Redistricting 2022 – The Law

Episode 01-07-03 January 08, 2022 00:23:11
Redistricting 2022 – The Law
Moving Kentucky Forward
Redistricting 2022 – The Law

Show Notes

We talk with Ben Carter, senior counsel for the KY Equal Justice Center, about the legality of the Republican maps, and whether they can and should be challenged – and whether our message should be "slow down" or "Stop!"

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Episode Transcript

Speaker 0 00:00:00 Hello, and welcome to moving Kentucky forward. I'm Bruce Maples publisher forward Kentucky. We have recorded three podcasts on this Friday, January 7th, about the redistricting process in the Kentucky general assembly. The first one was with Robert Connie, a data scientist who was actually able to create, uh, accurate maps out of the data that the Republicans provided, which did not actually include the precinct level data. Then there was Glasgow with Kentucky legal women voters, and we discussed with her how the league feels about, uh, the maps. And this last one is with Ben Carter, who is, uh, with the Kentucky equal justice center. And we're talking with him about the legality of the maps. I hope you will give it a listen. I'm speaking now with Ben Carter, who is senior counsel with the Kentucky equal justice center. They have been doing some looking at the redistricting maps. Ben especially has been looking at them both from an equitable standpoint and from a legal standpoint, Ben, welcome to moving Kentucky forward. Speaker 1 00:01:10 Thanks Bruce. Good to see you. Speaker 0 00:01:12 So let's cut right to the, to the meat of the matter I've spoken with, uh, Robert Connie about his analysis and with, uh, Glasgow with con uh, legal women voters about their thoughts. Uh, I know that you have done some thinking about the legality of the maps and whether or not they meet federal and state guidelines. So if somebody were to say to you, these maps are, are perfectly legitimate, they meet all the voting rights act requirements and they're constitutional. Uh, what would you say? Well, Speaker 1 00:01:52 I think first of all, I want to say you mentioned Robert Connie. We really, everyone owed his Robert a huge debt of gratitude for doing the work that legislative leaders refused to do or required somebody like Robert to do, which is create the shape files necessary for election experts, um, data nerds, and the general public to really understand what the proposal is. We can all look at, um, um, blobs of color on a map and, and guess at where the districts are and who might be affected and where the, where the districts might move to and where they're moving from. But without those shape files, we're really, um, operating in the dark. And Robert was able being a data Wiz and doing the work to reverse engineer, the shape files that the legislature should have produced months ago, right? One of the, one of the primary things that I want to say to Ubers, um, and, and to your audience is the urgency that the entire community feels around this right now is 100% artificially generated. Speaker 1 00:03:04 And, you know, the data from the census has been available for months. Republicans could have gotten together and decided what they wanted the maps to look like and what their proposal is and published their maps and published the shape files underlying those maps so that everybody can understand and have time to review what the plan is, where are the lines moving from and where are they moving to? And, and now the fact that we're doing this in less than a week's time, and Robert was just able to generate the shape files on Wednesday is 100% of failure of legislative leadership. And it's, it's not a failure. I mean, it's designed that way, of course. But, um, but that, that's sort of, what I want to say to begin with is, is as, as your listeners, um, reflect on this, really think about what it means that Robert had to, had to do the work to create the transparency. And we still don't know whether Robert's files are exactly accurate or, or what, um, it's his best effort, right? Um, based on, based on what the bill language is and things like that. So, um, it's very, very troubling and problematic that we're passing new legislative districts and congressional districts without step one of public transparency being done. Speaker 0 00:04:36 Right. Uh, I was, um, struck when the maps first came out, they said, well, here's the old maps and here's the new maps and you can see the difference. And it's like, well, yeah, I can. I like your reference blobs of color. I can see the blobs of color, but I can't tell what this does to, uh, various communities, various groups. I can't tell, uh, who you've affected. Uh, some people have done some analysis that shows that certain candidates were drawn out of their districts and certain incumbents were