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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I'm feeling gerrymandered.
N. Rodgers: Is gerrymander or garrymander?
J. Aughenbaugh: Well, his name, as we will discuss, the former long time ago governor of Massachusetts was Eldridge Gary, but the way it's been bastardized in the finest American tradition is gerrymandered. Yes.
N. Rodgers: Before we go on, can we mention, so we know that we have had a series of court [inaudible] , and that is coming back next week, but we wanted to bring this up as an episode this week because this is going on in Virginia right now.
J. Aughenbaugh: It's in the news.
N. Rodgers: It's not just in the news. It is in your face in the news. This is beyond people's heads in Virginia. We wanted to talk about it a little bit.
J. Aughenbaugh: For rest of the country. For our international listeners, if you want a snapshot, a slice of American political life, you need to listen to this episode because there is some stuff going on in American politics in regards to the drawing of voting districts, that will boggle your mind, but it gives you a really good taste of the state, the condition of American politics early 2026.
N. Rodgers: First thing we do is we're going to lay just a tiny piece of groundwork for you, which is that the United States Constitution, there's only one number that is required to be counted in the United States Constitution. That is the number of people in the United States and where the heck they live.
J. Aughenbaugh: Yes.
N. Rodgers: The reason that you have to count that number that's called the census. The reason you have to do a census is because that determines the number of people who go to Congress from that state. If a whole bunch of people pick up and move, as has been done in the past, from one state, say California to another state, say Texas. We've seen some movement there, California may very well lose one representative, and Texas may gain one. I don't think they did this time, but it may happen over time. Enough people moved to, was it Wyoming or North Dakota this time that they got a second representative, which is huge for them, huge. In a state where you have 855,000 representatives, it probably matters less than in a state where you had one, and now you have two.
J. Aughenbaugh: Yeah, listeners, the best example of this is early on in the 20th century, there were a whole bunch of people in states in the North, but as manufacturing jobs left those states, many of those jobs, relocated to Southern states. Where did a lot of American people go? They moved to southern states, and you saw this migration of a population leading to Northern states like Pennsylvania, Ohio, Michigan, Illinois, lose representation in the house whereas Southern states like Florida and Texas and North Carolina, they gain seats. This is what we're talking about.
N. Rodgers: For our foreign listeners, there are 435 seats in the Congress.
J. Aughenbaugh: Yes.
N. Rodgers: What we're talking about is the fight over those seats, which each states get those seats. There are 100 seats in the Senate that never change. There are two per state, regardless of the size of the state. Texas has two and Delaware has two.
J. Aughenbaugh: Has two. Correct.
N. Rodgers: That's Rhode Island, the smallest one. Everybody has two. Senate is not part of this issue. This issue is only in terms of congressional districts. That's because you are trying to divide out the 435 to be divided out among the 50 states by the population. That's called people's house, because that's literally x number of people represented by each individual in this. With the caveat that every state has at least one. Even if they don't have a huge number of people, they have to have at least one, but they don't have to have more than one.
J. Aughenbaugh: You have the census and then after the census count is announced, and then the states are told how many representatives they have in the House. Typically, what each state then does is called redistricting. If you are a state that has lost a seat in Congress, you would have to change your districts in which your population would vote for their representative in the House of representatives. Historically, this would occur a year or two after the census. Typically, so for instance, if a census was done in 2010, typically, most states would do their redistricting in 2011. Some states, if it's a little bit longer, it will bleed into 2012, but you would basically know for the rest of that decade, what would be the congressional districts within your state, and you as a voter would know what district you lived in.
N. Rodgers: If you're in Virginia and you vote every year, it's important to know what district you live in because sometimes you vote on big things, sometimes you vote on small things. Side note, California has 52 districts, 52 representatives to the federal.
J. Aughenbaugh: For the House of Representatives.
N. Rodgers: House of Representatives. Virginia has 11. That's how population works and how mathematics work to get you your number of seats in Congress. I'm not California's I'm just picking the biggest one to talk about there, but Virginia has 11. That's the background.
J. Aughenbaugh: That's the background.
N. Rodgers: The base thing that you need to know before we now discuss what is going on with mid decade gerrymandering, which is an almost unheard of thing in American history. It's not very normal to get to 2025 and have somebody start redistricting.
J. Aughenbaugh: Why is this occurring? Well, when President Trump won his second term in 2024, midway last year in 2025, he went ahead and put pressure on a number of states that are controlled by the Republican Party to do a mid decade redistricting. His argument was, if we more effectively gerrymander the districts within those states, did I say something wrong?
