To and welcome to the thirty eight politics podcast, I'm Gail and Rick. I know Brexit politics have been kinds of interesting this week, but we are not going to talk about brexit. Today I asked mega and thirty. It could pivot to brexit coverage for the next two months, and he said no, so we will over Brexit again, but just not every week so hang in there. In any case, on Tuesday, a North Carolina court panel struck down the state's legislative maps finding that the maps partisan gerrymander, violates the state's constitution. The last time we talked about partisan gerrymandering on this podcast in June, the Supreme Court had ruled that it is not up to them intervene in the issue of partisan gerrymandering. In that decision, chief Justice Roberts wrote that quote: provision in state statutes and state constitutions can provide standards and guidance for state courts to apply,

and that is what happened in North Carolina this week, so we're going to disk so why the North Carolina court ruled the way it did and what it means for redistricting throughout the rest of the country, and here with me to do that are a couple guests. Dave Wasserman is the House editor of the Cook little report, hi Dave, how's. It gone it's going great, especially because the gerrymandering project lives. Yes, yes, listeners may remember Dave Wasserman from back when we did gerrymandering project in late, two thousand and seventeen and two thousand and eighteen also here of us joining us from Ohio is Nancy Martorano Miller, a political science professor at Dayton University, where she focuses on the politics of state constitutions, hi Nancy how's it going hi, it's going great, so Nancy. Why exactly were the North Carolina State Legislative maps struck down? They focus three rights guaranteed to citizens in North Carolina in their constitution, the first one, of course, being section ten

article, one. That said, all elections shall be free and then, during that they're arguing that extreme a partisan, gerrymander districts also violate freedom of speech. They equate the ability to cast a vote as speech as well as freedom of assembly and then equal protection under the laws. Those are all things that are in the North Carolina bill of rights. What about that? North Carolina state constitution is different from the US constitute that means that partisan gerrymandering might be unconstitutional in North Carolina, not unconstitutional on the national level. I think that the thing that different is there's nothing in the US constitution. That guarantee is a free election, there's actually very little in the constitution about Elect US constitution about elections, save that it's up to state legislature, unless Congress decides to pass a law, so the real big dick

is initially in the federal document whoa. It was written most of the responsibility for election administration and how we do election was really left to states, so stay have more stuff in their constitutions that have to deal with elections and voting. That, I think, is what's the primary difference in to some extent with drove that Supreme Court decision back in June. I want to get into that, but first, let's put this North Carolina case into context, so Dave how gerrymandered are those North Carolina State legislative maps? North Carolina was the site of some of the aggressive republican gerrymandering of the past decade at both the congressional and state legislative levels. Republicans have one hundred and ten seats to three for Democrats. The past several years, not even the blue wave of two thousand and eighteen altered that, although we are headed for a do over election in North Carolina's, ninth district, but there's no question that

Republicans enshrined in advantage there. That is potentially self perpetuate because after all, it's up to the state legislature to draw maps for the next decade in twenty twenty one. And that's really the root of Democrats struggle here around the country as well. The Supreme Court has closed off one avenue by saying you can't bring a partisan gerrymandering claim before the court, but Democrats are also locked out of power in a variety of state legislatures that were drawn to benefit republicans in two thousand and eleven. So how do they get around that? The answer in many is a statewide elections and in North Carolina, that's heightened the importance of State Supreme Court elections when we started cover being partisan gerrymandering on this podcast say two or two one slash two years ago. I never heard really anybody talking back then about State Supreme courts or bringing these challenges in state courts. So how

surprising or significant is it that now these maps are getting thrown out in state courts? Well, state based chain change has been occurring before the Supreme Court ruling. Barring federal claims on partisan Jerry man keep in mind that in Pennsylvania we saw the state Supreme Court, which Democrats majority on back in two thousand and fifteen, throw out the Republican draw congressional map in two thousand and eighteen on the basis that it was person gerrymander that violated the state constitution. Democrats kind of renewed their push after this most recent Supreme Court ruling to take the fight to the states. I think it's some of it is a function of costs right. If you're going to do this at the eight level, it becomes have until stand up fifty different lawsuits

as if you can get one to trajectory through the federal courts, and you get a favorable decision that you only had to do it once and then it has to trickle down to the other places, and I also think historically, there is ebb and flow in which people become aware that states have constitutions and they actually can guarantee us things that maybe the federal document doesn't it was sometime in the late 90s early 2000s. I think somebody did a pole and found out. Maybe only about half of Americans even know a state has a constitution, and so everybody got so used to litigating everything about voting and elections through the federal courts and the Voting Rights ACT. And then you had Shelby versus holder, which really kind of gutted the ability to effectively do that. And then you started

