Campaign Finance

● South Dakota: Last month, South Dakota voters recently passed a bevy of campaign finance, ethics, and lobbying reforms via the ballot box in an initiative known as Measure 22. Among other things, it creates a first-in-the-nation system that give voters a campaign-finance voucher to donate to their preferred candidates in an attempt to level the playing field. However, the Republican-dominated state government is already fighting the measure and has filed suit, alleging the law is unconstitutional, and on Thursday, a judge issued a preliminary injunction putting the law on hold.

The case will almost certainly wind up before the state Supreme Court, but regardless of what happens there, Republicans are still dead-set on undermining the law. GOP Gov. Dennis Daugaard just unveiled a new budget that deliberately did not include any funding that the reforms call for, saying that voters were “hoodwinked by scam artists” who backed Measure 22. (Nice way to insult your own state.) Daugaard also said that the legislature should repeal the law if it’s not struck down by the courts.

There’s a lesson here for reformers: If you’re going to use ballot measures to circumvent hostile legislators, make sure your reform doesn’t merely add new statutes to the books—which can easily be overturned—but instead amends the state constitution if possible.

Voter Registration and Early Voting

● Automatic Registration: Six states and Washington, D.C., have recently passed automatic voter registration laws that sign up any eligible voter who interacts with certain state agencies (like the department of motor vehicles) unless they choose to opt out. Daily Kos Elections looks at how 20 more states—home to nearly 100 million Americans—could join them by passing the reform via ballot measure like Alaska just did. Since Republicans currently dominate most state governments, initiatives would let activists sidestep legislative opposition.

● Florida: Democratic state Sen. Jeff Clemens recently introduced a bill that would implement automatic registration. Republicans currently control the Florida state legislature, and although some Republicans have lent their support to bipartisan measures in a few small states, GOP legislators far often have opposed it in lockstep. While Clemens’ bill might not gain much traction legislatively, it could signal Democratic appetite for pursuing the reform in the Sunshine State, and Florida could pass automatic registration at the ballot box.

● Nevada: Activists in Nevada filed signatures for a so-called “initiative petition” that would force the state legislature to consider an automatic voter registration proposal in early 2017. Although Democrats just won new legislative majorities that might be amenable to passing this reform, Republican Gov. Brian Sandoval could potentially veto it if Republicans rally in opposition. But the good news is that even if Sandoval were to veto the measure, it would head to a statewide vote in November of 2018, so it could still become law.

● New York: Democratic state Attorney General Eric Schneiderman proposed a package of reforms for the state legislature to take up in 2017 that include automatic registration, no-excuse absentee voting, and two weeks of in-person early voting. Despite its strong Democratic lean, New York still offers neither in-person early voting nor an absentee option without an excuse. Although it compensates by having long polling hours on Election Day, the lack of these options can still be burdensome to many voters.

Unfortunately, the attorney general’s proposals are likely to run into resistance from the state legislature. Republicans run the state Senate, but even the Democrats in control of the state Assembly have done little to advance voting reforms in recent years. Schneiderman is a potential 2018 gubernatorial candidate, possibly even as a primary challenger to Gov. Andrew Cuomo if the governor indeed runs for a third term, so Schneiderman might be laying down a marker with progressive voters even if these proposals are unlikely to pass now. But if he were to become governor, his leadership on these issues could wind up being very consequential.

Redistricting

● Redistricting Reform: Former Attorney General Eric Holder announced he will lead the newly formed National Democratic Redistricting Committee, which was created to organize Democratic efforts ahead of the 2020 redistricting cycle. Republicans badly out-organized Democrats after the 2010 census with their multi-million REDMAP project, which paid off massively when the GOP gained key gubernatorial and state legislative offices during that year’s midterm wave. Holder will focus on winning key state races, plus possible independent redistricting ballot initiatives. President Obama reportedly plans to make redistricting a major focus of his, too, after his term ends.

Nonetheless, there are still concerns over the details of how Democrats will push for reform, particularly since Holder recently gave a speech that appeared to endorse geographic compactness of election districts as an important priority. We’ve previously explained why compactness alone is an insufficient way to combat gerrymandering and would in fact likely undermine Democrats. That’s because Democratic voters are typically more geographically concentrated than Republicans are, with many cities being dark blue while suburbs and rural areas lean more modestly red. Consequently, compact maps, while perhaps visually appealing, can and often do have a Republican bias.

We recently examined the 2016 Minnesota election outcomes to show how this geography-induced bias can produce undemocratic outcomes. The North Star State has a nonpartisan congressional map that was drawn by a court, but Donald Trump carried five of the state’s eight districts—a majority—even though he lost statewide by 1.5 percent. Nearly all congressional districts support the same party for president and Congress, so even nonpartisan maps can result in Republicans winning a majority of seats with a minority of votes. Gerrymandering is still an enormous problem—indeed, it matters more than geography—but reformers have to bear in mind that merely doing away with partisan gerrymandering and focusing on compactness won’t necessarily produce fair outcomes.

