TPM Cafe: Opinion

The following is the first installment in a TPM series, “Not Safe At Home: Solutions For Our Democratic Crisis.” As America battles the coronavirus, this series takes a look at fixes the next Congress and President should consider to how our democracy works — ideas that predate the coronavirus, and that will resurface after it has passed. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis. 

 

Many smart progressives today argue for various plans aimed at depoliticizing the Supreme Court, often through elaborate and difficult-to-enact schemes that involve changing how the court is constituted and how each justice is appointed. One oddity of these reform schemes is that if you had the political power to enact one of them (i.e. the White House, supermajorities in Congress, and, in some cases, enough state legislatures to ratify an Amendment), you’d likely also have the power to do simpler stuff, such as appoint better justices to the Court.

But there is a deeper and more interesting problem. Depoliticization schemes aim to make the Court something it has never been. The Court is no umpire, standing apart from politics. Instead, it has always been engaged in what scholars sometimes call “high politics” or constitutional politics. The lesson of the first 150 years of American history is that when you believe the Court is profoundly wrong, you don’t fix the Court through depoliticizing reforms. You confront the Court through politics. When the Court is far enough out of step with Congress, the President, and the American people, the elected branches can use a range of constitutional hardball tactics to induce the Court to change direction. These begin with fights about who should be on the Court, but they don’t end there. It’s worth knowing this history because we may soon need to dust off the rest of the playbook.

I.

The framers of the Constitution envisioned a politics without political parties. The collapse of this vision was almost comically instantaneous. By the election of 1800, the first two parties were at each other’s throats, fighting for (among other things) control of the courts. President John Adams and his Federalist party lost the election, but attempted to entrench their allies in the federal judiciary through two techniques that became time-honored American strategies of court-packing. First, a lame-duck session in early 1801, the Federalist majority in Congress created many new federal judgeships, which Adams quickly filled (the “midnight judges”). Second, they adjusted the size of the Supreme Court — downward, from six members to five (effective on the retirement of any of the existing six) — in what turned out to be a futile attempt to block incoming President Thomas Jefferson from appointing anybody to the Court.

II.

Lincoln clashed openly with the Supreme Court at the start of the Civil War. When pro-slavery Chief Justice Roger Taney ruled that Lincoln lacked the power to suspend the writ of habeas corpus, Lincoln simply refused to obey the ruling. In 1863, with the war raging, in an effort to reduce Southern power on the Court and entrench pro-union control, the Republican majority added a tenth justice (who turned out to be the gun-toting Californian Stephen J. Field, a pro-union Democrat and advocate of economic liberty). After Lincoln’s assassination in 1865, the Presidency passed to Vice President Andrew Johnson, another pro-union Democrat, but one with more dangerous views: Johnson was determined to eviscerate Reconstruction and allow ex-Confederates to regain power. As part of their protracted battle with Johnson, which would eventually result in his impeachment, the Republicans in Congress in 1866 reduced the size of the Supreme Court from ten justices to seven — meaning that the first three justices to depart would not be replaced. This time the tactic worked. Johnson was unable to appoint any justices to the Court. Johnson’s successor, Republican Ulysses S. Grant, the former Union general and our most pro-Reconstruction President, was much more closely aligned with Republicans in Congress. Once he was safely in office, the Republicans increased the size of the Court back up to nine justices, where it has remained. Grant got to fill one seat on the Court immediately, and soon filled three more.

The most interesting thing about this early history for twenty-first century Americans is not necessarily the method partisans in Congress used to secure control of the Court. Adding and subtracting justices is perhaps the bluntest, most obvious method they could have devised, given that the Constitution says the justices have life tenure but doesn’t say how many there should be. The most interesting thing about these early fights is that Americans, from the start, have understood the Court to be a branch of government engaged in constitutional politics.

The “high politics” of the Supreme Court is not exactly the same as regular, low politics. We don’t expect or want justices to strike down every law they disagree with. But the most important debates about how to interpret the Constitution — pro-slavery or anti-slavery, pro-federal power or pro-states’ rights — also tend to be central axes of our politics. They’re often near the heart of what divides the parties and the American people. The problem is: what do you do when the Court is out of step with Congress, the president, and the people on such important questions?

III.

The evolution of the Republican Party is a fascinating story all its own. By the end of the nineteenth century, its vision of economic liberty had morphed into a defense of wealth, corporations, and capital, against labor, government regulation, and taxes. The Republican-dominated federal courts, including the Supreme Court, advanced these views as a constitutional vision. The federal courts in those days routinely issued injunctions blocking union organizing tactics such as strikes and picketing. When farmer-labor populist unrest swept the country and a Democratic Congress enacted a peacetime income tax, in 1894, the Supreme Court reversed a century of precedents to strike down the tax as exceeding congressional power. None other than Justice Stephen J. Field wrote that the tax unconstitutionally discriminated against the wealthy. “The present assault upon capital is but the beginning,” he wrote in his opinion: we were hurtling toward “a war of the poor against the rich.”

