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tv   Federalist Society Hosts Discussion on Redistricting  CSPAN  April 2, 2021 10:05pm-11:09pm EDT

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>> when companies use profit to measure success in the medical arena, the problem is that we cannot expect that companies to care about us. we cannot expect them to sublimate and make less money because they care about our health. they have shown us. they don't care about our health. that government is the people we pay and expect to care about our health so the government should be raining in these companies. the government should be forcing them for the public needs and it is not. is one hou.
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>> i think we are all set to go. good afternoon. i am an executive board member >> okay i think we're all set to go get afternoon i'm executive board member of the chicago lawyers chapter the federal society we are proud to present today's panel. election law has certainly then front of mine in the collective conscience over the past few years the 2016 presidential election in one - - election had challenges across the country 2020 by even more challenges two oh election integrity laws because of covid-19 than postelection disputes over vote totals and voting machines and to certifyhe the election. these controversies had untold hours of political and news media many landed inou the
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federal courts now addressing election law and of course various protesters disputed and disrupted certification efforts. directly although briefly in the halls of congress i can be dangerous. but luckily these incendiary fights over the process were decided just in time to begin the process of redistricting. every ten years after the national census the states reapportion their share of the representatives commensurate to the states population and mr. and new congressional district to reflect the new number of congress persons against any constitutional personges such as one one vote. in recent years there is been increasingly vocal calls too restrict gerrymandering with the intentional drying of districts to benefit one political party over another. many critics have taken such
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claims to thehe federal courts challenging the constitutionality of redistricting efforts. recently however the united states supreme court the challenges of gerrymandering cannot be fought in federal court but states have considered or instituted non- partisan proposals to limit the practice. hr one easily pass for the house is eager to mandate reforms nationwide but the 2020 census complete remains to be seen what effect these changes will have. the expert panelist is ready to discuss the timely topic of the past present and future. during the talk if anyone has a question for the panel please submit that through the zoom q&a function and the automator will do their best to answer these questions. that i'm honored to introduce our moderator professor of law
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and northwestern university school of law. professor is a nationally recognized expert on campaign finance judicial elections and research has been published widely in leading law journals new york times "washington post" forbes and many more. the recent work focuses on partisan gerrymandering party in campaign finance unelected judges and after citizens uniteded and a sore loser laws that restrict losing candidates to run in the general election. receiving undergraduate from university of chicago and a technical editor from our review and also received a phd from harvard and a masters from illinois after law school the professor clerked for
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judge con on the federal circuit private practice. thank you for joining us. >> thank you so much into the federalist society of chicago for organizing this great event. it is the perfect time to have this terrific panel as weec approach the redistricting cycle because a number of events combined to make this what i think will be the most interesting redistricting process of my lifetime. as mentioned, we are gearing up for the once in a decade reapportionment redistricting process of the 2020 census to update and redraw the districts for federal state and local offices all across the country. a number of changes weof have seen over the last decade that make this the most unpredictable and interesting one in a long time. at first this cycle will be the first cycle since the 19
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sixties without the department of justice reviewing discriminatory acts. this is all after the supreme court decision in 2013 which struck down the coverage formula. alsoso the first cycle since the 1980s there is no chance of constitutional oversight with federal courts on gerrymandering. it's true they never really intervened until recently. but the supreme court decision with common cause absently close the door on federal constitutional review and extreme partisan gerrymandering and then had a part to litigate those cases. and then among other things the first redistricting cycle after the supreme court's most recent racial generational
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which ruled out over the last ten years. have a very different legal context. this all occurs with hyper partisanship dominates american and politics and democrats were not really ready to fight and they were caught by surprise in the last 2011 cycle we've seen more commissions in terms of state-controlled redistricting processes 2011 when republicans made major gains s just to make them more complicated, new significant federal legislation like the john lewis advancement act and the hr one bill currently considered in congress i could further influence redistricting. we have an amazing panel to figure out what all this would mean over the next couple of years. first i would like to introduce the panel and ask
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them each to make opening remarks and where we are coming from and where we are headed in that have questions for the panel to take some questions from the audience as well. first congressman representing the house in 2011 to 2013 and then again 2015 to 2017 with access to capital for small business and healthcare reform and anti- poverty issues. original member of the no labels movement to help and gridlock in washington serving as the cochair of the informal caucusnd of moderate focused on governingg solutions.
