The Thicket at State Legislatures

Update on Expulsions from State Legislatures

by Karl Kurtz

Earlier this month we reported on the expulsion of a North Carolina lawmaker from that state's legislature.  In that post we said that seven other legislators had been expelled from different legislatures since 1970.  That number should have been 15, as indicated by this more up to date list--Download expulsion_2.DOC--compiled by Brenda Erickson.  Brenda's list includes 19 other expulsions before 1970, going back as far as 1757. (April 1, 2013 update: "Expulsions from State Legislatures are Rare")

See also an ongoing story about an expulsion procedure under way in Arkansas in which the loser of a 2006 Senate race is claiming fraud in the election process and demanding that the winner be expelled from the Senate.

It's Initiative Season: Play Ball!

by Brian Weberg

The season runs from now until November, and it will be hardball all the way.  We're talking ballot initiatives here, not quite the national pastime but something more politically akin in look and feel to that decennial bloodsport, redistricting.  The stakes can be high and the action intense.

Michigan has a few interesting initiatives in circulation now that are targeted at the legislature and that we will be watching.  There are two separate initiatives out for signatures that seek to make the state legislature a part-time body and one calling for a "proportional Senate."

The Part Time Legislature Committee's measure limits sessions to mid-March through July 1, limits total special session days to 20 per year, cuts legislator pay in half, fines members $400/day if absent on a session day, limits member expense allowances, eliminates benefits for members, eliminates the state compensation commission and requires the legislature to meet each fall (prior to election day) to set legislative pay, allows legislators to participate in interim committee work from home "by telecommunication or other reliable method" and requires the governor to submit a balanced budget on time or face censure.  The Part-Time Legislature Committee states that Michigan is one of only four states with "standing" legislatures.  NCSL's analysis on the full-time versus part-time distinction is a bit more nuanced than this statement may suggest, but Michigan certainly does have a full-time legislative operation.

The people behind Turn Michigan Around argue that "most states (39 of 50) have part-time legislatures, and it is time for Michigan to re-join the majority."  Their proposed initiative is very similar to one described above.  It limits the legislature to 100 session days per year, requires session to conclude by May 31, limits special sessions to 15 total days per year, halves legislator pay, fines members who are no-shows for session, allows benefits while in office but none after leaving office, and allows for member reimbursement of actual expenses up to a limit.  The big difference in the Turn Michigan Around proposal is that it eliminates term limits.  That's a big and interesting difference.

Finally, The Proportional Senate folks in Michigan want to "update our government" by changing the state senate "to provide a proportional system to be voted on at large throughout the entire State while still providing a balance by preserving the district system in the House of Representatives."  They argue that the one-person, one-vote court decision of the 1960s and subsequent redistricting of both chambers created a "redundant system" of representation, one that "inherently breaks down into a two party system" and "denies representation to the minority positions in the various districts..."

The Michigan proposals offer just a glimpse at the range of ideas that voters may face this fall in states that provide for initiative and referenda.  Stay tuned as things heat up by checking NCSL's I&R web page and ballot measure tracking.  It's game time!

Youth Lead Change in Washington Civic Education Curriculum

by Ted McConnell

This is a story about the power of youth, positively influenced, to lead us. It's a story about young folks empowered by effective civic learning to bring about positive change. It's a story about a youth-led effort to increase civic learning opportunities for all students.

Patti McMaster (photo) is a social studies teacher at Evergreen High School in Vancouver, Washington. Patti is one of those dedicated, talented teachers that make all of us want to redouble our efforts to help all teachers provide effective civic learning to their students.

Patti teaches several civics classes and uses several supplemental curricular programs. Late last year Patti was helping a group of her AP youth and government class prepare for their participation in the Center for Civic Education's "We the People: the Citizen and the Constitution" program. Several of the questions the students must address in the We the People program this year ask the students to compare the US Constitution to their state constitution. The students told Ms. McMaster that they could not complete that part of the exercise because they had never received any instruction in state government. Sure, they had all taken a mandated state history course a few years back, but they explained that that course dealt with Lewis and Clark, the fur trade and the missionaries who helped build Washington State--not a word about the state constitution, state government and how a citizen can and should engage in the affairs of their state.

Well, these inspired students decided to do something about that. What could this group of high school students living 120 miles away from the capital in Olympia do to improve instruction? Plenty! As a group they decided to work on increasing instruction on state government and civic affairs as a public policy project.

Long Time Legislative Auditor Set to Retire

by Bob Boerner

According to The Associated Press State & Local Wire, the Treasure State is losing the long-serving legislative auditor to retirement.  Montana's legislative auditor since August 1985, Scott Seacat, will retire on June 30, 2008.

