A Radical Voter Suppression Tactic

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S1: Hey there. This episode contains just the tiniest bit of salty language. OK, here’s the show.

S2: Ari Berman’s outlook on the world. You could call it a little cynical.

S3: Can I swear on this podcast? Do it. I’m always trying to think of the fucked up thing that’s going to happen next.

S2: To be fair. This is Ari’s job. He’s a reporter at Mother Jones.

S4: I cover attacks on democracy. I cover attacks on voting rights, and usually they don’t say I’m going to suppress the vote X, Y and Z, two or four, 10 years ahead of time. They they the way voter suppression works is you try to surprise people. It’s sort of a stealth tactic. So you don’t know it’s coming.

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S2: Ari came into the studio to tell me about the stealth tactic. He thinks we’re all gonna be talking about next one that could reshape whose votes count in this country for years.

S5: Thank you very much, everyone.

S2: Okay, I’m gonna play this tape. This is July 11th.

S5: OK. Are you a citizen of the United States of America? Oh, gee, I’m sorry. I just can’t answer that question for Ari.

S2: The first sign of this new voter suppression tactic that first surprised me when he saw it back in July when the president gave a press conference, they used to be a time when you could proudly declare, I am a citizen of the United States.

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S5: Now they’re trying to erase the very existence of a very important word in a very important thing, citizenship.

S2: The Supreme Court had just ruled that the 2020 census could not ask about citizenship. It was one of those 5-4 rulings. Close. In other words, the president had spent a couple of weeks insinuating he might somehow fight this decision. And then he gave the speech from the Rose Garden. You do. I mean, you go forward about a bit more.

S3: Yeah. I want you to go forward a bit more, because there is one line that I was today.

S5: I’m here to say we are not backing down on our effort to determine the citizenship status of the United States population at this press conference.

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S2: Trump acknowledged the Supreme Court’s ruling, but then he talked about this workaround. He was issuing an executive order allowing citizenship data to be gathered by the government without altering the census.

S5: This will greatly inform a wide array of public policy decisions. This information is also relevant to administering our elections. Some states may want to draw state and local legislative districts based upon the voter eligible population in this part, the same.

S2: This is where Ari wanted to stop the tape. Why did that moment stand out to you?

S3: It’s one line that could easily be buried as very wonky and technical.

S6: But to me, this was the smoking gun moment from Trump’s press conference, because he’s making clear that he wants this citizenship data for redistricting purposes. He wants to take the data so that districts are drawn to not just include non-citizens. But he says the voter eligible population, that means children as well would not be counted. And for decades, the way districts are drawn is everyone counts. Trump is saying, I want to do something totally different. I want to exclude everyone who is not eligible to vote from counting.

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S4: When everyone saw the headline Trump Dropping Citizenship Question, that was the headline that came out of the press, Gilman’s. I saw a completely different story.

S7: Today on the show, we’re going to tell the story that Ari sees coming. A story about a radical reshuffling of which people count in the United States.

S8: I’m Mary Harris. You’re listening to what next. Stick with us.

S2: As Ari was watching this press conference that President Trump gave in July, he knew right away that if states took the president up on his offer, asked for this citizenship data, it could harm one party more than another. But his Democratic districts, they tend to be younger, more diverse.

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S3: That’s right. So in in July, Trump says, I want to do this executive order so that the federal government will collect the citizenship data, even though it’s not going to be on the 2020 census. And I want to do it for redistricting purposes. So districts can be drawn to exclude non-citizens and potentially children so that that will then make those districts whiter and more Republican, because generally speaking, Democrats represent much more diverse districts that have more children and more non-citizens. Republicans tend to represent whiter districts with more citizens and more older people.

S2: And sure enough, right after Trump unveiled his new executive order, Republican redistricting experts began talking to state legislators about how they could benefit from the new rules.

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S9: Let’s begin with this. Ladies and gentlemen, you are going to be saved. Let’s start with that.

S2: Slate got this audio from a meeting of some of these experts back in August just after Trump’s speech. They’re talking about techniques for drawing district maps, Republican maps with state legislators. They tell these politicians, if you do your job well, you’re gonna get sued. Someone’s going to say what you did wasn’t fair. One expert even encourages people in the room to throw away the notes they’re taking so they won’t be caught plotting your notes from this conference.

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S9: In this workshop, probably be part of a discovery demand. So my advice to you is, if you don’t want it turned over in discovery, you probably get rid of it before you.

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S3: And I mean, if it’s sort of telling because if Republicans were following normal redistricting principles, they wouldn’t be sued. But clearly, there is some sort of deviation from what is considered acceptable standards. Otherwise they wouldn’t be worried about facing all of these losses.

S2: Ari focused in on this one panelist in particular, a guy named Hans von Spakovsky.

