This Week in Statehouse Action: Hold the Line edition

This Week in Statehouse Action: Hold the Line edition

Welp, y’all, it’s time.

With the Census Bureau’s release of redistricting data this week, the drawing of new congressional and state legislative maps can finally begin.

But … oh, it’s going to be bad.

So bad.

Here’s how, and here’s why.

Get Back In Line: Let’s start some big-picture stuff: One of the reasons the redistricting situation is so dire both for Democrats and for anyone who actually believes in majority rule is the legal landscape, which is drastically different than it was for the last round of redistricting.

Campaign Action

Item 1: Preclearance.

  • For the past several decades, a process known as preclearance (required by Section 5 of the Voting Rights Act) ensured oversight of states with a history of discrimination (mostly in the South but definitely not just in the South) and guarded against district maps that dilute the voting power of communities of color.
  • But in 2013, the U.S. Supreme Court neutered Section 5, opening the door for abuse this time around.
  • So for the coming round of redistricting, GOP-controlled legislatures and redistricting commissions don’t have to bother even trying to preserve the voting power of these communities.
    • Sure, lawsuits will likely result in the redrawing of some districts in some states, but these things take time to work their way through the courts.
    • Even though diluting the votes of “minority communities” (the statutory language) remains illegal, several elections will likely have already occurred in these districts by the time judges have a chance to throw out and replace a map because it’s racist.

Item 2: Partisan gerrymandering is now officially a non-starter in federal court.

  • In 2019, SCOTUS ruled that gerrymandering for partisan gain was not an issue to be decided by federal courts.
  • This relegated partisan gerrymandering claims to state courts—and only state courts.
    • This also may better equip GOP map drawers to disguise a racist gerrymander as a partisan gerrymander.

Item 3: It could get even worse!

  • Remember, the above-mentioned SCOTUS decisions happened before the outright conservative takeover of the court, so more decisions that undermine attempts at drawing fair, representative news maps could blow up the process for the coming decade.
    • Two things in particular to keep your eyes peeled for are
      • Decisions that eliminate independent redistricting commissions or their power to draw congressional maps and
      • Decisions that undermine governors’ authority to veto congressional maps.

Item 4: Everything is terrible

ftr I would absolutely love to be wrong about this

Draw The Line: And now, with the deck already legally stacked against fair, representative state legislative and congressional maps, we turn to the process of actually drawing new district lines.

  • You may recall my despair after the 2020 elections resulted in Republicans entering this redistricting cycle with a serious advantage: the GOP will draw four or five out of every 10 congressional districts nationwide, while Democrats will only be able to draw fewer than two out of 10.
    • And while percentages/multiples of 10 are nice, it’s worth doing a little math to highlight that Republicans will be drawing 174-218 congressional districts out of 435 and Democrats will be drawing somewhere around … 87.
    • … and this is where I start flashing back to the horrorshow of the 2010 round of redistricting, after that year’s devastating statehouse elections gave Republicans the power to draw just over half of all U.S. House districts (Democrats drew about 10% of them).
  • And as we stare down the barrel of the 2022 midterms, it’s important to remember how that lopsided control over new maps helped Republicans win the House in 2012 despite the fact that Democratic candidates won more votes that year.

But anyway, yeah, it’s bad.

Helpfully, my incredibly smart colleagues at Daily Kos Elections have published a pretty amazing comprehensive guide to redistricting across all 50 states, and you should read it.

But as an erudite consumer of this missive, you no doubt understand that not every state demands your attention in all things.

To wit, you can probably figure out all on your own that Alabama’s and Arkansas’ processes are run by the Republicans who run these states, and, well, that’s that.

But what can we expect from, say, Arizona?

