● Pennsylvania: On Monday, the U.S. Supreme Court dealt Republican gerrymandering a crippling blow when it refused to block a Pennsylvania Supreme Court ruling that struck down the GOP’s congressional map for illegally discriminating against Democratic voters. The state court had ordered the Republican-controlled legislature to draw and pass a new map by Feb. 9, but GOP leaders have only reluctantly begun drawing a new map after Democratic Gov. Tom Wolf promised to veto any new gerrymander. As a result, the state court itself will likely draw new nonpartisan districts, which could lead to major Democratic gains this fall.
In an important backdrop to this decision, Democrats won a pivotal majority on the state Supreme Court in the 2015 elections, giving the plaintiffs a fairer shot at invalidating the GOP’s map. And following its initial order last month, the state Supreme Court also released a more detailed opinion in the case. Critically, it found that gerrymandering violated the state constitution's "free and equal" elections clause, which it pointedly notes is distinct from the U.S. Constitution's Equal Protection clause.
The court relied on the absurdly large number of divided cities and counties, along with GOP legislators throwing any semblance of compactness out the window, as sufficient evidence that neutral redistricting criteria had been subordinated to partisan interests. However, the court also held that these criteria aren't the only way to measure a gerrymander, and it rightly noted that even pretty-looking maps could still be gerrymandered. The court further used statistical tests to demonstrate the GOP's partisan advantage, but it did not rely on any particular one. Instead, the court adopted a broad standard, saying that maps are unconstitutional when they "artificially entrench representative power"; statistics merely serve as evidence.
Since the state court relied solely on its interpretation of Pennsylvania's own constitution, the U.S. Supreme Court had very little room to override it. Republicans nevertheless forged ahead with a long-shot appeal, but the Supreme Court rejected it. At the same time, because the state Supreme Court’s case is based on Pennsylvania law, this case can’t set a legal precedent for other states. However, the standard that the judges have established could influence state courts in other states that have their own version of a "free and equal" clause, and indeed, the Pennsylvania justices even pointed out several such states in their ruling.
Republican legislators became apoplectic following the U.S. Supreme Court's refusal to stay the state's ruling, and state Rep. Cris Dush even called for impeaching all five of the state court's Democratic justices over the decision. Such a move would be a shocking abuse of the rule of law that would put Pennsylvania in the company of authoritarian regimes like Turkey, not something that should ever happen in a democracy. But Republicans everywhere have long been willing to assault judicial independence to achieve their ends, and disturbingly, Pennsylvania GOP legislative leaders have refused to rule out and condemn Dush’s proposal.
This breathtaking level of partisanship may yet be a bridge too far for GOP leadership—we’ll see—but they do theoretically have the minimum number of seats needed to impeach judges ... thanks to their own gerrymanders of the state legislature, which gave them a two-thirds majority in the state Senate after the 2016 elections. But the GOP's extremism doesn't just concern this recent court ruling, because the state Supreme Court will play a pivotal role in next decade's legislative redistricting, too. That's because Pennsylvania uses a bipartisan commission to draw its legislative maps that predictably deadlocks between the two Democratic and two Republican members, forcing the court to appoint a tiebreaker.
In the last two decades, that tiebreaker has been a Republican who enabled the GOP's gerrymanders, but now the Democratic majority on the court can appoint someone who will faithfully adhere to the court’s belief that partisan gerrymandering violates the state constitution. None of the five Democratic justices has to go before voters until after the next round of redistricting, so the GOP would have no shot at assuming a majority unless they pursue impeachment and also beat Wolf this fall so they can appoint replacements for the vacant seats. Don't put it past them to try, though a fear of losing seats this fall might be the only thing keeping them in line.
Nevertheless, Republicans seem intent on stretching out the process, and their latest plan is to submit a map to Wolf on Friday, then vote to pass it before the court’s Feb. 15 deadline. However, Wolf has promised to veto any new GOP gerrymander, so an impasse is likely. In that scenario, the court itself will draw districts, relying on nonpartisan principles that include prioritizing equal population between districts, compactness, and minimizing the number of divided counties, cities, townships, wards, and precincts. Daily Kos Elections has created two nonpartisan maps of our own that we plan to submit to the court for its consideration. You can view our proposals, and detailed data about them, here.
