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Ned Foley

Professor Edward B. Foley (Ned) is director of Election Law at Moritz College of Law/Ohio State’s law school, where...

Thomas Wolf

Thomas (Tom) Wolf is counsel with the Democracy Program at the Brennan Center for Justice, focusing on redistricting issues....

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J. Craig Williams

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Gerrymandering is the dividing of a state, county, etc. into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible. This strategy has been deployed by both political parties throughout history. In gerrymandering, “cracking” and “packing” are tactics of drawing peculiarly shaped districts to capture the desired results. Currently redistricting litigation remains pending in eight states and just this week, the Pennsylvania Supreme Court struck down the state’s congressional map, saying it illegally benefits the GOP, violating the state constitution.

On Lawyer 2 Lawyer, host Craig Williams joins professor Edward B. Foley, director of Election Law at Moritz College of Law, and Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice, to discuss the history of gerrymandering, redistricting litigation across the nation, and the impact of gerrymandering on elections.

Professor Edward B. Foley (Ned) is director of Election Law at Moritz College of Law/Ohio State’s law school, where he also holds the Ebersold Chair in Constitutional Law.

Thomas (Tom) Wolf is counsel with the Democracy Program at the Brennan Center for Justice, focusing on redistricting issues.

Special thanks to our sponsors, Clio and Litera.

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Gerrymandering and Impact of Redistricting Litigation

01/26/2018

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Edward B. Foley (Ned): I think there is widespread agreement among political scientists and constitutional lawyers that gerrymandering is pernicious, it’s contrary to democracy. The question is what’s the right remedy and can the court supply it?

Tom Wolf: So I think we should expect the ruling from the Pennsylvania State Supreme Court to stand for that map to be redrawn for the 2018 elections in the fall.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from sunny and warm Southern California. I write a legal blog named May it Please the Court and have a book out tilted The Sled. My co-host Bob Ambrogi is in court today.

But before we introduce today’s topic, we would like to thank our sponsor Clio.

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Gerrymandering is the dividing of counties into election districts so as to give one political party a majority in many districts, while concentrating the voting strength of the other party into as few districts as possible. The word gerrymander was created in reaction to a redrawing of Massachusetts State Senate election districts under Governor Elbridge Gerry back in 1812.

Governor Gerry signed a bill that redistricted Massachusetts to benefit his Democratic Republican Party. On a map, one of the districts in the Boston area was said to resemble the shape of a salamander, hence, the name gerrymander came to be.

Well, currently redistricting remains pending in eight states, and just this week the Pennsylvania State Supreme Court struck down the Congressional map in that state, saying it legally benefitted the GOP, violating the Constitution.

So today on Lawyer 2 Lawyer we are going to be discussing gerrymandering and redistricting. We will also take a look at redistricting legislation across the nation and the impact of gerrymandering on elections.

And to do that, we have got a great line up for you today. Our first guest is Professor Edward B. Foley (Ned). He is the Director of Election Law @ Moritz College of Law at Ohio State’s Law School, where he also holds the Ebersold Chair in Constitutional Law. His book Ballot Battles: The History of Disputed Elections in the United States was published by Oxford University Press and was awarded Finalist for the 2016 David Langum, Sr. Prize in American Legal History.

Welcome to the show Ned Foley.

Edward B. Foley (Ned): Oh, it’s great to be here Craig. Thanks so much.

J. Craig Williams: And our next guest is Tom Wolf, Counsel with the Democracy Program at the Brennan Center for Justice, focusing on redistricting issues. Tom regularly participates as an amicus in partisan and racial gerrymandering cases before the United States Supreme Court and advises on litigation strategies for state and federal courts.

He recently wrote a blog post alongside colleagues Michael Li and Alexis Farmer titled The State of Redistricting Litigation. Welcome to the show Tom Wolf.

Tom Wolf: Pleasure to be here. Thanks for having me.

