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  • 18 Apr 2019 8:34 PM | Jason Fierman (Administrator)

    Senate bill introduced to reform North Carolina redistricting process - ABC 11 - by Ana Rivera

    RALEIGH, N.C. (WTVD) -- The process of drawing district lines in North Carolina has seen its fair share of criticism. Now, three democratic senators have introduced a bill that they hope will change that. 

    "We don't want to dilute the power of the people," explained said Curtis Hill, Columbus County Forum. "We want the people's voices to be heard." 

    A bill was introduced Thursday that would eliminate politically charged gerrymandering -- the process of dividing a region in a way that gives one political party an unfair advantage. 

    Regular voters would have the power to draw district lines. 

    "It puts voters, not politicians, at the center of a fair and open process to draw our confessional legislative districts," said Jennifer Bremer, League of Women Voters of North Carolina. 

    The bill creates a 15-person citizens redistricting commission. Anyone could apply but there are strict requirements. Candidates cannot have any affiliation with politics but they must be registered voters. 

    "There's a lot of eligibility requirements to try as best as we can to weed out political people who have served on committees or big campaign donors," said Brent Laurenz, Common Cause North Carolina. 

    Right now, legislators are in charge of drawing district lines after the review voter data, which allows them to manipulate districts in a way that could be beneficial to them or their party., but supporters are hoping this bill will change that. 

    "Democrats were not right, my party was not right when we did it and the Republicans are not right doing it now," said Senator Erica Smith, D-3. "It is unfair to the people of North Carolina." 

    Other states do have these citizen commissions who draw district maps. 

    Senator Ralph Hise, R-Mitchell, who chairs the Senate Redistricting and Elections Committee, said, "Liberal activist group Common Cause is currently leading a ridiculous lawsuit against the General Assembly, pretending their goal is 'fair maps.' Their appearance at today's press conference reveals Common Cause's true motives: to help Democrats give themselves more power. 

    "This phony commission they're promoting uses the same strategy as their lawsuit," he continued. "Ask a group stacked with Democrats to draw new maps that give Democrats a majority. If their goal is nonpartisan redistricting, then why create a commission that gives Democrats control over everything?" 

    California had over 30,000 applicants the first year it was implemented.

  • 18 Apr 2019 8:20 PM | Jason Fierman (Administrator)

    Wisconsin Prepares For Another Gerrymandering Trial - WUWM Milwaukee's NPR - by Marti Mikkelson

    Wisconsin’s gerrymandering case is back in the public eye. It’s scheduled for trial before a federal court in Madison in July. A panel of three judges will decide whether Republicans, who control the Legislature, illegally drew the state’s political boundaries in 2011 to benefit their party.

    Every 10 years, the party in control gets to redraw the state’s political boundaries to reflect the latest U.S. Census figures. In 2011, it was newly re-elected Republican Gov. Scott Walker and a GOP majority in the legislature.

    New Democratic Gov. Tony Evers has proposed in his budget a different process for 2021. Under it, a nonpartisan legislative agency would redraw the maps and then submit them to the Legislature for an up-or-down vote, with no amendments.

    Several people supported the idea at a recent public hearing on Evers’ biennial state budget proposal in Oak Creek, including Nancy Kaplan. She points to a 2019 Marquette Law School poll, which she says shows redistricting is a nonpartisan issue.

    Kaplan says, “72 percent of voters prefer redistricting of legislative and congressional districts by a nonpartisan commission."

    Evers’ plan is based on the method that Iowa has been using since 1980. And, while those testifying at the state budget hearings are looking ahead a few years, the federal trial this summer would judge the way the 2011 maps were drawn — and possibly order them reconfigured by the 2020 presidential election. One group interested in the outcome is Common Cause in Wisconsin. Executive Director Jay Heck says he hopes the judges throw out the current maps.

    “They were drawn in such a way that it made it impossible for people who voted for one political party to ever see a majority of that party gain control either in the Legislature or in Congress, because of the way that one party was packed into a district and the other party was spread out so as to assure victory,” he says.

    The challenge was originally brought by a handful of Democratic voters in Wisconsin. A panel of federal judges struck down the Republican-drawn maps in 2016, and the GOP appealed to the U. S. Supreme Court. The high court sent the case back to the federal court in Madison, saying the plaintiffs lacked legal standing, and failed to prove that individual rights were violated.

    Rick Esenberg is an attorney for the Wisconsin Institute for Law and Liberty. It has previously filed “friend of the court” briefs in the case. Esenberg argues the current maps are constitutional, because they reflect the relative concentration of Democratic and Republican voters geographically.

    “In the state of Wisconsin and in many other states, the Democratic voters tend to be more heavily geographically concentrated than Republican voters. The plaintiffs say it’s too much, but the problem is that there’s no standard to determine how much is too much,” he says.

    The U.S. Supreme Court recently heard arguments in two other cases: North Carolina, where Republicans are accused of overreaching and Maryland, where a lawsuit has been filed against Democrats who oversaw the redistricting process.

    READ: The Supreme Court Takes Another Look At Partisan Redistricting

    The court is expected to rule in those cases by the time Wisconsin’s trial begins in July. UW-Madison Political Science Professor Barry Burden says those rulings could have an impact on the state’s case.

    “If the court for example, were to rule in a majority opinion that the Maryland and North Carolina districts should be redrawn in some way because they violated some constitutional rights, that might lead to a remedy being proposed in Wisconsin without a full trial. If the Supreme Court instead issues a kind of mishmash of different opinions without a clear majority on one side or the other, the trial might go forward trying to resolve some issues that didn’t come up in the Supreme Court opinions,” he says.

    Burden says there have been many redistricting lawsuits since the 2010 Census. The most noteworthy outcome came from Pennsylvania, where its state Supreme Court last year, struck down maps that Republicans had drawn. The court ended up redrawing the boundaries.

