The Ballot Bulletin: February 2018

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The Ballot Bulletin

Stay on top of election policy news throughout the states


In The Ballot Bulletin, Ballotpedia tracks developments in election policy at the federal, state, and local levels. To shed light on these developments, each issue will include an in-depth feature, such as an interview or event timeline. We will also discuss recent prominent events relating to electoral and primary systems, redistricting, and voter provisions.

This month's edition: This month, we will bring you up-to-speed on major developments surrounding redistricting in North Carolina, Pennsylvania, and Texas. With pending decisions by the Supreme Court of the United States in two partisan gerrymandering lawsuits, Gill v. Whitford and Benisek v. Lamone, we spoke with five election policy experts to get their insights on how the court might rule in these cases and what the ramifications might be. Finally, we will update you on the status of electoral systems, primary systems, and redistricting legislation in the states.

Redistricting roundtable: How will SCOTUS rule in Gill v. Whitford and Benisek v. Lamone, and what are the ramifications?

See also: Gill v. Whitford and Benisek v. Lamone

In the 2017-2018 term, the Supreme Court of the United States has agreed to hear oral argument in two lawsuits involving allegations of unconstitutional partisan gerrymandering. The first, Gill v. Whitford, is a case arising out of Wisconsin, where Democrats allege that the state legislative district map gives an unfair, and illegal, advantage to Republicans. The second, Benisek v. Lamone, is a case arising out of Maryland, where Republicans allege that the state's congressional district map unfairly, and illegally, benefits Democrats.

The phrase partisan gerrymandering refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. To date, the Supreme Court has not issued a ruling establishing clear precedent on the question of partisan gerrymandering. According to The Wall Street Journal, in an article discussing Gill v. Whitford, "Some Supreme Court justices have previously expressed concern about partisan gerrymandering, but a majority of the court has been hesitant to intervene so directly in the American political process and to say how much partisanship is too much." Robert Barnes, writing on June 19, 2017, for The Washington Post, made a similar observation: "[The] Supreme Court has long been tolerant of partisan gerrymandering – and some justices have thought that the court shouldn't even be involved."

Ballotpedia spoke with five election policy experts, from different sides of the debate, to get their takes on how the court might rule in these cases and what the ramifications of these rulings might be.

Logan Churchwell: Redesigning how states perform redistricting functions is the ultimate prize for the plaintiffs. While genuine claims of racial discrimination have moved federal courts to intervene in some cases, the Supreme Court has proven hesitant to do the same for political entities that fail to win elections within current boundaries. This litigation invites more federal intervention into powers clearly left for the states to act upon and, in the case of a decision for Gill, will guarantee increased proliferation of similar claims around the country.

This case differentiates from almost all other gerrymandering claims in that it isn't based on racial discrimination or even the boundaries of a particular jurisdiction. Instead, plaintiffs argue that Wisconsin Republican legislators drew boundaries statewide in a manner that "entrenches" them in power, barring an assist from a federal court. In essence, plaintiffs seek to weaken state powers over redistricting when they cannot win state elections.

  • Logan Churchwell is Communications and Research Director of the Public Interest Legal Foundation, which is a law firm that "exists to assist states and others to aid in the cause of election integrity and fight against lawlessness in American elections."

Edward Foley: My best guess (and of course it’s necessarily a guess given Justice Kennedy’s previous internal tug-of-war on this topic) is that the Court will announce a standard that invalidates gerrymanders that statistical evidence shows to be extreme outliers relative to maps that comply with the government’s legitimate redistricting objectives and for which the government has no valid justification. The statistical methodology for identifying extreme outliers is most straightforwardly explained in the Lander amicus brief filed in Gill, and it was discussed during the oral argument in the case. I think the Court will link this statistical methodology to a First Amendment theory, as most cogently espoused in the ACLU amicus brief in Gill. (For further discussion of how the statistics and the First Amendment fit together, see here.)

