Over the past couple of days, CNN legal analyst Jeffrey Toobin has been giving a preview of how journalists and other liberals are going to keep trying to blame gerrymandering for Republican power no matter what the facts are.
As he fearmongered about the possibility that the U.S. Supreme Court will rule that state legislatures can overrule the popular vote and the courts by choosing their electors for presidential elections, he incorrectly claimed that state legislatures in Arizona and Pennsylvania have been heavily gerrymandered, making the bodies very right wing.
On Thursday's At This Hour with Kate Bolduan, Toobin claimed:
And what that means is that these legislatures -- especially in states like Pennsylvania and Wisconsin and Arizona -- which are very conservative and very much gerrymandered by the legislatures can do whatever they want. And they can't be reviewed -- their decisions can't be reviewed by the state courts. It's a license to these very conservative state legislatures to decide and resolve elections any way they want...
He made similar claims again on Friday's New Day show.
But, in fact, Arizona has been using independent commissions to redraw its districts since 2002. Pennsylvania also recently used a commission to redraw its districts for the next decade. Two Democrat leaders joined a GOP leader and the commission's independent chair approved new lines 4-1, leaving the state's Republicans complaining about the new lines. And Arizona's legislature in recent years has only had narrow Republican majorities.
And in Wisconsin, it is arguable that the new districts were adopted even-handedly since the state supreme court sided with the Democratic governor on the congressional districts while siding with the Republicans on state legislative districts. It's not as cartoonish as Toobin presents it.
And on Friday, Toobin also claimed that the Pennsylvania state legislature tried to help Donald Trump but were stopped by the courts even though the Republican leaders released a statement refusing to choose the electors for Trump and argued against a legislature just choosing the electors in defiance of the state's popular vote, citing state law. On Friday, Toobin claimed:
Pennsylvania has a very conservative, right-wing legislature, which was trying to help Donald Trump in the post-election period, but the court said, "No, you have to follow the law, and you can't just make up new rules as you go along to help the candidate you like." The courts were a check, as they are, in our system. If this independent legislature law -- that's the doctrine of law -- were in effect -- the legislature could have done whatever it wanted, including declare Trump the winner, notwithstanding the fact that Biden won by tens of thousands of votes.
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Transcripts follow. Click "expand" to read more.
CNN's At This Hour
June 1, 2022
11:10 a.m. Eastern
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: What the decision means in real terms is that little to nothing is going to be done about climate change. And that's what Justice Kagan's dissent is really about, is that this is punishing the planet because of the legal theories of the conservatives on the court.
KATE BOLDUAN: Adding to this, Joan, is a little bit of -- I'm going to call it a head scratcher and you tell me if I'm wrong. Is it surprising that the court even took -- took up this EPA case since neither of the actual regulations in question in this case are currently in effect?
JOAN BISKUPIC, CNN LEGAL ANALYST: Kate, your premise is they shouldn't have taken it up. That's right. It's not surprising given how aggressive they've been on this topic. Back in 2016, one of the last acts that the late Justice Antonin Scalia took was to vote against the clean power plan just as a kind of emergency injunction, and Justice Elena Kagan notes that, from the start, this court has obstructed this original Obama plan and now, of course, is making it harder for President Biden to do anything.
So it was surprising in that there is actually no policy in place -- not by either President Obama or even former President Trump who wanted to roll it back with his own plan. So that part was surprising, but it was aggressive, and it fits with this pattern. And that's why Justice Kagan said this is -- she uses the word "frightening" -- this is such a "frightening" decision given the scope that it does here. And clearly this step by step move toward really tying any administration's hands on regulation, particularly here for environmental protection, that's so important.
(...)
TOOBIN: What this case asserts is that only the legislature can decide how legislation -- how elections are conducted, and the courts are not allowed to intervene at all. And what that means is that these legislatures -- especially in states like Pennsylvania and Wisconsin and Arizona -- which are very conservative and very much gerrymandered by the legislatures can do whatever they want. And they can't be reviewed -- their decisions can't be reviewed by the state courts. It's a license to these very conservative state legislatures to decide and resolve elections any way they want, including the drawing of district lines.
BOLDUAN: The landscape is already gerrymandered and unfair. It's -- this feels like heading towards the Wild West
(...)
CNN's New Day
July 1, 2022
6:21 a.m. Eastern
TOOBIN: At least four members of the court have said state courts have no right to intervene. And so what that means is, in states like Pennsylvania, Wisconsin, Arizona, these extremely right-wing legislatures with strictly gerrymandered seats can make any sort of rules they want in legislatures in their states without any sort of oversight from the courts. Which would give them carte blanche to draw districts and maybe even simply declare the winners of state races. It's an enormously important case for how elections were conducted all over the country.
BRIIANNA KEILAR: Because explain, Jeffrey, how that could have come into play in 2020 and how it might come into play in 2024, depending on how they rule.
TOOBIN: For example, Pennsylvania. Pennsylvania has a very conservative, right-wing legislature, which was trying to help Donald Trump in the post-election period, but the court said, "No, you have to follow the law, and you can't just make up new rules as you go along to help the candidate you like." The courts were a check, as they are, in our system. If this independent legislature law -- that's the doctrine of law -- were in effect -- the legislature could have done whatever it wanted, including declare Trump the winner, notwithstanding the fact that Biden won by tens of thousands of votes.
