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Tuesday, January 18, 2022

This Week in Statehouse Action: State of Mind edition

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The biggest winner among states was Texas, which picked up two U.S. House seats and will have 38 in the next Congress.

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Five states gained one seat: Colorado, Florida, Montana, North Carolina, and Oregon.

Seven states lost one seat: California (the first time that’s ever happened in the history of California being a state), Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia.

Courtesy of the amazing Daily Kos Elections squad, here’s a handy map of the changes: 

2020CongressionalReaportionmentResultsbyState.png

Obviously, the size of various state legislatures isn’t changing, but this is still very much a statehouse action issue because state lawmakers are tasked with drawing new congressional maps in the majority of states.

… which is why the fact that Democrats failed to flip a single chamber in November 2020 is so devastating for Team Blue at every level of government.

GOP lawmakers in the states will be able to draw new maps for anywhere from 38% to 46% of all congressional districts.

Meanwhile, Democrats will control the process for just 16% of seats.

The remainder will likely be drawn by nonpartisan entities or through bipartisan compromise.

Five of the seven seats being added were picked up by states where the GOP has complete control of redistricting: Florida, Montana, North Carolina, and Texas.

Three of those seven seats were lost by states where Democrats have some measure of control or influence over redistricting: Illinois, New York, Pennsylvania (Democratic governor, hooray!).

But it’s not enough for Republicans to control most of the next round of redistricting.

The GOP wants to have its way on pretty much everything.

And if you have the temerity to try to use things like “checks and balances” or “the rule of law” to hold them to account, good luck with that.

Because Republican lawmakers have no reservations about replacing judges who don’t agree with them with judges who do.

Take, for instance, Montana.

It’s easy to forget that the last two governors of the Treasure State were Democrats, but the GOP is fulling running the show in Helena these days.

… except not fully enough for Republicans’ liking.

High on that sweet trifecta control of state government for the first time since 2004, the GOP is thirstily passing a whole passel of bills of dubious constitutionality.

But what to do about that pesky state Supreme Court that might tell the GOP-controlled legislature that they can’t just do any old thing they want?

You fuck around and hope you don’t find out, that’s what.

Since this year’s legislative session began, lawmakers have proposed numerous bills seeking changes to the judicial branch.

This resulted in a progressive escalation of tensions between the two branches of government as the GOP-controlled legislature passed bills designed to reduce the independence of Montana’s highest court.

The cherry on top of the Republicans’ anti-separation-of-powers sundae is HB 325.

This measure—if approved by voters at the ballot box in 2022—would effectively gerrymander the state judiciary by forcing candidates for the state Supreme Court to run in seven pre-carved districts (yes, I know they don’t have the Census data yet that they’d need to make sure these districts have equal population, that’s part of the fun here).

According to DKE’s Stephen Wolf, if those districts had been used in 2020 to elect the state’s Supreme Court justices, GOP candidates would have won a majority of the seven seats despite losing the statewide vote by 7%.

But wait, it gets better! A justice running for reelection doesn’t have to actually live in the district—they’re just stuck running in the district with the number corresponding to the order in which they’re next up for election.

It’s totally arbitrary and very obviously designed to dilute the voting power of Montana’s (few as it is) Democratic-leaning urban centers.

But if you think this is the only place that GOP-controlled state governments are screwing around with the judiciary, I’ve got some bad news for you.

In Tennessee, GOP lawmakers get pretty sore when the state Supreme Court strikes down laws as unconstitutional.

Their solution?

Create a new court (that will conveniently be stacked with GOP appointees)!

A sort of “super court” would be established under legislation moving through the Tennessee statehouse to hear constitutional challenges to state laws.

Tennessee’s new court would initially be staffed by three judges appointed by Republican Gov. Bill Lee. Starting in 2022, the judges would run in the state’s first partisan statewide judicial races.

Currently, Tennessee Supreme Court justices are appointed by the governor and then subject to statewide retention elections every eight years—which means there are still two holdovers the state’s last Democratic governor.

Meanwhile, Texas Republicans are getting nervous about the inroads Democrats are making in judicial elections.

They’ve considered a number of shady options to “remedy” this, and they seem to have settled on one.

A bill that has already cleared the state Senate and is being considered by the House would create a new appellate court to hear a range of appeals, including lawsuits that challenge state laws or government action.

Currently, most cases challenging Texas laws are appealed to the court in Austin, which happens to be a Democratic bastion in the state.

But the new court would be chosen in statewide partisan elections, where Republicans still have a very real leg up.

It’s almost hilarious that, while the national GOP is screaming about Democrats’ proposal to expand the U.S. Supreme Court, state-level counterparts are openly screwing with actual separation of powers and actual court-packing.

And this is nothing new.

Republicans in states have a consistent and extensive history of messing with state judiciaries or other independent institutions as means of revenge for decisions perceived as adverse to the GOP’s interests. A look back at just the past decade provides myriad examples.

First, let’s set the wayback machine to 2011, when Arizona’s Independent Redistricting Commission (IRC), created in 2000 via a voter-initiated ballot measure that removed the drawing of state legislative and congressional district maps from lawmakers’ hands, drew new congressional maps that failed to give sufficient advantage to Republicans. Brewer proceeded to fire the head of the IRC for this affront.

The Arizona Supreme Court found that Brewer had insufficient reason to remove the commission’s chief and reinstated her. The “offending” maps were approved by the IRC and went into effect for the 2012 elections.

