Laboratories of Autocracy

Normal people were shocked when they heard about the 10-year old girl in Ohio who was raped, became pregnant, and was forced to travel to Indiana to get an abortion because Ohio’s new forced-birth law doesn’t have an exception for rape. From a long article by Jane Mayer for The New Yorker:

[Ohio’s] residents tend to be politically moderate, and polls consistently show that a majority of Ohio voters support legal access to abortion…. Yet, as the recent ordeal of a pregnant ten-year-old rape victim has illustrated, Ohio’s state legislature has become radically out of synch with its constituents….

Longtime Ohio politicians have been shocked by the state’s transformation into a center of extremist legislation, not just on abortion but on such divisive issues as guns and transgender rights. Ted Strickland, a Democrat who served as governor between 2007 and 2011, told me, “The legislature is as barbaric, primitive, and Neanderthal as any in the country. It’s really troubling”…. The story is similar in several other states with reputations for being moderate, such as Wisconsin and Pennsylvania: their legislatures have also begun proposing laws so far to the right that they could never be passed in the U.S. Congress…..

A 2020 survey indicated that less than fourteen per cent of Ohioans support banning all abortions without exceptions for rape and incest…. But the Democrats in the Ohio legislature had no way to mount resistance: since 2012, the Republicans have had a veto-proof super-majority in both chambers….

… The General Assembly’s increasingly radical Republican majority is poised to pass even more repressive restrictions … when it returns from a summer recess. State Representative Gary Click … has proposed a “Personhood Act,” which would prohibit any interference with embryonic development from the moment of conception, unless the mother’s life is endangered. If the bill passes, it could outlaw many kinds of contraception, not to mention various practices commonly used during in-vitro fertilization.

[David Niven, a University of Cincinnati professor,] told me that, according to one study, the laws being passed by Ohio’s statehouse place it to the right of the deeply conservative legislature in South Carolina. How did this happen, given that most Ohio voters are not ultra-conservatives? “It’s all about gerrymandering,” Niven told me.

The legislative-district maps in Ohio have been deliberately drawn so that many Republicans effectively cannot lose, all but insuring that the Party has a veto-proof super-majority. As a result, the only contests most Republican incumbents need worry about are the primaries—and, because hard-core partisans dominate the vote in those contests, the sole threat most Republican incumbents face is the possibility of being outflanked by a rival even farther to the right.

The national press has devoted considerable attention to the gerrymandering of congressional districts, but state legislative districts have received much less scrutiny, even though they are every bit as skewed, and in some states far more so. “Ohio is about the second most gerrymandered statehouse in the country,” Niven told me. “It doesn’t have a voter base to support a total abortion ban, yet that’s a likely outcome.” He concluded, “Ohio has become the Hindenburg of democracy.”

Hindenburg_disaster

David Pepper, an election-law professor, has a book, “Laboratories of Autocracy,” whose title offers a grim spin on a famous statement, attributed to the Supreme Court Justice Louis Brandeis, calling America’s state legislatures “laboratories of democracy”…. He is determined to get the Democratic political establishment to stop lavishing almost all its money and attention on U.S. House, Senate, and gubernatorial races … and to focus more energy on what he sees as a greater emergency: the collapse of representative democracy in one statehouse after another.

Unquote. The article discusses how inattention to local politics has allowed right-wing extremists to take control of state legislatures, assisted by the Supreme Court’s Citizens United decision, and how lower court decisions have been ignored: 

Swept out of power in Washington, the Republican Party’s smartest operatives decided to exploit the only opening they could find: the possibility of capturing state legislatures in the 2010 midterm elections. They knew that, in 2011, many congressional and local legislative districts would be redrawn based on data from the 2010 census—a process that occurs only once a decade. If Republicans reshaped enough districts, they could hugely advantage conservative candidates, even if many of the Party’s policies were unpopular.

In 2010, the Supreme Court issued its controversial Citizens United decision, which allowed dark money to flood American politics. Donors, many undisclosed, soon funneled thirty million dollars into the Republicans’ redistricting project, called REDMAP, and the result was an astonishing success: the Party picked up nearly seven hundred legislative seats, and won the power to redraw the maps for four times as many districts as the Democrats….

The Ohio statehouse has grown only more lopsided in the past decade. Currently, the Republican members have a 64–35 advantage in the House and a 25–8 advantage in the Senate. This veto-proof majority makes the Republican leaders of both chambers arguably the most powerful officeholders in the state….

The vast majority of Ohio residents clearly want legislative districts that are drawn more fairly. By 2015, the state’s gerrymandering problem had become so notorious that seventy-one per cent of Ohioans voted to pass an amendment to the state constitution demanding reforms. As a result, the Ohio constitution now requires that districts be shaped so that the makeup of the General Assembly is proportional to the political makeup of the state. In 2018, an even larger bipartisan majority—seventy-five per cent of Ohio voters—passed a similar resolution for the state’s congressional districts.

Though these reforms were democratically enacted, the voters’ will has thus far been ignored…. [Republicans] proposed districts [that] were nowhere near proportional to the state’s political makeup. The Democrats argued that the Republicans had flagrantly violated the reforms that had been written into the state constitution.

