The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S. House of Representatives.
The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S. House of Representatives.
In 2012, Democratic House candidates received nearly 1.4 million more votes than Republicans. Yet Republican John Boehner, and not Democrat Nancy Pelosi, is Speaker of the House due to the way congressional districts are drawn in several states. Gerrymandering by Republican state lawmakers played a significant role in allowing Republicans to keep control of the House. Indeed, a Republican organization bragged after the 2012 election that gerrymandering “paved the way to Republicans retaining a U.S. House majority in 2012.”
Yet, despite the anti-democratic effects of gerrymandering and other quirks of America’s legislative redistricting process — Republicans currently enjoy a 233-199 seat advantage in the House — the 2012 House elections could have gone even worse for Democrats if it wasn’t for an Arizona redistricting commission which draws that state’s congressional maps with input from both political parties. Under the maps drawn by that commission, Democrats currently control 5 of Arizona’s 9 congressional seats.
Arizona Republicans are not fond of this commission, which was created by a ballot initiative in 2000. In 2011, Gov. Jan Brewer (R-AZ) called a special session of the GOP-controlled state legislature to impeach commission chair Collen Mathis. Though the state senate voted to remove Mathis from office, the Arizona Supreme Court reinstated her. Under Arizona law, the commission chair may be removed for “substantial neglect of duty, gross misconduct in office or inability to discharge the duties of office,” but the state supreme court concluded that Brewer had not demonstrated that Mathis was guilty of any of these things.
On Thursday, the U.S. Supreme Court announced that it would consider another round of litigation brought by Arizona’s GOP-controlled legislature. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the state legislature asks the Supreme Court to effectively return the power to draw maps to state lawmakers.
The premise of this lawsuit is that the Constitution provides that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof,” and the Arizona lawmakers argue that the word “Legislature” can only mean the body of lawmakers who are elected by the people of Arizona to make laws — not an independent commission separate from the state house and state senate. The problem with this lawsuit, however, is that it runs headlong into Supreme Court precedents that a lower court relied upon in order to dismiss this lawsuit.
In the 1916 case Ohio ex. rel. Davis v. Hildebrant, the Supreme Court considered a decision by the voters of Ohio to essentially veto the congressional maps drawn by state lawmakers. Under Ohio’s Constitution, “the legislative power was expressly declared to be vested not only in the Senate and House of Representatives of the State, constituting the General Assembly, but in the people in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.” Thus, while the General Assembly had the power to make laws, including laws drawing legislative maps, the people of Ohio can overrule their elected representatives through a referendum.
In Hildebrant, the Supreme Court rejected the argument that the power to draw legislative lines must be vested exclusively in the state house and state senate. Indeed, the Court’s opinion suggests that the word “Legislature” can refer to the people of the state as a whole when the state’s constitution gives them the power to make or repeal laws through initiative or referendum. “[T]he referendum constituted a part of the state constitution and laws,” the Court explained, “and was contained within the legislative power.”
Sixteen years later, in a case called Smiley v. Holm, the Court explained that the word “Legislature” should not be read so hyper-literally as to prevent a governor from vetoing a state’s redistricting plan. An executive veto, the Court held, “is a matter of state polity” that the Constitution “neither requires nor excludes.”
More recently, in 2012, a federal appeals court explained that the word “Legislature,” as it is used in the Constitution, “encompasses the entire lawmaking function of the state.” So when Arizona gave its people the power to enact ballot initiatives, it gave them the power to enact ballot initiatives that create a redistricting commission.
Nevertheless, there are some warning signs that the Supreme Court’s right flank wants to upset this balance. In Bush v. Gore — yes, THAT Bush v. Gore — Justices Antonin Scalia and Clarence Thomas joined an opinion arguing that the Constitution prohibited Florida’s state courts from reaching certain interpretations of the state’s election law. This opinion relied on a constitutional provision providing that presidential electors must be selected “as the Legislature” of a state directs. Thus, it argued, the judicial branch of a state could not act in a way that these conservative justices viewed as counter to the legislature’s intent.
