If attendees arrived depressed, with Democrats newly moved into the White House and controlling both branches of Congress, they partied like reigning rock stars. State legislators and lobbyists dined on $84 Chateaubriand with burgundy and mushroom sauce at Jimmy Kelly’s steak house, the historic oak-walls-and-oil-painting clubhouse for Nashville’s power set. They tasted the New South at Flyte World Dining and Wine, where the fabled bar snacks included Pad Thai popcorn with sambal caramel and the Carolina Gold Rice Risotto trimmed with a sweet corn and truffle custard.
Corporate sponsors at the $40,000 level were treated to a special Capitol Grille lunch at the Hermitage, where the Porter Road dry-age specials once roamed free among the spring-fed creeks of the hotel’s 250-acre Double H Farm. Everyone could tee off from the Hermitage’s President’s Reserve Golf Course, or gaze upon Elvis Presley’s solid-gold Cadillac limousine at the Country Music Hall of Fame.
When the Republicans were not enjoying the manicured links or the hand-crafted cocktails, however, there was serious business on the agenda.
A few minutes before 8 a.m. on Monday, June 8 — awfully early for any delegate who’d indulged in one too many Jack’s Mules or Fat’s Smashes at the Hermitage’s Oak Bar the night before — Thomas Hofeller unveiled the audacious strategy that would soon transform American politics.
Hofeller, the master GOP mapmaker and white-haired veteran of the most important decennial wars in politics, delivered a presentation called “Redistricting 2010: Preparing for Success.” What he laid out that Monday morning, apparently for the first time before Republican state legislators, explains why the Republican Party now dominates all levels of American politics despite a polarized and closely divided electorate that generally tends to favor Democrats. It was the GOP strategy to reinvent the gerrymander.
If there is to be a blue wave in 2018, it will need to overcome a red seawall that was exactingly designed beginning a decade ago, and has proven impermeable in state after state ever since. Even in Virginia last November, Democrats won nearly a quarter of a million more votes than Republicans — and it still wasn’t enough to overcome district lines rigged to guarantee GOP a built-in advantage. In Alabama, where Doug Jones recently became the first Democrat elected to the U.S. Senate in decades, disgraced GOP candidate Roy Moore still carried six of the state’s seven gerrymandered congressional districts.
Those kinds of results — Democrats winning more votes, Republicans holding more seats — have become almost commonplace this decade. It’s not a coincidence.
The visionaries at the Republican State Leadership Committee, who designed the aptly-named strategy dubbed REDMAP, short for Redistricting Majority Project, managed to look far beyond the short-term horizon. They designed an audacious and revolutionary plan to wield the gerrymander as a tool to lock in conservative governance of state legislatures and Congress.
It proved more effective than any Republican dared dream. Republicans held the U.S. House in 2012 despite earning 1.4 million fewer votes than Democratic congressional candidates, and won large GOP majorities in the Ohio, Wisconsin, Michigan and North Carolina state legislatures even when more voters backed Democrats.
Now new court documents, previously unrevealed emails, and once-secret internal documents — most revealed here for the first time — uncover how early the Republican planning began, how comprehensive the redistricting strategy was, and how determined conservative operatives were to dye America red from the ground up. It’s the story of how strategists wooed deep-pocketed donors to contribute hundreds of thousands of dollars (often in untraceable dark money) and convinced them that winning state legislative seats offered the best opportunity for enduring GOP control at a bargain-basement price.
It’s the behind-the-scenes narrative of how Republicans set their sights on 107 state legislative seats in 16 states, with the goal of pushing dozens of U.S. House seats into their column for a decade or longer. It captures their glee as 2010 turned into a big red wave year, and GOP strategists defended all their state chambers, expanded their push deep into Democratic country and caught the other side flat-footed in a deeply consequential year.
Success like this breeds many narratives. Politico finds REDMAP’s roots in a mid-2009 meeting in former Republican National Committee chairman Ed Gillespie’s office in Alexandria, Virginia. They credit Gillespie, then chair of the RSLC and more recently the GOP candidate defeated by newly-elected Virginia Gov. Ralph Northam, with the idea. In my book “Ratf**ked,” which traces REDMAP and its state-by-state consequences, RSLC executive director Chris Jankowski remembered reading a summer 2009 New York Times story suggesting that 2010 governors’ races provided Republicans a road back, saying that he then understood the opportunity an unpopular president and a redistricting-year midterm wave might present.