N. Rodgers: No, you didn't. I have my hand raised because I want you to explain how the district.
J. Aughenbaugh: I'll get to that.
N. Rodgers: Lobster shaped districts.
J. Aughenbaugh: What I first wanted to go ahead and do is explain how we got here. Trump went ahead and said, to a number of Republican controlled states, I think we should do a mid decade redistricting that would more effectively create districts to create Republican leaning or Republican safe districts to increase our chances of maintaining control, majority control of the House.
N. Rodgers: To widen the margin, between where they stand now and giving them more Republican seats in the House if they can get them.
J. Aughenbaugh: What is gerrymandering? Gerrymandering, this is the standard definition that political scientists use. It's the deliberate manipulation of electoral district boundaries to favor one party group, or specific elected officials. Listeners, as Nia mentioned a few moments ago, this all originated in 1812 in Massachusetts, when Governor Elbridge Gerry or Gary, I think his name was pronounced Gary, but again, it's the United States. It got bastardized over time. Created a salamander shaped district that would help the Democrats maintain control in the state of Massachusetts.
N. Rodgers: Although in 1812, it was the Democratic Republican Party, which if that doesn't confuse you, I don't know what will.
J. Aughenbaugh: Yes, the Democratic Party originally was known as the Democratic Republican Party. They got rid of the Republican part in the 1820s.
N. Rodgers: What you do is you manipulate the lines that are used to draw district, and that's just basically where you go to vote. That's how your district is drawn. You manipulate those lines to create concentrated areas of Democrats, concentrated areas of Republicans, because what you're trying to do is make the concentrations of the opposing side smaller. You're cramming more of them into a tighter area if you can, or into one district so that all the other districts can lean in your favor direction.
J. Aughenbaugh: That's right.
N. Rodgers: That's the goal of that.
J. Aughenbaugh: Yes.
N. Rodgers: If people think it's new, like Aughie said, it's been going on since 1812. It's been going on since almost the beginning of the United States.
J. Aughenbaugh: American history. To be very clear, both political parties have done this over time. For instance, in Virginia, where Nia and I both live and work, from the end of the Civil War through the 1970s, voting districts in Virginia were so gerrymandered in favor of the Democratic Party that it was an anomaly to have a single Republican representative of any voting district in Virginia. Conversely, there were other states, particularly in the North or out West that were so gerrymandered that only Republicans were elected to represent a state citizens in the House of Representatives. Both parties have done this. Now, the reason why we're bringing this up is that Donald Trump asked a number of Republican controlled states, last year to engage in mid decade redistricting. Again, this is unusual. Why? Because redistricting is a burdensome, onerous process. It requires typically in most states, it's done by their state legislature. It occupies a whole bunch of time, committee hearings, debates, back and forth.
N. Rodgers: Crabbiness left and right because everybody's crabby about it. Both sides are crabby about it. You're stomping us into the ground. Then the next time you're stomping us into the ground.
J. Aughenbaugh: Yes, but nevertheless, a number of Republican controlled states did what he requested. For instance, Texas almost immediately did it. Then you had Missouri. Then you had Ohio. Florida has done it once. Florida is considering doing it again this year. Nia, your home state of North Carolina has done it.
N. Rodgers: Did it.
J. Aughenbaugh: What was noteworthy was in Indiana, the I think state Senate majority leader refused to have that part of their state legislature do it. Which led Trump to go ahead and call him out on social media like multiple days.
N. Rodgers: Probably with some capital letters involved.
J. Aughenbaugh: Yes, I do believe he shouted. In response to you.
N. Rodgers: Wait. The thing is in Texas, because Texas was the first state to do this. In Texas, there are cities in Texas that are heavily Democratic.
J. Aughenbaugh: Yes.
N. Rodgers: Would have voted heavily Democratic. What you do is you isolate them so that you either carve out more district or you carve out bigger districts that are Republican, so you bunch the Democrats together.
J. Aughenbaugh: There are two standard techniques for gerrymandering. One you've already described. It's called packing. You concentrate your opponent's voters into a few districts to reduce their influence in other districts. For instance, in Texas, you draw a district that basically puts Houston as one or two districts.
J. Aughenbaugh: Why? Because the residents of Houston are overwhelmingly Democratic. You shove as many of them into a few number of districts to minimize their impact in surrounding districts.
N. Rodgers: They can't influence. They can only influence one district. There are 38 seats in Texas, 25 are Republican and 13 are Democrat.
J. Aughenbaugh: Yes.
N. Rodgers: Because you've concentrated the Democrats. What's the other way?
J. Aughenbaugh: Or the other method is fracking. Packing or cracking. Cracking. You spread opposing voters across many districts to prevent them from forming a majority in any of them.