J. Craig Williams: Well Ned, let’s start with you. I kind of gave a little bit of a summary of gerrymandering in the beginning, but can you give us a little bit more on the historical use of this tactic by the respective elective parties that want to be in office.

Edward B. Foley (Ned): Sure. Well, it’s been around for as long as the country has existed. In fact, even before that Elbridge Gerry gerrymander in 1812, in the very first congressional election, there was an attempt to deprive James Madison of his seat in Congress, if you can believe, it by manipulating the lines of his district in Virginia. And Patrick Henry was behind that maneuver. They didn’t call it a Henrymander, although they might have. So it even happened in colonial times.

So the idea of manipulating these districts for partisan advantage or at least electoral advantage on the part of one side of the competition has been around since the beginning of the country. And it has persisted throughout. I mean it happened in the 19th Century, it happened in the 20th Century, and what we are seeing lately is whether or not the US Supreme Court and federal constitutional law has a role in being a constraint on this longstanding practice.

J. Craig Williams: And Tom, give us a little bit of an overview about redistricting litigation, gerrymandering litigation, what historically have we seen and where are we right now; I believe that there are about eight states with this kind of litigation going on.

(00:04:59)

Tom Wolf: We are hoping that what we are going to get by the end of this term is a ruling from the Supreme Court that’s going to clearly set out when a partisan gerrymander crosses the line.

This has been an issue that the court has been struggling with for decades now. It took its first real step towards trying to articulate a standard in the mid-1980s and since then it has been struggling to really give keys to what it said back then.

That’s a little different from where we are at with racial gerrymandering. The racial gerrymandering cause of action has existed since the early 90s and its outlines are not fully understood, but it’s not changing as much as partisan gerrymandering. So what we have been seeing this decade with partisan gerrymandering is an attempt by litigants all over the country to finally break through and finally get the cause of action.

What we are seeing with racial gerrymandering cases, broadly speaking is, we are starting to see racial minorities who have been disadvantaged by racial gerrymandering use that cause of action to affirmatively try to get fairer maps. And that’s the sort of central drama I guess playing out right now in the racial gerrymandering space.

J. Craig Williams: What’s with the current fascination on gerrymandering? I mean, this could be about the dullest subject that you can imagine, yet here it is occupying our headlines.

Tom Wolf: I would say it has to do with health of our democracy. The problem is when you have this manipulation of the lines, you can distort democracy and deprive or take away majority rule. So yes, it sounds technical and involves numbers and math and maps, but it goes to the heart of self-government, popular sovereignty, because you can take away popular sovereignty if you can manipulate the maps and deprive the people of the power to vote.

Sometimes you hear the quip that when gerrymandering works, it means that the members of the legislature pick their voters, not the voters picking their representatives. This is a problem that I think people have recognized for a very long time. So even though gerrymandering has existed in some form or another for practically all of American history, there’s also been widespread resistance to gerrymandering as a legitimate practice for virtually all of American history.

What we have now come to is particularly in this decade with the growth in the amount of data available on voters and the technology available to manipulate that data through maps, we are seeing a breed of extreme gerrymandering that’s way more effective than what’s happened in the past.

So people have long had these deep-seated problems with representation and accountability in their maps and we now have a problem that seems like it has reached sort of an extreme level that people really aren’t willing to tolerate anymore, that may also provide some opportunities for the courts to finally step in. And I think that accounts in large part not just for the kind of uproar about gerrymandering, but also the increasing volume of litigation around the subject.

J. Craig Williams: Is neutrality even possible in gerrymandering? Ned, are we ever going to be able to get something that’s fair for both sides?

Edward B. Foley (Ned): Well, yes and no. I mean the real question for the court I think is one of institutional capacity. I think there is widespread agreement among political scientists and constitutional lawyers that gerrymandering is pernicious, it’s contrary to democracy. The question is what’s the right remedy and can the court supply it?

