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A Flood of Voter ID Laws Page 7

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Client: NEI (Nuclear Energy Institute) Pub: NCSL St. Legislatures Run Date: Oct/ Nov Size: 8.5” x 10.875” (trim size), 0.125 (bleed) VeR.: Value Ad - Full Page 4CP: STATE LEGISLATURES OCTOBER/NOVEMBER 13 26 thePeople’sChoice 20 16 Fiscal Ciffhnger Power Struggle A WaveoraRipple? and power. whether theConstitutionlimits federalauthority The SupremeCourt’srecentterm focusedon By DavidSavage statewide ballotsthisNovember. Once again,there’ssomethingforeveryoneon By JennieDrageBowser no seachangetopartycontrol. State electionswillbringasurgeofnewfacesbut By TimStorey fiscal cliffleavesstatesplayingaguessinggame. Uncertainty abouthowCongresswilladdressthe By JeffHurley

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Features 38 34 30 A RoundhouseofArt A BoldpproachtoSchoolReform 5 TrendsShapingRedistrct ambitious showcaseforthestate’sartists. New Mexico’scircularCapitolishometoan By WendyUnderhill voters’ laps. turned intoahotpotatoissuethat’slandedin Sweeping changestoIdaho’seducationpolicy By BeckyRussell exercise ofdrawingpoliticalboundaries. New dynamicsaretransformingtheonce-a-decade By MorganCullenandMichelleDavis VOL38

N o 9 - | CONTENTS

STATE LEGISLATURES A National Conference of State 4 | CONTENTS | 10-11.2012 Legislatures PUBLICATION

Executive Director VOICES DEPARTMENTS SL ONLINE William T. Pound Editor Karen Hansen

5 IN MEMORIAM 6 BOOK REVIEW Visit www.ncsl.org/magazine Managing Editor Julie Lays Gary Olson, former NCSL staff “Kill the Company” this month TO: Associate Editor chairman Jane Caroll Andrade 7 stATESTATS ◆ Find everything you need Web Editor Edward P. Smith 24 ncsl Legislative SummiT State Voter ID laws to know about state legislative Copy Editor Snapshots from Chicago elections, ballot measures and voter Leann Stelzer

8 PEOPLE & POLITICS ID laws. Contributors Jennie Drage Bowser 40 For the Record Qiana Flores Jaime Rall Diane Swonk, chief economist at 9 trends & TRANSITIONS ◆ Discover up-to-date information Anne Teigen Mesirow Financial Expanding caregivers’ rights, on federal plans to reduce the Art Director protecting passwords, post-election deficit and avoid the fiscal cliff. Bruce Holdeman Advertising Sales Manager audits, child support collections and LeAnn Hoff (303) 364-7700 safe lead removal ◆ Read more about the state-federal ...... NCSL OFFICERS cases recently decided by the U.S. President Representative Terie Norelli, 14 stATELINE Supreme Court. New Hampshire

News and happenings from around President Elect Senator Bruce Starr, the nation, from buckling up Fido to ◆ Listen to the complete interview Oregon fighting fires and floods with Diane Swonk, chief economist Vice President Assemblywoman Debbie Smith, at Mesirow Financial Nevada

43 AS THEY SEE IT Staff Chair Quotes and cartoons from the states Patsy Spaw, Texas Staff Vice Chair Tom Wright, Alaska

Immediate Past President THEN & NOW Senator Stephen Morris, Kansas

Immediate Past Staff Chair 25 Years Ago Did you know … Whose CAPITOL Is it? Michael Adams, Virginia ...... Denver Office Louisiana’s State Capitol in Baton Rouge 7700 East First Place Denver, Colorado 80230 Articles from was the brainchild and passion of former (303) 364-7700 the October Governor and U.S. Senator Huey “Kingfish” Washington, D.C. Office Long. He conceived the idea for a new 444 North Capitol Street, N.W. 1987 issue of Suite 515 statehouse while running for governor in Washington, D.C. 20001 STATE LEGISLATURES 1928. He wanted it to be a skyscraper and (202) 624-5400 to reflect Louisiana’s history. Despite the Website www.ncsl.org/magazine Great Depression, Long was able to push ...... State Legislatures (ISSN 0147- through the necessary legislation to get it 0641), the national magazine of built. After only 29 months, in May 1932, policy and politics, COMPETITIVENESS: INFLUENCE IN ’88? is published monthly by the “America’s inability to meet the challenge the new capitol, featuring Alabama lime- National Conference of State Legislatures except July/August of economic competition has not yet become stone and Art Deco details, was finished. and October/November, which At the time, it was the tallest building in are combined. Postmaster: the political issue expected a year ago. Send address changes to: State But it will become one, experts believe, the South. Long Legislatures, 7700 East First Place, Denver, CO 80230. fueled by voters who fear that the ‘land missed the open- of opportunity’ won’t be there for their ing festivities, © 2012, All Rights Reserved. children.” though, as he Opinions expressed in this magazine do not necessarily had been elected reflect the policy of NCSL. to the U.S. Sen- NEBRASKA’S UNICAMERAL: 50 YEARS Go to www.ncsl.org/bookstore/ to WITHOUT A CONFERENCE COMMITTEE ate and was in subscribe. United States—$49 per year; foreign—$55. Teachers only “Nebraska embarked on a legislative Washington, D.C. $25 (enter promo code SLMTEA). experiment in 1937 that has become a The capitol has Single copy: $6.50. tradition there after half a century, but so far 34 stories, stands Letters to the Editor may be mailed to the Denver office no other state has copied it.” at 450 feet, and or sent by e-mail to: edward. features sculptures representing statesmen [email protected]. Send requests for permission to reprint to on its tower. Ironically, Long was shot in the PAYING TODAY FOR COLLEGE Edward Smith in Denver. Send Capitol in 1935, by the relative of a political To find out, go to: www.ncsl.org/magazine. subscriptions and changes of TOMORROW address to the Denver office Attn: enemy. He died two days later at age 42 and Marketing Department. “In response to rising tuition costs and cuts is buried on the capitol grounds. in federal aid to students, states are devising Periodically, NCSL rents mailing —From “A Celebration of State Capitols” labels to outside organizations. If plans to help parents save and pay for their you prefer your name not be used, by Richard R. Gibson, and the please send a written request. children’s education years in advance.” National Park Service State Legislatures is indexed in the PAIS Bulletin and Expanded Academic Index. It is also available in microform and electronically through University Microfilms Inc. (UMI) at (800) 521-0600. 10-11 .2012 | IN MEMORIAM | 5 GARY OLSON

ary Olson had a gift for numbers. lasted three decades. Both men attended the University Whether it was how many strokes he of Michigan and both were economists. When Steve took on the golf course (he counted every Gold died at the age of 52, his life and work became one) or the bottom line on state revenues, the inspiration for an award to celebrate his legacy— Gary’s numbers had integrity. He was a the Steven D. Gold Award. It is given annually by nuts and bolts, business kind of guy who NCSL, the National Tax Association and the Associa- Gdidn’t believe in spin. So during Michigan’s tough- tion for Public Policy Analysis and Management. Gary est economic period, during a recession that started in Olson was the 2010 recipient, and said at the time, “It’s 2001 and continued through the decade, Gary Olson the biggest honor of my career.” was just the kind of guy the state needed. Gary was an exceptional public servant, a down-to- For 20 years, Gary directed one of the most respected earth Midwesterner with an easy laugh and sense of and influential fiscal agencies in the nation. He never humor, as well as an adventurous and creative side. shied away from presenting tough policy options to bal- “Gary was a gourmet cook,” said Ellen Jeffries, his ance a budget requiring cuts up to $1 billion a year for deputy director for 20 years who succeeded him as several years. His credibility gained the trust of Repub- director. “He was as meticulous about that as he was licans and Democrats. with everything else. He loved to travel and see new “When Michigan struggled through unquestionably things, and he would eat anything!” And he loved his tough economic times, Gary Olson was a guiding light. His forecasts, foun- mighty Wolverines. Gary was past president of the Greater Lansing Uni- dation of the state’s economic picture, were rock solid,” said former state versity of Michigan Alumni Club, and served on many community boards. treasurer Doug Roberts, who preceded Gary as director of the Senate Fiscal Committed to public policy, he served on the advisory board of Michigan Agency. State University’s Political Leadership Program and trained freshman law- The Consensus Revenue Estimating Conference was one of Gary’s proud- makers through the university’s Legislative Leadership Program. est initiatives. He met with the House fiscal agency director and the state Gary didn’t believe the Fiscal Agency staff should ever rest on its lau- treasurer twice a year for 20 years, during some of the state’s darkest hours, rels. “He had a work ethic and integrity,” Jeffries said. “We had to do our to agree on how much revenue it would take in so they could develop bud- research, find out what the facts were and not waiver from that. And I don’t gets with no—or at least few—surprises. Two Senate majority leaders who think we ever did. If we got the budget done one day, the very next day worked with Gary during the most difficult economic times—Ken Sikkema he’d say, ‘OK, I want you to write an issue paper on that report.’ He never and Mike Bishop—said they couldn’t have done it without him. It was a time rested. He was an inspiration because he had such high standards for him- Gary made some of the largest contributions of his career to the state. self and imparted that to us, and it kept us always learning something. He He used his gift for numbers to make the most complex fiscal issues wanted us to take our knowledge and make it into a product senators could understandable. John Lindstrom, publisher of the Michigan Gongwer News use. They may disregard some of it or take some of it, but that never dis- Service, wrote that reporters said it was Gary “who made the sometimes couraged him. He was positive always.” bewildering world of public finance clear to them. Or at least more clear.” Gary retired as the longest-serving director of the Senate Fiscal Agency Former Michigan Governor John Engler, who served as Senate majority in December 2010. He had directed a staff of 23. When he left, he shared leader in the 1980s, said, “Gary Olson’s job in Michigan required him to his wide range of budget and pension issue expertise with Public Sector be a budget expert who could speak honestly about what the data revealed. Consultants, a research and program management firm. His integrity, candor and humility made him both successful and much- He died September 18 of cancer. He was 57. admired by all who knew him.” Gary’s reputation as an outstanding econo- “As Gary always said, it is what it is,” Jeffries said. “And the Senate mist and a man of unquestioned integrity earned him a well-deserved place Fiscal Agency is what it is because of Gary.” on the national stage. He served as president of the National Association of “His death at only 57 years of age comes too soon and deprives the Legislative Fiscal Offices and was a former staff chair of the National Con- world of an outstanding public official,” said Governor Engler. ference of State Legislatures. As NCSL staff chair, he worked to expand Gary was “one of the finest public servants I have been honored to know minority participation in NCSL staff activities. in the past 40 years,” said Roberts. “I will miss his wonderful friendship, Gary was a young, newly named chief economist of the Michigan Sen- his easy humor, his humility and stature as a great economist in the face of ate Fiscal Agency when he came to his first NCSL meeting in 1982 and so many economic headwinds.” met Steve Gold, one of the nation’s foremost experts on state fiscal policy. For three decades Michigan’s Gary Olson was one of NCSL’s strongest It was the beginning of a friendship and a relationship with NCSL that advocates and closest friends. We will miss him. 6 | BOOK REVIEW | 10-11.2012 10-11 .2012 | STATESTATS | 7 Kill the Company

