David Daley

Ending abortion rights and voting rights are part of the right's long-term plan

Decades of strategizing by anti-abortion forces and a relentless conservative focus on winning the courts culminated this month in the U.S. Supreme Court's 5-4 decision to allow the nation's most restrictive rollback of reproductive rights to go into effect. The decision effectively prohibits most abortions in Texas and provides a road map for red state legislatures nationwide to evade judicial review and undo Roe v. Wade in their states as well.

But that wasn't the only careful right-wing project that contributed to this back-door assault on five decades of constitutional protections and Supreme Court precedent. This decision is inextricably bound to the long-term GOP war on voting rights, itself a two-front effort between red state legislatures and a conservative Supreme Court majority.

You might even call it a Texas two-step. First, unelected, tenured judges did what elected Republicans didn't feel empowered to do in 2006 and put a stake into the Voting Rights Act. Then, after blessing a new generation of sophisticated voter suppression methods, as well as providing a green light for partisan and racial gerrymanders, uninhibited lawmakers — untethered from nearly any accountability — can pass laws dramatically out of step with voters, like the new Texas abortion bill. This court then smiles on those efforts as well. (And of course, all this is amplified and encouraged by the right-wing media ecosystem.)

It's a nifty closed loop that has the added benefit of sheltering Republicans from any consequences for their extremism, and from any real fear that a changing electorate will threaten entrenched one-party rule.

This isn't even the first time that the Supreme Court and Texas legislature have danced in this fashion, though nearly a decade ago, it was the Roberts court that led.

When Chief Justice John Roberts authored a 5-4 decision in the 2013 Shelby County case, hobbling the Voting Rights Act and putting an end to pre-clearance in states, like Texas, that had a longstanding history of racially motivated voting chicanery, Texas did not wait long before showing America that, contrary to Roberts' sense that things were "dramatically" different in the South, in reality little had changed.

That very afternoon, Texas jumped to take advantage of Roberts' decision by enacting a deeply restrictive voter ID law that requires specific forms of identification to vote. This would be the first post-Shelby voting restriction in Texas, but hardly the last. The new law demanded an ID that 600,000 Latino citizens lacked; it allowed a ballot to be cast with a gun license but not a student ID. It enabled Republicans to place barriers before the rising electorate of young and Hispanic voters who lean Democratic and help ensure themselves a hold on power.

It was a magnificent two-step. When a Republican Congress reauthorized the Voting Rights Act in 2006, nearly unanimously, and the 25-year extension was signed into law by President George W. Bush, GOP leaders whipped the votes for passage, fearing that it would be bad for the Republican brand to be seen as hostile to voting rights. It's a story that Jesse Rhodes tells brilliantly in his book "Ballot Blocked." GOP leaders wanted to make inroads with Latino and Black voters, and worried that Hurricane Katrina and the souring economy and Iraq war might make that a challenge during a tough midterm year. They didn't want to also be seen as keeping minorities from the polls.

So the voting rights putsch was outsourced to the courts. Bush appointed, and the GOP Senate confirmed, two Supreme Court justices known to have a very limited view of the Voting Rights Act's scope and relevancy: Roberts as chief justice and Samuel Alito to replace the retiring Sandra Day O'Connor. Roberts, as a young Justice Department official in the Reagan administration, had lobbied aggressively against the 1982 reauthorization of the VRA.

When the court did the GOP's dirty work, hollowing out the pre-clearance mechanism that Republicans viewed as untenable to take on through the political process, the Roberts decision offered Congress the option to revisit and update the pre-clearance formula. But once the courts had dealt its blow, the Republican majority had no appetite to revisit the VRA and those efforts crashed in Congress. That's the case to this day: When the Democratic House voted on the John Lewis Voting Rights Advancement Act earlier this summer, every House Republican opposed the bill, and it would appear to have little chance of surviving a GOP filibuster in the Senate.

Texas Republicans may well have seen the Shelby County decision coming when they passed a draconian voter ID bill — initially blocked under pre-clearance in 2012 — ahead of the court's ruling. During that same period, Republican lawmakers also prepped new state legislative and congressional maps that were the subject of much complicated litigation from 2011 through 2018.

The legal history here becomes convoluted: Courts originally blocked the first maps enacted by Republicans in 2011. A federal court rejected them under pre-clearance, finding that these lines made it tougher for minority voters to elect a candidate of their choosing. As the 2012 elections neared, a three-judge panel ordered tweaks to the legislative maps — but these were supposed to be temporary fixes while the legal challenges worked their way through the courts.

But when the Shelby decision came down, as the Texas Tribune observed, Texas suddenly no longer needed to pre-clear its maps. Republican leaders disingenuously cloaked themselves in a map they could claim was drawn by the courts, when really those judges had only approved the first step in a much longer process. How could we be diluting minority voters, the state protested, when we just took the courts' map? Lower federal courts disagreed, and developed a rich evidence file that delved deep into the 2011 mapmaking process and referred to the 2013 GOP strategy as "discriminatory at its heart."

Once again, however, the Supreme Court stepped in. In 2018's Abbott v. Perez, the Supreme Court overturned those lower court decisions that found Republicans had diluted minority votes in multiple state house districts. They OK'd what had been called a racial gerrymander of the state legislature which judges said went "out of its way" to preserve GOP power at the expense of Latino voting power, with "serious costs to our democracy."

