Supreme Court upends elections across the US

22:06Like we also, Democrats, have a gerontocracy problem. So we just need to think about like what, how do we present to voters a real vision that shows we are different and better than the other guys without, you know, just like waving the white flag in the short term.

22:19Brian Tyler Cohen:Do you think it's a good idea to run on the idea of expanding the court? And I ask that because even if Democrats are fortunate enough to take the House, the Senate and the White House at some point, which already is a pretty heavy lift. The Supreme Court has showed us today that they're there as kind of a backstop to push back against any voting rights legislation that even unified control of government by Democrats could push through. Like this Voting Rights Act was bipartisan legislation that existed for decades, 60, you know, almost 60 years, 1965. And and the last time it was it was like, you know, ratified or codified, it was 98 to nothing in the Senate and then signed by George W.

23:04Brian Tyler Cohen:Bush. So like this is this is a longstanding legislation. So, like, even if we pass another iteration of the Voting Rights Act, we now know that the Supreme Court is just going to be there to act as an obstacle to allowing it to stay. And so, you know, sure, you can you can do like these scattershot laws and then they get blocked by the Supreme Court and you just kind of go back and forth. But that's just tinkering around the edges. Like does fundamental change at the Supreme Court level need to take place in order to actually entrench these solutions that we're seeking to pass? I think like the court expansion probably needs to be part of the agenda.

23:44I don't know that I run on it. Like I don't know that it's like a particularly popular thing. It's sort of just polarizing. I think both sides like it when their team talks about doing it, dislike it when the others. But I do think it's got to be a part of the agenda. And yeah, I mean, look, we're going on. We're now several decades into this very determined, well-funded, well-organized project by the Republicans to fill the courts with ideologues. It's like Leonard Leo and the Federalist Society and all these groups just not thinking for one second about people who really understand the law. It's like, how can we shove the biggest number of like right wing partisan actors into judicial slots?

24:25and Democrats need to figure out a way to counteract that and fight back. It's just going to be, it's like a generational project at this point.

24:33Brian Tyler Cohen:Do you think they get it? Like, do you think that the fight mentality, not the strongly worded letter, but like a true fight mentality is actually settled in? I think they get it, but it's like, it becomes just a question of time management and all the other crises going on, right? Like the next Democrat might inherit some sort of financial crisis or something, right? And it's like making sure they still prioritize, okay, we need to get these judges vetted and through the system and votes and get rid of the filibuster or anything that will block them. Like that, I think, is the key. It's just like determination to do it.

25:06But Brian, like in the near term, Trump in the Oval Office today was basically saying like he wants to see a bunch of Republican states redistrict right now, start redrawing the maps. I mean, how worried are you about this impacting the midterms?

25:19Brian Tyler Cohen:I'm not worried about it impacting the midterms. They don't have much time to be able to do it. The only state that I'm worried about right now is Florida, and we are in the midst. I mean, by the time everybody's watching and listening to this, Ron DeSantis may very well have already signed the new gerrymander into law. But otherwise, you know, there are already primaries taking place, so I'm not really worried at this point. I'm actually—we did catch something of a break recognizing that Section 2 of the Voting Rights Act was going to be gutted anyway. I don't think there was anybody who thought that this thing had a shot.

25:52Brian Tyler Cohen:We got lucky that it didn't pass, that this ruling didn't come down in January or February. Like six months ago. Yeah, because then everybody would have been able to redraw their maps. And we would have seen, you know, 12 to 20 seats already that would have been, you know, gone. Yeah. So we caught a little bit of a break. I think midterms are basically priced in, I think, in terms of the redistricting wars. It's pretty much a wash at this point. So, you know, what I'm looking at really is how this impacts 2028 and beyond. And remember, it's not just these these mid cycle redraws that we're seeing right now.

26:24Brian Tyler Cohen:And Republicans still do have weapons. We still do have to see, you know, this Florida map signed into law. We still have to see a bunch of Republican states that have the opportunity to do so. Indiana might come back and do something. Ohio has the opportunity to to, you know, do a harder gerrymander than the one that they have right now. But remember, we have the census coming in 2030 and we could see California lose, you know, four or five seats. We could see New York lose seats. We could see Arizona, Nevada, Washington lose seats, New York, Pennsylvania lose seats. And the states that are going to gain them are probably going to be, you know, Texas, Florida and a bunch of Sunbelt states that disproportionately vote for Republicans.

