partisanship

A Case Study in Independent Redistricting – Washington State

jwhowell · January 13, 2023 ·

By Megan Bodenhammer

Any native of Washington State knows, first-hand, the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history.

This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model.

The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office.

In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.

The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicionfor conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.

While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing out this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bi-partisan and apolitical districting, perhaps the rest of the nation could follow its lead.

Opinion: Wyoming Secretary of State Nominee Chuck Gray Wants Residents to Cowboy Up and Vote in Person

Election Law Society · January 2, 2023 ·

By Hunter Hoffler

Wyoming Republican Chuck Gray, the recent nominee for Wyoming Secretary of State, claims he intends to make significant changes when he arrives in the State’s capital of Cheyenne. Like many Trump-backed candidates, Gray believes the 2020 presidential election was a fraud and fears his State is rife with voter fraud as well.

Gray ran on the promise that he would curtail voter fraud despite only three convicted cases of voter fraud in Wyoming since the year 2000. To combat this issue, Gray has openly stated that he wants to ban ballot drop boxes in his State, instead opting for the traditional practice of collecting “all paper ballots.” The presumed Secretary-elect would prefer in-person, paper-ballot voting. In Gray’s words, “The fact that a few counties have moved off of paper ballots . . . is really wrong.”

Despite a heavily Republican constituency in Wyoming, Gray asserts that local elections can still become compromised through nefarious ballot collection practices. As a result, Gray’s campaign for Wyoming Secretary of State fixated on improving election integrity and demonstrating the likely impacts of voter fraud. Hoping to impact his constituency, Gray repeatedly aired the controversial and critically ridiculed documentary “2000 Mules” by Dinesh D’Souza at his campaign stops.

The question remains: what authority will Gray have to implement his election integrity agenda? While in the state legislature, Gray also campaigned on, and promulgated bills to, improve election integrity. In 2021, Gray and his colleagues passed Wyoming’s Voter ID Law, which required residents to possess a valid state or federal form of identification to vote in person. Fortunately for those who oppose Gray’s agenda as Secretary of State, he alone will not be able to implement radical change to Wyoming’s voting procedures. In fact, within the scope of voting and voter registration, the Wyoming Secretary of State’s duties are relegated mainly to the administration and oversight of elections. In other words, to implement sweeping changes to the way Wyoming residents can vote, Gray will need to go through the State’s legislature and adhere to federal voting regulations.

The more immediate concern (should Gray be sworn in as Wyoming’s Secretary of State) is staff turnover in the Secretary of State’s office, particularly amongst those experienced in administering elections. Reducing the collective experience of the group administering elections could lead to trouble in upcoming state and federal election cycles should a hitch in the process occur. To date, one official has vacated her position based on concerns over Gray’s views.

The nation’s voters are broadly divided along party lines regarding the ratification of election security legislation – which is generally a priority of registered Republicans – or election openness legislation – which is usually a priority of registered Democrats. However, Wyoming legislators on both sides of the aisle are concerned enough with Gray’s positions on the 2020 Presidential election and Wyoming election security to propose legislation that would strip his soon-to-be office of its duties to oversee elections.

Opponents of Gray’s proposals fear that the growing number of local and federal candidates running on platforms of election insecurity may spread fear that the election process is flawed. Mistrust in the election system may, in turn, lead to uncertainty, harassment, and lack of participation at the polls.

What is clear is that there should be a bipartisan coalition that works to ensure elections are safe for the people of Wyoming. What remains to be seen is whether Chuck Gray and his principles will be part of that conversation.

The Beholden State: Weighing When Democracy Matters in the Golden State

Election Law Society · November 21, 2022 ·

By Ram Reddy

California—to many—is the shining beacon of what it means to be a progressive, Blue State. Just as Texan politicians and voters tend to take pride in their depiction in popular media as a deep Red State, Californian politicians are beholden to putting up a persona of deep Blue, going so far as to run ads about their values in rival red states.

