Somewhere, in an alternative universe where the winner of the 2016 presidential election lives in the White House, partisan gerrymandering is unconstitutional. Justice Merrick Garland provided the key fifth vote in Gill v. Whitford to strike down the Wisconsin Republican Party’s aggressive effort to immunize itself from elections. Lower courts are busy dismantling gerrymanders in states like North Carolina, Ohio, and Maryland. And in 2018, Wisconsin held its first competitive state assembly elections in years.
Meanwhile, here in this universe, the picture is much more grim. In 2018, Democratic Wisconsin state assembly candidates won 54 percent of the two-party popular vote, beating their Republican counterparts by 8 percentage points. Yet Republicans won 63 of the state’s 99 assembly seats.
With Republicans in firm control of the Supreme Court in 2018, the high court decided not to decide Gill, leaving Wisconsin’s gerrymander in place. Then Republicans gained an even tighter grip on the Supreme Court when Justice Anthony Kennedy — the court’s occasional swing vote and the only member of its Republican majority who appeared open to striking down partisan gerrymandering — left the bench.
All of which is a long way of saying that the outcomes in Rucho v. Common Cause and Lamone v. Benisek, two partisan gerrymandering cases that the Supreme Court will hear next Tuesday, are practically preordained. The Court will almost certainly vote 5-4 to hold that such gerrymanders cannot be dismantled by federal courts. Republicans will keep the profound advantages they gained in 2010, thanks to the coincidence of the fact that the GOP had a strong electoral year immediately before a redistricting cycle. States like Wisconsin will remain sham democracies.
America got to this point, moreover, not because Republicans won national elections fair and square and that gave them the power to appoint pro-gerrymandering judges to the Supreme Court. We got here because the anti-democratic pathologies of the U.S. Constitution have begun to snowball — working together to preserve themselves and to promote further democratic erosion.
Donald Trump would not be president if not for the Electoral College. Mitch McConnell would not be Senate Majority Leader if not for the malapportioned Senate. Neil Gorsuch and Brett Kavanaugh owe their jobs to the fact that the United States does not have free and fair elections. And they are now poised to use their offices to further entrench Republican rule.
A generation lost to democracy
Rep. Alexandria Ocasio-Cortez (D-NY) is, at age 29, the youngest member of Congress. As Mother Jones’ Tim Murphy notes, she’s lived through exactly one presidential election where Republicans won the nationwide popular vote.
She shares this distinction with every American under the age of 30. At 41, I’ve only been eligible to vote in one election, the election of 2004, where the American people voted to elect a Republican president. In 2022, assuming that Trump does not become the second Republican in AOC’s lifetime to win the popular vote, there will be young voters who’ve never lived through an election in which a Republican president won the popular vote.
And yet Republicans control the White House, the judiciary, and the Senate. As Crooked Media’s Brian Beutler notes, this disparity produced an entire generation of Americans who not only do not know what it is like to live in an America with democratic elections, and who, as a result, may never get to see the policies they support enacted.
Lots of no-longer-very-young liberals have watched Republicans win the popular vote only once, watched Trump win with a minority of votes while cheating, and are now told we're stuck with a GOP Judiciary for life and little hope ever enacting the policies our candidates run on.
— Brian Beutler (@brianbeutler) March 12, 2019
The fact that the United States does not choose its presidents through free and fair elections is exacerbated by the fact that we do not choose who controls the Senate through free and fair elections.
The state of California has 68 times as many people as the state of Wyoming. Indeed, the fourth largest city in California, San Francisco, has more than 300,000 more residents than the entire state of Wyoming. Yet Wyoming still gets two senators, just like California — effectively giving each person in Wyoming 68 times more representation than each Californian.
The Republican “majority” in the current Senate represents 15 million fewer people than the Democratic “minority.” The Republican “majority” in the Senate that confirmed Gorsuch and Kavanaugh represented almost 40 million fewer people than the Democratic “minority.” The Republican “majority” that refused to hold a confirmation hearing on Chief Judge Merrick Garland’s nomination to the Supreme Court represented 20 million fewer people than the Democratic “minority.”
Gorsuch and Kavanaugh are the only members of the Supreme Court in U.S. history who were nominated by the loser of the popular vote and confirmed by a bloc of senators who represent less than half of the nation.
America’s anti-democratic pathologies work in symbiosis. Sham elections beget anti-democratic judges, who render our elections even more of a sham.