in groups like common cause and league of women. Voters think about what are the other legal strategies, and I think in some of this in particular, when we think about the Pennsylvania case is really illustrative 'cause. That's where you see that section of elected, partisan judges with language in the can't to Shin, because the language in the Pennsylvania Constitution is even stronger than North Carolina's. They guarantee you a free and equal election in Pennsylvania and there were, like twelve other states, thirteen total that have that kind of language, about half the states, language about free or free and equal elections in their constitutions. Yeah on twitter, some reaction to this state court ruling saying we I thought the earlier. In the summer the Supreme Court said that partisan gerrymandering was fine. How did this happen? And so that gets to your point that people are not always aware that state constitutions can ban things that the federal constitution allows

the Supreme Court didn't really say person gerrymandering is fine. It's just that it's not our job is right. I mean they're they're, pretty much. They shut the door on being bothered by any more cases. By saying we can only make our decisions based on what the federal constitution in federal law says and knew. One of those says you can't partisan gerrymander, but they also had those lines in there. That said, but hey, you might have a remedy in your state. If your state constitution, state law has put limits on the practice and a lot of people get that, even though, under the constitution, the Us Constitution Congress has the ability to regulate the election of its member, most of the administration of elections and manner in place of them takes place at the state level. There is one kind of curious thing here, though, is the the North Carolina State Court cited

Drive, association and equal protection that very similar to what is in the US constitution. That activists tried to use to try to Dan gerrymandering on the federal level they pointed to those exact parts of the North Carolina constitution. So is this also just a case of different, politically inclined justices interpreting legal documents in different ways? Of course, it is looking up. The Supreme Court ruling was taken by Democrats to be a part of decision, and it's important to remember that the ruling that shut the door on partisan claims is a ruling that is the prevailing and rotation of the day and could change years down the road. I think that's definitely true it is. It is a political decision cause. When you look at the four liberal justices on the supreme. They made equally compelling argument as to why the court should have struck down the maps. I think the

the one difference that might make it mean there's lots of political differences at the state level when you think about partisan elected judges, just the non partisan elected judges, their husbands summer. That shows there a little bit more impacted by public opinion, especially in those states where they face consistent or periodical actions, and so they also have in some of these states that added provision that talks about free and equal elections, which then allows the two legally make some clear lines between equal protection and free expression and freedom assembly 'cause. They have that first right, whereas on some of the US constitution doesn't really provide us an explicit right to a free or equal election, it doesn't even give really. The US constitution doesn't even really guarantee us all right to vote. That's fascinating, just hearing that repeated, even though it's something that we have talked about on this

cast. Also it's worth noting that in no Carolina that State Court panel, that decided this case was to Democrats and one Republican, and it was a unanimous decision. So the Republican also ruled that these state legislative maps were unconstitutional Dave. I want to talk about what happens next, so these maps have been struck down the state legislative maps, not the congressional maps which they may end up being struck down. We don't know if somebody brings a case. So what happens? Next, with these state legislative, apps, well publicans in North Carolina in the legislature, have said. Look you know this has been on for a while we're going to comply, even though we disagree with the ruling and the ruling states that the legislature has to remedy these maps in the next two weeks. So it's a pretty quick turn around and it's note that different states confined partisan gerrymandering to be unconstitutional under their state constitution, but still come up with very different remedies

and in North Carolina. This three hundred plus page ruling that the remedial maps have to be drawn in a way that is blind to partisanship entirely and doesn't take voting data into account, but in Pennsylvania the remedial map that was drawn by a special master to comply with the ruling striking down the congressional map clearly did pay some attention to ensuring that demo that's had as many uh oppurtunity is to elect members. As Republicans, even though Democrats are at somewhat of a geographic disadvantage with their votes being concentrated in urban settings there, so it really depends on what court say, legislators or remedial map drawers should follow in the process. So how could the result ended different in Pennsylvania? They were told you are allowed to look at Partizan data in order to draw quote unquote: fair maps that remedy these unconstitutional

in North Carolina. They said. Ok, you have to draw new maps, but you can't use partisan data at so being blind to the partisan data. What would the outcome be? It could result a map that still Alexa a republican majority in North Carolina and crafts are celebrating the ruling as a boon to their chances of winning the state Senate and state. How the reality, though, is that in North Carolina state with a large african american population, as long as you have a certain number of districts that are majority african American to comply with the Voting Rights ACT, it's likely that Republicans will enjoy a partisan advantage on the map. That has nothing to do with looking at partisan voting data, but rather a broader geographic advantage, because there will be overwhelmingly democratic districts in certain city