That 5-4 decision, written by Justice Alito, insisted that when it comes to redistricting, the good faith of the legislature must be assumed. Alito blithely dismissed a 150-page lower court report that laid out, county by county, the precise machinations that Republican mapmakers used to crack and pack growing numbers of Latino voters, and even a careful study of which Latino voters were most likely to turn out. (Those unlikely to vote could also be carefully distributed in order to make districts appear to resemble a "minority opportunity" district, without actually being one.)

In her dissent, Justice Sonia Sotomayor accused the majority of ignoring "undeniable proof of intentional discrimination," contributing to the deliberate underrepresentation of minority voters and doing "great damage" to both equal opportunity and equal participation in the political process. The majority decision, she wrote, "blinds itself to the overwhelming factual record" in order to "allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters."

Texas isn't a red state or a blue state. It's a voter suppression state, with some of the lowest turnout numbers in the country, in part because the state — with the full support of the U.S. Supreme Court, since the 2013 Shelby County case — makes it so difficult to vote. By 2014, Texas turnout had plunged to the lowest in the nation, just 28.3 percent according to the Elections Project. A sexy 2018 U.S. Senate race between Ted Cruz and Beto O'Rourke helped push that number higher, but the Elections Project still found Texas mired among the lowest 10 states in the nation.

Political scientists will long debate the impact of redistricting, voter ID laws and other restrictive techniques, as well as the Roberts court's rulings on the VRA and gerrymandering, on the democratic backsliding that has become a feature of so many red state legislatures and contributed to the growing crisis of GOP minority rule. But no one needs an advanced degree to see the effects of this two-step on extreme legislation on reproductive rights, among other issues, coming from Texas, Ohio, Georgia, Alabama, Missouri and elsewhere — despite zero indication that voters in these states desire these new restrictions or have moved anywhere near as far right on these issues as their representatives.

Perhaps the problem is that this Supreme Court has made it exceptionally difficult for voters to get rid of their representatives when they go too far, and that this has emboldened lawmakers who no longer fear that their extremism might lead either to defeat or reproach from the courts. Indeed, this Supreme Court, under Alito's lead, has encouraged legislatures to go a step further. After the ruling on the Texas law, in which justices threw up their hands at the novel workaround created by empowering citizens to turn in anyone involved in making an abortion possible, the signal to every other state was this: Go as far as you want. This court has your back.

The message to the rest of the nation is clear as well. When voting rights are hollowed out, it opens the door to an assault on every right you hold dear and any policy that matters to you, whether that's reproductive rights, labor rights, gun control, the environment, or whether or not your kids can be asked to wear masks at school during a pandemic.

If voters want to change those policies, Samuel Alito says tough. He can't be voted out of office — and his colleagues just keep tilting the rules so your legislators can't be either.

As redistricting begins in state legislatures nationwide, Republican state legislators are building up their own walls of protection. If Democrats want to reverse course before a potential generation of GOP minority rule, 2022 could be the last chance. Congress must protect voting rights. And we all must prioritize state legislative and secretary of state races. We invest now to win next November — or the Texas two-step could be playing in your state next.

This Republican 'weird trick' could be fatal to democracy

Last Friday, we finally learned that the draft report of the crassly partisan Maricopa County election "fraudit" commissioned by Arizona's state Senate Republicans failed to find voter fraud and indeed, yet again, found that Trump lost. But brazen Republican state legislatures won't stop there. These days it feels like a never-ending challenge to stay one step ahead of voter suppression and democracy dismantling efforts in Republican-controlled state legislatures.

A decade ago, Republicans gerrymandered themselves into unrepresentative majorities in state legislatures nationwide. Since then, they've been determined to keep that undue power, no matter how many constitutional guardrails they must smash along the way. Their latest scheme might be the most wild-eyed and dangerous yet.

Republicans have hit upon a legal theory that could allow them to negate state constitutions and citizen ballot initiatives that protect voters and provide them with a crucial voice. The end game? Securing a world in which only state legislatures can decide election law and declare victors. They're looking for an assist from the federal courts. And they just might get it.

This once-obscure theory — known as the Independent State Legislatures doctrine — had been a stealth effort in right-wing legal circles. But recent election-related litigation in state supreme courts and the federal courts, much of it related to the "Big Lie," has accelerated its prominence and highlighted its dangers.

Here's what the Independent State Legislature doctrine argues: The U.S. Constitution gives state legislatures the sole authority to set all election rules — including the assigning of Electoral College votes — independently, and immune from judicial review. Taken to its natural extreme, it holds that election laws set by state legislatures supersede any rights guaranteed in state constitutions or even initiatives passed by voters. It effectively concludes that there can be no possible checks and balances on state legislatures' authority when it comes to election law.

Sounds nuts, right? But four justices on the Supreme Court have already indicated some level of support for this doctrine — and the newest justice, Amy Coney Barrett, has yet to weigh in.

