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A packed court would neuter judicial independence and strengthen the president
Oct 28 2020
Strand is president of the Congressional Institute, a nonprofit that seeks to help members of Congress better serve their constituents and their constituents better understand Congress.
<p>Congressional observers will remember Speaker Nancy Pelosi's infamous remark when the fate of the Obamacare bill was on the line a decade ago: The House needed to "pass the bill so that you can find out what's in it." </p>
<p>Now former Vice President Joe Biden's refusal to tell the nation his views on court-packing, unless he wins the presidency, is a reminder of those poorly chosen words. </p>
<p>Court-packing is adding seats to the Supreme Court or other benches, not replacing an open seat. A court-packing scheme would be a massive shift in power from the judiciary to the executive branch, one that eliminates one of the most important safeguards built into our Constitution. Over several decades, Congress has steadily ceded power to the president by ignoring its oversight mandate, not making tough budget decisions, handing over spending prerogatives and allowing administrations of both parties to substitute regulations for legislative action.</p>
<p>Court-packing would be a fundamental shift of judicial independence that leads down a very dangerous road to excessive executive power — because it would mean presidents could add politically sympathetic members until the Supreme Court is little more than a rubber stamp of the personal partisan policy preferences of the president. </p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>And if a future president acquires the bulk of the powers the Constitution gave not only Congress but also the Supreme Court, such a dangerous amount of concentrated power would undermine the constitutional system of checks and balances.</p>
<p>In the fall of 2013, when Democrats were the Senate majority and eliminated the effective 60-vote threshold for almost all nominations, Mitch McConnell was the Republican minority leader warning the other side "you may regret this a lot sooner than you think." This week, of course, it was the GOP leveraging its majority power to seat Amy Coney Barrett on the high court just days before the election — and the minority Democrats crying foul and warning the other side it will rue the day.</p>
<p>But confirming judges to existing open seats is not court-packing. Court-packing means creating new judicial positions and filling them with judges believed to be on "your" side. This is what threatens the delicate balance between our three branches. Consider this: A federal court rules an executive order is unlawful, and the president gets a Congress run by his party to add three seats to the Supreme Court — so he can name justices he can count on to overturn that original ruling. That is court-packing. And it is dangerous to create a rubber stamp on one party's rule in Washington. </p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Every campaign season, the parties and outside groups square off for what they agree will be The Most Important Election Ever. That's led to voter fatigue, which is compounded by the media's shiny-object coverage that leaves people lurching from one story to the next. A recent report by my organization <a href="https://www.congressionalinstitute.org/wp-content/uploads/2020/09/americas_views_of_public_policy_proposals_and_goals.pdf" rel="noopener noreferrer" target="_blank">concluded</a> that independent voters are weary of political rhetoric. They want clear plans, clear ideas and clear approaches to solving the very big challenges we're facing. </p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The Constitution establishes a government that makes laws to protect the entire community, without infringing on the rights of individuals. As George Washington wrote in his letter transmitting the completed Constitution to Congress: "Individuals entering into society must give up a share of liberty to preserve the rest. ... It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which must be reserved." </p>
<p>This is the role of the Supreme Court, which the Framers established as an independent protector of individual rights against the legislative will of the majority, or the arbitrary use of power by the executive. A Supreme Court subjected to court-packing would surrender its independence and be judicially neutered. </p>
<p>Beyond that lies the real threat of the partisan minority's voice in governing getting totally silenced — if the ability to filibuster legislation gets suddenly neutralized in the Senate next year, the way judicial filibusters were made obsolete seven years ago. </p>
<p>That would be terrible for a country so closely split between the major parties as we have been for more than two decades. <br></p><p>Such an arrangement, if backed up by a newly packed Supreme Court, would allow the political majority to weaken other safeguards, such as control of redistricting and the admission of new states, that would further solidify its own control over the government. Citizens objecting to unconstitutional actions by the executive would be without recourse, because appeals to the Supreme Court would be futile. </p>
<p>Court-packing would be a massive gain for the concentration of presidential power and allow a dangerous amount of control by one party. It threatens to replace our two-party government, operating under a system of checks and balances, with an increasingly authoritarian executive backed up by a dominant majority with no meaningful opposition to act as a brake on his power. </p>
<p>Even the most partisan Democrats should be concerned about eliminating the independence of the judiciary. While they could bend the court into a willing participant in passing the most radical aspects of their legislative agenda, they do so at the risk of eliminating the essential safeguard to their own constitutional rights. History is replete with examples of power grabs that have gone bad — and there are very few examples of the rapid and excessive concentration of power that have turned out well.</p>
<p>Packing the court is a serious constitutional issue, demanding serious answers from the Democratic presidential challenger before it's too late. We cannot accept the notion that we need to wait for it to happen to see what it means. </p>
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Amendment 1 would establish a bipartisan redistricting commission in Virginia.
