Episode 102: All About Gerrymandering — with Sean Trende

[Music] My guest today is Sean Trendy, Senior Elections Analyst at Real Clear Politics and the co-host of the Stubborn Things Podcast with Jay Kost Sean, welcome back to the Chelsea W. Cook Podcast. Thanks for having me, I'm excited. Alright, so Twitter as ever is a buzz this time with last night's referendum in Virginia which temporarily amended the state constitution to allow the legislature to pass what is irrespective of one's political opinions of it, one of the most egregious and consciously egregious gerrymanders that I have ever seen. And this morning the fight seems to be over whether or not this was done in self-defense or whether it was an escalation. And what I want to do is back away for the moment from that transient fight and ask some foundational questions to put what's happening into context. So let me start by asking you a 30,000-feet. What is a gerrymander? Boy, I wish there were a 30,000-foot answer. You know, it drives me nuts because everyone on Twitter is just like, well, we should just end gerrymandering. And political scientists don't even agree on what a gerrymander is. At a 50,000-foot level, I think most people agree it's drawing congressional districts in such a way that they artificially enhance the power of one party at another party's expense. There's debates over whether you have to intend to do it. There's debates when we say artificially enhance the party's power with respect to what. But I think at a high level to get a conversation started that'll work. Okay, it is called gerrymandering after Elbridge Gary and a district that was drawn by him or for him that looked like a salamander? That's right. There was a. So in Massachusetts, I'm using my hands, but people won't be able to see it. But in Massachusetts, this district was drawn to favor Elbridge Gary. It's kind of like we call it a GIF, even though it was originally a GIF. This is a gerrymander, not a gerrymander. But there was a series of towns in Massachusetts that were strung together in a serpentine fashion to be a district that he'd be likely to win. And some enterprising political cartoonists drew wings on it and a salamander's head at the end with the flicking tail. And it became the gerrymander. Okay, but he lived a long, long time ago. So this isn't new. No, it even goes back farther than that. The Virginia legislature actually wanted to get rid of James Madison in the first Congress. So they actually drew him into a district that would be favorable to James Monroe. Those two actually ran against each other in the early republic. So yeah, this is something as old as the republic itself. It's nothing new. It doesn't mean it's not. It doesn't mean it's good, but it's it's not. And what is a dummy manneder? This term has been thrown around a lot in the last year. So I'm pleased to say the term dummy manneder does appear in the peer reviewed political science literature. So this is a real thing. A dummy manneder is a map that is drawn to favor one party. But either the coalitions in the state shift or the party spreads itself too thin. And it ends up losing seats. So the classic example is in 2002. The Democrats tried Georgia had gone for George W. Bush by like 20 points. And the Democrats tried to draw an eight five democratic delegation in the state. And through a variety of mishaps it collapsed and it ended up being like eight five or nine four republican. So that's a dummy manneder where you just do a bad job of it. All right. So. I want to trace in Sephires this is possible given that this dates back to the early republic. Where this began in the modern era. I suppose that's inextricably linked with who's to blame, but the recriminations are flowing. The advocates of what Virginia just did say that they were forced into it by what republicans did in Texas. And they argue that republicans at the behest of President Trump engaged in a norm breaking mid cycle redistricting plan to try to save the house. Because the Democrats are going to win the house in November. And republicans say, well, the census of 2020, which will come on to later was unfair. And anyway, look at New England and look at Illinois and look at New York and look at Wisconsin. You guys do this all the time. So why is it so wrong when we did? Sean, when did this start in earnest? You know, it's interesting because mid decade redistrictings are actually pretty common in the 1800s. I live in Ohio and in the 1880s, we had four congressional maps with the state legislature would flip back and forth between Democrats and republicans in each time they took power, they would redraw the map. So in the big picture, not completely unprecedented. I think the modern, modern gerrymandering age probably started with Phil Burton in California when he drew the California map such that 1984 republicans got 55% of the vote, but only 40% of the seats. And it's kind of been escalatory since then we had some of the extreme racial gerrymanders in the 90s, the double this political gerrymanders. But as far as trying to trace back this particular incident, I mean, I think you're ultimately right. What republicans will tell you is that they did not pursue maximal gerrymanders in 2022. And then we had some questions from Democrats at some conferences back then like why are republicans pulling their punches in