← Bulwark Takes
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A
Hey, everyone, it's me, Sam Stein, managing at the Bulwark. And I am joined by a familiar face. Everyone has been longing for him. To grace this channel and record a Bulwark take, we have Mark Caputo.
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B
Hey, Sam.
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A
What's up, buddy? How you doing?
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B
Good to be back.
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A
It's great to have you back. So Mark's here to talk about his home state of Florida. There is a redistricting map that has been released by Governor Ron DeSantis. Mark knows this stuff inside and out. I don't trust him on anything else, but on this one, I will trust him. So we're going to dive into it, Mark, before we get into the actual particulars of the map, the reason I wanted to have you on is because you know the Florida law and you've been. I'm reading between the lines a little bit, but not too much. I feel like you've been a little bit skeptical, dubious perhaps, about the legality of this, because Florida's got a fairly straightforward constitution when it comes to redistricting, which says you can't do it for partisan ends. Right? Is that. Is that my read?
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B
Right? You can't intend to favor or disfavor an incumbent or political party.
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A
Okay, so tell us how that law.
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B
You can't draw district lines to favor or dispute.
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A
So what does that law. Where did that law come from and how strict is it?
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B
In 2010, 63%, roughly, of Florida voters voted on two amendments called the Fair District Amendments, that limited legislative redistricting the way we just described and congressional ones. And it's one of very few things in law that's very clear. The first time it went into effect was in 2012, and it caused just a lot of hand wringing and Sturm and drawing, because the proponents of the amendment, Democrats and liberals, largely sued as soon as the legislature in 2012 passed its redistricting map. And they were able to prove in court that the Republicans who controlled Florida's legislature intentionally drew districts to help their party advantage their party and disadvantage the Democratic Party. That's something that used to be common, but now it's not permitted. And when you Fast forward to 2022, DeSantis is looking at running for president, and he and the Republicans know that there's this tight limitation. So they start to change the way they do redistricting, and DeSantis essentially sort of takes it over himself and, and removes from the record in a lawsuit the sort of ability to engage in that discovery, to easily find that partisan intent. That takes us to today, where DeSantis heeding or following Donald Trump's call in July, roughly, of 2025 of last year to, hey, create me more Republican seats, Republicans, Des or Trump essentially decrees the legislatures, starting with Texas start to do that. And at that point, DeSantis says, yeah, but DeSantis sort of knowing that Florida has this constitutional limitation, he claims, well, the reason we're doing this is that the, the census ripped us off in Florida from having the proper number of congressional seats. And the Voting Rights act, as applied in, in redistricting in Florida, DeSantis said, was violative of the 14th Amendment in the U.S. constitution. And therefore, we need to have a redistricting thing that takes us to today.
- [04:13]
A
Okay, let's talk about today. So they put out a new map. Current map is 20 Republicans, 8 Democrats. Under the new plan, the proposed outlook is about 24 to 4, right? Yeah, it can be.
- [04:26]
B
That depends on what you're using as your benchmark. But, yeah. So Republicans essentially pick up a net, just on paper, of either eight new seats, Republican seats, or four new seats. And the reason we're saying eight new
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A
seats, it's not going to be 28 to 0.
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B
Well, correct. Currently they're 20 to 8. If you bring it 24 to 4, that's a net increase.
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A
Sure. Yeah. Okay. New seats.
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B
Right. And that's how I'm thinking of it in those terms is because this effort is designed to get more Republican seats. What's different here is DeSantis is almost saying, yeah, sure, the Florida Constitution says that, but you know what? Not constitutional. We need to cancel the Fair districts amendment. So it's very clear that he's essentially admitting it's done for partisan purposes and partisan gain.
