The failed promise of independent election mapmaking

This story is republished from ProPublica. Read the original article.

Washington state’s mapmakers had been working for almost a year to draw the lines that would shape the state’s elections for the next decade. Now they had five hours until the midnight deadline and they’d made little progress.

Promptly at 7 p.m. on Nov. 15, 2021, the five members of the state’s Redistricting Commission appeared in a public Zoom meeting. Chair Sarah Augustine, a nonvoting member, sat near an ice machine in front of a backdrop with the commission’s new logo, “Draw Your WA.” She called the roll and ratified the minutes. The commissioners appeared on screens, seemingly calling in from different locations. Augustine immediately announced that they wanted to caucus privately. She promised that staff would reappear about every 30 minutes to give updates. A sign announcing “Meeting on Break” flashed up.

In most states, lawmakers draw new districts every 10 years to accommodate changes in population and ethnic makeup. They’re usually exercises of raw political power allowing lawmakers to, in essence, choose their voters instead of the other way around. But in Washington, an independent panel of commissioners has long revised the maps to avoid the common pitfalls of such redistricting, which often disenfranchises people of color or results in gerrymandering.

This year, Augustine’s master’s degree in conflict resolution was failing her. The commission’s work had devolved into a partisan mess, the very thing it had been created to avoid. The two Democratic commissioners and their two Republican counterparts had fought over how to address complaints from the state’s growing Latino population that it didn’t have representation. As they tried to work out a deal, they were repeatedly distracted by lawmakers and at least one lobbyist who had gotten wind of the final meeting and wanted to weigh in.

In a desperate move, the commission opted for a charade, with the public Zoom as its cover. In reality, the four voting commissioners were secretly hashing out the maps in person at a Hampton Inn a healthy 40 miles outside the capital, Olympia. It was a violation of the rules for more than two members to negotiate in private. One commissioner balked and rented a room in a Marriott a short distance away.

Throughout the process, the members of this ostensibly independent body were consulting with their party leaders and state and national political operatives, and were relying on partisan funding. Throughout the night, a cadre of lawmakers continued to pepper the commissioners with requests as picayune as moving one constituent’s house into a different district.

Every half-hour, a staffer briefly came on camera to inform viewers that caucuses continued. An interpreter even signed for deaf viewers. No member of the public ever saw any maps they could comment on, however. Then the break notice would go up again. As one commissioner later joked to another, the spectacle was “the screenplay to a movie no one would want to watch.”

The commissioners blew past their midnight deadline as they scrambled to reach deals and haggled over the “price” of Latino representation. The two Democrats finally capitulated to Republican demands, allowing a map that they felt didn’t give Latinos enough representation. They hadn’t been able to finish the job but hoped the courts would resolve the issue.

The independent commission’s work had been a disaster. A federal judge threw out the map in August 2023 after determining it had discriminated against Latinos. The commissioners were fined for their public meeting deception.

It was an ignominious referendum on Washington’s redistricting model. As the nation grapples with ever-more-aggressive battles over access to voting, a review of what unfolded in Washington shows that independent commissions — still reformers’ best hope for fixing this problem nationwide — have not always succeeded in taking this central democratic function out of politicians’ hands.

While independent commissions usually make fairer maps than their legislative counterparts, all over the country some, like Washington, have stumbled. Several were not the bulwark against discrimination that supporters had hoped. In 2021, five states with independent commissions faced lawsuits over their maps. In New York, an independent commission bungled the job so badly that a judge threw its work out. It has been reconvened to create new congressional maps after two years of litigation. Michigan’s new independent commission lost a federal lawsuit brought by Black voters in Detroit. A judicial panel has ordered the commission to redraw maps and the case is being appealed to the U.S. Supreme Court.

In Washington state, criticism of the commission’s work has been so intense that lawmakers decided not to reconvene the group to draw the new maps. Even good-government types have been aghast. Simone Leeper, a legal counsel for the nonpartisan Campaign Legal Center, which handles voting-rights cases and represented Latino plaintiffs in Washington, says, “Going about this in this secretive way to trade away the rights of individuals is abhorrent to the concept of these commissions and what they're intended to do.”

A Pioneering Reform

Washington was the third state in the nation to set up an independent commission. State voters approved it by constitutional amendment in 1983 after the Legislature, then led by Republicans, passed a redistricting plan that was found to be discriminatory by a federal court, which ordered new maps to be drawn.

