The Thicket at State Legislatures

Electoral Losses by President's Party Include State Legislatures

An interesting article in Sabato's Crystal Ball on how the president's party, from Truman through Obama, consistently loses seats in Congress and statehouses speculates about what state politics would look like today if Sen. John McCain had won the 2008 presidential election.

Again, let’s just imagine what would’ve happened if we hold all else equal in 2008, except that McCain wins instead of Obama. Not only do Democrats probably retain their state legislative power (they held total control of 27 states after 2008), but they also would probably have retained influence over redistricting in at least some of these aforementioned states. Again, Obama’s 2008 victory — and his subsequent rebuke in the 2010 midterm — has had long-term repercussions for Democrats. For example, it is possible that the 2010 election essentially ceded control of the U.S. House to the Republicans up through the year 2022, when the next redistricting takes effect — determined in good part by the outcome of the 2020 contests.

The article includes lots of historical political detail and justification for this hypothetical and a nice shout-out for NCSL's Tim Storey, who provided the state legislative data and some of the analysis.

Supreme Court Decides Takings Case

By Lisa Soronen

In a bright media glare during its last week in session at the end of June, the Supreme Court issued rulings in two same-sex marriage cases, struck down Section 4 of the Voting Rights Act, and issued a ruling regarding affirmative action in universities.  More in the shadows, the Supreme Court also issued its third ruling of the term involving takings.  The State and Local Legal Center (SLLC) filed an amicus brief, which NCSL signed onto, in this case.     

In Koontz v. St. Johns River Water Management District the Supreme Court held 5-4 that there must be a “nexus” and “rough proportionality” between the government’s conditions for issuing a land-use permit and the effects of the proposed development, even when the government denies the permit and the demand is for money. 

Mr. Koontz sought permits to develop a portion of wetlands that he owned in Florida.  St. Johns River Water Management District told Koontz he could proceed with the development if he would reduce its impact or, alternatively, pay for improvements on District-owned property several miles away.  Koontz refused, was denied a permit, and sued, claiming his property was taken without just compensation. 

In two previous Supreme Court cases, Nollan and Dolan, the Court held that the government may condition approval of a permit on the dedication of property to the public as long as there is a “nexus” and “rough proportionality” between the property demanded and the social cost of the applicant’s proposal.  The Florida Supreme Court did not apply Nollan and Dolan for two reasons.  First, the District had denied the application because Koontz refused to make a concession rather than issuing the permit subject to conditions, and so had not “taken” anything.  Second, the District requested money instead of an interest in land. 

The Supreme Court reversed the Florida Supreme Court and applied Nollan and Dolan to both permit denials and demands for money.  All nine Justices agreed that Nollan and Dolan should apply whether or not the permit is ultimately issued.   According to the Court, Nollan and Dolan reflect the reality that the government may abuse the permitting process to coerce people into giving up land by denying a permit worth far more than the property the government wants to take.  At the same time, land uses can impose social costs that land dedications can offset.  Five Justices agreed that Nollan and Dolan should apply to monetary conditions to avoid the government demanding “extortionate” amounts of money in exchange for a permit.  The dissenting Justices were sympathetic to the argument in the SLLC’s amicus brief that there is no principled way to distinguish between demands for money in the land use context and taxes.

In a New York Times Op-Ed SLLC brief writer and University of Vermont law Prof. John Echeverria writes that this case “creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals — and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause.”

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

The States, SCOTUS, and Same-Sex Marriage

By Victor Kessler

The U.S. Supreme Court's decisions on two same-sex marriage cases are rightfully seen by both supporters and opponents as part of a larger debate on the future of same-sex marriage in this country. These cases also reveal a split among the Justices about the federalism implications of the issue and the proper forum for this historic debate.

United States v. Windsor, which struck down the Defense of Marriage Act (DOMA), though nominally decided as an Equal Protection case under the Fifth Amendment, discusses the role of state authority over marriage as a matter “of central relevance” to the ruling. Justice Kennedy’s majority opinion hammers in the traditional deference the federal government has typically shown towards state definitions of marriage. States had always determined who was or could be legally married for the purposes of their own and, with few exceptions until DOMA, federal benefits and programs. DOMA not only redefined marriage for federal purposes, it intruded into an area of traditional state authority and snatched away rights that states had granted to their citizens.

By extending federal benefits to all married couples, Windsor has been hailed as a victory for proponents of same-sex marriage. But in the Court’s reasoning, same-sex marriage is only protected insofar as states choose to support it. If Windsor’s logic prevails, the states, not Congress or the federal courts, will be the primary forum for debate over same-sex marriage in upcoming years.

