1 00:00:00,120 --> 00:00:04,720 Speaker 1: It's a case that could have profound ramifications on American elections. Today, 2 00:00:04,760 --> 00:00:07,440 Speaker 1: the Supreme Court announced that it will consider whether judges 3 00:00:07,480 --> 00:00:10,239 Speaker 1: can throw out election maps for being so partisan they 4 00:00:10,360 --> 00:00:13,360 Speaker 1: violate the Constitution. The Court has never found a plan 5 00:00:13,560 --> 00:00:18,320 Speaker 1: unconstitutional because of partisan gerrymandering. Our guests are Rick Hassan, 6 00:00:18,400 --> 00:00:21,079 Speaker 1: professor at U c Irvan and founder of the Election 7 00:00:21,200 --> 00:00:24,520 Speaker 1: Law Blog, and Josh Douglas, professor at the University of 8 00:00:24,560 --> 00:00:28,120 Speaker 1: Kentucky Law School. Rick, will you start by describing the 9 00:00:28,160 --> 00:00:31,840 Speaker 1: case from Wisconsin that the justices will be considering. This 10 00:00:32,000 --> 00:00:36,000 Speaker 1: is one of a number of cases involving partisan gerrymandering 11 00:00:36,680 --> 00:00:38,879 Speaker 1: that has been working his way up the courts. The 12 00:00:38,920 --> 00:00:42,960 Speaker 1: claim here is that Wisconsin is basically a fifty fifty 13 00:00:43,000 --> 00:00:46,880 Speaker 1: state between Democrats and Republicans, but the Republican state legislature 14 00:00:46,960 --> 00:00:49,080 Speaker 1: drew the lines for their General Assembly in such a 15 00:00:49,120 --> 00:00:52,400 Speaker 1: skewed way to help Republicans that Republicans are able to 16 00:00:52,600 --> 00:00:55,520 Speaker 1: capture many more seats than would be done if it 17 00:00:55,600 --> 00:00:59,400 Speaker 1: were a fairly drawn district. Josh, the last time the 18 00:00:59,440 --> 00:01:01,800 Speaker 1: Supreme weren't really dealt with this issue was back in 19 00:01:01,880 --> 00:01:05,880 Speaker 1: twenty four. Can you describe where the Court left us 20 00:01:05,920 --> 00:01:10,160 Speaker 1: after that case. Yeah, well, the Court didn't answer questions 21 00:01:10,200 --> 00:01:14,040 Speaker 1: as much as provided more of them. Uh. For justices 22 00:01:14,720 --> 00:01:17,840 Speaker 1: Uh said that there was no standard by which to 23 00:01:17,920 --> 00:01:21,480 Speaker 1: test a partisan jmander. That is, courts basically shouldn't be 24 00:01:21,520 --> 00:01:24,240 Speaker 1: involved in resolving these kinds of cases because it was 25 00:01:24,280 --> 00:01:27,400 Speaker 1: not of a judicial nature and estead as a political question. 26 00:01:28,160 --> 00:01:31,920 Speaker 1: The four other justices, four so called liberal justice each 27 00:01:32,000 --> 00:01:34,319 Speaker 1: came up with a standard. Uh. They said, here's a 28 00:01:34,319 --> 00:01:37,000 Speaker 1: good standard for courts to use, and we think it's acceptable. 29 00:01:37,360 --> 00:01:39,600 Speaker 1: And Justice Kennedy was in the middle and he said, 30 00:01:40,560 --> 00:01:43,240 Speaker 1: I don't like any of the standards that anyone has 31 00:01:43,240 --> 00:01:45,679 Speaker 1: proposed so far, but I'm not going to close the 32 00:01:45,720 --> 00:01:47,960 Speaker 1: door to any future standard emerging. So you had with 33 00:01:48,040 --> 00:01:51,880 Speaker 1: kind of a four one four decision in which Justice 34 00:01:51,960 --> 00:01:54,440 Speaker 1: Kennedy holds all the keys to power. If he likes 35 00:01:54,440 --> 