The Supreme Court’s Recent Decisions Cement Minority Rule

US Census 2020
Photo credit: US Census Bureau (PDF)
Reading Time: 16 minutes

At the end of June, the Supreme Court issued decisions on partisan gerrymandering and on the effort to add a citizenship question to the 2020 national census. The high court effectively blocked future challenges to extreme redistricting for political purposes, while rejecting the methods used to add the citizenship question without prohibiting it in the future.

Former Salon editor David Daley wrote a book about gerrymandering, and has reviewed the recently exposed files of Republican political-map mastermind Tom Hofeller, who died last year.

In a 50/50 Country, the Democrats Are Shut Out From All Levels of Government

Daley offers critical commentary on the gerrymandering decision, wherein Chief Justice John Roberts admits that “excessive partisanship in districting leads to results that reasonably seem unjust,” yet concludes for the conservative majority that the courts have no role in reviewing even the most absurd lines drawn to protect minority rule by Republicans in North Carolina and Democrats in Maryland.

While Daley can’t confirm that the court considered the Hofeller connection in its decision-making process, he explains that Hofeller was central to the arguments on the census issue which the Court found to be “pretextual,” with Roberts politely concluding “the evidence tells a story that does not match the explanation [Commerce Secretary Wilbur Ross] gave for his decision.”

David Daley is the author of Ratfucked: Why Your Vote Doesn’t Count.

googleplaylogo200px download rss-35468_640

Click HERE to Download Mp3


Full Text Transcript:

As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to time constraints, we are not always able to proofread them as closely as we would like. Should you spot any errors, we’d be grateful if you would notify us.

Peter B. Collins: Welcome to a new Radio WhoWhatWhy podcast. In San Francisco, I’m Peter B. Collins.

At the end of its term, at the end of June, the Supreme Court issued two important decisions. One related to the Trump administration’s effort to place a citizenship question on the 2020 census, and the other related to extreme partisan gerrymandering. To get commentary and context on this, we turned to the man who wrote the book about gerrymandering. David Daley is a former editor of Salon, an investigative reporter who appeared on this podcast a couple of months ago, and he is the author of Ratf**ked: Why Your Vote Doesn’t Count, and it was published a couple of years back. David, thanks for being with us today.

