The Ballot Bulletin: February 2019
From Ballotpedia
Welcome to The Ballot Bulletin: We track developments in election policy at the federal, state, and local levels. Each issue includes an in-depth feature, such as an interview or legislative analysis, and discussions of recent events relating to electoral and primary systems, redistricting, and voting provisions. In this month’s edition, we take a closer look at three partisan gerrymandering cases pending before federal courts, including two that will be heard by the Supreme Court next month.
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Partisan gerrymandering the focus of three prominent lawsuits, two pending before SCOTUS
Allegations of unconstitutional partisan gerrymandering are the focus of three prominent lawsuits pending before federal courts, two of which will be considered by the Supreme Court of the United States next month. In each of these suits, the plaintiffs contend that the existing district maps were drawn with the intention of favoring one political party over another. The suits are summarized below:
- Maryland
- Lamone v. Benisek: 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. The plaintiffs allege that this action constitutes a violation of their First Amendment associational rights. The United States District Court for the District of Maryland ruled in favor of the plaintiffs on November 7, 2018. The defendants appealed this decision to the Supreme Court of the United States, which will hear oral argument on March 26, 2019.
- Michigan
- League of Women Voters of Michigan v. Johnson: In 2017, the League of Women Voters of Michigan, along with a group of state Democrats, filed suit in the United States District Court for the Eastern District of Michigan against Ruth Johnson in her capacity as Michigan's secretary of state. The lawsuit alleges that Michigan's congressional and state legislative district plans represent unconstitutional partisan gerrymanders (i.e., the plaintiffs argue that the state's district maps give an unfair advantage to Republicans over Democrats). State Republicans petitioned the Supreme Court of the United States to delay lower court proceedings pending the high court's rulings in Lamone v. Benisek and Rucho v. Common Cause. On February 4, 2019, Associate Justice Sonia Sotomayor denied this request, clearing the way for the district court trial that began on February 5, 2019.
- North Carolina
- Rucho v. Common Cause: On August 5, 2016, Common Cause filed suit in the United States District Court for the Middle District of North Carolina, arguing that North Carolina's congressional district plan constituted an illegal partisan gerrymander. On August 22, 2016, the League of Women Voters of North Carolina filed a similar suit in the same court. The two cases were consolidated. On August 27, 2018, the United States District Court for the Middle District of North Carolina ruled in favor of the plaintiffs. The defendants appealed this decision to the Supreme Court of the United States, which will hear oral argument on March 26, 2019.
- Point/counterpoint: is partisan gerrymandering a violation of federal law?
- To date, the Supreme Court of the United States has yet to issue a ruling establishing clear precedent on the justiciability of partisan gerrymandering claims under federal law. In order to summarize the competing arguments at the heart of this debate, Ballotpedia asked two redistricting authorities for their thoughts on the question.
- Logan C. Churchwell (Public Interest Legal Foundation): Two cases are now before the Supreme Court. One involves a challenge to North Carolina’s map. The other involves a challenge to a single district in Maryland. The cases provide something for everyone. The North Carolina challengers claim that the map unconstitutionally disadvantages Democrats. The Maryland challengers claim that the redistricting of Maryland’s Sixth District unconstitutionally disadvantages Republicans. These “partisan gerrymandering” claims are not new to the Supreme Court yet the Supreme Court has yet to provide guidance on how to handle such claims. One question before the Supreme Court is whether it should hear partisan gerrymandering claims at all. Looking to the Constitution, the answer is clear. The framers of the Constitution left the power to run elections to the states. This includes how the states divide their congressional districts. For courts to interfere with the state’s ability to draw its districts disrupts this important constitutional balance.
- Logan C. Churchwell is Communications Director for the Public Interest Legal Foundation.
- Kati Phillips (Common Cause): The Supreme Court has long recognized the harm partisan gerrymandering causes by consistently ruling that citizens should be able to challenge maps in court. The justices have affirmed the justiciability of these challenges even in cases where it declines to strike down maps at issue in the case. For example, the Supreme Court stated in Davis v. Bandemer that “we decline to hold that such claims are never justiciable” despite upholding the districts being challenged. More recently, in a predecessor case to Lamone v. Benisek called Shapiro v. McManus, the justices unanimously decided that the Maryland plaintiffs must be allowed their day in court in front of a three-judge panel. Even in last year’s disappointing outcomes in Gill v. Whitford and Benisek v. Lamone, in which the Supreme Court declined to address partisan gerrymandering claims directly, the opinions ensured that these claims would live to see another day. In Gill, the justices stated that the technical problem with the plaintiffs’ case would typically lead the Supreme Court to dismiss it altogether. Calling Gill “not the usual case,” the justices unanimously sent the case back to the trial court so the plaintiffs could fix their technical problems and relitigate the case.
