Redrawing Democracy

0:00One of the interesting things about this House of Representatives is that it actually is, when you average it out, one of the fairest sort of aggregate redistricting plans in the nation that we've had over the last, say, three, four census cycles. And you saw, you know, if you looked in the last two elections, you didn't see sort of wild swings that were disproportionate to the vote totals or even out of sync with, say, the presidential election. And so that may change now with these efforts to try to redraw the lines to make them more biased.

0:37Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, conflicts and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they're available. Earl Warren, the Chief Justice of the United States, called Reynolds against Sims and not, say, Brown against Board of Education or Miranda against Arizona, his most important opinion for the Supreme Court. He thought that in Reynolds, the court had ensured that henceforth elections would reflect the collective public interest embodied in the one-man-one-vote standard, rather than the machinations of special interests.

1:20Pamela Karlan:But gerrymandering and other electoral manipulations have continued. Indeed, gerrymandering has become more sophisticated than ever. So how do we think about the law of democracy and the process of drawing districts? I'm here today joined by my colleague Nathaniel Persley. Nate is the James B. McClatchy Professor of Law here at Stanford and also has appointments in the Departments of Political Science and Communication. He has been an expert line drawer, a special master or court-appointed expert, crafting congressional or legislative districting plans in at least seven states, spanning really across the country in various ways.

2:01Pamela Karlan:And so I'm just really grateful to have you here, Nate, with us today to talk about gerrymandering and where we find ourselves in the year 2025. Well, thanks for having me again. It's always a pleasure to join you here. And as you know, you were the one who taught me gerrymandering way back in the day. And so I owe all of this to you. So here's where we are, which is that we're now sort of vaulting into unprecedented territory with the possibility of mid-decade partisan gerrymanders in order to sort of recalibrate the partisan margins in Congress. But to take us back, as you said, the one person, one vote cases were a watershed moment, not just for the law of democracy, but for constitutional law.

2:48I mean, it was, as you said, and as Earl Warren said, seen as the most important cases of his time on the court, because the thought was, if you can defend yourself in the political process, you'd be able to vindicate all kinds of other rights that might be under assault. And so we moved from what was called quantitative vote dilution toward districts then that had roughly equal numbers to then what was qualitative vote dilution, dealing with race and then dealing with party. And the Supreme Court in the Rucho case not that long ago said that partisan gerrymandering presents a non-justiciable political question, meaning that the federal courts were not going to get involved in partisan gerrymandering.

3:32And so that seemed to give sort of a blank check for at least at the beginning of a decade for state legislatures to draw lines.

3:42Pamela Karlan:Let me stop you there for just a second to just make clear to those of our listeners who aren't as deeply versed in this as we are that what Reynolds against Sims said is that districts should have roughly equal population. For congressional districts, ultimately, the court kind of ratcheted that down to they should have as nearly equal population as possible. And what that meant is every 10 years after we have the census, it becomes clear that the districts we already have need to be redrawn almost everywhere. And I sometimes use the analogy with, you know, kind of civics audiences and the like that.

4:18Pamela Karlan:Like, you might weigh the same as you did 15 years ago, but that weight has shifted. And it's the same kind of thing with the population, even in a state where the population hasn't really changed very much between decennial censuses. It will have moved around. So you have to redraw the districts. And normally, the census is held in the years ending in zero. The numbers come out in the years ending in one. And by the year ending in two, we've redrawn the districts and they're supposed to be kind of kept in place for the next 10 years. That's right. And we should emphasize that when it comes to congressional districts, that I can tell you, as you mentioned before, that I've been appointed many times to draw these districts, that when we say equal population, we mean really equal population.

5:03When we draw those districts, all the congressional districts I've ever drawn, you know, within a state, they just differ by one person. Not 1%, not 0.1%, but literally one person, because we've sort of adopted a kind of hyper notion of equality when it comes to the numbers of people. Of course, there's all kinds of fictions involved in that related to how accurate the census is, et cetera. But as our former colleague, John Hardely, used to say, the one person, one vote rule is sixth grade arithmetic. You just divide the population by the number of districts and you come up with a magic number that you can try to achieve.

5:41But just because you have equal numbers of people doesn't mean that the maps are fair because we've learned that you can draw districts in such a way as to advantage some groups more than others, whether you're talking about it with respect to race or whether you're talking about it with respect to party. And right now, the controversies that we're dealing with are really motivated by this partisan gerrymandering sort of impulse in order to shift the balance of power in Congress.

