● Redistricting Reform: At Daily Kos Elections, we have long advocated for ballot initiatives to implement nonpartisan redistricting at the state level to combat gerrymandering, which states like California have successfully done in the past. Very helpfully, the Brennan Center has published a roundup of which states have active efforts to put redistricting reform on the ballot in 2018, which we’ve highlighted in the map at the top of this post. Below we list each state, with links to our most recent coverage of each effort. In parentheses, we've also included which party would control redistricting if it took place today.
Of these efforts, we haven't previously discussed Missouri and South Dakota. A group called Clean Missouri is organizing the push in the Show Me State, and they want to implement independent redistricting for the state legislature as part of an initiative that would also institute a broader set of ethics and campaign finance reforms. Unfortunately, the proposal doesn't cover congressional redistricting thanks to a constitutional limit on the scope of a single initiative.
Under current law, the two major parties appoint members of a bipartisan commission that draws new legislative districts each decade. The proposed reforms would instead have the state auditor draw up a pool of applicants from which a nonpartisan state demographer would be selected. That person would then be tasked with drawing the maps, subject to the commission's approval.
The demographer would be explicitly directed to use a statistical model known as the “efficiency gap” that’s design to gauge partisan fairness, which we have previously explained in detail. While the maps would not be designed to yield outcomes perfectly proportional to the popular vote, they would aim to treat both parties the same. For instance, if the GOP could win 65 percent of seats with 55 percent of the vote and Democrats could also win 65 percent of districts with 55 percent of votes, then the maps wouldn't give one party an asymmetric advantage over the other.
Other states like California have completely ignored partisanship as a criterion, while Arizona uses it to ensure competitive districts without intentionally favoring one party or the other. However, Democrats in Missouri face a distinct geographic disadvantage, since the vast majority are concentrated in St. Louis and Kansas City while Republicans are more efficiently spread out throughout the state. As such, setting out to make maps that treat the parties more fairly could give Democrats a more proportional share of seats, even if they would still be unlikely to win majorities in this red state. The proposal would also attempt to ensure that a certain number of districts are competitive between the two parties.
Clean Missouri hasn't yet turned in the roughly 160,000 voter signatures needed to make the ballot. However, they’ve raised a strong $1.2 million so far and had $700,000 on-hand at the end of the September reporting period. That should give the group a great chance of obtaining enough signatures by their early May deadline.
Meanwhile, in South Dakota, activists are trying again after opponents defeated a 2016 attempt. South Dakota only has a single congressional district and is unlikely to gain another one for the foreseeable future, so this proposal would only affect state legislative redistricting. Republicans would almost certainly control the process again given how red South Dakota is, and they will accordingly resist this effort just as they did in 2016. While last year's ballot measure lost 57-43, that result nevertheless showed the idea has some genuine bipartisan appeal, seeing as Donald Trump carried the state by a much wider 62-32 margin.
The 2018 proposal would remove the legislature's control over redistricting and hand it over to a nine-member citizen commission selected by the state Board of Elections. The panel would consist of three Democrats, three Republicans, and three independents, none of whom can have been officeholders or party officials for three years before their appointment nor become one for three years afterward. This amendment would prevent the commissioners from considering partisan data or incumbency when drawing the maps while also requiring them to rely on nonpartisan criteria such as communities of interest and compactness.
Organizers in South Dakota already turned in 34,000 signatures in November, though officials have yet to verify the roughly 28,000 needed to get on the ballot in 2018. Although supporters face a tough challenge after last year’s loss, it's possible that the political climate in 2018 will be more hospitable, especially without a presidential race to polarize the environment.
● Pennsylvania: Pennsylvania's Republican-drawn congressional map faces no fewer than three lawsuits seeking to have the courts strike it down for partisan gerrymandering. One federal trial commenced on Dec. 4, while a state-level trial will start on Dec. 11 (a third federal case is on hold). That state case likely stands the best chance of successfully invalidating the GOP's map in time for the 2018 midterms since it relies strictly on provisions of the state constitution, leaving the U.S. Supreme Court with little latitude to override any eventual ruling by the state Supreme Court (which is dominated by Democrats). If the courts strike down the map, Democratic Gov. Tom Wolf could veto another GOP gerrymander, forcing judges to draw entirely nonpartisan districts.
Daily Kos Elections has published a new analysis of what such a nonpartisan replacement could look like by creating a hypothetical map that uses the same sort of neutral criteria the court would, such as keeping cities and counties whole, while ignoring partisanship and where incumbents live. We estimate that GOP gerrymandering likely cost Democrats anywhere from one to four seats in 2016, and if a map like ours became a reality, Democrats could gain anywhere from one to six seats in 2018, which could play a decisive role in whether Democrats gain a majority in the U.S. House next year. Our map would also likely add a second black member, leading to black representation that is more proportional to the state’s overall population.
