Speaker 1: On the second day of its term, the Supreme Court
Speaker 1: heard a case that has the potential to change the
Speaker 1: American political landscape. The Justice is considered whether judges can
Speaker 1: throw out legislative maps for being so partisan they violate
Speaker 1: the Constitution. The case could put a new check on jerrymandering,
Speaker 1: or drawing election districts for political advantage. It would be
Speaker 1: a first if the Court rules that voting maps can
Speaker 1: be so one sided they violate the Constitution. In oral arguments, today,
Speaker 1: the conservative and liberal justices appear to appear divided on
Speaker 1: the issue, with Justice Anthony Kennedy in the middle as
Speaker 1: the swing vote. Joining me our elections law experts Michael Lee,
Speaker 1: senior counsel at the Brennan Center, and Richard Brafault, professor
Speaker 1: at Columbia Law School. Rich Last year, a divided three
Speaker 1: judge Federal Court panel ruled that Republicans in Wisconsin had
Speaker 1: gone too far in drawing maps, and that was the
Speaker 1: first time that a federal court in more than thirty
Speaker 1: years rejected a voting map as part as in jerrymandering.
Speaker 1: Tell us a little bit about the case before we
Speaker 1: discussed the Supreme Court arguments. Sure, the case deals with
Speaker 1: the map that the Republicans, and that that state of Wisconsin,
Speaker 1: which at that point had a Republican governor and lopsided
Speaker 1: majorities in both houses of the state legislature, Republican majorities
Speaker 1: drew for the state legislature going forward. I think the
Speaker 1: challenges particularly to this um to the maps in the
Speaker 1: state Senate and the State Assembly. Uh, the plaintiffs were
Speaker 1: argued that the entire state map was was unconstitutional nop.
Speaker 1: They didn't challenge specific districts, they challenged the map as
Speaker 1: a whole of them. In elections in which the Democrats
Speaker 1: got actually slightly more votes than Republicans, I think in
Speaker 1: two thousand and twelve they won my forty of the vote,
Speaker 1: the Republicans slightly less. The Republicans won sixty out of
Speaker 1: ninety nine seats, and the election the Republicans got of
Speaker 1: the two party vote and one sixty three out of
Speaker 1: out of ninety nine seats, so they got lopsided majorities
Speaker 1: even when they Republicans did, even when they had less
Speaker 1: than a majority or just slightly more than a majority.
Speaker 1: The Democratic claim was that some combination of discriminatory in
Speaker 1: Tampa plan was written. It's hardly by Republicans with an
Speaker 1: effort to maximize Republican advantage, and this this enormous steward
Speaker 1: favorite Republicans headed up to an unconstitutional gerrymander. All right, Michael,
Speaker 1: you were at the Supreme Court arguments today. Tell us
Speaker 1: your impressions. Well, I think it was overall a really
Speaker 1: strong argument on behalf of the Wisconsin plaintiffs. UM. The
Speaker 1: Court was very engaged, and they ask a lot of questions,
Speaker 1: and they were clearly clearly wrestling with some of these issues,
Speaker 1: but they also seemed like they clearly wanted to to
Speaker 1: sort of do something, and they seemed increasingly comfortable with
Speaker 1: the idea that they could do so, not only because
Speaker 1: they are all of these statistical measures, but because they're
Speaker 1: um focusing on defining a clear statement of the problem, UM,
Speaker 1: and that that that will help get to a point
Speaker 1: where they can actually solve at least this form of
Speaker 1: extreme gerrymandering. Does that include some of the conservative justices,
Speaker 1: like Justice Roberts said that we'd have to decide in
Speaker 1: every case whether the Democrats or the Republicans win, and
Speaker 1: that it would affect the integrity of the Court's decision.
Speaker 1: Did you feel any of that from the conservatives concerns, well,
Speaker 1: some of the conservatives who are skeptical, both for legal reasons.
Speaker 1: Justice Corsage in particular had sort of an originalist view
Speaker 1: of this UM and you know, other people sort of
Speaker 1: wondered about how you would sort of make these measures
Speaker 1: work and whether they were reliable. UM. But I think
Speaker 1: that the Paul Smith, who argued the case on behalf
Speaker 1: of the Wisconsin plaintiffs, did a good job of putting
Speaker 1: everything in context and explaining that you know, you know,
Speaker 1: these measures are just one part of what the court
Speaker 1: would have to have to look at UM and UM.