in North Carolina. So that should temper Democrats, enthusiasm. I I think it's reason be cautious about Democrats, odds of gaining a seat at the redistricting table in that state in two thousand and twenty one, especially because North Carolina is a rare state that prohibits the governor from having any role in the process. The governor, who happens to be a Democrat Roy Cooper, does not have veto power. I want brought in this out to the rest of the country, but before we do that, let me tell, but today's podcast is brought to you by zip recruiter, hiring used to be hard, multiple jobs, it stacks of resumes a confusing review process, but today hiring the easy and you only have to go to one place to get it done: zip, recruiter, dot, com, slash, five hundred and thirty. Eight zip send your job to over one hundred of the web's leading job boards, but they don't stop there with their powerful matching technology. Zip recruiter thousands of resumes to find people with the right experience and invites them to apply to your job as applications come in

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Virginia Maryland in Massachusetts, so they just have free language. Carolinas free election clauses been there since one thousand seven hundred and seventy six so its base, we've been there from from the get go, and then there are thirteen states that include Pennsylvania, that have a closet, say, free and equal elections, and then there's five states that have the claw is free and open. I don't quite know what they mean by open, so there's twenty six states total that have language that talks about freedom, shins and, in some cases, goes even a little a little bit further to my knowledge right now, I do don't know of any state cases they're based based on partisan gerrymandering, where they're trying to challenge Congressi or state legislative maps. Right now, I suspect we're going to see more of them, given the success Pennsylvania in North Carolina, there's a handful of states with case

about redistricting that are based more on racial discrimination that are so making their way through the federal courts. What states are at this point? I know that maps have been redrawn in Pennsylvania and floor have been redrawn in Virginia there's various states where the maps have been redrawn over the past decade. At this point, where do some of the most gerrymandered maps still exist, Dave So North Carolina clearly on a congressional yeah on the congressional level. Wisconsin is a state where Democrats might deserve so another seat, but Republicans have a five three advantage. There Michigan is a big one. That's a publican drawn state from two thousand and eleven that will be going to a commission process that ballot initiative in two thousand and eighteen that's correct, and then

this and Georgia are two states where Republicans are likely to retain control of the redistricting process. But they may be a bit more constrained in what type of map they can pass, given their losses there in two thousand and eighteen, and they may have to elevate some some of the republican performance and a lot of suburban districts by drawing additional democratic seats. So, overall, I expect there to be a modest decline in really aggressive, partisan jury, mannering in two thousand and twenty one in part, because Democrats have one more seats at the table by winning governorships in places like Pennsylvania and Wisconsin in part, because we have new commissions that are in place and hold promise for reform advocates in states such Michigan, Colorado and Utah. There's a constitutional

and it being considered in Virginia. That is indistinct case, because Democrats could be on the verge this November of re, taking control of the General Assembly in Virginia, which may actually give Democrats second thoughts about relinquishing control of the redistricting process into the hands of independent commission. So we'll see how those those fights play out, but it's clear that Republicans won't enjoy as large of an advantage or an ability to gerrymander as they had last time. The question overall of regardless of who's in control of state government have over the past decade enough restrick it's been put into place through the ballot or through state courts or through the state legislatures dead. It really will just be hard to J Mander in two thousand and twenty one in a sense was chief justice, Roberts, correct and saying the states are figuring it out. They can figure it out and let them have at it.

Well, that's still a bit of a leap of faith on the part of John Roberts. I'm not sure that the chief justice meant that he had a great deal of faith in the states ability to police themselves by that statement, but there are more constraints than there used to be at the state level, not not only because Florida passed air districts, ballot initiative and other ballot initiatives have passed to create independent commissions, but also because of more split government. The the heightened threat of lawsuits Democrats have enjoyed success in suing to over turn some republican gerrymander's earlier this decade on racial grounds and states like North Carolina and Virginia, so that that may be reason for mapmakers to even partisan ones to be more cautious than they used to be and keep in mind some of the biggest states in the country, like California and New York

here, maps have already been drawn by commissions or courts, and so I think the pool of of states that are at risk of really extreme gerrymander's is evaporating somewhat interesting. I think I agree Dave in terms of ability to be able to really draw maps in ones. Favor is going to become limited, I think from a public opinion standpoint. Citizens are more aware of it and they don't like it, and- and I think the reason why they don't like gerrymandering as I think they see it even when it's from their own party, it is all get into that. Trusting government feeling, like officials, are rigging the system, which is how you get some of the the ballot initiative based votes that get citizens to approve independent nonpartisan commissions kind of wrapping up here. One of the reasons that the Supreme Court argued that it shouldn't wait and on the issue of partisan gerrymandering is because it would be