artificially, somewhat kept in their districts, but let's go back to the, the opening question. Uh, I have spoken to two or three different lawyers over the last three or four days. And most of them have said, I don't see any basis on which to challenge these maps. Um, because supposedly gerrymandering, according to the Supreme court is no longer an issue for the courts. Uh, but I think that you might have a different opinion on that. So do you want to share that with us? Speaker 1 00:05:47 Sure. And, and what I would say, I I'm just not prepared, um, because we've had so little time to actually analyze the guts of what we think the proposal is based on Roberts, uh, shape files. I, I'm not prepared to give, um, I wouldn't be prepared myself to say, there's no problem with the voting rights act, or we don't think that majority minority districts are, are affected in a way that, that implicates, um, federal protections at all, because we just have not had the chance to do that analysis. But regardless of whether these maps ultimately pass muster under, um, federal protections, uh, as you mentioned, Bruce, we know that the federal courts have sort of, this us Supreme court has said partisan. Gerrymandering is not something that is actionable under the us constitution and not something that we are going to protect people from. And to be very clear, partisan gerrymandering is something that everyone needs to be protected from independent Democrat or Republican partisan gerrymandering rigs. Speaker 1 00:07:01 The system creates a less democratic society and rewards extremism in both parties. So if you're sitting there listening and you say, well, I'm just a moderate. I'm like my, my views are just sort of middle of the road. You're hurt worse by partisan gerrymandering because the chances that you get to vote for a moderate and whatever legislative district you might, um, be voting for it is reduced by partisan gerrymandering because partisan gerrymandering means the primary is where the general election is, right? Whoever wins, the primary is going to win the general election. And that means if you have enough people in one party to win an election, no matter who turns out because the districts have been skewed. All the Democrats have been packed into a few districts in urban areas. And, uh, the Republicans had been spread out across every other district so that they win a bunch of seats by 55 to 45% vote margins and Democrats win their seats 90 to 10, right? Speaker 1 00:08:10 That's classic cracking and packing a strategy if that's what happens in Kentucky. And again, we don't know, right. But if that's what happens, whoever wins, the primary is going to win that general election. And that means the extremes of both parties are, um, are having an advantage in those primaries. And so, so partisan gerrymandering, I want to be very clear is wrong, no matter which party is doing it right. And, and the Pennsylvania Supreme court in fact found under their state constitution in 2018, that Pennsylvania are from partisan gerrymandering under Pennsylvania's constitution. There's a provision, uh, in Pennsylvania's constitution that guarantees every Pennsylvania and the right to free and equal elections. And guess what? In Kentucky, we have the identical provision section six of Kentucky's constitution says Kentucky, and have the right to free and equal elections. And what was happening in Pennsylvania was every year or every congressional election after the 2010 census data and the redistricting that, um, Pennsylvania Republicans did there, the vote totals across the state for Democrats and Republicans were roughly equal. Speaker 1 00:09:43 I mean, sometimes Democrats would get 48% of all votes for congressional representatives for Congress, people. And, um, Republicans would get 53%. Sometimes it was 45 Democrat, 55 Republican. And because of the partisan gerrymanders and Pennsylvania Republicans were winning 13 of the 18 congressional seats while Democrats got five. Right. Okay. And we see that happening in state legislatures all over the nation where sometimes Democrats will win majority of raw vote numbers and yet be in the extreme minority of the state legislature because of partisan gerrymanders. And again, I want to emphasize that's what's happening now because Republicans focused really hard in the last redistricting cycle on gerrymandering in Wisconsin, in Ohio, in Pennsylvania, in North Carolina, and were very effective at it. And so for the most part, those, those last cycle gerrymanders have benefited Republicans. I want to be very clear. Partisan gerrymandering is wrong, no matter which party is doing it. Speaker 0 00:10:57 So if the Pennsylvania case based on their state constitution made a difference, I assume then that the, the court throughout the maps and they had to do something different