Al (3:53)

But I wouldn't bet on it.

Host (3:57)

Yeesh. I guess gerrymandering doesn't sound so bad anymore. Well, Ari Berman is with us. We got a great one today, you.

Al (4:06)

Know, or a change. Now, the midterms are a year from November. Traditionally, they go for the party not in the White House. And there's been three exceptions in the last century. You know those.

Ari Berman (4:26)

One of them was 2002, when Bush was the war president. I don't know. The other two.

Al (4:33)

Okay. FDR in 34, I guess, because he had such a spectacular start and they were so relieved.

Host (4:46)

He had a great first 100 days, et cetera.

Al (4:48)

And the other was JFK in 1962, after the Cuban Missile Crisis was resolved.

Host (4:56)

Soon before that or so. But other than that, that sets the.

Al (5:00)

Out party usually gains seats, right?

Ari Berman (5:04)

Yep.

Al (5:05)

Democrats should have a good midterm in. In 2026. And they need to only pick up, what, three seats?

Ari Berman (5:12)

Yeah.

Host (5:13)

Okay.

Al (5:14)

To take control of the House. But Trump approached Governor Abbott in Texas and said Republicans could pick up, what, five more seats if they just did some gerrymandering.

Ari Berman (5:30)

Yeah, yeah, that's basically it.

Al (5:33)

Yeah. So that means they would pick up a margin of 10, right.

Ari Berman (5:39)

5.

Al (5:40)

Either way, I guess. Is that the math? Is that the correct math?

Ari Berman (5:45)

Well, I mean, the math is that basically Democrats have to pick up three seats to take back the House. So if Texas adds five seats to that, Democrats need to then flip eight seats to take back the House. And so it makes it a lot different. That's the difference between, you know, a close election and something that's closer to a wave. And obviously, Trump feels like there's a good chance Democrats will take back the House because this is pretty extraordinary. Al, mid decade redistricting, as you know, is in and of itself, very rare. The last time I remember it happening was 2003 in Texas, when then House Majority Leader Tom DeLay pushed Texas to redraw its maps. But that was an extraordinary thing to do.

Al (6:29)

Usually it's done after a census.

Ari Berman (6:31)

Exactly. So just doing it absent a court order or something like that is incredibly rare. Then the President basically telling a state, you have to do this to protect me. I've never heard of that happening. At least Tom delay, when he did this in Texas, was from Texas. And he could credibly argue that Texas was moving from a Democratic state to a Republican state. The legislature that's redrawing the maps in Texas is the same legislature that just drew the maps. So presumably they already did pretty much everything they could or they thought they could to protect the Republican Party's interests in Texas. Cause it was an entirely Republican controlled process. And Trump said, that's not enough for me. I need five more seats. Which is just an extraordinarily authoritarian thing to do right before midterm election.

Al (7:17)

And this is obviously his idea or someone in the White House saw this opportunity.

Ari Berman (7:24)

I mean, I doubt it was his idea. I don't think Trump is that plugged into how district maps are drawn. I don't think he's known for his attention to detail on that front or many others. Someone had this idea, presumably there was discussions between Texas Republicans and the President's team, and the Texas Republicans were persuaded to do this. Because the interesting thing too here is that Texas Republicans didn't even really wanna do this. If you had polled Texas Republicans in the House at the beginning of this process, should we redraw the districts? They probably would've said no because they are all in safe seats and they were convinced that they could pick up five more seats without any kind of risk to them. Now we'll see whether or not that's true. The maps are drawn pretty surgically to make more competitive Republican seats, but without actually costing any current Republicans any more competitive seats. But we'll see what happens. Let's just say they draw five new seats. They only pick up three of them. They've still picked up three seats than they otherwise would have had. So it's kind of a lose lose proposition from the White House's perspective.

Al (8:32)

You mean a win win?

Ari Berman (8:33)

A win win? Yeah, it's a win win from the White House's perspective.

Al (8:37)

Yeah.

Ari Berman (8:37)

The lose, lose for democracy.

Host (8:38)

Yeah.

Al (8:39)

Yeah. Okay, well, okay, now right now is 2512, right? 25 Republicans, 12 Democrats.

Ari Berman (8:46)

Yeah, I think one seats vacant for the Democrats. So it's, it's normally 2513. Sylvester Turner, who represented Houston, died, and Greg Abbott, the governor of Texas, has taken an extremely long time to call a special session to fill that seat, presumably because he doesn't want black residents in Houston to have proper representation in the House.

Al (9:08)

So there would be an election, and it's up to him to call an election. It's up for the governor.

Ari Berman (9:12)

Yes. And he hasn't called that election until November. Meanwhile, they've gerrymandered that district while there's no one in it. They're basically redrawing the districts of someone who's not represented in Congress to try to oust another Democrat, Representative Al Green.

Al (9:27)

So that's one of the. That's one of the. That's a Houston district.

Ari Berman (9:31)

Yeah, that's a Houston district. So the way they've done these to try to pick up these five seats is they've made two Latino districts more Republican that are represented by Democrats.

Al (9:41)

These are in southern, Southern Texas.

Ari Berman (9:44)

Yeah.

Al (9:44)

Right.

