North Carolina election lawyer Thomas Farr.
Animation by Lisa Larson-Walker. Photo by Alex Brandon/AP Images.
Luxury cabanas atop Austin’s JW Marriott kept state legislators cool poolside as August-in-Texas temperatures soared above 103 degrees during each day of the American Legislative Exchange Council’s 2019 annual meeting. The gathered Republican officials could enjoy a $14 rooftop Peppered Paloma cocktail with Patrón silver, housemade grapefruit poblano soda, and Chilean salt, all while gazing over Lady Bird Lake and the nearby state Capitol, or catching a ballgame on the cabana’s 55-inch private TV.
Downstairs, meanwhile, five of the GOP’s most seasoned redistricting minds and über-lawyers would teach them the finer points of tilting maps and drawing districts that would allow them to retain such spoils for another decade.
Slate has obtained an exclusive audio recording of the closed-door panel called “How to Survive Redistricting,” moderated by influential Republican lawyer Cleta Mitchell. The panel’s four experts—Hans von Spakovsky of the Heritage Foundation, North Carolina election lawyer Thomas Farr, former Georgia Rep. Lynn Westmoreland, and Texas state Rep. Phil King—are among the architects and defenders of some of the most notorious gerrymanders and voter suppression plans of this decade.
During the session, the legislators were advised to treat redistricting as “political adult blood sport,” trash potential evidence before it can be discovered through litigation, avoid the word gerrymander, and make deals with black and Latino legislators that guarantee them easy reelections by packing as many minority voters as possible into their districts, thereby making the rest of the map whiter and more conservative.
“You are going to be sued. Let’s start with that.” — Cleta Mitchell
Panelists offered complicated technical advice, such as adding a legal provision that would allow a legislature to defend its maps in court even if the state attorney general refuses. And then there was less-technical advice, like being sure to put “sharp” legislators on redistricting committees because they’ll spend a lot of time explaining the maps in court.
“You are going to be sued. Let’s start with that,” Mitchell told a packed room at the ALEC gathering, attended by more than 1,400 people, including Trump administration officials and top conservative lawmakers, thinkers, donors, and activists. Mitchell made light of ALEC’s reputation as a conveyor belt for cookie-cutter conservative legislation enacted by state after state. “Mindless state legislators, we’re just pouring in information and we’re indoctrinating you, pouring into your empty skulls!” she said, sarcastically. “We’re going to teach you how to gerrymander.”
And then she did. “Let us begin with the fact that, probably, your notes from this conference, and this workshop, will probably be part of a discovery demand,” Mitchell said on the recording, dropping the sarcasm. “My advice to you is: If you don’t want it turned over in discovery, you probably ought to get rid of it before you go home.”
Farr, the veteran North Carolina election lawyer whose nomination to the federal bench in North Carolina ended amid persistent allegations that he had defended efforts to suppress the black vote, compared lawsuits against GOP redistricting plans to a cancer diagnosis. “You better get some chemotherapy,” he said, “because if you don’t, things aren’t going to turn out real well for you.” He also told legislators that they needed to think about any trial as a play that he would direct as the counsel, and to be sure that they created a script that an attorney could work with before a judge.
Westmoreland, the former Georgia congressman who co-chaired a Republican 2010 redistricting initiative called REDMAP, told a story about giving black Democrats in his state mapmaking software and encouraging them to draw their “perfect district,” knowing that districts filled with minority voters would make surrounding districts whiter and more Republican.
“We ended up being very successful with it,” Westmoreland said.
Westmoreland recalled inviting the members of the “black caucus” to his office, “off campus,” to create their “perfect map.” One incumbent, he said, “finally fell into the trap and came over there and drew his perfect district.” To show the redistricting plan benefited black Democrats too, he “immediately got the local paper down there” to run an article on that lawmaker’s perfect district. Westmoreland then included a district as close as possible to that overwhelmingly black and Democratic one in the state’s official map. The legislator, he said, voted against the map and soon lost his seat.
“I promise you it’ll be beneficial to you,” he told the ALEC attendees. “They still want to be reelected. They still want to have the best district they can have.”
The speakers repeatedly insisted that there is no such thing as a nonpartisan redistricting process. Farr argued that maps can never be neutral. “Every time you draw a districting line, it benefits one party and hurts the other party,” he said.
The idea that Republicans are simply fighting similarly skewed Democratic gerrymanders has been debunked. According to a University of Southern California study, 59 million Americans live in states where at least one chamber of the state legislature is controlled by the party that won fewer votes in 2018. In every case, Republicans drew the lines, and hold minority control. That the process is inherently political has been disproved as well: Several states, including California, Iowa, and New Jersey, use independent commissions or various neutral or bipartisan processes that have successfully created fairer and more competitive maps. Three-quarters of the seats that flipped during the 2018 U.S. House elections were drawn by commissions or courts. Studies show that maps become more representative and equitable when more parties have a seat at the table.