6:07Pamela Karlan:And what are the techniques that people who want to gerrymander a district use to get a gerrymandered district? How do they do that? So we sometimes call them packing, stacking, cracking, and kidnapping. So you would pack your opponents into as few districts as possible. You would spread your supporters into as many districts as possible. You might kidnap incumbents so that you pair them together in order to run them against each other or to take an incumbent out of a favorable district and put them in an unfavorable district if you want to eliminate them. And stacking is something you might do outside the congressional realms where you would combine districts together.

6:45But what we're seeing, not just now in these mid-decade attempts at gerrymandering, but in partisan gerrymandering that happened at the beginning of the decade, is an attempt to really optimize for the fortunes of a political party that's drawing the lines. So that if it's a 50-50 state, but one party controls the lines, it's not uncommon that they could get 70 or 80 percent of the districts if they're drawn in such a way as to make sure that their party stays in control.

7:13Pamela Karlan:Yeah, I mean, that was kind of the story in North Carolina. And you alluded earlier to the Rucho case. North Carolina is a purple state. It went for Donald Trump in the last election, but also elected a Democrat as the governor. So they had, I think it was, what is it, 13 seats, 14 seats? As a Rucho or now? Now. Yeah, I think it's 13, yeah. Yeah, and so, you know, you might expect seven, six or eight to five. And they managed to draw 10 to 3, they thought. And when the guy was responsible for overseeing this all in the state legislature was asked, why is it 10 to 3? He says, because we couldn't figure out how to draw 11.

7:53Right. That's right. And so, you know, with with both modern technology, but also the reliability of the political data that we have and the fact that people's political preferences are pretty fixed right now, you can draw with with a great deal of reliability, safe districts for one of the other party. It used to be the case that we would think of gerrymandering as having a kind of natural barrier or it's a natural solution that the more you spread out your supporters, the greater the likelihood that you'd have a kind of wave election that would then overwhelm. And then maybe you'd lose many more seats.

8:31But the more reliable the people's voting preferences are, the greater confidence you can have that you can draw these districts in a way to eliminate uncertainty. Yeah. And one of the things that's interesting about it is like lots of people claim to be independents and yet how they're going to vote in elections is still really predictable. Well, that's right. When you draw lines, if one were drawn, I haven't drawn partisan gerrymanders since I tend to be just working for courts. But those who do, when they're not using party registration data, right, because that's not terribly reliable, what they use are sort of models that predict political performance by census block or even sometimes built up from the individual.

9:11And what I mean by that is if you can reliably predict how a given neighborhood is going to vote in an election, when you combine those neighborhoods together and you put in a little bit of a cushion, you can try to you can sort of eliminate uncertainty as how it's going to perform in the next election for a given political party. Yeah.

9:31Pamela Karlan:And so gerrymandering has gotten better and better. So the risk reward tradeoff that, for example, when Justice O 'Connor in the Davis against Bandimer case, which was an early challenge to partisan redistricting in the 80s, she said, look, there's a natural limit to this because of that risk reward tradeoff. The thinner you slice the bacon, the more likely you are to lose a bunch of seats. And now that's not as true. And we have a House of Representatives, Federal House of Representatives right now that's incredibly tightly balanced. Let me just add one thing there. One of the interesting things about this House of Representatives is that it actually is, when you average it out, one of the fairest sort of aggregate redistricting plans in the nation that we've had over the last, say, three, four census cycles.

10:18that because, and you saw, you know, if you looked in the last two elections, you didn't see sort of wild swings that were disproportionate to the vote totals or even out of sync with, say, the presidential election. And so that may change now with these efforts to try to redraw the lines to make them more biased. Yeah.

10:37Pamela Karlan:And so one of the other things that's happened over the last, say, 25 years is a change, not just in the technology of redistricting, but a change in who does the redistricting. So that, for example, if you go back to the 1970s or 1980s, I think in almost every state, it was the state legislature that drew the lines for congressional districts and for state legislative districts and the like. I mean, I think Arkansas was a little different. It had a reapportionment board that was made up of the governor, the secretary of state, and the attorney general. But in almost every place, redistricting was done by politicians, which makes the United States different than, for example, a lot of other countries in the world that have districts and they have, you know, career civil servant boundary commissions and like.

11:20But that changed a lot in the last, say, 15 years or so in some jurisdictions. That's right. I mean, Arizona was in some ways a leader on this in developing their independent redistricting commission. But then California, in terms of sort of the significance that this has had to the national map. California's Independent Redistricting Commission has been, you know, quite influential. New York, I mean, as a general rule, what you're seeing is unilateral disarmament by the blue states, and that you don't see it as much in the red states. But as I was saying, you know, Arizona is a little bit different.

