michi­gan, held hear­ings into the elec­tion fol­low­ing pres­sure from Mr. Trump and his allies, with Democ­rats and elec­tion experts con­demn­ing the evi­dence-free ses­sions as feck­less attempts to please the pres­i­dent.

“If you didn’t have the ger­ry­man­der­ing in Michi­gan, Penn­syl­va­nia and Wis­con­sin, you might well have Demo­c­ra­t­ic con­trol of those leg­is­la­tures,” said Mr. Stephanopou­los, the Har­vard pro­fes­sor, “and with Demo­c­ra­t­ic con­trol of the leg­is­la­tures, they nev­er would have tried to sup­press vot­ing or delayed the pro­cess­ing of the bal­lots or con­sid­ered any of Trump’s var­i­ous schemes to over­turn the elec­tion.”

...

————

“How Ger­ry­man­der­ing Will Pro­tect Repub­li­cans Who Chal­lenged the Elec­tion” by Reid J. Epstein and Nick Corasan­i­ti; The New York Times; 01/19/2021

“The out­lines of Ohio’s Fourth Con­gres­sion­al Dis­trict have left Mr. Jor­dan, like scores of oth­er con­gres­sion­al and state law­mak­ers, account­able only to his party’s elec­torate in Repub­li­can pri­maries. That phe­nom­e­non encour­aged the Repub­li­can Party’s feal­ty to Pres­i­dent Trump as he pushed his base­less claims of elec­tion fraud.”

It’s no secret. Ger­ry­man­der­ing encour­ages Repub­li­cans to be as extreme as pos­si­ble. That’s why almost of the Repub­li­can mem­bers of the House who sup­port­ed Don­ald Trump’s elec­tion-rig­ging claims and refuse to con­demn Trump’s role in the Jan 6 storm­ing of the Capi­tol are basi­cal­ly guar­an­teed to win reelec­tion thanks to ger­ry­man­der­ing. Ger­ry­man­der­ing specif­i­cal­ly designed to guar­an­tee Repub­li­can vic­to­ries in the gen­er­al elec­tion which, in turn, essen­tial­ly hands polit­i­cal pow­er to the Repub­li­can pri­ma­ry vot­ers. The same Repub­li­can pri­ma­ry vot­ers who over­whelm­ing­ly con­tin­ue to sup­port Don­ald Trump no mat­ter what he does:

...
But while Mr. Trump faces an impeach­ment tri­al and poten­tial crim­i­nal charges for his role in incit­ing the riot­ing, it is unlike­ly that Mr. Jor­dan and his com­pa­tri­ots will face any reck­on­ing at the bal­lot box.

Almost all of them are guar­an­teed to win re-elec­tion.

...

Tak­ing a posi­tion as inflam­ma­to­ry as refus­ing to cer­ti­fy a free and fair elec­tion would be much riski­er for law­mak­ers in Con­gress and in state­hous­es if they need­ed to appeal to elec­torates beyond their next sets of pri­ma­ry vot­ers — a group that itself remains loy­al to the out­go­ing pres­i­dent.

“With redis­trict­ing com­ing up this year, many mem­bers clear­ly made the deci­sion that the big­ger risks they faced were in the pri­ma­ry, and what­ev­er risk they faced in the gen­er­al elec­tion, the next round of ger­ry­man­der­ing would take care of that,” said Michael Li, a senior coun­sel for the Democ­ra­cy Cen­ter at the Bren­nan Cen­ter for Jus­tice.

...

The Repub­li­can-drawn maps in Ohio haven’t just insu­lat­ed Trump allies like Mr. Jor­dan. They have also result­ed in an embold­ened state Leg­is­la­ture that has aggres­sive­ly pushed back against efforts by the Repub­li­can gov­er­nor, Mike DeWine, to com­bat the coro­n­avirus. Repub­li­can law­mak­ers pushed out Mr. DeWine’s pub­lic health direc­tor, sought to have Mr. DeWine crim­i­nal­ly charged over his impo­si­tion of statewide pub­lic health restric­tions and late last year filed arti­cles of impeach­ment against Mr. DeWine.
...

There’s no deny­ing that ger­ry­man­der­ing tur­bo-charges Repub­li­can extrem­ism. And at this point, giv­en the wild extent of Repub­li­can con­trol at the state-lev­el and all of the ger­ry­man­der­ing that entails, most of the Repub­li­can cau­cus in the House comes from dis­tricts ger­ry­man­dered to elect Repub­li­cans. For the 116th con­gress (2019–2020), there were 197 Repub­li­cans in the House. 139 of those 197 rep­re­sen­ta­tives vot­ed to object to Joe Biden’s elec­tion, ful­ly sup­port­ing Trump’s claims of mass vot­er fraud. If those 139, 85 came from states where the GOP com­plete­ly con­trols the redis­trict­ing process and anoth­er 28 come from dis­tricts ger­ry­man­dered by the GOP om 2011 with­out any Demo­c­ra­t­ic input. So 113 out of the 139 Repub­li­cans who vot­ed to object to Biden’s elec­tion came from ger­ry­man­dered dis­tricts:

...
Of the 139 House Repub­li­cans who vot­ed to object to Mr. Biden’s Elec­toral Col­lege vic­to­ry, 85 come from states in which Repub­li­cans will con­trol all levers of the redis­trict­ing process this year. An addi­tion­al 28 rep­re­sent dis­tricts drawn by Repub­li­cans in 2011 with­out Demo­c­ra­t­ic input in states where the G.O.P. still holds majori­ties in state leg­isla­tive cham­bers.
...

And that’s why there should be absolute­ly no expec­ta­tion of any mod­er­a­tion in the Repub­li­can Par­ty until ger­ry­man­der­ing ends. A major­i­ty of the par­ty comes from dis­tricts designed to ensure exclu­sive feal­ty to the most extreme ele­ments of par­ty’s vot­er base.

Also keep in mind that with 2021 kick­ing off a whole new round of redis­trict­ing and Repub­li­cans main­tain­ing their grip on state offices, the ger­ry­man­der­ing is prob­a­bly going to be even worse over the next decade, espe­cial­ly after the Supreme Court’s con­ser­v­a­tive major­i­ty ruled in Rucho v Com­mon Cause to remove fed­er­al over­sight of ger­ry­man­der­ing for most cas­es. The sys­tem­at­ic incen­tives for Repub­li­can mem­bers of the House to be as extreme as pos­si­ble are only going to get worse.

Also keep in mind that, should Don­ald Trump fol­low­ing through with his threat to form a new par­ty, as long as the Repub­li­can vot­er base remains loy­al to Trump, all of those ger­ry­man­dered dis­tricts will sud­den­ly become ger­ry­man­dered for Trump’s new “Patri­ot Par­ty”. And that, in turn, would actu­al­ly mod­er­ate the Repub­li­can Par­ty because the only mem­bers left would pre­sum­ably be the nev­er-Trumper Repub­li­cans, although the mod­er­ate Repub­li­cans nom­i­nat­ed by the remain­ing mod­er­at­ed GOP elec­torate would pre­sum­ably fair poor­ly dur­ing the gen­er­al elec­tion and like­ly lose to either the “Patri­ot Par­ty” can­di­date or the Demo­c­rat. In oth­er words, the only real­is­tic way to mod­er­ate the Repub­li­can Par­ty at this point is to effec­tive­ly let it die by allow­ing the major­i­ty of extrem­ists to leave for an even more extreme par­ty. Or end ger­ry­man­der­ing.

In light of the moves by Repub­li­cans in the Ari­zona state House to grant the state leg­is­la­ture uni­lat­er­al pow­er to reverse the state’s pres­i­den­tial elec­tion results, here’s a reminder of the full-spec­trum nature of the Repub­li­can Par­ty’s com­mit­ment to rig­ging Amer­i­can democ­ra­cy:
In 2000, Ari­zon­a’s vot­ers passed a ref­er­en­dum to min­i­mize the impact of ger­ry­man­der­ing by set­ting up an inde­pen­dent com­mis­sion to han­dle the redis­trict­ing process. The com­mis­sion con­sists of two Democ­rats, two Repub­li­cans, and a fifth mem­ber that is sup­posed to be a non-par­ti­san inde­pen­dent. Based on the design of the com­mis­sion, the inde­pen­dence of that fifth mem­ber is obvi­ous­ly vital for the will of the vot­ers to be car­ried out with non-ger­ry­man­dered dis­tricts. So, of course, the Ari­zona GOP is try­ing to fill it with a par­ti­san stooge who will rub­ber-stamp the par­ti­san ger­ry­man­der­ing the GOP has in mind for this year’s redis­trict­ing process:

Salon

Ari­zona Repub­li­cans make sneaky moves to rig redis­trict­ing com­mis­sion before any lines are drawn

There are nation­al impli­ca­tions if Repub­li­cans take this cru­cial advan­tage for the next decade in a swing state

By David Daley
Jan­u­ary 14, 2021 9:54PM (UTC)

Last August, more than one hun­dred Don­ald Trump sup­port­ers gath­ered in front of a Flagstaff, Ariz., gun store for a ral­ly. The “Team Trump On Tour” bus dom­i­nat­ed the shop­ping mall park­ing lot. U.S. Rep. Andy Big­gs, the chair­man of the House Free­dom Cau­cus, spoke to the crowd.

Then, in Sep­tem­ber, Trump back­ers gath­ered again at Tim­ber­line Firearms and Train­ing, this time for a “shoot­ing day” to sup­port the pres­i­dent.

Now, the own­er of that gun store, Robert Wil­son, has been select­ed one of the five final­ists to become the pow­er­ful chair of Ari­zon­a’s redis­trict­ing com­mis­sion — the sup­pos­ed­ly inde­pen­dent, and almost cer­tain­ly deci­sive voice on a five-per­son board (along with two Democ­rats and two Repub­li­cans) who will deter­mine this swing state’s leg­isla­tive and con­gres­sion­al dis­tricts for the next decade.

Wil­son might be a reg­is­tered polit­i­cal inde­pen­dent. But “host­ed Trump ral­lies at his gun store, with a speech by the Free­dom Cau­cus chair” does­n’t inspire con­fi­dence in his actu­al inde­pen­dence or his abil­i­ty to be the fair-mind­ed, scrupu­lous arbiter that this posi­tion requires.

Indeed, some­one fair-mind­ed might look at the list of five final­ists recent­ly select­ed by the state’s Com­mis­sion on Appel­late Court Appoint­ments — an osten­si­bly non­par­ti­san per­son­nel board — and won­der if the Repub­li­cans are try­ing to rat­fuck Ari­zon­a’s inde­pen­dent com­mis­sion before a sin­gle line has even been drawn.

Four of the five final­ists, while reg­is­tered as inde­pen­dents, have either strong pub­lic opin­ions, or close ties and/or finan­cial inter­ests through jobs, fam­i­ly and part­ners into the state’s polit­i­cal pow­er struc­ture.

Those opin­ions and con­nec­tions large­ly lean in the same direc­tion — toward Ari­zona Repub­li­cans.

If the Com­mis­sion on Appel­late Court Appoint­ments — yes, CACA for short, because you can’t make this stuff up — pro­duced a list of names over­whelm­ing­ly like­ly to give Repub­li­cans that 3–2 edge on the inde­pen­dent redis­trict­ing com­mis­sion, well, that might not be a coin­ci­dence either.

Gov. Doug Ducey, a Repub­li­can, has stacked CACA with loy­al­ists through­out his time in office, and, for more than a year lead­ing up to this appoint­ment, refused to name any Democ­rats at all to this qui­et­ly influ­en­tial board. Democ­rats accused him of con­duct­ing “sham inter­views” for the board.

“This is a long-term, dual-pronged strat­e­gy to bias the inde­pen­dent redis­trict­ing com­mis­sion,” said State Sen. Mar­tin Queza­da, a Demo­c­rat, who has been ring­ing alarms about the politi­ciza­tion of this com­mis­sion for years.

“This has been a neu­tral board over the years. This gov­er­nor stopped appoint­ing Democ­rats and packed it with Repub­li­cans and a cou­ple inde­pen­dents — but the inde­pen­dents always seemed to be mar­ried to peo­ple in the admin­is­tra­tion or reli­able lob­by­ists.”

The four com­mis­sion­ers already named to the com­mis­sion — two Repub­li­cans and two Democ­rats, vet­ted by CACA and then select­ed by the major­i­ty and minor­i­ty lead­ers of Ari­zon­a’s state house and sen­ate — will meet Thurs­day and begin the process of select­ing their chair­per­son from the five final­ists. It could take as long as two weeks.

If those four par­ti­san mem­bers dead­lock, as seems like­ly, the tie-break­er would essen­tial­ly go to the Repub­li­cans. Under that sce­nario, the deci­sion would then revert to CACA. That means, for exam­ple, if the two Repub­li­cans dig in their heels and insist on Wil­son, the gun shop own­er, as chair, and Democ­rats refuse to yield, CACA could sim­ply appoint him — or anoth­er of these seem­ing­ly less-than-inde­pen­dent inde­pen­dents — any­way. It cer­tain­ly does­n’t give Repub­li­cans on the com­mis­sion incen­tive to com­pro­mise now.

All of this has nation­al polit­i­cal impli­ca­tions: It could hand Repub­li­cans a cru­cial advan­tage for the next decade in a state that has become so com­pet­i­tive that it was nar­row­ly car­ried by Joe Biden in Novem­ber and now has two Demo­c­ra­t­ic U.S. Sen­a­tors. A com­mis­sion biased toward Repub­li­cans would give them a leg with­in the state’s con­gres­sion­al del­e­ga­tion at a time when con­trol of Con­gress remains tight. It could also help the GOP main­tain con­trol of the state leg­is­la­ture, which in turn, could lead to addi­tion­al vot­er sup­pres­sion in a state where that has become increas­ing­ly com­mon­place.

The patient, long-term GOP chi­canery here is yet anoth­er sign of how com­mit­ted the par­ty remains to con­tin­u­ing the advan­tages it won in Con­gress and state leg­is­la­tures through redis­trict­ing in 2010 and 2011, and stretch­ing them into anoth­er decade. New dis­tricts will be drawn nation­wide this year, after the Cen­sus Bureau releas­es data to the states.

“It’s pret­ty obvi­ous­ly going to be a right-lean­ing com­mis­sion at the end of the day,” Queza­da told me.

Just what kind of CACA is hap­pen­ing in Ari­zona? The five final­ists, from among more than 25 appli­cants, include the Flagstaff gun store own­er as well as:

* Thomas Loquvam, a well-con­nect­ed gen­er­al coun­sel and reg­is­tered lob­by­ist for one of Ari­zon­a’s major util­i­ties, whose sis­ter, Jes­si­ca Pacheco, in 2014, helped direct anoth­er promi­nent util­i­ty’s sev­en-fig­ure “dark-mon­ey” oper­a­tion against Demo­c­ra­t­ic can­di­dates for the state com­mis­sion that reg­u­lates all pub­lic util­i­ties. (Lob­by­ists are sup­posed to be pro­hib­it­ed on the com­mis­sion.)
* Megan Car­ol­lo, the own­er of a high-end flo­ral bou­tique whose part­ner, accord­ing to state Democ­rats, both advis­es the Ari­zona Mex­i­co Com­mis­sion — a trade asso­ci­a­tion chaired by the gov­er­nor, and now led as pres­i­dent by Pacheco, the util­i­ty gen­er­al coun­sel’s sis­ter — and serves as pres­i­dent of a firm that has received more than a mil­lion dol­lars in con­tracts from the gov­er­nor’s bud­get.
* Eri­ka Schu­pak Neu­berg, a Scotts­dale psy­chol­o­gist and nation­al board mem­ber of the Amer­i­can Israel Pub­lic Affairs Com­mit­tee, who has been a pro­lif­ic donor to Ari­zon­a’s GOP gov­er­nor and relat­ed Super­PACs, many mem­bers of the con­gres­sion­al del­e­ga­tion, as well as to some Demo­c­ra­t­ic politi­cos.

The fifth can­di­date, Gre­go­ry Tees­dale, a long-time devel­op­er and ven­ture cap­i­tal­ist, is the only final­ist with­out an appar­ent con­nec­tion that could poten­tial­ly be con­sid­ered a con­flict of inter­est.

...

In Decem­ber, an Ari­zona supe­ri­or court judge reject­ed an effort by Democ­rats to dis­qual­i­fy Wil­son and Loquvam. In Wilson’s case, the judge ruled that the state con­sti­tu­tion did­n’t require the chair to be an actu­al inde­pen­dent, just reg­is­tered as one for at least three years. With regard to Loquvam, the judge inter­pret­ed “lob­by­ist” nar­row­ly; he is reg­is­tered to lob­by the state Cor­po­ra­tion Com­mis­sion, not the leg­is­la­ture.

Nev­er­the­less, Loquvam cer­tain­ly has the kinds of polit­i­cal con­nec­tions that could well under­mine the very notion of mov­ing the line-draw­ing pow­er from politi­cians to the peo­ple. As the Ari­zona Mir­ror report­ed, he worked for Pin­na­cle West, the com­pa­ny that runs the mas­sive Ari­zona Pub­lic Ser­vice util­i­ty, which “has spent mil­lions against Demo­c­ra­t­ic can­di­dates for the Cor­po­ra­tion Com­mis­sion,” seek­ing to install more util­i­ty-friend­ly reg­u­la­tors on the impor­tant board. The APS, mean­while, accord­ing to the Mir­ror, “secret­ly fund­ed” its cam­paign for “friend­ly reg­u­la­tors” by “laun­der­ing the mon­ey through the Ari­zona Free Enter­prise Club.” Those activ­i­ties, in turn, were led by Loquvam’s sis­ter, Pacheco.

“Put the law aside for a minute and just look at those two indi­vid­u­als. It’s pret­ty obvi­ous, Queza­da says. “When some­one’s hav­ing a Trump ral­ly at their gun store, not super-inde­pen­dent. A lob­by­ist. That might be a stan­dard that could be adopt­ed.” (Wil­son denied the ral­ly was intend­ed to sup­port a can­di­date, and said he is a “strong advo­cate of an informed elec­torate.”) Queza­da says he believes the oth­er three can­di­dates “lean Repub­li­can, for sure,” but that all Democ­rats can hope is that their lean is “not as obvi­ous as the oth­er two.”

Ari­zon­a’s com­mis­sion, of course, was intend­ed to get the politi­cians, polit­i­cal cronies and oth­er self-inter­est­ed par­ties out of the busi­ness of draw­ing dis­tricts. It has­n’t worked. Indeed, it might be the lead­ing nation­al exam­ple of why a poor­ly designed inde­pen­dent com­mis­sion does next to noth­ing to actu­al­ly improve the draw­ing of fair lines.

Ari­zon­a’s com­mis­sion places the bur­den of draw­ing lines onto five peo­ple. Four of them are essen­tial­ly cho­sen by law­mak­ers. One per­son must stand between the two polit­i­cal par­ties. It’s an impos­si­ble task — and of course one that both par­ties will look to warp to their own advan­tage. Democ­rats believed that Repub­li­cans got the bet­ter of the com­mis­sion after 2000. Repub­li­cans thought Democ­rats worked the rules bet­ter than them after 2010. One for­mer GOP mem­ber of the com­mis­sion told me for “Ratf**ked,” my book on the weaponiza­tion of par­ti­san ger­ry­man­der­ing, that in 2020, his par­ty would look to dom­i­nate the appel­late court appli­ca­tion process.

“Next time,” Scott Free­man told me, “it will be game on.” Next time has arrived.

—————

“Ari­zona Repub­li­cans make sneaky moves to rig redis­trict­ing com­mis­sion before any lines are drawn” by David Daley; Salon; 01/14/2021

“Ari­zon­a’s com­mis­sion places the bur­den of draw­ing lines onto five peo­ple. Four of them are essen­tial­ly cho­sen by law­mak­ers. One per­son must stand between the two polit­i­cal par­ties. It’s an impos­si­ble task — and of course one that both par­ties will look to warp to their own advan­tage. Democ­rats believed that Repub­li­cans got the bet­ter of the com­mis­sion after 2000. Repub­li­cans thought Democ­rats worked the rules bet­ter than them after 2010. One for­mer GOP mem­ber of the com­mis­sion told me for “Ratf**ked,” my book on the weaponiza­tion of par­ti­san ger­ry­man­der­ing, that in 2020, his par­ty would look to dom­i­nate the appel­late court appli­ca­tion process. ”

It’s a sim­ple design to avoid the destruc­tive per­ils of ger­ry­man­der­ing: have an inde­pen­dent tie-break­er. A sim­ple design with some very sim­ple pit­falls. Like the risk of putting a par­ti­san hack in that cru­cial tie-break­er posi­tion. The whole sys­tem becomes a hyper-par­ti­san bro­ken mess. And that mess is pre­cise­ly what the Ari­zona Repub­li­cans have been work­ing on cre­at­ing for years now. A delib­er­ate effort to cor­rupt Ari­zon­a’s non-par­ti­san redis­trict­ing process with the full back­ing of Ari­zon­a’s Repub­li­can gov­er­nor:

...
Four of the five final­ists, while reg­is­tered as inde­pen­dents, have either strong pub­lic opin­ions, or close ties and/or finan­cial inter­ests through jobs, fam­i­ly and part­ners into the state’s polit­i­cal pow­er struc­ture.

Those opin­ions and con­nec­tions large­ly lean in the same direc­tion — toward Ari­zona Repub­li­cans.

If the Com­mis­sion on Appel­late Court Appoint­ments — yes, CACA for short, because you can’t make this stuff up — pro­duced a list of names over­whelm­ing­ly like­ly to give Repub­li­cans that 3–2 edge on the inde­pen­dent redis­trict­ing com­mis­sion, well, that might not be a coin­ci­dence either.

Gov. Doug Ducey, a Repub­li­can, has stacked CACA with loy­al­ists through­out his time in office, and, for more than a year lead­ing up to this appoint­ment, refused to name any Democ­rats at all to this qui­et­ly influ­en­tial board. Democ­rats accused him of con­duct­ing “sham inter­views” for the board.

