The next two national elections could decide the future of organized labor in America.
Months after the 2020 election, the results of the national census will be released and across the country electoral maps will be redrawn: after the voters pick their representatives, the representatives will pick their voters.
Eight years ago, the last time districts were set, President Barack Obama was at the peak of his unpopularity. Much of the country was still locked in a deep recession, the bank bailout fresh in voters' minds. Republicans rode a wave of Tea Party anger to victory at a nearly unprecedented level. Democrats lost about a thousand state legislative seats in red and blue states.
In 21 states, Republicans won trifectas — control of both houses of the state Legislature and the Governor's mansion — more than twice what they had before the election. Democrats lost similar advantages in five states, dropping them from 16 to 11.
The timing for Democrats could not have been worse. In 2011, the census results were released, and those new Republican majorities took those lopsided results and redrew the maps to make them nearly permanent — a process called gerrymandering.
Republicans cracked Democratic strongholds into tiny slivers and spread them across multiple Republican districts. In other parts of their states, they packed Democratic voters as tight as a New York subway car.
"The implications of what happened were enormous," said Mark Gersh, former president of the National Committee for an Effective Congress and a redistricting expert who has been drawing maps for Democrats for more than three decades. "The gerrymandering is so intense, so outrageous, that even when Democrats win the majority of votes — as we did in 2016 — we don't come close to winning a majority in the House or the Senate and we are completely shut out of power in more than half the states."
Democrats did the same thing in the few states where they remained completely in charge, including, notoriously, Maryland, where Democrats left a sole Republican congressional seat and tiled the state with tortured and twisting districts.
The parties took aim at one another, but it was working families who were caught in the crossfire, particularly union members.
Without ever running on it, in many states with proud union histories and broad support including Indiana, Kentucky, Michigan, Wisconsin, West Virginia and Missouri, Republican legislatures passed right-to-work laws.
Prevailing wage laws no longer exist in 21 states.
Worker safety rules were rolled back right along with corporate taxes. Unemployment insurance became harder to get in many states and worth less if you did.
"What is at stake? Everything that matters to our members. Organized labor can't survive another 10 years like the last 10," said Political Director Austin Keyser. "These next two elections — 2018 and 2020 — could well be the most important elections of our lives."
Politicians Choosing Their Voters
The U.S. Constitution is clear: every member of the House has to represent a district with roughly the same number of people. That number comes from the once-a-decade census.
But the constitution does not say how those districts should be drawn beyond its requirements for nearly identical populations. In most states, legislatures draw congressional and state legislative boundaries and governors have to sign off on them.
That is what makes the 2018 and 2020 elections special. Those elections determine who will draw those maps.
"It's not just the foxes guarding the henhouse, it is foxes designing every hen house," Keyser said.
Politicians have always drawn maps that favor their party. Gerrymandering — the term for tortured districts with boundaries that defy all sense but partisan advantage — was named after Massachusetts Gov. Elbridge Gerry in 1812 while the U.S. was fighting off a British invasion.
But like so much else, computers have taken an age-old illness and turned it into a society-wide plague.
The major difference is high-resolution mapping software that uses highly precise voting and demographic information. With these tools politicians can craft districts that nearly guarantee the opposing party will waste thousands of votes either on a losing candidate or padding out a landslide win.
"I've been drawing maps for 30 or 40 years, but back then we did it with a calculator and paper maps. Whenever a politician wanted a change made to the new boundaries of his district — and I can't tell you how many times they complained about certain parts of the map — you can imagine what that took," Gersh said. "Now we can change it and show them an alternative in 5 minutes."
All you need to win an election is 50 percent plus one vote; every vote beyond that would be better used in another district winning another race. It's just as wasted as a vote for the losing candidate.
"That is what gerrymandering has always been: how do you make your supporters' votes matter and how do you make your opponents' voters worthless," Keyser said. "They are stealing our democracy and writing rules for a game we can't win."
A Case Study of Wasted Votes
The gerrymander of congressional districts often draws the most attention.
In 2012, Democratic candidates for the U.S. House of Representatives received 1.17 million more votes than Republicans, but the GOP ended up with a 57 percent majority in the House.
But it's at the state level that the most damage is being done to working families' interests.
In Indiana in 2016, for example, 88 percent of Democratic votes for state Senate either went to a losing candidate or padded an already substantial win.
In just one case — Senate District 33 — 42,544 voters chose the Democratic candidate; 5,170 went for the Independent. Since the Democrat only needed 23,858 votes to win (50 percent plus one vote), the additional 18,686 voters had no impact on the outcome. They were, in effect, wasted votes that could have gone to help Democrats in nearby districts.
