Joey Fishkin: “California’s Prop 50 passed. Now, here’s how to end partisan redistricting once and for all “

political parties, political polarization, redistricting

Joey Fishkin with an important piece in the SF Chronicle:

The nationalization of politics also provides an opening to solve this problem. Congress has the power to do what it did in 1842: Enact a statute to bring both parties back from the brink. Congress’ authority to set the “Times, Places, and Manner” of choosing representatives is undisputed. Prop 50 itself, perhaps as a sweetener to help the partisan medicine go down, included an anti-gerrymandering cri de coeur: It “establishes state policy supporting use of fair, independent, and nonpartisan redistricting commissions nationwide.” 

We need a new federal statute of mutual disarmament — ideally before we reach the point where there are zero California Republicans and zero Texas Democrats. Prop 50’s call for nonpartisan redistricting commissions nationwide is a good start. So is the bill by Rep. Kevin Kiley, R-Rocklin (Placer County), who may lose his seat because of Prop 50, which would ban mid-decade redistricting nationwide. 

However, there are major problems to overcome. First, it will be difficult to prevent states from stacking nonpartisan commissions with partisans. Second, the two parties are unfortunately not similarly situated: Both parties benefit from gerrymandering, but Republicans have more opportunities and benefit more. That is part of why Democrats were able to unite their caucus in 2021 behind their democratic reform package, HR1, which included a requirement that every state use a nonpartisan redistricting commission, whereas Republicans do not seem interested in even Kiley’s modest bill. 

Thus, unfortunately, the most plausible route to solving the gerrymandering problem is to elect a Democratic majority in the House and Senate, and a Democrat in the White House, and then make sure they — at their moment of maximum opportunity to lock in partisan advantage through partisan hardball — instead engage in anti-hardball, building fairer rules for everyone. ….

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“Mark Cuban Joins Legal Fight Against Dark Money and Super PACs”

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This is a story in Sportico about HLS’s Election Law Clinic’s amicus brief on behalf of a group of billionaires arguing that Maine’s limit on Super PAC contributions doesn’t burden their speech and serves important goals including preventing corruption and avoiding the distortion of the political system.

Dallas Mavericks minority owner Mark Cuban has teamed up with four other billionaires—hedge fund manager William von Mueffling, LinkedIn co-founder Reid Hoffman, and venture capitalists Steve Jurvetson and Vin Ryan—to argue in an amicus brief that their enormous wealth shouldn’t provide them more political influence than other Americans and that a Maine campaign finance law limiting contributions to super political action committees (super PACs) is both sensible and constitutional.

“Because of their wealth,” the brief says of the billionaires, “amici have the capacity to be extraordinarily influential in America’s political system. But amici didn’t ask for this power. And they don’t want it.”

The brief concerns Dinner Table Action & For Our Future v. William J. Schneider et al., a case brought by two Maine super PACs that accept contributions exceeding Maine’s limit. Several Maine officials, including Maine Commission on Governmental Ethics and Election Practices chairman William J. Schneider, are the defendants.

The case centers on whether a citizen referendum, overwhelmingly approved by Maine voters last year, complies with First Amendment political speech protections. The resulting act sets a $5,000 limit for super PACs. It also includes disclosure requirements regarding the identity of donors and donations related to funding communications that advocate for the election or defeat of a particular candidate. The referendum was backed by Equal Citizens and its founder, Harvard Law School professor Lawrence Lessig. . . .

Last Thursday, professors Samuel Jacob Davis and Ruth Greenwood of the Election Law Clinic at Harvard Law School submitted an amicus brief on behalf of Cuban and his colleagues. . . .

Cuban’s group sees Maine’s law as “reasonable” and “necessary to protect” democracy from “the kind of corruption that plagues too many elections.” That is especially important in a sparsely populated state like Maine, where “a relatively small amount of outside money can play an outsized role in local races that should be focused on local issues.”

The brief contends that regulating super PAC contributions imposes minimal constraints on free speech rights. It asserts that super PACs “give voters little useful information and often express a muddled political message,” with donations “often funneled through shell entities” known as “dark money organizations.” . . .

