An entire new decade of government control hangs in the balance...
By Ernest A. Canning on 2/26/2018, 11:23am PT  

Don't get me wrong. The bold move by the Pennsylvania Supreme Court in adopting a Congressional map that, according to an analysis cited by the Wall Street Journal, could see PA Democrats picking up as many as six Congressional House seats now held by Republicans, bodes well for those of us who value small "d" democracy and the rule of law.

So does the recent mind-boggling 85-point swing from "red to blue" in Kentucky, where Democrat Linda Belcher, in a Special Election, defeated her Republican opponent by 36 points in a state House district that Donald Trump carried by 49 points in 2016.

There are multiple indices of a public revulsion in response to Republican overreach that is much greater than that displayed in 2008 when Democrats rode a "Blue Wave" to victories that placed them in control of the White House, the U.S. Senate and the House of Representatives.

Last year, polls revealed as little as 12% support amongst the American electorate for Republican efforts to repeal and replace Obamacare. Another poll revealed that only 24% of Americans supported the GOP tax cut measure. (Though more recent polling suggests it's growing in popularity.) This year, a Quinnipiac poll, taken in the wake of the massacre at a Parkland, Florida high school, suggests that 2/3 of Americans have finally lost their patience with NRA-funded Republicans and their feckless "thoughts and prayers".

These surveys suggest a likelihood that Democrats in 2018 can recapture a majority in the U.S. House and potentially even the U.S. Senate --- a result that is critical to fending off the threat to democracy, political and economic equality and the rule of law now posed by the Trump/GOP oligarchic/kleptocratic agenda.

But a number of recent court rulings on extreme partisan gerrymandering reveal that the 2020 election will ultimately be of far greater significance than 2018, and not simply because it will be a Presidential election year…

Decennial elections

Progressive must come to understand during the 2020 election cycle that which the mega-billionaire Koch brothers understood when they undertook to fund the "Tea Party" movement in 2010 --- the first year in which unlimited corporate campaign contributions had been unleashed as a result of the January 2010 Citizens United decision.

During decennial elections, state races (legislative offices and governorships) can have a more lasting political impact than a single Presidential election because they coincide with the decennial U.S. Census, as mandated by Article I, Section 2 of the U.S. Constitution. The Census triggers a decennial reapportionment of U.S. House and state legislative districts.

In a majority of states, one-party political control of the legislative and executive branches of state government carries with it the power to draw up state legislative and Congressional district maps. It is a prescription for partisan political opportunism that 13 states have now wisely avoided by placing the power to draw up new district maps exclusively in the hands of independent redistricting commissions.

Entrenchment

For the American Right, a decennial election offers an opportunity for entrenchment --- an anti-democracy means to rig the rules of the game so as to assure Republican control within a given state --- and the U.S. House along with it --- over the coming decade.

This form of extreme partisan gerrymandering conflicts with Article IV, Section 4 of the U.S. Constitution, which purports to guarantee that all states maintain a republican form of government. As the U.S. Supreme Court observed in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) --- a case which upheld the right of voters to amend a state constitution to assign the task of redistricting to an independent commission --- "the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around." To this, the U.S. District Court added, in their 191-page, January 2018 opinion in Common Cause v. Rucho: one of the principal concerns with respect to partisan gerrymandered entrenchment is "that it insulates legislators from the popular will and renders them unresponsive to portions of their constituencies."

If that sounds familiar, it should. We've been living through such an entrenchment for most of this decade, as highlighted by a swath of court cases that are still being played out, some eight years into our last reapportionment.

WISCONSIN: The facts, as described by the U.S. District Court majority in its 2-1 decision in Gill v. Whitford, powerfully illustrate the undemocratic impact of extreme gerrymandering.

"In 2010, for the first time in over forty years", the majority opinion states, "the voters of Wisconsin elected a Republican majority in the Assembly…the Senate, and a Republican Governor [Scott Walker]." Retaining expert assistance, the Badger State's Republican legislative leaders utilized "customized demographic data" to create statewide maps tied, unlawfully, to a severe partisan advantage.

In their July, 2015 complaint, the Gill plaintiffs alleged Wisconsin Republicans achieved extreme partisan advantage via two gerrymandering techniques: "cracking" --- "dividing a party's supporters among multiple districts so that they fall short of a majority in each one" --- and "packing" --- "concentrating one party's backers in a few districts that they win by overwhelming margins", in order to dilute the votes of Democrats statewide.

After a trial on the merits, the district court majority concluded that Republicans had deliberately designed a map "to secure the Republican Party's control of the state legislature for the decennial period" and that the Act achieved its intended purpose. That point was amply illustrated by subsequent electoral results. In 2012, for example, even though the Republican Party garnered only 48.6% of the vote, it won more than 60% of the seats in the Wisconsin Assembly. In 2016, a year when, according to the official count, Donald Trump narrowly defeated Hillary Clinton in Wisconsin by less than 1%, Republicans won nearly 65% of the available seats in the Wisconsin Assembly.

