Apr. 18—Maine's redistricting process has been thrown into confusion by the pandemic, which has delayed the U.S. Census count and triggered a constitutional Catch-22 for lawmakers and the courts.
All U.S. states redraw their congressional and legislative districts every 10 years to account for population changes tabulated by the Census Bureau, but Maine's constitution is unusually explicit about when the new district maps must be finalized by the Legislature: by June 11 of the year following the census count.
In Maine the process is insulated against gerrymandering, so long as no party has a two-thirds majority in both chambers of the Legislature. But the stakes are still high, including the transfer of tens of thousands of voters from the faster-growing 1st Congressional District to the 2nd, with its competitive House races and separately allocated Electoral College vote for president.
But the pandemic delayed census takers' work last year. Instead of delivering the constitutionally required data March 31, the Census Bureau expects to deliver it Aug. 24, months after lawmakers are required to turn in final maps. The state constitution's provision for Maine's highest court to step in if lawmakers miss the June 11 deadline is no help either, because it imposes an early August deadline to do so.
"Our constitution is quite explicit," said Senate President Troy Jackson, D-Allagash, who serves on the state's redistricting advisory commission. "But we're in this odd circumstance where you have a pandemic in a year when we have to do the redistricting but we don't have the census data."
Legislative leaders and elections experts are looking to the Maine Supreme Judicial Court to resolve the conundrum, though exactly how that will work is unclear. The only other option — having Congress pass a federal law that would supersede the state constitution and extend the deadlines — isn't under consideration.
"It's really something states will have to figure out in their own way," said Michael Li, senior counsel of the democracy program at the Brennan Center for Justice, a think tank at New York University's law school. "How it works in each state will vary, but there are lots of fixes available at the state level."
California's highest state court extended that state's redistricting deadlines last June after receiving a petition from the legislature, but those were enshrined in a statute, not the state's constitution.
Jackson said legislative leaders wanted the Maine Supreme Judicial Court to step in, extend the deadlines and allow the legislative branch to come up with the new district maps, though he did not know who would make this request of the court. "We know our districts best and look forward to getting together with the Republicans to find a plan we can all agree to," he said. "We are going to try to make every move we can to make sure the court gives us latitude to do our job."
The timeline will be tight. Legislators — who make up almost the entire 15-member redistricting advisory commission — will have only a few weeks to come up with a map acceptable to two-thirds of the state House and Senate. If they fail to find a bipartisan compromise — as happened after two of the previous three censuses — the court will have 60 days to issue its own solution.
Until approved district maps exist, the Secretary of State's Office won't be able to begin programming the new districts into the state voter registration system and the parties won't be able to begin recruiting the dozens of candidates each will field for Maine's 151 House, 35 Senate, 48 county commission and two U.S. House seats. All of it has to be in place by Jan. 1, 2022, because that's the day candidates will begin collecting ballot signatures.
"I don't know how the Legislature and the Supreme Judicial Court intend to square the constitutional requirements, but if we have an apportionment plan in early or mid-November we will have sufficient time to do our work," said Secretary of State Shenna Bellows. "It's not ideal, but it's still possible for us to make it happen."
The census figures are expected to reveal a furthering of the trends of the past three censuses, with growth in the southwestern third of the state (and the 1st Congressional District) outpacing that of the northeastern two-thirds (and 2nd District.) With a smaller proportion of the state's population, there likely will be fewer (and geographically larger) state House and Senate districts in northern and eastern Maine and more (and smaller) ones in southern and midcoast regions.
The now more populous 1st Congressional District will cede territory and voters to the 2nd District, which is already geographically the largest east of the Mississippi. Based on 2018 census estimates and extrapolating the trends forward two more years, that transfer will likely involve about 20,000 voters to rebalance the numerical size of the two districts.
In recent decades, lawmakers have tried to draw the lines so that 15 of Maine's 16 counties remain entirely within a given U.S. House district, with the parties haggling over how cities in towns in Kennebec County will be allocated to even out the math. A Republican effort after the 2010 census to radically rearrange the map to a north-south orientation — and move Rep. Chellie Pingree's North Haven home to the 2nd District — failed and legislators agreed instead to simply move the town of Vassalboro.
MAINE'S PROCESS 'GETS A SOLID B+'
Maine's system makes partisan gerrymandering extremely difficult. It doesn't have an independent commission draw up the maps as Iowa and California do but rather tasks a bipartisan advisory commission consisting of seven Democrats, seven Republicans and an independent as chairman, almost all of them sitting legislators, to draft a plan.
The plan then needs a supermajority approval — two-thirds of members — in both chambers for approval. If lawmakers can't come up with an acceptable solution by the constitutional deadline — June 11 — the Supreme Judicial Court steps in and does so, as it did after both the 1990 and 2000 censuses.
"In states where lawmakers can pass maps with a simple majority, it's a recipe for partisan shenanigans," said Li. "In Georgia and Texas Republicans can do whatever they want, and in Illinois Democrats can do whatever they want, and you get extremely gerrymandered states."
"We have elections in this country every two years because the idea at the founding was that as the mood of the people shifts, so should the composition of the legislature and Congress," he adds. "When you draw up maps to achieve a political effect, it's anti-democratic because you're putting your thumbs on the scale and neutralizing the reason we have elections in the first place."
By requiring a supermajority in both chambers, Li says Maine's system goes a long way toward removing political interference. "If Texas gets an F grade, Maine gets a solid B+, in that if all states had Maine's process, redistricting would work much better," he adds.
Anna Kellar, executive director of the Maine chapter of the League of Women Voters, agrees but would like to see Maine adopt a truly independent redistricting commission before the 2030 census to avoid the major pitfall: "If one party had a supermajority in the legislature, they could gerrymander."
Neither party has had supermajority control of both legislative chambers since 1964, but prior to that it was the norm. In the mid-19th century Maine was a center of abolitionism, and during the era when the Democrats were champions of white supremacy, slavery and segregation they had little strength here. From 1857 to Lyndon Johnson's signing of the Civil Rights Act of 1964, Republicans had a bicameral supermajority for 80 of 107 years, and often held the governor's office as well.
Independents — the second largest voting group after Democrats — and minor parties also have little influence in the process. After the 2020 census, the Green Party's highest-ranking elected official in the country, Portland Rep. John Eder, was effectively redistricted out of office when the new lines amputated his political base in the city's West End.
"If you're an incumbent from outside the two major parties, you might get redistricted because the parties tend to look out for their own," Kellar said. "In an ideal process, we'd see more room for interests other than partisan ones in the process."
David Daley, senior fellow at FairVote, a nonpartisan electoral reform group, says an independent commission avoids many of these problems. "An advisory commission is never perfect," he said. "But we know from experience that maps tend to be fairer when you have members of both parties in the room when they are being drawn."
This story was updated at 12:30 on April 18 to correct the size of Maine's independent voters. They constitute Maine's second largest voting group, after Democrats.