federal courts

Democratic Prospects for 2018 and Beyond

Unexpected Democratic successes in Pennsylvania, Virginia, Alabama, Wisconsin and elsewhere have raised Democrats’ hopes for a big November victory to jumpstart a recovery from 2010 and other recent electoral disasters. Although Republicans have a big advantage in Senate races, in the House of Representatives, the Democratic prospects are brighter. Even there, however, the party’s hope to recover long-term control faces an uphill climb unless the Supreme Court finally declares that partisan gerrymanders are unconstitutional. That, however, won’t help until 2019 and 2020 and perhaps not then. Congressional and state legislative districts are shaped by the states, and in 2011-12 the Republicans used the many state legislative chambers and governorships they won in 2010 and after to gerrymander their state districts so thoroughly as to assure themselves state and congressional majorities for years and probably decades to come, regardless of the popular vote. Democrats can block this only if they win one legislative chamber or the governorship in a substantial number of red states by 2021, the next redistricting year.

That won’t be easy. In order to break the Republican hold on these state legislatures, Democrats must first find enough good candidates for the state and congressional races. This does seem to be happening, particularly but not only among women. The many elements of the Democratic coalition must then turn out to vote for these candidates in heavy numbers not only in 2018 and 2020, but in 2022 and in the many off-year (and, of course, presidential) elections thereafter, to avoid a repeat of 2010 and 2014.

The chances of a Supreme Court rescue are unclear. Lately, the Supreme and other courts have been striking down congressional and state racial gerrymanders in Texas, Alabama, North Carolina, Virginia, and Florida with surprising regularity, although these have focused on individual districts, and were not state-wide. Also, on the plus side eight of the current justices (as well as the late Justice Antonin Scalia) and six earlier justices agree that excessively partisan gerrymandering is unconstitutional. For over thirty years, however, the Court’s conservative justices have complained that they have not been given a workable formula for what they would be willing to consider excessive and have refused to deal with the matter, no matter how egregious the gerrymander. The Court will try again this term with a Republican state legislative gerrymander from Wisconsin that was struck down by a federal trial court, and a Maryland congressional district drawn by the Democrats; more cases are in the pipeline. As many as 7 states, and 12-20 U.S. House seats could be affected, [1] [Wines 10/2] but however the Court rules, it will be too late for the 2018 elections.

After the Democratic landslide in 2008, the Republicans future looked bleak. Except for one thing – 2010 was going to be a census year after which the state legislatures would reapportion and reshape the congressional and state electoral districts. In 2009, the Republican State Leadership Committee (RSLC), newly led by Ed Gillespie, the Virginia 2017 GOP gubernatorial candidate, and liberally supplied with money, decided to concentrate on the upcoming state elections. As Karl Rove explained in early 2010:

A18 state legislative chambers have four or fewer seats separating the two parties that are important for redistricting…Republican strategists are focused on 107 seats in 16 states. Winning these seats would give them control of drawing district lines for nearly 190 congressional seats.

The 2010 election produced a political earthquake. While 26 million 2008 Democratic voters stayed home, Tea Party and other Republican voters, stoked and organized by Koch brothers organizations and other GOP operatives poured out, beating the Democrats in the House by 6 million votes and in the Senate by 3.5 million. The President’s party almost always loses congressional and state seats in the subsequent off-year election but until recently the congressional average was about 28, and the state average 300-400. [PBS]  In 2010, however, the Republicans achieved their greatest victory since 1928. They won 6 U.S. Senate and 63 House seats which gave them a 242-193 House majority. At the same time, they won nearly 700 state legislative seats, giving them complete control of 24 states; they added nearly 250 more in subsequent state elections. After the 2016 elections, Republican state legislatures controlled redistricting in 21 states accounting for 204 congressional seats, just 14 short of a majority; these numbers may be somewhat lower now because of recent anti-gerrymandering decisions in North Carolina, Pennsylvania and elsewhere.

The GOP’s control of all those states in 2011-12 enabled it to gerrymander 193 congressional districts so that in 2012 a 1.4 million vote Democratic superiority in congressional races netted them only 8 House seats, while the Republicans held 233, giving them a 33 seat majority; there were similar state seat-vote disparities.

