Leading Off
● Texas: Late on Tuesday, as Donald Trump was busy defending white supremacists, a federal court in San Antonio struck down Texas’s congressional map on the grounds that the Republican lawmakers who drew it had engaged in intentional racial discrimination in violation of both the Voting Rights Act and the 14th Amendment. The court ordered lawmakers to swiftly lay out their plans to redraw the map, which is shown at the top of this post (click here for a larger version). The new districts will take effect for the 2018 midterm elections if this ruling survives a likely appeal to the Supreme Court. If the high court ultimately sustains this ruling, Democrats and Latinos could gain one congressional seat, but that’s a major disappointment compared to the two or even three seats that plaintiffs had hoped for.
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Specifically, the court invalidated Republican Rep. Blake Farenthold’s 27th District, which is based in Corpus Christi and branches northwest toward Austin and northeast toward the Houston area, and Democratic Rep. Lloyd Doggett’s 35th District, which connects San Antonio and Austin via a narrow tendril. Regarding the 27th, the judges ruled that removing Corpus Christi’s Nueces County from a Latino-majority district during redistricting in 2011 had deprived Latino voters there of the opportunity to elect their candidate of choice (most likely a Latino Democrat).
Meanwhile, the court held that the narrowly Latino-majority 35th District was an unconstitutional racial gerrymander whose configuration did not satisfy any compelling government interest. Indeed, said the judges, the district merely functioned to pack in Democratic voters to make the surrounding seats safe for white Republicans. What’s more, it was not even capable of consistently electing the preferred candidate of Latino voters since white Democrats from Austin have always had considerably higher turnout rates in Democratic primaries.
Unfortunately, the court did not strike down Republican Rep. Will Hurd’s 23rd District, a huge beast that stretches from El Paso to San Antonio, something that multiple redistricting experts had expected to happen. Republicans intentionally diluted Latino voting strength in this district by adding low-turnout Latino populations and high-turnout white voters, giving the district a nominal Latino-majority population while ensuring that the actual electorate was majority-white. The fact that the court has left this district untouched is a major blow to Democratic hopes, but the swingy seat may nonetheless be winnable if 2018 turns out to be a good year for Democrats.
In addition, the court declined to strike down any districts in the Dallas-Ft. Worth metro area even though plaintiffs—and an analysis by Daily Kos Elections—have repeatedly demonstrated that Republicans could have easily drawn another district in the region that would allow Latinos to elect their candidate of choice. While such an outcome was less likely than the prospect of the court ordering changes to the 23rd, its failure to materialize is nonetheless another disappointing aspect of this ruling.
Overall, this ruling was about the best outcome that Republicans could have hoped for given the flagrantly unconstitutional abuse of race with regard to the 35th District—that is, at least for the 2018 cycle, since there’s one major catch for future elections that we’ll get to below.
Republicans surprisingly will not call a special session, instead appealing to the Supreme Court to issue a stay. However, by taking this gamble, the GOP could wind up with a very unfavorable court-drawn map, and even with Neil Gorsuch’s ascension to the Supreme Court, victory is by no means guaranteed for the party. We’re also still awaiting a ruling from this same lower court panel on the validity of Texas’s state House districts, so Republicans may be waiting for that decision—which could require them to revisit yet another map—before coming back into that session.
If Republican legislators do eventually hold a special session to fix the congressional lines, one possible remedy would place a largely Latino chunk of Nueces County in one of South Texas’s Latino-majority seats such as the 15th or 34th, both of which are already held by Democrats. Republican mapmakers could then shift the Latino-majority 28th (another Democratic district) away from San Antonio, allowing the 35th to drop its portion of Austin and contract to become a San Antonio-dominated district capable of electing a Latino candidate.
Democrat Lloyd Doggett would thus likely get a new seat in Austin at the expense of a GOP congressman (either Michael McCaul in the 10th or Roger Williams in the 25th), while Republicans would pack Doggett’s seat with as many Democrats as possible to protect whichever of these two Republicans whose seat doesn’t get eliminated. While Republicans could try to crack Austin’s Travis County five or even six ways among GOP seats and eliminate Doggett, this would require even more tortured lines that could put several incumbents at risk in a Democratic wave and runs a greater risk of prompting the court to reject the map and draw its own.
