The Ballot Bulletin: October 2017
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 voter provisions.
This month's edition: This month, we'll bring you up to speed on recent developments in Gill v. Whitford, a partisan gerrymandering case before the Supreme Court of the United States, the implementation of ranked-choice voting in Santa Fe, New Mexico, new legislation in California that moves the state's presidential and congressional/state-level primaries from June to March, and a SCOTUS decision pertaining to Texas' congressional and state legislative district maps.
Two perspectives on Gill v. Whitford
On October 3, 2017, the Supreme Court of the United States heard oral argument in Gill v. Whitford, a case addressing the constitutionality of the district map for the Wisconsin State Assembly. In November 2016, the United States District Court for the Western District of Wisconsin struck down the map, finding that it constituted an illegal partisan gerrymander "intended to burden the representational rights of Democratic voters ... by impeding their ability to translate their votes into legislative seats." The district court later ordered Wisconsin lawmakers to draw a remedial map by November 1, 2017, for use in the November 2018 election. Shortly after announcing that it would hear the case in the coming term, the Supreme Court voted 5-4 to stay the district court's remedial order.
If the Supreme Court affirms the district court decision, it will mark the first time that the high court has struck down a map on the basis of partisan gerrymandering. In July of this year, Associate Justice Ruth Bader Ginsburg suggested that Gill v. Whitford is perhaps the most important case the court will hear this term. To shed further light on the debate surrounding this case, we interviewed two individuals with distinct perspectives on Gill v. Whitford:
- Drew Penrose, Legal and Policy Director of FairVote
- FairVote, along with One Nation One Vote, filed an amicus brief in support of the appellees (i.e., the parties alleging that an unconstitutional partisan gerrymander occurred)
- Ballotpedia: Tell us a little bit about FairVote.
- Drew Penrose: FairVote is a nonpartisan electoral reform group that advocates for fairer and more representative elections. FairVote is the nation's leading advocate of fairer voting methods that give voters a stronger voice and a democracy that works for all. We analyze elections and build support for reforms at the local, state, and national level through strategic research, communications, and collaboration.
- BP: What is your take on Gill v. Whitford and the broader issue of partisan gerrymandering?
- Penrose: We support the case brought by the plaintiffs/appellees. Our brief begins by invoking the Declaration of Independence: "The foundation of democracy rests on the consent of the governed." Partisan gerrymandering is anathema to that principle. If successful, the case will not end all partisan gerrymandering, but it will establish a clear standard that states cannot intentionally and without justification use the districting process to unfairly skew results in favor of one political party. It is actually a fairly modest standard, but it could change how states see the boundaries of what they can and cannot do when structuring their elections. We believe that to really end the harms we associate with gerrymandering, we need to move beyond the notion that district lines are the best way to decide who wins representation and who does not. There are other ways of structuring elections that do not rely on district lines, but rather provide fair representation to voters based on who they vote for, not based on where they live. The best option for American elections is ranked-choice voting in multi-winner districts (also called "single transferable vote"). It has a long history of use in local elections in the United States. It would ensure that elections would never be unfairly skewed in favor of any political party, and it would make all sorts of gerrymandering a relic of the past. We hope that this case is successful in the Supreme Court and that it sparks a dialogue about what we should expect from our democracy.
- BP: What sets Gill v. Whitford apart from other cases dealing with partisan gerrymandering?
- Penrose: Finding a judicially manageable standard for claims of partisan gerrymandering has been called the "holy grail" of election law. The plaintiffs/appellees have a simple, three-part test drawn from the court's own precedent in other areas of law. The test is (1) did the state intend to gerrymander in order to create an unfair advantage for one political party, (2) did their action actually result in a substantial advantage for one political party, and (3) does the state have some way of justifying the unfair advantage besides their intentionally gerrymandering? If the gerrymandering was intentional, successful, and unjustified, then it is unconstitutional. One new thing in this case is a method for measuring the second element called the "efficiency gap." The case does not rely on the efficiency gap as the exclusive measure of the success of a gerrymander, but its existence is a very useful development. Another thing that makes this case stand out is just the times that we live in: gerrymandering is far more blatant and far more effective than it has been historically. The Wisconsin state legislature was openly gerrymandered, and it is among the most distorted in terms of election results that you'll find anywhere. With modern technology and with our hardened partisan attitudes toward politics, gerrymandering has become a far more insidious and ubiquitous part of our politics than ever before - something I believe the Supreme Court will know and care about.