Virginians: Don't let the perfect be the enemy of the good
Oct 27 2020
Rudensky and Li are attorneys in the Democracy Program of the Brennan Center for Justice, a progressive think tank at New York University Law School
<p>Voters in Virginia have a chance to create the first redistricting commission in the South a week from now.<br></p><p>To be sure, more work will need to be done to make sure the measure on the ballot, Amendment 1, lives up to its full potential. But its approval would be a historic step forward for fair maps in a state plagued by a history of discriminatory maps.</p><p>Currently, congressional and legislative district boundaries for Virginia are drawn through the ordinary legislative process — meaning new maps must be approved by both halves of the General Assembly before being sent to the governor for signature or veto. In the past, this process has opened the door wide to <a data-linked-post="2636688309" href="https://thefulcrum.us/gerrymandering" target="_blank">gerrymandering</a>, by giving a blank check to any political party that happens to control both houses of the Legislature and the governor's mansion when redistricting happens after the first election of each new decade. </p><p>In 2011, for example, Republicans used control of the process to push through a racially gerrymandered congressional map that diluted the power of the state's Black communities and was later struck down by courts.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Amendment 1 would improve the process by transferring map-drawing responsibility to a 16-member bipartisan commission consisting of eight lawmakers and eight citizens. If its maps are approved by a bipartisan supermajority, they would then go to the statehouse in Richmond for approval. Should the commission fail to complete maps with such broad support, the Virginia Supreme Court would step in to draw the lines. </p><p>And importantly, Amendment 1 wouldn't operate in isolation. A new state law has established map-drawing rules aimed at keeping communities together and curbing both racial and partisan gerrymandering — abuses that have long plagued Virginia. Other guardrail measures, such as guidelines for selecting commissioners and rules for the state's high court to follow in case of a deadlock, could also be established next year should Amendment 1 win approval now. </p><p>In tandem with the right guiding legislation, Amendment 1 would be an important improvement. Instead of a single party controlling the mapmaking, districts would be set either through bipartisan compromise or by the courts. In either case, as our research has found, the boundaries will almost certainly be much fairer. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Bipartisan commissions and courts may not produce maps as good as those of independent commissions. But, on the whole, they do not produce racially or politically gerrymandered ones, either.</p><p>Despite the better process promised by Amendment 1, however, some reformers are critical. They say the ballot measure doesn't go far enough in taking lawmakers out of the picture. This desire for a fully independent panel is understandable. But it is worth remembering that the alternative to adopting the proposal on the ballot in November is neither independent nor stronger reform. It is the status quo, driven by legislators, meaning the long road to redistricting reform would need to start anew. </p><p>This matters because — unlike California, Michigan and other states that have adopted more robust reforms — Virginia does not have a citizen-led process for putting measures on the ballot while sidestepping the Legislature. Any proposal for more independent redistricting reform would have to be approved in Richmond — not just once, but in two successive legislative sessions, before going to the voters for approval. Put simply, there is no assurance that today's pro-reform legislative majority will be there in future. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Moreover, legislators across the country have proven very reluctant to cede power to a robust and fully independent commission. Indeed, both last year and this year, Democrats and Republicans in the Virginia General Assembly rejected proposals that would have produced greater independence in the redistricting process.</p><p>In contrast, adopting Amendment 1 would help change the political landscape in ways favorable to future reform efforts. It would establish a new status quo, where redistricting outside the statehouse is normalized and an unchecked process driven by lawmakers is no longer possible.</p><p>This is a much more favorable starting point for establishing fully independent redistricting, because legislators would not be protecting a status quo that gives them a monopoly on map-drawing. </p><p>Undeniably, Amendment 1 can be built upon and improved. But starting from midfield is a stronger position than starting from your own one-yard line. Reformers should embrace adoption of this ballot measure as an important and, perhaps, indispensable win in the long fight for independent redistricting.</p>
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Voting
True
The Fahey Q&A with two Florida teens eager to someday vote in open primaries
Oct 26 2020
Since organizing the Voters Not Politicians 2018 ballot initiative that put citizens in charge of drawing Michigan's legislative maps, Fahey has been founding executive director of The People, which is forming statewide networks to promote government accountability. She interviews a colleague in the world of democracy reform each month for our Opinion section.