David Daley: Thanks for having me on, Peter.
Peter B. Collins: What is your first reaction… Let’s start with the gerrymandering decision, and a bit later, we’ll talk about the census question, which is related, in fact, in some respects to the gerrymandering effort. What was your reaction to the non-decision by the United States Supreme Court?
David Daley: It’s a heartbreaking decision. The Court essentially slammed the doors of the federal courts closed, to all future claims on partisan gerrymandering. And they did this at a time when federal courts across the country, bi-partisan judges appointed by Republican presidents and Democratic presidents, have unanimously been standing up and saying, “We have to do something about partisan gerrymandering. This is a crisis for a democracy itself, and we think we have the tools to clearly and neutrally identify which gerrymanders crossed the line. Let us do something about this.” You have courts that have struck down a Democratic gerrymander in Maryland, as well as Republican gerrymanders in Wisconsin, North Carolina, Ohio and Michigan. And we were right on the doorstep of solving a problem that we’ve not been able to conquer, at all, in our history, and the Court just sort of walks away from it. It’s going to set up another redistricting cycle, which is going to be upon us in 2021. As soon as the census is completed, that is going to be just an unfettered festival of partisan gerrymandering, and it’s a frightening prospect.
Peter B. Collins: I have some quotes from what I would call the word salad of the Chief Justice’s majority opinion. He did concede that excessive partisanship in districting leads to results that reasonably seem unjust, “The districting plans at issue here are highly partisan by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional, as well.” And he basically said the answer to that is no. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” And I would submit, David, that the Constitution also provides me with no help operating a computer or driving an automobile. And the idea that they would have to find some standard in the Constitution that could be applied to the extreme partisan gerrymandering, I’m sorry, that is just bullshit. I can’t find any other term to describe it.
David Daley: I think that is absolutely right. And I would go a step further, and I would say that there is nothing in the Constitution that suggests that corporations have the exact same ability to donate money to political candidates as individuals. And yet, the Chief Justice had no problem-
Peter B. Collins: Well, let me just extend that, that this court… Go ahead, I’m sorry.
David Daley: And yet, the Chief Justice had no problem, at all in putting his thumb on the scale in Citizens United. Roberts, in his opinion, talks about how he does not want the Court to become an arbiter of political power, and to determine when a political process has gone too far. Except, that’s exactly what the Court did in Citizens United. It’s exactly what the Court did when it struck down the key core enforcement mechanisms of the Voting Rights Act in Shelby County v. Holder in 2013. And I think your description of this as something that comes from a farm, is exactly right.
Peter B. Collins: And what I was going to add is that this Supreme Court, under Justice Roberts, Chief Justice Roberts, has also found that corporations can have religious views imbued by those who were running the corporation, and imposed on the people who work for a corporation. I’m talking about the Hobby Lobby case, in relation to providing contraception in employer funded insurance programs.
David Daley: I think that’s exactly right. I think that this court has clearly had no problem, in the past, when it comes to exerting its own political power through its own reading of the constitution. The Court clearly has clear and manageable tools that it can use here, to decide when a gerrymander goes too far. It’s simply not willing to use those tools on behalf of voting rights for American citizens. And if this court will not stand up to protect the voting rights of American citizens, but they will stand up to defend the speech rights of corporations, it is, I think, very fair for all Americans to wonder exactly whose side John Roberts’ Supreme Court is actually on.
Peter B. Collins: Even as he tries to dispel that notion, here’s another quote from Chief Justice Roberts, “Federal judges have no license to reallocate political power between the two major political parties with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions.” Now, I don’t believe that the cases before the Court called for a reallocation of power. They called for a limit on the extreme partisan choices that are made by, essentially, minority rule parties. When you look at the numbers from North Carolina, one of the two cases before the Court, we know that in 2016, Republican congressional candidates picked up 53% of the statewide vote, but it earned them 77% of the congressional seats in the state. That statistical outcome, in and of itself, is an indication of gross unfairness and a lack of impartiality, and the Court doesn’t have to have some authority from the Constitution to regulate fairness.
David Daley: I think that’s right. When you look at the facts in these cases, it is so clear that these are extreme partisan gerrymanders, enacted by Republican lawmakers in North Carolina, and Democratic lawmakers in Maryland, with the sole purpose of entrenching themselves in power for another decade to come and rendering competitive elections in these states essentially meaningless. And indeed it’s true. Democrats have not flipped a single congressional seat in North Carolina, on this map, all decade long. And Republicans have not flipped a single seat in Maryland, all decade long. This… as Democrats now hold the governorship in North Carolina and Republicans now hold the governorship in Maryland. So I mean, clearly, there are people in these states whose minds have changed, whose votes have changed, but it’s not reflective in the states’ congressional.
