NY Times: Meeting at the White House, maybe. “Democrats are close to finalizing a scaled-back bill that activists hope could be a battering ram in the fight over the filibuster.” I still wonder whether the better filibuster strategy is to focus on one issue at a time, starting with redistricting for a variety of reasons including the need to act before new maps are drawn, rather than even a scaled-back version of the omnibus S1. But the whole issue might be moot if Senator Schumer doesn’t want a filibuster fight: “Mr. Schumer has yet to commit to a timeline, and it is unclear if he would want a full-fledged filibuster fight playing out just as he and Mr. Biden are trying to maneuver a bipartisan infrastructure bill through the Senate.”
Washington Post reports on today’s meeting among Senate Democrats to bring forward new version of S1, the For the People Act, building upon Senator Manchin’s compromise proposal. There’s also the possibility of new provisions aimed at election subversion. But there’s still no prospect for adoption, absent support from GOP Senators (which seems a daunting hurdle), unless there is some sort of filibuster reform (at least to a “talking filibuster,” which would put pressure on the GOP Senators to sustain their opposition).
A reader of the blog sent along a link to this article: How to Win a “Long Game”: The Voting Rights Act, the Republican Party, and the Politics of Counter‐Enforcement. Here’s the abstract:
ADRIENNE JONES and ANDREW POLSKY examine how the Republican Party engaged in counter-enforcement of the Voting Rights Act of 1965, notably during the Reagan and Bush 43 administrations, in an effort to maximize the voting strength of pro-Republican voting constituencies. They argue that sustained counter-enforcement efforts lead to sharp policy oscillations when parties alternate in power and that if a party pursues the long game of persistent counter-enforcement, it may find itself with the opportunity to achieve lasting results.
(When I first moved to Ohio in the early 1990s, a topic of political conversation was how the Republican Party had forged an alliance with the civil rights community to redistrict the state in a way that benefited their mutual interests, but at the expense of the Democratic Party. While the politics of redistricting remain complicated, there have been significant shifts in the decades since then.)
The Network for Responsible Public Policy last week hosted a discussion on the current status, and future prospects, of the For the People Act, still pending in the Senate as S1 (having been enacted by the House as HR1). Dan Weiner of the Brennan Center and I offered different perspectives on the content on the bill, the priorities of its components–I emphasized the need to combat gerrymandering before the midterm maps are drawn–and strategies for getting priorities adopted. I thought it was a really good discussion: while Dan and I agreed on some key objectives, there definitely were differences in how to think about the pending bill and how best to protect American democracy at this current moment of great stress. You can watch the discussion either at the above link or here.
Now that I’ve described in Part I how DRA enables assessing a map’s competitiveness, along with other dimensions, I’ll lay out how DRA makes it possible to compare different maps. To do that, I’ll compare the preliminary map for the new districts that CO’s independent redistricting commission has released to the legislatively enacted plan in place from 2011-2020.
Two points at the outset. CO has gained 1 seat and will have 8 congressional districts, but we can still compare the aggregate effects of the 2020 map and the proposed map for 2022. Second, I am using the map titled CO preliminary 2021 Congressional Districts, under Published Maps, in DRA. This is the commission’s proposed map, and since the 2020 Census numbers have not been released, the census and demographic numbers are based on the 2019 ACS data.
Recall that Amendment Y requires the commission to give significant weight to the value of competitive districts. Recall also that the legislatively-enacted plan, in effect in 2020, came out as “very bad” on competitiveness ground. The commission does improve on this metric, since the proposed plan would merely be “bad” on competitiveness grounds. Here’s the thermometer to illustrate where the new plan comes out on competitiveness.
The proposed plan is also a tad better, though not much, on compactness:
The new plan fares less well on proportionality of the outcomes in partisan terms. That’s because the commission proposed plan is a bit more favorable to Democrats than a fully proportional plan. With 8 seats, the most proportional plan, given voter preferences in CO, would have 4 districts likely to come out for the Democrats and 4 districts for Republicans. Statistically, the proposed plan projects 4.64 districts to be controlled by Democrats. That is, the odds of a 5-3 D-R split are higher than they would be in a purely proportional plan.
