← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Gerrymandering Goes Back to Court
00:33:03
As is so often the case, all eyes are on Justice Anthony Kennedy.
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- [00:03]
A
Everyone who's putting their faith in Justice Kennedy to save voting rights in this country is putting a lot of weight where it might not be warranted.
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B
Hi, and welcome back to Amicus, Slate's Supreme Court podcast. I'm Dahlia Lithwick and I cover the courts and the law for slate.com with only a few short weeks to go before the first Monday in October, it seems like a pretty good time to come back from our summer hiatus and deal with that little thing we call the 2017 term. Now, a lot has happened since we left you in June, and as the justices make their way back from their summer vacations, we're headed into what may well be the blockbusteriest term in a very long while. And no issue is more complicated and more urgent this term than voting rights. It's an issue that tends to either glaze you over or make you set your own hair on fire. And so our guest today is more likely to steer you, we hope, toward the latter of these two options. Rick Hassan is the Chancellor's professor of Law and Political Science at the University of California, Irvine. He's the curator of the Must read Election Law blog. He has an upcoming book about Antonin Scalia that will be out in the spring and hopefully here to give us a lay of the voting rights land and talk us through some big cases on the docket this term. So, Rick Hassan, welcome back to the show.
- [01:30]
A
Thank you so much for having me on again.
- [01:33]
B
So I want to start where I started in the intro, which is this is a big, big term 2017, if only because at least with respect to voting, this may be the most consequential term in decades. Am I overstating that?
- [01:48]
A
Well, I think on the question of partisan gerrymandering, this is the moment that is when party is being used to draw district lines. And whether or not that is something the courts are going to Big case Gilby Whitford coming up on other cases, including a case out of Ohio. And now we know the Texas redistricting cases are going back to the Supreme Court. Not clear if there'll be blockbuster in that area. But certainly on the question of partisan gerrymandering, everybody's watching this case.
- [02:21]
B
So why don't you walk us through Gilby Whitford that's going to be heard on the first week of the term and help us understand what it means that the court is going to dip into this question of partisan gerrymandering after a very long time of wanting nothing to do with it.
- [02:41]
A
Right. So it is one of these issues that has divided the justices for decades. The question is when? Usually we're talking about state legislatures draw district lines either for their own legislature, drawing their own lines, or drawing them for Congress. It's not unheard of for legislators to draw lines in self interested ways, not only to protect incumbents, but to give a particular party, the party in power, an advantage. It's happening more by Republicans than Democrats these days, I think for the simple reason that Republicans control more state governments than Democrats. But it's not only a Republican problem. And in fact, another case waiting in the wings comes from Maryland and there's a claim of a partisan gerrymander there. So the question is how much taking political consideration and drawing lines is too much. In the 1980s, in a case called Davis v. Bandemer, the Supreme Court said, yeah, we can hear these cases and here's a standard. And the standard proved to be so impossible to meet that there was never a successful partisan gerrymander case brought in any court after that. Then back in 2004, the key case was called Veith v. Jubeller. It arose out of Pennsylvania's districts and there the court divided 4, 1, 4, which is an odd division. Four justices led by Justice Scalia, said, we don't have any standards to decide when taking party into account is too much and drawing district lines. These cases are non justiciable. Courts can't hear them. They're kind of political questions. The four liberal justices disagreed, said, we can hear these cases and they each set out a bunch of different standards based on bad intent or bad effect or a combination of the two. And Justice Kennedy stood in the middle. And Kennedy said, I agree with the liberals that courts should be open to hear these cases, but I agree with the conservatives that all the proposed standards so far are unmanageable. So yeah, we'll hear your cases, but you're going to lose unless you come up with something else. And you can understand the last 13 years as a struggle to come up with something else that would satisfy Justice Kennedy. And the Wisconsin case, Gil de Whitford, challenging the districts in Wisconsin, tries to come up with a new standard or a better standard that could satisfy Justice Kennedy and presumably the former liberal justices to start policing this before Justice Kennedy might leave the court in a retirement as people expect, if not this year, coming up in the next few years.
