Professor Rick Hasen of the University of California, Irvine School of Law is a nationally recognized Supreme Court watcher and elections law expert. Yesterday on his highly-trafficked Election Law Blog, Hasen posted a fascinating 13-point take of Monday morning’s U.S. Supreme Court decision striking down North Carolina’s hyper-gerrymandered 2011 congressional district map. After sifting through Justice Elena Kagan’s lengthy opinion and even some important footnotes, Hasen said this:
“9. Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts.”
After noting the wondrous fact that Justice Clarence Thomas signed on to Kagan’s opinion and that more gerrymandering cases from North Carolina are on their way up through the federal courts, Hasen added this as his final point:
And this is from Anita Earls, Executive Director of the Southern Coalition for Social Justice and one of the state’s most important voting rights advocates:
“We already have new Congressional Districts in North Carolina. What I find most significant is that the Legislature made the same legal mistake and used race the same way in drawing the state’s House and Senate districts. This opinion, with Justice Thomas joining the majority, must mean those districts are also unconstitutional,”
Of course, as momentous as yesterday’s ruling appears to be, it’s a long road from the present situation to one in which fair and constitutional electoral maps actually prevail. As the North Carolina GOP has made clear in the aftermath of last week’s Court decision not to revive the state’s “monster” voter suppression law, it has no intention of admitting the error of its ways.
To the contrary, Republican lawmakers (with the aid of their cheerleaders in the Art Pope-funded think tanks) fully intend to pass another suppression law before the 2017 legislative session adjourns.
One can fully expect similar foot-dragging when it comes to electoral maps. Senator Phil Berger – a one-time advocate for nonpartisan redistricting reform that would have ended partisan gerrymandering before he abandoned that position upon becoming the Senate boss – now gives every indication that he will cling to power by any and all means available for as long as humanly possible.
And yet, even before yesterday’s and last week’s court rulings, there was distinct and growing feeling that change was afoot in Trump’s America and Berger’s North Carolina. Here are three indicators:
Public opinion – One of the nation’s most respected and accurate pollsters is Public Policy Polling Director Tom Jensen. Here is some of what he had to say in his most recent (May 16) national polling release:
“PPP’s new national poll finds that Republicans are facing significant backlash over the health care bill that’s having the effect of firing up Democrats and putting them in position to make major gains in the House next year.
Democrats now have a 49-38 lead overall on the generic Congressional ballot, up from 47-41 a month ago. Even more notable though is that among voters who say they’re ‘very excited’ to turn out in the 2018 election, the Democratic lead balloons to 27 points at 61-34….
The American Health Care Act has been a complete disaster politically for Republicans…. Voters say by a 20 point margin that they’re less likely to vote for a member of Congress who supported the AHCA- just 27% say they’re more likely to vote for a pro-AHCA candidate, compared to 47% who are less likely to vote for one.”
Meanwhile, Jensen finds Donald Trump’s numbers to be nosediving:
“Only 40% of voters approve of the job Trump is doing to 54% who disapprove. For the first time we find more voters (48%) in support of impeaching Trump than there are (41%) opposed to the idea. Only 43% of voters think Trump is actually going to end up serving his full term as President, while 45% think he won’t, and 12% aren’t sure one way or the other.”
It’s hard to see how any of this could be helping North Carolina conservatives – especially given that state lawmakers continue to attract a drumbeat of derision from editorialists across the state on an almost daily basis. Of particular note on this front has been the recent wave of scathing takedowns directed at the North Carolina Senate over its 3:00 a.m. budget temper tantrum and its outrageous decision to slash food assistance to 133,000 struggling people (including 51,000 children) at the cost savings of exactly $0.00. As Raleigh’s News & Observer editorialized this past weekend:
“House Republicans will understand the cruelty and the ridiculousness of this provision, we hope, and strike it from the final version of the budget. To not do so is riskier than they may think: It is actions such as this that can galvanize opponents. Remember HB2?”
A new wave of progressive activism – America and North Carolina may both still be as badly divided as they were last November, but there’s one important difference in May of 2017: progressives are vastly more active and energized than before. Across the country – even in rural and ultra-conservative areas – progressives have been spurred to action by the disastrous reality of the Trump presidency.
Whether it’s the 100,000 people who have signed up for “Swing Left” updates, the skyrocketing ratings for MSNBC, the record sums that progressive advocacy groups and politicians are raising or the dizzying array of “resistance” groups that have sprung up in every corner of the country like mushrooms after a spring rain, there is a palpable sense of unprecedented energy. Finally, it seems to have dawned on caring and thinking people that they need not convert every right-wing relative or Trumpist neighbor in order to turn the political tide. If progressives merely rouse a lot of like-minded people to action, there will be nothing the Right can do to resist the tide.
Trump’s troubles – At the epicenter of the national progressive earthquake is, of course, Donald Trump. Last week’s appointment of special counsel Robert Mueller to examine Trump’s Russian ties and possible criminal acts brought home powerfully that events have entered a new phase. Suddenly, talk of removing Trump from power seems no longer to be the mere fantasy of liberal conspiracy theorists.
Columnist Charles Blow of the New York Times put it this way in a column yesterday:
“There is a sense that blood is in the water, that Trump’s erratic, self-destructive behavior, aversion to honesty and authoritarian desire for absolute control may in some way, at some point, lead to his undoing and that the pace of that undoing is quickening.”
Soon after the column appeared, a source close to Trump’s former National Security Advisor Michael Flynn revealed that he would decline to answer questions from Congress on the grounds of avoiding self-incrimination. That’s not good news for Trump.
In other words…
Though profoundly sobering in most respects, the news of recent weeks (as well as the developments “on the ground”) are encouraging for the prospects of progressives and their long-term agenda. A combination of judicial setbacks, repeated policy gaffes and a new “can and must do” spirit in the resistance seems to have brought about a rapid fade in the nation’s brief dalliance with Trumpism.
Though hardly a time for overconfidence, now is a key moment for progressives to redouble their efforts and press their advantage.