“This is a long-term, dual-pronged strat­e­gy to bias the inde­pen­dent redis­trict­ing com­mis­sion,” said State Sen. Mar­tin Queza­da, a Demo­c­rat, who has been ring­ing alarms about the politi­ciza­tion of this com­mis­sion for years.

...

All of this has nation­al polit­i­cal impli­ca­tions: It could hand Repub­li­cans a cru­cial advan­tage for the next decade in a state that has become so com­pet­i­tive that it was nar­row­ly car­ried by Joe Biden in Novem­ber and now has two Demo­c­ra­t­ic U.S. Sen­a­tors. A com­mis­sion biased toward Repub­li­cans would give them a leg with­in the state’s con­gres­sion­al del­e­ga­tion at a time when con­trol of Con­gress remains tight. It could also help the GOP main­tain con­trol of the state leg­is­la­ture, which in turn, could lead to addi­tion­al vot­er sup­pres­sion in a state where that has become increas­ing­ly com­mon­place.
...

And keep in mind that that the nation­al impli­ca­tions of this cor­rup­tion of the Ari­zon­a’s redis­trict­ing process could have nation­al impli­ca­tions that go beyond swing­ing con­trol of the White House or Sen­ate. If the ini­tia­tive by the Ari­zona Repub­li­cans in the House to give the state leg­is­la­ture uni­lat­er­al pow­er to over­turn pres­i­den­tial elec­tions, the par­ti­san com­po­si­tion of the Ari­zona state leg­is­la­ture is some­thing that will take on new nation­al impor­tance. After all, imag­ine if Ari­zon­a’s leg­is­la­ture already had the pow­er to uni­lat­er­al­ly over­turn the 2020 pres­i­den­tial elec­tion results. What were the odds that the NOT hap­pen­ing? They’re push­ing this leg­is­la­tion now because they want to over­turn the 2020 elec­tion results and lack the author­i­ty. Future over­turned elec­tion results are a vir­tu­al cer­tain­ty if Ari­zona gives its leg­is­la­ture the uni­lat­er­al pow­er to over­turn elec­tion results...as long as a Demo­c­rat wins the state and Repub­li­cans con­trols the state leg­is­la­ture. And that Repub­li­can con­trol of the state leg­is­la­ture is a vir­tu­al cer­tain­ty if the GOP is allowed to rig the redis­trict­ing process as it is clear­ly plan­ning to do.

And that’s all why the Ari­zona Repub­li­can Par­ty’s push to cor­rupt the non-par­ti­san redis­tric­trict­ing board isn’t just the lat­est expect­ed attempt to rig Ari­zon­a’s state elec­tions, along with the Ari­zona con­gres­sion­al House races, with egre­gious ger­ry­man­der­ing. It’s also an attempt by the Ari­zona Repub­li­cans to ensure Repub­li­cans con­trol of the Ari­zona leg­is­la­ture so they can guar­an­tee Ari­zona goes to a Repub­li­can in upcom­ing pres­i­den­tial elec­tions. It’s a pow­er-grab that’s ambi­tious even by GOP stan­dards. Or at least by the pre-Jan 6 insur­rec­tion GOP stan­dards. It’s more or less in line with the GOP’s post-Jan 6 stan­dards.

Is sig­nif­i­cant elec­toral reform actu­al­ly on the way for the Unit­ed States? That’s the tan­ta­liz­ing prospect fol­low­ing the pas­sage of H.R. 1 by the House of Rep­re­sen­ta­tives last week, push­ing the his­toric elec­tion reform bill to the Sen­ate, where its fate remains uncer­tain. Uncer­tain but def­i­nite­ly not doomed. At least that’s what we can infer by the grow­ing howls from the right about the exis­ten­tial dan­gers H.R. 1 pos­es to Amer­i­can Democ­ra­cy, with one right-wing hit piece after anoth­er being pub­lished in a major media push back. Which is exact­ly what we should expect giv­en the con­tents of HR 1. The bill would effec­tive­ly end ger­ry­man­der­ing as we know it. So it’s a very, very big deal. Such a big deal that the pre­dictable giant right-wing HR 1 mis­in­for­ma­tion cam­paign is already under­way from the Koch-fund­ed Her­itage Foun­da­tion with Hans Spakovsky lead­ing the way. Iron­i­cal­ly, it’s a giant mis­in­for­ma­tion cam­paign that should be seen as a sign of hope. Because we would­n’t be hear­ing this much howl­ing and lying if there was­n’t a real threat to the pow­er­ful inter­ests pay­ing for this giant mis­in­for­ma­tion cam­paign:

Sludge

Mis­in­for­ma­tion Cam­paign Against HR 1

Ads and social media graph­ics from two major con­ser­v­a­tive groups con­tain mis­lead­ing and inac­cu­rate infor­ma­tion about the Demo­c­ra­t­ic cam­paign finance reform bill.

David Moore, Co-founder of Sludge
Pub­lished on Mar 12, 2021 11:04AM EST

Last week, House Democ­rats passed their sig­na­ture cam­paign finance reform and vot­ing access bill, H.R. 1, which among a slew of reforms would cre­ate a pro­gram allow­ing con­gres­sion­al can­di­dates to access pub­lic fund­ing for their cam­paigns. The bill heads next to a Sen­ate hear­ing on March 24.

In an attempt to make H.R. 1 a polit­i­cal lia­bil­i­ty, the bill’s Repub­li­can oppo­nents and their allied non­prof­its have renewed a mis­in­for­ma­tion cam­paign, begun dur­ing the pre­vi­ous Con­gress, that mis­rep­re­sents the pub­lic match­ing sys­tem and its fund­ing sources.

On March 1, the largest “dark mon­ey” group tied to House Repub­li­cans, the Amer­i­can Action Net­work (AAN), says it began an ad cam­paign hit­ting House Democ­rats for their sup­port of H.R. 1. The non­prof­it AAN, which does not dis­close its donors, was the top donor in the 2020 elec­tion cycle to the Con­gres­sion­al Lead­er­ship Fund (CLF), the super PAC affil­i­at­ed with House Repub­li­cans, giv­ing at least $26.4 mil­lion. AAN and CLF share the same pres­i­dent.

AAN announced it will run phone calls in 51 U.S. House dis­tricts and dig­i­tal ads in 15 dis­tricts, tar­get­ing swing-seat mem­bers like Rep. Elaine Luria of Vir­ginia and Tom Mali­nows­ki of New Jer­sey. In 2017, AAN took in over $51 mil­lion, count­ing $16 mil­lion from a sin­gle anony­mous donor, as it cam­paigned in sup­port of the Repub­li­can tax bill.

This week, Her­itage Action, the advo­ca­cy arm of the con­ser­v­a­tive think tank Her­itage Foun­da­tion, announced its plans to work to block H.R. 1 as part of a $10 mil­lion cam­paign to oppose Demo­c­ra­t­ic reforms to the vot­ing process. The Her­itage Foun­da­tion does not dis­close its donors, but in the past has received fund­ing from Donors Trust, a major fun­der of right-wing groups like the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), and oth­er promi­nent right-wing fam­i­ly foun­da­tions like those of the Bradleys and Mer­cers. Her­itage Action received a $500,000 dona­tion from Charles and David Koch in 2013, accord­ing to Politi­co.

Her­itage Action described the $10 mil­lion it plans to spend as “an ini­tial invest­ment.” In 43 states, Repub­li­can law­mak­ers have intro­duced over 250 bills that would restrict access to vot­ing such as lim­it­ing vote-by-mail options and ear­ly in-per­son vot­ing, accord­ing to the non­par­ti­san Bren­nan Cen­ter for Jus­tice.

Social media graph­ics attack­ing H.R. 1 from Her­itage Action dis­play inac­cu­rate descrip­tions of the fund­ing sources for the pub­lic cam­paign financ­ing option that the bill would make avail­able to all qual­i­fy­ing con­gres­sion­al can­di­dates. As shown by inves­tiga­tive watch­dog group Doc­u­ment­ed, Heritage’s graph­ics read, “H.R. 1 would spend tax­pay­er dol­lars to fund politi­cians’ reelec­tions cam­paigns” and “H.R. 1 would also give tax­pay­er mon­ey to polit­i­cal cam­paigns.”

Accord­ing to the text of the bill, the exclu­sive source of fund­ing for the vol­un­tary pub­lic financ­ing sys­tem would be a new “Free­dom From Influ­ence Fund,” which would be fund­ed pri­mar­i­ly through a small sur­charge on crim­i­nal or civ­il penal­ties and set­tle­ments from cor­po­ra­tions, cor­po­rate offi­cers, or indi­vid­u­als. As an exam­ple of the type of sur­charge involved, Bren­nan Cen­ter ana­lysts wrote, “In 2019, Face­book was ordered to pay approx­i­mate­ly $5 bil­lion to the fed­er­al gov­ern­ment for mis­han­dling users’ per­son­al infor­ma­tion. Under H.R.1, this fine would pro­vide around $137.5 mil­lion for the small donor match­ing pro­gram.” The oth­er pos­si­ble sources of fund­ing are penal­ties assessed against can­di­dates who vio­late the pub­lic match­ing pro­gram rules, funds remit­ted from past par­tic­i­pants who did not spend all their allo­cat­ed pub­lic funds, and con­tri­bu­tions earned before can­di­dates opt­ed into the pro­gram that do not com­ply with the program’s restric­tions.

House Minor­i­ty Leader Kevin McCarthy (R‑Ca.) echoed the con­ser­v­a­tive groups’ mis­lead­ing claim about H.R. 1’s match­ing pro­gram using “tax­pay­er” dol­lars in his March 2 floor speech rail­ing against the bill. “Let’s say some­one donates $200 to a pre­ferred can­di­date. Under H.R. 1, tax­pay­ers must now chip in an extra $1,200,” McCarthy said. The inac­cu­rate descrip­tion of tax­pay­er mon­ey involved was repeat­ed in a sec­ond video released by the Repub­li­can Leader.

Under the pub­lic financ­ing option in H.R. 1, par­tic­i­pat­ing con­gres­sion­al can­di­dates who gath­er $50,000 in small dona­tions from at least 1,000 indi­vid­u­als qual­i­fy for fur­ther cam­paign con­tri­bu­tions to be matched at a 6–1 ratio with pub­lic funds, while agree­ing to dis­clo­sure require­ments and vol­un­tary dona­tion lim­its. Sim­i­lar match­ing-fund pro­grams have been adopt­ed by a num­ber of states and munic­i­pal­i­ties to curb the influ­ence of large cam­paign donorsdonors and increase the diver­si­ty of can­di­dates while respond­ing to the con­cerns of a wider pool of vot­ers.

The non­par­ti­san gov­ern­ment ethics group Cam­paign Legal Cen­ter (CLC) released a fact check memo last month coun­ter­ing false claims about H.R. 1, in response to a mis­in­for­ma­tion email sent by a group named ACT for Amer­i­ca, which the South­ern Pover­ty Law Cen­ter has des­ig­nat­ed an anti-Mus­lim hate group. In addi­tion to say­ing that no tax­pay­er rev­enue would be includ­ed in the pro­gram, and would there­fore not be used for any can­di­date salaries, as claimed by Her­itage, CLC’s memo under­scores that the pro­gram would not per­mit salary pay­ments to sit­ting mem­bers of Con­gress.

The text of H.R. 1 as intro­duced, in Sec­tion 5207, already stat­ed that all pay­ments for the pub­lic financ­ing pro­gram must come from the Free­dom From Influ­ence Fund. To fur­ther counter mis­in­for­ma­tion attacks on the pub­lic financ­ing options, an amend­ment was added on the House floor that out­right bans tax­pay­er rev­enue from being deposit­ed in the Free­dom From Influ­ence Fund. The one-line amend­ment, intro­duced by Luria, was includ­ed in a pack­age of amend­ments that was approved by a House vote of 221 to 207 on March 2.

...

Still, recent Repub­li­can mem­bers of Con­gress are con­tin­u­ing to pro­mote mis­in­for­ma­tion. For­mer Rep. Mark Walk­er of North Car­oli­na, who did not run for re-elec­tion last year to run in the 2022 Repub­li­can Sen­ate pri­ma­ry, tweet­ed out a mis­lead­ing video he put out in 2019 that says, “Tired of see­ing cam­paign ads? Well, if enact­ed, #HR1 will take your mon­ey and give it to politi­cians so they can run TV ads.”

One dig­i­tal ad from AAN reads, “Lib­er­als want pub­lic mon­ey for their cam­paigns,” includ­ing for “lux­u­ry hotels,” but does not dif­fer­en­ti­ate between tax­pay­er rev­enue, which is explic­it­ly pro­hib­it­ed by the bill, and the cor­po­rate penal­ties that would fund the pub­lic financ­ing option.

A mid-Feb­ru­ary poll by Data for Progress and Vote Save Amer­i­ca found that 68% of all like­ly vot­ers sup­port H.R. 1, includ­ing 57% of Repub­li­cans and 68% of Inde­pen­dent vot­ers, along with up to 78% of Democ­rats.

————-

“Mis­in­for­ma­tion Cam­paign Against HR 1” by David Moore; Sludge; 03/12/2021

“On March 1, the largest “dark mon­ey” group tied to House Repub­li­cans, the Amer­i­can Action Net­work (AAN), says it began an ad cam­paign hit­ting House Democ­rats for their sup­port of H.R. 1. The non­prof­it AAN, which does not dis­close its donors, was the top donor in the 2020 elec­tion cycle to the Con­gres­sion­al Lead­er­ship Fund (CLF), the super PAC affil­i­at­ed with House Repub­li­cans, giv­ing at least $26.4 mil­lion. AAN and CLF share the same pres­i­dent.”

The deep­est pock­ets in the under­world of dark mon­ey are writ­ing big checks. Because you need to write big checks when you’re run­ning a nation­al media cam­paign. And that’s what this appears to be: at least $26.4 mil­lion nation­al media cam­paign tar­get­ing Democ­rats who vote for H.R. 1 with mis­in­for­ma­tion about the bill. That’s what the top Repub­li­can con­gres­sion­al super PAC is buy­ing with it’s $26.4 mil­lion. A tar­get­ed ret­ribu­tive mis­in­for­ma­tion cam­paign intend­ed to con­fuse vot­ers about what HR 1 actu­al­ly does. And the AAN is just one of the major right-wing enti­ties wag­ing this cam­paign. The Her­itage Foun­da­tion’s lob­by­ing arm is chip­ping in anoth­er $10 mil­lion for dis­in­for­ma­tion. Although that $10 mil­lion was just an ini­tial invest­ment. It’s pre­sum­ably grown:

...
AAN announced it will run phone calls in 51 U.S. House dis­tricts and dig­i­tal ads in 15 dis­tricts, tar­get­ing swing-seat mem­bers like Rep. Elaine Luria of Vir­ginia and Tom Mali­nows­ki of New Jer­sey. In 2017, AAN took in over $51 mil­lion, count­ing $16 mil­lion from a sin­gle anony­mous donor, as it cam­paigned in sup­port of the Repub­li­can tax bill.

This week, Her­itage Action, the advo­ca­cy arm of the con­ser­v­a­tive think tank Her­itage Foun­da­tion, announced its plans to work to block H.R. 1 as part of a $10 mil­lion cam­paign to oppose Demo­c­ra­t­ic reforms to the vot­ing process. The Her­itage Foun­da­tion does not dis­close its donors, but in the past has received fund­ing from Donors Trust, a major fun­der of right-wing groups like the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), and oth­er promi­nent right-wing fam­i­ly foun­da­tions like those of the Bradleys and Mer­cers. Her­itage Action received a $500,000 dona­tion from Charles and David Koch in 2013, accord­ing to Politi­co.

Her­itage Action described the $10 mil­lion it plans to spend as “an ini­tial invest­ment.” In 43 states, Repub­li­can law­mak­ers have intro­duced over 250 bills that would restrict access to vot­ing such as lim­it­ing vote-by-mail options and ear­ly in-per­son vot­ing, accord­ing to the non­par­ti­san Bren­nan Cen­ter for Jus­tice.

Social media graph­ics attack­ing H.R. 1 from Her­itage Action dis­play inac­cu­rate descrip­tions of the fund­ing sources for the pub­lic cam­paign financ­ing option that the bill would make avail­able to all qual­i­fy­ing con­gres­sion­al can­di­dates. As shown by inves­tiga­tive watch­dog group Doc­u­ment­ed, Heritage’s graph­ics read, “H.R. 1 would spend tax­pay­er dol­lars to fund politi­cians’ reelec­tions cam­paigns” and “H.R. 1 would also give tax­pay­er mon­ey to polit­i­cal cam­paigns.”

Accord­ing to the text of the bill, the exclu­sive source of fund­ing for the vol­un­tary pub­lic financ­ing sys­tem would be a new “Free­dom From Influ­ence Fund,” which would be fund­ed pri­mar­i­ly through a small sur­charge on crim­i­nal or civ­il penal­ties and set­tle­ments from cor­po­ra­tions, cor­po­rate offi­cers, or indi­vid­u­als. As an exam­ple of the type of sur­charge involved, Bren­nan Cen­ter ana­lysts wrote, “In 2019, Face­book was ordered to pay approx­i­mate­ly $5 bil­lion to the fed­er­al gov­ern­ment for mis­han­dling users’ per­son­al infor­ma­tion. Under H.R.1, this fine would pro­vide around $137.5 mil­lion for the small donor match­ing pro­gram.” The oth­er pos­si­ble sources of fund­ing are penal­ties assessed against can­di­dates who vio­late the pub­lic match­ing pro­gram rules, funds remit­ted from past par­tic­i­pants who did not spend all their allo­cat­ed pub­lic funds, and con­tri­bu­tions earned before can­di­dates opt­ed into the pro­gram that do not com­ply with the program’s restric­tions.
...

And note how HR 1’s major reforms go far beyond end­ing ger­ry­man­der­ing as we know it. The pow­er and influ­ence of the dark mon­ey net­works financ­ing this dis­in­for­ma­tion cam­paign will also be dilut­ed with a new pub­lic financ­ing sys­tem that gives 6‑to‑1 match­ing pub­lic dona­tions for can­di­dates who gath­er $50,000 in small dona­tions from at least 1,000 indi­vid­u­als and agree to dis­clo­sure rules and vol­un­tary lim­its. So if a can­di­date takes their polit­i­cal financ­ing out of the dark and stops rely­ing on that big donor cash, they are giv­en a viable means of com­pet­ing with dark mon­ey can­di­dates in the spend­ing are­na. Oh, and it turns out even Repub­li­can vot­ers like the con­tents of H.R. 1. This is why the dark mon­ey-financed pro­pa­gan­da around H.R. 1 is like a real­i­ty black hole. If the dark mon­ey sys­tem is going to keep politi­cians forced to suck­le at its teat, a bill like HR1 can’t be allowed to see the light of day:

...
House Minor­i­ty Leader Kevin McCarthy (R‑Ca.) echoed the con­ser­v­a­tive groups’ mis­lead­ing claim about H.R. 1’s match­ing pro­gram using “tax­pay­er” dol­lars in his March 2 floor speech rail­ing against the bill. “Let’s say some­one donates $200 to a pre­ferred can­di­date. Under H.R. 1, tax­pay­ers must now chip in an extra $1,200,” McCarthy said. The inac­cu­rate descrip­tion of tax­pay­er mon­ey involved was repeat­ed in a sec­ond video released by the Repub­li­can Leader.

Under the pub­lic financ­ing option in H.R. 1, par­tic­i­pat­ing con­gres­sion­al can­di­dates who gath­er $50,000 in small dona­tions from at least 1,000 indi­vid­u­als qual­i­fy for fur­ther cam­paign con­tri­bu­tions to be matched at a 6–1 ratio with pub­lic funds, while agree­ing to dis­clo­sure require­ments and vol­un­tary dona­tion lim­its. Sim­i­lar match­ing-fund pro­grams have been adopt­ed by a num­ber of states and munic­i­pal­i­ties to curb the influ­ence of large cam­paign donorsdonors and increase the diver­si­ty of can­di­dates while respond­ing to the con­cerns of a wider pool of vot­ers.

...

A mid-Feb­ru­ary poll by Data for Progress and Vote Save Amer­i­ca found that 68% of all like­ly vot­ers sup­port H.R. 1, includ­ing 57% of Repub­li­cans and 68% of Inde­pen­dent vot­ers, along with up to 78% of Democ­rats.
...

Imag­ine end­ing ger­ry­man­der­ing at the fed­er­al lev­el and pro­vid­ing politi­cians a viable alter­na­tive to the dark mon­ey sys­tem that was giv­en a steroid injec­tion in 2010 with Cit­i­zens Unit­ed. That could con­ceiv­ably hap­pen in the com­ing months. This is why the Wash­ing­ton Post edi­to­r­i­al board was forced to ask two weeks ago what was the GOP so scare of in HR 1 that prompt­ed such a full-throat­ed and pre­pos­ter­ous rhetor­i­cal response to the bill? Or as the WaPo put it, Repub­li­cans’ apoc­a­lyp­tic rhetoric is so wild­ly dis­pro­por­tion­ate to the con­tents of the bill, one must won­der what they are real­ly wor­ried about:

The Wash­ing­ton Post

Opin­ion: Repub­li­cans’ rhetoric on H.R. 1 is apoc­a­lyp­tic. Are they that afraid of democ­ra­cy?

Opin­ion by Edi­to­r­i­al Board
March 4, 2021 at 4:40 p.m. CST

TO HEAR Repub­li­cans tell it, a bill that the House passed late Wednes­day night would spell the end of the repub­lic. It is “uncon­sti­tu­tion­al, reck­less, and anti-demo­c­ra­t­ic,” for­mer vice pres­i­dent Mike Pence pro­claimed. The bill is “the most divi­sive, uncon­sti­tu­tion­al and destruc­tive piece of leg­is­la­tion of my time in Con­gress,” Rep. Gar­land “Andy” Barr (R‑Ky.) railed. “It would effec­tive­ly make it legal to cheat.”

