Another “Be Careful What You Wish For”

As regular readers of this blog know, I am firmly convinced that gerrymandering is at the root of many–if not most–of America’s electoral dysfunctions. As a result of that conviction, and my general nerdiness, I have often consulted the Princeton Electoral Innovation Lab and especially its gerrymandering project, run by Sam Wang, a professor of neuroscience at Princeton.

Wang recently authored a very interesting analysis of the likely results of a win for the “independent state legislature” theory, a theory being advanced by Republicans in the upcoming Supreme Court case of Moore v. Harper. 

The GOP argument–dismissed by most legal observers as essentially wack-a-doodle–would re-interpret and greatly expand the effect of constitutional language granting state legislatures authority over elections.That language has always been understood to mean that the legislature passes state election laws, but that, just as with other laws, whatever they pass has to be consistent with their own state constitutions–meaning that those laws can be overturned by a court or vetoed by a governor. Proponents of the Independent State Legislature theory argue that the language  gives absolute authority to state legislatures, and that whatever they pass cannot be overturned by courts or vetoed by Governors.

Given the ideological makeup and ethical deficiencies of our rogue Supreme Court, its acceptance of the case has produced significant angst in the political and legal communities.

Endorsement of the theory would strike a devastating blow against the checks and balances that constrain governmental shenanigans.  Winning the freedom to evade democratic rules–freedom to rig elections– may make the Republicans who are arguing for the theory happy, but Wang shows that if the Court accepts it, it will actually end up benefitting Democrats.

His explanation–accompanied by graphs you should really click through to see, is as follows:

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

One way to see the Democrats’ likely advantage: In the 2020 presidential election, the 12 states where districts were drawn by courts or independent commissions gave 184 electoral votes to Joe Biden and only 15 electoral votes (those from North Carolina) to Donald Trump.

A win for Moore would potentially unleash all those states to redistrict at will. In contrast, in 19 states where Republicans already have legislative control of redistricting, many partisan gains are maxed out, and nothing would change.

Wang’s laboratory analyzed the effects of the Court’s acceptance of arguments being made on behalf of the theory, examining partisan possibilities in each state, and concluded that  “election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.”

Wang explains that there are two possible analytical paths to a Court endorsement of the Independent state legislature theory.  If they chose the first, it would liberate several Democratic states to gerrymander by removing state court authority. (He points out that just this year, New York courts struck down that state’s pro-Democratic gerrymander.)

Democrats would also gain power if independent citizen commissions were struck down. In 2010, citizens gave an independent commission power over congressional redistricting in deep-blue California, with the support of then-Gov. Arnold Schwarzenegger, a Republican. Since then, Michigan and Colorado, two states now controlled by Democrats, have also formed independent commissions. Striking down these three commissions would give Democrats the ability to draw themselves up to a dozen additional seats.

Both liberal and conservative legal scholars have overwhelmingly argued against the independent state legislature doctrine. As Wang notes, proponents of this very novel theory are “hoping to find a receptive audience in a reactionary and increasingly activist Supreme Court.”

He also observes that–should the Court hand down a decision repudiating the theory–Republicans should consider themselves lucky.

The last time I argued that the GOP should be careful what they wished for, I was predicting  a huge anti-GOP backlash to the over-ruling of Roe v. Wade. The data emerging from the midterm elections–where the anticipated “Red wave” was held to a trickle– confirmed the potency of that response.

I am not rooting for the Court to adopt a ridiculous mis-reading of a Constitutional provision. Such a result would be enormously dangerous; it would dramatically erode American democracy. Gerrymandering doesn’t suddenly become less anti-democratic when it’s being done by my preferred team.

But the result Wang predicts would serve the Rightwing a-holes right…


  1. If only — It seems to me that
    “one person, one vote” and “the person with the most votes wins”
    would be a lot better than the current and proposed mess we deal with.
    The remnants of slave day election laws can end now

  2. Sounds to me like ununiting the United States of America. Each state an entity unto itself; obliterating the foundation and meaning of America.

  3. How Indiana selects electors via “winner take all” is related to gerrymandering. What follows are rhetorical paragraphs that can make up a complaint for Declaratory judgment in Indiana Courts based upon the Indiana Constitution. Such arguments, in Indiana, based on the Federal Constitution, have been shut down.
    1. Indiana Constitution, Article 1, §23, also known as the Equal Privileges and Immunities Clause, provides: “General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
    2. Electors vote to choose the President and Vice President of the United States. U.S. Const. Art. II, sec. 1; Amend. XII.
    3. Each State determines the way in which its Electors are selected: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const., Art. II, sec. 1
    4. The existence of Electors is a vestige of the “Great Compromise” of the 1787 Constitutional Convention: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons…” U.S. Const., Art I, sec. 2.
    5. Indiana law provides the means by which our Electors are chosen. Ind. Const., Art. 1, § 23. Indiana
    6. The method by which the State of Indiana determines and apportions its Electors in general elections for President and Vice President (“elections” or “election”) violates Article 1, §23 of the Indiana Constitution, in that in any given election, nearly one-half of voters who cast a vote in such elections are effectively disenfranchised.
    7. In Indiana, the political party of the candidates for President and Vice President who have gained the plurality of the popular votes cast in the election for those offices selects every Elector
    a. “…Indiana’s presidential electors and alternate presidential electors whose ticket receives the most votes at the general election in Indiana are the winning presidential elector and alternate presidential elector nominees under this title”, I.C. § 3-10-4-1.5;
    9. In 2008 [final #s], 2012 [final #s], and in 2016 [final numbers], a total of [total of all votes for the non-winner] Hoosier voters saw her or his vote rendered meaningless by having her or his vote count nothing toward selection of an Elector.
    10. . The right to cast a vote and the right to have one’s vote counted are both constitutionally protected. U.S. v. Classic, 313 U.S. 299, 315 (1941).
    11. A person’s interest in participating in the political process through voting and having her or his vote counted is a right both ‘individual and personal in nature. Reynolds v Sims, 377 U.S. 533, 561 (1963).
    12. The right of suffrage can be denied by a debasement or dilution of the right to vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds, 377 U.S. at 554.
    13. The matter is not that the votes for one ticket are nullified, but that none of the eleven (11) Electors is allowed to vote for anyone but the Statewide winner of a plurality of the popular vote.
    14. This means of apportionment of the Electors unconstitutionally magnifies the votes of a bare plurality of voters into a group that chooses all eleven Electors from Indiana is the same as if a general vote for Indiana’s delegation to the United States House of Representatives and Indiana’s two (2) United States Senators resulted in Indiana’s entire Congressional delegation being selected by one (1) political party.
    15. For the same reason, a bare plurality of one (1) vote should not render the votes of nearly one-half (½) of Hoosier voters a nullity.
    16. Application and construction of a State’s constitution are matters left to that State, so long as they are not repugnant to the United States Constitution. [CITE].
    17. Far from being repugnant to the United States Constitution, application of Indiana’s Equal Privileges and Immunities Clause to eliminate the current method of apportionment of Electors would more greatly extend equal protection of the law to all Indiana citizens.
    18. This lawsuit does not challenge the existence of Electors (the phrase “Electoral College” does not appear in the Constitution), but challenges the decision of the State of Indiana to award and select Electors on a winner take all basis.
    19. The United States Constitution does not (a) prescribe how a State should choose its electors or (b) mention a winner take all scheme.
    20. After John Quincy Adams was elected President in 1824, States rushed to enhance their individual standing in elections and adopted a winner take all scheme to select Electors.
    21. Since 1824, our Nation has progress from slavery, to universal suffrage, through segregation, and to a recognition of One Person//One Vote.
    22. Plaintiffs seek (1) a declaratory judgment that the current formula under I.C. § , et seq., violates Indiana Const. Art. 1, §23; and (2) an order that permanently enjoins use of the winner take all method, or other methods that would violate our Equal Privileges and Immunities Clause.
    23. No State interest justifies this disparate treatment of Indiana’s citizens.
    24. This Court has jurisdiction over this cause pursuant to I.C. § 34-36-1-3.
    25. Venue is proper in this judicial district pursuant to Indiana Trial Rule 75(A)(5) and (7).
    26. Declaratory relief is authorized pursuant to Indiana Trial 57.
    27. Injunctive relief is authorized pursuant to Indiana Trial Rule 65 and I.C. § 34-26-1-1.
    28. Each of the Plaintiffs has suffered, and will again suffer, an injury that comes from lack of any meaningful vote toward the election of the President and Vice President.
    29. Plaintiffs have voted in past elections for President and Vice President and will continue to vote in those elections.
    WHEREFORE, Plaintiffs respectfully the “winner take all” method of selecting electors be declared a violation of Indiana’s Constitution, and for all other proper relief.

  4. And the reasons for my departure from the US keep increasing day by day. The wack-a-doodles/fascists from the Republican Party need to crawl back under their respective rocks.

  5. And where would we leave the nation if we all decided to ”duck and run?” Millions of patriots have faced that question and decided to STAY and FIGHT. That’s my choice, too. Suppose those in the military had decided to “duck and run” during the wars we’ve fought? Imagine the US in the hands of the Germans and their allies?


  6. Since SCOTUS has virtually made the 2nd Amendment into an unlimited right to buy and carry any and all guns, why wouldn’t they move to unfetter any other item they found getting in the way of total authoritarianism?

    Thirteen Circuits/Thirteen Justices.

  7. Robert E. Lee, just weeks after surrendering in 1865, claimed that the war was fought over state’s rights and not slavery. We know the truth of that argument today. But that doesn’t stop the idiotic Federalists to continue to try to dis-unite our nation’s election processes.

    And one other little note from the Civil War: With Lee’s army embattled in Virginia, Jefferson Davis ordered several state militias to come to his rescue and provide Lee with men and equipment. They refused. Why? Because they felt they needed to keep their “armies” nearby in case the Yankees invaded. Under state’s rights rules then, Davis had no power, even as commander in chief, to compel those states to provide assistance to Lee.

    This jiggery-pokery by Republicans is just another way they want to cheat in elections so they can gain or regain power over the money. Their corporate/banking sponsors insist on it, so…

    This is what abject corruption of a capitalistic democracy looks like. Corporate money in politics. Eliminating the voice of the people. Re-creating the Serfs v. Lords society of centuries past. That’s where the Republican/Federalist mind resides: Three centuries in the past.

  8. Duck and run? Stay and fight? Wow, great choices!

    So, the main way the United States dealt with issues was to kill its way out of them. Understandable albeit barbaric.

    The Nazis made the assumption that the United States would join them eventually in the war. The reason behind their thinking, was that the Nazis adopted much of America’s conduct towards minorities. The United States had the largest Nazi organization outside of Munich, the German Bund.

    Dr Stan is not wrong, but the Philippines have many of their own demons. It’s a small world, and getting smaller by the day, and one can run, but they can’t hide! Dr Stan is a free moral agent, that means, he makes decisions that he feels our best for him and his family, just like everyone else does! Cut and run? That sounds like the same side of the GOP coin. But then I suppose Todd has been kind of saying that very thing for quite a while.

    We all talk about fairness, we talk about equality, but, fair for who? Equality for who?

    The Dixiecrat Wing of the Democratic party pushed Jim Crow, they promoted The night riding kKK, and when the Dixiecrats decided that they had had enough, they were losing their influence, they flocked to the Republican party. And here we are today!

    The sad thing, is that the Democratic party denies it and the Republican party denies it although it’s recorded in history!

    How many times are we going to take that deaf and blind hunting dog out to the hunt? That dog don’t hunt! But, obliviously, we continue to do the same thing over and over, the same oblivious arguments over and over, the same oblivious conduct over and over, and how do we expect things to change?

    All of these billions of wonderful folks in the world, dog sitters, doctors without borders, Yes, by that description we must live in a panacea!

    An example, my wife Robin, is critically ill, her friend in Tennessee, she’s critically ill, another friend of hers named Robin is critically ill here. So what’s the first thing that comes out of doctor’s mouths, we don’t give out pain medication! Okay! Okay? Because in their experience, black women fake their illnesses to get drugs! Now this is from the medical professionals. They are not offered the same benefits as their white counterparts, white women don’t have near the difficulty of getting pain management for their critical illnesses that black women do. And it doesn’t come from just male doctors, female doctors also and physicians assistants.

    I guess that old 3/5 human argument from the times of slavery still exist, black women are not really human, they don’t feel pain in the same way? That is some Nazi crap right there. Where do you think the Nazis got it from? It goes back to eugenics which was started in Britain and the United States, the Germans just picked up on it. Fairness? Equality? Compassion? Empathy? Non-existent! Love your neighbor, doesn’t happen. Not in this world!

    Imprisoning black men just so the local government can get a check for that imprisonment up to $70,000 per person? A person getting a 16-year sentence for one bullet found in the trunk of their car? Fortunately that was taken care of by advocate Littlejohn, but, that’s how it works for people of color. Your own lawyer will not go to bat.

    Gerrymandering? It is not a disease, it’s the symptom of the disease! And until that disease is eradicated, the symptoms will continue to be manifest. Do I personally hold out hope? Not really! My Auntie and my Mother always lament about the murders of their uncles by those protected by white privilege. The same with my brother, I had to go look at him on a slab sliced to pieces. Literally!

    Did Emmett Till deserve what happened to him if he even whistled at the woman like was claimed, tortured, beaten, and dumped in a swamp? Did my Uncle David deserve to be wrapped in a chain, broken back, dumped in a pond alive to drown, because he dated the ex-girlfriend of some local white privileged politicians son?

    There is no love your neighbor, they’re never has been! But keep drinking that Kool-Aid, I hope it’s the right flavor.

  9. Governance is about the responsibilities of a hierarchical administration, by an organization creating and enforcing laws that regulate and protect the interests of individuals, organizations and institutions within borders. Government responsibilities may be limited for certain select behaviors which define the rights of the governed. Responsibility goes up, rights go down.

    Therefore the governments under each level are free to regulate anything the level up defines as the rights for those behaviors they avoid responsibility for.

    Responsibility and rights can be at any level of detail.

    For example here, the Federal Government has broad responsibility for election laws leaving to the states the right to administer more detail responsibilities.

  10. Rights are holes in governance responsibilities left to those governed at any level organizationally below.

  11. Typically families are organized around negotiated and accepted rights and responsibilities for individuals that change over time. So are all businesses and institutions including nested governments.

  12. Wang’s analysis assumes that a hyperpartisan legislature, answering only to their party’s most fanatically activist primary voters, and empowered by the “independent state legislature” theory to ignore all legal constraints on their actions, would for some reason play fair and meekly accept the results of general elections that didn’t go their way.

    Why would they do this?

    I expect that, relieved of all effective legal oversight, they would not only use the old bag-o-tricks (selective disenfranchisement of voters, closing of polling places in “enemy” precincts, etc. etc.) but add a whole new bag-o-tricks. Selective refusal to certify or accept the votes of “enemy” precincts, for example, as has already been tried in Michigan. Overt manipulation (“unskewing”) of vote totals. Would there be anything stopping a hyperpartisan state legislature, under this theory, from simply ignoring the voters and decreeing whatever election results it wanted? Congress, perhaps… but Congressional action on such a purely partisan issue nowadays presupposes both houses of Congress being held by the opposition party, and no Senatorial filibuster.

    Why, from the standpoint of realpolitik, would the existing majority-party incumbents not simply decree themselves, in effect, the permanent winners of all present and future elections?

  13. Thank you, Mark. Are there any organizations in Indiana pursuing this line of argument and working to change how electors are chosen and/or end gerrymandering?

  14. Per Felix…”Would there be anything stopping a hyperpartisan state legislature, under this theory, from simply ignoring the voters and decreeing whatever election results it wanted? ”

    Already proven and done by Florida – people voted for convicted, released felons to be able to vote. Legislature curtailed much of that by insisting on these folks paying fines. Florida and DeSanta Claws lead the way…

  15. I believe that the much feared/anticipated “RedWave” was nothing more than propagandist
    manipulation, by the right wing-nuts, put out in the hopes of diminishing the Dem voter turnout.
    As much as “duck and run” sounds like a nice idea, “Get me the hell out of this crazed place!”,
    it is not an option easy to pull off, if possible, at all, for the vast majority of us.
    “Be carerful what you wish for,” could come back to bite McConnell and SCOTUS themselves,
    as I would wish for. Expand SCOTUS, anyone?

  16. And here we go,

    All these wonderful ideas! All of the years being involved in politics, what has it accomplished? All of the thousands of dollars spent, for what? For me? No more! They keep coming back trying to stick their hands in your pockets taking but never really giving back. Just enough maybe to keep those wallets and purses open!

    They can manipulate a person’s faith or a person’s lack of faith to accomplish their goals. The money flows like rivers of milk and honey to the politicians, and when they decide to leave office or are booted out for some reason, they can keep it all! How is this system, which has been set up by the criminal element, going to change anything for the good? It will not!

    People pick doctors without borders, so how many here pattern their lives after doctors without borders? I do! Do you? My wife is terminal, and I still bring food to people who don’t have any, I give what money I can to individuals that need it more than I do. I make myself available always! I’m done with all of that BS that circles like a bunch of vultures trying to pick your bones clean. It mostly was manufactured, but what happens when the monster becomes stronger than the master? It’s what you have today!

    But it’s okay to not want to see the evil that men do, it’s okay to have blinders on, it’s okay to ignore reality for some sort of set of truths. Why? Because it makes everyone feel better, that they are in control of their pathway. But in essence, it ends up being a parade of lemmings heading straight towards the precipice.

  17. The problems with Wang’s argument are two-fold.

    First, if applied to the Presidential Electors, Arizona, Georgia, and Michigan would have given us President Trump, part 2. Forget the voters.

    Second, we are talking about Democrats. With the exception of New York, Democrats are still playing with the Marquis of Queensbury rules while the GOP has changed the game to Shoot Out at the OK Corral.

    Arizona would immediately change the districts; Michigan, I am not so certain.. When Tom Delay followed a take over of the Texas legislature with a second redistricting, no Democratic legislature followed suit.

    I wouldn’t be surprised if most of the Democrats opted to keep the commissions. Then again, we know that since the Dixiecrats left the Democrats, only one party has believed that making voting more difficult is a good thing.

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