As David Nir reported in today's DK Elections Morning Digest, Maine's congressional redistricting process will be going to the Legislature for a vote near the end of this month. Historically, we pass these plans with a two-thirds majority; failing that, it goes to the Maine Supreme Judicial Court to decide.
Republicans can bypass this requirement and pass their plan with a simple majority because it is presently set in statute, not the Maine Constitution. But that could possibly set up an interesting showdown...
First, for those that don't know, why are we doing this now anyway? Well, Maine is one of two states that, up until this year, did not reapportion its districts until 2013 according to the state constitution. (Montana is the other, but is an at-large state with a single representative.) However, the Desena and Dunham v. Maine decision resulted in a ruling that mandated the districts be reapportioned by the end of the year, in time for candidates to file their papers on January 1, 2012.
As a result, a Redistricting Commission was formed that consisted of:
- 3 Democratic House members,
- 3 Republican House members,
- 2 Democratic Senate members,
- 2 Republican Senate members,
- The Democratic and Republican party chairs, or their designee,
- One member of the public chosen by each party,
- One member of the public chosen by the other two public members.
This resulted in a split of 7-7, with one independent chairing the commission.
About a week or so ago, the Commission passed the Democratic compromise plan with an expected 8-7 vote. This plan moves around a handful of towns in Kennebec County and basically keeps the old districts intact. The Democrats did an excellent job with their plan, the Republicans only had one argument against our original plan to move a single town -- that it still had a deviation of eleven people between the districts, whereas their plan had a deviation of one. The new plan created a deviation of a single person as the GOP wanted.
Meanwhile, the original Republican plan was a drastic deviation from the current districts. Their end-game compromise plan was less drastic, but still clearly designed for their gain. It moved one major metropolitan area -- Lewiston/Auburn -- out of ME-02, which is known to be more prone to swing back and forth between parties. I've heard this plan would cause a shift of several thousand GOP voters to ME-02 (close to 10k), but don't quote me on that.
The problem is, the Redistricting Commission's recommendation is just that. The Legislature can do as it pleases, and with the GOP holding the trifecta, there is no reason to believe they will happily pass our plan. In the past, the plan has been tied to the state level redistricting, which requires a 2/3 vote according to the state constitution:
The apportionment plan of the commission established under Article IV, Part Third, Section 1-A shall be submitted to the Clerk of the House no later than 120 calendar days after the convening of the Legislature in which apportionment is required. In the preparation of legislation implementing the plan, the commission, following a unanimous decision by commission members, may adjust errors and inconsistencies in accordance with the standards set forth in this Constitution, so long as substantive changes are not made. The Legislature shall enact the submitted plan of the commission or a plan of its own by a vote of 2/3 of the Members of each House within 30 calendar days after the plan of the commission is submitted. Such action shall be subject to the Governor's approval as provided in Article IV, Part Third, Section 2. ME Const., Art. IV, Part First, Sec. 3. (The Senate has a similar rule.)
The Congressional reapportionment has no such rule, and was only ever passed with a 2/3 vote in the first place because the state and federal plans were combined when passed. Now, the Congressional reapportionment stands alone, with state level redistricting unchanged from the 2013 date. That statute:
In making such a reapportionment, the commission shall ensure that each congressional district is formed of compact and contiguous territory and crosses political subdivisions the least number of times necessary to establish districts as equally populated as possible. The commission shall submit its plan to the Clerk of the House of Representatives no later than 120 calendar days after the convening of the Legislature in which apportionment is required. The Legislature shall enact the submitted plan of the commission or a plan of its own in regular or special session by a vote of 2/3 of the members of each house within 30 calendar days after the plan is submitted to the Clerk of the House of Representatives. This action is subject to the Governor's approval, as provided in the Constitution of Maine, Article IV, Part Third, Section 2. Maine Revised Statutes Annotated, Title 21-A, Sec. 1206.
But it says 2/3, you think! And here's where it gets tricky. This is statute, not a constitutional requirement. The rumor going around is that the legislature may amend this statute to require a simple majority, and then ram their plan through. Whether this is actually doable or not, I don't know -- I am not a lawyer.
Why a simple majority vs. 2/3 matters
Any bill passed by the legislature in Maine with a 2/3 vote is considered emergency legislation and takes effect immediately. ME Const., Art. IV, Part Third, Sec. 16.
On the other hand, anything passed with a simple majority takes effect 90 days after recess. Given the date of September 27th for the special session, the reapportionment either takes effect immediately with a 2/3 vote or gets kicked out to Christmas with a simple majority. This is for a reapportionment that must, by law, be in place for January 1st.
But if they pass it with a simple majority, it opens up an opportunity to use the People's Veto process to grind it to a halt. The Veto can only be used on bills that are not already law, and so cannot be used on a 2/3 plan that is enacted immediately. But it can be used on a simple majority plan.
So, what happens?
The People's Veto requires a signature collection effort of 10% of all voters who cast a ballot for governor in the previous election (roughly 57,000 signatures). If the veto succeeds, the law is stopped until an election can be held, usually in June. If the veto fails, then the reapportionment becomes law in December as scheduled.
If we succeeded, we'd put the state in violation of a court ruling, which may require the Supreme Judicial Court to step in and resolve the issue by passing a plan themselves. Our plan is more likely to hold up in court, so this is a good thing. If the veto somehow bypasses Desena and Dunham v. Maine, then the entire plan stands to be rejected in June 2012.
I'd be interested to hear from knowledgeable parties as to how this part of things would actually go, because I've heard different things from different people. The other question that remains is whether they can amend the 2/3 statutory requirement for Congressional reapportionment and then immediately pass a plan, as a simple majority to change the 2/3 requirement would require 90 days to be enacted, and may itself be subject to the People's Veto. Since there is a constitutional amendment on the ballot to require 2/3 for this vote in the future, and it was passed by a Republican majority, it will create quite the interesting pretzel-twist as they try to explain their actions.
More questions to find answers to, I suppose. But I bet this is more than you ever wanted to know about what's going on with our process. If I wasn't clear, please ask questions and I'll get to editing!
