Redistricting Reform Part 3
December 9, 2009
When the inmates control the asylum
So what happens when we allow partisan redistricting? The short answer is “bad things.” Here’s the longer answer:
[Warning: This post is rife with sarcasm. Most of the time, no offense is meant… most of the time.]
Here’s our scenario – your state legislature has gerrymandered the heck out of your home district. So you, a decently moderate Republican are stuck in a district of lots of Democrats… Say, 65% or so of your neighbors vote for Democrats. Republican performance in your precinct is high, the area of Republicans in your town has been broken up between three different districts, ensuring that any republican votes are effectively diluted. Your Republican friend across the street? He’s in a different district. Your conservative father in law down on Main street? He’s in yet another district. And to top it off, your state legislator, who used to live down the street, has been redistricted right out of his own district! In fact, there are so many Democrats who have been put into this district of yours that there’s almost no reason a republican should run – he’ll lose and lose badly, often even if the Democrat isn’t the greatest candidate.
So what happens in this situation? Well, first thing first, Democrats win. Second, Republicans lose. And third, the primary election becomes more important than the general election. In the situation where the opposition party has no chance of winning the general election, and one party will always win the General Election, the real competition comes in the primary election, when the parties choose their nominees. Imagine, for a moment, that America was a 70-30 Democratic country. What would be a more important election? The General or the Democratic primary? Yeah, it’s an easy answer.
Weekly Wrap Up
December 4, 2009
Every Friday, State of Elections brings you the latest news in state election law.
– Events in Virginia’s 21st district are moving quickly, and Virginia Beach Circuit Court Judge Fredrick Lowe has scheduled a recount for the 14th of December.
-Hawaii’s chief election officer, Kevin Cronin, has resigned abruptly, shortly after proposing a plan that would close 40% of that state’s polling places. The plan, Cronin says, is a necessary evil after budget cuts have severely hampered the state’s ability to fund its elections.
– A New Jersey judge has extended restrictions on GOP “ballot security” programs.
– A pro “instant runoff” group in Minnesota has been fined for violating that state’s election laws, as they falsely claimed that Barack Obama, John McCain, and others endorsed a Minnesota ballot measure to institute runoff voting in that state. Instant runoff voting is a form of voting in which voters rank the candidates by preference. Obama and McCain are active supporters of instant runoff voting, but they have not actively endorsed the Minnesota ballot measure, as was claimed in some of the group’s literature.*
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*Editor’s note: This posting originally implied that Obama and McCain do not support instant runoff voting, when in fact they do. Stateofelections.com regrets the error.
Discriminatory Disenfranchisement in Virginia
December 4, 2009
Of Felons and Taints
Almost all states place some restriction on the rights of felons to vote. Three states–Kentucky, Florida, and Virginia–maintain a system of permanent disenfranchisement for convicted felons. There’s a long 
historical tradition of voting restrictions against felons, dating to well before the Constitution was ratified. Section 2 of the 14th Amendment explicitly acknowledges the practice of criminal disenfranchisement (and, to a degree, endorses it by not penalizing states during Congressional reapportionment for denying the franchise to those guilty of “participation in rebellion, or other crime”).
Given this long usage and constitutional recognition, lawyers often find it hard to challenge disenfranchisement laws as violating voters’ rights. Yet as we all know, not every law that appears neutral is constitutional. Literacy tests and poll taxes are both facially neutral, but both have long been recognized as acting to deprive non-white voters of their fundamental rights.
Still, challenges to disenfranchisement regimes are rarely successful. For example, a 2005 challenge to Florida’s law, was decimated by the 11th Circuit sitting en banc in the case of Johnson v. Bush (405 F.3d 1214). There, the court heard an appeal to a summary judgment against a group of felons seeking the restoration of their rights. The plaintiffs argued that Florida had re-authorized its felon disenfranchisement law in 1868 for the purpose of discriminating against black voters, and as such the law should be held invalid as intentionally discriminatory.
Write In Candidates
December 2, 2009
While perusing a 2,360 Mb tome on New York’s State laws, I came across a topic that I had to discuss. Strangely enough the state most useful to my interest was on the news for another reason. The state of Alaska, home of Sarah Palin, is the state I choose to focus on.
Most high school students have experiences with write in candidates, the students who don’t run officially but end up running on that empty line. One of my fondest high school memories was when the senior class elected Chimp Pan Gee as their class president via write in. But has anyone ever won by being a write in candidate? While most elections have an empty line for write ins, can a write in actually win? Alaska provides us with the latest in what’s probably a short list of write-in successes. (more…)
Op Ed: In Response to Tennessee Voter Confidence Act
December 2, 2009
Our thanks to Drew Staniewski for this review of where we stand in Tennessee re: free, fair and verifiable elections.
Our group (Gathering To Save OUR Democracy) worked hard to pass the TVCA in time for it to be implemented in 2008, before the last election. There was enough time (and enough remaining HAVA money) to accomplish that. However, as a concession to some, TVCA implementation was delayed until 2010. When Republicans not only won control of our legislature for the first time in 140+ years but also won every open seat in our legislature, they announced that one of their three top legislative priorities was to repeal the TVCA.