Should the justices apply a similar reasoning in the Arizona case, then the state’s redistricting commission is in trouble. It doesn’t take much imagination to figure out what will happen if that occurs. Republicans controlled the most recent redistricting process in six key states that President Obama won in 2012. This was the result of that GOP control:
Should the Supreme Court strike down Arizona’s redistricting commission, it is likely that Arizona’s congressional districts will soon look much like Ohio’s, Virginia’s and Pennsylvania’s.
Source: Ian Millhiser for ThinkProgress
Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.
Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:
Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.
[C]omplaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf of state and local lawmakers, national medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”
The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.
In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.
Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned backthe largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’”
Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Actrequired each majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013 decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.
When What You Say On Facebook Lands You In Jail
It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”
Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.
The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.
[W]hen the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars sayis a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.
“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.
Religious Liberty in Prison
There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit calledHolt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.
But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.
[T]he fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith.
In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.
Israel and Palestine
Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli … sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”
Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff inZivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.
The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch … assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department.” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.
When Cops Stop You By Mistake
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” … The same rule may not apply to cops enforcing the law, however.
The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.
Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.
As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”
As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?
What Is Yet To Come
In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify justhow far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.
There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.
There is also an unusually high chance that the justices could take a major abortion case this term.
Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.
Florida’s congressional districts are some of the most GOP-friendly in the country. Although President Obama won a narrow victory over Mitt Romney in Florida during the 2012 presidential election, Republicans control 17 of the state’s 27 congressional districts. That means that, even though Obama won a majority of the votes cast by Floridians in 2012, Romney’s Republican Party controls nearly two-thirds of Florida’s U.S. House delegation.
On Thursday, a Florida trial court held that the congressional maps that produced this lopsided result violate the state’s constitution. Under an amendment added to the Florida Constitution in 2010, “[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent.” The amendment also provides protection against certain kinds of racial gerrymanders, and it establishes a preference for districts that are compact and “utilize existing political and geographical boundaries.”
Judge Terry P. Lewis’s opinion reaches several significant conclusions. He strikes down two congressional districts — Districts 5 & 10 — as violations of the state constitution. He also holds that “[i]f one or more districts do not meet constitutional muster, then the entire [redistricting] act is unconstitutional.” Thus, if his decision is ultimately upheld, the legislature will need to consider an entirely new map — although Judge Lewis adds that this holding does not mean that “portions of the map not affected by those individual districts found to be improperly drawn would need to be changed in a redrawn map.” He also relies upon a prior Florida Supreme Court decision holding that districts typically “should not have an unusual shape, a bizarre design, or an unnecessary appendage” and that districts containing “finger-like extensions, narrow and bizarrely shaped tentacles, and hook like shapes … are constitutionally suspect and often indicative of racial and partisan gerrymandering.”
Which brings us to the shape of the districts at issue in this case. Here is the relevant portion of Florida’s congressional map:
CREDIT: FLORIDA DIVISION OF ELECTIONS
That purple, worm-like thing that starts near the northeast corner of the state and then twists almost all the way down to its midpoint, that’s District 5. District 10 is the one directly below District 5. Though more compact in shape than a purple worm, District 10 has what Judge Lewis describes as “an odd-shaped appendage which wraps under and around District 5, running between District 5 and 9.” As Lewis notes, Districts 5, 7, 9 and 10 are shaped the way they are in part because a Republican political consultant suggested that they be redrawn in a way that transformed them “from being four Democratic performing or leaning seats in early maps … to two Democratic and two Republican performing seats in the enacted map.” So Republicans likely picked up two congressional seats because of the odd design of these districts.
Indeed, Lewis discusses significant evidence that Republican lawmakers colluded with Republican operatives regarding the maps. Early in the process, Republican legislative leaders met with a group of GOP political operatives and a top Republican lawyer to discuss redistricting. The deputy chief of staff to Florida’s then-house speaker shared draft maps with a particular Republican consultant at least 24 times. In some cases, he provided this GOP consultant “with draft maps that were never released to the public.”
Yet, while Judge Lewis’s opinion reaches some damning conclusions about the current congressional maps, Thursday’s decision is far from a total victory for the plaintiffs in this case. Those plaintiffs challenged nine of Florida’s congressional districts, but Lewis only struck down two.
