After a grueling pre-session process, redistricting may be facing its biggest hurdle yet — getting the House and the Senate to agree on one map.
The two chambers differ on where to redraw legislative district lines, and even how many districts there should be. The House passed House Bill 100 – Redistricting of the legislature, which would add two House seats and one Senate seat to account for population changes. The Senate, however, passed a heavily amended version Thursday that keeps the status quo of 60 senators and 30 representatives.
The two bodies do agree on one point — both are willing to support maps that are potentially unconstitutional. The bill will now head back to the House, where lawmakers are unlikely to accept the Senate’s changes. “We will not rubber stamp it, so expect a conference committee,” Rep. Dan Zwonitzer told WyoFile.
Others worry a deadlock could persist, potentially leading to a special session. The Legislature is constitutionally obligated to redistrict following a census.
Where it all began
After six months of interim work, the Joint Corporations, Elections and Political Subdivisions Committee settled on a bill just a few days before the session began. The committee considered 40 region-specific submissions and roughly 10 draft statewide plans, according to Zwonitzer who co-chaired the panel.
Much of the challenge lay in balancing deviation with input from the public, county clerks, lawmakers and other officials. Deviation is a matter of legally permissible proportions. In a mathematically ideal plan, every district would have the same number of voters. But because of geography, the distribution of groups with common interests, cultural history and other considerations, that ideal is rarely achievable. Thus, redistrictors are allowed to deviate from the mathematical ideal, placing more voters in some districts and fewer in others. Courts have held, however, that deviations beyond 10% — more than 5% above or below — of the mathematical ideal violate the constitutional principle of one person, one vote. Any plan that deviates beyond the 10% threshold exposes the state to legal challenges because it overrepresents some districts’ residents in the Legislature and underrepresents others.
The joint committee’s bill proposed meeting this challenge by adding two House districts and one Senate district. That’s where the legislation gets its “62-31” moniker, as there are currently 60 representatives and 30 senators. Each of the 93 districts in the committee’s bill were within the 10% deviation limit before it came to the House.
What happened in the House
For the most part, the House stood by the committee’s work. While it adopted six amendments, none did away with the three additional districts. One amendment shifted lines in Laramie County to avoid putting two sitting lawmakers into one district. Another separated Goshen County from Laramie County in order to group it with Niobrara County to reflect communities of interest.
Another successful House amendment dealt with Sheridan and Johnson Counties. Rep. Barry Crago (R-Buffalo) brought the amendment to move Arvada and Clearmont back into House District 40. The committee bill had placed both of those communities in House District 52, which is mostly made up of Campbell County and represented by a Gillette lawmaker. However, this particular amendment put both Sheridan and Johnson counties out of deviation. Three amendments aiming to put things back into deviation failed in the House.
Not all representatives were on board with an expanded Legislature.
Rep. Clark Stith (R-Rock Springs) attempted to amend the bill to a 60-30 plan.
“A bad 60-30 plan is better than the best 62-31 plan,” Stith said on the House floor. The answer to redistricting is not to grow government, Stith added.
Several lawmakers who worked on redistricting in the interim pushed back, including Rep. Shelly Duncan (R-Lingle).
“We worked diligently to make a 60-30 [plan] work. We couldn’t,” Duncan said. “The deviations didn’t work in this map.”
Stith’s amendment failed in a voice vote.
What changed in the Senate
It didn’t take long for the Senate to propose significant changes to the redistricting bill.
Senate leadership assigned the measure to the Corporations, Elections and Political Subdivisions Committee, where it immediately met concerns.
“I find that completely unacceptable when we have added three legislators in order to accomplish some of these challenges,” Sen. Tara Nethercott (R-Cheyenne) said of the deviations created by Crago’s amendment during committee discussion.
The committee voted to effectively reverse Crago’s amendment, sending Arvada and Clearmont back to Campbell County, and the map back into deviation. Otherwise, no changes were made to the bill before it headed to the Senate floor.
On first reading, Sen. Bo Biteman (R-Ranchester) said he planned to bring an amendment with a new 60-30 map to second reading. He did exactly that on Tuesday, calling his amendment more pragmatic and less disruptive to sitting lawmakers than a 62-31 map.
“All in all, you have 59 districts in deviation. Only one that is out is in the [Bighorn] Basin,” Biteman said. That region has been a particular challenge for lawmakers because of its low population density and the fact that it’s geographically segregated from other parts of the state by surrounding mountain ranges.”
Several lawmakers opposed Biteman’s amendment on account of deviation.
“It is certainly the least disruptive and that is certainly the most telling,” Nethercott said, criticizing lawmakers who prioritized protecting their seats over equitable distribution. She also argued that more representation is better for voters, specifically representation that is closer to the people.
Biteman criticized lawmakers who are overly concerned about deviation compliance.
“Some people are so hung up, Mr. President, on this 10% deviation that they can’t see straight,” Biteman said. “And evidently, Mr. President, they can’t think straight.”