If the Court does adopt this extreme outlier standard, it will be a major development because it will be the first time the Court has imposed a meaningful nationwide constraint on excessive gerrymandering, and it will cause the invalidation of several current congressional maps (including North Carolina’s, which a lower court already has invalidated on this theory). But the extreme outlier standard, as the very term implies, will not be a complete panacea for the problem of partisan gerrymandering: it still would let states get away with gerrymanders that are not so greedy as to flunk the statistical test. To completely eliminate gerrymandering would require nationwide adoption of nonpartisan redistricting commissions, which is very unlikely for the foreseeable future. Finally, the real effect of an extreme outlier standard (assuming the Court adopts it) will be determined after the 2020 round of redistricting and, most importantly, will depend on the Supreme Court as it is then constituted – after Justice Kennedy, most likely, is no longer on the bench – adhering to (and thus not overruling) the precedent it sets in this year’s cases.

  • Edward Foley is the Ebersold Chair in Constitutional Law at the Moritz College of Law at The Ohio State University. His book Ballot Ballots: The History of Disputed Elections in the United States was awarded Finalist for the 2016 David J. Langum, Sr. Prize in American Legal History.

Walter Olson: One clue is timing. Rather than fast-track consideration of Benisek v. Lamone, the Court instead set an oral argument date of March 28. That leisurely pace ensures that any decision will come late enough in the term to wreak havoc on this year's cycle if it announces the imposition at once of a new constitutional standard. Few if any Justices wish to wreak such havoc avoidably. From which I deduce that the Court either 1.) does not expect to announce a new standard, or 2.) expects to do so only in a staged or prospective way that allows states time for compliance or kicks in with the next Census cycle.

While I believe Justice Kennedy remains open to the development of some constitutional standard in this area, I also think he is looking for a fix that is objective and mechanical enough that 1.) it yields the same results from state to state and from Republican-appointed as from Democratic-appointed lower court judges, and 2.) the clarity of what it calls for and how to comply cuts off a need for continual massive litigation and judicial supervision (compare here the success of the one-person, one-vote revolution). Kennedy's having joined with the conservatives to stay the Gill ruling leaves me thinking that as of then he wasn't convinced that the "efficiency gap" standard fit that demanding bill.

  • Walter Olson is a Senior Fellow at the Cato Institute, a public policy research organization "dedicated to the principles of individual liberty, limited government, free markets and peace." Olson is the Co-Chair of Gov. Larry Hogan's Maryland Redistricting Reform Commission.

Drew Penrose and David O'Brien: We expect that Gill, Benisek, and the corresponding partisan gerrymandering cases from places like North Carolina and Texas will finally be the cases in which the Supreme Court finds that aggressive partisan gerrymandering violates the constitutionally protected rights of voters and that courts can and should intervene to stop the practice. As an amicus party in support of Appellees in Gill, we always felt that the case was likely to succeed, but that has been strongly reaffirmed by the Court’s decision to hear Benisek, suggesting an interest in avoiding the appearance of partisanship by striking both a Republican and a Democratic gerrymander simultaneously.

Following the decision, states will not be able to brazenly draw districts to intentionally and grossly exaggerate the influence of voters of one party while diluting the votes of others. This result is long overdue. Gerrymandering, in any form, is a blatantly corrupt practice that has no place in a modern democratic society. These cases only address aggressive partisan gerrymandering, though, and so they alone will not undo the harms that many associate with the term “gerrymandering,” like uncompetitive elections and outcomes more reflective of district boundaries than what voters want. We hope these cases will spark a national conversation about what we should demand from legislative elections. We believe the best approach to ensure that every voter has a voice and a vote that really counts no matter who draws the lines is the use of ranked choice voting in multi-winner elections, the approach taken in H.R. 3057, the Fair Representation Act, a groundbreaking bill introduced in Congress last year.

  • Drew Penrose is the Legal and Policy Director at FairVote, a nonprofit organization whose mission is to advocate for "electoral reforms that give voters greater choice, a stronger voice, and a representative democracy that works for all Americans." David O'Brien is a Legal Fellow at FairVote.