Through several redistricting cycles, Washington’s commission worked smoothly, praised as a national model for how to fix the process of drawing lines for congressional and state legislative districts. The commission’s enabling legislation prohibited gerrymandering, or drawing lines to favor one party or undermine the voting power of a demographic group. Commission members could meet with lawmakers individually to hear specific requests, but public input was paramount since every voter had a stake in how the lines were drawn.

Today, 22 states have some type of independent commission to handle map-drawing, according to the Brennan Center for Justice at New York University School of Law.

Washington’s model is known as a bipartisan commission, which purports to be independent. But legislators still play a significant role. House and Senate majority and minority leaders choose four commission members by political affiliation, with one nonvoting member put in place to mediate. Liaisons for both political parties are assigned to monitor the commission and report back to caucuses. The commission gets around $2 million for staffing and expenses, but state political parties sometimes step in to cover expenses for studies or other activities that have a partisan slant.

The start of this redistricting cycle was dogged by controversy. Members chosen for the 2021 Washington commission had strong legislative ties. Republicans Joe Fain and Paul Graves and Democrat Brady Piñero Walkinshaw were former lawmakers. Democrat April Sims was an executive with the Washington State Labor Council, chosen by House Speaker Laurie Jinkins to represent the House Democratic caucus. Augustine, the nonvoting member, was chosen by the other members.

This commission began in rancor. Fain, a former senator from King County, had lost his 2018 reelection bid after a former Seattle city official publicly accused him of sexual assault. Fain denied the allegation, and the woman declined to press charges. But Walkinshaw and Sims sided with protestors and called, unsuccessfully, for Fain to resign. Fain did not respond to repeated requests for comment.

From the start, the commissioners faced pressure from the surging Latino population, which had grown by 14% since 2010 but still struggled to elect members of the House of Representatives. The growth had been particularly intense in the Yakima Valley agricultural region east of the Cascade Mountains, where the population includes many immigrant laborers from Mexico and South Texas.

The Yakima Valley farming region stretches for 80 miles and includes five counties, with three reporting majority Latino populations. Some small farming towns reported that as much as 80% of the population is Hispanic, according to UCLA Voting Rights Project founder Matt Baretta, who conducted an analysis of voting in the area.

Yet white Republicans for years had dominated political offices in the area, and Latinos complained they had been penalized by decades of “cracking,” a redistricting term that means splitting up communities to diminish their power. The valley’s Latino population was carved into three House districts that Latinos had little chance of winning.

Spanish-speaking voters won lawsuits against local governments to force changes, but little was done. “Time and time again, there have been findings and consent decrees, and other outcomes, that make clear that this community has persistently faced discrimination in voting,” said Campaign Legal Center’s Leeper.

In 2021, as the independent commission began its work, Latino activists were hopeful. Supporters of more representation testified at virtual public meetings. “There were so many voices,” said Susan Soto Palmer, an advocate and unsuccessful candidate for state and county office. At the public meetings, she described taunts she faced in Yakima from white voters when campaigning and the inadequate services for her community.

The commission had been briefed by the attorney general’s office about the federal Voting Rights Act, which required that it draw election maps that give Latino populations the opportunity to elect candidates of their choice.

Commission Democrats advised getting an expert analysis of the area’s voting patterns. But the two Republicans protested the hiring of UCLA expert Barreto because he had strong ties to national Democratic Party entities.

Senate Democrats paid for Barreto’s analysis. He concluded that the state must create at least one, possibly two, districts in the Yakima Valley with substantial Latino populations. The VRA requires that when a racial or ethnic group makes up a significant percentage of the electorate, the group should be able to elect candidates of its choice. Such a district is called a “performing” one. While that doesn’t always mean that the group needs to be a majority in a district, in this case, Barreto determined that a new district needed to have a Latino voting-age population of around 60%. Both Democratic commissioners proposed maps with a Yakima Valley district that had a greater than 60% Latino voting-age population.

The Republicans resisted such a proposal. They offered maps that were bare-majority Latino, giving the GOP a greater chance of winning the seat. Barreto said these proposals still cracked Hispanic voters.