11:57Utah has a commission, I actually was an advisor to that, but it's not, when it comes to Congress, it's merely advisory. And you see that in a lot of other states. And so one of the issues right now is that the Democrats and the Republicans are not equally situated in their ability to, say, take the reins middle of the decade and redraw lines to their advantage. Yeah.

12:21Pamela Karlan:So an independent redistricting commission, there are two different things, I guess, about it. One is it uses different personnel to actually make the decision. And, you know, I think California's system is like rivals how the doges were selected in medieval Venice with rounds of lotteries and voting and strike-offs and the like. But the idea is to produce a group of people who aren't themselves directly interested in the process. And then in a number of these jurisdictions that have gone to independent redistricting commissions, it's not just that the commission is independent of the politicians, it's also they're given very specific directions about which things they can consider and which things they can't.

13:02Pamela Karlan:And, you know, this goes back a little bit to something you were mentioning earlier that you call kidnapping. But I sometimes tried to call it shacking. So it would it would rhyme with the packing, stacking and cracking. And it was the places that representatives lived. But it led to a really interesting placement of two congressmen from the Los Angeles area, Berman and Sherman, in the same district. Yes, I've also seen I've done this, But when I was appointed to draw the lines in Georgia for the state legislature, and I think it was 2002 or 2003, one of the plaintiffs that brought that case ended up being constitutionally ineligible to run for office because I ended up taking him out of his current district and putting him in another.

13:45And he hadn't actually lived in any district for the continuous six months before the election. And so he actually had to step down. So, yeah, that's one of the strategies that you're seeing. Let's emphasize, though, that there are commissions and there are commissions, right? Just because we call something a commission or even an independent commission doesn't mean that they're necessarily independent. There's all kinds of varieties of processes in order to select these people. And you can regulate the redistricting process by the people, the principles, and the process. And as you were saying, California really tried to do all three of those.

14:19And the commission, which I will admit I was pretty skeptical when it was put together because of this Rube Goldberg selection process that tries to sort of ensure that you are as politically ignorant and have not worked in politics or understand redistricting. But they've had pretty qualified people who've been part of it and it's worked relatively well. But, you know, just because you have a process that selects people in a certain way doesn't mean that the legislature then is going to stand by. In some states, the redistricting commissions are advisories. Sometimes they don't like what happened in New York where you had a commission that that totally fell apart.

15:02And then the legislature came back through its lines and the courts prevented them from doing so. And so there is no sort of one model for having independence in the redistricting process and different states are trying different things. Yeah.

15:17Pamela Karlan:And I should say that, you know, when you say that the political process can be somewhat resistant, I think to the case in which the essentially the legislature of Arizona sued the state over taking its power to redraw congressional lines away. And the Supreme Court only narrowly five to four upheld the use of independent redistricting commissions. Right. But we are there now, at least, that where the use of these commissions for drawing lines is not constitutionally suspect. There was, under sort of theories of an independent state legislature doctrine, there was the possibility that the court wouldn't allow it.

15:55But we'll see. We'll see what happens going forward here. I mean, the challenge right now is that many of the states that do have independent commissions and do have lines that were in place did so by amending their constitutions. And so it's very difficult in a kind of rapid process to re-amend your constitution to allow, say, for the retaining of authority by the state legislature to overturn a commission plan. Yeah.

16:20Pamela Karlan:So we're in the year 2025, which means we're halfway through the decade that used the 2020 census figures. And obviously, we'll have a whole new set of census figures in 2030 on this. And one of the things that's kind of interesting is just how much litigation is still going on over the 2020 round of redistricting. I mean, the Supreme Court this year had up there a case called Louisiana against Calais that involved the redrawing of the congressional districts in Louisiana. It was a case in which initially a court found that Louisiana's failure to draw two majority black districts in a state that has seven districts and is a third African-American violated the Voting Rights Act.

17:06Pamela Karlan:The state came back with a remedy for that that was designed to create another majority black district, but also to protect the seats of Steve Scalise and Mike Johnson, who are both powerful Republican members of Congress. And that led another group of voters to sue over that remedy, claiming that that remedy took race too much into account. The Supreme Court heard oral argument last year on the case and on the last day of the term announced, you know, we think we're going to have to have this case argued again. And we'll tell you, and the Supreme Court used this language, we'll tell you in due course if we have any additional questions, which raises this issue of, you know, we're going to have the 2026 election most likely conducted from districts that are still under litigation.

17:54Pamela Karlan:And that's not obviously the only case. The Alabama congressional district case is still going on as well. And now, as you've kind of alluded to, we're going to have another set of issues that come out of what's going on in Texas. So could you kind of share with us what's actually happening in Texas? Sure. Let me just tee up some of those issues that you were just mentioning, maybe we can talk about them later, which is that there is sort of a fundamental conflict at the Supreme Court among the justices and to some extent in the lower courts as to what the rules are going to be with respect to race and redistricting and also the constitutionality of the Voting Rights Act, as well as there's a private right of action.

