The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S. House of Representatives.
The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S. House of Representatives.
In 2012, Democratic House candidates received nearly 1.4 million more votes than Republicans. Yet Republican John Boehner, and not Democrat Nancy Pelosi, is Speaker of the House due to the way congressional districts are drawn in several states. Gerrymandering by Republican state lawmakers played a significant role in allowing Republicans to keep control of the House. Indeed, a Republican organization bragged after the 2012 election that gerrymandering “paved the way to Republicans retaining a U.S. House majority in 2012.”
Yet, despite the anti-democratic effects of gerrymandering and other quirks of America’s legislative redistricting process — Republicans currently enjoy a 233-199 seat advantage in the House — the 2012 House elections could have gone even worse for Democrats if it wasn’t for an Arizona redistricting commission which draws that state’s congressional maps with input from both political parties. Under the maps drawn by that commission, Democrats currently control 5 of Arizona’s 9 congressional seats.
Arizona Republicans are not fond of this commission, which was created by a ballot initiative in 2000. In 2011, Gov. Jan Brewer (R-AZ) called a special session of the GOP-controlled state legislature to impeach commission chair Collen Mathis. Though the state senate voted to remove Mathis from office, the Arizona Supreme Court reinstated her. Under Arizona law, the commission chair may be removed for “substantial neglect of duty, gross misconduct in office or inability to discharge the duties of office,” but the state supreme court concluded that Brewer had not demonstrated that Mathis was guilty of any of these things.
On Thursday, the U.S. Supreme Court announced that it would consider another round of litigation brought by Arizona’s GOP-controlled legislature. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the state legislature asks the Supreme Court to effectively return the power to draw maps to state lawmakers.
The premise of this lawsuit is that the Constitution provides that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof,” and the Arizona lawmakers argue that the word “Legislature” can only mean the body of lawmakers who are elected by the people of Arizona to make laws — not an independent commission separate from the state house and state senate. The problem with this lawsuit, however, is that it runs headlong into Supreme Court precedents that a lower court relied upon in order to dismiss this lawsuit.
In the 1916 case Ohio ex. rel. Davis v. Hildebrant, the Supreme Court considered a decision by the voters of Ohio to essentially veto the congressional maps drawn by state lawmakers. Under Ohio’s Constitution, “the legislative power was expressly declared to be vested not only in the Senate and House of Representatives of the State, constituting the General Assembly, but in the people in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.” Thus, while the General Assembly had the power to make laws, including laws drawing legislative maps, the people of Ohio can overrule their elected representatives through a referendum.
In Hildebrant, the Supreme Court rejected the argument that the power to draw legislative lines must be vested exclusively in the state house and state senate. Indeed, the Court’s opinion suggests that the word “Legislature” can refer to the people of the state as a whole when the state’s constitution gives them the power to make or repeal laws through initiative or referendum. “[T]he referendum constituted a part of the state constitution and laws,” the Court explained, “and was contained within the legislative power.”
Sixteen years later, in a case called Smiley v. Holm, the Court explained that the word “Legislature” should not be read so hyper-literally as to prevent a governor from vetoing a state’s redistricting plan. An executive veto, the Court held, “is a matter of state polity” that the Constitution “neither requires nor excludes.”
More recently, in 2012, a federal appeals court explained that the word “Legislature,” as it is used in the Constitution, “encompasses the entire lawmaking function of the state.” So when Arizona gave its people the power to enact ballot initiatives, it gave them the power to enact ballot initiatives that create a redistricting commission.
Nevertheless, there are some warning signs that the Supreme Court’s right flank wants to upset this balance. In Bush v. Gore — yes, THAT Bush v. Gore — Justices Antonin Scalia and Clarence Thomas joined an opinion arguing that the Constitution prohibited Florida’s state courts from reaching certain interpretations of the state’s election law. This opinion relied on a constitutional provision providing that presidential electors must be selected “as the Legislature” of a state directs. Thus, it argued, the judicial branch of a state could not act in a way that these conservative justices viewed as counter to the legislature’s intent.
Should the justices apply a similar reasoning in the Arizona case, then the state’s redistricting commission is in trouble. It doesn’t take much imagination to figure out what will happen if that occurs. Republicans controlled the most recent redistricting process in six key states that President Obama won in 2012. This was the result of that GOP control:
Should the Supreme Court strike down Arizona’s redistricting commission, it is likely that Arizona’s congressional districts will soon look much like Ohio’s, Virginia’s and Pennsylvania’s.
Source: Ian Millhiser for ThinkProgress
Florida’s congressional districts are some of the most GOP-friendly in the country. Although President Obama won a narrow victory over Mitt Romney in Florida during the 2012 presidential election, Republicans control 17 of the state’s 27 congressional districts. That means that, even though Obama won a majority of the votes cast by Floridians in 2012, Romney’s Republican Party controls nearly two-thirds of Florida’s U.S. House delegation.
On Thursday, a Florida trial court held that the congressional maps that produced this lopsided result violate the state’s constitution. Under an amendment added to the Florida Constitution in 2010, “[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent.” The amendment also provides protection against certain kinds of racial gerrymanders, and it establishes a preference for districts that are compact and “utilize existing political and geographical boundaries.”
Judge Terry P. Lewis’s opinion reaches several significant conclusions. He strikes down two congressional districts — Districts 5 & 10 — as violations of the state constitution. He also holds that “[i]f one or more districts do not meet constitutional muster, then the entire [redistricting] act is unconstitutional.” Thus, if his decision is ultimately upheld, the legislature will need to consider an entirely new map — although Judge Lewis adds that this holding does not mean that “portions of the map not affected by those individual districts found to be improperly drawn would need to be changed in a redrawn map.” He also relies upon a prior Florida Supreme Court decision holding that districts typically “should not have an unusual shape, a bizarre design, or an unnecessary appendage” and that districts containing “finger-like extensions, narrow and bizarrely shaped tentacles, and hook like shapes … are constitutionally suspect and often indicative of racial and partisan gerrymandering.”