Ari Berman (9:44)

Then they've basically dismantled districts in the Austin, San Antonio era area, the Fort Worth, Dallas area, and the Houston area. All of these districts are either represented by black or Hispanic Democrats or have a lot of black and Hispanic Democrats in them. So they're. They're really changing around representation, and they're. They're either making these districts a lot whiter or they're putting more conservative Latinos in them to say, hey, there's still majority minority districts, but they're districts that are gonna support a Republican candidate.

Al (10:16)

Okay, so this was the White House's idea, and Abbott went for it, even though you don't do that usually without a new census.

Ari Berman (10:25)

Yes, exactly. Although Trump is now also calling for a new census, which is extremely questionable in and of itself.

Al (10:32)

He's calling for a new census in the middle of the decade?

Ari Berman (10:35)

Yes.

Al (10:36)

Okay. And this is not going to allow in the census to count. People are undocumented.

Ari Berman (10:44)

Yeah. I mean, it's unconstitutional a number of different ways. First off, the Census happens every 10 years. It already happened. It happened in 2020 when Trump was president. It's hilarious that they're called. Florida Governor Ron DeSantis called it the Biden census, which is so funny because Trump happened under Trump. Yes, Biden released the data, but he released the data that was collected under Trump. And the Constitution is also very clear that it's everybody. It's everybody who lives, everybody in America, not every American citizen, which is something that people don't understand. Now, again, we don't know what this current Supreme Court would say about anything, but this seems like pretty settled law. But Trump says he wants a new census based on the 2024 election data, which, as far as I know the census is not based on election data, especially the election just happened. And he also says he wants to exclude undocumented immigrants, which also is not how the census works, but nonetheless, sort of a tangent. But he's doing this in conjunction with the whole redistricting stuff that he's pushing.

Al (11:42)

Okay, so in order to do this, they needed to pass some legislation, right?

Ari Berman (11:47)

Yeah.

Al (11:48)

And so that's when Democrats left the state. How many state legislators left the state?

Ari Berman (11:54)

I think something like 50. It's a little hard to figure because there are some people that are missing in Texas, too, who aren't at the state House, but generally I think about, like, 51 or more left.

Al (12:04)

And how long do they have to be gone?

Ari Berman (12:08)

Well, that's an interesting question because.

Al (12:10)

Thank you.

Ari Berman (12:11)

Initially, it was always interesting questions, Al. Initially it was going to be August 19th was the end of this special session, and they were going to stay until then. And then the governor was presumably going to call it another special session. Now they're saying they're going to gavel out of this current session early, immediately start another one to try to put pressure on Democrats to come back. They've threatened Democrats with all sorts of stuff to come back, trying to call other sessions, saying that they get the FBI involved.

Al (12:36)

Can the feds do this? Can the FBI go arrest these legislators?

Ari Berman (12:42)

Well, I mean, presumably there would have to be some sort of crime committed, because leaving the state is not a crime, and they have a constitutional right to do this. So there would have to be some sort of crime committed. The Texas Republicans claim that they're violating some kind of bribery statutes because they're being fined $500 a day and are fundraising to cover those fines. But it's not a quid pro quo. They left, and now they have to pay it back. They didn't leave because they wanted to get fined $500 a day. So I think it would be pretty dicey.

Al (13:12)

So who's paying for this? Is Beto o' Rourke's group doing something.

Ari Berman (13:17)

That was one of the groups that was paying for this? The Texas courts just said that Beto Works group can't pay for them to do this.

Al (13:25)

Okay.

Ari Berman (13:26)

I mean, if things go to the Texas courts, I don't know how confident anyone is about what the Texas courts will do, because the Texas courts are dominated by Republican appointees, including appointees of the current governor. So no one knows exactly what will happen. But the courts have ruled, for example, previously that these kind of quorum breaks are constitutional. And so it would seem that the the idea that they are vacating their office is hard to argue because what the Texas Democrats are arguing is that we are using the power of our office to protest a policy that we and our constituents don't like.

Al (14:04)

Okay, so what are Democrats around the country doing? What's the reaction been in states like, well, California, for example, Newsom is going to respond, right?

Ari Berman (14:17)

Yeah. I mean, they're saying they're going to fight fire with fire. It's not like the size of the flames are not. Not equal. And the ability to set the fire out is also not equal. But what California most notably is having the most direct response, which the governor is going to call a special session of the legislature. They're going to pass new maps. Now they have an independent redistricting commission, unlike Texas. So California voters are going to have to approve whatever the legislature comes up with. And that's going to be risky because there's going to be people that are opposed to it. And so unlike Texas, where this can just become law, assuming the Democrats at some point come back and California has to be approved by the voters. So it's a more complicated path, but it's the closest to an actual response in terms of numbers, which is that Texas Republicans say they want to pick up five seats. California Democrats say, well, we can eliminate five Republican seats. The problem is after that, because Republicans have other states that are going to follow. Florida, Ohio, Indiana, Missouri. I mean, they say they could pick up a dozen seats. Democrats don't have a dozen seats to flip. I mean, even if they wanted to, even if they wanted to be as ruthless as possible, they're either bound by independent commissions that they can't get around, or they just don't have enough seats that they can flip in places like Massachusetts or Illinois or the blue states.

Al (15:42)

Illinois is already pretty gerrymandered.

