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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today on the show, how well is New York City recovering from the show called "retail apocalypse," as some people have named it, that befell the city's storefronts during the pandemic? The Adams administration is trying to revive retail in neighborhoods around the city with its so-called "City of Yes" rezoning plan.

You've probably heard about that in connection with housing, but it has a lot to do with where businesses can be in relation to housing as well. We're going to take calls today from small business owners and aspiring small business owners, retail or otherwise, for New York City's Small Business Services Commissioner Kevin D. Kim. He'll join us later this hour. Also, a new look at the marketing of Ozempic and similar drugs and their impact on American culture as well as business.

For one thing, it's getting easier to get them online with or without a serious medical condition, but we'll also touch on the new study reported in The New York Times today showing Ozempic might be effective in treating kidney disease in some people. That is new. Plus, as we head into a summary Memorial Day weekend, we'll talk about protecting swimmers and surfers everywhere and piping plovers in the Rockaways. That's all coming up and we start here.

Where's the line between drawing congressional district lines to help your party and drawing those lines to help your race? The Voting Rights Act is supposed to ensure that Black voters are not all clumped together in a few congressional districts for the purpose of diluting Black voting power. Yesterday, the Supreme Court issued a ruling in a case involving South Carolina's congressional districts that allowed the state to basically do exactly that.

The complication. If Black voters overwhelmingly go for Democrats and white voters for Republicans, as is mostly the case in South Carolina, how do you tell the difference between racial and partisan gerrymandering? By the way, why is partisan gerrymandering acceptable either? We'll talk about yesterday's ruling and take a deeper dive into drawing congressional lines generally with the divide in the House so very narrow now within just a few seats. Redistricting could make the difference in which party wields all that majority power next year.

With us now is Ari Berman, national voting rights correspondent for Mother Jones magazine. He's made it his life's work to study and report on questions like these. His influential book, Give Us the Ballot: The Modern Struggle for Voting Rights in America is nearing 10 years in print. He also has a new book, Minority Rule: The Right-Wing Attack on the Will of the People - and the Fight to Resist It. Yes, that includes the connection between the political forces that gave us January 6th and the forces that gave us rulings like yesterday from the Supreme Court. Ari, nice to have you on. Again, welcome back to WNYC.

Ari Berman: Hey, Brian, great to talk to you again. Thank you.

Brian Lehrer: Let's start with a basic definition. Redistricting is not a dirty word, gerrymandering is. What's the difference?

Ari Berman: That's right. Redistricting is just the drawing of electoral boundaries that tends to happen every 10 years after the census comes out and that's constitutionally mandated. Redistricting has to happen to account for things like population growth. Gerrymandering is basically weaponizing the redistricting process in a way that benefits one party over another or one community over another.

Brian Lehrer: Let's get right to this new Supreme Court ruling and then we'll pull out to the bigger picture you describe in your book. Your Mother Jones headline today is very direct. The Supreme Court just made it easier for Republicans to get away with racial redistricting. How did the court do that?

Ari Berman: They did it by upholding a congressional district in South Carolina, but they didn't just uphold the congressional district in a way that benefits Republicans. They made it much harder to challenge racial gerrymandering in the future because the conservative supermajority in a decision authored by Justice Alito, which in and of itself was eyebrow-raising given the events of the past week, basically said that the state legislatures should be given the presumption of good faith.

Basically, we should have a lot of deference to the state legislatures. Then they raise the bar for what is needed to strike down racially gerrymandered maps. They basically said, "If state legislatures are doing this for partisan reasons, which South Carolina Republicans said they were, then you can't call it racial gerrymandering even if racial minorities are the ones who are affected by this process."

Brian Lehrer: Well, would it be accurate to say, as I've heard in some of the coverage, that at issue in this case was how to tell a partisan redistricting from a racial one like if 90% of Black voters vote for Democrats, which is often the case in congressional elections, and white voters in states like South Carolina tend to go decisively for Republicans, how could even a colorblind partisan redistricting not wind up sorting people by race?

