WEBVTT - Former AG Holder Takes Stand Against Gerrymandering (Audio)

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<v Speaker 1>During the presidential campaign, Donald Trump decried what he said

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<v Speaker 1>was a rigged system. It turns out the system works

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<v Speaker 1>pretty well for Trump Republican Party. When Trump takes office

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<v Speaker 1>and on January twenty Republicans will control the White House,

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<v Speaker 1>both Houses of Congress, and in twenty five states both

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<v Speaker 1>the governorship and the legislature. Democrats say a major reason

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<v Speaker 1>is jerrymandering. That is, they say Republicans Republicans have drawn

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<v Speaker 1>voting districts to give themselves an unfair advantage in legislative elections. Today,

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<v Speaker 1>former Attorney General Eric Holder said he is heading up

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<v Speaker 1>a new Democratic effort to try to redraw those lines.

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<v Speaker 1>The biggest rig system in America is is jerrymandering, A

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<v Speaker 1>system where the lines are drawn not to represent American

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<v Speaker 1>communities but to benefit politicians, a system where politicians pick

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<v Speaker 1>their voters and not where American citizens choose their representatives.

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<v Speaker 1>Consistent with our founding ideals, The effort will include court

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<v Speaker 1>challenges to Republican drawn apps. Can it succeed? We're gonna

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<v Speaker 1>ask two experts on the subject, Richard Fault, a professor

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<v Speaker 1>at Columbia University Law School, and Joshua Douglas, a professor

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<v Speaker 1>at the University of Kentucky School College of Law. Welcome

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<v Speaker 1>to you both. Richard, let me start with you and

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<v Speaker 1>just kind of define the scope of the issue or

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<v Speaker 1>or a problem from the democratic standpoint, to what extent

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<v Speaker 1>are Democrats actually at a disadvantage because of the way

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<v Speaker 1>these legislative lines have been drawn around the country. Well,

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<v Speaker 1>there is a lot of evidence that a number of

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<v Speaker 1>states Democrats are at a disadvantage from the drawing of

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<v Speaker 1>the lines. That Democrats do well on a statewide basis.

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<v Speaker 1>They win statewide positions governor senator, do well in the

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<v Speaker 1>presidential election, get a significant fraction of the total vote

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<v Speaker 1>for the House of Representatives, but then get a very

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<v Speaker 1>small fraction of the House of Representative seats. And some

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<v Speaker 1>of this repeats in the state legislatures. So it's hard

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<v Speaker 1>to each election is a little bit different from the

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<v Speaker 1>one before. It's hard to say this nationwide and systematic,

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<v Speaker 1>but there's increasing evidence of political scientists have found that's

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<v Speaker 1>the that's the Republican control of the redistricting process in

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<v Speaker 1>many states have given the Republican Party and edge greater

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<v Speaker 1>than their actual strength with the voters. Josh Today, Eric

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<v Speaker 1>Holder said that you know We've always had jerrymandering, but

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<v Speaker 1>this is quote jerrymandering on steroids. Do you see it

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<v Speaker 1>that way too? Do you agree with Rich that it's

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<v Speaker 1>a little bit more than what we've seen in the past. Um,

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<v Speaker 1>you know, that's that's hard to say in the abstract

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<v Speaker 1>because this is just said. You know, each election is different.

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<v Speaker 1>What I will say is that Republicans did a very

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<v Speaker 1>good job of winning state houses in UH and so

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<v Speaker 1>then they were able to control the drawing of district

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<v Speaker 1>mind Um. We redraw district lines every ten years. Democrats

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<v Speaker 1>did a little bit of a better job of it

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<v Speaker 1>in two thousands, UH in in some states, and then

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<v Speaker 1>in Republicans reversed that. UM. I will all to say

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<v Speaker 1>that in some states Democrats are just as bad as

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<v Speaker 1>Republicans in drawing district clients to favor them. There's litigation

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<v Speaker 1>right now going on in Maryland where Republicans are challenging

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<v Speaker 1>a Democratic drawn gerryman or UM. But I would agree

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<v Speaker 1>that in the current political environment and at the post

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<v Speaker 1>regiscaling cycle, Republicans did a much better job at drawing

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<v Speaker 1>minds that favored their side. Part of what what Attorney

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<v Speaker 1>General Holder was saying today was that they were eyeing

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<v Speaker 1>the next census on the next round of redistricting that

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<v Speaker 1>will happen all around the country. Uh Rich, How how

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<v Speaker 1>is redistricting actually done in different places? How many is

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<v Speaker 1>it that most states that the legislature controls it? I