Nevertheless, his opinion is a significant victory over one of the most gerrymandered maps in the nation, and it also an important proof of concept. The United States Supreme Court, or, at least, its conservative members, have thus far refused to allow federal courts to consider partisan redistrict cases because they claim they are unable to identify a “manageable standard” that judges can use to decide these cases. Yet Judge Lewis was able to uncover and apply a standard he could use to judge Florida’s maps. His decision on Thursday casts a cloud of doubt over the conservative justices’ decisions regarding partisan gerrymandering.
Should the Supreme Court permit the federal judiciary to examine unconstitutional partisan gerrymanders, it is likely that Florida will not be the only state whose maps will fail judicial scrutiny. Florida is one of several states with maps that are heavily gerrymandered to benefit Republicans:
In his 2010 majority opinion in Citizens United v. FEC, the case that opened the floodgates to limitless independent election spending by corporations and the wealthy, Justice Anthony Kennedy wrote that independent spending in elections “[does] not give rise to corruption or the appearance of corruption.”
What has happened in the state of North Carolina since Justice Kennedy wrote those words illustrates just how misguided he was.
In the years since Citizens United, North Carolina has provided a clear example of what happens when a small number of corporate interests, allied with a far-right base, are allowed unbridled influence over elections. Since 2010, one North Carolina multimillionaire has marshaled the funds for a Republican takeover of the statehouse and governor’s mansion, leading to a slew of far-right legislation cutting benefits for working people, lowering teacher salaries, denying Medicaid coverage to half a million low-income people, defunding public education, eliminating protections against racial discrimination in the criminal justice system, gutting gun violence prevention efforts, attacking religious freedom and threatening women’s reproductive rights – all while cutting taxes for corporations and the wealthy.
This effort has gone hand in hand with a concerted attack on the very mechanisms of democracy in North Carolina. Since coming into power, Republicans in North Carolina have launched one of the country’s broadest attacks on voting rights, decimated the state’s campaign finance disclosure laws and contribution limits, heavily gerrymandered congressional districts, and politicized judicial elections.
These attacks strike at the foundation of democracy – the guarantee of one person, one vote – and serve as a cynical insurance policy for an agenda that serves the interests of those few who can afford influence in the new climate of pay-to-play elections.
A series of Supreme Court decisions deregulating money in politics, combined with the political marriage of the Tea Party and the corporate right, have created a climate where moneyed interests can hold sway over how a state holds its elections, who wins those elections and what those elected officials do once in office. North Carolina provides a case study of what can happen when the financial interests of a wealthy elite are allowed to drown out the voices of ordinary voters.
Buying North Carolina
North Carolina’s post-Citizens United Republican takeover has been largely financed by one man: retail magnate Arthur (Art) Pope.
When the Supreme Court handed down Citizens United in January 2010, states went to work to comply with the Court’s order vacating all federal and state bans on independent corporate expenditures in elections. In July of that year, North Carolina’s legislature passed the “Citizens United Response” bill, which was enacted just before the 2010 elections and opened the door to corporate election spending. Meanwhile, according to Bob Hall, Executive Director of Democracy North Carolina, Citizens United led to a cultural shift that “provided a green light to financial interests to feel blessed by the Supreme Court to spend in elections.” The result was that outside spending in North Carolina’s elections increased by 400 percent from 2006 to 2010. And nobody took greater advantage of the new rules than Art Pope.
The New Yorker’s Jane Mayer reported in 2011 that a few months after Citizens United, Pope received a visit from Republican strategist Ed Gillespie, who was formulating a plan to strategically take over statehouses prior to congressional redistricting. Pope contributed some money directly to candidates, but his real impact came from the establishment of a handful of outside groups that were newly freed from outside spending limits. These groups, like the 501c(4) organization “Civitas Action,” spent $2.2 million over 22 state legislative races, 18 of which they won. Three-quarters of all outside money in state races that year came from groups linked to Pope. In the post-Citizens United election landscape, one man almost single-handedly succeeded in flipping party control of the state legislature.
Mayer documents the many misleading attacks that Pope’s groups used to unseat moderate Democrats in the state legislature. One Democrat who narrowly lost his seat after a Pope-funded onslaught of attack ads said, “I don’t feel like I was defeated by the person I was running against. I was defeated by Art Pope and his cronies, who bought themselves a legislature.”
