US House Redistricting: Maine

[jimrtex]

Chellie Pingree's hometown of North Haven is at the eastern end of ME-01 and could easily be put in the same district as East Millinocket (Michaud's hometown).  Under Maine law, candidates for Representative to Congress have to live in the district they are running in, not just in the state which I know is all the U.S. Constitution requires.

Maine (nor Congress for that matter) may not add qualifications for Representatives.  The requirement is to live in the State on election day.

I think you would be better of trying to pick up some more Republicans for ME-2.  You can't eliminate Aroostook from ME-2.  Is even Oxford possible?

[jimrtex]

Maine (nor Congress for that matter) may not add qualifications for Representatives.  The requirement is to live in the State on election day.

I didn't know that, thanks.  I was wrong when I said that Maine law required candidates for Representative to Congress to live in the district they're running in.  

It's not totally obvious that the Constitution has such a restriction.  Some of the precedent setting cases had other circumstances involved.  It's kind of like Gore v Bush.  It was decided on a political basis, but it gets cited now in other legal cases.

In the first congresses, States used different systems of electing representatives.  Georgia required representatives to live in districts, but elected at large.  Massachusetts had a weird system in 1792.  It elected one representative at large, and then 4 representatives from District One (Essex, Middlesex, and and Suffolk), with 1, district-wide and 1 from each county (Norfolk was not set off from Suffolk until later); 4 from District 2, again with one districtwide, and one each from Berkshire, Hampshire, and Worcester counties (the Connecticut Valley was all in Hampshire).  Two representatives were elected from District 3, but none districtwide, so they were elected from 2 subdistricts, Barnstable, Dukes, and Nantucket; and one from Bristol and Plymouth; and 3 were from District 4, which was Maine, including one from York, one from Cumberland, and one from Lincoln, Hancock, and Washington.  I assume the counties went northward forever, but there might not have been deep inland settlement.

If Congress had dictated election by district from the start, they might have required district residency, and no one would have argued that was not just a manner regulation (eg voters of district vote for one of themselves as representative).  If the Supreme Court ever had a case, they would look at how Congress had interpreted the Constitution.  But they didn't get around to requiring district elections until 1872, and this wasn't fully enforced until the 1960s.

I think the precedent with regard to district residency came from Maryland, where there was a requirement that one representative come from Baltimore city, and one from Baltimore county, with both elected from the whole area.  The principle was probably that a representative should come from the area where those voting for him lived.  But it has come to be interpreted as merely requiring residency in the State (Congress made the initial decision, and the courts have since applied it).

Residency is only required on the day of election.  The precedent for the current interpretation was Philip Barton Key who lived outside Georgetown in the District of Columbia (at the time DC had three cities: Washington, Georgetown, and Alexandria).  A few weeks before the election he moved to a new estate he was building in Montgomery County.  He had family ties in the area, and owned land and practiced law solely in Maryland.  But it is unclear how much he actually lived in Maryland, since his main residence was near Georgetown.

When his election was contested, he made a speech that the case wasn't about residency at all.  As a young man, he had enlisted in the British Army during the Revolution, had been captured in Florida, and paroled to England (instead of keeping POWs, captured combatants would be released on condition that they not participate in further combat).  He returned to the USA and became a lawyer, mayor of Annapolis, and a federal judge.   He was elected to Congress in 1806, and wasn't challenged for about a year.  It was at a time when the status of D.C. was still somewhat ambiguous, and he had deep connections to Maryland.  But it may have been a political decision to say that he could keep his seat.

The modern interpretation by the courts is that you only have to be an inhabitant of a state on election day.  This was applied to Tom Delay in 1996.  In Texas, a party candidate who withdraws after nomination can not be replaced, unless the party finds that he is ineligible.  In the past, legislative candidates have moved out of their district, so that they can be found ineligible.  Legislators not only have to reside in their district, they have had to reside in their election for a year before the election, and continue to reside in their district while serving.  So a nominee moves to a different district, is replaced, and then returns to his former residence.  In 1996, Delay moved to Virginia, got a drivers license, fishing license, and registered to vote.  The Republican party declared him ineligible, and replaced him. The court decided that it was impossible for anyone, including Delay himself, to know where he might be residing on election day, and so could not be replaced.