- Kati Phillips is Western Region Communications Strategist for California Common Cause.
- Logan C. Churchwell (Public Interest Legal Foundation): Two cases are now before the Supreme Court. One involves a challenge to North Carolina’s map. The other involves a challenge to a single district in Maryland. The cases provide something for everyone. The North Carolina challengers claim that the map unconstitutionally disadvantages Democrats. The Maryland challengers claim that the redistricting of Maryland’s Sixth District unconstitutionally disadvantages Republicans. These “partisan gerrymandering” claims are not new to the Supreme Court yet the Supreme Court has yet to provide guidance on how to handle such claims. One question before the Supreme Court is whether it should hear partisan gerrymandering claims at all. Looking to the Constitution, the answer is clear. The framers of the Constitution left the power to run elections to the states. This includes how the states divide their congressional districts. For courts to interfere with the state’s ability to draw its districts disrupts this important constitutional balance.
- To date, the Supreme Court of the United States has yet to issue a ruling establishing clear precedent on the justiciability of partisan gerrymandering claims under federal law. In order to summarize the competing arguments at the heart of this debate, Ballotpedia asked two redistricting authorities for their thoughts on the question.
- Partisan gerrymandering: a brief history
- According to Justin Levitt, a professor at Loyola University, "American attempts to tailor district lines for political gain stretch back to the country's very origin." Levitt cites efforts by Patrick Henry, an opponent of the U.S. Constitution, to draw district lines in Virginia in such a manner as to deny James Madison, the Constitution's chief architect, a seat in the newly established U.S. House.
- The term gerrymander dates to the early 19th century. In 1812, Massachusetts Governor Elbridge Gerry signed into law a state senate district map drawn to favor the Democratic-Republican Party over the Federalist Party. The word gerrymander was coined by The Boston Gazette to describe the district (gerrymander is a portmanteau of Gerry's name and the word salamander; the map's opponents argued that the shape of a disputed district resembled that of a salamander). A political cartoon printed in March 1812 in the Boston Centinel to criticize the disputed district has since become a common visual representation of gerrymandering.
- In contrast with racial gerrymandering, on which issue the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court has not yet issued a ruling establishing clear precedent on the question of partisan gerrymandering. In 2018, the high court heard two cases involving allegations of partisan gerrymandering. In neither subsequent ruling did the court directly address whether a district map can be struck down as a partisan gerrymander. Instead, the rulings were made on standing grounds (as in Gill v. Whitford) or procedural grounds (as in Benisek v. Lamone, which the court will hear again this term).
Other election policy news
- Ranked-choice voting: In Memphis, Tenn., ranked-choice voting is on track to be deployed for the first time in the city's October elections. Memphis' ranked-choice voting law was adopted via charter amendment in 2008 and withstood a repeal effort in 2018. In addition to Memphis, the following cities are expected to conduct their first ranked-choice voting elections in 2019: in Utah, Cottonwood Heights, Lehi, Payson, Salem, Vineyard, and West Jordan; in New Mexico, Las Cruces; and in Minnesota, St. Louis Park.
- Closed primaries in New Mexico: On February 5, 2019, the New Mexico Supreme Court dismissed a challenge to the legality of closed primaries in the state. The initial suit was brought by former attorney general Paul Bardacke (D), who argued that New Mexico's closed primary process serves private organizations (in this case, political parties) in violation of a state law prohibiting the use of public money to benefit private organizations. The state supreme court did not address this argument in its order, which summarily dismissed the challenge.
Legislation update: Redistricting, electoral systems, and primary systems bills
The maps below identify states in which redistricting, electoral systems, and primary systems bills are being considered in 2019. A darker shade of red indicates a greater number of relevant bills.
See also
- Election policy on Ballotpedia
- Electoral systems legislation at the state and city levels in the United States, 2019
- Primary systems legislation at the state and city levels in the United States, 2019
- Redistricting legislation at the state and city levels in the United States, 2019
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