Wednesday, January 17, 2018

Court Rejects Partisan Gerrymandering in North Carolina

Common Cause v. Rucho
By Leland Ware, Louis L. Redding Chair and Professor of Law, University of Delaware 

In Common Cause v. Rucho a three-judge panel held that North Carolina’s redistricting plan relied too heavily on partisan affiliation in drawing voting districts. The plan violated citizens’ rights under the Fourteenth Amendment’s Equal Protection Clause, the First Amendment and Article I of the Constitution. When Republicans became the majority in the North Carolina General Assembly in 2011, they redrew voting districts using the 2010 Census, They relied, in part, on data showing the racial concentrations in areas within the state.

In North Carolina, as in many Southern states, there is a strong correlation between African Americans and Democratic voters. Using the racial data Republicans packed Democratic voters into fewer districts. A lawsuit against that plan argued that the Republican maps had actually intended to dilute black votes. A federal court struck the plan down in 2016. That ruling was affirmed by the U.S. Supreme Court.

District lines were subsequently redrawn using partisanship as the primary criterion for the new maps. The legislative defendants did not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. The challengers argued that the plan violated the Equal Protection Clause of the Fourteenth Amendment because it discriminated against non-Republican voters, the First Amendment, because it discriminated against voters based on political expression and Article I, because it interfered with the right of the people to elect their representatives.

The Court held that a partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. The plaintiffs used statistical models to demonstrate how slanted the plan was. They focused on the “efficiency gap” which is the difference between the parties’ wasted votes in an election, divided by the total number of votes cast. If the efficiency gap is large enough (7% or higher), one party can hold a systematic advantage.

The calculation requires totaling, for each party, the number of votes cast for the losing candidates in district races along with the number of votes cast for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate's victory. The resulting figure is the total number of "wasted" votes for each party.

Wasted votes come in two forms: lost votes cast for candidates who are defeated and surplus votes cast for winning candidates in excess of what they needed to prevail. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own votes. This produces a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.

When districts are gerrymandered voters don’t pick their elected officials; politicians pick their voters. This is not how a democracy is supposed to operate. In this case the Court held that the evidence proved that the General Assembly had an intent to subordinate the interests of non-Republican voters and entrench Republican domination of the state’s congressional delegation. The judges granted the General Assembly another chance to draw maps, but gave them until January 29th to submit a plan.

Stay tuned. In October of 2017, the Supreme Court heard arguments in a case involving a state legislative map in Wisconsin that was invalidated for unduly favoring Republicans. The Court has agreed to consider a lawsuit filed by Republicans over a Maryland congressional district drawn by the Democratic legislature. A decision in the Wisconsin case is expected by June.

Tuesday, January 16, 2018

Supreme Court Considers Ohio's "Use it or Lose it" Process for Purging Voter Rolls

Husted v. A. Philip Randolph Institute 
By Leland Ware, Louis L. Redding Chair and Professor of Law, University of Delaware 

On January 10, 2018 the Supreme Court on heard oral arguments in Husted v. A. Philip Randolph Institute. This case will decide whether the State of Ohio's procedure for removing individuals from voter rolls violates federal law. 

In 1993 Congress enacted the National Voter Registration Act (NVRA). The law requires states to maintain voter registration lists and prohibited them from removing an otherwise-eligible voter from the rolls solely because the person had failed to cast a ballot.

Nine years later, Congress enacted the Help America Vote Act. It required states to maintain a voter-registration system and to remove ineligible voters from voter lists. These systems can remove voters who have not responded to a notice and who have not voted in two consecutive federal elections. However, Congress also stated no registrant could be removed based solely on a failure to vote.

Ohio's "use it or lose it" procedure for cleaning up its voter rolls uses two different procedures to maintain its voter-registration lists. It compares the Postal Service’s change-of-address database with its own voter-registration database to identify any registered voters who may have moved. The state mails a notice to these voters. If they don’t respond and don’t vote for four more years, their registrations are cancelled.

The first procedure allowed registered voters to fall through the cracks if they move but do not notify the Postal Service. In an effort to address this problem, Ohio devised a supplemental procedure. Election boards mail notices to registered voters who have not voted in two years asking them to confirm that they are still eligible to vote. If a voter does not return the notice, that person’s registration is cancelled.

After a suit was filed a federal trial court ruled in Ohio’s favor, holding that the process is permissible because voters were not removed from the registration rolls solely for failing to vote. The Court of Appeals for the 6th Circuit disagreed. It held that Ohio’s procedure violated federal law because the state used failing to vote as the trigger for the notice.

Ohio contends that federal law merely prohibits states from enacting programs that result in a voter being removed based solely that person’s failure to vote. Under the state’s supplemental procedure it is not the failure to vote that causes a voter to be removed. The removal results from the failure to respond to the notice.

The challengers argue the NVRA protects registered voters against removal from the voter rolls simply for failing to vote. After Ohio residents register they should remain on the rolls as long as they are eligible to vote. The NVRA only allows states to remove registered voters from the voter rolls for five specific reasons: when they have requested to be removed, been convicted of a crime, become mentally incapacitated, die, or move out of the jurisdiction. During the oral arguments the Justices seemed to be divided on the merits. A decision is expected to by the end of June.