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  • 10 Jan 2019 2:45 PM | Jason Fierman (Administrator)

    The answer to gerrymandering? Have Democrats and Republicans play a game - The Ohio State University News - Laura Arenschield

    A new method of drawing electoral districts that combines game theory and the word game “Ghost” could result in maps that are more demographically representative, according to two mathematicians.

    In the game “Ghost,” players take turns saying letters, with each letter building on the last letter played. Players create word fragments, ultimately trying to get their opponents to complete the word. Whoever completes the word loses. At its core, though, Ghost is a game of collaboration—two players working together to build a word, even as they try to outsmart and outmaneuver each other, said Dustin Mixon, assistant professor of mathematics at The Ohio State University.

    Mixon’s work focuses on geometric clustering, though he dabbles in game theory, and he has created theorems around gerrymandering in the past. He wondered if the same theory—two players with opposing goals working together to build a map—might make for more fair electoral districts.

    Dustin Mixon

    “The effect we want is that we get a vote that reflects the will of the people,” Mixon said. “And just intuitively, if both sides have a role in drawing the map, it will be better than if only one side calls the shots. Any two-party game where two parties have a voice is going to be more equitable than a system where only one party has a voice.”

    Mixon and his study co-author, Soledad Villar of New York University’s Center for Data Science, composed the theorem and posted it on a mathematics preprint server,, where other mathematicians can review it and weigh in on its validity before it is submitted to an academic journal.

    To build a more equitable electoral map, Mixon theorizes, the two political parties simply need to play a game.

    “In each round, a player assigns a precinct or a county to a voting district—and they take turns,” he said. “The theoretical result is that if you have half the votes, you’ll end up with half of the districts, no matter whether you are the first player or the second player.”

    The theorem takes a few things for granted: It assumes, for example, that both parties are playing to win the maximum number of seats. It also assumes that the parties have perfect knowledge of how every voter would vote. It doesn’t take into account a third or fourth political party, or a back-room handshake that could protect one incumbent or another.

    But it is, Mixon believes, a better system than the one in play right now.

    As they ran through the possible outcomes in their proposed game, the mathematicians saw again and again that the number of seats each party won ended up reflecting the population of a given state—something that has come under scrutiny in recent elections, including in Ohio.

    Gerrymandered districts have caused issues for elections for nearly 200 years, since the first gerrymandered district—drawn by Massachusetts Gov. Elbridge Gerry—created districts that tipped the balance of power in the state government to his party. The Boston Globe compared the district’s shape to a salamander; the combination of Gerry’s name and that description stuck, and the term “gerrymandering” was born.

    Since then, the Supreme Court has weighed in on gerrymandering, going so far as to rule partisan gerrymandering unconstitutional in 1986. But determining if a district has been politically gerrymandered can be tricky—even districts that take wonky shapes can actually be more representative of the electorate than those drawn with clean, neat lines.

    Ohio’s own electoral districts have come under fire: After the November election, Republicans won 52 percent of the overall votes for U.S. Congress, but will serve in about 69 percent of Ohio’s Congressional seats. But Ohio voters also voted overwhelmingly last year to put stronger controls in place to prevent gerrymandering, and to require buy-in from both Democrats and Republicans before district lines can be drawn.

    That two-party planning is the foundation for Mixon’s theorem: If both parties are operating in their individual best interests, the resulting electoral map will be more fair than one drawn with just one party operating in its best interest.

    “Twenty-one states have some sort of redistricting commission that they appoint to draw these maps, and those appointees are made by the party in power,” he said. “This improves on what we currently have.”

  • 10 Jan 2019 2:38 PM | Jason Fierman (Administrator)

    Supreme Court Denies Virginia GOP Bid to Halt Virginia Redistricting - US News - by Claire Hansen

    THE SUPREME COURT ON Tuesday denied a request from Virginia Republicans to block a federal court from approving new electoral boundaries.

    Last summer, a federal judicial panel found that state lawmakers racially gerrymandered 11 House districts, concentrating black voters within certain boundaries. The court hired an outside expert to redraw the district map and wants to impose the new map at the end of March, according to The Richmond Times-Dispatch. 

    In the meantime, the Supreme Court has agreed to hear an appeal of the lower court's ruling that the districts were gerrymandered. Republicans were hoping to put the redrawing effort on hold until that appeal is heard this spring. The party argued that redrawing the boundaries and then having the high court potentially reverse the lower court's decision and dismiss the case – along with the new maps – would be confusing for voters.

    Tuesday's order was issued two days before the lower court will hold a hearing on the proposed legislative maps and means the court can go ahead with redrawing the districts.

    "Obviously we hoped for a stay but the Court's decision was not unexpected because the burden for a stay is very high," Parker Slaybaugh, a spokesman for Virginia's Republican House Majority Leader Kirk Cox, told The Washington Post via email. "However, the Court will hear our argument on the merits this Spring and we are confident the map will be upheld."

    A new map, which may be less favorable for the GOP, could have a significant impact on the elections. Republicans hold a two-seat majority in both the House of Delegates and the state Senate. All 140 seats in Virginia's General Assembly are up for election this year, and primaries are scheduled for June 11.

    "SCOTUS's decision to allow the redistricting to move forward is a relief to all Virginian voters impacted by the racial gerrymandering," House Democratic caucus spokeswoman Kathryn Gilley told the Times-Dispatch. "Despite House Republicans' constant attempts to delay the redistricting and defend their unconstitutional districts, Virginians will be able to vote in constitutional elections in 2019."

