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October 21, 2018

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Partisan redistricting means Democrats need a surge to win majorities

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It’ll take a bigger blue wave than in past decades to flip the balance of power in elected bodies at the state and federal levels, even as Democratic turnout has been galvanized this midterm election by unpopular federal policies.

Gerrymandering, drawing partisan legislative and congressional lines to benefit the party in power, has forced Democrats in many states into the position of needing a higher number of votes before they can pick up a new seat, said Michael Li, senior counsel at the Brennan Center for Justice at the NYU School of Law.

“It’s breaking the rules of the game, breaking the rules of the system so that your party remains in power,” Li said. “We’ve seen this increase to frightening levels.”

While a “blue wave” of higher-than-normal midterm turnout has been seen in many parts of the country so far, Democrats have failed to actually flip seats in some close races. If Democrats have historic turnout and make gains, Li said, they still have to do so again in 2020 to avoid losing pickups they may gain in 2018. Republicans rode a red wave in 2010 and locked in gains during 2011 redistricting.

“Which is not the way that American democracy is supposed to work,” Li said. “You’re not supposed to have to count on wave elections in order to change the balance of power in Congress, and the very fact that we have elections every two years is the product of the fact that the framers wanted frequent change in Congress and they wanted Congress to reflect the mood of the people as it changed over relatively short periods of time.”

JMC Analytics, a polling firm that typically works with Republicans, said that in the primaries held in 35 states so far, turnout has increased 81 percent among Democrats and 20 percent among Republicans since the 2014 midterm.

“Again, evidence of a surge in Democratic enthusiasm was evident ... in each and every contest,” the analysis said.

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Nevada’s Legislature falls somewhere in the middle of the rest of the nation in terms of legislative gerrymandering, according to an analysis by researcher Simon Jackman.

Nevada’s 2018 election will determine who is in power in the Legislature as lawmakers consider what steps to take to prepare for the 2020 Census and the redistricting that will follow. Lawmakers in 2021 will have the responsibility of drawing the next set of maps.

Gov. Brian Sandoval stepped in to block maps drawn by the Democratic-controlled 2010 Legislature and the court intervened as well. If Nevada continues to trend blue in active voter registrations statewide, and Democrats maintain majorities and gain control of seats such as the governor’s office, the next set of maps could skew blue. An Associated Press analysis found that Nevada’s Assembly favors Democrats more than any other lower legislative chamber in the country.

“The most extreme gerrymandering typically occurs when one party controls all the levers of power, the governor’s mansion and then both houses of the legislature, and they go to town and they draw a map that is wildly skewed in favor of one party,” Li said. “What we found is that generally, when courts draw maps or when commissions draw maps, or however you have it, the maps are much fairer.”

Nevada Democrats have not pursued an effort to put the redistricting process into the hands of an independent commission or any other nonpartisan body. The state GOP did not respond to a request for comment about whether it has ever done so.

Nevada gained its fourth congressional district as a result of the 2010 Census, and even after the court’s intervention, it gives a slight edge to Democrats.

The 2020 Census includes a question on citizenship, which experts worry will decrease participation of legal residents related to those living in the country illegally. Undercounts can mean loss of millions in federal dollars for states, and loss of representation in Congress.

“There are warning signs that there’s sort of next-generation gerrymandering. ... that could take the form of counting only citizens when you draw districts or counting only eligible voters when you draw districts,” Li said, noting that Nevada’s constitution helps prevent this by requiring total population to count toward apportionment. “That would have major ramifications for areas that have either lots of children or lots of immigrants or both.”

Nevada is still considered a purple state, which Li said can be a factor in heavily gerrymandered states. The Silver State’s active registered voter population has been shifting toward Democrats in recent years, with Republicans still occupying the governor’s mansion and several other key government roles. Democrats have about 66,000 more active registered voters than Republicans statewide.

“The states that have the worst gerrymandering tend to be 50/50 states,” Li said. “You have a lot of Democrats and a lot of Republicans, and if you slice and dice and recombine them in exactly the right way, you can engineer an advantage for one party or the other.”

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The practice of drawing partisan lines is more of an issue in other states.

“There’s no question that the gerrymandering that took place in states like Michigan and Ohio and North Carolina will have a significant impact by making it harder for Democrats to win congressional seats in states that are otherwise 50/50,” Li said. “These are very competitive states at a statewide level; you don’t know whether Democrats or Republicans are going to win the governorship of Ohio or Michigan. But you know you have a pretty good sense of where the congressional results are going to be, which isn’t to say that Democrats won’t win seats in those states. It’s just everything will have to break in favor of Democrats in order for them to pick up seats.”

Li said that while much of the partisan gerrymandering in the past decade has favored the GOP, Democrats have shown the same tendency to skew new lines in favor of their party. Li pointed to Illinois and Maryland as areas where Democrats have been “equally willing to gerrymander.”

This election, gerrymandering may stand in the way of Democrats taking control of the House, Li said.

“As we’ve seen in the first three elections of the cycle, if Democrats don’t have everything working in their favor, you know exactly what the outcome will be, which is a 9-5 map in favor of Republicans in Michigan and 12-4 map in favor of Republicans in Ohio and a 10-3 map in favor of Republicans in North Carolina,” Li said. “If everything breaks Democrats’ way, they can pick up a few seats there, but it would have to be an extraordinary wave, and that’s what we found in our study.”

The Supreme Court has seen several cases related to partisan gerrymandering, but has so far declined to offer a definitive opinion blocking the practice. If the Supreme Court, state courts and voters do not step in, Li said, “we’re about to face even more extreme gerrymandering and even more pernicious gerrymandering than we’ve ever had.”

Justices will have an opportunity to weigh in on a North Carolina case, where lawmakers said on the floor that they were doing a partisan gerrymander and adopted written rules saying 10 out of the state’s 13 congressional districts had to be Republican.

“It’s a great case for the Supreme Court to actually finally say something about partisan gerrymandering, and could do so as early as next summer,” Li said. “And if it does, that will be a landmark. And on the other hand, if it doesn’t, there’s a lot of concern that lawmakers in many states will take that as a sign that they can do whatever they want, that there really are no rules around partisan gerrymandering, and then we’ll have even more aggressive gerrymandering because the data and the tools and the knowledge to be able to do these sorts of gerrymanders will be that much more powerful in 2021.”

This story originally appeared in the Las Vegas Weekly.