  • 13 Apr 2019 6:14 PM | Jason Fierman (Administrator)

    Panel takes on tough issues ahead of 2020 census - Newsday - by Joan Gralla

    Long Island and the state as a whole are at risk of failing to count all residents for the 2020 U.S. census, advocates said Friday, citing problems ranging from too few dollars for outreach to the chilling effect of anti-immigrant rhetoric and policies.

    Long Island communities that are deemed “hard to count” tend to have sizable numbers of renters, sometimes in unregistered group homes; recent Hispanic immigrants; children under 5 years old; and households that lack computers or internet access, they said, noting next year’s census will be the country’s first with an online form.

    The bipartisan New York Complete Count Commission delved into these and other difficulties at a hearing Friday at Suffolk’s legislative chambers in Smithtown ahead of next year’s census, which will decide how states share billions of dollars of federal funding and the size of their delegation in the U.S. House of Representatives.

    New York State earmarked as much as $20 million to persuade New Yorkers to participate; the Fiscal Policy Institute last year said $40 million was needed. Though California’s population — at almost 40 million — is roughly double New York’s, the Golden State’s website says California plans to spend as much as $150 million on outreach.

    Freeman Klopott, a spokesman for the New York State budget, said the state is committed to a complete count, citing efforts to update a federal master list with addresses it lacked, and to work with local groups.

    A spokesman for Gov. Andrew M. Cuomo had no immediate comment on whether more outreach funds were needed.

    Though the answers on census forms remain with the organization that collects them and are not shared with the government, Rebecca Sanin, CEO of the Health and Welfare Council of Long Island, pointed out that some immigrants are too afraid to even apply for food stamps or Medicare.

    “In an anti-immigrant climate, we need to be concerned in a way we never have been before,” Sanin said.

    This is why it is so crucial to recruit trusted local leaders to serve as census ambassadors, the experts said. “They talk to us, they trust us,” said Shanequa Levin, founder of the Women’s Diversity Network, before the session.

    Libraries, schools, community centers, houses of worship, food banks and other places people gather all must be enlisted, they said.

    “If our communities are unaware of the need to participate, there will not be an accurate count, and unmet needs will abound,” said Claire Deroche, speaking on behalf of the social justice committee for the Unitarian Universalist Congregation at Shelter Rock.

    Undercounts in the 2010 census cost New York two congressional seats, advocates said. Vanessa Baird-Streeter, Suffolk County assistant deputy county executive, highlighted other problems that arose. For example, she said, a school district was forced to spend hundreds of thousands of dollars renting a building that it could not anticipate it would need because so many prekindergarteners were missed.

    Describing the county’s efforts to add overlooked addresses to the database, Baird-Streeter said: “Suffolk County was the seventh-lowest county responding in 2010 in New York. That is not going to be acceptable in 2020.”

  • 13 Apr 2019 6:12 PM | Jason Fierman (Administrator)

    New York’s New, Untested Redistricting Process Set to Unfold After 2020 Census - Gotham Gazette - by Samar Khurshid

    Following the 2020 Census, New York will kick off the decennial redrawing of its state legislative and congressional districts to ensure equitable representation based on population. But the next redistricting process is untested so far, having been approved after the 2010 Census when New York saw a severe undercount, contributing to the loss of one congressional seat, followed by a redistricting that many observers and elected officials criticized for creating overly complicated state Legislative districts on partisan lines.

    Looking ahead to the upcoming process, experts are hopeful, though uncertain, that the new redistricting method -- approved by voters via 2014 ballot referendum -- will lead to cleaner, more representative districts that improve the state’s democratic process once they take effect in 2022.

    New York currently has 150 Assembly districts, 63 Senate districts, and 27 for the U.S. House of Representatives, all of which could change with the next redistricting when a new advisory commission of mostly legislative appointees will recommend the new boundaries for districts. That commission is meant to reduce political influence, though its proposed maps will not be binding.

    Democrats now control the entire state Legislature, though they will have to keep control, especially of the Senate, through the 2020 elections. Republicans held the state Senate when the last round of redistricting took place, with a split Legislature in part leading to heavily gerrymandered district lines. At least in theory, legislative leaders will be less able, and therefore likely less inclined, to manipulate the next redistricting process, which offers a degree of parity and safeguards against partisan politics.

    The census is the first big next step, and with the subsequent redistricting it determines representation of a state’s population in Congress and, for New York, the state Senate and Assembly. Besides the threat of billions in lost federal funding, an inaccurate census count can set the stage for a skewed drawing of legislative and congressional districts. New York has seen a net out-migration of more than a million residents since 2010 and stands to lose at least one seat in Congress, if not two, if the state’s population is not adequately counted.

    Following the last census, in 2010, the state’s redistricting process came under heavy scrutiny for lacking transparency and for creating state Senate districts that seemed designed to advantage Republicans and upstate and suburban districts, diluting the power of New York City residents who tend to lean Democratic. The process also strengthened Democrats’ control over the Assembly, though that chamber has traditionally been dominated by the party.

    Governor Andrew Cuomo approved of the redistricting plan, which was put forward by the state’s Legislative Task Force on Demographic Research and Reapportionment (LATFOR) after 23 hearings across the state. At the last LATFOR hearing, one member, then-state Senator Martin Dilan, a Democrat, said he had considered boycotting the meeting because “the entire process has been a farce, a sham, has been a waste of money, and I believe that we have not listened to the citizens of the state of New York, and the plan that's being presented today to the Legislature is something that's putting the cart before the horse.” The redistricting plan, he said, was presented to the public and to the Legislature without LATFOR voting on it first.

    But as the Legislature adopted the redistricting plan, it moved forward with an amendment to the state constitution, approved through voter referendum, which mandated the creation of a new “independent redistricting commission” to redraw district lines.

