Alice Ollstein reports from Ohio that Democrats are running strategically in the 2018 midterms. They know recapturing the state legislature may not be in the cards, but they are attempting to win the races that will put them in control of the levers of power that matter when it comes to redistricting following the 2020 Census. It’s part of a larger national strategy, one arm of which is spearheaded by Obama administration Attorney General Eric Holder, to rebalance America’s democratic system after Republicans successfully tilted it in their favor through gerrymandering, voter ID laws, and other restrictive voting measures following the 2010 election.
The details of that GOP plan are chronicled in great detail in journalist Dave Daley‘s 2016 book, Ratf**ked: Why Your Vote Doesn’t Count. Daley, the former editor-in-chief of Salon.com, tells the story of how Republicans set out to win key state elections and draw new electoral maps with extreme precision to ensure that Democrats would be blocked from power for decades.
I spoke with Daley earlier this month about Democrats’ strategy on voting rights heading into 2018 (it’s a good one), whether the Supreme Court would provide a solution to partisan gerrymandering (probably not this year), and whether a wave election in 2018 will be enough to make a difference for these broader democracy issues (it’s complicated). Here’s our conversation, edited for length and clarity.
TPM: What are your thoughts on how Democrats are addressing voting rights? There’s the Eric Holder group and Democrats have made this one of their priorities in 2018. Are they doing the right things and are they doing enough?
Dave Daley: There are a lot of Democrats who have become overly focused on taking back the House in 2018 and what they need to understand is that even if they get that kind of generational wave it does not mean that they have solved the problem of gerrymandering. They will have to run and win a similar generational wave in 2020 in order to keep control of the House.
Moreover, these lines after the 2020 Census will be drawn almost entirely by state legislatures. Those state legislatures have been gerrymandered just as effectively as Congress and in many ways are more difficult for Democrats to unknot. And this is why I talk about how this could hold for a generation. Democrats in Ohio are down 66-33 in the statehouse. In North Carolina’s House it’s something like 75-45. Democrats haven’t had much luck even breaking Republican supermajorities in some of these states, let alone taking control of the chambers.
So the Democrats’ road back is much longer than just winning 2018. And it’s going to require winning elections at the state level, at the local level. It’s going to require winning judicial elections in certain states. In a state like Ohio it is going to mean winning the state auditor’s office because the state auditor has a seat on the redistricting board there.
In many ways I would not measure a wave by the number of seats Democrats take in the US house, as important as that might be as a block on the Trump agenda. You measure a wave by the number of seats Democrats are able to win back for 2021 redistricting. And there are multiple seats like that that will be on the ballot this year. Those seats include key governors’ races in Pennsylvania, Ohio, Wisconsin, Michigan and Florida where the governor holds veto power over the redistricting and Democrats would get a better deal in those states if they could at least have that seat at the table. Republicans were able to draw these maps in 2010 because they had complete control of the process in all of these states. Democrats have to find a way to win themselves a spot in the room. And if they don’t they have to find a way to flip back incredibly tilted state legislative chambers in 2020. And that’s going to be a dramatically uphill fight in all of those states.
I think that the Holder group has done a really smart job of focusing Democratic attention in the right places if they want to have those seats at the table. You can see it in the attention they spent on the Wisconsin Supreme Court case. This is a really important race as for districting in Wisconsin and the Democrats knew it, invested in it, spent time in it and they told people why it was important. They made a case to their voters that policy outcomes over the next decade are going to be dictated by what legislative lines look like and this Supreme Court case could have an impact over what those districts look like. So they’re making the right argument to their voters.
TPM: You told Vox ahead of the 2016 election that, because of the way maps are drawn, Democrats had basically lost the house for a generation. Now Democrats are very excited about a potential blue wave. How are you thinking about the 2018 midterm elections this year?
Daley: I think that the decision in Pennsylvania [by the state Supreme Court, striking down a heavily gerrymandered map] could conceivably put enough seats in play that the Democrats could make an easier run at the House in 2018. You’re looking at suddenly four to six additional seats from a blue state where there had been a frozen map for this entire decade, and that is going to attract better candidates. You’re going to have more competitive elections in a state where Democrats need to make some gains if they want to have a shot at the House.
I would say this: In five key swing states — Pennsylvania, North Carolina, Wisconsin, Ohio and Michigan — Republicans hold a 49 to 20 advantage in those five states. And Democrats had not successfully flipped a seat from red to blue in 2012, 2014 or 2016 on these maps. So thats a 29-seat advantage. It’s a wider advantage than Republicans have in the House overall, and from five competitive swing states it probably should be closer to 50-50.
The lack of success the Democrats have had in cutting into those advantages in those states would have made the House a real challenge. But then you suddenly through a half dozen Pennsylvania seats into the mix.