In 2014, Democratic 2012 turnout dropped by 23.6 million and the Republican congressional majority rose to 59 (247-188). In 2016, 50.6% of the congressional vote gave Republicans 55.4% of the seats.

As the Brennan Center for Justice reported last year:

[T]he manipulation of district lines…has given Republicans a net benefit of at least 16-17 congressional seats in the current Congress…Michigan, North Carolina, and Pennsylvania consistently have the most extreme levels of partisan bias…account[ing] for seven to ten extra Republican seats in each of the three elections since the 2011 redistricting…Florida, Ohio, Texas, and Virginia have less severe partisan bias but jointly account for most of the remaining net extra Republican seats in the examined states.

All but Texas are battleground states. A Brookings Institution study that focused on voter-to-seat disparities in middle-sized states, and a June 2017 Associated Press study of all 435 House and 4700 state races came to similar conclusions.

In some of these states, the Democrats’ congressional troubles go back at least to the 1990s.  Since the 1994 election, when Newt Gingrich’s “politics is war” revolution finally broke the Democrat’s 40-year domination of the House, Florida has sent majority Republican delegations to Congress in every election; so has Ohio except for 2008. Virginia is now entirely blue in its state-wide elections, but its congressional delegation has been consistently and overwhelmingly Republican since 2000. Michigan’s congressional districts were gerrymandered by the Republicans in 2001 after having been consistently Democratic, and since 2002 its delegation has remained majority Republican except for a temporary 6-5 switch in 2008. Since a similar 2001 gerrymander, Pennsylvania’s representation has also been overwhelmingly red except for 2006 and 2008.* All these delegations are now majority Republican again. [ck]. In Texas, since Congressman Tom DeLay’s mid-term redistricting in 2003, two thirds of the state’s congressional delegation has been Republican.

This GOP dominance resulted not from neutral causes such as where Democrats “clustered” but from skillfully crafted gerrymanders that “packed” and “cracked” Democratic voters so that their votes were wasted. For example, after the 2012 election the RSLC boasted that:

Pennsylvanians cast 83,000 more votes for Democratic U.S. House candidates than their Republican opponents, but elected a 13-5 Republican majority to represent them in Washington…In 2012, nationwide, Republicans won 54 percent of the U.S. House seats …while winning only 8 of 33 U.S. Senate races and carrying only 47.8 percent of the national presidential vote.

Also, in 2012, Michigan voters sent  a 9-5 Republican delegation to Congress while electing a Democratic president and two Democratic Senators; that year North Carolina Republicans won fewer votes than the Democrats, 48.9% to 50.6%, but increased their congressional majority to 9-4. In blue Virginia, the current congressional delegation is 7- 4 Republican, even though in 2016 Democratic congressional candidates won 15,000 more votes than Republicans. And in Wisconsin that year, Democratic candidates received 49.8% of the votes, while Republican candidates received only 45.9% but the Republicans kept 5 of the 8 seats.

Because of the gerrymandering, the hill the Democrats must climb to regain control of the House in 2018 is steeper than it was in 2006, when they briefly regained the House.  Today they must win 23 Republican seats, whereas in 2006 they needed but 17. Moreover, a new Brennan Center study claims that it will take a much larger Democratic victory than ever before to win the House: “While a roughly 5.4-point lead in 2006 netted Democrats a total of 31 new seats, a comparably sized lead today is projected to give them only 12.” [Brennan 3/23/18]

Regaining enough state legislative chambers by 2021 to prevent more GOP gerrymanders will be much harder than winning 23 U.S. House seats, difficult as the latter may be.  The 950 state legislative seat gain for the Republicans in 2010 and 2014 has now given the party full control of 26 state governments with veto-proof legislative majorities in two states with Democratic governors.

In North Carolina, for example, the GOP’s 0.2% vote margin  (50.1 %-49.9%) in 2012 produced a 77-43 Republican House majority, and  a 4% state Senate GOP edge (52%-48%) gave the Republicans 34 out of the 50 seats. In 2016, the state House vote split 50-50 but Republicans kept a 74-46 seat majority.  In the 2012 Wisconsin elections, just 48.6% of the Assembly vote gave the Republicans 60 of the 99 seats; that case is now before the US Supreme Court.