The court’s role
Even before Kavanaugh’s arrival, the Supreme Court’s Republican majority cut deep into America’s democratic norms. Citizens United v. FEC released a torrent of money into our elections. Shelby County v. Holder gutted much of the Voting Rights Act. A more obscure case, Abbott v. Perez, held that white lawmakers enjoy such a strong presumption of racial innocence that it is virtually impossible to prove that they acted with racist intent when they wrote an election law that undercuts voters of color.
Chief Justice John Roberts, moreover, has fantasized about hobbling what remains of the Voting Rights Act since he was a young Reagan administration lawyer. And he’s widely considered the most moderate member of the Supreme Court’s current Republican majority.
Ordinarily, when the Supreme Court takes up monumental cases like Rucho and Benisek, my job is to lay out the legal issues in those cases and offer some insight into how key members of the Supreme Court are likely to analyze those issues. I suppose I could do that now.
I could throw around terms like “efficiency gap” or “viewpoint discrimination” or “cracking” and “packing.” I could note that Benisek involves a Democratic gerrymander in Maryland, and speculate that maybe that fact will help one of the court’s Republicans see that gerrymandering undermines core democratic values that go beyond party.
I could print damning quotes at the heart of the Rucho and Benisek cases. The co-chair of North Carolina’s redistricting committee, for example, said that his state’s congressional maps were drawn to ensure that North Carolina’s congressional delegation would have 10 Republicans and 3 Democrats because it wasn’t “possible to draw a map with 11 Republicans and 2 Democrats.”
But really, what’s the point? Chief Justice Roberts was open about his reluctance to strike down partisan gerrymanders when the issue was before him last term, and Roberts is, again, the least conservative of the court’s Republicans. Barring a miracle, Rucho and Benisek will build on cases like Citizens United, Shelby County, and Perez. Democracy does not fare well in the Roberts Court.
The insidiousness of rigged elections
As I think about the almost certain fate of Rucho and Benisek and the constitutional thumb on our electoral scales that made this fate all but inevitable, I’m reminded of an interview that former Georgia gubernatorial candidate Stacey Abrams (D) gave at the Brookings Institution last month.
Abrams knows something about voter suppression. Her opponent, then-Secretary of State Brian Kemp (R) served as Georgia’s top elections officer at the same time that he was running to become its chief executive. Kemp purged hundreds of thousands of voter registrations. Just days before the election, he launched a bizarre investigation against the state’s Democratic Party, claiming without evidence that Democrats “hacked” Georgia’s voter registration system.
And yet, at her Brookings event, Abrams warned that small-d democrats risk becoming complicit in voter suppression every time they shine a light on it. “Voter suppression isn’t simply saying you can’t vote,” the former candidate explained. “Voter suppression is both a physical activity, but it’s also a psychic effect. Telling people their votes won’t count, telling people that the system is rigged has the act of actually stopping people from trying to use it.”
Votes still matter in the United States. Thanks to the Electoral College, Trump has a baked-in advantage when he runs for reelection. But if just under 80,000 people had voted differently in Michigan, Pennsylvania, and Wisconsin, Hillary Clinton would be president right now.
Democrats face an uphill battle to regain the Senate, but close elections in North Carolina, Maine, Arizona, and Colorado could allow them to return Majority Leader Mitch McConnell (R-KY) to the minority. Whether they succeed is likely to determine whether they have any chance of confirming anyone to the Supreme Court.
But the stakes for each election are far higher than whether America will get a single-payer health system or whether billionaires will get another tax cut. With each election that Democrats lose, Republicans will entrench their control of the judiciary even further — and they will use that control to squeeze Democrats even harder in upcoming elections.
Democrats, meanwhile, cannot merely hope to hold onto power until America’s anti-democratic fever breaks. According to a University of Virginia analysis, just under half the country will live in only eight states by 2040 — so half the country will have just 16 senators while the other half has 84. About 70 percent of the country will live in only 16 states.
If Democrats remain popular in population centers while Republicans continue to over-perform in sparsely populated states, in other words, Republicans will soon gain a permanent supermajority in the United States Senate — and with it, permanent control of the Supreme Court and a permanent power to reinterpret the Constitution.
So Democrats have no choice but to confront the Constitution’s anti-democratic pathologies head on. If they allow Senate malapportionment to continue, they will cease to exist as a viable political party.