Leading Off
● Pennsylvania: On Wednesday, Pennsylvania's state Supreme Court heard oral arguments in a major case that has challenged the GOP's congressional gerrymander as a violation of the state constitution, and a plurality of the justices seem to be leaning toward striking down the map. Although the judges appeared to concede that map-makers may take some level of partisan consideration into account, they strongly implied Republicans' extreme gerrymandering crossed the line. What remains uncertain is what standard these judges might rely on to determine when such maps take partisanship too far. Nevertheless, the odds of a favorable ruling for plaintiffs ahead of the 2018 election cycle appear strong.
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Importantly, Democrats hold a five-to-two majority on the state court, whose members are elected in partisan elections. That gives plaintiffs a good chance of success, though of course there are no guarantees. If the court does strike down the map, Republican legislators would likely have the chance to draw a new one, but Democratic Gov. Tom Wolf would be able to veto it. That would force the court to draw its own, nonpartisan map, which would likely yield major gains for Democrats and a much more equitable distribution of seats in this closely divided swing state. (Republicans currently hold a 13 to five advantage.) Consequently, redrawn boundaries could offer a big boost to Democrats in their quest to retake the House this fall.
And most critically, because the plaintiffs are relying solely on the state constitution's guarantees of equal protection and freedom of association, the conservative majority on the U.S. Supreme Court would have very little ability to stay or override the state court's interpretation of Pennsylvania's own constitution. If the plaintiffs do indeed prevail, as looks likely, Pennsylvania could be well on its way toward eliminating one of the worst Republican gerrymanders in the country.
Meanwhile, plaintiffs in a separate federal case who recently lost at the district court level have now appealed to the Supreme Court. However, the state-level case stands a much better chance of victory and a quicker resolution.
Redistricting
● North Carolina: As expected, the Supreme Court has stayed a recent lower court ruling that struck down North Carolina’s Republican-drawn congressional map as an illegal partisan gerrymander. While the court has not yet decided when or even whether to hear the GOP’s appeal, this ruling means the existing lines will remain in effect for the 2018 midterms. The Supreme Court will likely either hear the appeal during its 2018-2019 term or send the case back to the lower court for reconsideration depending on how the justices rule in related, pending cases concerning Maryland and Wisconsin.
Although this development is unsurprising, it is nevertheless deeply disappointing given how North Carolina Republicans had loudly defended their map as an explicitly partisan gerrymander designed to elect 10 Republicans and just three Democrats in this evenly divided swing state. Furthermore, it means that Republicans will have gotten away with unconstitutional gerrymanders for four out of five election cycles this decade. When the courts are this slow to remedy the violation of voters’ constitutional rights, GOP legislators will continue to draw illegal gerrymanders in the future when they know they can get away with them for one or more elections, even if they’re eventually slapped down.
● Ohio: Like Pennsylvania, Ohio also has one of the most extreme Republican congressional gerrymanders in America, which is why reform groups have been gathering signatures to put a state constitutional amendment on the 2018 ballot that would create a bipartisan commission to handle congressional redistricting after 2020. However, Republican legislators are trying to undermine this attempt at genuine reform by proposing their own Trojan horse measure that would still give the GOP the ability to draw new lines however it sees fit. The Republican plan would allow the majority party to implement its own map for four years without the support of any members of the minority party, likely leaving Republicans in a position to gerrymander again after 2020.
By contrast, the redistricting reform groups have been gathering signatures for a proposed amendment that would create a commission where the support of members of both parties would be required to pass a map. Their amendment also includes much stricter criteria limiting the divisions of counties and requiring that districts generally reflect the overall partisan balance of this key swing state.
Unfortunately, Republican legislators easily hold the three-fifths supermajorities needed to refer their amendment to the voters for approval without any Democratic votes—supermajorities obtained thanks to GOP gerrymanders of the legislative maps themselves. Republicans are plotting to get their amendment on the May primary ballot, while the true reform effort is aiming to put their measure before voters in November.
While Republicans in most other states have bitterly fought every attempt at redistricting reform, Ohio Republicans seem to have realized that gerrymandering's days appear numbered. But they aren’t giving up their prerogatives by any stretch. Rather, instead of challenging the changing tide of public opinion head-on, they’re busy concocting crafty schemes to co-opt it by instituting deliberately flawed reforms designed to take the wind out of the sails of the movement for more comprehensive reform. If this decoy passes, the GOP will have successfully put their thumb on the scales to maintain their ability to pass a more subtle gerrymander after 2020.
● Texas: The Supreme Court recently agreed to hear an appeal by Texas Republicans seeking to overrule two lower court decisions that struck down the GOP's congressional and state House maps for intentionally discriminating against black and Latino voters. However, the high court has now dismissed an appeal by Democrats who tried to lodge a complaint that the GOP's partisan gerrymandering also violated the Constitution.
The Supreme Court is already hearing two major cases over partisan gerrymandering this term in Maryland and Wisconsin. However, it concluded that Texas Democrats' claim over partisan gerrymandering was not timely in this particular case because the lower court ruling they were seeking to appeal has not been finalized.
Regardless, once the Supreme Court adjudicates the issues over racial gerrymandering in Texas, Democrats could try to revive their partisan gerrymandering challenge, particularly if the court rules against gerrymandering in the Maryland and Wisconsin cases, so this issue is far from over in the Lone Star State.
● West Virginia: West Virginia Republicans have established a state House subcommittee to consider a bill that would create a nonpartisan commission to handle redistricting. The proposal is still in the formative stages, but it could draw bipartisan support in a state where recent election law compromises have cut across party lines. Given how dark-red West Virginia has become even at the state level in recent years, the partisan impact of this change would be limited, but it would still be welcome to see Republicans voluntarily surrender this power when they are poised to control redistricting for the first time in at least a century.
However, it's unclear if the GOP really has much appetite for reform. State House Republicans have also advanced a measure to the full chamber on a party-line vote that would eliminate West Virginia's use of multi-member state House districts and require the state to divide the chamber into 100 single-member districts after 2020. During the debate over this second measure, Republicans voted down a Democratic amendment that … would have established a nonpartisan redistricting commission, so perhaps they’re not all that interested in the idea, despite the new committee they just created to study it.
Voter Suppression
● Alabama: In early January, a federal court dismissed an NAACP-backed lawsuit against Alabama’s voter ID law, which had been enacted into law by Republicans. Now, the plaintiffs say they will appeal the decision to the liberal-leaning 11th Circuit Court of Appeals. However, their effort faces long odds given that the Supreme Court has ultimately been unwilling to strike down similar laws in recent years.
Voter Registration
● Washington: Democrats regained a majority in the state Senate in a November special election, and with it they won unified control over state government. That allowed them to swiftly introduce a package of voting rights reforms, and on Thursday the Democratic majority passed a bill in the state Senate to allow same-day voter registration, giving voters the option to both register and cast a ballot on Election Day starting in 2019. This reform will make it much easier for voters to participate, and states with same-day registration typically have much higher turnout than those that impose an arbitrary deadline weeks ahead of Election Day. The state House and Democratic Gov. Jay Inslee are expected to approve the measure.