N. Rodgers: You take Houston and you make it six districts instead of two. But you attach a bunch of rural parts to those six districts, and now you've weakened or thinned out the Democratic influence.
J. Aughenbaugh: That's right. I want you to remember cracking because when we get to the current controversy in Virginia, that's what the Democrats are using. They're using cracking and in one situation, hacking, but they use cracking a lot. In response to these Republican controlled states, a number of Democratic controlled states decided to respond.
N. Rodgers: Yes. They responded with, "Oh, no, you didn't.".
J. Aughenbaugh: No, you didn't.
N. Rodgers: That's what they responded with. They're like, "If you can do it, we can do it."
J. Aughenbaugh: We're going to do it. California New York, Illinois, and Maryland have all done mid decade redistricting where they have gerrymandered their states in response to what the Republican controlled states done. What we're now seeing in our home state of Virginia, late last year, the Democrats won a series of elections in Virginia. They won all three of the statewide elections, governor, lieutenant governor, and attorney general. They have solid majorities in both houses of the state legislature. They said then, and they're following through with it now, Nia, they are amending the Virginia Constitution, and they had to because Virginia earlier this decade, created a bipartisan redistricting commission whose purpose was to take politics for explicit gerrymandering out of Virginia's redistricting process. That was an amendment to the Virginia Constitution. Now they're trying to amend the Virginia Constitution to allow for mid decade redistricting in response to what these Republican controlled states have done. If the amendment to the state constitution is approved, and the vote is in April, but early voting has already commenced. The Virginia state legislature has already announced the map that they will approve to redistrict Virginia.
N. Rodgers: Now, if you look at the map.
J. Aughenbaugh: Hold on. Let's get the current situation. Currently, as Nia you mentioned, Virginia has 11 representatives in the House. Six are controlled by Democrats. Five are represented by Republicans. In the proposed map, what would be the ratio, Nia?
N. Rodgers: 10-1. Ten Democratic districts to one giant Republican district that would be what most people in Virginia think of as rural Virginia, which is most of Southwest Virginia.
J. Aughenbaugh: It would run basically right on the border of West Virginia from northeast Virginia the whole way down to the junction of West Virginia, Kentucky, and Tennessee. That would be the only Republican safe district in Virginia. Now, the statewide referendum, as I pointed out, is scheduled for April 21st. Early voting has already begun. This effort by the Democrats has been heavily contested. A lower court judge in Virginia declared it unconstitutional. However, the Virginia Supreme Court has overturned that ruling and has allowed the vote to proceed while it considers the legality and constitutionality of the measure, which, by the way, will become moot once Virginians go ahead and do what by April 21st, Nia?
N. Rodgers: Vote.
J. Aughenbaugh: Vote on amending the state Constitution. Right.
N. Rodgers: Here's the thing.
J. Aughenbaugh: Yes.
N. Rodgers: I have many feelings about this because my first initial feeling is basing anything on the 2020 census is a fool's errand because the 2020 census is known to be the worst census that we have ever done since the history of censuses have begun. 2020 was terrible because if anybody doesn't remember, that was COVID. Trying to figure out who lived where and how many people and nobody would open their doors and nobody would talk to census people. It was a thing. It was a huge thing. There's this tiny little asterisk in all of the tables about census that says, "The 2020 census is weird." That's the asterisk. The asterisk is weird. Going on those numbers alone, I think is a terrible idea. That's my first problem with this. My second problem with this is I don't like mid decade. This is just not when we do it. This is not our historical precedent. I don't like that the states cowed to the president. I don't like that then the Democratic states are like, "Oh, no, no, we're not going to let this stand either." I don't think two wrongs make a right. I think the states that initially caved to Donald Trump were wrong. Then I think the Democratic states that are caving to that are wrong. There's a lot of wrong to go around here. But also, I'm a little frustrated with the courts, and I wanted to ask you about this or ask you to elaborate about this because I know that the Supremes have said, "We don't get into the political questions, we get into the civil rights questions." What the South wanted to do originally with redistricting back in the day, back in the Jim Crow day, was to put all its black voters in one area, so that you would disempower them from having any real influence in the rest of state government. Let's go with the Virginia's 11. If there were one Black district and 10 white districts, Black people would be completely disempowered in Virginia, which the court long ago said, "No, no, no, no, no, you can't do that." You can't district on the basis of race because it's not acceptable to do that. It disenfranchises those voters.
J. Aughenbaugh: It violates the Equal Protection Clause of the 14th Amendment.
N. Rodgers: But they have long said, if it's a political thing, we're staying out of it, because they tend to say that about all the political issues. If they can point to a political aspect of something, they're like, "Oh, that's political. That's not us."
