Voting Rights Roundup: Republicans around the country plot to gerrymander the Electoral College

Daily Kos Staff

Friday January 27, 2017 · 1:07 PM PST

2017/01/27 · 13:07

PHILADELPHIA, PA - JANUARY 26: U.S. President Donald Trump shakes hands with Speaker of the House Paul Ryan (R-WI) while Vice President Mike Pence (C) looks on during a luncheon at the Congress of Tomorrow Republican Member Retreat January 26, 2017 in Philadelphia, Pennsylvania. Congressional Republicans are gathering for three days to plan their 2017 legislative agenda. (Photo by Bill Clark-Pool/Getty Images)

Leading Off

● Electoral College: Despite losing the popular vote, Donald Trump just won the presidency thanks to our archaic Electoral College—and now Republican legislators in key states are plotting to make our electoral system even less democratic. Republicans in Minnesota, New Hampshire, and Virginia have all proposed allocating one electoral vote to the winner of each congressional district and two to the statewide winner, something that only Maine and Nebraska currently do. While this change might sound like a reasonable reform on the surface, Republicans have only one purpose in mind: gerrymandering the Electoral College.

How this works is simple. Fifty-five percent of all congressional districts were drawn to favor Republicans follow the 2010 census, while just 10 percent were drawn to benefit Democrats. Consequently, Trump carried 230 districts to just 205 for Hillary Clinton, even though Clinton won nearly 3 million more votes nationwide. So if every state awarded electoral votes by congressional district, Trump still would have prevailed. And guess what? Mitt Romney would also have won this way in 2012, and George W. Bush would have in 2000, too.

Republicans will cynically argue that this change promotes fairness. If you were to award electoral votes by district in Minnesota, Clinton and Trump would have each gotten five, while in Virginia, Clinton would have earned seven and Trump six. Republicans will note that the popular vote in both states was relatively close, so they’ll say that splitting electoral votes would have better reflected that vote, as opposed to the current winner-take-all system.

However, each state’s electoral votes don’t exist in isolation, and awarding them by district only in states Clinton carried would, of course, only expand the GOP’s Electoral College edge. And it’s extremely telling that no red states are currently considering similar proposals. After all, Hillary Clinton won 14 districts in Texas. Why aren’t Lone Star Republicans advancing a similar plan? That’s a question that doesn’t need an answer.

However, the news isn’t all bad—at least, not yet. New Hampshire Republicans could pass their proposed bill since they completely control the state government, but it would only swing one electoral vote there, and fortunately, this legislation has yet to gain traction in the Granite State. And in Virginia, a state House subcommittee approved a measure before its chief proponent abandoned his bill this week amid public backlash. But more worrisome is Minnesota, where the Republican state House speaker just threw his backing behind such a scheme.

For the moment, Minnesota and Virginia currently have Democratic governors who could veto such bills, but that could change. Minnesota faces a critical open-seat gubernatorial election in 2018, while Virginia has one this year. If Republicans were to gain the governors’ offices and hold the legislatures there, they could easily pass these Electoral College gerrymandering schemes in two key swing states. And even if they don’t, they could still prevail: The Republican-controlled legislatures in both states could still put these changes up to a popular vote with just a simple majority vote. Democrats everywhere need be on guard.

Voter Suppression

● Trump Administration: Trump set off another media frenzy when he repeatedly lied to claim that as many as 5 million non-citizens cast ballots, all of them for Clinton, using the numbers to falsely assert that he actually won the popular vote. Most chillingly, Trump offered an anecdote that strongly implied he doesn’t believe non-white citizens “look like” they should be voters. This idea of rampant illegal voting has been repeatedly debunked by researchers, election administration officials, and even Trump’s own legal team, which argued that there was no evidence of widespread fraud when it persuaded a court to block Michigan’s recount.

Nonetheless, Trump has pledged to investigate the matter. However, as befits a man who attained political stardom as the most prominent person to deny that Barack Obama was born in the U.S., it would be absurd to hope that Trump’s investigation would be an impartial exercise that would inevitably reveal that fraud is extremely rare. Instead, it will serve as an excuse for Trump and Republicans to push through new voting restrictions.