● Census: The Census Bureau recently announced that, for its 2020 tally, it will continue to count prisoners at their places of confinement rather than at their address of record prior to incarceration, which has major implications for redistricting. Under the status quo, places with large prison populations get outsized representation, which largely means that predominantly white rural areas gain at the expense of cities with large black and Latino populations. That’s because inmates are disproportionately people of color from urban areas, while prisons are often located in rural communities.
This practice of counting prisoners at their prisons doesn't just harm representation of urban communities of color. It also leads to the nefarious practice called "prison gerrymandering." For instance, Ohio Republicans utilized prisons to add population to districts they crafted to elect Republicans without adding many actual new voters, since almost every state bans those with felony convictions from voting while currently incarcerated.
While representatives in a democracy represent all their constituents and not just voters, prisoners are uniquely isolated from their surrounding community by design. Unlike college students or military service members, two groups who often get counted at places that aren’t their permanent homes, prisoners by definition don't participate in civic life in the community surrounding the prison. It thus makes little sense for the census to count prisoners where they are incarcerated, and some states have already moved to combat this injustice by requiring prisoners be counted at their last address for the purpose of redistricting.
Meanwhile, the census also announced it will count deployed military service members at their last address—in other words, their base—rather than their address of record for legal purposes. This is a change from prior practice, so it could make locales with military bases even more important to the districts they’re located in.
● National Democratic Redistricting Committee: Former Attorney General Eric Holder is leading the nascent National Democratic Committee's efforts to fight Republican gerrymandering ahead of the 2020s round of redistricting, and they just released their target list of key state-level elections around the country where the winner will have a critical role in the redistricting process. Below is the list of targets with the incumbent party or majority party indicated:
- Governor: Colorado (D), Florida (R), Georgia (R), Michigan (R), Minnesota (D), Nevada (R), Ohio (R), Pennsylvania (D), Wisconsin (R)
- Upper chamber: Colorado (R), Florida (R), Georgia (R), Michigan (R), Minnesota (R), Nevada (D), North Carolina (R), Ohio (R), Pennsylvania (R), Texas (R), Virginia (R), Wisconsin (R)
- Lower chamber: Michigan (R), Minnesota (R), North Carolina (R), Ohio (R), Pennsylvania (R), Texas (R), Virginia (R)
- Other offices: Ohio secretary of state (R), Ohio auditor (R)
Meanwhile, the NDRC is also monitoring an additional set of elections:
- Governor: Maine (R), New Hampshire (R), South Carolina (R)
- Upper chamber: Maine (R), New Hampshire (R), New York (R-IDC coalition)
- Lower chamber: South Carolina (R)
- Ballot measures: Michigan, Missouri, Ohio, South Dakota, Utah
We have previously analyzed in detail just what the most important races will be for fighting gerrymandering at the state level. The NDRC's list of targets focuses heavily on states where Republicans would have full control over redistricting unless Democrats win elections for governor, retake a legislative chamber, or see ballot measures successfully curtail partisan gerrymandering, which several states may vote on this year. Holder also said the NDRC has already raised more than $16 million of its $30 million goal, but with the stakes so high, we can be sure that Republicans will similarly spend millions to preserve their advantage.
● North Carolina: On Tuesday, the U.S. Supreme Court issued a partial stay pending appeal of a federal district court ruling that had implemented several court-drawn legislative districts to remedy illegal gerrymandering by Republican legislators, who had redrawn the legislative maps in 2017 to comply with a prior court ruling that struck them down as an unconstitutional racial gerrymander.
The dispute at hand is a bit tricky: After the GOP enacted new maps to remedy the problems identified by the lower court, the judges determined that Republicans had still not fixed the racial gerrymander. The court itself therefore redrew four districts on its own.