Speaker 1: You know, they could divide it a formulation that you
Speaker 1: know would work really well. And Justice Briar offered one
Speaker 1: that that focus on, you know, whether there was a
Speaker 1: single party control and then whether there was an asymmetry
Speaker 1: and you prove it through one or multiple tests, and
Speaker 1: Invulsements suggested that multiple tests might actually be useful, and
Speaker 1: then whether it was durable UM and you know, uh,
Speaker 1: there was some back and forth about whether durability was
Speaker 1: something that the court could really sort of know. But
Speaker 1: as one of the justices pointed out, UM, I believe
Speaker 1: it was Justice Kagan like this, Uh, you know, this
Speaker 1: is something that already is being done like map for ours,
Speaker 1: and when they draw these maps are actually trying to
Speaker 1: project how they will perform for the course of a decade.
Speaker 1: So if you can do it for evil, you can
Speaker 1: certainly do it for good. Um in terms of you know,
Speaker 1: policing Jerry mannering. And then you know there's there's also
Speaker 1: room for um a justification. So arguing that it's the
Speaker 1: geography of the state, the residential patterns, or the voting
Speaker 1: right fact that the causes a skew. Um. You know
Speaker 1: that that works out to be a pretty manageable test.
Speaker 1: And at the end of the day, it really about
Speaker 1: the test. It's about sort of a clear articulation of
Speaker 1: a constitution standard. And um you know that that seemed
Speaker 1: to get a lot of buy in from a lot
Speaker 1: of the justices. And um rich in about forty five
Speaker 1: seconds here can you explain briefly how Justice Kennedy has
Speaker 1: been seen as the Court's pivotal point in this Why
Speaker 1: sure it derives from the last time the Court grappled
Speaker 1: with this, which is in two thousand and four with
Speaker 1: the Court in Effects split four one four where four
Speaker 1: justices led by Justice Scholey or the Conservatives essentially saying,
Speaker 1: we just Jerryman recently nothing, and the Court can take
Speaker 1: up the other four justices the liberals in effect saying yes,
Speaker 1: we can, although they all had different tests for it.
Speaker 1: Justice Kennedy in the middle sided with the Conservatives and
Speaker 1: saying and throwing out the challenge in that case is
Speaker 1: that I haven't seen a standard yet, but I'm hopeful
Speaker 1: that we might on in particularly focused on the First Amendment,
Speaker 1: doesn't think to think about and he focused on the
Speaker 1: possibilities of new technology. Alright, thought, rich We've been talking
Speaker 1: about a Jerryman during case that has reached the Preme
Speaker 1: Court that could have implications for the American political landscape.
Speaker 1: My guests are Richard Bruffall, he's a professor at Columbia
Speaker 1: Law School, and Michael Lee. He's a senior counsel at
Speaker 1: the Brennan Center. And Michael was at the Supreme Court
Speaker 1: arguments today. Michael, you heard rich talking about Justice Kennedy
Speaker 1: in this two thousand four ruling is looking for a
Speaker 1: better plan or you know, way to do this, and
Speaker 1: the Democrats here were ready to give him that plan.
Speaker 1: But I understand he didn't ask any direct questions about it,
Speaker 1: all right, he um. Most of his questions were aimed
Speaker 1: at Wisconsin and the State of Wisconsin's lawyers, the two
Speaker 1: sets who argued today, Um, and he had a lot
Speaker 1: of tough questions for them. Um. So it's a little
Speaker 1: bit hard to sort of read where exactly he is. Um,
Speaker 1: although you know, you know, what the plaintiffs offered in
Speaker 1: the way of a test was built up on things
Speaker 1: that justice can he said both in two thousand four
Speaker 1: and then in a later two thousand six case, and
Speaker 1: so um, perhaps that's a signal that he's um comfortable
Speaker 1: with what they have done, or perhaps comfortable that justice
Speaker 1: taken and all of the other justices asking the questions
Speaker 1: sort of really got it all of the things that
Speaker 1: needed to be asked rich Wisconsin is among the majority
Speaker 1: of states where the state legislature has the primary role
Speaker 1: in redistricting. If the Supreme Court rules in favor of
Speaker 1: the plaintiffs, will a plan Will they have to have
Speaker 1: a plan for how this how these redistricting maps will
Speaker 1: be done, or will they just reverse what will happen? Well,
Speaker 1: but pite effectually one below. So if the Supreme Court,
Speaker 1: the Spreme Court could actually affirm what the pre judge
Speaker 1: court found, which that the current plan is unconstitutional. More
Speaker 1: going forward, though, um, one of the challenges for the
Speaker 1: Court is to come up with a standard which deals
Speaker 1: with Wisconsin but doesn't necessarily exposed every plan on the
Speaker 1: country to litigation. That's one of their concerns. One approach
Speaker 1: the number of states have taken. I think you were
Speaker 1: hinting at that a number of states have adopted independent
Speaker 1: redistricting commissions. It's extremely unlikely the Sprint Court ever mandate
Speaker 1: anything like that. It's hard impossible to imagine. One could
Speaker 1: imagine that this that if the Court finds that that
Speaker 1: gerryman ery is unconstitutional, that might give a boost efforts
Speaker 1: at the state levels to create such independent districting commissions.