Further, the brief warns that unlimited super PAC contributions “create a serious risk of actual quid pro quo corruption and its appearance.” It cites former U.S. Senator—and now convicted felon—Bob Menendez (D-N.J.), who was accused of using super PAC contributions as payoffs for influencing a Medicare billing dispute involving a friend. The brief also points out that super PAC contributors have been appointed to high-ranking positions. For instance, current U.S. Secretary of Education Linda McMahon “had no teaching experience prior to her appointment, but she had donated tens of millions of dollars to various super PACs supporting the president who appointed her.”

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Proposition 50: “California voters pass anti-Trump, pro-Democrat ballot measure”

direct democracy, redistricting

LA Times:

California Democrats’ effort to block President Trump’s agenda by increasing their party’s numbers in Congress was overwhelmingly approved by voters on Tuesday.

The Associated Press called the victory moments after the polls closed Tuesday night.

The statewide ballot measure will reconfigure California’s congressional districts to favor more Democratic candidates. The Democratic-led California Legislature placed the measure on the Nov. 4 ballot, at Gov. Gavin Newsom’s behest, after Trump urged Texas and other GOP-led states to modify their congressional maps to favor their party members, a move designed to keep the U.S. House of Representatives in Republican control during his final two years in office.

Proposition 50 was the sole item on the statewide, special-election ballot Tuesday. Supporters hope the ballot measure has become a referendum about Trump, who remains extremely unpopular in California, while opponents call Prop. 50 an underhanded power grab by Democrats….

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“All three Pa. Supreme Court justices are retained following a historically expensive race”

judicial elections

Philly Inquirer:

All three Pennsylvania Supreme Court justices on Tuesday’s ballot for retention will remain on the bench, following an unprecedented and closely watched retention election that eclipsed previous spending records as Democrats sought to protect the liberal judges.

Pennsylvania’s highest court will maintain its liberal majority for at least the next two years, retaining JusticesChristine Donohue, Kevin Dougherty, and David Wecht through the 2026 midterms and ahead of the 2028 presidential election. During that time, the court will hear cases that impact the daily lives of Pennsylvania residents, such as abortion access, voter access, mail voting law, and more. The Associated Press called the race at 9:53 p.m. Tuesday, less than two hours after polls closed.

The stakes of Tuesday’s judicial retention election were set up a decade ago by a perfect storm of factors.The three justices up for retention — Donohue, Dougherty, Wecht — were each elected as Democrats in 2015 during a rare and transitional period for the court when Democrats took a majority. The 2015 election was the first time three seats were open at one time, in part due to resignations of disgraced former justices. Since then, Donohue, Dougherty, and Wecht have played decisive roles on the 5-2 liberal majority of Pennsylvania’s highest court.

This year’s retention race — usually a sleepy, off-year affair — topped $16 million in ad buys and mailers, mostly from Democrats or aligned groups, to try to draw voters out to the polls to protect the liberal majority they view as the last backstop to protect Pennsylvanians’ rights during an overreaching Trump administration. Republicans, meanwhile, saw the high-stakes race as a “once-in-a-lifetime opportunity” to oust three liberal state Supreme Court justices in one election….

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“Mainers reject voter ID, absentee ballot restrictions as Question 1 fails”

absentee ballots, direct democracy, voter id

Maine Public:

Maine voters rejected a referendum on Tuesday that would have required a photo ID to cast a ballot and that proposed multiple changes to Maine’s increasingly popular absentee voting process.

The Associated Press called the race at 9:54 p.m. as initial returns showed strong opposition to Question 1 in more left-leaning coastal Maine but also in some areas of rural western and central Maine. Question 1 was failing 39% to 61% with more than half of the statewide votes counted, according to the AP.

The lopsided outcome represents the latest political defeat for conservatives on an issue that they have been pursuing in Maine for more than a decade. Conservative activists collected more than 170,000 petition signatures to place the issue on the statewide ballot this year after repeatedly failing to get voter ID bills through the Maine Legislature.

But the “overwhelming grassroots support” that campaign organizers said they witnessed during the petition drive failed to carry through to Election Day. Instead, the campaign struggled to compete against better-funded opponents who seized on the proposed changes to absentee balloting as they portrayed Question 1 as an underhanded attempt to disenfranchise voters and making voting more difficult.

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