Which brings us to the shape of the districts at issue in this case. Here is the relevant portion of Florida’s congressional map:
CREDIT: FLORIDA DIVISION OF ELECTIONS
That purple, worm-like thing that starts near the northeast corner of the state and then twists almost all the way down to its midpoint, that’s District 5. District 10 is the one directly below District 5. Though more compact in shape than a purple worm, District 10 has what Judge Lewis describes as “an odd-shaped appendage which wraps under and around District 5, running between District 5 and 9.” As Lewis notes, Districts 5, 7, 9 and 10 are shaped the way they are in part because a Republican political consultant suggested that they be redrawn in a way that transformed them “from being four Democratic performing or leaning seats in early maps … to two Democratic and two Republican performing seats in the enacted map.” So Republicans likely picked up two congressional seats because of the odd design of these districts.
Indeed, Lewis discusses significant evidence that Republican lawmakers colluded with Republican operatives regarding the maps. Early in the process, Republican legislative leaders met with a group of GOP political operatives and a top Republican lawyer to discuss redistricting. The deputy chief of staff to Florida’s then-house speaker shared draft maps with a particular Republican consultant at least 24 times. In some cases, he provided this GOP consultant “with draft maps that were never released to the public.”
Yet, while Judge Lewis’s opinion reaches some damning conclusions about the current congressional maps, Thursday’s decision is far from a total victory for the plaintiffs in this case. Those plaintiffs challenged nine of Florida’s congressional districts, but Lewis only struck down two.
Nevertheless, his opinion is a significant victory over one of the most gerrymandered maps in the nation, and it also an important proof of concept. The United States Supreme Court, or, at least, its conservative members, have thus far refused to allow federal courts to consider partisan redistrict cases because they claim they are unable to identify a “manageable standard” that judges can use to decide these cases. Yet Judge Lewis was able to uncover and apply a standard he could use to judge Florida’s maps. His decision on Thursday casts a cloud of doubt over the conservative justices’ decisions regarding partisan gerrymandering.
Should the Supreme Court permit the federal judiciary to examine unconstitutional partisan gerrymanders, it is likely that Florida will not be the only state whose maps will fail judicial scrutiny. Florida is one of several states with maps that are heavily gerrymandered to benefit Republicans:
In his 2010 majority opinion in Citizens United v. FEC, the case that opened the floodgates to limitless independent election spending by corporations and the wealthy, Justice Anthony Kennedy wrote that independent spending in elections “[does] not give rise to corruption or the appearance of corruption.”
What has happened in the state of North Carolina since Justice Kennedy wrote those words illustrates just how misguided he was.
In the years since Citizens United, North Carolina has provided a clear example of what happens when a small number of corporate interests, allied with a far-right base, are allowed unbridled influence over elections. Since 2010, one North Carolina multimillionaire has marshaled the funds for a Republican takeover of the statehouse and governor’s mansion, leading to a slew of far-right legislation cutting benefits for working people, lowering teacher salaries, denying Medicaid coverage to half a million low-income people, defunding public education, eliminating protections against racial discrimination in the criminal justice system, gutting gun violence prevention efforts, attacking religious freedom and threatening women’s reproductive rights – all while cutting taxes for corporations and the wealthy.
This effort has gone hand in hand with a concerted attack on the very mechanisms of democracy in North Carolina. Since coming into power, Republicans in North Carolina have launched one of the country’s broadest attacks on voting rights, decimated the state’s campaign finance disclosure laws and contribution limits, heavily gerrymandered congressional districts, and politicized judicial elections.
These attacks strike at the foundation of democracy – the guarantee of one person, one vote – and serve as a cynical insurance policy for an agenda that serves the interests of those few who can afford influence in the new climate of pay-to-play elections.
A series of Supreme Court decisions deregulating money in politics, combined with the political marriage of the Tea Party and the corporate right, have created a climate where moneyed interests can hold sway over how a state holds its elections, who wins those elections and what those elected officials do once in office. North Carolina provides a case study of what can happen when the financial interests of a wealthy elite are allowed to drown out the voices of ordinary voters.
Buying North Carolina
North Carolina’s post-Citizens United Republican takeover has been largely financed by one man: retail magnate Arthur (Art) Pope.
When the Supreme Court handed down Citizens United in January 2010, states went to work to comply with the Court’s order vacating all federal and state bans on independent corporate expenditures in elections. In July of that year, North Carolina’s legislature passed the “Citizens United Response” bill, which was enacted just before the 2010 elections and opened the door to corporate election spending. Meanwhile, according to Bob Hall, Executive Director of Democracy North Carolina, Citizens United led to a cultural shift that “provided a green light to financial interests to feel blessed by the Supreme Court to spend in elections.” The result was that outside spending in North Carolina’s elections increased by 400 percent from 2006 to 2010. And nobody took greater advantage of the new rules than Art Pope.
The New Yorker’s Jane Mayer reported in 2011 that a few months after Citizens United, Pope received a visit from Republican strategist Ed Gillespie, who was formulating a plan to strategically take over statehouses prior to congressional redistricting. Pope contributed some money directly to candidates, but his real impact came from the establishment of a handful of outside groups that were newly freed from outside spending limits. These groups, like the 501c(4) organization “Civitas Action,” spent $2.2 million over 22 state legislative races, 18 of which they won. Three-quarters of all outside money in state races that year came from groups linked to Pope. In the post-Citizens United election landscape, one man almost single-handedly succeeded in flipping party control of the state legislature.
