Leading Off
● Gerrymandering: On Monday, the Supreme Court agreed to hear an appeal this fall of a lower court ruling that struck down Wisconsin’s Republican-drawn state Assembly map as an unconstitutional partisan gerrymander. Over the past three decades, the high court has repeatedly held that partisan gerrymandering could in theory run afoul of the Constitution, but it has never struck down any maps on these grounds because it’s never been able to decide upon a standard for when to do so. If, however, the Supreme Court changes course and sides with the district court, a ruling in this case could establish a sweeping precedent leading to a wave of lawsuits against partisan gerrymanders nationwide.
Campaign Action
Republicans aggressively gerrymandered Wisconsin after they gained full control of the state’s government following the 2010 GOP wave. Their Assembly lines were particularly effective: Republicans won a commanding majority in the chamber in 2012 even as Barack Obama carried Wisconsin by seven points and Democratic legislative candidates won more votes statewide than Republicans did. And as shown in the map at the top of this post, Republicans maintained a lopsided 64-35 majority in 2016, despite the fact that Donald Trump won the state by less than one percent of the vote.
While it has regularly invalidated maps for improper racial gerrymandering, the Supreme Court, as noted above, has never struck down a map for excessive partisanship despite 31 years of precedent that partisan gerrymandering could theoretically be unconstitutional. In a 2004 case on this topic, Justice Anthony Kennedy, as the deciding vote, refused to strike down the map at issue on the grounds that it represented an unfair partisan gerrymander. However, Kennedy effectively opened the door for future challengers if they could ever come up with a new standard for evaluating such claims—a standard that would have to satisfy the court’s perennial swing justice.
The plaintiffs in Wisconsin have sought to overcome this problem by proposing a mathematical test called the “efficiency gap” that examines how many votes get “wasted” in each election, which we have explained in detail here. Under this test, if one party routinely wins landslide victories in a minority of seats while the other party wins much more modest yet secure margins in the vast majority of districts, that could signify a gerrymander that has gone so far as to infringe upon the rights of voters to free speech and equal protection. Although this test is imperfect, it provides one of many tools a court could use to judge a map’s partisan distortion.
And that’s exactly what the lower court here did: Late last year, a federal district court struck down the GOP’s map for the Wisconsin Assembly for excessive partisanship. The judges acknowledged the efficiency gap, though they did not rely on it exclusively. Instead, the court laid out a three-part test to determine if a mapmakers have engaged in partisan gerrymandering: whether there’s (1) a durable partisan effect; (2) an intention by mapmakers to seek a partisan edge; and (3) a partisan lean that isn’t merely the result of mapmakers adhering to traditional redistricting criteria (such as district compactness), which the Constitution permits.
However, even if the Supreme Court agrees with the district court, the same Republican legislators who benefit from the existing gerrymander would get to draft a replacement map, though they wouldn’t be able to draw lines that are as brazenly partisan as the current districts are. Notably, the Supreme Court also stayed the lower court’s order for Wisconsin to redraw its districts in 2017 pending the GOP’s appeal, making it less likely that redistricting will take place in time to affect the 2018 midterm elections even if the plaintiffs prevail. Several observers have argued that the fact that the Supreme Court granted the stay suggests that plaintiffs will have a hard time succeeding on the merits of their case.
But as is so often the case with litigation, nothing is a foregone conclusion. And if plaintiffs do succeed, this case could open up the floodgates for successful lawsuits against partisan gerrymanders across the country. That tide of litigation would have enormous consequences, because Republicans have gerrymandered most congressional and legislative districts across America. (Democrats have only done so in a tiny handful of states.) A victory for plaintiffs in Wisconsin could subsequently deprive Republicans of the lock that they have on Congress and legislatures across the country. On the other hand, a defeat could give (mostly Republican) mapmakers license to gerrymander for years to come.
While this case currently concerns just the Wisconsin Assembly map, future potential lawsuits could take years to resolve. Consequently a landmark ruling against partisan gerrymandering would most likely have its biggest impact after the 2020 census. Nevertheless, its outcome would immediately affect other key challenges to partisan gerrymanders that are working their way through the judicial system right now and could appear before the Supreme Court soon.