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<v Speaker 1>know there are at least a couple of states that

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<v Speaker 1>I have independent commissions do it right in most states, roughly,

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<v Speaker 1>I don't have the exact numbers in front of roughly

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<v Speaker 1>three quarters of the states, a process is a totally

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<v Speaker 1>political one controlled by the legislature. In about a dozen

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<v Speaker 1>states there is, to one degree or another, either an

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<v Speaker 1>independent or a quasi independent process. There might be a

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<v Speaker 1>commission which is chosen by legislators and political figures, and

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<v Speaker 1>a number of states that keep it one step out

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<v Speaker 1>of the political process, and a small number of states

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<v Speaker 1>California and Arizona most dramatically, there is actually an independently

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<v Speaker 1>selected redistricting commission that is not controlled by the legislature

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<v Speaker 1>or by political leaders, and a few other states the

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<v Speaker 1>process may be political, but there are some state constitutional

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<v Speaker 1>constraints on what they do. Florida is an example of that.

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<v Speaker 1>And Josh So today when Eric Holder was outlining what

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<v Speaker 1>they planned to do. One of the things was one

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<v Speaker 1>of the first team mentioned was focused on electoral gains,

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<v Speaker 1>and they're going to invest in targeted governors races and

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<v Speaker 1>state legislative races, for example Virginia governorship. Is that a

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<v Speaker 1>good approach to trying to get redistricting back in the

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<v Speaker 1>hands of Democrats. Yeah, I mean, I think this is

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<v Speaker 1>it's got to be the approach at a grassroots level,

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<v Speaker 1>and it's one thing that Republicans did very well is

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<v Speaker 1>focused on state legislative uh and gubernatorial elections. I think

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<v Speaker 1>the legislative elections are actually even more important than the

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<v Speaker 1>gubernatorial elections because in most days is the state legislature

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<v Speaker 1>that draws the lines. And so if you have a

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<v Speaker 1>majority Republican control of both houses, they can control the

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<v Speaker 1>drawing of lines both for the state legislature and also

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<v Speaker 1>for Congress. The state legislature draws the lines for both

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<v Speaker 1>the state house representatives in the state Senate as well

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<v Speaker 1>as the federal House of Representatives. So I think focusing

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<v Speaker 1>on these local state level legislative seats is the key

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<v Speaker 1>to change in the tides for Democrats. Rich is it

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<v Speaker 1>possible we've already gone over a tipping point to some degree.

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<v Speaker 1>In other words, because Republicans have drawn the lines and

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<v Speaker 1>in some of these states, and Josh of course is

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<v Speaker 1>right that they've Democrats have controlled some other states. But

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<v Speaker 1>because of that, you have UM it will be harder

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<v Speaker 1>to unseat those Republicans in those elections that Josh was

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<v Speaker 1>talking about. And because they control the governorships and the legislatures,

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<v Speaker 1>they also control the judiciary that might be making rulings

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<v Speaker 1>on these issues. It sounds like this is a really,

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<v Speaker 1>really an uphill battle for the Democrats. I think that's

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<v Speaker 1>fair and certainly, UH they're not lucky to have huge

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<v Speaker 1>political gains before the UH cycles. I think that the

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<v Speaker 1>best bet for singul because politically isn't will be I mean,

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<v Speaker 1>they might try and make some incremental gain gains in

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<v Speaker 1>the off YEO elections like the Virginia governorship UH and

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<v Speaker 1>New Jersey governorships which are in and the state legislative elections,

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<v Speaker 1>but some sense their best bet is that when there's

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<v Speaker 1>another presidential election where presidents were Democrats going to do better,

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<v Speaker 1>particularly the popular vote, to try and pick up more

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<v Speaker 1>state legislative seats. Because said Josh is right, the real

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<v Speaker 1>key is to state legislatures with an eye towards UH.

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<v Speaker 1>The post is redistricting, but it is an uphill fight.

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<v Speaker 1>There are the problems that Democrats have, as people have

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<v Speaker 1>pointed out, UH, Democrats are increasingly clustered in sort of

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<v Speaker 1>urban and metropolitan areas, and they tend to the more

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<v Speaker 1>density popular areas tend to be democratic, so that Democrats

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<v Speaker 1>tend to win by bigger margins where they win, and that,

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<v Speaker 1>in a sense, quote unquote waste democratic voting strength in

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<v Speaker 1>areas where they're already strong. Democrats really have to begin

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<v Speaker 1>an effort to rebuild themselves in areas where they were

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<v Speaker 1>once strong, in rural areas UH, and less populated areas,

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<v Speaker 1>small cities where they seem to have not been able

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<v Speaker 1>to maintain a local political strength. Josh. One of the

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<v Speaker 1>other things that Holder mentioned was legal gains fighting in

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<v Speaker 1>courts over registricting maps. How tough are those legal fights, Well,

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<v Speaker 1>they're generally pretty tough, although it's possible they might get easier.