So for example, we have seen outside of some of the main litigation, the development of so-called nonpartisan redistricting commissions. California has this. Arizona has this. It doesn’t mean it’s going to be perfect, but those commissions do achieve a kind of neutrality or impartiality that doesn’t exist when you let a partisan legislature draw its own maps.

The worst institution to do this is when the legislature draws its own maps, because the party that happens to be in power at the moment temporarily will draw a map in its own favor and that’s what we try to avoid, that’s the evil.

So one institutional reform is to try to take this out of the legislature and put it in a nonpartisan commission. But how do you do that? Some states that have referenda and initiative means that citizens can take this into their own hands and demand that kind of institution.

But other states don’t have the initiative or referendum and the legislature is not going to give up its own power. So that’s why there’s been a turn to the judiciary in the hope that federal constitutional law can supply a standard.

I think if the court does intervene and come up with a standard this year, it will be very helpful, but it won’t be perfect neutrality and it won’t be the same as a nonpartisan commission, because the role of the court, I think at best, will be to stop what Tom called the extreme gerrymander. To be the cop of last resort, who says no, no, no, that goes just way too far. We can’t tolerate that.

(00:10:12)

But ruling out the extreme isn’t the same as insisting on fairness. And so if we want real fairness, we need to have a different type of institutional reform. So courts are good, but nonpartisan commissions, if you can get them, would be even better.

J. Craig Williams: Do you think the Supreme Court will accept the Cert Petition from the Pennsylvania Supreme Court case?

Tom Wolf: So I think there are a couple of things to note with what’s going on with the Pennsylvania map and the Supreme Court. There’s already been one appeal signaled from a case that was proceeding in the federal courts under the Elections Clause. That claim was rejected and the plaintiffs have appealed that.

They are challenging the same map that the Pennsylvania State Court just declared this week, as Craig noted at the top of the show, was a partisan gerrymander, so it’s probably going to moot out that federal case.

To my mind, there is not a viable federal constitutional issue here that’s going to give the US Supreme Court a hook to come in and intervene in the Pennsylvania case, the Pennsylvania State case. So I think we should expect the ruling from the Pennsylvania State Supreme Court to stand and for that map to be redrawn for the 2018 elections in the fall.

J. Craig Williams: Who gets the task to redraw it? I mean, there have been some documentaries and some gerrymandering that indicate that there are a few people in the world who have the technical know-how that Tom was talking about, and the data-driven information to be able to basically create the results and guarantee them, just because they can use a computer and read census data.

Tom Wolf: What’s interesting, in Pennsylvania the court gave the task for taking the first cut at drawing a new map back to the legislature, which is pretty common practice in redistricting cases that the legislature will kind of be the presumptive first redrawer. And the idea is then whatever map that the General Assembly comes up with will have to be approved by the Governor, like any other piece of regular legislation.

If the Governor approves that map, it becomes law. If the Governor vetoes the map, then the Supreme Court will probably appoint a special master to draw the map for the state. What’s interesting here historically is that Pennsylvania’s map is extremely gerrymandered and it was able to be gerrymandered back in 2011 because one party controlled both the legislature and the governorship.

With no veto point from another party involved, Republicans were able to pass through an incredibly extreme map. If the Pennsylvania legislature this time doesn’t want to run the risk of its map being turned over to the Supreme Court and its Special Master, then it’s going to have to develop something that will be palatable to Governor Wolf, who is a Democrat. And that means that we are likely to see a map that is less biased out of the gate, because it’s going to be the only way to get both parties on board.

J. Craig Williams: This is the extreme map that’s commonly known as Mickey kicking Donald.

Tom Wolf: This is the whole map of Pennsylvania. So the Goofy kicking Donald is one of the more funnily shaped districts, but back in 2011, when Pennsylvania Republicans drew that map, they were looking at the whole state and they cracked and packed the voters throughout the state in all of the state’s 18 congressional districts to try to maximize the number of seats that Republicans could hold.

They are really successful at that. Republicans have held somewhere in the neighborhood of 13 to 5 seats throughout the decade as a result of that. And the Goofy kicking Donald is one famous example, but there are many in the state that reflect the same kind of very careful attention to who is in and who is out in any given district.

