SCOTUS Rules Arizona Redistricting Commission Constitutional

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In a 5-4 decision announced Monday, the Supreme Court of the United States ruled that an independent commission formed to redraw congressional and state Legislature districts is constitutional.

The SCOTUS justices ruled that the Constitution does not necessarily mean that states can’t cut their Legislatures out of the redistricting process.

Justice Ruth Bader Ginsburg wrote the majority opinion and was joined by Justices Kennedy, Breyer, Kagan and Sotomayor.

The justices who dissented included Chief Justice Roberts and Justices Scalia, Thomas, and Alito.

This is what Ginsberg wrote:

“The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have ‘an habitual recollection of their dependence on the people. In so acting, Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’”

Here’s another excerpt from the opinion:

“Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by ‘the Legislature.”

To read the entire opinion, click here.

For more information on redistricting, check out our resources page here, and our section dedicated to white papers and academic research dealing with the matter here.

New Paper Explores Media Attention of Voter Fraud

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A recent paper published by Research & Politics explores the media attention given to voter fraud during the 2008 election versus 2012 election.

The paper, titled, “News Attention to Voter Fraud in the 2008 and 2012 U.S. Elections” was written by , , , , and  explanatory abstract:

The nature and frequency of voter fraud figure prominently in many ongoing policy debates about election laws in the United States. Policy makers frequently cite allegations of voter fraud reported in the press during these debates. While recent studies find that voter fraud is a rare event, a substantial segment of the public believes that voter fraud is a rampant problem in the United States.

It stands to reason that public beliefs are shaped by news coverage of voter fraud. However, there is very little extant academic research on how the news media, at any level, covers allegations or documented cases of voter fraud. This paper examines local newspaper attention to voter fraud in each of the 50 states during the 2008 and 2012 US elections.

The results show that local coverage of voter fraud during the 2012 elections was greatest in presidential swing states and states that passed restrictive voting laws prior to the 2012 election. No evidence that newspaper attention is related to the rate of actual voter fraud cases in each state was found. The findings are consistent with other studies indicating that parties and campaigns sought to place voter fraud on the political agenda in strategically important states to motivate their voting base ahead of the election.

The conclusion?

This paper has examined how the press covers voter fraud. Numerous polls show that a majority of Americans believe that voter fraud is common and is a serious threat to the integrity of American elections. While this belief is stronger among conservatives and Republicans, this general notion crosses the political spectrum. While some Americans may be predisposed to voter fraud beliefs, it is believed, given the agenda-setting function of the press, that media coverage of voter fraud may influence public opinion on the issue. This paper seeks to assess the role of the media in Americans’ beliefs about voter fraud.

This paper has presented a first attempt at answering this question, and its findings indicate heavier news coverage of voter fraud in battleground states and in states that have recently enacted restrictive election laws. These findings indicate that supply-side factors affect the creation of voter fraud news, and are consistent with a theory positing that media coverage responds to elite debates. Furthermore, no demand-side audience effects on voter fraud coverage have been found. Instead, this study’s findings suggest parties and campaigns sought to place voter fraud on the political agenda through the media in strategically important states to motivate their voting base ahead of the election. This situation may change as more Americans become informed about voter fraud and demand news about the issue.

Want to read the entire paper? It is available in its entirety here.

Citizens Seek Sanctions Against City for Attempting to Punish them for Bringing Voting-Rights Case

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Editor’s Note: We wanted to put this on your radar – an interesting case out of Albuquerque that related to voting rights. Below is information from The Campaign Legal Center.

Earlier this month, four Albuquerque voters, plaintiffs in Baca v. Berry, a voting rights case currently before the U.S. Court of Appeals for the Tenth Circuit, filed a motion for sanctions against the city and its attorneys for pursuing a frivolous cross-appeal in bad faith.  This cross-appeal had sought to force the voters to pay the city’s attorneys’ fees.  The voters are represented before the Tenth Circuit by the Campaign Legal Center.

The voters originally brought the case to challenge the City of Albuquerque’s redistricting plan for city council districts.  After the case was brought, Albuquerque voters passed a referendum that altered the way the city council is elected.  In light of this change in the law, the case was dismissed.

The city then sought to recover its attorneys’ fees from the voters and their attorneys.

The district court granted the city’s motion to sanction the voters’ attorneys for prolonging the case, ordering them to pay $48,000, but refused to award fees against the individual voters.  After the attorneys appealed this sanctions order to the Tenth Circuit, where they are represented by the law firm Jenner and Block, the city filed a cross-appeal seeking fees against the individual voters.  But the city presented essentially no legal argument in support of this cross-appeal and dropped the cross appeal at oral argument before the Tenth Circuit on May 6, 2015.

