New lawsuit could invalidate Pennsylvania GOP’s congressional gerrymander

The Daily Kos Elections Voting Rights Roundup is written by Stephen Wolf and edited by David Nir.


Pennsylvania: A group of Pennsylvania voters and the League of Women Voters filed a lawsuit in state court Thursday arguing that the congressional map Republican legislators passed in 2011 amounted to a partisan gerrymander in violation of the state constitution’s guarantees of free speech and equal protection. If the court strikes down this map, Pennsylvania could have to draw new districts for the 2018 cycle, which would almost certainly result in more Democrats getting elected to the House.

As shown in this map, the GOP’s brazenly tortured lines have produced a stable 13-to-5 Republican congressional majority in what is otherwise an evenly divided swing state. That Republican advantage persisted even when Obama carried Pennsylvania by 5 points—and Democratic House candidates won more votes statewide than Republicans—in 2012, and it held fast in 2016 when Trump narrowly won the state. As we have demonstrated, this Republican gerrymander likely cost Democrats up to four seats in both 2016 and 2012, making it one of the most effective GOP gerrymanders nationally.

The plaintiffs in this new suit point to several statistical tests to argue that Republicans could not have possibly passed the map that they did without intending to favor their own party. These tests include the “efficiency gap,” which is at the center of ongoing litigation over Wisconsin’s GOP-drawn state Assembly map, as well as one called the “mean-median district test,” both of which we have previously explained in detail. The plaintiffs have also put forth computer-simulated nonpartisan plans to buttress their claim that any efforts by mapmakers to adhere to traditional redistricting criteria alone (like compactness) were statistically unlikely to produce such a GOP-leaning map.

While these tests have yet to persuade the U.S. Supreme Court to strike down partisan gerrymanders for violating the federal constitution, plaintiffs are hoping that the Pennsylvania Supreme Court, where Democrats gained a majority in 2015, will ultimately give them a more favorable outcome under the state constitution. And while Republicans remain firmly in control of the legislature, if the state courts invalidate the existing congressional map, Democratic Gov. Tom Wolf could veto any potential Republican replacement, prompting the court itself to draw much fairer lines.

Naturally, Republicans have already attacked this lawsuit by pointing out the map passed with some Democratic votes. However, that argument cynically omits the fact those Democratic legislators cravenly favored the map to protect powerful Democratic incumbents whose districts were drawn to help Republicans in neighboring seats, not because they thought the map didn’t favor the GOP. (This is also a good reason why you should never, ever vote for the other side’s gerrymander.)

There’s still a long way to go before this case reaches a conclusion, and of course we can’t know if even a Democratic-majority state Supreme Court would produce a favorable ruling. (The lower court is dominated by Republicans.) However, if this case proceeds quickly enough through the system, and the plaintiffs do ultimately prevail, Pennsylvania could play a huge role in helping Democrats retake the House next year.


Florida: The Sunshine State’s chapter of the League of Women Voters has filed a petition with the Florida Supreme Court urging it to declare in advance that Republican Gov. Rick Scott lacks the authority to appoint the replacements of three judges on the court who will reach mandatory retirement age and have to leave office on the same day that term limits do the same to Scott: Jan. 8, 2019. Scott has promised to fill all three seats, which would flip the court from a 4-to-3 liberal-leaning majority to a 6-to-1 conservative edge, with dramatic implications for redistricting after the 2020 census.

This controversy has arisen because the judges in question are in office until the end of the day on Jan. 8, while Scott’s successor as governor will be sworn in earlier the same day. Logically it seems Scott’s replacement—who, depending on next year’s election outcome, could be a Democrat—would get to fill those vacancies. So Scott’s stated intention of doing so himself risks sparking a constitutional crisis. The outcome could only be resolved by the very same court at the heart of the underlying dispute, which is why plaintiffs are urging the court to act now.

Republicans have even implicitly acknowledged that Scott does not have the authority to fill these seats. In 2014, GOP legislators referred a state constitutional amendment to the ballot that would have allowed the governor to “prospectively” fill certain upcoming vacancies like these, but voters rejected it 52-48. Obviously they wouldn’t have bothered with such an amendment had they thought Scott already had the power to pick replacement judges!