Speaker 1: And Michael, you said that the Justice seemed very positive
Speaker 1: about possibly um getting rid of this gerrymandering. But is
Speaker 1: it What kind of a step would that be? It
Speaker 1: describe how momentous a step that would be if the
Speaker 1: Court decides in favor of the Democrats here, Well, it
Speaker 1: would be huge because right now the Supreme Court has
Speaker 1: never put partisan jerrymandering out of bounds in the same
Speaker 1: way that it's put racial gerrymandering, out of bounds, and
Speaker 1: other sorts of discrimination. And as a result, many states
Speaker 1: have felt that they can go to town when it
Speaker 1: comes to partisanship, UM, as long as I can sort
Speaker 1: of justify it on the basis of politics. And and
Speaker 1: that includes in many places in the South, in particular,
Speaker 1: things that are very disadvantageous to African Americans are Latinos.
Speaker 1: And you've heard throughout this decade in the South, uh,
Speaker 1: states defend maps that are disadvantageous to minorities by saying, no, no, no,
Speaker 1: we weren't trying to hurt African Americans or Latinos. We
Speaker 1: were trying to target democrats and lo and behold, they
Speaker 1: just happened to be African American and Latinos. And that's
Speaker 1: a that's a um, you know opening that's still available
Speaker 1: right now, because if you fit in the politics bucket,
Speaker 1: you're out of bound, your inbounds. But if you fit
Speaker 1: in the race boocket, you're out of bounds, and the
Speaker 1: court could close that and UM, you know, help um
Speaker 1: not only sure political fairness, but fairness for communities of
Speaker 1: color and rich. As Michael said, I've also been reading
Speaker 1: from other political experts who say that this could be
Speaker 1: practically revolutionary, could change the American political scene. Do you
Speaker 1: agree with that? It's hard to it would have a
Speaker 1: big impact. There are right now a significant number a
Speaker 1: number of states which have gerrymandrid congressional delegations and gerry
Speaker 1: mandrid state legislatures. Much return on exactly what the court says.
Speaker 1: Part of the proof that the plaintiffs in Wisconsin we're
Speaker 1: able to make was that wis constant is really extreme,
Speaker 1: and it's a really extreme gerrymander, more than almost any
Speaker 1: plan in the country over the last forty years. If
Speaker 1: the opinion has limited to something extreme, it's not clear
Speaker 1: how far it will go. I mean we I think
Speaker 1: we need to see exactly what they say. But certainly
Speaker 1: Michael suggesting gerry mandering has been normal, has been increasing
Speaker 1: and has gotten worse, that it would the increased use
Speaker 1: of computerization to develop plans. If, if, if the Court
Speaker 1: doesn't act on this, I think we're going to see
Speaker 1: even more extreme jerrymandering going forward. Michael, did the justices
Speaker 1: ask questions about the sophisticated technology that now allows digital
Speaker 1: precision in devising these voting maps? They did, and and
Speaker 1: Paul Smith really was almost apocalyptic and talking about what
Speaker 1: the cycle would look like. UM one, the maps are
Speaker 1: next redrawn based on all of the sophistic headed technology.
Speaker 1: And he pointed to one of the briefs that was
Speaker 1: filed by a number of political scientists which does a
Speaker 1: good job of laying that out. But the justices also
Speaker 1: um on the plus. But they also seem to think
Speaker 1: that technology could help solve this problem and make this manageable.
Speaker 1: You know, they struggled to think that they could manage
Speaker 1: this problem and not have to get into everything. But
Speaker 1: now you can draw thousands of millions even of computer
Speaker 1: simulated maps and and test out the actual maps against
Speaker 1: those and and you know, decide whether they're likely to
Speaker 1: be random or not. So technology is both um you know,
Speaker 1: a really a real danger but perhaps something that makes
Speaker 1: us much more uh comfortable for the court to feel
Speaker 1: like they can get involved and not have to make
Speaker 1: lots of complicated decisions about where lines go. Were with
Speaker 1: about thirty seconds left, Michael, And since you were there,
Speaker 1: I'm going to ask you in your opinion after hearing
Speaker 1: the arguments, do you believe that the court is going
Speaker 1: to um rule in favor of the Democrats here? Well,
Speaker 1: you know, I've always famously misguessed the court on any
Speaker 1: number of occasions, so I don't want to start of
Speaker 1: like hazards. I guess you know the case that was
Speaker 1: presented by the Wisconsin plantiffs challenging the maps, it was
Speaker 1: really strong. Alright, I'll have to we'll have to leave
Speaker 1: it there. Thank you both. That's Michael Leese and your
Speaker 1: counsel at the Brennan Center and Richard Ruffal, Professor, Columbia
Speaker 1: Law School.