The most shocking political development of my lifetime has been the erosion of democratic values and the flagrant disregard of the rule of law. The Republican leaders have spat at inconvenient democratic truth (the clear loss of the election) and allowed a sexist, racist criminal to lead the party, a leader who would use the tools of power to jail his enemies.
It is hard to believe that Republican leaders really think they won the election; it is easier to believe that they think the Big Lie (coupled with racism and vote suppression) is the best path to victory in the next.
At the same time, the Democrats have played their own role in suppressing votes. For years the Democrats controlled most state legislatures and gerrymandered the Republicans. One exception was Indiana where the Republicans gerrymandered the Democrats. If the Court reversed that gerrymander, the political landscape outside Indiana would have changed enormously to the detriment of the Democrats. So, the California Democrats wrote a brief in favor of the Republicans. The story goes that Solicitor General Charles Fried refused to file a brief on behalf of the Democrats despite being asked by the RNC. He could not ask the Court to reorganize most legislatures in the same term he was asking them to overrule Roe v. Wade on states’ rights grounds. So, the RNC intervened on behalf of the Democrats. Meanwhile the NAACP had to decide whether it wanted maximum Democratic representation or Black representation at the expense of Democratic representation – at least quantitatively. So, for example, South Central Los Angeles (then virtually all Black) showed on the map as bicycle spokes going into predominantly White areas providing winning Democratic margins, but no Black representation. The NAACP went for Black representation.
I with a number of others helped represent the Democrats in California and in brief writing about Indiana's gerrymander. One of the many interested political leaders asked me and others if we had a chance to win. I told him/her we almost certainly would win. The Court would not want to get involved supervising legislative organization. The response was incredulity: “Don’t they know what’s at stake?” Of course, they did; but they also believed in the appropriate limits of the judicial process. I am not sure the Court is as principled now as it was then.
Were gerrymanders at the time moral? Another leader: “Well they have the money[no longer true]; we draw the lines. I have no problem with it.” Actually, the best argument for gerrymanders is that there is no non-political way to draw lines. In California, (despite a California provision prohibiting two drawing of lines in a decade – a provision discussed in a California AG opinion decades before – I was happy to find it in a dusty volume) legislator Sebastiani proposed an initiative calling for square boxes that would have produced a Republican gerrymander. So African-Americans in Los Angeles would have been packed into square boxes - minimizing the effect of their vote. Jonathan Steinberg and Dan Lowenstein wrote an article showing that there is no good alternative to the gerrymander. Maybe. But I have to believe there was a lot of Democratic glee in using lines to assure the outcome of elections.
The Democrats have done much more to pave the way for the likes of Trump. Stay tuned.
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