Bethune-Hill & McCrory: If Either Party Wins, We All Lose

Yesterday, in Bethune-Hill and McCrory, counsel for the voter-plaintiffs asked the Supreme Court to reverse the Virginia decision and affirm the North Carolina decision. The state-defendants requested the opposite. Based on the Justices’ questions, the plaintiffs appear poised to get what they want. Yet, a full-out victory for either side should concern all of us—including the plaintiffs. That is because counsel for the voter-plaintiffs may have just purchased a few state house seats at the cost of the Voting Rights Act itself.

The arguments yesterday were marked by confusion, with the underlying tension between the commands of the Voting Rights Act and the Equal Protection Clause coming up on several occasions. Indeed, at one point, counsel for the state-defendants went so far as to raise the issue directly, prompting a quick response from Justice Kagan:

CLEMENT: [T]he Voting Rights Act makes the consideration of race absolutely necessary. . . . [U]nless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don’t want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what’s going on. . . .

JUSTICE KAGAN: You absolutely don’t, Mr. Clement.

Unfortunately, this problem cannot be so easily ignored when the Justices are forced to put pen to paper. They are the ones who must harmonize the racial sorting claim with the commands of the Voting Rights Act, and for the time being they seem to be at a loss. As Justice Breyer tellingly noted towards the end of the arguments:

JUSTICE BREYER: But, . . .what exactly is going on, in part, is a very tough matter. . . . There were many States that had many black citizens and had no black representation, and there was a [decision to] have majority-minority districts. And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering? And . . . no one, I think, has a good answer to that question. There is just slightly better, slightly worse.

But there is a good answer to that question, and there is a way forward. Unfortunately, it wasn’t offered by either side and requires rejecting both sets of arguments in part. For the reasons stated below, the Court should reject the plaintiffs’ view of predominance in Bethune-Hill, reject the states’ justifications for gerrymandering in McCrory, and affirm the results in both cases. The Voting Rights Act depends on it, the Constitution demands it, and our democracy requires it.

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On “Hamilton Electors” and the Lessig/Hasen Debate

Professors Lawrence Lessig and Rick Hasen–two titans of the political law world–recently got into a public debate over the legitimacy of presidential electors voting in a way different from how their votes were pledged.  Despite my decidedly non-titan status, this is a blog about government structure and process, so I suppose it’s worth weighing in: both seem wrong in my view.

The debate opened with Lessig writing this article in the Washington Post.  In it, Lessig first notes the historical role and purpose of the electors: to act with independence and exercise judgment in determining who should become president.  The electoral college is, in Lessig’s words, a “safety valve” or “circuit breaker” to ensure that the judgment of the people is “reasonable.”  But then Lessig goes one step further.  He claims that, based on the “fundamental principle of one person, one vote,” the electors should “respect the equal vote by the people” and “ratif[y]” the result of the popular vote outcome on Dec. 19 by voting for Clinton.

In a post on his Election Law Blog, Hasen pushed back on both points.  “First, the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state. If we had a system where we expected them to exercise independent judgment we would spend time vetting them.  Instead, they are generally loyal party members.  Second, relying on the national popular vote to overturn the results of the electoral college seems unfair even if, like me, you believe the electoral college is unfair. The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given. This seems to go against rule of law ideas that we all abide by the rules for an election set in advance. Turning the electors into mighty platonic guardians doesn’t seem to be the right way to go.”

The truth, in my view, is somewhere in between: the electors retain a critical function and have a duty to exercise independent and considered judgment, but this does not mean automatically choosing the national-popular-vote winner based on the principle of “one-person, one-vote.”

Professor Lessig gets the history and purpose of the electoral college right.  Regardless of whether we should reform our method of choosing president and adopt a national-popular-vote system, the current system places the actual election of president in the hands of the college.  Hasen argues that we shouldn’t “turn the electors into mighty platonic guardians,” but this misses the point: the electors are, in a limited sense, already platonic guardians.  (As Lessig notes in reply.)  As Hamilton wrote in Federalist No. 68,

“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it.”

The Founders designed the electoral college system to serve a particular purpose and advance certain values.  They did not choose a method that automatically accorded a certain weight to the popular result in each state, just as they did not choose a method that automatically accorded the presidency to the winner of a national popular vote.  Thus, arguing that the electors should follow the popular result in their own states without any exercise of judgment (as Hasen does) is just as baseless as arguing that the electors should follow the popular result on a nationwide basis based on automatic application of one-person, one-vote principles (as Lessig does).  Both of these arguments defeat the very purpose of having an electoral college in the first place.

Hasen is right to point out that we cannot rely on the national-popular-vote total alone.  As he states, “The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given.” But, those who argue that “the rules are the rules,” that the electoral college was in place at the time of the presidential race, and that, therefore, the winner of the electoral college should win the presidency cannot suddenly turn around and argue that the electoral college isn’t allowed to function as it was designed to function.   

