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The Anti-Majoritarian Difficulty


The gerrymander the Supreme Court left in place for the 2018 election had its predictable effects:

Tony Evers narrowly defeated three-term incumbent Gov. Scott Walker by 30,500 votes on Nov. 6. In 2016, Wisconsin went for Donald Trump by a margin of 23,000 votes. The state has sent a progressive and a tea partier to the U.S. Senate — back-to-back, twice. Wisconsin is a purple state. Yet, the state Assembly is a sea of red. That’s what voters want, according to Assembly Speaker Robin Vos.

“There’s no doubt about it that the voters across Wisconsin affirmed our record, the record of our party, and the agenda that we have put forward over the past eight years,” Vos (R-Rochester) told the Assembly Republican Caucus on Nov. 12. “Some will say, the only reason that we are here is because of redistricting. That is a faulty premise…. We are the ones that were given a mandate to govern.”

Despite Democrats winning every statewide office on the ballot and receiving 200,000 more total votes, Republicans lost just one seat in Wisconsin’s lower house this cycle. And that victory was by a razor-thin 153 votes. Democrats netted 1.3 million votes for Assembly, 54 percent statewide. Even so, Vos will return to the Capitol in 2019 with Republicans holding 63 of 99 seats in the Assembly, a nearly two-thirds majority.

Vos likes to frame it this way: If you discount uncontested races — a third of the entire Assembly — Republicans won 58 percent of the vote.

“That seems like a mandate to me,” Vos told his caucus. “What do you think?”

Democratic minority leader Gordon Hintz (D-Oshkosh) doesn’t see it that way. He says his party is “competing on the most uneven playing field in the United States” because Republicans have “disenfranchised thousands of Democrats.”

An electoral map that makes it essentially impossible for a majority to be represented is not consistent with democracy. And the results in Ohio and North Carolina were similar. Alas, the only thing that has changed in the Supreme Court is that while Anthony Kennedy would make a bad faith show of open-mindedness about applying the 14th Amendment to these cases Justice Bart O’Kavanaugh won’t even pretend.

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