Ari Berman: Well, that's exactly what happened in South Carolina. South Carolina Republicans said very openly, we're drawing this district, which is this first congressional district represented by Nancy Mace, who you may remember was a one-time moderate who has veered sharply to the right. She was one of eight House Republicans who led the push to remove Kevin McCarthy as House speaker. She's become a lot more Trumpy as her district has moved to the right through redistricting.

Basically, Republicans said they wanted to make her swing district more conservative, so it was more reliably red. They did so, however, by moving 30,000 Black voters out of Charleston County into a safely Democratic district represented by Jim Clyburn, one of the most powerful Democrats in the House who has a very safe Democratic seat. Republicans say they did it for partisan reasons.

Civil rights groups and then, eventually, the courts said, "No, this was done for racial reasons." You may have wanted to achieve a partisan goal, but you did it by disenfranchising, diluting the votes of voters of color. What the Supreme Court said is that the district court got it wrong that, essentially, they bought South Carolina's argument that this was a partisan gerrymander.

The problem is, as you say, it's very hard to disconnect race and politics in places like South Carolina. What Republicans are going to do, not just in South Carolina but in other states, is they're going to dilute the votes of voters of color to benefit them and they're going to say, "Oh, we just did it for partisan reasons," and it's going to be a lot harder to challenge that in the future because of this decision.

Brian Lehrer: You know what I've been wondering though? I indicated this in the intro. Why is partisan gerrymandering suddenly the clean thing here? [laughs] In an ideal world, district lines would be drawn in some neutral way that doesn't let a Democratic or a Republican state legislature guarantee more seats for their party by drawing advantageous district lines for themselves, but part of the premise of the critique of the Supreme Court ruling seems to be racial gerrymandering is not okay but partisan gerrymandering, that putting your thumb on the scale, is. Am I seeing that right?

Ari Berman: Yes, and that's what's really crazy is you have, basically, a series of Supreme Court decisions that together make the political system more undemocratic. One of the biggest things the Supreme Court did was in 2019 in a case from North Carolina, they basically ruled that partisan gerrymandering cases can't even be challenged in federal court.

Not only could you not strike down a partisan gerrymandering case in federal court, you couldn't even challenge it, which was just a really sweeping, radical ruling. Let's just say one party gets 30% of the statewide vote but draws a map that would give them 70% of seats. That would be legal if you could just show that it was a partisan gerrymandering and you couldn't even challenge it in federal court.

Brian Lehrer: That's crazy.

Ari Berman: It's absolutely insane. I think it's one of the most destructive things the Supreme Court has done in the past few decades because what it has done is it's given a blank check to both Democrats and Republicans to do the most radical partisan gerrymandering. You can only challenge it in state courts. They did leave the door opening to challenge these things in state courts. What I don't understand is why are state courts better equipped than the nation's highest court to try to adjudicate these claims?

Basically, what the Supreme Court said is there's no measurement for how to decide how partisan something is, but there's actually a lot of social science research out there that shows very clearly how partisan a map is. You can draw a map. I can put it into an equation and I can show you in five minutes how partisan a map is. There's actually a lot of ways to show that something's partisan gerrymandering, but the Supreme Court just washed their hands of it, I think, knowing very well that Republicans have been more aggressive about this kind of gerrymandering than Democrats in recent years.

Brian Lehrer: I'm guessing that if the Supreme Court has ruled that partisan gerrymandering can be challenged in state court but not in federal court that this is part of the right versus left judicial philosophy, where conservatives on the court tend to want to leave more things to the state in terms of standards of voting rights and other kinds of equality. Progressives more want there to be federal standards. The conservatives on the court are saying, "No, we're not even allowed to look at this." Am I overinterpreting that?

Ari Berman: No, I think that's right. They've kicked a lot of things to the states, abortion rights most notably, but they've done a lot of things like that on voting rights too. The question is, what's the result here? I think the result is that we could be heading towards a two-tier democracy where, in some states, there are limits on partisan gerrymandering. There are limits on gerrymandering. There's fair maps. In other states, primarily conservative states, there's much more gerrymandered maps. There's much more entrenched one-party rule.

