All about gerrymandering
Hello, and welcome to special session. I'm your host, Brian Schott. This is the show that breaks down the most important Utah political news and helps you understand what happened, how we got here, and what it all means. No lobbyists or legislators or anybody with a political agenda as a cohost. It's just the information you need from someone who's been covering Utah politics for more than a quarter of a century.
Bryan Schott:In today's episode, we're gonna be talking about the big gerrymandering ruling that came out on Monday that threw out Utah's congressional maps. We'll talk about what happened and why and what's coming next in that story. Later in the show, be joined by one of the foremost experts in gerrymandering in the entire country, Dave Daley. He is a senior fellow with Fair Vote, and he's the author of one of my favorite books on the subject. It's called Rat Fucked Why Your Vote Doesn't Count.
Bryan Schott:We'll get his reaction to the ruling and talk about why independent redistricting efforts often are subverted by politicians. Hint, it's because they like the results from gerrymandering. We'll get into that interview a little bit later in the show, but first, let's talk about the big news. On Monday, third district judge Diana Gibson threw out Utah's congressional maps saying that the Republican controlled legislature violated the Utah constitution when they repealed proposition four in 2020. So what this ruling does is it reinstates prop four in its entirety.
Bryan Schott:That is the ballot initiative passed by Utah voters in 2018 that established an independent redistricting commission and banned partisan gerrymandering in the state. If you remember, lawmakers repealed proposition four in 2020, and she ruled that when lawmakers did that, they violated the Utah constitution. So she reinstated proposition four in its entirety. As part of that ruling, the congressional maps that were approved by lawmakers in 2021 are no longer valid. Lawmakers have until September 24 to draw new maps or the court is going to step in.
Bryan Schott:And when they draw these new maps and when they draw these new maps, they have to comply with the guidelines set out in proposition four. They have to minimize dividing cities and counties across multiple districts. Right now, Salt Lake County is divided into four. There is a piece of Salt Lake County in every single congressional district. Prop four says you can't do that.
Bryan Schott:You have to make the districts geographically compact as much as possible. Utah's a massive state and with only four congressional districts. You're gonna have some pretty big districts, but it's likely we'll have some smaller ones as well. They have to try to preserve neighborhoods and communities of interest, follow natural and geographic boundaries, and they cannot use partisan data when drawing the new lines. That means they can't divide districts up to favor an incumbent or a candidate or a political party, which in this case would be the Republicans.
Bryan Schott:It's a Republican controlled legislature, and they're not allowed to use any partisan data when they are drawing these new maps. So that's what lawmakers have to do when they draw these new maps, and they have less than a month to do it. But the ruling also does something extremely clever and this is where I have to admit I was wrong. I thought that no matter what the judge ruled, the Republicans in the legislature were simply going to be able to run out the clock. They were going to delay by appealing this decision first to the Utah Supreme Court and then to a federal court and maybe the US Supreme Court.
Bryan Schott:And that would just put everything on hold, and they'd be able to run out the clock. Remember that when this was argued in court way back in January, the lieutenant governor's office said that if new maps are required, then they would need to be in place by November because, well, that's only fair. Candidates need to know what districts they're running in. They need to get the maps together. They need to map everything out so voters know what districts they're in.
Bryan Schott:So that makes sense. They said these would need to be in place by November. I always thought that the ultimate drop dead date was January 2 because that's the day candidate filing starts. Once candidates start filing for office, you can't change the rules unless you wanna open yourself up to a big old lawsuit. So that was the ultimate drop dead date, and realistically, you had probably until the December to put new maps in place.
Bryan Schott:And I thought that no matter what happened, lawmakers were going to run out the clock. Look at what happened in Alabama. In 2022, there was a lawsuit claiming that the maps they enacted for their congressional districts were an illegal racial gerrymander. What the lawsuit said is that the percentage of white voters in the state had gone down. The percentage of black voters in the state had gone up.
Bryan Schott:And that meant that of the I believe there are seven districts in Alabama. Of those districts, two of them should be majority black or at least be drawn in such a way that black voters in that state would be able to elect the candidate of their choice. And what happened was a court agreed, ordered the legislature to go back, redraw the districts, draw a second black majority district, And lawmakers simply didn't do it. They just redrew the maps and increased the number of black voters in one of the districts and defied the court order. And that kicked off more litigation.
Bryan Schott:And I thought something similar would happen here in Utah. That lawmakers would appeal, appeal, appeal, and just put this off. Or if they were forced to draw maps, then they would flout the court order and open up another legal challenge which would eat up more time. I was a 100% wrong because what judge Gibson did in her ruling is something extremely clever that I did not anticipate. What she said was lawmakers have until September 24 to draw new districts.