It turns out that both of these origin stories obscure the actual start of these efforts by almost a year and a half.Thomas Hofeller’s presentation at the Hermitage on June 8, 2009, came six weeks before the New York Times story that inspired Jankowski. Gray-haired and wearing rimless glasses, Hofeller debuted a history-shaping PowerPoint that walked Republicans through their path back to power.
Sure, the 2008 election, in which Barack Obama had swamped John McCain and Democrats expanded their majorities in both the House and Senate, hadn’t gone the way anyone in the room had hoped. But 2010 was another story: It was a census year, and a redistricting year. Somebody had to be in charge. Hofeller wanted it to be his side. “Not playing,” he told the room, was “not an option.” Whatever the results of redistricting turned out to be, “we live with them for five elections.”
Republicans, Hofeller said, must be fully prepared and engaged on multiple fronts — and he told state legislators that they would play the starring roles. He explained how in more than 40 states, state legislatures drew both their own state House and Senate districts, along with the vast majority of the 435 U.S. House seats. He walked through the importance of being in the room when the new lines were drawn. He emphasized that the state legislative elections in 2009 and 2010 represented the party’s last chance to influence its position at what he called the “redistricting table” when line-drawing began after the census — and suggested how meaningful it could be to be the only people in the room.
Hofeller reminded the legislators that the Democrats had dominated this process in 1990, with complete control over 172 seats while Republicans owned merely five. By 2000, GOP prospects had improved, narrowing the GOP edge to 135-96. Republicans, Hofeller said, could do even better in 2010. Along with Lynn Westmoreland, a Georgia congressman, he laid out the details: The party would target control of state legislative chambers that either party held by five or fewer seats. They’d double down on states where the governor had veto power over the maps. And there would be plenty of money to fund key campaigns, upgrade technology, recruit and train candidates — and then to guarantee that every state legislature had a redistricting lawyer and litigator.
That money, these newly revealed internal RSLC documents reveal, began flowing from early 2008 fundraising appeals that were already focused directly on post-2010 redistricting.
“The more Republicans we can elect to state house chambers this year, the stronger our Party will be as we confront the redistricting decisions that will follow the 2010 Census,” wrote Scott Ward, then the RSLC’s president. Ward hoped to raise $1.5 million before April 2008. This would be a “’must win’” battle,” he continued, “and we must start now to gain the upper hand!”
When Ed Gillespie took charge of the RSLC, however, targets expanded from direct-mail small-fry to boardroom big-shots. These new documents reveal the first two PowerPoints that Gillespie brought on the road looking to reel in $30 million from GOP whales: Big Oil, Altria, Walmart, AT&T and the U.S. Chamber of Commerce. The first, from December 2009, was primitive and unpolished. It even suggested that the 2010 census would take place in 2011.
Perhaps its most important detail is buried in the appendix: Thirty-eight legislative chambers in 19 states will control the drawing of 253 congressional seats. This report even laid out the number of credible candidates and credible targets in each of those state chambers. But the goal was clear: Gillespie and Jankowski explained to donors that they were “drawing maps for the next five elections” and that “whoever controls that process controls the drawing of maps — shaping the political landscape for the next 10 years.”
By early 2010, the presentation had become sophisticated and precise. Its opening pages, revealed here, are titled “Congressional Redistricting: Drawing Maps for the Next Five Elections,” and it begins with a question: “How do we create 20-25 new Republican Congressional districts over the next five cycles and solidify a Republican Congressional majority?” The answer? “Control the redistricting process!”
“Maps matter,” the RSLC presentation continues. It calls maps the first tool in winning elections. In Texas, it explains, Democrats controlled the congressional delegation by a margin of 17 to 15 before the GOP won back the state legislature. Once Republicans had the pens in their own hands, that swung to 21-11 in the GOP’s favor the very next election.
The same process played out in Pennsylvania, where 11 Republicans and 10 Democrats had represented the state in 2000, before reapportionment cost the Keystone State two seats. Republicans controlled the legislature and “drew maps that put two Democrat Congressman into the same district and another in a heavy Republican district.” The result? A 12-7 GOP delegation on the new maps in 2002. In Georgia, however, which also received two extra seats after the 2000 reapportionment, Democrats ruled redistricting. The result, according to the RSLC? “Total Democrat control and a desire to maximize black Democrat representation resulted in a highly gerrymandered map.”
