● North Carolina: On Monday, the Supreme Court delivered a monumental victory for voting rights when it declined to hear an appeal from Republican North Carolina legislators seeking to reinstate one of the broadest restrictive voting laws since Jim Crow after an appeals court struck it down in last year. Passed almost immediately after the Supreme Court gutted a key part of the Voting Rights Act in 2013, this voter suppression law was so flagrantly and intentionally discriminatory that the appellate judges declared it targeted black voters “with almost surgical precision.” Monday’s Supreme Court decision means that that ruling will now stand.
Just how surgical? Republicans had literally ordered data on which voting methods black voters used more frequently than white voters, then eliminated those very methods. Some of the GOP’s other changes to the law included a harsh voter ID requirement that precluded types of ID that black voters were more likely to possess; cuts to early voting hours and locations; an end to same-day registration; the elimination of pre-registration for 16- and 17-year-olds who would turn 18 by the next election; and preventing voters from casting ballots if they showed up at the wrong precinct, even if they were in the right county. Republicans even sought to eliminate early voting on Sundays, specifically because predominantly black churches have historically conducted “souls to the polls” voter drives following services right before Election Day.
Republicans defended their law by claiming that it didn’t target black voters because of their race but rather because they vote heavily Democratic—still a brazenly undemocratic argument. However, the appeals court’s ruling rejected these claims, holding that when party and race are so intertwined as they are throughout the South, targeting the party that black voters overwhelmingly support (and whites largely don’t) via methods that knowingly single out black voters still amounted to intentional racial discrimination and was thus illegal.
While the Supreme Court’s refusal to hear the appeal does, as noted, leave the lower court’s decision in place, it’s important to note that the high court’s conservative majority didn’t rule against the law on the merits. The court hinted that one reason why it might not have taken up the case was due to the thorny legal issue of “standing,” a doctrine that governs who actually has the right to bring a lawsuit.
This issue grew complicated because North Carolina’s governor and the state board of elections were the original defendants, but that’s since changed. After Democratic Gov. Roy Cooper narrowly ousted Republican Pat McCrory, the incumbent governor at the time, in last year’s pivotal election, Cooper declined to continue the Republicans’ appeal, leaving no one with obvious legal standing to defend the law.
As a result, this sweeping victory could prove temporary, since it does not preclude future rulings that are hostile to voting rights in other upcoming major cases. Indeed, North Carolina’s Republican legislators almost immediately began talking about passing new measures in response to the Supreme Court’s decision, and since the court didn’t express any opinion about the merits of the now-invalidated law, new voter suppression measures could survive future litigation.
If Republicans do attempt to pass new voting restrictions, they do so under the cloud of the Fourth Circuit’s finding of intentional racial discrimination, which could be grounds to force North Carolina to obtain Justice Department approval for all voting procedure changes. This “preclearance” regime existed for several mostly Southern states with a history of discriminatory voting laws until the Supreme Court’s aforementioned 2013 Voting Rights Act ruling. While Attorney General Jeff Sessions is unlikely to block any voter suppression efforts, a future Democratic administration could. That threat might blunt the edges of anything GOP legislators try to pass in 2017.
● New Hampshire: Granite State Republicans have passed a bill out of a state House committee on a party-line vote that would tighten residency requirements needed to vote, an effort that appears to be targeted at Democratic-leaning demographics like college students. The new provision would require that those registering to vote provide proof of their “domicile,” not just their residency, which means that registrants would need to provide documentation demonstrating that they actually live at their address day-to-day. The state Senate previously passed a slightly different version of the bill along party lines, and GOP Gov. Chris Sununu supports it, though such legislation might be unconstitutional.
● Texas: Texas’ Republican-majority state Senate followed up on a recent state House vote by approving a bill to end the straight-ticket voting option, sending it back to the lower chamber to reconcile slight differences with the House version. The Senate GOP’s proposal would leave the option in place for the 2018 elections and delay implementation until the 2020 presidential cycle. GOP Gov. Greg Abbott has not made his stance on the bill known, but he has supported a slew of Republican-backed voting restrictions in the past.
A majority of voters in recent elections have used this option, meaning its removal will likely lead to significantly longer voting times. It could also prompt an increase in “undervoting”—that is, voters skipping lower-profile races further down the ballot—because Texas often has several dozen partisan offices up for election each year, including more obscure contests like those for judgeships. Studies have shown that black and Latino voters are more likely to use the straight-ticket option than whites, so its elimination will likely disproportionately harm them via longer voting lines, which could deter voters from casting a ballot entirely and consequently benefit Republicans.
● Alabama: Alabama’s heavily Republican legislature passed a bill to redefine the term “moral turpitude” for the purposes of determining which types of felonies result in voter disenfranchisement. This might sound like an arcane issue, but it’s of major importance, because the term’s broad interpretation included nearly every felony on the books, leading to a widespread restriction in voting rights. Instead, the new definition will cover fewer than 50 specific offenses. A spokesperson for GOP Gov. Kay Ivey said her boss “will probably sign it,” but veto override only requires a simple majority in the event that Ivey tries to block the bill.
According to the Sentencing Project, Alabama bans one in 13 citizens from voting, including one in six African-Americans, making it one of the worst states when it comes to felony disenfranchisement. This change is a positive first step that could lead to the restoration of voting rights for tens of thousands of Alabama citizens, but its precise potential impact is unclear and would still leave many without the right to vote. This includes those who have fully served out their sentences, meaning there is still a long way to go to correct this racially discriminatory policy.
