Speaker 1: Hello, and welcome to this week's episode of the Trip Cast.
Speaker 2: I'm Eleanor Klebanoff law and politics reporter, joined as always
by editor in chief Matthew Watkins.
Speaker 3: Hello.
Speaker 1: Hello, how's it going?
Speaker 4: Pretty good?
Speaker 1: Pretty good?
Speaker 3: We just had our kind of off the recording podcasts
about the Taylor Swift album, so.
Speaker 2: We saved everyone from having to our medium hot takes
exactly which I think for both of it takes really honest,
I haven't listened that closely, but I released watch several tiktoks.
Speaker 1: On the matter.
Speaker 4: Yeah.
Speaker 3: I think tepid is just the appropriate word, all wrong.
Speaker 1: Yes, pepid is the album? Tepid are our tape?
Speaker 4: Yeah?
Speaker 2: Yeah, and come at us if you would like to.
We will defend them tepidly. But sadly, we must turn
back to democracy. This week's episode we are going to
be talking about once again redistricting.
Speaker 1: I am just back from El Paso.
Speaker 2: Last was in al Paso last week for the first
part of a nine day hearing to decide whether Texas
can use its new congressional map in the fast approaching
twenty twenty six elections.
Speaker 1: And how did you find al Paso? I loved El
Paso had. It was my first time in al Paso.
Speaker 2: I discovered people in El Paso don't love it when
you come in from Austin for like two days and
are like, this is a great town.
Speaker 1: Like they don't love the tone of surprise.
Speaker 2: Be be honest, but had great tacos. Stayed in the
lovely downtown hotel, cool beautiful courthouse. Okay, yeah, I'll be honest.
The vibes at the event I was covering a little weird.
Speaker 1: You know this.
Speaker 2: The same plaintiff groups that are suing over this map
and asking the judges to block this map are the
same people who sued over the twenty twenty one maps.
The lawyers defending it for the state are the same lawyers.
They have been locked in this legal battle with each
other for four years now, coming back to the same
El Paso courtroom for the previous preliminary junction hearing and
the status hearings, and just recently what concluded in June,
a month long trial, and I'll passo together and we're
back here again, and I'll be honest, by this point,
everyone's like pretty friendly.
Speaker 1: I was surprised. I'm always a little bit surprised with that.
Speaker 2: With courts, like the lawyers are just you know, they're
not like angry at each other.
Speaker 4: Yeah.
Speaker 3: In my early days, very early days as a journalist,
I covered a lot of criminal trials, and I would
always just sit there and be amazed that you have
like the person who's accused of killing someone sitting at
the table across from someone who is perhaps maybe trying
to send that person to a death chamber, and then
behind them the family of the person they're accused of killing,
and we would all just sort of like sit there
in that humanity and like make small talk about like
where we're gonna get live actually and everything.
Speaker 1: Yeah, and that certainly was them.
Speaker 2: I mean again, like they were all just together in June,
and it was funny like when they all reconvened here
in October. You know, Adam Kircher, who's the head of
special Litigation for the state, who's like handling this for
the state, was over like yucking it up with the
lawyers for the plaintiffs, and like one of them he
was like, you got a haircut, and she was like, oh, yeah,
you know for summer, And I just was like it's fine,
you know, It's like you know, at this point, they're
in it together. It just was funny of like, oh man,
we're all friends. I guess I'm not sure.
Speaker 3: That fcility in government, you know, if we could have
more of that, that might be.
Speaker 2: But obviously a lot to discuss about the hearing, how
it went, and what this all sort of says about
what's going to happen with these maps to help us
understand this beyond just the vibes in the courtroom.
Speaker 1: We are joined by Justin.
Speaker 2: Levitt, who is a professor at Loyola Law School, where
he studies constitutional law, voting rights, and the law of democracy.
He previously served in the Biden administration as the White
House's first Senior Policy Advisor for Democracy and voting Rights,
and previously served in the Obama administration as a Deputy
Assistant Attorney General in the Civil Rights Division.
Speaker 1: Justin, Welcome to tripcast.
Speaker 4: Thanks so much. I'm wonderful to be here with you.
Speaker 2: I have spoken with Justin many times so over several months,
always very helpful in helping us sort of understand the
legal intricacies of like a very very complicated corner of
the law, which I will say, after being in the
hearing for several days, I am no less clear. I'm
no more clear on than I was before that. But
just to sort of start, I mean, the twenty one maps,
that case is proceding sort of what we might consider
like normally right, which is like this is normally with.
