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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. Welcome to day two of the Fall Pledge Drive Edition of the Brian Lehrer Show. Thank you for considering a sustaining membership to support public radio today. We'll talk about that more later. Coming up on today's show, we'll have another episode of our Pledge Week quiz series, is it the truth or is it a lie?

Get three in a row right and we'll send you the new Brian Lehrer Show Pro-Democracy Tote bag that's coming up later this hour. We'll also do our climate story of the week with a journalist who just won a climate journalism award, and attention parents, Dr. Becky is going to be on the show today, and yes, she will take your calls. Dr. Becky Kennedy, for those of you who don't know, is huge on Instagram.

She has a new book too, and she's got this different approach to parent-child behavior interventions that so many people are finding refreshing and helpful. Yes, Dr. Becky on today's show, and we start here. We're in our 30-issues election series with the focus this weekend next on issues of democracy itself. Today, with control of Congress at state, we'll look at whether it's even a fair fight.

For the last decade, Republican-led states have been more successful than Democratic-led states at drawing congressional district lines to their advantage, the old practice known as gerrymandering. Now, it's possible that more people will vote for one party for Congress, but the other party will win the most seats, a minority rule enabled by the present system.

We will look at redistricting and gerrymandering now as part of our pro-democracy series. There is also an important case before the US Supreme Court right now that might make gerrymandering harder to stop so we'll touch on that too. We're very happy to have with us for this Michael Li, Senior Council for the Democracy Program at the Brennan Center for Justice. Michael, thanks for coming on for this. Welcome to WNYC.

Michael Li: Thanks for having me.

Brian Lehrer: Can I ask you first about your job and your job title as we focus on democracy in peril on this show this week and next, what is the democracy program at the Brennan Center and what does it mean to be senior counsel to a democracy program?

Michael Li: Well, the Democracy program is one of our major program areas at the Brennan Center, and we focus on all kinds of democracy issues, whether it's fair courts or money in politics or redistricting or voting rights. Right now, I guess to be senior counsel at the Brennan Center or to be anybody at the Brennan Center right now working in the democracy area it's an all-hands-on-deck moment because we have an election coming up in 19 days. Our elections used to be interesting but hum-drum affairs and everyone now feels like a high-wire act so that's my life these days.

Brian Lehrer: There are parallels between what you're doing and what we're doing. Would you do some basic history for us? I think people have really been enjoying the history portions of the democracy series that we're in. How did the country first decide how to draw congressional district lines? Is it in the constitution?

Michael Li: It is actually not in the Constitution. Congress has the power to set rules for how congressional lines are drawn, but it really hasn't done much in the area other than require the use of single-member districts, and of course, require that states comply with laws like the Voting Rights Act, but it hasn't done things that it could do like ban partisan gerrymandering and the like.

Mostly, the rules for line drawing have been left to the states. States have very different rules for line drawing, and they also have very different processes for enacting lines. For example, California uses an independent commission, and Michigan also uses an independent commission, but in most states, it's still legislatures who draw the line subject to governor veto.

It is a very political process in most states which makes us a bit of an outlier among modern democracies because, in most countries, they have taken the politicians out of the mix and have neutral bodies, whether it's civil servants or bipartisan commission strong lines.

Brian Lehrer: Things wound up so differently this year after the 2020 census in redistricting New York and redistricting Texas, for example, and we'll get to some of that in the implications for the midterms, but are there basic principles of fair district lines that you at the Brennan Center think the country should adhere to? Is there any way for them to be fair to all parties and all kinds of Americans?

Michael Li: I think a good place to start is the standards that were in the freedom to vote John Lewis Act which Congress came close to passing this year. It passed the house and narrowly failed in the Senate. Those include a ban on partisan gerrymandering. You can't draw maps to favor one party or the other to an undue effect. You. It also requires keeping communities together.

Those are some good basic rules, but I think the rules, in some ways, are less important than the process that you use to draw the maps. The real problem in our system is that we have largely left line drawing in the hands of the politicians themselves. That means that they oftentimes start the process, even if there are rules, they have their own unofficial rules in competency protection, maximizing the seat for my party.

Those are the rules that take paramount precedence and so if you have a more neutral map-drawing process, regardless of what the rules are, you will end up with fair maps and that is what we've seen around the country. Conditions for fair maps, courts for fair maps when anybody other than partisan politicians will draw fair maps.

Brian Lehrer: By the way, where did the word gerrymandering come from?

Michael Li: Well, that comes from vice president Elbridge Gerry, I don't know why we ended up calling it gerrymandering, but he was governor of Massachusetts in the 1810s and Massachusetts passed a map that was designed to favor Governor Gerry's party. Many people thought that one of the districts looked like a salamander and so they named it a gerrymander.