This past spring, an extraordinary series of legal fights were playing out. The Ohio Supreme Court struck down the map—and then struck down four more, after the Republican majority on the redistricting commission continued submitting maps that defied the spirit of the court’s orders…. The Republicans’ antics lasted so long that they basically ran out the clock. Election deadlines were looming, and the makeup of Ohio’s districts still hadn’t been settled. … A federal court [was asked] to intervene, on the ground that the delay was imperiling the fair administration of upcoming elections. The decision was made by a panel of three federal judges—two of whom had been appointed by T____. Over the strenuous objection of the third judge, the two T___ judges ruled in the group’s favor, allowing the 2022 elections to proceed with a map so rigged that Ohio’s top judicial body had rejected it as unconstitutional.

On Twitter, Bill Seitz, the majority leader of the Ohio House, jeered at his Democratic opponents: “Too bad so sad. We win again. The game is over and you lost.”

Ohio Democrats, including David Pepper, are outraged. “The most corrupt state in the country was told more than five times that it was violating the law, and then the federal court said it was O.K.,” he told me. “If you add up all the abnormalities, it’s a case study—we’re seeing the disintegration of the rule of law in Ohio. They intentionally created an illegal map, and are laughing about it.”

[A Democratic legislator] likens the Republicans’ stunning contempt for the Ohio Supreme Court to the January 6th insurrection: “People are saying, ‘Where is the accountability when you disregard the rule of law and attack democracy?’ Because that’s what’s happening in the statehouses, and Ohio is a perfect example.”

Unquote. Ohio isn’t the only state where this has happened. From The New York Times:

Since January, judges in Alabama, Georgia, Louisiana and Ohio have found that Republican legislators illegally drew those states’ congressional maps along racial or partisan lines, or that a trial very likely would conclude that they did. In years past, judges who have reached similar findings have ordered new maps, or had an expert draw them, to ensure that coming elections were fair.

But a shift in election law philosophy at the Supreme Court, combined with a new aggressiveness among Republicans who drew the maps, has upended that model for the elections in November. This time, all four states are using the rejected maps, and questions about their legality for future elections will be hashed out in court later.

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America Is a Failed Democracy: A Primer (It’s Long But Essential)

. . . the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. 

Those are the words of Laurence Lessig, a Harvard law professor, writing for The New York Review of Books. If you want to understand the ways this country has failed at democracy, read what follows. The features of minority rule discussed below include gerrymandered state legislatures and congressional districts, vote suppression, political action committees, the Electoral College, the Supreme Court, the Senate and the filibuster:

What’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state.

At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.


The corruption of our majoritarian representative democracy begins at the state legislatures. Because the Supreme Court has declared that partisan gerrymandering is beyond the ken of our Constitution, states have radically manipulated legislative districts. As Miriam Seifter . . . summarized in a recent article for the Columbia Law Review, “across the nation, the vast majority of states in recent memory have had legislatures controlled by either a clear or probable minority party.” Her work was based in part upon an extraordinary analysis published by the USC Schwarzenegger Institute, which found that after the 2018 election, close to 60 million Americans “live under minority rule in their US state legislatures.” The most egregious states in this mix are also among the most important in presidential elections. In Wisconsin, for example, the popular vote for Republicans in 2018 was 44.7 percent; but Republicans controlled 64.6 percent of the seats in the statehouse. Likewise, Republicans in Virginia won just 44.5 percent of the vote but received 51 percent of statehouse seats.

State legislatures, as Seifter characterizes them, are “the least majoritarian branch” of our representative democracy. Yet this fact is all but invisible to most Americans—including, as she evinces, justices on the Supreme Court. We are all outraged when the Electoral College selects a president who hasn’t won a plurality of votes, something it has done five times in its history. Why are we so sanguine about legislatures that are regularly controlled by the party that won fewer votes across the state?

These gerrymandered states then spread their minoritarian poison in two distinctive ways. First, they have taken up the most ambitious program of vote suppression since Jim Crow. Through a wide range of techniques, Republican state legislatures are making it selectively more difficult for presumptively Democratic voters to vote, by reducing the number of polling places in Democratic districts, by ending early voting or voting outside of ordinary working hours, by deploying biased ID requirements that selectively allow forms of identification commonly held by Republicans (gun club registration cards) while disallowing those held by likely Democratic voters (student cards), by understaffing polling places so voters must queue for hours to vote, and by many other creative techniques. In Georgia, the legislature has even made it a crime to give water to people waiting in line to vote. What possible legitimate state interest could that law serve?

These acts are often framed by their opponents in racial terms. That framing is a strategic mistake. I’m happy to stipulate that some who push these techniques of suppression may well be motivated by race—after all, many of the techniques were those of race discrimination before —though most would surely disavow any such thing. But every single person pushing these techniques of suppression is certainly motivated by politics. It is raw partisan power, driven to destroy the electoral prospects of the other party, that explains what is happening here. Before the United States Supreme Court, Justice Amy Coney Barrett asked lawyers from the Republican National Committee why they were opposing provisions enabling more people to vote. Because it “puts us at a competitive disadvantage,” the lawyer was untroubled to reply. How can it be permissible for the party in power nakedly to rig the system against its opponents?