the position where decade after decade they be deciding in favor of Democrats or Republicans on each map, whether or not it's partisan gerrymandering, whether not they have to redraw it. Does this in a way you know if state Supreme courts are now going to be in that position. Do the same kind of concerns about faith in the detention of the state courts exist there. If Justice Robert, the free, the people are gonna, lose faith in the Supreme Court over this. Well, they just lose faith in state courts, or do they not pay attention? They probably pay lip less attention to state courts because hey they don't really get as much coverage. Usually unless something big happens in their ruling maps unconstitutional, I think it depends on how it plays out. We think about the courts when they make ruling. They have a really strong sense of relying on previous precedent, even in the North Carolina ruling there making reference to other Kate n care

in the cases from you know, one thousand eight hundred and seventy five one thousand nine hundred and fifteen. The taurus publishing particular interpretations of the sections of the constitution, so initially they'll be making really big decisions by sort of basically what ends up happening. If all of this plays out in the state courts. Is you potentially end up with fifty different definitions of partisan gerrymandering dates going to decide what partisan gerrymandering looks like and then what the remedy for partisan gerrymandering is? And so you might end up with fifty different versions of that, but once those things are established, even if you have changes injustices if they are behaving using previous court judgments and previous precedent, whether or not that erodes faith in a state, she social system is how those future courts apply the precedence in this

in terms that have been set. If they're consistently applying them, then it should in a road trust. It should probably increase trust because they're kind of doing what the court might do or should do or what people might think it should do, and I think Dave's right, you might see the extremeness of the gerrymandering's, reduce, as you know, there's threats of lawsuits and challenges to the maps, because that's no fun for anyone and it is actually really hard on the parties when this happens because takes away resources from electoral activities, they're trying to plan and think about who do we want to recruit to run in these districts? Let's get them campaigning in we're, not sure if the maps going to stay the same, it makes it harder to plan that stuff. So the thought of having app challenged all the time in

that's a lot of uncertainty into the process for those people on the ground that are trying to make decisions about elections. So I think it just you know. The threat of litigation may be enough to at least the majority party check in bit more with the minority party and try to cut some arrangements in terms of giving the minority and extra district or two to avoid litigation. In six months, perhaps there there are manages to this process being adjudicated at the state level. One of the fast the aspects to me over the years has been the differences between various states, redistricting called when I've been out in Iowa and I've spoken with state legislators there, one of them said to me yeah. You know I was double bunked in seat with another incumbent in the last round of redistricting and and that kind of sucked, but that's kind of the

it goes because Iowa has a bureaucratic, nonpartisan, redistricting process and it's kind of luck of the draw and legislators kind of accept it as wrote getting the crops every ten years. In a state like North Carolina, though, the leading repub legislator in the most recent round came out and said, I'm drawing this map that has a ten republican advantage only because I couldn't draw one with an eleven to two advantage and the reason why he said that wasn't a display of braggadocio. It was actually to state openly that his intentions were partisan so that the map was not sued on racial grounds. So it's a very contentious process in some of the most politically polarized states in the country and can actually be a fairly bipartisan or friendly process in states like Iowa,

Oregon and I'll, be very curious to see whether more states around to the idea that having it a certainty to the process, that's handed down by a court is potentially a good thing. After all, legislators and political parties, don't like uncertainty very much. They don't like the prospect of having to spend millions of dollars every two or four years to defend a wide swath of competitive races. But I also don't like changing maps as Nancy as as Nancy suggested. Well, certainly, two thousand and twenty one is going to be fascinating with all of the new rules and rulings and commissions in place and, as both of you mentioned, the states doing it in such a different fashion. So what kind of get to watch that laboratory of democracy in action in twenty twenty one? But anyway, I think that's it for now for us, so so much Nancy. Thank you. It was fun.

Anti Martorano Miller is a political science professor at Dayton University, where she focuses on the politics of state constitutions, and thank you well thanks. So much Wasserman House editor of the Cook political report. My name is Galen droop Toni Chau is in the control. Room are in turn, is Jake are low. You can get in touch by emailing us at podcasts, at five hundred and thirty eight dot com. You can also, of course, treated any questions or comments if you're a fan of the show, give us a rating or review in the Apple podcast store or tell someone about us thanks for listening I'll see you soon.