Leading Off
● South Dakota: On Thursday, South Dakota's Republican-dominated state government literally declared a "state of emergency" to repeal a voter-approved ethics reform law, in essence saying their burning desire to override the will of the public and trash ethics reform was a crisis equivalent to a hurricane or earthquake. Stunning.
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Particularly infuriating is that lawmakers' use of this emergency provision means that repeal will take effect immediately and is immune to a voter-referendum veto. And it would take twice as many signatures to initiate a constitutional amendment to restore the law as it would have to put a veto referendum on the ballot.
The ballot initiative, known as Measure 22, would have placed strict limits on lobbying, created an independent ethics commission, and implemented a first-in-the-nation public campaign finance system that would have given each voter a voucher to donate to their preferred candidates. These reforms passed by a 52-48 margin even as Donald Trump carried South Dakota by a 62-32 landslide, demonstrating that they had bipartisan support from the voters. Nonetheless, Republican Gov. Dennis Daugaard insultingly claimed that voters were "hoodwinked" into passing the initiative.
Repealing the voter-approved law in this manner is a slap in the face for voters who are fed up with corruption, but hopefully it will serve as a warning for reformers in the future: If you want to subject lawmakers to restrictions that they personally oppose, you'd better make sure that your proposals alter the state constitution instead of merely changing a statute that lawmakers can easily repeal.
Redistricting
● Lawsuits: New York University Law School's Brennan Center for Justice is an invaluable resource for tracking election law developments, and to that end, they recently published an overview of 2017's major unresolved redistricting lawsuits. Even though three of this decade's five federal election cycles have passed since the 2010 census, congressional and state legislative districts face unresolved challenges in seven states.
Plaintiffs are challenging Republican-drawn maps as unconstitutional racial gerrymanders in Alabama, North Carolina, Texas, and Virginia. Additional lawsuits seek to have Maryland's Democratic-drawn maps deemed an unconstitutional partisan gerrymander, while other challenges are attempting to invalidate Republican-drawn maps on partisan grounds in North Carolina and Wisconsin, the latter of which we cover in detail below.
Finally, Arizona Republicans are still attacking the state's voter-initiated independent redistricting commission-drawn congressional map, even though the Supreme Court turned back a high-profile challenge in a key 2015 ruling.
● Wisconsin: Late in 2016, a federal district court struck down Wisconsin's Republican-drawn state Assembly map as an unconstitutional partisan gerrymander. On Jan. 27, the court followed up that decision by ordering the legislature to craft new districts for the 2018 elections by Nov. 1. Of course, those same lawmakers were responsible for creating the very maps that were struck down in the first place, so it remains to be seen how the court will treat any remedial plans that legislators come up with, but this latest ruling represents progress in a case that's crucial for redistricting reform.
Wisconsin is one of the most gerrymandered states in the country: Democrats won the statewide popular vote for the Assembly in 2012, but the GOP's maps helped them easily maintain their majority. New maps could very well upend that state of affairs.
But even more importantly, this ruling could have much broader implications, because a likely appeal to the Supreme Court could set the stage for a national precedent constraining partisan gerrymandering, which is currently permitted. However, there's a twist: An earlier Supreme Court ruling called Vieth v. Jubelirer previously held that partisan gerrymandering could be unconstitutional—in theory. But in that case, Justice Anthony Kennedy, as the deciding vote, refused to strike down the particular map in question for lack of a manageable standard to determine when impermissible partisan gerrymandering takes place.
The plaintiffs in Wisconsin, however, have sought to overcome that problem by proposing one such standard called the "efficiency gap" that would examine how many votes get "wasted" in each election. Under this test, if one party routinely wins landslide victories in a few seats while the other party wins much more modest yet secure margins in the vast majority of districts, it could signify a gerrymander that has gone so far as to infringe upon the rights of voters to free speech and equal protection.
While the federal district court didn't rely solely on the plaintiffs' "efficiency gap" in reaching its decision, the opinion appears to have been precisely designed with Kennedy's Vieth ruling in mind. Should plaintiffs ultimately succeed in persuading the Supreme Court's perennial swing justice to finally set forth a standard to judge when partisan gerrymandering crosses the line, courts could begin striking down redistricting plans across the nation and at all levels. Nationwide, 55 percent of all congressional districts were drawn to favor Republicans, and the same is true of most state legislatures, so such a decision could have extremely far-reaching consequences.