Indeed, one of America’s chief voter suppression architects, Kansas Secretary of State Kris Kobach, says he advised Trump on the matter. Accordingly, Trump’s upcoming voting restrictions could take a page from Kobach’s playbook and include mass purges of voter registration rolls; burdensome proof-of-citizenship requirements that federal courts have previously blocked states from implementing; a national voter ID requirement; and even a rollback of the 1993 National Voter Registration Act, the so-called “motor voter law” that requires states to offer registration at public assistance and driver’s license offices.

Trump has already taken actions that show just how quickly the executive branch will shift from defending voting rights under Obama to helping undermine them. He appointed to a top civil rights post a lawyer who had played a key role in defending many recent Republican gerrymanders, which courts have increasingly invalidated. We can easily imagine what the rest of his “fraud investigation” team will look like.

Voter ID

● Arkansas: A state House committee approved a Republican-backed voter ID bill, and its chance of passing appears high. Arkansas Republicans used their first legislative majorities since Reconstruction to implement a voter ID requirement in 2013, only to see the state Supreme Court strike it down in 2014 for violating the state constitution. However, Republicans have significantly expanded their legislative majorities in the last two elections, and they believe that passing the bill with two-thirds supermajorities will enable it to survive judicial review this time.

● Wyoming: Wyoming’s state government is almost monolithically Republican, and appropriately enough, it was Trump’s single best state in 2016, yet it still does not require any sort of photo ID to vote. One Republican legislator now wants change that, introducing a bill to require some form of ID to cast a ballot. It remains unclear whether this measure will attain broader support in a state that is already so uniformly Republican, which just goes to show that most Republican legislators don’t support voter ID because they’re concerned about fraud, but as a means to winning elections.

Republican Power Grabs

● Mississippi: The Republican-controlled state House passed a bill that would neuter much of the attorney general’s independence by forcing him to obtain the permission of the governor, lieutenant governor, and secretary of state before filing any lawsuit seeking an award of $250,000 or more. All of those other officers are Republicans, of course, but oh, did we mention that Attorney General Jim Hood is Mississippi’s last statewide Democratic elected official? Yeah, that would explain it. The GOP wants to block Hood from standing up for consumers by suing big corporations—including insurance companies that still hadn’t paid out claims for Hurricane Katrina a decade later—something he’s done frequently done in his 13 years in office.

Like their brethren in North Carolina, Mississippi Republicans seem to reject the legitimacy of Democrats who hold elective office. Just a year ago, the same Mississippi state House refused to seat a Democrat who had rightfully won an election through the established tie-breaking method, instead using their legal authority to override existing election procedures and install the Republican candidate instead. These moves to nullify election outcomes are part of a disturbing trend happening around the country, as we cover in a few more stories below.

● North Carolina: As we alluded above, Republicans in North Carolina have gone to greater extremes to undermine the power of duly elected Democrats than in any other state. Their latest episode involves reportedly threatening to outright dissolve the city council of Charlotte after its Democratic majority and mayor sought to expand LGBT protections (which led the GOP legislature to pass the notorious HB2 “bathroom bill”). North Carolina grants the legislature very broad authority to meddle in local government affairs, and Republicans have already used that power to gerrymander city and county governments across the state, so this is no idle threat.

● South Dakota: When it comes to showcasing contempt for voters, South Dakota Republicans are giving their colleagues in North Carolina a stiff challenge. Last year, voters passed Measure 22, a ballot initiative that implemented a package of ethics and campaign finance reforms. Almost immediately afterward, the Republicans who dominate South Dakota’s state government plotted to nullify the statute. On Tuesday, the state House quickly passed a bill that would effectively eviscerate the voter-approved ethics reform law. Especially galling is that lawmakers have literally declared a “state of emergency” so that the repeal measure would take effect immediately and be immune to a voter-referendum veto.

Measure 22 would place strict limits on lobbying, create an independent ethics commission, and establish a first-in-the-nation public campaign finance system that would give each voter a voucher to donate to their preferred candidates. These reforms passed by a 52-48 margin even as Donald Trump won a 62-32 landslide, indicating that they had bipartisan support from the voters. Nonetheless, Republican Gov. Dennis Daugaard insultingly claimed that voters were “hoodwinked” into passing the initiative, and he’s pledged to sign a repeal bill as soon as the state Senate approves it next week.