Bryan Schott:If they don't do that or if they draw a new map that does not comply with prop four, then the court steps in. That means the plaintiffs in this case can propose a map or a third party could propose a map that the court will then consider and implement one of those. And here's why it's clever. By putting a time frame on this, a very tight time frame, if lawmakers decide not to redistrict, not to redraw the maps, if they try to put a pass off maps that don't meet prop four, and the court has to implement its own maps, there's the very real possibility that these new maps, this new map that's either implemented by lawmakers or the courts, will be the maps that will be in place while the appeals process plays out. Lawmakers still have the right to appeal.
Bryan Schott:That process is still open to them, and Judge Gibson hasn't stopped them. What she has done is made it so that it's going to be very hard to keep the current maps in place for the twenty twenty six election. Because in less than thirty days, lawmakers have to come up with new maps. And if they don't, then the court will. And the court can choose a new map.
Bryan Schott:Lawmakers will be in a race then. They will need to find a court that will enjoin this order from judge Gibson. They'll need to find a higher court that will pause the whole process, give them an injunction, and stop this whole process in its tracks. If they don't do that, by the time that these maps go into place, that's going to be the playing field. Those are the maps that we will use for the twenty twenty six election.
Bryan Schott:That's why what judge Gibson did is extremely clever. And she likely looked at what happened in other states, Alabama, where they simply ran out the clock and defied court orders and waited until it was too late. And then there was a judge who stepped in and said, well, it's too late to change the maps, so these current maps are the ones that are going to be used. I think she set it up so that it's more likely than not that we will have new congressional maps in place for the twenty twenty six election no matter what the appeals process looks like. And that's why I think it is a very shrewd move on the part of judge Gibson.
Bryan Schott:So let's talk about gerrymandering. Are Utah's congressional maps gerrymandered? It's almost impossible to argue that they are not. Just look at the boundaries. When they were first adopted in 2021, Dave Wasserman of the Cook Political Report, who is probably one of the foremost experts on this, called the maps a brutal four republicans zero democrat gerrymander that would likely shut democrats out of federal office for ten years.
Bryan Schott:Just look at the way that the maps shifted. Before 2021, there was a competitive district in Utah. It was the fourth congressional district. Ben McAdams won it in 2018 by a very narrow margin, and then he was ousted by another very narrow margin in 2020 by Burgess Owens. When they redrew the maps, what they did was they took Republican voters from the three other congressional districts, made those districts a little less Republican because they were overwhelmingly Republican.
Bryan Schott:So they diluted the Republicans in those three districts and then moved them over into the Fourth District to make that much more Republican. So what they did was they took the state from three solidly Republican districts and a district that was kind of a swing district and turned it into four rock solid Republican districts. The Cook political report rating takes a look at the makeup of the district and predicts how a generic republican would do or generic republican or a generic democrat would do when compared to the rest of the nation as a whole in the election results. Before 2021, C D 4 was rated as r plus six, so a republican candidate would have a six point advantage in a generic matchup. After the redrawing of the maps, it went to r plus 16.
Bryan Schott:So you don't have to be a data scientist to understand that what they did was they made the Fourth Congressional District much less competitive at the expense of the other districts, which were already not competitive. CD 1 went from r plus 20 to r plus 12. So that's the district that took the biggest hit of all of them. Congressional District 2, it got a little more republican after the 2021 maps were put in place. It went from r plus 10 to r plus 11.
Bryan Schott:CD 3 got a little less republican, and it went from r plus 17 to r plus 14. And all of that was done to make C D 4 much more republican going from r plus six to r plus 16. Just look at voter registration data. Now the numbers have shifted a little bit from 2021 to now, but you can see that Republicans almost surgically divided the Democratic voters in the state among the four congressional districts. They're all within a few thousand voters of each other.
Bryan Schott:There are just over 224,000 registered Democrats in Utah. In Congressional District 1, according to the most recent numbers, there are 55,000 Democrats in Congressional District 1, 61,000 in C D 2, 54,000 in C D 3, and 52,000 in C D 1. So within a few thousand, you've got the Democrats almost evenly divided among those four congressional districts. So, yeah, it's gerrymandered. Those maps were really gerrymandered.
Bryan Schott:The Republican controlled legislature gerrymandered the absolute hell out of them. To understand what a big deal this ruling is, it's crucial to understand how we got here. So let's rewind. In 02/2018, proposition four is one of three citizen sponsored ballot initiatives that made it to the ballot. The other two were legalizing medical cannabis and Medicaid expansion.
