Dave Daley on Gerrymandering [07-04-19]

This is Larry Lessig, and this is the third season of the podcast Another Way. Today, we're going to look at the problem of districting or redistricting as it's affected by the questions of gerrymandering. And our guest is going to be Dave Daly. Dave Daly is familiar to many as the former editor in chief of salon.com he's now a senior fellow at FairVote. He's the author of an extraordinary book which really got me most interested in this problem Rally Rat, the True Story behind the Secret Plan to Steal America's Democracy. We'll be talking a lot about that book. He used to be a CEO and publisher of the Connecticut News Project. He was one of the people who outed Mark Felt as Deep Throat, the source behind Bob Woodward and Carl Bernstein's extraordinary reporting about Watergate. He has been a hero in this project of telling the story of the struggles for our democracy. And I'm really eager and happy to have him on on this podcast Another Way, with the subtitle POTUS1, which is the focus on the question of what our next president should be. So thanks very much, Dave Daly, for being here.

Thanks for having me.

So this is a unique opportunity. I actually have a guest in this studio, so we'll have a lot of meaningful eye contact during the course of this conversation. But we're gonna begin the conversation to try to set a little bit of historical context, because I think many people have the sense of this problem emerging on the scene today. But of course, the very name gerrymandering reaches back in our history. So why don't you bring us up to date about where it was and how we got to where we are.

Sure. In many ways it should be called Patrick Henry mandering, because you can trace back the idea of gerrymandering way before Elbridge Gerry and those famous Massachusetts state senate districts in 1812. Back in Virginia, 1788, Patrick Henry essentially tries to draw district lines that might keep the hated James Madison out of the very first Congress. As long as we've had politicians, they have tried to take every advantage, and that includes drawing district lines to benefit themselves or their party and to disadvantage their opponents. In 1812, it's Elbridge Gerry, then governor of Massachusetts, and his party draws these state Senate districts around Boston that are designed to hold off the Federalists in the elections that fall. And a political cartoonist sees this and. And believes it looks like a salamander. The gerrymander is born, and Elbridge Gary goes down in political infamy.

It's kind of, to add insult to injury, we don't even know. I didn't even know that it's Gary as opposed to Jerry. Right, because the name is gerrymandering.

I suppose if you're Elbridge Gary, you know better that this is at least, you know, it's named after me, but it's not completely pronounced that way. So it's not, you know, ignominy on my ancestors for the next 200 years in quite the same way.

So the very technology, though, of that game then is relatively limited by the data that's available then. Right. So you have a couple hundred years of every 10 years doing is good enough for government work that obviously embeds and protects districts, but it's something different from what it's become.

I think that's exactly right. And in many ways we shouldn't even call it gerrymandering anymore, because gerrymandering in the popular imagination is politics as usual. Right? It's politicians retreating behind closed doors into smoke filled rooms to draw themselves districts that advantage themselves. And for years they were able to do a reasonably good job of this, but they were guessing that they were doing it even in 1990, even in 2000, they were drawing these maps, actually on maps, I mean, often with magic markers. In 1980, Congressman Burton from California famously draws a terrific gerrymander of the state of California for his Democratic Party. He does it at a restaurant on a napkin, and he calls it his contribution to modern art. And it was a fantastically effective gerrymander. But it was one person doing his best guesswork as far as what would keep his side in power. The technology has taken all of the guesswork out of this.

So if we had to name it after someone, who would we name it after?

That's a terrific question. I mean, I think in many ways the Republican master gerrymander, Tom Hoefler, who we've been reading a lot about in the newspapers for the last several weeks, is in many ways the godfather of modern gerrymandering. Because it's Hoeffler, who back in California as a political science student in the 1970s, who kind of understands what computers and voter data is going to do to gerrymandering, to the ability to make these ever more precise and surgical and enduring. And the kind of gerrymanders that become drawn in the most recent cycle, in the post2010 census cycle, are in many ways the product of all of this voter data.

So when does he start this game? I mean, he sees it as a student, but when does he actually get the money to begin to deploy it?

Yeah, that's exactly, that's exactly right. I mean, hoefler in the 1980s cycle is actually out at California. He's running an institute at Claremont College. And he draws maps that he tries to counter Congressman Burton's maps with. And he says, no, no, no, I've got a computer here. I've drawn much better, fairer maps. Take a look at this. The Democrats laughed him off stage. It was the last time that they would laugh at Tom Hoffler. Hoffler moves on to the Census Bureau after this, and then he moves on to the Republican National Committee where either as a staffer or as a consultant for the next 30 plus years, he refines the party's data operations. He brings them up to speed consistently on the new technologies. So these gerrymanders in the 1990s and the 2000s, they are being done on low level computers. I mean, think of the way we texted back in 2001, like every number represented three letters and you'd have to wait to get to the next one. If you wanted a T, it would have to blink through the R and the S. That was the way that these computer programs.

So what was Hofler like, though? Like what kind of person?

Oh, just a very mild mannered, you know, lived in Virginia, sang in his church choir. You know, a gray haired guy who enjoyed going off to political conferences when he was behind closed doors with politicos of both sides. He was a raconteur and a storyteller, but he was deeply devoted to his side. And throughout the last 30 years, he saw ahead to the next horizon of what gerrymandering would make possible. So it's Hoefler in the late 1980s who understands that there are two groups that are essentially underrepresented across the American South, Republicans and black Democrats. And he says, well, I've got these computers and these voting data. If I could make an alliance with black Democrats in the south, we could use the newly reauthorized Voting Rights act that calls for the institution of majority minority seats wherever possible. And I could help them draw those majority minority seats. I could give them the software, I could give them the computers and the data. And what I know is that if they draw majority minority seats in North Carolina and Georgia and Tennessee, that it is going to produce more Republican, whiter, conservative seats across the rest of the state, that there's a ripple effect. And this works. I mean, you know, 1994, Republicans are able to take back the U.S. house. And a big part of this is the fact that the entire south essentially turns red. And this is the beginning of the disappearance of the white Democrat across the South. All of these delegations in all of those states, I just mentioned that it had been 75, 80% white conservative Democrats. They begin, a couple of Republicans slowly begin turning over. So a state like North Carolina, which had not elected an African American to Congress since George White in 1900, suddenly in 1992, 1994, you see Emil Watt and Eva Clayton elected to office. You get in 1994, the largest congressional Black Caucus since Reconstruction. You also get the first Republican House of representatives in 40 years. And Hoefler understood the connection to that, and he saw what his computers and his mapping software and that voter data could connect those two issues.