- [05:26]
B
So stop for a minute, Rick, and just tell us, because as you've suggested, this is happening all over, but the court in Gill is looking at this Wisconsin gerrymander can you just paint a picture of how that sorted out and why. It certainly looks to the naked eye like a pretty partisan political gerrymander that we're talking about in Wisconsin.
- [05:48]
A
Well, Wisconsin is one of those states. Another one is North Carolina, where we think of them as pretty evenly divided between Democrats and Republicans and people who lean with them. And so you'd expect to have, you know, roughly equal division of legislators or members of Congress if we're talking about congressional resisting. But in fact, the way the legislative lines have been drawn, the Democrats might get a majority of votes, but not get a majority of seats. And so that's a kind of asymmetry or kind of bias in the plan in the North Carolina case. This is one of my favorite facts from the case. North Carolina was found to have been a racial gerrymander, and we can talk about that after. But to remedy that, they engaged in a new redistricting where they explicitly said on the record, we are engaging in a partisan gerrymander because they know that there's been no standard to police these. And they asked one of the legislative leaders, given that it's a 50, 50 state, why did you draw 10 of your 13 congressional districts to favor Republicans? And the answer that this legislative leader gave was because we couldn't figure out how to draw an 11th. And I think this is what if you give the people who are in power the chance to draw the lines, they're going to sometimes take advantage of it. And the question then is, is there a standard to say this is too much and courts are going to come in and they're going to put some brakes on this?
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B
So here's where you get to explain. And really, I did caution listeners that you, you're glazing over, but this is critically important. We actually have a test, at least in Gill in the Wisconsin case, and it's called the efficiency gap. So talk to us, Rick, as though we've maybe been asleep all summer about what that is meant to be measuring and whether the folks who think, hey, here is your workable standard, Justice Kennedy, whether this is something that really could be the silver bullet for, for the Supreme Court.
- [07:48]
A
Sure. So the efficiency gap is a measure of partisan bias in plans. It comes from, in redistricting plans. It comes from work that was done by Eric McGee of the Public Policy Institute of California and Nick Stephanopoulos, who's a professor at the University of Chicago. And it's basically a way of measuring wasted votes and what I mean by a wasted vote or what they mean by a wasted vote is, you know, it only takes a plurality of votes to win. You just have to get more than the other guy. If you stick a whole bunch of Democrats or Republicans or African Americans or whoever into a district, if you pack them in so there's a district, say that's 75% Democratic, you're wasting those votes. And so what they try to do, because you only need 51 out of 100, say if we're taking a simple thing and you put in 75%, what, what the efficiency gap tries to do is measure whether a plan is biased towards one party or the other. Is it packing or cracking, dividing up what could have been a majority district helping whatever group is being cracked? Is it wasting more votes of the party out of power than the party in power? Now, even the authors of the Efficiency Gap don't present this as the holy grail for Justice Kennedy and the lower court. It was a three judge court, said the efficiency gap is something to consider, but it is not the only thing they're hanging their head on. And so while much has been made of this measure, it is really one of a number of tests that have been put forward in these cases to try to show that there is a manageable way to figure this out. And I should point out one more thing, which is that what's happened since the 1980s and even since 2000, 2004, when the court decided be, is that computers have helped redistricting and big data have helped redistricting authorities make more efficient gerrymanders. They're able to draw gerrymanders that last throughout the decade. So even as population shift, even as political winds change, they proven to be pretty resilient. And there's a brief from professors Groffman and Gaddy, probably two top redistricting people in the country who say now is the time to start reining this in. And Gaddy was actually someone who's been involved in drawing Republican districts and gave some aid to the Wisconsin legislature when they were trying to figure things out early on in terms of how to draw the districts. And they're saying things have changed technologically and maybe that's the reason now for the courts to get involved.
- [10:38]
B
I want to give you a chance to talk about the difference between political gerrymanders and racial gerrymanders, because you flicked it in one of your answers. And I think it will help clarify the scope of what's on the table right now.