Speaker 1: Some interruptions and all that.
Speaker 2: But you know, that's being challenged on constitutional grounds, on
voting rights grounds. Different plaintiffs bringing different claims. They had
this trial. We'll eventually get a ruling on it. What
we're dealing with here at the twenty twenty five maps
is very different. This is a preliminary injunction. They're just
asking the judges to halt the maps temporarily, and all
the concerns are constitutional claims, and just maybe you can
start and sort of explain what the differences between the
constitutional claims and Voting Rights Act claims like generally speaking.
Speaker 4: Yeah, sure, And the only prole I'll have with the
description there is that it's not really normal to still
be fighting over district lines in the middle of a decade.
I know Texas has gotten used to it, and a
couple other states are beginning to have the Texas experience
and getting used to fighting over lines in the middle
of a decade, but the fact that we're here at
all is super weird. Yeah, And the fight over the
state legislative maps still continues. As you point out that
it's still very much live, and a lot of the
evidence that was used in relation to the twenty one
maps is also sitting in the back of the judge's
mind as they deliberate as they hear the claims against
the twenty five map. You're absolutely right that what's going
on right now is a little bit different. It's quicker,
it's sort of the debreviated train, and it's an attempt
to see whether the plaintiffs are probably right enough on
what they'll eventually have to prove to stop the maps
right now, or at least and not let them go
forward and get used in the twenty six elections. You
can't ever take back an election if the elections are
held under discriminatory terms, And so the question is, are
these maps probably illegal and sufficiently probably illegal that the
judge should stop them before they get used in an
election that you can undo. That's the real question. As
you point out, the playiffs have gone forward on constitutional claims,
voting right tack claims are still very much live. And
still very much real. They're just harder to prove. They
require a lot more evidence that require a lot more time.
Voting Right Sack claims are really cumbersome. Some people have
a stereotype caricature of Voting Rights Act is saying you
got to draw districts wherever you find communities of color,
and that's not at all true. You've got to prove
a bunch of stuff. And so the plaintiffs have decided,
in this sort of short abbreviated version that they're going
to move forward on things that aren't easy but that
are slightly easy error so that they can get a
ruling in time. It's really the claims they're pushing right
now are really all about time. And there are two
types of claims. One you tried to hurt us because
of our race. Two you considered race too much without
a good enough reason. And I can get into each
of those if you want, but those are the two
basic claims they're making with a whole lot evidence from
the table.
Speaker 1: Right right.
Speaker 2: So to your point, there may still in the future
be Voting Rights Act violations brought against this map, but
for right now, they're saying to the judges like in
the short term. These are the not ease, not like
lower bar to prove, but like less complex process of proving.
Speaker 4: Yeah, we got a bunch of stuff we want to
talk to about eventually, but let's focus on these two
things for now because they're quicker. That's basically the that's
basically where we're at.
Speaker 3: And the reason we're saying quicker is because, as you mentioned,
just this summer was when they had the actual trial
for the maps that were written in twenty twenty one.
These maps written four years later. We are recording this
on October seventh, which is a month and a day
before the filing period starts for the twenty twenty six elections,
which means you just you know, if these districts which
were drawn to give Republicans five new seats in Congress,
if you are going to block those, you got to
act fast.
Speaker 4: That's right now that filing dead lives can move. Courts
have the ability to push those back a little bit.
They aren't set in stone, but courts really don't like
doing that. The Supreme Court has said be careful about
doing that. The Supreme Court has had a whole other
set of doctrines around making decisions too close to the
final election, and nobody knows exactly what too close is.
And so here the planiffs are basically racing against a
clock where the timing isn't certain. They don't know exactly
how much time is left, so they want to be
sure to get an answer if they can, as quickly
as possible, so that they're sure they be whatever clock
there is right.
Speaker 2: And I think the I mean, the judges on this
case have sort of indicated that they are very aware
of these time constraints, and everyone involved has indicated that
part of that time constraint is not just getting this ruling,
but the idea that this ruling will like be appealed
up to the Supreme Court, and we need time for that, which.
Speaker 1: Just to maybe you talk a little.
Speaker 2: Bit about like how that goes like we will get
some rolling one direction or the other, and then this
goes up.
Speaker 4: Yeah, and exactly what the court does when it goes
up is still a little bit of a question. So
the this is a weird case compared to most federal cases.
