The Thicket at State Legislatures

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.

Maryland Senator Upsets 10-term Congressional Incumbent

by Tim Storey

State legislators continue to win primaries for congressional seats which is no huge surprise given that over half of members of congress are former legislators.  In Maryland's state primary yesterday, State Senator Andy Harris (right) upset U.S. Rep. Wayne T. Gilchrest in the Republican primary for U.S. House district 1 representing Maryland's eastern shore and other parts of the state.  Harris won in the conservative district by challenging Gilchrest from the right and asserting that Harris was the true Reagan conservative.   

U.S. House Representative Albert Wynn, an 8-term incumbent and himself a former legislator, was outflanked to the left and upset in the Democratic primary for U.S. House district 4 by party activist Donna Edwards.  According to the Baltimore Sun, "she accused (Wynn) of being too moderate for his district."  Edwards is expected to win the Democratic district largely comprised of Prince George's county in the fall.   And Harris will be the favorite to win his GOP-leaning district. 

These two primary losses by moderate congressional incumbents from each party will surely fuel the simmering debate about redistricting being a main source of partisan polarization in Congress.  As the theory goes, when districts are heavily tilted toward one of the two parties, the only real race is in the primary.  And in the primaries, the more extremist candidates within the party have the advantage.  Those candidates tack heavily to the side to appeal to the party base to win the primary and then cruise to victory in the general election.   With fewer districts where the two parties have a reasonable shot to win in the general election, there are fewer women and men being sent to Congress who are inclined to compromise and moderate positions...thus hyper-partisanship runs amok.  There will always be hard-core conservative and liberal districts no matter how redistricting is done, but the question becomes whether there is enough balance to maintain some moderating voices in the first branch. 

But this is still just a theory, and the impact of redistricting on competitiveness and polarization remains unclear. For example, the U.S. Senate seems to be as polarized as the House, but of course, redistricting plays no part in how U.S. Senate districts are drawn--duh?  And as previously noted here in the Thicket by North Carolina legislative bill drafting guru Gerry Cohen, some studies suggest that redistricting is only a minor factor in how many "safe" and competitive districts there are. 

Imagine a Legislature with 11,000 Members

by Karl Kurtz

With a population of about 1.2 million (2000 census) and 400 members in its House of Representatives, New Hampshire has the smallest legislative districts in the country.  Recognizing that New Hampshire has many multi-member districts that make some constituencies larger, on average Granite State legislators represent 3,100 legislators.

California, which has only 40 members in its Senate and 80 in the Assembly, is at the opposite extreme:  Golden State senators have districts that average 847,000 people and Assembly members 424,000 constituents.

Struck by this extreme difference between the two states, Donald Manning, chief of staff to Speaker Terie Norelli in New Hampshire, calculated how many legislators the California Assembly would have if it followed the New Hampshire small district model.  The answer: 10,926! 

How would you like to be the party whip charged with counting votes in that legislature?

I took Donald's methodology of dividing the average size of New Hampshire House districts into total population one step further and calculated the size of the U.S. House.  The result is 91,842 members.

If you want to have some fun, take your state's population, divide it by 3,100, and you will get the size of your state's house of representatives according to the New Hampshire model.  For a much more serious discussion of the size of legislatures and legislative districts, see "What's the Right Size for a Legislature?"  You can find the size of each state's legislative districts here.

Play the Redistricting Game

by Tim Storey

Redistricting reform advocates released an online redistricting game today on the Internet.  The Washington Post ran a story yesterday about the game.  Try your hand at drawing a plan for the State of Madison that protects incumbents or a plan that complies with the Voting Rights Act in the State of Hamilton.

Tied OK Chamber a Model for the Rest of the Country?

by Karl Kurtz

The Paul's Valley (Oklahoma) Daily Democract has an amusing editorial, "Oklahoma is a model for the rest of the nation," that comments on the benefits of the Oklahoma Senate being tied this year and reads in part:

For decades - in fact since statehood - Democrats have controlled the Oklahoma Senate, which often times made for some dramatic political battles.

Now, for the first time in state history, the Senate is evenly divided between Republicans and Democrats and they seem to be getting along better than ever.