That's why federal standards are so important to avoid a two-tier democracy like we had, for example, before the Voting Rights Act of 1965, where Black voters might have been able to vote relatively easily in a northern state but couldn't vote at all in southern states. The Voting Rights Act of 1965 was supposed to end that kind of two-tier democracy. My fear is that we're heading there more based on politics than on race, but we're heading there in terms of red and blue states and how easy it is to vote in those places.

Brian Lehrer: In a minute, I'm going to ask you a counterintuitive question, considering a conversation we've been having so far, about whether this is less important to who actually controls Congress than we may think. First, I want to invite listeners in. Listeners, who has a question about redistricting or gerrymandering, especially racial redistricting and gerrymandering? It can be on more than that too, 212-433-WNYC. On yesterday's Supreme Court ruling, specifically, if you've been following the news coverage of that or more generally, 212-433-9692. Call or text.

Anyone think you're in an unfairly drawn district yourself? Questions, comments, and stories welcome for Ari Berman, national voting rights correspondent. That's an important beat. More news organizations should have voting rights correspondents. Mother Jones has one, Ari Berman, and he also has the new book, which we'll get to, Minority Rule: The Right-Wing Attack on the Will of the People - and the Fight to Resist It. 212-433-WNYC, 212-433-9692. Call or text. We do have one call already to something about the Supreme Court's decision. Peter in Manhattan, you're on WNYC with Ari Berman. Hi, Peter.

Peter 1: Hello. How nice to be with you, Brian. I just wanted to comment that Alito's decision, which Justice Kagan said stood the law on its head, really did. If you look at it, what it says is you can't gerrymander Blacks who choose to be Democrats, but you can gerrymander Democrats who choose to be Black.

Brian Lehrer: Not choose to be Black, who happen to be Black.

Peter 1: No, who choose-- That's the point. You can't choose that. That's why it stood on its head. It's a fact that they're Black, but he's saying they are Black by choice. They're Democrats really, and then they become Black, you see? That's later. It's perfectly insane. [laughs]

Brian Lehrer: It's which identity, political, or racial you put above the other. Ari, do you understand the distinction that Peter is describing from Alito's majority decision and do you see it that way?

Ari Berman: Yes, no, I understand the point that he's making. I think it just gets into this whole question of, if a plan has the effect of diluting the votes of Black voters. What civil rights groups are arguing and what lower courts have found in many cases is that is racial gerrymandering regardless of whether it has a partisan intention or not. If you are trying to achieve a partisan end by using race as the metric for doing so, that in and of itself should be unconstitutional. Funnily enough, the Supreme Court has ruled that in all sorts of cases, striking down what they view as racial preferences, right?

Here, Alito really inverted it because, for example, with affirmative action, if you use race to achieve some kind of end, they say that's unconstitutional. When it comes to white Republicans using race as an end to protect their own power, well, they're okay with that. I think that's the more important inversion is that the Supreme Court is basically saying, "We're against racial preferences and racial sorting, but if Republicans are doing it racial sorting to benefit themselves, well, we're okay with that because they're just doing it for partisan reasons."

Brian Lehrer: Peter, thank you for putting it that interesting way and starting that piece of the conversation. To follow up on what you just said, does the Voting Rights Act do the opposite of what this gerrymandering in South Carolina does? That is, does the Voting Rights Act mandate that lines be drawn to create Black majority districts?

Ari Berman: Yes. Well, that's the silver lining here is that this case was not decided under the Voting Rights Act. It was decided under the 15th Amendment of the Constitution. Now, the Supreme Court has interpreted the Voting Rights Act in a very narrow way on multiple occasions. Recently, it did find in both Alabama and Louisiana that states had to draw new majority Black districts in places where there was a large Black population that was underrepresented.

The Voting Rights Act does still have some teeth, not a lot of teeth relative to what it used to have, but some teeth in terms of policing racial gerrymandering. There have been some successes. Even the super majority on the Supreme Court has been open at times to interpret the Voting Rights Act in a more open way. You may see more Voting Rights Act cases being brought before the Supreme Court. That said, the Supreme Court has already gutted the Voting Rights Act on multiple occasions. I'm not going to be too optimistic about the chances for long-term success before this court of Voting Rights Act litigation.

