WEBVTT - Court Tests if Partisan Gerrymandering Can Go Too Far (Audio) 0:00:00.080 --> 0:00:02.200 On the second day of its term, the Supreme Court 0:00:02.240 --> 0:00:04.360 heard a case that has the potential to change the 0:00:04.400 --> 0:00:08.720 American political landscape. The Justice is considered whether judges can 0:00:08.760 --> 0:00:11.960 throw out legislative maps for being so partisan they violate 0:00:12.000 --> 0:00:15.840 the Constitution. The case could put a new check on jerrymandering, 0:00:15.960 --> 0:00:19.319 or drawing election districts for political advantage. It would be 0:00:19.320 --> 0:00:21.800 a first if the Court rules that voting maps can 0:00:21.840 --> 0:00:26.200 be so one sided they violate the Constitution. In oral arguments, today, 0:00:26.280 --> 0:00:29.920 the conservative and liberal justices appear to appear divided on 0:00:29.960 --> 0:00:33.000 the issue, with Justice Anthony Kennedy in the middle as 0:00:33.000 --> 0:00:37.000 the swing vote. Joining me our elections law experts Michael Lee, 0:00:37.080 --> 0:00:40.159 senior counsel at the Brennan Center, and Richard Brafault, professor 0:00:40.200 --> 0:00:44.160 at Columbia Law School. Rich Last year, a divided three 0:00:44.240 --> 0:00:49.000 judge Federal Court panel ruled that Republicans in Wisconsin had 0:00:49.000 --> 0:00:51.680 gone too far in drawing maps, and that was the 0:00:51.720 --> 0:00:54.120 first time that a federal court in more than thirty 0:00:54.240 --> 0:00:57.800 years rejected a voting map as part as in jerrymandering. 0:00:58.200 --> 0:01:00.880 Tell us a little bit about the case before we 0:01:00.920 --> 0:01:04.600 discussed the Supreme Court arguments. Sure, the case deals with 0:01:04.680 --> 0:01:07.440 the map that the Republicans, and that that state of Wisconsin, 0:01:07.520 --> 0:01:10.320 which at that point had a Republican governor and lopsided 0:01:10.400 --> 0:01:13.920 majorities in both houses of the state legislature, Republican majorities 0:01:14.400 --> 0:01:17.039 drew for the state legislature going forward. I think the 0:01:17.080 --> 0:01:19.920 challenges particularly to this um to the maps in the 0:01:19.959 --> 0:01:23.880 state Senate and the State Assembly. Uh, the plaintiffs were 0:01:24.440 --> 0:01:27.959 argued that the entire state map was was unconstitutional nop. 0:01:28.080 --> 0:01:31.040 They didn't challenge specific districts, they challenged the map as 0:01:31.080 --> 0:01:34.760 a whole of them. In elections in which the Democrats 0:01:34.840 --> 0:01:37.160 got actually slightly more votes than Republicans, I think in 0:01:37.200 --> 0:01:40.200 two thousand and twelve they won my forty of the vote, 0:01:40.200 --> 0:01:43.280 the Republicans slightly less. The Republicans won sixty out of 0:01:43.319 --> 0:01:47.720 ninety nine seats, and the election the Republicans got of 0:01:47.760 --> 0:01:50.040 the two party vote and one sixty three out of 0:01:50.440 --> 0:01:53.000 out of ninety nine seats, so they got lopsided majorities 0:01:53.360 --> 0:01:56.360 even when they Republicans did, even when they had less 0:01:56.360 --> 0:01:58.560 than a majority or just slightly more than a majority. 0:01:59.480 --> 0:02:03.680 The Democratic claim was that some combination of discriminatory in 0:02:03.760 --> 0:02:07.560 Tampa plan was written. It's hardly by Republicans with an 0:02:07.560 --> 0:02:12.639 effort to maximize Republican advantage, and this this enormous steward 0:02:12.720 --> 0:02:17.040 favorite Republicans headed up to an unconstitutional gerrymander. All right, Michael, 0:02:17.120 --> 0:02:20.320 you were at the Supreme Court arguments today. Tell us 0:02:20.320 --> 0:02:25.040 your impressions. Well, I think it was overall a really 0:02:26.000 --> 0:02:29.600 strong argument on behalf of the Wisconsin plaintiffs. UM. The 