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Halsey Frank: Thoughts on voting rights

It wasn’t long ago that Democrats were claiming that the For the People Act, the Freedom to Vote Act, and the John Lewis Voting Rights Act were essential to saving our democracy from extinction at the hands of Republicans. They demonized anyone who opposed their agenda in the harshest terms. The vilification reached a peak during President Biden’s speech in Georgia in January where he described passage of those bills as a battle for the soul of America in which opponents were like George Wallace, Bull Connor and Jefferson Davis.

Gerrymandering, or the practice of drawing oddly shaped electoral districts, was a particular target for criticism and subject of reform. Racial gerrymandering violates the Equal Protection Clause of the Fourteenth Amendment. Gerrymandering for partisan political advantage does not violate the U.S. Constitution, although it does violate a sense of fairness and desire for proportional representation. States and local governments are free to outlaw it.

The Freedom to Vote Act required uniform rules for redistricting and safeguards against gerrymandering, such as bipartisan commissions. The John Lewis Voting Rights Act automatically subjected to preclearance restructuring a voting district with a sufficiently large, minority population. (It also allowed voters to sue for vote dilution, which is a practice that makes it harder for candidates preferred by minority voters to win.) The For the People Act barred district maps that were drawn with the intent of giving a political party an undue advantage.  

That made the New York State Court of Appeals’ April 27 decision in Harkenrider v Hochul interesting. The state of New York is predominantly Democratic. Its highest court consists of seven judges appointed by Democratic governors.

State legislatures have primary responsibility for redrawing electoral districts every 10 years in response to the national census. Over time, that responsibility has become more controversial as legislatures redrew districts for partisan advantage.

During the 2012 redistricting cycle, the New York state legislature was unable to agree on the boundaries of new congressional districts and a federal court drew its own. The state senate and assembly districts that the legislature drew were so widely criticized as partisan gerrymanders that the Democratic governor refused to endorse them.

In response, the legislature committed to reforming the redistricting process. It passed resolutions and a reform act, and it proposed constitutional amendments. They were intended to increase bipartisanship and transparency, and to prohibit partisan gerrymandering.

In 2014, New Yorkers ratified the constitutional amendments. They created an independent, bipartisan redistricting commission (IRC) and provided a timeline for it to draw new maps and submit them to the legislature for approval. If the legislature rejected the first set of maps, the amendments required the IRC to submit a second set. If the legislature rejected the second set, then it could amend the IRC’s maps but not in a way that affected more than 2% of the population in any district.

The 2020 census revealed that New York had lost population and its districts were malapportioned. The IRC broke down along partisan lines and submitted sets of majority (Democrat) and minority (Republican) maps. The Democrat-controlled legislature rejected both. The IRC again was deadlocked. Democrats in the legislature drew and enacted new maps that affected more than 2% of the population in districts without Republican participation, and the governor approved the maps.

Voters in several districts sued complaining that the maps packed minorities into some districts, cracked minorities in others into multiple districts, and were unconstitutional. The New York Supreme Court conducted a trial and concluded that the maps were extreme outliers. They reduced the number of likely Republican congressional districts from eight to four and ensured that there were virtually no competitive districts.

On appeal, the Appellate Division vacated the declaration that the state senate and assembly maps were unconstitutional but affirmed that the congressional maps were.

Ultimately, a divided New York State Court of Appeals held that the legislature’s failure to follow the process specified was a gross and deliberate violation of the language, spirit, history, intent and purpose of the constitutional amendments. That spirit and purpose was to avoid one party domination and to incentivize transparency, bipartisanship, compromise and fairness.

The maps were not only procedurally defective, they were also substantively unconstitutional. The amendments prohibited gerrymandering for partisan advantage. Yet, the legislature drew its set of maps to reduce competition and affect candidates’ chances. The court refused to subject the people of New York to an election pursuant to such unconstitutionally drawn districts.

Undeterred, Democrats sought an emergency injunction from a Democratically-appointed federal judge. In denying their request, the judge observed that it impinged on the American values of open, rational elections and respect for the judiciary.

Structural obstacles to minority Republicans’ representation are not limited to New York. However intentionally, they happen in Maine (which is somewhat less predominantly Democratic than New York depending on how you view unaffiliated voters). Maine state legislative districts are drawn by the legislature with the help of a commission in an effort to be functionally compact. Portland council districts are drawn by the city council in an effort to be equal, compact and contiguous.

Arguably, the combination of district lines, non-partisan elections and ranked-choice voting (used for the first time to elect the mayor in 2011 and expanded since) has denied Republicans in Portland of representation in the city council and state legislature for years.

In addition to other popularly elected offices such as the school board and water trustee, Portland has eight seats in the state House of Representatives, two seats in the state Senate, and nine seats on the city council including the mayor. The number and percentage of Republican voters in Portland has ranged, approximately, from 9,106 or 18.2% in 2004, to 7,026 or 13.9% in 2014, to 7,256 or 11.3% in 2020.

Yet Portland Republicans have not had an elected representative in the state legislature or on the city council since Cheryl Leeman stepped down in 2014. That means that with respect to about 150 slots filled by elections over the past eight years, about 14.4% of the population of Portland hasn’t had one. While Republicans in Portland may not be a racial or a language minority, they are a large enough block to win at least one state house or city district council seat. House seats in Portland are won with about 3,600 votes, council district seats with about 2,000.

If Portland wanted to be innovative, it might change its charter to allocate seats on the council by percentage of party enrollment above some minimum threshold, such as 10% as established by the decennial census. That would be equitable and inclusive. It might foster cooperation and improve decision-making by adding some real ideological diversity to the council.