Peter Schuck: Partisan gerrymandering is constitutionally permissible up to a point. The question is what legal standard is appropriate for determining where that point lies. In Gill v. Whitford, the challengers are advancing an "efficiency gap" standard under which an "efficiency gap" (comparing "wasted votes" for each party) that exceeds a certain threshold is presumptively illegal, shifting the burden of justification to the state. This “efficiency gap” test for partisan gerrymanders is plausible; indeed, some election law scholars and state courts have endorsed it. Even so, the Supreme Court should proceed with caution, skeptical of any such simple, one-parameter test. Moreover, any such test will necessarily draw federal courts into increasingly bitter partisan battles from which they have heretofore been protected by the Supreme Court’s hands-off treatment of these gerrymanders.

Although the predictability of an efficiency gap test may seem like a virtue, the fact that one can readily predict which party will benefit from it would magnify the appearance of partisanship. At a time when our public institutions are experiencing a crisis of legitimacy, when public esteem for even the Court has declined, and when the next round of appointments to it will be deeply contested, we can ill afford the Court's further politicization. In Benisek v. Lamone, the challengers propose a test based on gerrymander-caused entrenchment of a party, making it effectively immune from losing its control. Whereas the "efficiency gap" focuses on the technique used by the gerrymandering party to maintain control, "entrenchment" focuses on the gerrymander's undesirable result. But many of the concerns about the efficiency gap measure (expressed in a brief December 16, 2016, Election Law Journal comment) would apply to an entrenchment criterion. The critics of partisan gerrymandering are correct: it is a blight on a democratic system and jeopardizes both equality rights under the Equal Protection Clause and democratic self-rule rights under the First Amendment. But for perfectly understandable reasons, the Supreme Court will look for ways to avoid entering this proverbial thicket, and I predict that it will find them.

  • Peter Schuck is the Simeon E. Baldwin Professor Emeritus of Law at Yale Law School. HIs most recent book, One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us, was published in 2017 by the Princeton University Press.
  • What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.


Redistricting legislation as of February 2, 2018
Redistricting map February 2018.png