  • 7 Jan 2019 2:06 PM | Jason Fierman (Administrator)

    The Supreme Court Could Make Gerrymandering Worse - The Atlantic - by Richard L. Hasen

    The Supreme Court’s decision on Friday to take up partisan gerrymandering cases from North Carolina and Maryland brought to mind a saying attributed to Judy Garland: Behind every cloud is another cloud.

    The now firmly conservative Court likely took the cases not to announce that such activities violate the Constitution, but to reverse the lower courts that said they do. Down the road, the Court might do much more damage, including by preventing states from using independent commissions to draw congressional districts.

    For years, the Supreme Court has ducked the question of partisan redistricting, failing to provide clear guidance on its constitutionality. Until he left the Court this summer, Justice Anthony Kennedy was the key swing vote on this issue. In 2004, he disagreed with conservatives that such cases present “political questions,” which courts cannot hear given the lack of “judicially manageable standards.” And he disagreed with liberals that any as-yet-proposed standards adequately separated permissible from impermissible consideration of partisan information in drawing district lines. But he suggested that the First Amendment’s right of association could serve as the foundation of a ruling against gerrymandering.

    Justice Elena Kagan took Kennedy up on that suggestion in a case the Court (sort of) decided last term, Gill v. Whitford. Plaintiffs argued that Wisconsin Republicans had drawn district lines to give them asymmetrical advantage over Democrats in state legislative elections. The Court, in an opinion by Chief Justice John Roberts, unanimously dismissed the case on standing grounds, sending it back to the lower court for further proceedings. But Kagan, in a concurrence joined by three other liberals, set forth a First Amendment, associational-injury theory of partisan gerrymandering that was designed to appeal to Kennedy. Kennedy did not bite and soon retired from the Court.

    Although Kennedy’s replacement, Justice Brett Kavanaugh, did not decide any gerrymandering cases as a lower-court judge, his general disposition lines him up with the other conservatives on the Court who believe that the judiciary has no business policing gerrymandering. In the Maryland and North Carolina cases the Court just took, both lower courts were willing to act as the police. Because of a procedural quirk, a decision by the Supreme Court not to hear these cases would have counted as an acknowledgment that the lower courts got the question right. So there’s every reason to expect 5–4 reversals unless a conservative justice or two goes rogue, or gets cold feet.

    That’s not the only cloud on the horizon when it comes to the Court and redistricting. In a 2015 case out of Arizona, as I explained in more detail in a blog post for the Harvard Law Review, Kennedy joined in Justice Ruth Bader Ginsburg’s majority opinion holding that voters have the right to use a ballot initiative to establish independent redistricting commissions. But the Arizona legislature convinced Roberts—along with three conservatives—that because the Constitution gives the power to set congressional election rules to state “legislatures,” voters acting through the initiative process had unlawfully usurped legislative power. Roberts wrote an impassioned dissent.

    A case raising this question could come back before the Court soon enough from one of the other states that has established these commissions. And, should Roberts choose to spend his capital in this way, he could well reverse the Court’s very recent precedent.

    This development would be profoundly troubling. It is one thing for federal courts to say that they have no business deciding how much politics is too much politics when state legislatures draw district lines. It is quite another to say that the voters of a state, acting through the powers they have under state constitutions, cannot come in and offer a solution to deal with an area of intense legislative self-interest. The Court would be ruling, in effect, that legislators may choose their voters, not the other way around, and that there’s nothing voters can do about it.

    Yet one more cloud in the districting arena: The Trump administration is enmeshed in a legal struggle, headed to the Supreme Court, over its attempt to put a question about citizenship status on the 2020 census. According to the Department of Justice, the question will help it enforce the Voting Rights Act. But opponents believe that the question will depress census responses in areas with large populations of undocumented residents, and thereby lower representation for these areas. (The Court will hear a case in February over whether plaintiffs can force Commerce Secretary Wilbur Ross and a Justice Department official to testify as to the government’s true motive in adding the citizenship question.)

    If the Trump administration gets its way on the census, one problem will lead to another: A recent Commerce Department notice stated that it would provide citizenship information to jurisdictions that wanted to use the data to draw new district lines after the next census. It’s not clear if that’s constitutional. In 2016, in Evenwel v. Abbott, the Court left open the question of whether states and localities must draw legislative districts with equal numbers of people—the traditional method—or of people eligible to vote. If the Court ends up favoring the latter standard, that would shift power away from cities and Democratic areas with larger noncitizen populations.

    Ultimately, a citizenship question on the census could depress response rates in Democratic areas, reduce representation in Democratic areas, and lower population-related federal resources coming to these areas.

    These days, no one expects the Supreme Court to lead the way on political reform. But it could do much worse than nothing; it could actually stymie political reform when it works its way through the democratic process.

  • 4 Jan 2019 11:13 PM | Jason Fierman (Administrator)

    Panels to End Gerrymandering Could Reach SCOTUS (2) - Bloomberg News

    Redistricting commissions formed to draw fairer congressional maps have sprung up in more than one third of states—partly in response to the lack of judicial clarity on partisan gerrymandering. But their legal vitality could be on shaky ground.

    But some legal scholars believe it’s only a matter of time before a challenge to these panels materializes and reaches the U.S. Supreme Court, where a newly fortified conservative majority with the addition of Brett Kavanaugh could reverse a 2015 precedent and find them unconstitutional.

