Speaker 1: During the presidential campaign, Donald Trump decried what he said
Speaker 1: was a rigged system. It turns out the system works
Speaker 1: pretty well for Trump Republican Party. When Trump takes office
Speaker 1: and on January twenty Republicans will control the White House,
Speaker 1: both Houses of Congress, and in twenty five states both
Speaker 1: the governorship and the legislature. Democrats say a major reason
Speaker 1: is jerrymandering. That is, they say Republicans Republicans have drawn
Speaker 1: voting districts to give themselves an unfair advantage in legislative elections. Today,
Speaker 1: former Attorney General Eric Holder said he is heading up
Speaker 1: a new Democratic effort to try to redraw those lines.
Speaker 1: The biggest rig system in America is is jerrymandering, A
Speaker 1: system where the lines are drawn not to represent American
Speaker 1: communities but to benefit politicians, a system where politicians pick
Speaker 1: their voters and not where American citizens choose their representatives.
Speaker 1: Consistent with our founding ideals, The effort will include court
Speaker 1: challenges to Republican drawn apps. Can it succeed? We're gonna
Speaker 1: ask two experts on the subject, Richard Fault, a professor
Speaker 1: at Columbia University Law School, and Joshua Douglas, a professor
Speaker 1: at the University of Kentucky School College of Law. Welcome
Speaker 1: to you both. Richard, let me start with you and
Speaker 1: just kind of define the scope of the issue or
Speaker 1: or a problem from the democratic standpoint, to what extent
Speaker 1: are Democrats actually at a disadvantage because of the way
Speaker 1: these legislative lines have been drawn around the country. Well,
Speaker 1: there is a lot of evidence that a number of
Speaker 1: states Democrats are at a disadvantage from the drawing of
Speaker 1: the lines. That Democrats do well on a statewide basis.
Speaker 1: They win statewide positions governor senator, do well in the
Speaker 1: presidential election, get a significant fraction of the total vote
Speaker 1: for the House of Representatives, but then get a very
Speaker 1: small fraction of the House of Representative seats. And some
Speaker 1: of this repeats in the state legislatures. So it's hard
Speaker 1: to each election is a little bit different from the
Speaker 1: one before. It's hard to say this nationwide and systematic,
Speaker 1: but there's increasing evidence of political scientists have found that's
Speaker 1: the that's the Republican control of the redistricting process in
Speaker 1: many states have given the Republican Party and edge greater
Speaker 1: than their actual strength with the voters. Josh Today, Eric
Speaker 1: Holder said that you know We've always had jerrymandering, but
Speaker 1: this is quote jerrymandering on steroids. Do you see it
Speaker 1: that way too? Do you agree with Rich that it's
Speaker 1: a little bit more than what we've seen in the past. Um,
Speaker 1: you know, that's that's hard to say in the abstract
Speaker 1: because this is just said. You know, each election is different.
Speaker 1: What I will say is that Republicans did a very
Speaker 1: good job of winning state houses in UH and so
Speaker 1: then they were able to control the drawing of district
Speaker 1: mind Um. We redraw district lines every ten years. Democrats
Speaker 1: did a little bit of a better job of it
Speaker 1: in two thousands, UH in in some states, and then
Speaker 1: in Republicans reversed that. UM. I will all to say
Speaker 1: that in some states Democrats are just as bad as
Speaker 1: Republicans in drawing district clients to favor them. There's litigation
Speaker 1: right now going on in Maryland where Republicans are challenging
Speaker 1: a Democratic drawn gerryman or UM. But I would agree
Speaker 1: that in the current political environment and at the post
Speaker 1: regiscaling cycle, Republicans did a much better job at drawing
Speaker 1: minds that favored their side. Part of what what Attorney
Speaker 1: General Holder was saying today was that they were eyeing
Speaker 1: the next census on the next round of redistricting that
Speaker 1: will happen all around the country. Uh Rich, How how
Speaker 1: is redistricting actually done in different places? How many is
Speaker 1: it that most states that the legislature controls it? I
Speaker 1: know there are at least a couple of states that
Speaker 1: I have independent commissions do it right in most states, roughly,
Speaker 1: I don't have the exact numbers in front of roughly
Speaker 1: three quarters of the states, a process is a totally
Speaker 1: political one controlled by the legislature. In about a dozen
Speaker 1: states there is, to one degree or another, either an
Speaker 1: independent or a quasi independent process. There might be a
Speaker 1: commission which is chosen by legislators and political figures, and
Speaker 1: a number of states that keep it one step out
Speaker 1: of the political process, and a small number of states
Speaker 1: California and Arizona most dramatically, there is actually an independently
Speaker 1: selected redistricting commission that is not controlled by the legislature
Speaker 1: or by political leaders, and a few other states the
Speaker 1: process may be political, but there are some state constitutional
Speaker 1: constraints on what they do. Florida is an example of that.