00:01:56,960 Speaker 1: the standards, then maybe we'll have the ability to police 36 00:01:56,960 --> 00:01:59,680 Speaker 1: partisan jerrymandering. If he doesn't, then there'll be no way 37 00:01:59,720 --> 00:02:02,720 Speaker 1: for course to do so. So Rick, the Court has 38 00:02:02,760 --> 00:02:06,639 Speaker 1: been reluctant to take up partisan jerrymandering since that case. 39 00:02:07,520 --> 00:02:10,880 Speaker 1: Why did they take up this case? Well, there was 40 00:02:10,919 --> 00:02:13,120 Speaker 1: a there was one other case where the Court looked 41 00:02:13,120 --> 00:02:17,440 Speaker 1: at Parson Jerremanry since then involving mid decade redistricting in Texas. 42 00:02:17,440 --> 00:02:19,520 Speaker 1: But you're right that this is the first one. And 43 00:02:19,560 --> 00:02:22,000 Speaker 1: I think the reason, or one reason the Court may 44 00:02:22,040 --> 00:02:24,040 Speaker 1: have taken the case is that it came up in 45 00:02:24,080 --> 00:02:27,280 Speaker 1: an unusual way. Most cases come up they go to 46 00:02:27,639 --> 00:02:30,920 Speaker 1: a district court, then they go to a three judge 47 00:02:30,919 --> 00:02:33,320 Speaker 1: appeals court, and eventually worked their up to the Supreme 48 00:02:33,360 --> 00:02:36,120 Speaker 1: Court on what's called a certain petition. This case came 49 00:02:36,200 --> 00:02:40,040 Speaker 1: up directly from a three judge appeals court. I thought, 50 00:02:40,040 --> 00:02:42,600 Speaker 1: I'm sorry at three judge district court directly on appeal 51 00:02:42,639 --> 00:02:44,760 Speaker 1: to the Supreme Court. And when case has come up 52 00:02:44,760 --> 00:02:47,760 Speaker 1: in this unusual way, when the Supreme Court decides not 53 00:02:47,840 --> 00:02:50,000 Speaker 1: to hear that case, it means the lower court got 54 00:02:50,240 --> 00:02:53,640 Speaker 1: the ruling right. And so this was a rare case 55 00:02:53,639 --> 00:02:56,560 Speaker 1: where a lower court said, yes, this is a partisan gerrymander. 56 00:02:56,800 --> 00:02:58,840 Speaker 1: And so if the Court decided not to hear that case, 57 00:02:59,480 --> 00:03:02,360 Speaker 1: it would have at the signal that yes, courts are 58 00:03:02,400 --> 00:03:04,320 Speaker 1: in the business of policing these things, but we're not 59 00:03:04,360 --> 00:03:06,720 Speaker 1: going to tell you what the standard is, how you're 60 00:03:06,720 --> 00:03:09,520 Speaker 1: supposed to do it. Because this ruling would just mean 61 00:03:09,560 --> 00:03:12,239 Speaker 1: the lower court got it right, not necessarily that it's 62 00:03:12,639 --> 00:03:16,280 Speaker 1: reasoning was correct, and so it would have left so 63 00:03:16,320 --> 00:03:18,280 Speaker 1: many questions if the Court didn't hear the case. I 64 00:03:18,280 --> 00:03:20,239 Speaker 1: really would have been shocked if the Court didn't take 65 00:03:20,280 --> 00:03:23,120 Speaker 1: it to clarify this. So I wouldn't necessarily take it 66 00:03:23,240 --> 00:03:25,400 Speaker 1: as the fact that the Court agreed to hear this 67 00:03:25,440 --> 00:03:27,840 Speaker 1: case as meaning the Court is really ready to start 68 00:03:27,840 --> 00:03:29,639 Speaker 1: policing these things. It really is going to come down 69 00:03:29,680 --> 00:03:32,960 Speaker 1: to Justice Kennedy and the fact that the Court an 70 00:03:32,960 --> 00:03:36,520 Speaker 1: hour after issuing it's order that