State supreme court strikes down Pennsylvania's congressional district plan

See also: Redistricting in Pennsylvania
  • What's the story? On January 22, 2018, the Pennsylvania Supreme Court issued a ruling in League of Women Voters of Pennsylvania v. the Commonwealth of Pennsylvania striking down the state's congressional district map as an illegal partisan gerrymander, finding that the map "clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania." The order noted that the court would adopt a remedial plan of its own if the state legislature and governor do not submit a plan. The order indicated that a full opinion would be forthcoming.
  • What brought us here? The district plan in question was adopted in 2011. At the time of redistricting, Republicans held the governorship and both chambers of the Pennsylvania General Assembly. The map's opponents alleged that it represented a partisan gerrymander in favor of Republicans. On December 29, 2017, the Pennsylvania Commonwealth Court issued its "Recommended Finds of Fact and Conclusions of Law" in League of Women Voters of Pennsylvania v. the Commonwealth of Pennsylvania. The document, which is not itself a binding legal decision, was penned by Judge Kevin Brobson, who said, "Petitioners have not articulated a judicially manageable standard by which this Court can discern whether the 2011 Plan crosses the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution." The case advanced to the state supreme court, which heard oral argument on January 17, 2018. On January 10, 2018, in a separate case, a three-judge panel of the United States District Court for the Eastern District of Pennsylvania issued a 2-1 ruling finding that Pennsylvania's congressional district map had not been subject to unconstitutional partisan gerrymandering.
  • What are the reactions and what comes next?
    • On January 25, 2018, state Republicans requested that the Supreme Court of the United States stay the state supreme court's ruling pending an appeal. Attorneys for Republicans argued that the state supreme court overstepped its authority in striking down Pennsylvania's congressional district plan: "This is not simply a question of a state supreme court interpreting its state constitution, but a state supreme court usurping that state legislature's authority expressly granted under Article I, § 4." David Gersch, an attorney for the voters who initially brought the lawsuit challenging the congressional district plan, said that Republicans were making inconsistent arguments, having claimed in a separate lawsuit that the matter should be addressed by state-level authorities: "Now that they have lost in the highest court of the commonwealth, the legislators turn around and say the exact opposite." On February 5, 2018, Associate Justice Samuel Alito, who is assigned to handle emergency appeals from Pennsylvania, denied Republicans' request for a stay without forwarding the request to the full court.
    • On January 26, 2018, the state supreme court issued an order appointing Nate Persily, a Stanford University law professor, "to assist the court in adopting, if necessary, a remedial congressional redistricting plan." The court ordered state lawmakers to turn over digital files containing information on the state's current congressional district boundaries by January 31, 2018.
    • On January 31, 2018, attorneys for Pennsylvania State Senate President Pro Tempore Joe Scarnati (R) submitted a letter to the court indicating that Scarnati would not furnish the court with the requested data: "In light of the unconstitutionality of the Court's Orders and the Court's plain intent to usurp the General Assembly's constitutionally delegated role of drafting Pennsylvania's congressional districting plan, Senator Scarnati will not be turning over any data identified in the Court's Orders." The letter also included a footnote indicating that Scarnati did not possess the requested data. According to The Philadelphia Inquirer, an attorney for the Pennsylvania General Assembly, in a separate letter, said, "The General Assembly and its Legislative Data Processing Center do not maintain ESRI shapefiles that contain current boundaries of all Pennsylvania municipalities and precincts."
    • In its ruling, the state supreme court set a deadline of February 9, 2018, for the Pennsylvania General Assembly to submit a remedial district plan to the governor. The court set a deadline of February 15, 2018, for the governor to submit a remedial district plan to the court.
  • What's the political context?
    • Pennsylvania is home to 18 congressional districts. In 2016, 13 Republicans and five Democrats were elected to seats in the United States House of Representatives. President Donald Trump (R) carried the state with 48.2 percent of the total statewide vote (Democratic nominee Hillary Clinton won 47.5 percent of the total statewide vote).
    • In 2018, all 18 of Pennsylvania's U.S. House seats will be up for election. As of February 2, 2018, the Pennsylvania Department of State had not made candidate filing forms for congressional candidates available. According to the state department's website, "In light of the Supreme Court's ruling on Pennsylvania's Congressional Reapportionment Plan, nomination petition forms and instructions for the office of Representative in Congress are not available at this time." The website also noted that the filing deadlines noted in the 2018 election calendar did not apply to U.S. House candidates. The primary is scheduled to take place on May 15, 2018, with the general election to follow on November 6, 2018.

Federal court strikes down North Carolina congressional district map; SCOTUS stays the ruling pending appeal