The second way that minoritarian state legislatures spread their poison is by gerrymandering the United States House of Representatives. Partisan gerrymandering was first perfected in its modern “big data” form by Republicans in 2010, and the Democrats then spent the following decade trying to get the Supreme Court to put a stop to it. When the Court announced it would not, there was little left for the Democrats except good government initiatives, aiming at moving the redistricting process away from the most egregiously partisan influences. That did some good—until the 2020 election signaled to Republicans that their party faces virtual annihilation if the majority gets its say. The efforts to gerrymander for 2022 will therefore be the most sophisticated seen yet. Barring a legislative miracle to safeguard voting rights, by the next presidential election Republicans will have secured through gerrymandering the control of the House of Representatives, whether or not they succeed in winning more votes than Democrats. And if the plans of some extremists come to fruition, a critical mass of state legislatures will also have passed laws by then that give them the power to overturn the results of a popular presidential election in their states.

These two techniques of minoritarian rule—gerrymandering and partisan vote suppression—could have been resisted by the courts. Yet what’s striking about the United States Supreme Court is not only that it has done nothing to resist minoritarianism but also that its most significant recent interventions have only ratified perhaps the most egregious aspects of our minoritarian democracy: the influence of money in politics.


While most mature democracies have various techniques for minimizing the corrupting effect of money in politics, the US Supreme Court has embraced the most radical conception of campaign money-as-free speech of any comparable democracy. While the Court has upheld limitations on direct contributions to political campaigns, it has simultaneously held, in its infamous decision in Citizens United v. FEC (2010), that any limitation on independent spending violates the First Amendment. Lower courts have then read Citizens United to mean that any limits on contributions to independent political action committees would violate the First Amendment as well. These rulings together gave rise to the so-called Super PACs that now dominate political spending, and enable strategic coordination of influence that is more effective than spending alone. In 2020, for example, the ten top Super PACs accounted for 54 percent of outside spending.

What’s critical to recognize is that the real power of this money comes not from its effect in persuading voters. Its power comes instead from the dependence it creates within our political system. Candidates know they need the support of Super PACs, either to make the case for them or to defend them from others who would attack. That dependence produces enormous power in the Super PACs concentrated in the hands of a tiny number of very wealthy individuals (who are presumptively but not necessarily Americans). In a nation of hundreds of millions, a few hundred families now dominate political spending.

Here again, there is no shame. In June 2021, the political action committee (PAC) No Labels had a call with Senator Joe Manchin, Democrat of West Virginia, about legislative priorities in the balance of the year. On the call, the founders of the PAC emphasized the power their group had in Washington—not because of their ideas, but because of their money. The ultra-wealthy donors supporting No Labels were able to “hand out $50,000 checks,” its cofounder, Andrew Burskey, bragged. And those checks, he explained, represented the most valuable money in any political campaign. This was “hard” money, money given to candidates directly, which FEC rules allow the candidates to spend themselves. And then to prove just why that money was so valuable, Burskey offered the incredibly revealing picture of just why the economy of influence in Washington gave the ultra-wealthy so much power in Congress. As he explained:

[Most House members] are spending four hours on the telephone, dialing for dollars. And so what [a large contribution from donors] does—aside from sending the very strong message that there are folks who will have your back if you take tough votes that . . . may not be popular within your party—it also in real life frees them to do more work, because it’s spending less time raising those funds.

Burskey is remarking upon the obvious dependence that exists with our current system for campaign finance: the dependence of representatives on fundraising. Because of that dependence, particular kinds of funders—namely, large funders—are especially valuable. Large contributors give members two things at the same time: first, and obviously, money; but second, and even more critically, time. A $50,000 contribution gives members of Congress the chance to breathe, even as it naturally obliges them to [serve] the interests of the person who enabled that chance.


The legislative branch, of course, is not the only minoritarian institution within our republic. Because of the way states allocate Electoral College votes, the executive branch is effectively minoritarian, too. Not just in the most egregious way, when the candidate who wins fewer votes nonetheless becomes the president, but also, and more significantly, in the most regular way: because of the way states allocate their Electoral College votes, it is only a tiny fraction of American voters who actually matter to the ultimate result. All but two states give the winner of the popular vote in their state all of the electors from that state. This means that the only states that are actually contested in any presidential election are the “swing states,” at most a dozen or so of the fifty in the union. Those swing states represent a minority of America—less than 40 percent of the electorate depending on the election. That minority is in turn radically unrepresentative of America itself. The voters in the swing states are older and whiter. Their occupations are more traditional. For example, seven and a half times more people work in solar energy in America than mine coal, yet we never hear anything about solar energy industry workers as an important political bloc in a presidential campaign because those people live in non-swing states like Texas and California. Coal miners live in battleground states, so they become the central focus of the candidates running for president.