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A
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B
I, I think initially that was the case. But when you look at the way this is done today and you hear his arguments, he's sort of, as I said, he's sort of admitting, hey, this is being done for partisan reasons. But to, to rewind the, because the law is an intent law, in order to defeat it in court, the opponents, when they sue, are going to have to engage in discovery. And so DeSantis has three basic ways of discomfiting a lawsuit and, and getting his maps through this year. Okay, so thing number one is they've drafted in secret and so they have a very small number of people who can be deposed and that is going to take a little longer to kind of get to them. So that's one. Number two, because it's being done in the Executive office. He's going to argue, as he did in 2022, they expect him to. Executive privilege, hey, you can't look at this. And by the way, the executive privileges, he likes to argue it is more of a federal concept than it applies in the state. And also something called that. He's going to argue the apex doctrine, which is. Under the apex doctrine, you have to. You can't just go right to the apex of an organization. You have to have to start with underlings and work your way up. That burns time as well. And since time is so important, that brings us to the third thing, which is the Purcell principle, which as Purcell was a 2006 U.S. supreme Court case that essentially said, hey, courts, you can't really interfere with state election laws too close to an election because it'll cause voter confusion. And so when you put these three things together, the executive privilege slash apex doctrine argument, the argument or the. The ability to kind of limit who did this and the Purcell principle, you have a play for time that he could be making. And then in addition to that, you have the argument today where he's basically also saying, hey, fair districts doesn't apply anyway. Violates the 14th Amendment. You need to throw.
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A
But doesn't. It doesn't. Okay. There's so many different ways to take.
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B
Yeah, sorry.
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A
One is. No, no, it's. It's fair. It's. One is. On the timing issue. Well, let's start with the fair district law that. So he's basically saying it's invalid law, but he's not making that case in court. He's just going for it. Not yet. He's going to have to.
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B
Oh, yeah, correct.
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A
So that's one lawsuit. Then there's going to be a secondary lawsuit, as I understand it, which is Democrats are going to say, no, this actually does violate the law. So there's two. Or maybe they'll get combined into one. But then the timing components. 1. That kind of tripped me up because I don't know. I'm not. I haven't said this. This is why I have you on it seems like that's either high risk and high reward, right? Like, let's say they get a injunction and they don't allow the maps to be voted on. Doesn't the Purcell argument then work in the opposite direction where it's like, actually, no, you can't go forward with this because we're getting too close.
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B
It could, but the idea generally with courts is that they're supposed to defer to lawmakers who have passed thing however, the.
- [09:55]
A
But they haven't passed it yet. So the law, state houses have to pass it quickly.
- [09:59]
B
Correct. And Purcell usually can be used by a legislature in a case where it's at the beginning of the new cycle and at the beginning of a new redistricting cycle. You know, at the beginning or right after the new census, like in 2022. In 2022, when the legislature passed its maps past the Desensus maps, they were sitting on maps that had passed years before, and therefore, in 2022, they were out of date. And so there's more of an argument to be made is like, look, you got to stick with these maps that we passed here in 2022, because the other maps are mal apportioned, as they'll say, and the district boundaries don't apply, and they're bad. The thing is, nowadays you have maps that were lawfully passed and upheld in court in 2022 as constitutional. And now DeSantis is coming in like, oh, no, no, no, these aren't actually constitutional. And just to rewind on another thing with the Fair districts amendment, there are two things to remember about this. There's essentially two clauses for our purposes. Clause number one is you can't draw districts to favor or disfavor intentionally, an incumbent or a political party. And then clause number two is that there's an exception to this. To a degree, there's an exception. Or better said, there's an additional standard to apply, which is that you cannot diminish the ability of racial minorities in certain districts to elect candidates of their choice.
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A
Okay. Which is.
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B
And that travels with a voting rights amendment.
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A
Right.
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B
That is the section that is under challenge in a Louisiana case which the U.S. supreme Court has heard. And DeSantis is saying, well, this. The U.S. supreme Court is going to rule in my favor.
- [11:39]
A
He doesn't know that.
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B
Of course he does. He knows everything. Right. Okay. He. And so he's arguing, well, since the U.S. supreme Court is going to rule in my favor and since in the favor of those of us who are against racial gerrymandering, as they call it, therefore, we need to do this now. Now, if he really believed that, he could have done it last year, but he didn't. He did it late so that the clock would run.