Fain and Graves turned to the state GOP to pay a Seattle law firm, which produced a legal brief justifying a more conservative-friendly map. The lawyers urged them to avoid drawing a new district solely on the basis of race. In recent years, conservative legal experts have begun to argue that the 14th Amendment’s equal protection clause means that mapmakers cannot take race into account when drawing districts. The amendment supersedes the Voting Rights Act, they argue. The firm warned that the commission could face a lawsuit that claimed the map discriminated against non-Latino voters.

Jinkins, the House speaker, told ProPublica, “While the Washington approach has generally worked well for us, I’m always interested to understand what other states have learned and consider incorporating changes that make sense for Washington.” One model is California, which has been praised for creating a large commission with so many guardrails against legislative influence that it is now considered the gold standard.

“Meeting on Break”

The commission’s November Zoom call made for excruciating video. The “Meeting on Break”” sign stayed up for hours. Every so often, Augustine came on camera to report that private discussions continued. Staffers killed time with card games. Occasionally, a commissioner surfaced to cryptically describe what was happening behind closed doors.

Graves, one of the Republicans, looked bleary-eyed on camera, later revealing in a deposition that he had a three-month old at home and hadn’t slept for days. “I know it’s frustrating,” he told viewers.

In the days leading up to the Zoom, Graves had been driving a hard bargain behind the scenes, according to text messages and emails that surfaced later.

Graves and Fain texted on Nov. 7 about how they could extract a price from Democrats if the GOP agreed to their version of a 14th district.. “If you had notes on the price for their 14, can you please send them to me?” Graves wrote Fain.

On Nov. 11, Graves emailed Democrat Sims to outline his latest “ever so slightly more Republican proposal” and to offer a brazen political trade. Republicans would give up some of their strength in the Yakima Valley, but only if Democrats would give them a more competitive district elsewhere.

“I will be interested to hear from you what you think is a fair price for this 14th,” Graves wrote Sims. Graves described to ProPublica his logic: He acknowledged his offer to Sims was “purely partisan,” but he said he and Sims had already agreed to draw a majority-Latino district and were fine-tuning.

“One of the requirements in our statute is that the plan cannot be drawn to purposely favor or discriminate against any political party. I was trying to avoid the kind of gerrymandering where one party gets substantially more representation than its pure votes would suggest,” he said.

He says he strongly supports independent commissions.

As they struggled to resolve the Yakima issue, commissioners kept getting distracted by lawmakers and lobbyists pushing their own agendas. Texts and emails from that evening and the days leading up to it, which were later produced in lawsuits, documented exchanges among commissioners and with legislators and special interests who were closely following the action.

The commission had no rules to limit ex parte communications. Attorneys in the lawsuits found that some records were never turned over. Sims, for example, acknowledged deleting some Nov. 15 texts that she considered personal.

That night, then-House Republican leader J.T. Wilcox texted with Graves, whom he had appointed. Graves said in a deposition that Wilcox had earlier passed along thoughts about how to shape his own district and “keep places … I have great affection for.”

That night, the two discussed a logjam that had developed between Fain and Walkinshaw, who were negotiating on congressional maps.

Graves told Wilcox that Walkinshaw was resisting a deal, but he still thought one was possible with a little strong-arming. Fain had “a lot of good contacts who can make Brady’s life very hard who want a deal.”

Walkinshaw told ProPublica he found the messages puzzling since he and Fain shared no political connections. Wilcox and Graves described it in interviews as a flippant comment, fired off in the heat of the moment.

Graves exchanged messages with state Rep. Andrew Stokesbary, a rising leader in the House GOP.

Commission staffers had been told to avoid last-minute lawmaker requests for mapping changes. But House and Senate leaders could get around this by sending messages through their party liaisons, who were on standby at the Hampton Inn.

House Speaker Jinkins texted her liaison, requesting a mapping tweak desired by two local Democratic officials, who shared a home in Tacoma.

“Not the biggest deal,” Jinkins wrote, asking to get the specific Tacoma street address into another district. “Right now, it’s just on the other side of the line.”

Jinkins said constituents had asked her if they could remain in their previous district.“I told them I would ask staff to see if that was possible but that I could make no promises.”

In the end, she said, her request was denied by “the independent, bipartisan commission.”

Jamie Nixon, a former commission staffer, said Jinkins’ request violated protocol and was “a vulgar attempt to wield her power to modify a map for her own political benefit.”

