Picking the Next President in 2021
Mark Nordenberg will pick the next President of the United States in the next few weeks. Don’t know him? That’s the point.
Former University of Pittsburgh Chancellor and Law School Dean Nordenberg chairs the Pennsylvania Redistricting Commission which is charged with drawing the lines for the Commonwealth’s state legislative districts based on the 2020 census. The Commission has five members, the Republican and Democratic leaders of the state House and Senate plus the Chair. The four party leaders pick the chair but if they cannot agree, the state Supreme Court makes the selection. Nordenberg was appointed by the Court.
Why am I nerding out on this process? It makes clear that the four party leaders will not agree on anything, much less on a final plan for redistricting. So, in a few weeks, some redistricting plan will be approved on a 3 to 2 vote, with two leaders from one party voting with Nordenberg while the two leaders from the other party voting against.
Nothing new here. This process has been in place since the 1970 census, and the final vote is always the same — two party leaders plus the chair prevail.
What is new is what I see as an emerging plan of the Trumpists to override the voter’s choice in 2024 if the Democratic candidate wins the Presidency against The Donald (again).
Over the past decade or so both political parties have become much more sophisticated in their ability to draw these boundaries to favor their own party. As an example, the PA Congressional redistricting plan developed after the 2010 census (drawn by the Republican controlled Legislature) essentially foretold the election of a predominantly Republican Congressional delegation despite an evenly divided electorate. The Public Interest Law Center wrote:
In the 2012 election Republican candidates won 49% of the statewide vote, but secured 13 of 18 congressional seats, whereas Democrats only secured 5 seats, but won over 50% of the statewide vote. And Republicans held this 72% share of congressional seats in both 2014 and 2016 even though they obtained only 55% and 54% share of the statewide vote, respectively.
In 2018 the PA Supreme Court found that the Congressional district plan violated the PA Constitution and, after giving the parties a chance to rework it, mandated a new map. This comparison of the two maps shows how the new map was significantly simpler and placed logical areas of the state together in the districts:
In the 2018 elections the Congressional delegation split equally between Republicans and Democrats, which makes sense in a state that has one Republican and one Democratic Senator and where the Governor’s office has alternated between Democrats and Republicans for decades.
Republicans are counting on drawing the lines for the state legislative districts to continue the same disproportionate results for the next decade. Today, Democrats lead in total voter registration statewide by 615,500 voters or 7%. However, Republicans have a 28 to 21 majority in the state senate and a 113 to 88 majority in the state house. This inequity is a direct result of redistricting the state legislature in 2011.
Dean Nordenberg will have the deciding vote, in reality the only vote, in deciding how the lines are drawn this year.
If he agrees with Republican plan the Commission will give their party a disproportionate share of the state legislature, and likely a majority, even if they receive a minority of the votes, through 2031.
Here’s the rub. Nationally, Republicans plan to challenge the Electoral College in states where the Democratic candidate wins but the Republicans control the Legislature. Sounds frighteningly like Pennsylvania.
The US Constitution states:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” who vote for the next President.
Historically, and in keeping with a representative democracy and the concept of “one person, one vote,” states have almost universally directed the Electors to vote for the candidate who wins the popular vote.
But Republicans have lawyers working on their SCOTUS briefs arguing that the Constitution says each state Legislature may appoint electors other than those representing the winning candidate. A Republican Legislature in PA, they say, can appoint electors to vote for The Donald even if he loses the popular vote.
This approach is not without precedent, which did not end well. In the highly disputed election of 1876, three former Confederate states each sent two opposing sets of electors to Congress. One represented the actual election outcome, including newly enfranchised black voters, favoring Republican Rutherford Hayes, and one was selected by the resurgent white leaders in the state legislature, favoring Democrat Samuel Tilden. Eventually, Congress reached a compromise favoring Hayes, but which required the new President to withdraw federal troop from the South, ending Reconstruction and initiating decades of Jim Crow suppression of black voters.
Republicans are planning a similar hijacking of the 2024 election. They are focusing on using redistricting to gain control of state legislatures even where they have a minority of the votes, and to gain overwhelming control in states where the actual results are close.
There are enough states like Pennsylvania with a Democratic majority of voters but a Republican legislature (or soon to become a Republican legislature) to change the outcome of the 2024 Electoral College.
To summarize:
· If Dean Nordenberg votes with the Republicans on state legislative redistricting, the Republicans will likely have a disproportionately large number of members from 2022 to 2031, quite possibly a majority as they have today;
· If the Democratic Presidential candidate wins Pennsylvania in 2024 it will likely be a fairly narrow margin and subject to the same unfounded claims of fraud and discrepancies as we saw in 2020;
· The Donald, or if he does not run, DeSantis, Cruz, Noem, Hawley or another Trumpist look-alike, will pressure a pliant PA Republican legislature to ignore the election results and appoint Electors favoring the Trumpist candidate;
· The Supreme Court ultra-right majority will announce that the outcome is exclusively for the legislature to decide, i.e. “not our problem;”
· With similar scenerios in Georgia, Arizona, Wisconsin, Minnesota and Michigan, even an overwhelming victory by the Democrat could be reversed by the stacked Electoral College.
Nothing is more important today than having an informed and active electorate watching the redistricting process in every state, applying pressure to draw fair, rational and representative voting districts for the next decade. Our democracy may depend on it, and Dean Nordenberg.