Brian Lehrer: I know people who will say, "I don't like it either way," certainly do protect everyone's access to the ballot and not to be gerrymandered and to powerlessness, but why guarantee any group, racial or otherwise, certain kinds of districts despite everything about American history discrimination against Black?

Ari Berman: Well, you're not guaranteeing anyone any kind of set representation. What you're saying is there can't be dramatic underrepresentation. In a place like Alabama, which is a third Black, or Louisiana, which is a third Black, and there's seven congressional districts and only one has a Black majority, that's a severe underrepresentation. What even the conservative majority in the Supreme Court is saying is that kind of underrepresentation mixed with all of these societal and historical barriers lead to a need to provide greater equality in the voting process.

You can't ignore history here, Brian. We have to remember. There's a whole history of disenfranchising people, particularly Black voters in the South. That's not something that you can remedy overnight. There remains this legacy of underrepresentation in the South in particular when it comes to race and political power. That's something that still needs to be remedied today.

Brian Lehrer: Peter in Huntington, you're on WNYC. Hi, Peter.

Peter 2: Hi, Brian. Thanks for taking the call. I guess I'm looking at just the basic assumption underlying gerrymandering that African Americans are going to vote Democratic. I have a problem with the assumption or maybe inclusive of current polling that a lot of this started in the South with Democrats. I think the African-American population hasn't been very well-served there. Why are we starting with assumption that all Blacks want to vote Democrat and, therefore, this is a problem? I think they vote like everybody else does.

Brian Lehrer: I understand and make individual choices as individuals, but I think the premise here when a party is looking at how to draw lines to its advantage is to look at how people have been voting in recent elections. Ari, correct me if I'm wrong.

Ari Berman: No, that's exactly right. It's not an assumption. They're looking at voting data. They're seeing that in places like South Carolina, African Americans are the most reliably Democratic voters. Therefore, they're trying to achieve a partisan advantage by moving African Americans around in a way that's going to be beneficial to Republicans. That's not an assumption.

Brian Lehrer: It's what it is.

Ari Berman: It's what it is whether you like it or not.

Brian Lehrer: If there was more division of how Black voters in South Carolina were voting for Congress, then the whole conversation would be different.

Ari Berman: Sure, but Black voters are making a determination that they don't want to vote Republican. You can argue whether they've been better served or not by doing so, but they're making their own decision that we would rather identify with a Democratic Party than the Republican Party.

Brian Lehrer: Peter, thank you for asking the question. Addressing it head-on is clarifying. Here's that question that I said earlier. I was going to ask you about whether this matters less than we might think. Overall, according to Ballotpedia, which I think is an authoritative site, I looked it up this morning, the proportion of Republican to Democratic seats in the House pretty well tracks the proportion of the national popular vote for each party. Listeners, follow the math on this. It's not that wonky.

In 2022, the Democrats got 47% of all House votes nationally and they won 49% of the seats. It about matches. Republicans won 50% of the national vote and they won 51% of the seats. The proportion of seats matches the proportion of votes for each party nationwide. According to the chart I saw on Ballotpedia from over time, it tracks very well in almost every election this century. That could make it seem like it's hard to argue that either party is redistricting its way to control of Congress. I'm curious if you've looked at it in that way and if you interpret the numbers any differently.

Ari Berman: I do think the results in 2022 were more fair than in the past. There have been elections, for example, in recent decades in which Republicans have not gotten a majority of the vote for the House but have won a majority of seats. The problem, Brian, is that there's been redistricting since the 2022 election, most notably in North Carolina, where Republicans drew a new map that's going to give them three to four new seats in Congress.

They're starting with an advantage even though the Supreme Court has ruled in favor of maps that will give Democrats new seats in Alabama and Louisiana most likely. North Carolina still is outweighing that. Then you add the South Carolina decision and Democrats are playing catch-up. Now, interestingly enough, New York had an opportunity to draw a new redistricting map after the court struck the last one down. They didn't choose to gerrymander in the way that Republicans have done in North Carolina.