The chart below shows what the Democrats face in these key states in 2018 and probably after:

Senate House
State        Dem. Rep.  Dem. Rep.
Florida 15 25 41 79
Michigan 11 27 47 63
North Carolina 15 35 46 74
Ohio 9 24 33 66
Pennsylvania 16 34 82 121
Texas 11 20 56 94
Virginia 19 21 49 51
Wisconsin 13 20 35 64

These disparities are also not new. The Michigan, Florida, Pennsylvania and Ohio state legislatures have been consistently and heavily red since the early 1990s, even longer and more consistently than their congressional delegations. By 2001, Democrats controlled only one chamber-the North Carolina Senate- out of the 14 chambers in the seven states noted by the Brennan Center. In 2006 and 2008, the Democrats did pick up five chambers, but lost them all in 2010. [ck]

Given this history and the very large current Republican seat majorities, even if the Democrats take the presidency and both Houses of Congress in 2020, the Republicans will still control many state legislatures, regardless of one or even two Democratic wave elections. For example, when the Democrats won the Pennsylvania House in 2006, they faced only a 17 vote disadvantage, but in 2018 it will be 41 (121-82). In Michigan in 2006, the Senate was 22-16 Republican but the House was only 58-52, and the Democrats managed to win the latter that year. Now the Michigan House is 63-47 and the Senate is 27-11. As the chart above shows, similar margins are in other red states.

Unless the courts step in and insist that electoral maps be redrawn fairly, the large Republican margins will help them in 2020 to retain the state dominance the party gained in 2010, regardless of the popular vote outcomes. Last year’s state elections in Virginia are a good example: Although the Democrats won the state-wide popular House vote by 10%, they won only 49 of the 100 seats, tying for a 50th.

The 2018 upcoming governorship races might help the Democrats block some future gerrymanders. Thirty-seven states allow their governors to veto redistricting plans, including all six swing states discussed above except North Carolina.  In 2018 the governorships in Florida, Ohio, Michigan, Pennsylvania, and Wisconsin are at stake; only one is currently held by a Democrat – Pennsylvania – which may still have a gerrymandered Republican state legislature.  Twenty-four other Republican governorships will also be up.

Here too, the picture is worse for the Democrats than in 2006 or 2008. In those two years, three of these states had Democratic governors and the benefits of incumbency – Michigan, Pennsylvania, and Wisconsin. Today, that is true only in Pennsylvania.

Substantial state legislative majorities for one party do not necessarily preclude strong congressional gains for the other, at least until now. Congressional elections usually turn on national issues, whereas state elections often focus on state and local matters.  The question is whether the Democrats can put together wave elections for 2018 and 2020 powerful enough to overcome the 2011-12 congressional gerrymanders and the massive resources provided by the Koch brothers and other billionaire Republican donors.

History does offer some guides. Since World War II ended, there have been seven off-year** elections that can truly be called “waves”:  1946, 1958, 1966, 1974, 1994, 2006 and 2010.  In these elections, the most important factor by far has been the electorate’s hostility to the president, as a result of which there was a huge disparity in voter turnout. Although both parties almost always draw fewer off-year voters than in presidential years, every wave so far has involved a very much greater decline by the president’s party.

The most prominent example of the centrality of the president is, of course, Richard Nixon and his involvement in Watergate. By August 1974, when Nixon resigned, he was so disgraced that President Gerald Ford’s pardon in September, two months before the election, not only helped to produce a huge Democratic wave in November 1974 but it also destroyed Ford’s re-election chances in 1976.

Although Trump’s overall support has not fallen as much as Nixon’s and he has not yet been formally linked to anything criminal, his public approval began and has stayed low — between 38% and 42%, with disapproval ratings usually in the mid-50s, 52.5% at this writing. [5/30/18] In an August 2017 poll by Fox News of 1,006 randomly registered voters, 44% thought him extremely or very unstable; fifty-five percent did not consider him a “moral leader” and 50% didn’t think him “at all presidential”; 18% did find him “somewhat presidential.”