But if Scott is somehow given the chance, a change in ideological control over the court from left to right would likely neuter the amendments to the state constitution that voters passed in 2010 to ban legislators from engaging in partisan gerrymandering, known as the “Fair Districts” amendments. Republican legislators gerrymandered anyway, of course, leading to prolonged litigation that finally saw the state Supreme Court strike down the GOP’s congressional and state Senate maps ahead of the 2016 elections. The ruling fell strictly along ideological lines, and if conservatives gain a majority in 2019, the court is unlikely to stop new Republican gerrymanders after 2020.

We can only hope the court will resolve this issue ahead of time to avoid a legal crisis. But gerrymandering foes will also need Democrats to win next year’s governor’s race to prevent a new conservative court majority from enabling future Republican gerrymandering.

North Carolina: The U.S. Supreme Court on Thursday denied a motion from Democrats, requesting that it swiftly return jurisdiction over North Carolina’s legislative racial gerrymandering case back to the three-judge federal district court panel that originally struck down the GOP’s maps last year. That means it won’t do so until the end of June. The lower court still has to determine (once again) whether to order special elections for any redrawn districts, following the Supreme Court’s early June decision that upheld the rest of the district court’s ruling invalidating the maps.

This two-week delay is critical because North Carolina state law appears to grant the legislature two weeks to debate new maps before the courts can step in and draw their own replacement districts. The July 7 to 21 filing period for North Carolina’s regularly scheduled November 2017 municipal elections is quickly approaching, and the Supreme Court’s delay significantly raises the risk that the lower court will be unable to require special legislative elections this fall instead of waiting until the regularly scheduled legislative elections a full year later in 2018.

Democratic Gov. Roy Cooper had called a special legislative session to start on June 8, which Republican legislators immediately moved to nullify. It’s still possible, though, that the lower court will consider the two-week clock to run from the abortive June 8 start date, meaning it could conclude legislators will have failed to act in due time when they receive the Supreme Court’s mandate to revisit the case at the end of this month. On the other hand, the district court could give Republican legislators even more time to stall before passing new replacement gerrymanders of their own, rather than allowing the court to implement its own, less partisan maps.

Voter Suppression

Kansas: Last week, we detailed newly minted GOP gubernatorial candidate Kris Kobach’s long voter-suppression crusade as Kansas’ secretary of state, but we would be remiss if we did not follow up by recommending voting rights expert Ari Berman’s excellent New York Times exposé on Kobach’s career. In chilling detail, Berman relays how Kobach’s pervasive hostility toward voting rights and immigration has had a national political impact that reaches all the way to the very top with Donald Trump’s administration.

North Carolina: A trial-level and appellate state court both recently refused to stay a ruling from early June in which the lower court had unanimously dismissed Democratic Gov. Roy Cooper’s lawsuit against the GOP-dominated state legislature’s new elections-board law, even while Cooper’s appeal is ongoing. That new measure removes Democratic majorities from every state and county elections board by creating an evenly divided partisan split, preventing Democrats from rolling back voting restrictions that Republicans implemented when they held majorities under GOP ex-Gov. Pat McCrory.

Cooper’s last recourse to prevent the law from taking effect while his appeal is ongoing will be to petition the all-important state Supreme Court, where Democrats hold a majority. But after Cooper’s unanimous defeat before a lower court panel that consisted of judges from both parties, there’s no guarantee he’ll prevail on the merits or even succeed in ultimately obtaining a stay pending appeal from the high court.

Automatic Voter Registration

Congress: Following its recent adoption in six states and the District of Columbia, Democratic Sen. Pat Leahy and Democratic Rep. Bob Brady introduced a bill in Congress to establish automatic voter registration nationwide for every eligible citizen who interacts with a variety of government agencies, unless they opt out. While this bill will almost certainly never become law so long as Republicans control both chambers of Congress, it nevertheless highlights a very important voting reform and sends a message that Democrats are focused on voting rights. And if this bill does indeed get enacted some day, it could add more than 40 million newly registered voters and likely boost turnout substantially.

Massachusetts: Legislators in the Bay State are also considering a bill that would automatically register any eligible voters who update their information with a variety of different state agencies, unless they opt out. A majority of members in both legislative chambers, which are dominated by Democrats, have reportedly signed on as co-sponsors. State Senate President Stan Rosenberg and Rep. Joe Kennedy are also urging passage of the bill, which could add many of the state’s nearly 700,000 eligible but unregistered citizens to the rolls.

