This is Why Donald Trump Thought He Could Game the Courts

Today is the 20th anniversary of the Supreme Court’s Bush v. Gore decision, which stopped a statewide recount of 61,000 ballots that tabulation machines had missed. The recount had been ordered by the Florida Supreme Courton December 8, 2000 and since the current tabulation had given George W. Bush the majority of votes his campaign immediately asked the US Supreme Court to stay the lower court’s order and stop the recount. On December 9 the Court’s 5 conservative justices voted to grant the stay for Bush, claiming that the recount could cause “irreparable harm” by casting a “needless and unjustified cloud” over Bush’s legitimacy. Justice John Paul Stephens dissented, making the common-sense statement that “counting every  legally cast vote cannot constitute irreparable harm”. Oral arguments were scheduled for December 11.

There were two questions the Justices considered in this case. The first was whether there was an Equal Protection Clause violation due to the fact that different counties used differing standards in determining what constituted a valid vote. The Court ruled on December 12 by a 7-2 margin that there was such a violation; they also decided that the state’s Supreme Court ordered recount only mandated a count of undervotes, and not overvotes as well. At this point any such violations could have been resolved by the Court mandating that all undervotes and overvotes be counted.

The killing stroke for the Gore campaign in was that the five conservative Justices ruled that December 12, the day of their decision, was the deadline Florida law had mandated for recounts, so that its certification could meet the “safe harbor” deadline whereby their results could not be disputed by Congress and that no recounts could be conducted past that date.

Looking back it’s hard not to conclude that the whole idea behind the conservative Justice’s decision to hear this case was based on the knowledge that if a stay were issued there would be no way that the recounts could be finished before the safe harbor deadline, thereby ensuring before they ever heard any arguments that Gore’s case would be doomed. Had the Court not intervened the recount could have been completed on time, and independent analyses have determined that if the statewide recount had been conducted Gore would have prevailed, adding Florida’s 25 electoral votes to the 267 he had already garnered, giving him 292 votes in total, 22 votes more than the 270 needed to prevail.

To my mind this was the most blatantly political Supreme Court decision in our nation’s history. It’s a safe bet that the conservative majority’s chicanery in this case is what convinced Donald Trump he could prevail in his efforts to have the results of the election overturned. Sadly, I believe the only reason he didn’t succeed in at least having a case heard was because the results didn’t hinge on just one state’s result; instead it would have required overturning the results of at least four states’ results, and not enough conservatives believed they could credibly make that ruling.

It’s Time to Fix Gerrymandering for Good

This month the Census Bureau will deliver its apportionment counts to the president, and this information will be used to decide how many congressional districts will be apportioned to each state. Since 1929 we have had a static number of 435 districts, so it is likely that some states will gain at least one district and some will lose. It will then fall to the states to draw their new district boundaries. Ideally the districts should be drawn in such a way that they are compact and uniform to as great an extent as possible, to allow for the most equitable representation for all voters. Sadly, a number of state legislatures will in all likelihood follow their previous trend of drawing their districts to gain an advantage in Congressional representation by the party holding that state’s legislative majority. They will draw boundary lines that trace odd shapes all designed to concentrate their opposing party’s voters into as few districts as possible so that the rest would contain majorities for their party. This practice effectively disenfranchises tens of millions of Americans across the nation. This is a practice that has gone on since the country began, but in the last thirty years or so it’s increased to a ridiculous level, affecting at least 59 districts and over 13 million voters.

Until recently there have been three avenues available to address partisan gerrymandering, either at the state level, through the court system or Congressional action. But last year’s Supreme Court decision in Rucho v. Common Cause stated that the problem of gerrymandering is a nonjusticiable political issue which cannot be addressed through the courts. That leaves only the individual states or Congress to address  the problem.

There are a number of states who have taken action to address partisan gerrymandering. In 2018 the Pennsylvania Supreme Court overturned a districting map drawn by the Republican legislature and replaced it with one drawn by an independent expert. Five states have passed ballot initiatives that support independent redistricting, usually by creating a nonpartisan commission tasked with drawing district boundaries, while other states are considering some version of that. If every state were to adopt such commissions it could fix the problem entirely; but the likelihood of that happening and the time it would take for that to happen would mean that for the next decade we would still experience significant disenfranchisement of millions of voters due to gerrymandering.

There is still a role Congress can play here. They could pass a law requiring that district boundaries be drawn in such a way as to prevent partisan gerrymandering. There is a historical precedent here, as the Apportionment Act of 1911 required that individual districts within a state be “contiguous, compact and containing as nearly as practicable an equal number of inhabitants”.  The problem here is that Democrats on average seem to care more about fixing gerrymandering than Republicans probably due to the fact that most models of a non-gerrymandered Congress would likely result in a significant Democratic majority in the House of Representatives. And if the runoff elections in Georgia scheduled for next month result in even one of the Republican incumbents keeping there seat we would have a Republican majority in the Senate and a certain deadlock on any proposed fix to gerrymandering.

There is still one option left, however. Article One, Section 5 of the Constitution states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” meaning that the House and Senate have the enumerated power to ensure the integrity and impartiality of the elections for their respective members. The plain language meaning of this is that the House of Representatives has the ability to dictate to the states many things related to the conduct of the Congressional elections in those states. So, if the Democratic majority in the House of Representatives agreed, they would not need the consent of the Senate to require the same districting standards as were in place from 1911-1929 under the aforementioned Apportionment Act. If they were to pass a resolution in the House saying that districts should be contiguous, compact and containing an equal number of inhabitants any state that did not comply could have all of the Representatives-elect excluded from being seated and requiring them to redraw their districts and have new elections. Exclusion of Representatives-elect would require a simple majority vote for the motion to carry. There would need to be a separate majority vote for the exclusion of each prospective member.

One of the reasons this has never been done is that any such effort would be met with vigorous court challenges, likely asserting the rights of the people to choose their own representatives; in such a conflict the House would be able to assert its right to make sure those same people were not being disenfranchised by an improper gerrymander. But that possibility has now been excluded by the Supreme Court’s Rucho decision. In other words, if the House chooses to go this route, there is no one else who has the power to stop them. If they can muster the requisite political will next year’s House of Representatives can fix the problem of partisan gerrymandering all by themselves.