With Doggett staying in an Austin seat, Democrats would consequently gain a new Latino representative in the redrawn 35th District. Since Republicans will have to rearrange the lines in the San Antonio area, it’s possible they’ll wind up altering the 23rd District as well, but as noted above, they will not have to increase the proportion of Democratic-leaning Latino voters there as plaintiffs had hoped.
Consequently, Texas will remain one of the most gerrymandered states in the country. As Daily Kos Elections has previously illustrated, a fully nonpartisan map could produce up to five additional Democratic representatives compared to the existing gerrymander, with three of those members likely being Latino. An entirely nonpartisan overhaul of Texas’s congressional lines was never in the cards, but this hypothetical map shows just how egregiously Texas Republicans have sought to squelch the voting rights of Latinos.
These court-ordered changes will instead likely result in just a single additional seat for Democrats and Latinos, which is far short of the “Armageddon scenario” that some Republican legislators had feared. And while the court will have final approval over the new map, Republicans will likely argue that whatever new districts they come up with are based entirely on partisan (rather than racial) considerations), an argument that the Supreme Court has so far allowed.
However, there is a major landmine lurking in this ruling. The court did not merely find that the GOP’s map discriminated against black and Latino voters—it held that the Republican lawmakers intentionally discriminated. This is a very important distinction, because this is now the fourth court ruling this year alone striking down one of the Texas GOP’s voting laws for intentional discrimination. Tuesday’s decision follows rulings striking down voter ID laws, the state’s 2011 legislative districts, and Texas’s congressional districts that were drawn in 2011 (which, confusingly, never went into effect, as we explained here, but were nevertheless invalidated).
These repeated findings of discriminatory intent set the stage for a marquee battle over whether to utilize a provision of the Voting Rights Act that would place the entire state of Texas back under the “preclearance” regime of the Voting Rights Act. Under this provision of the VRA, all jurisdictions in the state Texas would have to clear any changes to voting procedures—from issues as seemingly small as the location of voting centers to matters as big as redistricting—with the Justice Department before they could take effect.
Several predominantly Southern states with a history of racial discrimination had to preclear all such changes pursuant to the VRA until the Supreme Court gutted a critical provision of the law in a landmark 2013 ruling. In a decision that feels especially painful after Charlottesville, Chief Justice John Roberts notoriously opined that racial discrimination was largely a thing of the past. Republicans in states like Texas immediately proved him wrong by passing discriminatory voting changes as soon as they no longer had to seek preclearance.
But thanks to another provision of the VRA, there’s a way to restore preclearance if a jurisdiction is found to engage in intentional discrimination. In this case, the jurisdiction in question is all of Texas, which could be placed under Justice Department supervision for up to 10 years—though of course, that would require yet another court battle. And while Attorney General Jeff Sessions, who infamously prosecuted civil rights advocates for voter fraud, will certainly allow Texas Republicans to pass their preferred voting laws, a future Democratic attorney general could deny preclearance and block these changes.
The prospect of a Democratic Justice Department thwarting Texas Republicans from passing these laws could have critical implications for the next round of redistricting following the 2020 census, since denying preclearance is dramatically quicker than waiting for lawsuits to work their way through the judicial system. Indeed, as we explained in our background article, this current case has been ongoing for six years, with Republicans enjoying the benefits of their illegal gerrymander for three of this decade’s five election cycles.
While Tuesday’s ruling is a modest victory for Democrats and Latino voting rights, it’s also another reminder that in redistricting, justice delayed is justice denied.
Redistricting
● Michigan: On Thursday, Michigan election administrators finally gave the go-ahead to reformers seeking to circulate petitions for a ballot measure that would establish an independent redistricting commission if voters were to approve it next year. Proponents will now have 180 days to gather the 316,000 valid signatures needed for the proposed constitutional amendment to appear on the ballot, which will be no small feat for a largely grassroots effort that is relying on several thousand volunteers rather than paid signature-gatherers.