There have been other cases where it has been ruled that a candidate from another state could be issued nomination papers.  So I am eligible to run for either House or Senate seat in Maine, and at most, Maine might demand that I intend to live there on election day.  If elected, I could continue to serve even if I moved back to Texas.

Both districts would look very ugly, though.

Because Maine has had 2 districts for 50 years, with minor changes as the boundary has slowly moved south and west, I suspect that any sort of radical change would be considered unfair.

[jimrtex]

The scheme of not splitting towns is not necessarily in violation of SCOTUS OMOV rulings.  Given Maine's system of local election administration it is conceivable that apportionment by county, and the sub-apportionment by town is legitimate.

[jimrtex]

So I take it the court is going to either choose the map they like best or draw the lines themselves?

I'm not sure about that.  It might be that "let the Legislature redraw the lines under the provisions in the Maine Constitution" (which are none beyond the general provisions for "normal" legislation, the statutory provisions arguably only applying to years ending in 3) would be an acceptable "proposal".

The Maine legislature is free to redistrict at any time (at least under the US Constitution and federal law).

The federal court can't do anything beyond determining that Maine may not conduct an election on the current boundaries, and if it appears that there will be no State remedy, to fashion a remedy, which would be limited to minimal changes (the federal court has no authority to make political decisions).

They could just set a deadline for the legislature to act (November-December), and then draw a map that shifts the fewest towns.

It would seem like a similar case could be made against legislative districts.  It appears the maximum Senate deviation is around 20%, and for the House 44%.  It might require different plaintiffs.

[jimrtex]

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The court also issued its written order, in which slammed the Democratic Party, saying that their arguments rested on quicksand, were red herrings, and that the decision that the current districts were unconstitutional was child's play.  And this was before they even started addressing the Democrat's rationale for delay.

When the court issued its oral order on July 9, it asked the plaintiffs (DeSena and Dunham), the defendants (Governor LePage and the legislature), and the intervenors (Maine Democratic Party) to suggest their plans at remediation.

It is settled case law (Growe v Emison) that federal courts should interfere in redistricting efforts only as a last resort.

The Democrats proposed that the federal judges adjust the schedule under Maine law, so that the redistricting commission would be appointed this year.  The plaintiffs appeared to ask that the judges said a detailed schedule.  The defendants wanted pretty much what was ordered, giving the legislature an opportunity to act followed by the Maine Supreme Court if necessary,

The order says that the court "anticipates" the legislature acting by Sept 30, and if they don't, they "anticipate" that the Maine Supreme court will do so by November 15.  In the next sentence, they admit that these are deadlines.  The defendants are also required to report every 20 days, with other parties able to comment, so conceivably the federal court could intervene.

I suspect the legislature and governor are quite happy to have a deadline, since now anything they do is simply to keep the federal court from imposing its plans and to maintain Maine sovereignty.

[jimrtex]

The order says that the court "anticipates" the legislature acting by Sept 30, and if they don't, they "anticipate" that the Maine Supreme court will do so by November 15.  In the next sentence, they admit that these are deadlines.  The defendants are also required to report every 20 days, with other parties able to comment, so conceivably the federal court could intervene.

I'm not sure when the three-judge court says, "To the extent that the Maine Supreme Judicial Court plays any role in the redistricting for the 2012 congressional election, the Court anticipates the Maine Supreme Judicial Court will complete its work no later than November 15, 2011," that they are saying that the Maine Supreme Court would necessarily have any role in the event that no plan is passed by the Legislature by September 30, 2011. If no specific law or order was passed making the Maine Supreme Judicial Court the backup in 2011 and the Legislature failed to meet it's September 30 deadline, then I think the federal three-judge court might determine its deadlines to have not been met and thus "proceed with its own reapportionment of Maine’s congressional districts in order to cure the Constitutional violation prior to January 1, 2012" (from the text of the second order linked to in my last post).

I suspect the legislature and governor are quite happy to have a deadline, since now anything they do is simply to keep the federal court from imposing its plans and to maintain Maine sovereignty.

Yeah, I think they're happy with the result too.  So far though, signs point to an attempt at a bipartisan solution rather than a Republican gerrymender.  The court rulings and the lack of a state constitutional 2/3 rule (or any 2/3 rule specifically for 2011) does give the Republicans that opportunity though.

