The Thicket at State Legislatures

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.

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.