Fain, who had recently moved from Bellingham to Normandy Park, didn’t like the district assigned to his new residence. He asked Walkinshaw if they could tweak the congressional lines to move his house.

Walkinshaw rejected the idea.

State government lobbyists were supposed to report any contact with the commission, but a lobbyist for the Service Employees International Union did not disclose texts she sent to Sims on the final night offering assistance finishing up the work. The lobbyist, who was in a relationship with a state Democratic leader, later got a warning letter from the state public records commission. Neither the lobbyist nor Sims responded to ProPublica’s request for comment. The lobbyist’s attorney said in a filing that her texts were not an attempt to influence Sims.

Though commissioners resisted these entreaties, upholding their independence, they had spent precious time fending them off. “There were text messages being exchanged as well as commissioners meeting in the hallway or in the hotel lobby,” Democratic liaison Ali O’Neil wrote on Nov. 21, 2021. “We were forced to compromise on our stated priorities and at times disregard what was shared with the commission during months of gathering public input.”

Lobbying had been going on for months, mostly by persistent citizen groups and Native American tribes. National political operatives were involved in the state’s process too, records revealed. Kurt Fritts, a former national political director for the Democratic Legislative Campaign Committee who now runs a state consulting firm, attended commission meetings and was briefed by Democrats throughout the process. He did not respond to emails or phone calls.

The National Democratic Redistricting PAC made a small contribution to pay for “proprietary redistricting software,” according to Adam Bartz, director of a fundraising arm of the Senate Democrats.

Graves said he consulted the Virginia-based National Republican Redistricting Trust, which coordinates national GOP redistricting strategy. In a deposition, Graves described meeting with NRRT executive director Adam Kincaid while he was in Washington, DC., conferring with GOP members of his state’s congressional delegation. Kincaid said he described to Graves the assistance the NRRT could offer with data and litigation.

Commissioners finally compromised on the Yakima Valley, but only after Democrats conceded. They approved a plan almost guaranteed to bring a federal lawsuit, with a district that had only a 51.5% Latino voting-age population, which was close to what Republicans had wanted.

As the meeting wore on, Walkinshaw said it was clear the deal “was the best result that could be achieved through bipartisan negotiation.”

Graves emailed his party leadership just before 6 a.m. to alert them a deal had been reached.

“Get Out of the Way”

Commissioners finally stumbled out of the Hampton Inn just before sunrise and reconvened the next afternoon to get their mapping recommendations drawn. Even though the commission had blown its deadline, the state Supreme Court reviewed its work and decided in late 2021 to let the mapping recommendations stand so that 2022 elections could proceed without interruption.

Angry that they were once again forced to vote under maps they considered discriminatory, Soto Palmer and other plaintiffs sued in federal court, alleging the commission created a Latino district that was a “facade.”

U.S. District Judge Robert Lasnik sided with the plaintiffs in August 2023, finding “inequality in the electoral opportunities enjoyed by white and Latino voters.” He ordered the state to correct the maps.

But Republicans countered, using the Seattle law firm’s tack. A Latino Republican filed a federal lawsuit in March 2023, arguing that the new Latino-dominated legislative district was an illegal racial gerrymander. The plaintiff claimed that Latino voters did not need a 60% opportunity district because the maps drawn by the commission allowed the Yakima Valley to elect its first Latino Republican state senator in 2022. Progress was underway, the plaintiff maintained.

A judicial panel declared the case moot after Lasnik decided the Soto Palmer case, but it is now on appeal to the U.S. Supreme Court.

Jinkins and other legislative leaders decided not to reconvene the 2021 commission to draw new maps that can be used in 2024 elections. Instead, lawmakers asked the court to handle it. A special master is expected to decide soon among five proposed maps that could cost several Republicans their seats.

The commission was forced to acknowledge that its November Hampton Inn meeting violated the state’s Open Public Meetings Act and its own transparency rules. It settled a lawsuit brought by the Washington Coalition for Open Government and agreed to pay about $130,000 in legal fees. Individual commissioners were fined $500 each.

With the next redistricting nearly a decade away, Mike Fancher, the coalition’s president, said the Legislature should decide to “appoint a commission and then get out of the way. Don’t be involved in the staffing of it, don’t be involved in the direction of it. Let this commission do its work. We want to make sure this never happens again.”