● Michigan: Using the Wisconsin redistricting ruling discussed just above as a guide, Michigan Democrats announced that they plan to file a federal partisan gerrymandering lawsuit against the Wolverine State's Republican-drawn congressional and legislative districts. Their success will almost certainly depend on how the Supreme Court handles Wisconsin Republicans' appeal in Wisconsin, since courts have been loath to strike down maps over partisan gerrymandering claims due to the lack of an existing judicial standard.
If the Wisconsin ruling survives on appeal, Democrats should have an excellent case in Michigan, since it's arguably the most effectively gerrymandered state in America, having Republican-drawn maps ever since 2002. In fact, since that time, on four separate occasions—out of eight total election cycles—Democrats have won more votes than Republicans statewide for one of the legislature's two chambers while the GOP nevertheless won a majority of seats.
The 2016 legislative outcomes were a stellar illustration of the edge Republicans have built into the system. Last year's state House popular vote was almost perfectly divided at 50-50, yet Republicans won a 63-47 majority in seats. Recent redistricting court cases have tended to progress very slowly, so it's too soon to say if this lawsuit could affect the upcoming 2018 elections, let alone succeed at all. However, if the plaintiffs prevail, Michigan Republicans could find their gerrymanders significantly curtailed.
● Washington: Legislators from both parties have introduced several bills that would remove restrictions that prevent most cities from electing their city council members by districts instead of citywide. Seattle recently switched to electing several of its seats by district, while Yakima in eastern Washington, after losing a major Voting Rights Act lawsuit in 2015, was forced to draw new majority-Latino seats, leading to its first-ever Latino council members that year.
Shifting from an at-large system to a map that uses individual election districts is often critical for increasing the number of black, Latino, and Asian-American representatives at the local level in diverse cities. While federal law supersedes state restrictions like it did in Yakima's case, removing blockades at the state level would allow cities to switch to districts sooner and avoid costly legal battles.
● Gerrymandering: Even though Hillary Clinton won the national popular vote by 2.1 percent, Trump won 230 congressional districts to just 205 for the Democrat. One popular thesis holds that this odd result doesn't reflect the fact that Republicans have gerrymandered so many congressional districts to their advantage but rather comes about because Democrats have "clustered" themselves geographically. That is to say, most Democratic voters live in compact urban areas that vote overwhelmingly Democratic, while Republican voters are more efficiently spread out in suburbs or rural areas that are still red, but aren't quite so heavily Republican. In other words, goes this claim, how district lines are drawn isn't that important because Democratic voters have already gerrymandered themselves, so to speak.
But data analyst Xenocrypt undermines the assumptions behind much of this argument by pointing out how Clinton won counties covering 55 percent of the population, even though just 47 percent of Americans live in congressional districts that voted for her. In fact, if we ranked every county from Clinton's biggest margin to Trump's biggest margin and weighted them all by population, the one that would fall in the exact middle would be Boone County, Missouri, which Clinton won by 5.9 percent, nearly 4 points more than her national margin. By contrast, the middle-most congressional district, Virginia's 2nd, favored Trump by 5.5 points more than his national margin (of negative 2.1 percent, of course).
Two different sets of lines—counties versus districts—and two very different medians: This tells us that "clustering" is in the eye of the beholder and heavily dependent on whichever arbitrary set of boundaries you choose to examine. Indeed, Daily Kos Elections' past work has similarly strongly suggested that geographic clustering has a far smaller impact than gerrymandering does in explaining why Republicans win so many more seats than their popular vote share. This has major implications for the potency of redistricting reform efforts around the U.S. to alleviate some of the worst disparities between popular vote and legislative seat outcomes.
Voter Suppression
● Arkansas: The Republican-dominated Arkansas state House recently gave its backing to a voter ID bill, and the state Senate will likely soon follow suit. Republicans previously passed a voter ID measure in 2013 after winning their first legislative majorities in 140 years, but the state Supreme Court struck down that law for violating the state constitution.
Two elections later, Republicans now have nearly three-fourths majorities in both chambers, and legislators believe passing a new bill with supermajority support will satisfy judicial review this time, especially since several court members have been replaced since 2013. If all else fails, a Republican state senator has introduced a legislative resolution that would refer a state constitutional amendment to voters in 2018 over the matter, and given the state's strongly conservative lean, it would have a good chance of passing.