Even since the 2022 election, there's been new redistricting that has benefited Republicans. The House, by all metrics, is going to be very, very close. It could quite literally come down to one seat. That's why all of these court decisions matter a lot. The Supreme Court, first by just delaying ruling on this case and then in ruling in such a way that benefited Republicans, just handed Republicans another House seat at a time when the House is very close.

Brian Lehrer: Malvina in Manhattan, you're on WNYC with Ari Berman. Hi, Malvina.

Malvina: Hi. Thanks for taking my call. Let me turn off my radio. There is Supreme Court precedent in other areas. I'm thinking about discrimination against women that says that you don't necessarily look at the motive for doing whatever it is you did, but did you look at the result? If the result is discriminatory, then it's a violation of the law. Those are different laws, but isn't that relevant to this case?

Brian Lehrer: Ari?

Ari Berman: Yes. That actually is one of the things that is an issue in this case because, basically, what Justice Kagan said in her dissent is that the Supreme Court is now going to essentially require smoking-gun evidence of intentional discrimination. Lawmakers saying out loud, "We drew this map to disenfranchise or dilute the votes of African Americans or other minority groups to strike these maps down." One of the things that those opposed to civil rights laws have argued for a long time is that you have to show proof of intentional discrimination to strike down these discriminatory voting laws.

Now, that's very difficult to do. Over the years, people who want to do discriminatory things have gotten more sophisticated about it. If you were to require showing some kind of proof of intentional discrimination as opposed to showing that something has the effect of discrimination, that will make it harder to strike down these discriminatory laws. The Supreme Court seems to be moving towards requiring more and more and more concrete evidence of smoking-gun discrimination. That is something that the three liberal justices who dissented were worried about in this South Carolina case.

Brian Lehrer: Right. Malvina, thank you for your call. She raises what is really one of the biggest overarching law and policy disputes, I guess we could call it, in conversations nationally for quite a long time now. Having to do with equality under the law, equality under government policy, equality of outcomes, right? In order for something to be deemed racist or sexist or discriminatory in any way against a marginalized group, does the person or the institution putting forth that policy have to be trying to discriminate against them, trying to hurt them?

Even if there's a policy that's neutral on paper, but it comes out with a big disparate impact that continues to marginalize the marginalized, should that be the standard under which change is mandated? This is one of the biggest conversations that the country has been having. It's maybe a little below the surface, except for people who are paying attention, which is a lot of our audience, but it's a little below the surface because it doesn't necessarily get to a point of law in every case. It's true in the affirmative action cases too, right? If you have race-neutral policies on paper, but they don't come out race-neutral in real life, is that okay? That's what Malvina raised.

Ari Berman: Yes, exactly. The Supreme Court has been very skeptical of these disparate impact tests with the conservative majority. They have basically been moving further and further away from some kind of standard that says that if something has the effect of discrimination, it is discriminatory. Now, it's worth noting that the Voting Rights Act very clearly set that if something does have the effect of being discriminatory, it can be struck down, and that you don't need to show this kind of smoking-gun evidence of discrimination.

Those that have tried to weaken the Voting Rights Act, including John Roberts, the Chief Justice of the Supreme Court, back when he was a young lawyer in Ronald Reagan's Justice Department, a story I tell in my book, Give Us the Ballot, that he has argued and other people like Samuel Alito have argued that you should have to show this smoking-gun evidence of discrimination.

I think they've argued this because they know that it's very hard to show this kind of evidence. Then if you require this smoking-gun evidence for things like voting rights violations or things like housing violations or affirmative action violations, then that will make it hard to strike these down laws. That's one way the conservative movement has tried to target the Civil Rights Acts of the 1960s.

Brian Lehrer: Right. Maybe that's one of the most important things to say before we pull the lens back and talk about some even more enduring trends here from your book that if we think of Justice Alito as the crazy January 6th flag-flying Christian nationalist and we think of John Roberts as the moderate conservative chief justice who tries to keep a certain centrist integrity of the court intact, not on this issue.