Over time, that's been corrupted to be a gerrymander, but that was in 1812, but even before then, the politicians were engaged in gerrymandering. Patrick Henry of "give me liberty or give me a death game" was governor of Virginia when Virginia had to draw its very first congressional map, and he tried to gerrymander the map so that a man named James Madison couldn't win election to Congress. Even the founding fathers were not immune from the pressures of trying to put their thumb on the scale.

Brian Lehrer: Interesting. Let's jump way ahead to 2010. Just like this year, that was a midterm election year during a new president's first term. In that case, it was Obama's first midterm elections. As usually happens, the other party did really well, especially at the state level, and that's what's relevant here because the Republicans in 2010 won the majority in lots of state legislatures. Importantly, 2010 was a census year, and we do the redistricting only once a decade after the census. Can you pick up the story of what happened with redistricting in the 2010s from there?

Michael Li: Sure. As President Obama said, after the [unintelligible 00:07:55] terms, Democrats got shellacked in the midterms and lost control of a number of state legislatures and governorships. That was bad if you're a Democrat by itself, but it also put Democrats way behind when it came trying to draw maps because immediately after that, in 2011, states started redrawing maps and Republicans having won these new majorities in the legislature and in the House, decided to try to lock those advantages in and they really did that.

In North Carolina, for example, which had a roughly evenly divided congressional delegation beforehand, the maps were redrawn so that there would be 10 Republican seats and only three Democratic seats. A state that really is 50-50 where Democrats win statewide and Republicans win statewide, it's really a jump ball every election.

Similarly in Ohio, the map was drawn so that there would be 12 Republicans and only four Democrats, and that held all decade. In the south, you saw similar gerrymandering states like Georgia and Texas in the South as has often long been the case that those advantages really came at the expense of communities of color. It was one of the most aggressive rounds of gerrymandering in the country's history.

Brian Lehrer: In the following election, 2012, as the Washington Post reported it, at the time, Democrats got more total votes for Congress nationally than Republicans did, but Republicans won more seats. They said Democrats got 54 million and something votes, the Republicans got 53 million and something votes, but the Republicans won more seats in the House and were able to therefore have the majority and block lots of the Obama agenda. Is that any way to run a democracy?

Michael Li: It isn't. The amazing thing about those maps is that they really would've stuck for the whole of the decade except for the unexpected shifts that occurred after the election of Donald Trump. When Donald Trump became president, a number of voters who had traditionally voted Republicans and particularly white women in the suburbs started shifting toward Democrats. That enabled Democrats to take back the House in 2018 but had the politics of the country continued more or less as they were in the beginning part of the last decade, it's likely that you would've had a Republican house the whole of a decade.

That is really anathema because we have elections for the house every two years because the framers thought as a mood of the people changes, so should the composition of Congress and state legislatures. Because of the way lines are drawn, increasingly, that is not the case. Increasingly, the Senate is a more volatile chamber. You actually know who will win in the House just because of the way the lines are drawn.

Brian Lehrer: It reminds me a little of the electoral college where we've seen Democrats win the national popular vote, but lose the presidency when George Bush was elected in 2000 and again, when Trump was elected in 2016, are there parallels there?

Michael Li: Absolutely. I think, if the idea is a majority rule, that oftentimes it does not happen with the house. The goal also is, has John Adams said that congress should be an exact portrait or miniature of the people as a whole. That also doesn't happen when you have, for example, a 10:3 map in North Carolina with 10 Republicans and only three Democrats. If you under-represent people of color, it doesn't fulfill the central function of what the house was supposed to be, which is the fairly representative chamber, the exact portrait of the people as a whole.

That's really just because of the way the maps are drawn. Because if you drew maps fairly, there would be a lot of competition in lots of parts of the country, particularly in the suburbs of the country. That just doesn't happen in states like Texas where very diverse districts and the suburbs were broken up and the suburbs, they drew rural suburban districts that stretch hundreds of miles and really in an effort to minimize the at-risk to Republicans.

Brian Lehrer: As we talk about gerrymandering and democracy with Michael Li, special counsel for democracy to the Brennan Center for Justice, you even wrote a piece this summer as the Supreme Court was overturning Roe versus Wade called In Many States Gerrymandering Blocks The Abortion Policy The Public Wants. Now people have been so focused on the Supreme Court and abortion rights. Where does gerrymandering electoral districts come in?

Michael Li: Well, if you take, for example, a state like Texas, which is increasingly a battleground state, there's a good chance that had the maps for the Texas House been drawn fairly and not a gerrymander that you would have a democratic house. Democrats came within nine seats of winning a majority, a chamber with 150 seats. If you had fair maps, it's likely that Democrats could have already won the house or could win it in the future. As a result of gerrymandering, Democrats have to win almost 56%, 58% of the statewide vote in order to win a majority in the Texas House which to put it another way, Republicans can win in the low forties and get a majority of the house.