So what's so striking is that there's this resistance in the Democratic Party to a movement to resist gerrymandering, in part grounded in this reality that many people in the civil rights movement think gerrymandering is an essential part of guaranteeing equal representation on the basis of race. So in the context of writing this fantastic book, which is obviously weaponizing the resistance to gerrymandering, have you had pushback from people who've said, like, you're underplaying the significant contribution it made to creating equality in representation?

I think that what has happened across the south, and I think the civil rights and the voting rights community really understands this now, is that in 1992 and 1994, it probably took 55, 60% of a district to be of color or clearly Democratic in order to elect members of color from those districts. So if you wanted to ensure minority representation and fair representation of historically underrepresented communities, you had to really pack these districts. You don't necessarily need to do that anymore. The academic data on this, the voting data on this has changed. In a state like North Carolina, you can probably elect a member of color from a district that is 35, 36% black. So you do not need to pack these districts 55, 60% black, or, you know, indeed 75, 80, 85% black, as some of these Republican map makers have done in states like Florida and Michigan over the years. That is a practice that is used to dilute minority voting power. And I think that that has become really well understood and that, you know, that is why groups like the Law Lawyers Committee on Civil Rights and the NAACP and, you know, so many organizations have become, you know, so active in partisan gerrymandering as well as racial gerrymandering.

Right. Because you see that if you have 70% African American in a community in order to elect an African American, when you could do it just with 35%, then those African Americans who are above 35% are wasted in that, because they could be in another district and they could be influencing the politics in another district in a way that would create more representation.

That's exactly right. And for years, there's been a Supreme Court case law that has made clear that racial gerrymandering is unacceptable and that partisan gerrymandering is okay in many ways. And what has happened as a result of that is that party became a proxy for race and that Republican map makers like Hoefler in states like North Carolina were doing racial gerrymanders, but simply calling them partisan gerrymanders, especially as blacks and other minority voters became more closely aligned with the Democratic Party in an increasingly polarized America, and as this voter data became so precise at telling you how people were going to vote, being so accurate at predicting.

So Hoefler is succeeding in the 90s and then the 2000 census. Does he have a significant role in the Republican Party in 2000?

He is certainly involved in the map making in 2000 as a consultant. And Republicans did a reasonably good job in 2000, especially in states like Pennsylvania, at drawing maps. But those maps did not endure past 2006. There's a Democratic wave in 2006 that is fueled by unrest over the war in Iraq and a lot of those gerrymanders across the country. Democrats take back the U.S. house and win state legislatures in places like Ohio and Michigan, North Carolina. In all of these states, Democrats in 2006, 2008, are able to win control of all of these chambers. And I think that the next key year, in many ways, is 2008. Barack Obama wins the White House, the historic election of our first black president. Democrats win a supermajority in the US Senate, which they hold briefly, and they reelect a Democratic House. And if you go back and look at the election night coverage, the smartest minds in American politics on both sides are talking about how the Republican Party could now be a minority party in this country for a generation to come, that changing American demographics were going to fundamentally change the nature of our politics. And it didn't exactly turn out that way, did it? And that's because Hoefler and a team of strategists at the Republican State Leadership Committee understood something even that depressing night in 2008 for them, they understood that the census was coming in 2010, and that after the census was a redistricting and that 2010 was likely to be a good year for Republicans simply because the party that's out traditionally does really well in the following midterm. And that if they could combine the wave that they expected in 2010 with a focused strategy on winning back the specific state legislatures that they would need to control the drawing of maps in 2011, that they could control the next decade of American politics. And that's what actually happened. The 2010 election turned out to be far more consequential in many ways than 2008.

Yeah, I remember Obama commenting on the significance of that defeat and also having the sense that people were not focused on just how important that defeat was going to be, because it really changed the foundation for everything Obama was hoping for, not just in Congress, but obviously in the states. But it's not just the fact that the Democrats lose. It's also that there's this new technology on the field. And so help us understand a little bit about why this technology is so different. Like, what are the data that get combined in this context to make it so that gerrymandering is so much more effective.

I think what we have to remember here is most of these congressional and state legislative maps are drawn with a program called Maptitude, which is a really powerful geographic information system, a software package. And it comes preloaded with all of the details and demographic data contained in the U.S. census, which is an extraordinarily powerful tool to start with as far as the economics and racial data of any given district. So that's a great place to start. You can then really easily upload into Maptitude all of the available public record data sets. So I can take voter rolls and I can upload those. I can upload. Which years did you vote and which years did you not vote? I can upload gun licenses. Do you own a gun? I can upload. What kind of car do you drive? And all of that gives me a pretty good sense of who you are. I can then cross tabulate that against the actual election results. And I can go all the way down ballot, and I can break this down to the smallest census block level, which is the lowest, most precise granular level that this detail is collected at.

How big is that?