● Iowa: Republicans in Iowa, after recapturing the state government for the first time in two decades last fall, began an all-too-typical push to restrict voting rights, with voter ID among their top priorities. There was a recent glimmer of hope, though, when Republican Secretary of State Paul Pate at least somewhat plausibly argued that his voter ID proposal, which does not ask for a photo ID and would provide free IDs to those who lack them, is not aimed at rooting out nonexistent fraud but rather intended to streamline election administration. However, we previously warned that legislators might not listen to Pate's proposals, and indeed, several Republican lawmakers have introduced bills that would require a stricter photo ID—and also eliminate same-day voter registration.
● North Dakota: North Dakota's overwhelmingly Republican state House easily passed a bill that would make the state's voter ID requirement stricter. North Dakota is unique in that it literally does not even have voter registration; eligible voters only need to prove their residency. Thus, requiring some form of identification makes more sense than it does in other states, even if impersonation fraud is still practically nonexistent. However, under the current law, those who lack a proper ID are able to sign a sworn affidavit allowing them to vote, but this new bill removes that option.
More than 16,000 voters—roughly 1 in 20 who cast a ballot in 2016—used the affidavit option last year, and could therefore find themselves disenfranchised under the new voter ID bill. In fact, this isn't the first time the North Dakota GOP has tried to make its voter ID laws tougher: A federal court stayed a previous effort last year because it unfairly burdened Native American voters, who often lack a driver's license, birth certificate, or even a residential address if they live on one of the state's reservations. Unfortunately, legislators might believe that their new attempt at a stricter ID law will survive judicial review once Trump appoints a new conservative Supreme Court justice.
● Virginia: This week, Virginia's Republican-majority state House passed a bill that would require proof of citizenship to vote in non-federal elections. Federal courts have repeatedly struck down this requirement as conflicting with federal law after Kansas and other states tried to amend federal voter registration forms to demand such proof. Voters already have to swear that they are citizens when registering, and it's a felony to answer fraudulently. Studies indicate that non-citizen voting is practically nonexistent, but there are plenty of eligible voters who lack the appropriate documents and could thus be disenfranchised.
Unfortunately, with Trump about to appoint a new Supreme Court justice who will assuredly be hostile to voting rights, we might expect to see Republican legislators pursue this tactic in more states, hoping for validation by the country's highest court. Alternately, congressional Republicans could just change federal registration laws to clear the way for proof-of-citizenship requirements. But for the time being, even if this bill passes the state Senate, where Republicans only hold a one-seat majority, Democratic Gov. Terry McAuliffe would certainly veto it. However, if Republicans win the critical open-seat race to succeed McAuliffe this November, they could pass this and other restrictive voting laws.
● Wyoming: Bucking the trend of their brethren in other states, Republicans in Wyoming's state House killed a voter ID bill that one GOP legislator had introduced. Wyoming doesn't require a photo ID to vote even though it's one of the most Republican states in the country, but that latter fact very probably explains the former: Cowboy State Republicans likely aren't interested in passing voter ID because they don't need it to win.
Voting Access
● Mississippi: As expected, Mississippi's Republican-controlled state House almost unanimously passed a bill to allow 14 days of early voting after three election-reform bills sailed through a committee last week. Mississippi is one of just 13 states that neither offers in-person early voting nor allows absentee voting without an excuse. But despite the bill's overwhelming bipartisan support, it faces dicey prospects in the state Senate, where the Republican Elections Committee chair opposes it. A similar bill passed the House last year only to die in the Senate.
● Wyoming: Wyoming's state House passed a bill to reform the voting rights restoration process for citizens with non-violent felony convictions who have completely served their sentences. Wyoming currently has one of the harshest laws on felony disenfranchisement, with 5 percent of the population unable to vote, including 17 percent of the state's small African-American population. At present, those who have completed their sentences have to go through a burdensome application process to restore their right to vote. As a result, almost three quarters of the state's disenfranchised population have fully served their sentences.
This bill would make the restoration process automatic for those who finished their full sentence (including probation and parole) from 2010 or afterward. This reform is far from perfect since those whose sentences ended before 2010 would still have to fill out a request form, and those who are still serving out their sentences would remain disenfranchised. Nonetheless, it's noteworthy that a reform to expand the franchise for thousands even has a chance of becoming law in a state where Republicans hold enormous legislative supermajorities.