It is thus this tiny, unrepresentative minority that effectively selects the occupant of the Oval Office—making the president, as political scientists (such as Douglas Kriner and Andrew Reeves) have shown, especially responsive to this unrepresentative few. Federal spending is higher, all things being equal, in swing states over non-swing states, and regulators are particularly accommodating of swing states’ regulatory concerns. Does America tinker with steel tariffs or ethanol subsidies because either policy makes any sense? No. We live with these policy vagaries because their beneficiaries live in Pennsylvania and Iowa (both swing states).


And so, too, with the courts: if any institution within a representative democracy is supposed to be minoritarian, or at least, counter-majoritarian, courts are. That is true substantively, but it is not supposed to be true politically. Substantively, of course, courts are meant to uphold constitutional rights, regardless of popular majorities. My First Amendment right to speak should not depend upon whether my views are liked by a majority. But the institution of the judiciary is also populated through political action. And to the extent that those actors have power because of a minoritarian corruption of representative democracy, the courts they populate are likewise tainted by minoritarianism.

Consider the Supreme Court: the current bench is divided 6–3, with the majority dominated by extremely conservative justices. That division is in no sense representative of America. Two thirds of the US is certainly not “conservative.” And while the random nature of Supreme Court turnover can sometimes produce such unrepresentativeness, this Court was expressly constructed by Senate leaders who changed the norms of confirmation to effectively steal a Supreme Court seat. In February 2016, then Majority Leader Mitch McConnell declared, after Justice Scalia’s death, that it was “inappropriate” to confirm a nominee of President Barack Obama’s because it was an election year. But when Justice Ginsburg died just six weeks before an election, McConnell declared that it was perfectly appropriate to rush a nominee through the Senate before the 2020 election. In record time (for a modern appointment), Justice Amy Coney Barrett—certainly among the most conservative of the justices now seated on the Supreme Court—was confirmed by a Republican Senate.


Yet, without doubt, the most extreme institution of minoritarian democracy in America today is the United States Senate. Of course, that flaw was in a sense intended: the only way small states were going to agree to the new Constitution in 1787 was if the Constitution gave them extra power. That compromise enraged James Madison, but he could read the political writing on the wall and eventually became a defender of this counter-majoritarian compromise at the heart of our republic.

Even then, though, the minoritarianism built in to the Senate was muted in the first century after the Constitution’s signing. It was muted first because the differences in states’ populations were much smaller than they are today. The largest state in 1790 (Virginia) was thirteen times more populous than the smallest (Delaware). Today, the largest (California) is sixty-eight times more populous than the smallest (Wyoming). But it was muted second, and more fundamentally, because until this century the Senate did not regularly block the will of the majority of senators. The original Senate rules expressly protected the power of the majority, a simple majority, to vote on any bill whenever it wanted. It was only when Senator John C. Calhoun, the proslavery Democrat of South Carolina, began to muck about with those rules fifty years after the Constitution was ratified that the will of the majority was placed in jeopardy.

We miss this fact because the technique of this blocking has a name that has long been part of Senate lore: the filibuster. And given the tactic’s long pedigree, it is easy to imagine that what we are talking about today is the same as existed in the Senate for most of the institution’s history.

The reality is radically different.

The filibuster that existed for most of the Senate’s history was a device that simply slowed the consideration of legislation. It didn’t kill it. The one exception to that characterization was civil rights legislation: the only examples of laws being blocked by filibuster all the way through 1965 were anti-lynching laws, and laws to improve civil rights. For the rest, the filibuster simply delayed the debating and passage of legislation. And for that delaying tactic to operate, the Senators supporting the filibuster had to do real work: if a Senator was to filibuster a bill, he would have to stand on the floor of the Senate and speak, for many hours without a break. Strom Thurmond, Democrat of South Carolina, held the floor for twenty-four hours to hold up the 1957 Civil Rights Bill. That was not mere showmanship as House Minority Leader Kevin McCarthy’s recent eight-hour filibuster was. It was the only way that a filibuster could have any effect.

Today, however, the mechanism of the filibuster is radically different. All a senator must do to assure that a bill is filibustered is make a request to their party leader. That request—which can literally be by e-mail or text—then shifts the bill from being one that will pass if a simple majority supports it to being one that cannot even be debated unless a supermajority of sixty senators supports it.

The effect of the old filibuster was to keep a bill on the floor of the Senate as the filibusterers were debating. That allowed their dissent to be better understood, if not in the Senate, then at least by the public. The effect of the new filibuster is exactly the opposite: its effect is to block any debate until a supermajority allows it. Thus, the For the People Act—a bill that would have reversed much of the state suppression of the vote, ended partisan gerrymandering, and changed fundamentally the way campaigns are funded—has been blocked from debate on the floor of the Senate now twice, even though a majority would vote to allow that debate to occur. This modern filibuster thus doesn’t enable debate or understanding. The modern filibuster is just a gag rule on any legislation a minority does not like.

Even this description, however, masks the real corruption in the system. The norms that limited the filibuster to important issues are gone. Both parties killed those conventions over the past twenty years, the Republicans more aggressively than the Democrats. The filibuster has now become a routine hurdle that any significant legislation must clear. What that means is that we have now introduced a procedural requirement into the passage of legislation that makes the process more institutionally minoritarian than that of any legislature in any comparable representative democracy. Senators from the twenty-one smallest and most conservative states, representing just 21 percent of America, now have the power to block any non-budget legislation.