<p>Following a long day of remote learning, two high school students — 17-year old Elena Ashburn of Broward and 16-year-old Dariel Cruz Rodriguez of Orlando — shared their experiences as founders of <a href="https://studentsforopenprimaries.carrd.co/" target="_blank">Students for Open Primaries</a>. The group is campaigning for adoption of a ballot measure that could remake politics in the most populous purple state — by opening Florida's legislative and other state primaries to all voters, regardless of party, and advancing the top two vote-getters, also regardless of party, to the general election. Our conversation has been edited for clarity and brevity.<br></p>
<p><strong>Fahey: </strong>How did you become involved in the open primary movement?</p>
<p><strong>Ashburn: </strong>We both learned about <a data-linked-post="2638674228" href="https://thefulcrum.us/open-primaries" target="_blank">Open Primaries</a>, the group at the forefront of the campaign, through <a data-linked-post="2646164832" href="https://thefulcrum.us/civics-unplugged" target="_blank">Civics Unplugged</a>, which empowers Gen Z leaders with the tools needed to advance democracy.</p>
<p><strong>Cruz Rodriguez: </strong>We're a small group of volunteers. We've been calling and texting newly registered voters under 22. Other organizations have solicited these people to register and we're following up by saying, "Did you know independents can't vote?"</p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p><strong>Ashburn: </strong>We're students and we want to get the word out to other students because Gen Zers and millennials are becoming increasingly less dependent on parties. <a href="https://www.pewresearch.org/politics/2018/03/20/1-trends-in-party-affiliation-among-demographic-groups/" rel="noopener noreferrer" target="_blank">A recent poll</a> showed 44 percent of millennials nationwide are not registered Democrats or Republicans. So a huge voting bloc is being shut out of primaries in closed states like ours.</p>
<p><strong>Fahey: </strong>Do you identify as independents? </p>
<p><strong>Cruz Rodriguez: </strong>Yes, we've both pre-registered as NPAs, or No Party Affiliates, meaning we'll automatically be placed into the rolls when we turn 18.</p>
<p><strong>Ashburn: </strong>We were like, "We've been fighting for the last few weeks for open primaries, but we're not even registered." So we got on a Zoom call and preregistered together.</p>
<p><strong>Fahey: </strong>Why are you passionate about open primaries?</p>
<p><strong>Ashburn: </strong>I was drawn to this idea because I'm not in love with either of the two major parties. I'd rather hold onto my values and be without a party than compromise my values by registering with one.</p>
<p><strong>Cruz Rodriguez: </strong>A lot of people from my school were telling me to register, but independents simply can't vote in primaries. It's more productive to change the system to let all voters vote than to get more people into one of the major parties.</p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p><strong>Fahey: </strong>You need 60 percent of the vote to win. What's your strategy? </p>
<p><strong>Cruz Rodriguez: </strong>Independents are already on board, so we're targeting mainly Democrats and Republicans. The two parties are sending out lots of misleading information and we're trying to combat that with correct information.</p>
<p><strong>Ashburn: </strong>We're also trying to show the wide support we've got. We've been endorsed by almost every major newspaper in Florida, <a data-linked-post="2648207412" href="https://thefulcrum.us/open-primary-2648207412" target="_blank">people like Magic Johnson</a> and reform groups such as Independent Voting.</p>
<p><strong>Fahey: </strong>Have you met each other in person? If not, what has it been like to work together virtually?</p>