Bryan Schott:It passed. It barely passed, but it passed. It got 50.34% of the vote. It actually only passed in four counties in the state, but that was enough to pass prop four. And what prop four did was it established an independent redistricting commission.
Bryan Schott:It took redistricting out of the hands of lawmakers and put it into the hands of this commission. Seven members. And it was broken down like this. The chair of the commission would be appointed by the governor. There would be one person appointed by the senate president, one by the speaker of the house, one by the minority leader in the senate, and one by the minority leader in the house.
Bryan Schott:Then there would be two members who were essentially nonpartisan. One would be elected by the senate president and the leader of the majority party in the house, And then the other one would be elected by the senate minority leader along with the leader of the same party, which is usually the minority leader in the house. There's some very strict requirements to make sure that those people are quote unquote nonpartisan. They can't have been a lobbyist over the past four years. They couldn't have been a candidate for office.
Bryan Schott:They could not have been affiliated with a political party. They couldn't have worked for a political party or a political action committee. There's a number of very strict requirements to make sure that they were quote unquote nonpartisan. So that's what the commission would look like. And they were tasked with coming up with maps for Congress, state senate, state house, state school board.
Bryan Schott:And they would present these maps to the legislature. Now the legislature could reject those maps and draw their own, but if they did that they would have to abide by the requirements set out in proposition four. But the responsibility for redistricting would mostly be given to this independent commission. And prop four had a ban on partisan gerrymandering in the state, wrote it into the state code. Two years later in 2020, the Utah legislature passed SB 200.
Bryan Schott:What that did was it repealed proposition four and replaced it with something else. There was still an independent redistricting commission, but it was only in an advisory role. They got to draw maps and present them to the legislature, but there was no requirement that the legislature had to adopt those maps or really even seriously consider them. Lawmakers once again were given the ultimate decision on drawing these political maps. It also repealed the ban on partisan gerrymandering.
Bryan Schott:So that was passed in 2020. And then in 2021, we had redistricting, and the maps we have right now are the ones that went into effect. In March 2022, two groups, the League of Women Voters of Utah and Mormon Women for Ethical Government filed a lawsuit in state court. And they claimed in this lawsuit that when the legislature repealed proposition four, it violated the state constitution and that the congressional maps were an illegal gerrymander. After that lawsuit was filed, the legislature filed a motion to dismiss, claiming that they didn't do anything wrong, and there were no grounds for this lawsuit.
Bryan Schott:In October 2022, the court denied that motion and let the lawsuit go forward, which caused the legislature to appeal to the Utah Supreme Court. They appealed that motion to dismiss to the Utah Supreme Court. In January 2023, we're almost a year later now, in January 2023, this Utah supreme court agreed to take up the case. And then we had oral arguments in front of the Utah supreme court in July 2023. One year later, July 2024, the Utah Supreme Court finally issued its opinion, and it said that the legislature overstepped its bounds, overstepped its constitutional authority when it repealed a citizen passed ballot initiative.
Bryan Schott:And they sent the case back to the lower court with instructions to apply strict scrutiny to the case. I'm not a lawyer, but I like to play one on a podcast. And this is how to understand strict scrutiny. That's the highest level of judicial review when determining the constitutionality of a law passed by a government body. And what it does is it starts from the presumption that what this law is is unconstitutional.
Bryan Schott:That's where you start. So it was incumbent on the legislature to prove that what they did was not unconstitutional. This is this standard is usually used when dealing with fundamental rights or something involving race or religion. And what the government had to do is they had to prove that SB 200 was narrowly tailored to serve this really compelling interest by the government. And they had to prove that it was the least restrictive policy that they could have implemented.
Bryan Schott:So, in a nutshell, that's what strict scrutiny is. They had to prove that this law, SB 200, was narrowly tailored. It was extremely targeted to serve a very compelling government interest and that it was the least interest of thing that they could have done. So that was in July 2024. There were oral arguments about that in the court held in January, earlier this year, 01/31/2025.
Bryan Schott:And after those oral arguments happened, the waiting game started. Waiting, waiting, waiting. I can't tell you how many times I was asked when are we gonna hear something about the gerrymandering case? And I just had to say, I don't know. In April 2025, the judge did ask both parties for supplemental arguments.
