Redistricting

Discrimination in Washington State Redistricting

Election Law Society · December 5, 2022 ·

By Megan Bodenhamer

Washington State has rather progressive and cutting-edge voting and election laws. For example, Washington State was one of the pioneers for statewide mail-in voting, long before the COVID-19 pandemic. In fact, voter turnout in the state is consistently above the national average. Washington State also has one of the nation’s few bi-partisan redistricting committees. However, despite these policies—that, on the surface, may seem modern and equitable—there are problems plaguing Washington State’s elections that are far from idyllic. Specifically, Washington State has faced many allegations of voting discrimination against its Latino population.

On January 19th of this year, a lawsuit was filed in the United States District Court for the Western District of Washington alleging intentional discrimination against Latino voters by the Washington State Legislature and the Washington State Redistricting Commission. The UCLA Voting Rights Project, the Campaign Legal Center, and residents of Yakima (hereafter “Plaintiffs”) filed the lawsuit against the Washington State Secretary of State, the Speaker of the Washington State House of Representatives, and the Majority Leader of the Washington State Senate. The Plaintiffs allegethat “[t]he Washington State Redistricting Commission . . . selected redistricting plans for Washington’s state legislative districts that dilute Hispanic and/or Latino voters’ ability to elect candidates of choice.” The allegations arise out of Yakima, Franklin, Adams, and Grant counties. The lawsuit alleges that the Washington State Redistricting Commission intentionally “cracked” these Latino populations and mixed them with a heavily white population, thus diluting their votes. Lines were drawn through the City of Yakima cutting across the areas where Latino populations live, while still including blocs of white voters that often vote against Latino-preferred candidates. Further exacerbating the problem, Latino voters in the included area have a low turnout rate, while those excluded have a higher rate. This case has not yet been tried, but it will certainly be a pivotal decision for the longevity of the newly created districts in Washington.

Gerrymandering is not the only place where Latino voters in Washington State face challenges. Due to its long-time mail-in voting system, Washington State employs a signature matching system to deter voter fraud. Unfortunately, in high-Hispanic counties, Latinos were four times more likely to have their mail-in ballots rejected for signature issues. As a result of these signature denial disparities, the League of United Latin American Citizens and the Latino Community Fund of Washington have filed suit against Benton, Chelan, and Yakima counties for violating the 14th and 15th Amendments. The lawsuit claims that the signature-matching policies are flawed because they are subject to the discretion of local election workers and have inconsistent results over time, harming Latino voters in Washington State.

However, there has also been successful litigation in Washington to defend Latino rights. In 2022, the UCLA Voting Rights Project settled a claim against Franklin County under the Washington Voting Rights Act, a recently passed state provision. Franklin County admitted fault in the settlement, conceding that they were in violation of the Act. Franklin County previously had an at-large voting system where a Latino-preferred candidate had never won. Under the settlement, Franklin County Commissioner elections will be required to use single-member districts beginning in 2024. While this may be a win for Latino voters in Franklin County, there is much work to be done in other counties, across the state of Washington, and across the United States.

So What if the Ohio Supreme Court Found the Ohio Congressional-District Plan Unconstitutional?

Election Law Society · October 14, 2022 ·

By Darian Kanouff

On July 19, 2022, the Supreme Court of Ohio ruled (in a 4-3 split) that a remedial congressional-district plan, adopted on March 2, 2022, violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution. This decision follows the court’s previous finding that the originally adopted congressional-district plan was also unconstitutional. Despite this ruling, a new plan has not been created, seemingly also in violation of the Ohio Constitution.