This filibuster lock alone—setting aside all the gerrymandering in the states, the gerrymandering of Congress, the suppression of the vote in elections, the Electoral College, the corrupting dependence of money—would be enough to categorize America as a “minoritarian democracy.” Like segregationist or sectarian regimes such as South Africa under apartheid, or the Sunni rule of Baathist Iraq, or Syria under the Alawi, the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. Our only lesson for these democracies is the consequence of our own failure.


In 1997, after he had surprised the world by winning reelection decisively, Bill Clinton convened a small dinner with the top donors to the Democratic Party at the Mayflower Hotel in Washington, D.C. What should he do in his second term? What did they think he could achieve? It was a moment of great hope and possibility—nine months before the revelations of a White House intern would deflect the administration from achieving anything of significance.

As the story is told, about thirty of America’s super-wealthy sat around a table. The president asked each in turn to give him their views. One by one, they rose to speak. The last to rise was a businessman, the founder of Stride Rite Shoes, and the second-largest contributor to the Democrats in 1996. As he stood up, few had any sense of what he would say. When he sat down, few could believe he’d actually said what he did say.

“Mr. President,” Arnold Hiatt began, “I know you’re an admirer of Franklin Delano Roosevelt. So I want you to put yourself in FDR’s shoes in 1940—the year when Roosevelt realized that he was going to have to convince a reluctant nation to wage a war to save democracy. Because that, Mr. President, is precisely what you need to do now—to convince a reluctant nation to wage a war to save democracy.” That would not, of course, be a war against fascists. It would be a fight against fat cats—people like Hiatt, rich people, and people who believed (unlike Hiatt) that just because they are rich, they’re entitled to dinner with the president at the Mayflower. Hiatt was challenging the president to recognize that “current campaign finance practices are threatening this nation in a different, but no less serious way,” he said. . . . There was silence when Hiatt finished. No doubt, some were uncomfortable. . . .

At the time Hiatt spoke, Citizens United was still more than a dozen years in the future. We had not yet seen the pathological gerrymandering of 2010. Few could have imagined the open efforts by partisans in state legislatures to suppress the votes of their political opponents. Not a single Republican in any state legislature was then considering legislation to allow state legislatures to override the popular vote for president. And though the filibuster had been deployed beyond the domain of civil rights by then, it would be nine years before the architect of the modern filibuster, Mitch McConnell, would be elected to lead his party in the United States Senate. And no one—literally, no one—could have imagined an event like January 6 taking place in the United States of America. From our perspective today, Hiatt spoke at a time of relative health in the American democracy. And yet to him, and to many others then—including an eighty-eight-year-old woman who, nine months later, would begin a 3,000-mile walk across the country with the words “campaign finance reform” emblazoned across her chest—the corruption of money was already reason enough to “wage a war to save democracy.”


Today, we confront a Republican Party that has effectively declared war on majoritarian democracy. At every level, the leadership of that party challenges the fundamental idea of majority rule. Rather than adjust their policies to appeal to a true majority of Americans, Republicans have embraced the minoritarian strategy of entrenching what has become, in effect, a partisan, quasi-ethnic group against any possible democratic challenge. They rig the system so the majority cannot rule.

In the face of this threat, what America needs is what Hiatt said FDR had been: a leader who could “convince a reluctant nation to wage a war to save democracy.” Or maybe better, what America needs is a leader like Winston Churchill, who could convince a distracted nation that there is a fundamental threat to our democracy that we must now wage war to save.

Yet we don’t have a Churchill leading this fight. We have a Chamberlain. Rather than name the threat, and rally America against it, President Biden has been keen to negotiate the differences in conciliatory fashion—as if the modern filibuster were not a fundamental threat to democracy and as if the fight against majoritarianism were not a threat either. Biden has been eager to engage in a bizarre nostalgia, recalling a golden age when white men from different parties somehow got along, rather than recognizing that American democracy has never faced a threat like one—even if this is precisely the political reality that Black Americans have known for all of the country’s history.

There was real hope this year for effective action to address this corruption of democracy. Every single major candidate for president in the Democratic Party in 2020 (with the exception of Kamala Harris) had committed to making the For the People Act a top priority in the first hundred days; some had promised even more. Speaker Nancy Pelosi maintained that momentum and passed the act in the House. And after she succeeded in the House, Majority Leader Chuck Schumer committed to getting the Senate to do the same.

Standing in the way, however, was the filibuster.

For most of this year, President Biden defended the filibuster and stood practically silent on this critical reform. He has focused not on the crumbling critical infrastructure of American democracy, but on the benefits of better bridges and faster Internet. Democratic progressives in Congress were little better on this question. Although Alexandria Ocasio-Cortez, Bernie Sanders, and Elizabeth Warren all supported the For the People Act, in the public eye the issues they’ve championed have overlooked the country’s broken democratic machinery: forgive student debt, raise the minimum wage, give us a Green New Deal…. As a progressive myself, I love all these ideas, but none of them are possible unless we end the corruption that has destroyed this democracy. None of them will happen until we fix democracy first.