By Lisa Bodell Bibliomotion 256 pages; $27.95 ISBN-13: 978-1937134020

success and that ultimately blinds many mid-level employees. of us to external challenges and internal She also offers a simple yet intrigu- needs for change and innovation. ing “from the outside in” model for Bodell describes business cultures identifying new opportunities and jump- as either positive (the good), negative starting new behaviors. This exercise (the bad) or complacent (the worst). She asks employees to adopt the roll of com- then takes readers on a ride through sev- petitor to their own organization and eral useful and informative examples, find ways to “put [it] out of business or ideas and exercises designed to help cre- render [its] function obsolete.” REVIEWED ate a positive work environment. These tools can help motivate BY BRIAN WEBERG Her “Kill the Stupid Rule” exercise employees who have gone through tra- is an attractive tool for almost any orga- ditional initiatives, only to see very little nization. It begins by asking employees: change. Bodell makes the point early “It’s all about culture,” says Lisa “If you could kill or change all the on: Innovation begins with you. “Kill Bodell, founder and CEO of future- stupid rules that get in the way of doing the Company” provides some useful think, an innovation research and train- your work or serving our customers, ideas and concrete tools that can help ing firm. She believes the inefficiency what would they be and how would you each of us live up to that challenge. and complacency common in corporate do it?” culture today robs us of the ability to Eleven more ways to instigate create the thoughtful, risk-tolerant envi- change are outlined in her “Innova- Note: Futurethink is an internationally ronment that encourages innovation and tion Tool Kit” at the end of the book, recognized firm Bodell founded on the supports investments for the future. including “Killer Queries,” “Picture the principle that everyone has the power to In “Kill the Company,” her first Future” and “Assumption Reversal.” innovate; they just need the knowledge book, Bodell writes about business cul- This is good stuff. Bodell’s energy, and tools to know how to do it. She has ture, but her ideas and suggestions will enthusiasm and experience are evident provided training to NCSL audiences appeal to managers and employees in throughout this concise, quick read. Per- at the NCSL Legislative Summit and both the public and private sectors. haps most important, she breaks through NCSL Senior Management Leadership The book is an easy-to-read, the old strategic planning models with Seminar. straight-forward tonic for what ails a new approach that puts more respon- many organizations—the complacency sibility (and power) for change and and comfort that sets in after years of innovation into the hands and minds of 10-11 .2012 | STATESTATS | 7

A Flood of Voter ID Laws Americans Who Support he number of voter identification bills over the last two years is unprecedented in the world of elections. No single election issue has garnered this much attention without a federal mandate. Not only is Voter ID Laws the volume of legislation notable, so too is the political polarization this issue has caused. It’s hard to separate election policy and politics, but few issues break along such starkly partisan lines as voter ID. 70% Fifteen state legislatures have passed voter ID legislation (although the bills were vetoed in three) All Americans during the last two years. The more controversial bills limit acceptable IDs to a few types of government- Tissued photo IDs, without which voters will not have their ballots counted. The less controversial versions have a 87% lengthier list of permissible IDs, no photo requirement, and some options for citizens without IDs to still vote. Republicans Supporters say these laws are necessary because at least 46 states have had some kind of voting fraud convic- tion or prosecution in the last decade. Opponents argue they will hinder many citizens’ rights to vote, especially 74% minorities, the elderly and students. —Jennie Drage Bowser Independents Types of Voter ID Laws 52% Strict photo requirement Democrats ■Photo required, but options allow some votes to count ■ID required, but not a photo Source: Fox News poll, April 2012 ■No ID law Percentage Without Government- Issued Photo IDs by Notes for 2012: Group ◆ Laws in Alabama and Mississippi are awaiting preclearance under Section 5 of the 25% Voting Rights Act. African-Americans ◆ Wisconsin’s law was declared unconstitutional, but still could take effect if the ruling is reversed by a 18% higher court. Young Adults, age 18 to 24 ◆ In South Carolina and Texas, new strict photo ID laws were denied preclearance, but older non-photo Voter ID Legislation Abounds 18% ID requirements remain in effect. Lawmakers in 46 states have introduced nearly 1,000 bills on Senior Citizens ◆ Laws were granted preclearance in New Hampshire voter identification requirements since 2001. Major legislation and Virginia. passed in 21 states between 2003 and 2011. 11% All Citizens Source: NCSL, Sept. 15, 2012 Number of states that passed legislation on voter ID by year. 2002: 1 state 8% 2003: ■ 5 states Caucasians 2004: ■■■■■1 state 2005: ■ 3 states Source: Brennan Center for Justice 2006: ■■■2 states at the New York University School 2009: ■■2 states (1 more vetoed) of Law, Oct. 2011 2010: ■■2 states 2011: ■■ 8 states (5 more were vetoed) 2012: ■■■■■■■■■■■■4 states STATE LEGISLATURES 8 | PEOPLE & POLITICS | 10-11.2012

A TEXAS LEGISLATOR WITH AN ENTREPRENEURIAL FLAIR and a THINGS ARE INTERESTING IN ILLINOIS. Derrick Smith was appointed real-estate license is trying to create a niche market—among his fellow to an open House seat in 2011, arrested for bribery just days before the colleagues. Representative Harvey Hilderbran (R), chair of the House primary in March 2012, and expelled from the General Assembly during a Ways and Means Committee, distributed flyers throughout the Capitol special session in late August. Smith was accused of taking a $7,000 bribe to entice members to find the right temporary address in Austin through and became the first member since 1905 to be kicked out of office. But he him. “We can find you the best options, at the best might be back. That’s because despite his arrest on federal charges, price in town and facilitate everything for you,” flyers he won the primary and is on the November ballot. In the meantime, blanketing the Capitol say. Logan Skinner, an unpaid former policeman Eddie Winters was chosen to fill his seat, but he’s legislative intern with a real estate license who intends to missed the filing deadline, so he’ll be out after the election. Smith move from his Capitol duties to the role of Hilderbran’s had a huge lead in recent polls against Democrat Lance Tyson, who associate, distributed the flyers. “I’m a citizen legislator. is running as a unity party candidate. Stay tuned. I have a right to make a living, and I’m in the real estate business,” Hilderbran said. “Why wouldn’t I let people DELEGATE DAN MORHAIM (D), THE ONLY PHYSICIAN IN THE know about the service around here?” 188-MEMBER MARYLAND GENERAL ASSEMBLY, has written a critically acclaimed book about empowerment DELAWARE SENATE PRESIDENT ANTHONY DELUCA (D), and end-of-life care. “The Better End: whose term as leader was marked by charges of abuse Surviving (and Dying) on Your Own Terms of power, lost his primary in September to a political newcomer. Bryan in Today’s Modern Medical World” (Hopkins Townsend spent less than $25,000 to wrest victory from DeLuca, who has University Press), has garnered excellent held the seat since 1998 and spent some $100,000 trying to defend it. The reviews, including endorsements by poet controversy over DeLuca stemmed from his taking a $68,913 Department Maya Angelou and world-renowned Hopkins of Labor job while earning $62,643 as leader. He also reportedly neurosurgeon Dr. Ben Carson. Morhaim, first renovated a door to restrict access to his office for $46,000. Townsend elected in 1994, is deputy majority leader in promised more constituent service and knocked on doors throughout the the House of Delegates. He has more than 30 district. “I think it was won at the doorsteps,” he said. years of clinical experience treating patients in emergency and internal medicine and IN PUERTO RICO, CITIZENS LIKE THE SIZE OF THEIR serves on the faculty of the Johns Hopkins LEGISLATURE just fine. They rejected a constitutional Bloomberg School of Public Health. In amendment by a 54-46 margin that would have shrunk the 2011 he was honored with the American Senate to 17 seats from 27, and reduced the House to 39 seats Medical Association’s Nathan Davis Award for from 51. They also soundly rejected an amendment to give Outstanding Public Service. judges the right to deny bail in certain murder cases, maintaining Puerto Rico as the only location in the Western Hemisphere SPEAKER STEVE TILLEY RESIGNED FROM where everyone can get bail no matter the crime. THE MISSOURI HOUSE in August to work as a political consultant. Tilley became speaker in 2011 THE DEAN OF THE WYOMING HOUSE LOST HIS BID when Republicans won 17 seats by defeating 10 Democratic FOR RE-ELECTION in the Republican primary in August. incumbents and winning seven open seats from retiring Sixteen-year veteran Representative Pat Childers lost to Democrats. The election was an historic win for the GOP, David Northrup in a four-way race in which gay marriage increasing their majority to 106-57. The closest they had was an issue. Childers said he believed the tea party come to that was in 1929-30, when they controlled 103 seats. played a big part in his defeat. “I’ve basically refused to Tilley was first elected in 2004, and would have had to step support the concept that gays and lesbians have less rights down in January because of term limits. Among his major than other people do,” he said. Northrup comes from a accomplishments he lists eliminating the business franchise political legacy. Both his father and grandfather served in tax and requiring drug testing for welfare recipients. But it the Wyoming Senate. He said the state should recognize is the bronze bust of Rush Limbaugh, a Missouri native, that same sex unions performed in other states, but Wyoming should not stands outside the House chamber in the Hall of Famous Missourians that allow them. But in another primary race, a tea party member and former is undoubtedly Tilley’s most visible legacy. Representative Tim Jones was drummer for Chuck Berry lost his bid to unseat Representative Elaine sworn in as the new speaker of the House during the first day of the veto Harvey, seeking her sixth term, in a landslide. session in September. 10-11 .2012 | TRENDS & TRANSITIONS | 9 Big Decisions for Little Children