<p><strong>Ashburn: </strong>We are super close friends but we've never met in person. It's really weird. With the coronavirus our whole campaign has been online. It's not a major hindrance to do most of our work this way.</p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p><strong>Cruz Rodriguez: </strong>We will be featured in "<a href="https://simastudios.org/fiscal-sponsorship/the-young-vote/" rel="noopener noreferrer" target="_blank">The Young Vote</a>," a documentary on Gen Zers in electoral politics. We have this grand plan that, for the post-election results, we'll do an in-person interview together.</p>
<p><strong>Fahey: </strong>What is the role of independents in today's political system?</p>
<p><strong>Cruz Rodriguez: </strong>We are often a moderating force as the main parties become increasingly more radicalized. Finding common ground is the only way this country can move forward, and independents are the bridge.</p>
<p><strong>Ashburn: </strong>And we will continue to play a crucial role as more and more young people identify as independent.</p>
<p><strong>Fahey: </strong>What's the role of young people in our politics?</p>
<p><strong>Ashburn: </strong>We're going to change the world! That's a nonnegotiable statement. From March for Our Lives to Black Lives Matter, this year the world has seen that Gen-Zers are going to better our democracy. We've all grown up in this very polarized, very partisan atmosphere, and honestly we're sick of it. We know we need to work together to use our power and speak up for what we believe in.</p>
<p><strong>Cruz Rodriguez: </strong>Young people have been active in politics for a long time, but they're just now getting attention. Whether it be local, like how my school district finally changed our dress code, or national, such as March for Our Lives, issues that affect youth are finally in the spotlight, and so is our activism.</p>
<p><strong>Fahey: </strong>Have you felt pushback or skepticism due to your age?</p>
<p><strong>Ashburn: </strong>Oh yeah. I've been told by adults, "Your views will change when you get older," or "You don't really know what you're talking about, you can't even vote yet." I've done my research, I know what my values are and I align my political beliefs to match those values.</p>
<p><strong>Cruz Rodriguez: </strong>People actually thought we were paid actors being used by political operatives. We received a lot of pushback campaigning on social media or on the phone with voters. Just because we're kids doesn't mean that we can't spark impactful change.</p>
<p><strong>Fahey: </strong>What is the most fun you've had on this campaign?</p>
<p><strong>Ashburn:</strong> Without this experience, I never would have gotten to know Dariel as well as I do. Now, we host the "<a href="http://civicsunplugged.org/mission-control" rel="noopener noreferrer" target="_blank">Mission Control 2030 Podcast</a>" and do so many other projects together. I can't imagine doing any of those things without him.</p>
<p><strong>Cruz Rodriguez: </strong>And also, taking on all the outrageous online arguments from the opposition. I'm a person who challenges people's ideas, and this experience has really brought that out in me.</p>
<p><strong>Fahey: </strong>Finally, what does being an American mean to you?</p>
<p><strong>Cruz Rodriguez: </strong>It means being able to exercise the right to critique our government, from the founders who dumped tea into Boston Harbor to the young people protesting in the streets today.</p>
<p><strong>Ashburn: </strong>Loving your country, and being willing to do whatever it takes to change it for the better.</p>
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Exclusive: Obama on the Urgency of 2020's Senate & Down Ballot Races | NowThis
Deeds, not words, show Obama is not the reformer he's sounding like
Oct 23 2020
Gorrell is an advocate for the deaf, a former Republican Party election statistician, and a longtime congressional aide. He has been advocating against partisan gerrymandering for four decades.