- [12:02]
A
He's getting ahead of the Supreme Court. But he's also saying that the census screwed Florida. But I just want to talk about the fair elections law, because it does seem like if you just a clean reading of the law, and obviously we're going to debate what Intent means. But the way you describe it, it seems like they're just saying, yeah, we're, we're just absolutely, we don't care about this law because the, it is obviously partisan motivated because they're putting out maps that are red and blue. Like, let's just be honest about it. And secondly, it is going to disadvantage minorities. That's the way that this stuff works. It's just true. So the two portions of the law that are the most concrete is this seems like if you're just being honest about it, a clear, like, screw you to that law.
- [12:40]
B
It's hard to see how this isn't partisan for the reasons that you said. Like, normally when a legislature passes a map and debates a map, it's got all these colors on it. There's aqua colors and watermelon and there's brown. This one was just literally red and blue. It was, you know, we were taken aback at Axios because we wrote the story. Like, he basically admitted this is a partisan Jerry matter because they sent us the map like that.
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A
Yeah. All right, so now on the Voting Rights act, how can he argue that he knows what the Supreme Court's going to do? I mean, everyone predicts Clarence Thomas legitimately. Everyone assumes that the VRA is going to be greatly diminished if not overturned. So it makes sense. And I should note, Mississippi has itself put together a redistricting plan to vote on once the Supreme Court acts.
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B
Correct.
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A
But that's different than saying, well, the Supreme Court's going to rule this way, therefore we can do this.
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B
That is, you also have to just look at the purely political from DeSantis's point of view is, you know, 2024 was a difficult year for him that, you know, in 2023, this guy's at the height of his power. He's going to be running for president. Donald Trump comes in and just wastes him. Right. And so DeSantis still has an eye on maybe running for president again. The nation is looking back at him. He, he has sort of one last hurrah to exercise sort of right, raw partisan power. The Republican hearts are once again going pitter patter for Ron DeSantis. He hasn't really had that since 2122. So, you know, this is sort of old home week for him.
- [14:08]
A
Okay, let's talk about that. Well, actually, let's show that for one second and talk about the districts, because the other sort of CW here is that, well, it's a aggressive gerrymander that he's putting out, but it could be A risky one because some of these districts are being changed to something a little bit under Trump +10. How do you read it?
- [14:29]
B
I think they're right in that it's risky. But I think when you look at it and you just see how Florida has performed over the years, it, it's a safe risk to take just purely from a partisan standpoint. That is the gerrymander might not be a dummy mander. There is a lot of reason. There is more reason to believe than not. Like if you had a vote on this and the or bet on this in the cowy predictive markets, you would
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A
bet, which we don't do. I don't know. Actually, I don't know about Mark, but,
- [14:56]
B
but if a relative out there wants to place this bet and not tell me about it, but send me the cash on the table. Now, the, right now it's a 20 to 8 map. 20 or seats, right. 20 Republicans, 8 Democrats under this current map. That's probably going to be a baseline performance to make it a dummy mander. You'd have to wind up, you know, 19 to 9 or something like that. The, the smart people I talked to who really analyze this today on the fly, they say no, it's, this is, this is a smart map from a partisan standpoint, they're looking at least 28 to 8 and maybe it's going to wind up being 22 to 6. That's why I said it's not an 8 guarantee. Like net new seats, it could be a 4. But, but yeah, there's, there's that sense out there.
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A
Okay. Now they run. So not Iran.
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B
Iran. Which one are we doing?
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A
We're going to stick with the domestic stuff.
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B
Terrible, terrible joke. I used to, used to laugh at
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A
my jokes, but they were, they've gotten worse, let's just put it that way. Okay. Is he in good graces with Trump? Like, why is he doing this? Trump was okay, Trump likes him again.
