Is Gerrymandering Actually Destroying Democracy?

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All righty, so I just finished the show, but I'm getting a lot of questions from members, subscribers who want to know about gerrymandering and the census and what's going on with that and the history and all that stuff.

I'm happy to answer your questions, but I'm not staying at the office.

I'm going home, so just come with me and I'll explain.

So let's talk about the magic, the magic of congressional redistricting and apportionment.

Yes, I know you're into it.

Okay, fine.

So here's how it works.

Under the Constitution of the United States, the number of congressional districts held by any particular state is dependent on the number of people counted counted in the U.S.

Census for that particular state.

So, for example, if the census finds that there are 2 million people in a given state, then you get a certain number of congressional districts for that population, and that should hold for all the different states, obviously.

Now, the question is, how those districts get drawn?

Because you can imagine a situation in which a state with 50% Republican population and 50% Democrat population ends up with 50% Republicans, 50% Democrats, or you can imagine a situation in which the districts are drawn just so, so you end up with basically 90% Republicans and 10% Democrats, or vice versa.

And it's the latter thing that has happened.

So that began in 1812 with a guy named Elbridge Gehry.

Okay, gerrymandering really should be called gerrymandering.

Elbridge Gehry was the Massachusetts governor and he decided that he was going to draw the districts in a particular way.

One of those districts looked like a salamander.

Okay, like it was a very weird district on the map.

And so people said that it was a gerrymander.

Get it?

A gerrymander.

That's where that comes from.

And so to this day, in most states, you have the state legislature determining exactly what the congressional districts look like.

Now, very early on, there was actually no mandate, believe it or not, that every single congressional district represent the same number of people.

So while the state, as an aggregate, was supposed to represent by its congressional number of seats, a certain number of people, you could actually have districts that represented like one guy and districts that represented 20 people.

And over time, that actually happened more and more.

So a state would draw districts, and then they just kind of leave the districts.

People would move in and out of these various districts, and this became increasingly unfair.

Also, you'd have situations in which, again, for political reasons, people would be packing people into one sort of district or dispersing them broadly in order to ensure a majority or a minority of a particular type of voter in one district or another.

This was basically the rule for a very long time in the United States of America, all the way up until the 1960s.

In the 1960s, one particular 1962 Supreme Court case ruled, you could actually have judicial oversight of the drawing of these districts.

Until then, it was just left to the states.

The states got to do basically what they wanted.

In 1962, there is a ruling by the Supreme Court, and it says now the judiciary can look at these districts and determine whether they are fair or not.

And they did that largely because there have been a move, particularly in the Jim Crow South, to lower the impact of black voting districts.

They'd pack all black voters into one district, for example, and then they would spread out white voters over a bunch of different districts.

And so you would end up with a 90% black district with one congressperson, and then you'd end up with a bunch of white districts with congresspeople of a different party.

What this typically meant is that there would be a reduction in the number of Republican seat holders because remember Republicans were the party of Reconstruction and the party of black voters for a very long period of time and then Democrats would basically gerrymander a bunch of Democratic seats in the South.

Okay, so in 1962 there is a ruling by the Supreme Court that says that judges can now review the drawing of these districts.

In 1964 there's another ruling and this is the famous one man, one vote ruling where the courts basically say once you redraw the districts and you redraw them typically at least once every 10 years, you have to try and make it so that each district represents an equivalent number of persons.

That way you can't have a district that represents one person and one that represents 19 people.

And you're going to want to redraw those districts pretty regularly in order to ensure that population movement doesn't obscure the one-man, one-vote rule.

There's also a ruling in this period that suggests that this also applies to state legislatures.

So now the state legislatures can't basically be gerrymandered by one party or another.

Then there's the Voting Rights Act of 1965, and that says that actually the federal government can do what's called pre-clearance of various gerrymandered maps, particularly in the Jim Crow South.

So the idea is the federal government is going to look at all of these states that have historically discriminated against black Americans, and it is going to actually force the states to submit their maps, and then it's going to pre-clear those.

Okay, so by 2013, we've now moved beyond that.

You don't need pre-clearance for specific states.

There's really no evidence that, say, Mississippi is more racist than Massachusetts.

And so in 2013, the court says no to that.

But of course, the courts do have the ability to still oversee gerrymandering.

This particularly for racial discrimination.

So political gerrymandering, the courts have traditionally stayed away from because they say, okay, fine, if Massachusetts is a Democrat state, and even though it's 35, 40% Republican, all nine of its congresspeople are Democrats, that's really a political problem.

That is not really a court problem per se.

When it comes to race, the courts obviously are a lot more stringent in trying to ensure that these districts are not being drawn simply to water down particular minority votes.

Okay, so that is how gerrymandering traditionally works.

What is happening in Texas right now is the Texas state legislature is looking at the maps and they're saying there are probably a couple more seats, maybe up to five more seats that could be created if we gerrymander in a particular way.

And there's nothing new about this.

There are two provisions of the census that come into question here.

One is the census itself.

It's done every 10 years.

They're trying to do essentially a very, very large poll to try and determine what the population is in the various states.

They can do that wrong.

In 2020, they actually did do it wrong and they admitted in 2021 that they had misdone the census.

And that meant that there were a certain number of Electoral College seats that should have gone to places like Texas and Florida and Arizona that instead ended up in New York and California.

In fact, if the 2020 census had been done correctly, this is according to the Census Bureau, Donald Trump could have won the 2024 election without winning any of Wisconsin, Pennsylvania, or Michigan.

That's how badly the census was done.

So that is issue number one with the census.

And then there's issue number two with the census, and that is, why are illegal immigrants counted in the census?

This is a big problem for Republicans because if you have hundreds of thousands of illegal immigrants for example in california and they're counted in the census that means california gets additional congressional seats where they really should not have them now this is a big point of legal controversy does the 14th amendment to the constitution which sort of redoes who is defined as as a person you'll recall that originally the constitution because of slavery did not classify black americans as full persons in the legal sense which of course is morally wrong but that was the compromise that was come to in order to establish a constitution the 14th Amendment does away with that and says all persons are to be counted in the census, but there is one exclusion, and that is Indians not taxed, meaning Native Americans who are subject to the jurisdiction of a Native American tribe and therefore are not paying taxes in the United States.

Well, should illegal immigrants be counted like, you know, persons of the United States, people who are born here, or people who pay taxes here, or who are subject to our laws, or should they be treated more like Indians not taxed?

Now, the courts have traditionally ruled that the census covers all persons, which means illegal immigrants too.

President Trump wants to demonstrate through a new census that California, New York, a bunch of left-wing states that have taken in vast numbers of illegal immigrants are getting overcounted in the census, and that we ought to redo that such that American tax-paying citizens, law-abiding citizens, are the ones who have their representation under one man, one vote.

So that's what all this controversy is about.

Now, if taken to its logical extreme, this could get pretty spicy.

I mean, right now, there are approximately 67 Republicans who are in Congress in blue states, states and there are something like 39 Democrats who are in Congress in red states.

If gerrymandering were taken to sort of its ultimate extreme and red states made all of their districts red and blue states made all of their districts blue that would radically throw off the balance of power in the Congress of the United States.

It would also lead to tremendous political polarization.

It does seem like we are headed more and more down that road because both parties have an interest in increased gerrymandering.

Both parties have an interest in maximizing the number of seats they hold.

The systems are not trusted.

And once you lose institutional trust, the next thing that typically happens is that both sides start trying to exercise as much power as humanly possible.

It's been over 10 years since Edward Snowden revealed the U.S.

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The House Intelligence Committee last year actually extended government surveillance power.

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