The Daily - A Plan to End Partisan Gerrymandering

Episode Date: July 29, 2019

The Supreme Court ruled last month that federal courts cannot rule on cases of partisan gerrymandering, saying that judges are not entitled to second-guess the decisions made by state legislators who draw voting maps. We spoke to one man who has long believed there’s a way to address the issue without the courts. Guest: Eric H. Holder Jr., who served as the United States attorney general for six years under President Barack Obama. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: The Supreme Court’s decision on gerrymandering instantly raised the stakes for the nation’s state legislative races, which are often overlooked by voters, but can shape the course of policy from abortion rights to education.What is gerrymandering, and why did the Supreme Court rule on it? Here’s a refresher.

From The New York Times, I'm Michael Barbaro. This is The Daily. Last month, the Supreme Court ruled that federal courts are powerless to rule on cases of partisan gerrymandering, saying that judges are not entitled to second-guess the decisions made by state legislators who draw the voting maps. Today, a conversation with a man who has long believed there's a way to fix the problem without the courts. It's Monday, July 29th. Hello.

Hello. Hi. Hi, Mr. Holder. Yeah, this is Eric Holder. Hey, it's Michael Barbaro from the New York Times. Hey, Michael. How you doing? Good, good. Thank you very much for making time for us. Sure.

Eric Holder was the attorney general under President Obama. So I want to start in 2010, which is when it seems that the story begins. What were you doing at the time? In 2010, I was in my second year as attorney general. It's the day after in America with midterm elections delivering the biggest shift of power in more than 60 years. In the midterm elections that happened at that point, Democrats didn't do well at all. The biggest walloping of the Democrats since the 40s. The biggest midterm election results in 70 years. That's history. President Obama faced the media after the American people delivered their devastating verdict on his policies.

And I remember in the post-election press conference that President Obama had. This is something that I think every president needs to go through. He described what happened the night before as a shellacking. Feels bad. But I don't think that people understood, at least Democrats didn't quite understand at that point, what that shellacking was going to mean for the redistricting process that was going to occur a year later. We're going to take a short break, and when we come back, we'll turn our attention to the issue of congressional redistricting and what it means now that the census figures are in.

2011 was 10-year redistricting that is done in this country. We get one shot once a decade. We get a shot to redraw the district boundaries. And it's so very important that we mobilize now to participate in the process. The way it works is that state legislators draw congressional lines. Now that should just be a technocratic, totally apolitical thing. But of course it isn't. What actually happens is the party in power draws weird, crazy lines on maps in order to give themselves an advantage on election day. And Republicans understood in 2010, 2011, that if they did well at the state level, they would have the capacity come 2011 during the redistricting process to really draw lines so that they would have state control,

which then would give them the ability to draw lines for the United States House of Representatives and give them control of the United States House of Representatives in a way that preserves Republican power and how that flowed from this 2010 electoral victory by Republicans? Well, I mean, if you look back just at the most recent elections, if you look at North Carolina, for instance, where Democrats got about half of the vote for all of the congressional delegation in North Carolina and ended up with about 23% of the seats. In Ohio, again, Democrats got about 50% of the vote and got about 25% of the congressional seats. In Wisconsin, Democrats got actually 54% of the congressional votes and ended up with about a third of the congressional seats. And that's all, and this is in 2018,

and that's all a function of the lines that were drawn by Republicans in 2011. Okay, so in 2015, you leave the Obama administration. How are you thinking about this issue of gerrymandering? Well, given the fact that I'd spent a fair amount of my time as attorney general in protecting the right to vote, that's something that I wanted to stay involved with. And it also seemed to me to be a place where there was not, I thought, sufficient amount of attention being paid to what happened in 2011 and what could potentially happen again in 2021. So what did you decide to do? Well, I talked

to President Obama about this because he's also made the determination that in his post-presidency, this is going to be his chief political involvement. We started to think about what is it that we might do? And so we sat down with Nancy Pelosi, Terry McAuliffe, then the governor of Virginia, and decided to come up with an organization that would focus on this issue of gerrymandering, of fair redistricting, and get ready for the process that was going to happen in 2021. And those are all Democrats that you mentioned.