J. Aughenbaugh: Before we get before we get to the Supreme Court rulings, I want to go back to gerrymandering for just a couple moments. Gerrymandering, I think Nia, you and I both have significant issues with gerrymandering. First of all, it basically flips democracy on its head, because in democracy, the theory is the voters get to pick who represents them in government. But with gerrymandering, you have elected officials growing districts, so they get to pick who their voters will be.
N. Rodgers: They get to stay in power.
J. Aughenbaugh: That's one of the criticisms of gerrymandering. Two, it typically reduces competition. If you gerrymander to create safe districts for your party, that means you're basically disenfranchising members of the public who might vote for the other part. For instance, Nia.
N. Rodgers: John Boehner's district, who would ever have run against John Boehner in his district? Why would you even bother?
J. Aughenbaugh: I joke all the time. If you're a Republican and you live in the city of Richmond, the city of Richmond is so badly gerrymandered that there is no chance that you will ever see a Republican represent you in Congress. Never. Won't happen.
N. Rodgers: I live in Mechanicsville, and all the representation in Mechanicsville is Republican.
J. Aughenbaugh: By reducing competition, now you're increasing polarization, because if you are running for Congress in a competitive district, you have to moderate your positions to get support from voters who might be inclined to vote for the other party. But if the districts are not competitive, you as somebody running to represent that district can basically go ahead and just write off the opposition party, what they stand for, what their important issues are, etc.
N. Rodgers: You can write off having to be held accountable publicly.
J. Aughenbaugh: Yes.
N. Rodgers: For any decisions that you make. One of the best things about democracy is if you act up while you're representing your district, you can be voted out the next time.
J. Aughenbaugh: Yes.
N. Rodgers: But that only works if there's enough people in a district to vote you out.
J. Aughenbaugh: Yes.
N. Rodgers: There's no accountability. You don't have to have debates. You don't have to listen to anybody's opinions or thoughts. You don't have to be responsive to the public. You get to do whatever you want to do as long as it falls into the party line of the district that you're in.
J. Aughenbaugh: Then this can lead to voter disillusionment.
N. Rodgers: Which is what I have.
J. Aughenbaugh: Because if you don't think that your vote is going to matter because you might happen to like competition, or you might actually have policy preferences that are different than the overwhelming majority in a gerrymander district, well, why participate. You have absolutely no efficacy whatsoever. You don't believe that the system or the government will work for you. Why bother paying attention? Why bother voting? This hurts trust. Right now, American trust in government is not at robust levels.
N. Rodgers: People trust more in malaria than they trust in the current government. The other thing, too, is if you do this effectively enough, what you will eventually have, and Aggie and I were talking about this off recording, so I'm sorry he has to hear it more than once. I want to say it on recording. What you will have will be states where people will leave because they do not feel that they're represented. Then you really will have all red states and all blue states and that defeats the point of democracy because it defeats the point of robust exchange of ideas. If all you have is a giant echo chamber of we're right, we're right, we're right, you never get the voices that say, wait, you forgot this thing or you missed this point. Because that's one of our strengths as a country is that we bring those viewpoints. When we don't bring those viewpoints, we fail.
J. Aughenbaugh: Because at that point, there's no consequences for your elected officials to basically go ahead and say, "If you're a Democrat in a overwhelmingly Democratic state, you can go ahead and say, well, who cares about the free market?" Who cares about?
N. Rodgers: Being fiscally conservative.
J. Aughenbaugh: Who cares about in conversely here in a red state. Who cares about civil rights for the minority population? Who cares?
N. Rodgers: If they want that, they can move to a blue state.
J. Aughenbaugh: Yeah, because there are so very few of you anyways.
J. Aughenbaugh: I can go ahead and ignore your concerns and know that I'm going to get re-elected.
N. Rodgers: The other thing that infuriates me about it is that I consider myself to be an independent. There are issues upon which I vote more conservatively, and there are issues upon which I vote more progressively. I want the ability to do that. I want the ability to say, I like this thing, and I like this thing, and they don't always go together under the same party. That's why I consider myself an independent. My ticket is rarely one thing or the other thing. I look at individuals. The proposed amendments, I'm usually all over the place because I like one thing and don't like another thing. I want the ability to do that in my voting. I want the ability to say, I really like the Democrat for this position, and I really like the Republican for this position, and I really wish there was an independent for this position. I'm going to write Aughie because I do on every ballot, by the way, I write Aughie for something. But I want the ability to do that, and it curtails that when there is no option for that. When there is no opposition. I don't like it. I get why it's done, and I get why it's done on both sides. Again, not slamming Trump. He encouraged it, but it's also been other presidents of other parties. This happens on both sides.