In 2012, Pope and his cronies doubled down. That year, as documented by the Institute for Southern Studies, 70 percent of the $14.5 million spent by outside groups on state-level races in North Carolina went to benefit Republicans. $8.1 million of that was spent to elect Republican governor Pat McCrory; more than half of that came from the national Republican Governors Association, which itself is partly financed by Pope corporations.
In two years, thanks to an unprecedented flood of outside spending by moneyed interests, Republicans took control of both houses of North Carolina’s legislature and its governor’s mansion. And the funders of the effort began to get what they paid for.
Tax Cuts for the Wealthy, Salary Cuts for Teachers
A few weeks before the newly-elected Gov. McCrory was to take office, he announced a notable appointment to his cabinet: Art Pope.
McCrory named Pope his head of budget policy, charged with writing the governor’s budget proposal. McCrory and Pope, with the cooperation of the newly right-wing legislature, went about cutting the safety net for struggling North Carolinians while heaping tax cuts on the wealthy and corporations. McCrory signed laws cutting off unemployment benefits for tens of thousands of people in the state, in what US Representative David Price (D-NC) called “one of the most extreme and damaging acts I have seen in my time in government.” He cut pay for public school teachers. He refused expanded federal Medicaid funds under the Affordable Care Act, denying half a million low-income people access to health care coverage.
But there wasn’t bad news for everyone in North Carolina. On July 23, 2013 McCrory signed a new tax plan that dramatically lowered corporate income taxes and created a flat tax, which raised taxes on some families and small businesses while heaping the bulk of its benefits on the state’s wealthiest families. And, in one of his first orders of business upon taking office, McCrory bestowed salary hikes on members of his own cabinet.
An Extreme Agenda
While Pope and his fellow funders of North Carolina’s Republican takeover may have been mostly interested in creating fiscal policy that would benefit their own bank accounts, there was a powerful corollary to their efforts. In a solidly purple state that wavers between parties in presidential elections, Pope helped create one of the most far-right state legislatures in the country. And, thanks to Pope and his cronies’ efforts to elect McCrory, the legislature’s forays into Tea Party extremism go largely unchecked.
Since the 2010 Republican takeover of the North Carolina legislature, a number of extreme social policies have become law.
- In 2009, the North Carolina legislature, in an effort to combat persistent racial disparities in death penalty sentencing, passed a bill that would commute a death penalty sentence to life imprisonment if the defendant could prove that race played a significant role in his sentencing. The bill was featured in Willie Horton-style racist attack ads against at least one state legislator unseated in 2010. In 2013, the legislature repealed the law, and Gov. McCrory added his signature on Juneteenth.
- In August of this year, North Carolina became the seventh state to pass a bill aimed at the imaginary threat of Sharia law in the U.S. justice system – a cover for blatant anti-Muslim fearmongering.
- In July, the legislature passed and McCrory signed a law allowing people to carry concealed weapons into playgrounds, parks, some places on college campuses….and bars.
- Finally, in July, Gov. McCrory signed into law one of the most restrictive anti-choice laws in the country – despite a campaign promise that he would not back any new laws restricting abortion rights. The provisions, which were hidden in a motorcycle safety bill, impose unnecessary “TRAP” regulations on abortion providers in the state, threating to close most of the state’s 16 abortion providers.
The right-wing takeover of North Carolina has come with an insurance policy: a slew of laws taking power away from individual voters and putting it in the hands of campaign donors.
In July, the North Carolina legislature passed what election law expert Rick Hasen called “the most sweeping anti-voter law in at least decades.” The new law requires voters to present one of a narrow set of IDs in order to cast a ballot – IDs that 318,000 registered voters in the state don’t have. It cuts the number of early voting days and eliminates same-day voter registration during early voting, an option disproportionately used by African American voters. The bill invalidates ballots accidentally cast in the wrong precinct. It attacks the voting rights of young people, by eliminating pre-registration for 16- and 17-year olds, and of the elderly and disabled, by making it more difficult to establish satellite polling sites.