DRA has a great feature that permits two plans to be directly compared and presents the comparison in visual terms. Recall the “radar graph” for the plan in effect. Using a Compare Maps feature, DRA superimposes this graph for one map on top of the other. The result looks like this, when we compare the 2020 plan with the commission proposed plan:
From this direct comparison, in which the orange lines represent the commission proposal and the black lines the 2020 map, we can see the following: the commission proposal creates somewhat more competitive districts; is the same on county splits; is a tad better on compactness, and, for the reasons just noted, would be likely to produced slightly less proportional outcomes. The commission process would thus be something of a gain for competitiveness, but not a dramatic one.
But now here is something else that can be done – DRA enables individuals and groups to draw their own maps, and DRA identifies the map that would maximize the competitiveness of districts. I’ll save another post for what that map suggests about how much more competitive Colorado’s commission might be able to make the districts, and what tradeoffs would be involved in doing so.
Colorado’s congressional districts are being drawn by an independent redistricting commission created in 2018 by “Amendment Y,” a legislatively referred constitutional amendment that voters approved. That amendment also specifies the criteria the commission is to use. After specifying that districts must comply with constitutional requirements for population equality and the VRA, the amendment states:
(2) (a) as much as is reasonably possible, the commission’s plan must preserve whole communities of interest and whole political subdivisions, such as counties, cities, and towns.
(b) districts must be as compact as is reasonably possible.
(3) (a) thereafter, the commission shall, to the extent possible, maximize the number of politically competitive districts [emphasis added]
This provides a good opportunity to begin to discuss how to assess the competitiveness of maps. As I have argued, the competiveness of maps ought to be a high value in drawing maps, though incumbents prefer the exact opposite. I’ll explain how the free app, Dave’s Redistricting (DRA), can be used to assess the competitiveness of proposed and enacted plans.
First, start with the map currently in effect, in which CO has 7 congressional districts. If you click on the “Show Analytics” tab for that map, DRA provides quantitative metrics for how any map fares on 5 dimensions: (1) compactness of districts; (2) competitiveness of districts; (3) minority representation opportunities; (4) how much the map splits counties between districts; (5) the “proportionality” of the map, which means the likely D v. R outcomes under the map given the past preferences of voters across a series of elections [a dozen measures of partisan bias experts use are also available]. This also enables map drawers to see the tradeoffs involved between these values. If you decide the overriding goal should to be ensure proportional outcomes, for example, how much sacrifice must be made in other values, like keeping counties intact or having competitive districts.
DRA provides visual and quantitative data on these dimensions. But it then also helpfully converts that more technical data into an easily understood and visualized thermometer graph to explain what those numbers mean in lay terms.
I’ll illustrate with two shots taken from DRA. In the first, the higher the value, the better the map scores on that particular measure. First, here’s the technical graphic for the current map:
This shows that the map performs extremely well on fairness of partisan outcomes, but poorly on competitiveness. It also performs poorly on minority representation, as DRA defines that, because it has no districts that are majority-minority (DRA uses 2019 ACS data and reports CO as having a Hispanic population of around 15-16% and a black population a bit above 4%).
Here’s the second graphic, which puts these technical measures into easily understood terms.
On competitiveness, the current map is “very bad”–
On proportionality, or partisan outcomes, the current map is “very good” –
On compactness the current map sits on the border between “bad” and “okay” —
With that in mind, one of the great virtues of DRA is that it enables users to compare maps along all these dimensions. That’s particularly interesting in CO, given that Amendment Y requires the commission to “maximize” competitive districts, subject to a few other constraints.
In addition, the commission recently released its initial proposed map. We can compare that map to the one currently in effect – as well as to maps that others have drawn for the new districts, to see how well the commission has met its legal obligations.