Ari Berman (15:45)

Illinois is already pretty gerrymandered. I mean, Democrats control 14 of the 17 districts there, so they could potentially flip one more seat. But you're talking about, like maybe one here, one there. There's no way Democrats could draw a dozen new districts mid decade like Republicans say they can.

Al (16:03)

So this is not looking good in terms of if we go to war this way, state by state.

Ari Berman (16:09)

Well, I mean, I get why Democrats want to respond that it's not fair to have one set of rules for one party and another set of rules for another party. But I think Democrats, there's just a practical problem, which is that they don't have as much power at the state level as Republicans have, meaning they can't do that kind of gerrymandering as well as Republican.

Al (16:28)

What about New York? What's the deal in New York?

Ari Berman (16:30)

The problem with New York is that because of the independent commission, they can't get around it unless they amend the state constitution. And they can't amend the state constitution in one election cycle. So the earliest they could draw new districts would be for the 2028 election.

Al (16:44)

So it's too late.

Ari Berman (16:46)

Too late. No one's been able to come up with a plan that I've seen in New York yet to do this. New York is a place where they could maybe pick up two or three more seats. But the thing that worries me is that if you get in a gerrymandering arms race, it's going to be bad for democracy in general. That's why Democrats wanted to ban gerrymandering in states and nationwide. But also Democrats are going to lose that battle at the end of the day. So I think people should just be a little bit more realistic of how this process is going to play out. I know a lot of Democrats are excited that California is doing this and the gloves are off, but ultimately I think the bigger picture here is Republicans just have a lot more opportunity to gerrymander than Democrats do.

Al (17:26)

So the gloves are off in a fight that we can't win, basically.

Ari Berman (17:29)

I mean, I think that's a good way to put it. Like Democrats can, can maybe like, like get a little less bloodied. You know, they could land some punches, but like, they're probably going to get knocked out of the, the end of this fight.

Al (17:41)

Okay, now what is Eric Holder, Because Eric Holder has been chairing what's the National Democratic Redistricting Committee. Yeah, they were very much against gerrymandering.

Ari Berman (17:52)

Yeah. I mean, they wanted to make maps fair because they felt like in a fairer system Democrats would have a good chance to win. And that's proven true in places like Wisconsin and Michigan where they've been able to unrig some of these maps. But Holder's position is that short term Democrats need to respond because it's not fair to have one set of rules for one side and a different set of rules for another. But ultimately that he thinks that this should be only a short term policy.

Al (18:15)

I think he said it's like the Germans invaded France when confronted with an authoritarian anti democracy effort. We have to take up arms.

Ari Berman (18:25)

Yeah. He used another World War II analogy when I talked to him. He said it was like FDR's meeting with Stalin, that that was the only way to end World War II. And so you kind of have to get in bed with the devil. So I. But I think he's. Again, in my conversations with him, I think he thinks short term they have to do this, but long term, he's apprehensive about where this ultimately takes us.

Al (18:46)

Right.

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Al (19:16)

So this is US Representative Sylvia Garcia said this. Republicans are motivated not just by political expediency, but by a broader desire to weaken the Voting Rights act, which prohibits.

Host (19:29)

Electoral changes that discriminate against voters of color.

Al (19:33)

That's definitely been what the Supreme Court has been doing over the years, right?

Ari Berman (19:39)

Yeah, exactly. I mean, first they gutted the Voting Rights Act. They ruled that states with Texas with a long history of discrimination don't have to approve their voting changes with the federal government.

Al (19:50)

That's Shelby County.

Ari Berman (19:51)

Shelby County.

Al (19:52)

Explain that if you could.

Ari Berman (19:55)

So after the Voting Rights act was passed, the president and the Congress were fully aware that if you banned a poll tax or a literacy test in a place like Alabama, they were just going to try to pass another one. So to prevent that from happening, they said that those states with a long history of discrimination, places where black voters had low registration rates and a history of facing things like literacy tests and poll taxes, that those states had to approve their voting changes with the federal government. This was known as Section 5 of the Federal government. And this was the strongest part of the Voting Rights Act.

Al (20:29)

Now, when the Voting Rights act initially passed, it was a very lopsided victory, right?

Ari Berman (20:35)

Yeah. I mean, it took a long time to pass. And obviously it was the culmination in many ways of the civil rights movement.

Al (20:41)

65 is when it was 65.

Ari Berman (20:43)

But there was really huge support after Bloody Sunday and Selma and the beating of John Lewis and so many people on the Edmund Pettus Bridge. When Americans saw that, they were disgusted. And there was very strong bipartisan support for the Voting Rights Act. Pretty much the only people who opposed it were segregationist Southern Democrats. And so it had very broad support. The fact that it was shepherded by lbj, a white Southerner, who had previously opposed civil rights laws. It meant something when he made the case for it. He had authenticity, cuz he was a product.

Al (21:14)

Well, he had passed the 64 Civil Rights Act.