What will it take to dominate redistricting? Gillespie lays it out as an equation: Republicans can win 20 to 25 new seats in Congress for each of the next five electoral cycles with a $31.5 million investment on state legislative races in 2010. The cost of not acting? If the Democrats controlled those seats, or they remained swing districts, he estimated that mounting competitive campaigns in those 20-25 districts would cost $255 million over the next decade.
That $31.5 million would be spent micro-targeting state legislative districts that Republicans identified as crucial to winning state legislative chambers and dominating redistricting. There would be 6,000 state legislature races nationwide in 2010. The RSLC zeroed in on 107 of those in 16 states. Win those, according to the report, and Republicans could “fully control or affect the drawing of 9 new Congressional districts” awarded during reapportionment in Florida, Georgia, Nevada, South Carolina, Texas and Utah. They could also affect the redrawing of maps in five states that were losing six districts after the census: Iowa, Michigan, Ohio, Pennsylvania and New York.
Finally, the RSLC proposed “strengthening Republican redistricting power by flipping 15 chambers from Democrat to Republican control” and defending nine other GOP majorities. The key targets: Alabama’s house and senate, both chambers in Colorado, the Indiana and Iowa house, the Nevada and New York senate, both chambers in North Carolina, Ohio’s house, the Oregon senate, the Pennsylvania house and both chambers in Wisconsin.
If Republicans didn’t make this investment, the Democrats — who were “organized,” “well-funded” and “focused on state campaigns” — just might. Unions had spent $126.6 million on state elections in 2008, he cautioned, and donated just under $5.4 million to Republicans. What Gillespie and his team could not have known was that the highly prepared RSLC had already figured out Pokemon Go, while equivalent groups on the Democratic side were trying to get a stickball game going. Democrats lacked the imagination to see redistricting in a new way, and failed to play defense in those 107 districts — even after a March 2010 Wall Street Journal op-ed by Karl Rove laid out the plan.
“We were prepared for the fights of the past,” Jessica Post, now the executive director of the Democratic Legislative Campaign Committee and a key leader behind the 2017 Democratic special election wins, told me for the epilogue of my book. “We could have done a better job of communicating to stakeholders what 2010 meant. When you’re in a legislative world you assume everyone knows.”
Republicans made no such assumptions. Gillespie presented the PowerPoint before movers and shakers in D.C. and nationwide, making the case that redistricting provided the GOP’s path back to power — at a discount-store price. “There is a lot at stake this year with state election results determining which party will draw U.S. House district boundaries in 2011,” Gillespie wrote the moneyed in-crowd invited to one such event, a redistricting breakfast at the powerful Nixon Peabody law firm. “What happens in state legislative races in 2010 will directly impact and shape the political landscape in Washington for the next 10 years.”
Not every effort was focused on the well-connected. The RSLC sent robocalls into Texas in June 2010 issuing the blunt message to Republicans that a Democratic majority in the Texas legislature could mean four more “Democrat Congressmen” in Washington. “Republicans only have a three-seat majority in the Texas House and there is a real possibility that Democrats could take the majority and elect a liberal Democrat speaker,” the taped call warned. “And then they’ll be in charge of the important redistricting process that will occur after the 2010 Census.” The call included three asks: The first at $75 or $100, the second at $50 or $60, the third, in order to “fight against Washington and President Obama,” settled for a smaller amount: “Can we count on you for $25 or would $30 be better today?”
But a goal of $30 million meant tapping deep pockets, and by late spring 2010, the big money was arriving. The 2010 national meeting of the RLCC was held in Atlanta from June 13 through 15 at the St. Regis Hotel. This time, agendas and calendars reveal, even the special sponsors breakfast required a $40,000 membership, and some of the biggest names in corporate America — Comcast, Coca-Cola, Altria, Archer Daniels Midland — were on board.