Speaker 1: And Josh So today when Eric Holder was outlining what
Speaker 1: they planned to do. One of the things was one
Speaker 1: of the first team mentioned was focused on electoral gains,
Speaker 1: and they're going to invest in targeted governors races and
Speaker 1: state legislative races, for example Virginia governorship. Is that a
Speaker 1: good approach to trying to get redistricting back in the
Speaker 1: hands of Democrats. Yeah, I mean, I think this is
Speaker 1: it's got to be the approach at a grassroots level,
Speaker 1: and it's one thing that Republicans did very well is
Speaker 1: focused on state legislative uh and gubernatorial elections. I think
Speaker 1: the legislative elections are actually even more important than the
Speaker 1: gubernatorial elections because in most days is the state legislature
Speaker 1: that draws the lines. And so if you have a
Speaker 1: majority Republican control of both houses, they can control the
Speaker 1: drawing of lines both for the state legislature and also
Speaker 1: for Congress. The state legislature draws the lines for both
Speaker 1: the state house representatives in the state Senate as well
Speaker 1: as the federal House of Representatives. So I think focusing
Speaker 1: on these local state level legislative seats is the key
Speaker 1: to change in the tides for Democrats. Rich is it
Speaker 1: possible we've already gone over a tipping point to some degree.
Speaker 1: In other words, because Republicans have drawn the lines and
Speaker 1: in some of these states, and Josh of course is
Speaker 1: right that they've Democrats have controlled some other states. But
Speaker 1: because of that, you have UM it will be harder
Speaker 1: to unseat those Republicans in those elections that Josh was
Speaker 1: talking about. And because they control the governorships and the legislatures,
Speaker 1: they also control the judiciary that might be making rulings
Speaker 1: on these issues. It sounds like this is a really,
Speaker 1: really an uphill battle for the Democrats. I think that's
Speaker 1: fair and certainly, UH they're not lucky to have huge
Speaker 1: political gains before the UH cycles. I think that the
Speaker 1: best bet for singul because politically isn't will be I mean,
Speaker 1: they might try and make some incremental gain gains in
Speaker 1: the off YEO elections like the Virginia governorship UH and
Speaker 1: New Jersey governorships which are in and the state legislative elections,
Speaker 1: but some sense their best bet is that when there's
Speaker 1: another presidential election where presidents were Democrats going to do better,
Speaker 1: particularly the popular vote, to try and pick up more
Speaker 1: state legislative seats. Because said Josh is right, the real
Speaker 1: key is to state legislatures with an eye towards UH.
Speaker 1: The post is redistricting, but it is an uphill fight.
Speaker 1: There are the problems that Democrats have, as people have
Speaker 1: pointed out, UH, Democrats are increasingly clustered in sort of
Speaker 1: urban and metropolitan areas, and they tend to the more
Speaker 1: density popular areas tend to be democratic, so that Democrats
Speaker 1: tend to win by bigger margins where they win, and that,
Speaker 1: in a sense, quote unquote waste democratic voting strength in
Speaker 1: areas where they're already strong. Democrats really have to begin
Speaker 1: an effort to rebuild themselves in areas where they were
Speaker 1: once strong, in rural areas UH, and less populated areas,
Speaker 1: small cities where they seem to have not been able
Speaker 1: to maintain a local political strength. Josh. One of the
Speaker 1: other things that Holder mentioned was legal gains fighting in
Speaker 1: courts over registricting maps. How tough are those legal fights, Well,
Speaker 1: they're generally pretty tough, although it's possible they might get easier.
Speaker 1: There's a case right now out of Wisconsin in which
Speaker 1: a three judge district court ruled the Wisconsin Gerrymanager to
Speaker 1: be unconstitutional under a new standard for partisan jerrymandering. The
Speaker 1: reason that litigation has been so tough the route out
Speaker 1: UH political jerrymandering is because the Court has said that
Speaker 1: there are no standards by which to UH to evaluate
Speaker 1: whether politics infiltrated the mass drawing process too much. Because
Speaker 1: it's a legislative act, it's going to be political. And
Speaker 1: so for years people have been trying to come up
Speaker 1: with standards because the Court, on a five four vote
Speaker 1: UH says that there are no judicially manageable standards. UM.
Speaker 1: Now there was continents with contentates looks like it may
Speaker 1: go up to the Supreme Court, and the lower court
Speaker 1: has found that advice this new standards known as the
Speaker 1: efficiency gap. And so if the Supreme Court were to
Speaker 1: recognize this standard, UH, then you would open up a
Speaker 1: whole new ability to challenge partisan jerrymanders. Right now with
Speaker 1: challenges have done have found other ways to challenge MATT
Speaker 1: so the requirement of one person, one vote at all districts,
Speaker 1: the equal size UH, the challenge on racial jerrymandering. In
Speaker 1: many ways, the challenges are and run around UH attempts
Speaker 1: to get at partisan jerrymandering as well. A minute ago,
Speaker 1: Josh was talking about this political jerrymandering case that's coming
Speaker 1: up to the Supreme Court. What we've been used to
Speaker 1: seeing cases involving racial jerrymandering, where the allegation is, uh,
Speaker 1: you packed too many members of one race into into
Speaker 1: one district. Here the claim has to do with you
Speaker 1: packed all the Republican voters, are voters of one party
Speaker 1: into into certain districts to maximize one party's advantage. Is
Speaker 1: that case potentially a game changer in all this this
Speaker 1: litigation couldn't change the way districts are are drawn around
Speaker 1: the country. So I think Josh was talking about it
Speaker 1: before the break. If it is Josh, we're saying what
Speaker 1: the Court has been searching for for many years is
Speaker 1: a standard, a judicially manageable standards, something that's not too discretionary.
