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© Frank


Insulated From the Ballot Box

by Dave Daley
December 30, 2020

This interview with Dave Daley, a senior fellow for FairVote and the author of Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy and most recently, Unrigged: How Americans Are Battling Back to Save Democracy, was conducted and condensed by franknews. We first spoke to Dave in May 2020

Dave Daley | Redistricting happens at the state level. If you want to try to understand the lay of the land as we head into the next cycle, we've got to look at it state by state. Democrats will be in a slightly stronger position in some of the states where they were wiped off the board during the last round of redistricting.

I think what's important to start with is that in 2010 Republicans ran a really sophisticated and tactically superior effort than the Democrats in an important redistricting year. They took control of all of the state legislatures in many states that were key: Pennsylvania, Wisconsin, Michigan, North Carolina, Ohio, and Florida. Republicans never surrendered control in any of those state legislatures over the course of the entire decade, even in years when Democratic candidates won hundreds of thousands of more votes in statewide races.

In Pennsylvania in 2018, Democratic candidates won 381,000 more votes statewide than Republican state house candidates and Republicans held onto the chamber.

There are similar stories in Michigan, similar stories in North Carolina, and similar stories in Wisconsin. The 2010 maps held. We have never seen gerrymandering the likes of which we had this last decade at the state legislative level. Ordinarily, gerrymandering fades over time: people die, new voters of age, people move, and political opinion shifts. Certainly, all of those things happened over this decade, but the results did not change in any of those states.

frank | Was there any successful efforts mounted against this reality? When we redistrict with results from the 2020 census, how will it affect the next decade?

Over the past decade, Democrats had to find other ways to gain a seat at the table for redistricting. In some of these states, the easiest way is to win a governor's race. Governors have veto power over proposed redistricting maps. Democrats won the governorship in Pennsylvania, Wisconsin, and Michigan. Those will be important positions. Democrats have also won important victories in Supreme Court races. In Ohio, Democrats will control the state Supreme court 4:3, in North Carolina those advantages eroded a little bit in 2020, but Democrats will still control the court, and in Pennsylvania, Democrats took back the court in 2018 and that court in 2018 and overturned a gerrymandered congressional map and replaced it with a fair one that immediately turned to a 13:5 Republican map into a representational 9:9.

Citizens have stepped up and won reforms.

Michigan is going to have an independent citizen commission drawing the lines in 2021. That's an amazing victory.

Virginia just passed a bi-partisan citizen politician hybrid commission, meaning that citizens will have a seat at the table there. Colorado will have a commission that is drawing the lines. There's certainly some good news in all of that. When both parties have seats at the table, you usually end up with more representative maps. The bad news is that there are still too many places where one party is going to control the process completely on their own. There will be many states that are closely divided where Republicans will be given a huge advantage because they will have the power to redistrict. 

What are some of those key states? 

Democrats had hoped to flip the Texas House of Representatives. They needed to win nine seats, but they did not even come close in 2020. Republicans will have a free hand to draw those districts for the state congress. Texas is likely to get an additional three US house seats. Republicans will likely be able to draw state house districts that bolster the state being a red state, and push back the timeline for the Democrats who imagined the demographic changes might turn it blue.

In North Carolina, the governor does not have a seat at the table for redistricting. The state House and Senate controlled that process — and Republicans held onto both. In Florida, Republicans will run the entire show. In Georgia, Democrats won't have any influence over redistricting. In Kansas, there is a Democratic governor who would ordinarily have been able to veto an extreme map, but Democrats had to take one seat in the statehouse to have veto power over an extreme map. And they didn't. And as a result, Democrats will likely lose a congressional seat. 

In Kentucky, Democrats have one seat right now in the Louisville area. I imagine it would be easy for Republicans to draw a map that cracks Louisville in half and gets rid of that seat. There is a Democratic governor in Kentucky, but you can override the governor's veto with a bare majority and Republicans have far more than that in both houses.

Democrats are only going to have probably a five or seven-seat advantage in House when it is sworn in January, and they could lose all of that off the bat in 2022, just with new redistricting in Texas, North Carolina, Kansas, and Kentucky. And that's before Republicans work their magic drawing new districts in Florida, Georgia. and Ohio.

I imagine that 2022 is going to be a very difficult year for Democrats in the U.S. House and redistricting will be a huge reason why.

We just conducted the census, what are the next steps?

First, the Department of Labor will release the new census data. We don't know when that is going to arrive. COVID has pushed back the timeline – potentially until April. Once the census data is available, we move to Reappointment. The number of U.S. House seats that each state gets is, of course, determined by the census, and states will draw new districts for that legislative body. 

You're going to see a real panic, I think, in the states that have legislative elections in November of 2021. If the census data really does come out in April, they could probably get the new maps shaped by June, but that begins to really compress the calendar for the primaries. And, if that gets pushed much later, you might have some states that have to decide whether they want to continue on the current maps for another cycle.

Are there legal battles you expect to see during the redistricting process?

I think the most consequential fight that a lot of the states are going to have is over the citizen voting-age population. The long time standard for drawing state legislative districts has been the total population. The U.S. constitution mandates the use of total population for drawing congressional districts, but there is an open question over whether or not to do it for a state legislative district.

Republicans have been playing around with this notion of only counting citizens over the age of 18. In a state like Texas, for example, that would reduce the number of districts in South Texas, a Democratic stronghold, as well as the Houston, Dallas, and the Fort Worth area. When you deduct non-citizens and children from the population count, you are dramatically lowering the population of cities. Political power is shifted from cities to areas that tend to be older, whiter, more rural, more conservative. I imagine that's going to be something that Republicans attempt to do in the states where they have trifecta power, and then I think very quickly that will be challenged in court.

