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“People’s Legislative Power”: Arizona’s Nonpartisan Redistricting Plan Is A Slam Dunk At The Supreme Court

In a significant victory for election reform advocates, a unanimous Supreme Court upheld Arizona’s redistricting plan, which had been challenged by Republicans.

The case comes just a year after the Court’s liberals, plus Justice Kennedy, upheld the legitimacy of the Arizona Independent Redistricting Commission, which had been created by ballot initiative. That case was controversial, since the Constitution specifically requires districts created “by the legislature” of each state, not by an independently constituted commission. Justice Ginsberg, writing for the Court, said that the “people’s legislative power” was close enough. Not surprisingly, the Court’s more literalist wing was outraged.

It’s perhaps surprising, then, that today’s case, Harris v. Arizona Independent Redistricting Commission, was decided 8-0.  On the one hand, the case may represent a consensus on at least some aspects of election law—and is thus very good news for electoral reform activists. On the other hand, since it basically defers to a state decision, it’s not a robust test case.

The facts of the case are straightforward. Despite being independent, the five-person Redistricting Commission is still divided among Democrats, Republicans, and ostensible independents: two, two, and one, respectively, with intricate appointment procedures. In April 2012, the two Democrats and one independent modified three districts, and the two Republicans voted against, arguing that the new plan favored Democrats.

Contrary to what you might expect, however, the Supreme Court has never said that partisan gerrymandering is against the law. If the districts disadvantage minorities, a redistricting plan might violate what’s left of the Voting Rights Act. And if they contain wildly different populations, the plan might violate the Equal Protection Clause of the Constitution. But it’s not actually against the law to be craven, manipulative, and duplicitous.

Given that, it’s not surprising that the petitioners lost—though it is surprising that they lost unanimously.

First, while Republicans alleged that the plan was designed to benefit Democrats, there was significant evidence in the record that showed it was actually designed to meet the requirements of the Voting Rights Act. (The plan was ratified before the Supreme Court eviscerated the Voting Rights Act in Shelby County v. Holder.) In particular, it seems those concerns swayed the one independent member of the commission.

Second, the population deviations in the Arizona plan were around 4 percent. That’s well below the 10 percent threshold the Court has adopted when applying the Equal Protection clause. True, that variation was all on one side—Republican-leading districts were generally more populous than Democrat-leaning ones. But that’s not necessarily illegal, and anyway the variation can be explained by the need for the plan to conform with the Voting Rights Act.

Third, while part of the Voting Rights Act was held unconstitutional in 2013, in Shelby County, that doesn’t corrupt Arizona’s motives in complying with it back in 2012. At the time, the redistricting commission was trying to obey the law, not stack the decks.

Does this unanimous decision represent a new dawn for election reform? Not quite.

To be sure, the unanimity does suggest that the redistricting commission is now a fait accompli. No one dissented, or even wrote a separate concurrence, to protest its existence. One wonders if Justice Scalia might have done so, but Chief Justice Roberts, certainly, is not likely to question one of the Court’s recent precedents; he is particularly committed to the legitimacy of the Court and its decisions. On the contrary, he has now joined an opinion upholding the commission’s decision—and one that tends to favor Democrats.

On the other hand, the thing about unanimous decisions is that they tend to signal, at least retroactively, that these cases were relatively easy ones. They are precisely not the ones that indicate a lot of movement on key issues.

For example, while the Religious Right cheered a religious freedom case decided unanimously by the Supreme Court last year, the reason it was unanimous is that it was an old school, religious-liberty-as-shield-against-the-government case. That case involved a prison inmate wanting to grow a half-inch beard; no third parties were involved, no harm was done, and the prison’s safety rationales were ludicrous. That’s why it was uncontroversial.

While much of the Court may not like the context of the commission’s decision, that question is now settled, and what’s left is a far-fetched constitutional claim against a reasonable, and well-documented, state agency decision.

And, as usual in unanimous decisions, Justice Breyer’s opinion tends toward the minimalistic. No wild statements of law or policy here; this opinion was generated to build consensus, and it did so.

Still, this is a significant step forward for election reform. The Arizona Redistricting Commission is an innovative idea, with an elaborate attempt to minimize partisanship and increase accountability. There were constitutional grumblings last year when the Supreme Court decided “the legislature” could also mean “the people,” but as a matter of policy, the commission is an important model for how to improve the messy, dirty redistricting process. On it rides many hopes of democracy advocates.

