How Do We End Gerrymandering? By Suing A Deep Blue State

Once again, someone is asking the Supreme Court to end partisan gerrymandering of congressional districts based on a violation of the Equal Protection clause. Specifically, they asked the Court to evaluate whether the 2010 Wisconsin legislature drafted a map of congressional districts that effectively eliminated the voting power of Wisconsin Democratic voters. (This is a great explanation of how politicians use gerrymandering to keep power). There is no question that, at the moment, Republicans win the award for the most gerrymandered congressional districts. Perhaps, given how widespread the problem has become, the Court will finally decide to stop the practice. However, the outlook isn’t great. The Court ruled in 1986 that partisan gerrymandering violates the Equal Protection clause, but could not decide, either in that ruling or again in 2004, how to fix the problem. I think it’s time for a new strategy, and a law student from American University, Steve Shapiro, may have just the one. He has filed a suit arguing that gerrymandering violates the First Amendment, and sued the perfect test case – the heavily Democratic State of Maryland.

Suing a Democratic state could persuade conservative Justices

Maryland is a quiet little state nestled on the eastern seaboard, and most other Americans may only know it for its excellent crab cakes (but seriously, the crab cakes are really good). One of the interesting things about Maryland is that a fluke of history has made it one of the most gerrymandered states in the country. Democrats have held power in both houses of the legislature since 1918.  This is because Maryland was once a loyal, Democratic, segregated state in the Solid South, but since desegregation, it has gone its own way. As the rest of the South responded to Nixon’s Southern Strategy, Maryland became gradually more liberal, and today it is one of the bluest states.

Because it is a Democratic state, Maryland offers an opportunity to present the case against gerrymandering without attacking the Republican Party and its interests. Why does that matter? Four out of the five sitting Supreme Court Justices are dedicated conservatives, and Anthony Kennedy frequently sides with them. Obviously, Supreme Court Justices know that any gerrymandering decision will subsequently be applied to all states, but it doesn’t take a leap of imagination to suppose that a case brought on behalf of Republican voters might be persuasive. Supreme Court Justices are, after all, only human.

The First Amendment might be an easier sell than the Equal Protection clause

For one thing, it may be an easier argument because Anthony Kennedy seems open to it, and this is Anthony Kennedy’s Court. In the last gerrymandering case brought under the Equal Protection clause (arguing that political parties are a class of persons being deprived of equal protection of the laws) Justice Kennedy indicated he might be amenable to a free speech argument. It is no wonder – the Court has been unable to make Equal Protection work. Unlike racial classifications under the Voting Rights Act, classifying people by political party – by what they think – is a hairy prospect. It is hard to figure out when Democrats or Republicans have been discriminated against as a class and when it is appropriate for a court to intervene. Moreover, how is the Court supposed to invent a way for legislatures to re-draw the districts, without becoming overly involved in the political process?

Violations of Free Speech and Free Assembly rights under the First Amendment create a simpler metric and a simpler analysis than Equal Protection. The question is: did the Maryland General Assembly silence Republican voters deliberately? All Marylanders, like all Americans, have the right to freely form political associations and band together to have their political speech heard. If Shapiro can prove that the Maryland General Assembly took voting patterns into account when it re-drew the districts, that forms a pretty strong argument it deliberately infringed on the Free Speech and Free Association rights of Maryland Republicans. If so, the Court does not need to come up with formulas for distribution of voters, it can simply say “no legislature may take voting records into account when drawing congressional districts.”

A First Amendment argument may not solve everything, but it’s a start

You may be wondering whether simply ending the use of voter data in redistricting will fix the gerrymandering problem. It’s possible that it will not – politicians are known to be awfully tricksy, and they may find some sort of proxy for voting records that allows them to estimate voter behavior. However, that may be harder over time. People move around, demographics change, and a ban on using voter data may gradually even out congressional districts, even if it does not automatically bring an end to gerrymandering. We may never get a magic solution from the Court. The truth is, this is a problem we are supposed to be addressing through advocacy to our elected officials. The Court is in a Catch-22: it is certainly supposed to protect us from attempts by those elected officials to silence our votes and voices, but it is also not supposed to usurp the political process. Mr. Shapiro et. al. has given the Court a chance at a simpler rule against gerrymandering. Let’s hope the Court takes it.