The bill that has these politi­cians froth­ing is H.R. 1, a long piece of leg­is­la­tion with a noble pur­pose: mak­ing it eas­i­er for Amer­i­cans to vote and encour­ag­ing the gov­ern­ment to be more respon­sive to the peo­ple. Repub­li­cans’ apoc­a­lyp­tic rhetoric is so wild­ly dis­pro­por­tion­ate to the con­tents of the bill, one must won­der what they are real­ly wor­ried about.

Con­ser­v­a­tives com­plain that the bill would man­date ear­ly vot­ing, no-excuse absen­tee vot­ing, pro­vi­sion­al bal­lots for peo­ple who acci­den­tal­ly vote out-of-precinct, same-day vot­er reg­is­tra­tion and auto­mat­ic vot­er reg­is­tra­tion. So? There is noth­ing scary or even unusu­al about these reforms, which many states have embraced with­out see­ing the per­va­sive fraud Repub­li­cans pre­dict and claim false­ly has occurred.

Oppo­nents argue that count­ing mail-in bal­lots that arrive in the days after Elec­tion Day, as long as they are mailed on time, would pro­duce uncer­tain­ty about the results on elec­tion night. Big deal. It is far more impor­tant to count Amer­i­cans’ votes, even if the U.S. Postal Ser­vice delays their deliv­ery, than it is to soothe impa­tient elec­tion night view­ers.

Crit­ics also warn that state leg­is­la­tures would have to turn over con­gres­sion­al dis­trict map-draw­ing to inde­pen­dent com­mis­sions. And? Extreme par­ti­san ger­ry­man­der­ing makes the need for non­par­ti­san redis­trict­ing, which has worked in state after state that has tried it, more acute.

There is more to the bill, includ­ing an inno­v­a­tive cam­paign finance reform that would boost the pow­er of small donors. If Repub­li­cans sim­ply object­ed to that sec­tion, or a con­tro­ver­sial pro­vi­sion on absen­tee bal­lot col­lec­tion, or a require­ment for an ethics code for Supreme Court jus­tices, their posi­tion would be more defen­si­ble. But they seem to attack with great­est feroc­i­ty the pro­vi­sions that should be least con­tro­ver­sial: those that would encour­age more Amer­i­cans to vote.

...

H.R. 1 now moves to the Sen­ate. If Repub­li­cans there object to ele­ments of the bill, they should seek to amend it. If they reject the effort out of hand, it will be yet anoth­er sign that they have embraced a strat­e­gy of vot­er sup­pres­sion because they fear that, if the rules are fair, they will lose.

————

“Opin­ion: Repub­li­cans’ rhetoric on H.R. 1 is apoc­a­lyp­tic. Are they that afraid of democ­ra­cy?” by Edi­to­r­i­al Board; The Wash­ing­ton Post; 03/04/2021

“The bill that has these politi­cians froth­ing is H.R. 1, a long piece of leg­is­la­tion with a noble pur­pose: mak­ing it eas­i­er for Amer­i­cans to vote and encour­ag­ing the gov­ern­ment to be more respon­sive to the peo­ple. Repub­li­cans’ apoc­a­lyp­tic rhetoric is so wild­ly dis­pro­por­tion­ate to the con­tents of the bill, one must won­der what they are real­ly wor­ried about.”

It’s a gen­uine­ly impor­tant ques­tion that should be asked and answered. What is it that has dri­ven the GOP using apoc­a­lyp­tic rhetoric about a bill that guar­an­tees vot­ing rights, ends ger­ry­man­der­ing, and offers an alter­na­tives to dark mon­ey. And while the answer is obvi­ous­ly, in part, that such a reform pack­age would be a major blow to the elec­toral prospects of Repub­li­can politi­cians long reliant on heav­i­ly ger­ry­man­dered dis­tricts and bil­lion­aire dark cash. But it’s impor­tant to keep in mind that it isn’t just the Repub­li­can politi­cians and par­ty who would find their pow­er and influ­ence wane with this bill. It’s the bil­lion­aires financ­ing the dark mon­ey sys­tem steer­ing the GOP that lose pow­er and influ­ence too. A lot of peo­ple real­ly would lose pow­er and influ­ence with this reform. Specif­i­cal­ly, peo­ple who cur­rent­ly hold WAY too much pow­er and influ­ence and are fun­da­men­tal­ly cor­rupt­ing democ­ra­cy. It’s a good bill.

The issue of police killings con­tin­ued to dom­i­nate US head­lines this week as one offi­cer-involved shoot­er after anoth­er took place at the same time the tri­al of Min­neapo­lis police offi­cer Derek Chau­vin over the death of George Floyd played out. So as the US con­tin­ues to strug­gle with the ques­tion of what can be done to address issue of sys­temic police vio­lence, here’s an arti­cle that points to a relat­ed sys­temic issue work­ing to pre­vent mean­ing­ful reforms. A relat­ed sys­temic issue that has only grown in impact as a result of the US’s incar­cer­a­tion binge over the past four decades: prison ger­ry­man­der­ing, where pris­on­ers — who typ­i­cal­ly aren’t allowed to vote — are treat­ed as con­stituents in the dis­tricts where they are being incar­cer­at­ed.

Unlike elec­toral ger­ry­man­der­ing, prison ger­ry­man­der­ing isn’t explic­it­ly done for par­ti­san advan­tage, although the impact is high­ly par­ti­san, with the Repub­li­can Par­ty gain­ing a dis­tinct advan­tage from the prac­tice. But the effect isn’t just par­ti­san in nature. Due to the fact that the US pris­ons are filled with minori­ties from urban areas but tend to be locat­ed in rur­al areas, prison ger­ry­man­der­ing is effec­tive­ly a trans­fer of polit­i­cal pow­er from urban to rur­al areas. But beyond that, it’s a mech­a­nism through which the com­mu­ni­ties most heav­i­ly impact­ed by the impacts of Amer­i­ca’s over-reliance on polic­ing and incar­cer­a­tion — the pris­on­ers and their fam­i­lies — find their state and local rep­re­sen­ta­tion dilut­ed. Stud­ies have even shown that the rep­re­sen­ta­tives of the rur­al dis­tricts with prison pop­u­la­tions don’t actu­al­ly view it as their job to rep­re­sent those pris­on­ers and are more inclined to rep­re­sent the inter­ests of for­mer con­stituents of theirs who are incar­cer­at­ed else­where. And that’s why it’s impor­tant to keep in mind reform­ing the jus­tice sys­tem in the US would be a lot eas­i­er if the US polit­i­cal sys­tem was­n’t basi­cal­ly set up to dilute the polit­i­cal pow­er of the com­mu­ni­ties most des­per­ate for that reform :

The New Repub­lic

Mass Incar­cer­a­tion Draws Its Own Maps and Cre­ates a Coun­try in Its Image
Prison ger­ry­man­der­ing, in which incar­cer­at­ed peo­ple are des­ig­nat­ed as res­i­dents of the areas where a prison or jail is locat­ed, is a sys­tem of strate­gic dis­en­fran­chise­ment.

Kiran Mis­ra
April 1, 2021

In 2008, a man named Dan­ny Young received just two votes for his can­di­da­cy to the City Coun­cil in Anamosa, Iowa: one from his wife and one from his neigh­bor. Both were write-ins, but he still won hand­i­ly. Young’s ward had the same num­ber of con­stituents as any of the oth­er wards in his city, but since 1,321 of his district’s 1,379 con­stituents were incar­cer­at­ed at the Anamosa State Pen­i­ten­tiary and couldn’t vote, his 58 non-incar­cer­at­ed con­stituents had about 25 times the rep­re­sen­ta­tion­al pow­er of their fel­low res­i­dents.

In Allen Parish, Louisiana,2,430 of the First District’s 3,681 res­i­dents were incar­cer­at­ed at the Oak­dale Fed­er­al Cor­rec­tion­al Com­plex dur­ing the 2010 cen­sus redis­trict­ing. These incar­cer­at­ed peo­ple were count­ed as con­stituents of Allen Parish’s Dis­trict 1 but could not vote. As a result, the non-incar­cer­at­ed vot­ing res­i­dents who make up the remain­ing third of the district’s con­stituents were able to cast votes that have three times as much weight as their neigh­bors’ in oth­er dis­tricts of Allen Parish.

When peo­ple become incar­cer­at­ed, their state and local rep­re­sen­ta­tion changes from their home dis­trict to their dis­trict of incar­cer­a­tion. But most elect­ed offi­cials don’t see them­selves as also rep­re­sent­ing their incar­cer­at­ed con­stituents; a study by researcher Taren Stine­brick­n­er-Kauff­man found that Indi­ana state leg­is­la­tors con­sid­ered them­selves more account­able to cur­rent­ly incar­cer­at­ed for­mer con­stituents than to those liv­ing in a prison in their dis­trict. When Young, the leg­is­la­tor from Anamosa, was asked in 2008 if he felt the peo­ple incar­cer­at­ed in his dis­trict were also his con­stituents, he respond­ed: “They don’t vote, so, I guess, not real­ly.”

Across the coun­try, the 2.3 mil­lion incar­cer­at­ed Amer­i­cans who have a cur­rent address at a prison or jail are also des­ig­nat­ed by the cen­sus as res­i­dents of the areas in which they are incar­cer­at­ed rather than of their home dis­tricts, a pop­u­la­tion redis­tri­b­u­tion called prison ger­ry­man­der­ing.

The prac­tice is dis­tinct from par­ti­san elec­toral ger­ry­man­der­ing, where dis­tricts are inten­tion­al­ly drawn to give one par­ty a polit­i­cal advan­tage, but has sim­i­lar effects: It can sig­nif­i­cant­ly impact polit­i­cal maps, par­tic­u­lar­ly state house and sen­ate dis­tricts. And when incar­cer­at­ed peo­ple are count­ed in dis­tricts where they do not nor­mal­ly live and can­not vote, the results are a sys­temic redis­tri­b­u­tion of rep­re­sen­ta­tion away from com­mu­ni­ties most impact­ed by mass incar­cer­a­tion to prison towns.

In Illi­nois, “Those incar­cer­at­ed are pri­mar­i­ly Black and brown and from Cook Coun­ty,” Ryan Tol­ley, pol­i­cy direc­tor at Change Illi­nois, which worked to end prison ger­ry­man­der­ing in Illi­nois, told me. “But most pris­ons are locat­ed out­side of Cook Coun­ty, pri­mar­i­ly down­state, so when we go to redraw our polit­i­cal dis­tricts and they need to be divid­ed up equal­ly in pop­u­la­tion, those who are incar­cer­at­ed are being count­ed down­state.”

Since the aver­age length of incar­cer­a­tion is between two and three years, when incar­cer­at­ed peo­ple return home, the pop­u­la­tion of their home dis­trict increas­es, dilut­ing the pow­er of each indi­vid­ual vote and giv­ing com­mu­ni­ties most impact­ed by incar­cer­a­tion less rep­re­sen­ta­tion in state and local gov­ern­ment. At the same time, peo­ple liv­ing in dis­tricts with pris­ons see an infla­tion in vot­ing and rep­re­sen­ta­tive pow­er as their district’s num­bers are boost­ed by incar­cer­at­ed peo­ple who, in most states, can’t vote.

“You def­i­nite­ly feel used, you feel exploit­ed, dis­pos­able,” said Robert Saleem Hol­brook, who learned of the prac­tice while incar­cer­at­ed at SCI Hunt­ing­ton in Cen­tral Penn­syl­va­nia. “The thing that real­ly also res­onat­ed with us more than any­thing was that it decreased our polit­i­cal pow­er. And hav­ing more polit­i­cal pow­er can enable our com­mu­ni­ty to address the polit­i­cal prob­lems, social prob­lems that are right in front of us. What we saw was prison ger­ry­man­der­ing was a part of the his­tor­i­cal process of dis­en­fran­chis­ing and mar­gin­al­iz­ing Black com­mu­ni­ties in the Unit­ed States.”

“You’re not just pun­ish­ing the incar­cer­at­ed per­son by mov­ing that rep­re­sen­ta­tion, you’re pun­ish­ing their fam­i­ly that still lives in the old neigh­bor­hood, you’re pun­ish­ing the peo­ple who live down the street who now live in a dis­trict that is under­rep­re­sent­ed,” said Rory Kramer, a researcher study­ing prison ger­ry­man­der­ing at Vil­lano­va Uni­ver­si­ty. “Every­one who lived near that per­son who is actu­al­ly being harmed by prison ger­ry­man­der­ing.”

Though the cen­sus has count­ed incar­cer­at­ed peo­ple at the site of their incar­cer­a­tion rather than at their homes in their com­mu­ni­ties since its incep­tion, the prac­tice has only start­ed sig­nif­i­cant­ly impact­ing the count in recent decades, tied to the rise of mass incar­cer­a­tion in the Unit­ed States.

“It lit­er­al­ly is just a dis­tor­tion of the idea of ‘one per­son, one vote,’” said Wan­da Bertram of the Prison Pol­i­cy Ini­tia­tive, which has been research­ing the effects of mass incar­cer­a­tion on rep­re­sen­ta­tion across the coun­try for the last sev­er­al decades. “In the 1960s, the Supreme Court ruled that rep­re­sen­ta­tives don’t rep­re­sent trees and forests or acres of farm­land, they rep­re­sent human beings. And along that same line, rep­re­sen­ta­tives don’t rep­re­sent fed­er­al build­ings, or state build­ings, they don’t rep­re­sent pris­ons build­ings, so they shouldn’t be get­ting rep­re­sen­ta­tion where they have not earned it—and where they do not intend to serve it.”

For this rea­son, many schol­ars cite prison ger­ry­man­der­ing as a mod­ern-day man­i­fes­ta­tion of the Three-Fifths Com­pro­mise, which count­ed enslaved African Amer­i­cans as three-fifths of a per­son to inflate the elec­toral pow­er of slavers and the dis­tricts they lived in, even though enslaved peo­ple had no pow­er to vote.

The issue has become even more salient for incar­cer­at­ed peo­ple dur­ing the pan­dem­ic. State sen­a­tors and rep­re­sen­ta­tives have been cen­tral in advo­cat­ing for the pri­or­i­ti­za­tion or de-pri­or­i­ti­za­tion of vac­ci­na­tion for incar­cer­at­ed peo­ple across the coun­try. Hol­brook, who works as the exec­u­tive direc­tor at the Abo­li­tion­ist Law Cen­ter in Pitts­burg, has seen law­mak­ers advo­cate for guards and staff to receive vac­cines, while leav­ing out incar­cer­at­ed peo­ple.

“It shows you that they see their con­stituents as the guards, and not the peo­ple who are dying with­in the prison,” he explained. “It makes you vul­ner­a­ble because leg­is­la­tors don’t want to enforce any account­abil­i­ty with the prison staff, who they regard as their con­stituents, rather than pro­tect us because when we’re in their dis­tricts, we can’t vote.”

Like Hol­brook, Ati­ba Kwe­si is an advo­cate for end­ing prison ger­ry­man­der­ing in Penn­syl­va­nia. “I served 27 years in prison and when I was work­ing on my case, I learned that coun­ties would be bid­ding to get pris­ons built in their area,” Kwe­si explained. “And when they list­ed the ben­e­fits that they will receive, one of the ben­e­fits was the amount of rep­re­sen­ta­tion they would gain.”

Part of why the issue of prison ger­ry­man­der­ing has such an impact is due to where pris­ons are locat­ed and who is incar­cer­at­ed in Amer­i­ca. Since the 1980s, pris­ons have pri­mar­i­ly been con­struct­ed in non-metro areas to take advan­tage of cheap­er land prices and to osten­si­bly com­bat rur­al eco­nom­ic decline. Since most peo­ple who are incar­cer­at­ed are Black and brown and from urban areas with heav­ier polic­ing and crim­i­nal­iza­tion, prison ger­ry­man­der­ing ends up pri­mar­i­ly ampli­fy­ing the pow­er of white voic­es in sub­ur­ban or rur­al areas at the expense of peo­ple of color’s voic­es in more urban areas.

“On a nation­al scale, we’re talk­ing about a major shift in polit­i­cal rep­re­sen­ta­tion,” said Bertram. “Com­mu­ni­ties that are send­ing the most peo­ple to pris­ons are not get­ting as much in the way of direct assis­tance for hous­ing, schools, health care, espe­cial­ly men­tal health and sub­stance use treat­ment, that they would be if it was acknowl­edged in the redis­trict­ing process that these com­mu­ni­ties include a lot of peo­ple who are in prison.”

Using cen­sus and Penn­syl­va­nia Depart­ment of Cor­rec­tions data, Kramer and co-researcher Bri­an­na Rem­ster found that prison ger­ry­man­der­ing con­sis­tent­ly moved rep­re­sen­ta­tion out of urban non-white dis­tricts to pri­mar­i­ly white sub­ur­ban and rur­al dis­tricts. In Penn­syl­va­nia, the aver­age Black or brown res­i­dent lives in a dis­trict that has had peo­ple tak­en away and count­ed some­where else, where­as the aver­age white per­son in Penn­syl­va­nia lives in a dis­trict that has had peo­ple added to the dis­trict who are not per­ma­nent res­i­dents.

“If all pris­on­ers from Philadel­phia were count­ed in Philadel­phia, the city would gain two new leg­isla­tive dis­tricts,” explained Hol­brook. “That could be two state rep­re­sen­ta­tives, fight­ing for what pris­on­ers from Philadel­phia need.”

Tol­ley has seen the same issue in Illi­nois. “Law­mak­ers that are talk­ing about issues like reduc­ing recidi­vism and are work­ing on those issues in the State House are the ones in the com­mu­ni­ties where these folks are return­ing to,” he said. “And when you lim­it their rep­re­sen­ta­tion, you have less folks in Spring­field that care about those issues.”

Rep­re­sen­ta­tive Joan­na McClin­ton cur­rent­ly rep­re­sents Philadel­phia in the Penn­syl­va­nia State House and her expe­ri­ence as a leg­is­la­tor has moti­vat­ed her to cham­pi­on the issue of end­ing prison ger­ry­man­der­ing in the state.

“A great deal of our con­stituent case­work is for peo­ple who do not phys­i­cal­ly live in our dis­trict and are not count­ed in our dis­tricts,” said McClin­ton. “Leg­isla­tive offices often serve as a ground zero for nav­i­gat­ing the chal­lenges that occur when some­one is incar­cer­at­ed. So day to day, rep­re­sent­ing a dis­trict that is pre­dom­i­nant­ly Black and brown, I get incar­cer­at­ed peo­ple con­tact­ing me who are very con­cerned about sup­port for their fam­i­ly, sup­port through this pan­dem­ic, con­nect­ing their loved ones to oppor­tu­ni­ties, find­ing out about job oppor­tu­ni­ties, approved hous­ing because that’s a key fac­tor for peo­ple get­ting out ear­ly.”

“Tech­ni­cal­ly, you are rep­re­sent­ed by the per­son whose dis­trict you are incar­cer­at­ed in, but in real­i­ty, your prob­lem is prob­a­bly about your home dis­trict and the oth­er peo­ple who are writ­ing on that same prob­lem are prob­a­bly from that oth­er dis­trict,” Rem­ster told me. “Incar­cer­at­ed peo­ple are ask­ing about the schools for their kids back home, wor­ry­ing about hous­ing afford­abil­i­ty for their fam­i­ly.”

...

But one of the biggest impacts of prison ger­ry­man­der­ing is its effect on shift­ing leg­is­la­tors’ polit­i­cal pri­or­i­ties on crim­i­nal jus­tice issues. “The most direct impact [of prison ger­ry­man­der­ing] on crim­i­nal jus­tice is that it blocks any sort of reform when leg­is­la­tors think that their reelec­tion rests on keep­ing their own pris­ons full,” said Aleks Kajs­tu­ra, legal direc­tor at the Prison Pol­i­cy Ini­tia­tive. And as a result of prison ger­ry­man­der­ing, the elec­toral pow­er jail­ers and those liv­ing in the dis­tricts where they work have is inflat­ed direct­ly in pro­por­tion to the num­ber of peo­ple they incar­cer­ate, cre­at­ing per­verse incen­tives to con­tin­ue mass incar­cer­a­tion.

“So, in states like New York, the Rock­e­feller drug laws were on the books for far longer than they had any pop­u­lar sup­port in the state,” Kajs­tu­ra explained, “because the leg­is­la­tors in dis­tricts that were prison ger­ry­man­dered felt that their pow­er rest­ed in keep­ing the cor­rec­tion­al facil­i­ties full and so they opposed any sort of com­mon sense crim­i­nal jus­tice reform.”

While the cen­sus could end prison ger­ry­man­der­ing by uni­lat­er­al­ly decid­ing to count incar­cer­at­ed peo­ple at their home address­es, it has declined mak­ing a change, leav­ing it up to states and local gov­ern­ments to redis­trib­ute inter­nal­ly after receiv­ing cen­sus data. How­ev­er, in the past, the cen­sus has made excep­tions to the “usu­al res­i­dence rule” it uses to deter­mine where some­one should be count­ed for oth­er pop­u­la­tions, like mil­i­tary mem­bers and col­lege stu­dents.

Illi­nois became the most recent state to lim­it prison ger­ry­man­der­ing, with the pas­sage of the Pre­tri­al Fair­ness Act in Jan­u­ary, join­ing the nine oth­er states who have end­ed the prac­tice. The mech­a­nism for coun­ter­act­ing prison ger­ry­man­der­ing requires rec­on­cil­ing cen­sus data, which counts incar­cer­at­ed peo­ple as res­i­dents of prison dis­tricts and state Depart­ment of Cor­rec­tions infor­ma­tion on incar­cer­at­ed people’s pre-incar­cer­at­ed home address­es to indi­vid­u­al­ly real­lo­cate peo­ple to their home dis­tricts. A bill intro­duced in Michi­gan by Sen­a­tor Sylvia San­tana would seek to use the same mech­a­nism to end prison ger­ry­man­der­ing in Michi­gan, and Rep­re­sen­ta­tive McClin­ton has also intro­duced leg­is­la­tion that would end the prac­tice in Penn­syl­va­nia.

...

