The Thicket at State Legislatures

NCSL loses a Friend

by Tim Storey

It is with deep sorrow that I report the passing of one of NCSL's great friends. Marshall Turner died yesterday in a Maryland hospital only a few short years after retiring from the U.S. Census Bureau. While at the Census Bureau, Marshall worked hand-in-hand with NCSL for nearly 30 years. He was instrumental in the development of the Bureau's redistricting data office and the implementation of the PL 94-171 law that governs census redistricting data. During his time at the Bureau, Marshall probably attended hundreds of NCSL meetings and conferences and was a constant source of information and wisdom. He must have given the "census 101" talk at least 50 times, yet he always cheerfully agreed to do it when called upon. Marshall was a leading authority on redistricting in the United States and was always available to legislators and legislative staff who had questions about the census or redistricting. And he never failed to look out for the interests of legislatures within the Bureau.

Most importantly, Marshall was a genuine nice and decent guy. He always had a smile on his face even when things seemed to be going off the proverbial rails. He was a mentor and a friend. Marshall had a wonderful sense of humor, and even in the often over-heated world of redistricting, he maintained his wit and can-do attitude.

Since he retired, Marshall would check-in with me periodically to catch up on what was going on with redistricting or to chat about the success of North Carolina Tarheel basketball. I loved hearing from him. My memories of Marshall are all good ones. He will be greatly missed.

NCSL will dedicate the upcoming Redistricting Law 2010 publication to Marshall Turner. He will be remembered fondly and sorely missed.

Friends and colleagues are welcome to join the family for memorial services on Friday, October 16, 2009 at 11:00am at Hope Presbyterian Church at 1100 Enterprise Road in Mitchellville, Maryland 20721. In lieu of flowers, donations in his memory may be made to Hope Presbyterian Church.  Condolences may be sent to Mrs Marshall Turner (Nancy), 12504 Cambleton Drive, Largo, Maryland 20774.

The Malapportioned Congress

by Karl Kurtz

In "Expand the House?," Peter Baker reports on a New York Times blog that a group has filed a lawsuit in Mississippi asking the courts to more than double the size of the U.S. House of Representatives to overcome the disparity in district sizes caused by the requirement that each state have at least one member of the House.

The most populous district in America right now, according to the latest Census data, is Nevada’s 3rd District, where 960,000 people are represented in the House by just one member. All of Montana’s 958,000 people likewise have just one vote in the House. By contrast, 523,000 in Wyoming get the same voting power, as do the 527,000 in one of Rhode Island’s two districts and the 531,000 in the other.

That 400,000-person disparity between top and bottom has generated a federal court challenge that is set to be filed Thursday in Mississippi, charging that the system effectively disenfranchises people in certain states. The lawsuit asks the courts to order the House to fix the problem by increasing its size from 435 seats to at least 932, or perhaps as many as 1,761. That way, the plaintiffs argue, every state can have districts that are close to parity.

The almost 2:1 disparity between the population of the Nevada district and Wyoming's one seat is, of course, far greater than the standard of +/-5 percent that the courts have applied to state legislatures. But the one-person, one-vote decisions of the early 1960s were aimed at state legislatures and have never been applied to Congress.

I haven't read the briefs, but this court case seems like a stretch to me.  It will be interesting to follow.

I blogged about "What's the Right Size for a Legislature?" in 2006.  Looking back at that post, I am gratified to find that it's still drawing some thoughtful and interesting comments, several as recently as July of this year.

Anniversary of the Gerrymander

by Karl Kurtz

This message arrived today on NCSL's redistricting listserv from Kim Brace at Election Data Services, Inc.:

Happy Anniversary to all those involved in redistricting:

On this date in 1812 - Massachusetts Governor Elbridge Gerry signs a redistricting law that favors his party — giving rise to the term "gerrymandering."

The shape of the legislative district that Gov. Gerry supported resembled a salamander.  Here is Wikipedia's etymology of the word:

Printed in 1812, this political cartoon illustrates the electoral districts drawn by the Massachusetts legislature to favor the incumbent Democratic-Republican party candidates of Governor Elbridge Gerry over the Federalists, from which the term gerrymander is derived. The cartoon depicts the bizarre shape of a district in Essex County, Massachusetts as a dragon. The painter, Gilbert Stuart, likened it to a salamander, and the editor, Benjamin Russel, advised "Better say a Gerrymander." The name stuck.

Big Cities Still Disadvantaged in State Legislatures

by Karl Kurtz

Did you ever go up to Albany from this city [New York] with a delegation that wanted anything from the Legislature?  No?  Well, don't.  The hayseeds who run all the committees will look at you as if you were a child that didn't know what it wanted, and will tell you in so many words to go home and be good and the Legislature will give you whatever it thinks is good for you.