And today, it won a ringing endorsement from a unanimous court.

 

By: Jay Michaelson, The Daily Beast, April 20, 2016

April 22, 2016 Posted by | Arizona, Election Reform, Gerrymandering, Redistricting | , , , , , , | Leave a comment

“The Voters Should Choose Their Representatives”: The Supreme Court’s Election Reform Ruling Is A ‘Big F-ing Deal’

This, in the words of Joe Biden, is a big fucking deal.

The Supreme Court’s vote on marriage equality and its refusal to gut health-care reform justly got the banner headlines over the last few days. But a less-publicized case on Arizona’s independent redistricting commission had those of us fighting for election reform holding our breath in the march toward the last day of decisions.

At stake was nothing less than the ability to fight back against the forces of polarization, paralysis, and hyper-partisanship in our politics. Out of 435 House seats, only 35 are considered competitive, and the rigged system of redistricting is to blame. It’s a process of collusion between the two parties that takes place every 10 years in state legislatures and draws the congressional district lines—a subversion of democracy where politicians pick their people rather than people picking their politicians.

The result is a screwed up incentive system where members of Congress are virtually guaranteed re-election as long as they don’t lose a low turnout partisan primary, which means they live in fear of offending the base rather than reaching across the aisle to solve problems.

Increasingly, the remedy for this corrupt status quo has been voters bypassing the state legislators with ballot referendums that create independent redistricting commissions. California has done it to great effect, dislodging 14 incumbents who decided to retire after the independent commission promised to make their re-elections less than rubber-stamped.

And that’s what Arizonans did in advance of the 2010 districting, which upset then-Governor Jan Brewer. First she tried to remove the independent commission’s chairwoman, Colleen Mathis, in a power grab that was overruled. Then Brewer decided to take the commission to court, arguing that the panel—composed of two Republicans, two Democrats, and one independent—tried to “elevate ‘competitiveness’ over other goals.” Seriously.

“This isn’t anything more than Republicans trying to hold on to a majority in a state where they constitute less than a third of the voters,” explained former Phoenix mayor Paul Johnson at the time. But still the baseless, desperate, cynical case wound its way to the Supreme Court.

If the court decided that the voters’ attempt to impose a nonpartisan redistricting commission over the self-dealing of the Arizona state legislators was unconstitutional, the best mechanism citizens have to restore fairness to congressional mechanisms would have been removed.

As Stanford law professor Nate Persily, the author of the new book Solutions to Political Polarization in America, explained: “Not only would many redistricting commissions, such as Arizona and California’s, have been thrown out, but any state regulation of congressional elections that was passed by initiative would have been legally vulnerable. This would have cast doubt, for instance, on California’s nonpartisan primary, Arizona’s voter ID law, and any number of other laws regulating voter registration, campaign financing, and ballot technology.”

It could have meant open season on election reforms of all kinds. But happily, by a narrow 5-4 vote, with Justice Anthony Kennedy serving in his role as the swing vote—possibly aided here by his roots in California, which has seen evidence of success in election reform—the Supreme Court decided to back the integrity of Arizona’s independent redistricting commission.

As Justice Ruth Bader Ginsburg wrote in her majority decision (PDF): “We see no constitutional barrier to a State’s empowerment of its people.” She continued by pointing out that “‘[P]artisan gerrymanders,’ this Court has recognized, ‘[are incompatible] with democratic principles’” and attested to the fact that reforms like independent redistricting commissions have resulted in “districts both more competitive and more likely to survive legal challenge.” Quoting founding fathers from Madison to Hamilton, the decision concluded that Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.”

The decision is a big win for election reform and a defeat for those professional partisan forces that want to keep the rigged system of redistricting in place. Now the prospect for future nonpartisan election reforms remains open and inviting to more citizens who understand that when you change the rules, you change the game.

 

By: John Avlon, The Daily Beast, June 30, 2015

July 1, 2015 Posted by | Democracy, Gerrymandering, Redistricting | , , , , , , , , | Leave a comment

“The Goal Is To Limit Representation”: The Conservatives Who Gutted The Voting Rights Act Are Now Challenging ‘One Person, One Vote’

Ed Blum, who brought the case that led to the gutting of the Voting Rights Act in 2013, is now going after the historic principle of “one person, one vote.” The Supreme Court decided on Tuesday to hear Evenwel v. Abbott, Blum’s latest case, which challenges the drawing of state Senate districts in Texas. The obscure case could have major ramifications for political representation.

