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--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
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--:-- Sean Rameswaram: The Supreme Court of the United States is right now sitting on not one, but two gerrymandering cases. One's about Republican gerrymandering in Wisconsin, and just a few days ago, the court heard about Democratic gerrymandering in Maryland. Gerrymandering can be a force for good. It can ensure a particular racial or social group has political power. But the court's trying to figure out how to deal with partisan gerrymandering, redrawing political maps to benefit one party over another. Because Americans are currently being disenfranchised. A ton of votes in this country just don't count.
--:-- Sean Rameswaram: My name is David Daly. I am the author of a book called Rat Fucked, Why Your Vote Doesn't Count. Why is it called Rat Fucked? Well, it has become a term for political deeds done dirt cheap, to borrow a note from ACDC, as we always should in our politics. And that's dirty deeds done dirt cheap. Dirty deeds done dirt cheap. Dirty deeds done dirt cheap.
--:-- David Daly: Let's break it down. Republicans, beginning in 2008, 2009, launched a strategy called REDMAP, which stands for the Redistricting Majority Project. And essentially what it does, indeed, is dye the country's legislative map a crimson red. Republicans focus on capturing state legislative chambers in the 2010 midterms. and they identify 107 state legislative races in 16 states that are key to tipping control of the House or Senate in their direction that would then allow them to control every aspect of the redistricting process the following year. It is in many ways the political heist and political bargain of the century. Republicans pulled off their gerrymandering strategy in 2010 and 2011 for only $30 million. They are able to draw these lines that in 2012 and every election since have not only returned huge Republican majorities into swing states and competitive states, but have often created Republican supermajorities earned with fewer votes.
--:-- David Daly: So rat fucked is a lot sexier title than gerrymandering. But who is Jerry and what did he do? Gerrymandering takes its name from Elbridge Gerry with a hard G, although it's gerrymandering soft G. Okay. This is like gif jif or something. Yes, exactly. And back in 1812, Gary is the governor of Massachusetts, and his Democratic Republican Party rewires the state senate districts around Boston in such a way as to make it possible for them to win with fewer votes. A political cartoonist takes a look at the map and draws it as a salamander. And hence, Elbridge Gerry, a signer of the Declaration of Independence, a vice president of the United States, goes down in history as one of the worst political actors of all time.
--:-- David Daly: So essentially, gerrymandering is the dark art of drawing district lines that advantage your party and disadvantage and minimize the voice of the other side. There are two key ways of doing this. There is packing and there is cracking. Packing and cracking. Yes, packing and cracking, which I think is probably also an ACDC song. Packing! Packing is taking all of the other party's votes and trying to stuff them into as few seats as possible. Packing! You then have big majorities in all of the other districts. Cracking! Cracking involves spreading the other side's votes out. Cracking! Diluting them and spreading them as thinly as you can Across as many districts as possible To win more seats on your side Cause they've been gerrymandering While they're redistricting Now your folk don't mean a thing You've been gerrymandered Gerrymandered Gerrymandered
--:-- Sean Rameswaram: How has it changed over time? I mean, I imagine it used to be based on like just census data and now there's got to be some very sophisticated gerrymandering going on. What makes today's gerrymanders so powerful and so dangerous is that they are able to be drawn more surgically and precisely because of all of the data that is available on us, because of our hardened partisanship, and because of the really sophisticated computer mapping software that makes it possible to really do this on a house-by-house, block-by-block, surgical nature.
--:-- David Daly: What we have seen this decade is that in state after state, you do not see a partisan proportional fairness. So if you were to take for example a state like North Carolina North Carolina is currently represented by 10 Republicans and three Democrats in Congress So that's, you know, 10 of 13 seats. North Carolina is not a 70-30 state. If you look at a state like Michigan, it is currently represented in Congress by nine Republicans and five Democrats, Even though in 2012, you have 240,000 more votes for Democratic candidates than Republican candidates. But because of the way that these lines are drawn and Michigan is packed and cracked, they send a delegation to Washington that is out of line with the actual partisan balance of the state.
--:-- Sean Rameswaram: So if you take these five key swing states right now of Pennsylvania, Michigan, Ohio, Wisconsin, and North Carolina and add up the Republicans and Democrats in Congress from these competitive bluish purplish states, what you see is 49 Republicans and 20 Democrats representing these states. And the vote is not more than two and a half to one in favor of Republicans in those states. These uncompetitive districts take the swing out of our politics. And by doing that, it creates districts in which the most important election is a party primary. And the party primaries are most likely to be dominated by the extreme base of the party. So it helps push our politics further out towards the extreme. And it incentivizes politicians to behave in a different way once they're elected.
--:-- Sean Rameswaram: If you're a politician representing a district that is 60 or 70 percent Republican or Democratic, you are disinclined to actually behave in such a way that you will cross the aisle or you will actually work towards consensus or solving a problem. Because doing that is actually the kind of thing that might earn you a primary challenge, which is the one thing that can actually beat you.