J. Aughenbaugh: Political parties want to win elections. Why? Because they want to occupy positions of government authority. I get why they do it. I just don't like it. In particular, I don't like gerrymandering. In your discussion of policies. Again, like you, Nia, I'm all over the map. I get asked all the time, Aughie, are you a Republican or are you a Democrat? I'm like, I'm neither. I am a person without a political party. Why? Because there are some policy positions of a lot of Democratic candidates I like, and there's others that I'm like, no, that's just bad shit, crazy. Likewise, we're Republicans, I'm like, oh, I like some of their stuff. Then others, I'm like, no.
N. Rodgers: That's bad shit crazy.
J. Aughenbaugh: Yeah, that's bad shit, crazy.
N. Rodgers: Can be equally applied.
J. Aughenbaugh: Now I'm in the position, I'm like, I want choice. But if you're in gerrymandered voting districts, there isn't a choice. They don't have to moderate their position, to go ahead and appeal to voters like you or me. Because as long as they give what the majority wants, and it's not competitive, they can just go ahead and write me off. Now, I'm not going to get so frustrated.
N. Rodgers: Part of that pisses me off because I just don't want to be written off. But, yeah.
J. Aughenbaugh: I won't get so disillusioned to where I won't participate because you know how I feel.
N. Rodgers: We both are big on voting, 'cause we both want to be able to complain later. That's part of why you vote.
J. Aughenbaugh: I do believe in the mantra. If you don't vote, you don't get the bitch. It's like people who don't come to class. If you don't come to class, then you don't get to critique how I conduct a course. I'm sorry, you got to come. If you show up, then I'm going to go ahead and listen to you. If you don't, save it for another day. But as you mentioned a few moments ago, Nia, a contributing factor to this gerrymandering mess that we're in has been the Supreme Court. On one hand, as you've pointed out, the Supreme Court at times have said that redistricting disputes can be settled by the federal courts. For instance, Baker V Carr, the Supreme Court said for the first time, federal courts had the jurisdiction to consider constitutional challenges to state legislative redistricting plans. That was the first time it didn't happen until 1962. A couple of years later, Wesberry versus Sanders. Court held the constitutionality of congressional districts could be decided by courts. Reynolds v. Sims, this was the big one. This is where we get one person, one vote. Congressional voting districts could not go ahead and be drawn so that some congressional districts represented only 200,000, but others represented 300,000. No. One person, one vote. The old practice.
N. Rodgers: That's the percentage of people who are represented by the representative for that district. You need the districts to be similarly weighted population-wise within a state. If your state has 100,000 people and you have 10 districts, those 10 districts need to each represent 10,000 people.
J. Aughenbaugh: That's right.
N. Rodgers: Not one district represents 90,000 people, and nine districts represent 1,000 people each. It doesn't work like that. It has to be within the state, the districts have to be equally populationally sized, not physically sized, but population-sized.
J. Aughenbaugh: This countered something you mentioned a few moments ago. Southern states that jammed all African American voters in certain districts, and then rural voters got so many more districts, or in northern states. My part of the country. Because political machines were typically in large cities, state legislatures would punish them by giving them very few seats, and giving rural voters a whole bunch of seats. Because you can't trust urban voters, because they're the same idiots that participate in political machines. Whatever your motivation, the Supreme Court went ahead and called bullshit in Reynolds v. Sims. Other cases, districts have to be mathematically equal in population. The Abbott decision, total population is a permissible metric. The total population of an entire state and how you divide that up, as long as you satisfy.
N. Rodgers: Picture Wyoming has two major cities, and so what they're saying is that total population of the state can be a metric. You can say, we have 100,000 people in the state across this, so we need to divide it out.
J. Aughenbaugh: Think about Wyoming. If Wyoming has one large city which only occupies a very small geographical area. But the rest of the state has the rest of the population. Though it may look unusual in terms of looking at a state map. It would be perfectly acceptable to go ahead and have one voting district be a small geographical area, as long as the population within that district was equal to the population in the other district
N. Rodgers: You could have two districts in Wyoming: the city of Cheyenne and the entire rest of the state, and as long as they're equal population that's fine. That was Abbott 2016.
J. Aughenbaugh: Think about my home state of Pennsylvania, Nia. You have effectively two large cities, Pittsburgh and Philadelphia on the opposite ends of the state. The middle part of the state is largely rural and is not very heavily populated. There are multiple districts in Pittsburgh and in the Philadelphia area. Very small districts in terms of geography, but in terms of population, just as large as some of the really large geographical districts in North Central, PA. It looks unusual, but it does comply with one person, one vote. Right?