S3: Hans von Spakovsky, who is an expert, the Heritage Foundation, an official in the Bush administration, a former member of Donald Trump’s Election Integrity Commission, with a very long record of advocating policies that would make it harder for some people to vote, says outright to these state legislators. You should consider drawing districts to exclude non-citizens. And the reason you should do so is the higher the number of noncitizens in a district, the more likely it is to be a Democratic district. So he’s basically saying that if you change how districts are drawn, it will help the Republican Party.

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S2: He said he actually says liberals do not want you doing this. The higher the number of noncitizens in a district, the greater the chances they’re gonna vote for a liberal. But it can’t be that their outward justification is about preserving white political power. But it sounds pretty close.

S3: If if this is challenged in court, they will probably have a different rationale for why they want to do it. But certainly the stated rationale by Hans von Spakovsky and others is that he believes drawing districts in such a way to exclude non-citizens and potentially to exclude children from counting will help Republicans at the expense of Democrats. I mean, they could say we want to do this for political reasons, but if you look at who’s going to be harmed, it’s overwhelmingly going to be communities of color. If districts are drawn in such a way to not count noncitizens and to not count children, there was a study done by the Leadership Conference on Civil Rights. They found that 55 percent of Latinos, 45 percent of Asian-Americans and a third of African-Americans would not be counted towards political representation. That’s a staggering number of people should not be counted. More than half of Latinos in the United States are suddenly not going to be counted. So this is why I think this is such a big deal, because you’re not talking about excluding a few people or 10 people from political representation. You’re talking about excluding millions and millions of people and entire communities from being counted altogether.

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S2: Well, we should say, though, 21 percent of white people would also be excluded. But of course, they’re the lowest percentage in there.

S10: There’s always going to be collateral damage. Right. I mean, even when it comes to a voter suppression laws, there’s always going to be white Republicans that are disenfranchised, too. There is going to be more of the other people that get hit by this. And so I think Republicans are thinking, yeah, this might hurt white people in certain areas. But by and large, the districts that we want to change are districts that are going to be very diverse, heavily urban districts that are more than likely to be represented by Democrats. And we might lose a Republican seat here. You might lose a Republican. Seat here. But Democrats are going to lose far more seats than Republicans are.

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S2: Can we just hone in on exactly how this would work? Because my understanding, looking at your reporting is that when you stop counting all the people, it means that there are less representatives overall because there are less people that you’re counting to represent. And so because there are fewer representatives, those representatives are going to be dealing with the concerns of more people. And then there will be these people who are sort of there but not counted and and their concerns will probably be drowned out. And I just. Am I understanding it? Right?

S3: That’s exactly right. So the Supreme Court has said that districts need to be roughly equal in population. But if you’re not counting everyone, if you’re only counting eligible voters, that means that districts that have fewer eligible voters have to take in more population. So they have the same number of eligible voters as a surrounding district. So, for example, I told this story from a district in Houston, Texas, that has 850000 people. A state Senate district that’s already a pretty big district. I mean, 850000 people for a state senator, that’s more than most members of Congress represent. Half of her constituents can’t vote because they’re either under 18 or they’re non-citizens. It’s a very heavily Latino district in Houston in the surrounding areas. So what would happen to her is because she doesn’t have enough eligible voters, her district would increase to over a million people. And depending on how you drew the district, her district could either be combined with another Democratic district to eliminate a Democratic district altogether. Or you could get a ton of Republican voters who are eligible voters from a surrounding district into her district so that it’s no longer a Latino majority. And she potentially no longer has her seat. So those are the kind of people who potentially wouldn’t vote for her. Exactly. If you’re taking like white conservative Republicans from suburban Houston or even Ex-urban Houston or even rural Texas, some of these state Senate districts are pretty pig geographically. Are they going to want to vote for a Latina Democrat? Not necessarily.

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S2: So in the end, there’s an issue of not just voters and non-voters having their issues not really represented because their representatives are overwhelmed and there are fewer of them. There’s also the issue of less representation by minorities in the actual statehouses, because essentially the districts will be drawn to favor the white population.

S3: Exactly. There would be fewer minority legislators altogether. One study found that if Texas was to adopt a plan to exclude non-citizens and children from counting towards representation, Latino legislators would have their lowest level of representation since the 1980s. They would literally go for decades backwards.

S2: Ari says the United States has been having this argument about who to count since the country was founded. But the current debate, it really took shape after the civil war with the ratification of the 14th Amendment. Back then, the people arguing to count only voters there were making a kind of civil rights argument. They worried Southern states would get more political power if black residents were counted and then weren’t able to vote. But others said it would be dangerous to exclude non-voters. What about women, children? People who might not be able to participate in the election but still needed representation? So Fourteenth Amendment passes and for congressional districts, just about everyone counts.