Rather than a good faith effort to recover its attorneys’ fees, the city’s cross-appeal was likely a bad faith attempt to intimidate civil rights plaintiffs and coerce their former attorneys into dropping their appeal.

“The City of Albuquerque and its Mayor acted shamelessly to intimidate and punish minority voters with gratuitous sanctions for attempting to safeguard their voting rights as residents of the city,” said Joshua Bone, the Legal Center attorney who argued before the Tenth Circuit.  “The city’s conduct was so reprehensible that the Albuquerque City Council passed a resolution condemning the city’s pursuit of attorneys’ fees against its own citizens.  We hope the court will see fit to rule in a manner that will dissuade other elected officials from abusing their office by bullying their own constituents and scaring them away from their recourse to the courts.”

To read the motion filed today seeking sanctions against the city, click here.

Citizens United Was a Win for Local TV Stations’ Budgets

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Much has been argued about the Citizen’s United opinion. There are scholars that argue for and against it.

But according to a recent story posted on Slate, there is at least one piece of the American demographic pie that absolutely benefited from it: Local TV stations.

Or, to be more specific: Local TV stations’ bottom lines.

Here’s an excerpt from the piece, written by :

Citizens United opened the floodgates for unprecedented amounts of political advertising, and nobody has surfed that wave more than local TV station operators. For local broadcast channels and their it-bleeds-it-leads newscasts, the Supreme Court might as well be that mythic relative who leaves you an unexpected fortune in his will. The cascade of political money to your local channel began for real in 2012. That year, according to the Pew Research Center, local television stations received $3.1 billion in political advertising revenue. That was 48 percent more than was spent just two years earlier (before Citizens United) and represented more than double the amount raked in during the previous presidential election in 2008.

The columnist then refers to a report issued this spring by Pew, in which the state of the media was discussed at length.

The pull quote from that report as it relates to television stations and Citizens United, however, was this:

In 2014 total on-air ad revenue for local stations reached $20 billion, according to consulting firm BIA/Kelsey, up 7 percent from the year before.

Want to read the entire Slate report? It may be viewed here.

Want to read more about the Pew report? Click here.

Common Cause Urges Action This Year To Strengthen Voting Rights

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Americans shouldn’t have to wait for the election of a new President to get strong federal and state action to protect and strengthen voting rights, Common Cause said recently.

“It’s encouraging to see voting rights and voter participation emerging as issues early in the race for the White House,” said Common Cause President Miles Rapoport. “But Congress should be working now, as many of our state legislatures already are working, to make it easier for Americans to register to vote and to cast their ballots.

Rapoport praised proposals for expanded early voting, online registration and improved election administration outlined this week by candidate Hillary Rodham Clinton. “These ideas ought to be a starting point for bipartisan action to ensure that every qualified American has the right to vote, is able to cast his or her ballot easily and can be confident that the ballot will be counted as cast,” he said. A bipartisan commission created by President Obama after the 2012 election already has put forth a series of comprehensive, common-sense steps to shorten voting lines and increase efficiency.

“This year marks the 50th anniversary of the Voting Rights Act. This month marks two years since the Supreme Court gutted key provisions of that law in Shelby County v. Holder. And yet Congress has done nothing to restore the act; the chairman of the House Judiciary Committee refuses even to convene a hearing,” Rapoport said.

“There is no reason – none at all – why this should be a partisan issue,” he added. “The original Voting Rights Act and the revisions that have been adopted over the years all enjoyed bipartisan support. Those laws have made it possible for millions of Americans who once were shut out of our democracy to become full partners in the American experiment.”

Editor’s Note: Common Cause is a nonpartisan, grassroots organization “dedicated to restoring the core values of American democracy, reinventing an open, honest, and accountable government that works for the public interest, and empowering ordinary people to make their voices heard.”

Public Citizen Refiles Petition for FEC Commissioners Who Were Rebuffed by Own Agency

Public Citizen recently picked up where the Federal Election Commission refused to venture and refiled a petition (PDF) for rulemaking on disclosure and coordination rules that was originally offered by FEC Chair Ann Ravel and Commissioner Ellen Weintraub.