The populists and progressives who favored redistributive taxation responded to Field and the conservative justices by calling for a constitutional amendment to overturn the decision. This strategy eventually worked: the 16th Amendment, granting the federal government the power to tax incomes “from whatever source derived,” was ratified in 1913. But that was the first and last time in modern American history that the “let’s reverse a single bad Supreme Court decision with an Article Five Amendment” strategy has ever succeeded.

IV.

When the Great Depression hit, the Supreme Court was still dominated by its pro-business, anti-labor, anti-redistribution Republican majority. President Franklin Roosevelt and the Democrats in Congress began to fight the Depression by enacting key components of the New Deal; the Supreme Court quickly found reasons to strike them down. In his 1936 campaign, Roosevelt campaigned against both the “economic royalists” and the Supreme Court. He argued that the Court’s constitutional vision was nothing more than a “new despotism wrapped … in the robes of legal sanction.” He famously threatened to increase the size of the Court and pack it with new justices. This plan never had the votes in Congress, and went nowhere. But the Court backed off. It didn’t strike down a single New Deal statute after 1937, acquiescing instead to a new constitutional vision of national congressional power to regulate the economy. In that way — the most important way — FDR’s campaign against the Court was not the failure some assume it was, but a massive success.

FDR’s confrontation with the Court provides the clearest template for the set of conflicts that are likely in our future: conflicts between more progressive elected branches and a more conservative Court. Indeed, many of the key axes of disagreement are lifted straight from the 1930s. Does the Constitution protect the right to strike, or the right to not have your business picketed by strikers? Does it protect a broad power to tax — perhaps to enact a wealth tax? How about the power to build strong federal systems of social insurance, such as universal health insurance and unemployment insurance? Or the power to block plutocrats from buying politicians? These are simultaneously political questions and constitutional questions. To change the Court’s answers, Congress may need to play some constitutional hardball.

V.

In addition to the time-tested strategy of threatening to add justices, Congress could attempt to pursue various other, more exotic strategies of constitutional hardball in its coming confrontations with the Court. For instance, consider jurisdiction-stripping: providing by statute that the federal courts, including the Supreme Court, do not have the jurisdiction to hear some particular type of challenge to a particular statutory provision. Oddly enough, this is probably legal. Congress could also place triggers in legislation to dissuade the Court: Write the statute to hold that if program X is struck down by a court, then program Y will appear in its place — where Y is even less politically appealing to the Court’s majority than X, but Y sits on such firm constitutional foundations that striking it down would leave the Court even more politically exposed. And so on. The objective of such hardball tactics is not to depoliticize the Court, but to deter it from proceeding down its path of economically-conservative politics dressed up in constitutional clothes. Ideally, there is no need to carry out the biggest threats, such as packing the Court. The best outcome, as in 1937, is for the Court to back off.

Confronting the Court works best with a tailwind of wide and deep popular support. It has not yet been tried in the era of Fox News, which could present special challenges. Nonetheless, it is our best hope. The only real umpires in American politics are the American people. If they find the Court out of bounds, the elected branches may be able to push the Court back into line. It has worked before.

 

This story has been updated in light of helpful comments the author received from Harvard law professor Mark Tushnet.

Corrections: This story initially stated that Chief Justice Roger Taney ruled “for the Court” that President Abraham Lincoln lacked the power to suspend the writ of habeas corpus. In fact, Taney issued the ruling while riding circuit as circuit Justice. The story has been updated to reflect that. 

Also, this story initially stated that the 16th Amendment was the only time in U.S. history that an amendment was used to reverse a single bad Supreme Court decision. In fact, this did happen one other time, in a very different era: the 11th Amendment, in 1795. The story has been updated to reflect this.

 


Joseph R. Fishkin is the Marrs McLean Professor in Law at the University of Texas at Austin School of Law. His first book, Bottlenecks: A New Theory of Equal Opportunity, was published by Oxford University Press.

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The following is the first installment in a TPM series, Not Safe At Home. The series takes a look at fixes the next Congress and President should consider to how our democracy works. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis. 

 

Throughout our nation’s history, black Americans have faced systematic disenfranchisement when it comes to the vote. Despite constitutional amendments that sought to protect voting rights, it is clear that the Constitution does not go far enough to ensuring that all Americans have access to the polls.

It is time to amend the Constitution to fix this problem. This amendment must guarantee to every American the right to vote. It should also resurrect an old idea, embodied in the 14th Amendment, and reduce the number of members of Congress apportioned to states that keep citizens from the polls.