Since this post is already a long one, I will leave for another post how to do those comparisons and, more importantly, what they tell us about the commission’s initial proposed map and alternatives.
Axios has a report on a data project that Election Law at Ohio State (ELOSU) is pursuing. The idea is to compare how competitive the House districts in a state are as a group versus the competitiveness of the state as whole (as in a Senate race). For a very simple initial look at this, ELOSU took the statewide margin between Biden and Trump in 2020 and compared it to the average margin between Biden and Trump in the state’s House districts. (The Biden and Trump percentages in each state and district are from Cook Political Report.)
ELOSU plans to study these numbers more closely, but a first glance at them shows a striking state-district competitiveness gap in some states but by no means all. For example, in Georgia the margin between Biden and Trump was 0.3, but the average margin between them in Georgia’s House districts was 30.5. There were similarly large gaps in other very competitive states, including Pennsylvania, North Carolina, and Wisconsin.
As the Axios report observes, this competitiveness gap isn’t necessarily the result of partisan gerrymandering (although it is necessarily the consequence of the requirement that House delegations be divided into single-member districts). The reason why House seats might be uncompetitive even in a super-competitive state could be the need to comply with the Voting Rights Act, or simply the “big sort” combined with a mapmaker’s desire to keep rural and urban counties intact. But it is also possible that a state’s House districts are more uncompetitive than necessary to comply with the VRA and to keep counties intact. If so, the extra uncompetitiveness of House districts may be the result of a mapmaker’s partisan motivation to gerrymander the districts to protect against the threat of a competitive challenge.
This analysis suggests the possibility of a straightforward method Congress could adopt to combat partisan gerrymanders. Congress could require states to justify any gap, or at least any large gap, between statewide competitiveness and the average competitiveness of a state’s House seats. If a state could show the need for the gap, in order to comply with the Voting Rights Act or satisfy other legitimate districting goals (like keeping counties intact), then the gap would be lawful. But if this State-Districts Competitiveness Gap (SDCG) can’t be justified by valid districting criteria, then a state could be required to produce a new map that would still achieve all of its valid goals and simultaneously reduce this SDCG. The state’s obligation to defend its map in this way could be administered either in the context of a preclearance-type system or through federal-court litigation authorized by Congress pursuant to its Article I, section 4 authority to legislate procedures for House elections.
NY Times reports on the divide among Democrats. I continue to believe that the short-term strategy should be a stand-alone bill focused solely on combatting partisan gerrymandering, to test the possibility of getting 60 votes in the Senate. If there aren’t 60 votes to curtail gerrymandering, as there should be, then there should be pressure for conversion to a “talking filibuster” that would force 41 Senators to defend the practice of partisan manipulation of district lines solely to defeat the will of the electorate. After that first fight over redistricting, which needs to occur now before the midterm’s maps are drawn, the debate then can move to the serious threat of election subversion through state laws that empower partisans to negate the counting of ballots according to what the voters want.
Nick Stephanopoulos makes some fair points in response to my post on whether, in the absence of a new Act of Congress, the House can or should refuse to seat winning candidates solely on the ground that their districts were gerrymandered by state law. I remain extremely dubious about the idea based on rule-of-law or electoral democracy values, but I don’t want to get into an extended debate on those issues here. Rather, I want only to follow up a bit more on whether this hardball tactic would even work according to its own objectives. In doing this, I hope to keep an open mind on the point and be willing to consider new information and analysis. I invite others, especially those with expertise in House procedure, to weigh in. Meanwhile, here’s how I see this issue.Continue reading House Hardball, part 2
Washington Post summarizes. Given the Republican non-participation, this doesn’t sound like an effective strategy to overcome a filibuster. USA Today reports that Senate Democrats, essentially abandoning S1, will turn instead to VRA reform “this autumn”; if true, this presumably means giving up any attempt to curtail partisan gerrymandering before new maps are drawn for the 2022 midterms. It is astonishing to me that Democrats would cede the issue of partisan gerrymandering before the midterms; if Republicans win the House solely because of partisan gerrymandering, as some of them brazenly are hoping, Democrats will have no one but themselves to blame as a a result of how they’ve mishandled the issue of electoral reform since January 6. In my view, if Democrats were to act consistently with their professed belief that American democracy is facing an existential crisis (as President Biden argued in his speech last week), Democrats would be prioritizing the need for Congress to enact a measure to prevent partisan gerrymandering from distorting the maps to be drawn for the 2022 midterms. (I wholeheartedly agree with Dave Wasserman, who tweeted last week that gerrymandering rather than voting restrictions of the kind legislated in Georgia, or under consideration in Texas, is much more likely to determine which party prevails in the midterms.)
