Inside Job

by Steven Rosenfeld

  Also see: “Republican redistricting is taking a beating in the courts, right now,” by Amber Phillips, The Washington Post, January 28, 2017. This report summarizes recent rulings in federal court that have gone against the GOP. In Wisconsin, a district court found partisan advantage. In Texas, Alabama, Virginia, and North Carolina, the courts found racial discrimination. https://www.washingtonpost.com/news/the-fix/wp/2017/01/28/republican-redistricting-is-taking-a-beating-in-the-courts-right-now/?utm_term=.0b9cfe552d74.

  67. “Three Tests for Practical Evaluation of Partisan Gerrymandering,” by Samuel S.-H. Wang, Stanford Law Review, June 2016. Princeton professor Samuel S. H. Wang’s study concluding that gerrymanders had cost Democrats as many as twenty-two House seats in the 2012 election—nearly enough to flip the chamber’s control. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2016/06/3_-_Wang_-_Stan._L._Rev.pdf.

  68. “New Report: Extreme Partisan Maps Account for 16–17 Republican Seats in Congress,” Brennan Center for Justice, May 16, 2017. This study finds sixteen to seventeen GOP House seats are affected by extreme redistricting. https://www.brennancenter.org/press-release/new-report-extreme-partisan-maps-account-16-17-republican-seats-congress.

  69. Same as 55. NCSL report. 2016 Pre- and Post-Election State Legislative Control, by National Conference of State Legislatures, November 9, 2016.

  70. Same as 56: “A Very Early Look At The Battle For The House In 2018: Donald Trump is unpopular enough that Republicans could lose the House, but there’s a lot of uncertainty,” by Harry Enten, FiveThirtyEight.com, February 15, 2017.

  71. Same as 66: “The State of Redistricting Litigation (March 2017 edition),” by the Brennan Center For Justice, and “Republican redistricting is taking a beating in the courts, right now,” by Amber Phillips, The Washington Post, January 28, 2017.

  72. See 59 for GOP-held states in 2011. Also: “When Does Political Gerrymandering Cross a Constitutional Line?” by Adam Liptak, The New York Times, May 15, 2017. This update on gerrymandering says the Supreme Court has never struck down a map based on outsized partisan gains, and describes the analysis that is being used in the Wisconsin partisan-based challenge that calculates what are called wasted votes. It lists the states with biggest “wasted vote” gaps. Republican-held: FL, IN, KS, MI, MO, NC, OH, VA, WS, WY; Democrat-held: NY, RI. https://www.nytimes.com/2017/05/15/us/politics/when-does-political-gerrymandering-cross-a-constitutional-line.html?rref=collection%2Fbyline%2Fadam-liptak&action=click&contentCollection=undefined®ion=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=collection.

  73. Same as 56: “A Very Early Look At The Battle For The House In 2018: Donald Trump is unpopular enough that Republicans could lose the House, but there’s a lot of uncertainty.” by Harry Enten, FiveThirtyEight.com, February 15, 2017.

  74. “Republican redistricting is taking a beating in the courts (again),” by Amber Phillips, The Washington Post, May 22, 2017. This article reviews recent federal court redistricting decisions (NC, VA, TX, AL, WS) and notes that they stemmed from Republicans winning twenty-one state chambers in 2010. It also notes that the November 2016 ruling against Wisconsin’s GOP was the first federal court ruling in a decade that voided a map on excessive partisan grounds. The Supreme Court will hear an appeal in its fall 2017 term. https://www.washingtonpost.com/news/the-fix/wp/2017/05/22/republican-redistricting-is-taking-a-beating-in-the-courts-again/?utm_term=.499e563318b8.

  75. “Key Question for Supreme Court: Will It Let Gerrymanders Stand?” by Michael Wines, The New York Times, April 21, 2017. This article previews the Wisconsin gerrymandering case that’s headed to the Supreme Court in the fall 2018 term. It notes how a lower federal court agreed with Democrats that it was an unconstitutional partisan power grab, but also that the US Supreme Court has never thrown out maps on partisan greed. (It doesn’t discuss the other gerrymandering cases that are illegal, which is why they are based on overt and provable racial discrimination.) It also references the Court’s 2004 ruling, in Vieth v. Jubelirer, where Justice Kennedy wrote said political “decorum” should guide mapmakers. https://www.nytimes.com/2017/04/21/us/democrats-gerrymander-supreme-court.html?ref=todayspaper&_r=0.