Bryan Schott:So there was a little bit of movement in the spring, but into after that, absolutely nothing. Which brings us to Monday when judge Gibson ruled that SB 200 was unconstitutional. As part of their arguments, the legislature said that the Utah constitution gave them exclusive control over redistricting, and that's kinda what it says in the Utah constitution. But judge Gibson rejected that argument, saying that redistricting is a function that is shared equally by the people and by the legislature. And that's one of the reasons why SB 200 was unconstitutional.
Bryan Schott:Another reason? The Utah constitution says that it is a fundamental right of the voters to try to alter or reform their government at the ballot box using a ballot initiative. And when lawmakers repealed proposition four by passing SB 200, They unconstitutionally impaired that reform. They stepped on the constitutional rights of the citizenry in order to avoid this reform that the citizenry approved at the ballot box. That was the whole reason why lawmakers rushed into special session last summer in August and put amendment d on the ballot.
Bryan Schott:It was in response to the supreme court ruling that said lawmakers overstepped their bounds when they repealed this citizens' initiative. And what lawmakers tried to do with amendment d was to get voters to give up that fundamental constitutional right to reform government and give themselves the power to override or repeal any ballot initiative. That was the reason behind amendment d. That's what lawmakers felt was an emergency and that's why they went into emergency special session to put amendment d on the ballot. Now we all know that was thrown off the ballot because the language was misleading and vague.
Bryan Schott:In fact the language that was going to go on the ballot that was crafted by the senate president and the speaker of the house said that the amendment did exactly the opposite of what it did. It was extremely misleading. It was an attempt by lawmakers to rig the system to try and get out of this ruling by the Utah Supreme Court that they overstepped their bounds. They don't like it when courts tell them that they did something that they're not supposed to do or they're not able to do. They were trying to rig the game, and that was the whole thing behind amendment d.
Bryan Schott:What judge Gibson ruled was an extension of that, saying that the citizens in the Utah constitution have the right to reform their government through ballot initiatives, and when lawmakers repealed that reform, which was approved at the ballot box, then that was unconstitutional. And ultimately, Gibson ruled that SB 200 was neither narrowly tailored nor served a compelling government interest, which makes a lot of sense. And that's why she threw out the maps. That's why lawmakers now have to draw new maps or the court is going to step in. And now we're in a race whether there will be new maps for 2026.
Bryan Schott:Now there are some people who are thinking that what this is going to do is that it will elect a democrat to congress, a democrat to congress from Utah. That's not guaranteed. What it's more likely going to do is create at least one seat that is much more competitive than it is right now. Right now, democrats have no chance of winning any of those seats even in a wave year. Before the gerrymander, before the new maps were put in place, Congressional District 4 was still a republican seat, but it was what you would call a reach swing seat.
Bryan Schott:If there was a wave election, then democrats had a chance of winning it. That's exactly what happened in 2018 when Ben McAdams upset Mia Love by just a few 100 votes. That was one of the most expensive races in Utah history. The money that flowed into Utah for that race on both sides in 2018 over the summer and into the fall was insane. Millions and millions of dollars spent on that seat, and the margin was just a few 100 votes.
Bryan Schott:So don't expect that we're going to see a democratic seat pop up. You're not gonna see this blue dot in a sea of red. That's probably not going to happen. But what's more likely is that the new maps will almost necessarily have to create a seat that will be much more competitive. Where democrats would have a better chance of winning.
Bryan Schott:With the right candidate, with the right political conditions, with the right amount of money, you might see a democrat have a shot at winning that seat. It won't be guaranteed, but they'll have a shot, which is much different than it is right now where democrats have zero shot of winning any of those seats. And the most important election in all four of our congressional districts right now is the primary, and the general election does not matter. In fact, we're going to talk more about the implications of this or what it would mean to have a competitive seat in Utah in 2026 with Dave Daily coming up in just a few minutes on the podcast. So stay tuned for that.
Bryan Schott:So what's next? As we've talked about, there's going to be appeals. There's going to be new maps. Either the legislature is gonna draw a map and pass it and see if it passes muster with the court, or the court is going to step in and pick a map. But there's probably going to be a new map in place within the next month unless the legislature can find a judge who will shut the whole thing down during the appeals process.
Bryan Schott:But beyond that, beyond 2026, I can't imagine that the legislature is just gonna stand by and cede the redistricting power that has been theirs for decades and decades. I can't imagine that they're gonna stand by and cede that control without a fight. What is that gonna look like? I'm sure that they'll propose minor changes, narrowly tailored changes to this redistricting commission. Maybe they'll change the requirements for who can serve.