We're used to one federal judge hearing most cases. Then
it goes up to the Court of Appeals, where three
judges sort of sit and review, and then the Supreme
Court decides do I want this case or not? Am
I gonna take it? There's a big deal about when
the Supreme Court takes cases, but these cases, weirdly, redistricting
and campaign finance cases are sort of in a set
by themselves. They're heard by the judges that you went
and saw this week, the three judge panel that's a
trial court, and then they're direct appealed. We're playing monopoly,
do not pass go direct appeal to the Supreme Court.
Supreme Court does decide whether it wants the case or not.
It has to deal with it in some way. Now,
normally all of these processes take a little bit of time,
and so you wouldn't expect that the Supreme Court would
intercede right away, but it can, and it can intercede
to say, essentially pause or to come. The Court might
decide that it wants to put the trial court's opinion
on a slow track and hear the appeals sort of
as things normally happen, which would be sort of well
into twenty twenty six. It would mean that the trial
court's decision would stick for the twenty six elections. Whatever
it is whichever way it goes, or the court might
decide that it's going to issue something on what's called
the emergency docket, the shadow docket, a temporary pause of
whatever the trial court does in order to preserve the
status quo before the twenty six elections. Now the court
has done that in seriously controversial ways over the last
couple of months. The Court's taken a lot of flak.
I think has earned itself that flack for how it's
used this temporary pause button, mostly because it hasn't explained
itself very often. It's just pushed pause on a lot
of really important cases from around the country without saying why,
and that's driven a lot of people nuts. It's not
their job. Court's job is to explain, not to just
push pause. But that's an option that they have and
have increasingly been using, and a lot of people are
going to be watching for whether they take that option,
whether they use that option on whatever the trap word
does in this case.
Speaker 3: So can we get in a little bit to the
merits of the case here? I mean, you said there
were kind of two claims that the state was making.
Correct me, if I have these wrong, punished that there
are voters basically who are being punished for their race
in the drawing. And there's these maps and the state
took race into consideration when it need to. You were
in the trial, eleanor, can you help explain what evidence
these plaintiffs brought forward to try to make the case
that this that you know, one or both of those
two things happen.
Speaker 2: Yeah, so, and justin catch me when I go off
track here, but like two concerns and in the like
technical legal definition, right, one is intentional vote dilution, which
is saying black and brown voters have had their sort
of electoral power diluted by being the sort of we're
talking about like cracked or packed into districts.
Speaker 1: And to that they point at the sort of the
original sin.
Speaker 2: The what we have here is like the state is
arguing this was all partisan, which the Supreme Court has
said they cannot step in on.
Speaker 1: Courts cannot block partisan jerry mandering.
Speaker 2: They said, this is all partisan. Donald Trump asked for
five seats. We said we're going to give you five seats.
That's partisan. Anything else after that it was only partisan.
Speaker 3: And they're making that case because basically the Supreme Court
says you can pack and crack people because of their partisanship,
but not because of their.
Speaker 1: Race, right or if you do that, we can't step in.
Speaker 2: The court has said, like that is bad, do not
do that, but it's not a matter for the courts
to resolve.
Speaker 1: We just kind of a put in each camp over there.
But that's fine.
Speaker 2: I'm not so with the question of intentional vote dilution.
The main evidence that they're pointing to to prove that
this was not just partisan there was racial motivation behind
this is this letter from the Department of Justice that
basically told Texas, hey, there's four of your majority minority
districts majority non white districts are unconstitutional because of this
court ruling in twenty twenty four. You need to redraw
them because they are majority non white and you no
longer need to have that as unconstitutional. They sort of
the plaintiffs argue that proves that anything that flowed from
there was motivated by race.
Speaker 4: And they're not. What's really important to I don't know,
it's got this exactly right. What's really important is that they're
not mutually exclusive. So the problem it's not like saying
I did this for partisan reasons means that there's nothing
to see here. We're completely absolved. If you have an
ultimate partisan goal but you use race as the tool
to achieve it, that's also not okay. There was a
case in Los Angeles where I'm setting thirty years ago,
but the judge explained it really clearly. You said, let's
say you're a landlord, and let's say you don't have
any feelings about whether minorities own rent apartments in your
building or not. But somebody comes to you and say,
if you rent to those people, your property values are
going to go down. So you decide not to rent
to any people of color. It's not your ultimate motive
is just to make money. It's just the tool you
use is not renting the people of color. Have you
discriminated intentionally against people of color? Of course you have.
It's obvious you have. And so the fact that the
state's ultimate motive might have been partisan gain doesn't answer
the question about whether the tool they used was intentionally
treating people worse.
Speaker 1: Because of their ace right.