Gillespie presented at the State Leadership Luncheon and walked attendees through a June 2010 report, unreported until now, that included four tiers of state targets, focused on Michigan, Ohio and Texas — “where Republicans could gain as many as 14 new House seats” — as well as the New York senate and Pennsylvania state house, where he suggested a pick-up of four seats was within reach. In all, Gillespie suggested the GOP could control 25 new House seats. while also picking up or holding eight state chambers. Eight additional chambers were toss-ups, with 16 more in play. “These predictions,” he added, a message to the money-men in the room, “assume REDMAP is fully funded.”
The roadshow roared through the South in June and July. Art Pope, a deep-pocketed and influential benefactor of conservative politics and ideas throughout North Carolina, hosted one event in Raleigh. Pope’s invitation, previously seen only by invited guests, was fiery: “As you know, in North Carolina, the Democratic Party drew gerrymandered Congressional and legislative districts, to rig the election results so that the Democrats won the majority of the seats, even when the majority of the people voted Republican,” he wrote. “We cannot stand by and let this happen again in 2011.”
Pope would put forth $36,500 of his own money for the RSLC that summer. The RSLC, meanwhile, sent $1.25 million to a group within Pope’s powerful network, Real Jobs NC. As detailed by the New Yorker’s Jane Mayer, Real Jobs NC filled North Carolina’s airwaves with negative ads. Pope and groups closely related to him spent some $2.2 million targeting 22 Democratic legislators who were crucial to defeat if Republicans wanted to take control of state government. They beat 18 of them.
In his previously unseen thank-you note to Pope, Gillespie raved that their efforts were “a success and would not have been possible without your leadership and active participation.”
Other wealthy donors earned a more personal touch. Dr. John M. Templeton, president of the $28 billion John Templeton Foundation, would often write six-figure checks to conservative causes, especially those battling same-sex marriage. Understandably, Tim Barnes, the RSLC founder and finance chair, spent part of his summer reeling in this big fish. A previously unseen memo he sent Templeton on July 6, 2010, shows how Republican strategists framed their plans for the funders they needed most.
Barnes opens with down-ballot victories in 2008 and 2009: The GOP had registered 61 special election wins since Obama’s inauguration, plus off-year gains in New Jersey and Virginia. He described what the RSLC had already established in 2010: Seventy-two campaign schools for candidates and staff, a centralized data center for polling data and opposition research, the $14 million already in the bank.
But more would be needed for real change. Perhaps twice as much, Barnes confided; 2010 was looking good, “with the potential to be great.” That’s when he pivoted to REDMAP, a “program dedicated to winning state legislative seats that will have a critical impact on redistricting in 2011.” Barnes expressed optimism about the political climate. “It is only July and it is clear the GOP will hold every state legislative chamber that was thought to be in danger just 12 months ago,” he wrote, naming the Texas and Tennessee house and Michigan senate as newly safe.
“If REDMAP accomplishes its goals (107 key races in 16 states) we can gain control of up to 25 congressional seats in redistricting — a key advantage going into 2012 congressional elections,” he concluded.
By the July 2010 report to donors, the RSLC could also report stellar political and fundraising results. In the group’s first political report to donors and others, it’s clear that REDMAP would be fully funded and that a Republican wave was taking shape. The RSLC could already predict to insiders that Democrats would not take control of a single state legislative chamber in 2010. Four GOP pickups appeared solid. Twelve Democratic chambers were in play. Better still, they wrote, key swing districts could be wiped off the table: “Nearly half of the traditionally swing districts,” they boasted, “will be redrawn by Republicans before the 2012 election cycle.”
There was even better news for the private September 2010 briefing, these new documents reveal. The RSLC predicted it would hold every GOP chamber, pick up at least 10 Democratic chambers, and place another 17 in play — all of them then held by the Democrats. “Because all GOP Chambers are ‘safe,’ number of key races is expanded to 119 races in 17 states.” That’s up from the 107 key races in 16 states from the original REDMAP plan. “The congressional redistricting impact is increased to 30 seats.”
Republicans spent October executing the final step of the plan: A negative-ad blitz dropped on Democratic state legislators during the last six weeks of an already challenging electoral cycle. REDMAP would spent more than half of its $30 million after Labor Day. As all the late money and negative ads hit, Democratic incumbents across Pennsylvania, Michigan, Ohio and Wisconsin were buried. Republicans took both chambers in Wisconsin, which would become a laboratory for conservative governance in a purple state. They walked away with both houses in Pennsylvania, Ohio and Michigan. Republicans captured Alabama’s legislature for the first time in decades. North Carolina fell their way, as did Indiana. In total, 680 state legislative seats changed hands. It was, as President Obama called it at the time, a “shellacking.”