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B
Yeah, Trump likes him again. I think. You know, I remember way back when in 2022 when DeSantis was quitting right beforehand, one of his advisors had told me like, you know, the debate with, with Ron was like, as he was preparing to drop out is like, do you, do you take little nibbles of the shit sandwich or you swallow the shit sandwich whole? Ron's going to swallow the shit sandwich whole. They literally, it's literally a quote. He did it. You know, Trump sort of respected that. You know, Trump likes a good shit sandwich eater. You know that he is cowed. But DeSantis has, you know, is also a pretty good golfer. And, and Trump likes that as well there. I did do a story in some fol. Trump's orbit said that Ron was, quote, begging for a job in the administration, had sort of sniffed around about attorney General. They have had those discussions. But when it comes to delivering, Ron DeSantis likes to be the guy who can deliver for Republicans. In 2022, he did. He eliminated a, a seat held by a black Democrat, just wiped it out. That was the one held in North Florida by then Representative Al Lawson, and it did give an extra cushion of at least one, if not two Republican seats in Congress. So Congress, one of the reasons it's, it's not even closer is because of what ron did in 2022. Here he's sort of delivering in spades for doing that. And, and, you know, Trump likes that.
- [17:26]
A
No, no doubt. Just last question for you. And this is not how it works in Florida, so it's kind of an irrelevant question. But we have witnessed a couple cases where in Republican states, these redistricts, redistrict processes are being passed by state House members. And then in Democratic states, they're going for referendums. Right. So that obviously happened in California and then most recently in Virginia. If they put this to a vote in the state of Florida.
- [17:52]
B
Yeah.
- [17:53]
A
It would fail. You think?
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B
Well, it would fail because Florida has a 60% threshold for. So the question is, you know, for purely academic reasons, would this pass with 51% or, or 50% plus?
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C
Yeah.
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A
What do you think if it was that?
- [18:10]
B
I think there, I think there's a chance of it. The. I saw some polling now. This is not statewide. It was for swing state Senate districts. It was taken by a legislative group and it previewed what the Democratic messaging is going to be in Florida for this go around. What is the messaging and the. Now, again, this is a push. It's not a push pull question. It's a message testing question is they're going to, they're asking people like, do you support the Republicans gerrymandering Florida when they haven't fixed insurance? You know, the whole thing, basically, yeah. And that's a preview of what the campaign would be like, I would think. And so I could see it falling below 50%. And the reality is, you know, DeSantis is arguing that the Fair District's amendment, the whole thing doesn't count because of the Voting Rights act portion of it. But the reality is a lot of people voted for the Fair Districts amendment because they thought partisan gerrymandering. Is bad.
- [19:12]
A
Right.
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B
DeSantis is making the argument it's like, oh no, people voted on an entire package. They wanted the racial gerrymandering portion and the non partisan gerrymandering portion together. Therefore the whole thing has to go out. That might be a novel legal concept as well. And we're just going to see what the is question court say, well, what
- [19:27]
A
do you think the courts will do here? Because the Supreme Court is obviously. Yeah. But the state supreme Court's completely filled by Desantis appointees.
- [19:33]
B
I do, yeah. I know two of them and I've known them for years. John Coryell, who's now the Chief justice, and Carlos Muniz. I generally see them as, as they, they're very Republican guys. But unless they can see a well reasoned argument for this getting thrown out, it's more difficult for me to see them trundling along with this decision because of just how much it flies in the face what was voted on. Nevertheless, that's two guys. Labarga is the third after Coriel and Carlos Muniz. The justice labarga who was appointed by Governor Chris or former governor. Christ, those three. I could see voting that way. I don't really know enough about the other four. It's a seven member court and so, you know, I would, I would not go to the cow sheet betting markets to, to lay odds on that. I don't know what they would do. And the reality is is Desantis does have a good argument for Republicans and for conservatives to, to attach onto when it comes to the Voting Rights Act. But I'm not sure even if he clears that bar, if the Florida Supreme Court will say, okay, fine, the, the racial gerrymander stuff is bad and we shouldn't do it. But why do we have to throw out the, the ban on partisan gerrymandering. Like, why do we have to do that? That's not very clear.
- [20:56]
A
Interesting. All right, well, we'll follow it. We'll get you back on. We'll talk about it. Mark Puter, ladies and gentlemen. My man.
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B
Thank you.
- [21:02]
A
Great to have you back on the program. Talk.
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B
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