Peter B. Collins: And David, when Justice Roberts says that they don’t have a license to reallocate political power, there’s no authority in the Constitution, no legal standards to direct them. We have a very fair process now, here in California. And I was a sharp critic of Arnold Schwarzenegger and his role as the governor after the recall, back in 2003. But, to his credit, he worked with Common Cause to pass a ballot measure that created the Citizens Redistricting Commission. And it might have some flaws, but I think that it is a real model for a very thoughtful, rational, transparent process, where the voters are assigned to districts, and not chosen by an incumbent, to be their voters. That’s what gerrymandering essentially does. It allows powerful people to choose who the voters are, for a particular district or an incumbent official. And the Redistricting Commission here in California, I think, is a very successful way of limiting the excesses of secretive partisan gerrymandering.
David Daley: It’s done a terrific job. And one of the many disingenuous things in Chief Justice’s opinion, is that he praises the work of citizen-led ballot initiatives that have established commissions in several states, including California. And he ignores his own opinion that these commissions, themselves, are unconstitutional, from the 2015 case that narrowly upheld the commission in Arizona. So, Roberts, in his opinion, is constantly setting up reasons why the Supreme Court should not get involved. Voters can simply solve this problem themselves, by kicking these politicians out of office, ignoring the fact that it’s almost impossible to do so on these maps. He points to the hundreds of bills that have been filed in Congress and in state legislatures, nationwide, and he adores the fact that those bills have to be filed every year because self-interested politicians, who are unwilling to give away their own advantages, have no intention of making them into actual laws. They’re bills, they’re not laws, for a reason. And independent commissions could be a perfectly viable possibility here. They have worked in Arizona. Reformers established them, last year, in a number of states, through the ballot initiative.
David Daley: The trouble is, Roberts, next, might even find independent commissions themselves to be unconstitutional. And while he praises citizen-led ballot initiatives, we’re running out of states where those are possible. There’s only a couple of them left, like Arkansas and Oklahoma, South Dakota. So, we really needed the federal courts, here, to step up with a national solution. The idea that Congress and politicians are going to solve this is laughable on its face. They have no interest in solving this problem that makes it easier for them to win reelection. We needed the courts to step up here, and they failed us.
Peter B. Collins: And David, we can separate intent from effect, but in my personal view, the intent of the Court and the effect of its decision is highly partisan, in and of itself, because it is locking in place a system that is known, currently, to benefit Republicans. Now, the tables could turn and Democrats could use gerrymandering more effectively against Republicans, if, over time, they recover control of more state legislatures and governorships. But, the Republican members of this court are not ignorant of the current status of these laws and these practices and the way they work to preserve minority rule by Republicans, in so many jurisdictions.
David Daley: They’re not. This was a five-four decision by the Court, and it broke down, largely, along party lines. I’m sorry, Mr. Chief Justice, you don’t like the idea that the Justice is partisan, stop acting like it, in that case. What happened, over the course of this last decade, is Republicans set about using gerrymandering, this ancient political term of politicians drawing their own lines to lock themselves into the advantages, and to disadvantage the other side. And they did so with the best technology and the most precise voter data ever available, so that they were able to draw gerrymanders in 2011, the last time we went through this process, that were fundamentally different and more enduring than any other time in our nation’s history.
David Daley: And we have seen the impact of this on our politics, both nationally and in all of these states, that we were so heavily gerrymandered over the course of this decade. Democrats have not been able to win a chamber that… in the state legislatures in North Carolina, Wisconsin, Pennsylvania, Ohio, or Michigan, this entire decade, under these maps, even in years in which they win hundreds of thousands more votes. It’s not enough. And the trials in all of these states have laid out, quite clearly, the intent behind how this happened and the specifics of the precise mathematical formulas and the surgical way that these map makers went about crafting these lines, in order to ensure that they would be a firewall against a majority of voters. And those firewalls have held this entire decade. We just so needed the Supreme Court to stand up here and say, “We can’t perhaps draw every map ourselves. We’re not interested in taking on that responsibility, but when partisans go so far as to entrench minority rule for a decade, maybe longer, that is anti-American. It’s anti-“small d”-democratic, and we’re not going to allow it to happen.” The fact that they didn’t do that sets ourselves up for a decade, in which this is only going to get worse.