0:02:29.680 --> 0:02:32.720 Court was very engaged, and they ask a lot of questions, 0:02:32.760 --> 0:02:36.880 and they were clearly clearly wrestling with some of these issues, 0:02:36.880 --> 0:02:40.400 but they also seemed like they clearly wanted to to 0:02:40.639 --> 0:02:44.440 sort of do something, and they seemed increasingly comfortable with 0:02:44.440 --> 0:02:46.560 the idea that they could do so, not only because 0:02:46.600 --> 0:02:49.480 they are all of these statistical measures, but because they're 0:02:50.000 --> 0:02:55.160 um focusing on defining a clear statement of the problem, UM, 0:02:55.200 --> 0:02:57.840 and that that that will help get to a point 0:02:57.840 --> 0:03:00.920 where they can actually solve at least this form of 0:03:00.960 --> 0:03:05.320 extreme gerrymandering. Does that include some of the conservative justices, 0:03:05.560 --> 0:03:09.560 like Justice Roberts said that we'd have to decide in 0:03:09.639 --> 0:03:13.160 every case whether the Democrats or the Republicans win, and 0:03:13.200 --> 0:03:15.960 that it would affect the integrity of the Court's decision. 0:03:16.160 --> 0:03:19.919 Did you feel any of that from the conservatives concerns, well, 0:03:20.840 --> 0:03:23.919 some of the conservatives who are skeptical, both for legal reasons. 0:03:24.120 --> 0:03:27.040 Justice Corsage in particular had sort of an originalist view 0:03:27.080 --> 0:03:30.600 of this UM and you know, other people sort of 0:03:30.639 --> 0:03:32.680 wondered about how you would sort of make these measures 0:03:32.720 --> 0:03:35.920 work and whether they were reliable. UM. But I think 0:03:35.960 --> 0:03:38.920 that the Paul Smith, who argued the case on behalf 0:03:38.960 --> 0:03:42.040 of the Wisconsin plaintiffs, did a good job of putting 0:03:42.080 --> 0:03:45.320 everything in context and explaining that you know, you know, 0:03:45.400 --> 0:03:47.440 these measures are just one part of what the court 0:03:47.440 --> 0:03:50.680 would have to have to look at UM and UM. 0:03:50.720 --> 0:03:54.560 You know, they could divide it a formulation that you 0:03:54.600 --> 0:03:58.560 know would work really well. And Justice Briar offered one 0:03:58.640 --> 0:04:01.560 that that focus on, you know, whether there was a 0:04:01.600 --> 0:04:04.840 single party control and then whether there was an asymmetry 0:04:05.040 --> 0:04:07.320 and you prove it through one or multiple tests, and 0:04:07.400 --> 0:04:10.360 Invulsements suggested that multiple tests might actually be useful, and 0:04:10.400 --> 0:04:13.880 then whether it was durable UM and you know, uh, 0:04:13.960 --> 0:04:16.560 there was some back and forth about whether durability was 0:04:16.600 --> 0:04:19.240 something that the court could really sort of know. But 0:04:19.720 --> 0:04:23.279 as one of the justices pointed out, UM, I believe 0:04:23.320 --> 0:04:25.800 it was Justice Kagan like this, Uh, you know, this 0:04:25.880 --> 0:04:28.159 is something that already is being done like map for ours, 0:04:28.160 --> 0:04:30.360 and when they draw these maps are actually trying to 0:04:30.400 --> 0:04:32.640 project how they will perform for the course of a decade. 0:04:33.000 --> 0:04:34.600 So if you can do it for evil, you can 0:04:34.640 --> 0:04:38.159 certainly do it for good. Um in terms of you know, 0:04:38.200 --> 0:04:40.760 policing Jerry mannering. And then you know there's there's also 0:04:40.880 --> 0:04:44.600 room for um a justification. So arguing that it's the 0:04:46.000 --> 0:04:49.000 geography of the state, the residential patterns, or the voting 0:04:49.080 --> 0:04:51.880 right fact that the causes a skew. Um. You know 0:04:51.960 --> 0:04:54.799 that that works out to be a pretty manageable test. 0:04:54.880 --> 0:04:56.920 And at the end of the day, it really about 0:04:56.920 --> 