Which is essentially a neighborhood street. And then that gives me a pretty good sense that I can just go up and down and pick off individual homes as I'm drawing these. These lines. But on top of all of that public information, there is a wealth now of Private information that can also be purchased, pennies on the dollar and uploaded that provide an even more microscopic view of who we are. So this could include online purchases, this could include social media likes, this could include web searches. Now, I mean, all of that is saved and it's purchasable. As we scoot across the Internet, we are leaving lots and lots of clues of who we are and who people, how we vote, magazines, subscriptions. So when a mapmaker sits down to draw these lines, they are armed with such precise information that they're able to draw especially surgical maps. And I mean, I would see this as I was writing this book and I drove, turn by turn, several of these of these districts in Pennsylvania, in Michigan. And when you look at them on paper, you kind of laugh and see a funny shape when you see them at street level. It is such a powerful thing because you're looking at these streets the same way that a map maker must have. And every single one of those funny lines is there for a reason. I drove the 14th district in Michigan turn by turn. And this is a district that has been surgically crafted to essentially pack the poorest neighborhoods of Detroit in with Pontiac, Michigan, another a largely Black city about 30 miles north. So it winds snake like throughout Detroit. And there was one point in time I started at eight in the morning and I was still driving at nine o' clock at night, taking this thing turn by turn. And as I came back down sort of the northeast side of this, there was a time when I took four left turns. I came in and out of this district three different times. And I wrote down that the addresses as I watched the houses go from sort of these beautiful suburban ones to decrepit homes on the verge of foreclosure. And I typed those addresses into Zillow back in my hotel room. And you could see that the housing values fall from a half million dollars down to 8,500 bucks. The mapmakers know all of this. The map makers are able to understand where different religions or, or ethnic groups live and kind of what those cleavages are in a specific neighborhood. And they draw the lines that correspond to exactly the results that they are hoping to attain.

So they do this and they're able then to say to the people who hire them, and in this case we're talking about the Republican Party, but the Democrats would do the same. Say to them that with some level of confidence, I can tell you that this person's gonna vote Democratic or this person's gonna vote Republican. Is that the vocabulary they use?

It is. They translate all of this essentially into partisan voting indexes. So essentially, what they are trying to do when they draw these lines is to create a district that they believe will still go for the Republicans even in a wave year. So the goal of map making is to imagine the worst election you might possibly have and then to sandbag against losing seats. Even in a wave year. You don't want to go so far as to risk losing everything. So gerrymandering in many ways becomes the art of most effectively arranging your voters in order to maximize your seats, not only in good years, but also in bad years. You see this really clearly in the state of Wisconsin, where Democrats last year, in 2018, managed to defeat Scott Walker and win a Democratic governor. There, they reelected Tammy Baldwin to the U.S. senate. The Democrats took every single statewide office, and they carried the overall popular vote for their state assembly by about 220,000 votes. Statewide, Republicans held 63 of the 99 seats. Nevertheless, Democrats picked up one seat in the state House off of that kind of a statewide wave. That's a really powerful gerrymander, and that's what these maps are set out to do. If you look at the draft aversions, if you look at the communications that the consultants send around, they're trying to imagine how many seats they will pick up even in years that they get perhaps 44, 45% of the vote. The goal becomes locking in a majority of seats, even in years in which you get 44, 45% of the vote.

So these seats, if we can distinguish them between, let's call them, some are safe seats and some are swing seats. Would they prefer a world where they're just safe seats? Or, like, how do they make that trade off between how many we're going to allow to be swing versus how many we want to be safe?

I think the goal becomes as many safe seats as you can. I mean, parties don't like swing seats. Parties don't like swing seats because they are unpredictable and they cost a lot of money to defend. So better to have a whole lot of safe seats, and then it becomes much easier to keep incumbents reelected from those.

And so a whole lot, I mean, depending on how you want to count, it can be up to like 85% of the nation is safe seats right now. Is that.

I think that's right. I mean, I would say that, you know, as many as 400, 435 seats in Congress, you know, are largely safe. And if you go back and look at what the Republicans were promising their donors as part of RedMap in 2010. And RedMap is the redistricting majority project. That was the name of what Hofler and the strategists at the Republican state leadership committee came up with. And they pulled this off for $30 million. They went around the country and they raised that 30 million from reliable Republican corporate donors. And what they promised them was not only would they elect more conservative state legislatures around the country, as well as give themselves an advantage in congress, but they told them, listen, if you give us this $30 million now, we are going to be able to redraw 47 of the 70 swing seats left in the country. And we'll do that in a way that benefits us, and we won't come to you for as much money. And they said, give us $30 million now and you might save $220 million over the next ensuing electoral cycles.

Right. So they invest in the project of eliminating Democratic choice so as to reduce the cost of running elections.

Yes.

What were the Democrats doing?

They fell asleep at the wheel. I think they believed that the changing demographics of the country was this imminent and irreversible wave, that it would kind of happen automatically. And I think a lot of Democratic voters believed that they had just elected the country's first black president. They'd solved a lot of problems. Everything was going to be okay now. And they took their eyes off the ball. And it's shocking in a lot of ways, because the Republicans didn't necessarily hide what they were doing in 2010. Karl Rove, you know, still the genius Machiavelli of Republican politics in 2010, writes an op ed in the Wall Street Journal that not only lays out the plan, but spells out the specific neighborhoods and states that Republicans were going to be competing in. And he says quite clearly, we are going to win these local elections, and those local elections are going to give us a huge advantage in Congress. Democrats just didn't get their newspaper that day. They didn't take it seriously. Republicans had a superior imagination to conceive of this idea and to kind of reinvent the idea of gerrymandering and to take something old and to make it new again with the help of this amazing new modern computer technology and all of this voter data. The Democratic party not only failed to have that kind of imagination, but they couldn't defend the 107 state legislative seats that Karl Rove told them he was coming for. And as a result, we've had a wild swing in our politics. I mean, the failure to see this coming. I can understand the failure to defend against it when Karl Rove tells you what he's doing is incompetence at the highest level. So.