27:07Brian Tyler Cohen:And so, you know, all of those things combined. Yeah, they worry me. And that's why it's incumbent on Democrats to, A, fight everywhere, because if we win these state legislatures, that could be the bulwark against a Republican legislature passing a new gerrymandered map. And giving support to these lawyers who are fighting these fights. I speak to Mark Elias almost every single day on this channel and Norm Eisen and all of these other attorneys who are doing this work. But, yeah, it's going to be a slog for the next few years. And and that's why it's absolutely incumbent to make sure that we can get Democratic majorities and pass nationwide legislation to ban partisan gerrymandering once and for all and give the opportunity for some of these Republicans who've been clutching their pearls, pretending that they're these white knights for for democracy to vote for it.

28:01Brian Tyler Cohen:If they actually don't want to see gerrymandering like they're saying only after every Democratic state does it. You were saying you want you think we need like 86 the court is what you're saying before. we gotta we gotta end this we gotta 86 this video right here with shells with shells yeah we have to make no we do you said we need to make the core beautiful necklaces with shells of numbers like 86 hypothetically i i don't legally speaking i cannot affirm or deny or yeah i'm just for the record i am just kidding because this shell thing with comey is so stupid Cut to indictment. Yeah. Well, look, I think that's a good place to end.

28:43Brian Tyler Cohen:I think that's a good, legally speaking, I think that's a great place to end. Highly recommend for those who are watching right now, please help build up this progressive media ecosystem. We need as many voices in this ecosystem as humanly possible, especially as Republicans continue to consolidate control, electorally speaking, in the media space, whatever it may be. So a small step everybody watching can take is to subscribe to Podsafe America's YouTube channel. If you're listening on the podcast, subscribe on the podcast. I'm going to put those links on the screen, in the post description, in the show notes, wherever you're listening, you'll be able to find it.

29:12Brian Tyler Cohen:Tommy. Oh, man. As always, thanks so much for taking the time. Thanks. I'm joined now by Kyle Kondik, managing editor of Sabato's Crystal Ball at the University of Virginia Center for Politics. Kyle, thanks so much for taking the time. I want to talk to you about this new map that was released by Florida Republicans. This is obviously a gerrymander to counteract what Democrats were just able to pass out of Virginia, that 10-1 map. So I got to ask first and foremost, can we talk about the legality of this move? Because there is a constitutional amendment in place in Florida that would ban partisan gerrymandering.

29:48Brian Tyler Cohen:That seems to be exactly what this new map would would require in order to pass it. And so would this pass legal muster? It's a great question. I mean, I think you could look at the map and say, hey, this obviously is a Republican gerrymander. You know, the previous map, I think you could argue that, too, although I think it's a clear argument here. But whether the Florida Supreme Court would actually enforce that is a completely open question. Governor DeSantis has made, I think, six of the seven appointments to the to the Florida Supreme Court. It's a conservative court. It seemed like they might rule against at least portions of the pro-Republican map that passed in 2022.

30:22They declined to do so. And in some ways, what's going on here is that the DeSantis administration is kind of taking this Fair Districts Amendment that voters approved about 15 years ago, kind of head on saying that basically there are portions of the what's called the Fair Districts Amendment that don't stand up to constitutional scrutiny and that there were protections in it for basically for majority minority districts that, again, don't pass legal muster. And so they say the whole thing is obsolete. Again, I'm no lawyer. I don't know what, you know, what this court is ultimately going to decide.

30:54There are legal hurdles to jump here, though, for Republicans. I kind of feel like Governor DeSantis is sort of taking them head on in this in this proposal.

31:02Brian Tyler Cohen:Well, I mean, this feels like a more egregious gerrymander than even the one that DeSantis himself pushed forward against the wishes of the Republican legislature. Like the existing map is the gerrymander that that that really was just Ron DeSantis's pet project. Like the Republican legislature had a less egregious gerrymander. DeSantis, you know, as part of his whole political platform, wanted to be more aggressive. They got that passed. This takes that to even a new level. And so I'm just I'm just wondering here, is it possible for the opponents of this map to come in and say, even if the Republican state Supreme Court in Florida wasn't willing to take a look at or block the existing Republican map, this one is even more egregious than that one.