  76. Same as 60: “The State of Redistricting Litigation (March 2017 edition),” by the Brennan Center For Justice.

  77. Cooper v. Harris, The US Supreme Court’s May 2017 ruling 5 to 3 that North Carolina’s 2011 gerrymander of two US House districts was racially discriminatory and unconstitutional. The dissent, starting on page 46, by Justice Samuel Alito and agreed to by Chief Justice John Roberts and Associate Justice Anthony Kennedy said the majority went looking for race, adding that extreme partisan redistricting was constitutional. https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf.

  78. “For Voting Rights Advocates, Court Decision Is ‘Temporary Victory,’” by Michael Wines, The New York Times, May 16, 2017. This analysis, coming after the Supreme Court’s North Carolina ruling that concluded that the state’s 2011 gerrymander was racially discriminatory, suggested that ruling was a temporary victory in a longer war. It discussed how the Court sees the two categories of gerrymandering cases, extreme partisanship and racial discrimination, differently, even as it struggles to separate them when those factors overlap. https://www.nytimes.com/2017/05/16/us/for-voting-rights-advocates-court-decision-is-temporary-victory.html?_r=0.

  Also see tweets by nationally known redistricting expert, University of Florida’s Michael McDonald, who notes the North Carolina dissent by conservatives doesn’t bode well for Wisconsin Democrat’s excessive partisanship argument: https://twitter.com/ElectProject/status/866675389778624512.

  79. Same as 75: “Key Question for Supreme Court: Will It Let Gerrymanders Stand?” by Michael Wines, The New York Times, April 21, 2017. Also see 77, Cooper v. Harris, with dissent by Justice Samuel Alito starting on page 46.

  80. “Revised Redistricting Plans Face Strong Public Opposition: GOP lawmakers on a key Senate committee approved a revision Friday of controversial redistricting plans, but Democrats and others accused Republicans of lacking transparency,” by Ezra Kaplan, Associated Press, March 24, 2017. This report about revising Georgia’s state legislative districts had Democrats accusing majority Republicans of steamrolling the process by acting secretly and still maintaining an advantage. “Jerry Gonzalez, the CEO of the Georgia Association of Latino Elected Officials, is concerned that the lack of transparency could have more nefarious results. ‘Elected officials are rigging the system to racially pick their voters,’ Gonzalez said to the committee. ‘This process occurred under the cover of darkness and without public input.’” https://www.usnews.com/news/best-states/georgia/articles/2017-03-24/revised-redistricting-plans-face-strong-public-opposition.

  81. “Senate Approves Redistricting Plan; Black Democrats Object: The Alabama Senate approved new legislative districts over the objections of black Democrats,” by Kim Chandler, The Associated Press, May 4, 2017. This report says the GOP’s redrawn state legislative districts in Alabama still are not fair. “A contentious point in the debate was control of Jefferson County, home to the state’s largest city, Birmingham, which is majority black and often the focus of partisan disputes over legislation impacting local governments. Democrats want an even number of Democrats and Republicans in the Jefferson County delegation. The Republican map, however, creates districts that would most likely elect four Republicans and three Democrats. The current split is five Republicans and three Democrats. Sen. Rodger Smitherman, D-Birmingham, said the GOP-drawn map stretches suburban districts into the county to maintain GOP control. ‘It has smidgens of Jim Crow,’ Smitherman said.” https://www.usnews.com/news/best-states/alabama/articles/2017-05-04/senate-approves-redistricting-plan.

  82. “With Supreme Court appeal, Texas wants to keep congressional map intact: Attorney General Ken Paxton revealed that Texas has no plans to ask lawmakers to redraw the state’s Congressional map in a fresh round of legislative overtime. Instead, Pa
xton is appealing the ruling to the US Supreme Court,” by Jim Malewitz, The Texas Tribune, August 18, 2017, https://www.texastribune.org/2017/08/18/paxton-redistricting-filing/.

  83. “A Harsh Dose of Electoral Reality: Democrats Have Uphill Battle in ’18 and Need to Elect Governors to Fight Gerrymandered GOP Monopoly,” by Steven Rosenfeld, AlterNet.org, April 7, 2017. Excerpt: “‘There is no question that Republican-led gerrymandering in 2011 has rigged the system against Democrats … What we need to do is level the playing field, unrig that system, so that Democrats can compete and we can translate those campaign tactics into electoral success that actually reflects the will of the voters, which is not happening right now,’ Kelly Ward, executive director of the newly formed National Democratic Redistricting Committee said. ‘That is what the National Democratic Redistricting Committee is trying to lead.’” http://www.alternet.org/activism/democratic-partys-future-hinges-more-winning-2018-governors-races-taking-back-house.