Under the US Constitution, State legislatures are responsible for providing the time, place, and manner of congressional elections subject to override by Congress.

Congress has set the time and requires election from districts.  There are other procedural requirements such as those for voting machines, campaign finance, military and overseas voters, and the VRA, but we can ignore those.  The Supreme Court has interpreted the congressional requirement for districts and the constitutional specification that representatives be chosen by the people of the States to mean that districts must be equipopulous to a high level of precision.

So all the federal court cares about is that Maine conducts its 2012 elections with two equal population districts.  It doesn't really care about how the Maine legislature actually creates the two districts.  It also accepts without question the filing deadline for the 2012 election (ie it is Maine's decision to have filing for the November 2012 election in January, so that is when the districts have to be defined.)

The Democratic Party tried to interpret the decision as meaning that the court had found the redistricting procedure unconstitutional because of its schedule (they argued in succession: (1) the deviation is not so bad; (2) we plan to fix it 2 years from now; (3) since you don't like the schedule, adjust the schedule).  The court ruled: (1) the deviation is too much; (2) we don't care what you plan to do two years from now; and (3) you obviously didn't understand (1) and (2).  It is possible that the 2003 process is still valid, depending on how it is written.  Though the legislature could change it before then.  For example, they could redistrict this year, and change the current statutory process to be used in 2021.

Presumably, the Maine judiciary has authority to oversee any legislation or the legislative process to ensure it complies with the Maine and US constitutions.  So the federal court is interpreting "legislature" to mean the "legislative process", including the governor (veto power), and judiciary (legal review).  If the federal court had set a November deadline for the legislature, then it would have interfered with the Maine judicial branch by not giving them time to act.  If the legislature fails to create lawful districts, I suspect that the Maine supreme court does have the authority to do so.

In 2001 in Texas, the federal district court and state district court held joint hearings on the congressional map.  The legislature had failed to draw a map in the 2001 regular session, and it was apparent that a special session would not be called.  The state court drew a plan, but then-Speaker Laney said he wanted to have the judge make a few changes.  The judge said that the good map was not his final order.  His final map made rather major changes, and the Texas Supreme Court ruled that the state district court had violated due process.  It was only then that the federal district court took over.

So the Maine courts can review the legislative actions and perhaps draw the map if the legislature fails to do so.  The Maine courts probably can be more creative.  The federal court is limited to make the minimal changes necessary, which would probably amount to moving a town or two.  In so doing, they would be respecting the last clearly expressed Maine legislative intent.  I suppose that if the Maine legislature did a major revamp, and it was challenged on grounds of population equality, they could work off that map.  For example, if the legislature were to split a town, they would be required to make the districts equal.  

[jimrtex]

I don't understand the process.   Did the two chambers engross different versions of LD 494 in April, and then came along in June and pass different versions?   Are there ever record votes in the legislature, even for proposed constitutional amendments?

There is always the issue whether a state constitution may bind action by a legislature with regard to congressional districts.  This is under current litigation in Florida.  The Supreme Court precedents are where a constitution provided a role for the governor (through the veto power) or the people (through the referendum) in the legislative process.

What are the Supreme Judicial Court guidelines for congressional districts?  Could they conceivably include that they had been recommended by the apportionment commission or an alternative approved by 2/3 majority?

How is the fewest lines crossed provision interpreted?

Plan 1:

A B B
A B B
A A

Plan 2:

A A B
A B B
A B

Is Plan 2 preferred because 6 boundaries are crossed vs.  7 under Plan 1?

[jimrtex]

There is always the issue whether a state constitution may bind action by a legislature with regard to congressional districts.  This is under current litigation in Florida.  The Supreme Court precedents are where a constitution provided a role for the governor (through the veto power) or the people (through the referendum) in the legislative process.

What are the (U.S. I assume you mean) Supreme Court precedents in those cases?

Davis v Hildebrandt 241 US 565 (1916) was a case from Ohio where the referendum power was used to overturn a redistricting law.  It is slightly ambiguous, because Congress in 1911 had passed legislation that indicated that the referendum was properly part of the redistricting process (ie a referendum could be seen as part of the manner legislated by Congress, rather than part of the "legislature").