Indiana? What's going on? I don't know the answer to that. But Democrats pursued maximal strategies. And so I think there's some kind of buyers remorse about that. And the thing is that Democrats have been pretty effective with their lawsuit strategy this cycle. And what really kind of pushed this particular redistricting was actually in New York, Democrats sued in their Supreme Court had gotten some new members said that the legislature had to redraw. In 2024, they drew themselves two new seats in New York. You have Utah where there had been a ballot initiative that set up an independent commission. The legislature passed a law overruling the ballot initiative and they convinced the state Supreme Court to say, no, you can't overrule a citizen initiative, which is bonkers. That's the idea that a legislature can't amend its own laws. So that's a seat for Democrats. The Wisconsin Supreme Court Democrats took control of it and their justices had specifically promised to take a hard look at, I think, was the code. And the lawsuit was brought in Wisconsin, urging the Wisconsin Supreme Court to expedite it, asking for two new Democratic seats. And so if you ask Republicans, they'll say, well, this was defensive on our part too, because the Democrats were being really aggressive. And the racial gerrymanders sitting here in Louisiana that of course recognizes a racial gerrymandor that's going to elect a Democrat twice. So at a certain point, there was a sense that we had to push back on it is kind of the Republican line on this. And another thing that you hear this time from the Democrats is, all right, so everyone is self interested. And this is about raw power, but we, the Democrats have introduced bills for years proposing banning gerrymandering at the federal level. And Republicans aren't interested. Why aren't Republicans interested in that? Because gerrymandering benefits them on balance right now. That's my answer. My view on this. I think there's kind of a good faith view from some people, a principled view that redistricting is something that is best left to the states, something that the Constitution generally reserves to the states. And the federal government shouldn't. And I think there's good. I think there are principled federalists still in the Republican caucus. But I think the real answer is that Republicans were the ones who were pushing for independent redistricting commissions in the 90s and 2000s when Democrats were hammering them and redistricting. And the Democrats resisted it. Republicans wanted an independent redistricting commission in North Carolina. Democrats said no. Democrats fought tooth and nail against the California redistricting commission that Schwarzenegger wanted. It's like the ring of power in Lord of the Rings. Like you think you're going to destroy it. And then you get it. And you're like, who I could do stuff with this. Republicans took over in 2010, they looked at it and said, "Yeah, maybe we should draw our own lines the way the Democrats did." Democrats suddenly became incensed and decided that we needed independent commissions or judge-run maps in North Carolina. And I think it's the same thing. Jerry Mandering suddenly became a national emergency in 2010 when it just so happened that Republicans controlled redistricting for the first time in 60 years. And so yeah, Democrats wanted to ban Jerry Mandering in the 2010s and 2020s because it benefited them. We'll see. Like, I can be proved wrong here. If Democrats control redistricting in 2030 and still press for redistricting standards that will cost them seats, I will eat my words here. But generally speaking, I think it's it is power all the way down. Is that anything to the argument you hear on the right that Republicans should be instinctively mistrustful of the idea of an independent redistricting commission, both because within our system there's no such thing as independence. And also because independent institutions so-called do often tend to favor the left. If you think, for example, about the American Bar Association, which has just been removed from its independent position, because it seems to have a different standard for judges proposed by Democrats than judges proposed by Republicans. Is that paranoia on the right or is there something to that? So I do have to disclose, you know, I drew the Virginia maps along with Bernie Grafman, a political scientist from UC Irvine. I think we did a pretty good job. You know, I think most people on the right and left thought those were good maps. I think a lot of the people who wanted to start the maps thought they were good maps. But no, I don't think this is entirely paranoia because I was once really in favor of citizens commissions and having done a lot of work in the redistricting sphere, what you find, if you get a citizens commission that looks like America, you get a bunch of people that don't know much about politics. And that suddenly find out that redistricting is more complicated than you think. And so, okay, we're going to go out and we're going to hire some experts to advise us. Well, okay, who are the experts? You know, they academia, I don't think many people would say, and Lee Denai, Leene's left. And there's a good chance you're going to get a advisor who Leene's left. The Michigan Independent Redistricting Commission, State Senate and State House, those maps