Speaker 2: And that's sort of you know, the state feels like
our partisan goal was so clear, and the part of
the motivation was so clear, and they have pretty aggressively
thrown the letter, the Department of Justice, and even Governor
Abbott for citing the letter under the bus to say.
Speaker 1: You know that was junk the whole time. We all
knew that was junk.
Speaker 3: Well, well, let's let's let's go a little bit deeper
into this, because I think this is one of the
most one of the most sort of hilarious and fascinating
parts of this right, which is of course, how this
all happened, As we have discussed on the show before
at nauseam, is that you know, there started to be
reports coming out from the New York Times and The
Tribune in other places that Donald Trump is worried about
losing the House in twenty twenty six, and so he
is asking Texas to read district in order to give
him more Republican seats and a bigger cushion for this
midterm election the state. There's uncertainty about in reporting from
the Tribune, suggesting that Abbot doesn't really want to do this,
But the Department of US Department of Justice writes Texas
a letter saying, essentially, you considered race too much in
drawing your lines.
Speaker 4: They are illegal.
Speaker 3: You need to do something about that, and Abbot then
not long after that, calls a special session in which
he cites that letter, saying we need to redraw things,
and in which many critics of Abbot's decision are saying, oh,
this is such bs, like he really.
Speaker 1: Just wants to do.
Speaker 2: Right. The Democrats are saying it's a partisan power grab.
The Republicans are saying, our hands are tied. The DOJ
insisting we do this. They have now switched sides on
this matter.
Speaker 3: And now everyone is like, actually, what we were saying
is not true. What the other side is saying is true,
and therefore we should win this legal case.
Speaker 4: Right now, Let's not lose sight of the horrible behavior
by the Department of Justice and all this because I
firmly think that the folks in the Department of Justice
who wrote that letter broke the law. That letter is
hot garbage by any standard. And I don't say that
with pleasure because I've served in that unit of the
Department of Justice. I was in the Civil Rights Division,
and it pains me to see that kind of work product.
But it was sloppy, it was shoddy, at had typos
all over the place. You couldn't tell if they understood
the law or if they were just really misguided. It
was garbage and pretext, And for the DOJ to send
out a letter like that because of the electoral impact
it might have is breaking federal law. So you're right
in that it's kind of a comedy of errors on
the state side about whether they want to believe this
letter or not. But let's not too lightly let the
Department of Justice off the hook for violating the federal
law they're supposed to be enforcing.
Speaker 2: And I think to some extent, I mean, the state
is not going so far as to say that they
broke the law, but the state now in its legal
filings is sort of saying like this was shady, it
didn't make any sense. Everyone knew this letter was just
a legal pretext, and even saying like it doesn't matter
that if Greg Abbott believed that Greg Abbott didn't draw
the maps like Greg Abbott is in a state legislator,
which is quite the thing to say.
Speaker 3: About the governor, right, But he also you know, it
was part of his exercise of power that led.
Speaker 4: To these maps. Right.
Speaker 3: But I mean, it's interesting justin that you talk about
this idea then that it doesn't have to be the
sort of Landlord example you mentioned earlier, because I mean,
let's be honest, it was pretty clear when that letter
came out it was to try to provide the report
political cover. We all should see what was happening here,
which was that they were trying to get five more
Republican seats for to gain a partisan advantage. But what
you're saying sort of is that even if that might
be the case, there still might be legal reasons to
say no, you're actually breaking the Voting Rights Act.
Speaker 4: Here well, and not just I mean yes with the
our attack, but even more on the immediate claims at issue.
If the way you're going to get five more Republican
seats is by intentionally figuring out where the minority communities
are and then splitting those up, that's unconstitutional. That's intentionally
targeting people because of their race to dilute their votes.
Even if the reason you're doing it isn't because of race,
If the reason you're doing it is partisanship, that doesn't
change the fact that you're still targeting people because of
their race. And that's still not okay. And that's part
of the claim I'm sure that they're making this.
Speaker 1: Week, right, which brings us to the other.
Speaker 2: Claim, which is racial jerry mandering, which I'm going to
be honest to the average person, sounds very similar to
intentional vote dilutionship based on race.
Speaker 1: They are very different.