A sorely divided agency – complete with name-calling – argued for two hours today in its monthly public hearing over a petition for rulemaking filed by two of its own commissioners. This is the first time FEC commissioners have filed a petition for rulemaking with their own commission, although other governmental officials, such as U.S. Rep. Chris Van Hollen (D-Md.), have done so. But the act created an uproar.

“Since 2008, the elections agency has been largely immobilized by a 3-to-3 party line deadlock, essentially unable to enforce the law or even update its rules and regulations,” said Craig Holman, government affairs lobbyist for Public Citizen’s Congress Watch division. “In an act of desperation, Chair Ravel and Commissioner Weintraub filed a petition for rulemaking that would invite public participation in an effort to break the logjam.”

The Republican bloc on the commission would have none of it. The commission was heading toward another deadlock vote on whether to post the petition for rulemaking – a procedure that has always been considered a formality. The commission debated whether a commissioner has the authority to file a petition for rulemaking; whether the commission even need recognize such a petition; and what a deadlocked indecision would actually mean when such petitions have always been routinely posted.

“The debate became rancorous and shows how the campaign finance law has been tortured in recent years,” said Lisa Gilbert, director of Public Citizen’s Congress Watch division. “The dramatic activity today underscores the real need for productive action by our FEC, and the pushback on the Ravel-Weintraub complaint leaves us wondering how this government agency can get there.”

In the end, the commission decided to delay consideration of the petition. With that indecision, Public Citizen picked up the petition, dusted it off and refiled it.

Brennan Center Releases 2015 Voting Laws Roundup


With the 2016 race already under way, the voting wars continue in the states, but with a significant drop-off in new restrictions in 2015, according to a new analysis by the Brennan Center for Justice at NYU School of Law.

Since the 2010 election, however, 21 states have new laws making it harder to vote — and in 14 states, next year will be the first time these rules are in effect for a presidential election, which is marked by high turnout.

At the same time, there is also solid momentum on reforms to improve the voter registration process this year. In recent months, Oregon enacted a significant new law that will automatically sign up citizens. Several other states have seen proposals to adopt online registration. In fact, for the third year in a row, bills to expand voters’ access to the ballot box outpace those to restrict voting.

Overall, since the 2012 election, 23 states plus the District of Columbia passed new laws to improve voting. This has not necessarily put voters ahead of where they have been in recent years, however, because restrictive legislation continues to make it harder for voters to participate.

In the 2015 legislative session, there have been at least:

  • 113 restrictive voting bills introduced in 33 states
    • 1 voter ID bill passed in North Dakota
  • 464 bills to enhance voting access introduced in 48 states plus the District of Columbia
    • 14 bills to improve voting passed in 11 states, plus the District of Columbia

Click here for a full list of states and maps.

“Heading into the 2016 election, politicians continue to waste time fighting over restrictive voting laws,” said Myrna Pérez, deputy director of the Brennan Center’s Democracy Program. “Instead, we must improve the voting system. Several states are moving in the right direction. Next year, let’s make sure every eligible American can make their voice heard. ”

Voting Wars Continue, But With Less Output

Voter ID is still at the forefront of the voting wars, and it remains largely a partisan issue, according to the Brennan Center’s analysis. Nearly half the restrictive bills introduced this session are voter ID-related, and most have Republican-only sponsorship. Only one restrictive bill has been enacted thus far. North Dakota passed a bill making its voter ID law even more restrictive, permitting only four forms of ID. But voter ID requirements failed in several states, including Arkansas, Maine, Missouri, Nebraska, New Mexico, and Nevada, which had a rancorous fight.

Momentum on Registration Reform

In March, Oregon passed a breakthrough law to modernize voter registration by automatically registering eligible citizens who have driver’s licenses (and do not ask to remain unregistered). Oregon’s law triggered a surge of similar proposals from 14 states and the District of Columbia. Another popular reform this year is online registration, which continues to receive bipartisan support, with bills passing in Florida, New Mexico, and Oklahoma. Vermont also passed a bipartisan Election Day registration bill, and Indiana passed legislation allowing state agencies that issue SNAP and TANF benefits to electronically transfer voter registration information to election officials.

And the Winner Is…First Place Common Cause ‘Gerrymander Standard’ Essay Announced

On Wednesday and Thursday we shared the third and second-place winners in the Common Cause “Gerrymander Standard” essay contest, so today we wanted to tell you about piece that took first in the writing competition.

Michael D. McDonald and Robin E. Best of Binghamton University are the authors of the winning piece, titled, “Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases.”

