The Gerrymandering Smoking Gun…
Class 20: …And the Court that Said Nothing Can Be Done to Stop It
Imagine the following hypothetical:
Long before elections take place, a bunch of politicians gather in a secret room and decide exactly how those future elections are going to turn out.
And I’m not talking generally. I’m talking precisely. They decide the results of every election for Congress (you know, the “People’s House”) in their state for years to come.
How precise?
Let’s say there are 13 House districts in that state. The politicians set things up so that one party (let’s call it Party X) wins 10 seats every election, the other (Party Y) gets 3. No matter how the voters vote—and even if more voters vote for Party Y, or it’s split 50/50—that’s the outcome. 10-3.
But the participants go even further.
In the meeting, they actually explain why they want to rig the outcome for Party X. One of the politicians explains that Party X should win those 10 seats because Party X is the “better” party. Its members will do a better job for the country. So however the people may vote, it serves the public good that the better party “wins” 10 out of 13 seats through the elections they rig in that room.
They don't just orally agree that 10-3 is the plan, by the way. They put it in writing:“We hereby resolve that Party X will have 10 districts, and Party Y will have 3 districts.” Then they have a formal vote and approve it.
Then imagine that in the first election after those secret meetings, the 10-3 outcome happens exactly as they planned out in that room. And again, two years later, 10-3 again. No matter how the voters vote—even when the voters split their votes 50-50, or give more to Party Y— the outcome is always the same. Rigged, always leading to 10-3.
Then suppose after several years of these elections, a whistleblower who was in that room comes forward. He’s got tapes of that secret meeting where election outcomes had been rigged for Party X in advance. He’s got tapes and a transcript of that Party X politician saying the result should be 10-3, because Party X is the “better” party. The whistleblower even has a copy of the written resolution that the elections should lead to a 10-3 result—no matter what. He’s got the official tally of how they voted.
Now…if all that came out into the public eye—blatant election-rigging, all worked out in advance, motivated purely to benefit Party X—what would happen?
Scandal? Outcry? Immediate efforts to fix the problem?
You might think.
But you’d be wrong.
Because everything in my hypothetical actually happened.
In the state of North Carolina.
A Congressional map rigged to be 10-3. Explicitly. Leading to 10-3 outcomes, again and again, even when the voters split 50-50.
The only difference is that the meeting where this happened wasn’t in secret. Although there were private meetings in advance, what I wrote above is almost exactly what was said, agreed to and passed—in a formal resolution—at the meeting of the official redistricting committee of North Carolina. That’s right…government itself did all this.
And years later, all of this evidence was presented in court, and ultimately made its way to the United States Supreme Court.
And it wasn’t a scandal. Not at all.
In fact, the Court said that even with this worst-case example of elections predetermined along explicitly partisan lines, there’s absolutely nothing federal courts can do about it.
In fact, the Court proclaimed, federal courts should not even hear such cases at all.
That's right—even when you have evidence that those years of elections were rigged from the outset by the very people who gain the most from “winning” those elections—because they think they are “better” at running things regardless of what the people may think….you don't even get to present a case at court.
Class 20 of my Voting Rights Academy covers the landmark case Rucho v. Common Cause, how the Court reached its conclusion even in the face of such egregious evidence, and where the case leaves one of the most pernicious anti-democracy tools in place today going forward.
It’s a case that will impact American politics and democracy for generations…
2011: Election-Rigging Extravaganza
American elections have long been shaped by the practice known as gerrymandering—the drawing of legislative districts to maximize power for one’s own party.
The name actually comes from one of it first instances, in Massachusetts, when Governor Elbridge Gerry—Founding Father and future vice president—constructed a map of districts to favor his party, and one of the districts was said to look like a salamander.
Fittingly, while Gerry himself lost the next statewide election (1812), his party mopped up the legislative races due to that salamander and other rigged districts. The name “Gerry-mander” would stick.
So yes, it’s been around for a while.
But 200 years after Gerry’s handiwork, a combination of partisanship and modern, data-driven expertise ushered in the most lopsided set of gerrymandered maps America has ever seen.
It started in 2011, when in rooms across the country, politicians and gerrymandering experts drew modern-day equivalents of those salamander-shaped districts in state after state. Then the elections of 2012 demonstrated just how brutally effective these present-day gerrymanders are at guaranteeing results for the side that controls the process.
Take the midwest. In 2008 and 2012, Barack Obama won the states of Michigan, Pennsylvania, Ohio and Wisconsin. By decent margins. And in 2008, as you’d expect, the “Blue” margins of victory at the state level translated into majority Democratic state legislative and US House majorities in each state. As the “2008 column” below shows, those elections generally reflected the overall vote of the state:
But then look at the “2012 column.” The results not only flipped from 2008—but even when they lost these states, the margins of the Republican legislative majorities were even larger than the Democrats’ majorities had been in 2008.
And not because the states had changed. They were “Blue” in 2012 just like they’d been in 2008, by almost the same margin. But that same outcome statewide led to the opposite outcome for both the US House results and the state legislative results. The party that lost across the state gained majority or supermajority power even amid those losses. (Sort of like ex-Governor Gerry).
Why? Because of those 2011 meetings that took place, usually in secret, all over the country. In Ohio, they did it all in a private hotel room that they literally referred to as “the bunker.” In other states, they did it in law firm conference rooms.
And in those meetings, like my hypothetical above, they rigged it all. And boy, were they good at it!
To get the Ohio result above, here’s the map they drew:
There’s so much going on here, I don’t have time to explore it all—a future excerpt of Laboratories of Autocracy will walk through it. But this map guaranteed the 12-4 outcome shown in the chart above (in a state that had been 8Rs-10Ds only four years before). The map was so effective, that 12-4 outcome remained the rest of the decade; the first decade in Ohio history where not a single House seat changed hands.
Other states experienced similar rigged and pre-determined outcomes. But nowhere were they more egregious or explicit than in North Carolina.
But this was not only done one party. In Maryland, for example, Democrats had a field day doing the same thing.
Which brings us to the case of Rucho v. Common Cause.
The Rucho Showdown
North Carolina
So here’s the real-life version of the hypothetical from above:
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