Ari Berman (21:17)

Yeah. But he was also someone who had voted against a lot of civil rights bills when he represented Texas in the Congress. So he was someone who could speak authentically about not just the black experience in the south, but the white experience in the South. And so he really wanted this to be as strong as possible. And the strongest part of it was that you could block discrimination from ever occurring. And so the Supreme Court gutted that part. Then they've systematically weakened other parts of the Voting Rights act, and now it's further under threat in Texas. What they're basically trying to do in Texas is they're trying to dismantle districts in which you have minority groups that are a combined majority, meaning like blacks and Hispanics in districts form a combined majority. Those were thought to be protected under the Voting Rights Act. Now what the Department of Justice is arguing is that they're not protected under the Voting Rights act, which makes it a lot easier for Republicans to try to dismantle districts that are represented by Democrats in places like Houston or Dallas or Austin, in which you have Latinos, African Americans, Asian Americans, other minority groups together forming a combined majority.

Al (22:21)

So I don't get that. What would the Supreme Court have to do to undo that?

Ari Berman (22:27)

Well, the fifth Circuit Court of Appeals ruled not too long ago that these coalition districts, they call them, these coalition districts, weren't protected under the Voting Rights Act. The Supreme Court has not reviewed that decision yet. But in the interim, the Department of Justice is pointing to the 5th Circuit as the final word on this, saying these districts aren't protect it. So that's one way that the redistricting scheme in Texas potentially violates the Voting Rights Act. Not to mention there's this broader effort to try to kill the Voting Rights act altogether and prevent it from striking down racially gerrymandered maps.

Al (23:02)

And that's like the Louisiana case that might be coming up.

Ari Berman (23:06)

Exactly. I mean, this was also an unusual situation where Louisiana was told to draw a second majority black congressional district.

Al (23:15)

Right.

Ari Berman (23:16)

This followed Alabama being told to draw a second majority black congressional district because of a ruling by the Supreme Court. These were states where the Black population was 30 to 40% of the state, but where there was only one majority Black congressional district, Civil rights groups showed pretty clearly you could draw a second one. The Supreme Court, kind of surprisingly, given their record on voting rights, agreed. In the Alabama case. So Louisiana did the same thing. Then a group of, quote, unquote, non African American plaintiffs filed suit, said that the second majority black district violated the Voting Rights Act. Seemed kind of cut and dry. This was a very rare example where both Louisiana and the NAACP were on the same side of an issue. So he thought the court would rule in their favor. But instead of deciding this case this year, they put it off. They put it off. They scheduled it for next fall, and they changed the whole question of the case. The question of the case is now whether or not these kind of majority minority districts violate the 14th and 15th amendment. And if. If they were to. To say that, which would be a radical redefinition of what the 14th and 15th amendment were meant to do, which was to give rights to formerly enslaved people, that would be kind of like the final blow against the Voting Rights act, because it's been weakened in so many other ways.

Al (24:30)

Because right now. Right now, basically Shelby county, or what was. Wasn't Shelby county, what was the decision that said that partisan gerrymandering was okay?

Ari Berman (24:43)

Yeah, that was the rucho decision in 2019. That was also authored by John Roberts, so. Exactly. That's what I was getting to. So first they weaken the Voting Rights act, then they say that partisan gerrymandering claims can't even be brought in federal court, let alone struck down. Which is insane, because federal courts deal with every single issue we can think of. I mean, the Supreme Court has the power to proclaim that Trump is a king, but they're evidently not somehow qualified enough to decide whether or not a map is illegal or not. And so, I mean, that creates a situation in Texas where they can basically say, like, yeah, we're doing this to help Trump. Yeah, Trump told us to pick up five seats. But there's nothing wrong with it, because that's what the Supreme Court said we could do. So it just gives a green light to all sorts of egregious partisan manipulation. The one thing you still can't do is. Is draw districts that clearly discriminate against people under the Voting Rights Act.

Al (25:34)

Well, by a minority. In other words, the court can overturn a district that is racially gerrymandered.

Ari Berman (25:43)

Exactly. But they can't overturn a partisan gerrymander. Now, what's happening is a lot of people are doing racial gerrymanders and just saying they did it for partisanship. There still are some protections left in the Voting Rights act, but it's very likely they're going to try to get rid of those as well. Which would make it almost impossible to challenge gerrymandering in any sort of context before the Supreme Court.

Al (26:02)

So is that effectively getting rid of the Voting Rights Act?

Ari Berman (26:05)

Pretty much, because there wouldn't be much left. I mean, you could still bring lawsuits, but it would just be very, very difficult to win them, because the Supreme Court's basically said, we're not going to make states with long history of discrimination approve their voting changes anymore. We're going to make it much tougher to strike down those kind of discriminatory changes once they're in effect. And we're also going to make it very difficult, if not impossible, to challenge gerrymandering in either a partisan or racial context. So, basically, states can do whatever they want when it comes to manipulating the voting process, and there's not much of anything we're going to do about it.

Al (26:38)

So Roberts has been effectively one of the biggest enemies of fair voting.

Ari Berman (26:44)

He has been, and he has his reputation as a moderate on the bench. I think that's just a sign of how far to the right the court has shifted because Roberts has been an architect of the authoritarian takeover and of Trump's presidency in so many different kind of ways.

Al (27:01)

And Citizens United wasn't his decision, but he joined it. He joined it, and he was the Chief justice during that.

Ari Berman (27:09)

Yeah. And I mean, he was part of the court that did it. So, I mean, he was. He didn't write it. It was written by Anthony Kennedy.

Al (27:16)

Didn't Kennedy say that he envisioned there'd be disclosure?