Obama had no idea just how decisive it would prove: Republicans would hold the House for the rest of his presidency. Jankowski, however, realized exactly what it meant. Before going to bed that night, he told an Associated Press reporter that Democrats “will not soon recover from what happened to them on a state level on Tuesday. It was significant. It was devastating in some areas. It will take years to recover.”
Indeed, even while Democrats sense momentum as we draw closer to the 2018 midterms, the path back to power is steep. Republicans control nearly 70 percent of all state legislative chambers. Democrats have not flipped a congressional seat from red to blue during this entire decade in such ostensible swing states such as North Carolina, Michigan, Ohio, Pennsylvania and Wisconsin. Those states alone currently send 49 Republicans and 20 Democrats to Washington — a 29-seat edge that’s larger, all by itself, than the overall current GOP House majority.
Democrats bled nearly 1,000 state legislative seats nationwide during the Obama era. They hold fewer than 40 percent of the lower-house seats in those five crucial purple states, with the sole but instructive exception of Michigan. In that state, Democrats have gotten more aggregate state house votes than Republicans in each of the last three statewide cycles, but nevertheless have been unable to win more than 42 percent of the seats.
National polls suggest that Democrats have a significant lead on the 2018 generic congressional ballot — but multiple scholarly models suggest they’ll need to maintain an improbable advantage even to have a shot at winning a majority of the seats. Such an edge can dwindle fast: In October 2016, Democrats held an edge of 7 to 10 points in similar polls conducted by Reuters and NBC. Three weeks later, Republican candidates won more votes. How important are maps? Well, just to put this in context, the big GOP wave in 2010 was produced with 51.7 percent of the vote — far less than what Democrats will need this year.
That proved to be the right wave at the right time, with the right strategy. But the Republicans did not stop on Election Day and that explains why their advantage has proven so durable all decade. According to previously unreported meeting minutes, December brought a senior leadership retreat to get moving on 2011 and 2012, with an agenda including “what changes, what stays the same, amount of travel and where, other assistance, Karl Rove, Newt Gingrich, etc.” There was discussion about funders who proved very nervous to be identified with such a project: “We talked briefly about the disclosure issue in raising money for REDMAP. The extent at which companies and individuals were concerned about disclosure ... was far greater than expected.”
After that it was time for another PowerPoint for the 2011 fundraising road show: “Many commented on how well organized and good the REDMAP PowerPoint was during 2010, looked like we were ahead of DLCC, knew what we were doing, etc.” The PowerPoint had to be ready for March. Fundraising needed to be underway by April. Nothing would be taken for granted.
Jankowski and Gillespie scheduled another Nixon Peabody breakfast to let the legislative leaders know that the RSLC would assume the advisory role on redistricting usually handled by the Republican National Committee. According to the previously private invitation, Gillespie and Rep. Tom Reynolds of New York, the former REDMAP chairman, would “discuss the important impact our efforts will have in securing and increasing the Republican majority in the U.S. House.”
The RSLC’s 527 arm, the State Government Leadership Foundation, stood ready to help and to foot the bill. REDMAP’s ultimate success, after all, would come not from winning in 2010, but from capitalizing on that victory for the next decade. They retained “seasoned redistricting experts” — led by Hofeller, presenter that original 2009 PowerPoint in Nashville — who would stand by, “happy to assist in drawing proposed maps, interpreting data, or providing advice.”
While one side of the operation focused on maps, the RSLC communication wing drafted op-eds under the name of Reynolds and his congressional colleague Bill McCollum of Florida, among others. They argued that Democrats faced oblivion at the state level because voters consistently rejected liberal policies. “It’s not about the maps, it’s about the message,” the RSLC argued. For more than two years, in one PowerPoint after another, from Nashville to Houston to Louisville, in fundraising pitches to zillionaires and small donors, the message was simple: Maps matter. Once victory was in hand, the message pivoted 180 degrees.Gillespie took his victory lap at a private thank-you gala alongside RSLC’s legislative leaders. The “REDMAP Appreciation Luncheon” was held on March 7 at the tobacco giant Altria (formerly Philip Morris). The invitation spells out just how much Republicans had to celebrate. “In the 70 congressional districts that were labeled by National Public Radio as ‘competitive’ in 2010,” Barnes wrote, “Republicans now control the redrawing of at least 47 of those districts.” Behind closed doors, of course, maps still mattered.
