When the ends justify the means, anything goes

Informed Dissent: Part 2 in a series on the death of democracy.

click to enlarge Chief Justice John Roberts and the U.S. Supreme Court washed their hands of the gerrymandering issue. - U.S. Government/Public Domain
U.S. Government/Public Domain
Chief Justice John Roberts and the U.S. Supreme Court washed their hands of the gerrymandering issue.

Last week, I wrote that there were two recent events that made me think America’s unraveling had reached a point of no return.

The more I thought about it, though, I realized there was a third: the blasé reaction to a credible allegation of sexual assault made against the president of the United States by a well-known New York media personality.

Writer E. Jean Carroll’s accusation that Donald Trump forcibly penetrated her two decades ago wouldn’t be enough to convict him. But beyond-reasonable-doubt shouldn’t be the standard for the putative leader of the free world, especially since Carroll joins about two dozen other women who have accused Trump of sexual misconduct — harassment, groping, ogling, assault.

Trump, a serial fabulist, says every single one of them is lying. The alternative explanation is that the president is a serial predator.

Beyond Sen. Mitt Romney, no high-ranking Republican has called for an investigation or voiced more than mealy-mouthed concern. The national media, sensing Republican disinterest (and fearful of being labeled partisan), has all but dropped it. Democrats, forever pusillanimous, won’t press the issue.

We’ve all moved on. And just like that, another guardrail has collapsed.

Through indifference, the president’s party once again protected its leader — just as it has from mountains of evidence that he repeatedly sought to obstruct an investigation into a foreign adversary’s interference in the 2016 U.S. election.

In so doing, it protected its own power. I suppose that’s the only thing that matters.

That brings us to Oregon.

In 2018, Oregon voters gave Democrats supermajorities in both legislative chambers. This session, the state House has passed a slew of progressive legislation — most controversially, a cap-and-trade bill. Democrats made concessions to conservatives and industry leaders, but they weren’t considered good enough.

It shouldn’t have mattered. Republicans hated the bill, but voters had spoken, and overwhelmingly. By rights — and by votes — Republicans had no legitimate way to stop it.  

So they chose an illegitimate way. 

They fled the state and went into hiding, denying the Senate a quorum as the session neared its end, with critical legislation pending. They were betting that the Democrats — who aren’t yet so nihilistic as to want to intentionally make government dysfunctional — would blink first. Guess what: Democrats blinked. A few days later, Oregon Dems said they no longer had the votes to pass cap-and-trade. 

This was the tyranny of a minority unwilling to recognize the legitimacy of the other side — a way of saying that some votes, their votes, matter more those of than others. It’s exactly the mentality How Democracies Die warns of: When the other faction is viewed as illegitimate and dangerous, the ends always justify the means.

Our system wasn’t designed for a perpetual turf war. Mechanisms that were designed to inhibit majoritarian rule and foster deliberation now render government impotent and enable minority parties to maintain power despite what voters think.

And that brings us to Rucho v. Common Cause, a Supreme Court decision that will do more damage to our democracy than Citizens United ever could.

Here, the court’s conservative majority threw up its hands and decided there was nothing it could do to stop extreme partisan gerrymandering. Come 2021, when the next round of reapportionment takes place, state legislatures have the green light to do their damnedest.

Rucho involved cases in two states, Maryland and North Carolina. Maryland’s gerrymander spread out black voters to help Democrats go from a 6–2 congressional advantage to 7–1. 

North Carolina’s gerrymander was a whole different kind of monster. A few years earlier, the Supreme Court had ordered the state to redraw its 2011 maps, which it deemed unconstitutional racial gerrymanders. The do-over maps at issue in Rucho had accomplished the same goal: a 10–3 GOP lean in all but the biggest of blue waves.

The court’s five Republican appointees ruled that this is fine. Or maybe not fine, but at least not their problem. The courts lacked the authority and/or couldn’t figure out a fix, Chief Justice John Roberts shrugged.

Justice Elene Kagan shredded him in her dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. …In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

Roberts suggested that people take matters into their own hands, through ballot initiatives or by pressuring legislatures or Congress into taking action.

He’s not that naïve, of course. Nearly half of states, including North Carolina and Maryland, don’t allow ballot initiatives. What’s more, state lawmakers aren’t about to give up a system that lets them choose their own voters. And so long as the GOP runs the U.S. Senate, federal action is similarly unfathomable.  

To put it simply, gerrymandering keeps Republicans in power.

Look no further than Wisconsin, where Republicans maintained nearly 2–1 legislative majorities while losing every statewide election and the statewide popular vote in November. Or North Carolina, where a popular-vote split gave Republicans 10 of 13 congressional seats (one race is being re-run after an election fraud scandal), and Republicans won fewer votes for the General Assembly but ended up with large majorities.

Unless North Carolina Democrats reclaim the legislature in 2020 — unlikely, unless Common Cause prevails in a gerrymandering lawsuit moving through the state courts — those same Republicans will redraw districts for the next ten years, this time with the Supreme Court’s blessing to gerrymander with gusto. 

As Harvard political scientist Ryan D. Enos wrote on Twitter: “The court’s gerrymandering decision seems to lock in an essentially non-democratic feature of American politics. Elected representatives can rig the system to remain in power indefinitely and this cannot be challenged. Combine this with the other increasingly consequential non-democratic features of the American system, i.e., the Electoral College and the Senate, and the long-term stability of the system seems worryingly compromised.”

In other words, America has a democracy problem — and it’s only getting worse.

What the hell. I’m not done yet. Part 3 coming up.


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