Edward B. Foley (Ned): That discussion about the shape of the district and is it Goofy looking leads to an important point about if the US Supreme Court is going to set a standard, what kind of standard is it going to set and what makes a map unconstitutional. And there are different theories that are being developed in the different cases that you mentioned.

The theory in the Wisconsin litigation, for example, is a little bit different than the theory in the Maryland litigation and North Carolina has kind of a combination of theories, and that may be a good thing in terms of it gives the US Supreme Court a menu of options to consider in terms of what’s the best theory of deciding the constitutional question.

(00:14:53)

There is the risk though that if there are too many theories floating around, Justice Kennedy in particular might throw up his hands and say, well, there are too many competing theories, it must be that none of them command constitutional status and there’s nothing that we can do as a court.

I don’t think that’s going to be where it ends up. I think Justice Kennedy and the court will settle on a particular theory, but one of the things to watch is which theory does become the winning theory, if you will.

And just to finish out the thought, one theory that’s proposed is based on the shape of the distorted map and it goes back to that name gerrymander looking like a salamander, that you can sort of look at a district, and you see that it is so bizarre and distorted, that’s a signal that something is going wrong. And as long as other evidence confirms that something is going wrong and there’s no valid justification for it, you look at it district by district.

But the other theory particularly advanced in the Wisconsin case is it’s not about the shape of the districts; it’s about the result of the composition of the legislature. And if there are too many members of one particular party relative to the votes cast in the state overall, that’s a kind of imbalance that is unconstitutional regardless of what the map itself looks like.

And so it’s not just a question of gerrymandering, good or bad, it’s what do we really mean by gerrymandering at least as a constitutional matter.

J. Craig Williams: Well Tom, what are these theories or what are these standards? I mean, from my knowledge, there’s at least one standard that the areas have to be contiguous, what are the competing theories that are out there?

Tom Wolf: So as Ned highlighted, there are a couple of different cases that are currently in front of the Supreme Court and they are approaching these issues slightly differently. But in the Wisconsin case, the claim is largely that the drawing of the whole Wisconsin State Assembly map represents a partisan gerrymander that violates both the Fourteenth Amendment and the First Amendment of the US Constitution.

And what they say is what the court should look at is three different elements. They should look at the intent behind the map. Basically did the legislators drawing the map intend to entrench their partying power? The second inquiry is effect, which is basically did they succeed? The plaintiffs in that case described it in sort of technical terms as durable asymmetry.

And basically what durable asymmetry means is the map has been sort of hardwired in a way to make it easier for Republicans to get seats than Democrats. Generally, the example in Wisconsin is Wisconsin Republicans can get a majority of 60 seats or more in a 99 seat Assembly, with something between 48 and 53% of the vote. Democrats would have to get something far larger than 53% of the statewide vote in order to grab that same number of seats. So there’s sort of a structural inequality in the way that the maps process votes.

And then if that kind of inequality exists, then the third showing is justification, a neutral justification, which means that it’s then the burden of the state to say, yes, despite the fact that there is this intentional — despite the fact that there’s this asymmetry in the map, that can be accounted for any number of legitimate reasons. And the reason that’s frequently given, although I don’t think it’s often a good reason or true reason, is the geographic distribution of voters throughout the state.

So it may be that just simply because of the way voters are spread out, it’s basically impossible for Democrats to win the same number of seats with the same number of votes statewide that Republicans get and they are just going to have to live with that.

That challenge importantly focuses on the whole state map. In Maryland, they have a different theory that they are packaging primarily as a First Amendment theory and they are saying this is basically like a workplace retaliation claim. It’s pretty common under the First Amendment. And what we are doing is we are looking at one specific district in Maryland.

So Maryland has eight congressional districts, we are looking at what happened to the sixth district, and what happened there was historically that district was a Republican district, where Republican voters were reliably electing Republican candidates.