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next serving as we just counsel supreme court cases and gerrymandering and common cause and clerked for judge fisher on the ninth circuit and university of chicago law school before recently moving to harvard. and now leading the national appellate practice previously served as solicitor general in that capacity representing the estate and the earlier work in the west virginia attorney general's office clerking for kennedy on the supreme court. with that i would like to invite congressman dole to say a little bit where he sees redistricting headed now. >> i appreciate that professor. thank you for having me and allowing me to speak to the federalist society this afternoon. as you take a look atg
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redistricting take a look at where things were and 2010pu impacting those of us in public office wherere republicans had the upper hand with redistricting after the 2010 census just because a number of legislatures that went completely over to the republican side to be john more favorably to republicans. that was not the case in illinois. it is a deep blue states n that was quite the opposite. so we have a couple of issues we will be up against. number one, the fact that we will get the lines drawn quick enough because of the delay because of covid-19 which throws another monkeywrench into what will actuallyac come out.
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but in talking to my former colleagues they believe the maps right now with 33 of those existing states that draws the lines favors the republicans again. i think we will find the democrats have done significant amount of legwork to make sure the gains don't happen but with a very narrow margin in the house of representatives today were looking at eight votes or four seats to bring it to even. every vote will count some believe the redistricting alone should be enough to have prepublicans take control all things equal. people get partisan gerrymandering because
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ultimately looking at redistricting depending if you have an independent commission or the legislature, ultimately there will be some level of partisanship involved. it's inherent and what we do. the legislature will draw maps that will not bego n devoid of trying to favor one side or the other. do they get to the point of ridiculous? and with those independent commissions, if you look at how they are formed, they can be leaning one direction or another. if you look at will happen in the next redistricting, my guess is we will have battles and almost all will be challenged but my guess is republicans will have a slight edge out of redistricting like montana was the one single district stay is now going to two. will answer questions but i think will be in for a very
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interesting redistricting session as noted probably the most interesting in our lifetime. >> thank you michael into the federalist society for organizing this terrific event. as you can tell from the fact we are holding this event today, and with that issue in recent years some people on the left or the right tend to disagree about. so i want to talk today to the audience about why conservatives in particular should oppose gerrymandering and the supreme court's decision and judicial intervention to stop gerrymandering. there is fear points. conservatives were not always
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accepting of gerrymandering as today.pear to be the conservative supreme court justices site the same democratic values that support intervention against gerrymandering. said about one action against gerrymandering because it benefits that likely that won't be the case. and everyone should be very fearful that we can now find ourselves and with the supreme court decision so back to my first point historically conservatives have been just as worried about gerrymandering a so here's a quote it is readily identifiable as are the victims of gerrymandering. those who support.
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and then to compel the court to establish a general framework of suchth claims. that is a passage from the amicus brief which is a 1986 supreme court case that held the partisan gerrymandering. notably of the six justices in majority, three were republicansk appointees. here's another quotation asking for and to the anti- democratic un-american practice of gerrymandering congressional district. when the legislatures it winnable the people cannot be heard. that was reagan in a 1988 speech. later he mentioned a lawsuit against the democratic gerrymandering in california.
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here is one more. extreme gerrymandering harms the political system cannot be reconciled with the framers conception of the house of representatives to be held accountable to the people. and then to fix the problem that is not from the 1980s it is the amicus brief signed 2019 with the republican members of congress. i believe some politicians today are willing to stand with ronald reagan from the eighties against tgerrymandering. so to go at the conservative justices on the supreme court they mocked the idea that the
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court should step into correct flaws in the democratic process. and then those very same justices that supported judicial intervention and those that protect incumbents and suppress competition and undermine democratic values. and that very same logic that supports gerrymandering. what that suppression. so justice scalia, the first instinct of power is the retention of power. and with the political debate so the incumbents rituals the political debate. and those to entrench an office. here is justice alito and then it confers upon voters not the legislature the power to
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choose the members of the house of representatives it is a dangerous business for the legislature to influence the voters choices and then to influence the voters choices to drive the district from one political party and heart ofe the other side. lastly here is chief justice roberts. those who govern to be the last people to decide it should govern. it's an argument for taking away the power from the politicians who run in the same districts. roberts goes on the governmentea must not compromise the political responsiveness at the heart of the democratic process to favor some participants in that process over others. what does gerrymandering do? it does not compromise the political responsiveness of the heart of the political
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process. >> and with my third point those third conservatives outym there who don't want action against gerrymandering because they think conservatives benefit. it is certainly true that in 2010 and then to be biased in the republican direction. but the 20 tens were a real aberration the straight decade before the 20 tens republican draw maps was the least common category. for 30 years before 2010, masks john by governments actors like courts were commissions were substantially more than republican maps. in relation with the 2010 will
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not impede in the upcoming redistricting cycle. those that the republicans drew highly michigan north carolina ohio pennsylvania they cannot gerrymander any of the states and the upcoming cycle either because the independent commission is adopted or state courts and to curb gerrymandering or because control the state government but on the most pro- democratic maps in 2010 will probably be pro- democratic in the next cycle like illinois. new york nevada and oregon democrats control the state government and then aggressively in their favor in the 20 twenties.