In district after district, Democrats were either hopelessly outnumbered or wildly overrepresented, so although they won 38 percent of the total vote, Republicans won 76 percent of the state Senate seats.
There was a similar story in Indiana's lower house. Democrats won 39 percent of the votes but only 30 of 100 seats. Nearly 76 percent of Democratic state house votes were wasted, according to the formula.
In total, nearly 300,000 of the 340,000 votes — nearly 9 in 10 — cast for Democratic state Senate candidates either went to a losing candidate or padded out an already insurmountable lead.
And Indiana was far from alone.
In Wisconsin, Republican state assembly candidates won less than half the vote in 2012 but won two-thirds of the seats. In 2014, even though the vote was still effectively tied, they extended their lead to 64 of 90 seats.
Obama won Ohio in 2012 but there are three times as many elected Republicans in the state Legislature as Democrats.
Democrats swept the statewide offices in Virginia, including both U.S. Senators and the governorship, but Republicans won a supermajority in the state House of Delegates.
In Michigan, 54 percent of voters chose a Democrat for the statehouse in 2012, but the Republicans won 8 more seats. In the next election, 2014, Republicans again lost the total statewide vote but won more seats. They won 27 state seats; the Democrats won only 11.
"It is a perversion of democracy," Gersh said. "I helped draw the Maryland map. Our thinking was 'we are not going to disarm if you don't,' but it doesn't work that way. If the public doesn't have a chance to speak at the ballot box, how are we different from the kind of election where full ballot boxes are found floating in the ocean?"
Making Life Harder, Less Safe & More Expensive
These unrepresentative majorities didn't just redraw maps to hold power, they used that power to implement policies that systematically ate away at the wealth, safety and security of working families.
"In state after state we saw the same thing: attacks on unions, unleashing corporate dark money and voter suppression," Keyser said. "It was like three prongs on a pitchfork aimed at killing democracy."
Governors in Michigan, Wisconsin and Indiana signed right-to-work laws.
Wisconsin went even further, effectively killing public unions in the state.
Indiana not only went right-to-work, Republicans killed the state's prevailing wage law and ended project labor agreements for state projects.
"They even introduced a bill to name electricians as seasonal workers, making us unable to collect unemployment insurance," said Sixth District International Vice President David Ruhmkorff who was the business manager of Indianapolis Local 481. "And I want to be clear: I don't think the state changed politically. I think the opposite is true. I think people are becoming more thoughtful and progressive."
It is, he said, the maps that would make you think otherwise.
"It was a small win in 2010. We had a small number of very tight races and I could name a handful of districts where the Democrat lost by a hundred or so votes and we had more than that in union members who stayed home," Ruhmkorff said. "By just a few seats, they got control and they kept growing that control by redrawing the maps. If you draw districts that sneak up and curl around and snake all over, anything is possible."
It wasn't just anti-worker policies either. Since Ohio redistricted after 2010, 42 percent of all state legislative races have had only a single candidate. The conservative Legislature rejected expanding Medicare, passed tax cuts that disproportionately benefited the wealthy and passed a law that prevented localities from raising their minimum wage, even though 83 percent of Ohioans supported raising the minimum wage.
Ruhmkorff is hopeful that Democrats will take back at least one branch of state government to have a say in redrawing the maps, but he is not calling for the Democrats to follow the Republican playbook.
"I could draw a map that would hammer Republicans as hard as they hammered us, but I don't see how that helps a single one of our members," he said. "The only protection I have as a citizen and a union member is the power of my voice and the strength of our democracy."
"The Republicans tend to be the worst offenders, but this is bipartisan corruption. Democrats who win by 90 percent don't listen to unions either," he said. "We don't want one party or another in total control. We want every politician to be worried about their jobs. Then, and only then, do they find time to hear working families out."
The solution, he said, is taking redistricting out of the hands of the politicians entirely.
There are two ways that could happen.
Supreme Court Steps In
The Supreme Court has never thrown out a map for being too partisan. That may be about to change.
First, in March the U.S. Supreme Court heard two cases, one from Maryland and one from Wisconsin, challenging gerrymandered maps. The Supreme Court has heard cases about maps before, but the only time it has thrown out maps wholesale is when they discriminate against black and Hispanic voters or when districts have disparate numbers of voters.
