The Daily 202: State legislatures may reshape American politics in News stories

State legislatures may reshape American politics

Key parts of the legacies of President Obama and President Trump could combine next year in a Supreme Court ruling that may dramatically reshape America’s electoral landscape to Republican advantage while potentially empowering minority rule in many states.

On Obama’s watch, Democrats saw their numbers in governorships and state legislatures hollow out. During his two terms, the party lost more seats (816) at the state level than either party did under any of his predecessors since Dwight D. Eisenhower.

In 2008, Democrats controlled state legislatures in places like Maine, New Hampshire, North Carolina, Pennsylvania and Wisconsin, according to the National Conference of State Legislatures. Today, those are all held by Republicans.

Separately, Trump created the current conservative majority on the Supreme Court, which just overturned the Roe v. Wade precedent, sending what had been a constitutional right for nearly 50 years to state lawmakers. In dozens of states, the procedure is illegal, or soon will be.

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” Justice Samuel Alito wrote in the decision. “Women are not without electoral or political power.”

GERRYMANDERING AT THE STATE LEVEL
But over at the Associated Press, David A. Lieb reported how the ruling has put a spotlight on state legislatures that are gerrymandered — where districts are drawn to ensure partisan advantage. In some cases, a party can win every statewide race and still never capture the legislature. Much as with the electoral college, the majority does not rule.

Lieb pointed to Wisconsin. “In 2018, Democrats won every major statewide office, including governor and attorney general, races where gerrymandering isn’t in play. But they have not been able to overcome heavily gerrymandered state legislative districts since Republicans won control of the statehouse during the midterm elections in 2010.”

And “Republicans drew Michigan legislative districts after the 2010 census and created such a sizable advantage for their party that it may have helped the GOP maintain control of the closely divided House, according to an Associated Press analysis. As in Wisconsin, Democrats in Michigan won the governor’s race and every other major statewide office in 2018 but could not overcome legislative districts tilted toward Republicans.”

That combination — Democratic routs at the state level and conservative dominance of the highest court — could lead as soon as the next Supreme Court term to decisions that upend future elections.

SUPREME COURT EMPOWERS STATES
The justices, my colleague Robert Barnes recently reported, “will consider what would be a fundamental change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.”

“The case, from North Carolina, could have enormous impact on the 2024 election, and it is the second major election law case the justices will review in the term that begins in October. They have already taken a case from Alabama that will allow them to reconsider the scope of the Voting Rights Act of 1965, which prohibits voting practices or procedures that discriminate on the basis of race.”

In the North Carolina case, Republicans want the Supreme Court to upend a century of electoral jurisprudence and embrace the so-called “independent state legislature doctrine,” effectively arguing that state legislatures — not governors or state courts — get the final word in elections.

Tar-heel state Republicans brought the case looking to vacate a state Supreme Court decision to throw out a redistricting map on grounds it violated the state constitution, Robert wrote.

Here’s what that might mean, according to Eric Davis, professor emeritus of political science at Middlebury College.

Eric Davis on Twitter

Over at the Raleigh News-Observer, Will Doran noted that making state legislatures immune to judicial review could have far-reaching implications, including for the 2024 election: “the argument could be used in any state, for a variety of purposes — like overturning the results of future presidential elections.”

“Since the theory says state legislatures have near-total control over elections law, some critics say it means Republican-held legislatures in states that vote for a Democrat for president in 2024 might be able to use it to ignore the popular vote and give their Electoral College votes to the Republican candidate instead.”

“Some GOP leaders tried doing exactly that in 2020. And while it didn’t work then, Republicans may try it again in 2024, wrote Michael Luttig, a Republican federal judge who is retired from the 4th Circuit Court of Appeals, which covers North Carolina, in April.”

But Doran also quoted Helen White, a lawyer for the voting rights group Protect Democracy, as saying she doesn’t think a GOP-friendly ruling would “give anyone ‘license to coup.’”

“‘But it would be devastating for voting rights and elections administration.’”