got struck down as racial gerrymanders. And it was entirely because they hired this law professor who was an expert in the VRA, but had as VRA law professors tend to, a very expansive view of what the VRA should require far beyond what the case law supports. And he guided them to drawing gerrymanders. In North Carolina, the Supreme Court of North Carolina put a panel of independent experts on. And like, one of them was Sam Wong. Now, I personally like Sam Wong and get along with them, but he's running for Congress as a Democrat right now. Yeah. You know, you might question, even if you tried to be impartial, like if you really knows exactly where impartial lies. So it's way more complicated. I think if you go that route, you need to constrain the map drafts severely so they don't have much wiggle room. So you can kind of cabin in the effects of personal ideology. You probably get this question a lot, but is it possible to outsource this to a computer? Or is the computer just the consequence of the inputs? Is what you get out of the computer the same thing because you're going to have people with political arguments just determining what the variables are exactly that's exactly B. I come back to with computers the same thing that I gave you with independent commissions, which is what you have to do is spell out very specifically what the contours are going to be. You have to say you can't split counties more than you have to to comply with equal population. Once you start drawing an municipality, you can't leave the municipality until you filled it up completely. Those types of decisions can alter what kind of map you get. We aren't even getting into the question of race and redistricting. So yeah, it is kind of, you know, if you know what the parameters are ahead of time, then I think it works reasonably well, but that ultimately kind of the devils are in the details there. Let's get into race and redistricting. You mentioned the VRA. I find this almost impossible to follow constitutionally because the cases seem to go back and forth between where you can't do that because that violates the 14th amendment because it considers race and you can't do that because that violates federal law because it doesn't consider race. Sometimes in the same map drawing process, the Supreme Court is currently, some people thought it was going to be released today. In fact, putting the finishing touches on a big VRA case, at the moment, it seems that the consensus is that this latest round of gerrymandering probably has benefited the Democrats on balance. What happens if the court reinterprets the VRA so that those minority districts in the South go away? Well, at this point, we're getting fairly late in the cycle. You know, if that case were to come down soon, you would still have a few states in the South that could redistrict. Certainly Louisiana would probably have to since it is where the unconstitutional district is. But other states, the filing deadlines have passed and we're already into primary season. So, for example, it's difficult for Mississippi to reopen redistricting at this point. So you probably do get a couple more feats. I know some states have written triggers into their laws, such as Assune's Calle comes down. If it's warranted, they can redistrict. But if there is a kind of bananza for Republicans, it'll probably come next cycle. One more question before I ask you about the census. I was reading some random book. But it mentioned that some states in the 20s, I think, they had elections where you had all of the representatives were at large, that is to say, rather than having districts, you had multiple representative candidates running. But each one of them represented the whole state as if they were a senator. It seems to me that if we get too much cherrymandering, we may as well go back to that because I mean, if you have say a Florida map was 26 to two, I don't think that will necessarily happen, but that's the threat. And you have a Virginia map that allows for one to Republicans in theory. And you have a California map and a Texas. Why don't we just say, all right, we just have statewide elections for every single representative and we'll treat it almost like the electoral college. Yeah, that's kind of where we seem to be headed. You're right. Like it actually goes, if you go back to the initial elections at the founding, most states did it that way. Most states were at large. So I don't think there's any question about the constitutionality. And what states used to do with those at large, if a state gained seats, it took a while to kind of work out like who the winners and losers were going to be and things moved much slower back there. You didn't have emails. I had to get everyone together. And so Illinois would gain two seats. And so for the first Congress, it would elect two members at large. It would keep the congressional districts from the proceeding Congress and have two at large. And then they would kind of negotiate how they're going to draw the maps so that everyone had their seats. So that's what you're seeing there. It got put to you. And I think in 1970, there was a law passed the band at large districts in New Mexico and Hawaii, both did it pretty late in the game. That's a federal law. That is a federal law. So it can be repealed federally. But for right now, states can't opt for