tate lawmakers are coming up with an answer to the question of who makes educational and health care decisions for children not living with their parents. Nearly 3 million American children are cared for by relatives other than their parents. Child welfare agencies in many states rely on extended families, primarily grandparents, to provide homes for children who cannot safely remain with their parents. In fact, relatives care for 27 percent of children in foster care—about 107,000— Saccording to the Adoption and Foster Care Analysis and Reporting System. Children come to live with grandparents and other relatives for a variety of reasons, the most common ones being parents who abuse drugs or alcohol, suffer from mental illness or AIDS, abuse or neglect their children, or are in prison or deployed overseas. Making decisions on children’s medical, educational and emotional needs can be difficult without legal custody or guardianship. Most state legislatures have responded with laws giving grandparents and other caregivers the authority to obtain medical, dental and mental health care and enroll kids in their neighborhood schools. Most states require the approval of a parent or legal guardian unless the parent can’t be located or is unwilling or unable to care for the child. The laws allow parents to rescind their consent at any time as well. Most also specify that this authority should not be used to circumvent school residency requirements or to take advantage of a particular school program or athletic activity. —Nina Williams-Mbengue

State Educational and Medical Consent Laws

For children not living with their parents, or whose parents are unable to care for them, 41 states and Washington, D.C., allow caregivers to enroll them in school or make health care decisions on their behalf even though they are not the legal guardians.

States with medical consent laws ■States with educational consent laws ■States with both kinds of consent laws

Source: NCSL, March 2012 STATE LEGISLATURES Leading on Lead

innesota is taking a unique approach to the Environmental Protection Agency’s requirement that contractors and paint- ers learn how to safely remove lead-based paint. Instead of Mfocusing on the back end of the process—post- renovation inspections—the state is ensuring compliance at the front end—when building permits are issued. Congress directed the EPA in 1990 to develop regulations to protect children from paint containing lead (found in most paint made before 1978) during home renovations. Children’s growing bodies easily absorb it and their nervous systems are sensitive to its damaging effects, which include brain damage, slowed growth, hearing problems, hyperactiv- ity and headaches. To ensure that contractors comply with the regulations, the EPA created the Renovation, Repair and Painting program in 2008 and asked states to ensure that all building contractors working on pre-1978 homes or facilities for children have at least one employee trained in handling lead-based paint. So far, 12 states have adopted the EPA program, and several others are working on it. The state programs train contractors and require local building departments to inspect properties to ensure compliance. In Minnesota, legislators passed a law in 2010 that requires contractors to prove they have certified workers trained to deal with lead-based paint before receiving permits. “We decided to streamline the process by making sure contractors are properly trained before they work on buildings that could contain lead-based paint,” says the bill’s sponsor, Repre- sentative Karen Clark (DFL). —Doug Farquhar 10-11 .2012 | TRENDS & TRANSITIONS | 11 Online Invasion A PEA for Proof

all it a post-election review, evaluation, inspec- tion, analysis or audit—the label doesn’t matter. But elections results do. No surprise, then, that officials, candidates and citizens want to make sure voting equipment and procedures are working reliably. C Recounting every ballot is one way to check, but that’s expensive and unnecessary in all but the closest of races. Instead, 25 states and the District of Columbia use “post- election audits (PEAs).” During a typical PEA, election officials examine ballots from randomly selected precincts f an employer asks for your Facebook password, is it the same as if they’d asked or machines, retally the results by hand, and compare that to read your diary or open your mail? Some lawmakers think so, and are sponsor- result to what was reported on election night. Every so ing bills to make such inquiries illegal. often, the process turns up a programming error or equip- “If 50 years ago, as part of the interview process, an employer said they needed ment malfunction. to look through your mail or put a bug on your phone before they would hire you, State-by-state details on post-election audits vary it simply would not have been tolerated,” says Michigan Representative Paul considerably. In Michigan, which enacted its first audit IOpsommer (R). He’s supporting a bill to prevent employers from requesting passwords requirement this year, the word “audit” refers to a proce- to personal Internet accounts—including email, banking and social networking sites—in dural check: Did each polling place operate according to order to get or keep a job. Students also would not have to grant access to their social law? “The sanctity of the ballot is vitally important,” says networking accounts in university applications. Opsommer believes the bill reflects a Representative Anthony Forlini (R), the bill’s sponsor. “If “very traditional and conservative stance to push back against the efforts of those look- there’s any degree of uncertainty, people are going to say, ing to turn peoples’ lives into their own personal fish bowl just because the law has not ‘Why are we voting?’ This way, we know that everyone’s kept pace with the digital age.” got a fair shot.” Delaware, Illinois and Maryland were the first states to address this privacy concern. Other states, such as California and Colorado, are pilot- Delaware now prohibits public and private higher education institutions from asking ing new “risk-limiting audits,” using statistical techniques students and student applicants for passwords or other account information. that provide greater certainty that the results are correct but Maryland and Illinois passed bans on employers requesting passwords and account require far fewer ballots to be counted. information. Maryland’s law prevents employers from taking disciplinary action against Concerns about post-election audits may include: employees or from not hiring applicants who refuse to disclose personal online infor- ◆ Money. The cost of paying employees to re-count bal- mation. Employers, however, are allowed to investigate employees who use a personal lots can be substantial. On the other hand, if audits help account for business purposes, to ensure they comply with legal and regulatory require- avoid costly recounts, PEAs could be moneysavers. ments. Illinois’ new law recognizes the right of employers to obtain information in ◆ Confusion. Post-election audits, and especially the the public domain about employees or applicants. It also allows employers to monitor newer “risk-limiting audits,” can be hard to understand. employees’ email or electronic equipment owned by the employer, and to set workplace Yet, they “can still be done on a hand-held calculator,” policies on the use of social networking sites. argues Joseph Lorenzo Hall with the Center for Democ- Representative Jim Durkin (R) voted against the law in Illinois in part because racy & Technology. it lacked exceptions for protecting proprietary information or trade secrets and may New Jersey, which uses electronic voting equipment, expose employers to legal liabilities. Calling it “a solution in search of a problem,” does not use post-election audits because “we have com- he says the issue arose after an Associated Press article described a few incidents of plete confidence in our voting machines,” says Robert improper invasion of privacy. He believes the law does not appropriately balance the Giles, director of the state’s Division of Elections. “They rights of employers with the rights of employees. are tested, we have continuous training with our counties, California, Massachusetts, Minnesota, Missouri, New Jersey, New York, Ohio, and we have clear chain-of-custody and seal-use protocols Pennsylvania, South Carolina and Washington introduced legislation in 2012. The Cali- for the equipment.” fornia Legislature passed two laws that prohibit requesting passwords from employees Hall is not as confident. “Post-election audits, and espe- and students. cially risk-limiting audits, are the single most important The Ohio bill would prohibit employers from asking for social media passwords, development in election technology in recent years,” he but its sponsor, Senator Carleta Tavares (D), says it’s not meant to thwart employers’ argues. In other words, he’d like to see all states “give efforts to search the public profiles of potential employees. But, she says, “requesting PEAs a chance.” access to that individual’s personal profile reaches far beyond that scope.” —Wendy Underhill —Pam Greenberg To find out more about post-election audits and voting technology in general, go to www.ncsl.org/magazine. For more details on password protections, go to www.ncsl.org/magazine. 12 | TRENDS & TRANSITIONS | 10-11.2012 Child Support: A Win Win

ne quarter of American children—17.5 million—are eligible for child support payments, one of the largest sources of income for some families. Too often, however, parents don’t receive what is legally awarded them, leaving some to turn to government programs for help. Nearly 38 percent of custodial parents received either nutrition assistance, Medicaid, welfare, public housing or rent subsidies in 2009, according to the U.S. Census Bureau. All states and territories have some kind of child support program to enforce support orders, collect payments, locate noncustodial parents, establish paternity, and set financial and medical support orders (such as health insurance contributions). State programs collected $32.8 O billion in child support in FY 2011, 62.4 percent of the total due. Withholding support directly from paychecks accounted for 68 percent of all collections in 2011. The federal government matches state expenditures and provides incentive funding to states that meet certain goals, such as establishing paternity, collecting support or saving costs. The congressional Office of Management and Budget found that for every dollar spent on child support programs, $5 was received back in support payments. With half the children in poor families under child support orders, lawmakers are looking for new ways to prevent the need for child support enforcement altogether by: ◆ Engaging fathers with their children from birth, ◆ Supporting healthy family relationships and reducing family violence, ◆ Encouraging economic stability, and ◆ Ensuring families receive adequate health care coverage. —Katie Mason Child Support Collection Rates (2011)

50% – 59% ■ 60% – 69% ■ ■70% – 79% ■80% and above

Note: The collection rate is calculated by dividing the amount of child support paid by the amount of support due in a state.

Source: U.S. Department of Health & Human Services Office of Child Support Enforcement, 2012 12 | TRENDS & TRANSITIONS | 10-11.2012 A Fiscal 10-11 .2012 | STATE-FEDERAL AFFAIRS | 13 Cliffhanger Uncertainty about how Congress will address the fiscal cliff leaves states playing a guessing game.