    The often non-partisan panels have formed in response to partisan gerrymandering, where voter maps are drawn by state lawmakers to the advantage of one political party. The court on Friday agreed to hear two cases challenging some of the nation’s most extreme examples.

    Redistricting commissions aim to take redistricting out of the hands of politicians—or at least reduce their influence—in an effort to curb partisan considerations during the map-drawing process.

    Typically, the party in charge of a state house redraws the state’s voting maps after each census.

    Ever-advancing technology allowing mapmakers to analyze more voter qualities on a block-by-block basis, as well as the Supreme Court’s hesitance to do anything to curb partisan gerrymandering have produced some of the most severe partisan gerrymanders in history, Michael Li, of the Brennan Center, New York, told Bloomberg Law.

    Republicans made redistricting a priority after their gains in the 2010 midterms, and Democrats are looking to do the same in 2020 as they regain control of some state houses.

    Democrats are introducing a bill in the House that would require states to adopt independent redistricting commissions, which wouldn’t have the same constitutional problems as the states’ commissions. But chances of passage with a divided government are slim. 

    Supreme Court Punts

    The Supreme Court’s hands-off approach to partisan gerrymandering likely played a role in the adoption of four commissions in 2018, raising the number to 18 states that have such bodies for congressional redistricting.

    While the high court has struck down gerrymandering on racial grounds, it has struggled for 30 years to come up with a way for federal courts to police the redrawing of voter maps based on partisan considerations.

    The court punted on that issue once again last term, but now it’s back up at the high court.

    The justices will now hear two cases. One is out of North Carolina where Republicans drew up congressional districts to hurt Democrats, and the second is from Marylandwhere Democrats did the same to the GOP.

    If the court once again refuses to curtail partisan gerrymandering it may spur additional states adopting redistricting commissions and lawsuits challenging them, Justin Levitt, a redistricting expert at Loyola Law School in Los Angeles, told Bloomberg Law.

    In 2018, voters in Colorado and Michigan created commissions that are primarily responsible for drawing congressional districts, while those in Utah developed an advisory commission to assist the state legislature and those in Ohio established a back-up commission in case the state legislative effort fails.

    The make-up of the commission—whether it’s a primary, advisory, or back-up commission—impacts its effectiveness at curbing partisan considerations, but many criticize the commissions as themselves political.

    Gerrymandered Constitution?

    But even as the interest in state commissions increases, Li said he’s confident opponents of these commissions will eventually bring a case challenging them, given the high stakes for redistricting. Although there currently aren’t any cases headed to the Supreme Court on this issue, a 2015 decision highlights fissures in the court over the panels.

    The disagreement centers on the Elections Clause, which gives state legislatures the primary power to draw congressional districts.

    In 2015, Arizona State Legislature v. Arizona Independent Redistricting Commission, a closely divided Supreme Court rejected the argument that the term “legislature” means only “the body that meets in the capital to pass laws,” Michael Morley, of Florida State University College of Law told Bloomberg Law.

    Instead, the court said in 2015 that “legislature” includes citizen-led referenda and initiatives. Through these methods, citizens may delegate authority over congressional redistricting to some other entity, like a commission, the court said.

    But there’s a strong argument that “a state is not free to simply decide that some entity other than its actual, institutional legislature should be responsible” for congressional redistricting, Morley said.

    Hasen said that if the court takes up this issue again, Chief Justice John G. Roberts Jr.'s strident dissent in the Arizona case is an indication that the court could overturn it. In it, Roberts, joined by three of his colleagues, accused the majority of gerrymandering the Constitution itself in order to save redistricting commissions.

    Kavanaugh’s vote could tip the scale in favor of killing redistricting commissions if he were to join his more conservative colleagues.

    Court’s Reputation

    Even though the votes may be there to overturn the Arizona case, some think the court may not want that fight.

    If this were the first time the court was considering the question, redistricting commissions might be in more trouble, Joshua Douglas, of the University of Kentucky College of Law told Bloomberg Law.

    But it’s risky for the justices to overturn such a new precedent. It makes it look like the meaning of the Constitution depends solely on the membership of the court, Saikrishna Prakash, a constitutional scholar at the University of Virginia School of Law told Bloomberg Law.

    Given the political consequences, this might be a fight the justices would prefer to avoid all together, Richard Hasen of University of California, Irvine School of Law told Bloomberg Law.

  • 4 Jan 2019 11:09 PM | Jason Fierman (Administrator)

    House Democrats Introduce Their Sweeping New Reform Bill - Huffington Post - by Paul Blumenthal

    House Democrats unveiled Friday the For the People Act, a comprehensive package of democratic reforms and the first major bill of the 116th Congress. The bill is a sweeping combination of election, campaign finance and ethics reforms designed to make voting easier, curb the power of big donors and reduce conflicts of interest in all three branches of government.

    The For the People Act was the first major legislative action for Democrats after they voted to end the partial government shutdown initiated by President Donald Trump, a measure he is expected to veto.

    The package of reforms was put together in a collaborative process initiated by House Speaker Nancy Pelosi (D-Calif.) in 2011 and overseen by Rep. John Sarbanes (D-Md.) since 2017. The party ran in the 2018 midterm elections on a promise to enact these reforms.