    In 2021, that commission will be created for the first time, composed of ten members -- two each appointed by the Assembly Speaker, Senate majority leader, and minority leaders in both houses; and two chosen by a majority of those eight appointed members. The legislation set restrictions on who can be members, prohibiting anyone who has been in the previous three years a state legislator, congressional representative, statewide elected official, legislative or state employee, lobbyist, or political party chair. It also restricts the spouses of legislators, representatives, and statewide officials from serving. The commission will have two co-executive directors, representing the Democratic and Republican parties. LATFOR, chaired by Assemblymember Marcos Crespo, a Bronx Democrat, is meant to provide assistance to the commission. Crespo’s office did not respond to repeated requests for comment for this story.

    The new commission will be guided by clearer safeguards and criteria than its predecessor as it spends months holding public hearings across the state. The authorizing legislation requires the commission to hold at least one hearing in the cities of Albany, Buffalo, Syracuse, Rochester, and White Plains, and in counties including the Bronx, Brooklyn, Queens, Staten Island, Manhattan, Nassau, and Suffolk.

    The law mandates that districts should not be drawn in a way that could lead to “the denial or abridgement of racial or language minority voting rights.” It requires the commission to create equally populated districts as far as possible and to provide explanations in case of deviations.

    The law also protects against the party in power from exploiting its position. If the leaders of the two legislative chambers represent different parties, the newly drawn maps recommended by the commission must be approved by a majority vote of each house. But, if both chambers are controlled by the same party, approval would require a two-thirds majority vote.

    “What we have this time around is the largest amount of uncertainty that we’ve ever had in redistricting in the last 40 years,” said Esmeralda Simmons, founder and executive director of the Center for Law and Social Justice, at Medgar Evers College, CUNY. “There’s a big question mark about what exactly is going to happen and how in this precedent-setting year, how this commission and the state Legislature will actually behave under these circumstances. It’s a test of whether or not elected officials, when their self interest collides with democracy, will choose democracy.”

    Experts agree that an effective redistricting can only take place if the state carries out a thorough census effort and counts each and every resident of New York, and that the process is as free of politics as possible.

    The 2020 Census is expected to be particularly challenging for several reasons -- the federal government is underfunding the Census Bureau; the count will be carried out largely through digital methodology for the first time; the Trump administration is attempting to add a citizenship question (which is being challenged in court) amid already rising concerns among immigrant communities, particularly undocumented immigrants, that they could fall under the federal government’s scrutiny; and the state has only allocated $20 million for community outreach though advocates called for twice that amount.

    “Right now, the focus has got to be on the census because a bad census is going to result in a lack of fair representation,” said Jeff Wice, Fellow at the SUNY Rockefeller Institute of Government, who is a veteran of four cycles of legislative redistricting in New York City and State. “The state commission won’t be created until 2021 so it is not going to be a frontburner issue now, but people do need to learn about the process.”

    As Wice and the others noted, an inadequate census would raise questions about the equitable reapportionment of districts. Undercounts, particularly of hard-to-count communities, can lead to redrawing district boundaries in ways that would create overpopulated districts, effectively watering down their representation, while over-representing others.

    “Given there are communities that tend to not appear on the population count combined with the fact that there are districts that are disappearing, is potentially worrisome in terms of the reality of representation on the congressional level,” said Yurij Rudensky, counsel with the Democracy Program at the Brennan Center for Justice, “particularly for parts of the city like Queens and Brooklyn and the Bronx where lower-income communities, communities of color tend to live.”

    There also remain several other open questions about the process, including how independent the redistricting commission will really be and whether the districts it draws will ultimately be approved by the Legislature and Governor. In the last two rounds of redistricting, the Legislature deadlocked on congressional maps and both times, a judicially appointed special master ended up drawing the maps that were later adopted.

    “Maps that are drawn by courts perform well from a partisan fairness standpoint,” said Rudensky, “and of course courts are also sensitive to racial implications and have for a long time considered Voting Rights Act challenges.”

    The independent commission’s recommendations will not be binding and the Legislature can, after rejecting the commission’s plans twice, adopt its own plan. “There’s no guarantee that this is how things will play out but it is possible as the proposal is written right now,” Rudensky said. “That is a reality, that is a shortcoming. It doesn’t mean it will happen, it doesn’t even mean that it’s likely because I think the way that it was designed, it will make it harder. Because the public has this increased role, it would look bad at the very least. That’s not to say that that will stop any sort of funny business.”

    The 2021 redistricting process will be the first to be carried out without certain protections of the Voting Rights Act, which were struck down by the United States Supreme Court in 2013. Those protections required certain states and counties -- including the Bronx, Brooklyn and Manhattan -- to get approval from the federal Department of Justice to make changes to election laws, including the drawing of districts. Without those protections, “the only way to challenge something that hurts racial minority voters would be to go to court after the fact, not stop it before it goes into effect, and that’s a real major difference,” Simmons said, “the fact that they don’t have the hammer of the Justice Department hanging over their heads to reject racially discriminatory voting lines.”

    Simmons is eagerly awaiting the Supreme Court’s decision, expected this summer, in a separate case that could bring an end to extreme partisan gerrymandering, which she is hoping will strengthen the state redistricting process as well.

    The state Legislature passed a law in 2010 requiring that prison populations be counted based on inmates’ previous residence, but the constitutional amendment creating the redistricting commission does not address the issue. Prison populations can especially bolster upstate area population counts if prisoners are counted based on their prison location.

    “The commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent on that,” Wice said. “It is an open question because they could argue that the constitutional amendment preempts a chapter law that was enacted prior to the constitutional amendment...That could be a major debate.”

    Nonetheless, there’s hope that the state can set a better standard with the new process. “I believe that elected officials can redistrict responsibly if they have a fair, transparent, objective process, and that’s very doable,” Wice said. “You don’t want to have plans…that are enacted through backroom machinations….[The commission’s] got to do things more in the open that will lend itself to more credibility and trust.”

    Simmons admits that she has a “deep-seated fear” that the Legislature could exploit the loophole in the law that allows it to draw districts and reject the commission’s proposal. But, she said, “I do have hope that this process will be real and not just subterfuge, wasting taxpayer dollars by giving some people some busy work while the Legislature draws its own districts and simply rejects out of hand anything suggested by the commission.”

