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Elections & Redistricting — What to Watch in 2022

2022 is an election year. Republican investigations are continuing in states, while Democrats are convinced the GOP seeks to rig the rules to ensure their party’s victory. Redistricting is nearly complete with the clear loser being competition.

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David Kidd/Governing
Editor’s note: Each January, Governing produces its annual Issues to Watch, a detailed look at the legislative activities that will keep states busy for the next 12 months. We have decided to break down the report into a series of articles that tie together related issues. You can find our “Biggest Issues to Watch in 2022,” in its entirety here.

Elections


Unfounded claims that the 2020 presidential election was “stolen” are dragging election administration into the spotlight as never before. Misunderstanding and disinformation about voting will continue to generate social-media and real-world turmoil and provide fuel for campaigning and fundraising.

According to the National Conference of State Legislatures (NCSL), more than 3,500 election bills have been introduced during the past year, over a thousand more than the average over the past decade. Only 285 were enacted, consistent with the 300 or so seen in earlier years. But tensions can’t be expected to ease.

Local election officials expect even more public attention to their work in the coming year, says Ricky Hatch, the clerk/auditor for Weber County, Utah. While transparency is crucial and welcome, election administration is complex. The past year saw numerous examples where routine processes were seized upon as “smoking guns” by observers who didn’t understand what they were seeing. “I’m also concerned about knee-jerk legislation that is based on inaccurate information or sensationalized anecdotes,” says Hatch.

The number of Americans who voted by mail in 2020 doubled, reaching 46 percent. Although some characterized this as an invitation to fraud, there was more legislative action in 2021 to increase mail voting than to restrict it. It’s unknown how much public health concerns will color the 2022 midterm elections — but that possibility, combined with greater public enthusiasm for voting by mail, could prompt adjustments to ballot deadlines and the time allowed to count mail ballots before election day. A voting rights bill before Congress could protect against restrictions on voting access, but its path forward is uncertain.

Legislative and executive actions taken in 2020 to accommodate COVID-19 have lapsed or expired and legislation has been proposed in some states to prohibit practices such as extending absentee voting to at-risk populations. “The challenge then becomes creating safe ways for voters to cast their ballot in states that do not have election administration laws that facilitate safe voting,” says Brianna Lennon, the clerk for Boone County, Mo.

While the legislation passed to date may not reframe the 2022 voter experience in most states as drastically as feared, attempts to shift authority over certification of vote counts are a different matter. These can give officials with limited understanding of the processes involved in ballot collection and counting the authority to override results, and the will of voters. “Do you want your legislature looking over the shoulder of your election officials?” asks Wendy Underhill of NCSL. “Maybe that’s the job of the secretary of state.”

Partisan efforts can have unintended consequences, says Tammy Patrick, a former election official and senior adviser to the Democracy Fund. Control of a legislature that seizes authority over certification can shift; voters from both parties can have trouble with voter ID or prefer to vote by mail. “Too often,” she says, "politicians believe they understand what the situation is, and they have it wrong.”

Threats and hostility prompted an unusual number of election officials to leave their jobs in 2021. A bill proposed in Washington state would criminalize such harassment. For officials who remain in their positions, disinformation and mistrust are reinforcing a commitment to free and fair elections and leading to new collaborations with colleagues, private-sector leaders, academics and nonprofit organizations.

Risk-limiting audits can play a significant role in convincing voters that vote tallies are accurate. Already required by statute or being piloted in 15 states, they are expected to become more common and more prominently publicized in the coming year. “We could add a statewide risk-limiting audit to the certification process and that would create a two-step process to verify all results,” says Lennon.

As Lennon puts it, election officials need to “take back the space,” replacing false narratives with the truth about their work and its complexity, precision and reliability. This is often best accomplished through personal contact with the public, tours of processing facilities, presentations to community groups and schools or interaction with individual voters.

“I’ve been able to turn people around a little bit or make them feel more comfortable about what we do,” says Carly Koppes, the clerk and recorder for Weld County, Colo.