- [10:51]
A
Sure. So under the Voting Rights act, it is essential that race be considered in drawing district lines when you have large populations of minority voters to make sure that their votes are not diluted. That's what Section 2 of the Voting Rights act requires. But since the 1990s, in a case called Shaw vs. Reno, the Supreme Court has said that if you take race too much into account in drawing district lines, that counts as an unconstitutional racial gerrymander in violation of the equal protection clause of the 14th Amendment. And when race is the predominant factor or predominant motive in drawing your district lines, that's unconstitutional. Now, initially, these cases were brought in the 1990s by conservatives that were trying to stop the United States Justice Department from forcing mostly southern states to draw more majority minority districts. They kind of faded away after the end of the 1990s. And then the Supreme Court gets rid of a different part of the Voting Rights Act, Section 5, which required the Department of Justice to be supervising these mostly Southern states and how they draw their lines. But the cases came back in the last few years. Whereas in the past, the racial gerrymandering cause of action was severely criticized by liberals, Democrats, and supporters of minority voting rights as kind of a non nonsensical standard, not based on any vote dilution, but just based on how much is too much thinking about race when you draw your lines. Now, you had in a number of southern states, including in Alabama and North Carolina and Virginia, you had state legislatures draw what looked to be partisan gerrymanders, where they pack reliably Democratic voters who happen to be black or Hispanic into a smaller number of districts, not enough to create a vote dilution claims. But the state said we had to do it because Section 2 of the Voting Rights act made us do it. And the Supreme Court now in three cases, has said, no, these were racial gerrymanders. You took race too much into account when you didn't need to. The Voting Rights Act Section 2 did not require you to do this. And so now this racial gerrymandering cause of action has been transformed into a tool to help the left rather than the right in their voting rights cases. And the response, as I mentioned earlier, in some states, has been, okay, North Carolina says we won't even look at race at all. We're just going to engage in partisan gerrymandering. And so one question is the relationship between these two? Is it race or is it party? In the south, places like North Carolina, what does it mean when 90% of African American voters support the Democratic party and more than 2/3 of white voters support the Republican party? When you engage in a gerrymander, is there a racial gerrymander? Or a partisan gerrymander. It seems like it's a real mess to try to disentangle these two things.
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B
So, Rick, can you talk a little bit about events this past week in Texas? Because I think you suggested that we have at least some tea leaves from the Wisconsin case giving a sense of whether Anthony Kennedy has found his beauty pageant contestant, but a lot happening in Texas. That also, I think, goes to. What is Justice Kennedy thinking on some of these cases? Correct.
- [14:30]
A
Yeah. Well, I think I could teach an entire voting rights course just using cases from Texas or North Carolina. There's so much going on in those states. There are two big cases in Texas right now. One involves redistricting. The other involves Texas voter identification law in the registrant case. This case has been going on for years. We're almost at the end of the decade. This litigation, I think, has been going on since 2011. It's just been crazy. Finally, the three judge court, lower court, federal court found that some of the districts for Congress and some of the districts for the Texas House, the state legislative body, were either a violation of Section 2 of the Voting Rights Act. They created a dilution of minority votes, or they were racial gerrymanders. They took race too much into account. So we had both of those kinds of claims. And the lower court had ordered Texas to draw new lines to solve these problems or the court was going to draw it for them. And before the court, the lower court even ordered those new lines, Texas went to the Supreme Court and said, stop this right now. Let's stop this in the tracks. Don't even allow new lines to be drawn for 2018. And the Supreme Court on a 5 to 4 vote for both Congress and the House has stopped the redistricting from going forward until after there can be an appeal of this case to the Supreme Court. It was a surprise not only, you know, that you had Justice Kennedy here siding with the conservatives on the court. We know the four dissenters were the four liberal justices. It was a surprise not only that Kennedy was willing to make this stop here, but also that it was not really even a final decision of the lower court. They hadn't drawn the lines yet. And so it wasn't even clear that it was procedurally proper, but the court came in there. In the meantime. There's been a challenge to the Texas voter ID law that's been going on for a long time. A number of courts have found it to be discriminatory. And the lower court had finally said, you can't use this law at all because it was passed with an intentionally racially discriminatory motive that was appealed to the Fifth Circuit, United States Court appeals for the Fifth Circuit, where that court, a panel of judges on a two to one vote, stayed that. And so they're letting Texas enforce its somewhat modified voter ID law while an appeal goes forward. And now the challengers of law have asked the entire 5th Circuit to step in. This case also will eventually, I think, go back to the Supreme Court. And in both the Texas redistricting case and the Texas voter ID case, there's an issue lurking in the background, a huge issue. In both cases, the courts have found that Texas engaged in intentional racial discrimination in its voting laws. That can be the predicate for putting Texas back under federal supervision for its voting laws for up to 10 years under a provision of the Voting Rights act called Section three, bail in. And so we're all watching to see what happens there. And I, for one, was hoping that not only that Texas would have been bailed back in and put back under federal supervision, but that all of this would have happened quickly enough that Justice Kennedy could still be on the court. He really still is the swing voter in these cases as well.
