Elie Mystal: "It Could Have Been Worse" Is the Wrong Response to the Midterms

[In It to Win It]

The Nation

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We can’t act like gerrymandering like this is inevitable or intractable. We are in this situation because of decisions made by aggressive Republicans (and sometimes self-defeating Democrats) to allow democracy to be decided in a map room instead of a polling station. The Republican gains produced this week have their origins in a series of antidemocratic decisions, and until that changes, until Democrats work harder to fight those kinds of decisions, Republicans will come into every election with an unfair advantage.

The [...] culprit is mainstream-media darling and chief justice of the Supreme Court John Roberts. While inexplicably viewed as a nonpartisan figure, Roberts has used his influence to deliver victories in two cases critical to promoting the Republicans’ long term electoral desires. The first was in 2013, when he gutted the Voting Rights Act in Shelby County v. Holder. The second was in 2019, when he allowed unfettered political gerrymandering without federal court oversight in Rucho v. Common Cause. The Rucho case ruled gerrymanders “nonjusticiable,” which means that as long as legislatures claim they drew their maps for purely political reasons, those maps cannot be challenged in federal court for constitutional violations (they can still be challenged in state court, but that doesn’t necessarily help under all state Constitutions). It set the stage for red states to aggressively redraw their maps, unconstitutional disenfranchisement of voters be damned.

And red states did just that, especially Florida.

The DeSantis gerrymander was challenged in court—but it was state court because of the Rucho decision. Since conservatives control the Florida state supreme court, they handed DeSantis and the Republican party a victory in the redistricting case.

Conservatives also control the highest state court in New York, which is another state that produced significant Republican gains in the House. For that, we have to thank former New York Governor Andrew Cuomo. As governor, Cuomo appointed two “former” Republicans and two conservative “Democrats” to the state court of appeals (the highest court in New York). Those four tend to vote as a bloc.

The GOP needed to net just five seats to flip control of the House, and seven were nearly handed to them by New York and Florida alone—because one court stepped in to force a pro-Republican gerrymander and another court refused to step in and stop one.

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