Mayer documents the many misleading attacks that Pope’s groups used to unseat moderate Democrats in the state legislature. One Democrat who narrowly lost his seat after a Pope-funded onslaught of attack ads said, “I don’t feel like I was defeated by the person I was running against. I was defeated by Art Pope and his cronies, who bought themselves a legislature.”
In 2012, Pope and his cronies doubled down. That year, as documented by the Institute for Southern Studies, 70 percent of the $14.5 million spent by outside groups on state-level races in North Carolina went to benefit Republicans. $8.1 million of that was spent to elect Republican governor Pat McCrory; more than half of that came from the national Republican Governors Association, which itself is partly financed by Pope corporations.
In two years, thanks to an unprecedented flood of outside spending by moneyed interests, Republicans took control of both houses of North Carolina’s legislature and its governor’s mansion. And the funders of the effort began to get what they paid for.
Tax Cuts for the Wealthy, Salary Cuts for Teachers
A few weeks before the newly-elected Gov. McCrory was to take office, he announced a notable appointment to his cabinet: Art Pope.
McCrory named Pope his head of budget policy, charged with writing the governor’s budget proposal. McCrory and Pope, with the cooperation of the newly right-wing legislature, went about cutting the safety net for struggling North Carolinians while heaping tax cuts on the wealthy and corporations. McCrory signed laws cutting off unemployment benefits for tens of thousands of people in the state, in what US Representative David Price (D-NC) called “one of the most extreme and damaging acts I have seen in my time in government.” He cut pay for public school teachers. He refused expanded federal Medicaid funds under the Affordable Care Act, denying half a million low-income people access to health care coverage.
But there wasn’t bad news for everyone in North Carolina. On July 23, 2013 McCrory signed a new tax plan that dramatically lowered corporate income taxes and created a flat tax, which raised taxes on some families and small businesses while heaping the bulk of its benefits on the state’s wealthiest families. And, in one of his first orders of business upon taking office, McCrory bestowed salary hikes on members of his own cabinet.
An Extreme Agenda
While Pope and his fellow funders of North Carolina’s Republican takeover may have been mostly interested in creating fiscal policy that would benefit their own bank accounts, there was a powerful corollary to their efforts. In a solidly purple state that wavers between parties in presidential elections, Pope helped create one of the most far-right state legislatures in the country. And, thanks to Pope and his cronies’ efforts to elect McCrory, the legislature’s forays into Tea Party extremism go largely unchecked.
Since the 2010 Republican takeover of the North Carolina legislature, a number of extreme social policies have become law.
- In 2009, the North Carolina legislature, in an effort to combat persistent racial disparities in death penalty sentencing, passed a bill that would commute a death penalty sentence to life imprisonment if the defendant could prove that race played a significant role in his sentencing. The bill was featured in Willie Horton-style racist attack ads against at least one state legislator unseated in 2010. In 2013, the legislature repealed the law, and Gov. McCrory added his signature on Juneteenth.
- In August of this year, North Carolina became the seventh state to pass a bill aimed at the imaginary threat of Sharia law in the U.S. justice system – a cover for blatant anti-Muslim fearmongering.
- In July, the legislature passed and McCrory signed a law allowing people to carry concealed weapons into playgrounds, parks, some places on college campuses….and bars.
- Finally, in July, Gov. McCrory signed into law one of the most restrictive anti-choice laws in the country – despite a campaign promise that he would not back any new laws restricting abortion rights. The provisions, which were hidden in a motorcycle safety bill, impose unnecessary “TRAP” regulations on abortion providers in the state, threating to close most of the state’s 16 abortion providers.
The right-wing takeover of North Carolina has come with an insurance policy: a slew of laws taking power away from individual voters and putting it in the hands of campaign donors.
In July, the North Carolina legislature passed what election law expert Rick Hasen called “the most sweeping anti-voter law in at least decades.” The new law requires voters to present one of a narrow set of IDs in order to cast a ballot – IDs that 318,000 registered voters in the state don’t have. It cuts the number of early voting days and eliminates same-day voter registration during early voting, an option disproportionately used by African American voters. The bill invalidates ballots accidentally cast in the wrong precinct. It attacks the voting rights of young people, by eliminating pre-registration for 16- and 17-year olds, and of the elderly and disabled, by making it more difficult to establish satellite polling sites.
But the law doesn’t just make it harder for ordinary North Carolinians to vote. It also makes it much easier for moneyed interests to influence elections. The bill increased campaign contribution limits, repealed three public financing programs and – good news for Art Pope – weakened transparency requirements for outside spenders in elections.
Pope’s influence was particularly visible in the repeal of the popular program providing public financing for judicial elections. Until this year, North Carolina had for a decade maintained a nationally renowned clean elections program for judges, a voluntary public financing fund used by 80 percent of judicial candidates across the political spectrum. In June, after Republicans in the state legislature took aim at the program, a Republican legislator came up with a compromise to save the clean judicial elections. But Popesingle-handedly convinced the legislator to drop his compromise proposal, and the pioneering public financing program died, leaving judicial elections vulnerable to partisan spending and the appearance of corruption.
Finally, Ed Gillespie’s original goal was achieved to great effect. In 2011, the newly elected GOP-dominated state legislature redrew the state’s congressional map to cram African-Americans and other largely Democratic constituencies into a small number of districts and increase the number of Republicans elected to Congress. It worked. In 2012, 50.6 percent of North Carolina voters cast their ballots for Democratic congressional candidates. But thanks to the legislature’s extreme partisan gerrymandering, the state’s U.S. House delegation ended up being 69 percent Republican — nine Republicans and only four Democrats.