Ari Berman: No, not on this issue. It's important to note they are both ideological foot soldiers. They both came out of the Reagan Revolution. They both worked for the Reagan Justice Department. They were both put on the courts to further a very conservative agenda. John Roberts wrote the majority decision gutting the Voting Rights Act. Now, I think they have operated differently in recent years on the court. I think Alito has moved further to the fringes, whereas Roberts is trying to preserve some kind of center of the court. Although under him, the center of the court has moved far to the right.

It's not a centrist court. It's a center-right to far-right court. Roberts has, at times, tried to moderate. Alito has not moderated. They do differ, but I think it's an overstatement. This was a 6-3 decision in South Carolina. Most decisions from the courts are 6-3 decisions. You have six justices who are movement conservatives on most issues marching in ideological lockstep to foster and further a decades-long conservative agenda to use the courts to do radical and reactionary things, which is the story I tell in my new book.

Brian Lehrer: Which we will talk about explicitly when we come back from a break. Ari Berman, national voting rights correspondent for Mother Jones, who has a new book called Minority Rule: The Right-Wing Attack on the Will of the People - and the Fight to Resist It. It's about more than what we've discussed so far. Stay with us and keep calling, 212-433-WNYC.

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Brian Lehrer: Brian Lehrer on WNYC with Ari Berman, national voting rights correspondent for Mother Jones. We've been talking about yesterday's Supreme Court ruling on partisan and racial redistricting. Your new book, Minority Rule: The Right-Wing Attack on the Will of the People - and the Fight to Resist It. You go all the way back to the original voting rights of this country and only property-owning white males had the right to vote time. We're a long way from that in many respects, but your argument is that minority rule persists in important ways too. What are some of the most important to you in 2024?

Ari Berman: Well, basically, the idea that we had an undemocratic system from the start, that excluded a lot of people. Even as the system has democratized, it still remains undemocratic in major ways. In fact, in many ways, it's become more undemocratic. I'll just give you an example. Well, I'll give you three quick examples. One is how we elect presidents. The fact that we have this Electoral College system because the Founding Fathers didn't trust the people to directly elect their president has created an outcome where presidents can lose the popular vote but win the Electoral College.

That's happening more often now than it did over the previous two centuries. Then you take the US Senate even at the time that the decision was made to give each state the same number of senators. This was something that was very controversial. This was interesting to me, Brian, when I researched it. The Founding Fathers themselves had a lot of concerns about the institutions they were creating.

James Madison, for example, who's basically the founder of the Constitution, was very unhappy with the idea that each state would get the same number of senators. He said it would allow a more trifling minority than ever to control the body. At the time of the Constitution in 1790, the country's largest state, Virginia, had 13 times the population of the country's smallest state, Delaware.

Now, the country's largest state, California, has 68 times the population of the country's smallest state, Wyoming. That creates a situation where, routinely, over the past two decades, Republicans have gotten a minority of votes for the Senate but controlled the body over half the time. Then the fact that the Supreme Court is made up of presidents who lost the popular vote and senators who represented a minority of Americans gives the Supreme Court an undemocratic foundation.

Then the Supreme Court has deepened that undemocratic foundation by doing things like gutting the Voting Rights Act, overturning Roe v. Wade in a way that was dramatically out of step with public opinion, making it so that you can't strike down partisan gerrymandering, all of these kind of things. I just give you three examples, how we elect presidents, how we choose senators, how we appoint Supreme Court justices that are legacies of minority rule.

Brian Lehrer: We've talked about the Senate many times on this show, but not every American stops to think about the insane construction that the Senate is. Two senators per state, whether it's California. I got the same examples as you did, checking it out this morning. California with 40 million people or Wyoming with just half a million. Those senators have the same amount of power. We can't say it's unconstitutional because that very thing is written into the Constitution.

Ari Berman: We can't say it's unconstitutional, but we can say that a lot of the Founding Fathers didn't like it. I think that's the important thing. There's been so much talk about originalism and going back to interpret the Constitution as it was intended. If you're going to go back and look at the Constitution as it was intended, you also have to go back and look at the constitutional debates. What James Madison wanted was he wanted the Senate to be an elite body.

