You Can't Get to the Super Bowl by Beating the Point Spread Every Week

This is what we call a victory for democracy?

Note: This is an archive post from my off-the-record “Weekend Reading” newsletter.

Since the results of the election became clear, Topic A has been some version of, “How did Democrats do so well?” Or, “how did the Republicans blow it?” These are the wrong questions. Instead, we should be asking how MAGA Republicans did so well. We urgently need to understand how it’s come to be that in January control of the House of Representatives will pass to a fascist, election-denying party, whose congressional members were complicit in a criminal conspiracy to overturn the election, and then did their best to obstruct justice and prevent accountability – and why, rather than asking how this came to be, the media and self-styled defenders of democracy are celebrating it as a victory for democracy.  

Imagine that you’ve been in a coma since 2008 and just woke up. Someone tells you that two years ago, a Republican president launched a far ranging criminal conspiracy to overturn the results of the election he had just lost decisively. His efforts culminated in a deadly attack on the Capitol by an armed mob—a mob that he had summoned and then incited to deadly violence, saying, “If you don't fight like hell, you're not going to have a country anymore.” Then you’re told that a few weeks ago, in the next election, Republicans took control of the House. You would assume Republicans were able to do this because Republican candidates repudiated that president, his failed coup attempt and his preposterously fraudulent claims. 

But, of course, the opposite happened. Nearly every Republican candidate did their best to demonstrate their allegiance to Donald Trump. Moreover, the Speaker-elect voted against certifying the election and did his best to prevent even hearings on the deadly failed coup. The Republican Caucus taking power in January will be even less committed to the peaceful transfer of power than the one it succeeds, having purged nearly every one of its members who voted to impeach Trump the second time. Jim Jordan, who assisted the insurrectionists and refused to testify before the January 6th Committee, will chair the Judiciary Committee, and is already threatening the Justice Department with spurious “investigations.” 

For the first time since before the Civil War, a fascist party has taken control of the House of Representatives. (For new readers, I define a party as fascist if it does not accept legitimate election results and does not reject political violence; check, check.) Furthermore, it is a party led by those who were complicit in the criminal conspiracy and obstructed justice. And, as I’ll explain below, MAGA didn’t capture the House because voters embraced them. In fact, voters decisively rejected MAGA – but in most House races nationwide, MAGA successfully shielded itself from accountability to voters. 

Perhaps just as extraordinary is that many self-styled “democracy” advocates have rushed to claim that “democracy won” – when, in fact, all that happened was that fascism fell short of the savvy class’s expectations for it.

No one is calling attention to any of the consequences of not passing the Freedom to Vote Act, or the consequences of the anti-voting legislation passed by gerrymandered Republican legislatures in response to the “steal.” There’s no outcry against Republicans gaining nearly veto-proof majorities in Wisconsin while getting barely more than half the votes, or that in that state Mandela Barnes lost under the weight of racist crime ads courtesy of a $80 million campaign, funded by local billionaires, that would not have been possible without Citizens United. (And an opportunity to lift up a key victory was missed – Michiganders, saddled with the wreckage of action by similarly gerrymandered majorities, regained control of both chambers after winning an initiative to have lines drawn by an independent commission.)

Instead, along with those self-styled democracy defenders, the guardians of hegemonic truth in the mainstream media have rushed in to assure us that no matter how undemocratic the election seemed, the results themselves still somehow constitute the legitimate consent of the governed. 

This is the first of a multipart series to examine how we got here, and to explore how most of those who have long claimed to be democracy’s defenders bear substantial responsibility for MAGA’s success, even as they celebrate that success as a victory for democracy.

Today, I’ll begin with one piece of the puzzle – the consequences of actions taken and not taken by the Federalist Society majority on the Supreme Court, most recently by handing four seats to the Republicans, and over a longer period by permitting gerrymandered maps that not long ago would have been thrown out either because they violated the Voting Rights Act or they were blatantly partisan. (For more on the Federalist Society Majority, see To the Supreme Court, the Twentieth Century Was Wrongly Decided.) 

It’s astonishing that we’re not seeing more analysis, and more outrage, about the ways in which MAGA line drawing enabled them to win the majority. For more than a year, media outlets including FiveThirtyEight, the New York Times, the Cook Report and others devoted enormous resources to provide insight into how each map would affect each party’s chances. At least half a dozen academic-sponsored sites were providing their own sophisticated commentary on how the maps would affect the parties’ fortunes, as well as offering interactive tools to help voters see how line drawing could affect them. And advocates spent millions of dollars to pass the Freedom to Vote Act, decrying the damage gerrymandered lines could do to the integrity of democracy. 

So much interest in what gerrymandering might do to our politics, and nearly none to what it just did. That is, other than from the media’s shock troops for system justification to make sure that no one questions the next House of Representatives’ legitimacy. And so we are left with a process that was never more transparent, and yet the consequences have never been so opaque.