- John J. Park, Jr., Counsel of Record for the Southeastern Legal Foundation
- The Southeastern Legal Foundation filed an amicus brief in support of the appellants (i.e., the parties arguing that an unconstitutional partisan gerrymander did not take place)
- Ballotpedia: Tell us a little bit about the Southeastern Legal Foundation.
- John J. Park, Jr.: It was founded in 1976. It's a nonprofit public interest law firm and policy center. As we say in the amicus brief, it advocates constitutional individual liberties, limited government, and free enterprise in the courts of law and public opinion. It has filed amicus briefs in a number of cases, and I've been writing some briefs for them for the last four to five years, although I'm not the only one who writes for them. They do real property [cases], they do First Amendment [cases], and they've taken on some of these redistricting ones, as well.
- BP: What is your take on Gill v. Whitford and the broader issue of partisan gerrymandering?
- Park: There's some sense that political gerrymandering may be justiciable, although there's a lot of pushback on that. The basic problem is that no one has come up with a test – not from Davis v. Bandemer, not from Vieth v. Jubelirer. One thing I would say is that it's not entirely clear whether it is judicially remediable. I tend to think political gerrymandering works until it doesn't. Now, Gill is just another effort to find a test that the Supreme Court will be willing to employ. In Vieth, what the court did, four justices said it was not justiciable. Justice Kennedy said, "I'm not prepared to go that far, but the tests these plaintiffs have proposed don't work, and I'm not going to put the final nail in the coffin on justiciability. I'm going to wait and see if someone comes up with another test." So, Gill is basically another test. I'm not sure it works, just because if all the votes that you're wasting are concentrated in one part of the state, what are you supposed to do? You're already drawing one person-one vote compliant districts. Do you give them extra votes? That'd be nonsense.
- BP: What sets Gill v. Whitford apart from other cases dealing with partisan gerrymandering?
- Park: In our brief, what we suggested was that these plaintiffs are making a generalized claim for relief. Ordinarily, you can't do that. The Supreme Court has said that repeatedly, most recently in Lance v. Coffman. The plaintiffs say, "We're special. We get to make these claims." Standing is a silver bullet. I don't think they have it. That said, they've won below [in the district court]. I don't think their test works, and for that reason I think the court should just reverse it and send it back. The brief we wrote focused on standing. ... The other side's briefs had a lot of, "Political gerrymandering is bad," and not much else to say. It would be a fruit basket turnover if the court finds that this claim works, and it would be a fruit basket turnover everywhere. The other point I would make is that I'm not a big believer in redistricting by commission. I don't think the commissions are disinterested. I think that all it does is move politics to a different place where we can't see it. In contrast, the legislatures that redistrict have to stand behind their work and frequently defend it in court. I think that's a superior solution: redistricting by the legislators who know their state better than any commission ever will.
New Mexico Supreme Court rejects petition to force implementation of ranked-choice voting in Santa Fe in 2018 elections
- See also: Electoral systems in New Mexico
- What's the story? On September 21, 2017, a three-justice panel of the New Mexico Supreme Court voted unanimously to reject a petition calling for the court to compel city officials to implement ranked-choice voting (RCV) in Santa Fe's 2018 municipal elections. Santa Fe citizens adopted RCV for municipal elections via a 2008 city charter amendment, which provided for the implementation of RCV "commencing with the regular municipal elections in 2010 or as soon thereafter when equipment and software for tabulating the votes and allowing correction of incorrectly marked, in-person ballots are available at a reasonable price." The plaintiffs in the suit — including Maria Perez, director of FairVote New Mexico, and Santa Fe residents Craig O’Hare, Ellen Ackerman, and Anne Noss — had argued that Santa Fe's voting equipment met the requirements set forth in the charter amendment and that RCV software had been offered to the city at no cost by the New Mexico secretary of state. In the petition filed with the state supreme court, the plaintiffs' attorneys stated, "Using RCV is not discretionary. The city council cannot delay its implementation once the software is available at a reasonable cost." City officials countered that the prerequisites for implementation had not yet been met. After the council voted in July 2017 to delay implementation of RCV, city council member Karen Heldmeyer said, "What people present as a very simple idea is in fact very complicated in its execution. There are many ways to do ranked-choice voting and I just don't see how you can do it until you have a completely worked out proposal. And there's been absolutely no discussion about it."
