The Ballot Bulletin: April 2018
From Ballotpedia
In The Ballot Bulletin, Ballotpedia tracks developments in election policy at the federal, state, and local levels. To shed light on these developments, each issue will include an in-depth feature, such as an interview or event timeline. We will also discuss recent prominent events relating to electoral and primary systems, redistricting, and voting provisions.
This month's edition: This month, we'll take a close look at the Supreme Court's oral argument in Benisek v. Lamone, a case involving alleged partisan gerrymandering originating in Maryland. We will also update you on the status of congressional redistricting in Pennsylvania and the implementation of ranked-choice voting in Maine. Finally, we'll spotlight electoral systems, primary systems, and redistricting legislation in the states.
SCOTUS hears oral argument in Benisek v. Lamone
- See also: Benisek v. Lamone
On March 28, 2018, the Supreme Court of the United States heard oral argument in Benisek v. Lamone, a case originating in Maryland, where seven Republicans, all of whom lived and voted in Maryland's 6th Congressional District prior to its reconfiguration in the 2010 redistricting cycle, claim that state lawmakers altered the boundaries of the 6th District in order to dilute the impact of Republican votes, a practice referred to as partisan gerrymandering. The plaintiffs allege that this action was deliberate and effective, constituting a violation of their First Amendment right to protection from official retaliation for political beliefs.
Benisek v. Lamone was the second partisan gerrymandering case heard by the court this term. The other, Gill v. Whitford, originated in Wisconsin, where 12 registered Democratic voters challenged the state's legislative redistricting plan, known as Act 43, as an unconstitutional partisan gerrymander in violation of the First and Fourteenth Amendments to the United States Constitution. To date, the Supreme Court has not issued a ruling establishing clear precedent on the question of partisan gerrymandering. According to The Wall Street Journal, in an article discussing Gill v. Whitford, "Some Supreme Court justices have previously expressed concern about partisan gerrymandering, but a majority of the court has been hesitant to intervene so directly in the American political process and to say how much partisanship is too much." Robert Barnes, writing on June 19, 2017, for The Washington Post, made a similar observation: "[The] Supreme Court has long been tolerant of partisan gerrymandering – and some justices have thought that the court shouldn't even be involved."
To shed further light on the court's consideration of these cases, we've identified the following key statements made by the justices in last week's oral argument. Statements are presented in the order they were made during argument. Context and transcript page numbers are provided in parentheses.
- Associate Justice Samuel Alito (to Michael B. Kimberly, attorney for the appellants, p. 14): "Well, let me ask you about your -- your legal theory then because I -- I probably don't understand it. But, if I understand it, I really don't see how any legislature will ever be able to redistrict. So let's say that a legislature is drawing a particular map or a particular district. Let's say it's a map and they say that -- and they have two possible plans that they're considering. And they both have very low population deviations, exactly the same. The districts in both are compact. The territory is contiguous. But they say, look, did -- plan A gives our party a more than de minimis advantage and plan B gives the other party a more than de minimis advantage. So let's pick the one that favors our party. … But hasn't this Court said time and again you can't take all consideration of partisan advantage out of districting?"
- Associate Justice Anthony Kennedy (to Kimberly, p. 17): "Well, what -- what would happen if you have the orange party and the green party, the green party's in the minority, orange with 45 and -- orange party 55. Then, because of natural population shifts or building new plants and so forth, it switches. Could the legislature say at this point -- we want, in order to have a congressionally balanced declaration -- delegation, change -- change the districting in -- in order to accommodate the new majority? It seems to me that that would be definitely to retaliate against certain -- a certain voter. The voter for the orange -- for the orange party who used to be in the majority is now in the minority."
- Associate Justice Ruth Bader Ginsburg (to Kimberly, p. 20): "[When] you start with a district that's been skewed and you take that as the baseline and say any deviation from that skewed districting has to get strict scrutiny, there's something wrong with that. I mean, isn't the state able to say in the past this was a gerrymandered district and now we want to undo the gerrymander, and then people who are left out will say: Now we've been diluted, we've -- we've lost the clout we once had. I mean, isn't there something wrong with using the district as it now exists as your starting point?"
- Associate Justice Stephen Breyer (to Kimberly, p. 26): "It seems like a -- a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering. The Court said things like that, but is there a practical remedy that won't get judges involved in every -- or dozens and dozens and dozens of very important political decisions? What would you think of taking the three cases [Benisek v. Lamone, Gill v. Whitford, and Rucho v. Common Cause, a case out of North Carolina] and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard? But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject."
- Associate Justice Elena Kagan (to Steven M. Sullivan, Maryland solicitor general, p. 40): "[As] Justice Sotomayor said, you know, from the Governor, from Congressman Hoyer, people were very upfront about what they were trying to do here, which was to create another Democratic district. And they did that. Only 10,000 people had to be removed from this district as a result of one person/one vote. What -- what the Maryland legislature did was to shuffle 350,000 people. The result of that is that the district went from 47 percent Republican and 36 percent Democratic to exactly the opposite, 45 percent Democratic and 34 percent Republican. I mean, how much more evidence of partisan intent could we need?"