Blum first began attacking the Voting Rights Act after losing a Houston congressional race to a black Democrat in 1992 and founded the Project on Fair Representation in 2005 to challenge the constitutionality of the VRA. The Evenwel case doesn’t deal directly with the VRA but on how districts should be calculated. Since the Supreme Court’s 1964 Reynolds v. Sims decision, districts have been drawn based on the total population of an area. Blum instead wants lines to be drawn based only on eligible voters—excluding children, inmates, non-citizens, etc. from counting toward representation.

If that happened, legislative districts would become older, whiter, more rural, and more conservative, rather than younger, more diverse, more urban, and more liberal. “It would be a power shift almost perfectly calibrated to benefit the Republican party,” explains University of Texas law professor Joey Fishkin. “The losers would be urban areas with lots of children and lots of racially diverse immigrants. The winners would be older, whiter, more suburban, and rural areas. It would be a power shift on a scale American redistricting law has not seen since the 1960s. While not nearly as dramatic as the original reapportionment revolution, it would require every map in every state to be redrawn, with the same general pattern of winners and losers.”

Demographically, the gap between Republicans and Democrats is wider than it has ever been. “House Republicans are still 87 percent white male, compared to 43 percent of House Democrats—the widest gap we’ve ever seen,” explains Dave Wasserman, House editor of the Cook Political Report. “In terms of composition of districts, the median GOP district is 76% white, while the median Dem district is 49% white—again, the widest gap we’ve ever seen. Overall, the median House district is 68% white, compared to 63% for the nation as a whole.”

This representation gap explains why Republican officials are pushing new voting restrictions like voter ID laws and cuts to early voting, which disproportionately impact minority voters and seek to make the electorate smaller and whiter. A victory for Blum’s side in Evenwel would make districts across the country even less representative of the country as a whole.

Blum claims to be fighting for race neutrality but he’s often done the bidding of the most powerful figures in the conservative movement and Republican Party. As I reported in 2013:

His Project on Fair Representation is exclusively funded by Donors Trust, a consortium of conservative funders that might be the most influential organization you’ve never heard of. Donors Trust doled out $22 million to a Who’s Who of influential conservative groups in 2010, including the American Legislative Exchange Council (ALEC), which drafted mock voter ID laws and a raft of controversial state-based legislation; the Americans for Prosperity Foundation, the Koch brothers’ main public policy arm…Donors Trust has received seven-figure donations from virtually every top conservative donor, including $5.2 million since 2005 from Charles Koch’s Knowledge and Progress Fund. (The structure of Donors Trust allows wealthy conservative donors like Koch to disguise much of their giving.)

From 2006 to 2011, Blum received $1.2 million from Donors Trust, which allowed him to retain the services of Wiley Rein, the firm that unsuccessfully defended Ohio’s and Florida’s attempts to restrict early voting in federal court last year. As a “special program fund” of the tax-exempt Donors Trust, Blum’s group does not have to disclose which funders of Donors Trust are giving him money, but he has identified two of them: the Bradley Foundation and the Searle Freedom Trust. The Wisconsin-based Bradley Foundation paid for billboards in minority communities in Milwaukee during the 2010 election with the ominous message “Voter Fraud Is a Felony!”, which voting rights groups denounced as voter suppression. Both Bradley and Searle have given six-figure donations to ALEC in recent years, and Bradley funded a think tank in Wisconsin, the MacIver Institute, that hyped discredited claims of voter fraud to justify the state’s voter ID law.

The challenge in Evenwel isn’t so different from the gutting of the VRA or new laws restricting voting rights. The goal is to limit representation, make it harder for some to participate in the political process and to widen the gap between the haves and have-nots.

CORRECTION: Blum says, “The Project on Fair Representation hasn’t been affiliated with Donors Trust for nearly 6 months; we are now a 501 (c) (3) so our donors will be disclosed according to the regulations that apply to all public charities.”

 

By: Ari Berman, The Nation, May 28, 2015

May 30, 2015 Posted by | Congress, Ed Blum, Evenwel v Abott, Redistricting | , , , , , , | 1 Comment

   

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