Speaker 1 00:11:10 The court throughout the maps and adopted their own maps. And the congressional delegation from Pennsylvania following that court case was split evenly eight. What was it? Nine, eight Republicans had nine Congress, people and Democrats had eight versus the 13 to five. Um, I'm getting my math wrong, but it was some something along those lines. Speaker 0 00:11:37 So if we have the same phrase in our constitution, could there not be a challenge to these maps based on that phrase? Speaker 1 00:11:48 Yes. And I wrote a op-ed about this in 2018 after the Pennsylvania case out, basically saying in three years, this is what we are looking at. The federal courts do not recognize a partisan gerrymander as, as the violation of federal protections or the federal constitution. And nevertheless, we have our own separate state constitution with an identical provision in it. And we have to be thinking along these lines and expecting a partisan gerrymander. It was clear in 2018 that it was very unlikely that that Democrat Democrats were going. We were going to have a split in the legislatures. It wasn't clear that we were going to have super majorities in both legislatures in 2022, back in 2018. But, you know, it was a pretty solid bet that Republicans were going to be drawing the maps. It would not be surprising to me to discover that in fact, um, the map drawers, uh, that created the shape files, um, that drew these maps, drew the maps in such a way to comply with the voting rights act, to comply with the case law around, um, voting rights under the federal constitution map drawers, do that all over the nation. Speaker 1 00:13:08 And they know exactly what the rules are because they're, they're the rules that apply all over the nation that would not be surprising to me. It also would not be surprising to me to discover that these maps are, um, the advantage that Republicans have under the maps, as we think they are using Robert's data that he had to reverse engineer Republicans have, uh, have a dramatic advantage under these maps. I plugged in, um, Robert shapefiles into the campaign legal centers, um, plan score tool, which is a very, um, uh, tool that's available online. You can upload shape files and, and they will give you a rough estimate of how, how the partisan advantage to a map. Let's put it that way. And the way election law experts measure that is by something called voting efficiency, right? People get elected by winning 50% plus one of whatever. Speaker 1 00:14:10 Um, constituency is voting that day. And so election law experts say any vote passed 50% plus one for a particular district is an inefficient vote. It's a wasted vote. And so the way you measure the partisan, um, advantage of a map is by measuring the difference between how many inefficient votes there are for Democrats versus Republicans under different maps scenarios, and, uh, the campaign legal centers plan score tool showed that in both the Kentucky house proposed maps, Kentucky Senate proposed maps and the congressional, um, maps, all three of those contain heavy biases towards making the Republican votes more efficient than democratic folks across the state. So much so that the campaign legal centers analysis suggested that Republicans would pick up about two to three or 2.6, six, um, to be exact seats in Kentucky's state Senate, which is 38 members. So about 7% of all of the seats in the Kentucky Senate would be influenced or won by Republicans because of the partisan bias of these maps. Speaker 1 00:15:41 And in the house districts, they would pick up about eight additional seats under these maps. Then they, then if Democrat and Republican votes were equally efficient, uh, across the state, now, let me give you one caveat here, Bruce. And this is, this is why it's important for everybody to stop, right? Republican legislative leaders created this situation where there is this fake or manufactured urgency around these maps is important to just stop. You've screwed it up. We need to live with these maps for the next year and try again next year, give a, give everybody the shape files, give us the proposed plans. And we can talk about this over the next year, because this is too important to, to get wrong. And, and there's precedent for that during the last redistricting cycle, the legislature didn't even take up redistricting in the 2012 legislative session. They sat on it, didn't act at all on the census data and waited until the following session to pass the maps. Speaker 1 00:16:52 So the notion now that we have to do this because we've moved to the filing deadline and we have to redistrict right now, now, now, now it wasn't urgent 10 years ago when you waited a full year, a full cycle and, and elected people under old maps. So why is it so urgent now? It is, it is crucial that we understand how much of