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it will be much more balanced than a landscape of 2010. the last thing i want to talk about why everyone should be afraid of the new wild west we neare in. and that to serve everybody. one of those techniques and with that voter data to drive districts as opposed to the traditional approach of aggregating at the precinct level. and with those database to assign partisan scores every seeing goal voter. these databases are made possible with much more precise gerrymandering than in the past. the second is the use of computer algorithms with huge district maps based on
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whichever criteria of course one of those could be partisan advantage when this turns out to be another area where scenes it is better than humans or without to gerrymander in the past. the third technique we will see in the upcoming cycle is the creation of noncontinuous districts. made up literally of unconnected pieces. about half the states in the country allow this at the congressional level but there is no reason for illinois to take one andca 55 percent democrats in chicago and 35 percent republicans and it's a perfectly lawful
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district. so redistricting more than once per decade. so now if a party sees a district slipping away doesn't have to let that happen the party can we draw the district to make it safer. the party can do this as often as it likes even before every election of the party wants to. and those in the supreme court has advocated its responsibility to police gerrymandering. and it's an awful new world we find ourselves in and i will stop on that. thank you. >> thank you to the federalist society and to the professors
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for joining me. gerrymandering with partisanship goes back to the nation founding. the term gerrymander comes from jerry was the governor of massachusetts in the output of a cartoonist of those legislative districts with that capacity of governor. so the governor of gerrymandering. so it goes back even further still. patrick henry attempted to gerrymander james madison out of congress. in objections to theymandering go back to founding.
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the very term gerrymandering part of the salamander cartoon which is lampooning.g and it has since the founding. lawsuits don't go back quite that far but they do go back many decades in the federal courts those in a particular state usually retrofitted to the harm they believe they have suffered that the harm is unconstitutional or illegal in some way. but suffice it to say the courts have never fixed upon actual judicially enforceable way to enforce political
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gerrymandering which is the supreme court decision. and then to go back to the founding and even lawsuits go back many decades why are we hearing so much more about political gerrymandering these days?co and those that call to have more for political gerrymandering a judicial angle to say we have fancy computers now gerrymandering is so much worse. in our case at the was supreme court my friends on the other side will measure how bad of
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gerrymandering and under that metric in 19759 - - 1972 but then but the hunch it is even worse decades before to be constrained the most effective way to actually partisan gerrymander to create smaller districts for your population inol your political party. so what has actually changed? why is there so much more media attention on gerrymandering cracks because one theory of how to attack gerrymandering in court is labeled partisan symmetry.
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it favors one political party over the other. that one metric that is a driving force behind the lawsuit systematically democratic party. because there entire map is the ratio so the democratic party is disadvantage with the republican party. so have that symmetry metric touchstone if you have a legal draw will systematically fail the democratic party and then to compare illinois which is the state right next to it wisconsin. in the 2010 cycle a core had drawn the wisconsin assembly
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maps. and those that are packed into madison and milwaukee that court drawn map with the prorepublican gerrymander under partisan symmetry. and then to push the courts out a little bit more that was egregious gerrymandering. now compare that to illinois. and then the large member of democratic voters. there was a division in the legislature in illinois. and democrats republicans came together on a draw. that neutral draw was a republican gerrymander because so many democrats lived in
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illinois. in the most egregious pro- democratic it to make gerrymander anybody new. and then to do all these horrible things to the public. what that egregious call that it is neutral prorepublican.