- Chief Justice John Roberts (to Sullivan, p. 48): "Well, let's talk about the boundary lines for -- for a second. People have been talking about the statistics and the numbers. Is it appropriate in a case like this to look at what the district looks like in terms of the boundaries and the extent to which it complies with traditional redistricting criteria? … Well, it just seems to me -- I've read a lot in the record -- but worried about, you know, going over Chesapeake Bay and drawing a district, and that makes a lot of sense, but it's not just water that separate people, and -- and part of the objection here to the way it was redrawn is that it's -- it doesn't seem to have any internal logic."
- Associate Justice Neil Gorsuch (to Sullivan, p. 55): "Along the lines of things we don't know, we've been talking about the intent of the legislature, but what effect does the -- does the fact that this map was subsequently approved by the people themselves have when we're trying to determine intent? This went up for voter referendum, as I understand it -- and passed with 64 or so percent of the vote."
- Associate Justice Sonia Sotomayor (to Sullivan, p. 59): "We have found standards on things like how many -- what's the burden of treating different political parties to a requirement of signatures to get on the ballot. And we've said in those situations we look to the nature of the burden. We look to the expense. We -- we look to a variety of different factors to inform the seriousness of the burden. The First Amendment has worked well in those cases. Are you just merely suggesting it can't work well here because the redistricting process is so complex? Is that your only reason? Or is it -- what exactly makes it workable in one context but not particularly in this one?"
- Associate Justice Clarence Thomas made no remarks during oral argument.
Both SCOTUS and federal district court reject challenges to Pennsylvania's new congressional district map
- See also: Redistricting in Pennsylvania
- What's the story? On March 19, 2018, the Supreme Court of the United States and the United States District Court for the Middle District of Pennsylvania rejected separate challenges to Pennsylvania's new congressional district map. This map was adopted by the state supreme court on February 19, 2018, in response to its earlier ruling that the original map, adopted by the state legislature in 2011, "clearly, plainly and palpably violate[d] the Constitution of the Commonwealth of Pennsylvania" via partisan gerrymandering.
- What brought us here?
- Shortly after the state supreme court issued its order adopting a new district map, state Republicans filed suit in the United States District Court for the Middle District of Pennsylvania, seeking an injunction against implementation of the remedial congressional district plan adopted by the state supreme court. The plaintiffs alleged that the state supreme court, in adopting a remedial map, violated the Elections Clause of the United States Constitution by usurping the redistricting authority granted by the Constitution to state legislatures. A three-judge panel of the district court rejected this challenge on March 19, 2018.
- At the same time, state Republicans also petitioned the Supreme Court of the United States to stay the state supreme court's decision pending appeal. The court rejected this request without noted dissent, also on March 19, 2018.
- What are the reactions and what comes next?
- On March 19, 2018, The New York Times noted that "while further court challenges are possible, [the March 19] decisions make it very likely that this year's congressional elections in Pennsylvania will be conducted using the new map."
- On March 20, 2018, Rep. Cris Dush (R) introduced impeachment resolutions against the four justices who signed onto the state supreme court's order adopting the remedial map, which was drawn at the court's behest by a court-appointed expert. Dush argued that Justices David N. Wecht, Debra McCloskey Todd, Christine Donohue, and Kevin M. Dougherty, all Democrats, exceeded their authority by imposing a new district map, an action that, Dush argued, is the prerogative of the legislative and executive branches. In a memorandum accompanying the impeachment resolutions, Dush said, "[The court's action] overrides the express legislative and executive authority, found in Article IV, Section 15 of the Pennsylvania Constitution, concerning the Governor’s veto authority and the General Assembly’s subsequent authority to override such veto. ... [The justices] who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, engaged in misbehavior in office." Eleven other Republicans signed on as co-sponsors of the impeachment resolutions.
- House Minority Leader Frank Dermody (D) argued that the impeachment efforts constituted an unfounded attack on the judiciary. Dermody said, "It’s an attack on the independence of every judge in our state, one of the bedrock principles of our democracy. If pursued, this would be a clear and present danger to the administration of justice in Pennsylvania." Chief Justice Thomas Saylor, a Republican, said the following in a statement: "Threats of impeachment directed against Justices because of their decision in a particular case are an attack upon an independent judiciary, which is an essential component of our constitutional plan of government."
- A simple majority vote in the Pennsylvania House of Representatives is required to approve impeachment resolutions. Republicans presently hold a 119-80 majority in the chamber (with four vacancies). If the House approves the impeachment resolutions, the four justices will be tried before the Pennsylvania State Senate. A two-thirds majority vote is required in the Senate to convict and remove the justices from office, meaning that a minimum of 34 senators must vote in favor of conviction. Republicans currently hold a 34-16 majority in the Senate.
- What effect will this have on Pennsylvania's U.S. House elections in November? For more information on this fall's U.S. House elections in Pennsylvania, see this article.