———-

“Mass Incar­cer­a­tion Draws Its Own Maps and Cre­ates a Coun­try in Its Image” by Kiran Mis­ra; The New Repub­lic; 04/01/2021

“The prac­tice is dis­tinct from par­ti­san elec­toral ger­ry­man­der­ing, where dis­tricts are inten­tion­al­ly drawn to give one par­ty a polit­i­cal advan­tage, but has sim­i­lar effects: It can sig­nif­i­cant­ly impact polit­i­cal maps, par­tic­u­lar­ly state house and sen­ate dis­tricts. And when incar­cer­at­ed peo­ple are count­ed in dis­tricts where they do not nor­mal­ly live and can­not vote, the results are a sys­temic redis­tri­b­u­tion of rep­re­sen­ta­tion away from com­mu­ni­ties most impact­ed by mass incar­cer­a­tion to prison towns.”

A sys­temic redis­tri­b­u­tion of rep­re­sen­ta­tion away from com­mu­ni­ties most impact­ed by mass incar­cer­a­tion to prison towns. There’s way way to deny that this is what’s hap­pen­ing. It’s lit­er­al­ly a sales pitch for towns to build pris­ons: they’ll get more rep­re­sen­ta­tion of they do it:

...
Like Hol­brook, Ati­ba Kwe­si is an advo­cate for end­ing prison ger­ry­man­der­ing in Penn­syl­va­nia. “I served 27 years in prison and when I was work­ing on my case, I learned that coun­ties would be bid­ding to get pris­ons built in their area,” Kwe­si explained. “And when they list­ed the ben­e­fits that they will receive, one of the ben­e­fits was the amount of rep­re­sen­ta­tion they would gain.”
...

And this is why the sys­tem of prison ger­ry­man­der­ing is being called a mod­ern-day man­i­fes­ta­tion of the Three-Fifths Com­pro­mise: rur­al areas get their state and local rep­re­sen­ta­tion boost­ed by a large non-vot­ing pop­u­la­tion of pri­mar­i­ly minor­i­ty peo­ple at the same time the urban areas those peo­ple came from are deprived of that rep­re­sen­ta­tion. Which means any efforts to imple­ment the kind of judi­cial reforms that could avoid all this mass incar­cer­a­tion in the first place get sub­ject­ed to this Three-Fifths Com­prise too:

...
Though the cen­sus has count­ed incar­cer­at­ed peo­ple at the site of their incar­cer­a­tion rather than at their homes in their com­mu­ni­ties since its incep­tion, the prac­tice has only start­ed sig­nif­i­cant­ly impact­ing the count in recent decades, tied to the rise of mass incar­cer­a­tion in the Unit­ed States.

...

For this rea­son, many schol­ars cite prison ger­ry­man­der­ing as a mod­ern-day man­i­fes­ta­tion of the Three-Fifths Com­pro­mise, which count­ed enslaved African Amer­i­cans as three-fifths of a per­son to inflate the elec­toral pow­er of slavers and the dis­tricts they lived in, even though enslaved peo­ple had no pow­er to vote.

...

Like Hol­brook, Ati­ba Kwe­si is an advo­cate for end­ing prison ger­ry­man­der­ing in Penn­syl­va­nia. “I served 27 years in prison and when I was work­ing on my case, I learned that coun­ties would be bid­ding to get pris­ons built in their area,” Kwe­si explained. “And when they list­ed the ben­e­fits that they will receive, one of the ben­e­fits was the amount of rep­re­sen­ta­tion they would gain.”

...

But one of the biggest impacts of prison ger­ry­man­der­ing is its effect on shift­ing leg­is­la­tors’ polit­i­cal pri­or­i­ties on crim­i­nal jus­tice issues. “The most direct impact [of prison ger­ry­man­der­ing] on crim­i­nal jus­tice is that it blocks any sort of reform when leg­is­la­tors think that their reelec­tion rests on keep­ing their own pris­ons full,” said Aleks Kajs­tu­ra, legal direc­tor at the Prison Pol­i­cy Ini­tia­tive. And as a result of prison ger­ry­man­der­ing, the elec­toral pow­er jail­ers and those liv­ing in the dis­tricts where they work have is inflat­ed direct­ly in pro­por­tion to the num­ber of peo­ple they incar­cer­ate, cre­at­ing per­verse incen­tives to con­tin­ue mass incar­cer­a­tion.
...

And note that this isn’t a sit­u­a­tion where there’s noth­ing states can do oth­er than wait for a con­sti­tu­tion­al amend­ment. Illi­nois just became the tenth state to ban the prac­tice. Only 40 more states to go:

...
Illi­nois became the most recent state to lim­it prison ger­ry­man­der­ing, with the pas­sage of the Pre­tri­al Fair­ness Act in Jan­u­ary, join­ing the nine oth­er states who have end­ed the prac­tice. The mech­a­nism for coun­ter­act­ing prison ger­ry­man­der­ing requires rec­on­cil­ing cen­sus data, which counts incar­cer­at­ed peo­ple as res­i­dents of prison dis­tricts and state Depart­ment of Cor­rec­tions infor­ma­tion on incar­cer­at­ed people’s pre-incar­cer­at­ed home address­es to indi­vid­u­al­ly real­lo­cate peo­ple to their home dis­tricts. A bill intro­duced in Michi­gan by Sen­a­tor Sylvia San­tana would seek to use the same mech­a­nism to end prison ger­ry­man­der­ing in Michi­gan, and Rep­re­sen­ta­tive McClin­ton has also intro­duced leg­is­la­tion that would end the prac­tice in Penn­syl­va­nia.
...

Yes, prison ger­ry­man­der­ing is still poised to hap­pen dur­ing the 2021 redis­trict­ing process in 40 out of 50 states. And that’s on top of all of the overt­ly polit­i­cal ger­ry­man­der­ing that’s going to be tak­ing place too. Prison ger­ry­man­der­ing is extra ger­ry­man­der­ing direct­ly tar­get­ing the com­mu­ni­ties most impact­ed by the jus­tice sys­tem. Com­mu­ni­ties that just hap­pen to be the very same com­mu­ni­ties most heav­i­ly impact­ed by overt polit­i­cal ger­ry­man­der­ing, to the direct ben­e­fit of the com­mu­ni­ties that already ben­e­fit the most from polit­i­cal ger­ry­man­der­ing. So as we can see, the Three-Fifths Com­pro­mise may not be an ade­quate anal­o­gy. After all, if peo­ple are being sent to off to pris­ons out­side of their com­mu­ni­ties, stripped of their vot­ing rights, and then hav­ing their rep­re­sen­ta­tive pow­er held by com­mu­ni­ties that don’t actu­al­ly try to rep­re­sent them, that’s more like a Five-Fifths sit­u­a­tion. Which obvi­ous­ly isn’t the best sit­u­a­tion for polic­ing reforms.

The Repub­li­can-con­trolled Flori­da leg­is­la­ture just a passed the lat­est Repub­li­can vot­er sup­pres­sion bill in what has become a nation-wide wave of Repub­li­can ‘elec­tion integri­ty’ laws being pushed in near­ly every state in the US in response to the 2020 elec­tion out­come. So here’s a chill­ing recent reminder that when it comes to con­cert­ed nation-wide right-wing attempts to per­ma­nent­ly seize pow­er by rig­ging the US polit­i­cal sys­tem, the GOP’s con­cert­ed nation-wide vot­er sup­pres­sion dri­ve is real­ly only one of the ongo­ing the GOP’s cur­rent con­cert­ed nation-wide attempts to rig the sys­tem. There’s also the con­cert­ed nation-wide dri­ve to trig­ger an Arti­cle V Con­sti­tu­tion­al Con­ven­tion and rigged the Con­sti­tu­tion. And as with the GOP’s con­cert­ed nation-wide attempts to rig the elec­toral sys­tem, the GOP’s con­cert­ed nation-wide attempts to rig the US Con­sti­tu­tion is only pick­ing up steam, with the far right mega-donor back­ers of the Con­ven­tion of the States agen­da, like Rebekah Mer­cer or Charles Koch, rec­og­niz­ing that the grow­ing right-wing con­vic­tion that 2020 was a stolen elec­tion can be chan­neled into greater grass­roots sup­port for the Con­ven­tion of the States project. In oth­er words, the 2020 ‘stolen elec­tion’ myth fias­co has­n’t just turned into a boon for advo­cates of sup­pres­sive vot­ing laws. It’s turn­ing into a boon for any right-wing agen­da that pur­ports to oppose ‘the sys­tem’ and a Con­ven­tion of the States can fit with that agenda...especially if it’s a wild run­away con­ven­tion.

And as the fol­low­ing piece points out, while it’s unclear from a legal stand­point if or how the trig­gers for such a con­ven­tion are met and what exact­ly the rules would be once it got under­way that might pre­vent it from becom­ing a ‘run­away con­ven­tion’, that legal ambi­gu­i­ty is a fea­ture. At least a fea­ture for any­one who wants to see the US’s inter­nal ten­sions exac­er­bat­ed even more. Because it’s hard to think of a more effec­tive means of deep­en­ing the exist­ing par­ti­san divide over the valid­i­ty of the 2020 elec­tion than hav­ing a Con­sti­tu­tion­al Con­ven­tion that’s wide­ly seen as a far right farce by Democ­rats and as a last-ditch attempt to save Amer­i­can from the ‘deep state’ cabal by Repub­li­cans. There’s almost no out­come that actu­al­ly changes the con­sti­tu­tion and isn’t viewed as ille­git­i­mate by at least half the coun­try. But that’s all a fea­ture if tear­ing the coun­try apart is part of your agen­da. And with major back­ers like Rebekah Mer­cer, we can say with con­fi­dence that the peo­ple behind the Con­ven­tions of the States move­ment is fine with tear­ing the coun­try apart too. It’s a per­fect­ly accept­able Plan B, and per­haps Plan A.

Along those lines, as the fol­low­ing piece notes, Rebekah Mer­cer appar­ent­ly man­aged to get Mark Meck­ler — co-founder of the Tea Par­ty Patri­ots, one of the first and most influ­en­tial of the Tea Par­ty orga­ni­za­tions — to step in as the tem­po­rary CEO of Par­ler in the hopes that Meck­ler — who is deeply involved in the Con­ven­tion of the States move­ment — would use the posi­tion to help pop­u­lar­ize the Con­ven­tion of the States move­ment with­in the broad­er far right grass­roots com­mu­ni­ty. It turns out a lot of the con­ser­v­a­tive grass­roots are also sus­pi­cious that the Con­ven­tion of the States agen­da is just a front for a giant cor­po­rate pow­er grab, so Mer­cer is hop­ing Meck­ler can address that. Recall how the pre­vi­ous CEO of Par­ler, John Matze, was fired in Feb­ru­ary after claim­ing that Rebekah was pre­vent­ing him from kick­ing neo-Nazi extrem­ists who advo­cate vio­lence off the plat­form. Because when it comes to Rebekah Mer­cer, over­haul­ing the con­sti­tu­tion and vio­lent far right domes­tic ter­ror­ism are appar­ent­ly an ‘either/or’ pair­ing.

And as the arti­cle also points out, for­mer Wis­con­sin Gov­er­nor Scott Walk­er has a new scheme to sue the US Con­gress into call­ing a con­ven­tion based on a Bal­anced Bud­get con­sti­tu­tion­al amend­ment. It does­n’t sound like the legal rea­son is very sound behind the law­suit but we’re obvi­ous­ly in a peri­od where sound legal rea­son­ing does­n’t nec­es­sar­i­ly pre­vail. It’s at least one more insane Repub­li­can law­suit to clog of the judi­cial sys­tem and maybe one day maybe it to the rigged right-wing Supreme Court. And part of the much larg­er right-wing effort to rig the con­sti­tu­tion that is only grow­ing and accel­er­at­ing

Oh, and as David Super, a George­town Uni­ver­si­ty law pro­fes­sor who has close­ly fol­lowed the move­ment for a new con­ven­tion, pre­dicts, if the GOP retakes con­trol of the House and Sen­ate after the mid-terms in 2022 they will imme­di­ate­ly call for an Arti­cle V con­ven­tion. So Mark Meck­ler had bet­ter hur­ry up on get­ting the Repub­li­can base to sup­port a Con­sti­tu­tion Con­ven­tion because the oli­garchs back­ing the project are look­ing like they’re going to try to make it hap­pen at the ear­li­est oppor­tu­ni­ty:

Huff­in­g­ton Post

A Rad­i­cal Right-Wing Dream To Rewrite The Con­sti­tu­tion Is Close To Com­ing True
It could lead to a dra­mat­ic over­haul of the nation’s foun­da­tion­al text ... or an all-out con­sti­tu­tion­al cri­sis.

By Travis Wal­dron
04/27/2021 05:45 am ET Updat­ed

Six weeks before Don­ald Trump won the 2016 pres­i­den­tial elec­tion, more than 100 state law­mak­ers gath­ered in Williams­burg, Vir­ginia, for a week of Found­ing Fathers cos­play. Their task, over three days in the town that bills itself as a liv­ing muse­um to America’s colo­nial peri­od, was to approve a dra­mat­ic over­haul of the Unit­ed States’ foun­da­tion­al text.

The law­mak­ers, near­ly all Repub­li­cans, rat­i­fied six new Con­sti­tu­tion­al amend­ments: They imposed term lim­its on mem­bers of Con­gress, abol­ished the fed­er­al income tax and placed severe lim­its on the fed­er­al government’s abil­i­ty to levy tax­es, imple­ment new reg­u­la­tions or spend mon­ey. While the rest of the coun­try focused on the pres­i­den­tial elec­tion, the Vir­ginia gath­er­ing par­tied like it was 1787.

“The events at Williams­burg will be remem­bered as a turn­ing point in his­to­ry,” Michael Far­ris, a co-founder of the Con­ven­tion of States Project, the con­ser­v­a­tive group that orga­nized the event, said as the mock con­ven­tion closed.

That may have been a com­i­cal­ly grandiose state­ment at the time. But nobody should be laugh­ing today. The project to over­haul the Con­sti­tu­tion is much clos­er to fruition than most peo­ple real­ize.

Since 2014, the Con­ven­tion of States Project and oth­er con­ser­v­a­tive groups, includ­ing the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC) have helped per­suade law­mak­ers in 15 states to pass res­o­lu­tions that call for a new con­sti­tu­tion­al con­ven­tion.

Led by a promi­nent right-wing activist — for­mer Tea Par­ty Patri­ots founder Mark Meck­ler, who is also the cur­rent act­ing CEO of Par­ler, a social media plat­form pop­u­lar on the right — the Con­ven­tion of States Project has spread the gospel of a con­ven­tion to an increas­ing­ly rad­i­cal audi­ence. This year, law­mak­ers pro­posed 42 Con­ven­tion of States res­o­lu­tions in at least 24 new states, accord­ing to the Cen­ter for Media and Democ­ra­cy, which has long mon­i­tored the con­ven­tion push.

The pas­sage of those res­o­lu­tions would trig­ger the pro­vi­sion in Arti­cle V of the Con­sti­tu­tion that allows a con­ven­tion to be called if 34 states demand it. Back­ers of anoth­er res­o­lu­tion — one that calls for a Bal­anced Bud­get Amend­ment — have begun to argue that they have already reached that thresh­old. And last year, for­mer Wis­con­sin Gov. Scott Walk­er ® began push­ing Repub­li­can offi­cials to sue Con­gress in an effort to force a con­ven­tion call.

“I think if [Repub­li­cans] win the midterm elec­tions, if they take the House and Sen­ate, they will try to call an Arti­cle V con­ven­tion imme­di­ate­ly,” said David Super, a George­town Uni­ver­si­ty law pro­fes­sor who has close­ly fol­lowed the move­ment for a new con­ven­tion. “It’s not a fore­gone con­clu­sion that the sim­ple Repub­li­can major­i­ty would get there, but if they get big majori­ties, I think they’ll try.”

That has set off a furi­ous tug-of-war between the groups and law­mak­ers that want a con­ven­tion and those des­per­ate to stop it. Almost as quick­ly as advo­cates have intro­duced new res­o­lu­tions in key states that could tip the bal­ance their way, oppo­nents have mobi­lized to per­suade oth­er leg­is­la­tures to repeal their exist­ing calls, tip­ping it right back.

Pri­mar­i­ly a con­ser­v­a­tive effort now, the prospect of a con­ven­tion excites ele­ments of both the right and left who see it as a use­ful way to improve a bro­ken and dat­ed found­ing doc­u­ment, check the pow­ers of Con­gress, and work around the influ­ence of spe­cial inter­est groups that have derailed pop­u­lar poli­cies, be they a lim­it on cor­po­rate cam­paign con­tri­bu­tions or fis­cal restraints on the feds.

Oppo­nents, on the oth­er hand, see a far more nefar­i­ous plot: a mas­ter class in astro­turf­ing that could open the entire doc­u­ment up to a rad­i­cal rewrite meant to serve the right-wing cor­po­rate inter­ests that already dom­i­nate our pol­i­tics, espe­cial­ly at the state lev­el. The con­ven­tion, they argue, could lead to the demo­li­tion of every­thing from the social safe­ty net and envi­ron­men­tal pro­tec­tions to civ­il rights laws. Or maybe even the Con­sti­tu­tion itself.

“The First Amend­ment, the 14th Amend­ment, the 15th Amend­ment,” said Jay Riesten­berg of Com­mon Cause, a lib­er­al group that cam­paigns against the call­ing of a con­ven­tion. “Any civ­il rights, any con­sti­tu­tion­al pro­tec­tion in the Con­sti­tu­tion could be up for grabs in this con­sti­tu­tion­al con­ven­tion.”

For oth­ers, the fear is less about what the con­ven­tion could accom­plish than what might hap­pen sim­ply because it takes place. An untest­ed process will like­ly face ques­tions about its legit­i­ma­cy from the start. And in a frac­tured nation where a sub­stan­tial num­ber of Repub­li­can vot­ers false­ly believe the last elec­tion was invalid, a messy or dead­locked con­ven­tion could lead to an all-out con­sti­tu­tion­al cri­sis that would make the demo­c­ra­t­ic cat­a­stro­phe that occurred on Jan. 6 look tame in com­par­i­son.

“We shouldn’t want to go down that road, espe­cial­ly now that we’ve just had an expe­ri­ence of how dan­ger­ous and unpleas­ant it is to get close to a con­sti­tu­tion­al legit­i­ma­cy cri­sis,” said Wal­ter Olson, a senior fel­low at the Cato Insti­tute who has long warned against the con­ven­tion effort.

Dan­gers Of A ‘Run­away Con­ven­tion’

Arti­cle V lays out two meth­ods to amend the Con­sti­tu­tion. The first, and most com­mon, is for Con­gress to approve an amend­ment and send it to the states for rat­i­fi­ca­tion. The sec­ond allows states to peti­tion for a con­ven­tion to con­sid­er amend­ments, stip­u­lat­ing that a con­ven­tion will occur once two-thirds of the states have done so.

States have filed var­i­ous peti­tions seek­ing to amend the Con­sti­tu­tion almost since the day it was rat­i­fied. But the mod­ern push to use the sec­ond method, which pro­po­nents refer to as an Arti­cle V con­ven­tion, traces its roots to 1957 when Indi­ana passed a res­o­lu­tion seek­ing to con­vene the states to con­sid­er the pas­sage of an amend­ment that would require the fed­er­al gov­ern­ment to bal­ance its bud­get each year.

Wyoming joined four years lat­er, but no oth­er state picked up the baton until the 1970s, when con­ser­v­a­tives wide­ly adopt­ed the cause. Between 1973 and 1979, 29 states called for a con­ven­tion to con­sid­er a Bal­anced Bud­get Amend­ment, a pro­pos­al that econ­o­mists have repeat­ed­ly warned would ham­string the fed­er­al government’s tax-and-spend author­i­ties, leave it unable to respond to eco­nom­ic crises and force it to gut pop­u­lar pro­grams like Social Secu­ri­ty, Medicare and Med­ic­aid.

In the­o­ry, if 34 states approve res­o­lu­tions sole­ly relat­ed to a Bal­anced Bud­get Amend­ment, del­e­gates wouldn’t be allowed to pro­pose or pass any­thing else for states to rat­i­fy. That’s what pro­po­nents of a bud­get-relat­ed con­ven­tion say, any­way.

But it’s not clear they are right, nor that courts would agree. Since an Arti­cle V con­ven­tion has nev­er been called, the legal lim­its haven’t yet been mean­ing­ful­ly test­ed. And crit­ics have long argued that there is no lan­guage in Arti­cle V to ensure its lim­it­ed scope, or that a con­ven­tion would nec­es­sar­i­ly fol­low the con­tours advo­cates lay out in their sup­pos­ed­ly lim­it­ed con­ven­tion calls.

A broad con­ven­tion, Super has argued, could pos­si­bly write its own rules or even change the exist­ing rat­i­fi­ca­tion process, and courts aren’t like­ly to inter­vene. They may not even have the author­i­ty to do so. So there is an inher­ent risk of a “run­away con­ven­tion” that goes beyond its pur­port­ed aim and opens up the entire Con­sti­tu­tion to an over­haul.

Those fears were espe­cial­ly strong ear­ly on among con­ser­v­a­tives who wor­ried that spe­cial inter­est groups had foul inten­tions and that a con­ven­tion would go awry the minute it began.

“If I tell you I’m going home this after­noon to Illi­nois, but you look at my plane tick­et and it reads to the Bahamas, I think you would deduce that I wasn’t in any hur­ry to get home, and I was plan­ning some fun and games along the way,” con­ser­v­a­tive activist Phyl­lis Schlafly tes­ti­fied in the Ore­gon state Sen­ate in 1989 in a suc­cess­ful attempt to per­suade the leg­is­la­ture there to repeal its con­ven­tion call.

“That is exact­ly what I think about the peo­ple who pro­pose a ‘Con­Con’ as a route to get­ting a Bal­anced Bud­get Amend­ment. There’s no evi­dence that the one will lead to the oth­er, and there is enor­mous evi­dence that it will lead to a lot of mis­chief,” she said.

Dur­ing that time, both lib­er­als and hard-core con­ser­v­a­tives like Schlafly teamed up to per­suade more than a dozen states to rescind their calls for a con­ven­tion and derailed the idea alto­geth­er — for a while.