While almost no Republicans have offered their support, Democrats could easily pass this bill without any GOP votes if the party sticks together, since they hold over three-fourths of the seats in both chambers. That is well above the two-thirds needed to override a potential veto from Republican Gov. Charlie Baker. It’s even possible the relatively moderate Baker would sign this bill into law, although more partisan GOP governors in other states keep vetoing similar Democrat-backed measures.

Ballot Measures

California: California recently approved a comprehensive transportation-funding deal that included a gas-tax increase, and Republicans have responded how? By initiating recall proceedings against a potentially vulnerable Democratic state senator, Josh Newman, who was narrowly elected in 2016. If the GOP succeeds, they’d eliminate the Democrats’ two-thirds supermajority, which is needed to impose new taxes. In turn, Democratic legislators have introduced a bill that would add new layers of review to the recall-initiation process itself in an obvious effort to delay any such recall election until June of next year. Doing so would mean the recall would coincide with the state’s regularly scheduled primary elections, when turnout will likely be much higher and more Democratic-leaning.

While both parties are likely just acting in their political self-interest, California’s recall system is a broken mess that was made infamous during 2003’s politically motivated—and successful—recall of then-Gov. Gray Davis, a Democrat, which led to the election of Republican Arnold Schwarzenegger. The recall process should be reserved for extraordinary situations, such as when elected officials abuse their powers or commit crimes while in office, not simply because their political opponents want to further a partisan agenda. But Republican recall proponents have said the quiet part loud, openly admitting their goal is the elimination of the Democrats’ supermajority.

In addition, California’s recall election procedures are themselves terribly flawed. California requires a two part-ballot: On the first question, voters are asked if they want to recall the official in question. The second contains a simultaneous election in which all replacement candidates run on a single ballot regardless of party where only a plurality is required to win. That means a divided field alone could hand the seat to the opposition.

Furthermore, this system makes it nearly impossible for the incumbent party to campaign against the recall but for a replacement candidate as a backup plan. (You may recall the Democrats’ incredibly awkward slogan from 2003—“No on recall, yes on Bustamante”—exhorting voters to oppose Davis’ recall but, hey, just in case, vote for Lt. Gov. Cruz Bustamante in case Davis gets the hook. Needless to say, it failed badly.)

In other states, voters face a much more straightforward process. In some jurisdictions, voters are asked whether they want to recall an office-holder. If a majority say yes, then that official is removed from office, creating a vacancy for which a separate special election is later held. In others, if a recall is placed on the ballot, then there’s just one traditional election, pitting the recalled candidate against an opponent from the other party.

California’s recall laws needed reforming after the Davis debacle, and that’s still true today. It may be understandable that Democrats would want to delay a politically motivated recall until an election when there will be higher turnout. But what they really ought to do is overhaul California’s recall procedures completely.

Puerto Rico: On Sunday, Puerto Rico residents voted in a referendum to decide on the island’s future political status, which we previously detailed. Voters almost unanimously opted for statehood after opponents boycotted the election, helping to lead to an abysmal turnout rate of just 23 percent. While pro-statehood Gov. Ricky Rosselló has vowed to proceed with his statehood push, it’s unlikely that Republicans will allow a congressional vote on the matter. At the same time, the low turnout and the non-binding nature of the referendum are unlikely to give Democrats much appetite for pushing the issue in Congress right now.

Election Systems

Hacking: A bombshell Bloomberg report on Tuesday indicated that alleged Russian hacking attempts during the 2016 elections went far beyond intrusions into the computer systems of committees like the DNC and DCCC and included efforts to compromise election administration systems in 39 states. The hacks reportedly did not attempt to change the votes on cast ballots but did unsuccessfully try to alter voter information records. That raises the risk that future hacks could distort things like voter-registration databases, potentially disenfranchising voters on Election Day.

There is no evidence so far that these hacks swung the outcome of any election, and they should be interpreted with caution as more details continue to unfold. However, these reports underscore that our byzantine state- and county-level system of decentralized election administration is potentially vulnerable to malicious interference. Of course, with Donald Trump and congressional Republicans using hacked emails of Democrats to their benefit in last year’s elections, it’s doubtful that they will be eager to appropriate and coordinate the resources necessary for states and counties to bolster the security of their election systems

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