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with a gerrymandered a republicans that according to the metrics to say it's okay. and those democrats who enacted that now surprised to hear that. so this entire push which is actually what is going on with the partisan gerrymandering rhetoric is a trojan horse. they can gerrymander is much as they want and then they say just makes it for the fact the democrats are in illinois but if it was republican that is egregious. one supports the democratic party it is understandable. so much media attention. sometimes the republican party challenges sometimes the other supports the challenges. so the reason that doesn't happen anymore is the series of gerrymandering is entirely tilted to one political party because of natural political
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juggling dad is why you now have one party lined up behind far behind gerrymandering on the other side.
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d went through the redistricting process so what are we looking at the next decade? partisan drawn map. and the biggest change was even more loss. but that redistricting brought by one party and those that behind the lawsuits. and with equal protection are the challenges are more traditional and with that partisan gerrymandering. and that throughout the country. >> i went to give them a chance to respond first if anybody wants to do that. >> i am happy to respond it's interesting because with regard to the metrics there's very little that i disagree with with regard to professor stephanopoulos with the idea of trying to draw these contiguous states. there's nothing more frustrating than have the legislators pick their voters. and ultimately what happens in the process is you disenfranchise a significant number s of voters with the low
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voter turnout because people think it doesn't matter how i felt. and their better off to go pick up the democratic dallas who they would like to have elected. but ultimately ultimately we love to have an independent commission draw these as opposed to mike matt again. but they are so much better able to disguise these maps not look partisan but yet they are very partisan. those who have the ability will make it partisan will do so. also in illinois 500,000 people signed a petition for the maps to be put on the ballot. three different times. that's a lot of signature.
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500,000 citizens signed only edto be tossed out by the illinois state supreme court which is politically elected and appointed and controlled by matt again. tossed out three different times. former attorney general eric holder and former president obama they push to deal with commissions they have not picked a single democratic state to go after a commission yet. so they just jerry pick on - - cherry pick to pullout virginia when i got to the democratic side so we recognize there is politics played at this point in time looking at what's going on from a partisan perspective getting pulled to the polls. far more vitriolic. and with more 50/50 type of districts being drawn and have
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more in the whole state legislature in the halls of congress. >> but to be immersed in the effort to achieve recent reform in illinois and that is the actions of madigan and of the supreme court to be completely reprehensible. to be not as much if not more of any state of the independent commission. so with the national one - - natural political geography is states but the point is in all of the recent lawsuits
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wisconsin or north carolina or michigan it didn't rest pretty sure all of the lawsuits if you constructed the computer without constructing partisanship's. you almost never in the line drawing parties favor. the political geography of pennsylvania or ohio et cetera simply does not support maybe to support a slightly skewed plan, sure, but that is
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not at all the kinds of what we saw in 2010. political geography changes in ways that are kind of unpredictable and might not benefit republicans going forward. so those areas are a lot better than they were ten orve 20 years ago. it's now possible to have packed over concentrated republican districts in the outlining areas that was a possible 20 or 30 years ago. the past democratic district and urban centers are getting balanced in the countryside. the suburbs used to told the republican and direction with the purpose of redistricting but in those places around the
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country they are now becoming purple or blue leaning in the suburbs i where the mostpu americans live. as they become purple or blue the political geography united states no longer prorepublican it is balance to be pro- democratic. if you try to ignore partisanship it's a lopsided democratic majority there is l
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no advantage there. i will stop they are. it was absolutely not ignored in the case of the last cycle. >> just a couple of things they venture a prediction political geography becomes more neutral the battlefield will look a lot more like it did in the seventies and eighties and it does today whole lot of money to benefit either parties systematically stephanopoulos is still urging ever have a lot less friends to systematically benefit the barack obama's of the world it is very important and lots of people do oppose political gerrymandering on - - gerrymandering but what are we trying to fix for what is the remedy? if we want to the district as possible you might end of doing more gerrymandering in the traditional sense to get 50/50 districts from chicago you have to draw a really ugly maps in the noncontinuous
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districts some people from chicago or the outlying counties that is difficult to do with the concept of the past districts if we talk about maximizing for the leastth partisan asymmetry you will be maximizing in those states so my take away it's easier to criticize partisan gerrymandering with members trying districts to benefit themselves but it's much harder to come up with a
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remedy that what people think should be the ideal world and the remedy choice itself with those consequences in a very partisan sense. >> we have questions on reform that first a went to get a sense of the panels predictions about the redistricting cycle of gerrymandering will get worse or if there is a chance ofph thinking things might get better generally i thinkat the legal context points to deregulation that the demographics in theli geography may mitigate that affect and political troll seems more mixed so where does this shake out? that we will be more biased in the 20111 cycle congressman dole said it would not be quite as biased as a lice one - - the last cycle want to get the panelist thoughts on that.