The Democratic legislators and Martin O’Malley, who was the Governor at the time, decided that they wanted to grab an extra seat and they targeted the sixth district. They moved Republicans out and they moved Democrats in to flip that district from Republican to Democrat, and therefore that was a form of retaliation against the Republican voters for voting Republican. They basically took their ability to elect away.

(00:19:54)

So you have both kind of different geographic scopes and different actual tests for figuring that out, basically they, the Maryland plaintiffs want the court to say, did you intend to punish a group of voters for the way they voted, or particularly due to their partisan affiliation. Did you dilute their ability to vote successfully or impose some other kind of burden on them, and if all that happened can the State justify that by pointing to some other value?

As you noted, Craig, there are a number of things that are typically referred to as traditional redistricting principles, these are things like the district should be as compact as possible, the district should be contiguous, meaning that all the territories’ constituencies can have in one district, the southwest corner of the State, and the northeast corner of the State with nothing linking them in between. There is often attempt to keep municipalities intact or counties intact.

These are all things that many legislators and some redistricting commissions take into account when they’re drawing maps, but they are not released as a matter of federal constitutional law required.

Some State constitutions do impose various combinations of those criteria on either their State legislative maps or their congressional maps, but they’re not required as a matter of federal law.

J. Craig Williams: Well, gentlemen, we are going to take a break for a moment, before we move on to our next segment, we’re going to hear a message from our sponsor, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams, and with us today is Professor Ned Foley, he is the Director of Election Law at the Moritz College of Law at Ohio State’s Law School, and Tom Wolf, who is counsel for the Democracy Program at the Brennan Center for Justice.

Well, Ned, right before the break we were talking about the principles of redistricting, what’s the generalized argument or what are the problems with simply just choosing existing governmental boundaries or voting districts?

Edward B. Foley (Ned): If a State did follow these traditional criteria and said we’re going to have compact districts, they are going to be contiguous and we’re going to follow existing municipal boundaries and county boundaries, that would likely be constitutional from a Federal Court perspective because there wouldn’t be anything manipulative about the map and it would be justifiable according to these traditional principles, and there wouldn’t be any malevolent intent. So I don’t think there would be a constitutional claim.

But as a matter of good government you can make the argument that that’s not all that matters because if it is true the Democrats are sort of naturally clumped in cities and Republicans more dispersed, then following these traditional criteria could lead to a skewed legislature to begin with.

And one way to think about this is to draw an analogy to the Electoral College. Now the Electoral College is not a product of gerrymandering, the Electoral College has been here since the founding of the country, this wasn’t any partisan intent, the Republican Party didn’t exist in — when the Constitution was founded, but the way the Democrats are naturally clustered in coastal states and Republicans are more dispersed caused a Republican candidate this last time to win the Electoral College even though the Democratic candidate got more votes.

So that’s an example of how just following traditional geographical boundaries, political boundaries can lead to a result inconsistent with majority rule and popular sovereignty since the national popular vote did not prevail.

So if a State decided to choose traditional geographic boundaries as its redistricting principle it could emulate the Electoral College in a sense of still achieving a skewed result, not for malevolent intent but just inconsistent with good democracy.

Tom Wolf: Another thing I would throw in there. It’s sort of a point related to Ned’s point and one of the things that makes redistricting difficult not really as a legal issue for courts to figure out, but just as an issue for democracies to figure out is that we have a pluralistic democracy. We have a diverse population and one of our kind of core understandings about our legislatures is that they should be representative of the people.

(00:24:59)

But there are a lot of different ways to define the people and part of what a State legislature needs to do or any ballot initiative that’s looking to install a commission is to think about what do we want our legislature to do, what do we want it to represent. And so it may be that traditional municipal lines or county lines don’t fully capture the kind of full flavor or diversity or nature of our society. And California would be a great example of this, when they appointed their redistricting commission they spent a lot of time speaking to people in the community to find out what communities were relevant to them, what kind of identities bonded them, and it wasn’t just Democrats or Republicans, it was people who live up in hills who have fire problems or people who use the same highways to commute to work or people who belong to the same school districts. And so, there’s at least in theory a much richer and more diverse way of defining how you should create your districts beyond the traditional redistricting principles.

