Most political observers say that Tuesday’s elections were a referendum on Donald Trump or a signal of what will happen in 2020. “The results across the country represent nothing less than a stinging repudiation of Trump on the first anniversary of his election,” wrote The Washington Post, in a typical statement of the conventional wisdom. True, the Democrats did well, picking up state legislative seats from Georgia to New Hampshire, including a massive swing of at least 15 seats in Virginia, as well as the governorships in Virginia and New Jersey.
But politics can change quickly: Democrats lost the governors’ races in New Jersey and Virginia in 2009 and took heavy losses in the 2010 congressional midterms, yet Barack Obama won reelection in 2012. Yesterday’s wins may portend Democratic gains in Congress in 2018. But maybe they won’t.
The true implication of the 2017 elections is what they mean for redistricting and electoral reforms in the years to come.
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Far more important to future election cycles than any help in prognosticating the public mood one or three years from now is what the results mean for the next round of redistricting that begins in 2021. Although the next redistricting process will not occur for another four years, what happened in elections throughout the country this week will have a significant impact. The governors, state legislators, mayors, and city council members elected this year will play a major role in drawing district lines – and thus setting the course for American democracy.
Under the U.S. Constitution, once a decade states must redraw their legislative lines for Congress, state legislatures, and even local governments like city councils. That task falls in most states to state legislatures and the state’s governor. The legislature will take the data it receives from the 2020 Census and draw district lines for congressional seats and the legislature itself, and the governor will decide whether to approve or veto those maps. City councils often use similar processes for their own lines.
It matters, then, who is charged with the task of drawing those maps. Politicians of both parties engage in extreme partisan gerrymandering, where they draw the lines to help their own political parties and their own electoral interests. The politicians essentially pick their constituents, instead of the other way around.
During the 2011 redistricting, Republicans controlled the majority of statehouses and governor’s mansions. They used that power to entrench their control. That is why, for example, Republicans won 60 of Wisconsin’s 99 state legislative seats in the 2012 election with only 48 percent of the vote. Similar tactics created disproportionately Republican state legislatures and congressional delegations across the country. In Pennsylvania, another swing state, Republicans gerrymandered their way into winning 13 of the state’s 18 congressional seats with only half of the votes cast in 2012. In Southern states such as North Carolina and Texas, Republicans drew districts that limit Democratic seats by minimizing the representation of minorities such as Latinos and African-Americans, which courts have ruled violates the Voting Rights Act and the 14th Amendment to the Constitution.
Although it tends not to disempower under-represented minorities, Democrats frequently engage in gerrymandering too: Democrats in Maryland passed a pro-Democratic map that plaintiffs challenged as an unlawful partisan gerrymander. The litigation is still ongoing. City Councils are also not immune from the problem, often drawing the lines for their own elections that favor the incumbents or the party in control.
What yesterday’s elections mean, then, is that Democrats can greatly influence the redistricting process, at least in Virginia. (New Jersey uses an independent redistricting commission.) Democrats can, if they want, draw maps that will favor their side through 2030. Even if the Supreme Court overturns Wisconsin’s gerrymander in a highly-watched case this term, there still will be wiggle room for partisans to skew the maps toward their favor.
Fifty-nine of the nation’s 100 largest cities also held elections in 2017, mostly for mayor and city council. These smaller governmental entities will also engage in redistricting in 2021. Given that many of these positions have four-year terms, those elected this week will still be in office when the actual redistricting process begins.
And it is not just redistricting at stake. State legislatures have the power to enact numerous rules that affect the voting process, such as voter ID requirements or early voting periods. In 2016, Virginia’s Democratic Governor Terry McAuliffe restored the voting rights of thousands of felons. This year’s Republican gubernatorial candidate in Virginia, Ed Gillespie, probably would not have done the same had he been in office. Gillespie also supports a strict voter ID requirement, which tends to reduce turnout among groups of voters who skew Democratic such as non-whites and young people. That kind of shaping of the electorate could have a significant impact on who wins Virginia – a key swing state − in the 2020 presidential election.
In New Jersey, Republican Governor Chris Christie vetoed a bill to implement automatic voter registration, in which the government would place eligible voters on the registration rolls, allowing them to opt-out instead of requiring them to opt-in. Automatic voter registration, which began in Oregon and is now sweeping the country, increases turnout. Democrat Phil Murphy’s win in New Jersey means that automatic voter registration will now likely become law – again impacting future elections. Automatic voter registration also might come to Washington state because a Democratic candidate is leading in the vote count from Tuesday in a race that will determine majority control of the state senate.
Of course, deciding who may vote should not be a partisan issue. Independent commissions or other nonpartisan approaches should determine redistricting. It should be easy and convenient for every eligible voter to participate. But that is not the current reality of American politics.
The best way to think about the 2017 elections is to consider them not for what they mean for Donald Trump but how they will determine the rules of elections for a decade or more.
(Editor’s note: This column has been corrected to include the fact that New Jersey uses an independent redistricting commission.)
Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of Election Law Stories. @JoshuaADouglas
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