Speaker 2: It turns out racial jerrymandering, and I'm gonna probably quote
you back to you justin, but racial jerrymandering is when
you sort of, like over, when you take race into
account too much in how you draw your lines. And
the example that the plaintiffs are pointy two to prove
this is how many of these districts are fifty point
five percent black, fifty point five percent Hispanic, and now
they're you know, going around saying, oh, we've drawn more
Hispanic districts, more Black districts. A really particularly relevant piece
to the plaintiffs is when Todd Hunter, the state representative
who drew the map, or I'm sorry, Todd Hunter, who
carried the legislation that was of the maps, stood up
and in laying out the bill before it passed, he
went through the racial makeup of every district, you know,
many districts, sort of meticulously documenting the sea VAPP, the vapp,
the racial you know, and that to the plaintiffs is
evidence that they were too attentive to race, which is
a very fine line between being not attentive enough to race.
And this is now where I'll turn over to Justin
to use his driving metaphor.
Speaker 4: Yeah, and this is the way I've explained it in
the past. It's a very fine line if you're not
trying so hard. And there are an awful lot of
states that aren't trying so hard, right that seem to
be caught between these impossible things that don't use race
too much or don't use race too little. You're actually
paying attention. It's not that hard. And driving is how
I know, or how I explain that we can all
do this. So if you are driving, you know probably
it's important to pay attention to how fast you're going,
and so you look at the spedometer from time to time.
You also look at the GPS, and you look at
the road in front of you, and you look traffic
and the weather and the lighting conditions and the temperature
inside the car and what's playing on the radio, and
what the people in the backseat are doing, and the
cars around you, and how much gas is in the tank,
and also the speed and if you do all those things,
like all of us do all the time. You're fine
if you stare at the speedometer exclusively or predominantly to
the subordination of everything else. If you're so fixated on
speed that you don't take your eyes away from the sphenometer,
you're going to crash. Same thing with race, if you
consider race in the mix while you're also considering a
bunch of other stuff like municipal boundaries and communities of
interest in how the districts look and what communities they connect,
it's fine. If you stare at race to the subordination
of everything else, you're going to crash unless you've got
a really good reason. And what the planners are saying
here is if you hit fifty point one percent, fifty
point two percent, fifty point five percent, that kind of
shows you were staring at race a lot like those
aren't numbers that you just coincidentally land on, and you
don't have a good enough reason because nothing made you
do that. These districts were actually performing for minority communities
of much lower numbers. Nobody said you had to overpack them,
which dilutes and bleaches out some voting power elsewhere in
the state, And so you stare at race so much
that you crashed. At least that's Cline's case here.
Speaker 3: So I have a big picture question here about something
that I've been wondering about and would appreciate someone who
actually understands the law to tell me whether I'm completely
off base or not. I wonder a lot about, like
whether what's happening now bears any resemblance Eleanor to a
case you covered very early in your tribute career around
SB eight, the abortion law right where Texas wrote this
abortion law that didn't explicitly ban abortion, but had the
effect of banning abortion, and it went to the courts
and everyone was like, this is so obviously going to
be rejected, et cetera, et cetera. And what we didn't
really I think taken to consideration at that time, is
that simultaneous to that, this very different Supreme Court that
had very different ideas around abortion law than and the
previous precedent that everyone was working around sort of had
their concurrently sites on completely sort of changing how abortion
cases are evaluated. And that law ended up being upheld,
and a few months later, abortion the you know, the
right to abortion as it was interpreted in the Constitution
was overturned and that changed. I wonder if there are
signs that we're doing the same thing here right, which
is that we're basing all these kind of you can't
do this, you can't do this on precedent that was
set by a previous Supreme Court that has very different
perspectives on how this can and should work than the
one that currently exists. And that's, you know, we're essentially
that essentially means we're evaluating things differently than they're actually
going to ultimately be evaluated. What do you think about that?
Speaker 1: Bought?
Speaker 4: Maybe it's not wrong, but the way that's unflimately going
to work out is complicated. So, first of all, I'll
say it is abundantly true that this Supreme Court is
very different from the Supreme Court of a few years
ago even and that it's also true that they have
a case in front of them right now, like literally
right now, about to be argued. I think this week
that drives sort of what happens or what could happen
with the Voting Rights Act. So big deal case for sure.
Two things I think are true. One, the Supreme Court
also had a big deal case on the voting Rights
Act two years ago effectively the same court effectively the
same conditions, and it said, yeah, you know what, the
status quo, the rules were all used to are fine.