Ari Berman (27:19)

Yeah, and of course, there's no disclosure. Yeah. So even what Kennedy wanted never came to fruition. But, I mean, the reason why there was a majority for Citizens United was because Alito and Roberts were put on the court. I mean, that's what shifted the court dramatically to the right. And then it's been shifted even more dramatically to the right. First with Brett Kavanaugh replacing Justice Kennedy, of course, seat was stolen from Barack Obama, which went to Neil Gorsuch when it should have gone to Merrick Garland. And then Amy Coney Barrett replaces Ruth Bader Ginsburg right before the election. So they. They block. They block Merrick Garland eight months before the election, say it's too close to the election, and they confirm Amy Coney Barrett eight days before the election.

Al (27:59)

So Scalia died, like, in February.

Ari Berman (28:01)

Yeah, exactly.

Al (28:03)

And they said it was too close to the election.

Ari Berman (28:05)

And Ginsburg died in October, like mid October. And they.

Al (28:09)

Mid October.

Ari Berman (28:10)

September, Late September. But they confirmed Amy Coney Barrett. I mean, early voting had already happened. I forget the exact number. But something like 50 or 60 million ballots had already been cast by the time. I mean, so we weren't just too close to election. We were quite literally in the middle of an election right. When Coney Barrett was confirmed. And that's how we get, you know, six to three majority. Which just means that for any majority case to get five votes, you have to get not just.

Al (28:35)

They stole two.

Ari Berman (28:36)

Yeah, yeah. I mean, yes, for sure, they stole two. One could argue they stole three, considering the background checks that were not done on Kavanaugh by the FBI, but certainly two of them were.

Al (28:49)

Someone else would have been.

Ari Berman (28:51)

Yeah, yeah. But certainly two. I mean, two is the difference between the majority and not having a majority in the court right now.

Al (28:58)

Yeah. So, yeah, it'd be five, four, the other way.

Ari Berman (29:01)

Yeah. But, I mean, the Supreme Court has been enablers of Trump's authoritarian agenda in so many ways. And I think one of the most concrete ways that Trump's trying to effectuate his authoritarian agenda is to make elections functionally meaningless, that people think, oh, Democrats, you will vote. Democrats will take over Congress. There'll be some sort of accountability. But that's not going to happen if the races are gerrymandered in such a way that there's not enough districts for Democrats to pick up, let alone all the other things they're trying to do.

Al (29:30)

And that's what we're talking about right here. That's what the subject of this is, which is they effectively are doing that.

Ari Berman (29:37)

They are. And, I mean, we don't know to the extent it'll work. We don't know if Democrats will have a big enough wave, but it's like every time there's an election, Democrats have to face more and more obstacles to be able to win them. Like, he made mail voting more difficult. So then it's like you have to have all these rules to be able to cast a mail ballot they didn't need before.

Al (29:57)

Is he doing something now where he's saying that you have to be a citizen and you have to prove your citizenship?

Ari Berman (30:03)

Well, he's trying. He tried to do that. He hasn't been successful.

Al (30:07)

How would you do that? How would you. You would have to bring your birth certificate. How would you have to do that?

Ari Berman (30:12)

Well, the way it would work is that there's basically a federal form that's used for people to register to vote. There's different ways to register, but that's one way to do it. And you'd have to show a passport or a birth certificate to be able to register.

Al (30:26)

How many Americans have a passport?

Ari Berman (30:29)

Like something like 100 million Americans don't have a passport. So, I mean, a lot of people don't have a passport. More people have a birth certificate, but a lot of them, people don't know where it is or don't carry it around with them.

Al (30:42)

I always carry my birth certificate.

Ari Berman (30:44)

I know whenever you go to a farmer's market and talk to the League of Women Voters, you have your birth certificate on you. But the point is that, I mean, you can get in the argument about voter ID and what should people need a driver's license to register to vote or to cast a ballot? And I think there's cases against that. But the point is that 90% of people still have that kind of documentation. It's also something that you carry around with you on a regular basis. Right, right. This is beyond voter id. They're asking for documents that people don't have that cost money to obtain, that you don't carry around with you on a regular basis to be able to register to vote. So this would be make voter registration a lot more difficult. There's also like, this came before the Congress, there was something called the SAVE act, which basically said you have to show a passport or birth certificate to register to vote. Well, then there was this whole question of what happens to married women who changed their names. Their name is not the same name anymore. Right. So they can't use their birth certificate. So then you're talking about there was 70 million million married Americans who wouldn't be able to register to vote. And if you look at who changes their name, they're much more likely to be Republican women than Democratic women.

Al (31:55)

So we should be for that.

Ari Berman (31:56)

Well, I mean, I'm not saying we should be for. I'm just saying there's. There's collateral damage in terms of making registration more difficult. Like, it's not just necessarily going to affect Democrats. It affects all these populations that you don't normally think about.

Al (32:08)

And there are people who don't have driver's license.

Ari Berman (32:11)

There are. There are, for sure. And I'm saying that there's reasons why voter ID laws are bad. But I think one of the talking points about these proof of citizenship laws is all we're doing is asking you to show an ID to vote. And actually that's not what they're doing. They're asking you to show a piece of documentation that's a lot harder and a lot rare than just showing your driver's license.

Al (32:33)

So how many states have voter ID Now a lot. Right?