A 28th Amendment to the U.S. Constitution should provide: “All citizens the age of 18 and over are guaranteed the right to vote. Each state shall guarantee the right to vote.” This language incorporates the spirit of prior amendments that aimed to open the door to black American voters and then goes further. It bars future voter suppression schemes. A new 28th Amendment would make the states responsible for ensuring the right to vote, turning access to the ballot box into the presumed right of every adult American.

Across a century, between 1870 and 1971, four amendments have addressed access to the ballot, but none have gone far enough. Each was intended to expand the body politic and limit the states’ capacity to suppress votes. These amendments defined what states may not do, but did not expressly guarantee any citizen the vote. The 15th amendment prohibited the states from relying upon “race, color, or previous condition of servitude” when determining who can vote but did not bar other forms of disenfranchisement. No state can consider “sex” when legislating access to the ballot pursuant to 1920’s 19th amendment. But women are not guaranteed access to the ballot box. In 1964, the 24th Amendment prohibited states from using poll taxes to keep citizens from voting. Since 1971, age for those “eighteen years of age or older,” may not be a basis for denying the vote, by the 26th amendment. Still many millions of Americans — including non-whites, women, and those who are 18 and older — cannot vote.

Voting rights in America have been persistently shaped by racism. Much of U.S. history can be told as one long struggle over the right to vote. Though the term “voter suppression” was not in use in past centuries, it was as much a part of our political culture in the 18th century as it is in the 21st.

Very early in the history of the new republic, free black Americans faced the loss of voting rights. In the wake of the American Revolution, former slaves voted in many states. In Maryland, for example, they went to the polls until 1802, when the state for the first time made “white” a pre-requisite for voting. In New York, it was 1821 when lawmakers increased the property qualification when it came to black voters, while white men were subject to no such limitation. In 1838, Pennsylvania’s constitutional convention limited the vote to “white freemen.” The African-American “appeal of 40,000 citizens threatened with disenfranchisement” failed to change white lawmakers’ minds.

In the Reconstruction era that followed the Civil War, black Americans, millions of them formerly enslaved, joined the body politic as voting citizens of the United States. Still, after a brief period of significant black political power, white officials conspired to keep them from the polls. Grandfather clauses made voting dependent upon the status of one’s forebears. Literacy and understanding requirements let local officials administer tests unevenly and with ill-intent. All-white primaries kept black voters out of party deliberations over who would appear on the ballot. Poll taxes ensured that even those who could surmount other hurdles would miss the chance to vote because of dollars and cents. Add to these obstacles intimidation and violence. The result was a 75-year long era during which the votes of black Americans in the southern states, where the vast majority had long lived, were brutally suppressed.

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Consider the difference between an amendment that prohibits the states from barring people from voting because of race and one that guarantees the vote to all adult Americans. "

The 1965 Voting Rights Act was signed into law after years of sustained and risky direct action by black Americans in places like Selma, Alabama, where the state had long kept them from the polls. The decades that followed were an unprecedented era of democracy in the U.S. It did not, however, last. In the early 21st century, Republican state officials initiated a new generation of voter suppression techniques: voter ID, purging of rolls, shuttering of polling places, and the disregard of absentee ballots. In its 2014 decision in Shelby County v. Holder, the U.S. Supreme Court annulled the Voting Rights Act requirement that states with a history of suppressing non-white voters get prior Justice Department approval before changing their voting rules.

It is time to amend the Constitution’s voting rights provisions and transform limits on the states into positive guarantees to citizens. It is time to amend phrasing that falls short of making promises to members of the body politic.

Consider the difference between an amendment that prohibits the states from barring people from voting because of race and one that guarantees the vote to all adult Americans. The former leaves states at liberty to shut black voters out using ostensibly non-racial qualifications, while the latter demands that they be included. Similarly, rather than barring states from relying upon sex when determining who can vote, it would guarantee to all women the vote. What if all Americans 18 and older were promised access to the polls? These changes would initiate a powerful shift, one that transforms voting from a privilege meted out by the states into a guarantee to all American citizens.

There is, of course, reason to suspect that some states, even in the face of a Constitution that guaranteed the vote, would curtail that exercise of political power. This prospect suggests that it is also time to use a little considered provision in section 2 of the 14th Amendment. It provides that when any state deprives its citizens of voting rights, it will be penalized, automatically, by the proportional loss of that state’s members of Congress. While this section was originally limited to male citizens over twenty-one, these details have been abrogated by subsequent constitutional amendments.

This penalty is a harsh one that would reduce the political power of any state that engages in voter suppression. Take the example of Georgia where, in 2017 alone, the secretary of state cancelled the registration of 670,000 voters. What sort of penalty should the state pay for depriving those individuals — who total nearly 6.5% of the state’s overall population and an even higher percentage of eligible voters — access to the polls? The 14th Amendment provides that the cost to be paid for voter suppression must be proportional — the percentage of citizens disenfranchised determines the reduction of representation. That formula demands that Georgia should lose at a minimum 6.5% of its 14 members of Congress, the rough equivalent of one representative. Texas might lose more.