This emerging judicial doctrine is a serious threat to the integrity of future elections, and to democracy itself, which fundamentally relies on checks and balances between branches of our government. Make no mistake: It is part of a long-term conservative strategy to enlarge the power of state legislatures. Its rise comes at a moment of continued Republican dominance in states. Gerrymandered state legislatures nationwide are working overtime to pass ever more restrictive voting provisions and wacky proposals to reallocate electors by gerrymandered congressional district. And after Republican-controlled legislatures brutally gerrymandered state legislatures across the country in the 2011 round of redistricting, they are warming up to do it again now as the 2021 redistricting cycle gets underway. The Independent State Legislatures doctrine adds yet another arrow to the Republican anti-democracy quiver.

Republicans have engineered their way into power, and will use this doctrine to try to checkmate democracy. It's time to learn about this theory and gear up to fight back.

What is the doctrine?

Article I, Section 4 of the U.S. Constitution provides that state legislatures have the power to determine the "times, places, and manners of holding elections for Senators and Representatives." Further on, Article II, Section 1 provides that each state "shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...." As in many places, the Constitution is short here on details. (Thus the gigantic lineage of constitutional jurisprudence.) In the sections just quoted, state legislatures are meant to fill in the details.

Lawyers pursuing a conservative agenda have argued, perhaps not surprisingly, that these clauses should be read narrowly and literally. State legislatures, the argument goes, really do have the broad and exclusive authority to determine how to run elections. State legislatures receive these powers directly from the federal Constitution, wholly independently of state constitutions — therefore, state courts do not have the authority to review state election laws. Further, state legislatures can ignore state constitutional provisions that provide for broader voting rights than those guaranteed by the federal Constitution or federal law.

Again, it sounds nutty, right? But in the 2000 Supreme Court case that decided the presidential election, Bush v. Gore, then-Chief Justice William Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, made this exact case: State legislatures have the sole power to run elections, including picking electors — and this cannot be altered by state courts.

In the intervening years, conservative lawyers have continued to build the case for this doctrine. And in February of this year, when the Supreme Court dismissed as moot the Pennsylvania case regarding 2020's absentee ballot extension, Justices Samuel Alito, Neil Gorsuch and Thomas dissented, citing the Independent State Legislatures theory and arguing that it should be settled before the next election. Further, last October, when the Court declined to disturb a separate ballot-deadline in Wisconsin, Justice Brett Kavanaugh dissented and, in a footnote citing Bush v. Gore, stated that "the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws." His words make clear his strong support for this doctrine.

The doctrine could also have devastating consequences for fair maps. Redistricting reformers have eyed state supreme courts as one road to fair maps, free from partisan gerrymandering, now that the federal courts have been shuttered. That path could quickly be blocked under this doctrine. It's even possible that this doctrine could be used to challenge nonpartisan redistricting reform established by citizen ballot initiative, or any redistricting process other than one approved by a state legislature. The theory was rejected by the court's majority when invoked to challenge the Arizona independent commission in 2015, but two of the votes from that majority, Justices Anthony Kennedy and Ruth Bader Ginsberg, are no longer on the court. Chief Justice John Roberts was the lead — and angry — dissenter in that case -- indicating his likely support for a strong Independent State Legislature doctrine.

What's the big deal?

The Independent State Legislatures doctrine used to be a fringe theory, but not anymore. Multiple Supreme Court justices are on the record in support of it. Right-wing legal activists from the Federalist Society and its "Honest Elections Project" are pushing for it in legal briefs authored by white-shoe law firms (BakerHostetler, counsel for the Honest Elections Project, has defended Republican gerrymandering in Pennsylvania and North Carolina.) And some GOP-controlled state legislatures, including Arizona, are considering bills that would allow them to intervene in presidential elections to choose electors themselves if election results are "unclear." If a state were to pass this type of law, it would set the stage for a court to agree that the Independent State Legislature doctrine requires that in some circumstances, state legislatures rather than voters should determine election outcomes.

As Jane Mayer reported recently, right-wing funders like the Bradley Foundation and the American Legislative Exchange Council (ALEC) have been working with Republican state legislators to advance ways to re-engineer how states allocate Electoral College votes. Last year, a GOP state representative from Arizona, Shawna Bulick, sat on an ALEC-convened working group that discussed the Electoral College, and this year, she introduced a bill that would have given the state legislature power to undo the certification of presidential electors by a simple majority vote up until the inauguration.

It died in committee — this time. But next time? Introducing legislation that fails serves to normalize it and is often part of a longer-term strategy to build support over time.

This is all part of a coordinated and well-funded strategy to enlarge the power of state legislatures. Conservatives, of course, have already established a commanding advantage in state legislatures through gerrymandering and long-term investment in down-ballot races. Now these bodies are taking advantage of any audacious power play they can imagine — or any wild-eyed reading of the U.S. Constitution — that might keep themselves entrenched in office, no matter how outrageous the scheme or how antithetical it may be to the founding ideals they claim to venerate.

How we fight back: Building progressive power in state legislatures

Our state legislatures have become wildly imbalanced. Republicans already enjoy structural advantages in the U.S. Senate and the Electoral College. And many state and federal courts have been captured by conservative ideology.