Ari Berman (32:37)

It depends like exactly how you define voter id. I mean, most states require some sort of documentation to be able to vote. But I think about half the states have, like you have to show a driver's license to vote. Some of them are stricter than others. Like, some of them, if you don't have an id, you can sign a document testing to who you are. In other states, you can show student IDs or other kind of IDs, or you can show a utility bill. Yeah, like, I don't really have a problem with those kind of laws that say, like you can show a utility bill or something like that. I think most people can comply with those kind of things. The problem is for people who don't have these IDs for one reason or another, it becomes very problematic because then you need underlying documents often to get an id, like a birth certificate or something like that. And often if you don't have those kind of IDs, you're going to have a harder time getting those underlying documents. And then you have to pay for them. And then it starts talking about, you know, paying to vote and starts bringing to mind things like poll tax. So I think that's, that's why there's. Voter ID laws are problematic, but what they want to do right now is much worse than just that.

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Al (34:13)

So what other kinds of methods have Republicans used to try to make it harder to vote?

Ari Berman (34:21)

Well, they went after mail voting a lot after the 2020 election because that was the method that was used more by Democrats in that election. But then they're still doing things like cutting back on the number of early voting days, closing polling places, purging the voting rolls. I mean, right now what the Justice Department is doing is they're going around asking states for all of their voting data. Which brings to mind what. Remember when Trump created this Election Integrity Commission?

Al (34:49)

Well, this is after the 2016. So Hillary won by about 3 million votes in terms of popular vote. She lost the election. Trump was convinced that he had actually. Well, he wasn't I don't know if he was convinced or he was just lying, but he said that actually he.

Host (35:09)

Won the popular vote.

Ari Berman (35:10)

Yeah. And he said 3 million people voted illegally in California, and that's why he lost the popular vote in California. Yeah, in California specifically.

Al (35:19)

And they were all what, undocumented Immigration?

Ari Berman (35:22)

Yeah, they were all undocumented. Yeah.

Al (35:23)

Okay. And so he appointed this commission to prove it, right?

Ari Berman (35:26)

Yeah. He pointed this commission to prove was headed by Mike Pence, but the functional head of it was its vice chair, Kris Kobach, the Secretary of State of Kansas, someone who I've written a lot about. And they went on this huge search. They asked for voter data, very detailed voter data from all 50 states. And they got a lot of blowback, including from a lot of Republicans. The Secretary of State of Mississippi famously told Kobach to go jump in the Gulf of Mexico now, before it was before America. Yeah, but DOJ is basically trying to do this right now, and they're doing it under the auspices of the Department of Justice, not a commission. And also, it's not just the voting section that's doing it. The criminal section is involved, which is raising the possibility that they're going to demand this data from states, and then if states don't provide it, they're going to start criminally charging election officials and other officials. And so I think we should expect that the Department of Justice is going to get much more involved in Trump's election interference claims. Remember, I said there was Department of Justice letter to Texas that kicked off this whole special section that Trump said he wanted five seats, but the official reason for it was this Department of Justice letter saying these coalition districts violated the Voting Rights Act. And no one actually believes that's true. It was very unusual for the Department of Justice to get involved in the Texas redistricting because there was no litigation, actually. In fact, the Biden's Justice Department had sued the state of Texas for the opposite reason, claiming they were violating the Voting Rights act because they gave too little representation to voters of color. And then Department of Justice turned around and basically said, because you complied with the Voting Rights act, which is quite debatable in and of itself, you actually violated the Voting Rights Act. So, I mean, that was a pretty remarkable intervention by the Department of Justice. And I think what I'm saying is that's kind of just the beginning of how I believe they're going to interfere in the midterms.

Al (37:18)

You say that's the beginning of how they're going to interfere in the midterms. What's the rest of it?

Ari Berman (37:23)

Well, I think they're going to really lean on states to try to purge their voting rolls and they're going to file lawsuits to force states to purge their voting rolls, which could lead to disproportionately Democratic communities. Removed from the rolls is part of.

Al (37:37)

Purging donor rolls is like spelling errors and that kind of thing. Like someone's name is spelled wrong.

Ari Berman (37:43)

Yeah. I mean, if it's not done in a scientific way. And what they're doing right now is they're running the voter rolls in states where they have access to them through these homeland Security debate databases that are not designed for that purpose to try to flag all these cases of non citizens that in fact are not what they appear. And that that's going to have the effect of both saying sort of giving credence to Trump's claim that people are voting legally, which is not true, but also put pressure to remove people. Those people that are gonna be removed are more likely to be people who.

Al (38:16)

Are immigrants whose names can be spelled wrong.

Ari Berman (38:19)

Yeah. I mean, they're not all gonna be Democrats, but they're gonna be more likely to be Democratic voters than the average voter in rural Missouri, for example. So, I mean, I think you're gonna see the Justice Department do that. I think you could very likely see the Justice Department criminally charge election officials to put pressure on them to do things the administration wants, whether it's closing polling places or removing people from the rolls, or cutting back on access to the ballot in a variety of ways. I mean, we've seen Trump get pretty involved in the election process. Remember he tried to basically dismantle the entire post office, cuz he didn't like how mail voting was going.