By Jeff Hurley

hat may either stunt economic growth or cost the federal government up to $8 trillion? The answer depends on how Congress deals with the fiscal cliff, a topic casting a long shadow over conversations about how to reduce the nation’s growing debt. WThe term “fiscal cliff” was coined by Federal Reserve Chair- man Ben Bernanke last spring to describe the combination of tax increases—or, more accurately, tax cuts set to expire at the end of 2012—and spending cuts that will occur at the beginning of 2013. These tax increases and spending cuts will happen auto- matically unless Congress acts to stop them. Experts predict going over the fiscal cliff will set the coun- public safety and energy would be reduced by 8.2 percent in FY try’s economy reeling. The Congressional Budget Office reports 2013. Defense spending would be cut by 9.4 percent. Beyond that if no action is taken, the deficit in FY 2013 would be cut in sequestration, the extended unemployment benefits and Medi- half, but the unemployment rate would increase by a full percent. care payments to physicians would also be reduced, making the So what’s contributing to this deep abyss? On the revenue spending cut side of the fiscal cliff even steeper. side, the largest and most controversial piece is whether to Some states are preparing for the cliff by taking preemp- extend the tax cuts enacted in 2001 and 2003 and renewed in tive action. Vermont and Virginia, for example, have set aside 2010. If the cuts are not extended, marginal income tax rates will state funds in anticipation of cuts to state-federal programs. Utah go up, along with others, such as estate, capital gains and divi- enacted legislation requiring all state agencies to disclose total dends taxes. Other cuts ready to expire—on employee payroll federal receipts and develop contingency plans in the event fed- taxes, for example—also will eat away at Americans’ wallets. eral funds are reduced by 5 percent or 25 percent. Adding to the unease, if Congress does not act, the reach of the Perhaps what’s most daunting to state lawmakers, however, alternative minimum tax will be expanded and nearly 30 million is all the uncertainty surrounding the fiscal cliff. Congress’ lack households would pay significantly more money to the Inter- of action raises many questions that states need answered in nal Revenue Service. Lack of federal action is certain to affect order to plan their own budgets. states’ budgets to varying degrees, depending on how a particu- Efforts to resolve the problem have failed to take root. lar state’s tax system is linked to the federal tax code. Numerous budget proposals, such as the president’s FY 2013 On the spending side of the fiscal cliff are the automatic, budget and U.S. House Budget Chairman Paul Ryan’s budget across-the-board cuts referred to as sequestration. Sequestration resolution, advocated eliminating sequestration in favor of com- was triggered after the congressional “supercommittee” failed to prehensive deficit reduction plans. But compromise was elusive. reach a deal in 2011 to reduce the federal deficit by at least $1.2 Moving forward, federal lawmakers can do nothing, allowing trillion over nine years. These cuts would be evenly distributed tax cuts to expire and sequestration to occur. They could extend among defense and non-defense discretionary spending. A num- the expiring tax cuts and repeal the reductions in discretionary ber of programs, such as Medicaid and Temporary Assistance for spending. Or they could combine parts of all these options. Needy Families, are exempt. However, the White House released A pre-election deal failed, and Congress now has a limited a report in September estimating that non-exempt discretionary number of days during the lame-duck session to reach agreement funding for state-federal programs in areas such as education, across a very wide partisan chasm. If Congress extends the tax cuts and postpones the spending cuts, this cliffhanger will be Jeff Hurley is a senior policy specialist who tracks federal budget issues for NCSL. punted to the 113th Congress. STATE LEGISLATURES 14 | STATELINE | 10-11.2012

LAW LEFT BEHIND? More than a third of Americans don’t think the 1federal No Child Left Behind law has affected public education one way or another, according to a recent Gallup poll. Thirty-eight percent of 2 FIGHTING those polled believe the law hasn’t made much of a difference, 29 percent think it has made education worse and 16 percent believe it’s made things FIRE WITH better. Seventeen percent had no opinion or didn’t know. Opinions were fairly consistent no matter the respondents’ party affiliation or whether they had a DOLLARS child in school, but income did make a difference. Twenty-two percent of those With a particularly brutal wildfire season flickering out, some states are earning less than $30,000, compared with 15 percent of people making more staring at red ink under the grey ashes. Utah’s share of the $50 million than that, believe the law has improved education. Congress passed the spent in the state fighting more than 1,000 wildfires was $16 million by sweeping legislation in 2001. It was meant to improve public education mid-August. That’s bad news for the Legislature, which budgeted only by, among other things, measuring its condition and monitoring its $3 million. Likewise, the Washington Legislature will be searching progress through standardized testing. To date, the law has not for more than $8 million in supplemental funds for the Department of been reauthorized, and at least 26 states have received Natural Resources, which predicts it will spend almost $20 million on waivers from the Obama administration, emergency fire suppression, well above the $11.2 million allocated relieving them of some of the law’s for such work. Some states are in better shape, however. The Northern provisions. Rockies Coordination Center estimated that fighting large wildfires in Montana cost federal and state agencies about $64 million. The state’s SOAKED share is $25 million, and even though Montana has spent cash reserves While many states were dealing with record set aside for natural disasters, plenty of money still is available in drought3 in August, Minnesota’s governor surplus general funds, Governor Brian Schweitzer told Fox News. called the Legislature into special session to provide relief from flooding. The Legislature approved $167.5 million for low-interest housing loans, aid to businesses, road and bridge repairs, public safety activities and flood prevention projects in 13 counties and three tribal BUCKLE4 UP nations. They were declared disaster areas after storms in BENJI June caused flash floods in the Dog and cats in New northeast and central parts of the state. The money, $28 million less than requested Jersey will soon be by the state’s top emergency management official, will come from the budget buckling up in cars if a reserve, bonds, a highway fund and transfers from bill by Assemblywoman other accounts, according to the Pioneer Press. L. Grace Spencer (D) gets the green light. The idea came from a group of fourth-graders and Spencer’s veterinarian, who told her how a small dog broke his leg when his owner slammed on the brakes. Offenders could get a $20 ticket and be convicted of animal cruelty under the WALK CAREFULLY bill. Opponents, led by Assemblyman Jay Webber (R), countered The number of pedestrian deaths in the United States with a bill clarifying that failing to buckle up a pet is neither cruel rose5 for the first time in five years, according to nor inhumane. Current state law addressing how drivers should new data from the National Highway Traffic Safety transport their pets is vague. If Spencer’s bill passes, it would Administration. Fatalities were 4,280 in 2010, be a first in the nation. Spencer makes no bones about it—she is compared to 4,109 in 2009. Deaths in 2005—the last serious. She buckles up her own Teacup Pomeranian, AJ. time they rose— were 4,892. People on foot make up 13 percent of traffic fatalities. Pedestrians over age 65 were especially vulnerable, accounting for 19 percent of deaths. Fatalities were disproportionately male, and more likely to occur on weekends. Alcohol had been consumed by either the driver or pedestrian in 47 percent of the deaths. State lawmakers are addressing pedestrian safety by increasing fines for dangerous driving, targeting enforcement in problem corridors and intersections, restricting drivers’ use of mobile devices and passing “complete streets” policies that encourage “walkable” communities. A few states are also considering banning or limiting the use of distracting devices by pedestrians. 10-11 .2012 | STATELINE | 15 WEB MASTERS Alabama’s website, www.alabama.gov, won first place in6 the state portal category of the 2012 Best of the Web awards, a joint project of Government Technology and the Center for Digital Government. The portal, which recently underwent a complete overhaul, features a simpler MORE 7 IS LESS design, easy navigation and a variety of online services. Students in states with strict laws The site averaged more than 94,000 unique visitors per regulating the nutritional content of month between April 2011 and March 2012, an increase food and drinks sold in schools of 14 percent over the previous year. Second through fifth gained less weight on average place winners were California, Utah, Rhode Island and than their counterparts in Mississippi. states with weak or no such laws. A study by various academics published in the August issue of Pediatrics followed CITIZEN CHECK-UP 6,300 students from After more than a year of trying, Colorado Secretary of State fourth to eighth grade Scott8 Gessler reached an agreement with the U.S. Department between 2004 and 2007. Students in states of Homeland Security to use a federal database to search for with weak laws or none gained on average about 2.25 more pounds than noncitizens who may be registered to vote. His office has begun adolescents in states with stronger policies. “Strong” laws were defined as comparing that list with the federal database, part of the Systematic those with detailed nutrition standards for food sold in vending machines, Alien Verification for Entitlements, or SAVE, program. According snack bars and other venues that compete with school meals. to The Denver Post, Gessler’s office sent letters asking about 4,000 registered voters who had shown noncitizen IDs to obtain a driver’s license to either remove themselves from the voter rolls or document that they had become U.S. citizens. Critics say the secretary’s actions will discourage many voters, especially minorities, from going to the EARLY RETIREMENT polls in November, but Gessler said the All the talk of pension reform in Illinois is prompting a host of state goal is to improve the integrity of the government employees to retire before any cuts 10occur. Nearly 4,750 state state’s voter rolls. employees retired during the 12 months ending June 30. That’s almost as many workers as retired in the two previous years combined. The state is facing a potential $93 billion pension debt, and lawmakers are working on various plans to cut benefits—including at least one to cut benefits for those already retired. “We cannot have a situation where we are spending more money on pensions than we spend on education of our children and our students,” Governor Pat Quinn told the Chicago Tribune. “This is really a policy issue that we have to deal with . It’s no fun doing it, but it’s absolutely necessary.”