    Rudensky said the public eye will keep the Legislature honest. “There’s gonna be a lot of attention on it, focus on it and hopefully that will help make sure that the reform is a success,” he said.
  • 7 Apr 2019 1:24 PM | Jason Fierman (Administrator)

    If Florida gains Congressional seats, where would they go? - Tampa Bay TImes - by Langston Taylor

    Florida is about to win. And Central and Southwest Florida might win even more.

    Less than a year out from the 2020 U.S. Census, analysts project the state to gain two additional seats in the U.S. House of Representatives (and, correspondingly, the electoral college). So while states like New York and Ohio continue to see their population and corresponding congressional representation dwindle, Florida, Arizona and Texas are looking for gains.

    But the apportionment set by the federal government (due by the end of 2020) is only the beginning of the next step: redistricting.

    Florida’s Legislature is charged with drawing the new maps. That effort (which ultimately took more than two years after last decade’s count) will depend on partisan demographics and political strategy. But at the heart of it, supposedly, is where people live. All Congressional districts are supposed to be “as nearly equal in population as practicable.” That means we should expect general areas with relatively more people than 10 years ago to get more representation.

    Geographically, we’re talking Central and Southwest Florida. Population total trends show, since 2010, Central Florida has seen less of a boom and more of an explosion.

    In particular, Florida’s Ninth district (including Kissimmee and Winter Haven) has become a behemoth.

    As redistricting looms, population in one Florida Congressional District has exploded

    If the population in each district in Florida were the same, each would hold about 777,200 people, as of 2017(the most recent American Community Survey data available). The Ninth was home to 868,945 people that year, 12 percent more than expected.

    Those 91,000 extra people (about the population of Miami Beach) get no extra representation in Congress.

    In national terms, it’s the third-most bloated district in all of Congress, only behind two Texas suburbs. (That’s within states, at least; Montana might argue its single at-large district, now representing more than a million, would deserve that title.)

    The next-largest population districts are the 10th (in neighboring Orlando), 16th (Sarasota), 19th (Naples).

    Relative population by Congressional district, 2017

    Nothing is anywhere near certain. It’s still a year before the Census and two years before Florida gets the data it uses to redistrict -- and the American Community Survey data is already more than a year old.

    What comes next will be an entirely different map. But when the dust is settled, every new district’s population will be the same size, meaning the districts where residents lose out now (in Central and Southwest Florida) will regain equal representation in Congress, momentarily.

  • 7 Apr 2019 1:20 PM | Jason Fierman (Administrator)

    Trump Administration's Census Citizenship Question Plans Halted By 3rd Judge - NPR - by Hansi Lo Wang

    The Trump administration's plans to add a hotly contested citizenship question to the 2020 census have suffered another major blow in the courts.

    The question asks, "Is this person a citizen of the United States?"

    A third federal judge has found the decision to include it on forms for the national head count to be unlawful.

    "The unreasonableness of Defendants' addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public," wrote U.S. District Judge George Hazel of Maryland in a 119-page opinion released Friday.

    Hazel concluded that the decision by Commerce Secretary Wilbur Ross, who oversees the census, to add the question violated administrative law. Federal judges in New York and California previously came to the same conclusion.

    Similar to the earlier ruling in California, the judge also found that including the question would be unconstitutional because, at a time of increased immigration enforcement and anti-immigrant rhetoric, it hinders the government's ability to count every person living in the U.S. once a decade as the Constitution requires.

    Hazel ruled that the plaintiffs did not provide enough evidence to prove two additional claims — that adding the question was intended to discriminate against Latinos, Asian-Americans and immigrants; and that it was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.

    The attorneys who brought those claims in one of the two citizenship question lawsuits in Maryland are considering appealing that part of Hazel's ruling, according to Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund.

    Attorneys with the civil rights organization, along with Asian Americans Advancing Justice, helped represent a group of plaintiffs led by the Texas-based community group La Unión Del Pueblo Entero.

    "I think it's now patently undeniable that the inclusion of the citizenship question was completely illegitimate," Saenz said. "The federal government should do the right thing and remove the citizenship question."

    The Trump administration has insisted that the Justice Department wants responses to the question to better enforce a part of the Voting Rights Act that protects racial and language minorities against discrimination.

    In his opinion, however, Hazel found that the administration "manufactured" that reasoning. He echoed the earlier ruling in California by U.S. District Judge Richard Seeborg, who wrote that the enforcement of the civil rights law is "nothing more than a pretext designed to provide cover for the Secretary's unexplained desire to add the citizenship question to the census."

    Shankar Duraiswamy, from the law firm Covington & Burling, is the lead attorney who represented a group of individuals from states including Maryland and Arizona in the other lawsuit. He noted in a written statement that Hazel's ruling "establishes that the question will actually undermine the voting rights of citizens who live in states and communities with significant Latino and immigrant populations."

    The Justice Department is disappointed by Hazel's ruling, according to a statement from Kelly Laco, a DOJ spokesperson. "Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer," Laco wrote.

    This latest district court ruling in the almost yearlong legal battle is likely to be appealed all the way to the Supreme Court.

    A Supreme Court hearing about whether including the question is constitutional and about the New York ruling, which has already blocked the citizenship question, is scheduled to be held on April 23, and the justices are expected to rule by June on whether the 2020 census will ultimately include the question.

    President Trump recently weighed in on the controversy with a tweet calling a census without the "all important" citizenship question "meaningless and a waste" of the billions the head count costs.

    If the question is included, the Census Bureau is expecting fewer households to self-respond to the census, particularly among Latinos and households with noncitizens, including unauthorized immigrants.

    Critics of the question worry that would affect the accuracy of new population numbers that determine how many congressional seats and Electoral College votes each state gets. Census numbers also guide how an estimated $880 billion a year in federal tax dollars for Medicaid, schools and other public services is distributed to local communities around the country. 