31:49Yeah, look, I think you certainly could make that argument. Certainly it would. It seems like it would it would produce an even more lopsided Republican House delegation. It's 20 to 8 Republican right now. If this map performs as intended, it would go up to 24 to 4. Now, I think there are reasons why it might not perform as intended in the context of 2026, which should be a much bluer or at least less red year in Florida than 2022 and certainly 2024 were. But again, you and I can talk about that and think that it's an obvious argument, but it may not be an obvious argument to the Florida Supreme Court.

32:25Another thing here is what does the U.S. Supreme Court do with this Calais decision on Section 2 of the Voting Rights Act and basically whether majority minority districts are essentially protected? You know, and this the letter from Ron DeSantis' legal counsel that accompanied this proposal today kind of suggested that, you know, Republicans are going to get their way on Cali. The decision hasn't come out yet. I think DeSantis was hoping that the decision would come out, would have come out, come out by now. That's part of the reason why he pushed this back all the way till late April. We don't have that decision.

32:59We don't know what it's going to say. It may be that Sam Alito is writing that decision. It may be that Sam Alito gives Republicans everything they want. But if Calais isn't decided in favor of Republicans, it may also be the case that this map doesn't stand up to federal scrutiny on racial redistricting lines either. So, again, lots of open questions legally about this map.

33:21Brian Tyler Cohen:Okay, so you alluded to the political implications here. Is there a world where this proposed gerrymander could actually turn into a dummymander because the lines are, you know, the districts are drawn too thin where the margins are, you know, if you bring an R plus 15, district down to an R plus five in an election year where Democrats are overperforming by 10, 12, 14 points. Do you think there's a world in which we could see this backfire? I think in order for it to be a quote unquote dummy bander, Republicans would have to come out of 2026 with fewer than 20 seats, which is what they have now.

33:58And there are 20 fairly durable seats. And I'd also say that, you know, there are a few districts on the current map and also the proposed map, Maria Salazar in Florida 27, Corey Mills in Florida 7, who's got a lot of scandals and problems of his own. It's possible that they might have lost under the old map. The new map didn't really change their districts all that much. So if they lose, you can't really blame the map for the reason why that would happen. It would be as part of kind of a mega Democratic wave. So this reminds me a lot of what happened in Texas in that in Texas, Republicans want to gain up to five new seats based on their new map.

34:36They may or may not be able to do that, but I don't think they're going to come out of this election with fewer districts than they had before they drew the map. It's just a question of how well does this map perform for Republicans? That's true in Texas. I think it's true here in Florida, too.

34:49Brian Tyler Cohen:You know, there was a lot of reporting that even Florida Republicans, folks who are, you know, the elected officials who would be impacted by these maps, were pushing back against the idea of engaging in the special legislative session to be able to pass these new maps. Can you just speak on that idea and whether you think that that was taken into account here? I don't know if what was taken into account. In fact, this process was so secretive that even the state legislature, which is ostensibly in charge of this process, I mean, they basically just outsource things to the governor. The governor's office seemed to produce this map.

35:23It showed up on Monday. It looks like the legislature is going to rubber stamp it over the next couple of days. Maybe they won't. It's possible that they could push back on it. But this has really been driven by the governor's office. And presumably the White House has been, you know, probably knows something about it. But again, there's not really been anything publicly said about it. You think of redistricting as being sort of a publicly deliberative process. It really wasn't in the census. Now, look, when the Virginia Democratic gerrymandering emerged a few months ago, that was also something that I think was sort of dictated by the state legislature.

35:58It is fair to say, though, that the map came out and then the public voted on it. So there was a sort of a public deliberation in that regard. There really hasn't been in Florida. And, you know, the members themselves, you know, most members will never want to see their district changed unless they are getting, you know, a better district for themselves. But the members, I mean, look, the state legislature doesn't seem to have much power here, let alone the members who don't really have a formal say, even though, you know, they're the ones who represent Florida in the U.S. House of Representatives.

36:28Yeah.

36:29Brian Tyler Cohen:I mean, look, I think it's also worth noting that in both Democratic weapons here in this redistricting war, both California and Virginia, both of those went to the voters in every instance where the Republicans push this through, whether we're talking Texas, Ohio, North Carolina, Missouri, Florida. Those are going to be done by fiat, by by folks in charge where the voters never have a say in the matter. So I think that's just like something that's pretty telling in this entire process. I did see some polling today that if they did put this to the voters, that it wouldn't pass in Florida, which is why I presume it's being done in the way that it is.