Hawke v. Smith , 253 U.S. 221 (1920) is somewhat related in that it was the (attempted) use of the referendum to ratify a constitutional amendment.  It is helpful to understand the delineation between "State", "State legislature", and "State legislative process" in the US Constitution.  State legislative process is not used in the US Constitution, but in some cases the US Constitution has been interpreted as meaning that when "legislature" implies "passing legislation".   When a legislature ratifies a constitutional amendment it is not "legislating" and the Constitution also provides an alternative body, which Congress may choose for ratification.

Smiley v Holm 285 U.S. 355 (1932) was a case from Minnesota where a governor vetoed a redistricting plan, and the legislature then passed a resolution saying that it was in force.

In both Davis v Hildebrant and Smiley v Holm, the state constitutions had added elements in in the law-making process beyond the legislature proper.  Presumably, this would also include all the constitutional provisions that control the legislative process.  For example, in Texas, the congressional redistricting law was passed in the special session.  Only matters put on the agenda by the governor may be considered in special session.  So had the governor not added congressional redistricting to the call, any legislation on the matter would be void.

Where it gets interesting is whether a state constitution may provide special process rules for redistricting legislation (eg requiring a 2/3 vote; or restricting legislation to one year per decade; and the content of that legislation (eg minimal town splitting and racial considerations).

Note that "prescribing the manner of congressional elections" does not necessarily mean that the legislature (or legislative process) must draw the lines, but could mean that the legislature prescribes a separate body draw the lines.  But does this mean that the California Constitution may prescribe that delegation?

I had thought Growe v Emison, 507 U.S. 25 (1993) might apply, because there was a gubernatorial veto there, but the legislature had passed a bill that the state court had already provisionally imposed.  The case is mainly about the role of federal and state courts and legislature in redistricting, and would be useful in understanding why the federal district court in Maine provided an opportunity for the Maine supreme court to act.  Conceivably, someone could make a claim in state court that the ending in "3" statute is unconstitutional because it has resulted in unconstitutional congressional districts, and that the state court should remedy this by changing the schedule in the law.  The federal court might stand by while the Maine courts interpreted Maine statutes, so long as the overall deadline is met.

[jimrtex]

All commission members named except for the designed-to-be-neutral member.

I may have posted this earlier, but here is the joint order establishing this commission.  It's modeled after the Apportionment Commission for legislative redistricting (and congressional and county commissioner redistricting beginning in 2021 under the proposed amendment) established in the Maine Constitution, Article IV, Part Third, Section 1-A.

What is a "Joint Order"?  What is an HP?  (vs an HB)?  Does the legislature have the authority to call itself into special session, or does that require the governor?

[jimrtex]

So in this case they the legislature didn't have time to change the law, but the Joint Order is creating the commission to prepare (possible) legislation that the legislature may enact when they come back into session?

See articles IV.1, V.8, and V.13 in constitution.  So it can  be either.

A curiosity of IV.1 is that would imply that a 3rd political party could block the legislature from meeting in special session ("majority of each party")

[jimrtex]

I was wondering about where the 2/3 rule came from.  I don't think there can be any presumption that any part of the current procedure is valid.   If the legislature passes a bill and the governor signs it, are the Maine courts going to overturn it?

So Mills was not only the Maine AG, she is vice chair of the Democratic Party, and was the lawyer whose arguments the federal court ridiculed?

I think the folks on the panel need to be reminded that it was their State's governor who is the eponym for gerrymandering.

What is the reason that Androscoggin is in the 2nd?

[jimrtex]

Here's a map of my entry showing almost all of the boundary area:



I didn't want to lose detail by zooming out to the next level.  There aren't any surprises on either end I promise!

And here's a map of the towns I have moving from one district to the other in my proposed plan:

So the negative would that you are infringing on Waterville, while the traditional divide in  Kennebec is between Waterville and Augusta?  Was Waterville in the southern district at one time?

Any problems with splitting Kennebec in 5 pieces?  And what is the reason for keeping the 3 towns SW of Gardiner with the norther district?  Ties to Lewiston?

[jimrtex]

Your Bangor Daily News link is broken.

Here are the maps (from Daily Kos) for those too lazy to click through:



The Democratic plan is what was discussed above -- it just moves Vassalboro from ME-01 to ME-02.

So are the 300,000; actually 150,000 persons shifted both ways? 