  • 7 Apr 2019 1:18 PM | Jason Fierman (Administrator)

    Fixing Gerrymandered Maps Tougher than Gorsuch, Kavanaugh Think - Bloomberg Law

    The Supreme Court’s newest justices, Neil Gorsuch and Brett Kavanaugh, highlighted independent redistricting commissions as a solution to state legislatures maximizing seats for the party in power while drawing voting districts.

    But legal experts say these commissions can’t solve the problem alone.

    The justices’ comments came during argument last week in a pair of partisan gerrymandering challenges out of Maryland and North Carolina, which allege politicians drew voting districts to disadvantage the other political party.

    In North Carolina, Democrats say the state’s congressional districts were drawn to benefit Republicans. In Maryland, it’s Republican voters who are complaining that the districts have been rigged.

    The Supreme Court has struggled for decades to come up with a neutral way to police partisan gerrymandering, but hasn’t been able to settle on one. The chances for the high court to resolve the problem may have dropped last year with the retirement of Justice Anthony Kennedy, who was a swing vote on this ideologically divided issue.

    During arguments last week, some of the justices indicated that independent redistricting commissions, which take redistricting out of the hands of state legislatures and put it with a bipartisan or nonpartisan committee, might be a way for the court to stay out of partisan gerrymandering all together.

    To “what extent have states, through their initiatives, citizen initiatives, or at the ballot box in elections through their legislatures, amended their constitutions or otherwise provided for remedies in this area?” Gorsuch asked during last week’s arguments.

    And Kavanaugh chimed in to ask: Have “we really reached the moment, even though it would be a big lift for this Court to get involved, where the other actors can’t do it?”

    The justices may find it appealing to point to ballot box initiatives as a reason for the high court to stay out of this issue. But experts say these commissions may not be the solution for many states.

    They can be difficult to establish because state legislatures have little motivation to cede the important power of drawing voter districts. The states that have already adopted independent redistricting commissions are generally “states in which those commissions were adopted over the dead bodies of the legislators by citizen initiative, passed overwhelmingly by the citizens and in the face of legislative opposition,” Emmet Bondurant told the justices in the North Carolina dispute.

    Only 18 states allow for a constitutional amendment via ballot initiative, according to the National Conference of State Legislatures. In the remaining states, independent redistricting commissions would have to pass through the legislature—something that could be a tough sell given that the gerrymandered districts are what got these legislators into power, said the University of Virginia’s Saikrishna Prakash.

    And even if they are successful in overcoming legislative opposition, it isn’t clear that these commissions can be set up in time for the next round of redistricting in 2021.

    Mandating State Commissions

    While supporters of independent redistricting commissions initially feared that the newly reconstituted court might overturn its 2015 5-4 decision blessing these commissions, they appear to be on much sturdier ground following last week’s partisan gerrymandering arguments.

    It would be difficult for the justices to point to independent redistricting commissions as a way for other actors to thwart partisan gerrymandering only to later pull the rug out from under them, redistricting expert Michael Li said.

    Aside from further legal challenges, the path for nationwide adoption of commissions is bumpy at best.

    Democrats in Congress are attempting to mandate these panels in states via an omnibus bill (H.R. 1), which tackles everything from voting rights to ethics to political spending. But while the House passed the measure March 8 on a straight party-line vote, Senate Majority Leader Mitch McConnell (R-Ky.) opposes the bill and has said he won’t bring it up for a vote.

    Barriers to Adoption

    Further, it isn’t clear that all states can adopt these panels. 

    So far, independent redistricting commissions have been largely adopted in states, primarily west of the Mississippi, “that allow the people to amend their state constitutions without the consent of the state legislature"—and usually over its opposition—by initiative or referendum, Bondurant, of Bondurant Mixson & Elmore LLP in Atlanta, said. Currently there are 18 redistricting commissions, though the vary in their makeup and effectiveness.

    With few exceptions, “most states east of the Mississippi, including North Carolina and Maryland, do not allow the people of the state to amend their state constitutions without first obtaining the consent of the legislature which usually requires a super majority vote of both houses of the legislature,” he said.

    “While support for independent redistricting commissions is always well north of 70% for citizens across the political spectrum, legislators like the system that got them elected in the first place,” said Brian Cannon, who is leading the charge to establish an independent commission in Virginia. Therefore, there’s “a significant disconnect between our elected political leaders and those they purport to serve when it comes to this issue,” Cannon said.

    “Thus, the problem of partisan gerrymandering does not have a ‘political solution’ in the majority of states that do not allow amendments to their state constitutions by initiative or referendum,” Bondurant said.

    Stars Align

    Political pressure, when combined with popular support, can lead to change, however, Cannon said.

    It certainly makes it harder for states to establish independent redistricting commissions without ballot initiatives, but it isn’t impossible, Li, of the Brennan Center for Justice, said.

    “That’s the path we’re on in Virginia,” Cannon added.

    In February, the Virginia General Assembly “passed the ‘first read’ of an amendment that would establish the first ever Virginia Redistricting Commission,” according to Cannon’s organization, One Virginia 2021. Voters must pass the “amendment again in 2020 without changing so much as a comma in order to” even get it on the ballot, the group said.

    And while that reform is meaningful, a similar situation isn’t going to happen in states where there is an overwhelming majority in charge, like Texas, Li said.

    The stars basically aligned in Virginia to get this effort off the ground, Cannon said.

    In particular, the state houses are almost evenly divided in Virginia, with the Republicans gaining a majority of the state House only after the Republican incumbent’s name was drawn out of a bowl to break an election-day tie.

    In such a world, it is easy for either side to see the other party in power, Li said. So there’s an incentive for both parties to support independent redistricting commissions, Cannon said.

    But certainly it is easier—and often produces more robust change—to get reform via ballot initiative, Li said.