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<v Speaker 1>There's a case right now out of Wisconsin in which

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<v Speaker 1>a three judge district court ruled the Wisconsin Gerrymanager to

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<v Speaker 1>be unconstitutional under a new standard for partisan jerrymandering. The

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<v Speaker 1>reason that litigation has been so tough the route out

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<v Speaker 1>UH political jerrymandering is because the Court has said that

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<v Speaker 1>there are no standards by which to UH to evaluate

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<v Speaker 1>whether politics infiltrated the mass drawing process too much. Because

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<v Speaker 1>it's a legislative act, it's going to be political. And

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<v Speaker 1>so for years people have been trying to come up

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<v Speaker 1>with standards because the Court, on a five four vote

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<v Speaker 1>UH says that there are no judicially manageable standards. UM.

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<v Speaker 1>Now there was continents with contentates looks like it may

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<v Speaker 1>go up to the Supreme Court, and the lower court

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<v Speaker 1>has found that advice this new standards known as the

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<v Speaker 1>efficiency gap. And so if the Supreme Court were to

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<v Speaker 1>recognize this standard, UH, then you would open up a

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<v Speaker 1>whole new ability to challenge partisan jerrymanders. Right now with

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<v Speaker 1>challenges have done have found other ways to challenge MATT

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<v Speaker 1>so the requirement of one person, one vote at all districts,

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<v Speaker 1>the equal size UH, the challenge on racial jerrymandering. In

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<v Speaker 1>many ways, the challenges are and run around UH attempts

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<v Speaker 1>to get at partisan jerrymandering as well. A minute ago,

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<v Speaker 1>Josh was talking about this political jerrymandering case that's coming

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<v Speaker 1>up to the Supreme Court. What we've been used to

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<v Speaker 1>seeing cases involving racial jerrymandering, where the allegation is, uh,

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<v Speaker 1>you packed too many members of one race into into

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<v Speaker 1>one district. Here the claim has to do with you

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<v Speaker 1>packed all the Republican voters, are voters of one party

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<v Speaker 1>into into certain districts to maximize one party's advantage. Is

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<v Speaker 1>that case potentially a game changer in all this this

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<v Speaker 1>litigation couldn't change the way districts are are drawn around

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<v Speaker 1>the country. So I think Josh was talking about it

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<v Speaker 1>before the break. If it is Josh, we're saying what

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<v Speaker 1>the Court has been searching for for many years is

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<v Speaker 1>a standard, a judicially manageable standards, something that's not too discretionary.

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<v Speaker 1>Were something that looks like a formula like one person,

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<v Speaker 1>one vote, uh, without without requiring proportional representation, because there's

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<v Speaker 1>no constitutional basis proportional representation, and people know that even

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<v Speaker 1>any districting system, it's actually unlikely that the proportion of

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<v Speaker 1>elected seat of party winners will match the votes because

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<v Speaker 1>there's often there'll be if there's a swing in one direction,

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<v Speaker 1>a party will pick up seats across the board. So

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<v Speaker 1>they've been looking for for efforts to measure unfairness, efforts

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<v Speaker 1>which unduly tilt of districts for one party or the

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<v Speaker 1>other so that a party could consistently win a majority

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<v Speaker 1>of a not come close to a majority of the seats.

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<v Speaker 1>And that's what this the formula. What the the argument

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<v Speaker 1>in Wisconsin, which the three judge court bought was that

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<v Speaker 1>the theory is that you can measure what might be

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<v Speaker 1>called wasted vote uh uh, the situation in which one party,

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<v Speaker 1>in caseus, the Republicans set it up so that they

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<v Speaker 1>win their districts with relatively narrow marchin narrow but consistent margins,

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<v Speaker 1>and the Democrats win their districts by enormous margins, so

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<v Speaker 1>that Republican seats are sort of fifty republican and Democratic

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<v Speaker 1>seats are democratic. And that means that you can have

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<v Speaker 1>very large numbers of Democrats are all packed into one

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<v Speaker 1>into a SMA number districts who have no influence on

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<v Speaker 1>the other districts, and the plane canst argue in the

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<v Speaker 1>court degree that you can develop a formula which measures

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<v Speaker 1>just how much more quote unquote efficient the Republican Party

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<v Speaker 1>is in arranging its voters and its seats versus of

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<v Speaker 1>the Democratic Party. And they've done that looking at things

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<v Speaker 1>to starting Wisconsin and another states. And that's that's the argument.