For those of us looking ahead to January 6, 2025, and the possibility that Congress will repudiate the result of a presidential election in a way that was attempted this past January 6 but did not succeed (this time), a House controlled by one political party solely because of partisan gerrymandering could make all the difference between the survival or death of American democracy. When one considers that there’s time before November 2022 to worry about voting rights (in terms of casting and counting ballots), but there’s almost no time left to address the problem of partisan gerrymandering before new maps will be drawn based on census data soon too be released, I would have thought that congressional hearings now should focus on ways to tackle partisan gerrymandering, rather than today’s field trip to Georgia.
“This is the first time the two parties haven’t agreed on a 13th member for congressional redistricting.” That, for me, is the key quote from this report on the need for the state’s Supreme Court to pick the thirteenth member of the state’s redistricting committee. It’s one more data point on just how polarized the nation’s politics have become, and thus how difficult it is for the two parties to work together on anything relating to the basic structure of the electoral process.
From Carrie Levine at the Center for Public Integrity.
Thanks, Dan, we so miss you at Ohio State, but are glad to reconnect whenever there’s an opportunity. Thanks, Rick, for this opportunity to join the ELB blogging team.
As I start, the Senate Rules Committee hearing today is top of mind. It’s an unusual field hearing in Georgia. As the AJC reports, Committee Chair Amy Klobuchar is taking the voting rights show on the road in the hope of generating public pressure for some sort of movement in the Senate on the issue. (Carl Hulse of The NY Times has a profile of Klobuchar’s effort to elevate the committee’s visibility.)
I’ll be interested to see if this strategy works. I’m hardly an expert in Senate politics, but I would have thought that a better move for Democrats right now would be to focus on the issue of partisan gerrymandering, given that as a matter of timing the need to draw new maps for the 2022 midterms occurs before issues relating to the casting and counting of ballots must be addressed. It also seems to me that it would be harder for Senate Republicans to defend a filibuster if a bill focused solely on combatting unjustifiable partisan distortion of district lines. And if Democrats were to be successful in convincing their reluctant colleagues to modify the filibuster rules, perhaps just to convert the filibuster to the “talking” form that would require Republicans to consistently come up with the 41 votes to block the bill, it might be hard for GOP Senators to sustain the effort to protect the raw power to engage in partisan gerrymandering at the expense of the will of the electorate. But I don’t anticipate gerrymandering being a focus of today’s hearing; instead, I expect it to center on the kinds of casting and counting issues that have dominated public discussion of potential electoral reform over the last several months.
From the Milwaukee Journal Sentinel, on opening salvos in the long battles to come:
The Wisconsin Supreme Court for the time being reinstated the redistricting attorneys for Republican state lawmakers late Thursday in a decision that divided the justices along ideological lines.
The 4-3 ruling means the Republicans can resume working with private attorneys they hired at taxpayer expense while the high court considers the case….
The Republicans hired attorneys in December and January because of the anticipated litigation. A group of Madison teachers sued and Dane County Circuit Judge Stephen Ehlke agreed with them in an April ruling that said lawmakers can hire attorneys when they are sued, but not when they simply expect they will be sued.
Axios: “Texas, Georgia, Florida and Arizona have been at the center of a partisan war over voting rules that could impact voters of color — they’re also among the top 10 states with the lowest percentage of white residents.”