The persistence of voter suppression today suggests that the Constitution is not up to the task of guaranteeing the right to vote. On the horizon is an opportunity to adopt an amendment that would guarantee the vote to all adult Americans. This may be a far-off remedy, but imposing the terms of section 2 of the 14th Amendment need not be. Though never enforced, the language says the penalty is supposed to be automatic — “shall be reduced.” Already at our disposal is the authority to penalize those states that suppress voting rights. Until today, states have paid too small a price for keeping Americans from polls. It is time to turn up the heat. Let’s take what we know about the numbers and demand that states pay for keeping citizens from the polls with their power in Congress, and by extension the electoral college, since the number of electors there is simply the state’s number of senators and representatives. It was a good idea, one added to the Constitution in 1868, whose time has come.

 


Martha S. Jones is the Society of Black Alumni Presidential Professor and Professor of History at The Johns Hopkins University. She is the author of Birthright Citizens: A History of Race and Rights in Antebellum America and All Bound Up Together: The Woman Question in African American Public Culture 1830-1900.

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The following is the first installment in a TPM series, Not Safe At Home. The series takes a look at fixes the next Congress and President should consider to how our democracy works. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis. 

 

The 2016 election of Donald J. Trump and the subsequent rightward turn of the Supreme Court are both a disaster and an opportunity for Democrats. The disaster is visible everywhere around us; the opportunity, understandably, is harder to discern. But the political system’s failure to prevent the election of a minority-backed, outrageously unqualified candidate, or to restrain him sufficiently once elected, demands that Democrats ask not just how to defeat Trump but how to fix the political system that seems prepared to ratify many of his party’s actions.

But asking questions about changing the way political power is allocated seems risky. The response is predictable: that isn’t the way the United States does things. In the popular imagination — especially among the political press — the United States’ past is a story of political stability, of battles fought sharply but within defined and persistent boundaries. The nation’s people and its policies have changed; its procedures — the argument goes — have not and therefore should not.

While this preference for stability may be justified as strategy, it is vacuous as history. The United States has survived not by keeping the same system but by transforming its rules at crucial moments.

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Our historical amnesia about the reworking of our political system has significant consequences for the way we think about politics today. "

Our historical amnesia about the reworking of our political system has significant consequences for the way we think about politics today. More so than in the past, U.S. politicians — even purportedly radical ones — have deeply constrained views about changing the rules of the political game: how the president is selected, how seats are allocated in Congress, how many states exist, how voting rights are defined, how much power the Supreme Court wields. Many of these contemporary constraints developed after World War II, in a broad liberal faith that a well-functioning Supreme Court can help fix the country without dirtying politicians’ hands.

But past U.S. politicians lacked that faith. In his Second Annual Message to Congress in December 1862, Abraham Lincoln dismissed some restraints of tradition as he and Congress waged the Civil War and prepared for the impending Emancipation Proclamation. “The dogmas of the quiet past are inadequate to the stormy present,” he wrote. “The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew.” So, Lincoln continued, “We must disenthrall ourselves, and then we shall save our country.”

This article is the first in a series on this topic of thinking and acting anew. TPM has asked historians and constitutional scholars to use their understanding of the historic changes in the U.S. political and constitutional systems to help us disenthrall ourselves today from the passivity or alienation that emerges when a people face problems that the political system seems unable to solve, and when leaders retreat from the challenge of devising solutions as vast as the challenges. Of course passing laws within the incumbent system matters. So too does seeking broader cultural change. But at crucial moments it is important to fix the political system, to go beyond playing within the rules and instead to improve the rules of the game.

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At crucial moments it is important to fix the political system, to go beyond playing within the rules and instead to improve the rules of the game. "

The essays differ in their solutions but they share two common premises. First, that a Democratic victory alone will not be sufficient to fix the political system. Second, that the history of the United States provides useful models of politicians seeking to change the very political and constitutional system they worked within.

A Democratic victory in 2020 undoubtedly would restore some sense of decency in the country’s operation and brake the extremist positions of the current administration, but still the nation would not be safe at home. The conditions that prompted a Trump victory would remain intact, along with the probability of revanchist neo-Trumpite movements, perhaps led by his children. So, too, would Democratic victory only marginally stave off Republican state efforts to roll back voting rights, to attack necessary congressional delegation of regulation, to assault the rights of women to control their own bodies, to transform the nature of the Census in order to disadvantage Democratic states. The hope that the Supreme Court might save the country from an extreme right-wing agenda has died. The lifetime installation of Neil Gorsuch and Brett Kavanagh suggests that there are no referees who will save us. The best-case scenario for Democrats appears to be the survival of Democratic-appointed justices until 2021, a Democratic capture of both the presidency and the Senate in fall 2020, and a chance to sustain today’s moderate minority on the Court. This is better than losing even more seats on the Supreme Court, but is clearly insufficient to meet the actual challenges we face.