S10: And so that seems to at least settle the debate over congressional representation. But then states get around that by doing something else, which is drawing districts that are wildly unequal in population in virtually every state. You had rural legislators with far more representation than urban ones. For example, California had a law that said no county could have more than one senator. So what happened was L.A. County, with six million people, had one senator and then three counties with 14000 people east of the Sierra Madre is in California, had one senator. So six million people have the same level of representation as 14000 people. 10 percent of the public could elect a majority of the state Senate because of the way districts are drawn. So there’s examples I give about gerrymandering today, though. The most extreme example is that in Wisconsin in the last election, Republican candidates for the state assembly got 46 percent of the votes, but 64 percent of the seats in the state legislature.

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S2: That sounds like chump change compared to California.

S10: I mean, that’s really bad. I mean, 40 getting 46 percent of the vote and 64 percent of the seats just seems inherently unfair. But it’s a lot more fair than getting 10 percent of the votes and a majority of seats.

S2: Which is what happened before the one person, one vote cases these one person, one vote cases, they were ruled on by the Supreme Court in the 60s. They established that every person’s vote, no matter where they lived, would be given the same weight.

S10: The composition of the Supreme Court changed in the 1960s. And the problem of population inequality got so bad the Supreme Court could no longer look away. And they came up with this idea of one person, one vote as a catch phrase to say that districts have to be roughly equal in population and are a war. And the chief justice at the time had a famous phrase where he said legislators represent people, not acres or trees.

S2: And the 14th Amendment means that in Congress, districts are drawn based on total population. But the court’s actually never definitively ruled on whether state legislative maps have to count everyone. And this gap is what conservative activists are hoping to exploit. So how did the idea of one person, one vote come up for debate again in the last decade?

S3: It came up again, largely because of a person named Edward Blum.

S11: He is a conservative activist from Texas who founded a group called the Project on Fair Representation to try to challenge what he viewed as unfair racial preferences in public policy. So he is best known for bringing cases challenging the Voting Rights Act and challenging affirmative action.

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S2: Yeah, when I looked him up, I found this ACLU article. They called him The Man Who Wants to Kill Affirmative Action.

S3: And he’s the man that literally did kill the Voting Rights Act because he brought the case, Shelby County vs. Holder, that led to the Supreme Court gutting the Voting Rights Act in 2013. He himself is not a lawyer. So what he does is he finds plaintiffs and then he pairs them with some of the best lawyers in the conservative movement and he pays the legal fees. So essentially, he’s doing the reverse of what the NAACP Legal Defense Fund and other civil rights groups do. Remember, that’s how Brown vs. Board of Education, these other cases were brought. Civil rights groups found plaintiffs to challenge discriminatory laws and then they organize these cases. So he’s like a one person version of that. He’s a one person version of that with some very powerful and very deep pocketed supporters.

S2: When you spoke to Edward Blum, how did he explain his rationale here?

S3: He started thinking about. Changing the definition of one person, one vote. Back in the 1990s when he was living in Houston, Texas, and Houston in 1997, drew four new districts that were supposed to boost minority representation to districts that were designed to be held by African-Americans, to districts that were designed to be held by Latinos. And Ed Blum viewed this as essentially an example of affirmative action in the electoral sphere, because you’re basically saying we’re going to draw these districts for minorities. Did he feel silenced? He felt silenced. But when he dug beneath the surface, he noticed a different issue, which is that the districts that were going to be represented by minorities had far fewer eligible voters than districts that were represented by whites. And he thought that meant that the voters in those districts had far more power because there were many fewer of them compared to the surrounding white districts. And he thought this violated one person, one vote. So he didn’t think he was trying to overturn one person, one vote. He thought he was trying to preserve the original meaning of that phrase.

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S2: So we talked about how President Trump has sort of opened this window to this idea that we’re only counting eligible voters. How is Edward Blum involved in the current push? I mean, he’s not part of the White House. So how how’s he getting involved?

S3: Well, Edward Blum laid the groundwork for what the Trump administration did because in 2014, he brought a case against the state of Texas where he told the state of Texas, you have to draw your state’s Senate districts to not count non-citizens for purposes of redistricting. This went all the way to the Supreme Court. And in 2016, the Supreme Court said you can’t force Texas or any other state to draw districts excluding noncitizens or other populations if they don’t want to. If they don’t want to. If they don’t want to. So if they want to, they left that question open.

S2: But the reason states didn’t immediately start prepping redistricting plans after this ruling is that they didn’t have all the information. They needed citizenship data for a long time. It’s been pretty hard to come by.

S10: That’s where Trump’s executive order comes in. Now, theoretically, states are going to get the citizenship data that could be used to exclude non-citizens and potentially children from counting towards representation. And Ed Blum can go to all of those states and say, now you have the data. And by the way, if you decide to do it, I’ll have your back in court.

S2: He told you he was having phone calls with people from all over the country. Right.