Peter B. Collins: David Daley is my guest here on the WhoWhatWhy Podcast, and we’re talking about these two Supreme Court rulings that were announced at the end of the term. The second relates to the effort by the Trump administration to use whatever means necessary, including misleading and inaccurate reasons, for its motivation to put this matter on the census. And David, before we dive into that decision, tell us a little bit about Thomas Hofeller, and he passed away last year, and you were one of the journalists who got access to the somewhat voluminous files that he left behind. And Thomas Hofeller was the map maker for many Republican party entities. He was the chief gerrymanderer, if I can put it that way, in many parts of the country.
David Daley: We live in Thomas Hofeller’s America, in many, many ways. He is this, sort of, shadowy Republican map maker and consultant, who probably has done more than anyone, whose name no one has actually ever heard of before, to shape the country in which we live. And it’s because Hofeller is able to peer around the corner and see what is coming next in map making and redistricting, at every point in time. In the late 1970s, as a political scientist out in California, he’s able to see the rise of computer technology and understand what that is going to mean for the ability of partisans to draw themselves more friendly maps, in time. He goes to Washington, he works on the census in the 1980s, clearly understands the link between the information that the government collects every 10 years, and then the data that map makers use to redistrict.
David Daley: In the late 1980s and in the early 1990s, he’s involved in what becomes known as the Unholy Alliance, in which conservative Republicans team up with black groups across the south, in order to, essentially, use the provision of the Voting Rights Act that calls for the creation of majority-minority seats wherever possible. Hofeller recognizes that this is an opportunity for Republicans to work with civil rights groups across the south, and to have black voters essentially pack themselves into as few districts as possible, so that those districts will then elect a black member of Congress and increase their representational numbers. But he also kind of understands how that will make the surrounding districts whiter, more conservative, and less “Big D” Democratic, so that the effect of this will be that Republicans gain seats.
David Daley: And then, in 2010, Hofeller is one of the geniuses behind the Republican REDMAP strategy, which is short for the Redistricting Majority Project. And this is the strategy that is in play right now, that has dominated our politics, of course, the last decade. Republicans understand, heading into 2010, that it’s a redistricting year, and they plan ahead and they invest in winning state legislative races across all of the swing states, like Pennsylvania, Wisconsin, Indiana, Florida, Ohio, Michigan, Wisconsin. They spend $30 million drowning Democratic incumbents in these states, in dark money and negative ads, over the last month of the 2010 elections, in the state races. Democrats simply fell asleep on it, weren’t paying attention to it at all. Republicans took control of the state legislatures in all of these states, which means that they controlled every seat at the table when it came to redistricting. And they were able to, under Hofeller’s tutelage, train lawmakers in all of these states, how to draw the maps that are now in place. So, Tom Hofeller is a savvy, far reaching political visionary and genius, but he’s also had a pretty diabolical and evil effect on our politics.
Peter B. Collins: And David, the information about Hofeller’s participation in the effort to put the citizenship question on the census only surfaced in the last six weeks or so. Are you able to discern if the Roberts court reviewed any information about Hofeller, in the process of reaching its decision, or did it arrive too late, and did the Court conveniently put it aside, waiting for it to percolate up from the lower court that has agreed to hear issues related to Hofeller’s participation?
David Daley: We don’t know for sure. What we do know, is that all of these Hofeller files showed clear communication between him as well as officials in the Census Bureau, and in the Department of Justice. And what it showed us is, Hofeller was working on a study that was trying to identify what would happen if Republicans drew a state legislative map, in 2021, based on citizen voting age population, rather than total population, which is what most states do now, when they’re drawing lines. Hofeller wanted to study, “Well, if all we use are people over the age of 18, and only American citizens, what effect would that have on districts?” And he studied Texas, where a lot of this information was available to him, and he came to the conclusion that it would make the state whiter, more rural, and it would enhance the political power of Republicans. And they passed this information along to the Justice Department and to the Census Bureau. Indeed, there are entire paragraphs of Hofeller’s work that you can tell have just been lifted, word for word, from his memos and emails, into the very documents that the Justice Department and the Census Bureau used to justify the inclusion of this question.