There’s a lesson here for reformers: If you’re going to use ballot measures to circumvent hostile legislators and constrain their power, make sure your reform doesn’t merely add new statutes to the books—which can easily be overturned—but instead amends the state constitution if possible. And there’s a lesson here for voters, too: Republican politicians don’t give a damn about what you think.

● Texas: Republican Gov. Greg Abbott intends to ask the Republican-dominated state legislature to pass a new law that would allow him to remove certain elected local officials from office, after the Democratic sheriff of Travis County, home to the state capital of Austin and 1.2 million people, refused to kowtow to federal immigration law enforcement officials. Such a law would effectively nullify the voters’ ability to elect their preferred officials in this staunchly Democratic county, and it could potentially even be used against local officials elsewhere if broadly written.

● Virginia: The Republican-controlled state House passed a bill along party lines to strip the governor of his power to appoint temporary replacements to the U.S. Senate in the event of a vacancy, instead requiring a special election to take place before anyone could be seated. This measure is squarely aimed at Democrats after Sen. Tim Kaine nearly became vice president in 2016, which would have allowed Democratic Gov. Terry McAuliffe to appoint a successor who would have served until Virginia’s regular statewide elections this November. Should the state Senate approve the bill, McAuliffe would likely veto it, but Republicans could put it on the 2018 ballot as a state constitutional amendment with a simple majority vote in two consecutive legislative sessions.

Republicans cynically defended their bill by claiming it would bring power back to the people, but they conveniently ignore that oddly timed special elections often have abysmal turnout compared to regularly scheduled general elections. A much fairer reform for handling congressional vacancies would be to require any replacement appointee to come from the same party as the departing member, which is what many states already do for vacancies, but this bill is transparently intended to cost Virginia Democrats one of their two Senate votes instead of honoring the electorate’s will.

Redistricting

● Alabama: A three-judge federal court recently ruled that a dozen state legislative districts in Alabama violated the constitution and instructed the legislature to redraw them—an order that could ultimately affect many more districts that neighbor the illegally drawn seats. Republican lawmakers, who control the legislature, had intentionally packed black voters into a handful of majority-black districts in order to dilute their influence in adjacent seats.

Republican legislators claimed their map was necessary to comply with the Voting Rights Act, which requires that states create districts where communities of color can elect representatives of their choice. But, said the court, lawmakers could not comply with the law by arbitrarily setting a threshold for a minimum black population per district; instead, they must determine the proportion of black voters needed to elect their preferred legislators on a case-by-case basis—and that proportion is almost invariably lower than the higher bar that Republicans had used.

This same three-judge panel had originally upheld these maps in 2013 before the Supreme Court overturned that ruling in 2015, sending it back to the lower court for reconsideration. If Republican legislators appeal January’s ruling, the case could go back before the Supreme Court again, where swing Justice Anthony Kennedy would hopefully side with the court’s four liberals once again and finally set down a national precedent that would define the rules governing the permissible use of race in redistricting.

Whatever the Supreme Court decides, though, Alabama remains implacably Republican, and even if they’re barred from engaging in impermissible racial gerrymandering, white Republicans would continue to overwhelmingly control the legislature. Nonetheless, this ruling could have major implications for other similar maps that Republicans have instituted across much of the South.

As Daily Kos Elections has previously demonstrated, nearly every Southern state could have drawn another congressional district to elect the candidate of choice of black and Latino voters, Alabama included. Similarly, Republican legislators in many Southern states intentionally drew legislative district maps that limited the power of black and Latino voters, and consequently Democrats.

Should courts start striking down these other maps or imposing new restrictions during the upcoming round of redistricting following the 2020 census, Democrats could gain several congressional districts and many more legislative seats. Such rulings could even potentially tip the balance of power in more closely divided state legislatures like in North Carolina and Virginia, where the Supreme Court is about to decide two other major racial gerrymandering cases.