Yeah, all Democrats. But every one of us was convinced that all we needed to do was to have a fair process and that our party would do fine. We didn't think that we needed to create an entity that would gerrymander. We thought we needed to create an entity that would make the process fair. In your mind, a fair process would produce better results for the Democratic Party than what was happening already. Yeah, I mean, from my perspective, I think a fair process is just good for the nation, good for our system. We live in a hyper-partisan environment.

You know, there's a number of reasons why that is the case, but I think gerrymandering certainly contributes to it. If you're in a safe seat, you're not worried about a general election. You're worried about a primary. And that drives people further and further to the right, and to be fair, further and further to the left. And cooperation is seen as a sign of weakness. And therefore, we see people dissatisfied with the way in which governments operate, or more precisely, don't operate, and then the level of cynicism tends to rise. So from my perspective, I wanted to affect a positive systemic change that also had the collateral impact of electing Democrats,

putting more Democrats in places of power. But my focus, I mean this quite sincerely, my focus was on a positive systemic change. And if that meant that it would result in more Republicans being elected, well, then I'd say, you know what? We as Democrats need to change our priorities, change our policies, and be more attractive to more voters. You're basically saying that you're thinking that you as Democrats, you don't need to cheat to win. You don't need to gerrymander to win. And if that wasn't true, that would be a sign that Democrats have much bigger problems, and they need new policies and new messaging and everything else to persuade voters to vote for them. No, I think that's precisely right.

And I firmly believe that, that Democrats do not have to gerrymander in order to win. All we need to do is have the lines drawn in a way that's fair. So let's talk about the plan that you come up with. What are the actual strategies here to try to end gerrymandering and, as you're saying, create a fairer system here? really get at this in an effective way, we needed a state-by-state process. And so we did a state-by-state analysis and decided which states we would target and then decided, all right,

we're going to support candidates who will stand for fair redistricting. We're going to support reform efforts in the states where that is possible. And that's chiefly the creation of these nonpartisan commissions. These nonpartisan commissions are, they're structured in different ways in different states. But the ultimate goal of all of these is that you take the power to draw the lines away from interested politicians and put it in the hands of a body that in its totality is really just trying to do the right thing. The third thing is we would bring lawsuits in those states where we had the ability to do so to challenge this inappropriate gerrymandering. And then the fourth thing was to have an advocacy effort to

make people aware of the negative impacts on our country of partisan gerrymandering. So we had that four-prong strategy that we would employ in our target states. So part of the strategy is supporting candidates at the state level who vow to draw fair or fairer districts. So you would support Republicans as well as Democrats who vow to do that. Sure. I mean, we are, you know, finding Republicans who will say that, that's extremely difficult. Is it? Yes, it is. Republicans have not generally been in favor of this kind of effort because it necessarily means they understand it'll be a diminution of their power with the changing demographics in this nation, with the change that this nation is undergoing ideologically, if they were to have a really, just a totally fair process, that would mean fewer

Republicans in Congress. You know, that's a hard thing for individuals who are in safe Republican seats to say, well, all right, I'm in favor of making what is a safe Republican seat that I now occupy, make it more competitive, you know, decrease the chances that I'm going to get reelected. And so that's why I think it's difficult to find Republican partners in this effort. We'll be right back. We'll be right back. So we've talked about the ways that gerrymandering helped the Republicans in 2018. How did your strategy for combating gerrymandering play out?

Because it felt like the first major test. Right. Yeah, no, we did quite well in the midterms in 2018. We won governor's races in eight states. We flipped six state legislative chambers. We broke super majorities in four chambers. We made really significant gains in seven additional legislative chambers. five ballot reform measures that put in place these independent commissions in Michigan, Colorado, Missouri, Utah, and Ohio. We won three Supreme Court races. And those become important because in states where we want to bring lawsuits to challenge these unfair gerrymanders, ultimately you have to have Supreme Courts that will look at these cases in a fair, nonpartisan way. So we were successful in 2017, 2018, both in terms of our electoral efforts and lawsuits that we brought. Mm-hmm.