Back in July, organizers said they had already raised $100,000, but they’ll need far, far more than that to succeed, because getting on the ballot is just one (major) hurdle. Even if the amendment does go before voters, proponents will need to spend heavily to support the measure, because we can guarantee that we’d see fierce opposition from Republicans, since this proposal would threaten their gerrymandered grip on both Michigan’s legislature and its congressional delegation. This reform effort has so far failed to attract support from major proponents of redistricting reform like Common Cause and the League of Women voters, but hopefully if it proves serious, that will change.
Voter Suppression
● Indiana: In a damning new exposé, the Indianapolis Star describes how Indiana Republicans have systematically restricted early voting in Democratic counties while expanding it in Republican ones. How have they done this? Under Indiana law, county election board members must unanimously agree to add local voting sites, but ever since Obama’s 2008 victory, Republican board members in heavily Democratic counties have simply vetoed new early voting locations.
This is most pronounced in Marion County, the largest in the state and home to the capital, Indianapolis. As of the 2016 elections, Marion County had 700,000 registered voters, but its Republican elections board member blocked repeated efforts to create more than one early voting site last year
However, at the very same time, Republicans added two more early voting sites (for three total) in conservative Hamilton County, a wealthy white-flight suburban county with 231,000 registered voters located due north of Marion—and Democrats, of course, did not stand in the way. As a result, though, there were nine times as many registered voters per early voting site in Marion compared to Hamilton, and disparities like this extend to other major counties as well.
Overall, this paucity of early voting availability makes the process far less convenient for voters in these Democratic-favoring counties by requiring them to travel further and wait longer to cast a ballot. In 2008, both Hamilton and Marion saw a similar rate of voters cast early ballot, roughly 25 percent. However, a disparity grew between the two counties in 2012 and mushroomed in 2016: 34 percent of Hamilton votes came early last year while just 19 percent did so in Marion.
And this effort to limit early voting for Democrats while expanding it for Republicans also has a stark racial dimension, as GOP voter suppression efforts invariably do. Indiana is a relatively white state, but cities like Indianapolis have large African American populations, while their outlying suburbs in places like Hamilton County are lily white. Consequently, the Indiana GOP’s efforts to limit early voting in this discriminatory fashion are the subject of an ongoing lawsuit by Common Cause and the NAACP.
Meanwhile, the NAACP recently launched another lawsuit over further Republican attempts to decrease Democratic access to polling places. Back in May, Republican legislators passed a law that would cut the number of Election Day precincts solely in Lake County, which is a heavily Democratic county in northwestern Indiana with 364,000 registered voters. The new law mandates the elimination and consolidation of precincts so that none has fewer than 600 active registered voters.
However, that word “active” is key. Indiana recently engaged in a mass voter registration purge, meaning the ranks of supposedly “inactive” voters has now surged (and many voters were kicked off the rolls entirely and now have to re-register). This means that these voters, who are often wrongly labeled as inactive or improperly booted from the voting rolls, will not be counted when Lake’s precincts are redrawn—even though many will eventually vote again on Election Day. As a result, this strain on precincts could easily lead to longer voting lines and wait times. The NAACP lawsuit argues that 78 percent of precincts would be affected in Lake’s three majority-minority cities of Gary, Hammond, and East Chicago, while only 41 percent of the whiter precincts in the county are at risk of a forced redraw.
It goes without saying that voting precincts need to be adjusted as the needs of the population they serve change over time. However, when reductions target just a single heavily Democratic county and are combined with an effort to limit early voting expansion, it sends an unmistakable signal that these efforts are intended simply to make voting more difficult for Democratic voters.
● Ohio: Ever since Republican Secretary of State Jon Husted succeeded a Democrat when he took office in 2011, Ohio Republicans have implemented mass voter purges that have cut 2 million voters from the rolls. Roughly 846,000 voters were removed simply for infrequent voting, even though the 1993 National Voter Registration Act (or NVRA, but more commonly known as the Motor Voter law) contains language that ostensibly bars states from purging eligible voters for such an absurd reason. Following a 2016 court ruling, 7,500 of these such voters were allowed to vote last year, but Republicans have appealed to the U.S. Supreme Court, which will hear the case in its coming term.