N. Rodgers: Got you.
J. Aughenbaugh: Now 2015, Arizona created a redistricting commission to do their congressional districts. There were members of the Arizona State legislature who didn't like this because they lost control of the redistricting process. The voters decided this in a state constitutional amendment, and the US Supreme Court said, that's perfectly fine.
N. Rodgers: I don't like redistricting commissions because a lot of times they're partisan. They're enormously partisan.
J. Aughenbaugh: What Nia, you're pointing to is there is a whole bunch of scholarship that says, if you create a bipartisan or non-partisan redistricting commission, you're not going to remove politics. Politics is a fundamental part of redistricting. Because you're ultimately picking winners and losers
N. Rodgers: You're messing with math trying to get an advantage.
J. Aughenbaugh: Let's say, Nia, you've served in Congress in the House for 16 years. A whole bunch of people in the state legislature owe you favors, even people in the opposition party. The opposition party may want to go ahead and do a number on your party, but because they know you and they like you, they might go ahead and create a safe seat just for you. Simply because you are so well known, so popular, and everybody owes you so many favors.
N. Rodgers: You know where all the bodies are buried.
J. Aughenbaugh: How do you get rid of that? That's politics 101. You can't necessarily get rid of that. I'm always skeptical when I hear people say, we'll solve gerrymandering by creating a nonpartisan or bipartisan commission. I'm like, even if you take the partisan stuff out of it, you're still going to have political considerations, which the Supreme Court has said is perfectly acceptable. Here comes the big one. I know you're not a fan of it, Rucho versus Common Cause decided in 2019. What was at issue was redistricting in your home state of North Carolina. The argument was, the North Carolina state legislature, controlled by the Republican Party. Gerrymandered the House districts that a state that is roughly 50-50 or 48-48 Republican and Democrat, with a few odd independent voters like you and me. But had been so badly gerrymandered that it was almost a two-to-one advantage for the Republicans.
N. Rodgers: 14 congressional representatives, 10 of them are Republicans, and four are Democrats.
J. Aughenbaugh: When this case arose, it was nine to five, and it's gotten worse. What the Supreme Court said was, after decades of trying to come up with standards to decide if a gerrymandered redistricting process was unconstitutional. The Supreme Court threw up its hands and said, we can't come to agreement on what would be an acceptable standard to determine if a gerrymandered redistricting process violated the Equal Protection Clause of the 14th Amendment. We are declaring redistricting a political question, and we're going to leave it to whom to figure out this mess.
N. Rodgers: Congress.
J. Aughenbaugh: No, the states.
N. Rodgers: The general Assembly.
J. Aughenbaugh: Yes, the states. Basically, the Supreme Court said.
N. Rodgers: This is too complicated; you work it out.
J. Aughenbaugh: You work it out
N. Rodgers: Because that's helpful.
J. Aughenbaugh: As a result, as a number of scholars predicted, including yours truly, what that was going to lead to was states engaging in even more obvious gerrymandering
N. Rodgers: Which is what it's done?
J. Aughenbaugh: Yes.
J. Aughenbaugh: Now, the Supreme Court also rejected an argument made in your home state of North Carolina in a case that we actually covered in a podcast episode previously. More versus Harper, the Supreme Court rejected the independent state legislature theory, holding that the election clause of the US Constitution does not grant state legislatures exclusive and unchecked authority over federal election regulations, nor does it shield legislative redistricting from standard judicial review by state courts. Could a state court declare a gerrymandered redistrict unconstitutional per a state Constitution's provisions? Yes. That's what North Carolina courts have done. That's what some other state courts have done in other states.
N. Rodgers: That's what Virginia's court is deliberating about.
J. Aughenbaugh: Yes. Now, here comes another big issue about gerrymandering. In this case is Alexander versus South Carolina NAACP from 2024. In a racial gerrymandering case, challengers frequently claim that the state legislature gerrymandered their district because of the race of voters, and that would violate the Equal Protection Clause, which the Supreme Court's been very clear, you can't use race as a criteria for gerrymandering. The problem arises, though, the assumption both political parties is.
N. Rodgers: People of color will vote Democratic more than they vote Republican. Although we've seen the last couple of elections. That's not necessarily been the case.
J. Aughenbaugh: That's right.
N. Rodgers: The courts may actually turn out to be right on that in the very long run.
J. Aughenbaugh: What the Supreme Court said in the Alexander case was that the challengers to the redistricting process have the burden of showing that race was the primary consideration and not political party.
N. Rodgers: They have to assume good faith. They have to assume that it was intended as a political, that it was political machination and not race machination.
