Welcome to the third edition of the Gerrymander Gazette, Common Cause’s newsletter on redistricting reform efforts around the country. If this was forwarded to you, feel free to sign up here to get the Gazette right in your very own inbox.
Also, please check out the new map on the front page of Common Cause’s redistricting page (www.CommonCause.org/Redistricting) to see how every state draws their congressional and state legislative districts. Off we go…
In Lieu of Tinder, Try Redistricting
When politicians draw legislative lines, political advantage is usually first and foremost in their minds. However, sometimes other considerations take precedence. The New York Post reported that now-disgraced former New York State Assembly Speaker Sheldon Silver used the 2012 redistricting process to eliminate a romantic rival and Assembly incumbent. Silver drew an Assembly district to include a city whose mayor was likely to be a strong primary challenger for said romantic rival. His plan worked. The incumbent decided not to run again and the mayor won the seat. I prefer flowers and a nice dinner out, but to each his own.
That is the ugly/amusing side of New York redistricting. However, the results of congressional redistricting following the 2010 census tell a happier story. A citizen-led group sued following the legislature’s failure to agree on congressional boundaries. The Court, referencing maps drawn by Common Cause New York and civil rights groups, drew districts it specifically identified as coming from Common Cause New York’s proposal. This kept politicians out of the process, with great results. As we approach the 2016 congressional elections, the Cook Political Report found that New York has more toss-up districts than any other state in the U.S. and a higher percentage of them than 45 states. This will be the third congressional election to occur with this set of maps. When legislators aren’t able to lock in an incumbent protection scheme or implement a Machiavellian dating strategy, the benefits for voters can linger for the life of the plan.
The Cost of Keeping Secrets in the Virginia General Assembly
How much of the people’s money will Virginia legislators spend to keep redistricting behind closed doors? As it turns out, the answer so far is a lot. State senators are fighting to keep out of court emails they exchanged with third parties while redrawing General Assembly districts. OneVirginia2021 is challenging the maps in court on the grounds that they do not meet the Virginia Constitution’s compactness requirements. Senators have spent $180,000 in legal fees and been held in contempt of court as part of their strategy to keep email conversations secret. In a similar fight in Florida, over 538 pages of emails showed a determined (if occasionally ham-handed) effort by legislators and consultants to ignore state constitutional requirements. To Virginia legislators, spending $180,000 might be worth preventing a similar embarrassment, especially when it’s taxpayer dollars. It probably also helps that taxpayers may end up paying the $100 per day fine that is currently being leveled against each of them for their contempt of court. The Virginia Supreme Court has agreed to hear arguments in this government transparency fight as the larger case about the constitutionality of the districts continues in the City of Richmond Circuit Court.
Long Time Coming: Wisconsin (sort of) gets a Redistricting Reform Hearing in the Legislature
Earlier this month, the Wisconsin Assembly Committee on Campaigns and Elections finally held a hearing on redistricting reform. This comes nearly three years after the committee chair promised one would be held. See video of the hearing here. Although it cannot advance actual legislation because it took place when the legislature was not in session, occurred the Friday before Wisconsin’s presidential primary when reporters were kind of busy, and without public input — we’ll take it. It was the first time in five years that legislative leaders allowed a hearing on the topic. The coalition will keep up the pressure next session to move Senate and Assembly legislation to implement the Iowa model of nonpartisan redistricting.
Nebraska Governor Vetoes Redistricting Reform Bill
The Nebraska Unicameral Legislature passed a bill with a 29-15 bipartisan majority to create an independent citizens commission to draw Nebraska’s state legislative and congressional districts after each census. Gov. Pete Ricketts vetoed the bill and the bill’s sponsor decided not to attempt an override vote. Among his many incorrect analyses, Ricketts claimed that the legislature could not lawfully delegate its authority to draw districts. Last year, the U.S. Supreme Court spoke clearly and directly on this issue when it stated in Arizona State Legislature v. Arizona Independent Redistricting Commission that the U.S. Constitution allows legislatures to be stripped entirely of the power to draw congressional districts. However, that was not even the most perplexing spin about the veto. The Nebraska Republican Party won that award by adding that the bill “creates the appearance that the officials elected to conduct the business of the state are unwilling to perform their duties.” Translation: we may see hordes of angry citizens taking to the streets and demanding that legislators take the initiative to rig districts for political advantage. Politics is full of surprises, but we won’t hold our collective breaths.
