In 2013, this letter was published in the Washington Post:
"Benjamin Franklin famously replied to the question of what kind of government had been created by the Constitutional Convention by saying, “A republic, if you can keep it.” Republican Party proposals to tie electoral college votes to the results in already-gerrymandered congressional districts would, if enacted, create a dangerous crisis of legitimacy that could cause us to lose that republic.
"The 2000 presidential election result already placed the legitimacy of the electoral college system on the edge of a cliff, since Al Gore won the popular vote by more than half a million votes. In 2012, under the Republican proposals, Mitt Romney would have been elected president even though Barack Obama won the popular vote by nearly 3.5 million votes. That would have pushed the legitimacy of the electoral college over that cliff.
"A republican form of government cannot survive if it does not have popular legitimacy."
There was a time when the Republican Party recognized that it could go too far in rigging the system to force losing Presidential candidates on the American people. The boomlet described in early 2013 disappeared when it became clear that such an approach would strain to the breaking point the legitimacy of the American electoral system. But recent developments demonstrate that the Republican Party, or at least its leadership, no longer cares about that legitimacy.
In 2020, Pa voters gave Biden a majority of more than 78,000 votes over Trump.
Michigan voters gave Biden a majority of more than 154,000 votes over Trump.
Wisconsin voters gave Biden a plurality of more than 20,000 votes over Trump.
Georgia voters gave Biden a plurality of more than 11,000 votes over Trump.
Arizona voters gave Biden a plurality of more than 10,000 votes over Trump.
In each of these states, gerrymandered state legislatures have created permanent Republican majorities. I say "permanent" because of the failure of the US Supreme Court to adjudicate the unfairness of such partisan gerrymandering. See Rucho v. Common Cause, 139 S.Ct. 2484 (2019).[1]
If the gerrymandered state legislatures in those states (or even just Pennsylvania, Michigan, and Wisconsin) had been able, post-election, to set aside those elections - elections which are mandated by those states’ laws - then Donald Trump would be President. This, even though Biden won a majority of the popular vote nationally by a margin of more than seven million over Trump (twice the margin that Obama won over Romney).
Yet, the US Supreme Court will soon consider a case which could result in a ruling that (gerrymandered) state legislatures may unilaterally set aside the voting results in Presidential elections. Moore v. Harper is a challenge to the ability of the North Carolina Supreme Court to review a state legislature's most recent gerrymandering. The theory pressed by the plaintiffs is the so-called Independent State Legislature theory. If adopted by the Supreme Court, it easily could be used by gerrymandered state legislatures to cancel the popular vote results for the Electoral College and send its own slates of electors to the Electoral College. In other words, a victory for Trump or any other Republican in future presidential elections. See here.
The question now is whether the Trump-dominated Supreme Court will go along with this breaking of American democracy.
[1] “Significance: While state courts, Congress and state legislatures remain free to regulate partisanship in redistricting, claims of excessive partisanship are beyond the capacity of federal courts to resolve.
“Summary: Ending the line of partisan gerrymandering cases that began with Davis v. Bandemer, a majority of justices held that because of the difficulty in ascertaining how much partisanship was too much, the question was too difficult for federal courts to answer—rendering such claims “non-justiciable” in federal courts. The majority opinion noted that this ruling applied only to federal courts, and that Congress, state legislatures and state courts may be better equipped to handle such questions. This ability to regulate partisanship in redistricting extends to ballot measures that circumvent the traditional legislative process.”
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