But when you reported on this, when you actually did the research in this really rich account, very thick and rich account that you give in your book, I'm a little hesitant to say the word, but we're not broadcasting, so I'll say it. Rat. Fucked. There must have been Democrats who both recognized how embarrassing it was. I mean, you know, 2008 was a year where Democrats deployed technology in a really and smart way to defeat Republicans. There must be real embarrassment that they didn't realize that they needed to continue to deploy that technology. But there must have been people who gave excuses like we were doing X and Y or we thought that this was going to happen. I mean, what's the best case they have for what turned out to be so incompetent?

That's a really good question. I mean, I think that there were some Democrats who were certainly embarrassed, especially in hindsight. The congressman who took over the dark Triple C in 2012 told me that Democrats were simply whistling past the graveyard in 2010, that they never saw this coming and simply didn't prepare adequately for it. The Republican strategist, Chris Jankowski, who executed this play in state after state, tells me that he couldn't believe when he was out in the field in September and October, that there was just no sight of the Democrats that anywhere. And he kept thinking, at some point they have to come out and play in these districts in these states. And he's like, the union money, the teachers money, the illegal community money, you know, all of the traditional Democratic donor groups simply didn't arrive that year. And do and do battle. And honestly, what amazes me most about all of this is I don't think the Democrats even understood what happened in 2012. So Democrats lose this big election in 2010, and Barack Obama comes out in the Oval Office, gives his talk the next day at the White House, and he calls it a shellacking. And indeed it was. And then 2012 comes around, and this is the first election that's held on these new maps. And 2012 is a pretty good year for the Democratic Party. Barack Obama gets reelected. Democrats, I believe in, gain seats in the Senate, but Republicans hold the U.S. house. And it's not even close. It's 234, 201. And this is despite the fact that Democrats win 1.4 million more votes nationwide and Republicans hold on to the state houses in 2012, in Pennsylvania, in North Carolina, in Florida, in Michigan, in Wisconsin. And Obama doesn't win a North Carolina in 2012, but he wins those other states. And Democrats win more votes in all of those other states. Republicans keep control at the local level and they also keep control at the congressional level. So a state like Pennsylvania that Obama wins in 08 wins again in 2012. It sends to Washington a congressional delegation of 13 Republicans and five Democrats. So 51% of the vote turns into 29% of the seats for Democrats. And I think a lot of Democrats kind of scratched their heads that night and thought that they might do better down ballot. But they didn't completely make the connection between the loss in 2010, the redistricting in 2011 and these results in Congress and state legislatures until they didn't budge again in 2014, and they didn't budge again in 2016. And in a lot of states they didn't budge again even with the blue wave in 2018. And now Democrats realize, oh, falling asleep in 2010 had a decade's worth of consequences.

So is there a different strategy being deployed now by the Democrats for 2020?

I think there's an understanding of what went wrong in 2010 and that there is this renewed focus on trying to win back seats at the table. I mean, that's kind of a crude but effective way of thinking about redistricting. You know, it's a state by state process. And in every state there's a certain number of seats at the table. You win those seats by controlling the state house, the state senate, or the governor's office in most cases. So if you have one of those seats, you're able to exert some kind of pressure or at least be in the room when the maps are being drawn. What the Republicans did so well in 2010 was be sure that they had every seat at the table in all of these states. So that's a long road because Democrats have to take control of a chamber that has been gerrymandered against them. They've made some gains there or else you have to win a governor's office in these states. And Democrats have made gains there. They now have Democratic governors in Pennsylvania, in Wisconsin and Michigan that could stand as a veto power against a one party map. You also have had a lot of really effective litigation that has done a lot to change the state of play. You had a challenge in Pennsylvania at the state court level that forced a new map there. And that 13,5 the map was called an unconstitutional partisan gerrymander under a Pennsylvania state constitution, and In November of 2018, it produced nine Democrats and nine Republicans, exactly what you would probably imagine that a fair congressional map in that state would produce. But I think that the concern, if I was a Democrat, would be that Republicans are already thinking about how they can take fuller advantage next time. Republicans aren't trying to run the exact same play in 2020 and in 2021 as they did in 2010. And if Democrats are simply trying to counter the last plan in the next decade, that's not going to be enough.

Okay, so we're going to talk about that next plan in a second. But I want to go back to the dynamic of what this gerrymandering produces. So one thing that it obviously produces is safe seats. And, you know, Republicans are going to have this many seats and Democrats are going to have this many seats. Does it have an effect on a representative within a safe seat? So if you're a safe seat Republican, who are you worried about? Or if you're a safe seat Democrat, who are you worried about? And if this dynamic plays out the way you've described, does it have a net effect on the whole of Congress relative to what we think of as a representative mix of members in Congress?