Like it actually had the chance to do to change
things in a very real way, the same way that
people were a sort of worried about Dobbs that happened
to Dobbs. Had the chance to do that with Voting
Rights Act two years ago and didn't. And so I
don't think the surrounding conditions have changed over much. Doesn't
mean they won't do something big this coming term, but
there's a pretty good possibility that they take a look
and they say, yeah, you know what, the rules that
we've had, just like they did two years ago, the
rules we've got are essentially fine, even if they do
change things. You are right that this Supreme Court has
a very different take on race than a lot of
their predecessors. But that's not in the direction of wanting
states to use race more. If anything, it's in the
direction of wanting states to use race a lot less.
And the constitutional claims that Eleanor talked about that they're
hearing this week are all about using race more. We're
using race in impermissible ways. And so it's for a
court whose instinct is when you use race in certain
ways in the process, it's bad. It's awful hard to
intervene in a way that allows lots of bad use
of race but also doesn't allow the Voting Rights Act, right,
They're going to have to pick and choose a little bit.
And the doctrines that we're talking about right now, the
ones that are an issue in Olpaso that I don't
orly just spend a couple of days listening to, are,
if anything, sort of the Supreme Court's probably inclined to
dial those up to eleven, not to dab them down.
Speaker 3: It also just I mean, I guess one of the
things I think about here is as something that has
also changed around redisearching is just the technology right there.
It is much easier to achieve your ends without explicitly
thinking about race, right. And so if we have a
Supreme Court that is willing to let you do that
and focus on how much you thought about race and
not the ultimate impact of people of color in the
final decisions that were going to be made, like, does
that give states a lot more leeway to achieve their
partisan goals.
Speaker 4: In the long run, it could those same technological tools
also allow plaintiffs the opportunity to prove that what you
were really doing here was based on ranks. Right. Nope,
nobody thinks that the Texas legislators don't understand the racial
balance of their communities. And to your point, under walk
through the racial composition of a whole lot of districts
right there before passage. But that wasn't news to anybody
in the audience. The tenth of a percent might be news,
but the overall composition of what this district looked like
was news to anybody in the legislature. So it's fiction,
patent fiction to say that the isn't aware of race,
given that the same technological tools that let them draw
superpartisan maps also let other people say, yeah, but did
you have to do that in a way that targeted race?
Speaker 2: Though?
Speaker 4: It actually provides some some CSI like evidence about what
you were how you were going about achieving the partisan goals.
And that's the thing that's going to be really important.
I think in the case that's currently in front of
the court is not the did you it's the how
did you?
Speaker 1: Right?
Speaker 2: And like the plaintiffs have put up their experts who say,
you know, we drew you know, speaking sort of hyperbolically,
but you know, we drew ten thousand maps that achieve
your partisan goals, and you chose one that paid you know,
the version you chose paid too much attention to race.
But this question of who like this is why the
question that the plaintiffs in the state, and today is
a very important day for this, are trying to get
to the bottom of is who drew the maps and
who knew what about the draw of the maps when
it happened. Because the state legislators are claiming that they
did not draw the maps, they knew nothing about the maps,
they did not know the racial they never looked at
any racial data. They were given maps that they then
sent for legal review. They were found to be in
compliance with the Voting Rights Act and the Constitution, so
they pass them. Today the state will put on the
stand Adam Kincaid, who is sort of the GOP's map
drawer in chief. He drew Texas' twenty twenty one maps,
recently drew Terrent County's new commissioner's court map. His role
in this redistricting has been a little bit harder to
pin down there was some original resistance from Republican lawmakers
to say that he was involved. It seems likely that
he was involved, and he will testify today in El Paso,
where you know the state. I presume I'm here, obviously not.
There will be said saying, you know, he'll say I
didn't look at race at all. I just looked at
partisan data and I drew constitutional maps. The plaintiffs will say,
you know, they want to prove maybe lawmakers didn't look
at racial data, but the guy who drew the map
looked at racial data. I mean, just what's sort of
your read on how he fits into the arguments.
Speaker 4: I think that's right. I think this is where the
fact that they've been fighting over this for four years
actually makes a pretty big difference, because the three judges
on this court have heard an awful lot about who
knew what when when it came to the drawing of
the twenty one maps, and they're not going to just
etch a sketch forget that when they're evaluating the latest evidents.
So they've come to we don't know what those conclusions are,
but they've probably come to some pretty strong conclusions based
on an awful lot of evidence they heard about who
was looking at what win, how much they considered what when,
what ways in which they considered what when, and that
even though that was a different process, they're going to
carry that information over to what they're evaluating for twenty
five and I think that background actually makes a pretty
big difference in how they're going to evaluate what they
hear today and for the rest of this hearing.