that because of the federal law. All right. Tell me about the 2020 census. I see a lot of grumbling about this. And although I'm not an expert, what I have read on it seems to substantiate that grumbling. The Cavalers say that for whatever reason, perhaps COVID had something to do with it. Perhaps Republicans were unprepared. But for whatever reason, the 2020 census understated the population shifts that had benefited Republicans and left them with fewer house seats. These seats in areas that they think they would have won. And fewer electoral college votes in states that they think they would have won. Then should have been the case. Is that true? So yes, we should remember that the 2020 census took place under Donald Trump's watch. He was still president. So I think people sometimes get a little bit too far out on the limb with that. But yeah, that's right. Almost everyone expected, for example, Rhode Island to lose a seat. I think everyone who follows this stuff and follows the demographic thought, Rhode Island will lose a seat. Pretty much everyone thought that New York City would lose representation. Pretty much everyone thought that you would have some more seats headed to Texas. And for Florida and then we got the numbers and everyone was kind of flabbergastics. There was very little change in the apportionment. And you hit the nail on the head. Most people think it's just COVID. It was hard to get a hold of people, especially in rural areas, it was hard to get census takers. People were scared. They didn't want to answer their door. There was a lot of distrust to the federal government on the part of the right at that point. So all those things come together. And I think it is true that the 2020 census undercounted red states. The question is, what do you do about it? I don't know. Well, what should or can those who are upset about this do in 2030? If Donald Trump was unprepared, if red state governors in Florida and Texas and elsewhere, well, unprepared, what should they do next time to make sure the count's accurate? So one thing that a lot of blue locals did was they did like many get out the vote efforts. It was kind of like get out the census efforts to make sure that people responded to the census and got counted. And I think you need some efforts on the part of red state governors, the kind of thought leaders on the right. You don't need to talk radio or bloggers being like, don't trust those federal revenues coming here or not. They need to support it. I mean, I'm from Oklahoma. So these are my people. I get it at a certain level, but it's counterproductive in this sense. And I don't think that's cheating. Like we want people to be counted. You know, it's the federal census. We've done it since 1790. And if you do that, it's, I mean, 2032 is going to be just a bloodbath and redistricting because basically all the demographic changes that should have gotten counted going into 2022 are going to be counted. Plus everything that's happened in the middle decade, it's going to be outlandish. How is that going to change politics? And what I've seen, the expectation is that in 2030, the census will render an electoral college that reduces the importance of Pennsylvania, Wisconsin, Michigan. And increases the importance of Florida, Texas, Georgia, North Carolina, Arizona, the Sunbelt. Yeah. The first prediction I see is that this may help Republicans. One I see less, although I think it's an interesting suggestion, is that this may change Republicans in that the Sunbelt side of the GOP may rise in importance because they no longer have to pay lip service to the rust belt side of the GOP. Do you think that will happen or does our politics have a habit of balancing out in other ways? Yeah, I mean, what makes that whole scenario interesting? And by the way, the big loser is California that could lose as many as five congressional districts, which is just insane. The good news for Democrats is that they're improving in states like Arizona and Georgia. Now, it's not great news that they have to go into those states and flip them, plus defending all their rust belt states. But it's not a situation where Republicans have to really go on offense. They more or less have to go on defense. But like you say, these things tend to balance out. I mean, North Carolina and Georgia weren't that far from the national margin in 2024. And so if those continue to trend leftward, you end up kind of swapping things out. So at the end of the day, I don't think we're looking at a massive GOP advantage. I think we are looking at how messages get clarified, though. And it'll change the Democrats as well, too, because suddenly to win the presidency, it's not enough to have Scranton Joe, who can appeal to Pennsylvania and Wisconsin, that you have to have someone who's going to sell well in Georgia and North Carolina and Arizona. Those are very, very different electorates. What is this idea of expanding the House? I'll be perfectly honest with you, Sean. I've never looked into this, because I have, at the first mention of it, it's been so horrified by the prospect of having more people in the House of Representatives that I have assumed it's some sort of wonky plague. But smart people recommend it. And I've seen it brought up again this morning as an anti-gerrymandering measure. Is it? And how does it work? So the actual first