S3: He said that his phone was essentially ringing off the hook from Republican officials or political consultants who are interested in this idea. And he told me five people in five different states had contacted him. Now, this is interesting because no state has officially requested this data. And that’s not surprising to me because this whole fight is going to take place in 2021 when the next census is finished. So the way that redistricting works is we do a census in 2020 and then in 2021, at the beginning of the next decade, legislators take that census data and they draw districts based on it. So no state is going to say in 2020, I’m going to do this. They’re going to be showing your hands. Actually, they’re going to wait until they have the data, until they can draw the maps. But the fact that states are already contacting Blum about this says to me this is absolutely something that Republicans are thinking about in states like Texas. And also state legislators there said we’re hearing a lot about this, too. Democrats said we’re afraid this might happen. And this is something that we’re on high alert for, even though it’s an instant a story that’s really not on anyone’s radar right now.

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S2: Yeah, feels feels a little bit like a thought experiment like this could happen in the future. But do you ever worry that you’re paranoid here?

S10: No, because there’s already been a Supreme Court case about this. There’s already been a major fight on the census about it. We know that Republicans want this data. They’ve shown that the reason the Trump administration fought so hard for citizenship question on the 2020 census is because they want this data so they can draw maps to benefit Republicans politically for the next decade. We know we know going into the next redistricting cycle, Republicans going to do everything they can to try to get a political advantage. And if they believe they can get a political advantage using this, sit at this citizenship data and they have a sympathetic Supreme Court on their side, they’re absolutely going to go forward with it.

S12: The other thing that stands out to me is that this idea of not counting people, it seems fundamentally desperate because.

S13: Part of who you’re not counting is young people who are people who will get older.

S12: And so anyway, you look at it, this is a measure that won’t do you very good for very long.

S13: It’s not about longevity.

S10: I think all of these attempts to try to roll back demographic change come from the same place of desperation, which is this idea that white people are steadily becoming the minority in this country and they don’t like the political ramifications of that happening. And they’re doing everything they can to try to stop or slow demographic change so that instead of whites becoming the minority, they stay the majority. And you see that most acutely in Texas, which is already a majority minority state. So Texas is already the future of America. But the legislature doesn’t look like that. But whites still hold power at every level. And white Republicans in particular, and they know it’s only a matter of time before that changes. But they’re desperately trying to hold onto power. And one of the ways they’re desperately trying to hold onto power is to change the whole nature of political representation. So white people count more than communities of color.

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S2: It’s funny because I was noticing that Texas 2020 census is rolling out right now and Texas has decided to spend very little money in getting people to get out the census. Essentially, California is spending a ton and it really didn’t make sense to me when I saw it. Why wouldn’t you want to count all your people get as much federal money as you can, get as much representation in Washington as you can. But then after I read what you wrote, I thought, oh, maybe this is like a soft launch of this idea that we want to count the people, that we want accounts, not people that are hard to find, who may not want to take the census.

S3: Texas is in spending a little money on the census. They’re spending no money on the census. And that’s guaranteed to lead to a significant amount of people not being counted in that state.

S14: The census determines so many things that determines how $880 billion in federal funding is allocate. It determines how many congressional seats you get, how many electoral college votes you get. And Texas is basically saying we’re okay, potentially losing a congressional seat. We’re okay, potentially losing tens of billions of dollars if it hurts certain people, but not others. And what I think Texas Republicans are thinking is the white areas of Texas, they’re still going to get federal funding. They’re still going to have good schools. They’re still going to have political power. But the people that are not counted in the census, the Latino communities in both urban and rural areas. Those are the people that are going to get hurt here. And we’re okay hurting our state overall if it helps certain people, particularly white Republicans, and hurts other people, particularly Latinos, Democrats and non-citizens.

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S12: That’s such a brutal assessment. I wonder. How you feel so sure of yourself there.

S10: I feel so sure of myself because I pose this very question to Latino Democrats in the state.

S14: And I said the same thing you did. It seems crazy to me that Texas would forego millions of dollars in federal funding. It seems crazy to me that they might lose political representation. And Carol Alvarado. Latino Democrat from Houston said to me, maybe there’s some people they don’t want counted.

S15: She believes that the state has a vested interest in preserving white Republican political power and they will go to any means necessary under the law to try to preserve it. So what we’re seeing with the 2020 census, what we’re seeing with potentially the fight to change political representation. This really gets to how Republicans are trying to maintain political power in the face of really massive demographic changes that are changing American society as we know it.

S7: Ari Berman, thank you so much for joining me. Thanks so much. Mary was great. Ari Berman is a senior reporter at Mother Jones and author of Give US the BALLOT. What next is produced by Mary Wilson, Mara Silvers, Jason de Leon and Danielle Hewitt. I’m Mary Harris and I will be back in your feed tomorrow.