ON ABORTION, ALITO INVOKES DEMOCRACY IN THE STATES, WHERE IT MIGHT BE DEAD

Jamelle Bouie notes that Samuel Alito's draft abortion decision imagines reproductive rights being decided via representative democracy.

“In some states,” [Alito] writes, “voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized.” Voters in other states, he continues, “may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’” He concludes that “Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

However, as Bouie notes, democracy at the state level doesn't always work.

But, Alito might say, if voters do not want their states to ban abortion, they can elect representatives who will then take steps to protect it.

That’s not so simple. Thanks to Alito’s own votes and opinions (and those of his conservative colleagues) in Shelby County v. Holder, Rucho v. Common Cause and Brnovich v. Democratic National Committee, state legislatures have nearly free rein to restrict voting, gerrymander in a hyperpartisan fashion and otherwise insulate themselves from democratic accountability.

A pro-Roe electoral majority might exist in Wisconsin, but the state Republican Party has gerrymandered itself into durable control of the legislature; it only needs a minority of voters to win a majority of seats. The same is true in states like Ohio and North Carolina where — according to a New York Times analysis of public opinion data — most adults support Roe.

In other words, there are a number of states — home to tens of millions of Americans — where voters may not actually have the power to elect lawmakers to protect the abortion rights they say they want.

I talk about this a lot, as regular readers know. Let's look at some numbers.

In Wisconsin -- where, according to the Pew poll, 53% of respondents want abortion to be legal in all or most cases -- here's how legislative elections go:

A Wisconsin State Journal analysis of unofficial vote totals in Wisconsin legislative races [in 2020] shows that Democratic candidates received 46% of total votes cast in state Assembly races, but ended up with only 38 of 99 seats after winning two new districts. In state Senate races, Democratic candidates secured about 47% of total votes, but only picked up 38% of the seats on the ballot and now control only 12 of 33 seats....

This ... voting breakdown wasn’t as stark as in 2018, when ... Democratic Assembly candidates secured about 53% of total votes cast, but they only ended up with 36% of the chamber’s seats. In 2016, Republicans garnered 52% of votes cast, yet won 65% of the Assembly seats.

In North Carolina in 2018, Democrats won the majority of legislative votes, but couldn't win a majority of seats:

North Carolina Democrats prevailed in the popular vote by 79,000 votes but won 54 out of 120 seats.

North Carolinians want abortion legal in all or most cases by a 49%-45% margin, according to Pew.

In Pennsylvania, where legal abortion is favored 51%-44% according to Pew, a majority vote for Democrats in 2018 couldn't elect a Democratic majority to the legislature:

Democratic candidates won 2.52 million votes, or about 54.1 percent of the two-party vote, meaning votes for either a Republican or Democratic candidate....

But their share of state House seats is significantly lower than the percentage of votes they received. Democrats won 93 out of 203 seats, or about 45.8 percent of the seats up for grabs.

Pennsylvania could elect a Christian nationalist as governor to go along with its GOP legislature. What happens to abortion rights in Pennsylvania then?

Michigan (in favor of legal abortion 54%-42%, according to Pew) has an extremely gerrymandered legislature:

In [2018] state House of Representatives races, 52 percent of Michigan voters voted for Democrats and 47 percent of Michiganders voted for Republicans. But Republicans kept a 58-52 majority.

Likewise, Democrats picked up additional seats in the state Senate, but still found themselves on the minority end of a 22-16 split. That's despite Democratic candidates besting Republicans 51 to 47 percent on the aggregate....

In 2014, ... Republicans won more [state Senate] votes than Democrats and won the majority, but the results weren't proportional. Republicans got 50.4 percent of the votes that year, but won 71 percent of the seats in the Senate.

If Democrats need a landslide total-vote victory in a state to win a bare majority of the legislature, but Republicans can win it while losing the overall popular vote, then the playing field is not level and democracy at the legislative level is dead or pretty close to it. And this is where the Federalist Society justices want abortion to be decided.