● Arizona: Republican legislators just won't give up in their fight gain the ability to engage in partisan gerrymandering by dismantling Arizona's independent redistricting commission. They recently advanced a proposed state constitutional amendment out of a state Senate committee that would dramatically reorganize the commission in a way that would render it toothless. If the voters approve this in a November ballot referendum, the commission would effectively be neutralized, giving the GOP-majority legislature the power to pass its own gerrymanders. This isn't the first time that Arizona Republicans have gone to extremes to fight for the ability to gerrymander, which we'll explain below.
Back in 2000, voters approved a ballot initiative to create the commision itself after legislators gerrymandered decade after decade. This commission has two Republicans and two Democrats, who then pick a fifth unaffiliated tiebreaker. Most importantly, legislators and party officials themselves don't get to nominate who can serve on the commission, making this one of the very few in the country that can truly be deemed independent of legislative dominance.
Independence from legislative control is critical because even when states create commissions where legislative leaders of both parties select an equal number of partisans, those commissioners are far more likely to engage in bipartisan incumbent-protection gerrymandering, while regular citizens often favor more competitive lines. And furthermore, Arizona's commission is explicitly tasked with using partisanship in an impartial manner to produce competitive districts without intentionally favoring one party over the other in an undue manner like a partisan gerrymander would. indeed, the current congressional and legislative maps give neither party much of an advantage.
This commission produced maps that relatively favored Republicans after the 2000 census, and Republicans let them be. But after the 2010 census, Republicans became apoplectic when Colleen Mathis, the lone independent on the commission, sided with Democrats to approve district maps that didn’t give the GOP any unfair advantage. Republican Gov. Jan Brewer and the GOP-run state Senate then overstepped their authority by firing Mathis, only to see the state Supreme Court promptly rebuke them and reinstate her to the commission.
Republicans then sued all the way to the U.S. Supreme Court to argue that any voter-initiated redistricting reform measure violated the U.S. Constitution, which would have struck a deadly blow to redistricting reform efforts in America. But fortunately, the court upheld the constitutionality of the commission in 2015, paving the way for redistricting reform advocates to attempt ballot initiatives in a large number of states. But Republicans didn't even give up then. In 2016, they again sued all the way to the Supreme Court to get the maps themselves declared unconstitutional, but the court once again rebuked them.
Now, Republicans are proposing to expand the commission from five to eight members. While the commission could use reforms to promote greater citizen involvement and more bipartisanship, the GOP's proposal is quite simply poisonous because legislative leaders would directly choose who serves on the commission. Legislators would select an equal number of members from both parties, while each party would also get to nominate one supposedly unaffiliated commissioner. But of course, giving legislators free reign to pick whomever they want will just result in both parties getting one independent each who is really a partisan, meaning there will be a deadlock.
Most dangerously, this GOP amendment would give the legislature itself the ability to pass a map regardless of what the commission does, although it would be subject to voter approval in a referendum. But because the commission's independents would be partisans in all but name, both parties would essentially have an equal number of members, giving each party a veto. All Republican legislators would have to do is appoint members who oppose any plan, then when the commission deadlocks and produces no maps, GOP legislators can pass their own gerrymanders and claim the commission failed in its duty.
If this measure passes, it would mean nothing short of the end of the commission when one party controls both legislative chambers. And furthermore, the maps wouldn't even be subject to gubernatorial veto, making it even worse than some states where redistricting is just normal legislation under divided government.
Republicans seem intent on passing this measure, but voters will hopefully reject it at the ballot box. While this commission is imperfect and could use reform, it's far fairer and more democratic than allowing the majority party to engage in unfettered gerrymandering or having corrupt bipartisan commissions where legislative leaders simply protect incumbents from both parties, stifling competitive elections.
● Census: The Trump administration previously announced the appointment of political science professor Thomas Brunell as the deputy director of the Census Bureau ahead of the 2020 census, but Brunell unexpectedly withdrew from consideration this past week. Although he’d compiled a respected body of work as a scholar, Brunell's extracurricular activities had raised cause for alarm: He has frequently and exclusively testified in defense of Republican gerrymandering and voter suppression schemes in lawsuits around the country.
Voting rights advocates therefore had good reason to worry that Brunell, who lacked administrative experience, would have injected partisanship into what has long been a nonpartisan administrative role. As we have previously discussed, the census will play a critical role in the next round of redistricting, and an inaccurate count could dramatically diminish the political power of communities that get undercounted. While Brunell's withdrawal from consideration is cause for some relief, Trump is still considering measures that could significantly distort the census for partisan gain.