- What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.
Confusion over whether Maine will implement ranked-choice voting in June 2018 primary
- See also: Electoral systems in Maine
- What's the story? On March 29, 2018, Maine Secretary of State Matt Dunlap (D) announced that he had been notified by Assistant Attorney General Phyllis Gardiner of "legal concerns regarding the implementation of ranked-choice voting" that might prohibit its use in the June 2018 primary election. Dunlap told the legislature's Veterans and Legal Affairs Committee that he believed lawmakers should adopt legislation to address this issue: "It is our intention to continue on with the implementation schedule laid out because we do not have time to do anything else, but I do bring this to the Legislature as a real conflict that could be challenged [in court]. I do not presuppose the outcome of that challenge. And I do not agree that we should just leave it to a challenge and see where the chips fall. I think it needs to be addressed."
- What brought us here? Maine voters adopted ranked-choice voting for federal and state elections via a 2016 ballot initiative. In May 2017, the Maine Supreme Judicial Court issued an advisory opinion finding that provisions of the ranked-choice voting law violated the state constitution. In October 2017, the state legislature approved LD 1646, which provides for delayed implementation of the state's ranked-choice voting law pending voter approval of a constitutional amendment allowing for its use. LD 1646 also provides for the repeal of the ranked-choice voting law if no constitutional amendment is approved by December 1, 2021. Ranked-choice voting proponents initiated a veto referendum campaign to suspend and, ultimately, repeal LD 1646. Ranked-choice voting proponents filed the requisite 61,123 valid signatures to place the veto referendum on the June 2018 ballot, suspending LD 1646 pending resolution of the veto referendum and paving the way for implementation of ranked-choice voting in the June 2018 primary election for federal and state offices.
- What are the reactions and what comes next?
- Dick Woodbury, chairman of the Committee for Ranked Choice Voting, criticized Dunlap's actions: "In the 15 months since voters enacted Ranked Choice Voting as Maine law, Secretary of State Matt Dunlap has consistently avoided its implementation. All Maine people should be stunned by this latest affront to democracy and to the rule of law. I used to believe that Maine politics had integrity. But this latest attempt to block implementation of Ranked Choice Voting is outrageous and cannot stand." Woodbury said that the committee would seek a court order to force implementation of ranked-choice voting in the June 2018 primary election.
- Senate Minority Leader Garrett Mason (R) praised Dunlap's announcement: "The secretary's decision coupled with Republican efforts in the Legislature will now prevent the spectacle of an election in Maine where voters choose certain candidates by ranked choice, while at the same time and in the same election, vote whether or not they want it. It was entirely conceivable that the voters could vote in June using ranked choice, and also vote to eliminate it, creating a crisis in confidence over the results of that election."
- Attorney General Janet Mills (D), also a gubernatorial candidate in the 2018 election, said, "The issue raised by the secretary of state this morning, which I was made aware of for the first time today, needs to be addressed immediately so that the will of the people may be respected. The more than 62,000 citizens who signed the People's’ Veto petitions deserve to have their voices heard. The will of the people must not be thwarted by some technicality in the law. I will file legislation today to be presented to the Legislative Council to ensure that ranked-choice voting is in full effect for this June’s primary as the people have dictated."
- According to the Portland Press Herald, "there was considerable confusion [on March 29, 2018] about whether Dunlap's office still planned to use ranked-choice voting in June. Earlier in the day, Dunlap told a Maine Public radio reporter that it was his understanding that they could not use ranked-choice voting in June, but that he was seeking additional clarity. But when he was speaking with the Veterans and Legal Affairs Committee in the afternoon, Dunlap made it clear that they would continue to work on implementing the law despite the concerns."
- On April 3, 2018, Kennebec County Superior Court Justice Michaela Murphy issued an opinion in Committee for Ranked-Choice Voting v. Dunlap ordering state officials to proceed with the implementation of ranked-choice voting in June. Murphy wrote the following in her opinion: "The uncertainty that halting the ranked-choice voting implementation process at this late date is significant. Clarity, stability and public confidence are essential to ensure the legitimacy of Maine elections."
- On April 4, 2018, the Maine State Senate filed suit in Kennebec County Superior Court requesting that the court "issue a preliminary injunction and, upon further consideration, a permanent injunction barring the Secretary of State from committing and expending public funds of the State of Maine for the development, implementation, and administration of Ranked-Choice Voting in the June 12, 2018 primary elections and all other elections unless and until such time as the legislative authority of Maine appropriates public funds for that purpose."
- What's going on in the rest of the country? The map below identifies states in which electoral systems and primary systems bills are being considered in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about electoral systems legislation, see this article. For full details about primary systems legislation, see this article.
See also
- Election policy on Ballotpedia
- Electoral systems legislation at the state and city levels in the United States, 2018
- Primary systems legislation at the state and city levels in the United States, 2018
- Redistricting legislation at the state and city levels in the United States, 2018
- Federal redistricting legislation in the United States, 2017-2019 (115th Congress)
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