The General Assembly passed the first congressional-district plan in November 2021. The Supreme Court of Ohio held on January 14, 2022, that the plan violated the state constitution’s provisions that a redistricting plan may not “unduly favor[] or disfavor[] a political party or its incumbents” or “unduly split governmental units,” since the plan “unduly favored the Republican Party and disfavored the Democratic Party” and “unduly split Hamilton, Cuyahoga, and Summit Counties.” Under this plan, despite receiving merely 53% of the popular vote in recent elections, Republicans were likely to win 80% of the seats (12 out of 15). The court ordered, pursuant to the Ohio Constitution, that the General Assembly pass a new constitutionally-compliant plan within thirty days, and if the legislative body failed to do so, that the Ohio Redistricting Commission pass a plan within thirty days of the General Assembly’s failure. Because the General Assembly failed to pass a plan within 30 days, the responsibility fell to the Ohio Redistricting Commission, which passed the second congressional-district plan on March 2.

The Supreme Court of Ohio held that the March 2 plan also violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution (i.e. that the plan “unduly favored the Republican Party and disfavored the Democratic Party”). Specifically, the court found that the petitioners proved the constitutional violation “beyond a reasonable doubt” through comparative analyses and other metrics that demonstrated that the plan “packed” and “cracked” Democratic voters, turning “districts that would otherwise be strongly Democratic-leaning [into] competitive or Republican-leaning districts.” The court found that the “best-case scenario” under the March 2 plan would result in the Democratic party winning 4 of the 15 seats (27% of the seats), noting that the plan is “only slightly less favorable to the Republican Party . . . than the original plan.” The court ordered the same remedy as before, pursuant to the Ohio Constitution: that the General Assembly pass a constitutionally-compliant plan within thirty days, and if it does not, that the Ohio Redistricting Commission pass a constitutionally-compliant plan within thirty days of the General Assembly’s failure.

Thirty days after the court’s order on July 19, the General Assembly had not created a new plan; this time, however, the Ohio Redistricting Commission did not take up the task. Why not? The Ohio House Speaker, a former Ohio Supreme Court Justice, Bob Cupp, believes that the General Assembly has actually not missed its court-imposed deadline. He claims that because “congressional redistricting includes elements of U.S. Constitutional and federal law,” the legislative leaders have the option of appealing the state court’s decision to the Supreme Court of the United States. The Rules of the Supreme Court of the United States provide that an appeal to the Supreme Court of the United States must be filed within ninety days of a state high court’s final judgment and the Ohio Constitution provides that the thirty day clock for redistricting begins on the last day on which an appeal could have been filed. Thus, he argues that the General Assembly has thirty days to create a new map beginning on October 17 (the purported deadline for appealing the case to SCOTUS). The legal director for the ACLU of Ohio, Freda Levenson, disagrees that the case is appealable to the Supreme Court of the United States. She asserts that “[b]ecause the [Supreme Court of Ohio]’s order to draw a new map ruled purely on matters of Ohio law, it is not appealable in federal court.”

While no action has been filed challenging the General Assembly’s and the Ohio Redistricting Commission’s failure to adopt a new plan within thirty and sixty days, respectively, all eyes are on the General Assembly as the supposed October 17 deadline approaches for the Ohio legislative leaders to appeal their case to the Supreme Court of the United States.

Voting rights groups and other organizations are distressed by the Republican Party’s supposed usurpation of the redistricting process, as it is in direct contrast with the Ohioans’ demonstrated preference for limiting partisan gerrymandering (more than 70% of Ohio voters voted to approve the 2018 amendment containing the constitutional provisions at issue here). However, because the Ohio Constitution’s only remedy for such violations is voiding the unconstitutional plan and requiring the General Assembly or Commission to create a new one, the Republican party had the option to “run down the clock,” resulting in the unconstitutional March 2 plan being used in the May primaries and the upcoming November election. “Running down the clock” could have another potential benefit to the Republican party: the executive director for the League of Women Voters of Ohio, Jen Miller, thinks the Republican party may be elongating this process to wait and see if the state supreme court justices elected this November will be more sympathetic to the party’s positions on line drawing.