    Another Decade

    Cannon said he’s hopeful a Virginia commission, if it succeeds at the ballot box, can get off the ground in time for the next redistricting cycle, which occurs after the 2020 census.

    But Virginia is a bit different from other states because it has off-year elections, and is thus able to get a jump on the process of setting up the commission, Cannon said.

    For other states, it could be too late for them to set up a commission for the next round of redistricting if it isn’t on the ballot until 2020, Li said. 

    If the Supreme Court doesn’t step in to stop the kinds of extreme partisan gerrymanders that occurred in both Maryland and North Carolina, legislators drawing district maps will understand that there are essentially no limits on what they can do when it comes to partisanship in redistricting, said Li.

    Those states will be facing at least another decade of extreme partisan gerrymandering, he said.

    – With assistance from Greg Giroux

  • 7 Apr 2019 1:14 PM | Jason Fierman (Administrator)

    State Supreme Court Races Emerge As Another Front In Redistricting Wars - Talking Points Memo - by Allegra Kirkland

    Wisconsin voters head to the polls on Tuesday, bringing an end to a viciously fought state Supreme Court race.

    Millions of dollars were spent. Conservative candidate Brian Hagedorn, legal counsel to former Gov. Scott Walker, was pilloried for past comments calling the NAACP a “disgrace to America” and comparing homosexuality to bestiality. Former Attorney General Eric Holder visited Madison to campaign for liberal candidate Lisa Neubauer, calling the race something voters “need to be engaged in.”

    Much of the political chatter has centered on how much the partisan tilt of Wisconsin’s court matters for the next round of redistricting. After the 2020 census, lawmakers in the bitterly divided state will have their next chance to draw up congressional and state legislative districts. If—or, more likely, when—lawsuits are filed over those maps, the state Supreme Court will have the final word on whether they pass muster.

    In swing states from Wisconsin to North Carolina, redistricting has emerged as a focus in these less-covered, increasingly pricey contests. With varying degrees of candor, lawmakers and operatives are making it clear they’re looking at state Supreme Court races with 2021 redistricting in mind.

    “The prominence of redistricting in these races is somewhat new,” Douglas Keith, counsel with the Brennan Center’s Democracy Program and an expert on state Supreme Court races, told TPM.

    Pointing to contentious district line fights involving the highest state courts in Pennsylvania and Wisconsin, Dave Daley, a redistricting expert with Fair Vote, predicted: “We’re going to see both sides now fighting aggressively over state Supreme Court seats.”

    The Pennsylvania example is instructive. In 2018, the Democratic-controlled state Supreme Court ruled that lawmakers’ congressional district lines represented an extreme partisan gerrymander. Republicans said that two of the Democratic justices were unfairly biased, pointing to comments they made during their 2015 campaigns, calling the state’s GOP gerrymander “insane” and for an “end” to gerrymandering, respectively.

    After lawmakers failed to meet a court-imposed deadline to draw new districts, the court ordered that its own map, composed by an outside expert, be used. The state GOP erupted, with some lawmakers even calling to impeach four of the body’s Democratic justices for “misbehavior in office.”

    The Republican State Leadership Committee cited the Pennsylvania situation as an example of how “the Obama-Holder hit squad” are trying to take over state Supreme Courts “to undermine election outcomes and rig the system for Democrats.” Having courts determine what represents an unfair partisan gerrymander or draw maps usurps the rightful authority of state lawmakers to handle redistricting, the RSLC’s David James told TPM in a recent interview.

    Other swing states have seen similarly fierce races. A WRAL report about North Carolina’s 2016 contest was headlined “Supreme Court spending ‘all about redistricting.’” Democratic candidate Mike Morgan prevailed, giving his party a 4-3 majority in the court.

    That set the stage for an even more high-profile contest in 2018 between a Republican incumbent and Anita Earls, a veteran voting rights champion who led local Democrat’s crusades against GOP-drawn maps determined by federal courts to be racial and partisan gerrymanders.

    Republican lawmakers pulled out all the stops to defeat Earls. They mulled packing the courts to protect them from challenges to their gerrymanders. They passed legislation to make state Supreme Court races partisan again, explicitly acknowledging that GOP candidates would likely benefit. They tried to undermine a Republican challenger to the incumbent who they feared would split conservatives’ vote—a prediction that ultimately came true.

    Earls won the race handily, giving Democrats a 5-2 majority that they will hold until at least 2022, well after the initial maps have been drawn.

    Elections experts cautioned that redistricting isn’t the only focus in these races. Party operatives often get voters’ attention by running attack ads on issues that rarely come before these courts at all, like criminal justice and immigration. Citizens United opened the door to a flood of spending in judicial races by interest groups outside the state, as the Brennan Center has documented.

    “The groups that are spending in state Supreme Court elections are very sophisticated political spenders,” the Center’s Keith said. “There are particular issues that they are interested in and that they believe the outcome of this race will affect, whether it’s redistricting in one state or reproductive rights in another or tort reform in another.”

    State Supreme Courts are also set up differently depending on the state. Of the 38 that use elections to select these judges, 16 allow governors to appoint the judges. They then face “retention elections” where voters give incumbents a yes or no vote. Only 15 hold contested, ostensibly nonpartisan elections. While all judges are supposed to be impartial, candidates’ party affiliations are seen as a signal of how they’ll rule on sensitive political topics.

    “It’s just become an extension of partisan warfare,” University of Florida elections expert Michael McDonald told TPM.

    In states like Wisconsin, the focus on redistricting is explicit. Badger State Republicans’ 2011 gerrymander is considered one of the country’s most egregious; a lawsuit over the state legislative lines is still pending before the U.S. Supreme Court.

    The Walker-affiliated National Republican Redistricting Trust is leading the charge for Hagedorn’s election, with Walker tweeting Monday about a sinister “master plan to gerrymander Democrats into long-term power.” The RSLC’s “Judicial Fairness Initiative” is spending $1.1 million on digital, mail, broadcast, cable and radio ads in the state.