This, in effect, seems to be Hasen’s position.  He argues that “the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state” and that if “we expected them to exercise independent judgment we would spend time vetting them.”  The fact that we expect them to automatically adopt the popular result in each state does not mean that they historically have done this or now must do this.  If the popular vote in the state results in a qualified, reasonable candidate–as it historically has–then there would be no grounds for the electors to step in and do anything other than ratify that choice.  But make no mistake, they have retained the option not to ratify that choice since the electoral college was conceived.  And if their historical consistency in ratifying the popular choice has caused us to lapse in our duty to vet them, that would be our fault, not theirs.

After all, many states have passed “faithless elector” laws that provide for the punishment of electors who deviate from the statewide popular vote results.  Why pass these laws at all unless you recognize that the electors, in fact, retain the capacity to vote otherwise?

Hasen also points out that electors nowadays are “generally loyal party members.” But that makes the idea of someone “going rogue” even more important.  If a party loyalist finds his or her party’s own candidate so unqualified that he or she cannot in good conscience vote for the candidate, that should tell us something.  The electoral college need not be comprised of full-fledged “platonic guardians” who completely disregard the popular vote results to still serve its core function: conducting a separate, thorough, discerning evaluation of the candidate to determine whether they are a qualified and reasonable choice for the highest office in the country.

The Constitution was adopted with the electoral college as the method for choosing president.  Unless and until we reform our method of choosing president, that is the process we operate under.  And this approach was specifically devised to ensure the election of a qualified individual.  As Hamilton wrote, in attempting to convince the state conventions to ratify the Constitution and the electoral college process in the first place:

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

We have all cast our votes.  Now, we must let the electors cast theirs.  As Hasen said: “The election was run under the electoral college system.”  Those electors are charged with a most sober, solemn, and serious duty.  Is that to vote for Trump?  Clinton?  Or another option?  We’ll soon find out.

Today, I’m Thankful for: Whitford v. Gill

In a recent post, this blog examined the most significant racial and political gerrymandering cases unfolding in the year ahead. And, just in time for Thanksgiving, the United States District Court for the Western District of Wisconsin has issued an historic decision in one of those cases—Whitford v. Gill (3:15-cv-421)—and has struck down a state legislative redistricting plan as an unconstitutional partisan gerrymander for the first time ever. This is something we can all be thankful for, and special thanks are due to the Campaign Legal Center, which helped bring the case, and Nick Stephanopoulos and Eric McGhee, who set out the “efficiency gap” test put forth in the case.

Although the parties are yet to brief the district court on the proper remedy to be applied, an appeal to the Supreme Court is undoubtedly forthcoming. There, the case will await review along with Harris v. McCrory (16-166), which is likely to be heard or decided in the aftermath of the Court’s decision in McCrory v. Harris (15-1262). What are the odds that the decision is upheld? Let’s carve into the district court’s meaty opinion (sorry, give me one holiday pun), and find out.

 

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The Year Ahead in Racial and Political Gerrymandering Law

When President Obama called for an end to gerrymandering in his final state of the union, it was a rare moment of primetime coverage for a typically arcane subject: redistricting. But this topic is getting increased attention, especially after 97% of incumbents who chose to run were returned to office this year despite the electorate’s strong “anti-establishment” sentiment. Political writers have called the last round of post-census redistricting “the most audacious political heist of modern times,” celebrities (such as Zach Galifianakis) have taken up the cause, and activists in several states have legislative reform efforts underway.

The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.

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President Trump: Now What?

Election Day shook the nation to its core and left many across the political spectrum wondering exactly what happened and where to go from here. Although the despair on the political left has begun to give way to charges of renewed efforts and steely resolve, the refrain feels more like a reflex than a meaningful strategy. The response that next time people just need to organize better or work harder seems to ignore a central theme of Trump’s campaign, Bernie’s campaign, and the entire 2016 election: the establishment does not care about you.

Consider this quote from Trump’s campaign: “Tonight’s election demonstrates what most Americans knew since the beginning of the primaries: the political elite of both parties, the economists, and the media are completely out of touch with the American electorate.” Oh wait, that was the press release from “Our Revolution,” the legacy organization of the Sanders campaign. Rage at an entrenched “governing class” was a touchstone for this election, regardless of party preference.

“Draining the Swamp”

Everyone should stand ready to fight the good fight and work hard to effect change in our democracy, but many rightly feel that it shouldn’t be this damn hard for elected officials to be accountable to their constituents and represent their interests. Yes, we must continue to organize and listen and learn and fight—that is the essence of self-government—but if the fight is always conducted within the same system with the same flaws, we should not be surprised when the grip of futility tightens and the urge to hand power to “strong” leaders takes hold. We should all take notice when a majority of Americans in several states respond that they find Trump unqualified—even scary—and vote for him anyway in order to “shake things up” in Washington. When voters are covering their eyes with one hand and tossing the dice with the other, we’ve got a serious problem.