In 2010, the idea expe­ri­enced a resur­gence among con­ser­v­a­tives who weaponized racism and the nation­al debt in an effort to thwart the biggest aims of Barack Obama’s pres­i­den­cy, includ­ing the Afford­able Care Act and efforts to kick­start the econ­o­my after the Great Reces­sion.

Flori­da passed a res­o­lu­tion call­ing for a con­ven­tion to con­sid­er a Bal­anced Bud­get Amend­ment in 2010; over the next decade, 21 oth­er states joined (some of them already had exist­ing con­ven­tion calls on the books). Most counts place the total num­ber states with of active res­o­lu­tions at 28, while Robert Natel­son, a con­ser­v­a­tive con­sti­tu­tion­al schol­ar who sup­ports the idea of call­ing a con­ven­tion, con­sid­ers 27 of the peti­tions valid.

The Bal­anced Bud­get Amend­ment res­o­lu­tions are still the clos­est to mak­ing a con­ven­tion a real­i­ty, but unable to clear­ly get over the hump, pro­po­nents of the Bal­anced Bud­get Amend­ment con­ven­tion last year pro­posed a dif­fer­ent strat­e­gy: to sue Con­gress, which has the dis­cre­tion to deter­mine when the Arti­cle V thresh­old has been met, and force its hand.

Walk­er, the for­mer Wis­con­sin gov­er­nor, laid out that plan dur­ing an ALEC annu­al meet­ing last July as con­ser­v­a­tives once again railed against extra-con­sti­tu­tion­al abus­es of pow­er relat­ed to the COVID-19 pan­dem­ic. The the­o­ry rests on the fact that, in addi­tion to the states that have active Bal­anced Bud­get Amend­ment res­o­lu­tions on the books, six states have passed calls for a ple­nary con­ven­tion to con­sid­er gen­er­al changes to the doc­u­ment.

Com­bine them, and the nec­es­sary two-thirds of states have filed peti­tions, mean­ing Con­gress has an oblig­a­tion to call a con­ven­tion. If Con­gress does not com­ply, a friend­ly state attor­ney gen­er­al will sue in court, The Asso­ci­at­ed Press report­ed last year.

The ple­nary con­ven­tion calls are not new and are large­ly, if not entire­ly, unre­lat­ed to the Bal­anced Bud­get Amend­ment peti­tions. New York’s, for instance, dates to 1789, before the rat­i­fi­ca­tion of the Bill of Rights. Nev­er­the­less, con­ser­v­a­tive legal schol­ars like Natel­son have argued that, by law, they are like­ly valid when com­bined with the Bal­anced Bud­get Amend­ment res­o­lu­tions.

That doesn’t mean that Natel­son thinks Walker’s plan will work. Asked if he thought a legal order against Con­gress would suc­ceed, he answered with a flat “no.” Hes­i­tant to project when a con­ven­tion call might actu­al­ly reach the nec­es­sary thresh­old, Natel­son guessed that any legit­i­mate push is at least a few elec­tion cycles away.

Com­mon Cause and oth­er groups have, over the last few years, focused their efforts on per­suad­ing states with long­stand­ing con­ven­tion res­o­lu­tions to rescind them, with some suc­cess. Colorado’s state leg­is­la­ture in April vot­ed to rescind all of the pre­vi­ous con­ven­tion res­o­lu­tions its gen­er­al assem­bly had passed in an effort to ensure the state did not play an unwit­ting role in the call­ing of a new con­ven­tion.

Colorado’s move could be a strik­ing blow to the move­ment to call a con­ven­ing of the states: Now, com­bin­ing the Bal­anced Bud­get Amend­ment and ple­nary res­o­lu­tions doesn’t add up to the nec­es­sary 34.

Still, that Walk­er and oth­er con­ser­v­a­tives may even be will­ing to try the legal route has aroused con­cern among con­ven­tion oppo­nents.

...

A Sharp Right Turn

If the Bal­anced Bud­get Amend­ment con­ven­tion is the clos­est one to fruition, it’s Meckler’s group that appears to have the most momen­tum and mon­ey behind it. Meck­ler launched the Con­ven­tion of States Project in 2014 under the umbrel­la of anoth­er group he formed after split­ting with Tea Par­ty Patri­ots, the orga­ni­za­tion he co-found­ed to help foment protests in the ear­li­est days of that “move­ment.”

Meckler’s pro­pos­al does not lim­it the ide­al con­ven­tion to a sin­gle idea like term lim­its — anoth­er pop­u­lar focal point for con­ven­tion advo­cate — or a Bal­anced Bud­get Amend­ment; rather, it broad­ens the scope of the gath­er­ing to include any amend­ments that will “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.”

The effort quick­ly gained steam. Geor­gia, Alas­ka and Flori­da passed Con­ven­tion of States pro­pos­als in 2014, and five oth­ers — Alaba­ma, Indi­ana, Louisiana, Okla­homa and Ten­nessee — fol­lowed over the next two years.

Meck­ler signed a litany of promi­nent con­ser­v­a­tives onto the effort. Flori­da Sen. Mar­co Rubio ® was an ear­ly endors­er, accord­ing to the organization’s web­site. Mem­bers of the Repub­li­can estab­lish­ment (like ex-Flori­da Gov. Jeb Bush), its right-wing con­ser­v­a­tive fringe (like for­mer Flori­da Rep. Allen West), and its media echo cham­ber (Mark Levin and Ben Shapiro) have also giv­en the idea their bless­ing.

Trump’s vic­to­ry in 2016 did not stall the push. Sev­en states — Ari­zona, Arkansas, Mis­souri, North Dako­ta, Texas and Utah — joined the cru­sade between 2017 and 2019, bring­ing the total to 15. In at least a half-dozen oth­er states, sin­gle leg­isla­tive cham­bers passed res­o­lu­tions that failed to ful­ly advance.

The Con­ven­tion of States Project goes to lengths to make itself look like a grass­roots move­ment. It boasts that near­ly 2 mil­lion peo­ple have signed its peti­tion call­ing for an Arti­cle V con­ven­tion, encour­ages vis­i­tors to send auto-gen­er­at­ed let­ters to state law­mak­ers to urge them for­ward, and has insist­ed that the major­i­ty of its fund­ing comes from small donors eager to sup­port the cause.

Much of what it says it’s after, mean­while, is broad­ly pop­u­lar: The Amer­i­can pub­lic gen­er­al­ly sup­ports term lim­its, bal­anced bud­gets and vague ideas like “fis­cal respon­si­bil­i­ty” and “reduc­ing the pow­er of the fed­er­al gov­ern­ment.”

But every­thing else about it sug­gests rather clear­ly that, much like the tea par­ty, the push for a con­ven­tion is more of a pri­or­i­ty for its wealthy, right-wing back­ers than it is for the con­ser­v­a­tive grass­roots.

The Con­ven­tion of States Project’s source of fund­ing is opaque, but its par­ent orga­ni­za­tion received more than $12 mil­lion from groups linked to broth­ers Charles and David Koch and oth­er major con­ser­v­a­tive donors between 2010 and 2018, accord­ing to IRS fil­ings report­ed by the Cen­ter for Media and Democ­ra­cy and Splin­ter. The Mer­cer fam­i­ly, which through its foun­da­tion has show­ered tens of mil­lions of dol­lars on right-wing caus­es over the last decade, has donat­ed at least $500,000 to the group, CMD has report­ed.

ALEC, the Koch-fund­ed mem­ber­ship orga­ni­za­tion of busi­ness-friend­ly and gov­ern­ment-skep­ti­cal con­ser­v­a­tive state law­mak­ers, is among the biggest pro­po­nents of a new con­ven­tion. It has pushed mod­el leg­is­la­tion call­ing for a Bal­anced Bud­get Amend­ment con­ven­tion for more than a decade, and in 2015 pro­duced a mod­el bill along the lines of what Meckler’s group prefers. Free­dom­Works, anoth­er cor­po­rate-backed right-wing group that helped foment the orig­i­nal tea par­ty protests, also sup­ports an Arti­cle V con­ven­tion.

“I’m not con­vinced that the Con­ven­tion of States Project real­ly is a move­ment,” said Super, who has tes­ti­fied against the organization’s res­o­lu­tions in mul­ti­ple states. “It’s a well-fund­ed orga­ni­za­tion that pass­es itself off as a move­ment.”

For its part, the Con­ven­tion of States Project has nev­er done much to com­bat the notion that it is a steroid-infused out­growth of the tea par­ty: In 2017, when he signed on as an advis­er, for­mer South Car­oli­na Sen. Jim DeMint — a tea par­ty dar­ling who left the Sen­ate to work for the Her­itage Foun­da­tion — called an Arti­cle V con­ven­tion the tea party’s “new mis­sion.”

“They real­ize that all the work they did in 2010 has not result­ed in all the things they hoped for,” DeMint told USA Today. “Many of them are turn­ing to Arti­cle V.”

Them, how­ev­er, does not refer to the more light­ly-fund­ed ele­ments of the con­ser­v­a­tive move­ment, or rank-and-file Repub­li­can vot­ers. Many local tea par­ty groups oppose the plan. And although polling on the sub­ject is lim­it­ed, a major­i­ty of Amer­i­cans and an even larg­er major­i­ty of Repub­li­cans oppose the idea of a new con­ven­tion, accord­ing to a 2021 sur­vey that Com­mon Cause has tout­ed.

The broad nature of Meckler’s pro­posed con­ven­tion makes the idea even more tox­ic for con­ser­v­a­tives who’ve long feared what a con­ven­tion might bring. Sec­ond Amend­ment activists, for instance, have in the past wor­ried that a “run­away con­ven­tion” could lead to the demise of their most cher­ished ele­ment of the Con­sti­tu­tion, giv­en that it does not inspire the reli­gious devo­tion among the gen­er­al pub­lic that it does among gun enthu­si­asts and Repub­li­can law­mak­ers.

Grass­roots con­ser­v­a­tive oppo­nents of the con­ven­tion, mean­while, fear as Schlafly once did that the con­ven­tion call is a back­hand­ed way for spe­cial inter­ests to advance their own plans. As one con­ser­v­a­tive activist who oppos­es the idea put it: Many move­ment con­ser­v­a­tives want the gov­ern­ment and fed­er­al courts to more aggres­sive­ly adhere to an orig­i­nal­ist inter­pre­ta­tion of this Con­sti­tu­tion, not throw it out alto­geth­er. Andy Big­gs, the Ari­zona Repub­li­can con­gress­man who has faced alle­ga­tions that he helped orga­nize the Capi­tol insur­rec­tion, strikes a sim­i­lar note in a book he pub­lished in 2015 that described the con­ven­tion plan as “a con.”

“Their approach is like over­haul­ing an engine to fix a flat tire,” Big­gs wrote.

Natel­son, the con­ser­v­a­tive con­sti­tu­tion­al expert who has advised the Con­ven­tion of States Project and is a mem­ber of ALEC’s board of schol­ars, dis­missed con­cerns about a “run­away con­ven­tion,” say­ing that his research into past con­ven­tions has con­vinced him that it is “lit­er­al­ly impos­si­ble” for one to spi­ral out of con­trol.

Although there has nev­er been a con­ven­tion called under Arti­cle V, states have con­vened for both gen­er­al and region­al con­ven­tions to dis­cuss sin­gle top­ics, or a lim­it­ed num­ber of top­ics, with­out branch­ing off to oth­er sub­jects. Arti­cle V, he argued, does not lay out spe­cif­ic rules because the rules are well under­stood.

Nei­ther the First Amend­ment nor Sec­ond Amend­ment are under threat at a con­ven­tion like the one Meckler’s group favors, he insist­ed, because by def­i­n­i­tion, repeal­ing or over­haul­ing them would expand fed­er­al pow­ers, rather than lim­it them. (That argu­ment suf­fers from the fact that Repub­li­can state leg­is­la­tures are cur­rent­ly push­ing a rash of new bills that would curb First Amend­ment protest rights.)

“There nev­er has been a con­ven­tion that has run away,” Natel­son said. “This argu­ment is total­ly fab­ri­cat­ed. It was fab­ri­cat­ed in the 20th cen­tu­ry by con­ser­v­a­tives and more recent­ly has been used by lib­er­als. It has no his­tor­i­cal mer­it what­so­ev­er.”

“But,” he added, “it scares peo­ple.”

Meck­ler and the Con­ven­tion of States Project did not respond to HuffPost’s inter­view requests or ques­tions about their effort. But Meck­ler has sim­i­lar­ly dis­missed fears of a “run­away con­ven­tion” in recent inter­views with oth­er out­lets. (Term lim­its, abo­li­tion of the Depart­ment of Edu­ca­tion and a require­ment that two-thirds of states agree to any change in immi­gra­tion law top Meckler’s pri­or­i­ty list, he told Newsweek.) And over the last few years, his group has ramped up its efforts to alle­vi­ate those con­cerns and bol­ster sup­port among new­er con­stituen­cies, mak­ing its case to gun rights groups and indi­vid­ual gun own­ers dur­ing appear­ances at gun shows across the nation.

Last year, Meck­ler and the con­ser­v­a­tive groups push­ing for a con­ven­tion found anoth­er source of right-wing frus­tra­tion to stoke: the COVID-19 pan­dem­ic. As gov­er­nors used emer­gency exec­u­tive pow­ers to shut down busi­ness­es and impose mask require­ments and oth­er restric­tions meant to slow the spread of the virus, a cadre of con­ser­v­a­tive groups — includ­ing ALEC and Free­dom­Works — began to orga­nize and foment protests out­side state capi­tols. Meck­ler was one of the chief pro­po­nents of the so-called “reopen” move­ment, such that it was one.

Much as they had with the tea par­ty move­ment, the groups wield­ed rhetoric about “lib­er­ty” and “free­dom” to pro­voke small but angry gath­er­ings, then trans­lat­ed that ener­gy into a push for pri­or­i­ties they had always sup­port­ed — in par­tic­u­lar, restric­tions on the exec­u­tive pow­ers of demo­c­ra­t­i­cal­ly elect­ed gov­er­nors, many of whom lost those pow­ers as soon as con­ser­v­a­tive leg­is­la­tors wield­ing ALEC’s mod­el bills returned to state capi­tols.

Yet if they hoped the ener­gy fuel­ing those protests would gen­er­ate sim­i­lar momen­tum behind calls for a new con­ven­tion, it hasn’t yet mate­ri­al­ized: Con­ser­v­a­tive state leg­is­la­tures in Mon­tana, New Hamp­shire and South Dako­ta have already killed such res­o­lu­tions this year, and the pro­pos­al went nowhere in Ken­tucky, one of sev­er­al states Meckler’s group has pri­or­i­tized. Oth­ers face uncer­tain futures in leg­isla­tive ses­sions crowd­ed with oth­er GOP pri­or­i­ties.

No such res­o­lu­tion has passed yet this year, but Wis­con­sin Repub­li­cans have advanced Con­ven­tion of States Project res­o­lu­tions out of com­mit­tees in both cham­bers of the state leg­is­la­ture and could bring them up for floor votes soon. (Six­teen of the GOP law­mak­ers behind the res­o­lu­tions have links to ALEC, the Cen­ter for Media and Democ­ra­cy report­ed.) South Carolina’s ver­sion of the res­o­lu­tion advanced out of a state House com­mit­tee for the sec­ond straight year, but it’s not clear whether it will receive a full vote. (The spon­sor of that bill, state Rep. Bill Tay­lor, declined an inter­view request. Spon­sors in four oth­er states did not respond to HuffPost’s inquiries.)

The anti-lock­down protests became a haven for right-wing extrem­ism that expressed itself in increas­ing­ly vio­lent ways, under the guise of fight­ing “tyrants” who were abus­ing the Con­sti­tu­tion. In Ken­tucky, a mem­ber of the Three Per­centers, a white suprema­cist mili­tia group, hanged the gov­er­nor in effi­gy dur­ing one demon­stra­tion. In Michi­gan, men with ties to mili­tias were arrest­ed for plot­ting to kid­nap Gov. Gretchen Whit­mer; they had pre­vi­ous­ly dis­cussed “cre­at­ing a soci­ety that fol­lowed the U.S. Bill of Rights and where they could be self-suf­fi­cient.” Protests in Michi­gan and Ore­gon even­tu­al­ly led to armed demon­stra­tors enter­ing state capi­tols in an effort to intim­i­date law­mak­ers, episodes that became a tri­al run for the riot in Wash­ing­ton months lat­er.

Long­time observers of the push for an Arti­cle V con­ven­tion wor­ry that it, too, is becom­ing a vehi­cle for extrem­ists to express their dis­dain for the fed­er­al gov­ern­ment, espe­cial­ly giv­en the preva­lence of con­spir­a­cy the­o­ries pushed by Trump and his sup­port­ers that the elec­tion was stolen and that the coun­try itself is being pur­loined by lib­er­als, “the Deep State” and oth­er extra-con­sti­tu­tion­al actors.

Those fears deep­ened ear­li­er this year when Meck­ler assumed the posi­tion as inter­im CEO of Par­ler, the right-wing social media plat­form that has served as an incu­ba­tor for extrem­ism and that along with oth­er, sim­i­lar ser­vices was used to plan the attack on the U.S. Capi­tol. Rebekah Mer­cer, the head of the Mer­cer Fam­i­ly Foun­da­tion, pushed Meck­ler — him­self an extrem­ist who has called Black Lives Mat­ter an “evil” and “anti-Amer­i­can” move­ment — into the job, Bloomberg report­ed in March.

“Their strat­e­gy for years now has been to play hard to the right-wing,” said Arn Pear­son, the exec­u­tive direc­tor of the Cen­ter for Media and Democ­ra­cy. Meckler’s job at Par­ler, he added, “is just their lat­est move to try to con­nect with right-wing extrem­ists” and “ener­gize that base around the Con­ven­tion of States approach.”

What A Con­ven­tion Might Do

Fan­tasies of an Arti­cle V con­ven­tion that will fix the Unit­ed States’ ills have also per­co­lat­ed on the left in the last decade, par­tic­u­lar­ly among sup­port­ers of a con­sti­tu­tion­al amend­ment to over­turn Cit­i­zens Unit­ed v. FEC — the 2010 Supreme Court deci­sion that tossed out most restric­tions on cor­po­rate and spe­cial inter­est spend­ing in fed­er­al elec­tions.

In 2011, pro­gres­sive tele­vi­sion host Cenk Uygur launched Wolf­PAC, a group that sup­ports such an amend­ment and cites an Arti­cle V con­ven­tion as a poten­tial path to get it. Oth­er left-lean­ing groups that favor a sim­i­lar amend­ment have also expressed some open­ness to a con­ven­tion, even if it’s not their pre­ferred route. And at times, the right and left have joined forces: As far back as 2011, Meck­ler and Lawrence Lessig — a Har­vard pro­fes­sor who has advised Wolf­PAC and lat­er waged a brief cam­paign for the 2016 Demo­c­ra­t­ic pres­i­den­tial nom­i­na­tion on the sole issue of cam­paign finance reform — held a joint con­fer­ence on the mer­its of an Arti­cle V con­ven­tion.

“You can see how that appeals to peo­ple who have lost faith in con­ven­tion­al pol­i­tics and see them­selves as the new found­ing gen­er­a­tion,” Olson, of the Cato Insti­tute, said. “I think it’s a delu­sion, but I can see how a lot of peo­ple are attract­ed to it.”

The vast major­i­ty of lib­er­al and left­ist ener­gy focused on the issue, how­ev­er, remains stead­fast­ly opposed to any con­ven­tion call, both out of fear over how it would work and about what its bet­ter-fund­ed and orga­nized pro­po­nents on the right would like it to accom­plish.

The impact of a Bal­anced Bud­get Amend­ment alone is poten­tial­ly mas­sive: Econ­o­mists have warned that it could demol­ish any sem­blance of the country’s social wel­fare state while impos­ing restric­tions on fed­er­al spend­ing that make it almost impos­si­ble for the gov­ern­ment to respond to mas­sive crises like the next Great Reces­sion or glob­al pan­dem­ic. In addi­tion to a Bal­anced Bud­get Amend­ment and a repeal of the fed­er­al income tax, the 2016 mock con­ven­tion sought to weak­en the Com­merce Clause — a major source of Con­gress’ reg­u­la­to­ry pow­er on civ­il rights and oth­er mat­ters — and allowed states to nul­li­fy fed­er­al laws if three-fifths agreed to.

And it’s not hard to guess what else the right would push hard to enshrine into the nation’s new gov­ern­ing text, giv­en the pri­or­i­ties of the groups that are out front about their sup­port for the con­ven­tion. Like, say, a total gut­ting of the fed­er­al government’s abil­i­ty to respond to crises like cli­mate change or hold cor­po­ra­tions account­able for envi­ron­men­tal dis­as­ters. Super, the George­town pro­fes­sor, wor­ries that it could even lead to the total open­ing of pro­tect­ed lands to min­ing, drilling or extrac­tion con­tracts.

“My fears are basi­cal­ly that the oil and gas indus­try makes sure that we can ever have cap-and-trade or a car­bon tax, and makes it very easy for a sin­gle friend­ly admin­is­tra­tion to give them irrev­o­ca­ble rights to pub­lic lands that the Tak­ings Clause would pre­vent any­one from ever tak­ing from them,” Super said. “So basi­cal­ly crip­pling envi­ron­men­tal enforce­ment.”

Oth­ers see the con­ven­tion as a way the right can enshrine its abil­i­ty to gov­ern with­out ever win­ning a major­i­ty of votes at the fed­er­al lev­el, espe­cial­ly as states redraw their con­gres­sion­al and state leg­isla­tive maps over the next year, a process that is like­ly to result in heavy rounds of par­ti­san ger­ry­man­der­ing.

“If the GOP is able to con­trol its grasp on the states fol­low­ing the next round of redis­trict­ing, then adopt­ing amend­ments via [con­sti­tu­tion­al con­ven­tion] would enable them to dom­i­nate law and pol­i­cy in a major­i­ty of states, even if they lose pow­er in Wash­ing­ton or at the guber­na­to­r­i­al lev­el,” Pear­son said.