Yes, I think that that is really the crucial question here, the effect that all of these safe seats has on our politics and the electoral incentives that it hands our legislators at both the state level and also in Congress. At its most fundamental level, if you are a safe seat Democrat or a safe seat Republican, you're not worried about losing a general election. So the only thing you have to guard against is a primary challenge. And those tend to come from somebody further to the left or right of yourself. So you are always thinking about the base and guarding against a primary challenge from the base. So if you, if you fear the extreme wing of your own party more than you fear losing a general election to the other side, you pay more attention to the extreme wing of your own party than you do to what anybody else in your district wants. But that's simply, you know, good politics if you want to hold on to your job. I think that these districts also produce, as a result, more extreme members. And the political science community doesn't necessarily agree with me on this, but I think that they're living, perhaps in previous decades under maps that were made in different ways. I mean, if you look at someone like Mark Meadows, who represents North Carolina and Asheville in the western part of that state, Mark Meadows would not be in the US Congress if not for the Influence of gerrymandering. When Republicans won the state legislature there, they were determined, and they've admitted this, to draw a 103 map for Congress out of that state. One of the key ways that they did so was drawing a line straight across the center of Asheville, the liberal hippie enclave in the western mountains of the state that is the biggest city in western North Carolina. It had been elected by a conservative Democrat who took one look at this new line and said, I can't win this election. So it becomes an open seat primary for a friendly Republican district. It's won by a small town sandwich shop owner, Meadows, who campaigns on a platform. And you can go onto YouTube and find the video of this. Meadows goes around the district and says, I'm going to send Barack Obama back to Kenya or wherever it is he comes from. Meadows goes to Washington and he doesn't like then Speaker John Boehner any more than he likes Barack Obama. It's Meadows who files the parliamentary motion to vacate the chair as a backbencher that eventually forces Boehner to step down as Speaker Paul Ryan arises. It's Meadows who forces the 2013 shutdown over Obamacare. It's Meadows, now the chairman of the ultra conservative House Freedom Caucus, who drives 50 something votes to repeal Obamacare Government shutdowns. This is a very different Congress that Barack Obama is dealing with, even though Democrats win 1.4 million more votes, all because of how you draw the lines. And then if you look at this at a state legislative level, I mean, look simply at all of these abortion prohibitions, these heartbeat bills that have arisen in states like Georgia, in Ohio, in Alabama, Missouri in recent weeks, legislators who do not have to think about the whole of a district or the whole of a state are able to behave differently and to legislate more strictly than if they are afraid of facing all of the voters. And I think a state like Georgia is a really good example of this because in 2018, Brian Kemp defeats Stacey Abrams by about 40,000 votes. And we could get into all of the various tactics that were used to help him, but I'm going to take those and put them over here. That's a sign of how closely divided and purple a state at Georgia really is. At the state legislative level, it's an entirely different game because of how Georgia is districted. In 2016, Georgia state houses had the highest level of uncompetitive races in the nation. It was over 80% of all state House seats lacked a major party opponent. And that's because they were drawn to benefit one side over the other. And you couldn't even imagine if you were a Democrat or a Republican offering a challenge there. The only challenges would be those kinds of intraparty primary challenges that we just talked about. Georgia did a little bit better in 2018, but it was still about 65, 66% of all seats that lacked a major party opponent. In the state Senate, it was more than half. And what gerrymandering does is it guts the idea of competitive elections, and it warps the idea of representation itself so that it produces legislators who are inclined by nature to pass more extreme bills, and then they are insulated from the public. If the public disagrees with it, it breeds a really dangerous situation.

Yeah. Now, what's interesting is to think about the way it's almost the perfect storm for this kind of sordid or polarized politics, because one layer is the districting, which creates this incentive to look to the extremes. Another layer is social media, where obviously the extremes punch much more effectively than kind of a moderate or more balanced position. And the third layer is just the broadcast media, where you've got this strong polarization of networks. There's a great data, Martin and Uruglu, who show that from 2000, if you looked at the three major cable news networks, CNN, Fox, and MSNBC, in 2000, 2001, they're basically indistinguishable. And beginning in about 2002, they start veering radically to the right on the. On Fox and to the left on MSNBC. CNN's sort of bouncing to be in the center, but what that means is that they're much more likely to pick up and push the extremists. So extremism gets rewarded at every level. Now, I think of myself as kind of politically extreme. So part of me is like, well, that's good. But another part of me says, you know, a representative democracy should represent the democracy. We ought to have moderates, if there are moderates in our democracy, so that they feel represented, too, so that they are represented, so that when Congress sits down, it's a Congress that's actually as diverse as America, as opposed to a Congress that's as crazy and extreme as we extremists are, whether we're Democrats or Republicans.

I think that's exactly right. I don't necessarily think, though, that this is about moderation necessarily. I think it's about askew between the actual politics of the nation and the kinds of politics we end up with in state legislatures and in Congress. And it's not simply moderates who are underrepresented. I think that it is an entire variety of independence of ideologies that lose out when this is the case. It fundamentally warps the connection between Americans and their government. And while it breeds a certain kind of extremism that plays really well for clicks on social media and headlines on Fox and MSNBC and all of that, I don't think that we need to be nostalgic for sort of an era of centrism. I think that what has been disconnected is just the very notion that Americans can change their government. And what's so dangerous about the way that technology and polarization and the media and all of these streams are coming together. What it has produced is this inability of a majority of Americans in a state or in a nation to change the course of its government. And that's what has to be fixed.

Yeah, there's this sense that there's no reason to get involved, to do anything because things are so well, entrenched. And if you don't like the way that it's entrenched, then what are you going to do? Okay, so what's really striking in the story you're telling, beyond the book that you've already published, is, as you put it, we were talking before this interview that in a certain sense, the Democrats are always fighting the last war. So let's follow a little bit more Hoefler and the innovations of Hoefler, this kind of quiet genius of political architecture. So beyond the fight that gets manifested so effectively in 2011, what's the next move?

The next move has been revealed in these amazing documents that have surfaced since his death. So Hofler dies in the summer of 2018. His business associate quickly stops by his house and picks up his computer and safeguards it. But his daughter visits the house a couple of months later, is looking for family photos, finds a handful of thumb drives, and there's 75,000 documents related to his work on redistricting included here, but also his work on the census citizenship question and what's.

Okay, but you've got to unpack that a bit. What is a census citizenship question?

Well, Republicans have pushed to add a question to the U.S. census that has not been asked for a long, long time, and that would be to ask whether or not the person filling out the form is a citizen of the United States. The goal of the census is to count everybody who lives in the country. It is not to count only citizens. It is absolutely everybody who is here. Because one of the things that the census does is it determines funding mechanisms for government programs that whether it's education or whether it's, you know, a social safety net or kind of all of these things that have to be accounted for, the government needs to have an accurate count of the people living in a state.

Yeah, let's be clear. I mean, you know, there are obviously citizens and there are obviously people who are not citizens. And of the people who are not citizens, there are people who are legally here as not citizens, whether it's on a visa or some other kind of permission. And then there's some here who are here who are not legally here. But the problem for many of them is that they're not confident that enforcement agencies will recognize the distinction between legally here and not legally here, and they'll suffer the consequences of the assumption that they're not legally here.