Al (38:54)

Now we had a pandemic in 2020, so it made sense for people not wanting to go to the on election day, stand in line for a long time with other people.

Ari Berman (39:04)

I know, but. Exactly. But Trump has not been shy about meddling in the election process, and now he's become more aggressive about meddling. The Texas redistricting is just the latest example of that. And his administration is filled with enablers who are willing to meddle for him. Because I think that's the biggest difference between the first Trump term and the second Trump term. It's not that Trump himself has become more authoritarian, or I think he has. It's that he's replaced any kind of people that would stand up to him.

Al (39:33)

He learned his lesson from the first term.

Ari Berman (39:36)

Exactly. I mean, there was people like Bill Barr, who were extremely conservative, who lied.

Host (39:41)

About the Mueller report.

Ari Berman (39:42)

Yeah, I mean, they were able to, they did a lot of COVID for Trump. I mean, what I was going to say is like they were willing to embrace a lot of sketchy, possibly legal, very likely authoritarian things, but there was a limit to how far they would go in terms of trying to overturn an election breaking every single Democratic norm. Right. And he's gotten rid of all those people.

Al (40:03)

And Barr, Barr actually said there was no cheating in the election.

Ari Berman (40:07)

Yeah. And now he, I mean, now the Justice Department is being run by people who helped bring those arguments, by people like Pam Bondi, the Attorney General who helped Trump try to overturn the election. The head of the Civil Rights division is someone who helped Trump try to overturn the election. The head of the FBI is someone who tried to help Trump overturn the election. I mean, all the people that tried to overturn the election are now in power basically. And instead of trying to overturn the election, again, they're just trying to rig it on the front end so they don't actually have to overturn it.

Al (40:37)

And we'll be keeping an eye on that stuff.

Ari Berman (40:40)

Yeah, I mean, we'll be, we'll be keeping an eye on that stuff. But again, I mean, it's like the threats keep metastasizing. Cuz I've been working on this very long article about how Republicans are rigging the midterms. And when I started writing about it, mid decade redistricting was something that was barely on my radar in June. I mean, I thought, well, maybe I knew there was a few states that because of court orders might have to do this, but this idea that suddenly states like Texas would just jump in for no good reason other than Trump wanting them to, that wasn't something that I even thought was on the radar.

Al (41:15)

And this was literally, literally Trump calling Abbott and saying, yeah, do it.

Ari Berman (41:20)

I mean, so that like these threats keep coming out of left field, like we can predict some of them. But then there's things like that like are laughed at and dismissed. Like they'll never do that. They'll never, they'll never do like just a mid decade redistricting because Trump wants them to. Well, now they're doing it. They'll never do like a new census. Well, now Trump says he's doing it again. Who knows if it actually happens? It's probably illegal, but that doesn't mean they're not going to go forward. I think the point is that when they say they're going to do These things, you kind of have to take them seriously, that they're going to actually push them and that it's not just going to be one state or one place that's affected, that it starts this kind of domino effect.

Al (41:55)

Oh, my God. It is a disturbing time, isn't it?

Ari Berman (41:59)

It is. And I mean, the hope is that people will see through these things. Right. And that ultimately the efforts to try to rig the election system will push up against the popular pressure and the disgust with the administration that people are feeling. But the thing that I worry about is the structural barriers become so high that popular expression won't be able to overcome that. I don't think we're at that place yet, but I think that's, that's what we have to be concerned about. And so people say, like, oh, it's okay, like, the midterms will turn out all right. There'll be this blue wave. Like, I think we have to understand that, like, the White House is going to do everything they can beyond just this one tactic to prevent that from happening.

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Al (43:06)

As far as the blue wave, the big beautiful bill, some of the worst stuff won't be taking place. But before the election, before the midterm, Right?

Ari Berman (43:16)

Yeah. I mean, stuff takes a while to go into effect.

Al (43:18)

I mean, the Medicaid cuts, for example. People won't lose their Medicaid before this midterm.

Ari Berman (43:26)

Yeah. And I mean, Trump's also doing things like firing the person who does the job numbers so that things won't appear as bad as they seem.

Al (43:37)

That's a bad precedent.

Ari Berman (43:38)

That's a very bad precedent. Yeah. I mean, so there's a lot that can happen between now and then. I don't think we should just count on an, you know, an automatic blue wave. But I think it's fair to say that Trump has become more unpopular over time. His approval ratings are underwater on every single issue, even issues that were winning for him, like immigration.

Al (43:55)

On immigration, he's underwater now.

Ari Berman (43:57)

He's overplayed.

Al (43:59)

People are saying that people that are being sent out of the country are people, been here for 40 years and have worked and pay taxes and contributed to our country and haven't done anything illegal other than be here and not documented.

Ari Berman (44:16)

Yeah. And I mean, I think people. People see that, they're unhappy about the terrorists, they're unhappy about the economy. I think if you ask most people, you know, has your life gotten better under Trump? A majority of the public say it hasn't. And they're worried about the same kind of things that they were worried about under Biden, which was cost of living, things like that, quality of life. And there's a sense that Trump. I mean, the thing that people thought about Biden was that he was too old. He wasn't paying attention to their problems. With Trump, it's like he's creating one chaos situation after the next, but he's not actually doing anything about the reasons why people elected him. So, I mean, there's still a very good chance there's gonna be some kind of backlash. But if you're telling me Democrats have to pick up three seats to take back the House or Democrats have to pick up 10 seats to take back the House, then it becomes a much different story.

