Full court press: GOP's state-level power grab goes far beyond Trump

Faced with unfriendly rulings, Republicans in many states are now trying to undermine the judicial system

By Paul Rosenberg

Contributing Writer

Published February 18, 2018 12:00PM (EST)

 (Getty/Photo Montage by Salon)
(Getty/Photo Montage by Salon)

After Cris Dush, a Pennsylvania Republican state representative, sent a memo to colleagues on Feb. 5 asking them to cosponsor articles of impeachment against five of the state’s seven supreme court justices for “misbehavior in office,” a Daily Beast headline identified Dush as “Baby Trump.”

And for good reason: In true Trumpian fashion, Dush issued his impeachment call two days before the court released its full 139-page decision that offended him so. The decision, in League of Women Voters v. Pennsylvania, struck down the state’s gerrymandered congressional maps, which had allowed the GOP to win 13 of 18 congressional seats every election since 2012, even when Democrats won a majority of the popular vote statewide.

In many respects, the Pennsylvania opinion’s combination of traditional legal reasoning and careful analysis of statistical evidence echoed that of a federal district court that handed down a 205 page decision on Jan. 9, striking down North Carolina’s partisan gerrymander in Common Cause v. Rucho. But unlike the North Carolina decision, the Pennsylvania Supreme Court decision had no appeal or other delay hanging over it. It called for new maps in time for the 2018 primary elections. Democrats could win as many as four additional seats in the Keystone State this year. Tick, tock.

It's no wonder Dush rushed to denounce something he couldn’t possibly understand, claiming that the ruling “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution.” It was no doubt based on his deep legal background as a retired corrections officer.

But it’s a big mistake to think this all began with Trump. As noted on Gavel to Gavel, the blog of the National Center for State Courts, Dush’s impeachment plan was only the “latest in a 13-year national trend to threaten impeachment for judicial rulings.”

Although far-fetched and ill-founded, Dush’s plan wasn’t an idle threat, since — due to gerrymandering in the state legislature as well — Republicans have the votes necessary to get rid of the court majority. Though none of the earlier impeachment threats were carried through, they’re part of three troubling wider patterns, which Salon discussed with two experts from the Brennan Center, Michael Li, an expert on redistricting, and Alicia Bannon, an expert on state courts:

First, there were multiple other GOP norm-breaking power plays afoot in Pennsylvania around this gerrymandering case, with echoes in other states as well, as explained by Li.

Second, as described, there have been multiple other state legislative threats to unseat, replace, displace or otherwise restrict judicial power when it conflicts with GOP legislative power grabs. In January alone, the Brennan Center found that “legislatures in at least 14 states are considering legislation that would diminish the role or independence of the courts,” specifically:

    • Twenty-three bills in eight states would inject greater politics into the way judges are selected.
    • Four bills in four states would increase the likelihood of judges facing discipline or retribution for unpopular decisions, or would politicize court rules or processes.
    • Six bills in three states would cut judicial resources or establish more political control over courts in exchange for resources.
    • Four bills in three states would manipulate judicial terms, either immediately removing sitting judges or subjecting judges to more frequent political pressures.
    • Four bills in four states would restrict courts’ power to find state legislative acts unconstitutional.

Third, these state-level actions fit within an even larger pattern, that of a long-term conservative project to undo the liberal constitutional/political advances of the 20th century, a struggle that gives rise to what legal scholar Mark Tushnet calls “constitutional hardball,” which I’ve written about before on several occasions.

“For me, hardball involves doing things that are legal in the technical sense (so 'lawbreaking power-plays' aren’t hardball, they’re just lawlessness), but that are inconsistent with political norms,” Tushnet told Salon via email.

When I described Tushnet’s concept to Bannon, she said she saw "a lot of similarity" to the Republican assault on state courts. "Most of the insulation the courts enjoy [from political pressure] is a matter of norms and traditions, and I do think we’re seeing some chipping away at that.”

Either side can play constitutional hardball, which Tushnet elsewhere describes as “practices that are constitutionally permissible but that breach previously accepted norms of political behavior, adopted to ensure the smooth functioning of a government in a two-party world, engaged in precisely to disrupt that smooth functioning.”

