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