--:-- Sean Rameswaram: I think we talk a lot about the Republicans drawing these very beneficial districts for themselves around 2010 after the big census. And that's a lot of what we're seeing being challenged right now in the courts. But both parties do this, right? It's not like when Democrats are in power and have the ability to draw maps, they're extremely generous and even handy, right?
--:-- David Daly: Both parties have certainly done this over time. I mean, back in the 1980s, there was a California congressman named Phil Burton who drew the lines out there, and he used to call them his contribution to modern art because they look so crazy. Both sides have certainly done this to a wild and undemocratic degree. In 2010, however, on this current cycle, redistricting was dominated by Republicans. And in many ways, all of the gerrymandering going back to Governor Gary's days through 2000 is almost the minor leagues of gerrymandering because of the technology that comes available in 2010 and launches us into its steroids era.
--:-- Sean Rameswaram: I see. I mean, even in 2000, Republicans dominated redistricting in 2000 in the state of Pennsylvania. But by 2006, when there was frustration over George Bush in the Iraq war, those districts still were able to flip back the other way and elect Democratic candidates. You still had competitive elections in Pennsylvania, even though those districts had been drawn by Republicans. And historically speaking, give us some perspective here. How big a deal is that? If this has been happening basically since the founding of our union, how bad does it look right now?
--:-- David Daly: There are political scientists who have suggested that the partisan intent on these maps from 2010 is three times as serious and bad as the partisan intent in 2000. So gerrymandering in a way has never been worse. And yet it could be about to get dramatically worse because we are heading into the 2020 census. All of these lines will be up again in 2021, and the technology behind this has only gotten better. So if the courts are unable to come up with some kind of a meaningful standard that reigns politicians in, they will run wild in 2020 and 2021. And you will see essentially both sides doing what the Republicans did in 2010, which is running millions of dollars of campaigns in local races, all with the intent of having additional say over a redistricting.
--:-- Sean Rameswaram: After the break, can the Supreme Court put a stop to partisan gerrymandering? It might come down to just one justice, and he's known as the most powerful man in America.
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--:-- Sean Rameswaram: This is Today Explained. I'm Sean Rameswaram from The.
--:-- Sean Rameswaram: The last time the Supreme Court heard a gerrymandering case was back in 2004. It was called Veith v. Jubilear. The court, which is a very similar court to what it is now, essentially the four conservatives and four liberals, and Justice Kennedy in the middle. The most powerful man in America. Indeed. May he live for all time. Justice Kennedy has been the swing vote on a whole heap of important cases. Second Amendment, gay rights, abortion. Kennedy, who was appointed by President Reagan and has been on the court since 1988, he is considered the court's pivotal swing vote. And part of his legacy is the newest justice, Neil Gorsuch, who was one of his clerks.
--:-- Sean Rameswaram: In the Vieth gerrymandering case, Kennedy cast a deciding vote on whether or not partisan gerrymandering was unconstitutional. Justice Scalia delivered the opinion. The basic problem is that some degree of political motivation and effect in districting is not unconstitutional. No one contends that a decent amount of political motivation and political effect is unlawful. So it comes down to determining how much political motivation and effect is too much. However, Kennedy says that he is not willing to close the door on the fact that a manageable standard could be developed. And that if that were to happen, the court would be foolish to take it off the table now.
--:-- Sean Rameswaram: Which is why we now have two gerrymandering cases back in front of Justice Kennedy and the Supreme Court. Lawyers and academics and activists all responded to Kennedy's request for a clear test to measure partisan gerrymandering. They're trying to show Justice Kennedy, the most important man in America. The most important man in America. A way to rule on this that gives him the clear and precise standard he is looking for. And here we are, April 2018, with two opportunities. Let's talk about the first case, Gil v. Whitford. What's going on there? That's Wisconsin, right?
--:-- Sean Rameswaram: The case Gil v. Whitford could, it just may be, end extreme partisan gerrymandering once and for all. As a part of Red Map, the Republican redistricting strategy from 2010, Republicans spent about a million dollars in Wisconsin aimed at taking control of the statehouse and senate there. You also elected a Republican governor. When Republicans went and redrew the maps, they had complete control over the process there. And they developed these enormously complicated and specific partisan voting indexes at a precinct-by-precinct level and stitched together a state assembly map that would return Republican majorities even if the party only earned as little as 41 or 42 percent of the vote.
--:-- Sean Rameswaram: So you had a handful of Democratic voters in the state who after 2012, when Republicans earned huge majorities on these maps, even in a year in which Democrats had more votes in the state, they began filing a litigation aimed at overturning these maps. And this case revolves around a number of really interesting statistical measures that are aimed at showing the effect of a gerrymander. This is like the thing that Kennedy was asking for in Veith versus Jubilee. Exactly. He was asking for math, basically. Show me proof. Exactly. A clear and manageable standard that I can accept and I can also tell other courts, follow this.