[jimrtex]

It seems like the Democrats think that because non-emergancy legislation doesn't go into effect until 90 days after the end of the session in which it is passed, any non-emergency congressional redistricting bill enacted in the special session beginning on September 27 will not meet the federal three judge court's September 30 deadline for the Legislature to enact a map, or even the November 15, 2010 deadline for the Maine Supreme Court to enact a plan (unless they were deemed authorized to enact one, or deemed themselves so authorized, after October 1 arrived without a redistricting plan having gone into effect).  I think the federal court would consider the legislature to have met it's deadline if the bill is signed on or before September 30, provided it goes into effect before the end of the year (and thus before candidates can start circulating nominating petitions).  As Maine's state constitutional provisions for the enacting of legislation provide for a people's veto (see sections 17 and 20 here, I don't think it would be correct for the three judge court to deem the matter settled as soon a Governor LePage's signature slides across the bill (unless it was enacted with an emergency preamble," but if no application for such a people's veto is submitted withing 10 business days of the end of the session (see subsection 1 here), or if that group failed to submit enough signatures by the 90-day deadline, or if and when the group were determined by the Secretary of State's Office to have come up short in valid signatures, the court would be able to declare the case settled.  If a group files an application by the 10 business day deadline, the court might decide to conditually impose the plan that some are attempting to veto conditionally upon it's suspension and perhaps repeal by the voters (I say conditionally as the court would not neet to impose it if the people's veto process had failed by the end of the year), but the court might make such conditional "court enactment" of that legislation only apply for the 2012 primary and general elections and any special elections to the Congress elected in 2012, as there would be plenty of time for the plaintiffs to get relief from having their vote dilluted in 2014, in 2016, etc, through the legislative process or through future litigation.  Under current Maine law there would be a redistricting a congressional redisricting in 2013 if the existing districts aren't equal in population as of the 2010 census by that time, which they wouldn't be if a people's veto of a Republican redistricting plan succeeded in 2012.  If both this hypothetical people's veto question and the actual constitutional amendment that will be on the ballot this November (that would rule out any congressional redistricting before 2021) were to both pass, than a plan would have to be put in place by a federal court for each election through 2020, and perhaps in that case the three judge court, if it's still presiding over Desena et al v. State of Maine et al by that time, might "permanently" (through the 2020 primary and general elections and any special elections to the Congress elected in 2020) "enact" the suspended or repealed redistricting plan.  They might conditionally "permanantly enact" that plan as soon as the constitutional amendment was deemed to have been ratified by the voters, as it would be clear that under the Maine Constitution there would be no polical remedy for the plaintiffs until 2021.

If the plan by the legislature is constitutional, then it preempts the federal court.  The court will consider whether the plan would provide a OMOV election for November 2012, and if it does, they won't quibble about missing one of their deadlines.

If there is a referendum and the plan is suspended, then they have two plans:

The 2002 plan which was lawfully enacted but is now unconstitutional; and a proposed plan passed by the legislature and signed by the governor, but is subject to popular veto.  A federal court will choose a starting point.  I suspect that they will start with the current map which was actual enacted law and constitutional until now (and would be used for special elections before next November), and would probably   They would likely make the minimum change that is necessary, which is to switch the one town, which switches the fewest voters.  They would likely note that the plan that is subject to popular veto had never actually become law, and refuse to even consider whether it complied with OMOV.

Maine could then change their plan at any time.

In Minnesota, the legislature had passed a plan and it was found to have technical errors.  A state court then ordered that plan be used with technical changes.  The legislature then passed the plan with the technical changes, but this was vetoed by the governor.  The federal appeals court then ruled that the plan approved by the state court was the Minnesota law; and not the identical plan passed by the legislature and vetoed by the governor (the veto was legitimate, but the judicial plan was already in place).   The appeals court was mainly slapping down the federal district judge who trying to take over.

So the Maine supreme court could also get involved.  They didn't rule the current plan to be unconstitutional, but they are bound by the federal court decision.  They probably have more freedom to craft their own decision, which would be approved in a party-line vote of the judges.

In California in the 1980s(?) there were referendums on both the congressional and legislative plans.  The state supreme court ordered that the congressional plan passed by the legislature be used, since it had enough districts; while the legislative plan from the previous decade be used for the senate and assembly.  But that didn't follow a decision that the existing plans were unconstitutional.