It is quite instructive that Tennessee became the ONLY state in 2008 where Republicans won more seats in our legislature, despite Democrats outnumbering Republicans here by a 47-39% margin and despite Democratic voter registration efforts outpacing Republicans by better than 4-to-1 in the months leading up to the 2008 election. (more…)
Partnership with Georgetown Law’s Election Law Society
November 30, 2009
As promised before break, we have a great announcement to make. Georgetown’s new Election Law Society
is joining our efforts to cover the moving pieces in election law in all fifty states.
We knew from day one that our goal was ambitious, so we’re glad that the desire to discuss state election law is spreading to other law schools. Posts from Georgetown law are coming soon and we’d welcome other law schools who are interested in teaming up with us.
Welcome aboard, Georgetown!
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The Tennessee Voter Confidence Act
November 30, 2009
On November 5, a Tennessee judge declined to an issue an injunction that would have forced the Secretary of State to comply with the Tennessee Voter Confidence Act passed in 2008. The act requires all 95 counties to discard electronic voting machines in favor of paper ballots. Understandably, the act has become an extremely controversial issue in Tennessee politics.
The Tennessee Voter Confidence Act (TVCA) passed nearly unanimously last year in response to growing fears over the integrity and security of electronic voting machines. Tennessee was recently rated by the organization Gathering to Save Our Democracy as one of the eight states in the nation most vulnerable to vote-counting abuse
because of its reliance on computerized systems. Currently, 93 of the 95 counties in Tennessee use some form of electronic voting machine or touch-screen system that records votes but does not produce an individual paper record of each vote. The act requires a move to paper ballots read by optical scanners, which would allow for a paper trail and eliminate the corruption and abuse concerns associated with computerized systems. When it was first presented to the legislature, the TVCA had bipartisan support in both houses of the legislature, and was passed by an overwhelming majority. (more…)
Recount in Virginia’s 21st District
November 30, 2009
Can a change in the law change the outcome of an election?
On November 3rd, voters in Virginia went to the polls and handed Republicans a statewide office sweep and gains in the House of Delegates, but, as has become a common occurrence in Virginia, there is one election headed for a recount.
In the 21st House of Delegates district, Delegate Bobby Mathieson (D) and Virginia Beach City Councilor Ron Villanueva (R) battled throughout the summer and fall and after injunctions, questions about absentee ballots, the Virginia Beach electoral board certified Villanueva the winner by 14 votes. The current margin of victory is a mere nine-tenths of one percent.
Virginia law allows for the trailing candidate to request a recount if the margin of victory is less than one percent and Mathieson has stated that he will be seeking a recount. The state Board of Elections has certified the outcome of the election, and it appears that Mathieson will soon officially request a recount. Any recount would likely occur in mid-December. (more…)
Redistricting Reform Part 2
November 23, 2009
OK, So What’s The Problem?
If you missed last week’s installment, take a look, as it summarizes how redistricting in Virginia works. If you’re too busy, the basics on your author: In 2007 I was asked to run a new non-profit effort to reform Virginia’s redistricting system. A group of moderate business leaders had decided to raise funds for the effort. For the next 7 months, I shuttled between my Arlington home and Richmond as Executive Director of the Virginia Redistricting Coalition. I’ll use this series to pose a few basic questions about redistricting reform and explore the philosophical and practical implications of such an effort. As a warning up front, I am not a lawyer. So while I am fairly well-versed in the relevant concepts, don’t take my word for gospel on the legal precepts. I’m also going to assume you’re familiar with the basics: gerrymandering, the Civil Rights Act of 64, reapportionment generally, and the current state of the ‘science’ of partisan redistricting.
Partisan redistricting – is it really a problem? First principles – 
what is the problem with partisan redistricting? Per Baker v. Carr and later Gray v. Sanders, modern partisan redistricting efforts do not endanger the effective power of an individual’s vote, nor do they dilute the ability of a constitutionally protected class to achieve representation (post-Voting Rights Act of 65). So we must at least consider whether or not drawing district lines for partisan gain is either constitutionally (or morally) acceptable. The constitutional question remains unsettled – a series of cases has yet to define a standard for determining if a partisan gerrymander is an equal protection violation. (See Vieth v. Jubelirer & Davis v. Bandemer – I’m not qualified to belabor the details.) Without settled case law, this leaves us to ask if there is a public interest in removing partisan influence from redistricting. (more…)
The Military and Overseas Empowerment Act
November 23, 2009
I
n Virginia, nearly 2,000 ballots cast by voters overseas were initially not counted in last year’s general election. The Uniform Overseas Citizens Absentee Voting Act (UOCAVA) allows citizens abroad, including military personnel, the ability to vote in federal elections. The U.S. Department of Justice sued Virginia for violating the act, because of the state’s failure to count the absentee ballots. The Virginia Board of Elections contended that they were not bound by UOCAVA because it did not give a specific deadline to mail ballots out. A federal judge decided that, although this may true, the UOCAVA was established to give Americans abroad a “real chance to vote.” (more…)