    “We carried a message of reform, of fighting corruption, of cleaning up Washington,” Sarbanes said in introducing the bill on Friday. “We made a promise to the American people. The new members who’ve come made that promise and made it clear they wanted this to be the first order of business. [This bill] is delivering on that promise.”

    The reforms in the For the People Act would restore the right to vote to millions of disenfranchised Americans and make it dramatically easier for people to vote while also creating a first-of-its-kind public financing system for House elections. It would also require presidential candidates to disclose 10 years of their tax returns.

    The bill shortly will go to three committees ― administration, judiciary and oversight ― for hearings. Democrats hope to pass it through the full House in February.

    It will then go to the Senate, where a companion bill will be introduced soon. Senate Majority Leader Mitch McConnell (R-Ky.), a hard-line opponent of campaign finance and election reforms, promised that the bill will not get a vote.

    “The American people will know that this is an option that the House has given the Senate of the United States and the president of the United States,” Pelosi said on Friday.

    Here is what is in the Democrats’ big reform bill: (Read the full text here.)

    Election Reform

    The reform bill aims to reduce voting problems, such as the long lines seen at polling locations on Election Day, like t

    DAVID GOLDMAN/ASSOCIATED PRESSThe reform bill aims to reduce voting problems, such as the long lines seen at polling locations on Election Day, like this one in Fulton County, Georgia, on Nov. 6.

    The bill includes a requirement that all states automatically register voters who submit paperwork to a state government agency (unless the person opts out), provide same-day voter registration, allow 15 days of early voting with sites located near public transportation, use nonpartisan redistricting commissions to draw new congressional maps, enable online voter registration, count provisional ballots from eligible voters filed at the wrong polling place and use paper ballots in addition to electronic voting systems.

    It would also ban post-release felon disenfranchisement. This means that about 5 million Americans ― a disproportionate number of whom are African-American ― would regain their voting rights once their sentence is completed. The bill would, however, still allow states to disenfranchise felons during their imprisonment.

    States would be banned from engaging in voter caging, a process in which election officials purge voter rolls by sending out non-forwardable mail and then removing anyone whose mail is returned to sender. It would not be permissible for states to remove someone from the voter rolls for failing to vote in a previous election. The use of interstate cross-checks to purge voter rolls would also be limited under the legislation.

    Election Day would become a federal holiday for 2 million-plus federal workers, and non-government employers would be encouraged to give the day off to private-sector employees, too. Colleges and universities would be designated as voter registration agencies. Absentee ballots would no longer require postage. And the bill would also increase funding to help states update and secure election infrastructure and to the Election Assistance Commission to oversee these updates, with mandated reports on its progress. The Department of Homeland Security would be ordered to deem election systems as critical infrastructure.

    Additionally, the bill contains declarations and findings on important issues that Democrats aim to advance in separate legislation. These include findings about the importance of fixing the Voting Rights Act to comply with the Supreme Court’s 2013 Shelby v. Holder decision, which gutted a key section of the historic legislation. Rep. Terri Sewell (D-Ala.) will introduce this legislation, which will move on a separate track through the committees. The bill also asserts support for statehood for the District of Columbia, protects Native American voting rights and the right to vote in U.S territories.

    Campaign Finance Reform

    Speaker Nancy Pelosi (D-Calif.) and Rep. John Sarbanes (D-Md.) discuss the For the People Act at a news conference on Nov. 18

    J. SCOTT APPLEWHITE/ASSOCIATED PRESSSpeaker Nancy Pelosi (D-Calif.) and Rep. John Sarbanes (D-Md.) discuss the For the People Act at a news conference on Nov. 18.

    Sarbanes built his reputation as a democracy reform advocate through his work crafting and advocating for legislation to create a system of public financing for congressional elections. The legislative language from his previously introduced bills is the centerpiece of the For the People Act’s campaign finance reform section.

    The bill creates a public financing system for House elections that provides $6 in public funds for every $1 in funds raised from donations up to $200. Participants in this voluntary public financing system would also be prevented from raising money from large donors. The bill also creates a small-donor matching system for presidential elections. A separate bill covering Senate elections will be introduced by Sen. Tom Udall (D-N.M.).

    This small-donor-backed public financing system is based on numerous programs adopted around the country, most notably in New York City. The idea is to create an alternative to the funding from big donors and political action committees that currently dominates politics by making it feasible for more candidates to run on small-donor contributions alone.

    The bill also includes the Disclose Act, which mandates that nonprofits and other groups not currently bound by law to reveal donor information must disclose those sources when they contribute to election campaigns. The package’s Honest Ads Act requires the disclosure of digital political ads on tech platforms.

    The Federal Election Commission would be reconfigured from six members to five to prevent deadlocks on important issues. The agency’s civil penalty would be made permanent to prevent future legislative battles over its authority. Coordination between super PACs and candidates would be defined in the legislation and banned. Presidential inauguration committees would be required to disclose expenditures and be banned from spending money on anything not related to the actual inauguration. Previously enacted bans on the Securities and Exchange Commission, the executive branch and the Internal Revenue Service from requiring donor disclosure from corporations, nonprofits and government contractors would be repealed.

    Like the election reform section, the campaign finance reform piece of the bill contains findings on issues Democrats would like to address in separate legislation. This includes a declaration that the Constitution should be amended to overturn not just the Supreme Court’s 2010 Citizens United decision that empowered corporations, unions and the rich to spend unlimited sums on elections, but also the 1976 Buckley v. Valeo decision that banned Congress from limiting election spending altogether. Additionally, the bill states an intent to ban anonymous shell companies from funding campaigns to prevent the potential for secret foreign money to seep into elections.