So this is working, if you believe the Democrats that you're behind when they say that they will draw fair districts. But I wonder how you can be sure of that, that if and when Democrats take over these chambers in these states, that they won't turn around. Yeah, no. And gerrymander as well. And that's a very legitimate question.

Earlier this year, Democrats in New Jersey tried to use the power that they had there to do things that I thought were inappropriate, in essence, to gerrymander for Democrats in New Jersey. or inappropriate, in essence, to gerrymander for Democrats in New Jersey. And it was very public in my condemnation of what it is that state Democrats were trying to do in New Jersey. And ultimately, Democrats in New Jersey backed down and did not put in place the measures that they were trying to affect that would have advantaged Democrats inappropriately. So in that case, you asked Democrats to disarm despite having the power to gerrymander. Exactly. And I'm prepared to do that. This is not an attempt to gerrymander for Democrats. I would not put my name, my reputation on such an effort, nor would President Obama. This is a fight for fairness. But let's talk about that, because there will be people listening to this

who will think to themselves, Mr. Holder's right, this is a fight, and Democrats should bring their biggest weapon, which is partisan gerrymandering. I'm sure you hear this from time to time, knowing the argument that you're making here, that what you're proposing is noble, but that the tactics of your opponents will make it very, very hard, and that a fair system may not be their goal.

And so then there's the old Jon Stewart line that when it comes to Democrats, they're frequently bringing a tote bag to a knife fight. And are you suggesting a kind of unilateral disarmament by Democrats that may end up hurting the party despite the nobility of your goal? No, you know, you know, you know, nobility using it in a way that equates it with weakness. And I don't see that at all. I'm tough. All right? This is a tough Democratic effort to fight for this democracy. The use of inappropriate means to fight what you consider to be an inappropriately created structure, I don't think is the way to get at this. That's not what I think the Democratic Party should stand for. We should stand for those policy ideas, those programs that will generate

the kind of electoral support that will put Democrats in power. And once that power is obtained, it should not be used in inappropriate ways to continue to have people in office if they're not supported by the people. And as a result of this noble effort, we'll end up with a better America. You know, as you're talking about this idea, I'm thinking to myself, why would it ever have made sense? Why would anyone design a system in which local elected officials are responsible for drawing districts that would empower or disempower members of their own party. Yeah, in a lot of ways, it's kind of illogical. You know, the prime directive for any elected official is to get reelected. And to give power to those people to draw the lines in some ways is illogical.

But we've been doing it that way since there has been a United States of America and there has been gerrymandering done by both parties, by Democrats as well as by Republicans. From my perspective, simply because we've had it in the United States almost since the creation of the Republic doesn't mean it has to continue. Let's just do away with it. Let's come up with, let's improve our system. It occurs to me that the most logical place for this to get solved might not be in state legislatures where Democrats and Republicans may go back and forth controlling these chambers with their self-interested instincts always at play, but that this is an issue for federal courts. This is an issue for federal courts. What better place to kind of take an issue like this than judges who can come up with some sort of a test for what is a partisan gerrymandered district and say, well, that's one of them.

And I'm going to now call that illegal and make you go back to the drawing board and come up with a fairer one. Well, let me give you a really concise legal analysis here. The Supreme Court blew it. Period. Full stop. You mean this case that just happened? Yeah. Today's Supreme Court decision on your vote and gerrymandering. It's a win for one political party. We'll tell you what it means. The court today, by a vote of five to four, ruled that partisan gerrymandering is actually something that courts should not get involved in.

It's what they call a political question. What the Supreme Court says is this can only be dealt with at the state issue. And for decades, people that have been disenfranchised have looked to the federal courts and the Supreme Court in particular for protection.