So spoke the legendary Tammany Hall leader and New York state Senator George Washington Plunkitt in 1905.  In an age of malapportionment that favored rural areas over urban ones, his statement is not surprising, regardless of the state--you could  have said the same about Birmingham, Alabama, Burlington, Vermont or Chicago, Illinois.  But most casual observers and many scholars of state legislatures believe that this problem of big cities being disadvantaged in state legislatures went away after the one-person, one-vote decisions of the 1960s.

Not so, say political scientists Gerald Gamm and Thad Kousser in a fascinating paper, "The Embattled Metropolis: Big Cities in American State Legislatures," presented at the recent meeting of the American Political Science Association.  To study this question they have developed a remarkable database that catalogs 165,000 bills in 13 states, 1880-1997.  They identified 50,000 (30%) of these bills as ones that dealt primarily with local government.  Comparing the success rates of bills dealing with the largest city in each state to those of smaller cities, they found that in every period, before and after the one-person, one-vote decisions, far fewer big city bills pass than smaller city bills.

Lower house passage rates, over time

Notes: The data for this table are drawn directly from the legislative journals of Alabama, California, Illinois, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New York, Texas, Vermont, Virginia, and Washington.

Voter ID Laws and Comprehensive Audits

by Meagan Dorsch

Many states have spent time considering voter ID laws for the upcoming election season. A new Supreme Court decision upholding Indiana's requirement of a photo ID to vote guarantees more state legislatures will consider the issue in 2009. During one of our session at NCSL's Legislative Summit in New Orleans, legislators were able to learn about the broader implications of the Court's decision. Listen to this podcast.

Also from the election front, many states are considering comprehensive audits to review how officials run elections. Find out why legislatures should take the time to consider how election audit programs are structured and whether they are worth the effort. Listen to this podcast today!

Initiative Fun in Michigan

by Brian Weberg

Michigan voters are going to have some fun this fall if sponsors are able to get a raft of government reform proposals certified in time for the ballot.  In addition to the proposed measures to create a part-time legislature with reduced pay and to elect state senators statewide on a proportional basis that we reported here a few months ago, recent news from the Wolverine State highlights what some are suggesting is a stealth campaign to shift the state's political balance of power under the guise of government reform. 

Proponents argue that the measure brings long-needed change to state government.  The lengthy amendment includes reductions in the number of members in the legislature, pay cuts to the governor, legislators and judges, new financial disclosure rules, lobbying restrictions and reform of the redistricting process. 

Michigan Republican Party chairman Saul Anuzis, comically struggling with a fold out copy of the initiative in a video on YouTube, commented "I've seen Michelin maps of Europe that were smaller and easier to read."  Republicans have come out strongly against the proposal, while the spokesperson for the measure is Dianne Byrum, a termed-out state legislator who completed her legislative career as leader of the House Democrats in Lansing.  However one judges the merits of the reform, it's clear that it is adding fuel to the already scorched political landscape in Michigan.   

What Happened at NCSL's Spring Forum?

By Meagan Dorsch and Michelle Blackston

How can states address their educational capacity for training nurses? What effects do immigration raids have on families and how can child welfare agencies be prepared? Plus, the U.S. Supreme Court will hear a case from North Carolina during its next term that could dramatically change the rules for 2010 redistricting for all states.

These are just some of the sessions held last month at NCSL's Spring Forum in Washington, D.C. This year, more than 600 state legislators and legislative staff were able to attend. 

Listen and enjoy over 12 different sessions highlighting federal and state policy issues ranging from health care and REAL ID to the 2008 Elections.

Arizona Redistricting Litigation--a 7 Year Journey

by Tim Storey

In the last round of redistricting, Arizona employed a redistricting commission, enacted by voter initiative in 2000, for drawing state legislative and congressional districts.  The constitutional amendment that established the commission also mandated that "to the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals."  This made Arizona the first and only state to formally require competitiveness of districts as a binding criteria in the redistricting process.  It also led to a prolonged wave of litigation that took another turn on Thursday.

The Arizona state Court of Appeals ruled on Thursday that the Arizona Independent Redistricting Commission successfully applied the competitiveness criteria when it initially drew legislative maps for 2002 elections.  A group called Arizona Minority Coalition for Fair Redistricting had successfully convinced a Maricopa County judge to invalidate the plans drawn by the commission because they did not include enough legislative districts where either a Republican or Democratic candidate had a reasonable chance to win.  The Court of Appeals,  hearing the case for the second time, again overturned the trial court decision saying that the "Commission considered competitiveness and made a finding that a more competitive plan would cause a significant detriment to the other five constitutional goals." The Court's full opinion is available here.   

The case was originally filed in 2001 and is significant beyond Arizona because many states are considering redistricting reform in the ramp-up to the 2010 redistricting cycle.   A handful of states are looking at the issue of whether to require district plans to maximize competition in addition to complying with many other criteria including one-person, one-vote. 

An overview of how states conduct redistricting is available on NCSL's website here.

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.

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.