● Alabama: As expected, the Republican-controlled state House has passed the state Senate’s bill to redraw the upper chamber’s districts following a federal court ruling earlier this year that struck down a dozen seats across both chambers on the grounds that they represented an unconstitutional racial gerrymander. The Senate will likely follow suit by approving the House’s recent bill to redraw the lower chamber’s maps before the legislative session ends on Friday.
Democratic legislators, many of whom are black, have vociferously opposed the new maps for failing to remedy the racial harms of the existing districts, but with dominant GOP majorities, there is little that they can do to prevent these bills from passing. However, the same federal court will ultimately get to review any new maps before they go into effect, and voting rights proponents will almost certainly object to the new maps in court, so this case could eventually wind up back before the Supreme Court once again.
● Gerrymandering: The Brennan Center for Justice published a major new report last week that uses multiple statistical measures to examine how congressional maps around the country mete out partisan advantages to one party or the other. The study provides detailed mathematical evidence for what redistricting-watchers have long known: The redistricting plans passed in the wake of the 2010 census give Republicans a monumental and consistent advantage nationwide.
Although these tests don’t necessarily determine the root causes of these advantages, states with single-party control over the redistricting process stand out as having the worst disparities between the popular vote and seat counts. (For instance, Donald Trump won Michigan by 0.2 percentage points, but Republicans hold 64 percent of the state’s congressional districts.)
Indeed, Daily Kos Elections’ own past work has used hypothetical nonpartisan maps to demonstrate that intentional gerrymandering is likely responsible for the vast majority of this GOP edge. Other factors, such as the geographic “clustering” of Democrats into cities while Republicans are more efficiently spread out over wider territory, do also likely play a role.
The Brennan report’s three statistical tests include a novel approach known as the “efficiency gap.” Proponents of this approach hope it will undergird a new effort asking the Supreme Court to start striking down partisan gerrymanders as unconstitutional, which it just might do in an upcoming Wisconsin case that’s likely headed before the high court this fall over the GOP’s state Assembly gerrymander shown at the top of this post. So how does the efficiency gap work? We’ll explain it and much more below.
The efficiency gap aims to measure how many votes for each party are “wasted” in legislative or congressional races by counting up all the votes for a losing candidate and for a winning candidate that were in excess of a majority of the major-party vote, which is the minimum needed to win a race. It then subtracts the wasted Republican votes from the wasted Democratic votes and divides that remainder by the total number of major-party votes statewide. Consequently, a positive proportion indicates a gap favoring Republicans, while a negative one gives Democrats an advantage.
Here’s a simplified example. While the efficiency gap tends to be most meaningful with larger numbers of districts, we’ll imagine a state with three congressional districts, since the math behind the concept is the same either way. The combined vote for each party’s three candidates across all three districts is exactly 150 votes for each side, or 300 total statewide—in other words, this is a perfectly divided state. However, in two of these hypothetical seats, Republicans win 60 votes to 40 for the Democrat, meaning they “wasted” 9 votes since it only would have taken 51 to win, for a total of 18 wasted votes. Meanwhile, one seat goes 70-30 for the Democrat, so 19 Democratic votes are wasted here.
The efficiency gap also adds votes for losing candidates to the “wasted voted” pile. In this case, 80 Democratic votes were wasted in the two races Republicans won (40 in each case), for a total of 99 wasted votes. Republicans, meanwhile, only wasted 30 votes in the race they lost to the Democrat, giving them a final tally of 48 wasted votes. Subtracting the GOP wasted votes from the Democratic total gives us a remainder of 51 votes. Remembering that there were 300 votes overall, 51 divided by 300 equals an efficiency gap of 17 percent, marking a very large penalty against Democrats.
In our hypothetical example, one party easily wins a two-thirds majority of seats even though the statewide support for both parties was exactly the same—an ideal outcome for anyone wishing to put in place a partisan gerrymander, but not a positive result for democracy. The creators of the efficiency gap contend that a gap of 7 percent or more in favor of one party is so historically atypical that it amounts to evidence of a partisan disparity so extreme as to potentially be unconstitutional if there aren’t mitigating factors like the state’s underlying political geography.
The Brennan report also explores two other tests. One, called the “seats-to-votes curve,” compares the share of seats a party wins with its statewide share of the two-party vote over time to create a graph based on historical data. If a party consistently wins far fewer seats than its statewide popular vote share, particularly if the popular vote is relatively evenly divided, it’s a sign that the map significantly favors the other party. And if such a curve is relatively neutral between the parties historically but a new map produces a result that’s far out of line with past expectations, it could be a sign of nascent gerrymandering.
The third approach is known as the “mean-median” test, which uses a statewide election instead of legislative or congressional results. As Daily Kos Elections has previously outlined in this explainer post, this test would, for example, rank every district from Hillary Clinton’s biggest victory margin to Trump’s biggest victory margin. The district that falls in the middle of that ranking is thus the median district. In our approach, which is similar to Brennan’s, we compare that median district to the overall statewide margin, which can reveal a partisan edge. For example, even though Clinton won Virginia by more than five points, the median seat favored Trump by more than three, giving the GOP an almost nine-point advantage.
Applying these three tests, the Brennan Center finds that Republican-drawn states have by far the largest partisan advantages, particularly in heavily populated states like Florida, Michigan, North Carolina, Ohio, Pennsylvania, Texas, and Virginia. By contrast, the rare Democratic-drawn states such as Maryland or Illinois have much smaller or even negligible Democratic advantages. All three tests have their drawbacks, which the report itself details, but the totality of evidence leads to only one conclusion: Republicans enjoy a significant partisan advantage thanks to the way they have drawn congressional maps across the country.