There’s a reason that Republicans do much more of it: Ever since the New Deal, they’re the ones who have been determined to fundamentally change our political system. Their norm-breaking efforts to do so have shifted dramatically from the far-right political margins toward the center. In the 1960s, the John Birch Society put up billboards — mostly in the South — demanding the impeachment of Chief Justice Earl Warren. Last year, Senate Majority Leader Mitch McConnell delivered a stolen Supreme Court seat to Donald Trump to fill. That’s a stark indication of how far they’ve come.

Voter suppression, gerrymandering and other anti-democratic features of our political system, such as the Electoral College, have played key roles in this process. Republicans have won the popular vote in just one presidential election since 1988. (And that was in 2004, with George W. Bush running for re-election as a "war president.") In 2012, while Obama won re-election by almost 5 million votes, Democratic House candidates won a narrower national plurality as well (by about 1.4 million votes) but did not come close to winning a congressional majority.

The day after that election, Mother Jones highlighted seven key states Obama had carried in 2008, but where Republicans had subsequently controlled redistricting: Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia and Wisconsin. The official results confirmed their findings: The GOP's House victory was entirely attributable the gerrymandering of those seven states.

Across those seven states, Republicans got 49.3 percent of the vote to 48.5 percent for Democrats -- a nearly even split. But Democrats won fewer than one-third of the House seats in those states: 34 out of 107. For the rest of the country, the net results were closely aligned — meaning that any partisan gerrymandering was balanced out. Democrats received 48.3 percent of the vote and Republicans got 46.2 percent; accordingly, Democrats won a narrow majority of those seats, 167 to 161.

These seven states offered clear-cut evidence of the central role gerrymandering plays in shoring up Republican power. Indeed, it's the driving engine behind all three of the patterns described above. (Gerrymandering state legislatures is important in itself, also important for gerrymandering the House.) These patterns are easy to recognize if one is willing to abandon a knee-jerk “both sides do it” view that makes it impossible to see what's really going on.

First, let's deal with the widespread impression that geographic clustering -- meaning the undisputed fact that Democrats largely live closer together in metropolitan areas -- gives Republicans a “natural advantage” when it comes to drawing district lines. Second is the notion that both parties are equally motivated to gerrymander. Here's what Cook Political Report’s U.S. House Editor, Dave Wasserman, tweeted in early January:

There are two problems with these propositions, starting with the fact that they are mutually contradictory. If you point to Maryland as an example of Democratic gerrymandering (as in Benisek v. Lamone) to prove the second point, for example, then you’ve highlighted an example where the concentration of Democrats in urban areas did not give Republicans a “natural advantage.” Such an advantage only exists if you choose the right set of “natural guidelines.”

The second problem is history — especially the recent history dating back to the last cycle of redistricting, when the GOP’s $30 million REDMAP strategy changed everything. This has been explored by former Salon editor David Daley in his book "Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy," and again in his report on newly uncovered REDMAP documents published earlier this month.

“I have tremendous respect for Dave Wasserman's work, and relied on it in doing my own, but we do disagree here,” Daley responded by email. “Did Republicans simply have four times more power to remap in 2011 than Democrats? Sure! But not in a vacuum. As part of a deliberate strategy -- and one that we need to understand and come to grips with if we want to rescue our elections from turning into decennial food-fights over redistricting, with results locked in for years to come.”

Daley argued that “political geography is a minor issue” in the states where partisan gerrymandering has been so toxic. “Both of the three-judge panels that declared the Wisconsin state assembly map and the North Carolina congressional map to be redrawn as unconstitutional partisan gerrymanders carefully evaluate -- and firmly reject -- the Republican assertion that these maps were tilted by geographic clustering. ... [T]ime and again the courts have made clear that it's not the reason for the partisan bias contained in this decade's maps.”

But the federal courts are grinding exceedingly slowly, and there can be no assurance how today’s hyper-political Supreme Court will rule, or whether it will do so in time for the 2018 elections. Which underscores just why LWV v. Pennsylvania is so important: it’s going into effect almost immediately, in time for the full 2018 cycle. But it’s also built to last on state constitutional grounds that other states could follow as well.

As constitutional and election law scholar James Gardner explained, the decision didn't break much new ground, yet represented "a potentially significant development in gerrymandering jurisprudence," because it found the facts sufficient "to trigger the constitutional prohibition" of the gerrymandered map. If the upcoming federal case, Gill v. Whitford, does not establish a clear partisan gerrymandering standard, LWV v. Pennsylvania could influence other states to follow its lead, as has happened in other areas where the Supreme Court has dragged its feet, such as gay marriage.