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>> this is assuming we don't have congressional intervention with the entire redistricting process but assuming hr one doesn't become law willl probably end up somewhere the national aggregate level from where things were in 2011 in terms of the overall partisan slant and mentioned the presentation where there is no path forward for the highly spewed maps of the 2010. there is no way we would see a repeat of an extreme republican gerrymandering this time around. what is likely to happen and then to exacerbate with the
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redraw and on the democratic side states like illinois if there is no constraints on the behavior they have not been gerrymandered by democrats in decades not enough they appreciate in the 63 or 65 percent democratic state could be that is reasonable to the naked eye with 20 seats out of new york. so there is a pretty aggressive gerrymandering to be substantially offset. overwriting the congressman is right but nowhere near that
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conditions that exist in 2011. >> i'm very interested to see have those who have been criticizing partisan gerrymandering on the left will put the money where their mouth is and states like new york with democrats and the legislature and to be quite extreme gerrymandering. there has been alive the frederick on the media by eric holder and barack obama. i would be quite curious to see if those groups that come into new york and show the principles they are articulating so loudly are bipartisan principles that are not instead just a cover one
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of the nation's political parties. where will the country be overall with redistricting? it will be from the founding partisan gerrymandering some states will be more gerrymandered than others will fall somewhere less than 2010 in thean 1970s but some are higher than the eighties. that's how you measure partisan gerrymandering. >> thank you. >> i made some thoughts earlier i think the maps will be in their favor. states controlled by the democrats not with the independent commission will go up to the line as close as they can. i think they will try to do that. republicans will try to do the
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same but you will find far more litigious enable challenge those as best they can but at the end of the day we arean looking at a leading republican if you look at the number of representatives today which they are after this next election cycle. a couple of factors have to go into play because it's not apples to apples because naturally with the democrat in the white house more republicans will be elected a more favorable election cycle for them. all things equal than the other big factor to have great candidates nothing more powerful than the right candidate for the right district even if leaning left or not the tenth district was
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a a deeper love and district that was crazy to the left but again we could overcome and take one away the illinois legislature thought they would get with the democrat. >> there are questions about independent commissions that a lot of the avenues for litigation are smaller now to challenging gerrymandering than the previous cycles. maybe the independent commissions are the best hope right now the most promising avenue. independent commissions how they stand now and if there is bipartisan consensus for like independent commissions or other reform or is this a partisan deadlock with partisan advantage? >> those that adopt them is how are they designed if they
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have a commission with three democrats elected and one is more neutral we live in a more politicized world so the avenues of selecting anybody purely neutral as partisanship we just saw that with arizona and the left it was allegedly nonpartisan commission. >> you want to follow up because you are the most critical on this panel. the independent commissions are flawed, that may be true but is it better than a partisan free-for-all is not up process but the current state of affairs? you wouldn't say gerrymandering is a great thing that bias could be a problem but the right solution to that problem with the
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independent commission offers any hope in that regard? >> my personal view independent commissions are not constitutional but the supreme court decided the other way and thee consequential decisions and the more powerer we take away from elected representatives and it's not to say that partisan self-interest is line drawn it's a great thing it could be the situation the cure is worse than the disease. >> us isn't alone of how toa, curb gerrymandering. we use single-member districts so does canada, australia, we
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inherited our system from the common-law system. all those other 18 english-speaking countries is to have the exact same battles that we still have. look at 19th century british history early 20th century canadian or australian history, just like the current battles today. and in every one of those countries, they finally adopted reform in the form of independence and the bureaucratic commission that to this issue out of the hands of legislators and never look back. there is no sport for any of these countries to return redistricting the independent commission and with that
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legitimacy the output is really good take your metric with more competitive races measures of partisan symmetry are way better applied to turnover and the legislature and respect for political subdivisions much better abroad. we don't have to limit ourselves to a handful of american commissions over the last decade or two have a lot of foreign commissions for generations now with really good evidence with redistricting produces simultaneous gains with every criteria people care about redistricting. >> congressman do you have any