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The [Free Press] is not the Enemy of the American People, but it still might not be able to stop Trump.

Yesterday afternoon, Donald Trump tweeted “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” This is a turning point in Trump’s criticism of the Press. It is no longer just unfair to him, it is our collective enemy. We knew it was coming.  All the signs were there. Throughout the campaign Trump claimed he was running against a “rigged press.”  His supporters adopted a powerful and despised German term, the “Lügenpresse” or lying press, to describe the news outlets that brought down Richard Nixon.  Since his inauguration, he has called those same outlets “Fake News.” Yet still, even if it isn’t surprising, it is still shocking that Donald Trump, as an American President, is running Play #4 in the Dictator’s Playbook, and acting to discredit the Free Press as an institution of our democracy. Here’s what we can expect, the good, the bad, and the ugly.

The Good

The American Press is pretty resilient, and at its best it has been heroic. Recently, our major news outlets have been running down every lead they can to hold Washington accountable, and they have been careful to substantiate each new bombshell story.  But for the Press to be most effective, reporters aren’t the only people who have to demonstrate heroism.  The great thing about our current situation is that we have an ample supply of the secret ingredient to Press effectiveness – whistleblowers .  From the unexpectedly bold National Park Rangers to the many members of the intelligence community leaking to the Press, the material is there for brave reporters and leakers to expose the Trump Administration.

People on the inside of a corrupt and dangerous administration are the ones who have to expose it, and that is happening. The reams of information seeping out of the executive branch have provoked comparisons to Nixon White House during Watergate.  It’s a great comparison, and it’s important to remember that Woodward and Bernstein could not have become Woodward and Bernstein without Deep Throat (Mark Felt) and their many other informants.    The New York Times and the Washington Post, in particular, have been delivering the hard, unbiased, factual reporting they delivered during the Pentagon Papers and Watergate stories.  They are rising to the occasion.  The problem is, 20 years of the scandal-ridden, unfocused 24 hour news cycle started discrediting the press corps before Donald Trump ever put on a red cap.

The Bad

On the day Trump took office, the credibility and effectiveness of the Press was already in pretty bad shape. This problem started before “fake news.” In fact, I would argue that fake news only took hold because the public had already lost faith in the Press. This loss of faith is dangerous, as any possible impeachment scenario will likely rely on evidence discovered by the Press. Two primary factors have left us in a position where the Press is one of two institutions that can hold the Republic together, but it may lack the credibility and effectiveness to do so.The first is the 24 hour scandal cycle, which dulls the public’s ability to separate a real threat from a minor political misstep and the second is the media’s alienation of individuals on the Left, Right, and Center of the ideological spectrum.

The first problem is that the salacious details of Bill Clinton’s sex life started a new Press paradigm of  seeking out and manufacturing scandal.  Gotta keep those ratings up! We impeached a President because he perjured himself over a blowjob.  The Press reported George W.Bush’s use of cocaine as if it were a major scandal.  Howard Dean whooping at a rally brought down his campaign.  To some extent, during Bush’s second term, the scandal manufacturing slowed down because actual scandals about the invasion of Iraq and Hurricane Katrina emerged, but the public as a whole paid less attention to the severity of those problems because every “scandal” was reported with the same seriousness and severity.  This got even worse under Obama.  The IRS “scandal” went on for months and the Benghazi reporting went on for years.  The public becomes numb to endless outrage.

The second problem is that since the 90s, almost everyone on the ideological spectrum has lost faith in the Press.  In the scandal industrial complex the news has become, people with different ideological beliefs want to pick the scandals they hear about.  The Right hasn’t trusted mainstream outlets since the Drudge Report broke the story of Monica Lewinsky’s blue dress. During the Bush Administration, the Left began to seek out media that would report on issues like Bush’s attacks on gay rights and abortion.  Finally, the center lost faith in the Press when, during the run up to the Iraq war and invasion, it traded its integrity for government approved access, and failed to expose the Bush Administration’s use of faulty evidence to lead the American People into a costly war, the consequences of which are still haunting us.  The Press put itself in its present position. As Radiohead says, you do it to yourself.