Virginia Current and Former Members of Congress Use Partisan Gerrymandering to Defend Legislature from Racial Gerrymandering Claim
The U.S. Supreme Court heard oral arguments in Wittman v. Personhuballah, a case that will determine the fate of Virginia’s congressional maps. A lower court ruled that the Third Congressional District constituted an unlawful racial gerrymander because the legislature packed black voters into that district to limit their influence over surrounding districts. That court also tasked a special master to redraw the map after the Virginia General Assembly failed to do so. In a now familiar refrain, the attorney representing current and former Members of Congress seeking a restoration of the old districts said that legislators were merely trying to rig districts in favor of incumbents. No harm, no foul because, as he bragged, “every incumbent was re-elected.” Some members of the Court expressed skepticism about whether Members of Congress even have standing to challenge changes to their districts. The Court is likely to decide this case sometime before July.
Florida Redistricting Litigation: Update #1485
In a previous edition of the Gerrymander Gazette, we noted that the end is near for redistricting litigation in Florida. That might not have been entirely accurate. Nonetheless, the end is closer (?). Two successful lawsuits brought by FairDistricts Now coalition plaintiffs Common Cause and the League of Women Voters of Florida resulted in a ruling on congressional districts and a settlement for state senate districts determining that both violated the Florida Constitution’s ban on partisan gerrymandering. Starting with this year’s elections, the courts agreed to redraw the maps using boundaries the plaintiffs proposed. The legislature exhausted its appeals in the congressional case and decided not to appeal the ruling about state senate districts. However, U.S. Rep. Corrine Brown, who represents the infamously gerrymandered 5th Congressional District, sued in federal court to keep the current congressional map just as it is. The federal district court panel that heard the case upheld the coalition maps and dismissed Brown’s challenge. This is where the Gazette’s prognosticating went badly. Brown announced that she will run in the new district but…wait for it…will also appeal the decision to the U.S. Supreme Court. Brown has until June 17 to file an appeal. Florida’s primary is August 30.
USC Schwarzenegger Institute Research Shows Benefits of Independent Redistricting
The University of Southern California’s Schwarzenegger Institute for State and Global Policy released two studies making the case that redistricting reform and open primaries “reduce political polarization in legislative bodies and prompt candidates to more actively engage voters across party lines.” Common Cause, Open Primaries, the California Chamber of Commerce, and the Bipartisan Policy Center joined former Gov. Schwarzenegger and the institute for the unveiling of the research and to report on reform efforts around the country. In one of the studies highlighting the California legislature, Professor Christian Grose found that there was a 34 percent reduction in ideological extremity in the State Assembly and 31 percent reduction in the State Senate after the implementation of independent redistricting and open primaries. In addition to giving the public a voice in their own representation, independent citizen-driven redistricting might also help legislators work together more effectively.
Who Needs a General Election in Pennsylvania?
In Pennsylvania, as in other states across the country, gerrymandering has made legislative elections so uncompetitive that this week’s primary was the only opportunity many voters will have to shape their representation in Harrisburg and Washington. Pennsylvania voters will see only one candidate on the ballot in many congressional and General Assembly districts in the November general election. These districts are so skewed in favor of one party over the other that the other major party does not even think fielding a candidate is worth the effort.
A prime example of the precise geographic surgery the legislature had to perform to rig elections can be found in Cumberland County, which was sliced and diced in the last redistricting cycle. A former county commissioner there demonstrated the problem on Harrisburg’s ABC 27 News. He stood in a hardware store parking lot to point out houses in sight of each other whose residents are represented by a variety of General Assembly members who live nowhere near the communities they represent. This is undoubtedly one of the reasons that Cumberland County joined Pittsburgh by calling on the General Assembly to pass a bill creating an independent redistricting commission.