  • Arizona (9 congressional districts)
    • Partisan Control: Nonpartisan commission
    • Likely partisan outcome: Possibly neutral but likely leaning Republican
    • Who draws maps? An independent redistricting commission created by voters in a 2000 constitutional amendment, with two Democrats, two Republicans, and one unaffiliated commissioner.
      • Maps are required to adhere to nonpartisan criteria and prioritize political competitiveness.
    • Any chance of fair maps? The commission may draw relatively nonpartisan congressional and legislative maps, but it’s looking likely that the new maps could somewhat favor Republicans.
  • Florida (28 congressional districts [+1 from 2010])
  • Iowa (4 congressional districts)
    • Partisan Control: Nonpartisan commission
    • Likely partisan outcome: Probably Republican
    • Who draws maps? By statute, Iowa’s Legislative Services Agency (LSA), a nonpartisan advisory institution of civil servants, proposes congressional and legislative maps based on nonpartisan criteria.
      • The LSA has three opportunities to propose plans to legislators, who may either approve or reject maps (no amending or altering them).
      • But! If legislators reject the agency’s proposals three times, they can draw their own maps.
    • Any chance of fair maps? Republicans haven’t held full control of state government in a redistricting year since the current redistricting process was implemented four decades ago, so it’s fair to expect them to be pretty thirsty about locking in their power for the next 10 years.
      • It’s also worth noting that this nonpartisan system is not mandated by the state constitution—rather, it exists via statute, which the legislature’s GOP majorities could easily revise or eliminate simply by passing a new law.
      • But it’s actually way more likely that Iowa Republicans will reject the commission’s proposed maps three times to draw their own gerrymanders, which they’ve indicated a willingness to do.
  • Michigan (13 congressional districts [-1 from 2010])
    • Partisan Control: Nonpartisan commission
    • Likely partisan outcome: Likely neutral
    • Who draws maps? An independent redistricting commission created by a 2018 amendment to the state constitution, consisting of four Democrats, four Republicans, and five unaffiliated members will draw the new congressional and legislative maps.
      • At least two commissioners from each of those three groups must agree to pass any map, which also must meet specific criteria, including: compliance with the Voting Rights Act; geographic contiguity; preserving communities of interest; partisan fairness; not favoring or disfavoring a particular candidate or incumbent; keeping counties, cities, and townships whole; and compactness.
    • Any chance of fair maps? Assuming SCOTUS doesn’t eliminate it, the current expectation is that the commission will draw fair congressional and state legislative maps (… or at least fairer than the current maps, which isn’t a high bar tbh).
  • North Carolina (14 congressional districts [+1 from 2010])
    • Partisan Control: Republican
    • Likely partisan outcome: Republican, but with possible neutral recourse via the state Supreme Court
    • Who draws maps? The (GOP-controlled) legislature (governor lacks veto power)
    • Any chance of fair maps? Republican legislators are expected to gratuitously gerrymander North Carolina’s congressional and legislative maps.
  • Ohio (15 congressional districts [-1 from 2010])
    • Partisan Control: Republican
    • Likely partisan outcome: Republican
    • Who draws maps? 
      • Congressional: state legislature and governor, with a bipartisan backup commission created by legislators in a 2018 constitutional amendment, consisting of the governor, secretary of state, state auditor, and one appointee each by the four legislative majority and minority party leaders in case of legislative deadlock.
      • Legislative: Uses a similar commission structure created by legislators in a 2015 constitutional amendment, but the legislature doesn’t get to vote on the maps.
        • Following the GOP-driven redistricting “reform” amendment from a few years back, the process is a little complicated, and it looks pretty bipartisan on paper, but we’ll see that the actual execution of the process skews solidly in favor of the GOP.
          • Implementing maps for the entire decade requires bipartisan support, but the legislative majority party (Republicans here, now, and for the foreseeable future) can pass party-line congressional and legislative maps that will be in effect for just four years instead of 10.
          • These four-year “stopgap” maps can be passed repeatedly when a previous map expires.
    • Any chance of fair maps? Pfft nah. Republicans will use their legislative and commission majorities to pass congressional and legislative gerrymanders favoring their party for the coming four years, and then they can use new data to improve their gerrymanders for the subsequent four.
      • Theoretically, they could pressure Democrats into passing 10-year maps by threatening to pass more extreme four-year gerrymanders if Democrats don’t agree to somewhat more modest 10-year gerrymanders.
        • But why would Ohio Republicans pass up the chance to update their gerrymanders every two elections instead of every five?
  • Pennsylvania (17 congressional districts [-1 from 2010])
    • Partisan Control: Divided (Dem gov, GOP-controlled legislature) state government (congressional) and bipartisan commission (legislative)
    • Likely partisan outcome: Possibly neutral (congressional); possibly Democratic or neutral (legislative)
    • Who draws maps?
      • Congressional: state legislature and governor
      • Legislative: A bipartisan commission, with the legislative majority and minority party leaders each choosing one commissioner.
        • In the event of a commission deadlock, the state Supreme Court appoints a tiebreaking fifth member.
    • Any chance of fair maps?
      • Congressional: Democratic Gov. Tom Wolf can veto a Republican gerrymander, and a court will then draw nonpartisan districts.
      • Legislative: Pennsylvania’s Supreme Court, where Democrats hold a 5-2 majority, appointed former University of Pittsburgh chancellor Mark Nordenberg as tiebreaker, and at this point, there’s really no way to know if he’ll be inclined to use the same partisan fairness criteria that the court implicitly adopted when it struck down the GOP’s congressional gerrymander under the state constitution in 2018, or whether he’ll flip the script on Republicans, who were allowed to gerrymander to obtain a partisan advantage when they controlled the court for the last two rounds of redistricting, and instead let Democrats do a little gerrymandering of their own for once.
  • Texas (38 congressional districts [+2 from 2010])
    • Partisan Control: Republican
    • Likely partisan outcome: Republican
    • Who draws maps? The (GOP-controlled) state legislature and (GOP) governor
    • Any chance of fair maps? lol oh no Republicans are going to gerrymander the snot out of Texas
  • Wisconsin (8 congressional districts)
    • Partisan Control: Divided state government (GOP legislature, Democratic governor)
    • Likely partisan outcome: Unclear; possibly neutral or Republican
    • Who draws maps?: State legislature and governor
    • Any chance of fair maps? Honestly, kinda tough to say right now.
      • One (optimistic) possibility is that Democratic Gov. Tony Evers vetoes new Republican gerrymanders, and then a court draws nonpartisan congressional and legislative maps.
      • But Republicans are reportedly planning to ask the 4-3 conservative majority on the state Supreme Court to strip Evers of his power to veto redistricting, though it’s unclear whether all of the conservative justices, despite their lean, are inclined to abet such a scheme.

