Leading Off
● North Carolina: In a historic victory against partisan gerrymandering, a federal court unanimously struck down North Carolina’s Republican-drawn congressional map on Tuesday for discriminating against Democratic voters in violation of the First and 14th Amendments, as well as the Constitution's Elections Clause. That makes this the first time ever that a federal court has invalidated a congressional map over excessive partisanship, and it could lead to enormous changes in how redistricting is conducted in North Carolina and nationwide.
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In an effort to ensure that new maps will be in place for the 2018 elections, the three-judge panel hearing this case has given the GOP-dominated state legislature two weeks to redraw the lines, but Republicans have appealed to the Supreme Court and asked for an emergency stay of the lower court's decision. However, if this ruling survives appeal and leads to a less partisan map, it would strike a huge blow against one of the worst gerrymanders ever drawn, which left Democrats with just three of 13 seats in what is an evenly divided swing state. Indeed, as we have demonstrated, Democrats could potentially gain anywhere from two to five more seats with a nonpartisan map.
This new ruling is so momentous because, for the past three decades, the Supreme Court has maintained that drawing maps for the benefit of one political party could violate the Constitution but has never before agreed to strike down any particular map, saying the judiciary lacks a standard for determining when gerrymandering crosses the line into a constitutional harm.
To address this concern, the North Carolina court established its own standard. To prove the GOP’s map was unconstitutional, said the judges, plaintiffs had to demonstrate three things: 1.) that the map was enacted with discriminatory partisan intent; 2.) that the map had a discriminatory effect that produced an asymmetric and durable partisan advantage for the map-making party; and 3.) that the map couldn’t be defended as a byproduct of nonpartisan redistricting criteria like geographic compactness.
Plaintiffs relied on a broad array of evidence to satisfy these three requirements, including multiple statistical tests to measure the partisan advantage the current map gave the GOP. They also used thousands of alternative computer-generated maps to demonstrate how this advantage couldn’t have been obtained had Republican mapmakers relied solely on neutral redistricting criteria.
However, the biggest smoking gun was the literal admission by state Rep. David Lewis, who chaired the state House redistricting committee, that the GOP really did engage in partisan gerrymandering when Lewis oversaw redrawing the map in 2016:
"I acknowledge freely that this would be a political gerrymander, which is not against the law.”
“I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”
Why make these astonishing admissions? Because Republicans sought to insulate this map from charges that it constituted a racial gerrymander by openly saying it was a partisan gerrymander instead. As illustrated in the second map at the top of this post, Republicans had drawn a different congressional map after the 2010 census that was struck down in 2016 for discriminating against black voters.
The GOP then replaced this map with the current districts, shown at the very top. Lewis was very specific in his aims, saying, "I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats." He was thus operating from the mistaken belief that courts wouldn’t strike down this latest gerrymander if Republicans claimed it was solely intended to further partisan goals—namely, maximizing the number of GOP seats—instead.
However, courts have never said that legislators have the authority to enact nakedly partisan schemes to guarantee they always have a majority over the other party, and the judges soundly rejected the GOP’s defense of the current map. Lewis was wrong, said the court, to think that political gerrymanders are not against the law. And as for his stated motivations, well, the judges just excoriated him:
Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he “think[s] electing Republicans is better than electing Democrats.” But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.”
Unfortunately, the Supreme Court will likely issue a stay and hold this case until it resolves two related cases in Maryland and Wisconsin sometime by the end of their term in June. Consequently, there’s a good chance that Republicans will get away with their extreme gerrymandering for yet another election cycle in North Carolina.
Furthermore, since Republican legislators will indeed get another crack at drawing the map, there will likely be nothing to prevent them from attempting a more subtle gerrymander in an effort to survive judicial scrutiny. North Carolina doesn't allow its governor to veto maps for legislative bodies like Congress, meaning Democratic Gov. Roy Cooper couldn’t block any new lines. And thanks to the GOP's gerrymanders of the state legislature, they're unlikely to lose their majorities anytime soon, meaning that even if this case gets delayed past this November's state elections, Republicans will almost certainly retain their grasp on the cartographer's pen.
Nevertheless, this ruling gives the Supreme Court even more impetus to finally clarify once and for all whether there’s an acceptable standard to assess when partisan gerrymandering is unconstitutional. And if it does, this case could have a far-reaching impact on congressional maps throughout the country, potentially changing how redistricting is conducted forever—and making election outcomes much fairer.