But wily Republicans had also redrawn five other districts that had not been invalidated by the court, seizing what they believed was an opportunity to protect vulnerable incumbents in a few populous and Democratic-leaning urban counties. The district court did not look kindly on this backdoor effort to shore up Republican lawmakers, because the state constitution bans the mid-decade redrawing of legislative districts and ordered those five districts restored to their prior configurations.
The Supreme Court left in place the four districts the lower court redrew to fix the GOP’s racial gerrymander, but it stayed the district court's redrawing of the five districts that Republicans revised simply for partisan purposes. The federal district court had relied on the state constitution to block those five districts, but the Supreme Court essentially said that it's up to the state courts to address violations of the state constitution.
Fortunately, there's already a long-running case at the state level that also concerns racial gerrymandering. Plaintiffs in that case have filed an emergency motion asking the court overseeing it to quickly step in and block the GOP's mid-decade gerrymandering. While it's unclear if the state courts will have enough time to resolve the matter before the 2018 elections, Democrats hold a majority on the state Supreme Court, which offers plaintiffs hope for success.
Meanwhile, the U.S. Supreme Court had previously stayed a separate lower court ruling that struck down North Carolina's congressional map for partisan gerrymandering, but it announced it won't add the appeal to its calendar for this term, which ends in June. That means this case won't get decided until after the Supreme Court resolves two separate cases concerning partisan gerrymandering in Maryland and Wisconsin, so there’s really no way North Carolina will see a new congressional map for 2018.
● Ohio: Ohio is home to some of the most extreme Republican gerrymandering in the country, so it may come as a surprise that the GOP-dominated legislature overwhelmingly approved a state constitutional amendment that would make the state’s congressional redistricting process more bipartisan. This measure had wide support from both parties, as well as the backing of nonpartisan reform groups. Consequently, it will almost certainly pass when it appears on the May 8 primary ballot. While it may seem astonishing that GOP legislators would willingly give limit their power, we take a far more cynical view as to their real motivations: This reform is intended to block more vigorous measures to end gerrymandering and create fairer maps, as we explain below.
Ohio currently lets the legislature draw a congressional map subject to gubernatorial veto. Republicans gained unified control over state government in 2010 and drew one of the most partisan gerrymanders in America. This map has given the GOP 12 of 16 seats in every election since its adoption, even in 2012 when Obama won the state 51-48. Reform advocates had been pushing for change for many years, and both the League of Women Voters and Common Cause had been backing a ballot initiative to create a bipartisan redistricting commission and had been gathering signatures for the November ballot. However, that effort will likely come to a halt, now that reformers have accepted a compromise with legislators, but the devil is in the details.
The new amendment approved by the legislature would still leave legislators and party officials in charge of the process. However, for the legislature to pass a map, it would need 60 percent supermajority approval, including at least 50 percent of the members of the minority party. If the legislature can't pass a map, it would go to the same bipartisan commission of officeholders that already handles legislative redistricting. That commission is made up of four legislators—two from each party—and the governor, secretary of state, and auditor. The panel would currently have a Republican majority thanks to the GOP’s hold on statewide offices, but at least two votes from the minority party would be required to pass a map.
However, if the commission can't reach an agreement, the legislature gets another crack. The legislature would still need a 60 percent supermajority, but this time the share of votes required from the minority party would go down to just one third. But here's the critical part: If all those convoluted steps still fail to produce a map, the legislature gets to pass a map with a simple majority and no minority-party veto, although the map would only be good for four years instead of the usual 10. And what happens after four years? They can do it all over again.
This new amendment would also limit the number of ways counties can be split. It mandates that 65 of Ohio's 88 counties be undivided, while 18 counties can be split two ways, and five counties could be divided three ways; none could be split more than that. It also says the cities of Cleveland and Cincinnati can't be divided, as they currently are.
While reformers and Democratic officials have hailed this compromise, we strongly believe it is fatally flawed because it essentially still leaves one party in charge of the redistricting process. Given the degree to which legislative districts are already heavily gerrymandered to benefit the GOP, that will likely be Republicans after 2020, unless Democrats win the 2018 gubernatorial election and break the GOP's supermajorities in the legislature. When legislators are left in charge of the process, they will try to engage in gerrymandering, no matter what constraints they face.