Hollingsworth v. Perry is more unusual. Chief Justice Roberts, writing for an odd lineup of Justices Scalia, Ginsburg, Breyer, and Kagan, found that the challengers to a federal district court’s decision that invalidated California’s Proposition 8, which banned same-sex marriage, lacked standing to appeal. Normally, a state government will defend its own laws from challenges in the courts. However, state officials declined to defend the ballot initiative outlawing same-sex marriage in the Golden State, so the California Supreme Court unanimously decided that the bill’s citizen sponsors could represent the state’s interest in litigation. The Supreme Court disagreed, holding that the sponsors had no special interest in defending the legislation beyond that of an ordinary citizen, which was insufficient to create a “case” or “controversy” that the high court could hear.

The dissent, written by Justice Kennedy, admonished the majority for ignoring California’s interpretation of its own laws. The point of a ballot initiative system is to allow ordinary citizens to bypass officials with whom they disagree. The California Supreme Court understood that and was not willing to give politicians the backdoor veto of neglecting to defend voter-sponsored initiatives in court. The dissent argued that the state should determine who could or could not represent its interests and that the majority’s ruling undermined a basic principle of state sovereignty in order to avoid a political issue. The dissenting justices would have accepted California’s decision on standing and ruled on the case’s merits. Perry may lead to trouble for ballot-initiative systems in the future, though it will likely be limited to the unusual circumstance where not a single state official is willing to defend a voter-sponsored law.

The cases send mixed messages on federalism. On the one hand, Windsor suggests that the Court will champion state choices with respect to same-sex marriage over federal interference, a line of reasoning that may tip the scales against future judicial efforts to rule on the constitutionality of state decisions, as the Chief Justice points out in his dissent. On the other, Perry lets stand a federal judge’s order declaring a citizen-backed ban on same-sex marriage unconstitutional and contradicts the California Supreme Court’s ruling on state election law. What the two cases have in common is that both push responsibility for ultimately deciding the issue away from the Supreme Court, in Windsor to the states and in Perry back down to the federal trial court. In light of these decisions, only one thing is certain: in the same-sex marriage debate, it will still be up to the states to make the first moves.

For further reading on the same-sex marriage cases and federalism, SCOTUSblog offers an in-depth look.

Victor Kessler is a Legal Intern at the State and Local Legal Center

The U.S. Senate Without the 17th Amendment

By Karl Kurtz

Jeopardy quiz:To gain the majority in the Illinois General Assembly in 1858. Read below the jump to find the question.

If the 17th Amendment had not been passed and U.S. senators were still chosen by state legislatures, the Senate likely would have been tied, 50-50, at the start of the current (113th) Congress. After the death of New Jersey Sen. Frank Lautenberg (D) last month and Gov. Chris Christie's appointment of Jeff Chiesa (R) to replace him, Republicans would have a 51-49 margin in the Senate.

I was inspired to make this calculation by this year's 100th anniversary of the 17th Amendment, passed by the Congress in May 1912 and adopted by the states, May 31, 1913. This Amendment to the Constitution took away the power of state legislatures to choose U.S. senators and substituted direct elections by popular vote.

How did I make this hypothetical count? It's not enough to simply count the number of legislatures controlled by each party at one point in time, as the National Constitution Center did in a blog posting that was reproduced in Yahoo News. That method produced this erroneous calculation:

Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.

This count is wrong for the simple reason that U.S. Senate elections are elected in three classes, ensuring that one-third of the members are elected every two years. Thus, it is necessary to look back at legislative majorities at the time that each senator was elected. It's also important to know that the state legislatures' election of senators took place in joint assembly, meaning that the majority of the total membership, regardless of chamber, prevailed.

So let's go through the calculations. First, the lineup of popularly elected senators by class at the start of the 113th Congress (before Sen. Lautenberg's death and counting the two independents as Democrats):

Elected U.S. Senators (by Class)

And now the lineup if the 17th Amendment had not been enacted:

U.S. Senators if Elected by State Legislatures (by Class) 

Note that there was no net difference in the 2008 class between direct and indirect elections in the number of Democrats and Republican (although the next table shows that eight directly elected senators--four Ds and four Rs--would likely not have been chosen under indirect elections). In 2010 Democrats would have had a net gain of four seats under state legislative elections compared to direct popular vote. But in 2012, Republicans would have picked up nine more seats in the Senate under indirect elections than they did under direct elections.

There are two important assumptions in this count of senators if chosen indirectly by state legislatures. The first is that state legislatures would vote along party lines to select senators of the majority party. Given the finding by Wendy J. Schiller and Charles Stewart III in a recent Brookings monograph that 98 percent of the senators elected between 1871 and 1913 were from the party that controlled the majority in the state legislature, this is a reasonable assumption.