  84. “The Supreme Court Could Make It Easier for States to Purge Voters; The Court has decided to hear a new case from Ohio, where Democrats were twice as likely as Republicans to be purged from the rolls in the state’s largest counties.” by Ari Berman, TheNation.com, May 30, 2017. This article reports on Ohio’s voter purges of infrequent voters that are at the center of a case to be heard by the Supreme Court in its fall 2017 term. “From 2011 to 2016, Ohio purged 2 million voters from the rolls—1.2 million for infrequent voting—more than any other state.” https://www.thenation.com/article/supreme-court-make-easier-states-purge-voters/.

  85. Judges Find Wisconsin Redistricting Unfairly Favored Republicans, by Michael Wines, November 21, 2017. This report discusses why the WI case is the first one in three decades to bring the issue of an unconstitutional partisan gerrymander to the Supreme Court. (It doesn’t say that lower federal courts have been making these rulings.) It also notes that WI’s partisan tilting of the playing field is of the same magnitude as VA, NC, and MI. https://www.nytimes.com/2016/11/21/us/wisconsin-redistricting-found-to-unfairly-favor-republicans.html?mcubz=2&_r=0.

  Also see 72: “When Does Political Gerrymandering Cross a Constitutional Line?” by Adam Liptak, The New York Times, May 15, 2017. This analysis discusses why the WI case, even with its new math showing outsize partisan impacts benefiting GOP, faces an uphill fight at the Supreme Court. “The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party would win an outsize number of seats. But it has left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.”

  CHAPTER 9. LOOKING FORWARD, NOT BACKWARD

  86. Deliver The Vote: A History of Election Fraud, An American Political Tradition—1742–2004, by Tracy Campbell, Carroll & Graf Publishers, 2005. https://www.amazon.com/Deliver-Vote-Election-Political-Tradition-1742-2004/dp/078671591X.

  87. Same as 52: The Fight to Vote, by Michael Waldman. For voter fraud investigation statistics, see pages 186, 187. For GAO study on impact of stricter voter ID requirements, see page 209. For Texas Republican Royal Masset’s estimate of 3 percent reduction in Democratic turnout but to stricter voter ID laws, see page 190.

  88. “Over 220,000 Ballots Didn’t Count In The Presidential Primaries; Try to cast a regular ballot, rather than a provisional one, when voting this fall,” by Samantha Lachman, Huffington Post, June 16, 2016, “Over 220,000 provisional ballots have already been discounted in the presidential primaries this year, according to a survey by The Huffington Post, with many thousands more likely to be tossed as states finish certifying their primaries.” http://www.huffingtonpost.com/entry/provisional-ballots-not-counted_us_5761bb92e4b0df4d586f15fe.

  89. Same as 61: Issues Related to State Voter Identification Laws, US Government Accountability Office, September 2014. This report discusses the most authoritative research on voter fraud, says its occurrence is exceptionally rare—single-digit instances in state where million vote—and that no federal agency tracks it. That absence helps to perpetuate fictitious claims about its presence. See numbered pages 62–74. “Based on our own review of federal and state information sources, we identified challenges such as there is no single source of information on possible instances of in-person voter fraud and variation exists among federal and state sources in the extent to which they collect information on election fraud.”

  90. “New Voting Restrictions in America,” by the Brennan Center for Justice, 2016. This is an interactive webpage and map that details restrictive voting laws passed by states since the 2011 gerrymander. Of the twenty states listed, only two—Rhode Island and Illinois—are reliably blue. “Overall, 20 states have new restrictions in effect since then—10 states have more restrictive voter ID laws in place (and six states have strict photo ID requirements), seven have laws making it harder for citizens to register, six cut back on early voting days and hours, and three made it harder to restore voting rights for people with past criminal convictions.” https://www.brennancenter.org/new-voting-restrictions-america.

  91. “Debunking the Voter Fraud Myth,” by the Brennan Center for Justice, January 31, 2017. This is the center’s most up-to-date report on this issue. It found most purported incidents of voter fraud are traceable to other causes, such as clerical errors or bad data matching. The report reviewed elections that had been meticulously studied for voter fraud, and found incident rates between 0.0003 percent and 0.0025 percent. It is more likely that an American “will be struck by lightning than that he will impersonate another voter at the polls.” https://www.brennancenter.org/analysis/debunking-voter-fraud-myth.