J. Craig Williams: Well, even beyond the traditional redistricting principles, do Americans operate under the misnomer that this is a majority rule country or is it really as Ned pointed out the Electoral College is in place to make sure that the elections happen a particular way? How really is it, Ned?

Edward B. Foley (Ned): Yeah, I think we have a complicated democracy, sometimes it’s called a Madisonian Democracy after James Madison, and that is, we do believe that citizens have the right to vote, we do have one-person one-vote that the court did insist upon that. The court has also said, there isn’t an automatic guarantee and proportional representation, for example. If a political party happens to get 55% of the votes statewide, it doesn’t automatically translate into 55% of the seats in the legislature.

So that principle is not ingrained in the Constitution, and part of the problem is, we’re trying to utilize a Constitution written in the 18th Century for a 21st Century democracy with our much more robust understanding of it, plus the extra technology that Tom talked about.

And so, this would be easy to do if the Constitution had been amended, not just to grant women the right to vote and to make sure that everybody had the right to vote, but if the Constitution had specifically said, we want a banned partisan gerrymandering because it’s evil, then the courts could enforce that constitutional provision, like they enforce the prohibition against race discrimination, because it’s in the Constitution.

The problem is, there isn’t anything specifically in the Constitution about gerrymandering, it’s just a practice that has existed, but we also know that it’s bad and therefore figuring out how to tie the Constitution to what should happen today is a problem that has bedeviled the judges for the last few decades as Tom said because they haven’t hammered out a constitutional standard despite being offered several different options of what that constitutional standard should be, and then you’ve got more conservative justices like Chief Justice Roberts worried that any standard that the court imposes that can’t be shown to be specifically written in the Constitution will look like it’s just made up by the court or imposed by the judges and he is afraid that the judges will be accused of partisan bias themselves if their imposition of a standard happens to help one particular party in one case.

And that’s one reason why it’s perhaps advantageous at the moment that you’ve got both the Maryland case and the Wisconsin case in front of the court, because not only do they have these different theories in them, but in one case it was the Republicans doing the bad thing and in the other case it was the Democrats doing the bad thing. So, it gives the court an opportunity if it does impose a constitutional standard to look more neutral and not look like a partisan actor itself.

J. Craig Williams: Tom, what is the future hold for us? I mean, now — and I harken to the book, ‘The World Is Flat’, with the Internet among us and your well-taken point about the richness of the diversity and the centers of influence that we all have with each other, is the Internet going to flatten things out to the point that gerrymandering really isn’t necessary? Well, all just going to be voting on the computer anyway?

Tom Wolf: I take a potentially darker view if the court doesn’t act here. There was a really interesting amicus brief put in Richard’s case by a group of political scientists, and basically what they argued to the court is, because of the way technology has developed, particularly since about 2008 with increasing data, increasing computer power and then a better ability to integrate those sorts of things into maps, we’re going to see even more extreme gerrymanders in the sense of maps that have even more partisan bias than the worst maps this cycle, they may also look more normal to the eye, next cycle.

(00:30:06)

And that’s likely to happen now that the kind of playbook is known and the court really needs to step up and do something about that. I think in the short term, though, I’m at least cautiously optimistic that the court is finally going to plan a flag somewhere.

This June in some combination of the Wisconsin and the Maryland cases saying, here is some kind of a line that legislators can’t cross, and if they do, their map is going to be struck down as unconstitutional. But lacking that, the next decade is not looking particularly bright. We really, really do need at this juncture some decisive judicial action.

J. Craig Williams: Well, hopefully we’ll get it. And gentlemen, we just about reached the end of our program, where we’d like to invite you to share your final thoughts and provide your contact information for our listeners, if they’d like to reach out to you. So let’s turn to Ned first and have you wrap up.