will hear the case, 71 00:03:36,800 --> 00:03:40,440 Speaker 1: issued another order that it would not stay a lower 72 00:03:40,440 --> 00:03:43,480 Speaker 1: court order to redistrict in the meantime, means that there 73 00:03:43,560 --> 00:03:47,280 Speaker 1: is maybe some skepticism about what the lower court did, Josh, 74 00:03:47,320 --> 00:03:52,000 Speaker 1: As you suggested earlier back in Justice Kennedy said, I 75 00:03:52,040 --> 00:03:55,360 Speaker 1: haven't seen any standards that would let us judge what 76 00:03:55,600 --> 00:03:59,560 Speaker 1: is an unconstitutional partisan jerrymandering. How did the lower court 77 00:03:59,600 --> 00:04:02,280 Speaker 1: in this case deal with that? What was the standard 78 00:04:02,360 --> 00:04:05,560 Speaker 1: that it it suggested? Well, this is a new standard 79 00:04:05,680 --> 00:04:08,760 Speaker 1: that was created by low professor Nick Stephanopolis and a 80 00:04:08,760 --> 00:04:12,600 Speaker 1: political scientist Eric McGee called the efficiency gap and was 81 00:04:12,640 --> 00:04:15,880 Speaker 1: getting without getting two technical into the details of it. 82 00:04:16,200 --> 00:04:19,160 Speaker 1: The basic gist is that it's a mathematical way to 83 00:04:19,400 --> 00:04:22,440 Speaker 1: look at the maps performance UH and see if it's 84 00:04:22,480 --> 00:04:26,040 Speaker 1: skewed towards one board party or another and the lower 85 00:04:26,040 --> 00:04:29,440 Speaker 1: record UH. You recognize that just Kennedy had left the 86 00:04:29,480 --> 00:04:32,240 Speaker 1: door open to a standard and it was a two 87 00:04:32,279 --> 00:04:37,320 Speaker 1: to one decision, agreed with the efficiency gap standard, modified 88 00:04:37,360 --> 00:04:38,960 Speaker 1: it a little bit and came up with a test 89 00:04:39,000 --> 00:04:42,320 Speaker 1: that it thought was judicially manageable and that would pass 90 00:04:42,440 --> 00:04:48,000 Speaker 1: Justice Kennedy's UH test or hope for meaningful standard to emerge. 91 00:04:48,000 --> 00:04:50,200 Speaker 1: And I think one of the key points here is 92 00:04:50,240 --> 00:04:54,520 Speaker 1: that it's a fairly preciser technical standard UH that in 93 00:04:54,640 --> 00:04:57,040 Speaker 1: theory should be easy to apply, and that's one thing 94 00:04:57,040 --> 00:04:59,800 Speaker 1: that T. Kennedy was looking for. We're talking about this 95 00:05:00,040 --> 00:05:02,520 Speaker 1: Preme Court deciding today to take up a case on 96 00:05:02,680 --> 00:05:06,240 Speaker 1: partisan gerrymandering. We're talking with Rick Hassion and professor at 97 00:05:06,320 --> 00:05:08,640 Speaker 1: U c Irvine and founder of the Election Law Blog, 98 00:05:08,680 --> 00:05:13,800 Speaker 1: and Josh Douglas, professor at the University of Kentucky Law School. Rick, 99 00:05:14,160 --> 00:05:18,279 Speaker 1: can you talk about the politics of jerrymandering and whether 100 00:05:18,360 --> 00:05:22,520 Speaker 1: this case has the potential to have a profound effect 101 00:05:22,760 --> 00:05:25,640 Speaker 1: on that and the American election system just you know 102 00:05:25,760 --> 00:05:32,040 Speaker 1: a small question there, right. So I think that the uh, 103 00:05:32,360 --> 00:05:37,400 Speaker 1: the willingness of political uh parties to jerrymander is is 104 00:05:37,400 --> 00:05:40,280 Speaker 1: well established. And um, the reason this has become more 105 