0:04:59.159 the test. It's about sort of a clear articulation of 0:04:59.200 --> 0:05:02.960 a constitution standard. And um you know that that seemed 0:05:02.960 --> 0:05:04.360 to get a lot of buy in from a lot 0:05:04.400 --> 0:05:08.120 of the justices. And um rich in about forty five 0:05:08.240 --> 0:05:12.320 seconds here can you explain briefly how Justice Kennedy has 0:05:12.360 --> 0:05:16.760 been seen as the Court's pivotal point in this Why 0:05:18.080 --> 0:05:20.719 sure it derives from the last time the Court grappled 0:05:20.720 --> 0:05:22.800 with this, which is in two thousand and four with 0:05:22.960 --> 0:05:25.880 the Court in Effects split four one four where four 0:05:25.960 --> 0:05:28.960 justices led by Justice Scholey or the Conservatives essentially saying, 0:05:29.360 --> 0:05:31.880 we just Jerryman recently nothing, and the Court can take 0:05:31.960 --> 0:05:35.400 up the other four justices the liberals in effect saying yes, 0:05:35.480 --> 0:05:38.160 we can, although they all had different tests for it. 0:05:38.200 --> 0:05:41.159 Justice Kennedy in the middle sided with the Conservatives and 0:05:41.200 --> 0:05:44.080 saying and throwing out the challenge in that case is 0:05:44.080 --> 0:05:47.320 that I haven't seen a standard yet, but I'm hopeful 0:05:47.360 --> 0:05:50.600 that we might on in particularly focused on the First Amendment, 0:05:50.600 --> 0:05:52.680 doesn't think to think about and he focused on the 0:05:52.720 --> 0:05:57.159 possibilities of new technology. Alright, thought, rich We've been talking 0:05:57.200 --> 0:06:00.400 about a Jerryman during case that has reached the Preme 0:06:00.440 --> 0:06:05.880 Court that could have implications for the American political landscape. 0:06:06.000 --> 0:06:08.920 My guests are Richard Bruffall, he's a professor at Columbia 0:06:09.000 --> 0:06:11.960 Law School, and Michael Lee. He's a senior counsel at 0:06:12.000 --> 0:06:15.719 the Brennan Center. And Michael was at the Supreme Court 0:06:15.920 --> 0:06:21.480 arguments today. Michael, you heard rich talking about Justice Kennedy 0:06:21.520 --> 0:06:25.240 in this two thousand four ruling is looking for a 0:06:25.360 --> 0:06:29.280 better plan or you know, way to do this, and 0:06:29.760 --> 0:06:32.800 the Democrats here were ready to give him that plan. 0:06:32.880 --> 0:06:35.600 But I understand he didn't ask any direct questions about it, 0:06:37.400 --> 0:06:40.599 all right, he um. Most of his questions were aimed 0:06:40.640 --> 0:06:45.000 at Wisconsin and the State of Wisconsin's lawyers, the two 0:06:45.040 --> 0:06:47.320 sets who argued today, Um, and he had a lot 0:06:47.320 --> 0:06:50.560 of tough questions for them. Um. So it's a little 0:06:50.600 --> 0:06:53.919 bit hard to sort of read where exactly he is. Um, 0:06:53.960 --> 0:06:57.719 although you know, you know, what the plaintiffs offered in 0:06:57.760 --> 0:07:01.080 the way of a test was built up on things 0:07:01.120 --> 0:07:03.480 that justice can he said both in two thousand four 0:07:03.480 --> 0:07:05.920 and then in a later two thousand six case, and 0:07:06.000 --> 0:07:09.400 so um, perhaps that's a signal that he's um comfortable 0:07:09.400 --> 0:07:12.560 with what they have done, or perhaps comfortable that justice 0:07:12.600 --> 0:07:14.880 taken and all of the other justices asking the questions 0:07:14.880 --> 0:07:17.320 sort of really got it all of the things that 0:07:17.400 --> 0:07:23.200 needed to be asked rich Wisconsin is among the majority 0:07:23.240 --> 0:07:26.600 of states where the state legislature has the primary role 0:07:26.720 --> 0:07:31.360 in redistricting. If the Supreme Court rules in favor of 0:07:31.400 --> 0:07:34.400 the plaintiffs, will a plan Will they have to have 0:07:34.480 --> 0:07:38.920 a plan for how this how these redistricting