Facts of the Case             

Fair Districts Colorado, a redistricting reform group, proposed a series of ballot initiatives that seek to establish independent redistricting commissions (IRCs) to draw Colorado’s state legislative and congressional district lines. The IRCs are designed to promote a more democratic process for Colorado redistricting, which happens every ten years with the census. In order to achieve this goal, the initiatives lay out criteria for drawing district lines meant to protect voters of color and to prevent one political party from unilaterally controlling the redistricting process. One such criterion calls for the protection of  communities of interest, defined as groups that share ethnic, cultural, economic, trade area, geographic, demographic, racial or linguistic ties.

The initiatives were submitted to the Colorado Title Board, which reviews proposed ballot initiative language. At the Title Board, the initiatives were challenged by a group of petitioners for violating the Colorado Constitution’s “single subject” requirement for ballot initiatives. The single-subject rule applies to many states, including Colorado, and limits the scope of ballot initiatives to one issue. Specifically, the challengers argued that the initiatives “authoriz[ed]—as a substantive matter and for the first time—‘communities of interest’ based on voters’ race or language group” which would “fundamentally alter the purpose” of state legislative and congressional representation in Colorado. Petitioners argued that including race and language groups in the community of interest criterion would allow a “new form of race-based districting [to be] authorized in Colorado.” The Title Board denied the challenge and set titles for the initiatives, and petitioners appealed to the Colorado Supreme Court in December 2017.

What’s at stake

CLC submitted a friend-of-the-court brief on Jan. 4, 2018 in support of those seeking to get the redistricting reform initiatives on the ballot. CLC’s brief outlines the importance of allowing IRCs to be advanced through ballot initiatives, especially where there is no incentive for incumbents to relinquish their control over redistricting. The brief next explains the benefits of IRCs, and highlights evidence from social and political science that points to the improvements in democracy that have resulted from the introduction of IRCs in other states. Next, the brief argues that the initiatives’ protections for racial, ethnic, and language minorities do not address multiple subjects, but instead, accurately reflect existing federal and Colorado law with respect to communities of color. CLC’s brief further explains that including race as one of many redistricting criteria to be considered when drawing maps does not require an IRC to engage in racial gerrymandering.

The Colorado Supreme Court’s decision in the case will determine whether the ballot initiatives can be included on the ballot in 2018.

Partisan gerrymandering, or the drawing of electoral district lines to benefit one political party, is a serious problem in our democracy. This practice creates an unrepresentative and unfair democracy and also encourages self-interested politics. In jurisdictions nationwide, legislators have drawn legislative maps so that they can choose their voters, instead of voters being able to choose their representatives.

On February 5, 2016, in the federal court case Harris v. McCrory, a three-judge panel from the Middle District of North Carolina held that North Carolina’s 1st Congressional District and 12th Congressional District were unconstitutional racial gerrymanders under the 14th Amendment. Following this ruling, the Republican-led legislature redrew the state’s congressional districts to have a severe pro-Republican tilt, which the plan’s architects freely admitted “would be a political gerrymander.”

Expressly designed to give Republicans a 10-3 district advantage, despite the fact that North Carolina is a solidly purple state, the newly enacted North Carolina congressional plan is, by any measure, one of the worst partisan gerrymanders in modern American history.

It’s clear that the current redistricting process is undermining our democracy and partisan gerrymandering has become the political weapon of choice for legislators to maintain political power. The U.S. Supreme Court held that it has the authority and responsibility to decide partisan gerrymandering claims; in 2006, all nine justices agreed that excessive partisan gerrymandering violates the Constitution. 

However, the Court has yet to adopt a standard for determining whether a redistricting plan constitutes a partisan gerrymander. Every proposed test to date has been deemed unworkable by the courts — too ambiguous and subjective to reliably identify the most objectionable plans. Without a legal standard, voters are free to challenge politically motivated maps in court, but judges, without clear guidance, ordinarily dismiss these cases out of hand. The result is that voters, like those in North Carolina, are unable to hold their representatives accountable and reign in extreme partisan gerrymanders.

The Campaign Legal Center is representing the League of Women Voters of North Carolina alongside the Southern Coalition for Social Justice as well as numerous individual voters who have challenged the state’s congressional district lines as an unconstitutional partisan gerrymander in League of Women Voters of North Carolina v. Rucho. Our case seeks to establish that the North Carolina congressional plan enacted in February 2016 violates the 1st and 14th Amendments of the United States Constitution.

This case is the first since Gill v. Whitford (Wisconsin) to present the efficiency gap as a legal standard to determine if a partisan gerrymander is too extreme.  

Paul M. Smith, CLC Vice President for Litigation and Strategy, argued this case before the Supreme Court on January 10, 2018 on behalf of the Ohio voter plaintiffs. 

Summary

Husted v. Randolph Institute is a challenge to Ohio’s unjustified purge of thousands of registered voters from its voter rolls. Under the National Voter Registration Act (NVRA), states may not purge voters simply for failure to vote. Nonetheless, Ohio’s purge process does precisely that. If a voter fails to vote for two years, they are sent a single notice and must take affirmative steps to remain on the rolls. If this confirmation is lost in the mail, misplaced or forgotten, and the individual does not vote in the next two elections, the voter is purged and will not be able to vote in the future without re-registering entirely.

The ACLU and Demos sued. The Sixth Circuit agreed that Ohio’s purges were unlawful. The case is now before the Supreme Court.

What’s at Stake?

Every state (except one) requires voters to be registered in order to vote. In 1993, in order to expand participation in our democracy, Congress passed the NVRA to make sure that registration is relatively easy and that voters aren’t unduly purged from the roles. It specifically forbade purges on the basis of failure to vote. Ohio’s purge process flouts the NVRA and, if it continues, will disenfranchises thousands of voters simply because they decided not to vote in certain elections.

People often don’t vote in a given election but plan to vote in future elections. Indeed, many voters face substantial obstacles—long lines, inadequate transportation, demanding work schedules—to the right to vote and may not make it to the polls every election for those reasons. If states are allowed to kick voters off the rolls for this reason alone, these voters will likely not find out until it is too late to re-register. The result is they will be prevented from voting entirely, despite being eligible (and, rightfully registered) voters. In 2016, thousands of eligible voters appeared to vote and discovered they had unlawfully been purged from the rolls. Because of this case, they were allowed to vote a provisional ballot.

Campaign Legal Center Files Friend-of-the-Court Brief

CLC filed a friend-of-the-court brief in the Supreme Court  arguing that Ohio’s program serves to further burden, and potentially disenfranchise, voters who already have to hurdle significant barriers to participate in our democracy. Low-income, disabled, and elderly citizens all face particular burdens on the right to vote: a majority of polling places are still not accessible to disabled voters; disabled, low-income, and elderly voters all disproportionately cite transportation as a reason they did not vote; and low-income voters struggle to get to the polls while juggling work schedules, child care, and other demands on their time and resources.  If these voters are kicked off the voter rolls solely because they don’t make it to the polls, they are even more likely not to be able to vote in future elections. Requiring these voters to re-register in order to vote undermines the very purpose of the NVRA and pushes people out of civic life.