Again, this list isn’t comprehensive (that full list lives here), but it’s a good accounting of where Democrats have historically been boned and/or may be boned again for the coming decade.

  • The upshot of this? Because of gerrymandering alone, Democrats can expect to lose their majority in the U.S. House in 2022 and will be relegated to another decade out of power in many state legislatures.

Behind Enemy Lines: And because maybe you’re not bummed out enough from all that redistricting stuff, here’s the latest on Texas Democrats’ fight to block a GOP voter suppression bill.

  • Earlier this week, Democratic state Sen. Carol Alvarado attempted to support her House colleagues by filibustering Senate Bill 1, blocking it from even getting to the lower chamber (which still can’t pass legislation because of Dems’ quorum break).
    • She stood—she couldn’t so much as lean against her desk—without taking even a sip of water or the briefest of bathroom breaks for 15 hours and spoke against the legislation.

just thinking about this makes my kidneys hurt

  • In the end, though, her GOP colleagues waited her out, and on Wednesday, SB1 passed the state Senate on a party-line 18-11 vote.

But as long as House Democrats continue to break quorum, that bill’s not going anywhere.

Realistically, though, how long can this last?

  • Even if Dems wait out this second 30-day special session, Gov. Greg Abbott can—and likely will—just call another one.

But House Republicans aren’t content to wait out their rebellious counterparts.

  • GOP House Speaker Dade Phelan has issued civil arrest warrants for 52 missing lawmakers.
    • But they’re not your typical arrest warrants: These will only allow law enforcement to bring those arrested members to the House chamber, not jail, and they won’t face criminal charges.
      • Democrats are fighting the warrants in court, and footage of cops forcibly dragging non-compliant but non-resisting lawmakers into the state capitol will make for some riveting viewing.

The saga continues. Stay tuned!

No Line On The Horizon: As fascinating as all the drama out of Texas is right now, it’s important to keep in mind that the voter suppression push there is part of a larger effort to not only make it harder for certain communities to vote, but also to shift power over election administration itself to partisan (and so far, exclusively GOP-dominated) bodies.

  • I’ve spent space in previous weeks’ editions on Arizona Republicans stripping their secretary of state of certain powers—but only until the Democrat currently occupying the post (Katie Hobbs) leaves office in 2023—and on Georgia Republicans’ work to replace local election officials in Democratic localities with GOP-approved temporary administrators.
    • But, according to a recent analysis by ABC News (based partly on this handy memo from Protect Democracy, the United States Democracy Center, and Law Forward), Republicans have made similar moves in multiple other states.
      • In Kentucky, where the Republican secretary of state and Democratic governor collaborated in 2020 to give voters absentee and early voting options they’d never had before, the GOP-controlled legislature passed a new law that specifically blocks such coordination during a state of emergency.
        • Beshear vetoed it, but Kentucky is one of those states where a simple majority vote can override his rejection, and Republicans totally did.
      • In Montana, Republican Gov. Greg Gianforte signed into law a bill barring the governor from changing election procedures unless the legislature signs off on it—an obvious reaction to then-Gov. Steve Bullock, a Democrat, using his emergency powers to authorize counties to conduct all-mail elections for the 2020 elections in an effort to keep folks safe from COVID-19.
      • In Kansas, new laws strip the (currently Democratic) governor of authority to modify election laws and procedures in the event of an emergency and place the (GOP-controlled) legislative coordinating council in charge of determining whether the secretary of state can settle or resolve any litigation regarding elections.
      • In Arkansas, a new law gives the partisan (and GOP-controlled for the foreseeable future) State Board of Election Commissioners broad powers to oversee and challenge election results.
        • This Board also has expanded authority to interfere with county-level election administration (which should remind you of the Georgia situation).
      • In Ohio, state legislative leaders (which are and will remain Republicans for the foreseeable future) gave themselves the power to intervene in legal challenges to election statutes and redistricting maps.


Okay, y’all, that’s enough bad news for one week.

I genuinely wish I had sunnier things to report, but it’s important to me that 

  • I keep it really real with you, and 
  • You understand the actual existential threat majoritarian rule and representative democracy face right now.

Keep an eye on the redistricting process in your state (even if it’s not one of the scary places mentioned above).

If nothing else, it’s pretty interesting stuff!

But it’s also super important that your elected officials know that they’re being watched and held accountable as they determine the shape of political power at the state and federal levels for the next ten years.

It’s hot as heck out there, but stay frosty.

We need you.

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