● North Carolina: Last Sunday, a state lower court denied an emergency petition to block the use of some of the districts that Republican legislators had redrawn in 2017 following a federal court order that struck down their original maps for racial gerrymandering. A federal district court had previously rejected several of the GOP's newly redrawn districts and imposed a few nonpartisan remedial districts of its own, but the U.S. Supreme Court subsequently blocked some of the court-drawn districts, which is why the plaintiffs sought relief in state court.
As we previously explained, the controversy concerns several districts in Mecklenburg and Wake Counties that Republicans had gerrymandered to increase their partisan advantage, even though they didn't need to redraw those districts to remedy their illegal racial gerrymandering. North Carolina's state constitution bans mid-decade redistricting, meaning only federal law can supersede it. The federal court had relied on this state consitutional provision to invalidate these partisan gerrymanders in addition to the districts that were still racially gerrymandered in violation of federal law. However, the U.S. Supreme Court's order effectively meant that only the state court could rule on suspected violations of the state constitution.
North Carolina has faced a slew of legislative redistricting lawsuits since the GOP first passed their original maps in 2011: North Carolina v. Covington is the ongoing federal suit, while Dickson v. Rucho is the separate state-level case. This latest Dickson order declared that, since the legislature’s original 2011 maps had already been redrawn in 2017 as part of Covington, the issue of whether the 2011 maps were racial gerrymanders had become moot in the Dickson case, which the court declared had consequently now concluded. And because the plaintiffs, finding of facts, and proceedings were different between the two cases, the state court said new litigation would be the more appropriate forum for any argument that the state constitution had been violated.
Unfortunately, this order likely means the new Republican gerrymanders will remain in place for at least the 2018 elections in those two heavily populated and Democratic-leaning counties. Even if the plaintiffs appeal the Dickson order to the state Supreme Court, that court may not want to disrupt the 2018 election cycle now that the candidate filing period has already begun. And of course, a new lawsuit would take even more time to proceed.
Consequently, the districts in use for 2018 will likely consist of the maps the GOP drew in 2017 to comply with the Covington ruling, along with the federal court's modifications to a handful of districts Republicans had still left racially gerrymandered in their redrawn maps. Although these maps fall short of truly eliminating the GOP's partisan gerrymandering, they are still fairer than the invalidated districts used from 2012 through 2016. Combined with a favorable political environment, Democrats have a strong chance to break the GOP's narrow veto-proof majorities this fall and finally begin to uphold Democratic Gov. Roy Cooper's vetoes starting next year.
● Pennsylvania: Pennsylvania's Supreme Court will end up drawing a new nonpartisan congressional map after the GOP-majority legislature failed to pass a remedial plan by the court’s Feb. 9 deadline. Republican legislative leaders grudgingly submitted a proposal to Democratic Gov. Tom Wolf, but that plan was not legally valid since the legislature itself never bothered to vote on it. Wolf nevertheless said he would consider their map, but he ultimately rejected this gambit because the GOP's replacement map was almost as gerrymandered as the map the court had just struck down.
The court previously appointed Stanford professor Nathaniel Persily as its nonpartisan expert to assist it with redrawing the lines, and he has been directed to produce a new plan by Feb. 19. With this process in mind, the court received submissions of proposed remedial district maps (which you can find here and here) from legislators from both parties, Wolf, the plaintiffs, outside groups, and even from Stephen Wolf, who submitted a proposal along with a longtime Pennsylvania resident, Adele Schneider. Persily will review these proposals, but it will ultimately be up to him and the court to approve a new map as they see fit. There's no telling what exactly a new court-drawn map will look like, but we'll find out very soon.
Voter Registration and Voting Access
● Michigan: Nonpartisan reform groups recently unveiled a package of voting rights measures they hope to implement via ballot initiative in 2018, and Michigan election officials have given them approval to begin gathering signatures to get onto the ballot. This voting rights amendment would establish automatic and same-day voter registration, end the requirement that voters under age 60 provide an excuse to vote absentee, create an in-person early voting period, enshrine the right to vote using a straight-ticket option, and allow for routine audits of election results.
Michigan currently is one of 13 states that don't allow in-person early voting and also require an excuse for most absentee ballots, so this measure could make it much easier to vote for those who can’t do so on Election Day without major inconvenience. However, proponents have only 180 days to gather roughly 316,000 valid signatures need to make the ballot. And in practice, advocates warn that deadline may very well be in June rather than August, since election officials will have to verify signatures before ballots can be printed. But if this measure passes, Michigan, which has some of the worst laws for voting access, could find itself among the states that make it easiest to cast a ballot.
● Massachusetts: In early February, a state House committee in Massachusetts approved sending an automatic voter registration bill to the full chamber. This measure would register any eligible voter when they do business with a state agency like the Registry of Motor Vehicles or MassHealth, unless they opt out. The bill combined previous proposals that a majority of legislators in both chambers had co-sponsored, meaning there's a strong chance that the heavily Democratic legislature will ultimately pass this bill. Democrats theoretically have enough members to override a potential veto from Republican Gov. Charlie Baker, although there's no indication thus far that Baker opposes the bill.