U.S. history provides a different, riskier, but in some ways more promising alternative. In my recent book The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic, I argue that Civil War and Reconstruction-Era Republicans permanently transformed the political system by methods that would appear shocking today. When Republicans needed more states to balance the Senate, they created them. When the Supreme Court threatened Republicans’ Reconstruction policies, Congress restricted the Supreme Court’s jurisdiction, added and then subtracted justices, and threatened to dismantle the court altogether. When the Constitution did not defend the civil and voting rights Republicans prized, they transformed the nation’s founding document through three sweeping constitutional amendments, the last two passed in the face of bitter opposition not only from white Southerners but from many white Northerners. Between 1860 and 1870, Congress considered many other constitutional amendments, including some to eliminate the Electoral College or to enfranchise women. In 1888, as Heather Cox Richardson has written, Republicans faced a Democratic Party that sought to build a permanent congressional majority by disfranchising black Southern voters; Republicans responded by creating six new western states between November 1889 and July 1890, though they tragically (and narrowly) failed to pass a voting rights bill. The new political map that Senate Republicans fashioned still shapes our world

Where did that sense of boldness go? In 2009 the Democrats possessed for a time a 60-seat bloc in the Senate, yet barely considered the obvious (in retrospect) move of adding Washington D.C. as a state, much less investigating the addition of Puerto Rico or the creation of multiple states out of California or New York. Of course Democrats look timid today next to Abraham Lincoln; what’s astonishing is how timid they look compared to Benjamin Harrison.

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Our history of norm-busting politics suggests that Republicans today are less anomalous than Democrats might like to think.  "

There is something fearful about facing the nation’s history. Our history of norm-busting politics suggests that Republicans today are less anomalous than Democrats might like to think. We forget the nation’s bloody and confounding political history because there is pleasure in amnesia.

But there is power in recognition. The Democratic Party has become adept at defining problems for which the party offers no realistic solution. Against the assault on voting rights and the outrages of partisan gerrymandering, Democrats passed — to their credit — a significant bill in the House of Representatives that will never pass the Senate; now the party seems prepared to wait for courts that seem unlikely to intervene. Against the overweighting of rural votes or the problems of the Electoral College, Democrats complain about unfairness, instead of proposing a fairer system. Even the most-radical major candidate to run in 2020, Bernie Sanders, inexplicably declined to support the timid act of undoing a non-constitutional filibuster rule in in the Senate, ensuring that even a 2020 Senate victory will mean that moderate Democratic bills are doomed to defeat at the hands of Mitch McConnell. Other Democratic candidates were often even more timid. The Democratic Party’s unilateral disarming not only makes the Democrats look weak; it also makes them look helpless, as if they are the party that tells people what cannot be changed.

If the United States does not face an existential crisis, if this is just another blip in the political road, then of course Democratic caution makes sense; so too does defense of the status quo. But if Democrats see this as a nearly unprecedented challenge to the nation’s ideals and images, then they must propose solutions as grave as the crisis. Perhaps it is time for us, too, to disenthrall ourselves from a hope that the United States will naturally right itself and to get about the work of saving our country.

The essays that follow argue, in different ways, that the past can provide some guidance as we do the painful but necessary work of expanding our sense of the possible, of assessing the problems in our political system, and of devising solutions sufficient to address them.

The “Not Safe At Home” series will be published over the next two weeks. Read the next article, here.

 


Gregory P. Downs is a professor of history at the University of California, Davis, and author of After Appomattox: Military Occupation and the Ends of War and The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic.

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Staying mentally grounded has become increasingly difficult as COVID-19 continues to dominate the news cycle and our lives. Finding things to help distract ourselves and to get out of our heads for a little bit are a must, whether it’s a new hobby or skill, talking to family and friends, TV shows, movies or a good book. While we at TPM join much of the world in practicing social distancing, we asked our staff to share what books they’re reading while they cope with isolation.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

The federal government is in the midst of rolling out a $2 trillion bailout package to try and mitigate the effects of the national coronavirus shutdown. Much of this money will go to major corporations, while working and middle-class Americans may see at most a few thousand dollars. Very little has been done to take care of gig workers, freelancers and consultants who have seen contracts cancelled, or drastically reduced, and customers evaporate. Perhaps it could have been better spent bailing out student debtors.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

Our constitutional system depends on accountability. That is a central part of what it means to live in a democracy as opposed to an authoritarian state. When the framers of the Constitution created the executive branch, critics worried that the President would become a king in a style of the 18th century British monarch — unaccountable to ordinary legal processes. More than 150 years before Harry Truman declared that “the buck stops here,” Alexander Hamilton explained in the Federalist Papers that, unlike the British king, the American president would be “personally responsible for his behavior in office.”