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thoughts on this? >> i will let the two professors fight that out. >> as you like independent commissions, again i agree in terms of how it comes down who was the independent person but i also believe he most likely will get a fairer and less gerrymandered map and are the independent commission that means that means they are accountable to the people and they can vote them out and theory is just difficult. so again i've been in favor of independent commissions for a talong time because that's far better off in the state of
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illinois but again disenfranchised fewer voters because there are so many folks on the outside looking in that basically the politics are preordained by the time it comes to them at the ballot box. >> we've seenth a movement, modest for some tour the independent commissions since the last cycle putting the highest hopes right now with those judicial ten channels. part of the reason we aretr delayed in the census in part
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because of covid certainly but simon challenges in o controversy on county county citizens as opposed to residents that and that has implications for redistricting there have been rumors republican controlled state there could be a shift as opposed to residents in the supreme court case not so long ago relating to this do you expect that shift in any state and what are the political consequences of a shift like that would mean quick. >> ion don't sense you would have that type of a shift you look at the census besides the redistricting. it's about allocation of dollars in support from the federal government and those types ofom things . . . .
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as we look at immigration. immigration is important for our country. it's important as we look at how do we talk about building the next new thing? how do we talk about manufacturing and all of these things without opening our borders and making sure it's about illegal immigration which is what so many people are upset about today ultimately we will look at the numbers in what's going on a don't believe the big battle will be about citizenship. i think it's more round the ballot boxes where you will see them rearede their heads. >> in terms of anyone chose toe
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make the switch from equalizing the numbers in the district to equalizing the numbers of adult citizens in the district i spoke with a political scientist is an expert on it. he took the 20 states with the largest minority populations in the country and used it to several million masks and unit of apportionment. then we examine the consequences of beach set for the parties and for minority representation. we found are substantial decline in the numbers of african-american and latino districts in equalizing persons
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andri adult citizens. there's almost no portage and chip radio for all i thinke we found republicans would benefit by one percentage point between an equal adult citizen world than an equal population world. if there's a small partisanship thatma suggests to me it's a cae for making this quite descriptive change in redistricting. i doubt the states would go to all the trouble of doing that. in fact did you have any thoughts on that? >> we go's have a couple of minutes left and i wonder if you have any predictions about h.r. 1 which would impose independent commissions and whether there will be some passages of
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something like that and how it will affect redistricting. any thoughts on that? >> from a political perspective my take on h.r. 1 has very passed the house and i think it will have a difficult time getting through the senate. you have heard leader mcconnell and others talk about what is in the bill. it's a little bit broader than just trying to make the one thing that they are putting out there for the people so i think it will have a harder time passing in the senate is my guess at least in this congress. >> i think there will be political predictions. i think they are certain aspects of that.
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>> in terms of gerrymandering the main elements of that establishing an independent bipartisan commission in a congressional district. the other strategy laid is to give districts the intent met favoring a political party and that prohibition would stand even if commissions aren't mandated all and we'd still have the prohibition on partisan gerrymandering. >> we have been imagine there might use separate legislation to focus on the redistricting part from h.r. 1. if there is partisan consensus
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on that but it's unclear right now where we once dance. that's all the time we have then i want to thank the federalist society shonta manners palace congressman robert dold nick stephanopoulos for helping us understand redistricting and sorting through a really complex legal and political landscape right noww in this really important district are you expect thanks everyone. >> democrats right now are thinking of throwing out the entire senate as an institution even with the knowledge that by next year they might in a minority in the senate again and
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for years from now republicans could be in a place to prepare an agenda that will be truly terrifying to a lot of democrats so this is one of those moments where people ought to step back and try to remember that these big actions could have real consequences down the road. >> finds he stands the weekly where you get your podcasts.
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>> good morning everyone in welcome back to the institute for internationalrs economics. i am the president adam posen in our pleasure to host a virtual speech by randall k. quarles chair

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