J. Aughenbaugh: That's right.
N. Rodgers: Don't accuse me of the wrong crime. I stole a car. I didn't drive it over the speed limit. There's two different things going on here, buddy. Get me for the correct crime.
J. Aughenbaugh: That reminds me of the person who goes in and says, I'm not guilty of murder.
N. Rodgers: I was across the street robbing that guy.
J. Aughenbaugh: I was across town robbing a convenience store. I could not have possibly also been killing that person.
N. Rodgers: I think it's probably pretty fair to say that neither Aggie nor I is a big fan of gerrymandering.
J. Aughenbaugh: No.
N. Rodgers: But we also recognize the political reality of it. Whether we like it or we don't like it. It's going to happen. It's just, how can we make it not so blatantly unfair?
J. Aughenbaugh: Well, I mean, for me, the US Constitution does not explicitly prohibit gerrymandering. In part because again, the framers did not envision political parties.
N. Rodgers: Didn't see that coming, did they?
J. Aughenbaugh: I mean, and we discussed this.
N. Rodgers: But they also had a bunch of political parties. They didn't have.
J. Aughenbaugh: Politics back then was not clearly dominated by two political parties. Many of the country's farmers were vehemently opposed to political parties. George Washington was-
N. Rodgers: Read the Federalist Papers.
J. Aughenbaugh: Read the Federalist Papers.
N. Rodgers: Political parties, we should set them on fire. Yeah, like, no.
J. Aughenbaugh: A heck on your house.
N. Rodgers: Exactly.
J. Aughenbaugh: But if we don't like gerrymandering, I would not actually mind seeing a proposal in front of Congress to get rid of gerry. Add a constitutional amendment where we prohibit gerrymandering.
N. Rodgers: I personally think that what should happen is that there should be no districts. You get 11 representatives based on your population, and the top 11 vote-getters in the state are your 11.
J. Aughenbaugh: It's like a parliamentary system.
N. Rodgers: Top 11 voters, top 11 get it, and they go, and they do whatever. That's what I think we should do. Then that way, we're all in one district. We all have to watch all the stupid commercials, which will make you sad. We probably should put some rules on that. But then it would be rank choice, basically. You just rank them according to which ones you can stand and which ones you can't.
J. Aughenbaugh: It would force us, particularly in a large, diverse state like Virginia to actually pay attention to what are the policy concerns of our fellow citizens in other parts of the state.
N. Rodgers: It would give the coal miners in the western part of Virginia a Hey, no, we understand what you want about clean energy, but what's going to happen to us and our families and our way of life, how are we going to deal with that? How are we going to help those folks to switch over to a green technology?
J. Aughenbaugh: Think about for instance those who live in southwest or Southside Virginia, when they hear their Northern Virginia counterparts, talk about the impact of traffic congestion. There isn't traffic congestion in far Southside Virginia. I'm sorry.
N. Rodgers: I saw the dansel there is not.
J. Aughenbaugh: Maybe Roanoke on I-581 late afternoon. But nevertheless.
N. Rodgers: The night of a game.
J. Aughenbaugh: Virginia Tech game. But it also forced, for instance, people in Northern Virginia to recognize that there are some communities in Southwest Virginia where they have to travel 2.5 hours just to find a hospital.
N. Rodgers: That cutting postal service to them is huge because that's how some of them get medications. It's how some of them get.
J. Aughenbaugh: Poor public schools is not just a city of Richmond problem. Or a Hampton problem. But it's also a problem in Southwest and Southside Virginia. Okay.
N. Rodgers: What you're doing when you're gerrymandering is taking all of that out. You're saying nobody has to care about any of that. If you're not part of the majority in this district, your concerns don't matter. Eventually, across the state, your concerns don't matter, which neither Aggie nor I like because we both like democracy. it's little D format of having to understand your neighbors or care about your neighbors because you need them to understand and care about you. But also, what is up with the states just rolling over for a president, any president. You know what I mean? The whole point of the division between the federal government and the state government is that the state government should be far more responsive to its people than to the president. When Donald Trump says, I want for Texas to do this, Texas should have said, and we want a unicorn. We don't always get what we want in life.
J. Aughenbaugh: Along the same lines, the commercials in this state, Nia, in support of what the Democrats want to do in regards to redistricting, are basically the same kind of argument. We don't necessarily care what's good for all. We just want to go ahead and be able to respond to what's going on in other states at the request of the president. I'm like, screw with the other states.
N. Rodgers: We want to stick it to the man. I'm like, but do you have to do that with me?
J. Aughenbaugh: I live in Virginia. If some crazy people in Florida or Texas want to go ahead and do mid-decade redistricting, that doesn't make it right.