“That’s what we are going to have to continue to do, but we’re also going to continue to figure out how many other ways we can do that.”

— Carl Smith
A sign that says "You've been Gerrymandered!"
(TNS)

Redistricting


More than half the states are done drawing congressional and legislative maps for the coming decade. Some patterns are already quite clear. It’s likely that Republicans, who control the process in more states, have strengthened their advantages. In part, this is because the voting power of minority communities in many states has been eroded.

Most prognosticators are betting that Republicans will take control of the U.S. House in November. In part, that’s due to the out-party’s usual advantages during presidential midterm elections. But, since the GOP only needs a net gain of five seats, redistricting and reapportionment (the division of seats between states based on population changes) will help. The population continues to shift from the Northeast to the South and Southwest or, to put it another way, out of Biden states and into Trump states. At the congressional level, the GOP has either expanded the number of seats it’s likely to control, as in Ohio, or locked in gains it’s made over the past decade, as in Texas. So far, it looks like the GOP stands to pick up about 100 additional state legislative seats due to redistricting.

There will be fewer competitive seats left at both the congressional and legislative levels. In states where they control the process, including Illinois, Nevada, New Mexico and Oregon, Democrats have aggressively sought to shore up their current holdings and pick up a few more. In California, the independent redistricting commission completed a congressional map in December that puts all of the 42 incumbent Democrats who are running for re-election into districts that President Biden carried by double-digit margins in 2020.

Still, Republicans are drawing more than double the number of congressional seats as Democrats nationwide, thanks to their legislative advantages. The party’s success at gerrymandering following the 2010 elections helped the GOP maintain large leads in numbers of legislatures and legislative chambers throughout the decade, although Democrats took back the U.S. House in 2018. Despite raising unprecedented sums in 2020, Democrats failed to flip a single legislative chamber in time for redistricting.

This is the first redistricting cycle since the Supreme Court threw out certain protections of the Voting Rights Act in its 2013 decision, Shelby County v. Holder. Prior to the ruling, politicians in all or part of 15 states that had engaged in racial discrimination in the past had to receive prior approval, or preclearance, from the Justice Department or federal judges before making any changes to election law, including redistricting.

States including Ohio, South Carolina and Texas have either placed Black incumbent legislators into the same districts, or have divided up minority voters, including Hispanics and Asians, into multiple districts in a way that will weaken their representation. Such moves have been made at the congressional, legislative and local levels.

In December, the North Carolina Supreme Court delayed the state’s congressional and legislative primaries from March until May, to allow it to rule on lawsuits that claim the new maps are racially discriminatory. That same month, U.S. Attorney General Merrick Garland filed suit against the new maps in Texas, alleging that they “deny or abridge the rights of Latino and Black voters.”

The approval of maps in many states has only signaled the start of litigation. Making racial gerrymandering claims will be more difficult this cycle, due to another Supreme Court decision. In 2019, the court ruled that redistricting is an inherently political process and that there is no way for federal courts to determine whether gerrymanders violate the Constitution due to excessive partisanship. The fact that federal courts can’t weigh in on partisan gerrymandering makes racial discrimination harder to prove, since mapmakers can claim they were discriminating on the basis of partisan voting patterns, not race.

That doesn’t mean there will be no partisan gerrymandering cases. During the last decade, the supreme courts of Pennsylvania and North Carolina determined that maps were excessively partisan, based on state constitutional guarantees of free and fair elections. Thirty states have constitutional language about free, fair or equal elections, giving litigants an opening for challenging partisan gerrymanders. It’s still possible, though looking increasingly unlikely, that Congress will pass some sort of regulations regarding redistricting, which would offer courts additional standards with which to judge.

Nearly every decade, maps are thrown out by courts. No doubt that will happen again. But most will stand. And they will serve, on the whole, to reduce partisan competition over the course of this decade.

— Alan Greenblatt
Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
Carl Smith is a senior staff writer for <i>Governing </i>and covers a broad range of issues affecting states and localities. He can be reached at carl.smith@governing.com or on Twitter at @governingwriter.
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