But Arizona’s Republicans weren’t done messing with the IRC. If we can’t control it, they decided, let’s get rid of it. So the legislature’s GOP majority sued to have the IRC declared unconstitutional, saying it unlawfully removed power over redistricting from the lawmakers themselves. The U.S. Supreme Court disagreed, and Arizona Republicans were forced to let the IRC remain in existence. Arizona Republicans then tried to get the maps themselves declared unconstitutional, but that didn’t go their way, either.

Yet, years later, Arizona Republicans kept trying to twist the IRC into something they can control. The commission is set now, though, so further shenanigans will keep until after the GOP decides if it likes the map it gets or not.

But courts remain Republicans’ favorite target. In 2015, the Kansas Supreme Court upheld a lower court ruling finding the state’s method of funding public schools both inadequate and unfairly distributed. This upset the Republican-controlled legislature, which responded with a pair of retaliatory laws that created a catch-22 of sorts for state courts. The first law stripped the state Supreme Court of administrative power over lower courts; the second stripped the state’s entire court system of funding if a court struck down any part of the previous law.

(In other words: If you don’t rule exactly the way we demand, we’re going to take away every penny that funds your operations—from the copy machines to the clerks to the judges themselves.)

That first law removing the court’s authority was at least pretty straightforwardly unconstitutional, and the Kansas Supreme Court ruled thusly. But that triggered the law that eliminated the state court system’s financing. This didn’t last too long, though; it’s hard to run for re-election after you’ve destroyed the judicial system and your state’s become a lawless hellscape, after all. A few weeks later, the legislature blinked and passed a bill restoring the courts’ funding.

But Republicans weren’t going to let this perceived affront go without a further fight. Proposals surfaced to broaden the grounds for judicial impeachment, to give the governor and the legislature complete power over judicial selection, and to begin electing judges to state courts. The efforts stalled in 2016, but there’s no reason to think Republicans are giving up. Already this year, they’ve denied the state judicial branch’s request for a budget increase.

By the way, all five of the Kansas Supreme Court justices facing retention elections in 2016 kept their seats on the bench.

Speaking of 2016 elections, that was the year Democrat Roy Cooper ousted Republican Gov. Pat McCrory in North Carolina’s gubernatorial election. The state’s Republican legislators, occupying comfortable, veto-proof supermajorities in both the state House and Senate—obtained through gerrymanders that have since been ruled unconstitutional by the courts—were positively incensed that a Democrat had the temerity to win this race. So the GOP set about removing as much power from the executive branch as they conceivably could.

In December special sessions, with McCrory still in office but content to go out in a blaze of sour grapes, Republican legislators passed measures that fundamentally altered the state’s election oversight boards and forced the governor’s cabinet appointees to submit to state Senate approval. They also slashed the number of gubernatorial appointees from 1,500 to 425.

The North Carolina Supreme Court ended up blocking most of this Republican legislative power grab and restored much of this authority to Cooper shortly thereafter. But then Republicans used their veto-proof majorities to basically pass the same thing again—and again a state court swatted them down.

So, presented with some judicial rulings they didn’t like, Republican lawmakers set about messing with North Carolina’s court system itself. They started by ending public campaign financing, transforming the state’s previously nonpartisan judicial elections into partisan contests, and then they canceled judicial primaries. When three Republican judges on the state’s Court of Appeals hit mandatory retirement age, GOP lawmakers reduced the size of the court from 15 to 12, just to prevent the Democratic governor from appointing replacements.

Republican lawmakers also dislike being watched and investigated by agencies they can’t control. In 2015, the Republican-controlled Wisconsin legislature disbanded the state’s nonpartisan elections and ethics oversight agency, the Government Accountability Board (GAB). The GAB was created by a near-unanimous vote of the legislature back in 2007, and it had been hailed as “a national model for ethics and elections.” But after facing eight years of investigations of possible campaign violations, Republicans decided it was time to go back to the bad old days of partisan oversight.

Almost all of the GAB’s critics were Republicans, and their ire was largely motivated by a GAB investigation into possible (and illegal) coordination between GOP Gov. Scott Walker’s campaign and conservative groups during the 2012 recall election. Democrats lacked the numbers in the legislature to halt the GOP’s bill to dismantle the GAB, and in 2016, the board was officially dissolved and split into a separate ethics commission and an elections oversight commission. Commission members are now selected by legislative leaders or the governor—the very same partisan officeholders the commissioners are supposed to oversee. Critics called the move a deliberate attempt to doom effective enforcement of Wisconsin election laws.”

And let’s not forget the ongoing threat from Pennsylvania Republicans to gerrymander that state’s Supreme Court after it ruled in 2018 ruling that their gerrymandered congressional map violated the state constitution. The GOP responded with defiance, lashing out publicly. They even threatened to evict the offending justices from the bench through impeachment.

And this fight isn’t over! The bill that could have put that constitutional amendment gerrymandering Pennsylvania’s highest court on the ballot this spring is in limbo for the moment, but it’s by no means dead, and if history is any guide, Republicans will try to pass it when they think no one is paying attention.

This is just a small sampling of the most egregious attacks Republicans have leveled at the judiciary and other independent agencies and branches of government, but it’s by no means an exhaustive list (though the nonpartisan Brennan Center has a catalog of plenty more).

The bottom line: The GOP’s contempt for courts and other government branches and agencies they lack power over burns intensely. Progressives must be girded for these ongoing assaults and fight back with even greater passion.



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