We cannot allow the courts to imbue unrepresentative state legislatures with the ultimate power to award electors, regardless of the popular vote. We cannot allow state constitutions to be neutered of their power to check the most egregious gerrymanders and we cannot allow ballot initiatives that provide for citizen mapmaking commissions to be prohibited. The Independent State Legislatures doctrine threatens to do all three.

Good news: We can fight back. Redistricting is underway across the country, and we can fight for fair maps to keep Republican legislatures from gerrymandering their way into enduring majorities. Attend legislative hearings (many have a remote option) and submit testimony — public accountability and pressure works. Support state-based organizations on the ground fighting for fair maps. And invest some time and resources into progressive state legislators and candidates. Fighting gerrymandering and building back the progressive state bench will take time, money and long-term commitment. But to ensure that representative democracy is not smothered and swallowed whole, there is no alternative.

How North Carolina became a laboratory for the GOP's subversion of democracy

North Carolina has become a laboratory to subvert democracy. Republicans captured both houses of the state legislature in 2010, then engineered gerrymandered maps that ensured power for a decade.

Then they went to work: Voter ID bills that surgically suppressed the Black vote, a brazen power grab over the state judiciary and election administration boards, an assault on academic freedom in the state university system, a 2016 lame-duck session that neutered the authority of incoming Democratic Gov. Roy Cooper. This version of political hardball provided the playbook for Republicans in other states across the country, including Wisconsin, Michigan, Texas and Arizona.

Many villains provided the funding and legal cover for this evisceration of public institutions and meaningful elections. But if you want to understand how North Carolina's democracy became so diseased, a former state representative named David Lewis is a pretty good place to start.

Lewis, a farmer from rural Hartnett County who chaired the legislative committee that was responsible for redistricting, became the folksy public face of the greedy GOP gerrymander and freely admitted its partisan design. Now, after pleading guilty to two federal charges related to a scheme to siphon campaign funds for personal use, Lewis is also the public face for the greed, public corruption and entitlement that's too easily bred when lawmakers benefit from districts they can't lose.

Lewis didn't draw the actual maps; that task fell largely to notorious GOP mastermind Tom Hofeller. His job was genial obfuscation. In a line that was quoted all the way to the U.S. Supreme Court, Lewis proclaimed that the purple state's map was was intentionally drawn to elect 10 Republicans and three Democrats — because he did not believe it was possible to stretch the advantage to 11-2.

"I think electing Republicans is better than electing Democrats, so I drew this map to help foster what I think is better for the country," he said. It was a canny admission, delivered with an aw-shucks drawl, designed to conceal the unconstitutional race-based "packing" of Black voters that made the partisan edge possible. One congressional boundary in Greensboro even bisected North Carolina A&T, the nation's oldest historically Black university, creating two likely Republican seats, partly by putting seven of the school's dorms in one district and six in another.

When I asked Lewis about this on a 2019 panel at the University of North Carolina campus in Chapel Hill, he worked himself into a moral dudgeon over being accused of a racial gerrymander. It was simply a coincidence, he insisted, hardly intentional. After all, every district line had to go somewhere! Months later, however, when Hofeller's daughter turned over his digital files after his death, a story I first broke in the New Yorker, the truth was revealed. Hofeller had included racial data on his draft maps. Republicans had misled a federal court about how they used that racial data. Furthermore, the files suggested that Lewis had lied to his colleagues about when Hofeller started drawing maps, perhaps to sneak in one more election cycle under the tilted lines. As I dug through Hofeller's files, I found multiple spreadsheets with the addresses of thousands of North Carolina college students, coded not only by university and voting pattern, but based on whether or not they had the necessary ID to vote after passage of the legislature's new restrictions. Hofeller knew full well the meaning of that line through the A&T campus. The North Carolina Supreme Court would ultimately invalidate the map and demand a new one.

Lewis did no better when it came to hiding a brazen scheme to divert hundreds of thousands of campaign contributions for his own use. (An examination of his campaign finance reports showed that many donations came from national PACs with ties to GOP political interests, perhaps related to this rural lawmaker's control over redistricting.) Struggling to pay the bills on a family business, Lewis set up a bank account for a phony organization that he called NC GOP Inc., so that it resembled the name of the state party. He did not register that company with the state. Then he wrote checks from his campaign account to his sham company and reported them as donations to the actual North Carolina GOP.

They were not. According to the federal indictment, for just one example, Lewis caused a check for $50,000, made out to NC GOP, to be written from his campaign account in the summer of 2018. He deposited it instead into his own NC GOP Inc. account — and almost immediately wrote two checks from that account. One, for $47,600, went to Lewis Farms, his family business. Another $2,050 went to the landlord of his residence. According to prosecutors and Lewis' guilty plea, he ultimately siphoned some $365,000 for personal use.

This week, Lewis received a slap on the wrist for this illegal financial behavior: No prison time and a $1,000 fine. It pays to be well-connected. Indeed, those without fancy lawyers and professional acquaintance with the judge would almost certainly have earned serious prison time for matters involving much smaller amounts.

