In Gill v. Whitford, democrats are challenging Wisconsin’s congressional district map, claiming that the Republican majority redrew the lines in an unconstitutional way back in 2010. The Constitution permits states to determine legislative districts, thus it is a legislative function. However, since Democrats haven’t won what they consider enough seats in Congress (i.e., all of them), they reason that there must be something wrong. It would be easy to say that what’s wrong is simply their understanding of the Constitution, but I believe there is something much more sinister going on.
In order to challenge the current district map, they have concocted something called an “efficiency index,” which Chief Justice Roberts correctly called “sociological gobbledygook” during oral arguments. The index purports to calculate the number of citizens of either party who wind up represented by a legislator of the opposite party, and Democrats are claiming that, since this calculation shows that more democrats live in districts that elected republicans than vice versa, the courts should usurp the legislative power of redistricting to create a district map that is more in Democrats’ favor.
If that were all, it would be bad enough. We have seen repeatedly over the years that it is easy to find a federal judge willing to reach beyond the Constitutional judicial role and claim jurisdiction over just about any issue, particularly when it is a matter of “fairness.” Only the Supreme Court can decide once and for all that this must remain a legislative function, but Democrats are hoping that the Court will decide on some kind of formula to control redistricting. Let’s set aside the impossibility of creating such a formula that would account for the possible future movement of citizens such that what is a Republican district today may, in less than 10 years, become a majority-Democrat district (If you don’t think this is possible, just look at New Hampshire). I believe that this entire effort is a Trojan Horse to eliminate the Electoral College.
Democrats have long hated the Electoral College, but that hate has grown to the heat of several white-hot stars since Donald Trump beat Hillary Clinton (I love writing that) last November, even while losing the popular vote. They have hated the Electoral College going back at least to the 2000 victory of George W. Bush, and have been pursuing the National Popular Vote project for many years. This project is an attempt to convince enough states to constitute a majority of the Electoral College to assign their electoral votes to the winner of the national popular vote. This is possible since the Constitution allows each state to “appoint, in such Manner as the Legislature thereof may direct” its Electoral College delegates. But the fact that this is possible doesn’t mean that it’s a good idea.
The NPVP is trying to convince enough states to appoint electors who will vote for the winner of the national popular vote. So much for Democrats bravely telling Electors to “vote their conscience” and select Mrs. Clinton. Now they want to remove any discretion from Electors and force them to vote for a particular candidate.
But here’s where the Wisconsin case comes in. If the Supreme Court decides that the “efficiency index” or some other bogus formula should be used to make representation more “fair,” then Democrats and the media (but I repeat myself) will claim that the Supreme Court has ruled that elections that fail to meet this “test” are unconstitutional. Therefore, they will claim that, since the Electoral College can lead to a situation where the “wrong” candidate is elected president, the Electoral College itself, apportioning Electors on a winner-take-all basis as they have since the beginning of our republic, is by this standard unconstitutional. What better way to try and convince states to adopt the National Popular Vote? Let us hope that the Supreme Court recognizes this case for the long-game con that it is and rejects the plaintiff’s case.