    Ethics And Lobbying Reform

    One provision of the bill would ban presidents from contracting with the government. This would prevent President Donald Trum

    BLOOMBERG VIA GETTY IMAGESOne provision of the bill would ban presidents from contracting with the government. This would prevent President Donald Trump from leasing government property for his Washington, D.C., hotel.

    Every presidential candidate would be required to disclose 10 years worth of tax returns under the bill. The president and the vice president would be required to conduct themselves as though the executive branch’s conflict of interest regulations apply to them. Presidential appointees would be required to recuse themselves from any decision in which a party is either the president, the president’s spouse or any entity in which the president or their spouse has an interest. The president and vice president would be banned from contracting with the U.S. government ― a provision that would prevent Trump from leasing the Old Post Office Building that houses his D.C. hotel.

    The Office of Government Ethics would get new enforcement powers. Ethics waivers issued by OGE must be publicly disclosed. OGE must also come up with regulations to govern potential conflicts of interest that arise from the political contributions appointees previously made and received. Presidents-elect would be required to come up with ethics plans to govern their transitions.

    The bill also features new lobbyist and revolving door reforms to reduce government corruption. Lobbyist registration is extended to anyone “counseling in support of lobbying contacts.” This means ex-lawmakers acting as “consultants” for lobbyists would finally have to register as lobbyists. Federal contracting officers would be banned from accepting any compensation from a contractor that they awarded a contract to for two years after leaving office. Senior federal officials would be banned from contacting their former agency to influence employees for two years after their service ends. Foreign agents would be required to disclose anything of value given to an officeholder. And corporations would be prohibited from making incentive payments to anyone entering government service.

    Supreme Court justices would be required to develop a code of ethics to govern conflicts of interest and recusals. Members of Congress would be banned from using taxpayer funds to settle employment discrimination cases. Lawmakers would be banned from serving on corporate boards and from using their position to help the financial interests of themselves or their immediate families.

    Democrats see passage of the For the People Act as necessary to keep the promise that they made in the 2018 election to voters to fix democracy and root out corruption in Washington.

    The new House Democratic class that pushed the party into power in the 2018 election ran on a message of reform. More than 100 Democratic candidates, many of whom now sit in Congress, sent a letter to the House in October demanding the first order of business be the passage of campaign finance and electoral reforms.

    “This package is really a great place for us to start in keeping all of the promises we made on the campaign trail,” freshman Rep. Abigail Spanberger (D-Va.) said.

    “The overall message is one that I hope will show voters that Democrats and many Republican allies who join us in this effort are trying to restore faith in the democratic process and in our government,” freshman Rep. Tom Malinowski (D-N.J.) added.

  • 3 Jan 2019 5:55 PM | Jason Fierman (Administrator)

    Redrawing the Map: How Jowei Chen is Measuring Partisan Gerrymandering - Center for Political Studies - by Solmaz Spence

    “Gerrymandering”— when legislative maps are drawn to the advantage of one party over the other during redistricting—received its name in 1812, when Massachusetts Governor Elbridge Gerry signed off on a misshapen district that was said to resemble a salamander, which a newspaper dubbed a “gerrymander.”

    But although the idea of gerrymandering has been around for a while, proving that a state’s legislature has deliberately skewed district lines to benefit one political party remains challenging.

    The problem is that the mere presence of partisan bias in a district map tells us very little about the intentions of those drawing the districts. Factors such as racial segregation, housing and labor markets, and transportation infrastructure can lead to areas where one party’s supporters are more geographically clustered than those of the other party. When this happens, the party with a more concentrated support base achieves a smaller seat share because it racks up large numbers of “surplus” votes in the districts it wins, while falling just short of the winning threshold in many of the districts it loses.

    Further, there are many benign reasons that legislatures may seek to redistrict voters—for example, to keep communities of interest together and facilitate the representation of minorities—that may have the unintended consequence of adding a partisan spin to the map.

    The research of political scientists Jowei Chen and Jonathan Rodden is helping to differentiate cases of deliberate partisan gerrymandering from other redistricting efforts. Chen, Faculty Associate at the University of Michigan’s Center for Political Studies, and Rodden, Professor of Political Science at Stanford University, have devised a computer algorithm that ignores all partisan and racial considerations when drawing districts, and instead creates thousands of alternative district maps based on traditional districting goals, such as equalizing population, maximizing geographic compactness, and preserving county and municipal boundaries. These simulated maps are then compared against the district map that has been called into question to assess whether partisan goals motivated the legislature to deviate from traditional districting criteria.

    We first wrote about Chen and Rodden’s work back in December 2016, detailing a 2015 paper in the Election Law Journal, which used the controversial 2012 Florida Congressional map to show how their approach can demonstrate and unconstitutional partisan gerrymander. Now, this work is back in the spotlight: Chen’s latest research has been cited in several cases of alleged gerrymandering that are currently working through the courts in Pennsylvania, North Carolina, Wisconsin and Maryland.

    In January, Chen’s testimony as an expert witness was cited when the Pennsylvania Supreme Court threw out the state’s U.S. House of Representatives district map. In its opinion, the court said the Pennsylvania map unconstitutionally put partisan interests above other line-drawing criteria, such as eliminating municipal and county divisions.