Citizens Fight Back
North Carolina citizens, recognizing that their democracy has been ripped out of their hands, are fighting back. Since April, civil rights leaders have led weekly “Moral Mondays,” protests of thousands of people in front of the statehouse. So far, more than 900 people have been arrested in the protests, which organizers plan to continue in as the next election approaches.
Texas is wasting no time capitalizing on the Supreme Court’s ruling on the Voting Rights Act.
Shortly after the high court issued a sweeping 5-4 decision Tuesday striking down a centerpiece of the historic 1965 law, Texas Attorney General Greg Abbott vowed to immediately implement a controversial voter ID law in the Lone Star State that was blocked last year by the now-gutted preclearance provision of the Voting Rights Act.
“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott said, according to the Dallas Morning News. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
Shortly after the Supreme Court handed down its decision, U.S. Attorney General Eric Holder warned in a televised speech that the Justice Department will take “swift enforcement actions” against any efforts to exploit the ruling and enact discriminatory voting laws. But the DOJ will have one less tool to do so.
We do not have to guess what the states currently subject to a key provision of the Voting Rights Act will do if the Supreme Court grants their wish to have that provision declared unconstitutional — top Republicans in those states have already told us. In a brief filed last August, Republican attorneys general from six of the states covered, at least in part, by Section 5 of the Voting Right Act complained that this landmark legislation is all that stands between them and implementing a common method of disenfranchising minority voters. Two of those states, South Carolina and Texas, admit that the Voting Rights Act stopped them from implementing a voter suppression law their governors already signed.
Of course, the voter suppression law at issue here are so-called “voter ID” provisions that require voters to present photo ID at the polls. Their supporters clam publicly that these laws are needed to prevent voter fraud at the polls, but this claim is absurd. Voters are more likely to be struck by lightning than to commit in-person voter fraud. A study of Wisconsin voters found that just 0.00023 percent of votes are the product of such fraud.
What these laws do accomplish is disenfranchisement; even conservative estimates suggest that they prevent 2 to 3 percent of registered voters from casting a ballot. This voter disenfranchisement is particularly pronounced among low-income voters, students and — a fact that is particularly salient for any discussion of the Voting Rights Act — racial minorities.
The Voting Rights Act, of course, protects against laws that expose minority voters to greater burdens than other voters. Section 5, the provision that the Supreme Court will consider tomorrow, requires parts of the country that have historically engaged in voter suppression to “pre-clear” any new voting laws with the Justice Department or a federal court in DC to make sure they do not impose racial burdens. Thus, voter suppression laws such as voter ID can be blocked before an election is held, preventing officials from being elected to office by an electorate that has been unlawfully culled of minority voters.
Lest there be any doubt, voter ID laws are just one of many tactics Republican lawmakers have turned to in order to reshape the electorate into something more likely to elect their favored candidates.
As President Lyndon Johnson warned when he originally proposed the Voting Rights Act to Congress, vote suppressors will bring “every device of which human ingenuity is capable” to deny the right to vote. This is why it is so important that Section 5 exist. Advocates of disenfranchisement are smart, nimble and capable of subtlety. The law must have a mechanism to block their efforts from taking effect before an election is held using illegal, vote suppressing procedures.
Indeed, it is deeply distressing that the Supreme Court would consider weakening the Voting Rights Act at the exact moment that Republican lawmakers are engaged in what President Bill Clinton called the most “determined effort to limit the franchise” since Jim Crow. What America needs today is not weaker voting rights. At the very least, we need to keep the protections we already have and expand Section 5′s coverage to include many Republican-controlled states that are not currently subject to its rule — an expansion the Voting Rights Act explicitly contemplates under what is known as the “bail-in” provision of the law. The lawmakers who reauthorized the Voting Rights Act in 2006 could not have anticipated that Republican lawmakers in many states would begin a voter suppression campaign a few years later, but the drafters of the act were wise to include a provision that enables it to adapt to these circumstances.
Supporters of the Voting Rights Act are painting a bleak picture of what it would mean for the rights of minority voters if the Supreme Court were to strike down the landmark 1965 law’s Section 5, which requires state and local governments with a history of disenfranchising minority voters (i.e. mostly in the south) to receive preclearance from the Justice Department or federal court before changing laws that affect voting.
“Broadly speaking, if we didn’t have Section 5 we would find that minority voters are in many places around the covered jurisdictions will have their ability to equally participate in the political process severely compromised,” Julie Fernandes, a civil rights activist and former deputy assistant attorney general at the Justice Department’s Civil Rights Division, said this week. “We’ll see a lot more of the diluting tactics that we used to have.”
The Supreme Court hears oral arguments Wednesday in Shelby County v. Holder, the most serious challenge to Section 5 of the Voting Right Acts in the nearly 50 years since its enactment. The liberal-leaning Center For America Progress held a briefing with reporters in advance of the Supreme Court hearing where experts, including Fernandes, made the case for the validity and necessity of Section 5. Nervous that their side will face five very skeptical justices at oral arguments, they described the part of the law as critical to protecting minority voters’ rights.
Fernandes warned that certain states and municipalities would be free to enact laws that dilute the African-American and Latino vote — such as a return to “at-large” elections where all of the voters vote for all of the seats and racially-oriented redistricting in Congress, county commissions, sheriff elections and police juries.
“I think that we will see that African Americans and Latinos in particular, but in some places Native Americans, will just not have equal political power,” she said. Fernandes pointed in particular to Alabama, where the Shelby County case originated, and other southern states.
Texas State Rep. Trey Martinez Fischer (D), also at the CAP briefing, argued that the outcome would be systematic efforts in certain state and local governments to marginalize, disenfranchise and even intimidate minority voters.