NEIGHBORLY9 APP? A new mobile app being used by the Obama campaign offers up Democratic voters’ names, addresses, ages and genders to volunteer canvassers. The app uses a Google map to recognize canvassers’ locations and mark nearby Democratic households with small blue flags. Although the information is public—and has long been given to campaign volunteers in the form of a printed list—one voter in Brooklyn called it “creepy,” according ProPublica, a nonprofit news organization. The Obama and Romney campaigns both have online calling tools that provide the names and phone numbers of voters to anyone who registers on their websites. 16 | ELECTIONS | 10-11.2012

By Tim Storey What’s at Stake This year’s election is the first to follow the once-a-decade he bruising battle for the White House between redrawing of district boundaries based on new census data. In Barack Obama and Mitt Romney has consumed virtu- addition to creating a more unpredictable electoral landscape, ally all the media’s attention. Hundreds of millions of redistricting also increases the number of seats normally up for dollars have been spent on TV, radio and Internet ads election. That’s because a few states require contests for all sen- targeted at specific groups of voters in about a dozen ate seats in the first election after redistricting, then re-stagger states. The race will be at the top of most people’s the terms in subsequent elections. Tminds when they vote on Nov. 6. Eighty-two percent of all legislative seats are up for grabs on The contests for more than 6,000 state legislative seats have Nov. 6. That’s more than 6,030 contests in 44 states. All 85 seats garnered far less attention. That does not, however, mean they are up in Puerto Rico, as well as 15 senate seats each in the uni- are less important. Far from it. Those thousands of races will cameral legislatures in Guam and the Virgin Islands. determine the party control of legislatures when they convene The only states not holding legislative elections are Louisi- next year to tackle tough issues—concerns the vast majority of ana, Mississippi, New Jersey and Virginia. They conduct state Americans feel Washington, D.C., has failed to address. And if elections in odd-numbered years. All lawmakers in Alabama history is any guide, the party who wins the White House will and Maryland, as well as senators in Michigan, are elected to likely claim more victories in state legislative races as well. four-year terms. Since they were chosen in 2010, they won’t face Neither presidential candidate looks poised to deliver a knock- elections this year either. out punch on election day. Contrast that to the races in 2006 and For the past 10 years, the number of state legislative seats 2008, when it was fairly clear by late fall that Democrats were on remained steady at 7,382. But that will change after the election track for major legislative gains. The same was true for Repub- when the New York Senate will grow from 62 to 63 because licans in 2010, when they walloped Democrats at the ballot box, of redistricting. It’s the only legislature changing size this redis- picking up more than 700 legislative seats. tricting cycle, which is unusual. It has been more common, at Enthusiasm in both parties is lagging well behind where it least since the 1960s, for at least three or four state legislatures to was in 2008 and 2010. In fact, most voters just want the elec- adjust their size after the Census. tion to be over, according to Democratic pollster Peter Hart. That Currently, among the governors, 29 are Republicans, 20 are may be good news for Republicans who currently hold a distinct Democrats and one is an independent. Only 11 of them are up advantage in control of legislatures. for election this year, and the strong consensus among political analysts is that only three states have contests that are truly toss- Tim Storey directs NCSL’s Leaders’ Center and is the NCSL expert on legislative ups: Montana, New Hampshire and Washington. So the fight to elections. control state governments will be mostly in the legislative arena. 10-11 .2012 | ELECTIONS | 17 State Legislatures Before the Election

Republican-26 ■ Democrat-15 ■ ■Split-8 ■Nonpartisan

Note: The New Progressive Party holds the majority of seats in the Puerto Rico Legislative Assembly. In the U.S. Virgin Islands, it’s the Democratic Party. Source: NCSL

GOP Starts Ahead States to Watch To say that the 2010 election was a good one for Republi- A shift of only a few seats can make a big difference. In every cans would be a massive understatement. It was one of their best two-year election cycle, an average of 13 chambers switch par- elections in decades and continued one of the strongest trends in ties. Two changes have already occurred. Republicans won the American politics: The president’s party usually loses legislative Mississippi House in 2011 for the first time since reconstruction. seats in mid-term elections. Republicans picked up 720 seats in The Virginia Senate went from Democratic control to a tied cham- 2010, and Democrats lost control of 23 legislative chambers. ber, which, because the Republican lieutenant governor casts tie- The GOP successes in legislative races over the past two breaking votes, gives functional control to the Republicans. years may be their biggest hurdle headed into the 2012 election. While there will certainly be some surprises and unexpected At such a high water mark, with more Republican legislators party control shifts, only 20 chambers have a likely chance of now than at any point since 1930, it may be hard to climb much switching. Eleven state senates are within three seats of changing higher. majorities, and nine houses are within five seats. That is down Currently, 3,979 state legislators are Republicans—a little from 24 close chambers in 2010 and 28 in 2008. less than 55 percent of all partisan seats. (Nebraska elects its 49 Not all of those “close on paper” chambers are likely to lawmakers on a nonpartisan basis.) Fewer than 20 legislators are independent or from a third party. This 55 percent to 45 Percentage of Legislative Seats percent GOP advantage is the mirror opposite of the partisan breakdown before the 2010 election when Democrats held 55 Held by Each Party percent of the seats. Republicans also have a pronounced advantage in their control of chambers and all segments of state governments. Fifty- nine of the 98 partisan legislative chambers have Republican majorities. Democrats control 36 chambers. Three are tied— the Alaska Senate, Oregon House and Virginia Senate. In Vir- ginia, Republican Lieutenant Governor Bill Bolling serves as the tie-breaking vote, giving the GOP functional control of that chamber. In the Alaska Senate, a bipartisan coalition runs the show. In the Oregon House, leadership is divided between co- speakers and co-chairs. Finally, there are 26 state legislatures with both chambers under GOP control and 15 in the Demo- crat’s column. Republican Democrat

STATE LEGISLATURES 18 | ELECTIONS | 10-11.2012

change hands. “Redistricting has helped the GOP protect its House since the elections of 1874. Heading into this election, gains in several chambers in potentially competitive states,” says Democrats control the Senate by a slim 20-15 margin and the Lou Jacobson, a freelance reporter who handicaps legislative House by 54-46. After a steady and consistent shift in the region elections for various publications. “The lack of a strong partisan toward the GOP, only the two chambers in Arkansas and the tide in either direction suggests that we won’t see a big swing Kentucky House remain in the D column. in control like we saw two years ago.” Jacobson sees only eight chambers as true toss-ups: Both chambers in Arkansas, the Colo- Coattails Are Consistent rado House, the Iowa Senate, the Minnesota House, the Nevada Since 1900, in 20 of 28 presidential elections, the party win- Senate, the New York Senate and the Washington Senate. ning the White House has also netted state legislative seats. Perhaps the most interesting state to watch will be Arkansas. Many factors, including the mood of the country and the abil- The Natural State represents the last toehold of Democratic con- ity of each side to bring out their voters, play a role. Legislative trol in the South. Democrats have held the Arkansas Senate and control in many of the hotly contested states this year will likely Presidential Coattails—Legislative Seats Seats gained or lost by party winning White House 1000

800

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come down to a handful of races. And those could hinge on what two years or less at the start of 2013 legislative sessions. These happens in the race for president, especially in the presidential two elections will most certainly result in the highest rate of turn- battleground states of Colorado, Iowa, Minnesota and Nevada. over in state legislatures in the last 50 years. “Get out the vote” efforts by the presidential campaigns and stronger enthusiasm for one party over the other are likely to be All About the Economy the tipping points this year, says Larry Sabato, political scientist Political operatives do not see eye to eye on much, but they at the University of Virginia. “In 2008, Democrats had higher usually agree on which issues will have the greatest impact on levels of enthusiasm, by a mile, and better organization in most elections. This year, once again, it’s all about the economy. Ed key states,” he says. “In 2012 there’s a split. Republicans have Goeas, head of the national Republican polling firm The Tar- greater enthusiasm by most standard polling measures, but the rance Group, believes even traditional state issues like education Obama team still has a big leg up on organization in many swing will be seen through an “economic prism.” He says all his poll- states.” Sabato emphasizes that enthusiasm and organization ing at the state and national levels shows that “voters are almost “will make a huge difference down the ballot in the thousands of solely focused on the economy.” He points out that one of every races to determine control of legislatures.” two voters under age 30 are considered “under-employed” and are asking hard questions of President Obama. The Turnover Factor Andrew Myers, head of Myers Research and Strategic Poll- Which way the political scales will tip after Nov. 6 is less ing, which works with many Democratic state legislative can- clear this year than in the recent past. One thing is certain, didates, agrees the economy is the “top issue.” But he believes though: There will be many new lawmakers in state capitols voters will support Democrats who are “increasingly concerned come January. In the first election following redistricting, turn- about the quality of schools and the ability of the U.S. to com- over is always high. While other elections average turnover rates pete long term.” between 17 percent and 18 percent (factoring in all 50 states), A recent NCSL survey found many states beginning to see in the 2002 election following redistricting, turnover reached more stable budget situations. Most of the state budget offi- 24 percent. All signs point to at least that level in 2012, if not cers surveyed, however, were quick to point out how cautious higher. The turnover rate is already 24.5 percent in 35 states that they still feel. Looming expenses with state pensions and other held primaries through mid-August, factoring in retirements. deferred spending from several difficult years make it hard for An expected increase in turnover in 2012 would not necessar- them to be enthusiastically optimistic. ily be noteworthy except that it comes on the heels of an unusu- The wave of new legislators elected in November will bring ally high turnover in 2010 of just under 25 percent. Combine a burst of fresh ideas and energy to state capitols. That may be that with the high rates anticipated this year, and it’s likely that just what is needed as they face some very daunting dilemmas approximately half of all state legislators will have served for begging for better solutions. STATE LEGISLATURES 20 | ELECTIONS | 10-11.2012

The People’s Choice Expand Casinos Proof of Once again, there’s something for everyone on Education Citizenship statewide ballots this November. Right to Bear Arms Legalize Marriage Health Marijuana Coverage

By Jennie Drage Bowser

een there, done that, got the t-shirt. Back again this year are many of the same issues that appeared on ballots throughout the first decade of the 2000s: marriage, marijuana, gambling and of course, taxes. There are, however, a handful of new issues, as well as a few new twists on old themes. BAt the end of September, 174 measures had qualified for statewide ballots. Forty-four are citizen initiatives. That’s slightly more than the 42 initiatives seen on the November 2010 ballot, but still a far cry from the average of 62 initiatives on even-year ballots between 2000 and 2008. What has skyrocketed this year is use of the popular referendum, with 12 on the ballot in seven states. Not since 1920 have there been that many in a single election. The popular referendum, available in 23 states, allows citizens to stop a new law in its tracks. If enough signatures are filed, the new law is put on hold, generally before it even takes effect, until voters in the next election approve or reject it. The recent rise in use of the popular referendum parallels the historic use of the recall over the past two years. Both are tools for citizens to push back against government actions they don’t like and reflect the significant political polarization in America today. Ballots in some states will be lengthy. Voters in Alabama, California and Florida will pore over 11 statewide measures. Oregon, which leads the country in use of the initiative, has nine that the presence of any measure on the ballot increases turnout measures this year, as do Arizona and Louisiana. Voters in 12 by a few points, but it’s unclear who is more motivated by con- states will have no statewide measures to consider. troversial measures—supporters or opponents. Of the 11 states considered swing states in the presidential Swing States race, Iowa, North Carolina, Pennsylvania and Wisconsin have no Strategists on both sides of the political spectrum like to use ballot measures. And the ones in Nevada and Virginia don’t have partisan ballot measures to influence voter turnout, believing that a partisan slant strong enough to influence candidates’ races. a highly contentious issue will bring out voters and benefit the The states to keep an eye on, however, are Colorado, Flor- candidates of that same flavor as well. Academic research shows ida, Minnesota (looking more like a swing state in the presidential race, and certainly in the toss-up column for legislative Jennie Drage Bowser is NCSL’s expert on ballot initiatives. control), New Hampshire and Ohio. 10-11 .2012 | ELECTIONS | 21