    The Pennsylvania districts in question were drawn by the Republican-controlled General Assembly in 2011. Immediately, the shape of the districts was an indicator that at least one traditional criterion of districting—compactness—had been overlooked.

    Though few states define exactly what compactness means, it is generally taken to mean that all the voters within a district should live near one another, and that the boundaries of the district should be create a regular shape, rather than the sprawling polygon with donut holes or tentacles that characterized the Pennsylvania district map.

    In particular, District 7—said to resemble Goofy kicking Donald Duck—had been called into question. “It is difficult to imagine how a district as roschachian and sprawling, which is contiguous in two locations only by virtue of a medical facility and a seafood/steakhouse, respectively, might plausibly be referred to as compact,” the court wrote.

    Although there are more registered Democrats than Republicans in Pennsylvania, Democrats hold only five of the state’s 18 congressional districts. In the 2016 election, Democrats won each of their five House seats with an average of 75 percent of the vote while Republicans’ margin of victory was an average of 62 percent across their 13 districts. This is an indicator of “packing,” a gerrymandering practice that concentrates like-minded voters into as few districts as possible to deny them representation across districts.

    Chen’s expert report assessed the district map and carried out simulations to generate alternative districting plans that strictly followed non-partisan, traditional districting criteria, and then measured the extent to which the current district map deviates from these simulated plans.

    To measure the partisanship of the computer-simulated plans, Chen overlaid actual Pennsylvania election results from the past ten years onto the simulated districts, and calculated the number of districts that would have been won by Democrats and Republicans under each plan (see Figure 1).

    The districting simulation process used precisely the same Census geographies and population data that the General Assembly used in creating congressional districts. In this way, the simulations were able to account for any geographical clustering of voters; if the population patterns of Pennsylvania voters naturally favor one party over the other, the simulated plans would capture that inherent bias.

    Generally, the simulations created seven to ten Republican districts; not one of the 500 simulated districting plans created 13 Republican districts, as exists under the Republican-drawn district map. Thus, the map represented an extreme statistical outlier, a strong indication that the enacted plan was drawn with an overriding partisan intent to favor that political party. This led Chen to conclude “with overwhelmingly high statistical certainty that the enacted plan created a pro-Republican partisan outcome that would never have been possible under a districting process adhering to non-partisan traditional criteria.”

    A map showing redistricting simulation in Pennsylvania

    This table compares the simulated plans to the 2011 Pennsylvania district map with respect to these various districting criteria.

    Following its ruling, on February 20 the Pennsylvania Supreme Court released a new congressional district map that has been described in a Washington Post analysis as “much more compact”. In response, the state’s Republican leadership announced plans to challenge the new map in court.

  • 3 Jan 2019 5:53 PM | Jason Fierman (Administrator)

    New Jersey governor calls for redistricting reform - The Hill - by Reid Wilson

    New Jersey Gov. Phil Murphy (D) says he wants to reform the way congressional and legislative districts are drawn in his state, days after legislative leaders canceled a vote on a controversial plan that good government groups called a blatant power grab. 

    In an interview with The Hill, Murphy applauded the decision to shelve the proposed overhaul, despite the fact that it likely would have cemented Democratic control of the state legislature and congressional delegation for years to come.

    The measure sparked outrage from Republicans, Democrats and groups that advocate for fair district lines. 

    “That was the right thing to do,” Murphy said of the decision to pull the bill. “I’ve never said that I thought the way we do it was perfect, so if someone’s got some proposals that open up democracy, make it more transparent, less political, count me in. I’m all for that. This did the opposite of that.”

    “Anything that gets proposed the night before Thanksgiving smells, without even reading it,” Murphy said.

    New Jersey is one of two states, along with Hawaii, that gives power to a commission of elected officials to draw its congressional district lines. The proposed change pulled last month would have required the commission to take partisan election results into consideration, likely giving Democrats a big advantage in an already blue state.

    The proposal also would have given state legislative leaders a much greater say in who sits on the commission. In practice, that would have meant a transfer of power from the governor to the state legislature.

    The criticism of the bill “tapped into something that I would call an outrage agenda in our state,” Murphy said. “It’s classic inside the bubble Trenton politics, and everybody else is on the outside holding the bag.”

    Murphy, entering his second year as governor, has feuded off and on with state Senate President Stephen Sweeney (D), who backed the redistricting overhaul.

    “Many of us continue to believe that the redistricting process can be improved so that it more accurately reflects the will of the voters. We also believe that it should be improved to be more transparent and accountable,” Sweeney said in a statement after the vote was pulled. “We will study the input from the public, public officials and others to determine if the plan can be improved to better achieve these goals.”

    Murphy said the coalition that stood up to oppose the bill — which included the state Republican Party and former Attorney General Eric Holder, who advocates for fairer redistricting processes — “was overwhelming in its breadth and passion.”

    In a statement of his own, Holder said the New Jersey proposal failed to live up to appropriate standards of fairness and transparency.

    Murphy insisted his relationship with Sweeney is “professional.” 

    “I don’t really take any of this stuff personally,” he said.

    Redistricting reform is likely to become a focus in states like Pennsylvania, New Hampshire and Maryland when their legislatures convene this year.