It hardly seems enough, not for Lewis's abrogation of public trust, and not for his larger sins against democracy which have ruined lives and damaged public institutions. But in the end, North Carolina Republicans essentially got away with that too. When courts overturned the GOP maps as unconstitutional partisan or racial gerrymanders, the party had infamous partisan loyalists like Hofeller on speed-dial to replace them with new maps that were just as obviously rigged, allowing Republicans to hold supermajority power even when the two parties closely divided the vote. And even when the state supreme court overturned Hofeller's handiwork in 2019, the maps went back to the legislature for tweaking and still favored Republicans in 2020, just a little less.

Which means Republicans will control the next decade of mapmaking in North Carolina as well. That got underway in earnest last week. There is a new public face. Republican lawmakers are already making troubling noises about how they will and will not use racial data. The disease is metastasizing. Lewis' petty corruption generated only the most tepid response. As for the egregious corruption of democracy itself — the bulldozing of competitive elections, the perversion of public policy? For that, there never seem to be any consequences at all.

The Roberts Court is destroying voting rights — winning back state legislatures is the only remedy

This week, a conservative majority on the U.S. Supreme Court that has dedicated itself to making it more difficult for Americans to vote struck again and drove a nail further into the heart of the already-gutted Voting Rights Act. As Republican state legislatures nationwide continue to pass restrictive laws that place additional burdens especially on voters of color, this Court, over a decade of shameful, pinched jurisprudence, has slowly eviscerated the crucial tools enacted to curb the worst instincts of lawmakers.

In a 6-3 decision that broke along sadly predictable partisan lines, the Court upheld on Thursday a pair of voter suppression laws from Arizona that banned ballot collection and severely regulated out-of-precinct voting, despite clear evidence that these laws disproportionately burdened minority voters.

The burdens and racial intent in these cases were clear to lower courts and less determined partisan judges. Arizona officials relocate the voting precincts of Black and Latino residents at a wildly higher rate than white precincts, resulting in considerable and predictable confusion. And Native American and rural Arizonans — where household mail service is rare and often unreliable — rely on volunteers and community members to return their ballots. There has been no — zero — proof of fraud in this important service.

None of that mattered to this Court, and indeed, the decision is not surprising to those following the Roberts Court's steady trajectory rightward in voting cases and other civil rights.

What this decision reinforces, however, is that Section 2 of the Voting Rights Act will no longer serve as a necessary protection against legislation designed to suppress the vote of racial minorities. Even when the facts are as clear as they are here. And even in states like Arizona, where lawmakers have a century of experience in designing voting restrictions carefully crafted to preserve white political power.

That means this decision must serve as a last chance, five-fire alarm bell to progressives — indeed, all Americans who care about protecting the foundational right to vote and perhaps the most valuable piece of civil rights legislation in our history—about the urgent need to invest in state legislatures, which are ever increasing in power. State legislatures are the final boss in the Republican quest to vanquish democracy. We cannot cede this fight to them.

Brnovich: The case and decision

The path to Brnovich began in 2013, when the Supreme Court struck down the "pre-clearance" requirement under Section 5 of the Voting Rights Act in Shelby County v. Holder. Suddenly, states with a history of suppressing minority voters — including Arizona — were free to change voting rules without obtaining DOJ's prior approval. They moved fast and took full advantage. Arizona quickly passed the laws at issue: first, making it a felony to return someone else's signed ballot (known as ballot collection), and second, disenfranchising people who accidentally cast a ballot in the wrong precinct.

Importantly, the plaintiffs in the case presented clear and extensive evidence demonstrating that Latino and Native American voters are disproportionately burdened by the elimination of ballot collection, and that minority voters are twice as likely to vote in the wrong precinct as white Arizonans. These restrictions, the plaintiffs argued, violated Section 2 of the Voting Rights Act, which protects minority groups from voting laws and practices that are discriminatory.

Nonetheless, Justice Samuel Alito stated for the majority that "Arizona's out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose." In doing so, the Court has upheld discriminatory voting laws and weakened Section 2 of the Voting Rights Act -- which will make future challenges even harder.

Latest in a long line of coffin nails for Voting Rights Act

A central goal of conservative jurisprudence is the carving back of federal protections, and the empowerment of states over vast swaths of social and civil life. This decision is part of a long trajectory of the Court limiting federal protections and devolving power back to states. Voting rights are a clear example of this trajectory, and the Brnovich decision now lays against its forebears, particularly the Shelby County v. Holder decision. And indeed, Chief Justice Roberts has been patiently preparing to dismantle Section 2 of the Voting Rights Act for 40 years. His careful long game may end in checkmate for majority rule as we know it.

Arizona: Ground zero

It is fitting that this latest decision upholds Arizona laws. Despite eking out a Biden victory, Arizona remains a Republican trifecta controlled by arch-conservatives in the legislature and governor's mansion. In a state where just a few votes can be dispositive to an election (just look at Biden's 10,457-vote margin), this red trifecta has gone into voter suppression and conspiracy overdrive since the 2020 election. A drawn-out "fraudit" of the election has worked to undermine trust in democracy and has served as a blueprint to other GOP-controlled states. And a suite of laws have carved back voting rights and access, including a new bill to strip the (currently Democratic) secretary of state's power around key aspects of election administration.