Maybe we've hit on something here. If we could somehow get all of the voters in Oklahoma to consistently elect an evenly divided House and Senate every two years, we just might get some things done.

As it goes on to talk about how the state could be redistricted in a manner that would always produce ties, the Daily Democrat has its tongue firmly planted in its cheek.  But in fact, tied legislative chambers are not unusual across the country, and they sometimes do lead to improved interparty communication and cooperation, as explained in "Legislative Deadlock: What if it Happens to You?"

Polling Nuggets from California

by Tim Storey

The nonpartisan Public Policy Institute of California released an extensive statewide poll of Californians yesterday that is chock full of eye-opening findings.  One conclusion should probably come as no surprise.  A proposal to modify legislative term limits in California may be a tough sell.    According to the poll, 68% of likely voters think term limits have been a good thing, and 64% oppose a preliminary proposal to change the provisions of California legislative term limits.  However, the poll question did not make it clear to respondents that the proposal would actually shorten the overall amount of time one person could serve in the legislature.  A joint study by NCSL, the Council of State Governments and the State Legislative Leaders Foundation titled Coping With Term Limits and released last August found that term limits have generally had negative effects on the institution of the legislature.   (The report is not available online but you can read about its findings in an earlier Thicket Post here and order a hard copy here).   Apparently, studies akin to NCSL's have not had much influence on average Californians who still believe term limits are good public policy. 

The poll also reports that 41% of California adults approve of the job of the Legislature while only 42% disapprove.  Believe it or not, those are good numbers compared to previous polls on legislative job ratings.  Redistricting reform does not appear to be a burning issue for  folks on the left coast.  Only 37% of those polled think the redistricting process needs "major changes" with 27% saying minor changes would suffice.  In contrast, 71% of respondents say the California health care system needs "major changes" with 16% calling for "minor changes."

If Redistricting Started Tomorrow?

by Tim Storey

For a small group of my friends, the redistricting junkies in legislatures, the thought of redistricting tomorrow brings a rush of adrenaline and eagerness to plunge into maps and data. Yet for many legislators, the notion of imminent redistricting triggers a sense of overwhelming dread.  And for almost all other Americans, it evokes a response of, "huh?"

Redistricting is really not that far away, and in fact, elections in two states this fall will establish the final lineup of who will redraw the lines using 2010 census data. Legislators and governors elected this November in Louisiana and Mississippi will be the ones to redraw state legislative maps before their next elections in 2011 and perhaps U.S. House districts as well.  And some legislators elected this year in Virginia and New Jersey are guaranteed seats at the redistricting table.  The critical pre-redistricting elections are  upon us.

And which party is currently poised to take most advantage of redistricting in 2010?

Reapportionment is Coming

by Tim Storey

In late December, the hard working staff at the U.S. Census Bureau released new state population estimates for each state. The estimates were for July of 2006 and offered a peek into the future as to who the winners and losers might be in the 2010 reapportionment sweepstakes. 

Reapportionment, a term often confused with and used interchangably with the word redistricting, is the function that the Clerk of the U.S. House performs after receiving the decennial census data at the end of each decade.  The Clerk runs the state population data through a formula established in U.S. statute to determine how many seats each state gets in the U.S. House.  The number of electoral votes for the president is also adjusted following each reapportionment.

After the release of the 2006 estimates, two demographic analysts, and old friends of NCSL's Redistricting and Elections Committee, took the new data and ran it through the formula to look at where states stand now and where they might be in 2010.  Both analysts noted that Hurricane Katrina's heavy toll on Louisiana would also likely include the loss of at least one seat in Congress.  It was possible that Louisiana was destined to lose a seat under normal population shifts, but it looks like Katrina sealed the fate. 

Redistricting consultant Kim Brace of Election Data Services ran the 2006 estimates through the apportionment formula and found that if the 2006 data were used, six states would gain seats in the U.S. House (and electoral votes), and seven states would lose a seat. The winners: Arizona, Florida, Georgia, Nevada, Texas (+2) and Utah.  And the states losing seats: Iowa, Louisiana, Massachusetts, Missouri, New York, Ohio and Pennsylvania.  Brace's full analysis is available here. 