Mr. Seacat is the third legislative auditor in Montana history since the office was created in 1967 and is the longest-serving.  He has worked in the Legislative Audit Division for 32 years and headed it for 24 years.  He estimates that audits over the past 32 years have saved Montana taxpayers more than $350 million.  The Montana Legislative Audit Division does independent financial audits and performance audits of state government agencies and programs.

A total of 45 state legislatures, including Montana, have established these specialized evaluation offices to help state legislators meet their critical oversight responsibilities.  There are only three directors who have served longer than Mr. Seacat.  George Schroeder, in the South Carolina Legislative Audit Council, has served as Director since November 1975 and Jim Nobles, in the Minnesota Office of the Legislative Auditor, has served as Legislative Auditor since 1983.  And, John W. Turcotte was Executive Director of the Mississippi Joint Legislative Committee on Performance Evaluation Expenditure Review (PEER) from 1978 to 1995, Director of the Florida Office of Program Policy Analysis and Government Accountability (OPPAGA) from 1996 to 2003 and Director of the North Carolina Program Evaluation Division since June, 2007.

Section 5

by Tim Storey

If you are a legislator in a state where all or part of the state is covered by section 5 of the federal Voting Rights Act, the title of this post needs no explanation.  For everyone else, section 5 is a provision in the 1965 Voting Rights Act that requires 16 states to gain approval from the federal government (either the U.S. Department of Justice or the federal district court in Washington, D.C.) any time the state passes a law that deals with voters or elections.  That includes any redistricting plan.  So when a legislature passes, and a governor signs, a law related to elections in a state covered by section 5, it cannot take effect until the federal government approves it--a process known as pre-clearance.  All or part of 16 states are covered by section 5.  It was an extraordinary remedy written into federal law to address a long history of insidious discrimination against minority voters. 

In 2007, a large bipartisan majority of Congress reauthorized section 5 of the Voting Rights Act.  Shortly after the reauthorization, the Northwest Austin (Texas) Municipal Utility District Number One (NAMUDNO) filed a direct challenge to the continued enforcement of section 5 before a three judge panel of the federal district court in Washington, D.C..  The DC court heard the case last October and a decision is expected any time. 

Most legal scholars and observers believe that regardless of the district court decision the NAMUDNO case will be appealed directly to the U.S. Supreme Court and lead to a high court decision on the constitutionality of section 5.  California Institute of Technology history professor J. Morgan Kousser has authored a lengthy law review article outlining the history of section 5 and discussing the NAMUDNO case.  Legislators and staff in section 5 states as well as others interested in the convergence of redistricting and the Voting Rights Act may want to read Kousser's article in the March 2008 Texas Law Review.  The article offers a perspective for understanding this complex area of law that could be headed for serious upheaval.

The Pragmatism and Charisma of Willie Brown

by Karl Kurtz

"Willie Brown, Well-Suited to Politics," is a very engaging seven minute interview by Michelle Norris with the former speaker of the California Assembly and mayor of San Francisco on NPR's All Things Considered. It is based on Brown's new book, Basic Brown: My Life, Our Times.  The interview ranges from his advice about clothes for politicians to his thoughts about the Democratic presidential campaign and the role of women and minorities in politics.  NPR's Web page also has excerpts from the book about his views on sex scandals and his own social life.

But I particularly liked the portion of the interview in which Brown demonstrates the Lyndon Johnson style of political pragmatism for which he is known.  Asked what are the most important lessons to be learned from the book, he says:

...Your life should not be taken so seriously that you attempt to be perfect at everything you do....  You must understand that in the world of politics your views hold no more sway and have no more effectiveness than that which you are able to gather as a majority.  You find very quickly that that means that you must tolerate different views, sometimes views that may prove to be better at building a consensus.  Once you adjust to those kinds reality, you are in a position, just maybe, to be a successful politician.

More than 30 years ago I spent a couple of weeks in China with a delegation of state legislators that included Willie Brown.  This was very early in the opening up of China to westerners, and all of us in the group were objects of great curiosity on the streets of Beijing or Shanghai to people who were not used to seeing whites, much less African-Americans.  But the guy who really drew a crowd was Willie, not just because of the color of his skin but because of his personal magnetism.  His charisma, which was always evident within our delegation, was also obvious to Chinese on the streets who didn't know who he was and didn't speak his language.  A man who craves attention, he loved every moment of it when crowds gathered around him on street corners.