00:05:40,320 --> 00:05:44,160 Speaker 1: of a partisan issue with Democrats um being warenched in 106 00:05:44,200 --> 00:05:46,920 Speaker 1: reigning this in the Republicans is that Republicans control more 107 00:05:46,960 --> 00:05:51,480 Speaker 1: state legislatures and therefore they engage in this process more uh. 108 00:05:51,520 --> 00:05:53,520 Speaker 1: And so so I think it does become a kind 109 00:05:53,680 --> 00:05:58,080 Speaker 1: of uh partisan issue. Uh. And if the Court actually 110 00:05:58,120 --> 00:06:00,680 Speaker 1: reigned in partisan gerrymaner, I think we would see would 111 00:06:00,680 --> 00:06:03,440 Speaker 1: be more Democratic seats overall. That wouldn't be true in 112 00:06:03,480 --> 00:06:06,599 Speaker 1: every state, but across the board, and this also would 113 00:06:06,600 --> 00:06:09,719 Speaker 1: affect Congress. I think a state legislature is generally the 114 00:06:09,720 --> 00:06:13,120 Speaker 1: ones that draw districts for Congress, and they'll they'll engage 115 00:06:13,120 --> 00:06:17,839 Speaker 1: in partison gerry managering there too. That said, uh, it's 116 00:06:17,880 --> 00:06:21,680 Speaker 1: not clear that the Court's agreeing to police parton gerrymandering 117 00:06:21,760 --> 00:06:23,920 Speaker 1: is going to have a huge effect on the number 118 00:06:23,960 --> 00:06:28,159 Speaker 1: of seats that are Republican or Democrat, in part because 119 00:06:28,200 --> 00:06:32,680 Speaker 1: Democrats tend to cluster in cities and so there's kind 120 00:06:32,720 --> 00:06:36,320 Speaker 1: of a natural benefit to Republicans as districts are drawn, 121 00:06:36,440 --> 00:06:39,279 Speaker 1: and a natural disadvantage to Democrats. So it's not really 122 00:06:39,279 --> 00:06:41,839 Speaker 1: clear that would have that effect. It's also not clear whether, 123 00:06:42,160 --> 00:06:45,400 Speaker 1: as some people claim, reigning in partsonerry managering would produce 124 00:06:45,480 --> 00:06:50,279 Speaker 1: more moderate candidates as Um, you know, a way to 125 00:06:50,320 --> 00:06:53,039 Speaker 1: try to cure the polarization in our Congress and in 126 00:06:53,080 --> 00:06:56,919 Speaker 1: our state legislatures, Joshua. While it may be unusual for 127 00:06:56,920 --> 00:07:00,240 Speaker 1: the court to directly consider partisan jerry managering, we've had 128 00:07:00,279 --> 00:07:04,440 Speaker 1: an awful lot of racial jerrymandering cases at the Supreme Court. 129 00:07:04,760 --> 00:07:09,240 Speaker 1: Can you connect the two forests? What's the intersection between 130 00:07:10,040 --> 00:07:13,920 Speaker 1: racial jerrymandering cases in the Court's decisions there and this 131 00:07:13,960 --> 00:07:17,720 Speaker 1: partisan jerrymandering issue. Well, I think there's there's two connections, 132 00:07:17,760 --> 00:07:20,920 Speaker 1: and and Rick has a new paper out that fleshes 133 00:07:20,960 --> 00:07:26,200 Speaker 1: is out quite nicely. Um. And the connections here are one. 134 00:07:26,480 --> 00:07:30,680 Speaker 1: Race and party now have become so intertwined. That is 135 00:07:30,720 --> 00:07:35,000 Speaker 1: to say that racial minorities tend to vote democratic, uh, 136 00:07:35,040 --> 00:07:38,320 Speaker 1: and white majorities tend to vote more Republican. Of course 137 00:07:38,320 --> 00:07:40,440 Speaker 1: that's not universal, but I feel like because the numbers 138 00:07:40,200 --> 