“Even for those who do persevere, who register and engage in the process, you’re starting to see an increase in voter purges and secretaries of state taking a more active role in maintaining their voting lists,” he said. “You see the voter intimidation tactics of folks … going into minority communities and intimidating poll workers. … So these are things that I think you’ll see more of.”
Keep the VRA and Section 5!
H/T: Sahil Kapur at TPM
In 2006, Congress voted overwhelmingly to reauthorize key provisions of the Voting Rights Act of 1965 for another twenty-five years. The legislation passed 390–33 in the House and 98–0 in the Senate. Every top Republican supported the bill. “The Voting Rights Act must continue to exist,” said House Judiciary chair James Sensenbrenner, a conservative Republican, “and exist in its current form.” Civil rights leaders flanked George W. Bush at the signing ceremony.
Seven years later, the bipartisan consensus that supported the VRA for nearly fifty years has collapsed, and conservatives are challenging the law as never before. Last November, three days after a presidential election in which voter suppression played a starring role, the Supreme Court agreed to hear a challenge to Section 5 of the VRA, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The case will be heard on February 27. The lawsuit, originating in Shelby County, Alabama, is backed by leading operatives and funders in the conservative movement, along with Republican attorneys general in Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota and Texas. Shelby County’s brief claims that “Section 5’s federalism cost is too great” and that the statute has “accomplished [its] mission.”
The current campaign against the VRA is the result of three key factors: a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.
The push by conservatives to repeal Section 5 comes on the heels of what NAACP president Benjamin Jealous has called “the greatest attacks on voting rights since segregation.” After the 2010 election, GOP officials approved laws in more than a dozen states to restrict the right to vote by requiring proof of citizenship to register to vote, shutting down voter registration drives, curtailing early voting, disenfranchising ex-felons and mandating government-issued photo IDs to cast a ballot—all of which disproportionately target communities of color. The states covered by Section 5 were significantly more likely to pass such laws than those that are not.
Attorney General Eric Holder has called Section 5 the “keystone of our voting rights,” and the Justice Department and voting rights groups have argued that it is an essential tool for dismantling barriers to the ballot box. “The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last forty years,” Congress stated in reauthorizing the act in 2006. The disappearance of Section 5 would be a devastating setback for voting rights—akin to the way the Citizens United decision eviscerated campaign finance regulation—and would greenlight the kind of voter suppression attempts that proved so unpopular in 2012.
Overturning Section 5 is in many respects the most important battle in the GOP’s war on voting. As Holder noted in a recent speech, there have been more lawsuits challenging the constitutionality of Section 5 over the past two years than during the previous four decades. Section 5 is in the gravest danger at a moment in contemporary history when it’s needed the most.
The Fifteenth Amendment, which Congress ratified in 1870, states that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Yet it took nearly a century, until the passage of the VRA, for those words to become the enforced law of all the land. “Section 5 was not the first response to the problem, but it was the first effective one, enacted only after case-by-case litigation and less stringent legislative remedies failed,” says a recent brief filed by the NAACP Legal Defense Fund. The law led to the abolition of poll taxes and literacy tests; spurred massive voter registration drives; and laid the foundation for generations of minority elected officials. Even conservatives like George Will regard the VRA as “the 20th century’s noblest and most transformative law.”
It’s not surprising that the most recent challenge originates in Alabama, which, more than any other state, is responsible for the passage of the VRA. LBJ announced the legislation eight days after police brutally beat civil rights activists during the 1965 “Bloody Sunday” protests in Selma. “The Voting Rights Act is Alabama’s gift to our country,” says Debo Adegbile, director-counsel of the NAACP Legal Defense Fund. Shelby County is a wealthy, white-flight exurb of Birmingham, once regarded as the most segregated city in America and known as “Bombingham” for the frequency of attacks on black citizens at the height of the civil rights struggle. (The Alabama GOP held its 2012 election night “victory party” at a gun range in Shelby County, where attendees fired away while awaiting election returns.)
Calera, a once-sleepy town from which the lawsuit stems, is fifty-five miles north of Selma. Best known for its Heart of Dixie Railroad Museum, Calera became the fastest-growing city in the state over the past decade, adding new businesses like Walmart and Cracker Barrel off the busy I-65 highway running from Birmingham to Montgomery. Before local elections in 2008, Calera redrew its city boundaries. The black voting-age population had grown from 13 percent in 2004 to 16 percent in 2008, but the new maps eliminated the City Council’s lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery’s district from 71 to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city’s demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
A soft-spoken and civic-minded precision machinist, Montgomery grew up going to segregated schools until junior high, but he didn’t think race was as big an issue in Calera as it was in other parts of the state. That changed in 2008, when he knocked on doors in the lily-white subdivisions of his new district—which he knew well from his time on the city planning commission—and was told by residents that they were supporting his opponent, who’d lived in the town for only three years. When asked why, they couldn’t give him a good reason. Montgomery could come to only one conclusion: “they voted against me because of the color of my skin.”
Following George W. Bush’s 2004 re-election, Republican National Committee chair Ken Mehlman embarked on an ambitious effort to court minority voters, particularly African-Americans, apologizing for his party’s “Southern strategy” at the NAACP convention and trying to rebrand the GOP as “the party of Lincoln and Frederick Douglass.” But that effort collapsed in the wake of the Bush administration’s mishandling of Hurricane Katrina, which decisively turned blacks against the GOP, and its failure was codified with the election of Barack Obama, who won 80 percent of the minority vote in 2008. Instead of wooing an ever more diverse electorate, Republicans began looking for new ways to suppress its votes, as became evident following the 2010 election, when GOP state legislators introduced tough new voting restrictions in thirty-eight states. The NAMUDNO and Shelby County lawsuits prefigured this shift. “It’s at those moments when minority communities are poised to exercise their political voice that we see the most intently focused voting discrimination,” says Adegbile.