State legislatures matter — now more than ever

As Rick Hasen has explained, Alito's opinion in the 2018 Abbott v. Perez case makes it essentially impossible for a court to find racially discriminatory intent in voting laws when race and party categories overlap. But, obviously, given long-existing patterns of racial voting polarization, they will often overlap. This means that state legislatures can use this naturally-occurring circumstance to shield discriminatory intent to their heart's content, without concern for violating Section 2. They can discriminate based on race while pretending they're simply using partisanship. This has been the recent GOP strategy on gerrymandering. It will now be the go-to move in red state legislatures nationwide on voter suppression. This Court won't stop it. They've rolled out green lights and eliminated any speed limit.

The bottom line is that the Brnovich decision must serve as a loud warning: The Roberts Court cannot and will not protect voting rights. And the truly breathtaking deadlock in the Democratic federal trifecta over a new federal voting rights law makes clear that we absolutely cannot wait for Congress to act either. The answer is clear: On voting rights and so much more, the buck does and will continue to stop with state legislatures. We must elect legislators who will fight to protect voting rights — down-ballot, where it matters most and is too often overlooked — or risk becoming a nation filled with democracy deserts, where your right to vote depends on where you live and your access to the polls depends on the color of your skin.

This is John Roberts' America. The stakes could not be higher. No one is coming to bail us out.

What will it take to shock people out of their routines?

The US is enjoying a nice little simulation of what life is like in a failed state, in the midst of a national crisis. The top of the government has been essentially rendered non-functional, if it ever was. Donald Trump is using the White House solely as a TV room, and has completely disengaged from the coronavirus outbreak. When he said that you wouldn't hear about COVID after November 3, he must have meant from him. Beyond raging at the "medical deep state" for announcing progress on a vaccine after the election, there's been nary a word.

Trump has always been unforgivably lazy, and that's part of why we're in the third wave of this crisis instead of the second. But the consequences are even greater right now, given the skyrocketing numbers of cases and hospitalizations across the country. You may see Trump as a moron but 72.6 million people (and counting) thought he was good enough to be president, and if the coronavirus doesn't exist for him, it doesn't exist for them either. NPR had this heartbreaking story yesterday of an ICU nurse in central Michigan who said she constantly hears regret in her patients, just before they're placed onto ventilators. "I didn't know COVID was real, and I wish I'd worn a mask," they say, struggling to breathe. That's the result of an utter lack of leadership.

That leadership is urgently needed. We had 34,000 COVID hospitalizations across the US a month ago; there are 67,000 and rising now. The system will be at capacity within a couple weeks, on that trajectory; some regions are already there. Thanksgiving is about to "pour gasoline on a fire," as one Biden task force member puts it, with more travel than at any point in the crisis. The medical profession has done exemplary work, and we have strategies and treatments we didn't have in the spring. If people can't get the medical care they need, none of that matters.

Let's put lockdowns aside for a moment, as I'm dubious that any elected official is willing to go there right now. In the spring, New York and other locations set up field hospitals and called in retired health care workers to increase capacity. Outside of mobile morgues in El Paso I don't see any evidence of that happening right now. There's no federal assets or even interest in this basic function of keeping people alive, and not much activity I can see at the state level, particularly in parts of the Midwest that are hit the hardest.

So what can stand in for an absentee government? What's left is personal responsibility, a lot to ask of a public that's adrift. Really we're on our own now. And we can actually make a difference. The public health measures are not unknowable: wear masks, avoid close congregations to the extent possible, don't eat indoors at restaurants or work out indoors at gyms. That would cover an overwhelming majority of this and slow the spread, giving the sick a chance to actually get treatment. With a vaccine in sight, it wouldn't even be an open-ended commitment.

At many moments of the crisis, personal behavior has actually led the way. Restaurant demand was collapsing before any lockdowns took hold. Mask usage has actually been decent, though obviously not good enough. People starting to hoard food again could actually be a positive sign. But the real moment when the public took the lead was during that first phase of lockdowns, where everyone actually paid heed, went inside, and engaged in a collective action, a rare moment for this country.

That came right after the NBA reacted to one positive test from a player by shutting down the season. Tom Hanks' positive test happened around the same time. That was the news needed to get everyone to take things seriously. What is the antecedent to that now? What is going to shock people away from their normal routines?

I mean, it's probably football, our secular religion in America. There is active talk now about the college football playoff being delayed. The majority of the SEC schedule was postponed for this weekend, along with several other games. With quarantine and contact tracing protocols being what they are, it's entirely possible there aren't enough bodies available to finish the season, and at some point you'd expect players to just start opting out. They're not being paid to risk their health, after all.

In the NFL, at least one practice facility is closed, but there's so much damn money involved that you'd have to see a league-wide outbreak before the season is derailed. The college game, though, is probably different. And that's as important, if not more so, to a significant portion of the population.

It's beyond sad that I'm sitting here strategizing over whether we can see enough leadership—or really resignation—among athletic directors and football coaches, because there isn't any in Washington or state houses. But the prospect of 100,000 more people dying before Inauguration Day has me grasping at straws. There's a vast leadership desert in America right now, and I'm looking for an oasis.

Days Without a Bailout Oversight Chair

231.