Speaker 3: Do recent political shifts have any impact on this? I mean,
one thing that has happened between twenty twenty one and
twenty twenty five is the idea that Hispanic voters are
more likely Democratic voters than Republican voters. Has there's been
reason to question that? And you know, the most recent
presidential election, you know, indications that a lot of Hispanic
communities were lurching very strongly to the right. Does that
change the dynamic or the legal argument or the questions
here at all?
Speaker 4: It changes the evidence a little bit. And notice the
way that you just said that if what Texas legislators
were targeting were Republicans, that means something very different than
what Texas legislator we're targeting were Latinos or Hispanics. Because
of the way they vote right, and that that could
well make all the difference in the legal case if they,
using their background knowledge about trends in the Latino or
Hispanic community, said I'm going to move those people in
because they're likely solid Republicans because they're Latino. That's very
different from the likely solid Republicans. So it changes a
little bit of the evidence that the planets are presenting
this week, I think.
Speaker 3: So let's say, hypothetically, this three judge panel, it would
be an injunction. What's the what's.
Speaker 2: The They've been asked to grant a preliminary in junction
and effectively, you know, use the twenty twenty one maps
for the twenty twenty sixth election.
Speaker 3: So what happens if this? Like, what are the options here?
I mean, could they is it basically they use the
twenty twenty one maps, or they use the twenty twenty
five maps. There are other possibilities here. What are the
potential outcomes we could see in the coming weeks.
Speaker 4: There's a very long shot possibility that the court decides
to draw its own maps or use some other expert
set of maps for twenty six The reason I said
it's a long shot is that itself takes a while
to sort through, and they're really running hard against the clock.
So the far more likely choices for more likely options
are either, if there's something really wrong with the twenty
five maps, we use the twenty one maps for now.
And if there's not something really wrong with the twenty
five maps, then we use the twenty five maps for now.
Speaker 1: And I think.
Speaker 3: Sorry, and one other quick thing there, but and then
it's likely to go to the Supreme Court to decide.
But before then, whether that injunction actually sticks before the.
Speaker 1: Election, Yeah, yeah, yeah, ye, yes, yeah.
Speaker 2: I think both sides have intimated, if not set out right,
that they anticipate this going to the Supreme Court. And
we should say, I mean that three judge panel, unfortunately
for our like prognosticating, has not yet ruled in the
twenty one maps. We don't know sort of where they're leaning.
But it is, you know, one judge who and this
is not the only arbiter of how their rule, but
one judge who was appointed by President Obama, one judge
who was appointed by President Trump, and a fifth Circuit
judge who was appointed by Ronald Reagan, So a pretty
politically diverse panel.
Speaker 3: Well, this is a really interesting thing that I had
not thought of until you just said that. But so
the question of whether the twenty twenty one maps are
legal remains up in the air. So there is a
world in which a panel which will eventually find the
twenty one maps illegal could decide to use those maps
during this upcoming election instead of the what potentially more
illegal twenty twenty five maps.
Speaker 2: Well, and this is the state's art, Like, this is
the state is saying like, well, if you think the
twenty twenty one maps are so crap, why do you
want us to be using those for an election? Like
I would say, I'm curious your thoughts. Justin I felt
sort of watching this like this is probably not great
for the case on the twenty twenty one maps to
be saying, for the plaintiffs to be like, we have
found even worse maps.
Speaker 4: Well, I mean there's I think from the plainiff's point
of view, they're going to be good maps, they're going
to be bad maps, and they're going to be even
worse maps. Sure, and it's not crazy to think that
you might not want the even worse maps if you
have a shot at the bad maps and one day
fight for the actual fair maps. And that's I think
that the really sticky situation that Texas has put the
plaintiffs in, and the reason they've been fighting for four
years in court is to have the options at the
moment be at least from the planeff's perspectives bad and
worse and for the Texans perspectives better and a whole
lot better.
Speaker 2: Right, and truthfully, like we talk about this a lot
understandably as like the maps, right, but all of these
claims are about individual districts and individual concerns, and so
you know, there may be ways in which that you know,
you could remediate their concerns in the twenty one.
Speaker 1: Maps that still you know, doesn't look like the twenty five.
Speaker 2: You know, it's like these are ultimately it is a
tweaking of lines. And on the twenty one map, like
right now we're talk about an injunction. Yes, no, but
the twenty one maps, it may look more like you
need to move this here and this, you know, lop
off these weird things you drew and draw this differently,
so you could have two rulings that look very different.
Speaker 1: But I was sort of as just a human person.
Speaker 2: Watching this, I was like, I see the state's argument
of like you know, oh, you hate these so much.