The Ugly

If the Press is or becomes truly discredited, and Trump really wants to seize power, he will likely act to limit its ability to disseminate information.  For some would-be Dictators this takes the form of legally rescinding the freedom of the Press, as Hitler did in the Reichstag Fire Decree of February 1933.  Others restrict content by opening a state media outlet, as Vladimir Putin did with RT, or purchasing hostile media while requiring transmission of government statements, as Nicolás Maduro has done in Venezuela.  Often, emerging autocrats muzzle the Press by simply murdering journalists, as Putin has unquestionably done. Knowing that Trump admires and consistently defends Putin casts Putin’s tactics vis-à-vis the Press in an alarming light. It is not inconceivable that Trump sees Putin’s tactics as a model. However, the Ugly hasn’t happened yet, and until it does, we have to read, support, and share reliable, fact based articles from reputable sources like the New York Times, the Washington Post, the Wall Street Journal, and the Economist. In a very real way, the ability of the Press to hold Trump accountable, as it did Nixon, depends on each of us, and our willingness to believe that it can.

 

Free Speech and Civil Disobedience, or how we should stop worrying and learn to love the fire hose

It’s time to talk about the purpose of peaceful protest in a democracy.  I have noticed that on social media and in some articles like this one, advocates of resistance to the Trump Administration are failing to distinguish between two types of protest: lawful protest, and civil disobedience.  The difference is not semantic; they are distinct tools with distinct impacts. The purpose of protest in democracy is both to convince those in power that there is overwhelming support for a cause, and to persuade one’s fellow citizens that the cause is just and they should support it. To achieve that purpose, a resistance, like the military, needs individual campaigns, each with an objective, a strategy, and tactical resources. Among our most powerful tactical resources are lawful protest and civil disobedience, and we need to employ them effectively.

The Difference between Lawful Protest and Civil Disobedience

Lawful protest is planned in coordination with the local government, and is intended to obey local laws and ordinances. The Supreme Court has consistently allowed restrictions on speech based on the time, place, and manner of the speech, including restrictions on blocking traffic and sidewalks, harassment, and loud noises. This means that although local government cannot pass laws affecting the content of your speech, they can pass laws requiring permits for large gatherings that will interfere with traffic and the business of other citizens.  In contrast, Civil Disobedience involves deliberately disobeying a law, usually peacefully, in order to protest government action or injustice.

How is Lawful Protest most Effective?

Two great examples of permitted lawful protest are the March on Washington for Jobs and Freedom, and the Women’s March on Washington.  The first obviously had a significant historical impact and is talked about to this day; I suspect the impact of the second will fade with time, no matter how many people participated.  There are two primary differences between the two: 1) the March on Washington had a specific goal – to obtain a civil rights act from Congress and to help oppressed African Americans get jobs, and 2) it had a very disciplined and controlled message.

The March on Washington stuck to its goals and its message.  It talked about jobs and civil rights.  Its leaders forced John Lewis to edit out “militant” sentences in his speech.  It opened the march to all allies who supported its specific objectives. Indeed, Malcolm X criticized it in his Message to the Grassroots for refusing to demonstrate black anger and for allowing white people to participate (female speakers were also excluded, probably for less lofty reasons).   Then, when it concluded, the leaders went directly to the White House to speak to the politicians to whom they had just proven popular support for their positions.

In contrast, the Women’s march had no concrete objective, and the opposite of a controlled and focused message.  Instead of communicating a purpose, it focused on ensuring every issue affecting every woman in America was heard.  Consequently, although politicians did participate, they were not pressed to pursue any specific policy to achieve the goals of the assembled people.  They were simply presented with a policy platform pretty much lifted off the Democratic Party’s books.  The Women’s March did a great job of irritating the hell out of Donald Trump, and that’s a great start, but future protests need to aim to achieve a concrete result. For a template, we can look to the original March.

How is Civil Disobedience most Effective?

Civil Disobedience is most effective when the disobedient citizen peacefully presents himself  to suffer a disproportionate response by those in power. People don’t like watching other people get abused, and the public is usually, if not always, able to identify a disproportionate response.  Some Americans may have initially dismissed the Standing Rock Sioux and their supporters as trespassers, but people took notice when the police used water hoses in 28 degree weather. Obviously, this tactic was also used extensively and to great effect by the Civil Rights Movement of the 1960s, and was a huge agent for convincing middle America that it, through the government, must act.  These images are part of our national consciousness now: dogs and fire hoses being turned on unresisting people walking down a street in Birmingham;  marchers being beaten for walking across the Edmund Pettus bridge in Selma; Rosa Parks refusing to sit at the back of the bus.  That kind of suffering makes a lasting impact.