● Washington: Democrats have long planned to expand voting rights after regaining unified control over Washington's state government in 2017, and both chambers of the legislature have now approved bills to automatically register voters. Unfortunately, those bills have major differences, and the House version is much weaker than the Senate’s bill.
Both bills would, starting in 2019, automatically register eligible voters who apply for or renew an enhanced driver's license at the state Department of Licensing. However, the Senate version also directs public assistance offices and other agencies to study the feasibility of automatic registration through their agencies, too, but the House version stripped this out, leaving only the Department of Licensing as an automatic registrant.
Consequently, the House version of the bill is far more restrictive than the Senate's bill, because enhanced driver's licenses are not yet widespread. As we have previously detailed, these new enhanced IDs are part of an effort to verify citizenship in compliance with federal law. But estimates indicate that only one in six unregistered eligible voters has an enhanced ID, meaning the House's automatic registration bill leaves much to be desired. Hopefully, the House can be convinced to pass the Senate's version of the bill, otherwise Washington will have a much longer way to go to achieve truly automatic voter registration.
● North Carolina: North Carolina Republicans simply cannot quit trying to usurp control over the state Board of Elections. Ever since Gov. Roy Cooper won in 2016 and gained the right under state law to appoint a new Democratic majority to the board, Republicans have sought to thwart him so that Democrats can't reverse voter suppression efforts the GOP implemented when they were in charge. Republicans legislators have now passed their third attempt to remove this Democratic majority after the state courts had rejected both of their earlier efforts. Cooper let the bill become law without his signature, but we'll explain why below.
This new law will end the practice of the governor's party holding a one-seat majority on the board. Ostensibly in the name of fairness, the new board will consist of four Democrats and four Republicans, who then have to decide on a tiebreaker who isn't affiliated with either major party. But the law is silent about what happens if the members can't agree on a tiebreaker, giving Republicans veto power over any board decision. And because Republicans had previously changed the law so that if the board fails to set a plan for early voting, counties may revert to just one early voting site each, heavily populated Democratic-leaning counties could subsequently see very long early voting lines that dampen turnout.
In a brazen display of cynicism, Republicans attached this elections board provision to a totally unrelated bill that reduces school class sizes along with other education-related measures that Democrats had favored. The GOP did this knowing that many Democrats would feel compelled to still support the overall package. Republicans already hold veto-proof majorities thanks to gerrymanders that were ruled unconstitutional and have since been redrawn (see our North Carolina redistricting item above), so Cooper chose to let it pass without his signature because a veto would have inevitably been overridden and Republicans could have then used it to attack him over education in the next election. Amazingly, this isn't the first time the North Carolina GOP has pulled a shenanigan like this: Back in 2013 they modified a motorcycle-safety bill to include abortion restrictions.
Republicans intentionally declined to include a severability clause, meaning that if the elections board part of the law gets struck down in court, so do the education provisions, in all likelihood. Consequently, Democrats will have to make a difficult choice between the two policies if they decide to sue, and it's unclear if they have the stomach to fight through this Republican trap in the courts.
● North Carolina: The Fourth Circuit Court of Appeals has blocked a federal district court order that restored the use of primaries for statewide judicial elections to North Carolina's appellate courts, meaning there will be no primaries for judicial elections in 2018. As we previously explained, this scheme is solely designed to give the GOP more control over the judiciary. Without primaries to produce a nominee from each party, all candidates will compete on a single ballot, and all it takes is a plurality to win. That mess of a ballot will likely benefit existing incumbents with higher name recognition against a divided field of challengers. And of course, the only state Supreme Court seat on the ballot the ballot this fall belongs to Republican Justice Barbara Jackson.
Daily Kos Elections has long argued that judicial elections are terrible for democracy and impartial application of the rule of law. However, if states are going to hold them, they must be conducted in a fair manner. Republican legislators have consistently pursued bogus reforms on an ad-hoc basis solely to help them win more power. Nevertheless, esteemed civil rights lawyer Anita Earls is challenging Jackson as a Democrat, but the party will have to hope that other Democratic challengers don't split the vote and hand Jackson another term with a mere plurality.
● Florida: Florida will vote on a ballot initiative to automatically restore voting rights to most people with felony convictions who have completely served out their sentences, and a recent University of North Florida poll found voters supporting the measure by a wide 71-22 margin. This poll is an encouraging sign that voters may ultimately give the measure at least the 60 percent of support it needs to become law. However, there's still a long way to go, and public opinion could grow less favorable once both supporters and opponents have begun fully campaigning over the issue.