Those disappointed in what has happened are considering further amendment to the state constitution. Among the considerations are an independent redistricting commission (as opposed to the current partisan commission, which consists of the Governor, the Auditor, the Secretary of State, and individuals appointed by the majority and minority leaders of the state legislature) or stronger checks and balances among the government branches. However, such bolstered amendments may not achieve what their proponents hope for if the independent state legislature theory (a theory which purports that all parts of the election process, including redistricting, fall solely under the purview of the state legislature, and are not subject to interference from the other branches) is adopted by the Supreme Court of the United States this term in Moore v. Harper.

Alabama Battles Over Redistricting

Election Law Society · March 18, 2022 ·

By: Shelly Vallone

The Alabama Senate gave final approval for a redistricting plan of Alabama’s congressional districts on November 3, 2021 after Governor Kay Ivey commenced a special reapportionment session on October 28, 2021 to complete the mandatory redrawing of Congressional, State House of Representatives, State Senate, and State Board of Education districts after the 2020 Census. The Senate mostly maintained the status quo, notably preserving the state’s only majority-black Congressional district without adding another. Ahead of the plan’s approval, Alabama state Senators Rodger Smitherman and Bobby Singleton, along with four Alabama voters, filed suit on September 27, 2021, in the United States District Court Northern District of Alabama Southern Division, asking the Court to declare the current districting plan unconstitutional and allow the legislature to remedy the violations ahead of the 2022 elections.

In their amended complaint, filed the day after the Senate’s approval, the plaintiffs argue the plan “was drafted by incumbent members of Alabama’s Congressional delegation to maintain their current districts with only those changes necessary to equalize populations.” The plaintiffs also stress the urgency of their claim in light of the fast-approaching 2022 elections. Candidates seeking nomination in a party primary must file a declaration of candidacy with the state party chairman by January 28, 2022. Therefore, the plaintiffs asked the Court to conduct a final hearing before the end of 2021 to settle whether the plan constitutes a racial gerrymander before the primary elections in May 2022.

Did Texas House Members Violate the Texas Open Meetings Act When Redistricting?

Election Law Society · March 16, 2022 ·

By: Sarah Depew

On October 18, 2021, the Mexican American Legislative Caucus (MALC), the largest and oldest Latino legislative caucus in the nation, issued a public statement on their Twitter account stating that they filed a petition for deposition in order to investigate a possible violation of the Texas Open Meetings Act. More specifically, the public statement raised concerns about the possibility of secret communications and decision-making in Texas’ redistricting process.

Ohio: Will Redistricting Remove Its “Swing State” Status?

Election Law Society · March 4, 2022 ·

By: Jayde Morgan

With the exception of the last few years, Ohio had always seemed to fall firmly into the category of a “swing-state.” In 2016, it was seen as a vital state for either candidate to claim victory over. However, since 2016, Ohio has come to be seen as a firmly Republican-held state. Some have gone so far as to claim that Ohio should no longer be on the roster of states that Presidential candidates should visit and attempt to win. This is a marked change from 2012 when former President Barack Obama won 50.1% of the vote and United States Senator Sherrod Brown won 50.3% of the vote.

At that time, the Ohio government was divided with a Republican governor, one Republican Senator, one Democratic senator, a Republican House of Representatives, a Republican State Senate and State House of Representatives, but ultimately voted for Democrat, Barack Obama in the presidential election. Comparatively, Republican President Donald Trump received 53.3% of the votes in the 2020 election and Republicans gained a supermajority in the House of Representatives.

With Ohio becoming a staunchly conservative state, it seems inevitable that redistricting would reflect this trend. The Brennan Center recently filed a lawsuit to force the Ohio Redistricting Commission to redraw maps that they claim are “a master class in how to achieve a one-party state” or, in other words, the result of an effort to further solidify the Republican supermajority in the once “purple” state. The lawsuit was filed on Monday, September 27, 2021 and focuses on the alleged violation of equal protection and associational rights and the prohibition of partisan gerrymandering. Though gerrymandering is not a new concept in Ohio, many were outraged that the alleged extreme partisan gerrymandering came on the heels of a 2015 constitutional amendment that was specifically created to reduce partisan gerrymandering.