A Trojan Horse at the Supreme Court

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A Trojan Horse at the Supreme Court

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.

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.