N. Rodgers: Where does it end? Do we now redistrict every year? Is that what we.
J. Aughenbaugh: I would prefer that my elected representatives at the state level, actually, deal with issues not concerning redistricting. You do that after the census and you move on because why you got governing? I want you to go ahead and focus on pocketbook issues. I want us to go ahead and focus on quality of schools, roads. But if you guys are spending time screwing with the state Constitution, so we can go ahead and respond to some chuckleheads in North Carolina or Texas or California. I'm sorry.
N. Rodgers: I don't have time for that.
J. Aughenbaugh: I want them to govern. This race to the bottom just drives me nuts. Instead of aspiring to be something better, yes.
N. Rodgers: I know that this doesn't carry much weight, but Democrats won't always be in charge of Virginia. Because I don't know if they recall, but last year they were not in charge of Virginia. Virginia swings back and forth. You have Tan, you have Youngkin. You'll have Spanberger. Then you'll have somebody else. Like this whole thing of we're doing this now, but it's going to happen again when the next guy gets in and says 10:1 Democrat to Republican does not represent the will of the people because I am a Republican governor, and I want that fixed. All this is doing is setting us up for even harder swings of this pendulum. I'm not a fan of that either.
J. Aughenbaugh: Yeah, and that's particularly the situation Nia in those closely contested battleground states.
N. Rodgers: In the purple states.
J. Aughenbaugh: The purple states of Virginia.
N. Rodgers: Texas isn't going to have to worry about this next time because Texas is going to have a Republican governor next time and the time after and the time after. Like, Ann Richards was a freak. She was great, but she was not the normal one in Texas.
J. Aughenbaugh: I mean, the state legislatures in California and Texas are going to be so heavily dominated by one political party, and they will be for years. But that's not the case in Virginia. We know this. It's not the case in North Carolina. It's not the case in my home state of Pennsylvania.
N. Rodgers: They should be resisting this urge.
J. Aughenbaugh: Yes.
N. Rodgers: They should be resisting this urge because this is just going to go on and on and on.
J. Aughenbaugh: I still remember think about in Virginia. For over 100 years, Virginia was controlled by one political party, and that slowly changed in the 1970s and 1980s. But then when we got to the 1990s in the first decade of this millennium, the Republican Party regained control. You know what they did not surprisingly, they gerrymandered. They remembered. Political parties never forget. They never forget.
N. Rodgers: Well, what people will say is, oh, well, this sets us up to have a Democratic governor for the duration. I'm like, maybe it does. But what's going to happen is that there will be a super popular either Republican or independent candidate that will move that bar, that will change that. Maybe this is the beginning of a short era of Democrats being in the governor's house in Virginia. But as we know, nothing lasts forever. It just doesn't in politics.
J. Aughenbaugh: Not in politics. No, not in politics.
N. Rodgers: I understand why it happens. I understand the natural human desire to put your thumb on the scale whenever you can. Because you truly believe. The people who are working on this truly believe that this is the right thing to do. It's the right thing for Texas to be this heavily Republicanly district, and it's the right thing for Virginia to be this heavily democratically districted. I get that they are good people who believe that this is the best way. But Aggie and I being GenX and being born cynical. We should make that should be our band name, born cynical. We we're like, but nothing lasts forever. Nothing lasts forever in politics, and nobody ever thought that we'd have a president who was an actor, and then we got Reagan. Things happen. It really is a complex issue. This issue of gerrymandering and whether it's fair or not, I understand that people want to try to counterbalance some of the other states, but I'm not sure we should be in the business of trying to straighten out Texas' problems. Because I don't know if we have enough time to do all that.
J. Aughenbaugh: If I wanted to go ahead and move to California, I would. But I don't want to. I'm going to live here in Virginia. I would prefer us to spend less time on redistricting and more time on actually paying attention to what the public wants and governing. But hey, maybe you and I were wrong, and a whole bunch of Virginians are like, Yeah, let's go ahead and change the state Constitution again.
N. Rodgers: I think that's probably how it's going to go. But I think it's going to be close. I don't think it's going to be a runaway vote.
J. Aughenbaugh: But this 10:1 advantage. Come on now. Almost every estimate I've seen about party preference in the Commonwealth of Virginia. There is maybe a 2.5-3% difference between Democrats to Republicans in Virginia. We're going to have a 10:1, maybe a 9:2 Democratic Party advantage. I'm sorry. I said this in a recent podcast episode. You can't be down my back and tell me it's raining. Because I ain't going to believe you. Anyways, on that happy note.
N. Rodgers: Well, we'll revisit it after April and after the election. After the referendum, to see how it comes out.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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