    The National Redistricting Action Fund, the 501(c)(4) affiliate of Holder’s redistricting group, has committed $350,000 for advertising and organizing efforts on Neubauer’s behalf.

    Tuesday’s race in Wisconsin is seen as the precursor to another state Supreme Court election next year, which will determine the body’s partisan tilt. A Neubauer win means the court retains its current 4-3 conservative majority. That gives Democrats a shot to earn the majority in 2020, when the race is scheduled to fall on the day of the state’s Democratic presidential primaries. A Hagedorn win means consolidated conservative control of the court ahead of 2021 redistricting.

    Daniel Tokaji, a redistricting expert at Ohio State University, expressed mixed feelings about all the talk of gerrymandering in the Wisconsin race.

    “In my view, it’s a great thing that state Supreme Courts have become more receptive to claims of extreme partisan gerrymandering,” Tokaji said, calling them “more tuned into the issue than was the case a decade ago.”

    But these costly, bitter races harm public confidence in judicial independence—and, research shows, affect how judges ultimately rule on the bench.

    “It’s expecting a lot to think that judges who are elected as nominees of a major party will be completely neutral about these cases,” Tokaji said.

  • 29 Mar 2019 1:15 PM | Jason Fierman (Administrator)

    Gerrymandering, or Geography? Computer-based techniques can prove that partisan advantage isn’t an accident - The Atlantic - by Sam Wang

    When legislators gerrymander districts, they give one group more representation at the expense of others. For a long time, the Supreme Court has limited racial gerrymanders, but it has been on the fence about the constitutionality of partisan gerrymanders, in part because there’s no universally agreed-upon way to measure them. As mathematical diagnostic tools improve, however, the Court might find it difficult to pretend that it has no choice but to do nothing.

    On Tuesday, the Court will take up two partisan gerrymandering cases, one out of North Carolina (based on a congressional map drawn by Republicans) and another out of Maryland (based on a congressional map drawn by Democrats). The politicians’ intentions were clear: They expressly admitted that they sought partisan advantage through the creative drawing of district lines.

    But to what degree did they skew the results?

    Just as either a plumb or a spirit level may be used by a carpenter to diagnose a crooked table, the courts (or other interested parties) can use a variety of tools to diagnose a crooked map—as Wesley Pegden, Jonathan Rodden, and I have argued in an amicus brief. Different circumstances, including whether the state “swings” or generally goes for one party, call for different gerrymandering tricks, and thus different tools.

    In a closely divided state, partisans gain advantage by packing their opponents’ voters into as few districts as possible; that way, the opposing party can’t easily convert voter enthusiasm into added electoral victories. In North Carolina, Democratic candidates won seven of 13 districts with 57.1 percent of the vote on average in 2010. After redistricting, in 2012, they won four of 13 districts with 70.2 percent of the vote on average.

    To distinguish the effects of gerrymandering from happenstance, courts can try one of several possible objective measurements, all based on district-level returns, including the lopsided-averages test, the efficiency gap, and partisan bias.

    For the lopsided-averages test, just calculate the difference between the averages of interest (in this case, 70.2 percent minus 57.1 percent, or 13.1 percentage points), then figure out, using standard deviation, how probable it is that such a difference would occur naturally. It turns out that the jump between 2010 and 2012 would only have occurred by chance fewer than one out of 50 times. The same test can be used to compare Democratic and Republican wins from the same year, a way of determining whether one side is more packedthan the other.

    The efficiency gap refers to the fact that a party’s votes are used efficiently if they power many small victories across the board, and wasted if they contribute to large wins. In the case of North Carolina in 2012, the winning Democrats wasted 20.2 percent of votes on average (70.2 percent minus 50 percent plus one vote), whereas the winning Republicans wasted just 7.5 percent of votes on average (from an average share of 57.5 percent). Votes for losing candidates are considered wasted, and contribute to the efficiency gap as well. Taken across all districts, the net efficiency gap averaged out to 21.3 percent in favor of Republicans—one of the largest gaps in the nation. Compare that with 2010, when the efficiency gap was 12.3 percent in favor of Democrats. In just two years, redistricting caused a massive swing in the efficiency gap toward the party responsible for drawing the new map.

    Partisan bias, used by political scientists since 1987, is calculated by extrapolating how many seats would be won by either side if the vote were perfectly split 50–50. In North Carolina, such a hypothetical would lead to three Democratic seats out of 13, or 23 percent. The partisan bias is 50 percent minus 23 percent, or 27 percentage points.

    Opponents of districting reform have argued that the disparities described above are nothing more and nothing less than a result of where Democratic voters have chosen to reside. Republican strength in North Carolina wasn’t manufactured by Republicans, in other words, but by Democrats.

    But computer-based techniques can show beyond a statistical doubt that a district-boundary map favoring one party over another did not arise by geographic accident. By taking an existing statewide map and making only small, random changes to it, it is possible to generate a multitude of alternative maps, nearly all of which are less favorable to the party that drew the offending plan. In this way, it can be shown that natural clustering alone does not explain the result—rather, natural clustering serves as the starting material for drawing an unnaturally skewed outcome.

    District-packing is not the only way to gain a partisan advantage, of course. In a state where one party usually wins, the dominant party might try to spread out Democrats and Republicans evenly across many districts, thus making districts that are a political replica of the state as a whole—and freezing out the minority. This alternative strategy requires a different test, called a “chi-square.”

    In brief, the courts could examine a state’s majority-party districts and calculate the standard deviation—a measure of how far individual wins tend to stray from the average—then compare it with the standard deviation for the party’s national wins. In Maryland in 2012, the Democrats’ standard deviation was fewer than 7 percentage points, considerably smaller than for Democrats nationwide, at 14 percentage points.

    As the plaintiffs in the Maryland case argued, the Democratic mapmakers seemed to have systematically shuffled Republican voters out of the Sixth Congressional District, diluting those voters’ power and turning the district blue. This shuffling allowed Maryland Democrats to engineer near-identical wins in all but one district.