18:35So I hope we can talk about that. But these issues of race do interact with the questions of partisanship, especially in a place like Texas. But just to update us as to where we are in Texas, at the urging of the president and Governor Abbott called the special assistant of the Texas legislature to pass a redistricting plan that would add another five seats, they think, to five Republican seats in Texas. And it's not as if the Republicans didn't already have a majority in the congressional delegation in Texas. They had at least 60 % of the districts, I think much more than that. But now they would get five more.

19:15And we can talk about some of the reasons that are being lofted as to why they could do this or should do this. But I mean, I think ultimately it's a partisan land grab here. And it's just a way to try to ensure that a very evenly balanced Congress would stay with a majority in Republican hands. There are going to be arguments that are made, both by those who are challenging the new plan, as well as those who are defending it, saying that either it was motivated to try to dismantle districts that were drawn predominantly based on race, or in the case of plaintiffs that are going after the districts, that because they inevitably, when you redraw districts like this, you're going to disadvantage a lot of districts that are with substantial shares of Black and Latino populations that it's going to either be a violation of the Voting Rights Act or a violation of the Constitution.

20:12Pamela Karlan:Yeah, I mean, so I want to unpack that all a little bit, which is the argument in Texas, there are two different arguments. There's what we call reasons and excuses, right? And the excuse that's being used is that the districts we have are somehow unconstitutional, even though no court has said that. And, you know, the Justice Department, I think in what I consider to be quite a partisan move, is trying to support that. But in reality, would Texas be redrawing these districts now if it weren't for the fact that they think they can get five more Republican seats? No. I mean, I don't even quite understand, to be honest, the Justice Department argument that you were mentioning before.

20:58And just so we're clear, what they're saying, I believe, is that some of the seats in Texas were drawn predominantly to create majority-minority districts that were, say, if you added up the Black and Latino population, it might be over 50 % of the voting age population in these districts. Now, there's nothing wrong with that. I mean, you can, you know, there are going to be plenty of districts. We have them in California. I'm all over the country where you have majority-minority districts. It's hard to say that these in particular were drawn predominantly on the basis of race. Moreover, you know, the intentional dismantling of these districts could be predominantly based on race, right, If you're trying to create districts that are intentionally majority white or it may violate the Voting Rights Act if you're trying to dilute the influence of black and Latino voters.

21:48But in the end, I almost feel like that legal argument, that kind of inside baseball argument that you and I would make is not really even the one that's being made by those who are drawing the lines. I mean, when I hear the line drawers in Texas talk about it, they say, look, we're a Republican state. Donald Trump won this state. We control the process. He should have a majority, if not just a majority, a significant majority of the congressional seats. And so it's not as if they're totally like putting all their eggs in the legal rationale basket here that it's somehow constitutionally mandated that they redraw districts so there are five more Republican seats.

22:30Yeah.

22:31Pamela Karlan:And as you mentioned earlier, the Supreme Court in the Rucho case said that federal courts can't do anything no matter how blatant a partisan redistricting is, that that's just non-justiciable. And I would assume that the Texas courts are not going to impose, as the courts have in some other states, a state constitutional restriction on partisan redistricting. And so attacking this as a partisan redistricting is not going to be a winning move in court. And it's often seemed to me, I mean, I filed an amicus brief in Rucho itself on this issue, that the problem is once you say that partisan redistricting is non-justiciable, everything is then couched in terms of race.

23:16Pamela Karlan:And so everybody's going to go into court claiming this is a racial gerrymander or this is racial vote dilution or like, even when what's really going on is politics. Right. And I think that, you know, you'll see that here. I mean, let's be honest, this is not the first time that Texas has either redrawn districts in the middle of a decade or been the subject of redistricting controversies pretty much every 10 years. Yeah. I don't think Texas has had a redistricting since 1970, which is the first post-Reynolds redistricting that didn't end up in federal court. Right. Texas, Georgia and North Carolina have sort of competed in providing the number of cases that we teach in the law of democracy here.

23:59You know, it's sort of been an embarrassment of riches on that, or an embarrassment. But in Texas, you know, the Democrats gerrymandered for several decades. The Republicans, when they got the reins of power in the 2000 redistricting, redrew the lines and then redrew the lines in the in the middle of the decade. A famous sort of case where, you know, the Democrats fled to state in order to prevent it there from being a quorum. And it was there was all kinds of drama. But this would be I mean, you know, what I think is sort of unique here is how it's tied into national politics and also how significant a shift it might be.