If the last decade was all about the constitutionality of partisan gerrymandering, this next decade is going to be about the legality of using the citizen voting age population to draw state lines.

These decisions about new districts will happen at a state level, correct? 
That's right. The U.S. Supreme Court got out of the partisan gerrymandering game. Activists and reformers then began filing these cases in state Supreme Courts, where oftentimes there are more robust protections of voting rights under free and fair election clauses.

I imagine you will be seeing more of those challenges in state courts over the course of the next decade. I think what is concerning to advocates right now, however, is some of the litigation that has emerged in the last month as far as the president's challenges in various states. You have seen at least four justices on the U.S. Supreme court advancing legal claims that state Supreme Courts do not have the authority to interpret state constitutions on election issues. And there appear to be at least four justices that are willing to sign on to this. We don't know where the newest, Justice Coney Barrett, comes down on this yet. 

If the Court went down that path they would be invalidating a hundred years of case law and half a dozen important precedents over that time. 

If the Supreme Court decided it wasn’t a federal issue in 2013, and might be willing to say, additionally, the state Supreme Courts cannot make redistricting calls, who is left? 

Well, if they go that direction, they're saying that the federal courts can't do anything to fix a partisan gerrymander and a legislature that has entrenched itself in power, and the state supreme court can’t do it. That would leave no one else to do it. 

That seems incredibly concerning. 

To what extent do you see gerrymandering contributing to this political landscape and to this disconnect that people feel between themselves and who is governing them? 

I think it's huge. I think gerrymandering has been the key step in perpetuating and enduring a Republican minority rule across the country. After the 2018 election, there were 59 million people who lived in a state in which one or both chambers of the state legislature was controlled by the party that won fewer votes in that year's election. It's tough to look at that and call yourself a democracy when power in the state legislature can't be shifted by a majority of citizens. When the maps are so unresponsive that the huge majority can't budge partisan control, politicians are insulated from the ballot box and are able to act in unaccountable ways.

Gerrymandered state legislatures create extreme policies that most Americans don't agree with, and policies that most the residents in these states don't agree with. Residents are powerless to stop the growth of personhood, abortion, reproductive rights bills in Ohio and Alabama and Georgia and Missouri. The transgender bathroom bills in North Carolina and the assaults on labor rights across the Midwest are, in large part, due to these gerrymandered legislatures.

But the very first thing that a gerrymandered legislature will go after is voting rights. Toughening or enacting voter ID bills, conducting voter purges, or eliminating days of early voting or closed precincts.

Oftentimes it starts in state legislatures.

What role did the gerrymandered legislatures play in the 2020 election cycle? 

The scheme that we have seen in this 2020 election, the president alleging all kinds of fraud and irregularities, was made possible by partisan gerrymandering. It's not a coincidence that this scheme was based around state legislators in Pennsylvania, Michigan, and Wisconsin. These are state legislators who first had to enable the president's narrative by refusing to allow mail-in ballots to be opened, processed, and tabulated before the election, like in 40 other states. That allowed Trump to be able to say, "Let me tell you what's going to happen. I'm going to have the lead on election day. And then all of these votes are going to be counted from Detroit and Philadelphia and Milwaukee, and they're going to steal it from me."

And beyond that, this ploy to have these state legislatures potentially overturn the popular vote in their states and cast electors for Trump, is also only made possible because Republicans control these states with fewer votes. It is wild to me that the Michigan house speaker goes to the White House to celebrate afterward with an $800 bottle of champagne at the Trump hotel. He's the Republican speaker of a house that Democrats always get more votes for statewide. Trump knew where to go when he was trying to hold onto power with fewer votes. The state legislatures in Michigan, Wisconsin, and Pennsylvania, are the experts at it. They have been doing it all decade.

The crisis in this election would be if state legislators decided to send their own slate for electors to the electoral college. It is an interesting point that gerrymandering is not only creating an ideological gap between constituents and representatives, but it is also potentially creating the point where our democracy, one day, crumbles.

We were staggeringly lucky that this race wasn't just a little bit closer in a couple more states. They would have pushed that much harder and potentially run this entire experiment off the roads.

Where do we go from here? Are there reforms to push for?

A lot depends on what happens in these races in Georgia, and whether or not Democrats will have control of the Senate. And whether or not they'll be able to pass the electoral reform packages that they've proposed. If they're not able to do that, we're in for a complicated period.

We got lucky this time. We might not get lucky next time. We're already seeing some of these state legislatures are beginning to tighten up voting restrictions. There's already a bill in Texas that is attempting to make it illegal for counties to send out mail-in voting applications to citizens.

This period of minority rule and voting rights games didn't start with Donald Trump and it's not going to end with Donald Trump. Trump was not responsible for the gerrymandering of 2010, which set so much of this up. Trump was not on the Supreme court that gutted the Voting Rights Act in 2013.

Until the Republican party is willing to seek the vote of everyone and compete for all of these votes in a dynamic and multiracial democracy, it's hard to see how this changes.

There are lots of reforms that would help: ranked-choice voting, a national popular vote, independent redistricting commissions, campaign finance reform, the restoration of pre-clearance. But, it is a question of whether or not there is an appetite for addressing these sorts of topics in what is likely to be a divided Congress. While there is much to be hopeful about on the front of citizens organizing and working across party lines to try to fix these things, there's a little less to be optimistic about when it comes to politicians who rely on these divisions to win elections.