Direct Democracy Every state has some process that allows the legislature to place issues on the ballot, but only 26 states allow citizens to do so, via the initiative, the popular referendum, or both. Expand Casinos Proof of Education Citizenship Right to Bear Arms Legalize Marriage Health Marijuana Coverage

Initiative only ■ ■Popular Referendum only ■Initiative & Popular Referendum ■No Initiative or Referendum Process Source: NCSL, 2012

support, except as required by the First Amendment to the U.S. Constitution.” On the other side of the spectrum, the legalization of marijuana in Colorado and a proposal to establish an independent redistricting commission in Ohio could attract more liberal-lean- ing voters to the polls.

Marriage is Back It seems as though it is impossible to hold an election in this country without a marriage measure on the ballot some- where. 2010 was the first even-year general election without one since 1996. But the issue is back on the ballot this year, with a twist. Voters in Maine are the first in the nation with the opportunity to legalize same-sex marriage. Since 1998, all but one of the 35 statewide votes held on same-sex marriage were to restrict marriage to between one man and one woman. The exception was Arizona, where voters rejected a ban on same-sex marriage in 2006, but later approved one in 2008. Voters in Minnesota this year will consider such a ban. And In Minnesota, the Legislature referred two measures to the in Maryland and Washington, where legislatures recently legal- ballot that are likely to appeal to conservative voters: new voter ized same-sex marriage, popular referendums are on the ballot to ID requirements and a ban on same-sex marriage. The New overturn those laws. Hampshire legislature placed an amendment on the ballot that This year, however, the winds may be shifting. National and would prohibit a state income tax. In Florida, the Legislature state-specific polls indicate that voters might approve same-sex referred 11 measures to the ballot, several with a conservative marriage in Maine, defeat the attempt to repeal the laws passed appeal. They include a ban on any law requiring everyone to in Maryland and Washington, and reject the proposed ban in have health insurance coverage, a ban on the use of public funds Minnesota. for abortions, and a religious freedom amendment to protect NCSL data on voter behavior support this possibility—the “individuals and entities from being denied, on the basis of reli- percentage of voters in favor of a ban on same-sex marriage gious identity or belief, governmental benefits, funding or other peaked in 2005, and has steadily declined in every election since.

STATE LEGISLATURES 22 | ELECTIONS | 10-11.2012

2012 Statewide Ballot Tax Measures

Tax measures are once again the most common type of issue on state ballots. This year’s group of 32 statewide tax and revenue ballot measures focuses more on tax relief than tax increases. At least 15 measures would create tax exemptions or limits, while eight propose tax increases. Five other measures address different aspects of taxation and property assessments. Following are 18 of the more significant tax measures being decided on Nov. 6.

Alabama ◆ Amendment 9 would continue the Legislature’s authority to regulate and tax corporations.

Arizona ◆ Proposition 116 would increase the property tax exemption for newly purchased property used for agriculture, trade or business. ◆ Proposition 117 would limit the annual growth in locally assessed property values. ◆ Proposition 204 would make permanent a one-cent sales tax dedicated to education.

Arkansas ◆ Issue 1 would increase the diesel tax by five cents to pay for surface transportation projects.

California ◆ Proposition 30 would raise the state sales tax by 0.25 cents for four years and increase income taxes on earnings over $250,000 for seven years to fund education and public safety services. ◆ Proposition 38 would increase income taxes on all Californians, based on a sliding scale, to fund K-12 education and early childhood programs. ◆ Proposition 39 would change the way multistate business taxes are calculated to generate revenue for energy efficiency and clean energy jobs.

Florida ◆ Amendment 4 addresses property tax rates of non-homestead or commercial property and homestead exemptions. ◆ Amendment 10 would expand personal property tax exemptions to property valued between $25,000 and $50,000.

Louisiana ◆ Amendment 8 would allow local governments to opt-in to property tax exemptions for certain non-manufacturing businesses.

Michigan ◆ Proposal 5 would require a two-thirds vote of the Legislature or approval by voters to create or increase a tax.

New Hampshire ◆ Constitutional Amendment Concurrent Resolution 13 would prohibit new taxes on all personal income.

Oklahoma ◆ State Question 766 would exempt all intangible personal property from property taxes.

Oregon ◆ Measure 84 phases out the inheritance tax. ◆ Measure 85 amends the state constitution to reallocate a corporate income/excise tax refund to K–12 education.

South Dakota ◆ Initiated Measure 15 would increase the general sales and use tax rate from 4 percent to 5 percent for K–12 education and Medicaid.

Washington ◆ Initiative 1185 would restate the current law that requires any tax increase to be approved by two-thirds of both legislative chambers or approved in a referendum. It also defines repealing a tax exemption as raising revenue. —Aron Snyder

For more complete summaries of these ballot issues on taxes, go to www.ncsl.org/magazine. 10-11 .2012 | ELECTIONS | 23

Vote!

Vote! Vote! Vote! Vote! Vote! Vote!

Marijuana on a High Education Carries a Full Load Voters in Colorado, Oregon and Washington will weigh in Tax increases to fund education are on tap in Arizona, Cali- on whether to legalize marijuana for adults and authorize the fornia and South Dakota. An Oregon initiative would divert cor- state to regulate and tax sales of it. These measures are similar porate tax refunds to education. In Idaho and South Dakota, there to California’s Proposition 19, rejected by voters in 2010. It will are ballot battles over labor issues for teachers. Voters in Georgia be Colorado’s second vote on the issue; a similar initiative was and Washington will decide whether charter schools make the rejected in 2006. grade. In Maryland, voters will have a say on whether non-resi- Voters in Arkansas, Massachusetts and Montana will decide dent illegal immigrants who graduate from a high school within whether to allow medical marijuana. Montana’s measure has the state should be charged in-state tuition at public colleges and its roots in a 2004 citizen-approved initiative legalizing medi- universities. cal marijuana. Seven years later the Legislature repealed it, then passed a law restricting the sale and use of medical marijuana. Legislatures and Lawmakers On Nov. 6, if voters say “yes” to IR-124 (one of the 12 popu- The Nebraska Legislature is asking voters to allow members lar referendums nationwide), the Legislature’s restrictive law to serve one extra term beyond the current limit of two consecu- will take effect; if they vote “no,” the initiative passed in 2004 tive four-year terms. Voters in Alabama and Nebraska will be will become law. The measures in Arkansas and Massachusetts asked to increase legislator compensation, and South Dakota vot- would allow qualifying patients to buy and use marijuana. ers will decide whether to lift the current 5 cents per mile limit on mileage reimbursement for lawmakers. Betting on Gambling A sweeping reform proposal in California would put the state Legislators in Maryland and Rhode Island decided to play the on a two-year budget cycle, establish pay-as-you-go rules for any odds and let citizens decide whether to expand casinos. A pair of expenditure over $25 million, and allow the governor to cut or initiatives in Oregon would allow casinos to be privately owned. eliminate programs in a fiscal emergency. Two competing Arkansas initiatives were certified for the ballot, but are in court and may not remain on the ballot. Both would And all the Rest authorize privately owned casinos as well. Physician-assisted suicide in Michigan … State sovereignty in Arizona … Right to bear arms in Louisiana … Proof of citizenship Health Coverage Concerns to receive state services in Montana … Affirmative action in Okla- Voters in Alabama, Florida, Missouri, Montana and Wyo- homa … Abortion in Florida and Montana ... Continuation of gov- ming will decide whether to exempt themselves from the Patient ernment during catastrophic disasters in Oregon … Constitutional Protection and Affordable Care Act by prohibiting the state from conventions in Alaska, New Hampshire and Ohio … Right to hunt requiring health insurance coverage. Voters in Arizona, Mis- and fish in Idaho, Kentucky, Nebraska and Wyoming. souri, Ohio and Oklahoma have approved similar measures during the past two years; Colorado voters rejected one in 2010. STATE LEGISLATURES 24 | LEGISLATIVE SUMMIT | 10-11.2012 10-11 .2012 | LEGISLATIVE SUMMIT | 25 NCSL Legislative Summit Snapshots from Chicago

Industry Leaders on the Business of Job Creation If the question is jobs, the answer is education. An inadequately prepared workforce is the biggest hindrance to long-term job growth, the CEOs of Caterpillar and State Farm said during a discussion moderated by former Michigan Governor John Engler, president of the Business Roundtable. They suggested business and government work together to develop targeted vocational education at community colleges.

Lessons in Leadership From Theodore Roosevelt Theodore Roosevelt believed that the man who counts is not the critic, but the man in the arena, Pulitzer-prize winning author Doris Kearns Goodwin told delegates at the closing general session. “So all of you here today who have chosen to fight in the arena, to struggle to make lives better for your towns and your cities and your states, can feel similarly,” she said.

What Do Americans Really Think?” “The American public is crying out for someone to talk to them, reach out to them, give them a sense of how we can get out of this,” said pollster Peter Hart. He and fellow pollster Neil Newhouse shared their latest findings that only 30 percent of Americans believe the country is headed in the right direction. The greatest challenge for politicians now is “how to win the nation.” Newhouse believes the key question for this election is, once again, “Are you better off now than you were four years ago?” 10-11 .2012 | LEGISLATIVE SUMMIT | 25

Economic Forecaster Implores Feds to Take Action “I’m sick and tired and a little disgusted with what’s going on in Washington,” Diane Swonk, Mesirow Financial’s chief economist told Summit attendees. Predicting dire consequences if the country goes off the so-called fiscal cliff, Swonk admonished Washington politicians for failing to take action. “I don’t care if you’re red or blue. We’re black and blue now.” Swonk praised state lawmakers for making the tough fiscal choices those in Washington, D.C., have avoided.