    In Pennsylvania, Gov. Tom Wolf (D) created a redistricting reform commission to study ways the state can update its decennial mapping process. In New Hampshire, Democrats who won control of the state legislature last year are considering a new overhaul of their own. 

    And in Maryland, legislators are likely to redraw lines after a federal judge ruled a congressional district, soon to be held by Democrat David Trone, was improperly drawn.

  • 31 Dec 2018 12:40 PM | Jason Fierman (Administrator)

    In Major Move, Census Bureau Offers Up Citizenship Data For Redistricting - Talking Points Memo - by Tierney Sneed

    In what could be a major change for voting rights and the distribution of political power between urban and rural areas, the Census Bureau signaled Friday that it is willing to work with state and local officials charged with drawing voting districts if they want citizenship data for the redistricting process.

    The move to inject citizenship into redistricting has been feared since the Trump administration decided to add a citizenship question to the 2020 census. The addition of the citizenship to the census remains embroiled in litigation.

    The indication came in the form of a federal registry notice with the Office of Budget and Management outlining the next steps the Census Bureau intends to take as it prepares for the decennial survey.

    “The Census Bureau intends to work with stakeholders, specifically ‘the officers or public bodies having initial responsibility for the legislative apportionment of each state,’’ to solicit feedback on the content of the prototype redistricting data file,” the notice said. “If those stakeholders indicate a need for tabulations of citizenship data on the 2020 Census Public Law 94–171 Redistricting Data File, the Census Bureau will make a design change to include citizenship as part of that data.”

    The design change would be published in the federal registry in the summer of 2019, the notice said.

    The Trump administration, in deciding to include a citizenship question in the 2020 survey, claimed the question was requested by the Justice Department for Voting Rights Act enforcement. That claim that has been contradicted by internal records since released in lawsuits challenging the move.

    The decision prompted alarm by voting rights activists, civil rights advocates and policy wonks. They believe it will depress the participation of immigrant communities on the census — causing an undercount that would shift political power and resources away from those populations — while also leading to exclusion of non-citizens in legislative redistricting altogether in some states and localities.

    It is not clear whether the Bureau is offering up the citizenship data in anticipation that officials would seek to exclude noncitizens from redistricting, or if the Bureau had in mind assisting officials in drawing Voting Rights Act-compliant maps, which take into account citizen voting populations. In the past, a smaller scale Census survey has provided the citizenship estimates that are used for Voting Rights Acts purposes.

    However, Nate Persily, an election law expert at Stanford Law School, noted that the data set being referenced in the notice was the minimum thought to be necessary for redistricting that the Bureau makes available for state and local officials.

    “By providing citizenship data with the initial salvo of data that states will have for redistricting, they are not only enabling the drawing of VRA-compliant districts but they are also enabling the drawing of districts based on the whole number of citizens rather than the whole number of people,” he said.

    TPM tried to call the Census Bureau communications office to inquire about the notice, but met an automated message noting the partial government shutdown. The Bureau did not immediately respond to TPM’s email inquiry about the notice.

    Drawing districts based on the number of citizens instead of the number of residents has been a long sought goal of conservatives. While the Supreme Court in a recent case reaffirmed the use of total population for redistricting, whether states or localities could use another metric is a more open legal question.

    Doing so would be a major electoral advantage for Republicans, as it would boost the number of representatives that less diverse, more rural communities received while diminishing the representation of urban, more immigrant-friendly areas.

    If state or local officials seek the citizenship data after the 2020 census for the purposes of excluding noncitizens from redistricting, it will likely lead to a hugely consequential legal battle.

    Read the full federal registry notice below:

  • 29 Dec 2018 12:34 PM | Jason Fierman (Administrator)

    Voting rights groups say a citizens commission could fix gerrymandering. It’s unlikely to happen - The Texas Tribune - by Alex Samuels

    Over the past several years, federal courts have scolded Texas for its political boundaries, ruling that lawmakers intentionally diluted the voting strength of voters of color when they redrew Texas’ congressional and state House maps.

    The U.S. Supreme Court might have the final say. In April, the high court’s justices heard oral arguments in Texas’ redistricting case. Their final decision, expected to come this month, could lay the foundation for what the state’s political maps will look like through the end of the decade. A ruling on the current maps could also determine whether Texas will be required to get federal approval every time it draws new districts — a move that would safeguard voters of color from alleged discrimination and yield new boundaries that more closely reflect the size of the state’s electorate that’s made up of voters of color.

    But as the high court weighs a decision on the 11 Texas political districts in question, a coalition of voting and civil rights groups is looking to what they see as a solution to the state’s alleged discriminatory redistricting: establishing an independent commission in which citizens, rather than lawmakers, draw the state’s political maps.

    “When the people who are going to be running the districts are drawing the maps, it’s really about amassing power for themselves and for their political party,” said Anthony Gutierrez, the executive director of Common Cause Texas, a nonpartisan organization that focuses on voting rights issues, civic engagement and redistricting reform.

    “When other people who are not legislators or candidates for office are more involved with drawing the maps, it’s more about how do we best construct districts that can represent our communities,” he added.

    The current process for creating the state’s political maps looks like this: Texas redraws the political lines for its congressional and legislative districts every 10 years following the U.S. census. The process for making the maps, however, is mired in accusations that the party in power draws maps to benefit its base. Those accusations are boosting calls for reforms — including long shot proposals to take the map-making power away from lawmakers and hand it over to an independent commission.