37:03Well, part of the reason why California and Virginia went to the voters is because they basically had to get around the redistricting commissions that were written into the Constitution. Now, if Florida actually did want to do away with the Fair Districts Amendment and go to the voters, you know, to amend the Constitution in Florida, it actually takes 60 percent of the vote, which is what this, you know, which is what the amendment got. I think it was back in 2010. Now, what the DeSantis administration seems to be arguing is that even though the voters approved this back in 2010, that it's not operative anymore because of, you know, basically a Florida Supreme Court decision recently that kind of pushed back on some aspects of it having to do with racial redistricting.

37:47Brian Tyler Cohen:Well, look, on that point, like you if you're Ron DeSantis and you have a Supreme Court that doesn't really care what the Florida Constitution says, if you have, you know, these instances where where judges or state officials don't even want to take into account what the law is supposed to be, then like you don't have to worry about thresholds. You don't have to worry about anything because you've got these people in Ron DeSantis's pocket who are just going to rule by fiat anyway. Well, look, I mean, part of the story since Ron DeSantis ran for president was that he was such a powerful governor of Florida, particularly in his first term.

38:23I mean, his his ability to get the first map done in 2022, I think, was an example of his power. I think there's been some thought that maybe his power is waning. He's a lame duck governor. He's going to be out of office starting next year. But this is another real power play from DeSantis because he's trying to essentially not only dictate this map to the state legislature controlled by Republicans, but also suggesting to the Florida Supreme Court that they should essentially go along with the map and also maybe even decide that the Fair District's Amendment isn't, you know, isn't isn't operative anymore or at least isn't doesn't have any teeth.

38:57So it is a real power play. Again, we'll see if it actually actually works or not.

39:01Brian Tyler Cohen:Can you talk about if Florida Republicans are successful in pushing this through, what the net sum of these redistricting wars is going to look like? So there's a way of looking at it. So we've got eight states now who are have redistricted or attempting to redistrict and you sort of look at them in groups. So it's California versus Texas last year. Texas is trying to add five new Republican seats. California is trying to add five new Democratic seats. California also shored up a few current Democratic seats, which I think you have to kind of keep in mind when you're doing the arithmetic here.

39:36So I think California was a little bit better for Democrats than Texas was for Republicans, but they're kind of similar. Virginia trying to add four new Democratic seats. Florida trying to add four new Republican seats. In some ways, maybe they canceled themselves out, although, you know, there are legal questions about both. And, you know, we got to see how they perform in the elections. Ohio was not really a Republican gerrymander, although it was a certainly it's a it's a it's a pro Republican map than what you'd expect to be a neutral map to be. maybe Republicans get a seat or two out of Ohio, although I don't think anything is really guaranteed there.

40:07Utah, court-drawn map, plus one Democratic. Maybe you could say Ohio and Utah maybe canceled themselves out. And then you've got Missouri and North Carolina, an additional Republican seat apiece. The Missouri map might get thrown out by the courts because of a, or might basically get put on pause by a referendum. I think if all of these maps come through, it's kind of a wash. And again, it'll sort of depend on what the results are. Now, if Virginia succeeds and Florida fails or Florida fails and Virginia or Florida succeeds and Virginia fails, then maybe one side gets a clear advantage over the other.

40:44But I think the bottom line here is that things have not changed enough to change the idea that Democrats are favored to take the House. I think they've been favored basically the whole time this cycle. I think they continue to be. And, you know, we'll just see how redistricting ultimately ends up resolving here.

41:03Brian Tyler Cohen:Well, you had mentioned before the Calais case, and we don't only have the Calais case that's coming down the pike. We also have, you know, the 2030 census, which is going to take a bunch of electoral seats away from historically blue states and put them put them in historically red states. And so with that, you know, on the horizon here and with a bunch of Democratic weapons still which still remain to be gerrymandered like New Jersey, New York, Colorado, Washington. And I'm sure there are other Republican states where you've got, you know, partisan officials who are willing to to, you know, do their part in this whole, you know, race to the bottom, basically.