But the law doesn’t just make it harder for ordinary North Carolinians to vote. It also makes it much easier for moneyed interests to influence elections. The bill increased campaign contribution limits, repealed three public financing programs and – good news for Art Pope – weakened transparency requirements for outside spenders in elections.
Pope’s influence was particularly visible in the repeal of the popular program providing public financing for judicial elections. Until this year, North Carolina had for a decade maintained a nationally renowned clean elections program for judges, a voluntary public financing fund used by 80 percent of judicial candidates across the political spectrum. In June, after Republicans in the state legislature took aim at the program, a Republican legislator came up with a compromise to save the clean judicial elections. But Popesingle-handedly convinced the legislator to drop his compromise proposal, and the pioneering public financing program died, leaving judicial elections vulnerable to partisan spending and the appearance of corruption.
Finally, Ed Gillespie’s original goal was achieved to great effect. In 2011, the newly elected GOP-dominated state legislature redrew the state’s congressional map to cram African-Americans and other largely Democratic constituencies into a small number of districts and increase the number of Republicans elected to Congress. It worked. In 2012, 50.6 percent of North Carolina voters cast their ballots for Democratic congressional candidates. But thanks to the legislature’s extreme partisan gerrymandering, the state’s U.S. House delegation ended up being 69 percent Republican — nine Republicans and only four Democrats.
Citizens Fight Back
North Carolina citizens, recognizing that their democracy has been ripped out of their hands, are fighting back. Since April, civil rights leaders have led weekly “Moral Mondays,” protests of thousands of people in front of the statehouse. So far, more than 900 people have been arrested in the protests, which organizers plan to continue in as the next election approaches.
Virginia Democrats are raising hell after Republicans unexpectedly rammed a controversial redistricting bill through the state Senate on Monday, capitalizing on the absence of a Democratic lawmaker and civil rights leader who was in Washington for President Barack Obama’s second inauguration.
The Virginia Senate is currently split evenly between Democrats and Republicans, each occupying 20 seats in the legislative body. Democratic State Sen. Harry Marsh’s absence paved the way for passage of the previously unannounced legislation by a count of 20 votes to 19.
“The new redistricting map revises the districts created under the 2011 map,” writes Talking Points Memo’s Evan McMorris-Santoro, “and would take effect before the next state Senate elections in Virginia and would redraw district lines to maximize the number of safe GOP seats.”
Under the Republican plan, GOP lawmakers in several states that supported the Democratic candidate for president in recent elections would stop awarding all of their electoral votes to the winner of the state as a whole, and instead award most of them one-by-one to the winners of individual congressional districts. In part because of widespread Republican gerrymandering, if Republicans had implemented this election rigging plan in six key states where they currently control the state government — Florida, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin — Mitt Romney would have won the Electoral College despite losing the popular vote by nearly four points.
Efforts are already underway in several of these six key states to enact this election rigging plan and all but ensure that the next President of the United States is a Republican — regardless of how the American people cast their votes in 2016. Seven Pennsylvania state house members introduced a bill implementing the GOP election rigging plan this week, and the plan already enjoys the support of Pennsylvania Gov. Tom Corbett (R) and state Senate Majority Leader Dominic Pileggi (R). A bill backed by Virginia State Senator Charles “Bill” Carrico Sr. (R) would implement the election rigging plan in Virginia. And Wisconsin Republican state Rep. Dan LeMahieu is behind an election rigging bill in his state. Ohio Secretary of State Jon Husted (R) expressed support for the Republican election rigging plan, but he later backed off that support following significant criticism.
Michigan is a blue state. It supported the Democratic candidate for president in every single election for the last two decades. President Obama won the state by nearly 10 points last November. And yet, if the Republican election-rigging plan had been in effect last year, Romney would have likely won a majority of the state’s electoral votes.
Fresh from claiming the GOP’s 2012 run was “a great campaign—a nine-month campaign”; that only went awry at the end, Republican National Committee chairman Reince Priebus now wants to rig the Electoral College so that when Republicans lose they still might “win.”