In other words, if we’re asking where to go from here, we might need to get back to basics and focus on how our democracy works. Despite the popular refrain to “throw the bums out,” the problem is not corrupt people in Washington – the problem is a corrupt system that entrenches representatives, incentivizes conflict and stalemate, and rewards responsiveness to fundraisers, lobbyists, and existing power structures rather than accountability to regular constituents. (Why else would 97% of incumbents who chose to run again be reelected in an “anti-establishment” year?) Sanders and Trump alike decried the corruption of our political system and the influence of money in politics. Large numbers of voters cast third-party tickets despite the almost-inevitable consequences of doing so. A number of state and local initiatives echoed this broader desire to upend the existing system: Every Voice points out that “[a]cross the country, in red states and blue states, voters supported measures to fight big money and strengthen our democracy.” In Speaker Paul Ryan’s home of Rock County, Wisconsin, 86% of voters approved an anti-Citizens United resolution, and in Maine, voters approved ranked-choice voting. These aren’t normal party-line positions.

We should champion these changes. Voters who increasingly yearn for a viable third party, for example, need to step up their efforts between elections rather than during them. At the time of the election, the choice is either to accept political reality (and cast a tactical ballot for a candidate you don’t believe in) or to reject political reality (and waste a futile ballot on a candidate who can’t win). Between elections, however, there’s an opportunity to change political reality (and challenge the single-member districting and plurality voting laws that stack the deck against third-party candidates in the first place). Ranked choice voting, for example, could have given all voters the chance to vote for their first choice of president without sacrificing their ability to influence the race between their second and third choices for president. Such changes can play a huge role in congressional representation as well. FairVote, for example, recommends a “fair representation voting” approach which mixes elements of proportional representation with our country’s history of candidate-based elections. Such reforms could have a seismic impact on the viability of third parties and the ability of the legislature to more closely reflect the electorate’s diverse makeup and beliefs.

Clinton and Trump supporters alike should also press Trump to keep these fundamentals in mind when he inevitably appoints Justices to the Supreme Court. If Trump looks to the Republican establishment to bless his selections, the anti-establishment left and right should raise hell. After all, the Supreme Court itself bears much of the blame for the current state of our politics. The Supreme Court has fueled the unbridled influence of money in politics through its campaign finance cases over the past forty years and has permitted the entrenchment of partisan gerrymandering over the past thirty years. All of this has carried legislators’ interests farther and farther away from the voters they’re supposed to represent. And when you slowly erode the peoples’ ability to influence the legislative branch, you should not be surprised when they elect an executive who promises to plow through legal niceties.

Hard Facts and Hard Realities

This rage at the “elites” has also upended the nature of our political debate. Despite all the discussions over whether we’ve entered a “post-factual” era of biased information—and perhaps we have—we’ve failed to acknowledge the legitimacy of our fellow citizens’ lived experiences. The academic consensus and macroeconomic data may suggest that free trade enhances net welfare, but that fact is hardly relevant to the day-to-day reality of someone who lost their job. A 5% cheaper set of dinner plates doesn’t feel like progress when you can’t buy food. A Congressperson’s well-researched and polished set of talking points don’t really cut it when you haven’t seen him or her show up in the community and ask how you’re doing. These realities may not negate the facts, but they should inform the debate. This isn’t a liberal problem or a conservative problem; it’s a humility problem. Women and communities of color have their lived experiences discounted and their realities ignored on a daily basis. The fundamental need to be heard and respected cannot be debated into submission. So if the main point of this year’s election was to throw one perfectly-normal-sized middle finger at the system, then the opposition should not be surprised when they’re asked to take their manila folder of policy positions with them on the way out. That’s not to dismiss the importance of facts and rational debate in a democracy; it’s just a warning not to dismiss the frustration of an electorate that has reached a point where they’re ready to burn the house down in order to make a fresh start. At that point, arguments about the property-insurance implications are too little too late.

The Whitelash

Of course, the people who are included in this “fresh start” matter. Racism, sexism, xenophobia, anti-Semitism, anti-Islamism, and hate animated a core part of Trump’s base. One poll found that a third of Trump’s primary supporters believed in banning gays and lesbians from the country and twenty percent said Lincoln shouldn’t have freed the slaves. Re-read that.  Reflect on it. To try and argue that these supporters were conveying any kind of legitimate political or economic grievance is insulting, ignorant, and the pinnacle of privilege.