Here is a introduction to the winning submission:

Our paper advances a standard for identifying entrenchment forms of gerrymandering.  The proposed standard has four desirable qualities: (1) it focuses on unequal voting rights as gerrymandering’s harm; (2) it uses an easily manageable standard; (3) it identifies gerrymandering as the cause of the unequal vote weights; and (4) it distinguishes between a gerrymander as a structural political fact and a gerrymander as a matter of legally significant constitutional offense.

The crux of the matter is the question asked. Instead of asking whether a districting arrangement causes harm to a party because it wins fewer seats than its “fair” share, the question here is whether a districting arrangement causes an unequal weighting of votes for one set of partisan voters versus the other.  While the two questions are closely connected, the vote-weight question is the one that leads to a manageable standard, to revelations of whether gerrymandering is the cause of unequal vote weights, and to distinctions between gerrymanders as unfair short-run political advantages versus long-run presumptive constitutional offenses.

We apply our diagnostic to six cases of alleged partisan gerrymandering of congressional districts— viz. California in the 1980s plus Florida, Michigan, Ohio, Pennsylvania, and Texas in the 2002 round of redistricting.  One important result is a showing that the diagnostic distinguishes harmful gerrymanders from false allegations; another is a showing that a factual finding of a partisan gerrymander can be distinguished from gerrymanders that rise to the level of constitutional offense.  The California, Pennsylvania, and Texas districts were not gerrymanders.  For social science and for neutral mapmaking purposes, where findings of fact are important in and of themselves, Florida, Michigan, and Ohio are partisan gerrymanders.  Within our proposed distinction between a factual finding and a finding in both fact and law, only Florida’s districting plan can be indicted as a legally significant gerrymander.


And the Winner Is…Common Cause’s Second Place ‘Gerrymander Standard’ Essay

Yesterday, we told you about the third-place winner in Common Cause’s first-ever “Gerrymander Standard” writing competition – so today we wanted to share the piece that took second.

Jowei Chen from the University of Michigan and Jonathan Rodden of Stanford University are the authors of “Cutting through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders.”

Here’s an abstract of the award-winning piece:

Social scientists have made progress in providing the courts with useful measures of partisan asymmetry in the transformation of votes to seats, but have thus far left a larger question unanswered: how can partisan gerrymandering be distinguished from a state Legislature’s acceptable efforts to apply traditional districting criteria, keep communities of interest together, and facilitate the representation of minorities?
This article demonstrates how a straightforward redistricting algorithm can be used to generate a benchmark against which to contrast a plan that has been called into constitutional question, thus laying bare any partisan advantage that cannot be attributed to legitimate legislative objectives. We use the controversial 2012 Florida Congressional map to show how our approach can be used to demonstrate an unconstitutional gerrymander.
Interested in reading more? Click here. Want to learn more about the writing competition in general? Click here.
And stay tuned: Tomorrow we will bring you more info on the first-place winner.

And The Winner Is…Third-Place Common Cause ‘Gerrymander Standard’ Essay

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As we told you in December, nonprofit good-government group Common Cause this past December announced its first-ever “Gerrymander Standard” essay contest.

Here’s how the “Gerrymandering Standard” writing contest worked: Practitioners, scholars and students were invited to submit original, unpublished works between 25 and 50 pages in length (including footnotes) “creating a new definition for partisan gerrymandering or further developing an existing definition.”

A judging committee composed of leading academics and former Supreme Court justices selected the top three papers, the authors of which will receive case prizes and publication in the Election Law Journal.

Congrats to Anthony McGann from the University of Strathclyde, Charles Anthony Smith and Alex Keena from UC Irvine, and Michael Latner from Cal Poly San Luis Obispo, authors of the third-place essay titled, ““A Discernable and Manageable Standard for Partisan Gerrymandering.”

Here is a little more about the essay via the authors’ abstract:

The case of Veith v. Jubelirer (2004) challenges us to find a standard for partisan gerrymandering that is judicially
discernable and manageable. Without such a standard even the most egregious partisan gerrymanders cannot be effectively challenged.
However, we argue that the way to find a suitable standard is not to embark on a quest for a “new” standard.
Rather it is to take the existing valid measures that science gives us, and show that these can be grounded in
constitutionally protected rights. Using recent results in social choice theory, we show that the existing partisan
symmetry standard can be derived from an individual right to equal protecti on. We also show that the existing technology for measuring partisan symmetry can provide a judicially manageable test for partisan bias.
Interested in reading more? Check out the introduction here.
Stay tuned for more on the second-place winner tomorrow!