Friday, November 11, 2022

That the Democrats Came Close Does Not Change Anything

by Neil H. Buchanan

So, you say there were some elections in the United States earlier this week?  How did that go?  As I wrote here on Election Day, we knew that tens of millions of people would vote for Republicans who are in the process of trying to turn America into a one-party state, while tens of millions of others (roughly half of all registered voters, it turned out) would not show up to vote against the party of insurrection.  That was an easy prediction, and it was accurate.

Most observers also made what they thought was an easy prediction, which was that Democrats would be wiped out in this election cycle.  They were wrong.  The post-election group-navel-gazing has almost entirely involved marveling at how relatively well the Democrats did, with grand pronouncements from the usual pompous asses that "the fever is breaking" amid discussion that maybe American democracy is not in as much danger as we thought.

Sadly, that is nonsense.  I agree with Professor Dorf's analysis on Wednesday that there is nothing meaningful or helpful about the Democrats covering the spread.  Or, to change the gaming metaphor, there is no "second-place money" in a winner-take-all pot.

I will have more to say about that below, but I will take a moment first to advertise my new two-part Verdict column, "Political Violence in the United States."  In today's second part of that column, I note with some gratitude that the worst-case scenarios of widespread violence in this year's elections has not played out.  There is still time for that to go sideways, but violence avoided is violence avoided, and that is good as long as it lasts.

Here, I want to explain a bit more why I agree with Professor Dorf's conclusion that this was still a terrible week for the country (and the world), and I will add some thoughts about how it all happened.

Although things are not yet fully sorted out in all of the races, only one thing truly matters, and that is whether Republicans can take control of at least one house of Congress.  Thus far, they seem unlikely to take the Senate, although that is very much up in the air.  More importantly, however, even though it has still not been officially called in the two days  since Professor Dorf wrote his column, it still seems very, very likely that Republicans will indeed become the majority party in the House.

And the way Republicans -- especially House Republicans -- act as a group means that all they need is 218 seats in that 435-seat chamber.  They have so far flipped enough seats to end up with about 221.  Is that good for Democrats, with only single-digit losses rather than the 40- or even 60-seat blowout that was predicted?  No, because 221 is greater than or equal to 218, and that is all that counts.

No more legislating will happen, and Republicans will do everything possible to continue to sabotage the economy and then blame the Democrats for it.  This will leave them free to have a weekly impeachment vote (or why not daily?), similar to their taking literally one hundred votes to "repeal Obamacare," with some of them saying in 2015 that they needed to keep taking those meaningless votes because it made their newer members happy to be able to have voted against the purportedly demonic health care bill (for which they never proposed an alternative).

One thing that is interesting and important about the relatively close outcome in the House, however, is that it makes the results of this year's round of gerrymandering especially salient.  In two columns from late September, I harshly criticized centrist New York Times columnist David Leonhardt's casual dismissal of the causes and importance of gerrymandering.  Even after admitting that the Gang of Six on the Supreme Court had left in place several unconstitutionally gerrymandered district maps, and then linking to a column that described the Republicans' success in winning elections before they are held, Leonardt oh-by-the-way'ed this conclusion: "[T]he current House map slightly favors Republicans, likely by a few seats."

The consensus that I have seen suggests that it was seven or eight seats, but maybe "a few" is an elastic enough concept to cover that range.  In any case, guess what?  Democrats are within that range, which means that gerrymandering changed history by making the House change hands -- thus allowing the Republicans soon to crash the global economy by refusing to increase the debt ceiling.  More precisely, this year's gerrymandering alone had that effect, with the Democrats' narrow lead in the current session having already been artificially deflated by 2010's gerrymanders in Republican-dominated statehouses.

Even setting aside the massive voter intimidation, purges, and other suppression techniques (which largely explain Florida's move from purple to red over the last two years), this means that gerrymandering is the big story of this election.  Instead, however, pundits are saying that "the American people pulled back from the abyss this week."  (I made that one up, but I would be shocked if no political commentator has used almost that exact phrase.)

Am I glad that Fetterman beat Oz?  Of course.  Am I glad that various governors' races went the right way, even if they were closer than they should have been?  Yes.  But with Republicans back in control of the House, the fever will not break.  Even if the current "Trump was the big loser" insta-conventional wisdom turns out to be true, the person who replaces him (whether it is my newly re-elected governor or some other MAGA Republican) will keep the foot on the gas, and all of the efforts to subvert the 2024 election will move forward.

This will include another assist from the Supremes, who are likely to endorse the Independent State Legislature theory, which will give the still-gerrymandered Republican majorities in the state legislatures of Pennsylvania and Wisconsin the ability to ignore their re-elected Democratic governors when determining which slates their states send to the Electoral College.  Interestingly, Democrats in Michigan apparently flipped both non-gerrymandered houses, so the Wolverine State is no longer part of this story, and Gretchen Whitmer might play a very different role in 2024 -- not as a governor fighting with her legislature over who won her state but as the possible Democratic nominee whose election is overturned by the legislatures in Arizona, Georgia, Pennsylvania, and Wisconsin.

Again, close is simply not good enough.  There are too many weaknesses in the American system that laser-focused Republicans can exploit.  And even if they do not retake the Senate this year, the January 6, 2025 session to count electoral votes will be overseen by the winners of the 2024 elections, giving Republicans the possibility of winning the Senate then and refusing to certify a Democratic win, even if they cannot stop the Senate from doing its job for the next two years.  Anyone who thinks that the Senate Republicans -- if they hold the majority on that date -- will not join their House colleagues in finding "irregularities" to disqualify Democratic electors in enough states to guarantee a Republican win does not understand the will to power that we are seeing.

No, there is no reason for optimism, even though this week's results were not the "drubbing" that The Washington Post's inimitable headline writers predicted.  Nothing has changed that will block Republicans from doing in 2024 and thereafter what Donald Trump almost did in 2020.