It may well be that nothing could have been done this year. It may well be true that nothing Biden could say or do would move Senators Joe Manchin and Krysten Sinema, the two who are apparently blocking reform just now. Yet we have to frame the stakes accurately and clearly: if we do not confront those imperfections in our democracy, openly and transparently, we will lose this democracy. . . . [i.e. what’s left of it].

The Dangerous Extremists We’re Facing, Part 2

Article 4, Section 4 of the Constitution says:

The United States shall guarantee to every State in this Union a Republican Form of Government . . .

They weren’t referring to a government run by the Republican Party (there weren’t any political parties in America in 1789). They meant that every state should be a republic, not a monarchy. We, the people, along with our elected representatives, should hold supreme power.

The 14th Amendment, Section 1 says that laws should treat us all equally:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.

Taking those two requirements together, it seems to say that people who live in the same state should be treated equally when it comes to electing their representatives. A state’s laws should not discriminate between voters.

However, Article 1, Section 4 of the Constitution gives state legislatures power to set the borders of congressional districts (and, by implication, of state legislative districts as well). This allows state legislatures to decide which voters live in a particular district, although Congress can overrule how those decisions are made:

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

This creates a situation the authors of the Constitution probably didn’t foresee. A state’s legislators are responsible for determining the boundaries of their own legislative districts, meaning they decide which voters will be responsible for electing them. They are also responsible for setting the boundaries of congressional districts, the areas in the state that elect particular members of the House of Representatives (senators are elected by the whole state).

Gerrymandering has been the result. Legislators design legislative and congressional districts to give themselves and their parties as much power as possible. Voters who tend to vote for the other party are corralled into certain districts, meaning that those districts are guaranteed to elect members of the other party. But it also means there will be relatively few of those lopsided districts.

The upshot is that most districts in a gerrymandered state will have voters who reliably elect members of the party that controls the state legislature. Suppose, for example, a district in Houston, Texas, might always give tremendous victories (80% of the vote) to a Democrat, while two districts near Houston always give smaller, but still reliable, 60% victories to Republicans. This means that even if Democratic candidates get 50% of the total vote in those three districts, Republicans will almost always win two of them and the Democrats will only win one. In a nutshell, allowing legislators to design legislative districts allows them to pick their voters, when the citizens of a republic are supposed to pick their legislators.

That’s obviously not fair. The voters in those three districts in Texas aren’t being treated equally. Practically speaking, the Democrats who live in those districts will never be able to elect more than one Democrat to the state legislature or the House of Representatives, while the equal number of Republicans who live in the same districts will be able to elect two Republicans.

But wait! Congress could change the rules (such as where the district boundaries are) so that the three elections would be competitive. Sometimes one party would win more seats; sometimes the other party would. Except that the very same legislators are responsible for setting the boundaries for Congressional districts. The result is that, in the example above, gerrymandering would allow the state legislature to arrange the boundaries so that more Republicans are guaranteed to win elections, even if the region is equally divided between Republicans and Democrats. Why would a gerrymandered Congress use its authority to undo the gerrymandering that helped get many of its members elected? And even if the House of Representatives agreed to do something about it, the Senate probably wouldn’t, since the Senate is the bastion of minority rule (given the existence of the Senate filibuster and the fact that the Constitution gives two senators to every state, even the smallest or most rural that frequently vote Republican).

But we have federal courts to intervene! The Supreme Court is ultimately responsible for making sure the nation’s laws at both the state and federal level are constitutional. Given the republican (small-r) government guarantee in Article 1, and the equal protection clause in the 14th Amendment, the courts could fix the gerrymandering problem.

Well, the Supreme Court could, but that’s not what the Republican majority on the Court decided two years ago. From NPR:

In a 5-4 decision along . . . ideological lines, the Supreme Court ruled that partisan redistricting is a political question — not reviewable by federal courts — and that those courts can’t judge if extreme gerrymandering violates the Constitution.

The ruling puts the onus on the legislative branch, and on individual states, to police redistricting efforts.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice Roberts wrote for the conservative [i.e. reactionary] majority. 

Roberts noted that excessive partisanship in the drawing of districts does lead to results that “reasonably seem unjust,” but he said that does not mean it is the court’s responsibility to find a solution.

To which Elena Kagan, appointed to the Court by a Democrat, responded:

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases [before the Court] deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering
claims. . . . They limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.

But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion,
causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the
majority goes tragically wrong.

In sum, state legislators are allowed to rig elections, the Supreme Court says it’s up to Congress to stop them and Congress won’t, not unless enough Democrats are elected to state legislatures and Congress, but that’s unlikely because Republican state legislatures have rigged the game.  

Jamelle Bouie of The New York Times summarizes the current situation:

Not content to simply count on the traditional midterm swing against the president’s party, Republicans are set to gerrymander their way to a House majority next year.

Last week, North Carolina’s Republican-controlled statehouse passed a new map that would, in an evenly divided electorate, give it 10 of the state’s 14 congressional seats. To overcome the gerrymander and win a bare majority of seats, according to the Princeton Gerrymandering Project, Democrats would have to win an unattainably large supermajority of votes.