--:-- Sean Rameswaram: Chief Justice Roberts, as much as the court loves standards and math, Roberts called this sociological gobbledygook back in October at the oral arguments on this. Justice Gorsuch said that these standards were so random that – It reminds me a little bit of my steak rub. I like some turmeric. I like a few other little ingredients and I'm not going to tell you how much of each. And so what's this court supposed to do? A pinch of this, a pinch of that. Did he get paid for that? I think it is, in fact, product placement for Neil Gorsuch's spicy turmeric steak rub. Sounds awful. Push your steak to the right of the grill. Steal your steak from Merrick Garland. Too soon, Dave. Too soon.
--:-- Sean Rameswaram: And this is what's so interesting as we head into the Maryland case as well. We'll hear argument this morning in case 17333, Benisek versus Limon. Mr. Kimberly? And this was oral arguments was held just a few days ago on this one. That's exactly right. And this involves a Democratic gerrymander of a congressional seat, the 6th District in Maryland. The Democrats drew the 6th Congressional District, and we know this from their draft maps and their emails and what they've admitted in depositions, by using partisan political data. They knew who voted which way and they moved tens of thousands of Republican voters out of the 6th District and scattered them across as many of Maryland other districts as they could because they were Republicans
--:-- Sean Rameswaram: So a handful of Republican voters in Maryland have challenged this really using the exact standard that Kennedy talks about in VEF They're arguing that it is a First Amendment violation, that they are being penalized and punished by the state for having expressed political opinions and that this is burdening their ability to have free and fair and equal representation. It almost sounds like in the Wisconsin case before the Supreme Court right now, Gil V. Whitford, you've got a bunch of people coming up with mathematical solutions to this problem, statistical models that try to map out partisan gerrymandering and prove that it's unconstitutional. Then in this Maryland case, Benisek versus Limon, you've got a bunch of people using this sort of liberal arts approach. This is our freedom of association. You've got like the hard sides, the soft sides approach to tackling this. Is that what's happening?
--:-- Sean Rameswaram: I think that's right. You know, on one hand, you have these algorithms. And on the other hand, you have an eyeball test. And the court has asked for both of these approaches. And is this something that only the Supreme Court can answer? Is there another solution to rampant partisan gerrymandering that a state could come up with, that Congress could come up with?
--:-- Sean Rameswaram: Yes, I think that there are a couple of ways that this could go. First, Pennsylvania, which was another one of the states that the Republicans rewired after Red Map. They've had a 13-5 advantage in the congressional delegation there this entire decade. And the state Supreme Court there recently ordered new maps because they found that partisan gerrymandering diluted Democratic votes in such a way as to violate the state constitution guarantee that elections will be free, fair, open, and equal. 25 other states also have similar clauses in their state constitutions. So this really presents the possibility of litigation in other states using this exact same approach.
--:-- Sean Rameswaram: And people are beginning to really figure this out. I mean, in Michigan, 450,000 signatures right now on a referendum drive to put independent districting on the ballot this year. In Ohio, 250,000 signatures on a referendum to do the same thing. You are seeing similar efforts in North Carolina, in California, in Arizona. all sorts of states are beginning to work on different ideas that take the power to do this out of the hands of politicians and back into the hands of people or different kinds of democratic approaches.
--:-- Sean Rameswaram: And once upon a time, I think that gerrymandering was a topic that made people's eyes glaze over. Now I think that people realize that it is crucial to why our politics feel so dysfunctional and that we have a political problem in this country that polarization and districting has sort of helped push us into. and that if we want to find a solution, we have to look at the system itself, that it's no longer a bug. It's actually embedded into the fundamental fabric of winner-take-all. So it's not like we have a virus. It's like the system is the virus.
--:-- Sean Rameswaram: Also an ACDC song. Dave Daly wrote the book on partisan gerrymandering. He called it Rat Fucked. Today Explain Harry No Gucci Is the EP of this show Today Rhymes firm First name Sean Yeah you know he's the host Explain Bridget and Lou Oh so now I'm here They're producers Today Last name's McCarthy, Eisenfeld and Vanderbilt Explained! Then there's a fiend, he's our engineer And who wrote the theme, Red Bastard Sander? This is Today Explained Today Explained Today Explained Today Explained Today Explained Today Explained Today Explained
--:-- Sean Rameswaram: One more quick note about Quip's electric toothbrushes before we go. So GQ just last year said Quip's electric toothbrushes are the best electric toothbrushes. Did GQ say that about your electric toothbrush? Go to getquip.com slash explained to, you know, getquip. G-E-T-Q-U-I-P dot com slash explained.
