“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
“What Are You Waiting For, Democrats?”: Voter ID Laws Are Having Their Intended Effect. It’s Time To Do Something
The biggest news out of the Wisconsin primary isn’t about the horse race, which is largely unchanged. It’s about the election itself—about how the voting happened. As soon as polls opened in urban centers like Madison and Milwaukee, there were reports of long, almost intolerable waits. Students at universities around the state faced hourslong lines to cast a ballot. Others waited just as long for a chance to change their registration.
The proximate cause of these long lines in urban, student-heavy areas is the state’s new voter identification law backed by the Republican legislature and Gov. Scott Walker. It implements strict new requirements for valid identification that excludes most student IDs (in response, some Wisconsin schools have begun issuing separate identification cards for students to vote) and requires voters without official identification to go through a cumbersome process even if they’ve voted in the past. Writing for the Nation, Ari Berman describes elderly, longtime voters who were blocked from the polls for want of the right papers. “Others blocked from the polls include a man born in a concentration camp in Germany who lost his birth certificate in a fire; a woman who lost use of her hands but could not use her daughter as power of attorney at the DMV; and a 90-year-old veteran of Iwo Jima who could not vote with his veterans ID.”
But this was more than predictable—it was the point. “I think Hillary Clinton is about the weakest candidate the Democrats have ever put up,” said one Wisconsin Republican congressman, Rep. Glenn Grothman. “And now we have photo ID and I think photo ID is going to make a little bit of a difference as well.”
If the urgency of the issue wasn’t obvious, Grothman made it plain. Voter ID laws in Wisconsin and beyond are a direct attack on democracy, an attempt to rig the game by blocking whole groups of Americans from the polls. In what appears to be a strong cycle for their party, Democrats should take what happened in Wisconsin as a siren for action. Restoring democracy and protecting it from these attacks should be at the center of the party’s agenda.
The burden of voter ID laws falls hardest on the marginal members of society, who are predominately nonwhite, elderly, or both. In Wisconsin, 9 percent of registered voters (300,000 people) lack government-issued identification and fall disproportionately under those groups. And while Wisconsin provides voter ID at no cost through its Department of Motor Vehicles, the dirty secret is that this is a difficult and cumbersome process given the extremely limited hours for DMV offices. (Just 31 of Wisconsin’s 92 DMVs hold normal business hours and most are open just twice a week.) And worse, as Berman notes, Republican legislators in the state made no provision for voter education. They also shut down the state board that monitors elections.
Wisconsin isn’t the only place where voting has been hampered by voter identification laws. In Arizona, a similarly strict law—compounded by a Republican-led drive to close voting precincts in heavily populated areas—brought long waits for people who wanted to cast a ballot. As many as 20,000 Americans weren’t able to vote, many of them Latino.
Three years ago, the Supreme Court struck down the “preclearance” provisions of the Voting Rights Act, which required states with a history of discrimination to get the federal government’s permission before making any changes in how they run elections. Since then, Republican legislatures like those in Wisconsin and Arizona have adopted draconian identification laws that stand as meaningful barriers to the right to vote. They act as de facto poll taxes, forcing voters to spend time and money in order to exercise their constitutional rights. Thirty-three states will require voters to show identification at the polls this November, and the likely outcome will be long lines and complications for countless voters.
Beyond the sort of educational measures that Wisconsin didn’t bother with, it’s too late to do anything this year about the spread of voter ID and other barriers. But this should be a wake-up call for Democrats. Unless there’s pushback, these restrictions will become part of the firmament of our elections, effectively disenfranchising those on the margins of American life. For Democrats now and in the future, reversing those laws—and enhancing voter access—has to be a priority. On the national level, both Clinton and Bernie Sanders should tout their plans to restore the Voting Rights Act and build more voter protections. Below that, prospective Democratic governors and state lawmakers should place voter access at the top of their agendas, a first item for incoming administrations. Everything, from automatic registration and mail-in balloting to ending felon disenfranchisement, should be on the table.
This isn’t just the right thing to do; it’s the smart thing to do. If Democrats believe that they benefit from more voters and larger electorates, then they would do well to mimic the Republican approach, but in reverse: Use their power to tilt the playing field toward more access, more participation, and more democracy.
By: Jamelle Bouie, Slate, April 6, 2016
“Bloodbath Alert”: Donald Trump Issues New Threat To Destroy The GOP
The big news of the morning is that the weak, doomed-in-advance efforts by Republican Party elders to hold off a crack-up of their party may be collapsing before our eyes: Donald Trump and his two rivals have now backed off their pledge to support the eventual GOP nominee.
“No, I don’t anymore,” Trump told CNN’s Anderson Cooper, when asked if he remains committed to the pledge. Trump said that he would instead wait to see who emerges as the nominee before promising his support, recanting the pledge he previously signed with the Republican Party.