The lib­er­als who oppose the call­ing of a con­ven­tion, in oth­er words, large­ly believe that groups that sup­port it on the left are blind to what would actu­al­ly take place. Instead of improv­ing the cur­rent Con­sti­tu­tion, a con­ven­tion would like­ly seek to over­haul it with a laun­dry list of pri­or­i­ties that the right-wing’s cor­po­rate donor class has already sought through more typ­i­cal leg­isla­tive means, or alter the Con­sti­tu­tion in a way that makes it eas­i­er to achieve those aims through more typ­i­cal means down the road.

Natel­son, the con­ser­v­a­tive schol­ar who sup­ports the Arti­cle V con­ven­tion, believes all of these argu­ments amount to hyper­ven­ti­lat­ing non­sense. While no Arti­cle V con­ven­tion has been held, there is suf­fi­cient prece­dent and con­sti­tu­tion­al under­stand­ing to deter­mine how the founders intend­ed such a con­ven­tion to work, and to pro­tect it from going off the rails, he argued.

The con­ven­tion, he said, would almost cer­tain­ly be close­ly mon­i­tored by the media and state law­mak­ers, keep­ing it from going beyond its scope. States, he said, could recall del­e­gates who went rogue, if they chose to. And the high thresh­old required for rat­i­fi­ca­tion of any amend­ment — 38 state leg­is­la­tures must even­tu­al­ly approve — means that only incred­i­bly pop­u­lar pro­pos­als would stand even the slight­est chance of rat­i­fi­ca­tion.

“I would say term lim­its, if the amend­ment is draft­ed well, would have a high chance of being rat­i­fied,” Natel­son said. “Some kind of sim­ple fis­cal restraint that is well-draft­ed and has excep­tions for emer­gen­cies prob­a­bly would be rat­i­fi­able. And my guess that some kind of cam­paign finance reform, if it got two-thirds of the states to pro­pose it, would prob­a­bly be rat­i­fi­able.”

And fears that the con­ven­tion would quick­ly be co-opt­ed by spe­cial inter­est groups, lob­by­ists, and those big donors?

“Like Con­gress?” he laughed.

Olson is sim­i­lar­ly skep­ti­cal that a con­ven­tion would pro­duce rad­i­cal change, not in a polar­ized coun­try that hasn’t been able to alter its found­ing doc­u­ments through more tried and true means. No amend­ment has been added to the Con­sti­tu­tion since 1991, and that only hap­pened because enough states final­ly rat­i­fied a pro­pos­al put forth 202 years pri­or. It’s been half a cen­tu­ry since an amend­ment was pro­posed and rat­i­fied in a time­frame typ­i­cal of the major­i­ty of the oth­er alter­ations.

“If the nation­al con­sen­sus is miss­ing for the retail, one-at-a-time amend­ments, then the nation­al con­sen­sus is also absent for a big, rad­i­cal change-lots-of-things-at-once nation­al con­ven­tion,” Olson said of the Con­ven­tion of States Project’s plan. “Peo­ple are delud­ing them­selves if they think that kind of huge nation­al con­sen­sus exists for either con­ser­v­a­tive or lib­er­al views.”

But he wor­ries a con­ven­tion could lead to an even big­ger splin­ter­ing of the coun­try and an even deep­er legit­i­ma­cy cri­sis for its democ­ra­cy. With­out a clear man­date or obvi­ous rules it should fol­low, any con­ven­tion, Olson argued, would inher­ent­ly be seen as ille­git­i­mate by a huge swath of a coun­try.

The left, for good rea­son, isn’t going to trust a con­ven­tion that results from a Hail Mary legal chal­lenge or a Repub­li­can Con­gress’ deci­sion to call it, espe­cial­ly not when the major­i­ty of del­e­gates would be appoint­ed by GOP state leg­is­la­tures that are steadi­ly rad­i­cal­iz­ing against the basic tenets of democ­ra­cy — and “just a few months ago tried to throw out the results of a free and fair elec­tion,” Riesten­berg said. And espe­cial­ly not if a con­ser­v­a­tive-heavy Supreme Court even­tu­al­ly bless­es the whole process.

The right, mean­while, has spent the last decade wad­ing deep­er and deep­er into the fever swamps, bathing itself in con­spir­a­cy the­o­ries and the increas­ing­ly extrem­ist notion that the coun­try has been stolen from them. An entire polit­i­cal par­ty is now premised on and behold­en to false beliefs so ram­pant that they gen­er­at­ed an armed insur­rec­tion in the Unit­ed States Capi­tol. What hap­pens inside that move­ment — espe­cial­ly as Meck­ler and his allies con­tin­ue to foment anger and court extrem­ists — when a con­ven­tion that has been sold as a cure-all fails to pro­duce what they want?

Riesten­berg fears anoth­er poten­tial out­come of that sce­nario: a com­pro­mise amend­ment osten­si­bly meant to walk the coun­try back from the sort of cri­sis the con­ven­tion could poten­tial­ly cre­ate. To stave off dis­as­ter, the con­ven­tion del­e­gates might agree to bar cor­po­rate elec­tion fund­ing but also force the gov­ern­ment to bal­ance its bud­get each year. Comi­ty, at the price of crip­pling the fed­er­al government’s most basic func­tions.

Natel­son isn’t swayed by any of these con­cerns, or the idea that it’s too dan­ger­ous a time to open the Con­sti­tu­tion up to poten­tial­ly mas­sive changes. On the eve of the Civ­il War, he said, Vir­ginia called for a con­ven­tion of states in an attempt to low­er the nation’s tem­per­a­ture. In Feb­ru­ary 1861, del­e­gates from the par­tic­i­pat­ing states met in Wash­ing­ton to dis­cuss a com­pro­mise amend­ment to the Con­sti­tu­tion that they hoped would stave off a war.

“The debates were bit­ter between South and North, beyond any­thing today,” Natel­son said. “And yet, when the dust is cleared, they had suc­cess­ful­ly nego­ti­at­ed and draft­ed a con­sti­tu­tion­al amend­ment, which if adopt­ed might very well have avert­ed a civ­il war.”

The pro­posed amend­ment went nowhere. Had it been rat­i­fied, it might have helped avoid the war. But it also would have per­ma­nent­ly barred Con­gress or a future con­sti­tu­tion­al amend­ment from out­law­ing slav­ery in the South, leav­ing any future deci­sion to abol­ish the prac­tice sole­ly up to the states.

———-

“A Rad­i­cal Right-Wing Dream To Rewrite The Con­sti­tu­tion Is Close To Com­ing True” by Travis Wal­dron; Huff­in­g­ton Post; 04/27/2021

“Led by a promi­nent right-wing activist — for­mer Tea Par­ty Patri­ots founder Mark Meck­ler, who is also the cur­rent act­ing CEO of Par­ler, a social media plat­form pop­u­lar on the right — the Con­ven­tion of States Project has spread the gospel of a con­ven­tion to an increas­ing­ly rad­i­cal audi­ence. This year, law­mak­ers pro­posed 42 Con­ven­tion of States res­o­lu­tions in at least 24 new states, accord­ing to the Cen­ter for Media and Democ­ra­cy, which has long mon­i­tored the con­ven­tion push.”

It’s Mark Meck­ler — co-founder of the Tea Par­ty Patri­ots and now CEO of Par­ler — who has been push­ing the Con­ven­tion of States idea to the rad­i­cal­ized Par­ler audi­ence at the same time Repub­li­can state leg­is­la­tor have been push­ing the leg­is­la­tion to make a con­ven­tion hap­pen in at least 24 new states this year alone. Keep in mind that ALEC is a major backer of this project so that more or less guar­an­tees all Repub­li­can-con­trolled states are going to try to make this hap­pen.

And even if the Con­ven­tion of States can’t be trig­gered by pass­ing the 34 state thresh­old, the Bal­anced Bud­get amend­ment back­ers have already filed a law­suit argu­ing they’ve already met the thresh­old and have anoth­er plan, led by Scott Walk­er, to get Repub­li­can offi­cials to sue Con­gress to force a con­ven­tion call. It’s this kind of mul­ti-faceted well-fund­ed push by high­ly con­nect­ed fig­ures that lends cre­dence to Pro­fes­sor Super’s pre­dic­tion that if the GOP retakes con­trol if con­gress it will imme­di­ate­ly push for an Arti­cle V con­ven­tion. It’s at the top of the actu­al right-wing pow­er agen­da. The tip­py-top:

...
The pas­sage of those res­o­lu­tions would trig­ger the pro­vi­sion in Arti­cle V of the Con­sti­tu­tion that allows a con­ven­tion to be called if 34 states demand it. Back­ers of anoth­er res­o­lu­tion — one that calls for a Bal­anced Bud­get Amend­ment — have begun to argue that they have already reached that thresh­old. And last year, for­mer Wis­con­sin Gov. Scott Walk­er ® began push­ing Repub­li­can offi­cials to sue Con­gress in an effort to force a con­ven­tion call.

“I think if [Repub­li­cans] win the midterm elec­tions, if they take the House and Sen­ate, they will try to call an Arti­cle V con­ven­tion imme­di­ate­ly,” said David Super, a George­town Uni­ver­si­ty law pro­fes­sor who has close­ly fol­lowed the move­ment for a new con­ven­tion. “It’s not a fore­gone con­clu­sion that the sim­ple Repub­li­can major­i­ty would get there, but if they get big majori­ties, I think they’ll try.”
...

And note how the Bal­anced Bud­get amend­ment dri­ve is a dri­ve to call a con­ven­tion con­ven­tion sup­pos­ed­ly with the sole focus of bud­get-relat­ed amend­ments. Like a restrict­ed con­ven­tion. But we have no idea if it could remain con­strict­ed because there’s no legal prece­dent. And since the same peo­ple behind the Bal­anced Bud­get con­ven­tion also want to see a whole Con­ven­tion of States (or at least there’s a heavy over­lap in sup­port), we should have every rea­son to expect there to be a sig­nif­i­cant push to expand such a con­ven­tion well beyond a bal­anced bud­get. Any bad idea could be con­sid­ered. Not just bad bud­get ideas:

...
In the­o­ry, if 34 states approve res­o­lu­tions sole­ly relat­ed to a Bal­anced Bud­get Amend­ment, del­e­gates wouldn’t be allowed to pro­pose or pass any­thing else for states to rat­i­fy. That’s what pro­po­nents of a bud­get-relat­ed con­ven­tion say, any­way.

But it’s not clear they are right, nor that courts would agree. Since an Arti­cle V con­ven­tion has nev­er been called, the legal lim­its haven’t yet been mean­ing­ful­ly test­ed. And crit­ics have long argued that there is no lan­guage in Arti­cle V to ensure its lim­it­ed scope, or that a con­ven­tion would nec­es­sar­i­ly fol­low the con­tours advo­cates lay out in their sup­pos­ed­ly lim­it­ed con­ven­tion calls.

A broad con­ven­tion, Super has argued, could pos­si­bly write its own rules or even change the exist­ing rat­i­fi­ca­tion process, and courts aren’t like­ly to inter­vene. They may not even have the author­i­ty to do so. So there is an inher­ent risk of a “run­away con­ven­tion” that goes beyond its pur­port­ed aim and opens up the entire Con­sti­tu­tion to an over­haul.

...

The effort quick­ly gained steam. Geor­gia, Alas­ka and Flori­da passed Con­ven­tion of States pro­pos­als in 2014, and five oth­ers — Alaba­ma, Indi­ana, Louisiana, Okla­homa and Ten­nessee — fol­lowed over the next two years.

Meck­ler signed a litany of promi­nent con­ser­v­a­tives onto the effort. Flori­da Sen. Mar­co Rubio ® was an ear­ly endors­er, accord­ing to the organization’s web­site. Mem­bers of the Repub­li­can estab­lish­ment (like ex-Flori­da Gov. Jeb Bush), its right-wing con­ser­v­a­tive fringe (like for­mer Flori­da Rep. Allen West), and its media echo cham­ber (Mark Levin and Ben Shapiro) have also giv­en the idea their bless­ing.

Trump’s vic­to­ry in 2016 did not stall the push. Sev­en states — Ari­zona, Arkansas, Mis­souri, North Dako­ta, Texas and Utah — joined the cru­sade between 2017 and 2019, bring­ing the total to 15. In at least a half-dozen oth­er states, sin­gle leg­isla­tive cham­bers passed res­o­lu­tions that failed to ful­ly advance.
...

And note how Scott Walk­er’s law­suit scheme is relat­ed to the Bal­anced Bud­get con­ven­tion, so the the ques­tions of whether or not that con­ven­tion can remained con­straint to the Bal­anced Bud­get or become a run­away con­ven­tion is poten­tial­ly very rel­e­vant to the US. If the stars align in just the wrong way this could hap­pen:

...
In 2010, the idea expe­ri­enced a resur­gence among con­ser­v­a­tives who weaponized racism and the nation­al debt in an effort to thwart the biggest aims of Barack Obama’s pres­i­den­cy, includ­ing the Afford­able Care Act and efforts to kick­start the econ­o­my after the Great Reces­sion.

Flori­da passed a res­o­lu­tion call­ing for a con­ven­tion to con­sid­er a Bal­anced Bud­get Amend­ment in 2010; over the next decade, 21 oth­er states joined (some of them already had exist­ing con­ven­tion calls on the books). Most counts place the total num­ber states with of active res­o­lu­tions at 28, while Robert Natel­son, a con­ser­v­a­tive con­sti­tu­tion­al schol­ar who sup­ports the idea of call­ing a con­ven­tion, con­sid­ers 27 of the peti­tions valid.

The Bal­anced Bud­get Amend­ment res­o­lu­tions are still the clos­est to mak­ing a con­ven­tion a real­i­ty, but unable to clear­ly get over the hump, pro­po­nents of the Bal­anced Bud­get Amend­ment con­ven­tion last year pro­posed a dif­fer­ent strat­e­gy: to sue Con­gress, which has the dis­cre­tion to deter­mine when the Arti­cle V thresh­old has been met, and force its hand.

Walk­er, the for­mer Wis­con­sin gov­er­nor, laid out that plan dur­ing an ALEC annu­al meet­ing last July as con­ser­v­a­tives once again railed against extra-con­sti­tu­tion­al abus­es of pow­er relat­ed to the COVID-19 pan­dem­ic. The the­o­ry rests on the fact that, in addi­tion to the states that have active Bal­anced Bud­get Amend­ment res­o­lu­tions on the books, six states have passed calls for a ple­nary con­ven­tion to con­sid­er gen­er­al changes to the doc­u­ment.

Com­bine them, and the nec­es­sary two-thirds of states have filed peti­tions, mean­ing Con­gress has an oblig­a­tion to call a con­ven­tion. If Con­gress does not com­ply, a friend­ly state attor­ney gen­er­al will sue in court, The Asso­ci­at­ed Press report­ed last year.

...

That doesn’t mean that Natel­son thinks Walker’s plan will work. Asked if he thought a legal order against Con­gress would suc­ceed, he answered with a flat “no.” Hes­i­tant to project when a con­ven­tion call might actu­al­ly reach the nec­es­sary thresh­old, Natel­son guessed that any legit­i­mate push is at least a few elec­tion cycles away.
...

Under­scor­ing how high a pri­or­i­ty this project is, note how Jim DeMint called it the Tea Par­ty’s “New Mis­sion” when he took over in 2017. It’s a big deal. At least a big deal to the peo­ple pay­ing the bills for these right-wing ‘grass­roots’ orga­ni­za­tions. Which hap­pens to over­lap with the peo­ple pay­ing the bills for orga­ni­za­tions like ALEC:

...
The Con­ven­tion of States Project goes to lengths to make itself look like a grass­roots move­ment. It boasts that near­ly 2 mil­lion peo­ple have signed its peti­tion call­ing for an Arti­cle V con­ven­tion, encour­ages vis­i­tors to send auto-gen­er­at­ed let­ters to state law­mak­ers to urge them for­ward, and has insist­ed that the major­i­ty of its fund­ing comes from small donors eager to sup­port the cause.

...

ALEC, the Koch-fund­ed mem­ber­ship orga­ni­za­tion of busi­ness-friend­ly and gov­ern­ment-skep­ti­cal con­ser­v­a­tive state law­mak­ers, is among the biggest pro­po­nents of a new con­ven­tion. It has pushed mod­el leg­is­la­tion call­ing for a Bal­anced Bud­get Amend­ment con­ven­tion for more than a decade, and in 2015 pro­duced a mod­el bill along the lines of what Meckler’s group prefers. Free­dom­Works, anoth­er cor­po­rate-backed right-wing group that helped foment the orig­i­nal tea par­ty protests, also sup­ports an Arti­cle V con­ven­tion.

“I’m not con­vinced that the Con­ven­tion of States Project real­ly is a move­ment,” said Super, who has tes­ti­fied against the organization’s res­o­lu­tions in mul­ti­ple states. “It’s a well-fund­ed orga­ni­za­tion that pass­es itself off as a move­ment.”

For its part, the Con­ven­tion of States Project has nev­er done much to com­bat the notion that it is a steroid-infused out­growth of the tea par­ty: In 2017, when he signed on as an advis­er, for­mer South Car­oli­na Sen. Jim DeMint — a tea par­ty dar­ling who left the Sen­ate to work for the Her­itage Foun­da­tion — called an Arti­cle V con­ven­tion the tea party’s “new mis­sion.”

“They real­ize that all the work they did in 2010 has not result­ed in all the things they hoped for,” DeMint told USA Today. “Many of them are turn­ing to Arti­cle V.”
...

It’s all com­ing togeth­er at the top, from an orga­ni­za­tion­al stand­point. ALEC has state leg­is­la­tures pass­ing Con­ven­tion of State bills and the Tea Par­ty can focus on the main­stream con­ser­v­a­tive grass­roots out­reach. The prob­lem is the main­stream con­ser­v­a­tive grass­roots is increas­ing­ly found on placed like Par­ler, a plat­form built to encour­age the co-min­gling of main­stream con­ser­v­a­tives with extrem­ists. So we should­n’t have been sur­prised that Rebekah Mer­cer took the fir­ing of Par­ler’s CEO as an excuse to bring Mark Meck­ler in as the CEO sav­ior for the com­pa­ny. It was free adver­tis­ing for the Con­ven­tion of States Project. The neo-Nazis can start get­ting excit­ed about the Con­ven­tion of States too. Well, neo-Nazi rab­ble. The elite neo-Nazis like the Mer­cers are clear­ly already excit­ed about it:

...
Long­time observers of the push for an Arti­cle V con­ven­tion wor­ry that it, too, is becom­ing a vehi­cle for extrem­ists to express their dis­dain for the fed­er­al gov­ern­ment, espe­cial­ly giv­en the preva­lence of con­spir­a­cy the­o­ries pushed by Trump and his sup­port­ers that the elec­tion was stolen and that the coun­try itself is being pur­loined by lib­er­als, “the Deep State” and oth­er extra-con­sti­tu­tion­al actors.

Those fears deep­ened ear­li­er this year when Meck­ler assumed the posi­tion as inter­im CEO of Par­ler, the right-wing social media plat­form that has served as an incu­ba­tor for extrem­ism and that along with oth­er, sim­i­lar ser­vices was used to plan the attack on the U.S. Capi­tol. Rebekah Mer­cer, the head of the Mer­cer Fam­i­ly Foun­da­tion, pushed Meck­ler — him­self an extrem­ist who has called Black Lives Mat­ter an “evil” and “anti-Amer­i­can” move­ment — into the job, Bloomberg report­ed in March.

“Their strat­e­gy for years now has been to play hard to the right-wing,” said Arn Pear­son, the exec­u­tive direc­tor of the Cen­ter for Media and Democ­ra­cy. Meckler’s job at Par­ler, he added, “is just their lat­est move to try to con­nect with right-wing extrem­ists” and “ener­gize that base around the Con­ven­tion of States approach.”

...

Oth­ers see the con­ven­tion as a way the right can enshrine its abil­i­ty to gov­ern with­out ever win­ning a major­i­ty of votes at the fed­er­al lev­el, espe­cial­ly as states redraw their con­gres­sion­al and state leg­isla­tive maps over the next year, a process that is like­ly to result in heavy rounds of par­ti­san ger­ry­man­der­ing.
...

And per­haps the most excit­ing aspect of this whole thing for elite neo-Nazis like Rebekah Mer­cer is how it does­n’t real­ly mat­ter if a con­ven­tion’s results are legal­ly upheld by courts. A con­ven­tion that gets ignored by the course might even be prefer­able. It would be anoth­er excuse to burn the gov­ern­ment down, the meta-agen­da here:

...
Olson is sim­i­lar­ly skep­ti­cal that a con­ven­tion would pro­duce rad­i­cal change, not in a polar­ized coun­try that hasn’t been able to alter its found­ing doc­u­ments through more tried and true means. No amend­ment has been added to the Con­sti­tu­tion since 1991, and that only hap­pened because enough states final­ly rat­i­fied a pro­pos­al put forth 202 years pri­or. It’s been half a cen­tu­ry since an amend­ment was pro­posed and rat­i­fied in a time­frame typ­i­cal of the major­i­ty of the oth­er alter­ations.

“If the nation­al con­sen­sus is miss­ing for the retail, one-at-a-time amend­ments, then the nation­al con­sen­sus is also absent for a big, rad­i­cal change-lots-of-things-at-once nation­al con­ven­tion,” Olson said of the Con­ven­tion of States Project’s plan. “Peo­ple are delud­ing them­selves if they think that kind of huge nation­al con­sen­sus exists for either con­ser­v­a­tive or lib­er­al views.”

But he wor­ries a con­ven­tion could lead to an even big­ger splin­ter­ing of the coun­try and an even deep­er legit­i­ma­cy cri­sis for its democ­ra­cy. With­out a clear man­date or obvi­ous rules it should fol­low, any con­ven­tion, Olson argued, would inher­ent­ly be seen as ille­git­i­mate by a huge swath of a coun­try.