The Federalist Society Gave MAGA Four Seats

Had the election been conducted using the 2020 maps or the maps federal courts ordered states to use before SCOTUS overturned them, instead of the count being 212D to 220R, it would be 216D to 216R, with five seats yet to be called. In the last year, the Supreme Court’s Federalist Society majority handed Republicans four extra seats, thanks to their decisions allowing four states to use maps in the midterms that violated the Voting Rights Act. In Merrill v. Milligan and Arodin v. Robinson, the Supreme Court ruled that Alabama and Louisiana should reinstate the gerrymandered maps that lower courts had ruled unconstitutional. And when SCOTUS used the “Purcell” principle to justify overturning the lower courts’ rulings, it caused a federal judge in Georgia to find that there, too, maps that were likely unconstitutional could not be re-drawn so close to the election.

To the extent that people mention SCOTUS in connection to the midterm outcome, it’s only about how the Dobbs decision likely helped Democrats. Yet not even voting rights groups are drawing attention to the fact that Federalist Society justices – most of whom were rejected by senators representing a majority of the population at the time – literally handed four seats over to the MAGA Republicans.¹ 

There’s Nothing Fair About these “Fair” Maps

The popular definition of fairness requires district lines to meet two criteria – that neither party is advantaged, and that the voting power of minorities is not reduced. Conventionally, the rough gauge of the fairness of maps is that Democrats and Republicans end up with a share of seats proportional to the votes for their respective party. For districts drawn In 2022, that evaluation was based on how well Biden and Trump did in those new districts. 

I’m going to use David Byler’s “No, gerrymandering didn’t cost Democrats the House” in the Washington Post to explain the shortcomings of many “data-driven” arguments being made using the popular definition of fairness. Most observers come to the same conclusion that Byler does in his graph title - “The 2022 House map was uncompetitive but mostly fair.” They argue that there is gerrymandering on both sides, and these maps are the fairest (to both parties) in a long time, so surely there’s nothing to see here and we should all move on. Essentially, some analysts have concluded that as long as the safe districts more or less “balance out,” it’s no problem that maps are being drawn so that one party completely dominates each district – producing a super majority of  “safe” seats.

But wait a minute! How have we become lulled into such an alienated stupor that we can’t see that artificially uncompetitive districts disenfranchise us as voters even if they don’t provide obvious advantage to one party or the other? While it is certainly true that many communities are very partisan, that is not the reason there should be so few competitive seats. 

Let’s unpack Byler’s chart by (1) comparing how many districts would fall into each category using the lines used in 2020, which themselves were considered to be very gerrymandered at the time, and (2) comparing the trends to more or less competitive districts by who drew the lines. No surprise – Republican maps delivered 5 percent fewer competitive districts (in the same states, using the same 2020 results), while the independently drawn maps created 3 percent more competitive districts.  

(The table below does not include districts that were 10+ Trump/Biden.)

The erasure of this reality is possible because the political class mistakes our calcified voting for strong support for one party or the other when, in fact, only two thirds of Americans readily identify with one party or the other. The other voters can take little solace in knowing that gerrymandering has benefited each side equally. 

So, besides giving voters more options, why do competitive elections matter? 

The Insurrectionist Protection Racket Shielded MAGA from Accountability

This cycle, it was nearly impossible for a pro-insurrectionist MAGA Republican to be voted out of office. This was by design. 

Just hours after a deadly attack on the Capitol that was intended to overturn the election, 139 MAGA Republicans voted to overturn the election—results that they knew were legitimate at the time, as confirmed by testimony from Bill Barr and others. 

Of 122 pro-insurrectionist Republicans who were on the ballot, an astonishing 94 percent faced no possibility of electoral consequences for trying to overthrow the duly elected president. Overall, only seven Republicans who voted against certifying the results of the election ran in a district that even appeared in the Cook Ratings (likely Republican, lean Republican or toss-up), and two of them lost. On the other hand, of the nine who voted to certify who ran in competitive districts, eight won.

This was no accident. Of those 122 Republicans who voted against the election, 90 were in states in which Republicans drew the lines. Republican line drawers made sure their districts were safe. Of those 90, 89 of them were put in safe districts. Only one was put in a competitive district. (Seriously, just one.)

To understand how extraordinary this election was, and the extent to which voting against certifying the Electoral College vote or denying the legitimacy of the election had an impact, consider this chart with the final Cook ratings for the last three cycles. Ordinarily, the president’s party wins only a third of the toss-up races, but in 2022, Democrats have won three quarters of them. In previous cycles the president’s party lost a few races that were considered likely or lean to them, but not in 2022– Democrats lost none. And the president’s party previously didn’t win any seats that were lean or likely to the out party; this time Democrats picked up a few seats in that category too. 

And, if there was any doubt about how important high visibility for MAGA was, consider the difference between states with and without at least one high visibility race. Democrats have won 89 percent of the toss-up House races in such states. Again, that’s compared to only a third in 2014 and 2018. 

Remember that all of this happened when Biden had historically low approval ratings. Democrats succeeded in winning over many of the “meh voters” – those who “somewhat disapprove” of Biden, but nonetheless said they would vote for Democrats. There’s little evidence that voters were inspired by a sudden surge of enthusiasm for Democrats. These midterm results showed us that in this moment, America’s “partisan divide” is largely driven by opposition to one party – and not just Republicans, but specifically MAGA Republicans. 

