Roundtable: 3 experts on SCOTUS’ gerrymandering ruling

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. Each issue includes an in-depth feature—such as an interview or legislative analysis—and discussions of recent events relating to electoral and primary systems, redistricting, and voting provisions.

SCOTUS finds partisan gerrymandering claims fall beyond jursidiction of federal courts

On June 27, the Supreme Court of the United States ruled 5-4 in both Rucho v. Common Cause (North Carolina) and Lamone v. Benisek (Maryland) that partisan gerrymandering claims present political questions that fall beyond the jurisdiction of the federal judiciary. The high court combined the cases and issued a single joint decision covering both.

  • How did the majority rule? Chief Justice John Roberts penned the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. In the court’s opinion, Roberts noted that the Framers, “aware of electoral districting problems … [assigned] the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.” He went on to say, “To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”
    • Roberts addressed the assumptions underlying partisan gerrymandering claims: “Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a ‘norm that does not exist’ in our electoral system—’statewide elections for representatives along party lines.’” Roberts also wrote, “[Federal] courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”
  • Who dissented? Justice Elena Kagan penned a dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Kagan wrote the following in her dissent: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
  • What happens next? The high court remanded both cases to their respective lower courts with instructions to dismiss for lack of jurisdiction. The lower court decisions had thrown out existing congressional district plans as impermissible partisan gerrymanders. As a result of the high court’s ruling, those district plans will remain in place heading into 2020. Earlier this year, a federal district court struck down Michigan’s congressional and state legislative district plans as partisan gerrymanders. That decision, which had been stayed by the Supreme Court pending resolution of Rucho and Lamone, will likely be vacated and remanded in light of the high court’s ruling.
  • Commentary: Ballotpedia spoke with three election policy experts, all from different sides of the debate, to get their takes on what comes next now that the Supreme Court has weighed in on the justiciability of partisan gerrymandering claims.
    • Logan Churchwell (Communications and Research Director of the Public Interest Legal Foundation): The moral of the story from Rucho is simple: federal claims of partisan gerrymandering are henceforth and forever dead as doornails. For-ev-er. Activists won’t stop though. Expect to see renewed pushes to strip state legislatures still vested with redistricting powers in favor of commission-based approaches. California will serve as the gold standard for states to model themselves. California’s system ensconced partisan actors and support staff and helped to fundamentally transform the once politically vibrant state into a one-party regime.
      • Logan Churchwell is Communications and Research Director of the Public Interest Legal Foundation, which is a law firm that, according to its website, “exists to assist states and others to aid in the cause of election integrity and fight against lawlessness in American elections.”
    • Walter Olson (Senior Fellow at the Cato Institute): To begin with, Congress can act on House gerrymandering. The Constitution’s Elections Clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,” and in fact Congress has in the past prescribed to the states standards for districting. Here, overly ambitious and prescriptive measures, such as those that would impose volunteer-commission formats on all 50 states whether their electorates favor that idea or not, should yield to simple and readily enforceable rules aimed at curtailing the worst abuses. In particular, strong standards on compactness, a vital principle of good districting, would all by themselves disallow many of the worst maps by which U.S. House members currently reach the Capitol.

      Addressing the gerrymandering of state legislatures is a tougher challenge, since there is lacking an enumerated federal power by which this might be accomplished in a uniform way nationwide. But many states have a process for ballot initiatives, and even where that is lacking, this is a natural issue for reformist governors and other officials who run statewide.

      • Walter Olson is a Senior Fellow at the Cato Institute, a public policy research organization that, according to its website, is “dedicated to the principles of individual liberty, limited government, free markets, and peace.” Olson was the Co-Chair of Gov. Larry Hogan’s Maryland Redistricting Reform Commission.
    • David O’Brien (Staff Attorney at FairVote): The path forward lies in Congress and the states. We can safely assume this Congress won’t agree on a solution, so the immediate focus will be on the states. Efforts at the state level will include litigation and legislation. The litigation will be in state courts, using claims grounded in state constitutions. The Supreme Court of Pennsylvania redrew its congressional map last year after finding it violated provisions of the Pennsylvania Constitution. A similar challenge to North Carolina’s state legislature’s districts is now wending through courts there. Not all state constitutions have the provisions used in Pennsylvania and North Carolina, however, and not all courts will interpret them in the same way. There will also be efforts to pass redistricting reform legislation. Some legislatures may pass meaningful reforms, but not many. Foxes rarely surrender the opportunity to guard a henhouse. Publicly-initiated ballot measures have been the most reliable method to create independent redistricting processes but only about half the states have a ballot initiative process.

      Even success will bring challenges. Action by state courts risks conflicts with legislatures. Attempts to impeach justices, pack courts, or strip courts of jurisdiction over redistricting challenges could be the next front in the gerrymandering fight. By claiming the Constitution compels it to stand aside, SCOTUS may have saddled the states with years of inter-branch disputes. Some legislatures have responded to successful ballot measures by making it harder to put initiatives on the ballot. And no matter how successful ballot measures are, any progress could be eradicated in an instant if SCOTUS decides to reverse Arizona State Legislature v. Arizona Independent Redistricting Commission.

      • David O’Brien is a Staff Attorney at FairVote, a nonprofit organization whose mission is to advocate for “electoral reforms that give voters greater choice, a stronger voice, and a representative democracy that works for all Americans.”

New York City considers ranked-choice voting for select municipal elections

On June 12, the New York City Charter Commission voted 13-1 to draft ballot language for a charter amendment that would, if approved by voters, establish ranked-choice voting (RCV) for all municipal primary and special elections beginning in 2021. The commission will meet again on July 24 and vote either to grant or withhold final approval of the ballot measure. Should the commission approve the measure, it will appear before New York City voters on November 5, 2019.

  • How are municipal elections in NYC currently conducted? In most municipal elections, New York City employs a plurality voting system in which the candidate with the most votes wins outright. Plurality voting applies to all municipal general and special elections, as well as primaries for non-citywide offices. In primary elections for the offices of mayor, comptroller, and public advocate, a candidate must receive at least 40 percent of the vote in order to win a nomination outright. If no candidate meets that threshold, a run-off is held between the top two candidates.
  • How would elections change if the charter amendment is approved? The amendment would establish RCV for all municipal primary and special elections beginning in 2021. The amendment would allow voters to rank preferences for up to five candidates per office. RCV would not apply to general elections.
  • History of RCV in NYC: From 1936 to 1947, NYC used a single-transferable vote (STV) system, which is designed to achieve proportional representation. STV is a multi-winner ranked-choice voting system. This system set a minimum threshold of 75,000 votes to be elected. Candidates could affiliate with the party or parties of their choice. A candidate receiving the fewest first-preference choices was eliminated. First-preference votes cast for the failed candidate were eliminated, lifting the second-preference choices indicated on those ballots. This was continued until the number of candidates that had reached the minimum threshold matched the number of open seats. Voters repealed this system in 1947.

Legislation update: Redistricting, electoral systems, and primary systems bills

The maps below show which states are considering redistricting, electoral systems, and primary systems legislation. A darker shade of red indicates a greater number of relevant bills.

Redistricting legislation as of July 15, 2019

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Electoral systems legislation as of July 15, 2019

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Primary systems legislation as of July 15, 2019

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