Today I Learned

  • Elon Musk has it and is blaming the tests, which are antigen tests and admittedly not that accurate. (Reuters)
  • The oldest member of Congress has it. (Washington Post)
  • These billionaire Trump donors have it. (The Guardian)
  • Rand Paul, a doctor (OK an eye doctor), thinks all those people above are lucky duckies because they'll have immunity. (Talking Points Memo)
  • The liberal wonk consensus appears to be that real fiscal relief will only happen by giving Republicans more tax cuts in exchange. (Vox)
  • Avoiding canvassing seemed like the right public health move but may have been wrong for winning the election, Democrats admit. (HuffPost)
  • The mutation of the virus in minks won't be a problem for the vaccine, Dr. Fauci asserts. (CNBC)
  • Thoughts of rage about the third wave. (ProPublica)

What if Trump won't go? Why our system is ill-prepared a worst-case election scenario

Lawrence Douglas saw it all coming.

Long before the pandemic, before mail-in voting became a crucial part of the 2020 election, before the Postal Service was deliberately slowed, before hundreds of election-related cases were filed with the courts, the Amherst College law professor recognized that Trump didn't seem the type to share a limo ride down Pennsylvania Avenue with his successor and take part in a peaceful transfer of power. And so he asked a simple question: What guardrails exist if the election is close and Trump refuses to go?

The answer, laid out in his punchy and essential new book "Will He Go? Trump and the Looming Election Meltdown in 2020," disturbed him. There weren't many. Our constitution, Douglas discovered, does not secure the peaceful transfer of power but rather assumes it as a given. The system was protected by politicians and parties that had internalized the norms of a democratic process.

But when norms no longer constrain a president or his party? All bets are off. The laws are a muddle. The nightmare scenarios are real. And what Douglas imagined as an intellectual exercise has become a horror show: His worst-case possibilities could actually be in play.

We talked last month about those nightmares, how little we can do to fix it, and perhaps most importantly, what Douglas will be drinking this evening. You also might want to start early.

Our system is clearly ill-prepared for the challenges of this moment. Here's a simple question: Why? How is this possible?

You're right, the constitution and our system of federal law doesn't secure the peaceful succession of power, they presuppose it. On one level you can say, "Why is that the case? Why don't they do more to actually secure it?" And I'm not sure they necessarily could. Any political system — any kind of system, even any game, it always presupposes that the principal actors are behaving in good faith, and that they've internalized the norms.

No legal system can secure itself. A legal system always needs some kind of deeper normative fabric or structure to rely on in order for it to work. And if that normative fabric starts to fray, then the system really can't protect itself. And I think that's what we've really seen very, very disturbingly, is the way in which that normative fabric has frayed.

That fraying, of course, runs deeper than Trump — but sets the table for this moment.

Yes, completely. They've been distorting and deforming those norms for a long time. Then, suddenly, you have a Trump, who just kind of smashes through them.

One might expect that there would be a price to pay for smashing norms. But that hasn't happened for Trump. What does that say about norms?

Norms are different from laws. If they're broken, you don't necessarily face legal sanctions, but you would expect to feel political sanctions. There would be some kind of political price to pay. This is one of the most shocking things about his presidency, the way in which he's been able to smash through these norms with absolute impunity. The only way he could do that is because of the cover, protection and support that he gets from his other Republican lawmakers.

And with three cheers from conservative media. What role have Fox News and others played here?

The only way that Trump could continue to get the reliable support of these Republican lawmakers is to continue to have the reliable support of the Republican base. And he would not have been able to maintain the reliable support of the Republican base without right-wing media, and his megaphones in the right-wing media, like the likes of Sean Hannity. When people talk about the hyper-partisan politics of the moment, it makes it sound as if there's a symmetry between the polarization, which is simply untrue. It's very asymmetrical. The Republicans have, really, kind of a radical party. It's not a conservative party. I think people need to appreciate that.

We have a similar nightmare scenario for November 3: That it takes days and weeks to count mail-in ballots, that Trump declares victory, everything heads into the courts, and Republicans tee up Bush v Gore-style cases in a handful of states. Then if things remain unsettled as December nears, there could be wholesale chaos with electors and state legislators, under the worst-case scenarios. Tell us what worries you most?

It's exactly that. If you just look at the way balloting is going to break down on election day itself, potentially a lot more Trump supporters will be willing to vote in person than Biden supporters. It's not unlikely that Trump could have a lead on November 3rd. The thing that I worry about is that Trump is going to try to leverage whatever lead he has on November 3 into a claim that he's been re-elected. And that, as that lead erodes in the subsequent days, as the mail-in ballots start to get counted, that he will claim that, "Yeah, exactly. This is just everything that I've said coming true. That the Democrats have corrupted these mail-in ballots, it's all fraud."

Fox News will amplify it, naturally.

Yes, Fox repeats and amplifies it. You can reliably add Russian disinformation campaigns on social media. And then you could probably add in some genuine chaos when it comes to the counting of mail-in ballots. Chaos that results from human error, and chaos that results just from the litigation teams that are going to be descending on all these swing states, in particular. I mean, one of the statistics from the recent primary season in Pennsylvania, Wisconsin and Michigan, there were around 60,000 mail-in votes that were disqualified. And that's almost the same margin by which he carries those three states in 2016.