Counterfactual: 2020 with Fair (to Voters) Districts

Political parties will always gerrymander if they can; they can’t help themselves. In the past, courts have often intervened to overrule the most egregious partisan maps. But, beginning with Rucho, the Federalist Society majority on the Supreme Court opened the door wide to more egregious partisan gerrymandering. And with Shelby, the Federalist Society justices eliminated federal oversight over election law changes in states with a history of discrimination, which paved the way for states to draw maps that disadvantaged minorities.

Both the success of ballot initiatives to create commissions, as well as polling, confirms that voters prefer line drawing that is fair to them to districts drawn by politicians. No surprise there. Voters regularly pass initiatives to create independent commissions to draw lines instead. Of the 432 districts with races called when I did the math, 127 were either drawn by independent commissions or by divided government.

So, I looked at the elections in a way which better simulates the results we’d likely see with truly fair districts. Since both Democrats and Republicans have been gerrymandering to their advantage, I took the states where either party drew the lines and assigned them as many seats as they should have won according to the share of the vote the candidates’ parties received on November 8th. And then for states whose districts are drawn by truly independent commissions and/or divided state legislatures, I just took the November 8th results. 

The chart below shows what the current House seat count would be without the past decade of gerrymandering rulings. Even with three races to be called, Democrats would retain their majority, losing at most one seat.

This Is What We Are Celebrating?

Waking from your coma, you might expect this election to be an accountability moment. And it was. Except, it was accountability for those who didn’t go along with the insurrection. Of the 74 House Republicans who voted to certify, 6 lost their primaries and 13 retired rather than face a similar fate. On the other hand, of the 122 who voted against certifying and were not running for another office, only 2 lost primaries and 2 lost in the general election. (And one of the primary losers was Madison Cawthorne, who did not have the support of the Republican leadership after making wild charges against them.) 

Thus, the Congress that will convene in January will have more members who deny the legitimacy of the presidential election than this one. The deniers will be led by a Speaker who is one of them – who did his best to obstruct justice and protect the criminal president, and attacked those who sought the truth (including fellow Republicans and career professionals at the Department of Justice) as partisan witch hunters. 

For decades self-styled democracy advocates have been warning of the dangers of gerrymandering. Yet today, when the gerrymandering has actually led to the seizure of the House of Representatives by a fascist party unwilling to commit even to the peaceful transfer of power (unless it’s to them), instead of shouting from the rooftops that what they warned of has happened, those advocates celebrate. 

We can say that democracy narrowly escaped total defeat. That’s not the same thing as saying it won. And the reason we got this outcome is not because voters showed up in droves for Democrats, or even for democracy. 

Is This Democracy Still Worth Celebrating? 

Here, I’ll briefly introduce an idea that I plan to develop further in the coming weeks. During the Cold War, “democracy” was given credit for unprecedented growth and shared prosperity enjoyed by many, though not all, Americans. Democracy was enormously popular not because the masses appreciated its procedural genius, but because it consistently delivered the goods. 

But, over the last 50 years, the United States went from being one of the most equal countries in the Western World in terms of wealth and income to the most unequal, with real median household income barely increasing over the last fifty years. It has been one of the world's greatest impediments to more rapid transition away from fossil fuels; is the only major nation in the Western world where life expectancy was decreasing for sizable segments of its population even before COVID; and has become stingier in its provision of basic needs even as it has regularly reduced taxes on its most affluent citizens by trillions of dollars and protected the profits of the military-industrial complex. And no “Western democracy” maintains a racialized carceral state as massive as ours, or permits so much proliferation of firearms with such indifference to its consequences. 

And so, if we understand that for most people the word “democracy” comes down to what it delivers, it should be obvious why so little enthusiasm remains for a system that was once creating hope, distributing shared prosperity, and enacting greater freedoms, but has now reversed itself. Instead, the system now rationalizes the inequality generated by corporate neoliberalism’s tax cuts for the rich, diminished public services, the return of financial crisis unleashed by deregulation, trade agreements that deindustrialized the economy – and now, paying the debt to the Christian nationalists whose votes they needed, taking away hard won freedoms and civil rights. 

But, democracy is still delivering the goods for the political class, whose lives, for the most part, have not been diminished by any of the problems above. And so they sacralize rule-following at any cost, and are bewildered when voters can’t see what democracy has done for them. 

Fortunately, on November 8th, just enough voters in Arizona, Michigan, Nevada, Pennsylvania and Wisconsin did understand the stakes to keep the fascists at bay there. Unfortunately, the Supreme Court and the rest of the MAGA nation within a nation were more than a match for us in the House. 

So, let’s stop celebrating beating the spread, and recognize that we are now one step closer to being eliminated from the playoffs.

1. I am not including the Court ordered rewrite for New York because that is something that reasonable people might disagree with – my goal for this post is to show that you don’t have to pile up a bunch of ifs to get to the conclusion I reach.