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It is an excerpt from “UNRIGGED: How Americans Are Battling Back to Save Democracy”, by David Daley, out today. 

 

When Eric Holder vowed to make redistricting sexy, he probably didn’t see this evening coming. It’s a Monday evening in late July 2018, and Holder has been pinned in a Columbus, Ohio, kitchen by a wealthy workers’ comp attorney with an unearthly pinkish-tan glow. The local lawyer, a big Democratic donor, stands between the former attorney general and an actual gazpacho fountain. The attorney wears a partially unbuttoned blue gingham shirt and alligator loafers with no socks. He gestures with a giant glass of rosé, some of which spills onto Holder’s non-alligator shoes, while he emphatically explains why he’s finished donating to Ohio congressional candidates. His money will be given strategically, instead, to two otherwise anonymous down-ballot races, because the winners will hold a seat on Ohio’s redistricting commission.

“I’ll write a big check!” he tells Holder. “You know I’ll write a big check!” he adds enthusiastically, pointing his glass toward his candidate of choice, Zach Space, the Democratic auditor nominee. “You wrote me a big check today!” Space says quickly and appreciatively, wearing the pinned-on permasmile of any politician at a party with their awkward new benefactor. But the congressional folks? Cut off! The lawyer told the party so today. “They called me and I said, ‘I’m not giving you another dime.’ It’s gerrymandering! They get nothing ever again! I’m giving to the auditor and the secretary of state.”

In Ohio, even the lawyers who look freshly delivered from the Yellow Pages’ back cover are woke. Gerrymandering has turned this bellwether state’s politics inside out, securing Republicans a 12–4 edge in Congress and supermajorities in both state legislative chambers. Exactly 7 of the 297 races for the lower house between 2014 and 2018 have been within 5 points; heroes and legends like LeBron James or Ohio State football coach Urban Meyer can bring championships back home, but even Ohio’s most beloved figures would struggle to make those other 98 percent of the state’s house districts even remotely competitive.

That’s what brought Holder to this well-appointed home in his role as chairman of the National Democratic Redistricting Committee. He needs more donors and Democrats to connect the party’s ailing fortunes in states like this to the outrageously tilted districts Republicans drew during the last mapmaking process. There are still plenty of Democrats in Ohio; they’ve simply been cracked, packed and stacked so they can’t win many elections, ratfucked into oblivion by brilliant mapmakers and strategists who, unlike 2010’s Democrats, understood that winning the contests for auditor and secretary of state brought the power to banish the other side to political Antarctica.

“This is about fairness. They’re a minority power exercising supermajority power. That has to stop,” Holder tells the assembled crowd. The living room is rapt and alive; the fancy hors d’oeuvres are wrapped in bacon; every book on display has something to do with the musical Hamilton. “If we have a fair fight, we will do just fine. But you have to forget this notion of down-ballot. And you can’t just yell at the TV, at MSNBC or Colbert.”

“We shoot the TV in Ohio,” interrupts the lawyer from the kitchen.

 


 

Such was Eric Holder’s 2018. The former attorney general could have cashed in countless billable hours. He could have made bank on his status as the first African American to hold the office, or his long friendship with Barack Obama. Instead, he spent the year in living rooms like this, across our most gerrymandered states, urging Democrats to refocus on state legislatures and redistricting, pushing voting rights and a democracy agenda into the headlines and trying to make the least sexy contests just a little hotter. Over many months, I followed Holder into black churches and universities, house parties, law offices, even YWCA conference rooms as he rallied support for judges in North Carolina and Wisconsin, these easily ignored races in Ohio, and even called rural Georgians on behalf of Stacey Abrams and other local candidates from a nowheresville strip mall party headquarters next to the Licken’ Chicken’.

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All of it was unglamorous. Much of it was thankless. "

All of it was unglamorous. Much of it was thankless. In late 2017, both Holder and I were asked to discuss redistricting for a private audience of Democratic U.S. senators. Senators shuffled in and out of the ornate caucus room off the chamber floor. It was early, the morning after election day, but Democrats were ebullient from big wins in Virginia. The general elation made it all the more shocking when Senate Minority Leader Charles Schumer peered down at Holder, glasses on the tip of his nose, and pinned the party’s gerrymandering problem on race. The problem, Schumer fumed behind closed doors, was that civil rights groups and African American incumbents wouldn’t surrender even a piece of their safe districts for the general good of the party. What, he demanded to know, with a condescending tone that made me shiver and a racial undercurrent that made much of the room cringe, was Holder doing about that? Was he having conversations with those groups?