See also: Redistricting in North Carolina
  • What's the story? On January 9, 2018, a three-judge panel of the United States District Court for the Middle District of North Carolina ruled that the state's congressional district map demonstrated unconstitutional partisan gerrymandering. "We find that the General Assembly drew and enacted the 2016 plan with intent to subordinate the interests of non-Republican voters," wrote Judge James Wynn in the majority opinion. The General Assembly of North Carolina was given until January 24, 2018, to approve new district lines. On January 18, 2018, the Supreme Court of the United States stayed the district court's January 9, 2018, order, preventing it from going into effect while the state files its appeal. The order noted that Justices Ruth Bader Ginsburg and Sonia Sotomayor voted against granting the stay.
  • What brought us here? The district plan in question was adopted by the General Assembly of North Carolina in 2016 after the United States District Court for the Middle District of North Carolina ruled that the plan had been subject to an illegal racial gerrymander. On August 5, 2016, Common Cause filed suit in federal district court, arguing that the newly approved congressional district plan constituted an illegal partisan gerrymander. On August 22, 2016, the League of Women Voters of North Carolina filed a similar suit in the same court. The two cases were consolidated. On June 26, 2017, the defendants, including Robert Rucho (R) in his capacity as chairman of the North Carolina Senate Redistricting Committee, filed a motion requesting that the court stay the proceedings pending a decision in Gill v. Whitford, a lawsuit involving alleged partisan gerrymandering that the Supreme Court of the United States was scheduled to hear in October 2017. On August 29, 2017, the court denied this request.
  • What else is going on in North Carolina?
    • On February 6, 2018, the Supreme Court of the United States issued a partial stay against a federal district court order that implemented new state legislative district maps in North Carolina. The stay applies directly to five revised state House district maps in Wake and Mecklenburg counties. The four remaining district maps adopted by the district court (in Hoke, Cumberland, Guilford, Sampson, and Wayne counties) were permitted to stand. For all remaining districts, maps drawn by the state legislature in August 2017 will apply in the 2018 election season. The February 6 order came after state Republicans, on January 21, 2018, filed a motion requesting that the Supreme Court intervene and stay the order issued on January 19, 2018, by a three-judge panel of the United States District Court for the Middle District of North Carolina. As this story continues to evolve, visit this article for the latest updates.
      • These court actions are the latest in a series of events surrounding North Carolina's state legislative district plans. In June 2017, the Supreme Court of the United States issued a ruling affirming an earlier district court decision finding that 28 state legislative districts in the state had been subject to an illegal racial gerrymander. The district court ordered state lawmakers to draft remedial maps by September 1, 2017, for use in the 2018 election cycle. The state legislature adopted remedial district plans in August 2017. In October 2017, the court appointed Nate Persily, a law professor at Stanford University, to serve as a special master "to assist the Court in further evaluating and, if necessary, redrawing" the remedial maps. Persily issued his recommendations, which were adopted as a result of the January 19, 2018, order, on December 1, 2017.
  • What's the political context?
    • North Carolina is home to 13 congressional districts. In 2016, 10 Republicans and three Democrats were elected to seats in the United States House of Representatives. President Donald Trump (R) carried the state with 49.8 percent of the total statewide vote (Democratic nominee Hillary Clinton won 46.2 percent of the total statewide vote).
    • The North Carolina State Senate comprises 50 seats, all of which were up for election in 2016. After the election, Republicans held 35 seats and Democrats held 15. The North Carolina House of Representatives comprises 120 seats, all of which were up for election in 2016. After the election, Republicans held 74 seats and Democrats held 46.
    • In 2018, all 13 of North Carolina's U.S. House seats will be up for election. All 50 seats in the North Carolina State Senate and all 120 seats in the North Carolina House of Representatives will also be up for election. The candidate filing period for all of these offices begins on February 12, 2018, and ends on February 28, 2018.

SCOTUS announces that it will hear Texas racial gerrymandering case

See also: Redistricting in Texas
  • What's the story? On January 12, 2018, the Supreme Court of the United States announced that it would hear Abbot v. Perez, a case involving alleged racial gerrymandering in both Texas' state legislative and congressional district plans.
  • What brought us here? In August 2017, a three-judge panel of the United States District Court for the Western District of Texas ruled that the state's congressional and state legislative district plans had been drafted with racially discriminatory intent. Texas Attorney General Ken Paxton (R) appealed these decisions to the Supreme Court of the United States, which on August 15, 2017, and August 31, 2017, stayed the district court's congressional and state legislative plan decisions, respectively, pending progression of the state's appeal.
  • What's the political context?
    • According to 'The New York Times, the Supreme Court's decision to say the district court rulings pending appeal "made it more likely that the 2018 election will be held" using the existing district plans.
    • Texas is home to 36 congressional districts. In 2016, 25 Republicans and 11 Democrats were elected to seats in the United States House of Representatives. President Donald Trump (R) carried the state with 52.2 percent of the total statewide vote (Democratic nominee Hillary Clinton won 43.2 percent of the total statewide vote).
    • The Texas State Senate comprises 31 seats, 16 of which were up for election in 2016. The Texas House of Representatives comprises 150 seats, all of which were up for election in 2016. After the election, Republicans held 20 seats in the Senate and 95 in the House. Democrats held 11 seats in the Senate and 55 in the House.
    • In 2018, all 36 of Texas' U.S. House seats will be up for election. Fifteen seats in the Texas State Senate and all 150 seats in the Texas House of Representatives will be up for election. The candidate filing deadline fell on December 11, 2017. The primary election is scheduled to take place on March 6, 2018.

