Democratic erosion and authoritarian tendencies tend to go hand and hand with the executive power. Unlike the self-coups of years past executive aggrandizement has become more common as a way to cling to power in national government, where authoritarian leaders slowly take over the power by legal means, using cooperating legislators and judicial institutions. But in the US, at the state level a different kind of erosion is underway, and it is being led by the legislative branch. The mere concept of a legislative coup, or legislative aggrandizement seems contradictory or unusual at the very least. And yet that is what we have seen successfully executed in in North Carolina starting in 2016.
In 2016, the North Carolina house of representatives was debating a new redistricting map after the supreme court blocked its previous map since it “target[ed] African-Americans with almost surgical precision”. In the middle of the discussion, one representative made the intentions of the new map extremely clear:
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” David Lewis (R), NC state representative.
This new map was extremely effective at its goal. In the elections of 2016 for the house of representatives, republicans won 52% of the vote, but they won the races in 10 out of 13 districts, a 77% of the seats. In 2018 it was the same story, although rampant election fraud in one of the districts force a special election. Currently the supreme court is deliberating on the constitutionality of the 2016 North Carolina map, trying to decide if partisan gerrymandering is unconstitutional, but the precedent and conservative majority in the court are bad omens for the result.
In their book How Democracies Die1, Levitsky and Ziblatt tell us that democratic institutions inside states have fallen earlier in history. Southern states have already lived under a one-party rule after the democrats used race neutral language to mask race focused laws that disenfranchised African Americans to the point that the entire south voted for the Democratic party consistently for decades. More than 100 years later, republicans are trying to disenfranchise democrats, many of them African-Americans, and succeeding by packing them in districts that are so noncompetitive that their votes lose all importance. Gerrymandering in itself, especially when it is this effective, is problematic for several reasons. However, this is not where the story ends. In 2016 the state voted for governor, and the race was won by Ray Cooper, a democrat, flipping the seat. What happened next is extremely concerning. The legislature rushed to pass during the lame duck session a sweeping set of reforms that took power from the Governor and move it to the legislature. The governor’s cabinet appointments had to be approved by the state senate, in which the republicans had managed to secure a supermajority even though their share of the popular vote was very close to even with the democrats. That supermajority in both chambers also allowed the legislature to override all governors’ vetoes giving the legislature virtually unlimited power to pass and execute laws in the state. But their attempt to grab all possible power was incomplete. Several judicial challenges and electoral commissions were attempting to stop the gerrymandering and power grab. Hence, the legislature tried to take control those institutions too. Changes to the electoral commissions and the system for appointing judges require constitutional amendments that are only possible through ballot initiatives. The NC legislature put to ballots out that would move more power to the legislature to appoint judges, and to reform the electoral institutions. These two ballots fortunately failed to gain majority support. But their intention and the fact that these ballots made it to popular vote should be concerning, because it points out that all safeguards had already failed.
There are many ways to stop this kind of legislative aggrandizement. In Michigan, where the legislature intended to pass laws very similar to those in NC trying to grab power before the upcoming democratic governor took power, the outgoing republican governor vetoed the most egregious laws passed by the state legislature in their attempt to cement their power beyond the electoral results and the will of the people. In Wisconsin, where the former governor signed these kinds of laws, a state judge found the laws unconstitutional, stopping the legislative from taking over. In New Jersey, where democrats were attempting a similar tactic, backslash from the public, both republicans and democrats made them rethink their plan, and the laws were never passed. However, these safeguards are circumstantial and unreliable. It is not wise to rely on the ethic considerations of elected officials, the rationale of increasingly polarized judges or the court of public opinion to avoid falling into a one-party rule.
When there is an established advantage in the legislative elections based on demographic tendencies (democrats are more urban, packing districts by themselves), aggravated by intentional surgical district lines whose sole intention is to make the natural patterns even more lopsided, we end up in a place in which the state legislature becomes a de facto one party rule, even when the majority of the population of a state is divided or even opposed to the legislature having these powers. But there seems to be no easy solution to this pattern. Once a state has been gerrymandered enough, a party can have legislative veto-proof super-majorities while having a minority of the popular vote. The Supreme Court of the United States could stop part of the problem by ruling that partisan gerrymandering is unconstitutional, but that is a band-aid. Deep electoral reforms are needed. Without proportional representation democracy in the US will continue to rot from the inside.
- Levitsky, Steven, and Ziblatt, Daniel. How Democracies Die. Broadway Books, 2019