The founders said that senators would not be directly elected by the people, but he wanted that elite body to operate on the basis of majority rule. Essentially, he wanted the Senate to be structured on proportional representation because he thought that would maintain the legitimacy of the body. Otherwise, it would be too removed from the people. Essentially, the small states rebelled. They said that, "If you don't give us the same level of representation, we are going to leave the union."

It was basically an example of hostage-taking. The Senate was not a product of great democratic compromise. It was basically the product of pure self-interest. I think it's unfortunate in many ways that we accept the system as it is today as opposed to asking why is it the way it is. That's one thing I tried to do in my book, Minority Rule, was go back and try to explain to people, this is how things became so undemocratic. It wasn't by accident. It was, in many ways, by design.

Brian Lehrer: The way you just described it, though, is there a way that that could actually be looked at as progressive? That is the minorities of that time, meaning the small states, didn't allow themselves to be so marginalized in terms of how much power they would have in the federal government that they said, "No, we're going to engage in non-participation. We're not joining this union unless we have a certain carve-out," which we could think of as progressive today for underrepresented groups, "a carve-out that gives us a certain amount of power in the Congress."

Ari Berman: Sure, but I think the problem with the Constitution is that it often favored privileged minorities, so small states, slave states, white male property owners, as opposed to disenfranchised minorities as we think of them. The founders weren't concerned with the rights of poor whites or African Americans or Native Americans or women, the groups that were excluded for many ways from the Constitution. They were more concerned with privileged minorities.

I think the protection of minority rights is critically important in a democracy. The kind of minority role I'm talking about is an elite, conservative, privileged white minority that is being advantaged to the detriment of historically disenfranchised communities. I think that's dangerous. I also think that if you have a government structured in such a way that these privileged minorities over and over are being given advantage in a way that then hurts the will of the majority more broadly, that goes against the basic idea in the Declaration of Independence that democracy should be based on the consent of the governed.

Brian Lehrer: The reason the Electoral College is undemocratic, many listeners know this, some may not, is that it flows directly from the way the Senate is structured. The electoral votes from each state are, correct me if I'm wrong, the number of House members, which is proportional, plus the two senators, which tilts it toward the small states.

Ari Berman: Exactly. You look at the Senate. Wyoming has 68 times the representation of California in the Senate. Then you look at the Electoral College. Wyoming has nearly four times the representation of California in the Electoral College because the Electoral College factors in the House and the Senate, meaning that both the Senate and the Electoral College are biased in favor of smaller, wider, more conservative, more rural states. The problem with the Electoral College is not just that it shuts out the people and that it doesn't give everyone the same kind of vote. It actually advantages some people over other, including more safely red states over more safely blue states if those more safely blue states are larger and more diverse as opposed to more rural and more white.

Brian Lehrer: Listener asks in a text message, "If we would eliminate the Electoral College and finally just respect the popular vote like in any other country around the world, there would be no more partisan gerrymandering. How hard would it be," the listener asks, "to eliminate the Electoral College once and for all?"

Ari Berman: Well, there's two ways to do it. An easier way and a harder way. The harder way would be a constitutional amendment to abolish the Electoral College, which is very difficult because a constitutional amendment has a double super-majority requirement and needs to get the support of two-thirds of the Congress and three-quarters of the states. At the time of increased partisan polarization, it's virtually impossible to imagine that happening. That's why the Constitution hasn't been amended in any major way for over 50 years.

I think in many ways, our constitution is trapped in an antiquated past. Then there's this thing called the National Interstate Popular Vote Compact, which basically is if states that pledge to appoint their Electoral College vote winner to the winner of the popular vote get to 270 votes, which is what you need to elect a president, they can then say, "We are going to elect a president based on the popular vote winner of the country." Now, this would certainly be challenged before the Supreme Court, but there is a path to changing the Electoral College that does involve not having a constitutional amendment.

Brian Lehrer: That's a political heavy lift too, though, right?

Ari Berman: It's a political heavy lift. It has some momentum in that, I think, we're at something like 209 electoral votes in terms of the states that have joined that compact. There's other big swing states like Michigan that could vote to join it soon. It's a heavy lift. It's a hard thing to do. I do think we have to have this larger conversation about reform because there's no states that have an Electoral College for things like governors, for example. There's no statewide elections that are based on Electoral College. No other country does it this way. It's a direct product of a time when the Founding Fathers did not trust the people to elect a president. I would like to think 230 years later, we've moved past that kind of thinking.