Redistricting consultant Clark Bensen of Polidata Incorporated took the 2006 estimates and projected them forward to 2010 and found even more change.  Bensen projects these big gainers: Texas (+4), Florida (+2), and Arizona (+2) with Georgia, Nevada, Oregon, Washington and Utah each gaining one seat.  Bensen's projected losers: Illinois, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York (-2), Ohio (-2) and Pennsylvania.  Furthermore, Bensen predicts that the average number of people in each U.S, House district would be close to 725,000 after the 2010 round of redistricting.  The complete Polidata analysis is here.

The 2006 estimates reveal a cornucopia of interesting demographic trends including that my beloved home state of North Carolina has replaced New Jersey in the top ten most populous U.S. states.  And if the estimates holds up through the 2010 census, it looks like California might not gain representation in Congress for the first time since it became a state in 1850.

 

Redistricting is not the Cause of Non-Competitive Races

by Gerry Cohen

[Ed. note: This originally appeared as a comment on Increasing Voter Turnout II.  We thought it was important enough to publish it as a guest post.  Gerry Cohen has been director of bill drafting for the North Carolina General Assembly since 1981 and was staff co-chair of NCSL's Redistricting Task Force in 1993.]

Karl Kurtz' post "Increasing Voter Turnout II"  reports on a recent recommendation by the American Political Science Association (APSA) Standing Committee on Civic Education and Engagement  that states should use nonpartisan commissions to draw congressional and state legislative districts, saying that this step is "...the single most important thing that could be done to increase competitiveness and spur political participation," (p. 58). Kurtz notes "Despite their enthusiasm for this reform, the authors do not present any evidence of a link between competitive legislative districts and levels of political participation."

In fact, recent political science literature shows that redistricting, whether by state legislatures or nonpartisan commissions, is not the cause of the lack of competitiveness in congressional races.

A recent Journal of Politics article, "Incumbency, Redistricting, and the Decline of Competition in U.S. House Elections," by Alan I. Abramowitiz, Brad Alexander, and Matthew Gunning suggests that the decline in competitiveness is actually caused by demographic changes, increased partisanship by voters, the power of incumbency and the inability of challengers to raise campaign funds, and that "redistricting appears to have little or nothing to do with this trend ..." (p.86)

For Redistricting Geeks

by Karl Kurtz

In case you haven't found the full text of the Supreme Court's decision in the Texas redistricting case online, we'll provide you with the link.  Peter Wattson, the Minnesota Senate's legislative attorney/guru who tracks redistricting law has posted a summary of the case that is more palatable for the casual reader and puts it in the context of other redistricting decisions in the 2000's.

And my colleague Tim Storey, who is traveling this week and would otherwise be blogging on this subject, is quoted in yesterday's New York Times on the potential impact of the decision on other states.

Redistrict at Will

by Karl Kurtz

The Supreme Court today upheld most of the Texas Legislature's mid-decade redistricting plan that resulted in a substantial gain of Republican seats.  They struck down only a portion of the law dealing with the Voting Rights Act, ruling that Hispanic voters had been denied the right to elect a candidate of their choosing in two districts.

The court explicitly said that legislatures can change congressional district boundaries at any time, not just in the constitutionally required period after each decennial census.  Will this lead to more frequent redistricting in the states?  I doubt it.  I agree with Loyola University's Richard Hasen, who is quoted in the Washington Post story linked to above as saying, "Some people are predicting a rash of mid-decade redistricting. I am skeptical.  It would be seen as a power grab in a lot of places."

A Citizen's View of the Earth

by Pam Greenberg

Spellbinding.  Amazing.  Addictive.  Those are some of the adjectives used to describe Google Earth.  Author James Fallows, in an Atlantic Monthly article, describes his first experience with Google Earth as a truly memorable moment; one when he realized the computer had just done something important and new.

Legislatures with geographical information systems (GIS) offices (like Minnesota's) and legislators and staff who have used GIS programs for redistricting and other purposes probably won't see Google Earth as terribly revolutionary, but for the rest of us, it's a whole new world.