Gillespie’s final talking point that day: “Conclude with thanking the RLCC corporate members for their investment. We did not spill a drop, [and] made maximum impact.”
How John Roberts may slow-walk American democracy right off the cliff
It's never an issue for this U.S. Supreme Court to move the goalposts, change the rules or simply make up them as it goes along. No knowledge of constitutional precedent, American history or even textualist theory is necessary to understand this radicalized court. An entrenched conservative supermajority has the power to bulldoze it all. And so they have.
This disciplined approach and fanatical agenda has had deep consequences. It has unleashed billions of dollars in dark money into our politics, eviscerated much of the Voting Rights Act, green-lit partisan gerrymanders that entrench one-party conservative rule, dismantled giant pieces of the regulatory state and demolished reproductive rights in much of the nation.
Now this grim band of robed ideologues appears ready to march us deeper into minority rule.
Last week, the court heard oral arguments in Moore v. Harper, a case from North Carolina brought by determined Republican lawmakers and funded by right-wing dark money. Those legislators in the Tar Heel Statehave spent the last dozen years drawing gerrymandered maps that guarantee their party more than 70 percent of the congressional delegation in what might be the America's most closely divided state.
North Carolina's state supreme court, equally determined, struck that rigged map down this year as a violation of the state constitution's guarantee that all elections must be free and fair. The court ruled that maps surgically drawn to ensure Republicans would win at least 10 of the state's 14 seats in the U.S. House, regardless of how citizens voted, fell far short of that standard.
Republicans bristled when the state court disallowed their tilted maps, and responded with a federal lawsuit asserting that the U.S. Constitution provides the state legislature with the sole power to manage the time, place and manner of federal elections. This notion has become known as the Independent State Legislature doctrine (or ISL), and it claims, wildly, that state constitutions and state supreme courts cannot constrain state legislatures at all when it comes to how elections for federal office — the House, Senate and, yes, the president — are administered.
It's an insane and dangerous theory, not grounded in American history, basic checks and balances, constitutional theory, longstanding practices of judicial review, or even the reality of the last 233 years of our politics. This discredited and anti-democratic notion provided the underpinning for the "Big Lie" that sought to keep Donald Trump in power on Jan. 6, 2021, with phony slates of presidential electors from states Trump did not actually carry.
What's more insane is that the Roberts court seems ready to embrace it, at least in some reading.
Most legal analysis of last Wednesday's oral arguments has concluded that the court does not seem likely to endorse the most maximal reading of the ISL theory. While it's never safe to predict outcomes based on oral arguments, it seemed apparent that three Republican justices (Clarence Thomas, Samuel Alito and Neil Gorsuch) were ready to embrace ISL, three liberal justices (Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor) stood opposed and the three other conservatives (John Roberts, Amy Coney Barrett and Brett Kavanaugh) appeared open to a more limited version of ISL.
But a compromise between reality and crazyville that stops just short of bonkers doesn't provide any comfort. And any half-loaf ISL that emerges from Wednesday's arguments is an egregious and intentional misreading of the actual threat to American democracy — and one that will make it even more difficult to address the real dangers. If you listen to the three hours of oral arguments in this case, you might come away thinking that the problem we face is a rash of runaway state supreme courts asserting extra-constitutional powers to thwart state legislatures from fairly drawing maps and administering elections.
But absolutely the contrary is true: State legislatures, after gerrymandering themselves into permanent power and insulating themselves from the traditional controls of the ballot box, then gerrymander congressional maps for their side, lawlessly brush aside citizen-driven ballot initiatives and constitutional amendments meant to rein in their powers, and embrace nonsensical conspiracy theories about voter fraud when there is no voter fraud. The ISL theory would worsen all of this dramatically, potentially freeing state legislatures from almost any constitutional checks and virtually guaranteeing that the nightmare scenario barely averted in January of 2021 has a better chance of succeeding next time.