Now they can't do that any longer. The best way would have been for the court to say, you know, you can go too far when it comes to partisan gerrymandering. And it would be best to have from the highest court in the land, some parameters, some guardrails. The court had the opportunity to put those guardrails in place. And there are guardrails in place when it comes to racial gerrymandering. And the court had that opportunity and simply decided, I think wrongly, that there's no place for the federal courts when it comes to making determinations about the constitutionality of partisan gerrymandering efforts. So where does that decision leave you and your organization and your mission? Well, you know, we still have the capacity to bring racial gerrymandering cases

in the federal courts. We still have the ability to bring partisan gerrymandering cases in the state courts. I mean, I think it certainly means that we have got to be successful in winning elections, you know, successful in our reform efforts, successful in the lawsuits where we can bring them. We can't look to the federal courts for help when it comes to partisan gerrymandering. You know, this partisan gerrymandering decision, I think, will mark this court as a body that simply did not defend our democracy in a way that it should have, and in fact has allowed for the perversion of our political system. So with that in mind, 2020, the next big election, feels like an enormous chance to show whether or not the country is invested in this question. And I wonder what you think the stakes of it are.

Yeah, I mean, the stakes are very high. Yeah, I mean, the stakes are very high. And one of the concerns I have is that, you know, the nation will be focused, obviously, and I think appropriately on the presidential election. But I don't want people to lose focus on what's happening in the state elections. And we've got to make sure that in 2020, we continue to be focused just to make sure the Democrats are at the table when the lines are drawn in 2021. Right. 2020, like 2010, leads to one year later, a redistricting process. Exactly. Exactly. And that's why we have to win elections in 2020. Mr. Holder, when will you know that you've accomplished your goal here? What will that look like? Yeah, you know, it's interesting. I think about that. I think after the 2020 elections, the test will actually then be, well, what happens in 2021 when the process is actually underway? How we move the states in such a way that the process is coming out more consistent with the desires of the voters than happened previously. I kind of imagine that you might say that you would declare victory when Republicans get on board with your mission, because otherwise it sounds like this might be an

endless fight for you, unless you can get Republicans to support this mission, right? I mean, if it's just Democrats who you believe will draw fair districts, you will be beating back the threat of partisan gerrymandering seemingly forever. And I wonder if you have a plan for that, how you plan to convince the other side that this is right and that this should be their mission as well as yours. yours? You know, I actually think that if we are successful in this effort and if we inject, you know, a substantial amount of fairness into the system, it almost inevitably will draw Republicans into this effort as well as they try to make sure that, as they try to protect any seats that they have, any power that they have, if the systems are fair. It means that they will want to participate to make sure that Democrats, who will, I think, have more power, don't use that power in ways that will disadvantage them and that will almost push them towards fairness.

But if we don't get to that point, well, then, you know, Democrats have got to be prepared to, you know, continue to focus on the states in a way that Democrats have not, I think, previously done and be prepared to fight for a fair process in 2031. You know, and, you know, if that's what is necessary, well, you know, we got to be prepared, got to be prepared to do that and make sure that we are, you know, we're successful at it. Well, Eric Holder, thank you very much. We appreciate it. All right. It's been great talking to you. We'll be right back. Here's what else you need to know today. President Trump further inflamed racial tensions over the weekend with a series of tweets in which he falsely claimed that the Maryland district of Representative Elijah Cummings

is a, quote, rodent-infested mess where no human would want to live. Democrats like Congressman Elijah Cummings say they care about how migrants are being treated at the border. But what about the families and people in their own district? Congressman Cummings was elected to represent West Baltimore. Trump's criticism of Cummings, one of the most prominent Black members of Congress, mirrored a segment on Fox News that questioned whether Cummings, one of the most prominent Black members of Congress, mirrored a segment on Fox News that questioned whether Cummings was doing an effective job of representing his constituents. Living conditions at the border are better than most areas in his district.

Congressional Democrats, including House Speaker Nancy Pelosi, called it the latest racist attack by the president, a claim White House Chief of Staff Mick Mulvaney was asked about on Fox News Sunday. There is a clear pattern here, Mick. The fact is that before his inauguration, the president tweeted about John Lewis, a Black congressman, that he should spend time in his crime-infested district. Then, two weeks ago, he goes after these four members of the squad

of all women of color and says they should go back to the crime infested countries from which they come. Then he talks about Elijah Cummings and he says his district is rat and rodent infested. Infested.

It sounds like vermin. It sounds subhuman. And these are all six members of Congress who are people of color. I think you're spending way too much time reading between the lines. I'm not reading between the lines. I'm reading the lines. That's it for today. I'm Michael Babarra. See you tomorrow.