Leaders Share Stories, Offer Lessons on Leadership “Another fine mess I’ve gotten myself into,” was Representative Sheila Olive’s (D) reaction to becoming speaker of the New Jersey General Assembly. Her message was clear: Being a leader can be tough. The keys to success include working with the minority party and mentoring the next generation of leaders. “You need to let the minority feel it has a voice,” said Florida Senate President Michael Haridopolos (R), who literally removed the door to his office to encourage an open-door policy for his colleagues across the aisle.

What Drives the Next Generation’s Interest in Public Service? “It’s always been done this way,” doesn’t mean much to 35-year-old Missouri Representative Clem Smith (D). He participated in a discussion on what drives the younger generation of state legislators and staffers. Representative John Burris (R) of Arkansas, first elected to the House at age 23, thinks his young age is an asset. Other panelists agreed, saying they bring new perspectives to the debates.

—Alex Fitzsimmons, with Jon Kuhl, Ed Smith and Mark Wolf 26 | SUPREME COURT | 10-11.2012 Power Struggle The Supreme Court’s recent term focused on whether the Constitution limits federal authority and power.

On the immigration front, the court said federal authorities By David G. Savage had “broad discretion” to enforce, or not, laws against illegal immigrants. The decision in Arizona v. United States blocked he Supreme Court’s decision upholding the constitu- three key parts of the state’s law from taking effect. tionality of President Barack Obama’s health care law made headlines this summer. But for states, its ruling Medicaid Expansion allowing them to opt out of the Medicaid expansion is The high court’s Medicaid decision was most important likely to have the biggest impact over the months and because of the huge sums of money at stake and its potential years ahead. effect on other federal spending programs. Since the 1930s, TFor the first time ever, the high court struck down a federal the federal government has steadily increased grant money and spending law on the grounds that the federal money was being extended its grip over state and local governments. “As of 2010, used as a club to force states to comply with Washington, D.C.’s, federal outlays to state and local governments came to over $608 wishes. billion, or 37.5 percent of state and local expenditures,” the dis- “In this case, the financial inducement Congress has chosen senters in the health care case noted. [for expanding Medicaid coverage] is much more than relatively The money, of course, has come with strings attached in the mild encouragement. It is a gun to the head,” said Chief Justice form of rules and regulations. Grumbling aside, practically no John G. Roberts Jr. one before this year had considered these regulations unconsti- The major theme of the court’s term concerned the power of tutional. The golden rule of government has long been, “He who the federal government and whether the Constitution limits fed- has the gold makes the rules.” eral authority. On that score, the result was mixed. When a group of state attorneys general, led by Florida’s Bill The justices, by a 5-4 vote, said Congress cannot use its power McCollum, sued to challenge the Affordable Care Act, they tar- to “regulate commerce” as the basis for requiring all Americans geted the Medicaid expansion. Before 2010, Medicaid had long to have health insurance. At the same time, however, a separate been “the largest federal program of grants to the states,” the 5-4 majority agreed Congress does have the power to impose a justices noted, with states in turn devoting “a larger percentage tax penalty on those who can afford insurance, but choose not of their budgets to Medicaid than to any other item.” to buy it. The federal law seeks near-universal health care coverage and expands government-paid insurance for the poor to achieve it. David G. Savage covers the Supreme Court for the Los Angeles Times. The law required states to expand Medicaid by 2014 to cover 10-11 .2012 | SUPREME COURT | 27

states grants and require the states to comply with the accom- panying conditions, but the states must have a genuine choice whether to accept the offer.” Justices Stephen Breyer and Elena Kagan agreed with this part of Roberts’ opinion, and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed in separate opinions. Roberts said the Medicaid expansion itself may continue, as long as the secretary of Health and Human Services understands that she may not threaten any state that refuses to go along. “As a practical matter, that means states may now choose to reject the expansion; that is the whole point. But that does not mean all, or even any, will,” Roberts wrote. The four conservative dissenters said they would have voided the Medicaid expansion entirely, along with the rest of the law. Shortly after the ruling, Republican governors in Florida, Louisiana, Mississippi, South Carolina and Texas said they would not expand their Medicaid programs, with others saying they were likely to do the same. Yet other state leaders said they would welcome the extra federal funds. Health care experts cau- tion it may be some time before it is clear when and where Med- icaid will be expanded. The court’s opinion is likely to trigger future legal attacks on federal spending programs. If Congress requires states or locali- ties to undertake a new duty or face a loss of funding, the law everyone under age 65 with incomes below 133 percent of the will almost surely face a constitutional lawsuit. federal poverty line, which would have added an estimated 17 million people. Immigration “There is no doubt,” said Chief Justice Roberts, that the law States did not fare as well on the immigration front. In the “dramatically increases state obligations under Medicaid. … It is Arizona case, the court left little room for states to enforce immi- no longer a program to care for the neediest among us, but rather gration laws, stressing that the federal government was the “sin- an element of a comprehensive national plan to provide for uni- gle sovereign responsible for … keeping track of aliens within versal health insurance coverage.” the nation’s borders.” The administration’s lawyers argued that the federal govern- Frustrated with the failure of federal officials to arrest and ment would be paying 100 percent of the cost of the expansion deport the hundreds of thousands of illegal immigrants living in in the first years, later dropping that to 90 percent. Justice Elena Arizona, legislators adopted S.B. 1070. It made it a crime for Kagan said during the arguments that rather than a bad deal or illegal aliens to seek work or to fail to carry registration docu- coercive measure this sounds like “a big gift from the federal ments. It also authorized the police to check the immigration sta- government.” tus of anyone lawfully stopped and make arrests for potentially Former U.S. Solicitor General Paul Clement, who represented deportable offenses. the 26 states who challenged the law, said the threat of losing all The court blocked the first three provisions—seeking work, federal Medicaid money if a state refused to go along with the not carrying papers or committing deportable crimes—on the expansion crossed the line from a legal inducement to an uncon- grounds they were preempted by federal law. In the 5-3 opinion, stitutional coercion. Justice Kennedy said this state enforcement conflicts with fed- That claim failed in all the lower courts, but found support at eral law and policy. the Supreme Court. “Arizona may have understandable frustration with the prob- “Given the nature of the threat and the programs at issue lems caused by illegal immigration,” he wrote, “but the state here, we must agree” the required expansion is unconstitutional, may not pursue policies that undermine federal law.” The Obama Roberts said for the 7-2 majority. “The threatened loss of over 10 administration said its policy was to arrest and deport aliens who percent of a state’s overall budget is economic dragooning that were criminals, gang members or repeat border crossers, but not leaves the states with no real option but to acquiesce in the Med- illegal immigrants who are otherwise abiding by the law. icaid expansion. … Congress has no authority to order the states The court cleared the way for the state to begin enforcing Sec- to regulate according to its instructions. Congress may offer the tion 2, which authorizes immigration status checks, but only with

STATE LEGISLATURES 28 | SUPREME COURT | 10-11.2012

the understanding it would not “result in prolonged detention.” This year, the court went a step further and struck down Roberts, Breyer, Ruth Bader Ginsburg and Sonia Sotomayor “mandatory sentencing schemes” that set life terms with no pos- joined to form the majority. Kagan sat out the case. sibility for parole for murderers under age 18. “A judge or jury Scalia dissented, arguing that a “sovereign state” such as must have the opportunity to consider mitigating circumstances Arizona should not be left “at the mercy of federal executive’s before imposing the harshest possible penalty for juveniles,” said refusal to enforce the nation’s immigration laws.” Thomas and Justice Kagan. The 5-4 decision in Miller v. Alabama held it was Alito dissented as well. cruel and unusual punishment to mandate a life term for these young offenders. Sovereign Immunity Since the 1980s, many states have adopted laws allowing Despite this setback, the doctrine of “state sovereign immu- juveniles to be tried as adults and several have passed laws nity” made a comeback in other cases. The court ruled states and requiring life terms with no parole for certain homicides. In state agencies may not be sued for damages by employees denied March, the court heard the cases of two 14-year-olds, from Ala- unpaid sick leave for a “serious health condition.” The 5-4 deci- bama and Arkansas, who were given life terms for participating sion in Coleman v. Maryland threw out a damages claim from in, but not personally committing, a murder. a state court employee who sued under the Family and Medical The court’s opinion did not forbid these life terms, but said Leave Act. The ruling was in line with a series of decisions from the defendant must be given a hearing to consider whether this the 1990s that limited lawsuits by state employees. is the proper punishment for an underage criminal. More than The most far-reaching criminal law ruling put new limits on 2,000 prisoners nationwide were sentenced as juveniles to life prison terms for young criminals. It was the third such ruling in terms with no parole under these conditions. seven years. In 2005, the court abolished the death penalty for In late June, the justices ended any expectation they might juvenile murderers. And two years ago the court struck down revisit the Citizens United v. Federal Election Commission deci- state laws that imposed a life term with no possibility for parole sion when they struck down a 100-year-old Montana law. It for young offenders whose crimes did not involve homicides. prohibited corporations from making expenditures “in connec-

NCSL Fall Forum December 5-7, 2012 Washington, D.C.