Even if the two parties do reach a compromise on a map, Ohio Democratic leaders simply cannot be trusted to fight gerrymandering, because they previously failed to do so this very decade. Back in 2011, when Republicans passed their congressional gerrymander, Democratic legislators supplied enough votes to protect the new map from a citizen-initiated veto referendum in exchange for favorable changes to the districts of Democratic incumbents—even though the map decimated the party's ability to win additional seats.
This proposed reform means the Democratic minority in the commission or legislature could be strongly tempted to approve a tamer GOP gerrymander in exchange for protecting their current incumbents. And the GOP can threaten to unilaterally pass a more partisan map for four years if Democrats don't make concessions.
Most disappointingly, this compromise will likely make it impossible to achieve more far-reaching reforms, because it removes the ability of reformers to argue that the current system of unfettered legislative control over the process is unjust and that politicians can't be trusted to draw their own districts. Consequently, Ohio will be less apt to enact a future process that excludes legislators and party officials from the process entirely, as citizens in California and Arizona have done. These truly independent commissions—as opposed to commissions of legislators and party officials—have produced much fairer lines in recent years by disregarding partisan interests and prioritizing competitiveness.
By contrast, bipartisan, politician-appointed commissions in states like New Jersey and Washington have both engaged in partisan gerrymandering and incumbent protection. Simply letting both parties protect their own seats may yield a fairer partisan balance than one-party control, but it deprives voters of the chance to vote in a competitive election, meaning outcomes are often still foreordained.
The criteria that mapmakers are required to adhere to also matters greatly, and the latest Ohio compromise falls short on that count, too. The proposed November ballot initiative would have placed limits on maps designed to favor or disfavor a party or candidate, and—most importantly—would have required that maps be reflective of the Ohio’s statewide partisan composition. In other words, new maps were supposed to be fair, not just apolitical. This compromise proposal does no such thing, and it will enable Republicans to get away with gerrymandering simply by staying within the rules of compact districts that split fewer counties or by claiming they're just protecting incumbents.
Eliminating gerrymandering doesn't just require ending one party's unilateral control over the process, as much as that helps. Who gets to draw the lines and the criteria that guide those mapmakers is also of tremendous importance. In a vacuum, this compromise proposal is better than the status quo of GOP legislators having total control over the process. But we aren’t in a vaccuum. Republican legislators shrewdly accepted that momentum was building against partisan gerrymandering, and this compromise is quite simply a way to blunt that momentum while preserving as much of their advantage as possible under a false veneer of bipartisanship.
● Maine: Supporters of instant-runoff voting have submitted more than 80,000 signatures for a June ballot referendum to veto the legislature's effective 2017 repeal of an instant-runoff voting law that voters approved in 2016. That gives organizers a sizable cushion to ensure that at least 61,123 signatures are valid, as required by law. As we’ve previously explained, the 2017 repeal would be automatically suspended until the outcome of the referendum, if one takes place. That would mean this June's primaries would use instant-runoff voting as voters simultaneously decide whether to keep the new voting system.
● South Dakota: South Dakota Republicans are once again trying to restrict the ballot initiative process after they literally invoked a state of emergency in 2017 to repeal an ethics-reform law that voters had passed in 2016. This latest move saw the GOP-dominated state House pass a trio of bills that would try to limit the influence of out-of-state groups on the ballot measure process. One bill, aimed at limiting the ability of non-residents to circulate petitions, would require that the personal contact information of signature-gatherers, as well as how much they’re paid, be listed on the very petitions they carry.
Another bill would ban ballot campaigns from raising more than $100,000 from out of state. This measure could violate previous U.S. Supreme Court rulings that have deemed campaign donations to be free speech, regardless of what state they come from. A third bill would add the names of ballot measure sponsors to the ballot itself. Republicans dominate all levels of South Dakota state government, so these proposals stand a good chance of becoming law.