David Daley
Guardian UK
Leonard Leo built a conservative supermajority on the US supreme court and stacked lower and state courts with Republican ideologues that have pushed the nation to the right via the least accountable branch of government.
If the right strews constitutional chaos over the certification of this presidential election, two people will have cleared the path
Two men recognized and exploited the anti-democratic loopholes within America’s rickety democracy in order to deliver Republicans victories that they could never win at the ballot box.
Now their willfully minoritarian creations threaten the very essence of a representative democracy: if Donald Trump, rightwing courts, gerrymandered state legislatures and an extreme Republican caucus in the US House of Representatives create constitutional chaos over the certification of this presidential election, two men cleared the path.
The single-minded determination of Leonard Leo built a conservative supermajority on the US supreme court and stacked lower and state courts with Republican ideologues that have pushed the nation to the right via the least accountable branch of government.
Chris Jankowski masterminded the partisan gerrymanders that tilted state legislatures and congressional delegations across the south and the purple midwest toward extreme Republicans, ended Barack Obama’s second term before it started, and rendered elections in Wisconsin and North Carolina all but meaningless over the last decade and a half.
Leo and Jankowski understood, separately, that the courts and state legislatures were undervalued and often undefended targets for a deliberate strategy aimed at capturing important levers of power that sometimes float under the radar. They could be Moneyball-ed, to borrow the term Michael Lewis used in his book about how the Oakland A’s made an end-run around large-market teams by understanding value that their opponents overlooked.
What Leo and Jankowski built separately would soon reinforce the other’s creation (with, of course, crucial assists from chief justice John Roberts), tightening the knots around meaningful elections, pushing policy to the extreme right and making it nearly impossible for voters to do anything about it.
Leo’s relentless focus on turning the judiciary Republican, first identifying and fast-tracking conservative jurists through his various roles at the Federalist Society, then coordinating the often eight-figure efforts to secure their confirmation on the US supreme court, helped conservatives to unpopular court-imposed victories on voting rights, abortion restrictions, gun access and gutting the regulatory state that would not have been won through the political process.
As I revealed in my book Ratf**ked: Why Your Vote Doesn’t Count, Jankowski pioneered Redmap, short for the Redistricting Majority Project. That 2010 strategy, coordinated when he worked at the Republican State Leadership Committee (RSLC), flipped state legislative chambers in Ohio, Michigan, Pennsylvania, Alabama, North Carolina, Wisconsin, Indiana, Tennessee and several other states just ahead of the decennial redistricting. Then, with complete control of those processes, as well in Florida, Georgia, Texas and elsewhere, the RSLC helped draw some of the most extreme partisan gerrymanders in history, locking in huge Republican advantages in state legislatures and congressional delegations.
The supreme court’s decision in Citizens United helped make possible the $30m that funded Redmap. Redmap’s lines then proved so stout that they could hold back electoral waves. In 2012, the Republican party would easily hold the US House of Representatives even as they won 1.4m fewer votes nationwide; Florida, Ohio, Pennsylvania, Virginia, Michigan and Wisconsin all went for Obama statewide, but the Republicans got 64 of those states’ 94 congressional seats.
Meanwhile, as Republicans drew themselves giant edges in the US House and state chambers, and packed Democrats into fewer seats they won with bigger majorities, low-turnout, base-driven Republican primaries became the key races to win, producing a new generation of lawmakers fixated on solutions for “voter fraud”.
This grim result is a US supreme court that has been captured by conservatives, which has delivered a decade of anti-democracy decisions that have advantaged the Republican party in elections, as well as an audacious plan to gerrymander Republicans into power in state legislatures nationwide and helped produce ever-more-extreme caucuses eager to adapt draconian voter restrictions in the name of stopping fraud that they cannot prove exist. The Roberts court has blessed this as well.
Call it the Shelby county-Redmap two-step. The US supreme court’s decisions in Shelby county and other crucial Voting Rights Act (VRA) cases first ended preclearance – the VRA’s enforcement mechanism, which for nearly 50 years prevented lawmakers in states with the worst track records on voting rights from changing the rules without prior approval. Then the court handed lawmakers wide latitude to enact voting restrictions – even those with a demonstrated partisan edge or disproportionate impact on racial minorities – just as long lawmakers said that they believed they were battling fraud.
If voters wanted to toss out lawmakers who force citizens to endure harder processes to make their voices heard, well, the politicians and Leo’s rightwing judges had that covered too. Arizona, Georgia, Alabama and Texas – states that the Voting Rights Act has required to pre-approve the equity of legislative maps – were suddenly liberated by the US supreme court to gerrymander themselves into safe districts..
Then, in 2019’s disastrous Rucho v Common Cause, Roberts closed off appealing to federal courts to help fix partisan gerrymanders and suggested, apparently with a straight face, that voters still had the power to fix this through the ordinary political process, or by passing a law through Congress. Just like that, time and again, whether on voting rights or reproductive rights, the court would issue a ruling that benefited the Republican party, while telling citizens to fix it through a political process that the court helped engineer against them.
It could get worse still. If Georgia’s state election board – appointed largely by the gerrymandered legislature, empowered by Shelby county’s evisceration of preclearance – succeeds in slowing the state’s count or certification to a crawl, it could push the battle for the state’s electors toward courts hand-picked and packed by Leo.
Likewise, a close win for Trump in Arizona or Georgia – where fewer than 11,000 and 12,000 votes, respectively, made the difference in 2020 – could easily be attributed to aggressive new voting restrictions that target minority communities, passed by gerrymandered legislatures freed from preclearance after Shelby. And if certification runs aground in the US House, where a majority of the Republican caucus voted against certifying free and fair results from Pennsylvania and Arizona in 2020, one big reason will be the new breed of extremist lawmaker elected to Congress from districts gerrymandered to be wildly uncompetitive.
This would be the ultimate proof of concept for the right’s judicial capture and gerrymandering schemes: tilted legislatures, newly liberated by the courts, tipping the presidency back to a supreme court supermajority packed with three justices who proved their conservative bona fides working on Bush v Gore in 2000.
Moneyball did not last forever. Big-market teams caught on to Oakland’s methods. But whether or not this election ends with a Bush v Gore redux, this anti-democratic moment is here to stay. It has proven nearly impossible to defeat because Leo remains a step ahead of hapless Democrats, and because the unfair after-effects of hijacked courts and hijacked legislatures have proven so long-lasting. Then, when the supreme court shuttered federal courts to redistricting cases, state supreme courts became the last bulwark. So Leo and the RSLC have worked together to identify, fund and elect conservative justices in crucial states in part to protect the tilted maps.
Now they’ve combined forces: Jankowski brokered the $1.6bn bequest that built Leo’s latest dark money operation, the Marble Freedom Trust. Last month, Leo said he’d spend as much as $1bn to “crush liberal dominance where it’s most insidious”, in the worlds of media and culture.
If Redmap cost just $30m to execute, if it cost upwards of $17m to keep a seat warm for Neil Gorsuch before confirming him after Trump took office, just imagine what they might bankroll now. Installing a conservative supermajority in the nation’s impoverished newsrooms, buying once-trusted brands and remaking them in their ideological image, could be both a bargain and a finishing masterstroke in their push for the radical right’s ongoing push for an enduring minority rule.