That's exactly right. Especially in this political environment. I think for more than a year now, there's been this concern amongst Democratic groups, but also civil rights groups that this question would chill response, that people would simply not want to fill out the census as a result, because they wouldn't trust that immigration enforcement wouldn't knock on their door if they admitted what they're status was. And that that would lead to an undercount that would dramatically change the nature of federal funding and perhaps also change the nature of the allocation of congressional seats. There have been studies done that show if you depress the citizenship count, especially of Latinos in a handful of states, what that does is it could transfer congressional seats from California and New York to a wider state such as Minnesota, Michigan and Montana. So that's a pretty big change right there. What Hoeffler was up to, though, was a step even further. Hoefler was not simply thinking about funding or about allocation of congressional seats. Hoeffler was thinking about how we redistrict state legislatures when we redistrict congressional seats. The Constitution essentially mandates the use of of total population, the districting of state legislatures. You're given much more leeway. Most states do use total population simply because it's the most balanced and useful way of doing this. It's also the information that the census provides, and it fits with our basic notion that representatives are supposed to represent everybody, whether or not you vote, whether or not you are a voting age, and whether or not you are a citizen. And what Hoffler began studying in 2015 is what the effect would be of states using citizen voting age population to draw state legislative districts as opposed to total population. And he's Doing this work on behalf of conservative donors who are thinking about bringing a lawsuit that would mandate the use of citizen voting age population to draw districts rather than total population. And he finds something very interesting. He takes a look at Texas, and he says, well, if you were to use citizen voting age population here, you would make the state much more Republican, you would effectively dilute the votes of Democrats, and you would enhance the electoral possibilities of whites and conservatives. And this is the game. The goal here is not simply to take control of chambers as it was in 2010 and draw new lines. It could be that the Supreme Court makes that more difficult. It could not be. But what Republicans are thinking about is taking the next step beyond this, changing the way that we draw these lines. At its most fundamental level, the population count, that has to be inside of a district. And if they're able to do that, especially in these large conservative states that have big immigrant populations, the effect could be to hold back the voting power of a changing America for another decade, maybe longer.

So these are all strategies that in a certain sense, are resisting reflecting the representative mix of America. So the strategies that were implemented in 2010 are about drawing districts in a way that achieve this effect. This really deep genius strategy of Hoefler's last dying moments is a strategy aiming at changing the very formula of these districts. And what is the argument against it? What is the rally that people have to have to say, this is not how it ought to be done? I mean, the question of whether it has to be done is separate from the question of whether it should be done. We could imagine politically resistant.

I think that's right. I mean, I think it goes down to what is the nature of representation and how do we ensure that it's fair and that our elections matter? I mean, we have since a series of landmark Supreme Court cases back in the 1960s, the goal of districting has really been ensuring that there's equal population and that it's equal total population, because we think that representatives ought to represent you Even if you're 15 years old, if you vote, if you don't vote, the goal is representation. And if you shift that notion to, you should have representation if you are a voting age citizen, you're changing something fundamental about American democracy in practice. And you would be shifting a political power in a dramatic and enduring way. And I'm not sure we fully understand just how important that. You know, it sounds wonky and technical, right? Drawing districts based on CVAP versus, you know, total population. But what Hofler and these other Republican strategists understand, and it's why they've spent so long studying it, is that it's got the power to remake the entire country state by state, and also nationally. It's a massive redistribution of political power away from cities and toward rural areas, away from communities of color, and towards and towards whiter, more conservative districts. And that's the purpose of it. It's not an accident. It's the entire purpose of the project.

So what's striking is if you add that to every other structural inequality built into our republic, starting from the Senate, which obviously embeds an unequal representation of citizens in the Senate, to the Electoral College, which embeds an unequal representation of people in the selecting of our president, to gerrymandered districts governing the House, which creates unequal representation in the House and not just by party, but also within a party, because it's benefiting the extremes to the way we suppress votes. We spoke to Ari Berman a couple weeks ago and he was quite articulate about the techniques that are used to suppress votes on a essentially partisan plays out in racial and partisan bases. These are all ways in which what we're ultimately producing is a democracy that doesn't actually represent the people in that democracy. And at a certain stage you've got to say, well, when does it stop or what stops it? And I think that one of the big problems with liberals, count myself in this category, but one of the big problems with liberals is we've been looking to the elite to solve the problem for us, the Supreme Court. We're going to go to the Supreme Court, get five votes and solve every problem. And of course, now we're forced to recognize we're not going to have that court, not in my lifetime. And so if you don't have a court, maybe we have to do it the old fashioned way. We have to really fight a democratic fight that begins to produce the kind of democracy that we want. Or in the old days you would have said a revolution to kind of throw off this unrepresentative system and produce a representative system. But do you have any confidence or faith when you look at this grassroots movement to begin to articulate fundamental values that don't seem so partisan?

It depends on the day of the week, and we're drinking coffee and tea right now, so sometimes it depends on, on that as well. I think that there is more awareness than ever in this nation, at least in my lifetime, of the structural problems within our democracy and of the need for big picture, serious systemic reform. You saw this manifest itself in the 2018 election in which across the nation there were votes on redistricting reform. In Michigan, Missouri, Utah and Colorado, there were votes on felon re enfranchisement. In Florida, there were anti corruption packages across the nation and just about all of them won. 96, 97% of all of these statewide initiatives won. And they won in red states, blue states, purple states. The message was fundamental and clear and

it was the biggest victory in the history of the nation. Even in the Progressive era, there was not that much that passed that quickly across the nation.

It's amazing. I mean, in Florida, in many ways, the victory of Amendment 2 there that restored voting rights to former felons was perhaps the biggest civil rights win since the passage of the Voting Rights act as far as its ability to return the vote to the largest number of people. It was 1.4 million people in Florida who had lost their voting rights and who largely would have seen them restored. And that was passed not by Democrats. I mean, Democrats lost the U.S. senate race in Florida in 2018. They lost the governor's race. This one was 64% of the people. So it means Republicans, Independents, Democrats, all signed on for something not because it was partisan, but because they thought it was crucial to the notion of representation and a fair and equal democracy. The same in Michigan where more than 60% of the people passed redistricting.