Speaker 1: Until you saw something worse. You know, it's interesting.
Speaker 3: I mean, this is an obvious point, but just I
think one worth emphasizing. I mean, this is a really
big deal for the politics. You know, there are topics
of representation. I mean, you wrote a really great story
about you know, how this could impact people in the
Fort Worth community that would have a very different representative.
But also just I mean, we're talking about five potential seats.
I have some questions about whether all of those seats
will three flip, but three to five potential seats that
could determine the balance of the US House beyond twenty
twenty six, and you know, could determine whether Democrats are
controlling and able to you know, open investigations in a
Donald Trump and you know, provide a check to Republican power,
or whether Republicans will remain in power and be able
to you know, clear a path for him to pursue
his agenda. It's a it's a very granular topic but
with huge, huge implications.
Speaker 2: For the huge implications and I think one of the
most sort of surprising things but understandably legally, but surprising
to hear is how clearly the state has taken that
on as like sort of in saying like, this is
why we're doing this, and they have said, like to
prevent investigations impeach you know, potential attempted to impeachment of
the president, and of course, you know, to encourage his agenda.
But it's really quite overt in making this these parts
and claims. It's clear that they know what the stakes
are and it's clear Democrats do too, Right, the Democrats
don't want this, Yes, they.
Speaker 1: Are concerned about the representation issues. They also don't want
to lose five seats.
Speaker 4: Yeah.
Speaker 2: Yeah, It's extremely complicated, but at the end of the day,
pretty simple.
Speaker 4: Yeah.
Speaker 3: Yeah, does this I mean there's also the question of
other states following Texas's lead, including California. How does this case,
if at all, affect the ability of these other states
to do this.
Speaker 4: I don't know that it affects the ability, but it
sure affects the desire and the fact that we're here
at all is sort of a waterfall that Texas kicked off,
and it's worth making the point. I mean, Eleanor mentioned
this up top, that all of this partisan action is
not okay, it's actually not constitutional. It's just as she said,
the courts have said, don't look to us to fix it.
But this is a little bit like shoplifting. It's still
illegal even if there's not a cop watching the store.
And there's a whole lot of shoplifting going on openly
and avowedly, which means there's a whole lot of Texas
state legislators sort of violating their ow's of office because
they're doing something out loud and quite vocal about it
that violates the US Constitution. And because of that, and
because courts won't step in, federal courts won't step in
on partisan gerrymanders, that's created a little bit of a
cascade around the rest of the country. You mentioned California
has got an election coming up in less than a
month about whether to approve a redrawing of Californian's own lines,
whether to sort of kick its independent commission to the side,
not permanently but temporarily for the next couple of years,
in order to respond to what Texas has done. I
think that in that same vein missouriist readrew its congressional lines,
and there's litigation over that every which way. There are
a couple of other states that have declared they're on
the horizon, even if they're not quite there yet. Texas's
decision to Rerejerrymander in the middle of the decade is
a big deal, and it's horrible for voters of both
parties all the way around. The whole premise of the
system is that if you don't like what your representatives doing,
you have the opportunity to pick a new one. Well,
that kind of gets undermined if who the voters are
that pick their representative, or the way in on whether
they're representative effective keep changing before every election. So there
are real good reasons not to redraw the lines year
after year after year, or regain the lines in the
middle of a decade, and voters know it. Where they've
had the opportunity. In other states where there's the opportunity
to directly change the rules, voters have taken that opportunity,
and they've done it to take the power away from
their own same parties officials. In Colorado, Democrats took the
power away from Democratic legislators to drug the lines. In Utah,
Republicans took the power away from Republican legislators to use
to draw the line because they don't like this game plan.
They think, and they're ready that they deserve representation for
real communities with real problems, rather than just responding to,
as you noted, sort of partisan freakouts at a national level.
Speaker 2: Yeah, certainly one of those things where each side says
to the other, you know, you go first is your fault, right,
this is your fault. And if you lay down your weapons,
will lay down ours, but not until you've laid yours down. Yeah,
well it is you know this. The hearing is expected
to conclude this week. We will get a ruling from there.
We will see you at the Supreme Court probably and
eventually get to know, you know, what the battle lines
will look like for the twenty twenty six election and
the rest of the decade, ostensibly one day.
Speaker 1: Well know, and thank you so much for joining us.
Speaker 2: This was a great conversation and you can get the
trip cast anywhere you get your podcast. We are on YouTube.
Our producers are Rob and Chris, and we will see
you all next week.