Voting Rights Court Cases

● Texas: The Lone Star State saw a major voting rights court victory last year when the notoriously conservative 5th Circuit Court of Appeals nonetheless ruled that Texas’ strict voter ID discriminated against black and Latino voters and blocked it from taking full effect for the 2016 elections. However, that victory was only partial, since the court did not find that there had been a discriminatory intent as well as effect, and the judges only required measures to mitigate the law instead of throwing it out entirely, which did not completely blunt its burdensome impact.

Following 2016’s ruling, Republican legislators appealed to the Supreme Court, but on Monday, the court refused to take up the case, allowing the appeals court’s ruling to stand. However, Chief Justice John Roberts left the door open to hearing the matter at a later date, implying that the court could revisit the issue once Trump appoints a replacement for Antonin Scalia. Texas’ reprieve from strict voter ID could thus prove temporary, and the law could once again go back into full force once voter ID supporters regain their fifth seat on the Supreme Court.

Indeed, Trump’s Justice Department itself might be content to delay a resolution as it prepares to take over the case from the Obama administration. Trump’s attorney general nominee, Jeff Sessions, has all but said that his department would switch sides to defend the law after Obama’s Justice Department had fought it.

Elsewhere in Texas, a federal district court recently ruled that the Houston suburb of Pasadena intentionally discriminated against Latino voters with its 2013 city council redistricting plan, forcing it to revert back to the previous districts. This finding of intentional discrimination importantly allowed the court to use the Voting Rights Act to order the city of 154,000 people to “preclear” any changes to election procedures with the Justice Department for the next six years.

Critically, this court ruling is the first to put any jurisdiction back under such scrutiny since the Supreme Court gutted a key provision of the VRA in 2013 that had required a large number of predominantly Southern states like Texas with a history of racial discrimination to vet any proposed voting changes with the Justice Department. That decision, Shelby County v. Holder, eliminated the traditional preclearance regime, prompting white Republicans in many states and cities to rush an array of restrictive voting laws into effect.

Of course, Trump’s administration now controls the Justice Department, and Sessions is an extreme enemy of voting rights. Therefore, even if Pasadena is required to clear future changes to its voting procedures, Sessions may just give the city a green light to do whatever it pleases. However, should Democrats regain the presidency and thus the Justice Department, they might one day use this precedent to at least partly get around congressional Republicans’ opposition to restoring the full Voting Rights Act.

Voter Registration and Early Voting

● Hawaii: Democratic legislators in Hawaii have introduced bills that would establish automatic voter registration and transition the state to a vote-by-mail system. Legislation designed to implement both reforms had narrowly failed in the previous session after different versions passed each chamber, but the proposals now face renewed urgency after Hawaii’s turnout rate once again ranked dead last in 2016 at a pitiful 42 percent. Democrats completely dominate Hawaii’s state government—in fact, the state Senate doesn’t have a single Republican member—so passage is just a matter of overcoming any intra-party opposition.

● Mississippi: A committee in the Republican-majority state House unanimously passed three bills that would allow 14 days of early voting, provide for online voter registration, and establish a study committee on reforming the voting rights restoration process for those with past felony convictions. Mississippi is one of just 13 states that doesn’t allow in-person early voting or unexcused absentees. It also disenfranchises nearly 10 percent of its population, more than any other state besides Florida, including a staggering 16 percent of African-Americans.

Similar bills previously passed the House in 2016 by a near-unanimous margin, but the Republican-controlled state Senate thwarted the measures. While the chances of these reforms passing the House this year appear strong, their fate in the Senate is once again less favorable, with the relevant committee chairwoman sounding highly skeptical of the House’s proposals.

● New Mexico: Despite the party’s awful election night in most of the nation, Democrats regained control over New Mexico’s legislature in 2016. Now, three Democratic legislators want to use their newfound powers to place a state constitutional amendment on the 2018 ballot that would pave the way for automatic voter registration. While the proposed amendment thus far lacks specifics, it has the support of Democratic Secretary of State Maggie Toulouse Oliver. Importantly, Republican Gov. Susana Martinez can’t block the legislature from calling such a referendum, since only a simple majority in both houses would be required to put it up to a public vote.

Voting Rights Roundup: Republicans around the country plot to gerrymander the Electoral College

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