More than a decade ago, in a losing case challenging politically skewed boundaries, Justice Anthony Kennedy signaled that there might be a way for the court to step. In every election, only 50 percent plus one vote determines the outcome. Elections would always result in some votes wasted. How imperfect can an election be before it is, in effect, rigged? Kennedy asked for a test, an objective way for the courts to weigh the finger on the scale and, importantly, a guide that would let states know if their maps would survive a lawsuit.
In the Wisconsin case, and in an earlier, successful challenge in the Pennsylvania Supreme Court of that state's gerrymander, experts proposed a new way: the efficiency gap — a measure of the extent to which gerrymandering disadvantages one party over another.
The political science professors, and the lawyers in the Wisconsin and Pennsylvania cases, argued that an efficiency gap greater than 7 percent should be the equivalent, they said, of a gerrymander that is on its face unconstitutional.
That is what basically happened in Pennsylvania. The state Supreme Court threw out the radical 2011 map drawn by state Republicans, and when the state could not come up with a legal new map, the court imposed its own.
"Drawing a fair map isn't hard," Gersh said. "Any mathematician with a map can do it. And that is what the court did."
The result is a map where Pennsylvania Democrats are likely to win at least 5 more seats in the fall.
"Make no mistake though: this map isn't gerrymandered to punish the Republicans. Democrats will win because the people vote for them," Keyser said. "The court delivered everything we want: fair districts. Because when organized labor plays in a game that isn't rigged, we win."
But the Pennsylvania decision only matters there. The U.S. Supreme Court could rule on the two cases before it as early as this June.
If the justices decide that the efficiency gap is the tool they asked for, and accept even 10 percent efficiency gaps as illegal, the electoral maps in at least 12 states would be unconstitutional.
But Gersh says this is a long shot.
Election 2018 is underway, and during March pleadings in the Maryland case, the justices seemed to signal a desire to avoid disrupting the election at this late stage.
"I expect them to either not rule or to postpone implementing their decision until after 2018," Gersh said.
However, if they throw out congressional and state electoral maps, and that is a very big if, the results would be transformational.
Saving Democracy, the Old-Fashioned Way
The second, more likely, way it will change, Gersh said, is winning statewide offices back from Republicans.
"We need to win states and make fair districting the law permanently," he said. "All we have ever needed is a fair playing field to succeed. We don't want the Democrats to cheat their way to unfair advantages and perpetuate the see-saw. We want a democracy that works for everyone."
Democrats are facing an historically unpopular president and a Congress that has thrown millions of people off health insurance, slashed worker protections and debt-funded a trillion-dollar tax break for the very richest Americans.
Thirty-seven states have gubernatorial elections in 2018, and whoever wins will likely still be in office when the census results are released in 2021 and maps are redrawn.
Republican governors hold office in at least 10 states that are toss-ups or majority Democrat, including Ohio, Wisconsin, Michigan, Illinois, Maine, Maryland, Massachusetts, Nevada, New Mexico and Vermont.
"The maps are so rigged in many states that taking back one or both state legislative houses is unlikely in 2018. The chances are only slightly better in 2020. A presidential election far enough off in the future it is difficult to predict," Gersh said. "But taking back at least these governorships is possible and necessary."
The next most important office to focus on for organized labor, Keyser said, is judges, especially state Supreme Courts in places where they are elected offices.
"That made all the difference in Pennsylvania. We got a fair hearing because there were good justices on the bench when we got there. That took work, and I am enormously proud of the work the IBEW did at the International and local levels."
The Cost of Staying Home
It seemed like a relatively small change at the time, said International Representative and former Detroit Local 58 Business Manager Michael Richard. The new Republican majority was closing down all the unemployment offices in the Michigan and moving everything online.
Then they announced they were cracking down on "fraud," and all hell broke loose.
"They required everyone who got unemployment checks to register with the state talent pool and apply for openings. But people in our business who get their jobs though their union hall were exempt from that requirement."
But the people who created the system left that out of the algorithm that hunted for fraud.
If the computer determined you were fraudulently collecting unemployment, it not only stopped checks, it withdrew the money it determined you had incorrectly received.
Nearly a dozen of his members watched their bank accounts drained in the depth of the recession.
"We fought it of course, but it took forever. In the meantime, marriages ended. People lost their homes. It was devastating for them, it was devastating for me to watch this happen," Richard said.
What made it worse, Richard said, was that he knew of several Democratic state legislators who lost because enough union members to make the difference stayed home.
"We could have won those elections. We could have stopped those maps being redrawn. We could have saved these brothers and sisters from losing their homes, from divorce, from being called a crook," he said.
"But we didn't. We stayed home and invited them to do it to us. That's the worst part. We could have stopped them if we had voted."