Supreme Court Ruling on Voting Rights Act Explained: Shelby County v. Holder

By Susan Parnas Frederick

The U.S. Supreme Court handed down a 5-4 decision in the closely-watched Voting Rights Act (VRA) case of Shelby v. Holder on Tuesday.

Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito to rule that Section 4 of the VRA is unconstitutional. Justice Ginsberg led the dissent and was joined by Justices Breyer, Sotomayor and Kagan. The Court did not rule on the constitutionality of Section 5 of the VRA. 

Section 4 of the VRA defines which jurisdictions are to be covered under the VRA based on two main criteria: (1) whether the jurisdiction uses discriminatory tests as a prerequisite to voting, and (2) whether it has low voter registration and turnout rates. If a jurisdiction exhibits both criteria, it is covered under Section 5 of the VRA. This section requires covered jurisdictions to submit to the federal government (either the U.S. Department of Justice, Office of Civil Rights, or to a three judge panel in federal court) any proposed changes to its voting laws or procedures for “preclearance.” 

The Court acknowledged that voter discrimination unquestionably still exists in the United States, but determined that the criteria under VRA Section 4, virtually unchanged since the 1960s, is no longer appropriate today. In reaching this conclusion, the Court noted that at the time of enactment, the VRA was intended to be temporary in nature and was set to expire after five years, but was reauthorized for longer periods of time.

The Court then stated that since the date of enactment, the nation has made great strides in eliminating discriminatory practices at the polling place. The Court pointed out that Congress could have used this positive data during any of the VRA’s reauthorizations to modify the coverage provisions of Section 4 to reflect current conditions, but did not do so. 

The Court also focused on the fact that the VRA is an extraordinary piece of legislation with great federalism implications because it takes away the notion of equal sovereignty for states. Some states can pass laws immediately while covered states can only pass the same law by obtaining Section 5 preclearance. The Court concluded that the federalism impact coupled with Congress’ inaction in revising the standards in the VRA’s Section 4 for preclearance required it to strike down Section 4 as unconstitutional. The Court invited Congress to re-draft Section 4 based on current conditions.

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

Implications for Other States of the Supreme Court’s Decision on Arizona Voting Rights Case

By Wendy Underhill

Yesterday the U.S. Supreme Court struck down an Arizona requirement, enacted in 2004, that new voters show proof of citizenship at the time of registration. The ruling may impact other states as well: Alabama, Georgia, Kansas and Tennessee also have laws on the books that require proof of citizenship, although the details vary.

This is a perennial source of legislation. This year, at least Massachusetts, Missouri, Nevada, Oklahoma, Oregon (H 2364 and H 3428) South Carolina, Texas and Virginia considered bills. (None has been enacted yet.)

The Supreme Court did not weigh in on whether non-citizens should be on voter rolls; the law is clear on this point-- only citizens can vote. And it didn't address whether the proof of citizenship requirement is an undue burden on citizens as they become voters. Instead, the opinion "drew a distinction between Congress's broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states," according to Rick Hasen, an elections law expert. The ruling spells it all out.

In no way, though, does the ruling change the fact that states have an obvious interest in ensuring that only citizens get on the voter rolls. We already see other state approaches developing.

For instance, some states are beginning to compare their voter rolls to various data lists that may shed light on citizenship. (The U.S. has no comprehensive list of citizens.) Colorado and Florida each did this before the 2012 general election. In both cases, they compared their lists to the Systematic Alien Verification for Entitlements (SAVE), from the Department of Homeland Security. While these attempts may not have netted many noncitizens who were attempting to vote (and sparked controversy in Florida), they can be viewed as pilot efforts that can be improved on in the future.

As for legislation, at least two states have bills in the hopper this year that approach the citizenship question without following the Arizona model. In California, AB 301 would require that state courts transmit to state election authorities information about citizenship gained through the juror selection process. And, in Washington, SB 5380 would have required the state to determine citizenship through the driver's license process and provide that information to the secretary of state for voter registration purposes. The Washington bill did not pass.

Supreme Court: NCSL Amicus Brief Persuasive in Supporting Maryland Law on Police Taking Suspects’ DNA

By Susan Parnas Frederick

In a 5-4 decision on Monday, the United States Supreme Court ruled that when officers make an arrest for a serious offense based on probable cause and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swap of the arrestee’s DNA is reasonable under the Fourth Amendment.  The Court likened the DNA swap to other legitimate booking procedures such as fingerprinting and photographing. 