maps will 0:07:38.960 --> 0:07:42.760 be done, or will they just reverse what will happen? Well, 0:07:42.800 --> 0:07:45.160 but pite effectually one below. So if the Supreme Court, 0:07:45.240 --> 0:07:47.360 the Spreme Court could actually affirm what the pre judge 0:07:47.400 --> 0:07:51.840 court found, which that the current plan is unconstitutional. More 0:07:51.880 --> 0:07:55.040 going forward, though, um, one of the challenges for the 0:07:55.080 --> 0:07:58.520 Court is to come up with a standard which deals 0:07:58.560 --> 0:08:02.400 with Wisconsin but doesn't necessarily exposed every plan on the 0:08:02.400 --> 0:08:05.679 country to litigation. That's one of their concerns. One approach 0:08:05.720 --> 0:08:07.360 the number of states have taken. I think you were 0:08:07.400 --> 0:08:10.280 hinting at that a number of states have adopted independent 0:08:10.320 --> 0:08:14.320 redistricting commissions. It's extremely unlikely the Sprint Court ever mandate 0:08:14.360 --> 0:08:17.360 anything like that. It's hard impossible to imagine. One could 0:08:17.400 --> 0:08:20.520 imagine that this that if the Court finds that that 0:08:20.680 --> 0:08:23.880 gerryman ery is unconstitutional, that might give a boost efforts 0:08:23.880 --> 0:08:27.440 at the state levels to create such independent districting commissions. 0:08:28.920 --> 0:08:32.880 And Michael, you said that the Justice seemed very positive 0:08:33.080 --> 0:08:40.160 about possibly um getting rid of this gerrymandering. But is 0:08:40.200 --> 0:08:42.720 it What kind of a step would that be? It 0:08:42.960 --> 0:08:46.040 describe how momentous a step that would be if the 0:08:46.120 --> 0:08:51.520 Court decides in favor of the Democrats here, Well, it 0:08:51.559 --> 0:08:54.200 would be huge because right now the Supreme Court has 0:08:54.240 --> 0:08:57.040 never put partisan jerrymandering out of bounds in the same 0:08:57.040 --> 0:08:59.559 way that it's put racial gerrymandering, out of bounds, and 0:09:00.000 --> 0:09:03.440 other sorts of discrimination. And as a result, many states 0:09:03.440 --> 0:09:05.160 have felt that they can go to town when it 0:09:05.200 --> 0:09:07.760 comes to partisanship, UM, as long as I can sort 0:09:07.800 --> 0:09:10.040 of justify it on the basis of politics. And and 0:09:10.120 --> 0:09:13.040 that includes in many places in the South, in particular, 0:09:13.360 --> 0:09:16.320 things that are very disadvantageous to African Americans are Latinos. 0:09:16.360 --> 0:09:19.040 And you've heard throughout this decade in the South, uh, 0:09:19.400 --> 0:09:22.880 states defend maps that are disadvantageous to minorities by saying, no, no, no, 0:09:22.920 --> 0:09:25.600 we weren't trying to hurt African Americans or Latinos. We 0:09:25.600 --> 0:09:27.920 were trying to target democrats and lo and behold, they 0:09:27.960 --> 0:09:31.280 just happened to be African American and Latinos. And that's 0:09:31.280 --> 0:09:34.920 a that's a um, you know opening that's still available 0:09:35.000 --> 0:09:36.680 right now, because if you fit in the politics bucket, 0:09:36.679 --> 0:09:39.719 you're out of bound, your inbounds. But if you fit 0:09:39.800 --> 0:09:41.720 in the race boocket, you're out of bounds, and the 0:09:41.720 --> 0:09:44.920 court could close that and UM, you know, help um 0:09:45.360 --> 0:09:47.920 not only sure political fairness, but fairness for communities of 0:09:48.000 --> 0:09:53.520 color and rich. As Michael said, I've also been reading 0:09:54.200 --> 0:09:57.280 from other political experts who say that this could be 0:09:57.720 --> 0:10:01.920 practically revolutionary, could change the American political scene. Do you 0:10:01.960 --> 0:10:05.040 agree with that? It's hard to it would have a 0:10:05.080 --> 0:10:08.160 big impact. There are right now a significant