This theory could also put an end to independent redistricting commissions and many other voter-driven electoral reforms won via statewide ballot initiative. Perhaps most importantly, in some states, supreme courts have been the last remaining avenues for citizens to reclaim their democracy from legislatures so gerrymandered that lawmakers need not listen to anyone. The ISL — in most any version, "compromise" or otherwise — could shut down the best path voters in North Carolina, Ohio, Pennsylvania, Wisconsin and elsewhere still possess to restore representative democracy in states that have been tilted into minority rule by extreme gerrymanders. This is the very reason why this theory has surfaced now: State courts, state constitutions and citizen-driven initiatives have proven the only way around GOP gerrymanders that have blocked the will of the people in some states for more than a decade. This can be understood as the latest ploy in a relentless, systematic effort to shut down every avenue of reform that threatens GOP control.
It is sadly unsurprising that the Roberts court, once again, appears to be siding with forces that would worsen our crisis of democracy. After all, this court has repeatedly struck the match and acted as an accelerant to constitutional crisis again and again, whether setting billions of dark money loose in the Citizens United decision, gutting crucial provisions of the Voting Rights Act or enabling this gerrymandering free-for-all.
But it's both surprising and depressing that court watchers and the news media continue to portray Roberts as an institutionalist and incrementalist beset by conservative revolutionaries. In fact, the chief justice is not trying to stop the arsonists to his right, but only seeking to reach the same extreme destination more slowly, pulling out the foundational support beams one at a time rather than setting everything ablaze.
Thomas, Alito, Kavanaugh and Gorsuch have all previously intimated that they might be on board with some version of ISL, or were at least ISL-curious. Roberts has been more difficult to read. In his stinging dissent in a 2015 case that narrowly upheld the constitutionality of Arizona's independent redistricting commission, the chief justice embraced an early version of ISL, insisting that the word "legislature" in the Constitution's elections clause meant exactly and only that. But then in another redistricting case, 2019's Rucho v Common Cause, Roberts wrote the 5-4 decision that closed the federal courts to partisan gerrymandering claims. He insisted, however, that he was not leaving complaints about unfair redistricting to howl into the void. State courts and state constitutions, he insisted, could tackle those by themselves..
That now looks to have been bait-and-switch. Last Wednesday, Roberts walked this tiny bit of hope from a brutal and poisonous decision all the way back — and media court-watchers who still portray him as a humble caller of balls-and-strikes rather than a savvy right-wing tactician missed it. Roberts insisted that those who took him at his word about state courts had misread his opinion in Rucho; he said the real point of his decision in that case was to highlight that there are no manageable standards to determine when a gerrymander has gone too far. He suggested that state constitutions are just as vague on that topic — musing, for example, that the clause holding that "elections must be free and fair" was itself profoundly unclear. For a so-called textualist and originalist, Roberts often seems not to say what he means, or to mean what he says.
Alito appeared just as disingenuous, asking at one point whether it would actually further democracy "to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting."
This is a question worth breaking down. In states like Wisconsin, Republican lawmakers have embedded themselves into permanent near-super-majorities, guaranteeing themselves almost two-thirds of state legislative seats even when Democrats win hundreds of thousands more votes. That gerrymander is now well into its second decade. Transferring the political controversy to an elected supreme court and justices who are willing to act on behalf of voters, not politicians, would, in fact, be just about the only path to restore any hope of majority rule.
All of this sets Roberts up to propose what too many Supreme Court reporters will call a compromise, but is actually just a slower walk off the cliff. Perhaps it will involve some new multi-part standard that makes it more difficult for state courts to interpret state constitutions on election issues. Perhaps it will make it easier for federal courts, now stocked with junior Federalist Society acolytes, to police state supreme courts that dare interfere with GOP gerrymanders. Then, the next time the issue appears before the Supreme Court, Roberts will push things just a little further, just as this court did with voting rights and redistricting. When the court dismantled the Voting Rights Act's pre-clearance protections in 2013, the conservative majority insisted that Section Two of the act remained in effect and would prove sufficient. Then it turned its attention to eviscerating that in a series of new cases.
The ISL would empower legislatures that have already proven, time and again, that they cannot be trusted to draw representative maps. It could be enacted by a Supreme Court that continues to show it is unwilling to ensure free and fair elections.