00:07:43,440 Speaker 1: of those are the trend especially for racial minorities. And 139 00:07:43,480 --> 00:07:46,680 Speaker 1: so you have a link between Toronto trying to draw 140 00:07:46,800 --> 00:07:50,360 Speaker 1: lines on the basis of politics and doing so on 141 00:07:50,400 --> 00:07:52,560 Speaker 1: the basis of race. And in fact, some states have 142 00:07:52,680 --> 00:07:58,040 Speaker 1: defended their their maps on racial jerrymandering challenges by saying, no, 143 00:07:58,160 --> 00:08:02,720 Speaker 1: we're not drawing lines based on race, only concerned about politics. 144 00:08:03,320 --> 00:08:05,440 Speaker 1: So so their linked. And then the second thing I'd 145 00:08:05,440 --> 00:08:08,840 Speaker 1: say is that some plaintiffs have used the racial jerrymandering 146 00:08:09,440 --> 00:08:13,480 Speaker 1: doctrine to attack what are really partisan jerrymanders because of 147 00:08:13,480 --> 00:08:15,920 Speaker 1: that linkage. And so if the court were to adopt 148 00:08:15,920 --> 00:08:19,559 Speaker 1: the standard now for partisan jerreymandering, that would cut out 149 00:08:19,680 --> 00:08:21,720 Speaker 1: the argument that, well, we were really trying to do 150 00:08:21,760 --> 00:08:24,360 Speaker 1: this for politics and not for a race. So I 151 00:08:24,400 --> 00:08:27,480 Speaker 1: think they are very much intertwined. Um, But there's been 152 00:08:27,520 --> 00:08:30,960 Speaker 1: no standard to police partisan jerrymandering as of yet. If 153 00:08:31,000 --> 00:08:34,240 Speaker 1: the court agrees with this standard, then there'll be another 154 00:08:34,320 --> 00:08:36,400 Speaker 1: line of attack. You wouldn't have to go after a 155 00:08:36,440 --> 00:08:39,960 Speaker 1: partisan jerrymander under the guys or racial jerrymander. You should 156 00:08:40,000 --> 00:08:43,200 Speaker 1: go after the partisan gerrymander directly. So Rick in this 157 00:08:43,280 --> 00:08:47,480 Speaker 1: Wisconsin case, the plaintiffs pushed a plan called the Efficiency gap, 158 00:08:48,440 --> 00:08:51,960 Speaker 1: and the lower court didn't endorse it completely. What is 159 00:08:52,040 --> 00:08:55,760 Speaker 1: that plan and what's your opinion of it? Right, So 160 00:08:56,120 --> 00:08:59,559 Speaker 1: the task in in all of these partisan gerrymandering cases 161 00:08:59,640 --> 00:09:03,320 Speaker 1: is fixing out when consideration of political party information is 162 00:09:03,360 --> 00:09:06,920 Speaker 1: too much. Uh. There's a legitimate reason to consider political 163 00:09:06,920 --> 00:09:09,199 Speaker 1: party information when you're drawing districts, because you want to 164 00:09:09,240 --> 00:09:12,480 Speaker 1: put people who have similar ideas together in the same district. 165 00:09:12,559 --> 00:09:15,480 Speaker 1: That way a representative can best represent to that district. 166 00:09:15,480 --> 00:09:18,360 Speaker 1: It would be uh, kind of a strange situation if 167 00:09:18,400 --> 00:09:20,880 Speaker 1: if districts kept changing, if they were saying half Democrats 168 00:09:20,880 --> 00:09:24,880 Speaker 1: and have Republicans, and they kept shifting every couple of years, Uh, 169 00:09:24,920 --> 00:09:27,000 Speaker 1: that might not be great for representation. So all the 170 00:09:27,040 --> 00:09:30,479 Speaker 1: jice agree that okay to look at some party information, 171 00:09:30,559 --> 00:09:33,080 Speaker 