PENNSYLVANIA: In 2011, Pennsylvania's GOP Governor Tom Corbett signed into law a new Congressional Redistricting Act (the "2011 Plan"), that had been enacted by the Republican-controlled General Assembly.

On Jan. 22, 2018 the PA Supreme Court, in League of Women Voters v. Commonwealth of Pennsylvania, issued an order containing its determination that the 2011 Plan was an extreme partisan gerrymander that violated Pennsylvania's state constitution. Specifically, the court spelled out that, in 2011, the Republican-controlled General Assembly had drawn-up a redistricting plan designed "to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage."

The success of that undemocratic maneuver is reflected by the results of the 2016 election. In a state where registered Democrats outnumber registered Republicans by nearly 1 million voters, the GOP won more than 72% (13) of Pennsylvania's 18 seats in the U.S. House of Representatives. In fact, the party held that 13 to 5 majority in their U.S. House delegation for all three elections since 2011 when the new map was initially adopted.

NORTH CAROLINA: The Tar Heel State offers perhaps the best example of why the results of a decennial election for the state legislature exceeds, in importance, the results of a decennial election for Congressional seats.

NC has 13 Congressional seats. In 2010, on the basis of the 2001 map, NC voters elected seven (7) Democrats and six (6) Republicans to represent the state in the U.S. House of Representatives.

During that same 2010 election, the District Court observed in Common Cause v. Rucho, "for the first time in more than a century, North Carolina voters elected Republican majorities in both the North Carolina Senate and the North Carolina House of Representatives."

The following year, according to the court, the Tar Heel State's "Republican leadership", which doesn't even dispute that its intent was to maximize partisan advantage, set out to work on the GOP's "Redistrict Majority Project" ("REDMAP"), which was designed to "solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade."

They did so even though NC's Governor at that time, Bev Purdue, was a Democrat. There was nothing Purdue could do to stop them because she lacked the power to veto the state Republican's 2011 Plan.

The 2011 Plan had an immediate and dramatic impact. "In 2012," the District Court noted, "Republican candidates received 49% of the vote but won a supermajority of the Congressional seats. In 2014, Republicans received 54% of the vote, yet won 10 out of 13 Congressional seats."

In a separate case, in 2016, a three-judge federal court panel found that two of the state's REDMAP districts were unconstitutional racial gerrymanders. It enjoined their use. The still GOP-controlled NC General Assembly retained the same expert who had assisted them with REDMAP to draw up a remedial plan that would strive to attain the same partisan advantage as REDMAP did in 2011.

Common Cause then filed its complaint challenging the new 2016 plan, contending that it was an unconstitutional partisan gerrymander (Common Cause v. Rucho). By way of a January 9, 2018, 2 to 1 decision, the District Court agreed.

VIRGINIA: Last November, in its off year election, the strength of extreme partisan gerrymandering in the commonwealth was put to the test by the emerging "Blue Wave". The results included a 9-point statewide victory for Democratic Governor Ralph Northam. Yet, despite receiving some 1.5 million fewer votes than Democrats, the Republicans narrowly retained control of the VA House of Representatives, courtesy of partisan gerrymandering, a controversial recount and a coin flip.

Legal uncertainty

Although some PA Republicans have seen fit to file a U.S. Supreme Court Emergency Application for a Stay of the PA Supreme Court's adoption of its own new map to govern the 2018 Congressional Election, I concur with U.C. Irvine Law Professor Rick Hasen's assessment that the GOP challenge at SCOTUS has little or no chance of success.

Other PA Republican legislators filed a new lawsuit in federal court seeking to have the PA Supreme Court decision stayed and overturned by a 3-judge U.S. District Court panel. On Feb. 23, the District Court denied a Republican request for the issuance of a temporary restraining order that would prevent the use of the new map in the state's upcoming mid-term elections. The court scheduled an expedited hearing on March 8, during which the panel will hear argument on the Republican's motion for a preliminary injunction and for a defense motion to dismiss.

I also concur with Hasen's conclusion that the chances of Republicans succeeding with this collateral lawsuit are extraordinarily slim.

The PA Supreme Court's partisan gerrymander rulings were exclusively based on PA's constitution. State supreme courts are exclusively empowered to interpret their own respective state constitutions. Federal courts may only intervene when a state supreme court ruling violates the U.S. Constitution or delves into an issue that is preempted by federal law.

The Republicans' core argument to SCOTUS --- that under the Elections Clause of the U.S. Constitution redistricting can only be performed by a state legislature, not its judicial branch --- is severely undercut by the U.S. Supreme Court decision in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), upholding the right of the people of a state to assign the task to an independent redistricting commission via a ballot measure that amended Arizona's constitution.

Moreover, as University of Florida redistricting expert Brian Amos told Brad Friedman on a recent BradCast: "When the state fails to pass a map, then somebody has to step in, and that's always been the courts."

Indeed, the PA Supreme Court ruled that it not only had the authority under the state's constitution to draw-up a new map but also had an obligation to do so. "The fundamental rights guaranteed by our organic charter 'cannot be infringed, even momentarily'," the Court explained citing an earlier decision.