41:42Brian Tyler Cohen:Where do you think that one side might have an advantage over the other when all is said and done? Well, look, I mean, I think that it is indeed the case that Republican states just gain House seats and electoral votes from blue states in the 2030 census. Now, we'll see what actually happens. And that's also several election cycles away. I do think these redistricting wars are going to continue into 2028. Maybe you get the Calais decision in, I mean, it could come at any time, but maybe it comes in June. Maybe it is a pro-Republican ruling, you know, maybe those protections for majority minority districts are eliminated.

42:16That'll have ripple effects throughout the South. It might also have ripple effects in blue states too, because maybe they won't have to, you know, feel like they have to protect certain districts. You could have states like Colorado and New York go to the voters and try to roll back some of the redistricting, you know, commissions or restrictions in those states, much the way that California and Virginia did. Maybe a red state like Indiana that elected not to gerrymander or re-gerrymander in 2026. Maybe they do it in 2028. So you could sort of go on and on and on with lots of possibilities. I will say that without some sort of national solution on redistricting in which you have some sort of agreement between the parties as to how to do it, I mean, that seems totally like a pie in the sky kind of thing.

43:01You're just going to keep going here. And I think the race to the bottom is probably going to continue. One thing that's, I think maybe a little bit dangerous for Democrats in the context of 2028 and 2030 is that some of these maps might perform well for Democrats in 2026, or maybe they won't lose as many seats as they expect in like a Texas or a Florida because of the environment. But maybe those maps will perform for Republicans in 2028 and 2030. So you kind of got to, you know, you got to take an election by election. And so maybe what looks like a wash in 2026 actually is a Republican advantage in 2028 because of the change in the political environment.

43:38Brian Tyler Cohen:Kyle, for folks who are watching and listening, where can they see and hear more from you? centerforpolitics.org backslash Chris DeBall. We just put up an analysis on Monday of the new Florida map, which I'm sort of referencing here today. You know, best guess is that I think it might be a challenge for Republicans actually to achieve that net gain of four in Florida, even if the map is instituted for this year. So that's something we're watching going forward here. Kyle, real quick, is there any big surprise that you're anticipating come election day in midterms? I mean, look, I mean, I think it would still be a surprise if Democrats flipped the Senate, but and I think Republicans are still favored.

44:16But like you're starting to see kind of more of the path emerging here over the past the past few months. But and, you know, the other thing is that I'd say the bigger surprise than Democrats flipping the Senate would be Republicans holding the House because I do think Democrats are in pretty good position in the House. And And again, this redistricting thing has sort of added some uncertainty there. But that's generally been the case. And I think that that continues to be the case.

44:39Brian Tyler Cohen:You know, I feel like for as long as I've been in politics, we have looked at a few states as like, you know, just impossible to get back into the blue column. And that includes Florida. That includes, you know, Texas. I don't even remember a time when Texas was there. But, you know, that has been the perpetual prize. A place like Ohio has gotten redder and redder. Do you have any feelings about the prospects that Democrats have in this election cycle as it relates to these states that have been for so long out of reach, but would really upend the political map as we know it if suddenly Democrats are able to win in Ohio or Texas or Florida?

45:16Well, look, in order to actually flip the Senate, Democrats are going to need at least two of those seats from a double-digit Trump state. And that assumes that they win North Carolina and Maine. It assumes that they hold all their current seats. Those may or may not be safe assumptions. But but yeah, I mean, you know, Democrats are now locked out of, you know, the of the states that voted for Trump three times he was on the ballot, which are 25 states. That's 50 Senate seats. You know, they have to claw back some of those in some of those places to win. North Carolina is a natural place for that in the Senate.

45:49Then you look at like Ohio, Iowa, Alaska, maybe Florida, maybe Texas. So whether Democrats are going to make inroads in those states, it's probably not going to decide the House, but it very well may decide the Senate. it.

46:00Brian Tyler Cohen:All right. Well, I'm going to put the link to your website right here on the screen and also in the post description for those who are listening on the podcast. I'm going to throw it into the show notes. Kyle, as always, thanks for the analysis. Thanks for the work you do. Thanks for having me. Thanks again to Robert Garcia, Tommy Vitor and Kyle Kondik. That's it for this episode. Talk to you on Sunday.

46:29Brian Tyler Cohen:app and leave a 5 star rating and a review. And as always, you can find me at Brian Tyler Cohen on all of my other channels, or you can go to briantylercohen.com to learn more.