A proposed Republican gerrymander in Ohio would leave Democrats with two seats out of 15 — or around 13 percent of the total — in a state that went 53-45 for T____ in 2020.

It is true that Democrats have pursued their own aggressive gerrymanders in Maryland and Illinois, but it is also true that the Democratic Party is committed, through its voting rights bills, to ending partisan gerrymandering altogether.

The larger context of the Republican Party’s attempt to gerrymander itself into a House majority is its successful effort to gerrymander itself into long-term control of state legislatures across the country. In Michigan, Wisconsin, Pennsylvania and other states, Republicans have built legislative majorities sturdy enough to withstand all but the most crushing “blue wave.”

And in the age of D___ T___, they are using their majorities to seize control of election administration in states all over the country, on the basis of an outlandish but still influential claim that the Constitution gives sovereign power over elections to state legislatures [Note: which it doesn’t, according to Article 1, Section 4 of the Constitution].

These are the dangerous extremists we’re facing.

How the Minority Rules

I’ve only got my left hand for typing right now, but there’s always copy and paste. From THE GUARDIAN:

The United States is becoming a land filled with “democracy deserts”, where gerrymandering and voting restrictions are making voters powerless to make change. And this round of redistricting could make things even worse.

Since 2012, the Electoral Integrity Project at Harvard University has studied the quality of elections worldwide. It has also issued biannual reports that grade US states, on a scale of 1 through 100. In its most recent study of the 2020 elections, the integrity of Wisconsin’s electoral boundaries earned a 23 – worst in the nation, on par with Jordan, Bahrain and the Congo.

Why is Wisconsin so bad? Consider that, among other things, it’s a swing-state that helped decide the 2016 election. Control the outcome in Wisconsin, and you could control the nation. But Wisconsin isn’t the only democracy desert. Alabama (31), North Carolina (32), Michigan (37), Ohio (33), Texas (35), Florida (37) and Georgia (39) scored only marginally higher. Nations that join them in the 30s include Hungary, Turkey and Syria.

Representative democracy has been broken for the past decade in places like WisconsinNorth Carolina, OhioPennsylvaniaMichigan and Florida. When Republican lawmakers redistricted these states after the 2010 census, with the benefit of precise, granular voting data and the most sophisticated mapping software ever, they gerrymandered themselves into advantages that have held firm for the last decade – even when Democratic candidates win hundreds of thousands more statewide votes.

In Wisconsin, for example, voters handed Democrats every statewide race in 2018 and 203,000 more votes for the state assembly – but the tilted Republican map handed Republicans 63 of the 99 seats nevertheless. Democratic candidates have won more or nearly the same number of votes for Michigan’s state house for the last decade – but never once captured a majority of seats.

Now redistricting is upon us again. This week, the US Census Bureau will release the first round of population data to the states, and the decennial gerrymandering Olympics will begin in state capitols nationwide. And while there has been much coverage of the national stakes – Republicans could win more than the five seats they need to control of Congress next fall through redrawing Texas, Georgia, North Carolina and Florida alone, and they’ve made clear that’s their plan – much less alarm has been raised about the long-term consequences of entrenched Republican minority rule in the states.

It’s time for them to ring. The situation is dangerous.

Our democratic crisis is not just the stuff of academic studies. Who controls our states is increasingly a matter of life and death. Recent history is riddled with examples. For instance, the Flint water crisis began after a gerrymandered Michigan legislature reinstated an emergency manager provision even after voters repealed it in a statewide referendum.

When lawmakers in Texas ban mask mandates, or Florida politicians take away the power of local officials to require masks in schools, that’s the consequence of gerrymandering. And its impact can be measured in actual lives. When state lawmakers enact draconian restrictions on reproductive rights in Ohio, Georgia, Alabama and Missouri that opinion polls show are out of step with their own residents, that’s the power of gerrymandering. When Republican legislators strip emergency powers from Democratic governors, that’s yet another insidious effect. Our health, safety and wellbeing – our very lives – are in the hands of our state legislators. It is imperative that our votes decide who they are.

We know that when gerrymandering “packs” and “cracks” voters into districts for partisan advantage, it results in fewer districts that are competitive. And when districts are uncompetitive, fewer candidates have incentive to run – and those who do have little incentive to pay attention to any voters’ preferences outside of those who participate in low-turnout, base-driven primaries. This district uncompetitiveness, and the lack of incentives for legislators to listen and govern, is why our state and federal legislatures are so polarized.

And it can still get worse. Republicans hold complete control over redistricting in Texas, Georgia, Ohio, Florida and North Carolina. Democratic governors will have veto power over at least some tilted maps in Pennsylvania and Wisconsin, and a new commission will draw lines in Michigan. That should force some compromise in those states. But it also means that if Democrats lose the governor’s office in any of those states in 2022, Republicans might try to force a mid-decade redraw of maps. These entrenched lawmakers continue to show us how extreme they are, and demonstrate their willingness to demolish any traditional guardrail. We have already seen how legislators in those states have pushed for new voting restrictions, for sham “audits” of the 2020 results, and have even called for changes in how electoral college votes are awarded and certified.