In other election policy news

  • Felon voting rights in Florida: On February 1, 2018, federal judge Mark E. Walker ruled that Florida's felon enfranchisement system, which universally bars convicted felons from voting unless voting rights are restored on an individual basis by the governor, violated the United States Constitution. Walker did not order an immediate remedy; instead, he ordered the parties involved in the suit (Hand v. Scott) to file briefings related to remedies by February 12, 2018. To learn more, click here.
  • Ranked-choice voting in Maine: February 2, 2018, marked the deadline for ranked-choice voting proponents in Maine to submit their veto referendum petition to the secretary of state. The veto referendum campaign aims to overturn LD 1646, a bill adopted by the state legislature in October 2017 that would delay implementation of RCV pending a constitutional amendment allowing for its use. The legislation provides for the repeal of RCV if an amendment is not passed by December 1, 2021. In November 2016, Maine voters approved a ballot initiative providing RCV for primary and general elections for United States Senators, United States Representatives, the governor, state senators, and state representatives. The state supreme court issued an advisory opinion in May 2017 finding that the law's provisions, as applied to candidates for state office, violate the state constitution. LD 1646 was adopted in response to this ruling. If the veto referendum campaign is determined to have submitted the necessary number of signatures, Maine citizens will vote on whether to overturn LD 1646 at the June 2018 primary. In the meantime, enforcement of LD 1646 will be suspended, allowing for the implementation of RCV in June 2018 primaries for state offices. On February 1, 2018, Richard Winger of Ballot Access News reported that "town clerks have already determined that [the veto referendum petition] has enough valid signatures to place the referendum on the June 2018 ballot. To learn more, click here.
  • Ranked-choice voting in Santa Fe, New Mexico: On January 9, 2018, the New Mexico Supreme Court issued a ruling upholding a lower court decision ordering Santa Fe city officials to implement ranked-choice voting in the city's municipal election on March 6, 2018. The January 9, 2018, ruling is the latest in a series of legal actions surrounding Santa Fe's ranked-choice voting law, which was adopted via a city charter amendment in 2008. On November 29, 2017, a state judge ordered city officials to implement ranked-choice voting for the March 6, 2018, election. On December 4, 2017, the Santa Fe City Council voted both to prepare for implementation and to appeal the implementation order to the state supreme court. This appeal pivoted on two questions: whether the state judge who issued the implementation order acted outside his authority, and whether ranked-choice voting is in compliance with the state constitution. In its January 9, 2018, order, the state supreme court did not elaborate on these questions. To learn more, click here.
  • Early voting in Chicago, Illinois: On February 5, 2018, Jim Allen, spokesman for the Chicago Board of Elections, said that the start of the city's early voting period for the primary election would likely be delayed to February 21, 2018. Statewide early voting for Illinois' primary elections is slated to begin on February 8, 2018; the statewide primary election will take place on March 20, 2018. Allen attributed the likely delay to a series of pending candidate ballot challenges, which make it impossible to have the ballots finalized by the scheduled early voting start date. Allen referred specifically to Democratic attorney general candidate Scott Drury, whose name a judge ruled cannot appear on the ballot due to filing paperwork issues. To learn more about voting provisions in Illinois, click here.
  • Redistricting in Ohio: On February 5, 2018, the Ohio State Senate adopted Senate Joint Resolution 5, a bill advancing a constitutional amendment establishing new procedures for the redistricting of the state's congressional district boundaries. The Senate voted 31-0 to adopt the resolution. The Ohio House of Representatives followed suit on February 6, 2018, approving the proposed amendment by a vote of 83-10. The amendment is scheduled to go before voters for final approval on May 8, 2018. To learn more about the amendment's provisions, click here.
  • What's going on in the rest of the country? The map below identifies states in which electoral systems and primary systems legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about electoral systems legislation, see this article. For full details about primary systems legislation, see this article.


Electoral systems legislation as of February 2, 2018
Electoral systems map February 2018.png


Primary systems legislation as of February 2, 2018
Primary systems map February 2018.png

See also

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