- [17:54]
B
So you're talking. I think it's important to separate. We've talked about racial gerrymanders and partisan political gerrymanders, and now we're starting to drift into voter ID and vote suppression. And that gives you an opportunity to talk about the other blockbuster case, I think, which is a case that comes out of Ohio. It's Ohio's Secretary of State, John Husted's appeal of a lower court decision that rejected his policy of purging the voter rolls. Can you talk a little bit about that case? There's so many pieces of this. But just laying out what the issues are in the Houston case that the court will also be hearing this term.
- [18:37]
A
Sure. And this is really the first case, I think, since, in almost 10 years where the court is really getting into one of the key fights in the voting war is the fights over voter ID laws and voter registration rules and all of that. And what's happening in the Houston case has to do with the procedures for removing voters from the voting rolls if those people have not voted. And before I get into the technical details, why does this matter? The single biggest impediment for people to vote in the United States is they're not registered or not properly registered. We have in a lot of states, tough voter registration rules. And one of the ways that people get off the registration rule is if they are purged from the list. So you can be removed from the list under federal law only under certain circumstances. And the fight in the Houston case is over whether or not Ohio can send you basically a postcard. If you didn't vote in the last two years in the federal election, you didn't vote, can they send you a postcard saying, are you still registered? And if you don't answer, and then in the next two federal elections, you don't vote, you're removed from the rolls? And so what's at stake in this case is an interpretation of the interaction of two laws. The mode of voter law, the National Voter Registration act of 1993 and the Help America Vote act of 2002, and how a bunch of statutes work together. It's a very technical kind of question as to how to read these statutes together. The lower court judges divided. The United States government came in and supported the position of the challengers when the case was in the Sixth Circuit Court of Appeals in Ohio. And now with the new Trump administration, we've seen one of those reversals. They filed a brief supporting Ohio in the Supreme Court, and they acknowledge in a footnote, the change of administration has caused us to change our position on this issue. And that's something generally that the Supreme Court doesn't like to see. They like to think that the Solicitor General's office is somehow above politics and, you know, keeps a principled position. But what we see here is a switch of positions. And what we see is potentially talking about the stakes in this case, the United States supporting the ability of states, and I think we're likely talking here, Republican states, to make it easier to remove people from the voter registration roll, which can tend to depress turnout.
- [21:19]
B
And not to put too fine a point on this, Rick, but this is really the National Voting Rights act of 1993, the Help America Vote act of 2002. These are efforts to expand the franchise. And what you're saying is that the Jeff Sessions Justice Department is actually now kind of gunning for that legislation and saying, you know, not only are we going to let this purge stand, but that we're actually calling into question those federal statutes, right?