Some voiced support for a 60-30 plan precisely because of what it would mean for their ability to keep their seat.
“This protects me, protects my Senate district and enhances my preference for 30-60,” Sen. Tim Salazar (R-Riverton) said.
Sen. Charles Scott (R-Casper) supported Biteman’s amendment, which resembled his own back-up redistricting bill. Senate File 60 – Redistricting of the legislature-2 had a 60-30 map, but died when it did not receive a first reading by deadline.
The House voted 22-8 to adopt Biteman’s amendment. Sens. Ogden Driskill (R-Devils Tower), Cale Case (R-Lander), Affie Ellis (R-Cheyenne), Mike Gierau (D-Jackson), Stephan Pappas (R-Cheyenne), Chris Rothfuss (D-Laramie) and Jeff Wasserburger (R-Gillette) joined Nethercott in voting against the amendment.
A dozen late amendments
As the Senate debated redistricting a third and final time on Thursday, the floodgates opened with 12 proposed amendments. For comparison, the House considered 10 amendments total over the course of its three readings of the bill.
Case had warned about just such a flurry when the Senate debated Biteman’s 60-30 amendment in the days prior.
“We are not being presented with the plan we will end with,” Case said during second reading. “This is a bait and switch.”
Sen. Dave Kinskey (R-Sheridan) brought one of the 12 amendments on third reading. It proposed inserting language to explain why the map is unconstitutional in order to prepare the bill for a potential lawsuit.
“The legislature has made a good faith effort in redistricting to minimize population deviation between districts while recognizing these communities of interest,” read the amendment, which was adopted by the Senate.
Two amendments made changes to the Bighorn Basin. One returned about 140 voters to Natrona County at the cost of putting the map even further out of deviation. Other amendments cleaned up lines within districts. Scott brought an amendment to shift the entire map back into deviation but it failed.
Biteman opposed Scott’s change, panning what he called “the absolute obsession with getting deviation over actual people.”
Gierau pushed back by reminding his colleagues how frequently they hold up a physical copy of the Constitution.
“We talk about the Second Amendment and how we hold it so dear,” Gierau said. “The one-man, one-vote principle that’s held here in this Constitution, not so much. [I] don’t see the Constitution flying about [today],” Gierau said.
The Senate voted 20-10 to pass the amended redistricting bill.
Now what?
“The change made on second reading was significant, sudden and potentially harmful in certain rural areas,” according to a letter sent to the Senate from the County Clerks Association of Wyoming. After the Senate amended the bill to a 60-30 change on Tuesday, the association asked lawmakers to lay the bill back a day so clerks could catch up.
“I know they were struggling yesterday afternoon,” Mary Lankford with the association told WyoFile. Clerks were trying to assess where the new map created so-called splits. That’s when a legislative map strays from other boundaries, such as a school or conservation district. A split ballot can create confusion for both voters and election workers and increase election costs, according to Lankford.
Lankford was the Sublette County Clerk for almost 38 years before retiring in 2018. This is the fourth redistricting process she’s watched Wyoming take on. In all that time, Lankford said she’s seen “nothing like this,” in terms of eleventh-hour amendments.
Whatever changes occur from here, clerks will need to stay on their feet to provide input, especially as lawmakers attempt to reconcile differences, Lankford said.
The House has received the bill for concurrence, though it’s “highly unlikely” it will get green lighted, according to Rep. Mike Yin (D-Jackson). Because the House voted 54-6 to pass a 62-31 plan, Yin said, “I think that’s a pretty strong message that we’re not interested in a 60-30 [map].”
Should the House reject the Senate’s changes, House and Senate leadership will appoint three representatives and three senators to form a joint conference committee to negotiate a compromise.
Lawmakers will get two shots at the reconciliation process. During the first conference committee, they will be limited to what the two bodies disagree on. If that committee is unable to reach an agreement, or if either chamber refuses to approve the recommendation of the committee, a second conference committee will be convened. One major difference — the second, known as a “free conference,” gives the six lawmakers at the table the ability to propose “any amendments within the scope of the issue between the houses,” according to Rules of the Senate and the House of Representatives. The second conference committee will have less than a week to do the work that took the Joint Corporations, Elections and Subdivisions Committee six months to complete.
Redistricting offers a particular challenge for a conference committee because one change can cause ripple effects across the entire state, including into parts of the bill outside the committee’s purview.
“It is possible to hit an impasse,” Yin said. At that point, lawmakers could face a special session, for which they are prepared in at least one respect: There’s currently $500,000 in the special contingency fund, which can be used for a special session or litigation.
The House would not take up the bill on Friday, according to Speaker Eric Barlow (R-Gillette), who said he wanted to give lawmakers the weekend to look carefully at the changes made by the Senate.
“I want everybody to be clear eyed next week about where we are, what challenges are remaining,” Barlow said.
This story has been updated to clarify the legally acceptable deviation range. — Ed.
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