Al (45:03)

Right. And also, isn't the Congress a lot? Aren't there fewer seats that are up for grabs?

Ari Berman (45:11)

Yeah, I mean, I think you could throw out a lot of the previous data because there's fewer competitive seats, period. That's what I mean. So, I mean, gone are the days where, like, there's 100 competitive districts. I mean, the number of competitive districts keeps getting smaller and smaller, and now that's becoming even smaller if you're taking potentially competitive seats off the board.

Al (45:28)

And why is that? Why have the number of competitive districts gotten smaller and smaller? Is that because America is separating?

Ari Berman (45:35)

I think part of it is partisan gerrymandering, that in both blue and red states, they've made the districts as safe as possible. Part of it is political polarization. Part of it is a lack of ticket splitting and just a lack of states being competitive in general. Right.

Al (45:51)

What do you mean by. I know what you mean by ticket splitting, but explain why that's happened.

Ari Berman (45:56)

It used to be like, a situation where, like, yeah, you might vote for a certain kind of president, but you might vote for a different party for the Senate or a different party for the U.S. house.

Al (46:07)

Right.

Ari Berman (46:07)

And that's happening less than it used to be. Right. And there's states like Iowa, for example, where it was a swing state, went back and forth. There was always, as you know, from being in the Senate always had one Republican senator. One Democratic senator usually had two or three members of one party, two or three members of the other party. Now it's a situation where it's all Republican. Right. I mean, it's solidly Republican state. It has two Republican senators. It has an all Republican congressional delegation. I mean, and that's just one state. But there's a lot of states that are like that right now. And there's a lot of states where there used to be two or three Democrats, now there's only one. So it's just created a situation where there's fewer swing seats in general because of those things.

Al (46:50)

One last question. Just curiously. Wisconsin. Yeah, Wisconsin. They kept their Democratic Supreme Court.

Ari Berman (47:01)

Yeah.

Al (47:02)

And it's a gerrymandered state. It was gerrymandered way back in what, 2011 or something like that.

Ari Berman (47:08)

Yeah.

Al (47:09)

And it's a 50, 50 state. It's the closest state in every presidential election, but still it's like six, two or something like that in terms of the Congress, in Congress, in the House. Are they going to be changing that?

Ari Berman (47:24)

They might. I mean, the court, the progressive majority in the court struck down the state legislative districts, so there's going to be competitive races for the legislature, and Democrats could pick up potentially one or both chambers this fall. But they haven't struck down the congressional map yet. And it's a little bit curious why they haven't done it. But there's been a lot of lawsuits filed directly before the court. Maybe the court wants to go through the normal political process, the lower courts, before they hear this. Because, I mean, one of the arguments against. But that all the Republicans are making about this court was that, oh, just like an arm of the Democratic Party. And I think maybe they wanted to have some separation there. I will say that I think if there was a conservative majority on the Wisconsin Supreme Court, they would not be acting as deferential and as cautious as the progressive majority is right now.

Al (48:13)

So these midterms, they won't. That won't be changed?

Ari Berman (48:17)

It seems unlikely, but it's still possible.

Al (48:20)

Okay. Well, so this is an interesting time for you.

Ari Berman (48:26)

Yeah. Yeah. Busy times.

Al (48:30)

Okay. Any anything we should be keeping an eye out for that we haven't discussed?

Ari Berman (48:36)

Well, just that the redistricting battles are going to spread to other states. That's going to be a real free for all. And I think it's just important to not normalize this. And I think in particular, when California responds to Texas, there's going to be a lot of both sides are doing it in the media. And I think it is fair to say that both sides have gerrymandered in the past, although I think it's also fair to say that Republicans have gerrymandered a lot more than Democrats have, because Democrats have tried to ban gerrymandering at the state and federal level. But I also think it's important to point out that mid decade gerrymandering is what, what's happening now, which is totally different than regular gerrymandering, and also that Trump is the one inciting the mid decade gerrymandering. So if Democrats respond to what Republicans are doing, that doesn't make them the same as the Republicans who started in the first place. And so I am worried about a lot of false equivalents happening here. And even the talking points from the Republicans are, oh, well, yeah, Texas, but look at Illinois or look at Massachusetts, but people forget there was a bill before the Congress, the Freedom to Vote act, that would have banned this kind of partisan gerrymandering. And every Democrat, but three of them voted to ban it and every Republican voted against it.

Al (49:50)

And that was like Mansion Manchin Cinema.

Ari Berman (49:53)

And then for very specific reasons, Benny Thompson from Mississippi. And so, I mean, the parties are different on this issue. And I don't think we should sort of act like they're the same, which is one thing I'm afraid that a lot of the media is going to try to do when California gets involved in this.

Al (50:10)

Okay, well, thanks, Ari.

Ari Berman (50:13)

Thanks so much, Al. Great to talk to you again.

Al (50:15)

You bet.

Host (50:16)

Well, I hope you enjoyed listening.

Al (50:19)

That beautiful music is by Leo Kottke, the great Leo Kottke. I want to thank Peter Ogburn for producing this podcast.

Host (50:29)

We'll talk again next week.