David Daley: In public, the Census Bureau insisted that this was actually for better enforcement of the Voting Rights Act. These documents clearly show that that was a lie. We don’t know exactly what the Chief Justice and the courts saw. What we do know, is that the courts did have… that lawyers for Common Cause and the ACLU certainly did have time to file grief about what was contained in these documents, with the Court. So the justices must have been aware that this existed, and I do think that the Chief Justice is super attuned to questions of the Court’s institutional integrity, and that he probably did not want to have documents out there suggesting that the government’s rationale was entirely, on its face, made up.
Peter B. Collins: And so, in a search for middle ground, I would say, the Court found muddled ground. It didn’t agree that the citizenship question should be placed on the 2020 census, but it also didn’t block it in a fundamental way. It established that it could be appropriate. The issue was, that the process used, as identified by the lower courts, which were much more strong in declaring that they had been lied to. The Chief Justice went to the euphemism dictionary and pulled out-
David Daley: His well-worn euphemism dictionary.
Peter B. Collins: Pulled out some remarkable terminology here. He did concede that the rationale that had been put forward was pretextual, and he wrote that “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.” So, we can boil it down to deception. But, the Chief Justice was so polite in his language, that he allowed for misunderstandings or confusion, but what he laid out was that the claim that the Justice Department needed this data for enforcement of the Voting Rights Act, was concocted to cover the true motivation for the Trump team’s effort to put the citizenship question on the census. Is that correct?
David Daley: And then, he essentially invited them to come up with a more believable lie. I think that’s exactly right, and the concern here is two-fold. I mean, it does not now appear that the citizenship question will be on the census after all, but there’s two concerns. The first is that all of this conversation and attention to the citizenship question and this general culture of fear surrounding immigration, in this society right now, will create an under-count of Latino and other communities of color in this country, regardless of whether it’s on there or not. The citizenship question has already achieved its intended purposes of chilling and creating fear in minority communities, about the census.
David Daley: And then, if you create that under-count, you shift political power away from states that are more minority, towards states that are whiter, rural, and more Republican. And then, the second concern would be that this administration seems, frankly, hell-bent on finding ways to use that citizenship information that is already available, and to match it up against the census, and to provide that information to state legislatures, for the purpose of redistricting. And that, if state legislatures in this country use citizenship information and citizen voting age population as its basis for drawing state legislative lines, that, in and of itself, could roll back that two decades of demographic changes across Texas, Arizona, Georgia, Florida, and entrench Republican rule in all of these states. It’s turbocharged gerrymandering, and it would be done in 2021, without any ability of federal courts to do anything about it. And that’s why the combination of these two cases is so dangerous and so important.
Peter B. Collins: Yeah. Well, David, you’ve really helped us understand this and put it in some context, and also just connecting the two cases with the linkage of Hofeller, I think, is very significant. Is there anything you’d like to add here, as we wrap up, that I haven’t asked you about or that we may have given short shrift to?
David Daley: You know, I think the numbers, in a couple of states, are just really interesting and important. I mean, if you want to understand how meaningful maps are, when it comes to gerrymandering, look at Wisconsin in 2018, in which the Democrats win the governorship, the US Senate, the seat there, every statewide office, and they win 200,000 more votes than Republican candidates for the state assembly. And yet, that translated to one additional seat for Democrats in the assembly, and it’s now just a 63-36 Republican advantage. And this is 2018. This is eight years after those maps were drawn. They are powerful, these lines, and courts have the ability to do something about it. This, now, is going to shift to state courts, but I fear that that could create democracy deserts around the country, in some ways. I mean, different states will have different rules and you will have different constitutional protections of your right to vote. As a result, we used to all be able to agree on democracy. And now, democracy itself is becoming a political issue for team red versus team blue, and I just think that that’s a fundamentally dangerous place for us to be in.
Peter B. Collins: David Daley, former editor of Salon, is the author of Ratf**ked: Why Your Vote Doesn’t Count. David, thanks for joining me today.
David Daley: Pleasure, thank you.
Peter B. Collins: Thanks for listening to this Radio WhoWhatWhy Podcast with reporter David Daley. Send your comments to peter@peterbcollins.com, and I’d appreciate any contributions you can make to help support the work, here at WhoWhatWhy.

Related front page panorama photo credit: Adapted by WhoWhatWhy from Elkanah Tisdale / Wikimedia.

Where else do you see journalism of this quality and value?

Please help us do more. Make a tax-deductible contribution now.

Our Comment Policy

Keep it civilized, keep it relevant, keep it clear, keep it short. Please do not post links or promotional material. We reserve the right to edit and to delete comments where necessary.

print

Comments are closed.