The left, for good rea­son, isn’t going to trust a con­ven­tion that results from a Hail Mary legal chal­lenge or a Repub­li­can Con­gress’ deci­sion to call it, espe­cial­ly not when the major­i­ty of del­e­gates would be appoint­ed by GOP state leg­is­la­tures that are steadi­ly rad­i­cal­iz­ing against the basic tenets of democ­ra­cy — and “just a few months ago tried to throw out the results of a free and fair elec­tion,” Riesten­berg said. And espe­cial­ly not if a con­ser­v­a­tive-heavy Supreme Court even­tu­al­ly bless­es the whole process.

The right, mean­while, has spent the last decade wad­ing deep­er and deep­er into the fever swamps, bathing itself in con­spir­a­cy the­o­ries and the increas­ing­ly extrem­ist notion that the coun­try has been stolen from them. An entire polit­i­cal par­ty is now premised on and behold­en to false beliefs so ram­pant that they gen­er­at­ed an armed insur­rec­tion in the Unit­ed States Capi­tol. What hap­pens inside that move­ment — espe­cial­ly as Meck­ler and his allies con­tin­ue to foment anger and court extrem­ists — when a con­ven­tion that has been sold as a cure-all fails to pro­duce what they want?
...

So this is all some­thing we have to keep in the back of our minds every time we read anoth­er sto­ry about a Repub­li­can attack vot­er rights. This par­al­lel attack on the entire con­sti­tu­tion is being car­ried out at the same time and it’s the kind of attack where the pub­lic is unlike­ly to notice it until its too late to do any­thing about. One day Scott Walk­er wins the wrong court case and the US sud­den­ly finds itself on the road to a con­sti­tu­tion­al cri­sis. Except it won’t be sud­den. It will be a long time in the mak­ing. A slow-motion cam­paign build­ing up over decades towards a ‘sud­den’ sit­u­a­tion like Scott Walk­er win­ning the wrong court case. And if not that, some­thing else. Lim­it­ed only by their imag­i­na­tion, because mon­ey real­ly isn’t an issue for this project. A project that could hand damn near every­thing to the peo­ple behind it if this stunt works. A project orches­trat­ed by the peo­ple who already have almost every­thing. An awful bad-faithed project just sneak­ing along day by day, but now with an infu­sion of Koch cash, Trump’s ‘stolen vic­to­ry’ lost cause, and Par­ler neo-Nazis encour­aged to dream of their own ver­sion of the next con­sti­tu­tion.

The state of Col­orado made his­to­ry a cou­ple weeks ago, sort of, when it became of the first US state to release a pro­posed redis­trict­ing map for the 2021 redis­trict­ing cycle. Like many large­ly Demo­c­rat-con­trolled states, Col­orado relies on an inde­pen­dent non-par­ti­san com­mis­sion to draw its dis­tricts in order to avoid the kind of gross inequities that come from ger­ry­man­der, which prob­a­bly makes is eas­i­er to quick­ly gen­er­ate a map.

So while we wait for the rest of the states to sub­mit their maps, from non-par­ti­san maps like Col­orado’s to the hyper-ger­ry­man­dered GOP-con­trolled states, here’s an arti­cle that’s a reminder that the sys­temic cheat­ing in the US from the ger­ry­man­der­ing alone is stacked so heav­i­ly in favor of the GOP that the par­ty is poised to retake con­trolled of the House from ger­ry­man­der­ing alone. Or rather, from the addi­tive impact of the 2021 ger­ry­man­der­ing on top of the GOP’s his­toric ger­ry­man­der­ing of 2011. So if you think the GOP act­ed like it was drunk was pow­er before, just wait until it’s drunk with the kind of pow­er it can’t lose because it does­n’t need to win to get it:

The Guardian

Repub­li­cans can win the next elec­tions through ger­ry­man­der­ing alone

Even if vot­ing pat­terns remain the same, Repub­li­cans could still win more seats in Con­gress through redis­trict­ing

David Daley
Mon 28 Jun 2021 06.15 EDT

In Wash­ing­ton, the real insid­ers know that the true out­rages are what’s per­fect­ly legal and that it’s sim­ply a gaffe when some­one acci­den­tal­ly blurts out some­thing hon­est.

And so it bare­ly made a rip­ple last week when a Texas con­gress­man (and Don­ald Trump’s for­mer White House physi­cian) said aloud what’s sup­posed to be kept to a back­room whis­per: Repub­li­cans intend to retake the US House of Rep­re­sen­ta­tives in 2022 through ger­ry­man­der­ing.

“We have redis­trict­ing com­ing up and the Repub­li­cans con­trol most of that process in most of the states around the coun­try,” Rep­re­sen­ta­tive Ron­ny Jack­son told a con­fer­ence of reli­gious con­ser­v­a­tives. “That alone should get us the major­i­ty back.”

He’s right. Repub­li­cans won’t have to win more votes next year to claim the US House.

In fact, every­one could vote the exact same way for Con­gress next year as they did in 2020 – when Demo­c­ra­t­ic can­di­dates nation­wide won more than 4.7m votes than Repub­li­cans and nar­row­ly held the cham­ber – but under the new maps that will be in place, the Repub­li­can par­ty would take con­trol.

How is this pos­si­ble? The Repub­li­can par­ty only needs to win five seats to wrench the speaker’s gav­el from Nan­cy Pelosi. They could draw them­selves a dozen – or more – through ger­ry­man­der­ing alone. Repub­li­cans could cre­ate at least two addi­tion­al red seats in Texas and North Car­oli­na, and anoth­er cer­tain two in Geor­gia and Flori­da. Then could nab anoth­er in Kansas, Ken­tucky, Ten­nessee and New Hamp­shire.

They won’t need to embrace poli­cies favored by a major­i­ty of Amer­i­cans. All they need to do is rework maps to their favor in states where they hold com­plete con­trol of the decen­ni­al redis­trict­ing that fol­lows the cen­sus – some of which they have held since they ger­ry­man­dered them 10 years ago. Now they can dou­ble down on the unde­served majori­ties that they have seized and dom­i­nate anoth­er decade.

If Repub­li­cans aggres­sive­ly max­i­mize every advan­tage and crash through any of the usu­al guardrails – and they have giv­en every indi­ca­tion that they will – there’s lit­tle Democ­rats can do. And after a 2019 US supreme court deci­sion declared par­ti­san ger­ry­man­der­ing a non-jus­ti­cia­ble polit­i­cal issue, the fed­er­al courts will be pow­er­less as well.

It’s one of the many time bombs that threat­ens rep­re­sen­ta­tive democ­ra­cy and Amer­i­can tra­di­tions of major­i­ty rule. It’s a sign of how much pow­er they have – and how aggres­sive­ly they intend to wield it – that Repub­li­cans aren’t even both­er­ing to deny that they intend to implode it.

“We con­trol redis­trict­ing,” boast­ed Stephen Stepanek, New Hampshire’s Repub­li­can state par­ty chair. “I can stand here today and guar­an­tee you that we will send a con­ser­v­a­tive Repub­li­can to Wash­ing­ton as a con­gressper­son in 2022.”

In Kansas, Susan Wagle, the Repub­li­can par­ty state sen­ate pres­i­dent, cam­paigned on a promise to draw a ger­ry­man­dered map that “takes out” the only Demo­c­rat in the state’s con­gres­sion­al del­e­ga­tion. “We can do that,” Wagle boast­ed. “I guar­an­tee you that we can draw four Repub­li­can con­gres­sion­al maps.”

Texas Repub­li­cans will look to rein­force a map that has held back demo­graph­ic trends favor­ing Democ­rats over the last decade by, among oth­er things, divid­ing lib­er­al Austin into five pieces and attach­ing them to rur­al con­ser­v­a­tive coun­ties in order to dilute Demo­c­ra­t­ic votes. Texas will also have two addi­tion­al seats next decade due large­ly to Lati­no pop­u­la­tion growth; in 2011, when sim­i­lar growth cre­at­ed four new seats for Texas, Repub­li­cans man­aged to draw three for them­selves.

North Car­oli­na Repub­li­cans craft­ed a reli­able 10–3 Repub­li­can del­e­ga­tion through­out the last decade. When the state supreme court declared the con­gres­sion­al map uncon­sti­tu­tion­al in 2019, it forced the cre­ation of a fair­er map in time for 2020. Democ­rats imme­di­ate­ly gained two seats. But the state GOP will con­trol the entire process once again this cycle, so those two seats will like­ly change side – and Repub­li­cans could find a way to draw them­selves the seat the state gained after reap­por­tion­ment.

Two Atlanta-area Democ­rats are in dan­ger of being ger­ry­man­dered out of office by Repub­li­cans. The sin­gle Demo­c­ra­t­ic mem­ber from Ken­tucky, and one of just two from Ten­nessee, are in jeop­ardy if Repub­li­cans choose to crack Louisville and Nashville, respec­tive­ly, and scat­ter the urban areas across mul­ti­ple dis­tricts. Flori­da Repub­li­cans ignored state con­sti­tu­tion pro­vi­sions against par­ti­san ger­ry­man­der­ing in 2011 and cre­at­ed what a state court called a con­spir­a­cy to mount a secret, shad­ow redis­trict­ing process. It took the court until the 2016 elec­tion to unwind those ill-got­ten GOP gains, how­ev­er, which pro­vides lit­tle incen­tive not to do the same thing once more. This time, a more con­ser­v­a­tive state supreme court might even allow those gains to stand.

Might Democ­rats try the same thing? Democ­rats might look to squeeze a cou­ple seats from New York and one addi­tion­al seat from Illi­nois and pos­si­bly Mary­land. But that’s scarce­ly enough to counter the over­all GOP edge. In Col­orado, Ore­gon and Vir­ginia, states con­trolled entire­ly by Democ­rats, the par­ty has either cre­at­ed an inde­pen­dent redis­trict­ing com­mis­sion or made a deal to give Repub­li­cans a seat at the table. Com­mis­sions also draw the lines in oth­er Demo­c­ra­t­ic strong­holds like Cal­i­for­nia, Wash­ing­ton and New Jer­sey. There are no seats to gain in over­whelm­ing­ly blue states like Mass­a­chu­setts, New Mex­i­co and Con­necti­cut.

In many ways, the Repub­li­can edge is left over from 2010, when the par­ty remade Amer­i­can pol­i­tics with a plan called Redmap – short for the Redis­trict­ing Major­i­ty Project – that aimed to cap­ture swing-state leg­is­la­tures in places like North Car­oli­na, Penn­syl­va­nia, Ohio, Wis­con­sin, Michi­gan and Flori­da, among oth­ers. They’ve nev­er hand­ed them back. Now Redmap enters its sec­ond decade of dom­i­nance – just as the law­mak­ers it put into office con­tin­ue rewrit­ing swing-state elec­tion laws to ben­e­fit Repub­li­cans, under the unfound­ed pre­text of “vot­er fraud” that did not occur dur­ing 2020.

Repub­li­cans already ben­e­fit from a struc­tur­al advan­tage in the elec­toral col­lege and the US Sen­ate. Pres­i­dents that lost the pop­u­lar vote have appoint­ed five con­ser­v­a­tive jus­tices to the US supreme court. Now get ready for a drunk­en bac­cha­na­lia of par­ti­san ger­ry­man­der­ing that could make “hot vax sum­mer” look like a chaste Vic­to­ri­an cel­e­bra­tion.

...

———-

“Repub­li­cans can win the next elec­tions through ger­ry­man­der­ing alone” by David Daley; The Guardian; 06/28/2021

“In fact, every­one could vote the exact same way for Con­gress next year as they did in 2020 – when Demo­c­ra­t­ic can­di­dates nation­wide won more than 4.7m votes than Repub­li­cans and nar­row­ly held the cham­ber – but under the new maps that will be in place, the Repub­li­can par­ty would take con­trol.”

It’s a very use­ful way to quan­ti­fy the lev­el of cheat­ing that’s about to take place as the nation­al redis­trict­ing process plays out: if every­one vot­ed the same in 2022 as they did in 2020, the GOP would have con­trol of the House. It’s one of the unde­ni­able yet unspeak­ably unde­mo­c­ra­t­ic fea­tures of Amer­i­can democ­ra­cy, which is why it was kind of sur­pris­ing when GOP Rep Ron­ny Jack­son just came out and said more or less exact­ly that a few weeks ago:

...
And so it bare­ly made a rip­ple last week when a Texas con­gress­man (and Don­ald Trump’s for­mer White House physi­cian) said aloud what’s sup­posed to be kept to a back­room whis­per: Repub­li­cans intend to retake the US House of Rep­re­sen­ta­tives in 2022 through ger­ry­man­der­ing.

“We have redis­trict­ing com­ing up and the Repub­li­cans con­trol most of that process in most of the states around the coun­try,” Rep­re­sen­ta­tive Ron­ny Jack­son told a con­fer­ence of reli­gious con­ser­v­a­tives. “That alone should get us the major­i­ty back.”

He’s right. Repub­li­cans won’t have to win more votes next year to claim the US House.
...

And, again, it’s cru­cial to keep in mind that the gains from 2021 will be addi­tion­al cheat­ing on top of the his­toric game-chang­ing cheat­ing of 2011. They’re going to make the already his­toric cheat­ing more his­toric. The kind of his­to­ry we don’t want to repeat:

...
They won’t need to embrace poli­cies favored by a major­i­ty of Amer­i­cans. All they need to do is rework maps to their favor in states where they hold com­plete con­trol of the decen­ni­al redis­trict­ing that fol­lows the cen­sus – some of which they have held since they ger­ry­man­dered them 10 years ago. Now they can dou­ble down on the unde­served majori­ties that they have seized and dom­i­nate anoth­er decade.

If Repub­li­cans aggres­sive­ly max­i­mize every advan­tage and crash through any of the usu­al guardrails – and they have giv­en every indi­ca­tion that they will – there’s lit­tle Democ­rats can do. And after a 2019 US supreme court deci­sion declared par­ti­san ger­ry­man­der­ing a non-jus­ti­cia­ble polit­i­cal issue, the fed­er­al courts will be pow­er­less as well.

It’s one of the many time bombs that threat­ens rep­re­sen­ta­tive democ­ra­cy and Amer­i­can tra­di­tions of major­i­ty rule. It’s a sign of how much pow­er they have – and how aggres­sive­ly they intend to wield it – that Repub­li­cans aren’t even both­er­ing to deny that they intend to implode it.

“We con­trol redis­trict­ing,” boast­ed Stephen Stepanek, New Hampshire’s Repub­li­can state par­ty chair. “I can stand here today and guar­an­tee you that we will send a con­ser­v­a­tive Repub­li­can to Wash­ing­ton as a con­gressper­son in 2022.”

...

In many ways, the Repub­li­can edge is left over from 2010, when the par­ty remade Amer­i­can pol­i­tics with a plan called Redmap – short for the Redis­trict­ing Major­i­ty Project – that aimed to cap­ture swing-state leg­is­la­tures in places like North Car­oli­na, Penn­syl­va­nia, Ohio, Wis­con­sin, Michi­gan and Flori­da, among oth­ers. They’ve nev­er hand­ed them back. Now Redmap enters its sec­ond decade of dom­i­nance – just as the law­mak­ers it put into office con­tin­ue rewrit­ing swing-state elec­tion laws to ben­e­fit Repub­li­cans, under the unfound­ed pre­text of “vot­er fraud” that did not occur dur­ing 2020.

Repub­li­cans already ben­e­fit from a struc­tur­al advan­tage in the elec­toral col­lege and the US Sen­ate. Pres­i­dents that lost the pop­u­lar vote have appoint­ed five con­ser­v­a­tive jus­tices to the US supreme court. Now get ready for a drunk­en bac­cha­na­lia of par­ti­san ger­ry­man­der­ing that could make “hot vax sum­mer” look like a chaste Vic­to­ri­an cel­e­bra­tion.
...

Block every­thing. Do noth­ing. And cheat like nev­er before. That’s the GOP’s plan to retake the House 2022. A plan that Democ­rats aren’t real­ly in a posi­tion to stop. Even a major­i­ty of vot­ers can’t stop it. Espe­cial­ly after the Supreme Court’s his­toric 2019 rul­ing. The only thing that can stop this plan is the GOP’s own sense of decen­cy and moral restraint. So of course every­thing is going to plan.

But one thing that def­i­nite­ly isn’t part of that plan is for this lev­el of his­toric dou­ble-down cheat­ing to become a cam­paign issue in 2022. It’s undet­stand­ably left out of the plan since ger­ry­man­der­ing is basi­cal­ly nev­er a major cam­paign issue, with the rare excep­tion of Repub­li­cans like Susan Wagle in Kansas who lit­er­al­ly cam­paigned on the idea of ger­ry­man­der­ing the lone Demo­c­rat out of the state del­e­ga­tion:

...
In Kansas, Susan Wagle, the Repub­li­can par­ty state sen­ate pres­i­dent, cam­paigned on a promise to draw a ger­ry­man­dered map that “takes out” the only Demo­c­rat in the state’s con­gres­sion­al del­e­ga­tion. “We can do that,” Wagle boast­ed. “I guar­an­tee you that we can draw four Repub­li­can con­gres­sion­al maps.”
...

It real­ly is just bla­tant cheat­ing out in the open. And in the case of Susan Wagle, cel­e­brat­ed bla­tant cheat­ing.

It all rais­es an inter­est­ing ques­tion that gets raised with each redis­trict­ing cycle but should be his­tor­i­cal­ly rel­e­vant this year: so will the his­toric cheat­ing in 2021 by the GOP across the nation be a cam­paign issue in 2022? Is that kind of cheat­ing ever a cam­paign issue?

It’s a fas­ci­nat­ing cam­paign issue. Can the GOP cheat egre­gious­ly enough for the pub­lic to care enough to pun­ish it enough to over­come the cheat­ing. A kind of meta exis­ten­tial issue that’s simul­ta­ne­ous­ly hard for the pub­lic to latch onto but also very easy. It’s vis­cer­al­ly easy to get from a basic fair­ness stand­point. The cheat­ing keeps increas­ing­ly. Full spec­trum. Will the GOP ever cheat so bad­ly that elec­torate basi­cal­ly can’t kick it out of pow­er? It’s a weird­ly com­pelling cam­paign issue but com­pelling nonethe­less. Or at least should be broad­ly com­pelling to the elec­torate. If it isn’t, that prob­a­bly answers the ques­tion.

With the US 2022 mid-term elec­tion cycle steadi­ly creep­ing up as the the months of 2021 tick away, here’s anoth­er reminder that the 2022 elec­tion cycle is going to be the first round of elec­tions under the new­ly redrawn con­gres­sion­al dis­tricts, and thanks to the the GOP’s gross exploita­tion of ger­ry­man­der­ing tac­tics and the fact that Demo­c­ra­t­ic-run states tend to use non-par­ti­san redis­trict­ing boards, the GOP is vir­tu­al­ly guar­an­teed to retake con­trol of the House in 2022 based on redis­trict­ing alone. The par­ty just needs to win 5 more seats. That was the con­clu­sion of a new series put out by the Uni­ver­si­ty of Virginia’s Cen­ter for Pol­i­tics. The GOP can almost cer­tain­ly retake the House based on redis­trict­ing alone if noth­ing else changes.

What about con­trol of the House in 2024? Well, this report con­clud­ed that if the GOP only wins House 225–230 seats in total, they’ll have a decent shot of retak­ing con­trol in 2024. But if it’s 235–240 seats, there’s no real­is­tic chance the GOP will lose con­trol in 2024.

The only real caveat for the GOP in the report is the same caveat patho­log­i­cal ger­ry­man­der­ers always have: these lines are locked in for a decade and they may not be quite as favor­able for the GOP at the end of the decade due to demo­graph­ic changes in some of the most heav­i­ly ger­ry­man­dered states like Texas and Geor­gia. It relates to the tech­nique of break­ing up Demo­c­ra­t­ic-lean­ing dis­tricts and dis­trib­ut­ing those vot­ers to sur­round­ing Repub­li­can-sol­id dis­tricts, in the hopes that the dis­tricts remain Repub­li­can despite the influx of Democ­rats. In oth­er words, if the GOP gets too greedy in break­ing up demo­c­ra­t­ic-lean­ing dis­tricts and dis­trib­ut­ing those vot­ers to seem­ing­ly ‘safe’ GOP-lean­ing dis­tricts, those dis­tricts may not stay safe for the GOP by the end of the 2020s. But that’s pret­ty much the only ger­ry­man­der­ing-relat­ed risk the GOP faces. A risk that won’t real­ly be felt until the end of the decade any­way.

So the bad news is the GOP is more or less guar­an­teed con­trol of the House in 2022. What pass­es for good news is the fact that it’s pos­si­ble for the to GOP get over­ly greedy and maybe this will back­fire. Lat­er. And head­ing into 2024, the GOP will like­ly have con­trol of the House and maybe even the Sen­ate. And that all rais­es a ques­tion we have to ask soon­er or lat­er: now that the GOP has embraced the man­tle of ‘stolen elec­tions’ and insur­rec­tions, what’s going to hap­pen when it has con­trol of Con­gress again and has the pow­er to act on these new impuls­es?

Because as we’ve seen in one GOP-con­trolled state after anoth­er this year, the par­ty is intent on using all of the leg­isla­tive pow­er at its dis­pos­al to lock in pow­er by any means nec­es­sary. The leg­isla­tive equiv­a­lent of ger­ry­man­der­ing. So with the GOP increas­ing­ly falling into the ‘stolen elec­tion’ fever swamps and increas­ing­ly embrac­ing a nar­ra­tive where Democ­rats are in league with the Chi­nese Com­mu­nist Par­ty to engage in vast sys­tem­at­ic cheat­ing in order to car­ry out a Satan­ic Com­mu­nist agen­da, what’s going to hap­pen when the GOP retakes con­trol of Con­gress? What will they do when com­pelled by this nar­ra­tive? We’re going to find out in 2022 thanks to ger­ry­man­der­ing, no mat­ter how much cra­zier the GOP gets between now and then:

Talk­ing Points Memo
News

Where Repub­li­cans Are Set To Gain The Most In The Great GOP Ger­ry­man­der Of 2021

By Kate Riga
Sep­tem­ber 13, 2021 5:31 p.m.