Yeah. And what's so striking, and this is, I think, really the most hopeful part of the story, when you could speak in the register of democracy, everybody gets it. Everybody's on the same side.

That's right.

We're going to talk to Katie Fahey on this podcast who was the woman behind the Michigan redistricting move, and she was militant about refusing to permit partisan talk inside their shop. Same thing in Maine with the incredible re ranked choice voting victories. They built an incredible volunteer movement premised on the idea that you were in there because you were a citizen, not because you were a Democrat or because you were a Republican.

And that's crucial to these passing and these winning. And I think we lose something fundamental if these democracy issues become seen as just another partisan football to kick around.

And that's the real question, though. How do we bridge this gap between these grassroots movements and what goes on in Washington? Because like, you know, I, you know, constantly am pulled in two different directions. On the one hand, I look at these grassroots movements and I think, wow, they're fantastic because they are cross partisan and they speak to the basic values of citizenship. And when you speak at that register, everybody's like, hurrah, yes, this is what I believe. And then you look in Washington and of course, the only way to succeed in Washington is to be as deeply partisan as you can. So AOC or Warren or, you know, kind of the equivalent on the right, a kind of Michele Bachmann like creature on the right. They succeed by denying the very premise of commonality. They succeed by insisting that, you know, we all just have to crush the other side. And it makes you wonder whether, whether there's a possibility of producing the same dynamic at the federal level or whether we have to find a way to hack the federal level so that it seems more like this fight at the state level.

Well, let me start by saying that while all of these grassroots citizens movements were able to transcend partisanship and win under the banner of democracy and equality and representative government, gerrymandered legislatures have since sought to crush these victories. In Florida, the legislature has essentially added a modern day poll tax onto the right to vote. They've undermined this amendment to the state constitution that almost 2/3 of the state backed by passing enabling legislation that essentially guts it for more than 1.1 of those 1.4 million people, according to a Brennan center analysis.

And that's by saying basically you have to pay all your fines or your penalties before you can reclaim the right.

Exactly. And this in a state that is famous for its cash register justice and adding all kinds of unreasonable fees on to a prison sentence after the fact. And it's not just in Florida. I mean, it's in Michigan where Katie Fahey's initiative passes and a gerrymandered legislature is now trying to affect the budget for the Secretary of state's office and their ability to enact this legislation. And it's in Idaho, where an amazing citizen movement passed a Medicare bill that would finally force the state to accept Obamacare money for folks that kind of fell in between the national exchange and the state exchange. And the state essentially tried to not only repeal that, but also to make it almost impossible, even harder for folks to put something on the ballot itself. So there's this.

It happened in Maine with the ranked choice voting. It happened in South Dakota. South Dakota passed a public funding proposal. I mean, here's a red state, if there's ever been a red state, they pass a public funding proposal and the legislature comes in and wipes it out. Yeah, and it's striking. I mean, in some places, like Maine, you really saw the resistance of the legislature triggering the public to be like, who the hell do you think you

work for all of this public outrage? And all of these citizen initiatives are the product of the fact that people feel like they have no voice in their politics. You know, it's not an accident that all of these things emerged in 2018 after eight years of gerrymandered on a representative government in these states. Citizens said, the only way we feel like we can have a voice is if we organize and run these initiatives and try to amend the Constitution or do this directly ourselves. And now those legislatures are saying, you know, are patting them on the head and saying, you know, thanks and all, but we've got this. And that is a frightening moment because if citizens then lose that ability, where are we?

Yeah. So that's got to be really leveraged to do something powerful in response. So there's a potential, but it's a really hard fight ahead. Okay. So I want to, I want to bring this to a close by just really thinking about what we could be doing. So if you, if you had power to just declare what the solution to the gerrymandering problem would be, what kind of solutions would you be pushing for? What is the right answer here?

I think that there are short term answers and there are long term answers. The short term is we're having this conversation in the spring of 2019, and we are on the verge of the next redistricting cycle that will happen after the census in 2020, so that the legislatures that are elected, you know, next year, this year in some states will be the ones who have the seats at the table controlling this process. We need to be thinking about and passing legislation in these states that demands real transparency and openness and a public voice in this process in as many states as possible. Because what has brought change in the courts over this decade has been when emails have been revealed, when folks have gotten a window in on the sausage, the awfulness of the sausage making process, they say, we don't like this, judges don't like it, people don't like it. It's brought change. So, I mean, I think that there are technical fixes we ought to be thinking about. Those are tough lifts in gerrymandered legislatures. But clearly there's enough public interest in this that we ought to be thinking about it.

But what about the congressional level?

But I mean, at the big congressional level, we have to be willing to think bigger and more daring. The fundamental nature of this problem, in many ways is not a redistricting, but it's districting itself. And there's a terrific plan by Congressman Don Beyer that he's put forth, it's called the Fair Representation Act. And essentially what that involves would be moving from single member winner take all districts that help breed this extremism and polarization towards larger districts that are represented by three, four or five members of Congress who would be elected with ranked choice voting. That would allow for much more fairness and proportionality in the kinds of people who are elected to Congress. You would see a dramatic change in the electoral incentives that are facing members. If you are running for office in a larger district and using ranked choice, you are not simply running to your extreme. You are trying to be somebody's second choice. You are trying to appeal to everybody and to really make a case. And then you are also opening up a representation in these bigger districts to independents, to third parties, to moderates, to folks of all political persuasions. This could be the kind of rethinking that it really transforms our politics. I think so much of what we're talking about when it comes to solutions to gerrymandering, they're good in many ways, but they're half baked and they don't address the fundamental problem. The fundamental problem is single member, winner take all.