Bryan Schott:Maybe they'll loosen some of the restrictions on the nonpartisan members. I expect them to sort of nibble around the edges to find ways to weaken this independent commission, give themselves more of a say in the redistricting process, and change some of the requirements for the districts over the next few years before the next cycle happens in 2031. And don't forget, Utah's on track to get another seat in congress in 2031 according to all the projections we've seen because of the population growth that's happening here in the state. So it won't be four seats, it'll be five. And five seats in Utah are gonna be much harder to gerrymander than it is four, but I'm I'm sure that changes are coming.
Bryan Schott:But for now, prop four is now the law here in Utah, and lawmakers have been ordered to come up with new maps. And that's pretty much all we know at this point. Everything else, we'll just have to wait and see. Coming up next, my conversation with Dave Daily, a senior fellow at FairVote and one of the foremost experts on gerrymandering in the entire country. Hope you enjoy it.
Bryan Schott:Joining me now is Dave Daly. He is a senior fellow with Fair Vote, and he's written a couple of books that are among my favorites. I think the one that has the best title almost of all time of any political book is rat fucked, why your vote doesn't count. That led to the documentary slaying the dragon, if you've seen that. Also, wrote unrigged, how Americans are battling back to save democracy.
Bryan Schott:In short, he's an expert on the redistricting fights, I thought it'd be really optimal to have him on the show today to talk about the ruling here in Utah. Dave Daly, thank you so much for your time.
Dave Daley:A pleasure. Thanks for having me on.
Bryan Schott:Let's talk about and get your reaction to the ruling that came out of Utah yesterday. We've been waiting for this for years. And finally, a judge said that the Utah legislature overstepped its bounds. They violated the Utah constitution when they repealed the voter approved independent commission. The practical effect is she threw out our four c congressional map and ordered lawmakers to draw new maps by the middle of next month.
Bryan Schott:What is your reaction to this news?
Dave Daley:What a big win for voters in Utah, and what a big win for just the realization that politicians will do anything they can to cling to tilted maps. This is really a blow for fairness. Voters in Utah in 2018, narrowly but decisively, approved constitutional language that would put an end to partisan gerrymandering in the state. You've got history of free and fair elections there, and voters wanted to ensure that maps were drawn really equitably and that there was public participation in the process, that lawmakers could not entrench themselves in office. And instead of respecting the will of the people, lawmakers essentially went ahead and repealed it.
Dave Daley:They ignored it. And then they drew themselves a gerrymandered map that essentially locked in control of Utah's congressional delegation for a decade and erased what had been a swing seat that had swung as recently as 2018. So sometimes the courts need to step in for voters, and that doesn't seem to happen often enough, especially at the federal court level on redistricting these days. It is exciting to see Utah's court stepping in here and getting this done.
Bryan Schott:One of the things that I was really sur surprised out of this ruling is that the judge did something extremely clever in establishing this timeline for lawmakers to come up with new districts. I had thought that no matter what the ruling was going to be, they would just delay this past the point of where these maps could be implemented. The lieutenant governor's office said they had to be in place by November. The real drop deadline is January 2 when candidate filing starts. But I thought that lawmakers, the republican controlled legislature would just do what they could to push past that that drop dead date.
Bryan Schott:But what she did was she put in a deadline to draw these maps by September 24. And if they don't, then she says that the plaintiffs or a third party can propose a map, and then she'll pick one and put it into place. I think the clever part of that is lawmakers will still have the chance to appeal this decision, which they're going to do, but this puts in place the very real possibility that these new maps will be the maps that will be in place during that appeal process.
Dave Daley:Which is important. Right? Because judges have to go into this with their eyes wide open, and all they have to do is look around the country at how similar rulings have been ignored by state legislatures. In the same way that lawmakers have been willing to override or ignore state constitutional language approved by voters. Lawmakers have also been willing to ignore or stiff arm courts and try to run out the clock.
Dave Daley:That's how important these maps are to them.
Bryan Schott:That was Dave Daily, a senior fellow at FairVote and the author of Rat Fucked Why Your Vote Doesn't Count. The rest of that conversation, it's only available to paid subscribers who support my work as an independent journalist at the sustainer level. They're the ones who pay to make this work possible so they get to hear the full interview. You can listen to full podcast episodes for as little as $10 a month or $100 a year by subscribing at my website, utahpoliticalwatch.news. As a paid subscriber, you'll not only get those podcast episodes, but you'll 'll get subscriber only newsletters, commenting privileges on articles, and access to our Discord.
Bryan Schott:Plus, you'll be helping to make more podcasts and more journalism possible. So consider becoming a paid subscriber today and making more of my work possible. Thanks so much for listening to the show. We'll be back with another episode with more news and analysis about Utah politics real soon.