As Brennan Center redistricting expert Michael Li told Salon, the LWV decision looks to be one of the most important court rulings of the decade. “This was an easy case, because Pennsylvania's 2011 map is one where you can just look at you can kind of tell it's probably wrong,” he continued, “but the court itself recognized there may be harder cases” -- and laid the groundwork for dealing with them.

“On page 118 of the decision, it talks about ‘artificially entrenching representative power,’" Li explained. "Artificial entrenchment is something we can measure, from a social science perspective, and measure through multiple lenses. Once you have a constitutional harm that is measurable, that's been articulated, all future cases can be judged fairly easily on that basis."

More than anyone, Princeton neuroscientist Sam Wang has helped bring those "multiple lenses" to the fore, describing a variety of them in a Stanford Law Review article, and making them available to explore at the Princeton Gerrymandering Project. One powerful strategy is to generate large ensembles of maps, then compare the existing plan with a sample universe of possible alternatives.

In the North Carolina case, Duke mathematician Jonathan Mattingly generated a 24,518-plan ensemble, and found that the outcome of the existing plan “occurred in less than 0.7 percent of the simulated plans.” In the Pennsylvania case, Wesley Pegden of Carnegie Mellon took an even more dramatic approach, generating approximately 1 trillion alternatives, of which 99.999999 percent had less partisan bias. Both produced evidence that could not be explained by political geography.

In January, Wang co-authored an explainer after the North Carolina decision, and on Feb. 13 he posted a graphic from Philly.com on his blog to show how badly Pennsylvania fared on five different measures of partisan gerrymandering — a clear indication how mainstream this once obscure subject has become. Not only are the statistical lenses available to the courts, they’re in front of the public as well.

Li also agreed with Gardner that other states might follow Pennsylvania’s lead. “Pennsylvania has shown that digging down into a state’s own constitutional tradition, there may be a lot of richness there, that challengers to partisan gerrymanders can hang their hats on,” Li said. “There are 12 states that have a 'free and equal' [elections] clause that uses the same language as Pennsylvania, and those are listed in a footnote in the court's opinion.”

Even beyond that, Li said, “Every state has analogues to the First Amendment and the Equal Protection clause, and they all have their own state constitutional tradition. A lot of times the state constitutions come in at a time of reform, and so there's a lot of history there that suggests that they could be interpreted more broadly than the federal Constitution, which was written some 200-some years ago. ... It reminds us that we should not forget the state constitutional tradition, which is rich, colorful and may be surprisingly vibrant.”

That, in turn, helps us understand why Republicans have become so heavily involved in political machinations to interfere with the courts — machinations that the Brennan Center and the National Center for State Courts have long tracked.

Republican-sponsored bills attacking the courts “are, collectively, deeply troubling," Bannon said, "and reflect a real challenge to the role of courts as we normally understand them in our democracy. Courts play a particular role in our constitutional system, and that includes hearing cases, interpreting the law and sometimes finding the law is inconsistent with the Constitution and striking it down. To give the legislature the power to effectively override that is very much in tension with the lines we normally draw between the job of the court and the job of the legislature.”

Dush-style impeachment efforts for political purposes — as opposed to criminal or ethical violations—are the most blatant example of this tendency. One report from the Center for Study of State Courts noted “a dramatic increase in not only the threats to impeach state court judges because of their decisions, but the actual drafting of legislation to that effect.”

The Massachusetts Supreme Judicial Court ruling legalizing same-sex marriages provided the initial spark, causing bills in April and May 2004 to remove the four justices responsible for the ruling. An Oklahoma resolution would have condemned Massachusetts for the ruling and requested impeachment, while a bill in Virginia would have labeled any such decision in that state as malfeasance in office, subject to impeachment. A Maryland trial court ruling drew a similar effort in 2006. After Iowa’s Supreme Court unanimously found gay marriage legal in 2009, three judges were voted out of office in 2010, and the remaining four were subject to an impeachment effort.