the, the difference in efficiency of Republican and Democrat votes in Kentucky is due to geography. And how much is due to partisan gerrymandering in Pennsylvania. Uh, the court recognized that there is going to be a certain amount of, let's say natural inefficiency of votes when a party is densely packed in one particular geography geographical region, right? In some ways unavoidable. So there's this sort of natural geographic, um, unfairness, frankly, uh, that arises out of the fact that Democrats, there tend to be more Democrats in densely populated urban areas and more Republicans evenly distributed across the rest of the state. Speaker 1 00:18:14 That is not partisan gerrymander. I mean, we know for a fact that, you know, millions of people can vote for a democratic Senator in California and that democratic senators vote counts just as much as the Republican Senator from Wyoming that was elected by 300,000 people voting in, in Wyoming. There is, um, in our system, a certain tolerance for, um, or prioritizing votes based on geography or, or making, making boats more meaningful based on geography. However, um, we need to have the time everybody to get the analysis done, to determine how much of that eight seats that Denver, that Republicans will pick up because these maps prize for Republican votes, more than Democrat votes across the maps, how much of those eight seats are the result of geography and the distribution of voters across our state and how much of it is partisan gerrymander? Because in Pennsylvania, the courts found that hardly any of it was geography. And, and most of it was explainable as a result of partisan gerrymander. And we just cannot tolerate that in a democratic system. Speaker 0 00:19:38 So to wrap it up, would this, would your message to everybody be instead of the message we hear from some people which is slow down, we need to take a little more time to do this. It sounds to me like your message is, no, we need to stop right now, put this off, stop playing into this fake narrative of urgency and do this right for the people of Kentucky. Would that be accurate? Speaker 1 00:20:07 These maps are going to determine the ceiling and floor of what policies are available to Kentucky and for the next 10 years, whether you care about what your taxes are, whether you care about the environment, whether you care about whether Kentucky is have enough food to feed their families, staying safe in a pandemic, the right to organize and unionize, whatever your particular issue is. This is foundational and it is too important to rush through in a week's time at the beginning of a legislative session, especially when one there's precedent for waiting a year and two, we need to wait that year because of the decisions that legislative leaders may to create a crisis. We could have been having this discussion in November, you know, and, and done the analysis and determined how much of, how much of the bias is, is based on geography and how much of it is the result of a partisan gerrymander and had that conversation then, and, and now it is too late. In my opinion, and legislative leaders need to stop. We'll focus on it next session, maybe there won't be a pandemic going on then, and we can focus on the budget and other things this session, Speaker 0 00:21:31 Okay. And perhaps if they don't stop, maybe there will be some people that ask them to stop leaking. Speaker 1 00:21:41 We don't know, we don't have that analysis yet because we've only had Robert's shape files for two days, right? But in Pennsylvania with the same constitutional provision, the Pennsylvania Supreme court said, you cannot prioritize one Pennsylvania, vote over another based on party and still comply with our guarantee of free and equal elections. Speaker 0 00:22:05 Ben Carter, senior counsel with Kentucky equal justice center, whose message is just stop. And let's do this, right. Thank you for being with us and thank you for your time. Thanks, Speaker 1 00:22:20 Bruce. Great talking with you as always, Speaker 0 00:22:23 That was being Carter senior counsel with the Kentucky equal justice center, sharing his thoughts on the maps that the Republicans had dropped, uh, for redistricting. I want to thank all of our guests, Robert Connie, the Prairie, Glasgow, and Ben Carter for sharing their thoughts with us on the redistricting process and what needs to be fixed about it. Uh, I also want to apologize for the sound quality on some of these podcasts in an effort to get them recorded and put up today on Friday, January 7th, we didn't have time to fix some of the audio issues that I know were there. We will do better with that. And our next one, I hope these were helpful. And if they were feel free to share them with others and we'll be back next week. Thanks. Goodnight.

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