That is not to say all Trump voters cast a ballot for him for the purpose of expressing such a message. Many Trump supporters have disclaimed the words and actions of this element in their midst, and I do not doubt the sincerity of their beliefs. It’s fair, however, to doubt the sincerity of their commitment. A large contingent of voters who do not “agree” with such hateful views can nonetheless attend a rally along with a man wearing a swastika because doing so poses no threat to them. The same cannot be said of everyone that man will encounter once the stadium empties. Now that Trump is our president-elect, those who voted for him but claim to care about racial, sexual, and religious equality face a key test: what will you actually do about it? It is not enough to disagree with the violence and vitriol if you elect the candidate who condones it and normalizes it. (It’s not enough even if you didn’t vote for that candidate.) By failing to condemn and reject these followers, Trump has emboldened our nation’s worst impulses and put people of color, women, and religious minorities in even greater danger than before. This isn’t liberal hyperventilation or imagination. This is real. Pushing back against this direction over the next four years will take far more than words and will require constant vigilance, activism, and litigation. We will need to look out for one another, protect one another, respect one another, and fight against this fresh surge in intersectional hatred.

Next Steps

So yes, Democrats and progressives, begin to prepare for the next big battle. Prepare to organize. Prepare to mobilize. But if you want your organizing and mobilizing and political engagement to create meaningful and durable changes in the future, think about ways to change the underlying systems that are compounding this nationwide frustration and think about ways to start bringing swing voters back into the fold. I recognize this kind of outreach seems impossible—even unacceptable—right now. But this isn’t a call to sing Kumbaya or suddenly warm to Trump. I’m terrified of the incoming Administration, and I don’t plan on hiding it. This is a man who thought Tiananmen Square was a “show of strength,” praises the “leadership” of dictators around the world, proudly proclaims that he seeks revenge against his adversaries, sues and slanders his critics into silence, and now has the nation’s military, investigative, legal, and intelligence arms at his disposal. And his various advisors don’t sound any better. In my view, Trump is an erratic, race-baiting, unqualified, and dangerously thin-skinned misogynist authoritarian. (This blog is nonpartisan, not opinion-less.) But, as it turns out, there may be a sizable segment of Trump voters who share many of these same fears and voted for him nonetheless.

You may be tempted to say “to hell with those people.” Breakdowns of the Trump electorate show that it skews much older and whiter, and many Clinton supporters would probably be more willing to simply bide their time and wait for demographic shifts to change the balance of power than engage with a Trump voter. That would be a mistake. In the immediate term, those whose lives and livelihoods are threatened by the nationwide uptick in overtly racist and hateful acts don’t have the luxury of generational patience: priority number one must be getting swing Trump voters to step away from the campaign and fight against these parts of the Trump coalition rather than being defensive about their presence in the Trump coalition. Otherwise, the outrage will only galvanize and unify Trump voters, pushing moderate voters in the coalition closer and closer to the newly emerging (or, rather, newly visible) alt-right and cementing the dangerous dynamics at play in this election for generations to come. In the intermediate term, progressives and principled conservatives alike must work to bring enough Trump voters back into the fold to put effective checks in place in the House and Senate in the midterm elections just two years out in order to hold the Administration accountable. And finally, in the long term, we must recognize that an inward turn towards “my” group and “my” people is the beating heart of tribalism. The inward turn of Trump supporters cannot be defeated by a stronger inward turn on the part of his detractors. Such a culture doesn’t out-survive an enemy; it only makes new ones.

Most Americans have had enough of feeling unheard and unseen by our government. For many that includes being fed-up with the very currents that swept Donald Trump to the presidency, but we are all fed up nonetheless. Maybe being “fed up”—and wanting “big changes”—is too small a point of common ground to build from. Maybe our reasons for being “fed up” are too far apart to reconcile in any way. And, if so, maybe we’re doomed from here on out to watch our gladiators do battle every four years as we grow more terrified in our losses, bloodthirsty in our victories, and primal and vitriolic in our culture and dialogue.

But if there’s any hope at all to be found in our future—our common American destiny—then we ignore this last bit of shared purpose at our peril. In his acceptance speech, Donald Trump “reached out” to those who had not chosen to support him to ask for their guidance and their help to unify the country. He would be well served to start here and try to respect the few common wishes of his supporters and his detractors. If we’re going to burn the house down, then it’s time we all start working together on a blueprint for the replacement. And fast.

Update: Before I finished working on this post, word began to trickle in that Trump’s transition team is “drawing squarely from the ‘swamp’ he has pledged to drain.” (Or, as Stephen Colbert has said, the cabinet members are “exactly what I’d expect to find at the bottom of a drained swamp.”) There could hardly be a better example of the self-perpetuating tendencies of existing power structures.  This is not a promising start for the “anti-establishment” vote. It’s time to organize. All of us.