“I have been treated very unfairly,” Trump added.
It was always painfully obvious that Trump, in originally joining the Republican National Committee’s “loyalty pledge,” had carefully given himself an out, stating that he reserved the right to abandon the pledge if he were treated “unfairly.” Conveniently enough, Trump also knew he could define what constituted “unfair” treatment. Now he has done exactly this.
The crucial point here is not that this necessarily means Trump will run a third-party candidacy if the nomination goes to someone else at a contested convention. He may try to do that, but such an effort might depend on ballot logistics. Rather, what really matters here is that Trump is signaling his possible intention to do maximum damage to the party if he is denied the nomination, through whatever means he has at his disposal.
We simply don’t have any idea yet how much damage Trump can do to the Republican Party. It could go well beyond denying Republicans the White House. If a raging Trump, having lost the nomination at a contested convention, urges millions of his followers not to vote Republican, it could cause large numbers of GOP voters to sit out the election, potentially rupturing their plans for holding their Senate majority.
The significance of this spills over into the Supreme Court fight, too: GOP Senate leaders are explicitly refusing to consider Barack Obama’s nominee to keep the base energized, in hopes of holding that Senate majority. The idea: Republican voters might be fizzed up by the GOP leadership’s awesome willingness to do whatever it takes to prevent a liberal Court, and by the added benefit this strategy has of seeming to stick a thumb in the eye of Obama’s legitimacy as president. But Trump — by doing all he can to rupture the base — could roll a grenade into the center of all this.
Even if Trump wins the nomination with a minimum of convention drama, that, too, could do a lot of damage. If a lot of GOP voters alienated by Trump back the Democratic nominee or sit the election out, that could imperil GOP control of the Senate. It’s possible this could also begin to produce cracks in the GOP’s House majority. Paul Kane reports that political observers are suggesting it now looks possible that a Trump nomination could lead to major gains for Democrats in the House. Winning the 30 seats needed to take back the majority still looks like a major long shot. But some analysts think “double digit gains” for Dems are possible:
Such a big loss would leave Republicans holding the slimmest House majority either party has held in more than a decade. That could further destabilize the control of House Speaker Paul D. Ryan over a chamber in which his conservative flank has recently rebelled against his agenda.
If Republicans do lose the Senate, a much smaller House majority could matter a lot in determining whether the House can continue to function for Republicans as a kind of ideological island fortress, seemingly impregnable to the pressures of demographic and cultural change and evolving national public opinion.
This is why some Republicans may move to push a third-party challenger if Trump does win the nomination — to give Republicans a reason to go to the polls and vote for Senate and Congressional incumbents. But even in this scenario, they’d effectively be sacrificing the White House in order to do as much as possible to salvage their Senate (and House!!!) majority.
To be sure, it’s possible that Cruz could win the nomination at a contested convention and that Trump could support him. While this would also likely cost Republicans the White House, it could avert the most damaging down-ticket scenarios. But it’s also possible that we’ve only just begun to glimpse the damage Trump can do to the GOP.
By: Greg Sargent, The Plum Line Blog, The Washington Post, March 30, 2016
“Many Republicans Won’t Back Trump, And Trump Voters Hate Cruz”: Could A Downballot Wave For Democrats Be Coming?
David Brooks notwithstanding, this is not a wonderful moment to be a conservative. A new poll out of California highlights the disaster looming for the Republican Party across the nation, but particularly in blue states.
The most troubling problem is that even in a big blue state like California, Trump holds a commanding 7-point lead over Ted Cruz. As Trump will certainly hold the plurality of delegates entering the national GOP convention, Republicans are currently trying to figure out whether to back him and let come what may, or wrest the nomination from him in a brokered convention. But the brokered convention strategy relies mostly on Trump’s not reaching an outright delegate majority–a question that may not be resolved until California’s large batch of delegates is determined. If the business magnate wins big in California, he will probably reach the delegate majority he needs, crushing establishment hopes of subverting his nomination.
But the even more troubling issue for Republicans is that the party is deeply, deeply divided no matter what they do. Many moderate and evangelical Republicans despise Trump and say they will not vote for him. Meanwhile, Trump’s voters cannot stand Ted Cruz:
A quarter of California Republican voters polled said they would refuse to vote for Trump in November if he is the party’s nominee. Almost one-third of those backing Trump’s leading competitor, Texas Sen. Ted Cruz, said they would not cast a ballot for Trump. Voters who back Trump, meanwhile, are critical of Cruz, with only half holding a favorable impression of him.
Much of this is probably overblown, of course: when Republicans are faced with the prospect of a Clinton or Sanders presidency, the vast majority will still hold their nose and toe the line for the GOP. But these numbers constitute an unprecedented level of disaffection with their choices. That’s understandable: many ideological and theocratic conservatives don’t feel they can trust Trump on policy, establishment and future-minded Republicans know that his racist appeals will destroy their future, even as more moderate, populist and ideologically flexible Republicans are turned off by Cruz’ oily cynicism and radicalism.