But past remains present to a disturbing degree in the South. States and counties with a history of voting discrimination in the 1960s and ’70s are still trying to suppress their growing minority vote today. Six of the nine fully covered states have passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas). But only one-third of noncovered jurisdictions passed similar restrictions during the same period. The worst of the worst actors are still those covered by Section 5.
It’s certainly true that voter suppression efforts have spread to states like Ohio, Pennsylvania and Wisconsin. If anything, though, that’s an argument for expanding the statute, not eliminating it. “It’s a unique concept to say, ‘Well, since you’re not catching everybody, you can’t catch anyone,’” says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice.
In last year’s election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina’s voter ID law for 2012. “One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here,” Judge Bates wrote during South Carolina’s voter ID trial. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.”
In addition to passing a raft of new voting restrictions, Republicans across the South used their control of state legislatures following the 2010 election to pass redistricting maps that have led to a resegregation of Southern politics, placing as many Democratic lawmakers into as few majority-minority districts as possible as a way to maximize the number of white Republican seats [see Berman, “The GOP’s New Southern Strategy,” February 20, 2012]. Republican leaders say they’re only following the guidelines of Section 5, but in reality they’ve turned the VRA on its head. (Most recently, on Martin Luther King Day, the GOP-controlled Virginia Senate redrew its maps to reduce Democratic seats by diluting black voting strength in at least eight districts.)
Expanding voting rights in these areas has been shaky at best. “Black voters and elected officials have less influence [in the South] now than at any time since the civil rights era,” says a 2011 report from the Joint Center for Political and Economic Studies, which points out that only 4.8 percent of Southern black state legislators serve in the majority, compared with 54.4 percent in the rest of the country. Before the 1994 election, 201 of 202 black state legislators belonged to the majority party. Following the 2010 election, only fifteen of 313 did. There are more black elected officials in the South today, but they have far less power. And without Section 5, there would also be far fewer.
In Alabama, for example, Republicans targeted nearly every white Democrat in the state legislature for extinction but preserved the twenty-seven majority-minority districts in the House (even adding one more) as well as eight in the Senate in order to clear the maps with the feds. (At the time, the head of the Senate Rules Committee, Republican Scott Beason, referred to blacks as “aborigines.”) “If there’s no Section 5, all those majority-black districts are now vulnerable,” says Jim Blacksher, a longtime voting rights lawyer in Birmingham. “And there is no question in anybody’s mind what will happen next.” He calls Section 5 “the most important sea anchor against the ongoing, uninterrupted, virulent white-supremacy culture that still dominates this state.”
The kind of postracial society that would signal Section 5’s irrelevance isn’t anywhere on the horizon. Following Obama’s re-election, white students at the University of Mississippi yelled racial slurs during an impromptu demonstration. Obama won only 10 percent of the white vote in Mississippi and 15 percent in Alabama. “Overall, Obama won about 46 percent of the white vote outside the South and 27 percent of the white vote in the South,” observes Kevin Drum of Mother Jones.
Section 5 is invoked only in the most extreme circumstances and remains an imperfect and underused remedy. From 2010 to 2011, the Justice Department has objected to only twenty-nine of 19,964 submitted voting changes. Localities with a clean record are increasingly “bailing out” from the statute. “More jurisdictions have bailed out in the three years since NAMUDNO than the total number of jurisdictions that had bailed out in the 27 years prior toNAMUDNO,” writes Gerry Hebert, a voting rights lawyer and longtime Justice Department official. “Not a single government that has sought bailout has been turned down.” Adds Sensenbrenner, “Rather than throwing Section 5 out, which allows the people who haven’t cleaned up their act to get out, why not have the people who don’t discriminate anymore utilize the procedure to bail out?”
h/t: The Nation
Virginia Democrats are raising hell after Republicans unexpectedly rammed a controversial redistricting bill through the state Senate on Monday, capitalizing on the absence of a Democratic lawmaker and civil rights leader who was in Washington for President Barack Obama’s second inauguration.
The Virginia Senate is currently split evenly between Democrats and Republicans, each occupying 20 seats in the legislative body. Democratic State Sen. Harry Marsh’s absence paved the way for passage of the previously unannounced legislation by a count of 20 votes to 19.
“The new redistricting map revises the districts created under the 2011 map,” writes Talking Points Memo’s Evan McMorris-Santoro, “and would take effect before the next state Senate elections in Virginia and would redraw district lines to maximize the number of safe GOP seats.”
Under the Republican plan, GOP lawmakers in several states that supported the Democratic candidate for president in recent elections would stop awarding all of their electoral votes to the winner of the state as a whole, and instead award most of them one-by-one to the winners of individual congressional districts. In part because of widespread Republican gerrymandering, if Republicans had implemented this election rigging plan in six key states where they currently control the state government — Florida, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin — Mitt Romney would have won the Electoral College despite losing the popular vote by nearly four points.
Efforts are already underway in several of these six key states to enact this election rigging plan and all but ensure that the next President of the United States is a Republican — regardless of how the American people cast their votes in 2016. Seven Pennsylvania state house members introduced a bill implementing the GOP election rigging plan this week, and the plan already enjoys the support of Pennsylvania Gov. Tom Corbett (R) and state Senate Majority Leader Dominic Pileggi (R). A bill backed by Virginia State Senator Charles “Bill” Carrico Sr. (R) would implement the election rigging plan in Virginia. And Wisconsin Republican state Rep. Dan LeMahieu is behind an election rigging bill in his state. Ohio Secretary of State Jon Husted (R) expressed support for the Republican election rigging plan, but he later backed off that support following significant criticism.