Yeah. And we should remember, of course, that this is something that I didn't even recognize until I started teaching in this field. It used to be multi member districts in many parts of the country and we only moved to single member, winner take all districts relatively late in the history of the United States. And to the extent we see now that that very decision is producing the dysfunction that we see in Washington, we ought to be experimenting with other ways to do it. And the great thing about doing it at the congressional level, under the clear constitutional power that the Constitution gives Congress to fix this problem for Congress, is that we could solve the problem for all the country, all 50 states, at once, as opposed to this fight state by state where you're trying to get the courts to agree with you in these five year long litigation cycles that somehow they've made a mistake in the way they've drawn a particular set of districts and so redraw those districts. This is just ridiculous subsidy of legal work. Now, as a law professor, I should like this, but it's such a journalist.

I should too. It's funny to write about, but it's

such a waste of energy. We ought to be able to have a principle of equality that gives everybody an opportunity to have their voice matter. And I think this idea is a fantastic alternative. Now here's the one risk it creates that I go Back and forth in thinking about how we should think about it. You know, one of the weaknesses of our democracy is that we haven't more effectively built in the presumption of majority representative, like that a representative ought to represent a majority in a district. The great thing about ranked choice voting typically is that when you're using ranked choice voting to get down to a single representative, you insure a majority. Yeah. Like Maine did in 2018, and they selected the first representative who was selected by ranked choice voting. In that context, you know, they went from a plural winner to a majority winner because you eliminated the votes until you got the person who had 50% plus one. And so in a certain sense, it's a person we all could live with because we all have affirmed. Yes, I like that person. When you've got ranked Choice voting with 5 dis people in a district, the winner doesn't have to be anywhere close to a majority winner.

Right.

Doesn't have to, in some sense represent 50%. It could represent as low as 20%, depending on how it breaks down.

Does that.

Is that something we should worry about? Is there a way to tweak it that would actually make it so that we got higher representation of the winners?

I think you just have to think about it a little bit differently. We're sitting here in Massachusetts, which is represented in Congress by nine Democrats and zero Republicans. There are clearly Republicans in this state. This state has had a long run of Republican governors, including one now who's one of the most popular in the nation. Since Michael Dukakis was in office, the state has had exactly one Democratic governor. So there are lots and lots of Republicans living in the state. They have zero representation in Congress. If you were to move to, I mean, let's say Massachusetts has three districts of three, you might be able to actually elect Republicans also third parties of all different stripes. I think that the danger in our Congress is losing the voice of all of those people. Of Republicans in Massachusetts, of Democrats in Kansas or Oklahoma, of independents and folks of all different ideologies across the country who in a single member, winner take all system virtually have no voice. And if you're able to change that to something that's a little more proportional, you create much more fairness. You might not agree with every single one of the representatives from your district under this plan, but there's probably one person who you very much identify with. You would have a better chance of electing someone who you are happy with than under this current system. And that, to me matters a lot.

Yeah, yeah, I Mean, the reality is the current system doesn't produce majority representation either, for all the reasons you've described about people focusing on the extreme. So you're producing representation of the extreme in your district, which, of course is a tiny fraction relative to the majority. So I'm all for experimenting and pushing this idea forward. I'd love to see it. When I tried to become a candidate for President in 2016, I endorsed that proposal precisely because I thought it was the simplest way to deal with the problem of gerrymandering. And I think this is one of the core of the focuses we need to have for what reform looks like. Okay, as we end, I want to ask you, what's next for you? You're finishing a book that's coming out, or you must have finished it because it's coming out in, I guess, in the beginning of the year. Is that the one?

Yes, it'll be out in January. It's called Unrigged. And I spent much of 2018 on the road chronicling a lot of these citizen democracy movements. So I was with those reformers in Maine who saved Ranked Choice, voting in the Medicare Express RV across Idaho with these amazing millennials who, you know, essentially brought health insurance to, you know, tens of thousands of people in that state who didn't have it and refused to accept no for an answer. I was in Michigan with Katie Fahey and all the superhero volunteers there, in Florida with Desmond Mead and the folks who, you know, won the felon reenfranchisement in North Dakota and Utah with these amazing activists fighting for Native American voting rights and kind of embedded on all of these lawsuits in Pennsylvania and elsewhere, that it brought a lot of change and trying to tell a story of what happens when citizens stand up and push back against structural barriers that a lot of people might have imagined were too big, too tough, too resilient to fall, and too geeky to fight for.

I mean, the idea that in Maine you've got this extraordinary movement of volunteers to fight for something called Ranked Choice,

voting on the cold, coldest main mornings. You have to imagine December is when they're out with these petitions. It's so cold that pens are freezing as these folks are going door to door. It was an amazing gift to be able to spend those months with people who logged off of Twitter, who turned off the cable news silo that they already agree with, and they went out and they joined with their fellow citizens and they took on something structural, and they brought change.

It is exciting. Is it an optimistic book?

It's an optimistic book. You know, it's tricky to watch as a lot of these victories get unraveled by gerrymandered legislatures. But I think that that's the lesson here. The lesson, because you can't simply win one election and think that you've won the fight, right? That's the same thing that the Democrats did in 2008. So if anybody thinks that because all of these democracy fights were successful in 2018 that the problems have been solved in those states, they are fooling themselves. These are ongoing battles, and what matters is not the results of any one individual election, but that we all stay active and engaged and involved because that is what actually brings about change.

So that's really exciting. And I urge people to take the book up unrigged. And you would be convinced to read that book if you read the book Ratfakt, which is about the gerrymandering struggle. It's been enormously fun having this conversation with you. Even better because it's face to face and I'm grateful for you taking the time to it daily.

It's a real pleasure. Thank you for everything you do.

Stay tuned next week for another episode on the third season of this podcast, subtitled POTUS 1, when we'll be talking to another presidential candidate about his or her conception of fundamental reform and whether that reform will come first. Thanks very much,

Sa.