Partisan Gerrymandering Measure Making Its Way through the Courts in Wisconsin
In 2004, Justice Kennedy wrote a concurring opinion in Vieth v. Jubelirer, a constitutional challenge of Pennsylvania’s General Assembly and congressional districts. In the opinion, he kept the door open to challenging legislative maps on the grounds of unfair partisan gerrymandering but called for a judicially manageable standard for measuring a plan’s unfairness. Common Cause has been generating ideas through our Gerrymander Standard writing competition, but another approach might make its way to the Supreme Court’s docket soon enough.
A lawsuit challenging Wisconsin’s badly gerrymandered Assembly districts is going to trial on May 24 in front of a federal three-judge district court panel after the panel denied the state’s motion to dismiss the claim. The plaintiffs are challenging the districts using a novel measure of partisan gerrymandering called the efficiency gap. The efficiency gap, devised by Nicholas Stephanopoulos and Eric McGhee, measures whether an electoral system treats political parties equally. New Hampshire Public Radio recently used the measure to determine that New Hampshire Senate districts are skewed heavily in favor of one party. Stephanopoulos explains the theory in more detail in The New Republic. The trial is expected to last four days.
Equal Representation After Evenwel
In Evenwel v. Abbott, the U.S. Supreme Court decided that the plaintiffs’ constitutional views deserved as much deference as, just to use a random example, a belief in unicorns and a geocentric universe. With very few exceptions, every state in the U.S. divides itself into state legislative districts using the census count of total population. The plaintiffs sought to forbid states from using total population and require them to use a count of only eligible voters.
Why does this matter? A ruling in the plaintiffs’ favor would have rendered invisible in our democracy millions of our family, friends, and neighbors who are children under the age of 18, non-citizen immigrants, and other non-voters. It would have left communities with relatively high percentages of these individuals severely underrepresented in state legislatures. A community with a low percentage of non-voters would send more state representatives to state capitols, and thus have more political power, than a community of equal population but a high percentage of non-voters.
Fortunately, the Court decided in an 8-0 vote that states can continue to use total population to ensure equal representation in legislatures. Unfortunately, the Court stopped short of mandating the use of total population. As Kathay Feng discusses in Huffington Post, this lawsuit’s funder and other opponents of voting rights aren’t going away. Don’t be surprised if we see efforts to test the Court’s ruling and implement a voters-only count in one or more states. In the meantime, you can send a message to your governor to stop that from happening.
Taking Reform on the Road in California
Following the successful experiment with a statewide independent citizens redistricting commission in California, there is a growing movement to reform how county and municipal districts are drawn. A bill making its way through the California legislature, sponsored by State Sen. Ricardo Lara, would create an independent commission that would draw districts for the Los Angeles County Board of Supervisors, which represents 10 million people. The Sacramento City Council is poised to do the same for its residents and a separate bill sponsored by State Sen. Ben Allen would allow every county and city in the state to create their own citizen redistricting commissions.
The California Voting Rights Act allows residents to sue a county or city to change voting system from at-large to district-based if the at-large system prevents those residents from receiving fair representation in government. If residents succeed and obtain district-based representation, a bill sponsored by Assemblymember Luis Alejo would ensure that city officials could not then schedule elections at odd dates and times that would make it difficult for residents to obtain the benefit of that change.
Commonsense Definition of “Resident” Prevails in Landmark Prison Gerrymandering Decision
In the first-ever federal ruling of its kind, a court struck down legislative districts because they constituted an unlawful prison gerrymander. In a lawsuit brought by the ACLU of Florida and the Florida Justice Institute, federal District Court Judge Mark E. Walker ruled that the skewed population data used to draw Board of County Commissioners districts in Jefferson County, Florida resulted in a violation of the constitutional rights of county residents. The county announced that it will not appeal the decision.