After ded­i­cat­ing years to win­ning on the state lev­el, Repub­li­cans are poised to deep­en and lock in their struc­tur­al advan­tages in a redis­trict­ing bonan­za.

The effects are like­ly to be felt right away. To put it sim­ply: Repub­li­cans can almost cer­tain­ly win the House in 2022 based on redis­trict­ing alone.

“The com­bi­na­tion of Repub­li­cans con­trol­ling the line-draw­ing in more places and the fact that the envi­ron­ment next year will like­ly be Repub­li­can-lean­ing — put those two things togeth­er and it adds up to a Repub­li­can House,” said Kyle Kondik, man­ag­ing edi­tor of Sabato’s Crys­tal Ball at the Uni­ver­si­ty of Virginia’s Cen­ter for Pol­i­tics. He recent­ly decon­struct­ed the GOP advan­tage with a mul­ti-part series on redis­trict­ing and how it’ll affect every region of the coun­try.

...

Kondik point­ed to Flori­da, Geor­gia, Texas and North Car­oli­na as states where Repub­li­cans could torque up their aggres­sive­ness and squeeze out hand­fuls of seats. Esti­mates of how many seats they could get out of the redraw here vary from six to 16. Repub­li­cans only need to win back five seats to win the House in 2022.

“It’s just a ques­tion of how far are Repub­li­cans like­ly to go,” Kondik told TPM. “And there could be court action that trims their ambi­tions.”

But even on that score, Repub­li­cans have oth­er things going in their favor.

In Flori­da, for exam­ple, the state Supreme Court forced a par­tial re-map before the 2016 elec­tion that helped Democ­rats. But the court’s com­po­si­tion has changed. Andrew Gillum’s 2018 loss to Ron DeSan­tis gave DeSan­tis the abil­i­ty to replace three retir­ing state Supreme Court jus­tices, all of whom were Demo­c­ra­t­ic appointees (judges on that court have a manda­to­ry retire­ment age). His picks yanked the court to the right, and it might be less inclined now to bat back GOP-craft­ed unfair maps.

In states like Texas and Geor­gia that are see­ing rapid demo­graph­ic change in Democ­rats’ favor, Repub­li­cans are high­ly moti­vat­ed to lock down their polit­i­cal dom­i­nance.

While Repub­li­can con­trol may be most dam­ag­ing to Democ­rats in those states, it expands far beyond the region. Democ­rats don’t have many states in their con­trol to coun­ter­act the Repub­li­can gains. They can per­haps net back a few seats with their own par­ti­san ger­ry­man­ders in New York and Illi­nois, but strong­holds like Cal­i­for­nia are con­trolled by less pre­dictable, more bipar­ti­san com­mis­sions.

“If there were no com­mis­sions, the play­ing field would prob­a­bly be more even between Democ­rats and Repub­li­cans in terms of ger­ry­man­der­ing pow­er,” Kondik said. “If both sides are max­i­mal­ly aggres­sive, Repub­li­cans come out ahead.”

The mar­gins will mat­ter. If Repub­li­cans have more mod­est gains — Kondik pegs that at around 225–230 seats total — Democ­rats could con­ceiv­ably claw back the major­i­ty in 2024, when Biden is up for reelec­tion and Demo­c­ra­t­ic vot­ers tend to par­tic­i­pate more. If Repub­li­cans end up any­where in the neigh­bor­hood of 235–240 seats, Kondik said, the chances of Democ­rats retak­ing the House become “unre­al­is­tic.”

The For the Peo­ple Act, Democ­rats’ major vot­ing rights leg­is­la­tion, includes redis­trict­ing reforms. It would ban par­ti­san ger­ry­man­der­ing and require that states use inde­pen­dent com­mis­sions to draw their maps.

Repub­li­cans eas­i­ly blocked the orig­i­nal leg­is­la­tion with a fil­i­buster, and Democ­rats have regrouped behind closed doors to rewrite the bill to accom­mo­date Sen. Joe Manchin (D‑WV), who had issues with the orig­i­nal. But Manchin con­tin­ues to sup­port the fil­i­buster, which will leave the reworked leg­is­la­tion blocked as well.

Even if Democ­rats did fig­ure out how to sway Manchin and Sen. Kyrsten Sine­ma (D‑AZ) on the fil­i­buster, experts told TPM that it’s already months too late to get the inde­pen­dent com­mis­sions installed.

If there is any sil­ver lin­ing for Democ­rats amid a grim land­scape, it’s in the unpre­dictabil­i­ty of a decade. It’s hard to map out what con­gres­sion­al dis­tricts will look like in the next 10 years, espe­cial­ly in states already chang­ing fast.

“The big sto­ry of the last decade was that Repub­li­cans ben­e­fit­ed on bal­ance, but Democ­rats were able to unwind some of those dis­tricts through court action in Vir­ginia, Flori­da, North Car­oli­na and Penn­syl­va­nia specif­i­cal­ly,” Kondik said. “The big sto­ry this time is that Repub­li­cans are like­ly to ben­e­fit again, but there’s just a ques­tion of how much they ben­e­fit and how endur­ing the ger­ry­man­ders are in states with pos­i­tive trends for Democ­rats, like Geor­gia and Texas.

————–

“Where Repub­li­cans Are Set To Gain The Most In The Great GOP Ger­ry­man­der Of 2021” by Kate Riga; Talk­ing Points Memo; 09/13/2021

“Kondik point­ed to Flori­da, Geor­gia, Texas and North Car­oli­na as states where Repub­li­cans could torque up their aggres­sive­ness and squeeze out hand­fuls of seats. Esti­mates of how many seats they could get out of the redraw here vary from six to 16. Repub­li­cans only need to win back five seats to win the House in 2022.”

Five seats. That’s all the GOP needs to ‘win back’. And since ger­ry­man­der­ing counts as ‘win­ning back’, the GOP is a shoo-in for 2022. And pret­ty much all the elec­tion cycles after that for the rest of the decade. The only thing that can real­is­ti­cal­ly cause the GOP to not win con­trol of the House is if it already has con­trol and the pub­lic gets to see what a dis­as­ter the par­ty is when giv­en pow­er. The polit­i­cal equiv­a­lent of painful­ly drop­ping a hot pota­to. As always, the GOP is its own worst ene­my, in part because its gen­uine­ly awful and in part because all the rest of the rules are rigged so heav­i­ly in its favor. Rigged so heav­i­ly that if the GOP ends up get­ting 235–240 seats in 2022 — which is total­ly plau­si­ble — it becomes unre­al­is­tic for any hope that the Democ­rats could retake con­trol of the House in 2024:

...
The mar­gins will mat­ter. If Repub­li­cans have more mod­est gains — Kondik pegs that at around 225–230 seats total — Democ­rats could con­ceiv­ably claw back the major­i­ty in 2024, when Biden is up for reelec­tion and Demo­c­ra­t­ic vot­ers tend to par­tic­i­pate more. If Repub­li­cans end up any­where in the neigh­bor­hood of 235–240 seats, Kondik said, the chances of Democ­rats retak­ing the House become “unre­al­is­tic.”
...

But there’s one real risk to the GOP’s grip on pow­er over the next decade: if it breaks up those Demo­c­ra­t­ic-lean­ing dis­tricts too much and turns too many GOP-sol­id dis­tricts into GOP-lean­ing dis­tricts in the process, it’s entire­ly pos­si­ble those GOP-lean­ing dis­tricts will end up becom­ing Demo­c­rat-lean­ing dis­tricts in the lat­ter half of the decade, espe­cial­ly after they see how the GOP actu­al­ly gov­erns. Again, the GOP real­ly is its own worst ene­my left after all this rig­ging:

...
In states like Texas and Geor­gia that are see­ing rapid demo­graph­ic change in Democ­rats’ favor, Repub­li­cans are high­ly moti­vat­ed to lock down their polit­i­cal dom­i­nance.

...

If there is any sil­ver lin­ing for Democ­rats amid a grim land­scape, it’s in the unpre­dictabil­i­ty of a decade. It’s hard to map out what con­gres­sion­al dis­tricts will look like in the next 10 years, espe­cial­ly in states already chang­ing fast.

“The big sto­ry of the last decade was that Repub­li­cans ben­e­fit­ed on bal­ance, but Democ­rats were able to unwind some of those dis­tricts through court action in Vir­ginia, Flori­da, North Car­oli­na and Penn­syl­va­nia specif­i­cal­ly,” Kondik said. “The big sto­ry this time is that Repub­li­cans are like­ly to ben­e­fit again, but there’s just a ques­tion of how much they ben­e­fit and how endur­ing the ger­ry­man­ders are in states with pos­i­tive trends for Democ­rats, like Geor­gia and Texas.
...

So it’s look­ing like the only thing that could real­is­ti­cal­ly chal­lenge the GOP’s con­trol of the House in 2022 is large num­bers of new non-vot­ers — chron­ic non-vot­ers the GOP had left out of its polit­i­cal cal­cu­lus in con­struct­ing their dis­trict maps — sud­den­ly show­ing up to the polls. Which rais­es anoth­er ques­tion: How long after retak­ing pow­er will it take before the GOP makes itself too polit­i­cal­ly tox­ic to stay in pow­er? So tox­ic even non-vot­ers come out of the wood­work to show their dis­gust. Two elec­tion cycles? One? It’s a trag­i­cal­ly com­mon ques­tion to ask in the mod­ern era, but things real­ly have changed. Sig­nif­i­cant­ly for the worse, which is amaz­ing giv­en how awful the GOP has been for decades. But it’s hap­pened. The par­ty has some­how devolved. Don’t for­get that we’re now in the post-Roe v Wade QAnon-GOP era with a Supreme Court that appears to be ready and will­ing to rub­ber stamp what­ev­er legal garbage the right-wing throws at it. And this is hap­pen­ing at the same time the GOP is ful­ly embrac­ing insur­rec­tionary QAnon-style white nation­al­ism. The par­ty is poised to imple­ment a polit­i­cal lock on pow­er at the same time its drop­ping the mask and mor­ph­ing into a Democ­ra­cy End Times cult. And basi­cal­ly every Repub­li­can-run state is going to be com­pet­ing to see who can imple­ment the most strin­gent abor­tion restric­tions. The stars have aligned in a kind of ‘Mon­key’s Paw’ way for the GOP: It will final­ly have default pow­er, but only if it can avoid scary vot­ers and only after the par­ty has devolved to the point where the only thing it can do with the pow­er is burn every­thing down, itself includ­ed. The Mon­key’s Paw always wins. And oth­er ene­mies of democ­ra­cy, in this case.

We’re still wait­ing to see how the 2021 redistricting/gerrymandering process plays out, but at this point the big ques­tion is how the GOP bal­ances the short-term objec­tive of retak­ing con­trol of the House in 2022 with the medi­um-term objec­tive of hold­ing the House through­out the rest of the decade and posi­tion­ing the par­ty as best as pos­si­ble for the next redis­trict­ing cycle. And as we’ve seen recent­ly, there are indi­ca­tions the GOP is lean­ing towards ‘play­ing it safe’ in many states, where oppor­tu­ni­ties to steal new Demo­c­ra­t­ic seats are in many cas­es being passed by in favor or shoring of vul­ner­a­ble exist­ing Repub­li­can dis­tricts. Part of the rea­son­ing is a healthy fear of the kind of judi­cial back­lash the GOP expe­ri­enced over the last decade in states like Penn­syl­va­nia, where the hyper-ger­ry­man­dered dis­tricts drawn in 2011 were forced by state courts to be redrawn. Anoth­er major part of the rea­son­ing is the sim­ple real­i­ty that the Repub­li­can Par­ty’s edge in the sub­urbs has been steadi­ly dwin­dling in recent elec­tion cycles and that trend does­n’t appear to be revers­ing any time soon. Shoring up vul­ner­a­ble sub­ur­ban Repub­li­can seats real­ly is a seri­ous medi­um-term par­ty pri­or­i­ty. Espe­cial­ly in the age of Trump and the Big Lie, where elec­toral polar­iza­tion is the core strat­e­gy of the GOP. With Don­ald Trump increas­ing­ly look­ing like he’s run­ning in 2024, the long-term con­se­quences of Trump’s impact on the Repub­li­can Par­ty’s broad­er elec­toral appeal isn’t just a long-term issue for the par­ty. It’s a very imme­di­ate medi­um-term issue that’s going to be direct­ly shap­ing the polit­i­cal dynam­ic in the US for at least the next decade. What is the ‘Trump effect’ going to be on sub­ur­ban vot­ers in 2026, 2028, and 2030 fol­low­ing a hyper-divisve 2024 Trump re-run? What are the con­se­quences for House races if Trump runs in 2024 and los­es? What about if he wins? How about if he ‘wins’ by effec­tive­ly steal­ing the elec­tion through a suc­cess­ful insur­rec­tion next time? These are the kinds of ques­tions that under­score just how wild­ly tricky the polit­i­cal cal­cu­lus is for this round of Repub­li­can ger­ry­man­der­ing.

It’s worth point out anoth­er tan­gen­tial­ly relat­ed ten­sion that the GOP is undoubt­ed­ly feel­ing right now: the GOP’s push to give state leg­is­la­tures the pow­er to deter­mine the out­come of pres­i­den­tial votes. Beyond being an attack on basic demo­c­ra­t­ic norms, the move is also makes con­trol of the states all the more vital for the par­ty’s future. And con­trol of the states is very much a ger­ry­man­der­ing-relat­ed issue. State-lev­el dis­tricts are ger­ry­man­dered too, after all. Imag­ine the GOP pass­ing a wave of state-lev­el laws giv­ing the states the pow­er to over­turn pres­i­den­tial votes, fol­lowed by waves of state-lev­el loss­es lat­er in the decade. That’s a real sce­nario the GOP has to be wor­ried about. What good is set­ting up the state-lev­el cheat­ing-sys­tem if you can’t guar­an­tee con­trol of the states.

Final­ly, it’s worth keep­ing in mind that, for all of the con­cern at the Repub­li­can Par­ty lev­el with ‘over­reach­ing’ (over-cheat­ing) dur­ing this ger­ry­man­der­ing process and trig­ger­ing a back­lash, those are the kinds of con­cerns that are prob­a­bly being felt at a much high­er lev­el than just the Repub­li­can Par­ty lead­er­ship. The bil­lion­aires who own and oper­ate the GOP have to get­ting at least some­what con­cerned about a pub­lic per­cep­tion that these bil­lion­aires pulling the GOP’s strings are the same ones deter­min­ing the out­comes of state pres­i­den­tial votes under the new ‘states get to decide the vote’ pres­i­den­tial sys­tem the GOP is cur­rent­ly set­ting up. Like, what hap­pens if the GOP actu­al­ly uses these pow­ers in 2024, a Repub­li­can ends up get­ting installed as pres­i­dent fol­low­ing a Repub­li­can state leg­is­la­ture’s over­turn­ing of the vote? Does Charles Koch, for exam­ple, expect that the US pub­lic will nev­er fig­ure out he’s the most pow­er­ful fig­ure in the coun­try in terms of dic­tat­ing what the GOP does at the state-lev­el? How about the rest of the GOP mega-donors who con­trol orga­ni­za­tions like ALEC that more or less dic­tate to the state-lev­el GOP how to oper­ate? Are they at all wor­ried about ‘over­reach’ these days now that they’re set­ting up a sys­tem where bil­lion­aire GOP mega-donors get to dic­tate who wins pres­i­den­tial elec­tions? Because if there’s any sort of ‘over­reach’ pub­lic back­lash to the US’s upcom­ing “let the bil­lion­aires who con­trol the GOP decide” sys­tem for pres­i­den­tial elec­tions, that back­lash is prob­a­bly com­ing in the lat­ter half of this decade, espe­cial­ly if any state leg­is­la­tures end up using these new pow­ers in 2024. Don­ald Trump isn’t going to be the par­ty’s stan­dard bear­er for­ev­er. At some point the elec­torate is going to default back to rec­og­niz­ing the bil­lion­aires they loathe actu­al­ly con­trol the GOP.

It’s all part of what makes these reports about appar­ent GOP cau­tion in this year’s redis­trict­ing process so fas­ci­nat­ing to watch play out. The GOP knows it need to cheat to main­tain its grip on pow­er. But it also knows it’s get­ting less and less pop­u­lar over time and real­ly has noth­ing to offer the elec­torate beyond the kind of divi­sive polar­iza­tion that’s doom­ing the par­ty into minor­i­ty sta­tus. They need to hold onto pow­er long enough to end democ­ra­cy per­ma­nent­ly and secure What’s the best strate­gic move for a par­ty with immense pow­er, unlim­it­ed cun­ning, and no moral com­pass in this sit­u­a­tion? It’s a hor­ri­ble ques­tion we nev­er should have had to ask but we’re forced to ask it and we’re going to get our answer soon

The Hill

Ear­ly redis­trict­ing plans show GOP retrench­ing for long haul

By Reid Wil­son — 10/03/21 07:00 AM EDT

When Texas Repub­li­cans rolled out a pro­pos­al for con­gres­sion­al dis­trict lines that would like­ly give their par­ty a near­ly two-to-one edge for the next decade, a sim­i­lar thought struck both Democ­rats and anti-ger­ry­man­der­ing advo­cates: It could have been worse.

The same thought occurred to those keep­ing a close eye on pro­posed maps in oth­er red states, like Geor­gia and Indi­ana, that have begun work on the decen­ni­al redis­trict­ing process. Though many states have yet to begin fash­ion­ing their maps, Repub­li­cans in states where they con­trol all the levers of gov­ern­ment appear to be play­ing a cau­tious game.

“Repub­li­cans are going for cer­tain­ty over risky max­i­miza­tion,” said Doug Spencer, a redis­trict­ing and elec­tion law expert at the Uni­ver­si­ty of Col­orado Law School. “I don’t know that I would have pre­dict­ed that, to be hon­est, going into the cycle.”

The goal, insid­ers and observers say, is to shore up as many poten­tial­ly vul­ner­a­ble Repub­li­can incum­bents as pos­si­ble for as long as pos­si­ble, a strat­e­gy that would cre­ate a more durable base of rep­re­sen­ta­tives in Con­gress from which to grow a more last­ing major­i­ty.

Repub­li­can leg­is­la­tors will tar­get Demo­c­ra­t­ic incum­bents where pos­si­ble — a first draft of pro­posed maps in Geor­gia put Rep. Lucy McBath (D) into what appears to be a Repub­li­can-lean­ing dis­trict — but they will avoid the kind of over­reach that marked ear­li­er redis­trict­ing efforts, ambi­tious plans that back­fired lat­er as dis­trict pop­u­la­tions changed.

“Redis­trict­ing is a lot like trench war­fare,” said Adam Kin­caid, exec­u­tive direc­tor of the Nation­al Repub­li­can Redis­trict­ing Trust, the group that helps coor­di­nate the GOP’s remap­ping strat­e­gy. “You take your vul­ner­a­ble incum­bents off the board, and then you go on offense.”

That over­reach cost Repub­li­cans in the last decade. After aggres­sive redis­trict­ing pro­pos­als advanced before the 2012 elec­tions, courts required states like Vir­ginia, Penn­syl­va­nia and North Car­oli­na to redraw their maps in the mid­dle of the decade, cost­ing Repub­li­cans seats — and, in 2018, their major­i­ty in the House.

“There’s a good argu­ment to be made that with­out those mid-decade redis­trict­ing [require­ments], Repub­li­cans would have tak­en the major­i­ty in 2020,” said J. Miles Cole­man, a redis­trict­ing expert and asso­ciate edi­tor at the Uni­ver­si­ty of Virginia’s Cen­ter for Pol­i­tics. “It shows you how frag­ile the Democ­rats’ major­i­ty is right now, and it speaks to why Repub­li­cans feel like they can play it a bit more safe.”

Texas is illus­tra­tive of the Repub­li­can strat­e­gy: Head­ing into the 2020 elec­tions, Repub­li­cans con­trolled 23 of 36 Texas con­gres­sion­al dis­tricts. But Repub­li­cans in nine of those dis­tricts — Reps. Dan Cren­shaw ®, Ron Wright ®, Michael McCaul ®, Chip Roy ®, Troy Nehls ®, Tony Gon­za­les ®, Beth Duyne ®, Roger Williams ® and John Carter ® — won by mar­gins of less than 10 per­cent­age points.

On the Demo­c­ra­t­ic side, Reps. Lizzie Fletch­er (D) and Col­in Allred (D), both of whom won Repub­li­can seats in the 2018 midterms, sur­vived close chal­lenges to win sec­ond terms.

The new pro­posed maps effec­tive­ly pro­tect both Fletch­er and Allred from future Repub­li­can chal­lenges — but they also shore up all nine of those close-call Repub­li­cans into much safer seats. Texas gained two new seats in the decen­ni­al reap­por­tion­ment process, one of which was drawn as a Repub­li­can strong­hold in the Hous­ton exurbs and one as a Demo­c­ra­t­ic bas­tion in Austin.

“These maps like Texas show that there’s more that goes into this than just try­ing to max­i­mize the num­ber of seats that you can win,” Cole­man said.

Repub­li­cans are still ben­e­fit­ting from favor­able maps they drew them­selves after the 2010 midterm elec­tions, which deliv­ered what then-Pres­i­dent Oba­ma called a “thump­ing” to his par­ty. Anti-ger­ry­man­der­ing experts said that has allowed Repub­li­cans to lock in those gains for anoth­er decade, cog­nizant of the demo­graph­ic and polit­i­cal changes that have tak­en place over the pre­ced­ing ten years.

“Repub­li­cans already have strong par­ti­san ger­ry­man­ders in place, so to stretch those ger­ry­man­ders fur­ther would be dif­fi­cult even to start from,” said Michael McDon­ald, a polit­i­cal sci­en­tist at the Uni­ver­si­ty of Flori­da who has served as a redis­trict­ing spe­cial­ist in sev­er­al court cas­es. “The sub­urbs have been trend­ing more Demo­c­ra­t­ic over the last six years or so, and rur­al areas have become more reli­ably Repub­li­can.”

“Those sub­ur­ban d