amendment to the Constitution, they didn't get ratified. But if you look at the original Bill of Rights, there's 12 amendments. One of those amendments came back and got ratified as the 27th amendment, which leaves one out. And that one would have set the size of a House district at like 60,000, or something ridiculous like that. Now, I mean, if we did that, Congress, when it came in session, in some states would be like the fourth or fifth largest jurisdiction. So I get the allergy, like more politicians, how is that going to get it better? At the same time, like a congressional district today is roughly the size of the largest Senate seats at the founding. And the House is supposed to be something that's more responsive to the people. So that's kind of the philosophical argument for it is that it's very, very difficult for a member of Congress to represent 800,000 people. And that's not really what they were envisioned as doing. The other thing is that as you increase the size of the House, gerrymandering does become more difficult, because like what you do when you gerrymander, say, North Carolina, is you either take all the Democrats in Charlotte and you put them in a single district. With the Charlotte having a population of around 800,000 and the congressional district being around 800,000, that's easy to do. If you make a congressional district, 400,000, all of a sudden you've got to give two Democrats if you do that. The other way to do it is to try to break up like Greensboro. So you take Greensboro and Winston-Salem and you split them between three districts, which is what the current map in North Carolina does. And then you spread them out into the rural areas so that the cities get overwhelmed by the rural areas. It was the same strategy in Texas. Well, if you reduce the size of a congressional seat, it becomes more difficult to completely wipe a party out and to do that kind of thing. I mean, if Virginia had 22 congressional districts, I don't think you could do, I'd have to check, make a liar myself. But I don't think you can do say a 22 map in Virginia. I think you'd have to give proportionally more seats to Republicans. Now, one final thing that I think is important to understand along these lines is that most democracies have a better ratio of representation to constituents. If you do the proportion, we're not at the bottom, but we're pretty close to the bottom. So it's not unusual to have a higher degree of representation in the lower house. I mean, if nothing else, you know more about this than I do and maybe you will disagree viscerally. But the House of Commons is bigger than Congress. And I take it to function, at least as well as our House of Representatives. So I think we could at least do that. And that would be achieved by a statute. Yeah, so Congress consistently increased the size of the house from the founding to 1912. And then in 1912, it just stopped. There's actually like a really fascinating narrative. It would take about 10 minutes. I'll let people look it up. But there's a fascinating narrative for the 1920 and 1930 reapportionment. But yes, they just stopped increasing the size of the house about 100 years ago. And that's when we started getting these ridiculously size representational districts. And as far as you know, if Congress did this tomorrow, would it benefit one party or the other? Is that why it hasn't happened now or would it be a wash? I don't think it would benefit one party the other. I think the problem is what you're doing is you're asking congressmen to give up relative power. Right. You know, right now they are 1/435 of the decision. Do they really want to reduce themselves to 1/700 of a decision? That's a big ask. I'm going to ask you a little about the polling environment ahead of the midterms, which is related to this because these fights do not take place in a vacuum. Donald Trump is not popular. Joe Biden was not popular. No one is particularly popular. It's been a long time since we had a president who was consistently popular. How bad is this for Trump and the Republicans? Or is this business as usual? I'm struggling because Trump's not popular and I don't think he helps himself. But at this point in his presidency, his approval rating while bad is not a million miles from where Biden was and where Obama was in his second term. That doesn't mean that there won't be a disastrous midterm for the incumbent party. It doesn't mean that power won't change hands. But I wonder how informative it is if this happens all the time. Yeah. So we actually, audience, we didn't discuss this beforehand, but I'm actually finishing up hopefully today the draft of a book on exactly that question. When did our politics stop being normal and why? And you're absolutely right since Bill Clinton and then W. Post 9/11, we haven't had a popular president. And I think there's a lot of reasons for that. I want people to buy the book, so I won't go into all of them. But as far as the kind of narrower question of, you know, what's going on with Trump, I agree with you like so much of this is of his own making, you know, starting a war with Iran without, you know, we can debate the merits of it without making the case to the American people first to get them on board. Making clear what this thing is about and what we're trying to do, that hurt him. Especially since he had been a