What is prison gerrymandering? Prison gerrymandering occurs when a jurisdiction counts incarcerated people as residents of the community in which the prison is located for redistricting purposes instead of at their last known address. This stretches the definition of “resident” beyond all recognition by counting people with no freedom of movement, business dealings, consumer activity, or any other discernible connection with the surrounding community.
Let’s imagine a county board of supervisors with districts consisting of 1000 residents each. When prisoners are counted as residents of the communities in which the prison is located, a city with 1000 residents near a prison that has 1000 incarcerated people (we’ll call it Prisontown) will receive the same representation on the county board as a city with 2000 residents and no incarcerated people (Freetown). In this scenario, the 1000 genuine residents of Prisontown will be represented by two city council members while the 1000 genuine residents of Freetown will be represented by only one city council member, giving Freetown residents half as much political power in county government. That is the constitutional problem Judge Walker identified in Jefferson County and that could now be recognized around the country. According to the Prison Policy Initiative, Maryland and New York have passed legislation prohibiting prison gerrymandering immediately. Two more states, Delaware and California, have prohibited it starting with the 2020 census.
Illinois Legislators Propose New Redistricting Bills
As the Independent Map Amendment ballot initiative effort to bring independent redistricting to Illinois gains momentum, Illinois legislators proposed two bills to change how General Assembly districts are drawn. SJRCA 30, which passed the Senate, includes some provisions to require neutral criteria and public hearings but would leave control of the process in the hands of elected officials. A separate bill, HJRCA 58, is making its way through the House. The House bill sponsored by Rep. Jack Franks would prohibit partisan gerrymandering, establish neutral standards for drawing districts, and create an independent commission to draw General Assembly districts. Under the House proposal, half of the members would be appointed by the Chief Justice of the Illinois Supreme Court and the other half would be appointed by the highest-ranking Justice of a different political party. Common Cause stated that the Senate bill “falls far short of the democracy reform Illinois residents deserve” but that the House bill “provides a promising path forward for ending the unfair manipulation of legislative and representative districts in Illinois.”
Duke POLIS Center Teams with Common Cause North Carolina to Demonstrate Independent Redistricting
A federal court required the North Carolina General Assembly to redraw the state’s congressional map after determining that two districts constituted an unlawful racial gerrymander. The state responded by drawing a new set of maps so blatantly gerrymandered that they are now being challenged in court. In one example of the legislature’s lack of subtlety, the new map split North Carolina A & T State University, a historically black university with a long history of political activism, into two congressional districts.
Common Cause North Carolina teamed with Duke University’s Center for Political Leadership, Innovation and Service to propose a different path forward and show North Carolinians how it might work. They have devised a simulation showing how an independent redistricting commission might draw legislative districts in the state. The project opened on April 21 with an orientation session. Ten retired judges will examine demographics and hear from the public about their communities before drawing congressional and General Assembly districts based on neutral criteria. The group expects to complete its work in June.
Pushing For Action to End Gerrymandering in Ohio
Ohio’s Constitutional Modernization Commission again punted on whether to recommend reform of the way in which the state’s congressional districts are drawn. The panel responsible for redistricting issues will next meet on May 12. Ohioans passed Issue 1, which built in strong protections against one-party dominance in the drawing of General Assembly districts, last November. A growing chorus of supporters have backed the extension of reforms to the congressional redistricting process, which, as Michael Li of the Brennan Center notes, is dominated by out-of-state political operatives. These supporters include former Govs. George Voinovich and Bob Taft, a member of the commission, and current Gov. John Kasich. Kasich again called for action in his State of the State address, stating that, “Ideas and merits should be what wins elections, not gerrymandering.”
This newsletter has been produced by Common Cause and compiled by Dan Vicuna. For more information or to pass along news, contact Dan at firstname.lastname@example.org. Sign up for the Gazette here.
Office: California Common Cause, Common Cause Florida, Common Cause Illinois, Common Cause National, Common Cause Nebraska, Common Cause New York, Common Cause North Carolina, Common Cause Ohio, Common Cause Pennsylvania, Common Cause Virginia, Common Cause Wisconsin
Issues: Voting and Elections