Specifically, Priebus is urging Republican governors and legislators to take up what was once a fringe scheme to change the rule for distribution of Electoral College votes. Under the Priebus plan, electoral votes from battleground states such as Florida, Ohio, Pennsylvania, Virginia, Wisconsin and other states that now regularly back Democrats for president would be allocated not to the statewide winner but to the winners of individual congressional districts.
Because of gerrymandering by Republican governors and legislators, and the concentration of Democratic votes in urban areas and college towns, divvying up Electoral College votes based on congressional district wins would yield significantly better results for the GOP. In Wisconsin, where Democrat Barack Obama won in 2012 by a wider margin than he did nationally, the president would only have gotten half the electoral votes. In Pennsylvania, where Obama won easily, he would not have gotten the twenty electoral votes that he did; instead, under the Priebus plan, it would have been eight for Republican Mitt Romney, twelve for Barack Obama.
Nationwide, Obama won a sweeping popular-vote victory—with an almost 5-million ballot margin that made him the first president since Dwight Eisenhower to take more than 51 percent of the vote in two elections. That translated to a very comfortable 322-206 win in the Electoral College.
How would the 2012 results have changed if a Priebus plan had been in place? According to an analysis byFair Vote-The Center for Voting and Democracy, the results would have been a dramatically closer and might even have yielded a Romney win.
Under the most commonly proposed district plan (the statewide winner gets two votes with the rest divided by congressional district) Obama would have secured the narrowest possible win: 270-268. Under more aggressive plans (including one that awards electoral votes by district and then gives the two statewide votes to the candidate who won the most districts), Romney would have won 280-258.
“If Republicans in 2011 had abused their monopoly control of state government in several key swing states and passed new laws for allocating electoral votes, the exact same votes cast in the exact same way in the 2012 election would have converted Barack Obama’s advantage of nearly five million popular votes and 126 electoral votes into a resounding Electoral College defeat,” explains FairVote’s Rob Richie.
The RNC chair is encouraging Republican governors and legislators—who, thanks to the “Republican wave” election of 2010, still control many battleground states that backed Obama and the Democrats in 2012—to game the system.
“I think it’s something that a lot of states that have been consistently blue [Democratic in presidential politics] that are fully controlled red [in the statehouse] ought to be considering,” Priebus says with regard to the schemes for distributing electoral votes by district rather than the traditional awarding of the votes of each state (except Nebraska and Maine, which have historically used narrowly defined district plans) to the winner.
Already, there are moves afoot in a number of battleground states to “fix” the rules to favor the Republicans in 2016, just as they have already fixed the district lines for electing members of the House. Thanks to gerrymandering and the concentration of Democratic votes, Republicans were able to lose the overall nationwide vote for US House seats by 1.4 million votes and still take control of the chamber—thus giving the United States the divided government that voters have rejected.
Thanks To Gerrymandering, Democrats Would Need To Win The Popular Vote By Over 7 Percent To Take Back The House
As of this writing, every single state except Hawai’i has finalized its vote totals for the 2012 House elections, and Democrats currently lead Republicans by 1,362,351 votes in the overall popular vote total. Democratic House candidates earned 49.15 percent of the popular vote, while Republicans earned only 48.03 percent — meaning that the American people preferred a unified Democratic Congress over the divided Congress it actually got by more than a full percentage point. Nevertheless, thanks largely to partisan gerrymandering, Republicans have a solid House majority in the incoming 113th Congress.
A deeper dive into the vote totals reveals just how firmly gerrymandering entrenched Republican control of the House. If all House members are ranked in order from the Republican members who won by the widest margin down to the Democratic members who won by the widest margins, the 218th member on this list is Congressman-elect Robert Pittenger (R-NC). Thus, Pittenger was the “turning point” member of the incoming House. If every Republican who performed as well or worse than Pittenger had lost their race, Democrats would hold a one vote majority in the incoming House.
Pittenger won his race by more than six percentage points — 51.78 percent to 45.65 percent.