Speaker 1: Were something that looks like a formula like one person,
Speaker 1: one vote, uh, without without requiring proportional representation, because there's
Speaker 1: no constitutional basis proportional representation, and people know that even
Speaker 1: any districting system, it's actually unlikely that the proportion of
Speaker 1: elected seat of party winners will match the votes because
Speaker 1: there's often there'll be if there's a swing in one direction,
Speaker 1: a party will pick up seats across the board. So
Speaker 1: they've been looking for for efforts to measure unfairness, efforts
Speaker 1: which unduly tilt of districts for one party or the
Speaker 1: other so that a party could consistently win a majority
Speaker 1: of a not come close to a majority of the seats.
Speaker 1: And that's what this the formula. What the the argument
Speaker 1: in Wisconsin, which the three judge court bought was that
Speaker 1: the theory is that you can measure what might be
Speaker 1: called wasted vote uh uh, the situation in which one party,
Speaker 1: in caseus, the Republicans set it up so that they
Speaker 1: win their districts with relatively narrow marchin narrow but consistent margins,
Speaker 1: and the Democrats win their districts by enormous margins, so
Speaker 1: that Republican seats are sort of fifty republican and Democratic
Speaker 1: seats are democratic. And that means that you can have
Speaker 1: very large numbers of Democrats are all packed into one
Speaker 1: into a SMA number districts who have no influence on
Speaker 1: the other districts, and the plane canst argue in the
Speaker 1: court degree that you can develop a formula which measures
Speaker 1: just how much more quote unquote efficient the Republican Party
Speaker 1: is in arranging its voters and its seats versus of
Speaker 1: the Democratic Party. And they've done that looking at things
Speaker 1: to starting Wisconsin and another states. And that's that's the argument.
Speaker 1: So Josh, let's talk a little bit about what Eric
Speaker 1: Holder complains about when he talks about this issue. Is
Speaker 1: the Shelby County case in which the Supreme Court cut
Speaker 1: back severely on the history work the landmark Voting Rights Act.
Speaker 1: How much of the problems that the Democrats are complaining
Speaker 1: about can be attributed to that case. Well, I think
Speaker 1: the problems can be attributed only in part to Shelby
Speaker 1: County because the laws that Shelby County struck down only
Speaker 1: applied to a handful of states, mostly in the South.
Speaker 1: For those states, it's a big deal. So states like Texas,
Speaker 1: North Carolina. And here's why. Before Shelby County, those states
Speaker 1: had to get pre approval was known as preclearance, but
Speaker 1: to preapproval before they can implement any new election law.
Speaker 1: And that included a new math. And so they would
Speaker 1: draw a map and they have to go to the
Speaker 1: Department of Justice in d c. Or to a three
Speaker 1: judge federal court and basically said, here's this math. What
Speaker 1: we're about to implement to for our new redistricting. We
Speaker 1: don't think it discriminates on the basis of race, and
Speaker 1: the state had the burden of approving that before it
Speaker 1: can implement. After Shelby County in which the court struck
Speaker 1: down the coverage formula basically struck down which states were
Speaker 1: covered under this preapproval mechanism, those states no longer have
Speaker 1: to go and get pre approval. They can implement the
Speaker 1: maps right away and then weak for a lawsuit, and
Speaker 1: then instead of being proactive in proving they're not discriminating, UH,
Speaker 1: they can wait for the lawsuit and it's the plaintiffsburg
Speaker 1: to prove that there's discrimination. So I think that in
Speaker 1: the states that the Voting Attact covered for this pre
Speaker 1: approval is pretty claimed. It makes a big difference. But
Speaker 1: of course that provision did not cover the whole country,
Speaker 1: so Wisconsin, for example, was not a cover jurisdiction. June
Speaker 1: I suspect. One other thing that may make a difference
Speaker 1: is a topic we talked about earlier this week, which
Speaker 1: is UH Jeff Sessions taking over the Justice Department. He
Speaker 1: has been UH an opponent of some of the Voting
Speaker 1: Rights Act lawsuits that the Obama administration brought another day. Yes, absolutely.
Speaker 1: I want to thank our guest Josh Douglas, professor at
Speaker 1: the University of Kentucky College of Law, and Richard brafal To,
Speaker 1: a professor at Columbia University Law School. That's for this
Speaker 1: edition of Bloomberg Law. We'll be back tomorrow thanks to
Speaker 1: our technical director Chris trike Homey and our producer David Sutterman.
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