California has led the charge in introducing and/or passing sweeping new bills about voter registration and vote by mail laws, in an effort to increase turnout in the state that has abysmally low turnout. Cynics saw this as a tactic by state Democrats to increase minority turnout due to the threat some progressive politicians have faced in backlash to crime waves. But whatever the intention, the state is putting its money where its mouth is when it comes to making democracy more accessible and accountable to citizens…except in the area of recalls.

Approaches to popular sovereignty and democracy in California seem to come down to party lines because, though recalls remain broadly popular across party lines, the targets for recalls tend to be Democrats. Recalls empower minority parties in a state where Democrats hold veto proof supermajorities at almost every level. Calls for making reforming recalls and perhaps making them less effective are making the rounds as bills in Sacramento. The Golden State enjoys one of the lowest thresholds for recalls of all western states, and its voters have successfully recalled a governor and various state officials—most recently DA Chesa Boudin. As a result, many Democratic policy makers in Sacramento are calling for a fleet of sweeping new reforms from raising the signature threshold, to constitutional amendments to mandate a cause for recall, or eliminate the recall altogether. While most of these measures are not groundbreaking in the state’s political discourse, there are newer and more controversial measures including preventing local offices where the holder is removed from being filled until the next election and forcing state wide offices subject to recall to remain vacant until the next election or a special election where the recalled officer would still be treated as an incumbent. Opponents see these attempts at leaving the offices empty as efforts to further solidify Democratic Party control over the state, as the supermajority with a vacant governor’s seat merely means what few bills would be vetoed now cannot be vetoed.

Proponents of the recall reform measures point to the blowout victories of DA George Gaston and Gavin Newsom and have tried to paint reform as popular amongst the state’s Democratic majority. While generic questions about recall reform tend to poll around 50%, specific reforms fail to garner majority support even amongst Democrats in most polls aside from one conducted by UC Berkeley.

Republicans have weaponized these efforts as attempts by state Democrats to further cement control over opposition, and they’re using voters’ complaints over rising crime and financial woes to do so. They point to what they claim are the state’s lax policy towards verification of absentee ballots and registration drives and the efforts to nitpick and toss out recall signatures to keep measures from the ballot—though opponents of these recall efforts point to the poorly run recall campaigns as the reason for these failures.

The battle over recalls will continue to loom in the Golden State and efforts to change the process shall grow. Even though statewide recalls of officials like Gov. Newsom might have failed, more and more local offices are being targeted,perhaps galvanized by the successful recalls of Chesa Boudin and a trio of school board officials in San Francisco. Los Angeles DA George Gascon is likely to face a third recall in the coming year. For better or for worse recalls will continue to be in the spotlight in California, as will the juxtaposition of efforts by state legislators and politicians to promote democracy while cutting down on threats to their incumbency.

Partisan Battles Loom Large over Pennsylvania’s Election Audit

Election Law Society · February 21, 2022 ·

By: Christopher Chau

Following the contentious 2020 election, controversy surrounded the validity of Pennsylvania’s election process as voters requested and submitted record numbers of mail-in ballots. While no-excuse mail-in voting was legalized under Act 77 in 2019, Republicans in the Pennsylvania Senate quickly turned against the practice and claimed that it was vulnerable to voter fraud. On September 3, 2021, the Republican majority announced a “full forensic investigation,” in what seems to be an audit of the election results, voting to subpoena the PA Department of State for voter records along with nonpublic personal identification information, such as Social Security and driver’s license numbers. According to Senate President Pro Tempore Jake Corman: “This is about looking at our system inside because hundreds of thousands, if not millions, of Pennsylvanians, have questions.” While Corman asserted that voters’ information will be kept private, many remained concerned about the invasiveness of the audit. Meanwhile, Senate Democrats and PA Attorney General Josh Shapiro criticized the measure, citing that there was no evidence of voter fraud and that the investigation was a waste of taxpayer money and an invasion of voters’ privacy.

Primaries and Parties: Fusion Confusion?

Election Law Society · February 4, 2019 ·

By: Jonathan Barsky

This is the second of two posts raising potential constitutional flaws in California’s recently adopted “Top Two” primary system. This system allows the two candidates who receive the most votes, regardless of party affiliation, to advance to the general election in a wide array of state and federal races. This post will analyze a First Amendment objection rooted in the associational rights of political parties.