The upshot of this is that if Democrats across the country had performed six percentage points better than they actually did last November, they still would have barely missed capturing a majority in the House of Representatives. In order to take control of the House, Democrats would have needed to win the 2012 election by 7.25 percentage points. That’s significantly more than the Republican margin of victory in the 2010 GOP wave election (6.6 percent), and only slightly less than the margin of victory in the 2006 Democratic wave election (7.9 percent). If Democrats had won in 2012 by the same commanding 7.9 percent margin they achieved in 2006, they would still only have a bare 220-215 seat majority in the incoming House, assuming that these additional votes were distributed evenly throughout the country. That’s how powerful the GOP’s gerrymandered maps are; Democrats can win a Congressional election by nearly 8 points and still barely capture the House.
Partisan gerrymanders, like the one that now all but locks the GOP majority in place, have been the subject of repeated court challenges. America can thank the five conservative justices on the Supreme Court for allowing these gerrymanders to continue.
Virginia State Senator Charles “Bill” Carrico Sr. (R) has become the latest swing state-Republican to propose a scheme to rig presidential elections for future Republican candidates. Blue Virginia reportshis proposed SB 723 would award the state’s electors based on which candidate gets the majority of votes in each gerrymandered Congressional district — rather than based on who gets the most votes statewide.
The Carrico bill would award one of Virginia’s 13 electoral votes to the presidential candidate who gets the most votes in each of the Commonwealth’s 11 Congressional Districts. The remaining two electors would go to the candidate who won the majority of Congressional Districts. With aRepublican-controlled redistricting passed earlier this year, Virginia Democrats were heavily packed into three districts. Under these maps, Obama won Virginia by almost a 4 point margin, yet he carried just four Virginia Congressional Districts. Were Carrico’s scheme in place, Mitt Romney would have received seven of Virginia’s 11 electoral votes despite receiving just 47.28% of the vote statewide.
Had the Carrico plan been instituted for the 2012 elections in Florida, Michigan, Ohio, Virginia, and Wisconsin, it is quite likely Mitt Romney would be the president-elect despite President Obama’s 51-47 majority.
A key pillar of American civil rights law is now in danger of being nullified by the Supreme Court.
Shelby County, Alabama, is seeking to have Section 5 of the Voting Rights Act, the law that first guaranteed the right of blacks in the South to vote, declared unconstitutional. Section 5 forces areas of the country with a history of discrimination—mostly, but not entirely in the South—to ask the Department of Justice for its approval before making any changes to election rules. The DOJ is then supposed to ensure any changes protect Americans’ voting rights. The law has a provision allowing jurisdictions to “bail out,” but conservatives have repeatedly challeged the law as unconstitutional federal overreach that is no longer necessary because America has transcended its history of racial discrimination. The Supreme Court announced Friday that it would take up the case.
The last time conservatives challenged Section 5, in 2009, the Supreme Court handed down a very narrow 8-1 ruling (Clarence Thomas was the only dissenter) that did not declare the law unconstitutional.
The fact that the court is taking up a Section 5 case again so soon suggests strongly that the intent is to strike down part or all of the Voting Rights Act.
Although Section 5 survived in 2009, conservative justices appeared to believe that the law was discriminatory—against Southern white people. “Is it your position that today Southerners are more likely to discriminate than Northerners?” Chief Justice John Roberts demanded of the attorney defending the Voting Rights Act at the time. Despite the 8-1 vote, the 2009 decision was widely seen as leaving Section 5 hanging by a thread. The justices hinted very strongly that Congress, which had just reauthorized the Voting Rights Act in its entirety in 2006, should change the law soon or risk it being declared unconstitutional next time around.
Now it looks like the conservatives on the court will get their chance. A cursory review of recent Republican shenanigans with voting rules should put the notion that the VRA is obsolete entirely to bed. With voting growing more racially polarized, the temptations to alter voting rules to disenfranchise particular constituencies is obvious. Indeed, the Department of Justice successfully challenged Texas’ redistricting map because it diluted the voting power of Latinos. If the court strikes Section 5 down, one of the most effective and important powers the federal government has for ensuring that the right to vote is not abridged on the basis of race will be destroyed.
I knew this was probably coming, but damned if it still doesn’t knock me over. All the more reason to keep your campaign groups together and working on issues - ready to hit the 2014 elections with a lot of well backed progressive candidates. And keep 2020 on your calendar - when the next census occurs and IF we have put the correct folks in state Houses, there will be an opportunity to undo some of the Republican gerrymandering.