All these efforts failed, but that did not so much deter this campaign on the right as redirect it. Another report in September 2011 on “Codified, Anticipatory Impeachment Threats” noted 14 impeachment bills in seven states during that year alone, adding that “state legislators in several states have struck on a new formulation; anticipatory impeachment threats placed into law.” These proposed laws cast a much wider net, trying to create new legal grounds for impeachment, such as a 2010 Arizona bill prohibiting “use or citation of religious sectarian law or foreign law.”

In an amusing paradox, a 2009 Florida proposal would have made it impeachable to rule “adverse to the doctrines of stare decisis, binding precedent, or the supremacy clause of the United States Constitution,” while a 2010 Iowa bill would have prohibited judges from using “judicial precedent, case law, penumbras, or international law as a basis for rulings.” So following precedent could get you impeached in Iowa, whereas not following precedent would get you impeached in Florida!

Except for Iowa, most of these were relatively obscure, below-the-radar efforts. But they reflected widespread right-wing sentiments, and help us understand the background for a few more dramatic higher-profile clashes. None of those has been bigger than in North Carolina, as the Brennan Center’s 2017 report explained:

North Carolina’s experience is particularly noteworthy. Since Democrats won control of the governor’s office and the state Supreme Court last November, the state’s Republican-controlled legislature has passed a series of laws that weaken the governor’s power over judicial selection and entrench Republican control in the lower courts — normalizing political interference in the rules governing how judges are chosen and how courts are structured.

One new law reduces the size of North Carolina’s intermediate appellate court by three seats, thus preventing the governor from filling vacancies that are expected to open when several (Republican-appointed) judges step down due to the state’s mandatory retirement age. The bill was passed without input from the court of appeals, its judges, or the courts’ administrative body.

This dovetails with a larger overview from the Election Integrity Project, which announced that North Carolina no longer qualified as a functioning democracy after the 2016 election. EIP co-developer Andrew Reynolds wrote that the state's "overall electoral integrity score" of 58 points out of 100 ranked "alongside authoritarian states and pseudo-democracies like Cuba, Indonesia and Sierra Leone."

When it comes to the integrity of the voting district boundaries no country has ever received as low a score as the 7/100 North Carolina received. North Carolina is not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project.

Extreme gerrymandering wasn’t the only problem Reynolds highlighted. He also cited an attempt to limit "citizens’ rights on the basis of their born identities" (a reference to North Carolina's anti-trans H.B. 2), along with "targeted attempts to reduce African-American and Latino access to the vote and pernicious laws to constrain the ability of women to act as autonomous citizens."

Reynolds analyzed the Republican legislature's attempt to undermine a Democratic governor as a sign that "government in North Carolina has become arbitrary and detached from popular will," and "a direct attack upon the separation of powers that defines American democracy."

There is an upside: People are fighting back. “I do a lot of work on issues around the courts," Bannon said, "and it’s oftentimes hard to get people to pay attention. It seems more technical, more abstract than other issues that might affect people in a more immediate way. But obviously courts are fundamental for everything else, if you want your rights to be protected. In North Carolina there have been protests. There have been crowded town halls. There's been a lot of public attention to these efforts. ... I think this has broken through in a way that ordinary people are seeing this affecting them, and they are pushing back against it.”

Republicans are still winning day-to-day battles in North Carolina: With a gerrymander-based legislative supermajority, they can override any veto by Gov. Roy Cooper, the Democrat elected in 2016. But with the broader public finally engaged in the fight for fair courts, the Tar Heel State's predicament could help lead the way out of the political wilderness of the last several decades.

Other states have seen similar power grabs proposed. In Washington state, there was a proposal to divide the Supreme Court into districts and reduce the court from nine justices to five. Proponents argued in last year’s hearings that the “intensely liberal” Seattle was skewing elections, since eight of the nine justices in office were from the western, more urban part of the state. A similar move has been contemplated in Oklahoma, with a proposal to require that two state court justices must come from counties with populations of fewer than 75,000.

Add to all this the massive influx of dark money — documented in a recent report Bannon co-authored, which found that “only 18 percent of interest groups’ outside expenditures during 2015-16 could be easily traced to transparent donors” — and the need for citizens to get involved and fight to reclaim the courts could not be clearer. Conservatives have understood the importance of this battle for decades. It’s long past time for progressives to stop playing whack-a-mole and start playing some hardball of their own.

By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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