Edward B. Foley (Ned): Sure, and I really appreciate this opportunity. Building on what Tom just said, I think as important as it’s going to be what the court says this coming June, it’s what’s going to happen after the next round of redistricting with the new census in 2020.

And not only is that event important in and of itself but we’re likely to have new justices on the court by then just because of the natural cycle of retirements and so forth. And so any decision that comes out of the Maryland and Wisconsin case, has to satisfy five justices and have majority of the court today, but it’s got to satisfy the standard of precedent and stare decisis that meaning the new court in 2021, says we’re going to honor that precedent and we’re not going to overrule it, and we’re going to — we’re going to keep this new tradition developing.

So the justices now are writing not just for today in these maps in the 2018 election, they’re really writing for posterity, and so, it puts an extra burden of persuasion I think on them that makes what’s going on even more momentous; so, just something to think about.

And if people want to follow up on this idea or others, as someone who’s honored to be at Ohio State University, we have an Election Law website, it’s called Election Law @ Moritz and our scholarship can be found there, and in particular, the William & Mary Law Review has done a symposium on redistricting that is in the process of being published, so that’s something to look for.

Tom is going to talk about the great resources of the Brennan Center, so I’ll let him do that, but there’s definitely resources out there for the folks who want to follow up and learn more.

J. Craig Williams: Great. Thank you Ned. And Tom, your final thoughts and contact information?

Tom Wolf: Well, thanks for having on, and Ned, thanks for the kind words. I think that something for everyone to keep in mind right now is that partisan gerrymandering in particular is incredibly dynamic space right now. For about a decade, people have been gearing up for the cases that we are seeing in front of the court right now and everything is in a bit of a moment of suspended animation.

What the court says in that case, as Ned noted earlier, may not and likely won’t fix most of the problems we have with our maps, but hopefully, we’ll lay down some bright lines or some guardrails to kind of get the conversation going.

Whether the court does that or not though, there will be some other opportunities moving forward to try to bring a little more sanity to our maps. So they are valid initiatives, currently running, there’s one that has a really great head of steam in Michigan, and it may be that what happens with the court provides some additional fuel there.

It may be that legislators who have enjoyed the fruits of extreme gerrymandering this decade, I think that when they’re looking to their electoral prospects next decade, they might not do as well, they may be willing to go to the table to put some legislation on the table.

There are a number of different ways to kind of move this conversation forward. So while the court is an important aspect of it, it’s not the sum total of everything and it will be particularly vital for people to support that, also they keep in mind that basically all the elections since the fall of 2017, gubernatorial elections are putting the legislators and the governors in place now. They are going to be in-charge of redistricting in 2021.

So to the extent that you care about fairer maps, you should make that a point, whenever you’re having a conversation with the potential representative of yours to see where they stand, and enforce that norm of fairer maps with them.

Over at the Brennan Center, we track all the ongoing litigation, we track pending bills, we post blogs and commentary. So our website is  HYPERLINK “http://www.brennancenter.org” brennancenter.org. We have all our great redistricting resources there.

(00:35:01)

I’m also on Twitter @tomTMwolf and my senior counsel here, Michael Li, who’s a very prolific tweeter and an expert in the area is @mcpli and we look forward to continuing the conversation both offline and online.

J. Craig Williams: Great, Tom and Ned, thank you very much for being on our program today. I have to comment myself that having gone through a voting rights class in law school, I’m surprised to see gerrymandering now in the social discourse. It’s a big change and people are particularly paying attention to politics much more significantly than I think we have in a long time.

Well, that brings us to the end of our show. If you like what you heard today, please rate us in Apple Podcasts. You can also visit us at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com, where you can leave a comment on today’s show and sign-up for our newsletter.

I am Craig Williams, my co-host Bob Ambrogi is off today. Thank you for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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Published: January 26, 2018
Podcast: Lawyer 2 Lawyer
Podcast
Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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