Republicans in several states like Ohio are trying to aggressively remove infrequent voters from the rolls who don’t respond to mailings from election officials, even if they haven’t moved, died, or otherwise become ineligible. Earlier in August, the Trump administration’s Justice Department switched sides to argue to the Supreme Court that the NVRA allows purges for inactivity, which presages a nationally instigated push to aggressively purge disproportionately Democratic-leaning voters from the voting rolls if the high court gives its assent next year.
● Texas: Earlier in 2017, Texas’s Republican-dominated state government passed a bipartisan bill to make voting easier in nursing homes while curbing the potential for mail-in ballot fraud by expanding in-person voting to some facilities, turning them into temporary polling places for their elderly residents during the early voting period. However, Republican legislators recently repealed that law on a near party-line vote before it could go into effect, complaining about it creating an “unfunded mandate.”
This same new repeal measure also enacts stricter penalties on various types of mail-ballot voter fraud. Democrats were outraged over a particular provision that makes it a crime to “influence the independent exercise of the vote of another in the presence of the ballot or during the voting process.” While that may not sound particularly ominous, the language regarding “in the presence of the ballot” could be interpreted as criminalizing family members who are debating or advising one another how to vote.
Voter fraud of all sorts is vanishingly rare, but absentee ballot fraud is less rare than in-person voter fraud. Despite that fact, Republican crusaders against fraud focus almost entirely—if not exclusively—on using voter ID to combat virtually nonexistent in-person fraud. The repeal of the nursing home measure proves yet again just how hollow GOP fears are, since allowing nursing home residents to vote early in person would curb the (already minimal) chances that wrongdoers might commit fraud by illegally requesting absentee ballots in the name of such residents—yet Texas Republicans rescinded the measure anyway.
Election Administration
● Detroit, MI: In early August, Michigan held its primary for local 2017 races, including those in the city of Detroit, which will vote on the office of city clerk in this November’s general election. Detroit in particular had earned negative headlines following last year’s elections over problems with its voting equipment and what a post-election audit called “an abundance of human errors.” A group of challengers to incumbent clerk Janice Winfrey campaigned on a reform platform of improving election administration and voting access, which could prove decisive in future elections given the city’s large size (and large African American population) in a key swing state.
Winfrey took 51 percent in the nonpartisan primary to advance to the general election, which means she’ll face off against city technology director Garlin Gilchrist, who took second place with 20 percent. Gilchrist could yet prevail if he can consolidate support from the other challengers. He also outraised Winfrey eight-to-one, which should give him the resources to compete in November. But even if Winfrey wins another term, the heightened scrutiny of a vigorous challenge may nonetheless help improve election administration, which is why it’s important that these sorts of down-ballot races don’t get overlooked.
Ballot Measures
● California: California Democrats passed a gas-tax increase earlier in 2017, prompting a Republican effort to recall vulnerable Democratic state Sen. Josh Newman in order to strip the Democrats of the two-thirds supermajority they’d need to raise any other taxes. (Despite what some petition signers might think, the gas tax would be unaffected by any recall.) In response, Democrats included a provision in a budget bill to alter the state’s recall law that would effectively allow them to delay Newman’s recall election until the June 2018 statewide primary, when higher turnout would likely lead to an electorate that would be more Democratic than one in a potential November 2017 election.
On Monday, a state judge put that provision on hold while litigation over it is ongoing, meaning the recall could take place sooner under existing law if county election officials certify it before the lawsuit concludes. As we detailed back in June, California has a deeply flawed recall process that is ripe for just this sort of partisan abuse. But while Democrats are understandably unhappy about this recall, they really ought to be trying to fix the broken recall process itself instead of merely trying to rebalance the partisan composition of the electorate in their favor. Recalls should be reserved for occasions when incumbents break the law or abuse their power, not merely when one side is unhappy with the outcome of the prior election.