Redistricting
● Pennsylvania: Pennsylvania's Republican-drawn congressional map faces no fewer than three lawsuits arguing it's an illegal partisan gerrymander, and the two cases proceeding before federal judges saw major developments this week (the third challenge is in state court). In Agre v. Wolf, plaintiffs had sued in federal court using a novel argument that partisan gerrymandering violates the Constitution's Elections Clause. However, a divided three-judge panel ruled two-to-one against the plaintiffs on Wednesday, holding that whether a map is a partisan gerrymander constitutes a "political question" that can only be addressed by elected officials and therefore lies beyond the realm of the judiciary.
The Agre plaintiffs say they will appeal to the U.S. Supreme Court, which has never before decided a case over whether partisan gerrymandering violates the Elections Clause, as opposed to the First or 14th Amendments. But such an appeal is unlikely to be resolved in time for the 2018 elections, especially with the Supreme Court poised to rule on major partisan gerrymandering cases in Maryland and Wisconsin within the next several months.
However, the Agre case could soon become moot thanks to the much faster-moving state-level lawsuit, which is currently before the majority-Democratic state Supreme Court. That case stands the best chance of striking down the map because it relies on arguments that depend solely on interpretations of the state constitution, giving the conservative-majority U.S. Supreme Court very little latitude to override any state court decision.
In light of this reality, the defendants in the second federal suit, Diamond v. Torres, have asked the court to stay the matter or abstain from considering it while the state case proceeds. The Diamond plaintiffs are still pursuing their case, but the apparently good odds of a favorable outcome in state court could spur the federal court to agree to put its own proceedings on hold until the state case gets resolved. The state Supreme Court has ordered an expedited timetable for address the case in state court and will hear oral arguments on Jan. 17 in order to resolve the lawsuit in time for this year's elections.
● Texas: On Friday, the U.S. Supreme Court announced it would hear a case over whether the congressional and state House districts that Texas Republicans passed are discriminatory based on race. Back in 2017, a lower court panel struck down both maps for intentionally violating the rights of black and Latino voters by racially gerrymandering them into districts designed to prevent them from electing their preferred candidates, in some cases saying the districts were drawn “to ensure Anglo [white] control.” These maps resulted in fewer black and Latino representatives, consequently costing Democrats seats to the benefit of the GOP. Republicans appealed both rulings to the Supreme Court, which stayed the lower court's rulings in the meantime.
As we have previously explained at length, this litigation has absurdly been ongoing since 2011, letting Texas Republicans get away with these discriminatory maps for at least three election cycles this decade. And unfortunately, even if the plaintiffs prevail, the upcoming Supreme Court case probably will not unfold swiftly enough for new maps to be used in the 2018 elections. Furthermore, the lower court's rulings themselves fell far short of what the plaintiffs had hoped. Thus, it's uncertain whether they can obtain a more favorable outcome affecting a greater number of districts even if the Supreme Court rules against the GOP.
However, this case could see the court issue an even firmer principle regarding the acceptable and impermissible uses of race in the redistricting process. Even if these cases don't lead to new maps in 2018, a plaintiff victory could make it much easier and faster in the future to challenge similar racial gerrymanders across America. That would be a major development in the 2020s round of redistricting, because nearly every single Southern state could have drawn another congressional district for black or Latino voters in the 2010s round of redistricting, yet chose not to.
Just as with Texas, courts have invalidated several GOP-drawn Southern congressional and legislative maps over race since 2010, but it has taken years of elections under unfair lines to secure such legal victories. And since the courts can't negate the outcome of elections from years past, the old maxim is squarely on point: Justice delayed is justice denied.
● Utah: In late December, a federal court ordered San Juan County, Utah to redraw its county commission and school board districts so that Native American voters would be able to elect their preferred candidates in a majority of districts for the first time. Located in Utah's southeastern corner, Navajos had long formed a modest majority of the population in the impoverished county. However, San Juan's now-invalidated maps had packed these voters into a minority of districts so that white voters could elect a majority. Consequently, Navajo-backed candidates will likely win majorities on both boards for the first time once new elections occur under the new maps.
San Juan County has just 17,000 residents, so this victory against racial gerrymandering won't directly affect many Americans. But it's emblematic of a much wider problem concerning both the underrepresentation of Native Americans and how racial gerrymandering is widespread at all levels of government, not just for Congress and state legislatures. Indeed, the New York Times recently published an in-depth feature on how groups fighting for the rights of Native Americans have challenged restrictive voting laws across the country in recent years.
Voter Suppression
● Alabama: A federal court has dismissed an NAACP-backed lawsuit that sought to challenge Alabama's voter ID law as a violation of the Voting Rights Act and the Constitution's Equal Protections Clause. Plaintiffs have not announced whether or not they will appeal the decision, but the conservative majority on the Supreme Court has shown itself unlikely to strike down laws like that one at issue here.