Let’s be clear: D____ T____’s Big Lie was enabled by gerrymandering. Much of the success of the Big Lie is in its veneer of legitimacy, which has been perpetuated by Republican state legislators in places like Michigan, Georgia and Texas – whose very electoral successes were made possible by gerrymandering. And while the system held, barely, in 2020, there is no guarantee that the same thing happens next time, after another round of extreme redistricting and several more years of surgical laws designed to suppress the vote in closely contested states.

These are the stakes right now as redistricting begins anew. As we await the final census data this week, we must not allow redistricting to unfold quickly behind closed doors. We must keep this process transparent and mapmakers accountable. Find your state’s redistricting hearing schedule online, join the meetings (many will be held virtually) and consider submitting testimony about why fair maps matter. Tweet at journalists and your legislators. Mention it in every conversation you have with friends and family. Learn about and support organizations fighting for fair maps with people power on the ground. [WON’T THESE EFFORTS BE POINTLESS?. THIS IS RAW POWER AT WORK AND A FEW DEMOCRATIC SENATORS WHO COULD REFORM THE FILIBUSTER TO PROTECT VOTING RIGHTS ARE TOO STUPID AND/OR SELFISH TO ACT]

The process is going to move fast, and the next several weeks are critical. The stakes are much higher than just Congress. This is a fight for the future of our states, too. If you think that legislators will always be accountable to the people, or that autocracy can’t happen here, you aren’t paying attention. It already is.

THE AUTHORS:

We Should Expect Divided Government For a Long Time

Back in July, I wrote about the unrepresentative nature of the House of Representatives:

The House doesn’t represent the will of the people, because small states are over-represented (some congressional districts are nearly twice as large as others) and recent gerrymandering results in more Republicans being elected than Democrats, even though Democrats get more votes.

What I should have said is that some small states are over-represented and others are under-represented. For example, Rhode Island’s two members of Congress each represent only 525,000 people. Wyoming’s single member represents about 580,000. Yet Delaware‘s one member of Congress represents 925,000 and Montana‘s represents more than one million.

That might be a wash in political terms, because some small states lean left and some lean right. Unfortunately, of the 12 states that have no more than two representatives in Congress, eight lean right and only 4 lean left.

In addition, we shouldn’t forget the District of Columbia, which has more people than Vermont and Wyoming, definitely leans left and isn’t properly represented in Congress at all (they don’t have a senator and their representative gets to talk but not vote). This all adds up to an advantage for the Republicans.

In that post, I also said that gerrymandering resulted in more Republicans being elected to the House in 2012 than Democrats, even though Democrats got more votes. I was right about the numbers: the Republicans received only 47.6% of the total House vote, but ended up with 51.7% of the seats, which resulted in the Republicans having almost total control of the House of Representatives, since the House is run more efficiently (i.e. less democratically) than the Senate.

It might be the case, however, that gerrymandering doesn’t explain the Republicans’ success. That’s not to say the Republicans haven’t done their best to draw Congressional district boundaries to their advantage. They clearly did so the last time they got the chance and did it with more dedication than the Democrats.

Nevertheless, a recent study suggests that the Republicans have a natural advantage in House races. The reason could be that Democrats have gerrymandered themselves by tending to live in big cities, college towns and old manufacturing centers. That’s how gerrymandering works. You try to clump together people who vote for your opponents in as few districts as possible. This creates a few extremely safe seats for your opponents (ideally, they’d get 100% of the vote in a few districts), and a bunch of relatively safe seats for your side. It’s basically voter segregation or ghettoization. By living close together in places like Atlanta, Ann Arbor and Toledo, Democratic voters appear to have put themselves at a natural geographical disadvantage in House races.

The people who did the study claim to have tried out thousands of different district boundaries in 49 states (no Alaska? no Rhode Island?). The results were not encouraging for Democrats or opponents of gerrymandering:

In the vast majority of states, our nonpartisan simulations produced Republican seat shares that were not much different from the actual numbers in the last election. This was true even in some states, like Indiana and Missouri, with heavy Republican influence over redistricting.

It might be possible to counteract this Republican advantage by creating lots of districts that radiate out from the centers of towns and cities and would include a nice mix of urban, suburban and rural voters. The authors of the study seem to discount this possibility. At any rate, their point is that by living in relatively close quarters, Democrats are at a natural disadvantage when it comes to electing members of the House of Representatives.

A reasonable conclusion to draw from all of this is that Congress is even less representative than it seems to be. The Senate was explicitly designed to favor the interests of lightly-populated states, which now tend to vote Republican, while the House exhibits some favoritism toward small states, but more importantly is gerrymandered, whether on purpose or by simple geography, to favor Republicans as well.

The good news is that Democratic presidential candidates may continue to do relatively well, since most people pay at least some attention to politics during presidential elections and most people agree with Democratic policies (progressive taxation, more social spending, less military spending). Democrats who run for President will do well, that is, until they actually have to govern. Then they’ll have to deal with too many Republicans in Congress.