Nevertheless, Farr urged these lawmakers to make their processes appear as open as possible, even though they are driven by partisanship behind closed doors.
The legislative record, he told them, must appear to be business as usual, following every statute, with every transcript and debate filed for the record.
Given that every map could end up in court, Farr advised extraordinary caution. “You never know what you might say, even if it’s unjust, that the left can take out of context and try to use to make the Republicans look like they’re evil.”
Then, in court, Farr could take it from there.
“It’s like I’m a director of a play,” he explained to the room. “I know what I want the play to look like for the judges when we actually have to go and defend what we’ve done in court, and so this is why you want to make it look like—I know most of you know this already—you’re very cordial, cooperative with the minority party or the opposing party. … The more you take the high road in the legislative process, the better it’s going to look in court when you have to defend what you’ve done.”
Republicans, Farr suggested, are outgunned by the litigation power and the expert witnesses on the side of fair maps. He complained that Republicans have only five or six expert witnesses, while Democrats have between 18 and 20 “really outstanding and smart people” able to explain “newfangled theories” about identifying gerrymanders.
Many of those expert witnesses create tens of thousands of neutral maps using nonpartisan, legal redistricting criteria. Courts in North Carolina, Pennsylvania, and Ohio were all persuaded to overturn maps as partisan gerrymanders by relying, in part, on simulated maps that demonstrate that the ones drawn by legislators are wild partisan outliers. This technological advancement offers the potential of using the same technology that partisans use to rig maps to strip their intent bare. For Farr, this is a great threat. He warned the legislators that computer-assisted maps would be the tactic deployed against their maps as partisan gerrymandering moves to state courts during the upcoming 2020 redistricting cycle—and that he would help them defeat those maps.
“Garbage in and garbage out,” he said. “You can read these things to get the results that you want.” Farr said that the professors working on these simulated maps were “very smart” and that the work is “very complex.” “You’ve got to get the right experts to look at their algorithm and all the backup that they have. But there’s a definite way to defeat the concept of computer-simulated maps.”
As Farr and Westmoreland taught lawmakers to conceal the true intent of their maps and appear to play by the rules, Von Spakovsky envisioned a longer game to change the rules of redistricting entirely.
Von Spakovsky, a member of the Trump-Kobach “election fraud” commission, urged GOP lawmakers to use citizenship data to redistrict state legislatures rather than count the total populations of districts, the latter being the constitutional standard for U.S. House districts and the longtime norm for states, as well. Most state legislatures, however, could redistrict state legislative lines based on citizen population, in most cases simply by passing a statute. (Recent revelations from the files of late GOP redistricting mastermind Thomas Hofeller demonstrated that Republicans attempted to place a citizenship question on the 2020 census to gather citizenship data for this purpose.)
“All of you need to seriously consider switching to using citizen population to do redistricting,” he said, asserting that the concept of “one person, one vote” was just something that liberal justices on the U.S. Supreme Court “created … out of whole cloth.”
Von Spakovsky also told lawmakers that census data is important for two reasons: the apportionment of U.S. House seats, and state and federal redistricting. Congressional apportionment based on total population, as the Constitution mandates, is “fundamentally unfair,” he said, because “states with large numbers of aliens, particularly illegal aliens, are getting more political power.”
“Liberals do not want you doing this,” he said, because “the higher the number of noncitizens in a district, the greater the chances they’re going to vote for a liberal.”
Von Spakovsky also praised Chief Justice John Roberts’ majority, 5–4 opinion earlier this year in Rucho v. Common Cause, which essentially closed the federal courts to partisan gerrymandering claims. But he warned that other legal avenues are still open to proponents of fair maps. “What you have to understand is this is not the end of this,” he said.
Gerrymandered maps could get challenged under state constitutions as a political question, he said, or in federal courts for unconstitutional use of race data and for diluting the votes of minorities contrary to Section 2 of the Voting Rights Act. He called this “the Goldilocks principle of redistricting,” noting that “you can’t use too much race,” but if you don’t use race at all, “Hispanics, African Americans are going to claim you didn’t create a district in which they can elect a candidate of their choice.”
To withstand these inevitable legal challenges, the panelists said, it is important to control not only legislative majorities but also the judges approving or rejecting redistricting plans.
“Always know who’s going to end up ruling on your maps,” Westmoreland, the Georgia lawmaker, advised. “It’s important to work with the judges, the judicial system. You need to work for your attorney generals. … You need to work with as many organizations that you can to make sure that not only you win the majority, but that you elect people that are going to be able to supervise what these maps, or what you, come up with.”
Enticing more “dance partners” from minority groups to protect their own seats is another key part of that plan.
“It’s not rocket science,” Westmoreland said. “It’s politics.”
Read the full transcript of the ALEC meeting here.
This story is part of Slate’s Who Counts? project, which investigates who has decision-making power in America and what happens to those who don’t. Read more from Dahlia Lithwick about why we’re exploring this question now through 2020.