Michigan is a blue state. It supported the Democratic candidate for president in every single election for the last two decades. President Obama won the state by nearly 10 points last November. And yet, if the Republican election-rigging plan had been in effect last year, Romney would have likely won a majority of the state’s electoral votes.
Fresh from claiming the GOP’s 2012 run was “a great campaign—a nine-month campaign”; that only went awry at the end, Republican National Committee chairman Reince Priebus now wants to rig the Electoral College so that when Republicans lose they still might “win.”
Specifically, Priebus is urging Republican governors and legislators to take up what was once a fringe scheme to change the rule for distribution of Electoral College votes. Under the Priebus plan, electoral votes from battleground states such as Florida, Ohio, Pennsylvania, Virginia, Wisconsin and other states that now regularly back Democrats for president would be allocated not to the statewide winner but to the winners of individual congressional districts.
Because of gerrymandering by Republican governors and legislators, and the concentration of Democratic votes in urban areas and college towns, divvying up Electoral College votes based on congressional district wins would yield significantly better results for the GOP. In Wisconsin, where Democrat Barack Obama won in 2012 by a wider margin than he did nationally, the president would only have gotten half the electoral votes. In Pennsylvania, where Obama won easily, he would not have gotten the twenty electoral votes that he did; instead, under the Priebus plan, it would have been eight for Republican Mitt Romney, twelve for Barack Obama.
Nationwide, Obama won a sweeping popular-vote victory—with an almost 5-million ballot margin that made him the first president since Dwight Eisenhower to take more than 51 percent of the vote in two elections. That translated to a very comfortable 322-206 win in the Electoral College.
How would the 2012 results have changed if a Priebus plan had been in place? According to an analysis byFair Vote-The Center for Voting and Democracy, the results would have been a dramatically closer and might even have yielded a Romney win.
Under the most commonly proposed district plan (the statewide winner gets two votes with the rest divided by congressional district) Obama would have secured the narrowest possible win: 270-268. Under more aggressive plans (including one that awards electoral votes by district and then gives the two statewide votes to the candidate who won the most districts), Romney would have won 280-258.
“If Republicans in 2011 had abused their monopoly control of state government in several key swing states and passed new laws for allocating electoral votes, the exact same votes cast in the exact same way in the 2012 election would have converted Barack Obama’s advantage of nearly five million popular votes and 126 electoral votes into a resounding Electoral College defeat,” explains FairVote’s Rob Richie.
The RNC chair is encouraging Republican governors and legislators—who, thanks to the “Republican wave” election of 2010, still control many battleground states that backed Obama and the Democrats in 2012—to game the system.
“I think it’s something that a lot of states that have been consistently blue [Democratic in presidential politics] that are fully controlled red [in the statehouse] ought to be considering,” Priebus says with regard to the schemes for distributing electoral votes by district rather than the traditional awarding of the votes of each state (except Nebraska and Maine, which have historically used narrowly defined district plans) to the winner.
Already, there are moves afoot in a number of battleground states to “fix” the rules to favor the Republicans in 2016, just as they have already fixed the district lines for electing members of the House. Thanks to gerrymandering and the concentration of Democratic votes, Republicans were able to lose the overall nationwide vote for US House seats by 1.4 million votes and still take control of the chamber—thus giving the United States the divided government that voters have rejected.
Thanks To Gerrymandering, Democrats Would Need To Win The Popular Vote By Over 7 Percent To Take Back The House
As of this writing, every single state except Hawai’i has finalized its vote totals for the 2012 House elections, and Democrats currently lead Republicans by 1,362,351 votes in the overall popular vote total. Democratic House candidates earned 49.15 percent of the popular vote, while Republicans earned only 48.03 percent — meaning that the American people preferred a unified Democratic Congress over the divided Congress it actually got by more than a full percentage point. Nevertheless, thanks largely to partisan gerrymandering, Republicans have a solid House majority in the incoming 113th Congress.
A deeper dive into the vote totals reveals just how firmly gerrymandering entrenched Republican control of the House. If all House members are ranked in order from the Republican members who won by the widest margin down to the Democratic members who won by the widest margins, the 218th member on this list is Congressman-elect Robert Pittenger (R-NC). Thus, Pittenger was the “turning point” member of the incoming House. If every Republican who performed as well or worse than Pittenger had lost their race, Democrats would hold a one vote majority in the incoming House.
Pittenger won his race by more than six percentage points — 51.78 percent to 45.65 percent.
The upshot of this is that if Democrats across the country had performed six percentage points better than they actually did last November, they still would have barely missed capturing a majority in the House of Representatives. In order to take control of the House, Democrats would have needed to win the 2012 election by 7.25 percentage points. That’s significantly more than the Republican margin of victory in the 2010 GOP wave election (6.6 percent), and only slightly less than the margin of victory in the 2006 Democratic wave election (7.9 percent). If Democrats had won in 2012 by the same commanding 7.9 percent margin they achieved in 2006, they would still only have a bare 220-215 seat majority in the incoming House, assuming that these additional votes were distributed evenly throughout the country. That’s how powerful the GOP’s gerrymandered maps are; Democrats can win a Congressional election by nearly 8 points and still barely capture the House.
Partisan gerrymanders, like the one that now all but locks the GOP majority in place, have been the subject of repeated court challenges. America can thank the five conservative justices on the Supreme Court for allowing these gerrymanders to continue.