- [21:55]
A
Well, I think they're talking about the interpretation of the statute. And I guess I disagree with you a bit about the Health America Vote Act. This was passed in 2002 after the Bush vs Gore Florida debacle, and it was a compromise between Democrats and Republicans. Some things make it easier to register and vote. Some things make it harder. But I think the question of how the NVRA and HAVA are interpreted has not only become politicized, but it's pretty clear that the Jeff Sessions Justice Department wants to use the parts of the NVRA that require cleaning voter rolls as a means of trying to remove more people from the voter registration list. There's been a huge fight going on for years over whether or not the states of Kansas and Arizona can require people who register to vote using a federal form that the NVRA and HAVA allows for registering to vote, require those people to produce documentary proof of citizenship, show me your papers, or you're not allowed to register to vote. And one of the things that I think is going to come out of this Pence Kobek Commission, which you may have heard about, this voting commission that's stacked with people who've said that, you know, it's too easy to vote in this country, one of the things that is going to come out of there I think is probably going to be a recommendation to allow states to be able to do this. You know, with Kobach in charge, that would be kind of the logical thing we would expect him to advocate for. And we might have the Department of Justice behind that position in a way that it had been fighting that position in the past.
- [23:30]
B
Well, I want to talk a little bit about the commission. You've been in defense fatigable this summer covering every bit of the slip and slide. But I want to give you an opportunity for folks who may have freaked out initially in June, there was this big request that states turn over all sorts of documents. And then I think in the mayhem that's ensued in other places, a lot of folks may have forgotten that that commission exists or that it's quietly going about its work. Can you talk a little bit about the meeting this week in New Hampshire that the commission had?
- [24:07]
A
Yeah. So the commission was formed, unlike the way most commissions were formed, that deal with voting issues in the past. Usually you pick an elder statesman from the Democratic Party, an elder statesman from the Republican Party, get them together, get some, you know, luminaries, some election professionals, some academics who study this, get them together and talk about ways to improve the process. We had something like that a few years ago with a commission headed by Bob Bauer, who was former White House counsel, and Ben Ginsburg, who was Mitt Romney's general counsel, a Democrat and Republican. This commission's different. It's headed by someone who's running for reelection. Mike Pence, vice president. There's no Democratic co chair. The vice chair is Kris Kobach, who is one of the country's leading proponents of making it harder for people to be able to register and vote. He's joined on the commission by others who fit in the same category. And Dalia, you and I have been writing about Hans von Spakowski for well over a decade. I went back and looked at some of our old writings. So he also fits in that category. And there are others as well, including Ken Blackwell, former Secretary of State of Ohio, who was infamous for wanting to reject voter registration forms that were put in Ohio that were not on the paperwork, was not on heavy enough weight of paper. He was going to not register those people. So staffed commission, fewer Democrats, fewer prominent Democrats. And just this past week, a FOIA request from the Campaign Legal center revealed that someone sent a letter and there's some controversy as we're recording this over whether or not this was Hans von Spakowski or someone else sent a letter saying that this commission should not have any Democrats on it, any mainstream Republicans or any academics, because they're going to stand in the way of what this commission might want to do. The commission had a meeting in New Hampshire, and the meeting happens in New Hampshire where one of the few Democrats on the commission, the New Hampshire Secretary of State Bill Gardner, that's his home state. It took place there. And just a few days before the commission meeting, Secretary of State Kobach, the vice chair of the commission, the Secretary of State of Kansas, and a paid Breitbart columnist, wrote a column where he basically said that the state of New Hampshire had so much fraud that Senator Hassan should not have been elected and Hillary Clinton maybe should not have been awarded the votes from the state of New Hampshire that there was so much voter fraud. And it was based upon this spurious argument that look at all the people with out of state driver's licenses who were registered to vote. Well, it turns out in New Hampshire that you can use an out of state driver's license to register to vote. Many college students have them because they come from another state where they had a driver's license. They're not driving in New Hampshire, but they're still qualified to vote in New Hampshire under New Hampshire law. It's very clear. And he was called out, Kobek, for making these statements. And while he said some conciliatory things at the meeting, he hasn't backed off. His view is kind of, well, we'll never know if there was so much fraud. And I think that's what I'm expecting from the commission. In the end, it's going to be A report that says if there is a report that says we don't know how much fraud there is, but the potential for fraud is there. And therefore, we need to take these steps to prevent fraud to make it harder for people to register and to vote. I think that's the end game. I think so much has been exposed about the bankruptcy of this commission and what it's trying to accomplish that I hope that no one pays any attention to what it's going to do if it issues a report. Kobach did say that there was a high possibility that the commission will issue no recommendations at all, which makes you wonder what the point of this whole exercise is. And I think it's also a testament to the fact that so many of us have been paying attention to what's going on and calling them out for their nonsense, that it's going to be very hard for them to be able to, especially with the few Democrats on the commission, to go along with whatever it is that these people might come up with.