1: and the question is how much is too much. In 172 00:09:33,120 --> 00:09:35,240 Speaker 1: the VF case, which was mentioned earlier, the two thousand 173 00:09:35,280 --> 00:09:37,960 Speaker 1: four case, there were I think at least six different 174 00:09:38,000 --> 00:09:41,320 Speaker 1: standards that were put forward before Justice Kennedy, and each 175 00:09:41,360 --> 00:09:44,360 Speaker 1: one of them he rejected as not sufficiently manageable as 176 00:09:44,360 --> 00:09:47,880 Speaker 1: a standard. And so what's been happening since VIFS the 177 00:09:47,920 --> 00:09:50,040 Speaker 1: planets have tried to come up with other standards and 178 00:09:50,400 --> 00:09:54,640 Speaker 1: the standard that the Planets latched onto in the Wisconsin 179 00:09:54,720 --> 00:09:58,080 Speaker 1: case is as you mentioned earlier, called the efficiency gap, 180 00:09:58,120 --> 00:10:01,960 Speaker 1: and it's basically looking at how many votes are wasted 181 00:10:02,000 --> 00:10:04,640 Speaker 1: in each district. So, for example, if you stick a 182 00:10:04,679 --> 00:10:07,560 Speaker 1: whole bunch of Democrats into a district, so a district 183 00:10:07,880 --> 00:10:12,439 Speaker 1: that's electing a Democrat has Democratic voters and Republicans to 184 00:10:12,520 --> 00:10:17,920 Speaker 1: keep the example very simple, then those extra thirty percent 185 00:10:18,000 --> 00:10:20,679 Speaker 1: of Democratic voters, those votes are kind of wasted. They 186 00:10:20,679 --> 00:10:23,040 Speaker 1: could have been put into other districts. And so if 187 00:10:23,040 --> 00:10:24,839 Speaker 1: you see much more of this happening on the on 188 00:10:24,920 --> 00:10:28,360 Speaker 1: the two Democrats and Republicans, you have this kind of asymmetry, 189 00:10:28,440 --> 00:10:31,439 Speaker 1: then that shows you, um, that there could be a 190 00:10:31,480 --> 00:10:35,000 Speaker 1: partisan Gerrymager Plane put that standard out there. The Court 191 00:10:35,080 --> 00:10:36,800 Speaker 1: partially adopted it, and it's going to be one of 192 00:10:36,800 --> 00:10:38,800 Speaker 1: the many standards that are going to be put before 193 00:10:39,160 --> 00:10:43,320 Speaker 1: Justice Kennedy as the case gets considered next term. About 194 00:10:43,320 --> 00:10:46,520 Speaker 1: thirty seconds left of Josh, do you agree that Justice 195 00:10:46,600 --> 00:10:49,520 Speaker 1: Kennedy will be the swing vote in this Yeah, He's 196 00:10:49,520 --> 00:10:52,240 Speaker 1: absolutely the swing vote because he's uh, he said in 197 00:10:52,240 --> 00:10:54,680 Speaker 1: that two thousand and four case. Um, I don't like 198 00:10:54,720 --> 00:10:56,720 Speaker 1: any of the standards out there, but I'm open to 199 00:10:56,960 --> 00:11:00,480 Speaker 1: a standard emerging uh if if if someone who's really 200 00:11:00,480 --> 00:11:02,720 Speaker 1: smart can come up with it, and so he apparently 201 00:11:02,720 --> 00:11:05,560 Speaker 1: is still actively looking and so he's the old ball game. 202 00:11:06,200 --> 00:11:09,679 Speaker 1: Thank you both for being on Bloomberg Law. That's Josh Douglas, 203 00:11:09,720 --> 00:11:12,959 Speaker 1: professor at the University of Kentucky School of Law, and 204 00:11:13,080 --> 00:11:15,640 Speaker 1: Rick hass And, professor at U c Irvine, also founder 205 00:11:15,679 --> 00:11:18,480 Speaker 1: of the Election Law Blog, which we all follow.