The kernel of truth inside Schumer’s otherwise off-base observation was decades old. During the 1990s’ redistricting cycle, Republicans and black Democrats joined forces as unusual, but understandable, bedfellows. Conservative white Democrats held a hammerlock on Southern politics; both Republicans and African Americans were underrepresented as a result. Blacks in North Carolina may have been reliable Democratic voters, but the state hadn’t sent a person of color to Congress since 1900. By 1994, North Carolina had two African American representatives, from districts packed with black voters. That year, however, Republicans took Congress for the first time in five decades. The packed “majority-minority” seats also bleached the surrounding districts whiter and more conservative, tilting them red.

The black caucus understood the devil’s bargain of cracking and packing and wished to be part of a Democratic majority, but they also harbored a natural distrust of white Democrats diluting their voice. Schumer’s racially-tinged outburst, however, was so disrespectful and condescending that I thought for sure the tension would escalate. But Holder quietly assured Schumer that he was in regular touch with civil rights groups. That’s when Missouri senator Claire McCaskill jumped in with her awkward race-related plaint. Missouri’s black members of Congress had such safe districts, she charged, that too many African Americans didn’t bother to turn out to vote for white statewide candidates, like, for example, herself. Could Holder make that clear in his meetings as well? The former attorney general had grown accustomed to this treatment in brutal oversight hearings from House Republicans; he likely didn’t expect it from his own side.

Holder, however, had quickly grasped how GOP gerrymandering caromed Democrats into the abyss, even if Schumer and McCaskill misunderstood the finer points. Not long after Barack Obama’s reelection in 2012, Holder told me, he and the president were looking over the numbers. “We thought we had done well in terms of the raw vote, but it wasn’t at all reflected in the number of representatives we had at both the state and federal level,” Holder says.

It’s the day after the Columbus house party and we’re in the parlor of a Cincinnati law office where he’ll soon hold a lunchtime Q and A with young Democrats, and Holder is recalling the confusion he and Obama discussed in the White House that day. “So what’s going on? REDMAP had been a small part of my consciousness before the 2012 election. I’d heard the phrase, but it wasn’t anything I had really focused on. Then we saw the election results.”

Democratic congressional candidates won 1.4 million more votes nationwide; Republicans held the House 234–201, thanks to a 56–24 edge from purple Pennsylvania (13–5), Ohio (12–4), Michigan (9–5), North Carolina (9–4), Virginia (8–3) and Wisconsin (5–3). If those fifty-fifty states had fifty-fifty delegations, the GOP edge would have been 218–217. It’s easy to imagine a very different second Obama term, with a smaller and less influential Freedom Caucus, much more incentive for compromise, and without government shutdowns or four dozen votes to repeal Obamacare.

Holder looks back on that election and realizes that Obama’s legislative agenda curdled the very night he won reelection. “There’s no question gerrymandering had an impact. I think it certainly shut down, in a substantial way, legislative avenues—which forced him to use executive power,” Holder reflects. “He had an impactful second term, but he did not have the ability to make it a durable one. The use of executive power, as we’ve now seen, can be reversed relatively quickly.”

 


 

Eric Holder became the nation’s top lawyer fewer than three years after the Voting Rights Act glided through reauthorization for another twenty-five years, backed by a Republican president, George W. Bush, and supported overwhelmingly by both houses of Congress, including a unanimous U.S. Senate. When President Lyndon Johnson signed the Voting Rights Act into law in July 1965, he proclaimed that “the right to vote is the basic right, without which all others are meaningless.” Forty-four years later, the job of enforcing this landmark legislation fell to the Holder, the nation’s first African American attorney general, just a teenager at the time but already on a path for law school.

In 2006, there was broad, bipartisan support for Section 5 “preclearance,” the Voting Rights Act’s most critical enforcement tool. It essentially placed on probation parts, or all, of sixteen states with a history of deeply rooted discrimination. If those entities wanted to alter their electoral laws, they had to prove there would not be any discriminatory purpose or effect. It was about to become much more controversial.

Not long after Republicans swept a record number of state legislative chambers in 2010, more than two dozen new state laws and executive orders targeted early voting, voter registration efforts and additional photo ID requirements. And when Holder’s Justice Department halted these voter suppression techniques under preclearance, citing discriminatory effects, a flurry of lawsuits resulted. It wasn’t 1965 any longer, not even in Alabama or Texas, these suits charged; they asserted that, in theory at least, a new era of equality existed, and defended the rights of these entities to make their own election laws. The federal government no longer needed to monitor every move. In the forty-five years between 1965 and 2010, there were only eight challenges to Section 5 of the Voting Rights Act. Between 2010 and 2012 alone, there were nine.