- [28:27]
B
Well, I think I wrote somewhere in July that despite the fact that the rollout of this commission was just a train wreck, I mean, in every single way, it almost doesn't matter when, if in some sense the commission wins by losing, right, they get to say, oh, you know, folks are losing faith in the system. And, you know, here are all these voters in Colorado who are unregistering to vote because they don't want their information shared. So there's a deep nihilist strain through all of this. Even if they produce nothing, the fact is if they are destabilizing confidence in the very act of voting, maybe, maybe they get what they want, which is fewer people voting. Am I too cynical?
- [29:13]
A
I think you're exactly right. And, you know, it fits in with all of the statements that President Trump had made about completely unsupported and illogical statements about millions of fraudulent votes being cast or elections being stolen in mostly African American neighborhoods of Philadelphia, or all the different kinds of things that have been said, really undermining confidence in the electoral process in a way that I think is dangerous to the foundations of our democracy, which is why I've been paying so much attention to it these last few months.
- [29:45]
B
So to circle back to where we began, Rick, does that weigh on the justices? I mean, do the justices, you know, you've mentioned that Justice Kennedy seems to want to get this thing sorted before he retires. Does he worry, do you think? Does he lie awake at night and say, man, folks are losing confidence in one of the very pillars of our democracy, which is the meaning of their vote. Does that inflect on the way he thinks going into Houston, going into Gill? Is that why he's willing to hear this again now?
- [30:20]
A
Well, you know, I can't get into Justice Kennedy's mind. I think they had to take Gill because just procedurally, otherwise it would have been huge question mark over when partisan gerrymandering is unconstitutional. So I think they had to take Yell. And the fact that he put a kibosh on a temporary redistricting while the court heard the case is not a good sign for those expecting him to get in there. And in the Houston case, remember, the 6th Circuit had the more enfranchising opinion said you can't just send people these postcards after two years. And presumably Kennedy voted to hear that case. Now maybe he didn't. I don't know. You know, we're not given the votes on the cert Grant. But when I saw the order from Kennedy in the Texas redistriction case, my first reaction was everyone who's putting their faith in Justice Kennedy to save voting rights in this country is putting a lot of weight where it might not be warranted. It's not clear what's going to happen. He is the most powerful person in the law in the United States right now. I think there's no question about that. But I can't tell you what he's going to do in these cases. I certainly hope that some of the shenanigans that we've seen with voting weighs heavily on him, but I don't know.
- [31:39]
B
Rick Hassan is the Chancellor's professor of Law and Political Science at UC Irvine. He's a nationally recognized expert in elections law and in campaign finance law. And you can find him every day toiling away at Election Law Blog. His upcoming book on Justice Scalia will be forthcoming this spring. Rick, thank you so much for joining us to help us try to piece together what's coming down the pike.
- [32:05]
A
It's been a real pleasure.
- [32:11]
B
And that is going to do it for today episode of Amicus. We are happy to be back and look forward to hearing all your thoughts and questions in what is going to be a big, big term at the spring court. Our email is amicuslate.com and you can always find us@facebook.com amicaspodcast Today's show was produced by Tony Field. We had engineering support from Evan Viola. Siv Lichtai is our executive producer and Andy Bowers is the Chief Content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at Panoply fm. I'm Dahlia Lithwick. Welcome back. Thanks for listening.