This is the PA Republicans' second emergency stay request relating to the PA Supreme Court's decisions. The first request was made after the PA Supreme Court ruled that the 2011 Plan was unconstitutional and gave the PA legislature a deadline to draw up a new, fair map. Justice Samuel Alito summarily denied that request. The PA Supreme Court adopted its own map, drawn by its advisor, Stanford Law Professor Nathaniel Persily, only after the Republican state legislature failed to draw up a map agreed to by the Democratic Governor, as directed by the previous decision.

In the Wisconsin Gill case, the federal District Court issued a January, 2017 opinion and order which denied the plaintiff's request that the court draft a new map, and, instead, gave the Republican-controlled Wisconsin legislature and Republican Gov. Scott Walker until Nov. 1, 2017 to devise and approve a new map.

State Republicans evaded the necessity of complying when, in June of 2017, by way of a 5-4 decision, the U.S. Supreme Court granted a stay. In October, last year, the Court finally heard oral arguments in the case. The Court has yet to render a decision. It remains an open question as to whether Justice Anthony Kennedy will join the four liberal Justices in that case, who are expected to vote to uphold the District Court's determination that WI's partisan gerrymandering violates the U.S. Constitution.

The prospects for a favorable ruling, however, may have actually been enhanced by the fact that on Dec. 8, 2017 the U.S. Supreme Court issued an order granting a petition for a writ of certiorari in Benisek v. Lamone, a case in which Republican voters from a single Maryland District had unsuccessfully sought a U.S. District Court preliminary injunction because they contend that their district was the product of a partisan Democratic gerrymander that violated their First Amendment rights of association.

Consistent with principles of small "d" democracy, groups filing amicus (friend of the court) briefs in support of the Republican petitioners in Benisek include the Brennan Center of Justice, Common Cause, and bi-partisan current and former members of Congress.

Either way, while the Court's opinion is expected by June, even a favorable ruling in Gill would almost certainly be too late to draw a new map before this year's primary elections in Wisconsin, Maryland, and North Carolina. Indeed, in recognition of the exigencies, in its Jan. 9 decision in Common Cause v. Rucho, the District Court set a hard and fast deadline for North Carolina to file a remedial plan with the court no later than Jan. 29. That deadline was erased when, on Jan. 18, over the dissents of Justices Ginsberg and Sotomayor, the Supreme Court granted the NC Republicans' application for a stay.

If the maps can't be changed in time for the primaries, the winners of those primaries will have to square off in the same districts in November.

Overcoming additional obstacles

Republican efforts to secure entrenchment are by no means confined to extreme partisan gerrymandering. As civil rights litigator Judith Brown Dianis observed when she testified before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Right, in 2011 the nation found itself in the midst of the most sustained and well-coordinated effort at "voter suppression" since the Jim Crow era. It was, and is, an effort to make "it harder to register to vote, harder to vote, harder to cast a vote, and harder to have a vote counted."

As Brad Friedman succinctly observed, "Republicans cheat to win. It's what they do."

North Carolina Republicans are amongst the nation's worst offenders. After the U.S. Supreme Court gutted the pre-clearance mandate of Section 5 of the Voting Rights Act, NC Republicans enacted a massive voter suppression law --- described as the worst in the nation since the Jim Crow era; a law that would be struck down as unconstitutional by the U.S. 4th Circuit Court of Appeal after determining that Republicans used voter suppression techniques to "target African-Americans with almost surgical precision." The U.S. Supreme Court summarily denied North Carolina's former Republican Governor Pat McCrory's Hail Mary effort to prevent a free and fair 2016 election when it denied McCrory's request for an emergency stay. McCrory was then defeated by Democrat Roy Cooper.

In Wisconsin, there is a significant, but perhaps unresolved question as to whether the official "wins" recorded by President Donald Trump and Senator Ron Johnson were occasioned by Wisconsin's suppressive photo ID voting restriction --- a law that narrowly survived a constitutional challenge via a 7 to 7 split by a U.S. 7th Circuit Court of Appeal. Those victories may have also been the product of an inaccurate machine tally that, in the case of the Presidential election, was the product of a refusal to abide by Green Party Presidential candidate Jill Stein's request for a hand-count of the state's paper ballots.

As revealed by The BRAD BLOG's special coverage of the Wisconsin 2011 Supreme Court Election Debacle, Badger State obstacles to publicly overseen hand-counts of paper ballots amount to a classic instance in which, as asserted by Dianis, Republicans have made it "harder to have a vote counted."

If Republican entrenchment is to be defeated in states like Wisconsin, North Carolina and elsewhere, it will require a massive "Blue Wave" akin to that which was exhibited by voters in Kentucky's 85-point swing Special Election last week. And, unless the Supreme Court decides in Gill that extreme partisan gerrymandering is unconstitutional, it will be vital that such a "Blue Wave" be sustained at least through the 2020 election. Otherwise, we could see 10 more years of Republican partisan gerrymanders across the country.

* * *
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing