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…
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