Holder vigorously explained the theory behind Section 5 and defended its necessity. In a dramatic speech at the LBJ Library in Texas in late 2011, he stated his fear that some might “allow this time—our time—to be recorded in history as the age when the long-held belief that, in this country, every citizen has the chance—and the right—to help shape their government became a relic of our past.” His efforts, Holder said, honored the generations that took extraordinary risks, willingly confronted hatred and ignorance, and stood before billy clubs, fire hoses and bullets to fight for the right to vote as the very lifeblood of democracy.

Imagine, then, his profound dismay when the Supreme Court, in a 2013 case from Alabama called Shelby County v. Holder — “We only call it Shelby County,” Holder cracks when we discuss the case, with a wincing half-smile — overturned Section 5 as “based on 40-year-old facts having no logical relationship to the present day,” according to Chief Justice Roberts, in a nation that “has changed.” Holder had clerked with the NAACP’s Legal Defense Fund as a law student and joined the Justice Department’s public integrity division straight out of Columbia, working on voting rights issues. Now the Court had gutted a key enforcement mechanism that protected democracy, and did so in a case bearing Holder’s name. “People had underestimated the importance of gerrymandering, the hollowing out of the Voting Rights Act,” Holder says. “You had conceptually the notion that this was not a good thing. But then it became real.

The Shelby County decision unleashed a wave of new voter suppression techniques blessed by a majority of Supreme Court justices. Texas implemented its strict photo ID law fewer than twenty-four hours after the court’s ruling. Alabama and Mississippi jumped at the opportunity to enforce voter ID laws that the Justice Department had previously blocked. Gerrymandered North Carolina, meanwhile, quickly went to work on H.B.589, a package of voting restrictions that included a voter ID bill that carefully targeted African Americans, in addition to ending same-day registration, annual registration drives and most early voting.

“These are civil rights issues,” Holder tells me. It’s just spreadsheets and data files instead of fire hoses and attack dogs. “We’re not fighting George Wallace and Bull Connor. But there’s a straight line between the civil rights movement and what we’re fighting now.”

Holder’s a Democrat. But he insists that the NDRC is not “a partisan attempt at good government.” The only way to “break this fever” of extremism in Washington and state capitals, he suggests, is by ensuring that neither party holds unilateral power over electoral maps. Neither Congress nor the Supreme Court seems likely to set fairness guidelines. Therefore, “you’ve got to elect Democrats, so that when the process happens again in 2021, you’ve got two parties at the table.” Now, that’s some nifty political jujitsu that might encourage, say, Republicans in Maryland, which is gerrymandered by the Democrats, to check for their wallet. Holder, however, pledges that he’ll fight any effort by Democrats to gerrymander where his party has complete control. “If that was the game, I wouldn’t put my name on it,” he insists. “Barack wouldn’t have put his name on it. It’s going to be on us to be critical of Democrats who do that, and, frankly, stop it from happening.”

In December 2018, Holder proved true to his word. New Jersey Democrats attempted to assure themselves unfettered power over the state’s bipartisan redistricting commission, reworking the state constitution to give legislative leaders the right to select its members. Holder blasted this as unfair and a step backward, which added to pressure on the legislature to back down.

It’s easy to be cynical about a partisan effort that promises it will reform partisan behavior. Believe him or not, however, Holder has been remarkably consistent: he wants to undo REDMAP, not install BLUEMAP. He’s convinced that Republican voters hate gerrymandering just as much as Democrats and independents do. Just look at Ohio, he says, where redistricting reform passed with more than 70 percent approval. Or Florida, where two Fair Districts amendments soared past 60 percent approval during the 2010 Tea Party wave. “Republicans, conservatives, independents, Democrats. The people get it,” he says.

And it’s the people who will have to fix it. Back in Columbus, Holder beseeches the room to become engaged citizens. “We have the capacity to create the change that we want,” he says, highlighting the civil rights movement, women’s rights and opposition to the Vietnam War as times when regular people “pushed, pushed, pushed” for change. “That’s what we have to do again.”

Excerpted from “UNRIGGED: How Americans Are Battling Back to Save Democracy” by David Daley. Published by Liveright, a division of W.W. Norton. Copyright 2020 David Daley, all rights reserved. Reprinted with permission of the author and publisher. 

 


David Daley is the author of Ratf**ked. His journalism has appeared in the New Yorker, the AtlanticSlate, the Washington Post, and New York magazine. He is a senior fellow at FairVote, the former editor of Salon, and lives in Massachusetts.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

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Where I grew up in Richmond, Virginia, I had to read a lot of Edgar Allan Poe’s gothic poetry and short stories. Richmond claims Poe proudly as one of its native sons. I was told as an article of faith that Poe died in Baltimore on October 7, 1849 (true) and that he was committing voter fraud (maybe not so true). Examining this myth about Poe gives some insight into how the tall tale of voting fraud tends to spread.

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