Brian Lehrer: Hope in Manhattan, you're on WNYC with Ari Berman. Hi, Hope.

Hope: Hello there. Can you hear me?

Brian Lehrer: Yes, we got you.

Hope: Fantastic. Thank you so much for this discussion. I was absolutely disgusted yesterday with the voters' decision. I just think the examples are unending of the hypocrisy. They talk about being originalists, but there are cases where they're very happy to disregard the principles because of partisan benefit.

I think that when they delegated decisions about partisan gerrymanders back to the state courts, that was just another example of a specious equity because the fact is that blue states are much more likely to have fairness laws about our maps like New York versus red states. Of course, the red state legislatures want nothing to do with fair maps. In '22, when New York Democrats attempted a partisan gerrymander, it was an overreach for our state laws, which required more fairness and equity. That ushered in the map that actually handed Republicans control of the House.

Brian Lehrer: Right. The Democratic-controlled New York Court of Appeals overturned the partisan-gerrymandered map that came out of the Democratic-controlled New York state legislature. I don't know. Hope, thank you. To Hope's point, how rare is that, Ari, in terms of a check within one party on partisan gerrymandering?

Ari Berman: Very rare. It's pretty ironic that it was really only in a blue state, one of the most important blue states that partisan gerrymandering was struck down. There were other states like Ohio that supposedly had an independent process where the maps were struck down and then Republican legislators just kept overriding it to keep their gerrymandering in effect. I think when the Supreme Court, to Hope's point, decided that they were going to defer to the states on issues like abortion and gerrymandering, they knew what was going to happen.

They knew that red states that have these large Republican majorities were going to interpret things in a way that was beneficial to the conservative cause. It's certainly true if you look at the states that have an independent redistricting process, which, by the way, Brian, I'm for. I think that having a race to the bottom in terms of gerrymandering is bad for democracy, so I would like to see an independent process everywhere. That just gives people a fair shot. The fact is if you look at the states that have done it, they are blue or purple states, by and large, that have done it, and certainly in the places where it has teeth too.

Now, New York Democrats also lost because they underperformed. It wasn't all about gerrymandering. The map was clearly gerrymandering. The independent map wasn't that great either, by the way, so the independent process isn't always better. I do think it's true that if you look at the whole doctrine of states' rights, it is more likely to further a conservative cause than a progressive cause.

That said, I do argue in the book that at a time when the federal government is very difficult to change and the federal constitution is hard to amend, states do offer an opportunity for progressive reform in places like Michigan, where there's been a lot of ballot initiatives passed to do things like ban partisan gerrymandering and expand voting rights that is currently foreclosed on the federal level. That's one opportunity. People are mad about Supreme Court decisions to organize this at the state level.

Brian Lehrer: We'll end with this follow-up question from a listener who writes, "When states gerrymander to align with a national political party, could other states with non-partisan voting maps sue at the national level for being disenfranchised nationally?"

Ari Berman: Well, it's hard for one state to challenge another state's voting patterns. We saw that with the insurrection, for example, when Texas was challenging the voting laws of Pennsylvania. The Supreme Court wasn't too happy about that. I think more importantly is to organize locally. For example, in Michigan, where there was a fair process that banned partisan gerrymandering after 2018, Democrats did very well under the fair maps because you had a situation where the popular vote and the distribution of seats finally aligned as opposed to Republicans getting a minority of votes but a majority of seats.

I think it would be smart for Democrats and progressives to champion a ban on partisan gerrymandering because I think it would be advantageous to their cause more broadly because I think, by and large, Republicans have gerrymandered more effectively than Democrats over the past two decades.

Brian Lehrer: Ari Berman, national voting rights correspondent for Mother Jones, is now also the author of the book Minority Rule: The Right-Wing Attack on the Will of the People - and the Fight to Resist It. Ari, thank you so much.

Ari Berman: Thanks so much, Brian. Always great to talk to you.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come.

 

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