● North Carolina: The United States Supreme Court heard two important gerrymandering cases on Monday. A federal district court ruled earlier in 2016 that North Carolina Republicans had illegally packed black voters into two congressional districts in such a way that their electoral influence was effectively diluted in neighboring districts, and thus struck down the map for violating the 14th Amendment’s Equal Protections clause. (Because black voters overwhelmingly vote for Democrats, this had the effect of making surrounding districts safer for Republican office-seekers.)

Republicans originally claimed the Voting Rights Act forced them to add black voters to both seats, which had pluralities of black voters, in order make sure they had majorities of black voters. However, the court rejected that argument, since a majority-black population is often in excess of what is needed for black voters to elect a representative of their choice (a black Democrat). Republicans subsequently claimed that their map was drawn for strictly partisan purposes that had nothing to do with race, but the court didn’t buy it and ordered them to redraw the map.

So what happened? The GOP swiftly replaced their previous gerrymander with a new map that was only slightly less gerrymandered. Even though North Carolina is a very evenly divided swing state, the invalidated map had elected 10 Republicans and just three Democrats in 2014. The new map? It also elected 10 Republicans and just three Democrats this year, even though the presidential race was very tight and Democrats actually won the governorship. Unfortunately, the lower court upheld the new map even though it failed to create new opportunities for black voters to elect their candidates of choice.

The ruling was disappointing because we’d previously demonstrated that an alternative configuration could create a third district that would elect a black representative, while a truly nonpartisan map could yield a far more balanced partisan outcome. The court even opined that the legislature’s nakedly partisan map was troubling for democracy but admitted its hands were tied because the Supreme Court has never been able to identify a standard to judge when partisan gerrymandering crosses the line and becomes unconstitutional.

Republican legislators nevertheless appealed to the Supreme Court to defend the invalidated map, even though their new map was, from a partisan point of view, just as good for them. (Apparently they want to preserve the ability to pack minorities into as few districts as possible.) The plaintiffs have also appealing, jumping on legislators’ open admission that they sought to achieve an unfair 10-to-three majority to argue that even the new map should be invalidated because partisan gerrymandering infringes upon voters’ rights.

While the Supreme Court has previously ruled that partisan gerrymandering could be unconstitutional, the lack of a standard we mentioned just above has effectively left states free to gerrymander based upon party. Therefore, plaintiffs have to persuade a skeptical swing Justice Anthony Kennedy.

Based upon recent Supreme Court rulings, Kennedy seems likely to side with the plaintiffs on claims of racial gerrymandering and uphold the lower court’s ruling that had forced Republicans to redraw the original congressional map. Such a ruling, of course, would be cold comfort to the plaintiffs, since that 10-to-three outcome didn't change. They and Democrats would instead prefer that Kennedy vote with the court’s four liberals to either force the creation of a new district that could elect a minority like we have proposed, or order a new map be drawn completely free of partisan influence.

Nonetheless, even if the Supreme Court merely affirms the lower court’s ruling, it could have major reverberations nationally. If the court prevents Republicans from setting population thresholds of 50 percent or more for minority groups and instead requires that mapmakers set racial population percentages on a case-by-case basis, that would make it harder for Republicans to pack minority voters in other states, too. This could prove significant in the next decade of redistricting because, as we have previously shown, nearly every Southern state could have drawn another congressional district to elect a minority this decade.

● Virginia: Like North Carolina, Virginia’s congressional and legislative maps face a similar challenge over racial gerrymandering. A federal district court previously invalidated the congressional map that Republicans drew after the 2010 census and ordered new districts that led to the election of an additional black (and Democratic) representative in 2016, Donald McEachin. The Supreme Court turned back a challenge to that new map, but a federal district court upheld Republicans’ state House districts in a separate ruling, and plaintiffs are seeking a different outcome at the Supreme Court.

Republican legislators admitted to using a hard threshold of 55 percent African American voters when they redrew state House districts that already had a black majority. Like in North Carolina, this was done without consideration as to whether that proportion was actually necessary to elect black voters’ representatives of choice. However, the district court ruled that because legislators’ map didn’t flagrantly override other traditional redistricting criteria like compactness, it wasn’t immediately obvious that race “predominated” the decision-making process like it did in North Carolina.

This finding could make it harder to challenge racial gerrymandering in the future if it’s not overruled on appeal. Not every gerrymander necessarily carves up cities and counties with weird-looking shapes, and it’s far easier to demonstrate that a map has a discriminatory impact as opposed to showing that mapmakers acted with discriminatory intent, which appears to be the standard that the district court required. While Justice Kennedy has indeed previously ruled against the use of fixed thresholds, this question of predominance in the decision-making process presents a thorny new issue. Plaintiffs are hoping the Supreme Court will overturn the lower court ruling and set clearer guidelines about what level of minority populations are required under the Voting Rights Act.