number a 0:10:08.240 --> 0:10:11.840 number of states which have gerrymandrid congressional delegations and gerry 0:10:11.880 --> 0:10:15.600 mandrid state legislatures. Much return on exactly what the court says. 0:10:15.840 --> 0:10:18.080 Part of the proof that the plaintiffs in Wisconsin we're 0:10:18.080 --> 0:10:20.920 able to make was that wis constant is really extreme, 0:10:21.280 --> 0:10:24.520 and it's a really extreme gerrymander, more than almost any 0:10:25.040 --> 0:10:27.760 plan in the country over the last forty years. If 0:10:27.760 --> 0:10:31.120 the opinion has limited to something extreme, it's not clear 0:10:31.160 --> 0:10:32.920 how far it will go. I mean we I think 0:10:32.920 --> 0:10:35.480 we need to see exactly what they say. But certainly 0:10:36.040 --> 0:10:39.679 Michael suggesting gerry mandering has been normal, has been increasing 0:10:39.920 --> 0:10:42.400 and has gotten worse, that it would the increased use 0:10:42.440 --> 0:10:46.160 of computerization to develop plans. If, if, if the Court 0:10:46.200 --> 0:10:48.160 doesn't act on this, I think we're going to see 0:10:48.480 --> 0:10:53.199 even more extreme jerrymandering going forward. Michael, did the justices 0:10:53.280 --> 0:10:59.200 ask questions about the sophisticated technology that now allows digital 0:10:59.240 --> 0:11:03.400 precision in devising these voting maps? They did, and and 0:11:03.520 --> 0:11:07.440 Paul Smith really was almost apocalyptic and talking about what 0:11:07.520 --> 0:11:11.080 the cycle would look like. UM one, the maps are 0:11:11.080 --> 0:11:14.760 next redrawn based on all of the sophistic headed technology. 0:11:14.760 --> 0:11:16.200 And he pointed to one of the briefs that was 0:11:16.240 --> 0:11:18.400 filed by a number of political scientists which does a 0:11:18.440 --> 0:11:21.400 good job of laying that out. But the justices also 0:11:21.800 --> 0:11:23.600 um on the plus. But they also seem to think 0:11:23.600 --> 0:11:27.199 that technology could help solve this problem and make this manageable. 0:11:27.240 --> 0:11:29.440 You know, they struggled to think that they could manage 0:11:29.440 --> 0:11:31.600 this problem and not have to get into everything. But 0:11:31.679 --> 0:11:34.800 now you can draw thousands of millions even of computer 0:11:34.880 --> 0:11:38.480 simulated maps and and test out the actual maps against 0:11:38.480 --> 0:11:41.640 those and and you know, decide whether they're likely to 0:11:41.679 --> 0:11:44.840 be random or not. So technology is both um you know, 0:11:44.880 --> 0:11:47.280 a really a real danger but perhaps something that makes 0:11:47.320 --> 0:11:50.040 us much more uh comfortable for the court to feel 0:11:50.040 --> 0:11:51.679 like they can get involved and not have to make 0:11:51.720 --> 0:11:54.600 lots of complicated decisions about where lines go. Were with 0:11:54.720 --> 0:11:57.240 about thirty seconds left, Michael, And since you were there, 0:11:57.280 --> 0:12:01.440 I'm going to ask you in your opinion after hearing 0:12:01.480 --> 0:12:05.120 the arguments, do you believe that the court is going 0:12:05.240 --> 0:12:10.440 to um rule in favor of the Democrats here? Well, 0:12:10.600 --> 0:12:14.200 you know, I've always famously misguessed the court on any 0:12:14.240 --> 0:12:15.720 number of occasions, so I don't want to start of 0:12:15.800 --> 0:12:18.320 like hazards. I guess you know the case that was 0:12:18.360 --> 0:12:21.640 presented by the Wisconsin plantiffs challenging the maps, it was 0:12:21.679 --> 0:12:23.840 really strong. Alright, I'll have to we'll have to leave 0:12:23.840 --> 0:12:25.959 it there. Thank you both. That's Michael Leese and your 0:12:26.000 --> 0:12:29.280 counsel at the Brennan Center and Richard Ruffal, Professor, Columbia 0:12:29.360 --> 0:12:29.920 Law School.