TPM: So with the Pennsylvania state Supreme Court decision, one of the things that was unique and somewhat exciting for people who follow these things is that it was a decision based on the state constitution. The U.S. Supreme Court doesn’t want to get involved. Is that something that can be applied to other states and provide hope for reformers?
Daley: Yes, I think so. Especially after we saw oral arguments in the Benisek Maryland case [challenging partisan gerrymandering at the U.S. Supreme court] in which the court just seemed completely befuddled and frustrated. So I think that people who had hoped that [Supreme Court Justice] Anthony Kennedy would sort this out and then ride off having helped save democracy are probably feeling a little more pessimistic about that.
But the beauty of the Pennsylvania case was that it was decided based on the state constitution. Pennsylvania has a clause in the state constitution that requires essentially free fair and open elections, and the state Supreme Court said that this kind of extreme gerrymandering that was done with the intention of diluting Democratic votes violated that constitutional right.
There are 25 other states across the country that have similar clauses in their state constitutions. So no matter what the U.S. Supreme Court does on gerrymandering this Spring, there will still be a road for reformers in many states to follow the same path that the citizens in Pennsylvania did.
TPM: With the U.S. Supreme Court, there seems to be a sense that theres a racing-the-clock situation to get a ruling on partisan gerrymandering. Anthony Kennedy seems like the key vote, and he may not be on the court much longer because he’s getting up there in age. Do you think he’ll be the one to decide this or do you think the way things are going we’re not going to have a decision before he retires?
Daley: I could go on for a long time about that. Reformers have believed that Kennedy was one of them, in a way, ever since his decision in the Vieth case in 2004, in which he sided with the conservatives on the court but he sprinkled breadcrumbs to show the kind of standard on partisan gerrymandering that he might back. And he talked about how technology was a threat and yet also a promise in that it might show us a technological standard that would show when a gerrymander had gone too far. And he also talked about a First Amendment path that when the partisanship was used in a way as to burden representational rights you might have a First Amendment violation.
So the cases out of Wisconsin, North Carolina and Maryland [this term] follow that roadmap very closely. It’s one reason why folks were so optimistic that Kennedy would see something in those cases that appealed to him before he retired. I think that after oral arguments in the Maryland case it seems apparent that Kennedy is still cogitating. Kennedy still hasn’t found what he’s looking for. This may prove harder than people imagined.
TPM: What are some of those signs from oral arguments that lead you to feel that he is still making up his mind?
Daley: You had, for example, Justice Breyer suggesting that the court take all three of partisan gerrymandering cases in front of it, reargue them next term, and call everyone in, set up a blackboard, put all of the theories up there and try to work it out. The other eight justices didn’t exactly break out their doodle apps and figure out a time for that. It’s been six months since the court heard oral arguments in the Wisconsin case. If the court was close to a standard, I don’t think Breyer suggests an all-day hash session to work through all these theories.
So I think that told people that the Court isn’t particularly close. And now it’s April and you’re looking at June, when we ordinarily expect that these decisions are handed down. And they’ve only got six to eight weeks to figure out what they’ve not been able to figure out in six months. So it seems challenging to say the least.
The backdrop to all of this is that nobody knows when Kennedy might announce his retirement. It could very well come in June as well. You have justices on the court who are clearly not in good health and that kind of hangs over all of these deliberations as well. And you have a president who is probably going to fill those seats with much more conservative judges. We already know that there are four justices on the court who are likely to say that partisan gerrymandering is non-justiciable because we already saw that back in the Vieth case.
So on one hand we are as close to a real standard of partisan gerrymandering as Justice Kennedy settling on something that he likes. On the other hand, we’re one justice away from this being taken off the table as an issue for the court to consider in the future. So it’s a real hinge moment that still could go either way.
TPM: Some people interpret the citizenship question on the Census as an indication that Republicans have gerrymandered as far as they can. Now they need a new strategy. Do you share that reading of it?
Daley: I think they have gerrymandered as far as they can in all likelihood. There are a couple of states they’ll still go after in 2020, but they’ve squeezed about as much as possible out of that lemon.
I think there’s a multi-pronged strategy that, even if its not an intentional strategy, it looks like one. First is you take control of all these state legislatures, and then gerrymander the state legislatures and Congress so as to lock in durable control for your side barring a generational wave. The next thing you do in many of those states is pass voter ID laws or other kind of techniques to make it harder for people to register or access the ballot. And the piece after that becomes the Census. And what’s scary about that question is the Census is the basis of reapportionment. The Census determines how many congressional seats your state receives. So if you successfully drive down participation among Latinos and other minority groups you could conceivably drive down population counts in those states and create an imbalance of representation that favors whiter, rural, more conservative states. Then the number of representatives in Congress digs into the number of electoral college votes a state receives.
I’m not convinced Republicans sat down with all of this as a plan in mind when they did all of this. But when you look at all of these steps together they certainly all point in the same direction.
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