substantial portion of his base elected him on an anti-war platform. You know, things like the tariffs and things like just the general chaos coming out of Washington, D.C. It hurts him and it hurts him unnecessarily. But it's not terribly unusual. If you want to make a case for being unusual, you'll point to the economy is overall pretty good. We don't have rampant inflation. We aren't coming out of the great recession. The things that kind of drag down other presidents. He's likely going to get walloped in two midterm elections at a time of relative peace. And to the extent they're not prosperity, it's because tariffs in this war is on making. So I don't know if he's going to get walloped because there just one effect of all this mid decade redistricting is a lot of the competitive seats are being taken off the table. For example, Virginia 2 and Virginia 1 were competitive seats. Now they're safely Democrat. Republicans have taken off some of the competitive seats and states, you know, they seem to be planning to do it in some states like Ohio. They took probably one or two off. California took a bunch of the competitive seats off the table. So they're not fighting over a very large playing field. So you could have another scenario like 2022 where the conditions are ripe for a wave and then it just kind of fizzles at the end. My last question is in a sensitive version of that question and it's related to what you just said, we've been talking about hardball politics. We've also just talked about everyone being unpopular. It seems that one can make the argument that we have had failed presidency after failed presidency after failed presidency. And the response to this, a lot of the time is to try to rig the game. What is it in your view about our politics at the moment that has not produced someone who is genuinely in the middle or who seeks to appeal to the middle? And you mentioned Bill Clinton. I'm a conservative. I would have been driven crazy in some respects by Bill Clinton. But objectively speaking, certainly after the 1994 midterms, the guy was a moderate. If you look at where the country is, not where I would like it to be, but where the country actually is, Bill Clinton spent the last six years of his presidency walking down that line. And George W. Bush did in many ways as well, although we forget it because he is reviled because of the Iraq war. We haven't done that. Biden comes in and he allows himself to be persuaded that he's Franklin Roosevelt and he suddenly goes big and Bernie Sanders is leading the agenda. Trump comes in. I like some of the things he's done, but he talked all the time about his base. He goes on Fox and he says, I'm 100% popular among Magger. Well, yeah, OK. But that's a self-selecting group. Is there something structural at the moment or something in the water that is preventing the rise of that person because surely they would do OK? So again, that is my book and I don't want to give. I isolate like five developments. I will tell you about it after we cut. I will pick-- I will preview one to maybe teens people. And I think it's a big one, which is that in 1972, in response to the 1968 Democratic Convention where Hubert Humphrey, a pro-war candidate, won the nomination without winning a single primary, the Democrats switched to primaries. And Republicans quickly followed suit. And for a while, the party's kind of clamped down and still had control of the process to make sure that like broadly acceptable candidates could win. If you look before that, really the only two kind of out there nominees we had were Barry Goldwater and then William Jennings-Brien. Everyone else was nominated as some type of consensus-- Three times. Three times with William Jennings-Brien. So OK, fine. Maybe it's four if we're being honest. And then what happened in the 2000s when you and I were probably getting into really thinking and writing about politics was the net roots exploded. And what the net roots, the Democratic side of the internet discovered was that they could get everyone excited about a candidate and they could raise an astronomical amount of money through bundling small donations. And so what happened, essentially, was the parties, the professional politicians lost control of the nomination process. And in both the Republican and Democratic party, all became an exercise in appealing to people who vote in party primaries and who will be glad to send like a $25 check because you inspire them. And so it's no longer about someone who can inspire the middle. It's about someone who can inspire the people who have kind of the strongest political opinions out there. And if you want me to-- if you want to explain Barack Obama and Trump and how Biden ended up governing, I think if you view it through that lens, it makes a lot more sense. Biden had to cut a deal to win the Democratic nomination. And in effect, like you all swing behind me, we'll do a unified front. And I will do make X, Y, and Z my agenda item. All right. Well, I am very much looking forward to reading this book. Before we go, why don't you tell everyone where they can find you? You can find me at Real Clear Politics. You can also find me at Twitter @Sean Trendy. And you can find me at the Stubborn Things podcast with Jay Cost on your favorite podcast channel. So in Trendy, thank you so much for coming on the show. Thank you.