    Gerrymandering isn’t just about math; it’s also about civil rights. My colleagues at Princeton, Ben Williams and Brian Remlinger, and I have sorted the various types of redistricting injuries into two major categories: inequality of opportunity and inequity of outcome. Inequality of opportunity means that voters don’t have a chance to elect someone to their liking. This can happen if they are packed into a single district, missing opportunities to elect multiple representatives, or if they are “cracked” between districts so they can’t elect anyone at all. Inequity of outcome simply means that the pattern of wins and losses is out of whack with what one would expect in a neutrally drawn scheme. Computer-based map simulations test both opportunity and outcome. These and other mathematical tests permit courts—in a rigorous, objective, and replicable manner—to assess whether an electoral map has violated the rights of a group of voters.

    Whether the Supreme Court adopts any of these theories is likely to depend on Chief Justice John Roberts. He is not known for his love of math, and even referred to the efficiency gap as “sociological gobbledygook.” He has also expressed concern about getting inundated with gerrymandering lawsuits. After 2021, such cases could include Republican-controlled Florida and Georgia, as well as states under possible Democratic control, such as Minnesota and Virginia. But it seems likelier that setting a standard would deter offenses from occurring in the first place. If the Court fails to act, the alternative is the status quo: a veritable festival of gerrymandering.

    The slowness of the Supreme Court to act has one silver lining. Partisan gerrymandering, which reached an all-time modern high in 2012, has led to a nationwide outpouring of bipartisan action. Reforms have passed in Colorado, Michigan, Missouri, Ohio, and Utah. Lawsuits based on state constitutions have led to the redrawing of maps in Pennsylvania and Florida state courts. Similar lawsuits may be forthcoming—and can make use of the mathematical diagnostic toolkit. By providing time for state-by-state action, the Supreme Court has allowed redistricting reformers across the country to discover both their inner Federalist and their inner mathematician.

  • 29 Mar 2019 1:12 PM | Jason Fierman (Administrator)

    Wisconsinites want nonpartisan redistricting and a voice for political minorities - The Cap Times - by UW-Madison Communication and Civic Renewal research team

    Legislative redistricting is one of the most important — and most contentious — issues in Wisconsin. Voters and democratic theorists alike are uncomfortable with the idea that lawmakers can choose their own voters in increasingly precise ways.

    The current district lines are in the midst of a legal battle that went all the way to the Supreme Court, which declined to decide the case on technical grounds. A new case is currently awaiting a trial date.

    At issue is what supporters of the lawsuit call the efficiency gap, the difference between the number of votes a party gets and the number of seats it wins in the state legislature. In Wisconsin, the gap is historically inefficient — evidenced by Republicans winning 46 percent of legislative votes and 64 percent of legislative seats in the 2018 elections.

    Gov. Tony Evers, a Democrat, recently proposed that Wisconsin create a nonpartisan redistricting commission, suggesting an independent process for the drawing of legislative lines that looks more like Iowa’s — a state often referred to by redistricting scholars as the “gold standard” in representational fairness.

    Our Communication and Civic Renewal research team at the University of Wisconsin-Madison asked 1,015 Wisconsinites who they thought should control redistricting in our state: the state Legislature or an independent, nonpartisan commission. Fifty-three percent of adults said they preferred the nonpartisan commission while only 13 percent favored the idea of state lawmakers controlling the process themselves. The remaining third said they did not know what was best.

    Perhaps not surprisingly, given that the current district maps benefit the Republican Party, 63 percent of Wisconsin Democrats want a nonpartisan commission to take over the drawing of representational lines. Fifty-six percent of independents side with Democrats while 39 percent of Republicans want to see a change to nonpartisan redistricting.

    However, only 22 percent of Republicans want to keep things as they are, as compared to just 6 percent of independents and 9 percent of Democrats.

    Of course, one reason redistricting is so complicated, and contentious, is that an equal number of voters must live in each district even though voters do not live in such a way that they are spread equally across the geography of our state. Even so, rural, suburban and urban Badger State residents favor a nonpartisan redistricting commission to the current policy in relatively equal measure.

    We also asked people to think about what the results of a fair redistricting process would look like.

    Specifically, we asked people to agree or disagree with the following statement on a five-point scale, where 1=strongly disagree and 5=strongly agree: “If legislative districts are drawn fairly, the party that gets the most votes in an election should have the most seats in a legislature.”

    The average response from Republicans, Democrats and independents alike was above the midpoint, suggesting that Wisconsin voters’ sense of fairness is such that the party that gets the most votes should have a legislative majority. However, there were some differences in how much partisans agreed with this notion of representation.

    Specifically, 66 percent of Democrats in Wisconsin were most supportive of the idea that the number of votes a party gets should directly translate into more legislative representation for the winning party, while 55 percent of Republicans and independents alike gave the same answer.

    Geographic differences on this question did not show up in our data — the average difference across rural, suburban and urban adults in Wisconsin was 0.01 on that five-point scale.

    One reason redistricting is so important is that the majority party in each legislative chamber has great power to determine how much voice the minority party has when it comes to legislating. Extending rights of participation to political minorities is crucial for the maintenance of democratic corms of government.

    To that end, we asked Wisconsinites how important is it that electoral winners allow electoral losers to continue to have a voice in government. Wisconsinites strongly favored this idea as well — to the tune of 84 percent support. Notably, partisan differences on giving political minorities a voice diminished significantly. More than three-quarters of Republicans supported the idea; more than eight in 10 Democrats and independents did as well.

    Once again, differences between rural, suburban and urban Wisconsinites were not present in the data. No matter where they live and what their communities are like, Wisconsinites have similar views about basic fairness in politics.

    Regardless of what the courts eventually decide, Wisconsin voters favor a nonpartisan redistricting commission and lawmakers who will make sure that those in the political minority are not rendered voiceless by the majority.

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