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<v Speaker 1>So Josh, let's talk a little bit about what Eric

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<v Speaker 1>Holder complains about when he talks about this issue. Is

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<v Speaker 1>the Shelby County case in which the Supreme Court cut

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<v Speaker 1>back severely on the history work the landmark Voting Rights Act.

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<v Speaker 1>How much of the problems that the Democrats are complaining

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<v Speaker 1>about can be attributed to that case. Well, I think

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<v Speaker 1>the problems can be attributed only in part to Shelby

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<v Speaker 1>County because the laws that Shelby County struck down only

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<v Speaker 1>applied to a handful of states, mostly in the South.

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<v Speaker 1>For those states, it's a big deal. So states like Texas,

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<v Speaker 1>North Carolina. And here's why. Before Shelby County, those states

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<v Speaker 1>had to get pre approval was known as preclearance, but

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<v Speaker 1>to preapproval before they can implement any new election law.

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<v Speaker 1>And that included a new math. And so they would

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<v Speaker 1>draw a map and they have to go to the

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<v Speaker 1>Department of Justice in d c. Or to a three

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<v Speaker 1>judge federal court and basically said, here's this math. What

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<v Speaker 1>we're about to implement to for our new redistricting. We

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<v Speaker 1>don't think it discriminates on the basis of race, and

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<v Speaker 1>the state had the burden of approving that before it

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<v Speaker 1>can implement. After Shelby County in which the court struck

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<v Speaker 1>down the coverage formula basically struck down which states were

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<v Speaker 1>covered under this preapproval mechanism, those states no longer have

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<v Speaker 1>to go and get pre approval. They can implement the

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<v Speaker 1>maps right away and then weak for a lawsuit, and

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<v Speaker 1>then instead of being proactive in proving they're not discriminating, UH,

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<v Speaker 1>they can wait for the lawsuit and it's the plaintiffsburg

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<v Speaker 1>to prove that there's discrimination. So I think that in

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<v Speaker 1>the states that the Voting Attact covered for this pre

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<v Speaker 1>approval is pretty claimed. It makes a big difference. But

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<v Speaker 1>of course that provision did not cover the whole country,

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<v Speaker 1>so Wisconsin, for example, was not a cover jurisdiction. June

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<v Speaker 1>I suspect. One other thing that may make a difference

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<v Speaker 1>is a topic we talked about earlier this week, which

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<v Speaker 1>is UH Jeff Sessions taking over the Justice Department. He

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<v Speaker 1>has been UH an opponent of some of the Voting

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<v Speaker 1>Rights Act lawsuits that the Obama administration brought another day. Yes, absolutely.

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<v Speaker 1>I want to thank our guest Josh Douglas, professor at

0:13:54.640 --> 0:13:57.160
<v Speaker 1>the University of Kentucky College of Law, and Richard brafal To,

0:13:57.160 --> 0:14:00.439
<v Speaker 1>a professor at Columbia University Law School. That's for this

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<v Speaker 1>edition of Bloomberg Law. We'll be back tomorrow thanks to

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<v Speaker 1>our technical director Chris trike Homey and our producer David Sutterman.

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<v Speaker 1>You can find more legal news at Bloomberg Law dot

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<v Speaker 1>com and Bloomberg Being a dot com. Coming up on

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<v Speaker 1>Bloomberg Radio, Bloomberg Markets with Carol Messer and Corey Johnson. Carol,

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<v Speaker 1>I think you're in the studio there in New York.

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<v Speaker 1>What are you guys talking about? I certainly am. It's

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<v Speaker 1>a busy, busy day. Greg. We're talking a bit more

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<v Speaker 1>about that emission scandal expanding. It looks like now to

0:14:25.560 --> 0:14:28.560
<v Speaker 1>feet Chrysler, so we'll get into that. Also, just talk

0:14:28.600 --> 0:14:31.960
<v Speaker 1>about the fixed income market with a top performing fund manager,

0:14:32.240 --> 0:14:34.680
<v Speaker 1>so we get a lot going on. Also Amazon creating jobs.

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<v Speaker 1>Back to you guys, you do have a lot going on.

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<v Speaker 1>Stay tuned for all that and more here on Bloomberg Radio.

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<v Speaker 1>You've been listening to Bloomberg law, This is Bloomberg