  92. Texas NAACP v. Steen (consolidated with Veasey v. Abbott), the Brennan Center for Justice, July 6, 2017. This webpage gives the history of the cases, NAACP v. Steen: https://www.brennancenter.org/legal-work/naacp-v-steen This is the US District Court ruling issued on April 10, 2017, https://www.brennancenter.org/sites/default/files/legal-work/2017-04-10_Order_Intent.pdf.

  93. The Deceit of Voter Fraud, by Bob Hall and Isela Gutierrez, Democracy North Carolina, April 2017. This report details how Gov. Pat McCrory’s reelection campaign fabricated voter fraud charges against six hundred people in a failed attempt to overturn the results of his narrow loss in November 2016. It includes the sloppy analysis used, interviews with victims, and even comments by Republican activists who dutifully filed charges contesting these voters registrations but who were left empty-handed by McCrory’s campaign during subsequent hearings by county boards of election. http://nc-democracy.org/wp-content/uploads/2017/04/FraudReport.pdf.

  94. A Sampling of Election Fraud Cases From Across The Country, The Heritage Foundation, 2017. This report lists 492 cases and 733 convictions of false voter registrations, noncitizen voting, fraudulent use of absentee ballots, and duplicate voting from 1984 through 2017. http://thf-legal.s3.amazonaws.com/VoterFraudCases.pdf.

  95. “Voter Turnout in Presidential Elections: 1828–2012,” The American Presidency Project, University of California Santa Barbara. This chart lists the presidential election turnout through 2012. http://www.presidency.ucsb.edu/data/turnout.php. Also see, “2016 November General Election Turnout Rates,” The United States Election Project, the University of Florida. This chart lists the 2016 turnout. Together, 980 million people voted for president between 1984 and 2016. http://www.electproject.org/2016g.

  96. “Voting Laws Roundup 2017,” by the Brennan Center for Justice, May 10, 2017. Excerpt: “At this point in the year, every state’s legislature is either in session or has completed its 2017 calendar. As has been the case all decade, legislators across the country are trying to reshape state voting laws. In several places, this means it will soon be harder to vote: Five states have already enacted bills to cut back on voting access, and one more is on the verge of doing so. By comparison, three states enacted voting restrictions in 2015 and 2016 combined.” https://www.brennancenter.org/analysis/voting-laws-roundup-2017.

  97. “Hearing Before The Committee on House A
dministration, Columbus Ohio, March 21, 2005.” This is the transcript and submissions, including testimony by Mark “Thor” Hearne. https://babel.hathitrust.org/cgi/pt?id=pur1.32754078873928;view=1up;seq=31.

  98. Same as 97: All the quotations in the paragraphs that follow are from this source.

  99. Same as 97: Hearne testimony and submitted report begin on page 273.

  100. Same as 97.

  101. What Happened in Ohio? A Documentary Record of Theft and Fraud in the 2004 Election, by Robert J. Fitrakis, Steven Rosenfeld and Harvey Wasserman, The New Press, 2006. Pages 306–313 summarize impact of anti-voter actions taken by Secretary of State Kenneth Blackwell. http://thenewpress.com/books/what-happened-ohio.

  102. Same as 52: The Fight to Vote, by Michael Waldman. See pages 186–7 for examples of voter fraud that federal investigations found—all were errors or small-time ploys unworthy of Justice Department scrutiny. http://www.simonandschuster.com/books/The-Fight-to-Vote/Michael-Waldman/9781501116483.

  103. “Why Republicans Can’t Find the Big Voter Fraud Conspiracy: If the last federal investigation is any guide, the answer is simple: It probably doesn’t exist,” by Lisa Rab, Politico Magazine, April 2, 2017. This feature reviews the history of the GOP’s pursuit of voter fraud, including the George W. Bush administration’s firing on federal prosecutors for failing to deliver voter fraud convictions, the DOJ’s investigation results and prosecutions, and other evidence pointing to its real-life status as a political fiction. http://www.politico.com/magazine/story/2017/04/why-republicans-cant-find-the-big-voter-fraud-conspiracy-214972.

  104. “ACORN Accusations: McCain makes exaggerated claims of ‘voter fraud.’ Obama soft-pedals his connections,” by Jess Henig, October 21, 2008, http://www.factcheck.org/2008/10/acorn-accusations/.

  105. “Election 2012: Voting Laws Roundup,” by the Brennan Center for Justice, October 11, 2012, http://www.brennancenter.org/analysis/election-2012-voting-laws-roundup.