Even a modest drop in turnout by the GOP in blue states and districts could lead to a downballot debacle for the Republican Party, and could even cost them the majority in the House given a big enough wave. The Cook Political Report and other prognosticators have revised their house race projections to account for the Trump effect (and quite possibly for the Cruz effect as well.)
So far, the GOP has latched itself to the hope that even if it must throw away the presidency this cycle, it can count on control of the House, the Supreme Court and most legislatures. With Scalia’s passing the Supreme Court is lost given a Democratic win in 2016, the Senate will likely change hands, and their House majority seems set to shrink or even disappear. Many legislatures may also flip as well given a wave election.
Things can change, of course: an economic downturn or major terrorist attack could alter the landscape significantly. But as things stand, circumstances are ripe for a GOP debacle up and down the ballot.
By: David Atkins, Political Animal Blog, The Washington Monthly, March 27, 2016
“Arizona’s Voting Rights Fire Bell”: The Disenfranchisement Of Thousands Of Its Citizens
It’s bad enough that an outrage was perpetrated last week against the voters of Maricopa County, Ariz. It would be far worse if we ignore the warning that the disenfranchisement of thousands of its citizens offers our nation. In November, one of the most contentious campaigns in our history could end in a catastrophe for our democracy.
A major culprit would be the U.S. Supreme Court, and specifically the conservative majority that gutted the Voting Rights Act in 2013.
The facts of what happened in Arizona’s presidential primary are gradually penetrating the nation’s consciousness. In a move rationalized as an attempt to save money, officials of Maricopa County, the state’s most populous, cut the number of polling places by 70 percent, from 200 in the last presidential election to 60 this time around.
Maricopa includes Phoenix, the state’s largest city, which happens to have a non-white majority and is a Democratic island in an otherwise Republican county.
What did the cutbacks mean? As the Arizona Republic reported, the county’s move left one polling place for every 21,000 voters — compared with one polling place for every 2,500 voters in the rest of the state.
The results, entirely predictable, were endless lines akin to those that await the release of new iPhones. It’s an analogy worth thinking about, as there is no right to own an iPhone but there is a right to vote. Many people had to wait hours to cast a ballot, and some polling stations had to stay open long after the scheduled 7 p.m. closing time to accommodate those who had been waiting — and waiting. The Republic told the story of Aracely Calderon, a 56-year-old immigrant from Guatemala who waited five hours to cast her ballot. There were many voters like her.
Phoenix Mayor Greg Stanton, whose government does not control election management, is furious about what was visited upon his city’s residents. The day after the primary, he wrote U.S. Attorney General Loretta E. Lynch asking her to open a Justice Department investigation into the fiasco. It was not just that there weren’t enough polling places, Stanton charged. Their allocation also was “far more favorable in predominantly Anglo communities.” There were fewer voting locations in “parts of the county with higher minority populations.”
In a telephone interview, Stanton made the essential point. Long lines are bad for everyone. But they particularly hurt the least advantaged, who usually have less flexibility in their schedules than more affluent people do. It is often quite literally true that poor voters can’t afford to wait.
“If you’re a single mother with two kids, you’re not going to wait for hours, you’re going to leave that line,” Stanton said. As a result, Stanton said, “tens of thousands of people were deprived of the right to vote.”
A Democrat, Stanton asked himself the obvious question: “Am I suggesting this was the intent of the people who run elections in Maricopa County?” His answer: “In voting rights terms, it doesn’t matter.” What matters, he said, is whether changes in practice “had a disparate impact on minority communities,” which they clearly did.
And there’s the rub. Before the Supreme Court undermined Voting Rights Act enforcement, radical changes in voting practices such as Maricopa’s drastic cut in the number of polling places would have been required to be cleared with the Justice Department because Arizona was one of the states the law covered. This time, county officials could blunder — let’s assume, for the sake of argument, that there was no discriminatory intent — without any supervision.
Now let’s look ahead to Election Day this fall. Michael Waldman, president of the Brennan Center for Justice, notes in his important new book, “The Fight to Vote,” that Republicans have “moved with strategic ferocity” to pass a variety of laws around the country to make it harder for people to cast ballots. The Brennan Center reports that 16 states “will have new voting restrictions in place for the first time in a presidential election.”
Imagine voting debacles like Arizona’s happening all across the country. Consider what the news reports would be like on the night of Nov. 8, 2016. Are we not divided enough already? Can we risk holding an election whose outcome would be rendered illegitimate in the eyes of a very large number of Americans who might be robbed of their franchise?
This is not idle fantasy. Arizona has shown us what could happen. We have seven months to prevent what really could be an electoral cataclysm.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 27, 2016
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