The decision reversed the Maryland Court of Appeals ruling that the Maryland DNA Collection Act as applied to arrestees, violated the 4^th Amendment as an unconstitutional warrantless search which violated the suspect’s right to privacy. The State and Local Legal Center, representing NCSL and six other national associations of state and local governments and a national law enforcement association, filed an amicus brief in this case supporting the Maryland law. [Previous sentence corrected 6/10/13]

The Court acknowledged that the use of DNA technology is critical to law enforcement, medicine and science.  Twenty-nine states and the federal government have arrestee DNA laws similar to Maryland’s.  The Court also ruled that Maryland’s law contained sufficient safeguards to protect arrestees.  The State and Local Legal Center's amicus brief was persuasive in arguing that the use of DNA by state and local police has documented successes in solving crime and that the government’s interest in solving crime with the proper safeguards outweighs an arrestee’s right to privacy in those circumstances. 

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

Unusually High Levels of Straight Ticket Voting in 2012

By Karl Kurtz

Writing in Sabato's Crystal Ball, Kyle Kondik notes that almost all congressional seats in the country were won by the same party that carried the presidential vote in that district:

One needs little more than just fingers and toes to count the number of House members who represent districts won by the other party’s presidential candidate in 2012. ...[J]ust 25 House members--nine Democrats and 16 Republicans--hold such “crossover” districts. Compare that to 2004, when there were 59 such seats, or 2008, when there were 83.

Although the historical data are incomplete, the 25 crossover seats are probably the fewest number after a presidential election in nearly a century. The group includes some of the longest-serving members of the House, who have established deep roots that have allowed them to fend off challengers and build strong identities in their districts. In many of these districts, the challenging party simply must play a waiting game, hoping for a retirement that creates an open seat contest.

I don't have the data to compare these congressional results to state legislative races, but I noticed something similar in looking at party control of legislatures at the legislative chamber level. In the 26 states that President Obama won, Democrats control 38 of the 52 legislative chambers. And in the 23 states that Gov. Romney won (excluding Nebraska and its nonpartisan unicameral legislature) an even more remarkable margin of chambers (44-3) went in favor of Republicans.

In all states not listed above, the majority party in the legislature also carried the state's presidential vote.

Like Kondik, I don't know if this is a record, but I suspect that it is at least close to one. In a forthcoming article in State Legislatures magazine, I go more deeply into the causes (and consequences) of this more polarized political landscape. But in the meantime, the always pithy Larry Sabato has a simple explanation, "The electorate itself does what the straight party levers in voting machines used to do."

Presidential Election Commission: It's Official

By Wendy Underhill and Karen Shanton

On Thursday, President Obama signed an executive order creating the Presidential Commission on Election Administration. This  isn’t a surprise, given that he mentioned it in February’s State of the Union speech.  It’s good, though, to see the details.  One especially good point:

The commission is “to be informed by, and shall strive to avoid duplicating, the efforts of other governmental agencies.”

In this regard, the work of the U.S. Election Assistance Commission, the Federal Voting Assistance Program and state election directors and local administrators should all be considered. 

We hope and expect that the extensive work done by organizations that are not, strictly speaking, governmental agencies will be considered as well.  Three that come to mind are the National Association of Secretaries of State, the Pew Charitable Trusts’ Election Initiatives and the CalTech-MIT Voting Technology Project.

As for NCSL, we have deep resources on most of the election administration issues that the commission will consider. We paraphrase those issues here, and provide links to a sample NCSL resource on each topic. For those areas where we don’t have research posted, you can be sure we’re working on it behind the scenes.

Polling place management

Poll worker recruitment and training

Assisting military and overseas voters

Managing voter rolls and poll books

Voting equipment and technology

Ballot design and Voter education

Voting accessibility for people with special needs

Provisional ballots

Absentee ballots

Election Day emergencies

We look forward to whatever the next steps may be for the commission. We imagine that the very next step will be appointing members (the co-chairs are Republican Ben Ginsberg and Democrat Bob Bauer). Because state lawmakers bear primary responsibility for shaping election laws, we hope they will have a voice on the commission.

States Study Elections

By Karen Shanton and Wendy Underhill

According to a New York Times report, the recently-announced Presidential Commission on Election Administration will spend at least six months gathering and assessing data before releasing "recommendations for state and local election officials to reduce waiting times at the polls and improve all citizens' voting experience."

As that project description implies, state and local officials bear the primary responsibility for election administration and policy. So, a good place to look for data on elections is the research that is coming out of the states. Election officials in many states routinely take steps to assess their election administration performance and address voting challenges. These reports, which are often bipartisan or nonpartisan, are an excellent source of state-specific data and practical innovation.

NCSL has compiled a chart of recent election administration research from state and local governments. The chart, State-Based Election Reports (2010-2013), includes entries in these three categories:

• After-action reports about the administration of particular elections
• Best practice innovations for improving election administration
• Systematic reviews of, and recommendations about, election processes

If we have missed a resource in your state, please let us know. We will update the chart as we learn of additional reports.