Had you had a Democratic House, the abortion law that Texas passed, the bounty law, would not have passed because the Democratic Chamber would've blocked it. That's what you would expect in a state that is increasingly diverse, that is very well educated and suburban, and really, doesn't have very radical abortion politics, but yet the legislature that you have there enacts very radical walls.

Brian Lehrer: That is a very different take on Texas than I think a lot of our listeners have heard before. Very informative, very educational. The Senate is even worse in this respect, which we'll talk about on tomorrow's show. Staying with the house, here's the good news. I see that both you and the New York Times have concluded that redistricting reforms over the last decade did produce some results and the new maps that were drawn this year following the 2020 census are fairly representative, or how would you describe them?

Michael Li: Well, overall, the Democrats, the House is in play and Democrats have a path to winning the house. Even in 2022, they're still likely to lose it, but if they do lose it, they have reasonable paths to winning it back in 2024 and 2026. That is largely due to maps that were drawn by commissions or by courts. Right now, if you look at the seats that are competitive in the house according to political or other rating services, about two-thirds of them were drawn by commission's courts or split control legislatures, and only about a third were drawn through Democratic control processes or Republican control processes.

There isn't a lot of competition on these maps. Competition really took a shellacking in the redistricting cycle this time. What competition there is is really commissions in court-drawn maps have left the house in play. Assuming that these maps remain in place, it is possible that they don't. States may retrial them after this election because they don't like how they performed, but assuming they remained in place the house is in play

Brian Lehrer: Texas, which we talked about a minute ago, did some of the most aggressive partisan redistricting pro-Republican for these midterm elections, and by contrast, New York, which a lot of our listeners know had its whole redistricting drama this year with congressional redistricting thrown out by the state's highest court forcing the second primary day that we had in August. That was from districting that was too partisan to favor Democrats. The court, even though those judges were appointed by Democratic governors throughout the maps, and I see you like what the court did in New York, right?

Michael Li: Well, I think the maps certainly that the special map in New York are much fair than the maps that the Democratic-controlled legislature drew. The Democratic-controlled legislature drew a very aggressive gerrymander, really designed to knock out as many Republicans as they could, in part, because Democrats didn't control redistricting in states. They had to maximize what they could get in states like New York and Illinois and they did.

The map drawn by the special master is a lot fairer. Now, that's not to say that it is a perfect map. It was drawn under fairly rushed circumstances because we had a primary coming up and so there wasn't an opportunity for as robust public participation or comment on the maps as would be optimal but the maps are fairer by almost every objective metric than the maps the Democrats drew.

Brian Lehrer: In national context though, New York Democrats said it was like unilateral disarmament if Republican states like Texas are aggressively gerrymandering for Congress in the Republican's favor, but democratic states can't do it because they're blocked by the courts. Is that a wrong way to look at it in your opinion?

Michael Li: I do think it's a little bit wrong. I see what they're saying certainly. If your goal is to make sure that your party wins that is not good. On the other hand, increasingly, what we're seeing is that state courts are willing to step in and that includes justices who are Democrats, justices who are Republicans and strike down maps that were drawn by their own party and to police the process. That's really important because the Supreme Court in 2019 said, "We're not going to do it." The partisan gerrymandering is not a claim that can be brought under the US Constitution, but the good news is that a lot of state courts are stepping in and using their state constitutions to police abuses.

Brian Lehrer: Last thing and something for our listeners to keep their eye on, where does the Voting Rights Act come in? This Supreme Court case right now, maybe no surprise that it's from Alabama, which is seeking to enable what you might call white power redistricting. The case is called Merrill v. Milligan. Can you explain the premise in its relationship to the Voting Rights Act?

Michael Li: The Alabama case, Merrill v. Milligan, involves whether Alabama has to create a second Black district in its rural Black belt region, which is a poor rural area in the center part of the state. Alabama says that it does not have to under the Voting Rights Act because it would violate the state's "race-neutral" redistricting principles. Even though most people think that those principles should give way to federal law, which requires fair treatment of communities of color.

It is an opportunity for the Supreme Court if it wants to further gut and erode the Voting Rights Act, which has already been carved back quite a bit through a series of decisions being in small over the course of the last decade and really could put people of color and communities of color in a bad place. We'll see what the court does.

Brian Lehrer: Separately, we'll certainly continue to follow Merrill v. Milligan during the Supreme Court term, but that's 30 Issues In 30 Days. For today, Issue 19, Is There Any Way To Draw Fair District Lines?? We continue our 30 issues focus on Democracy tomorrow with a show about the Senate called The House of Unrepresentives with some ideas for reform. For today, we thank Michael Li, Senior Council for the Democracy Program at the Brennan Center for Justice. Michael, thank you so much.

Michael Li: Yes, thanks. Thanks as always.

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