2008 State Legislative Election Outlook

Lou Jacobson has an excellent piece today forecasting 2008 state legislative elections in his "Out There" column for stateline.org.  He rates each of the chambers as strong or likely Republican or strong or likely Democratic and puts nine in the tossup category.

Unusual Eviction of Member from North Carolina Legislature

by Karl Kurtz

Meeting in special session today, the North Carolina General Assembly took the unusual measure of evicting Rep. Thomas Wright from office.  Here is an excerpt from the AP story in the News & Record:

The state House voted overwhelmingly Thursday to remove Rep. Thomas Wright from office, the first such expulsion of a lawmaker from North Carolina's General Assembly in 128 years.

The House voted 109-5 in favor of booting the Wilmington Democrat, who is accused of mishandling or hiding about $340,000 in loans and campaign and charitable contributions. At least 80 votes were needed to kick him out of office....

Only about a dozen lawmakers have been booted from office in state history, the most recent being Rep. Josiah Turner in 1880. The last to face such a potential fate, former House Speaker Jim Black, chose instead to resign in 2007 as prosecutors closed in during a corruption investigation that ultimately sent him to federal prison.

Wright remains defiant, insisting he has done nothing illegal. He is scheduled to stand trial later this month in Wake County on charges almost identical to those considered by the ethics panel.

GOP Rep. Paul Stam, the ethic committee's vice chairman, was blunt in his assessment of the evidence presented at the hearing last month.

"This is really bad behavior. This is stealing. Technically what it is, is embezzlement," Stam said Thursday before he voted to expel Wright. "This kind of behavior is not acceptable, to me, to you, to anyone ... it is unbecoming to a member of this body."

A 2006 NCSL survey of the states showed that expulsions are also rare in other states.  Since the 1970s we found only seven cases of members being expelled from state legislatures.

You can find much of the documentation of the case on Gerry Cohen's blog, Drafting Musings.

Supreme Court to Hear Major Redistricting Case

by Tim Storey

It was starting to look as though the decade would wind down quietly without a blockbuster redistricting case from the U.S. Supreme Court.  There have been a couple of key decisions such as the partisan gerrymandering case from Pennsylvania and the Texas mid-decade redistricting case, but neither of those decisions packed a wallop that dramatically changed the rules as we know them now.  However, on Monday the Supremes agreed to hear a redistricting case on appeal from the North Carolina State Supreme Court that could lead to a major new chapter in redistricting law.  My beloved home state has given us many landmark redistricting cases including Thornburg v. Gingles and Shaw v. Reno, so this case, Bartlett v. Strickland, could extend North Carolina's legacy in redistricting litigation.

The Bartlett case comes from Pender County in southeastern North Carolina--just north of Wilmington.  The North Carolina Legislature enacted a State House redistricting plan that partially divided Pender County in order to draw House District 18 with a 39 percent African-American voting age population. 

The Legislature said that this district was required by section 2 of the Voting Rights Act and thus necessitated the division of Pender County into two state house districts, even though that violated a state constitutional provision to keep counties whole when possible and when not in contravention of federal law. 

The state of North Carolina argued that the black population, if kept whole in one district, could elect a candidate of their choice due to consistent and measurable cross-over voting by white voters, so the district was necessary to comply with section 2 of the federal Voting Rights Act (VRA). 

Section 2 of VRA applies to all 50 states, like most federal laws, meaning that any precedent in an eventual opinion in this case could have far reaching effects for all states when redistricting cranks up in a couple of years.  Anyway, back to the case at hand...

The North Carolina Supreme Court eventually ruled against the state, holding that established redistricting case law only mandates that a state draw a majority-minority district in compliance with the Voting Rights Act when a minority group is sufficiently large enough to be 50% or more of a single member district.  Therefore, the legislature violated the state constitutional mandate to keep Pender County whole in the districting plan.  This is a vast oversimplification, so I encourage you to read the decision itself here, and read the chapter of NCSL's redistricting law book on the Voting Rights Act here if you really want detailed background.

More details and a strange twist to the story after the jump.

Federal Mandate Would Hurt Most-Needy Students

by Michelle Blackston

A little-known provision in the College Opportunity and Affordability Act of 2007 would strip states of their higher education budgeting authority by punishing those states that don't maintain or increase such funding appropriations. Called a Maintenance of Effort or MOE, if not met, then states would lose vital federal assistance for the most needy students.

In this podcast, David Shreve and Robert Strange, NCSL's higher education education policy analysts, discuss the details of this measure and what states can do to preserve their authority to determine higher education spending.

Listen Now!