    Independent commissions can be structured in various ways. Under the proposal Gutierrez favors — a plan also touted by the American Civil Liberties Union, the Texas League of Women Voters and the Texas Civil Rights Project —Texans serving on the commission would be selected through an application process. (Some other states with independent commissions have state officials or political parties choose the members.)

    Gutierrez added that the commission members would be demographically, racially and politically diverse and would have to have some sort of “expertise” in order to join.

    As proposed, the independent citizen commission would work like this:

    Fourteen members would serve on the commission: five who’ve exclusively voted in the Republican primaries, five who’ve exclusively voted in Democratic primaries and four who’ve not voted in either.

    The commissioners would draw the maps, which would have to comply with the federal guidelines outlined under the Voting Rights Act (which blocks district lines that deny minority voters equal representation opportunities, among other things), and a vote of at least nine members would be required to approve the maps and submit them to the Legislature for final approval.

    Lawmakers would be allowed to tweak the map boundaries but would be prohibited from making large scale changes.

    According to the National Conference of State Legislatures, states including Arizona and California have created independent commissions, while other states have banned partisan gerrymandering in their state constitutions.

    But similar proposals have never been enacted in Texas. And some experts say it’s unlikely they ever will.

    “Texas doesn’t have a process where something like this could be enacted over the wishes of the Legislature. This seems like it would not go anywhere,” said Rick Hasen, a professor and election law expert at the University of California, Irvine’s law school.

    Another reason an independent commission is unlikely is because its creation would require current lawmakers to give up some of their power. And the majority party in the Legislature is the same party that’s favored by the current maps.

    “The Texas Legislature has been engaged in partisan gerrymandering for a very long time — both Republicans and Democrats,” Hasen said. “It’s just hard to see what the incentive would be to give up the power they have. Generally, legislators don’t want to do that.”

    Implementing an independent citizens commission would require putting a constitutional amendment before Texas voters — a move that needs the support of more than two-thirds of both chambers of the Legislature.

    The latest attempt to amend the state’s current political maps happened during last year’s legislative session when state Rep. Victoria Neave, D-Dallas, unsuccessfully filed a joint resolution to create an independent commission.

    “We wanted to put the redistricting process into the hands of the people,” Neave said, adding that she plans to refile her measure during next year’s legislative session. “We’ve had courts that’ve held that there’s been intentional discrimination against Latino and African-American voters, so we just want to make sure that the process is fair and equitable.”

    But top Texas officials, including Texas Attorney General Ken Paxton, have vehemently denied that lawmakers illegally used race to draw the boundaries, saying they were motivated only by partisanship.

    “We firmly believe that the maps Texas used in the last three election cycles are lawful, and we will aggressively defend the maps on all fronts,” Paxton said in a statement last year.

    Experts say there are drawbacks to independent commissions, however. Though the rules for how members are selected varies by state, it’s hard to ensure commissioners are politically neutral, they say. It’s also difficult to determine if members on the commission have enough expertise on the state’s political boundaries to implement meaningful change.

    “Even ‘neutral’ commissioners will have political leanings, but we can be certain that they are much more ‘neutral’ than state legislators,” said University of Texas at Austin political science professor Sean Theriault.

    There are other reforms short of a commission that could make redistricting more fair, including requiring a supermajority of the Legislature to approve Texas’ political maps, said Michael Li, a redistricting expert with the Brennan Center for Justice at New York University School of Law.

    Or, Li said, the reforms could even go a step further and require a supermajority of the Legislature plus support from a certain percentage of the minority party. The latest state to take such actions is Ohio, where voters overwhelmingly approved an amendment that will require bipartisan input and approval for federal congressional maps.

    “The problem of extreme gerrymandering exists almost exclusively when one party has control of all of the levers of power,” Li wrote in The Texas Tribune’s Facebook group, This is Your Texas. “If you break that up by requiring a supermajority, you go a long way to creating fairer maps.”

    Note: This story was inspired by a discussion on education policy happening now in our Facebook group, This is Your Texas. Sign up here to join the conversation.

    Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

  • 29 Dec 2018 12:28 PM | Jason Fierman (Administrator)

    Can State Courts Cure Partisan Gerrymandering: Lessons from League of Women Voters v. Commonwealth of Pennsylvania (2018) - Election Law Journal - by Bernard Grofman & Jonathan R. Cervas 

    In League of Women Voters et al. v. Commonwealth of Pennsylvania et al. (2018), henceforth abbreviated LWV, the Pennsylvania Supreme Court struck down that state's congressional plan as an unconstitutional partisan gerrymander. It did so entirely on state law grounds after a three-judge federal court had rejected issuing a preliminary injunction against the plan. The aim of this essay is to examine the implications of LWV for future partisan gerrymandering litigation. In particular, we look toward the applicability of the Pennsylvania court's approach to other potential partisan gerrymandering challenges brought under state law, especially those in the 12 states whose state constitutions have provisions essentially identical to the one relied upon by the Pennsylvania Supreme Court, and in states with similar provisions. We pay particular attention to how the court made use of the expert witness testimony in the case, relying on some of it, while rejecting or critiquing the applicability of other elements, since such a discussion can inform future litigation in state courts drawing on the LWVopinion for ideas. In our concluding discussion we contrast the criteria used to evaluate partisan gerrymandering by this court with those used by federal courts, and we look at how it may impact the decisions of legislators about line drawing in 2020.

    Full Article Here!

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