“The legislature is as barbaric, primitive, and Neanderthal as any in the country. It’s really troubling.” That’s former Ohio Gov. Ted Strickland, a Democrat who served from 2007-2011, in an interview with The New Yorker’s Jane Mayer. He’s talking about Ohio, the focus of Mayer’s deep dive into how state legislatures are, in her words, “torching democracy.”
She focuses much of the article on Ohio, which was the subject of international condemnation when a pregnant 10-year-old rape victim had to leave the state to obtain an abortion this summer. She was the victim of an extreme abortion ban that the legislature passed in 2019, which went into effect when the U.S. Supreme Court overturned federal abortion protections. The Ohio legislature, like plenty of others around the country, was already pretty assured what the U.S. Supreme Court was going to do on abortion well ahead of both the leak of Justice Samuel Alito’s decision in May, and the final hammer blow in June. In Ohio, abortion is banned after six weeks or from the moment there’s fetal cardiac activity. Ohio Republicans were feeling slightly humanitarian and so gave an exception for risk of death or serious permanent injury to the mother.
“According to David Niven, a political-science professor at the University of Cincinnati, a 2020 survey indicated that less than fourteen per cent of Ohioans support banning all abortions without exceptions for rape and incest,” Mayer writes. Thanks to rampant gerrymandering at the state legislative district level, what the vast majority of Ohioans support doesn’t matter. “Ohio is about the second most gerrymandered statehouse in the country,” explained David Niven, a political science professor at the University of Cincinnati. “It doesn’t have a voter base to support a total abortion ban, yet that’s a likely outcome.” He concluded, “Ohio has become the Hindenburg of democracy.”
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David Pepper, an election law professor, former Cincinnati city councilman, and a former chairman of the state’s Democratic Party spoke with Mayer as well about Ohio, the stampeded to fascism in the Republican Party, and the Supreme Court. “No one knows anything about statehouses,” he said. “They can’t even name their state representatives. And it’s getting worse every year, since the local media’s dying and the statehouse bureaus are being hollowed out.”
He pointed to the concurring opinion from Justice Brett Kavanaugh in the Dobbs v. Jackson Women’s Health Organization decision that overturned federal abortion rights. Kavanaugh argued that the court was restoring “the people’s authority to address the issue of abortion through the processes of democratic self-government.” Pepper blasted that notion: “It’s so disingenuous—total gaslighting. Many statehouses no longer have representative democracy. Because they’ve been gerrymandered, they don’t reflect the will of the people.”
Even now, the extremist Trump-packed court is preparing to make it so, so much worse. They’ve scheduled a case for the fall term that puts those Republican legislatures in charge of determining the outcome of federal elections on the basis of a crackpot legal theory from the right.
As Daily Kos Election’s Stephen Wolf explained when the court announced it was taking the case, “Republicans are now asking the Supreme Court to rule that the U.S. Constitution gives state legislatures near-absolute power to set all manner of federal election laws, including district maps—regardless of whether state constitutions place limits on abuses such as gerrymandering.” And this Supreme Court, the one packed by Sen. Mitch McConnell and Donald Trump, is as likely as not to do it.
The theory of independent state legislatures the court is taking up is based on an interpretation in the Constitution’s Elections Clause, which states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” These extremist Republicans interpret that to mean that state legislatures have supremacy in crafting the rules governing federal elections. Supremacy over state courts, over federal courts, over Congress, over governors, over citizen-initiated constitutional amendments.
That means state legislatures having control over who gets to vote, how those votes are counted, and in the case of the Electoral College in presidential elections, who gets to be president.
Wolf points out that the Supreme Court itself is the reflection of those extreme gerrymandered states: “Five of the six GOP appointees were confirmed by Republican Senate majorities that won fewer votes and represented fewer Americans than the Democratic minorities, and three were chosen by a president who was elected despite losing the popular vote.” As of now, four of them—Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—have already signaled that they are sympathetic to the argument. That leaves just Amy Coney Barrett to cast the deciding vote.
There really is only one thing Democrats can do to prevent the Supreme Court from letting the likes of the Ohio legislature bring and end to this whole 233-year-old constitutional experiment: Expand the court. Dilute the malign power of the majority on this court that wants to overthrow a century of progress.
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