<p>I got a jolt of optimism in late September when someone alerted me to a four-minute video posted by the progressive news organization NowThis News.<br></p>
<p>There was former President Barack Obama, <a href="https://www.youtube.com/watch?v=slEj9HbndWM" rel="noopener noreferrer" target="_blank">urging his fans</a> to vote for state legislative candidates committed to doing the right thing when redrawing the nation's congressional and legislative lines next year. "Those maps will stand for 10 years," he reminded viewers. "That could mean a decade of fairly drawn districts where folks have an equal voice in their government, or it could mean a decade of unfair partisan <a data-linked-post="2636688309" href="https://thefulcrum.us/gerrymandering" target="_blank">gerrymandering</a>."</p>
<p>Could this mean that, after all these years, that Obama had become a genuine anti-gerrymanderer? It was thrilling to think about, but soon enough I was reminded of all the other ways he's been more of an invisible gerrymanderer.</p>
<p>His personal relationship to the practice dates back two decades, to his days as an ambitious young Illinois legislator.</p>
<p>Having recently won his first re-election to the state Senate, Obama was in position to get what he wanted when the General Assembly redrew its own districts in 2001. And so he did. With the assistance of Democratic consultant John Corrigan, the contours of Obama's 13th District were shifted northward to assure that some of Chicago's wealthiest citizens would become part of his financial and political base.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The Democratic coalition Obama wanted to build — wealthier, whiter, less blue-collar and better-educated — allowed him to sharpen the campaign message that helped him move from the Senate in Springfield to the Senate in Washington, and then onto the presidency.</p>
<p>At the same time, however, the forces of partisan gerrymandering were being used against him. Obama had been trounced in 2000 when he challenged Rep. Bobby Rush in the Democratic primary, but the congressman wanted to make sure his young rival did not set his eyes on a rematch. And so, with the help of venerable political mapmaker Kimball Brace, Rush persuaded his friends in Springfield to tinker ever so slightly with the boundaries of the 1st Congressional District — so the lines ran one block to the north, two blocks to the west and one block to the south of Obama's residence. </p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>"There is a conflict of interest built into the process," he told the weekly newspaper in his Hyde Park neighborhood that summer. "Incumbents drawing their own maps will inevitably try to advantage themselves."</p>
<p>It was a message he resurrected 15 years later, in his final State of the Union address. "We have to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around," Obama told Congress in January 2016. "Let a bipartisan group do it." </p>
<p>And yet, he spent none of his presidential political capital trying to advance the cause of bipartisan, let alone nonpartisan, mapmaking. He did not act when it mattered most — in his first two years, when fellow Democrats controlled the House and Senate. At the time, it seemed their party would do well enough in the 2010 midterms to dominate redistricting for the decade now coming to an end. </p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>It turned out the opposite way. A Republican wave that year (fueled in part by fundraising for something called the Redistricting Majority Project) resulted in all-GOP state governments getting to draw almost half the 435 congressional districts the next year — while all-Democratic governments drew about 50.</p><p>Freed from his presidential duties, and the NowThis video notwithstanding, Obama has returned to his gerrymandering ways. With his former attorney general, Eric Holder, he's captaining the <a data-linked-post="2638675638" href="https://thefulcrum.us/directory/national-democratic-redistricting-committee" target="_blank">National Democratic Redistricting Committee</a>. </p>
<p>While working to portray itself as out to combat partisan gerrymandering, the opposite is plainly true. Its website describes the NDRC as "the centralized hub for executing a comprehensive redistricting strategy that shifts the redistricting power, creating fair districts where Democrats can compete." Its IRS filings say the organization's purpose is to "build a comprehensive plan to favorably position Democrats for the redistricting process through 2022."</p>
<p>Obama's video does not mention his past support for redistricting commissions. He has not spoken out in favor of the one measure on the ballot next month, in Virginia, that would make nonpartisan citizens central players in the remapping for the next decade. He has not offered a kind word about the ad hoc citizen panel convened by Gov. Tony Evers, a fellow Democrat, to pressure the GOP majority in the Wisconsin Legislature.</p>
<p>Most recently notable, he did not mention redistricting reform as one of the cures for democracy's problems he rattled off Wednesday during a stemwinder at a drive-in pep rally Philadelphia, his debut as a Joe Biden campaign surrogate.</p>
<div></div><p>So don't be fooled by the video. Obama has evolved in the past 20 years, from the target of a partisan gerrymander into the invisible gerrymanderer.</p>
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