One such case relying on slightly different arguments involves a partisan gerrymandering lawsuit over North Carolina’s Republican-drawn congressional map, which plaintiffs are currently petitioning the Supreme Court to hear after a district court ruled against them last year. Meanwhile, two separate lawsuits over the same North Carolina congressional map were slated to jointly go to trial before a three-judge district court panel on this coming Monday, but that has case been postponed indefinitely as the judges are awaiting resolution of these other partisan gerrymandering cases before the Supreme Court.
Voter Registration
● Seattle, WA: Seattle’s city council unanimously passed an audacious new bill on Monday that would require residential landlords to provide voter registration information and registration forms to new tenants citywide. While Seattle has long been one of the most politically progressive cities in America (Hillary Clinton won it 87-7), its transient and booming population has seen abysmal turnout from new renters, who are more likely to be younger, persons of color, and low-income—demographics that typically vote at lower frequencies. Indeed, while 41 percent of those who rented their residence for more than five years cast ballots in the low-turnout 2014 midterms, that was almost twice the rate of those who had rented for less than a year.
This measure could consequently boost turnout among those who take advantage of this new opportunity to register, since Washington is one of a handful of states that conducts its elections by mailing a ballot to every registered voter, making voting as easy as possible. While this new law wouldn’t automatically register eligible renters, the combination of mail-voting and easier access to registration has appeared to increase participation after vote-by-mail state Oregon passed an automatic registration law ahead of the 2016 elections.
Mayor Ed Murray has yet to say whether he’ll sign the bill, but it’s unlikely he’d oppose it (and in any event, it passed with a veto-proof majority). Once it becomes law, Seattle’s new measure will hopefully serve as a model for other progressive-minded cities wishing to increase turnout by lowering registration barriers.
Ballot Measures
● Maine: In May, the Maine Supreme Court ruled in a non-binding advisory opinion that a voter-approved ballot measure to implement instant-runoff voting (IRV) violated the state constitution for state-level general elections (though primaries and federal races were unaffected), leaving its prospects in doubt as legislators look poised to scuttle the statute. In the wake of this opinion, both parties’ legislative leaders reached a deal whereby the Democratic-run state House voted on sending a state constitutional amendment to the ballot that would permit IRV.
It all just looks like kabuki, though, because this resolution only passed with the backing of 53 percent of the chamber on a near party-line vote, falling short of the necessary two-thirds support thanks to opposition from Republican legislators. From there, things could get worse. Following the amendment’s failure, there’s a strong chance the House will back a full repeal of the law, even for primaries and federal contests. Even though Democrats hold the chamber, a number are reportedly hostile to IRV, and it would only take a few defections for the repeal to pass.
Republicans, meanwhile, control the Senate and should easily push repeal through, meaning it will likely be headed to GOP Gov. Paul LePage’s desk soon, who supports undoing the law. The final act of this theatrical production: Democratic leaders will be able to claim they fought for electoral reform by supporting the constitutional amendment while cynically ignoring how they could have preserved much of the law—and honored the will of the electorate.
But lawmakers from both parties seem intent on defying the public as much as possible. Several other measures, including a minimum-wage increase, also passed at the ballot box this year, and remarkably, legislators have set about repealing or curtailing all of them. And now they’re going one step further, by trying to impose new restrictions on the ballot initiative process itself as a way to thwart such measures in the first place.
Initiative organizers currently must gather valid voter signatures equivalent to at least 10 percent of the total vote cast in the previous election for governor, but the state House passed a resolution last week that would amend the state constitution to require this threshold be met in each of Maine’s two congressional districts. Such a requirement squarely targets progressive initiatives, since it’s costlier and more difficult to gather signatures in the more rural and conservative 2nd District than the more urban and Democratic 1st, which is home to denser liberal strongholds like Portland.
This resolution nevertheless reached the two-thirds threshold needed to pass in the Democratic-majority House after it divided the party almost in half, meaning the Republican-run state Senate could subsequently pass the resolution with a similar proportion of Democratic defections.
However, in something of an ironic twist, this new requirement would have to win approval in a voter referendum before it could take effect. Unfortunately, voters in other states have recently approved such geographic distribution requirements, and Mainers might follow suit.
Ballot initiatives can have their flaws in addition to their benefits, but it’s disheartening that even Democratic legislators are so willing to disregard the will of the voters who’ve approved reforms to make the electoral system more competitive and democratic.