While Washington bickers over the fiscal cliff, and normal people frantically finish their Christmas shopping, numbers geeks have been eagerly awaiting the 2012 census population estimates. These are the annual revisions that the U.S. Census Bureau does to the decennial count, and they give us some insight into how the population is changing.
The numbers are now out, and the shifts again confirm what we already mostly knew about population trends: The Northeast and Midwest grew very slowly, the West grew at a modest pace, and the South grew about 3.5 times as fast as the Northeast and Midwest combined. The pace of immigration picked up slightly, but the overall pattern remains the same: relatively slow population growth, accompanying slow economic growth.
Winners: California (+1), Colorado (+1), Florida (+1), North Carolina (+1), Oregon (+1), Texas (+3).
Losers: Illinois (-1), Michigan (-1), Minnesota (-1), New York (-1), Ohio (-1), Pennsylvania (-1), Rhode Island (-1), West Virginia (-1).
If we take the latest estimates and do a simple linear extrapolation (take the difference between the 2010 and 2012 numbers, multiply by five, add that to the 2010 figures), we get the following updated results:
Winners: California (+1), Colorado (+1), Florida (+1), North Carolina (+1), Texas (+2), Virginia (+1).
Losers: Illinois (-1), Michigan (-1), Minnesota (-1), Ohio (-1), Pennsylvania (-1), Rhode Island (-1), West Virginia (-1).
Some of these changes have some significance. California resumes its upward march in seats. New York fails to lose a seat for the first time since the 1940 census. Michigan falls to 13 seats, its fewest since the 1910 census, while Ohio falls to 15 districts, the fewest it has had since the 1820s.
Many of these seats are tentative. Only a few thousand people separate seat number 435 (California’s 54th district) from “just missed” seat number 436 (Texas’s 39th district). Seats number 431 through 434 are, in order, Virginia’s 12th, Colorado’s 8th, Alabama’s 7th, and New York’s 27th. Those just missing seats (437 through 440) are West Virginia’s 3rd, Oregon’s 6th, Minnesota’s 8th, and, interestingly, Montana’s 2nd.
But perhaps we should weight recent population shifts more heavily. Instead of just looking at the difference between 2012 and 2010, let’s extrapolate from an average of the shift from 2010 to 2011 and 2011 to 2012, weighting the latter shift twice. Under that scenario, we get the following results:
Winners: Arizona (+1), California (+1), Colorado (+1), Florida (+1), North Carolina (+1), Texas (+4), Virginia (+1).
Losers: Alabama (-1), Illinois (-1), Michigan (-1), Minnesota (-1), New York (-1), Ohio (-1), Pennsylvania (-2), Rhode Island (-1), West Virginia (-1).
Under this scenario, the last five seats go to California, Wisconsin, Arizona, Texas, and Illinois. The five closest misses are from Pennsylvania, Florida, Oregon, California, and Alabama.
Federal Court: GOP’s Texas Redistricting Plan Intentionally Discriminated Against Hispanics | TPMMuckraker
A redistricting plan signed by Texas Gov. Rick Perry (R) intentionally discriminated against Hispanic voters, a three-judge panel unanimously ruled Tuesday. The judges found that seats belonging to white incumbent members of Congress were protected under the plan while districts belonging to incumbent minorities were targeted for changes.
The court was “persuaded by the totality of the evidence that the plan was enacted with discriminatory intent,” according to the ruling. There was “sufficient evidence to conclude that the Congressional Plan was motivated, at least in part, by discriminatory intent,” the court found.
All three judges said they were overwhelmed with the amount of evidence showing the law was intentionally discriminatory, writing in a footnote that parties “have provided more evidence of discriminatory intent than we have space, or need, to address here.”
All three redistricting plans — for Texas’ congressional delegation, its state House of Representatives and the state Senate — were blocked by the federal court. The Supreme Court had earlier ruled that interim maps drawn by a federal court were invalid.
That country club reference is tied to Rep. Lamar Smith (R-TX), who chairs the House Oversight Committee that oversees the Justice Department. A lawyer for Smith had requested that a country club be moved out of a Hispanic district and into his.
With a ruling on Friday, the Missouri Supreme Court gave closure to a battle over the state’s new congressional districts — establishing once and for all the boundaries that will matter as the August primary nears.
JEFFERSON CITY • U.S. Rep. Russ Carnahan is challenging fellow St. Louis Democratic U.S. Rep. William Lacy Clay, setting up an intense and potentially divisive primary matchup this summer.
Carnahan, whose current district was eliminated in redistricting, filed Tuesday morning to run for the seat currently occupied by Clay, who filed for re-election less than an hour later.
Tensions have been high between the two since last year, when Clay supported a version of the new congressional map that preserved his district but discarded Carnahan’s.
Carnahan said Tuesday he still hopes the new map is declared unconstitutional — there is a legal challenge outstanding — but in the meantime he is making good on his promise to seek another term in Congress, even if it means challenging a fellow Democratic incumbent.
"These are the maps we have today," Carnahan said shortly after filing his papers in the office run by his sister, Secretary of State Robin Carnahan. "I made it clear over a year ago that I’m running for re-election regardless of how the maps turn out."
Clay said he wasn’t worried about facing a fellow Democratic incumbent. He said the new First District includes only 20 percent of Russ Carnahan’s old district.
For Clay, this will be the first time in more than a decade that he has faced a formidable primary challenger.
Both men are the scions of prominent Democratic families. Carnahan’s father, Mel Carnahan, was governor.
Clay took over for his father, Bill Clay, in Congress in 2001.
While Carnahan has moderately more cash in his campaign account, Clay is expected to draw on a political organization honed by decades of his and his father’s political influence.
Bad move by Russ Carnahan.
h/t: Virginia Young at St. Louis Post-Dispatch