● Ohio: On Wednesday, the Supreme Court heard arguments in a case over Ohio's mass purges of voter registrations. Ohio Republicans, under the leadership of Secretary of State Jon Husted, have aggressively purged any registered voters who fail to vote in an election, don't respond to a follow-up mailing, and then subsequently don't vote in two more elections. Plaintiffs have sued to block these purges of the voter rolls by arguing that they are in violation of the 1993 National Voter Registration Act, more commonly known as the Motor Voter law. The NVRA holds that states can't purge eligible voters simply for failing to vote.
In 2016, a federal appeals court deemed the Ohio GOP's actions did indeed violate the NVRA and ordered that roughly 7,500 voters be restored to the rolls so that they could cast ballots that year. However, Republicans appealed to the Supreme Court, arguing that these infrequent voters' failure to respond to the state's mailing is "the sole proximate cause of removal," instead of the act of not voting. But as anyone who has ever discarded junk mail or had something sent to the wrong address—in other words, everyone—would know, it's easy for these mailings to not get properly delivered or noticed by the voter.
If the Supreme Court sides with Republicans in this case, it would give the GOP the green light to aggressively delete voter registrations for millions of eligible voters across the country. Studies have shown access to voter registration is one of the biggest determinants of voter turnout, and countless voters could wind up going to vote for the first time in several years only to find that they have been removed from the roll books. Sadly, this appears to be exactly what the GOP wants, since these infrequent voters who've been purged in Ohio disproportionately lean Democratic.
● Republican National Committee: In an ominous development for voting rights, a federal court declined to revive a recently expired consent decree that had prevented the Republican National Committee from engaging in voter suppression activities. The consent decree arose pursuant to legal settlement had been in place since 1982, after the Democratic National Committee sued the RNC over the latter's "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 registrations 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 flagrant acts of 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 of the vote. They also landed the GOP in hot water, and the RNC has had to take steps to avoid even the appearance that it supports voter suppression ever since. However, after years of the RNC maintaining an image of avoiding these tactics, the court determined that Democrats lacked compelling evidence to extend the consent decree.
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. And given Trump's proclivity for claiming that virtually 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 until after voters have actually been harmed in future elections.
● Voter Suppression Commission: In early January, Donald Trump unexpectedly dissolved his bogus "voter fraud" commission, but former commission chief Kris Kobach immediately claimed that the Department of Homeland Security would continue its work, even insisting that the commission had made some preliminary findings. A Republican who theoretically serves as Kansas secretary of state, Kobach has become one of the most notorious opponents of voting rights in America. However, the White House has now said in a recent court filing that the commission had "no preliminary findings" and that it will delete voter registration data instead of handing it over to DHS.
It's unclear whether Kobach is trying to carry on his one-man crusade without Trump's backing, but a slew of lawsuits launched against the commission likely led to its demise. Indeed, Maine Secretary of State Matt Dunlap had served as one of the token Democrats on the commission, and he won a lawsuit of his own in December to force the Republican commissioners to share their data and communications with him. Dunlap says that Trump specifically shut down the commission to prevent those internal documents from becoming public, lest the commission be exposed as the partisan witch hunt that it was. And if either Kobach or Trump tries to continue the commission's work, it would almost certainly face more lawsuits.
Absentee and Early Voting
● Indiana: A state Senate committee in Indiana's Republican-dominated legislature has unanimously approved a bill that would eliminate the requirement that voters provide an excuse when asking to vote absentee by mail. Indiana currently requires such an excuse for mail ballots but allows voters to cast an absentee ballot without an excuse if they do so in person at an early-voting site in their county.
While this represents a rare move by GOP lawmakers to make voting easier rather than harder, Indiana Republicans have been facing lawsuits over their efforts to limit the number of early voting sites and regular polling places in heavily Democratic counties. So while this new bill is good in and of itself and might also mitigate the longer lines that will undoubtedly result thanks to these cutbacks in voting locations, Republicans still need to roll back these reductions.
Voter Registration
● Washington: Democrats have eagerly been planning to expand voting rights after they regained unified control over state government in a 2017 special election, and party leaders have now unveiled their plans. Democratic Gov. Jay Inslee and several key legislators announced they will push for several bills that will include: 1) automatic voter registration; 2) same-day registration, where voters can register and cast ballots at the same time, including on Election Day; 3) "pre-registration" for 16- and 17-year-olds so that they'll automatically be added to the rolls when they turn 18; and 4) the Washington Voting Rights Act, which will make it easier for minority groups to get elected to local offices by allowing cities to switch from at-large to district-based elections. This last change could particularly increase Latino representation.