Trump has been making these claims of voter fraud since the beginning of his presidency. He claimed, baselessly, that he would have won the popular vote except for voter fraud. He had an entire Keystone Kops commission searching for voter fraud, the Kobach/Pence commission, which finds no proof and disbands ignominiously. And you started thinking about this book as far as back as that — you noticed something in his willingness to talk about fraud that raised worrisome questions.

Exactly. I'm sure lots of other people saw this as well. But the very first piece that I wrote for The Guardian was exactly on his claim that, but for the three to five million phantom voters, he would have won the popular vote as well. People think of this as Trump being kind of extravagantly narcissistic, that everything he does has to be bigger and better than everyone else's. But imagine the politics behind that kind of claim — and imagine what kind of damage you could do if you were to trot out that argument to challenge the results.

And then you started looking into the constitutional safeguards and laws surrounding this, and you became greatly comforted and relieved that the founders had thought about this in advance and had it all covered.

(Laughs.) I thought of it as a thought experiment. What would happen if he were to challenge the result, and how well is our system designed to troubleshoot a scenario like that? And of course the answer that I learned was, "Oh, it's not well-designed at all."

Was that a holy shit moment? Were you surprised by how little protections you found?

I think that's fair to say. "Well, wait a sec, there's got to be more here than this."

Perhaps the key piece of legislation is the Electoral Count Act of 1887. Tell us about that.

Congress passed this in the wake of the disastrous electoral dispute of 1876. It's meant to guide Congress in dealing with any kind of future electoral dispute that lands in its lap.

I would say the best way to describe it — besides that it's impenetrable in its language, it's impossible to make sense of the words on the page — is that to the extent that it supplies any kind of advice, it says the best way for Congress to deal with an electoral dispute is to make sure it never lands in Congress's lap in the first place. "States, you figure it out yourself, and we'll just give you a date by which you need to figure things out." That's the most we can say for the ECA, because when it starts coming down to its more specific provisions, they're kind of gibberish. They lend themselves to so many conflicting interpretations that they provide very little guidance of how to get out of this kind of problem.

And this is the set of laws that we'll be counting on, that the courts and Congress will be looking to, to guide them through chaos?

Yes.

Nonsensical gibberish.

Right. Precisely. That's our great statutory savior.

The laws governing states and state legislatures are also unclear. I read an interview with one of the pre-eminent election law experts recently, and someone asked him, well, say state legislatures attempt to name electors. Would that be subject to veto by the governor? And he threw his hands in the air, and said, "I've been studying this for decades. I don't know. Nobody really knows."

Yes.

So what do we know? Walk us through what could happen, say, if Pennsylvania's count stretches past a week, courts get involved, the state legislature gets restless, Fox News goes 24/7 on voter fraud in Philadelphia. The legislature says, "We're going to name electors." And the Democratic secretary of state and governor say, "No, it's pretty clear that the popular vote went to Biden." You could have two different slates of electors looking to be seated.

That's right. If the state count gets slowed down as a result of human error, litigation, a fresh breakout of COVID — there are all sorts of ways that could really kind of slow down the count in states — then it could start pushing against the so-called safe harbor date of December 8, which is when, basically, the Electoral Count Act tells states, "Please figure out who has carried your state by then." If it looks like the margins are pretty narrow and the count is caught up in delays and confusion, yes, you can have conflicting electoral certificates submitted to Congress — and that's a world of hurt.

Then Congress needs to sort it out?

The new Congress that is inaugurated on January 3. If that remains divided, then it's just stalemate. There is hope. I mean, if that happened and the Senate was captured by Democrats, it would save us from that particular calamity. But the other thing we also bear in mind is, the same kind of confusion that could envelop the count of a presidential vote could also involve the count of all these down-ballot races.

What's the best case scenario to hope for if we want to avoid this? A big win that takes all the wind out of the "fraud" sales?

I think so. The best thing is to hand Trump a really decisive defeat, and that decisive defeat, obviously can't simply be in the popular vote. It has to be in the Electoral College and it has to be in the swing states as well. And the other thing is that the contours of that defeat need to be pretty clear, pretty early on. It's unlikely that we would know that on November 3, but it would be very helpful if we got the sense that Trump was heading towards a major defeat pretty quickly thereafter.

Would a big repudiation at the polls help create a Republican party that's less willing to ride the system off the rails?

I hope so. Maybe it would be a real gut check to the Republican party and show them that Trumpian politics has been very powerfully repudiated and they need to change. Hopefully it would encourage new Republican leaders to come to the fore who don't share contempt for democracy.

If this election is simply a close call, and we all breathe a sigh of relief, is there a way to strengthen these procedures so it can't happen next time?

I'm not sure about that. I don't think we would be worried about this election nearly as much as we are, if it weren't for the electoral college. I mean, the electoral college is tailor-made for someone who wants to engage in this kind of constitutional brinkmanship, because all you do is try to contest the vote in a handful of swing states. It's very hard to kind of cast doubts on — even though Trump tried, of course — to cast doubt on losing by 5 million votes. It's not going to be that hard to cast doubt if the election turns on 10,000 votes in Pennsylvania. And so if we just had a national public vote, I think that would be a very healthy step in the right direction. Not easy to achieve, but it would be nice.

What are you drinking on election night?

Pretty potent stuff.

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