- What comes next? On the day that the state supreme court announced its decision, Yolanda Vigil, Santa Fe's city clerk, said, "As always, our focus is on administering another successful election process this March, and we look forward to implementing Ranked Choice Voting following this cycle." Perez told the Albuquerque Journal that FairVote New Mexico was considering its legal options: "We're definitely not closing the door on this. The fight continues, and we'll get this done sooner or later." Barring further court action, RCV will not be used in Santa Fe's 2018 municipal elections.
- What's going on in the rest of the country? The map below identifies states in which electoral systems legislation has been introduced in 2017. A darker shade of red indicates a greater number of relevant bills. For full details about electoral systems legislation, see this article.
Governor signs legislation moving all California primaries from June to March
- See also: Primary elections in California
- What's the story? On September 27, 2017, Governor Jerry Brown (D) signed into law SB 568, moving California's primary elections for both presidential and congressional/state-level offices from the first Monday in June to the first Tuesday following the first Monday in March. The California State Assembly adopted the bill on September 15 by a vote of 55-21, with three members not voting. The California State Senate followed suit on September 16, approving the bill by a vote of 26-10, with four members not voting. Proponents of SB 568 argue that, by moving the state's presidential preference primary from June to March, California voters will be better positioned to have an impact on the presidential candidate nominating process. State Senator Ricardo Lara (D) said, "It's time for Californians to have a louder vote about who is going to lead our country." Opponents of SB 568 contend that moving the primary from June to March will have a negative impact on prospective challengers to incumbent politicians because candidates will have to file for ballot access in December of the year preceding the election. State Assemblyman Matthew Harper (R) said, "Some of you may love that, but I don't think it's right for the voters. I think it's incredibly short-sighted."
- What comes next? The law is set to take effect on January 1, 2019, in advance of the 2020 presidential election cycle.
- What's going on in the rest of the country? The map below identifies states in which primary systems legislation has been introduced in 2017. A darker shade of red indicates a greater number of relevant bills. For full details about primary systems legislation, see this article.
U.S. Supreme Court stays order against Texas' congressional, state legislative district plans
- See also: Redistricting in Texas
- What's the story? On September 12, 2017, the Supreme Court of the United States voted 5-4 to stay two court orders striking down Texas' congressional and state legislative district plans. In August, via two separate rulings, a three-judge federal district court panel found that Texas' district maps for congressional districts 27 and 35 and state House districts 32, 34, 54, 55, 90, 93, 103, 104, and 105 had been drawn with racially discriminatory intent. The panel ordered that these districts be redrawn. Texas Attorney General Ken Paxton (R) requested that the Supreme Court of the United States intervene and stay these orders pending progression of the state's appeal, resulting in the September 12 order by the high court. Chief Justice John Roberts and Associate Justices Clarence Thomas, Anthony Kennedy, Samuel Alito, and Neil Gorsuch formed the majority. Associate Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer dissented.
- What comes next? According to The New York Times, the Supreme Court's order "made it more likely that the 2018 election will be held" using the existing district plans.
- What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2017. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.
See also
- Election policy on Ballotpedia
- Electoral systems legislation at the state and city levels in the United States, 2017
- Primary systems legislation at the state and city levels in the United States, 2017
- Redistricting legislation at the state and city levels in the United States, 2017
- Federal redistricting legislation in the United States, 2017-2019 (115th Congress)
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