The stakes of these lawsuits are consequently high for both parties, and Republican legislators have tried to refuse turning over evidence that could prove to the court that they acted with partisan intent. Demonstrating improper intent is essential to a successful case: While statistical methods can help argue that the map couldn't have been drawn had mapmakers not sought to maximize their partisan advantage, finding an actual admission would be a smoking gun.
State House Speaker Mike Turzai and state Senate President Pro Tem Joseph Scarnati have claimed that legislative privilege protects them from having to disclose communications from the mapmaking process, but a federal court recently ordered the two Republicans to sit for depositions. Republicans then tried to place this deposition testimony under seal to prevent plaintiffs in the state-court lawsuit from using it, since that court had yet to require any depositions. However, the federal court also denied that request, meaning that state plaintiffs will be able to use the testimony of Turzai and Scarnati in that lawsuit, too. While the two GOP leaders have tried to obfuscate their true intent, top staffers have testified in the federal trial that mapmakers did indeed use partisanship as one criteria among others.
Although the federal trial began first, Republicans in that case stand a much better chance of dragging things out with an appeal to the conservative-dominated U.S. Supreme Court if they lose at the lower level. Consequently, the state court case that will begin trial this coming Monday stands the strongest chance of forcing Pennsylvania to adopt fairer congressional districts for 2018.
● Republican National Committee: On Dec. 11, a federal consent decree to prevent the Republican National Committee from engaging in voter suppression expired. This legal settlement had been in place since 1982 after the Democratic National Committee sued the RNC over the latter's involvement in "ballot security" measures in New Jersey's 1981 gubernatorial election. In that race, the RNC had mailed sample ballots to voters in areas with large black and Latino populations, then tried to get election administrators to purge the voter registration of anyone whose sample ballot was undeliverable in the mail. They also hired off-duty police officers to patrol precincts in those same neighborhoods under the guise of a "National Ballot Security Task Force."
These acts of brazen voter intimidation and attempts to remove eligible voters from the rolls might very well have determined the outcome of that race, as Republican Tom Kean defeated Democrat Jim Florio by less than one tenth of one percent. They also landed the GOP in hot water, and the RNC has had to take steps to avoid the appearance of supporting voter suppression ever since. These steps included procedures to prevent RNC officials from overtly aiding state-level Republicans from passing new voter restrictions, but they also included things as specific as the Donald Trump campaign having to post a sign outside the door of their poll-monitoring offices that plainly stated no RNC officials could even enter.
While the judge hearing the case determined that the consent decree should lapse because Democrats hadn’t provided sufficient evidence that Republicans were still engaging in proscribed activities, the matter isn’t over just yet. News recently surfaced that former White House press secretary Sean Spicer had indeed entered that verboten Trump office during the campaign even though he was very much an RNC official at the time. Democrats have pointed to Spicer's behavior in an attempt to persuade the court that it should extend the decree, and the judge has allowed them to depose Spicer. However, election law expert Rick Hasen writes that it's unlikely this will be enough convince the court to rule for Democrats. Still, leave it to Spicey to keep screwing things up for Republicans.
Unfortunately, the consequences of the RNC getting out from under this decree could be very scary. Republican legislators have passed new voting restrictions in state after state over the last decade, so having the RNC become free to coordinate those efforts would only make matters worse. Given Trump's proclivity for claiming that nearly non-existent voter fraud is widespread, his control over the RNC could help him push even more restrictive voting policies without any worries about judicial intervention.
● Texas: Back in August, a panel on the Fifth Circuit Appeals Court struck down a law Texas Republicans had passed that barred anyone from providing language translation on a voter's behalf unless that translator was also registered to vote in the same county. The court held that this provision violated the Voting Rights Act, which guarantees assistance for those with visual impairments, disability, or limited literacy so long as the person helping the voter isn't their employer or union leader. While it seemed likely that Republicans would appeal to the Supreme Court, the Texas Tribune reports that they’ve apparently declined to do so, meaning the ruling will stand.
● Idaho: Idaho has finally implemented a recent law allowing voters to register online, joining 36 other states (and Washington D.C.) that have already done so. There are still 11 states, home to roughly one-fifth of Americans, that have yet to pass a law enabling online registration, while Oklahoma has a law on the books but still has yet to implement it. (North Dakota doesn't require voter registration at all).
● Virginia: Control of the Virginia state House has come down to just a few races that are going to recounts following November's election. However, election administrators have previously revealed that at least 147 voters were given ballots for the wrong district in Fredericksburg, possibly swinging the outcome of the 28th District election, where Republican Bob Thomas leads by a mere 82 votes against Democrat Joshua Cole. Now, Democrats have formally filed papers asking the court to void the tainted outcome and order a special election be held instead. The federal judge hearing this matter had previously denied Democratic efforts to delay certification of this race, but he also suggested Democrats could have a case if they sought to force a new election.
Programming Note: The Voting Rights Roundup will be on hiatus the week of Dec. 15. We’ll return the following week.