Unfortunately, automatic registration initially would be limited to only those who obtain or update their driver's license or ID from the state Department of Licensing, and only apply to those who have paid to upgrade to a new "enhanced" ID which involves a verification of citizenship. Washington has been rolling out a new type of ID to comply with a federal law that mandates the use of more robust IDs at airports, and the transition is still ongoing, particularly because these enhanced IDs cost more than regular licenses.
Consequently, only some 670,000 Washingtonians have an enhanced ID, which represents just 10 percent of all those who have a license or ID. Furthermore, while roughly 150,000 unregistered Washingtonians have an enhanced ID, there are nearly 900,000 eligible voters in the state who aren't registered, based on estimates of the eligible voter population by professor Michael McDonald's Election Project and registration statistics from the secretary of state.
Fortunately, more Washingtonians likely will upgrade to an enhanced ID, and the new law would also direct other agencies to determine by 2019 whether they too are capable of implementing automatic registration. However, there's still a long way to go to ensure every eligible voter has the potential to be automatically registered. Nevertheless, these reforms would still make registration considerably easier and expand the pool of registered voters.
Election Consolidation
● Kentucky: Kentucky is one of just five states that elects its governor and other statewide executive offices in odd-numbered years, but that may be about to change. A state House committee has advanced a proposed state constitutional amendment that would align Kentucky's statewide elections with the presidential election cycle starting in 2024, meaning the governor and other officials elected in 2019 would serve a special five-year term.
Following the 2016 elections, Republicans won control of Kentucky's entire state government for the first time in history. They now hold the 60 percent supermajorities needed to put this on the ballot for voters to decide in a referendum, meaning it could pass even if Democrats decide to oppose it. In a state that has increasingly become dark-red at the presidential level, and one of the last remaining states with a straight-ticket voting option, aligning the two election dates would likely benefit the GOP in state races, where Democrats are still competitive. (Elections for the legislature are currently held in even-numbered years.)
But regardless of any partisan motivations, making this change would be a positive voting reform, because there is simply no measure short of compulsory voting that would boost turnout in down-ballot elections more than aligning them with the presidential cycle. Higher turnout in presidential elections also tends to be much more demographically representative of the entire population than it is for elections held at any other time. And not only does consolidating down-ballot election dates with the presidential cycle increase turnout, it also saves money simply because states have to conduct fewer elections.
Currently, only 11 states elect their governors concurrently with presidential elections, while 36 of them hold their elections during midterm years (New Hampshire and Vermont use two-year terms, placing them in both categories). Hopefully, more states will consider similar measures, and even if in this case the move benefits Republicans in Kentucky, it's the democratic thing to do.
Elections
● Virginia: Virginia Republicans will maintain their 51-49 majority in the state House following the 2017 elections, as a federal appeals rejected a Democratic request that it overturn a lower court ruling refusing to prevent Republican Bob Thomas from getting sworn in on Wednesday. Thomas defeated Democrat Joshua Cole by 73 votes in the 28th District, but election officials have previously disclosed that at least 147 voters cast ballots in the wrong district among the 28th and two neighboring seats. Democrats had sued to force a new election to be held, but the courts declined to issue an injunction barring Thomas from taking his seat. While the case is still in progress, the district court judge hearing the case said he would need a "much, much more" evidence to order a new election.
It's uncertain whether those 147 wrong-district voters were enough to swing the outcome to Thomas, but regardless, this is a major problem that isn't limited to just this Fredericksburg-area district. Indeed, a damning Washington Post analysis recently estimated that as many as 6,000 voters may have been assigned to the wrong state House districts across Virginia, with approximately 2,800 of them having cast ballots last year. You need look no further than the 94th District, where Republicans won a drawing of lots after a disputed recount threw the race into a tie, to see that such administrative errors demonstrably have the potential to swing a very close race.
And what are the odds that these sorts of administrative screw-ups are limited to Virginia? Journalists and academics are attempting to find these errors and alert officials so that they can correct them, but doing so is only possible if election administrators make data like voter registration records available in a transparent way (while still protecting privacy, of course). Transparent and well-funded election administration isn't a widely discussed issue, but few things are more vital to the health of a republic than the very machinery of democracy, and these races in Virginia show that mistakes can prove pivotal.
Correction: An earlier version of this story incorrectly stated that the plaintiffs in the second federal Pennsylvania gerrymandering, Diamond v. Torres, had sought to freeze the proceedings. Instead it was the defendants.