Unlike legal protest, civil disobedience often requires sacrifice. You have to put your personal needs aside in favor of the greater goal. It requires time in jail.  It requires harassment and sometimes physical assault.  And to be most effective, the protester cannot resist. It is probably the most powerful tool available to convince our fellow citizens that the government is wrong, and we are right, because it makes them see government through our eyes.  You can watch a nonresistance training video from the Student Nonviolent Coordinating Committee (SNCC) here.

How to Protest in Trump’s America?

There are going to be a lot of causes we can support with lawful protest and civil disobedience in the coming months and years.  Going forward, we need to focus one protest campaign against each unconstitutional or unlawful overreach by the Trump Administration, because if we focus each campaign on a specific violation of law, we can mobilize across the ideological spectrum.  We will not succeed if we impose an ideological test on resistance. If constitutional conservatives agree that there should not be a religious test on Muslim immigration, work with them.  If a pro-life feminist group believes that access to contraception is essential to the equal protection of America’s women, work with them.  And if Donald Trump orders the executive branch to disobey a federal court order, work with every single American – evangelical christian or radical socialist – who is afraid of losing a functional branch of government and put a human barrier between Trump and his objective. Like the protesters and lawyers in airports across the country have sought to do in response to the Muslim ban. Massive protests and acts of civil disobedience are powerful tactical tools, and in this era of perpetual outrage, the fire hose is our new best friend.

Calling People Nazis: walk softly and carry a big example

I think at this point everyone is familiar with Godwin’s law, or the idea that “as an online discussion grows longer, the probability of a comparison involving Hitler approaches.” Lots of people love comparing their opposition to Hitler. We certainly saw plenty of Obama posters with tiny mustaches during the rise of the Tea Party, and the Left definitely called George W. Bush a fascist on more than one occasion. The problem is, the comparison is now incredibly commonplace, and has therefore lost a lot of its potential impact.  Up until now, when people called each other Nazis, what they really meant was “your guy is the most evil guy to run a country ever.”Now that we have an Administration that is actually acting like Nazis, everyone who thinks Trump is a genuine threat to our Republic needs to be selective about comparisons and use real examples.

Obviously I do not personally have a problem with calling, for instance, Steve Bannon a Nazi.  I am writing a Dictator’s Playbook almost exclusively based on Nazi tactics because I think the Trump Administration has been running some of those plays.  However, I think it’s important to explain why we are making these comparisons.  When people hear “Nazi” or “Hitler” they think of the murder of 13 million people.  I don’t think anyone is saying Trump is going to murder 13 million people (although it’s worth noting that the Final Solution was actually a “solution” to a failed deportation program – chew on that for a second).  The important comparison here is to the Nazi Party’s tactics from 1932-1935.  That is when they destroyed a constitutional republic.  Even if Hitler had lost power in ’34 or ’35, Germans still would have had to go back to the drawing board and create a new system of government.  That is the concern with the Trump Administration.  That it will so undermine our constitutional regime that we will lose the institutions we have valued for over 200 years.

So, when you call someone a Nazi, talk about how they intentionally scapegoated marginalized groups, undermined their political opposition, played the victim, discredited the press, co-opted or removed judges, created an extrajudicial  prison system to undermine courts and lawyers, used violence to intimidate political opponents and keep the people afraid, and lied to justify administration objectives (all of which are soon to be added to the Dictator’s Playbook).  Explain that the significance of the Nazis isn’t just the horror they inflicted on the Jews or the rest of Europe; it’s that they produced a template for how to turn a literate, informed, democratic society into the enablers and supporters of a deranged dictatorship.  Fake news isn’t new people – between 1933 and 1944 Germany went from 4,700 newspapers to 1,100 newspapers.  The Nazis shut down opposition papers, and everyone else stopped talking about politics or fell in line.  So walk softly unless you have a big example, because we can’t let that happen to us.