Also, according to Gallup, only about 38% are currently satisfied with the country’s direction, with 62% believing it to be on the wrong track. Although the economy and the employment rate seem to be doing well, wage growth remains sluggish and many Americans believe that they personally are not doing so well.

So far, Trump’s base seems to be with him so far. In most contests with Democrats, Republicans stick with their party and come out to vote, as the 2017 special congressional elections in Georgia and elsewhere demonstrated last year, though in much smaller numbers.  The recent Texas primary elections are another indication: although Democratic participation rose to 900,000, Texas Republicans cast about 1.4 million votes. And while Trump is a great spur to Democratic turnout, Republicans are using the fear of Trump’s impeachment if they lose the House, to motivate Republicans to turn out in November.

Moreover, all but a few congressional and state legislative elections will be in districts gerrymandered by the Republicans, and it will still require a large Democratic margin in many states to win the necessary 23. According to the March 2018 Brennan Center study, to win a bare majority of the House or Representatives, Democrats would need to win a popular majority of 11%—almost 56% of the popular vote. To win just one more seat in Michigan, where they have only 5 out of 14 seats despite winning 49.44% of the vote, they would have to win 57.6% in order to obtain a 6th seat. In Ohio, they would have to win 56.5%. 14.7% more than in 2016, to win just a fifth seat out of Ohio’s 16.

Adding to these structural problems is a possible problem with the Hispanic vote. Latinos generally punch below their electoral weight — in 2016, only 48.7% of eligible Hispanics voted. This year, it could be worse because Latinos may feel that the Democrats did not fight hard enough for the DACA Dreamers and even more of them may stay home. According to one recent Washington Post-ABC poll, only 39% of young Hispanics are certain they will vote in 2018. [WP 4/17/18]

The surprise victories in Virginia, Alabama, and Pennsylvania do, however, suggest that many voters in what were formerly reliably Republican suburbs and elsewhere have been turned off by the President’s behavior and policies. Democrat Conor Lamb’s victory in the Pennsylvania special election for Congress offers some especially favorable signs that seem applicable nationwide. Apart from showing that an attractive centrist Democratic candidate can win in a Republican district, which the Democratic victories in Alabama, Wisconsin and in more than 35 state and local elections this past year in very red areas have also shown, some of what the Republicans thought would be strong selling points in that particular Pennsylvania district — the tax bill, attacks on the Affordable Care Act and in this particular district the steel tariffs –fell flat. In fact, concern about losing healthcare seems to have been the single greatest concern for the district’s voters; the ACA is also now popular nationally by a 54-31% margin [ck] and was viewed favorably in this congressional district.

At first, Republicans pushed their tax bill, but a few weeks before the election they realized that that was going nowhere, and dropped the issue. In fact, recent polls show that the tax bill is viewed quite unfavorably: a recent Wall St. Journal/NBC News survey found that just 27% of Americans back the tax cuts, down from 30% who thought that they were a good idea in January. [4/18/18] Another 36% called them a bad idea, while the rest offered no opinion on the matter. When asked to consider its potential effects, 53% expected a negative impact from higher deficits and disproportionate benefits for the wealthy and big corporations.[2] It is now clear that it makes only the rich richer with higher dividends, executive pay raises, and huge stock buybacks but does little or nothing for the rest of us. So far, it has not produced a surge in investments and higher wages, both of which were promised, but only an increase in inflation. Even the stock market has fallen.

As for Trump’s steel tariffs, this Pennsylvania district is one of the very few where that should have played well—everywhere else they are seen as a job killer – but they didn’t.

Finally, this is the third election in a row that Trump has personally failed to deliver, despite winning this district by 20% in 2016 and two personal appearances. If anything suburban voters seem to have turned against him and what is now seen as his party.

All of this was reflected in the relative turnout; Lamb held 79% of the 2016 Clinton vote, whereas Saccone received only 53% of the Trump vote.

Other factors favorable to the Democrats include farmers’ increasing fears that the threatened Trump tariffs will produce devastating losses for them. In response to the President’s threats to raise tariffs on steel and aluminum, China has threatened to impose tariffs on soybeans, sorghum, pork, wine, and other agricultural products. These will cut sharply into the income of farmers in Iowa, Arkansas, Missouri, North Dakota, California and other states who depend heavily on exports to China, who overwhelmingly voted for Trump. Many are already hurting. One Minnesota soybean farmer told a Washington Post reporter, “that the last time I talked to our banker, he told me that of all his clients – these are all farmers – only four made money last year. We kind of broke even. But this year was looking tough even before the tariffs.”[3] Many of these farmers have depended on undocumented labor and have also been hurt by Trump’s immigration policies.

Trump voters in Kentucky, Tennessee and other red states may also feel the effects of European Union retaliation. A 10-page list of targeted items not only included many agricultural products but also Bourbon, tobacco, and playing cards (Kentucky), pleasure boats (Tennessee) and Harley-Davidson motorcycles (Wisconsin).

Consumers and manufacturers will also feel a pinch from higher prices on Chinese imports and on domestic products made with steel and aluminum; some manufacturers of the latter have already been hurt by higher prices. [NYT 4/11] The wild gyrations of the stock market have also unsettled many investors.

Finally, a March 2018 Quinnipiac poll found that 67% of the Millennials (18-34) who plan to vote want a Democratic Congress; just 28% were for the Republicans. These Millennials are now the largest and are the most diverse voting bloc- 44% are black, Hispanic, Asian or of mixed-race.

All of this is reflected in the increasing number of Republican retirements-so far, 28 Republicans have quit, the highest number since 1930 [ck Shields 4/6/18], including speaker Paul Ryan whose announcement was promptly followed by the retirement of a Florida Republican Congressman; others are sure to follow. At this writing there are 40 open seats vacated by Republicans but only 19 by Democrats [Atlantic 5/29/18]. According to the Times’ Nate Cohn, the Republican loss of the incumbency advantage as a result of 19 retirements, reduces the needed Democratic margin to about 6.7%; that was more than enough in the 2006, 1994 and 2010 waves.

Getting Democrats and independents to the polls in 2018 and 2020 will thus not be as hard as it was in 2014 and 2016. The focus of the Women’s March and the March for Our Lives on running, registering and voting will provide energy and urgency to the Democrats’ turnout efforts. But persuading these groups to come out in 2021-22 and in the many subsequent off-year state and local elections, given the voter suppression and other GOP efforts to prevent and deter Americans from voting, as well as the voting inertia that seems common among so many Democratic supporters – that is something else, but it is just as important. According to a group of eighteen political scientists who filed an amicus brief in the Wisconsin case, mapmakers today have far more data – which is also more accurate and more probing – than ever before.

According to these experts:

New technologies and data sources such as ‘augmented’ voter files and modern machine-learning algorithms, will make it easier for mapmakers to predict the decision-making habits of Americans to a more nuanced and accurate level than ever before. When applied to the process of redistricting, new data analysis techniques will enable partisan mapmakers to create gerrymanders that are even more biased more durable, and less irregular-looking…Gerrymandering techniques that were only theoretical in the 2010 redistricting cycle could become commonplace in the 2020 redistricting cycle and beyond.

This is the future we face. If the courts act forcefully and promptly to end partisan gerrymandering, that might be enough to respond to these seismic technological advances. But it is far from certain that the courts will do so. If they don’t it will be up to us. If American democracy is to survive, we must not only get voters to the polls every four years but also persuade them of the importance of staying steadily involved. In a modern democracy, political action cannot be a spectator sport or an occasional enthusiasm – it must be a lifetime commitment.

[1] The Pennsylvania Supreme Court has used the state constitution to invalidate the state’s congressional gerrymander.* The Pennsylvania congressional gerrymander has now been struck down under that state’s constitution.

**Presidential elections are not included for they turn usually on the personal characteristics of the opposing candidates and their campaigns; and, turnout is usually high for both candidates.

[2] Shoshanna Delventhal, “Tax Cuts Less Popular with Voters NBC/WSJ Poll”, April 18, 2018.

[3] David Weigel, “Farmers who backed Trump far becoming pawns in trade war”, The Washington Post, April 9, 2018.

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