election results ideas

BIGFind out what the November election means for the states. 28 | SUPREME COURT | 10-11.2012 10-11 .2012 | SUPREME COURT | 29

tion with a candidate or political committee.” The justices said applicants to increase diversity even further. That led to the law- the First Amendment frees all independent political campaign suit filed by Abigail Fisher, an unsuccessful white applicant. The spending, including spending by corporations, just as they did court’s conservative justices could rule broadly against the use of in the Citizens United case in December 2011. “There can be race-based admissions, or rule narrowly that an affirmative action no serious doubt” Montana’s law is unconstitutional, the justices policy cannot be justified if a race-neutral policy like the “top 10 said in an unsigned 5-4 opinion. The Montana Supreme Court percent” plan already had opened doors for minority students. had upheld the 1912 law based on the state’s history of “copper The court is also expected to rule on the Defense of Mar- barons” dominating government. riage Act in a case that concerns the rights of legally married State lawmakers may be interested in two more First Amend- same-sex couples. By law and tradition, marriage has been a ment opinions handed down in June. In United States v. Alvarez, matter for the states, not the federal government. But in 1996, the court struck down the federal Stolen Congress adopted the marriage act to give Valor Act that made it a crime to falsely states the power not to recognize same- claim military honors. The government sex marriages from other states. A sec- had argued that knowingly making false ond provision of this law said the federal statements is not protected as free speech, government would not recognize a mar- but the 6-3 majority disagreed. The court’s riage other than that between a man and opinion cast doubt on state laws that also a woman. make it a crime to make false statements or Seven gay couples from Massachu- false claims during campaigns. setts sued, contending this second provi- And in Knox v. SEIU, the court sion denies them the equal protection of extended the First Amendment to cover the laws. They cannot, for example, file a public employees who object to unions joint tax return, or if a federal employee, and their political spending. In the past, the cannot put their spouse on their health court said public sector unions may collect insurance plan. The Obama administra- bargaining fees from all employees. At the tion refused to defend this part of the law, same time, nonmembers of the union were and the House Republicans hired former given a right to opt out of any political U.S. Solicitor General Paul Clement to spending by the unions, usually by seek- handle the legal defense. The U.S. Court ing a partial refund of their dues. of Appeals in Boston ruled the law uncon- Speaking for the court, Justice Alito suggested the rule should stitutional on May 31, setting the stage for a Supreme Court be reversed. “Requiring an objecting nonmember to opt out ... decision early next year. represents a remarkable boon for unions,” he said. In the future, Waiting in the wings is the much broader question of whether “when a public sector union imposes a special assessment or gays and lesbians have a constitutional right to marry. The jus- dues increase, [it] may not exact any funds from nonmembers tices may face that issue early next year in a case from Califor- without their affirmative consent.” While the ruling concerned nia that struck down a voter initiative passed on Nov. 5, 2008, only a special, election-year fund, Alito’s opinion appears to banning same-sex marriages. Thirty-eight states and Puerto Rico encourage states to pass stronger laws to limit how public sector have passed Defense of Marriage laws. unions collect dues or fees from nonmembers. Before the year is over, the court is likely to have before it a Southern challenge to Section 5 of the Voting Rights Act. Since More To Come 1965, much of the South and a few other areas have been required The court’s new term beginning in October promises major to seek permission known as “preclearance” from the Department rulings on affirmative action, voting rights and gay marriage. of Justice or federal court before making any changes to their elec- In Fisher v. University of Texas, the justices will decide tion procedures, voting rules or legislative districts. whether state colleges and universities can continue to use race No one disputes that this historic measure has been very suc- in admission decisions. In 2003, Justice Sandra Day O’Connor cessful in reducing discriminatory voting policies. So successful, spoke for a 5-4 majority in upholding a limited use of affirma- in fact, many argue that special scrutiny is no longer justified. tive action to help diversify colleges and law schools. Since then, Texas and South Carolina have been locked in disputes with the however, Justice Alito has replaced O’Connor, and the balance Department of Justice over their voter identification laws, and appears to have tipped the other way. Shelby County, Ala., has sued, seeking to have Section 5 struck The case has at least one complicating fact that could limit down. One or the other is almost certain to get a hearing before its national significance. Texas had a “top 10 percent” plan in the Supreme Court. the 1990s that required the university to admit the top graduates of all high schools, which significantly raised the percentage of minority students. After O’Connor’s opinion was issued in 2003, For direct links to the various cases, go to www.ncsl.org/magazine. the university decided to give preferences to some other minority STATE LEGISLATURES 30 | REDISTRICTING | 10-11.2012 5 Trends Shaping Redistricting New dynamics are transforming the once-a-decade exercise of drawing political boundaries.

By Morgan Cullen and michelle davis

n just a few weeks, candidates across the country will be elected to newly redrawn state legislative and congressional districts. Over the past two years, state legislatures have painstakingly redrawn district boundaries to reflect the population shifts identified in the 2010 Census. It’s not an easy task, but extremely important. How lines areI drawn shape a state’s partisan landscape for years. If maps are drawn improperly, the process can mire a state in legal challenges, fuel public cynicism toward government and add to partisan acrimony. Many traditional geographic, legal and political constraints govern how states go about redrawing districts. But there are some new factors transforming the process. Here are five that had a significant impact on the latest redistricting cycle. the total population. Nearly half of the population in the West (47 percent) is now from a minority group. The Census also revealed that Texas now has a “majority- 1 minority” population, and joins California, Hawaii, New Mexico SHIFTING SOUTH BY SOUTHWEST and Washington, D.C., in having non-Hispanic whites make up What the decennial Census discovers about population less than 50 percent of all residents, according to the Census changes is the basis for how maps are redrawn. It came as no sur- Bureau. prise to most Americans when the 2010 Census revealed the U.S. This shift had a big effect on how congressional and state leg- population continues to migrate south and west. Between 2000 islative maps were drawn in many states. Several states added and 2010 the nation’s population as a whole grew at a slower new majority-minority statehouse and congressional districts to rate than in previous decades, averaging just 9.7 percent. But not ensure fair representation of minority groups. everywhere. Nevada’s population grew a whopping 35.2 percent For example, with more than 80 percent of the population in those 10 years. And Texas gained 4.3 million people, more growth in Texas attributed to Latinos, a court-drawn interim plan than the total population of half the states. added 13 new majority-minority districts to the House, for a total This demographic shift had a huge impact on congressional of 64 out of 150 seats. It also added two new majority-minority reapportionment: Southern and Western states picked up 10 new congressional districts—one Latino and the other congressional seats from states in the Northeast and Midwest. a combined Latino/African-American. Another notable trend from the last Census was the large “Over my 20 years plus in the Legislature, growth in minority populations. Every major ethnic or racial I have seen the Hispanic population in Texas minority group gained in proportion to the total U.S. population, surge at a rapid pace,” says Senator Leticia Van and as a whole grew 29 percent. The Hispanic population grew De Putte (D) of San Antonio. “It is time for four times faster (43 percent) than the population as a whole, our representatives in state government to truly Senator mostly in the South and West, and now comprises 16 percent of reflect the makeup of our state.” Leticia That’s often easier said than done. The Texas Van de Putte (D) Morgan Cullen covers redistricting issues for NCSL. Michelle Davis is a senior Legislature finished drawing new congressio- Texas election law analyst for the Maryland Department of Legislative Services. nal and state legislative lines in early 2011. But this August, a 10-11 .2012 | REDISTRICTING | 31

Redistricting By the Numbers

9 and parts of 7 States required to get federal approval for redrawn maps

185 Percent of Population Growth by Court cases filed challenging Race/Ethnicity (2000 – 2010) redrawn district boundaries since 2010

White 8.3% African 3 to 18 American Hispanic The range of members on 55.5% 13.7% redistricting commissions in the 13 states that use them Other 6.6% 1 State legislative districts added Asian 15.9% nationwide during redistricting Source: U.S. Census Bureau 7,383 U.S. District Court found that both the congressional cations allowed the public to examine proposed plans Total state legislative seats and legislative plans violated the Voting Rights Act of and follow the process. after redistricting 1965, depriving minorities of adequate representation. Florida citizens were among those able to track and The Texas attorney general wasted no time in saying react to the process through a Web application. “With the state would continue elections based on the interim the tools we had at our disposal, redistricting in 2010 7,838 plan and would appeal the case to the U.S. Supreme certainly offered broader access and transparency for Total state legislative Court. anyone who wanted to be involved in the process,” says seats in 1963 John Guthrie, a software engineer with the Florida Sen- ate. “With the combination of our online mapping soft- 2 ware and our public hearings, the public played a major 8 TAPPING INTO HIGH-TECH TOOLS role in all levels of Florida redistricting,” he says. States that gained Ten years is a long time in the world of technology. The Brookings Institution, the American Enterprise congressional seats after Rapidly changing redistricting software, databases and Institute and Azavea offered redistricting software that reapportionment computer systems challenge legislatures—and their allowed users to draw their own plans and compare budgets—to keep up-to-date. But legislatures have them to maps produced by legislatures. little choice not to, considering the growing needs and Michael McDonald, a professor at George Mason 10 expectations of lawmakers, staff and the general pub- University, and Micah Altman, a research librarian at States that lost lic, as well as the many benefits new high-tech tools MIT, played a key role in designing the new software. congressional seats offer. “Providing this software to the general public really The Internet took communication and collaboration pulled back the curtain on the redistricting process in a this cycle to a whole new level. Legislators made pro- way that had never been done before,” says McDonald. posals, received feedback and offered alternative plans Citizens obtained the same demographic and political electronically. New features and data were distributed data as legislatures through a database created by the to those redrawing boundaries in real time, greatly Harvard Precinct Election Archive. increasing uniformity and accuracy. New Web appli- Another new tool, created by Nate Persily of Colum- STATE LEGISLATURES 32 | REDISTRICTING | 10-11.2012

less of their political persuasion, wanted to reach consensus and State Legislative Redistricting draw a plan that truly reflected the diverse geography and demo- Commissions, 2010 graphic makeup of our state.” They finished the maps in August 2011, but the state Repub- lican Party challenged the state Senate map as unfairly favor- ing Democrats. Tony Quinn, a former legislative staffer turned political commentator, was a vocal opponent of what he called a “clearly partisan plan” drawn by the commission. He argued that it will “obviously give the Democrats a two-thirds majority in the state Senate.” The GOP filed a lawsuit and gathered enough signatures for a ballot measure to overturn the commission’s Primary map. They withdrew their support for the ballot measure after ■ losing the court battle, although it remains on the ballot. Backup Plans drawn by commissions in Arizona and Colorado faced ■ intense partisan opposition as well. Washington’s four-member Advisory ■ commission, made up of two Republicans and two Democrats, Note: In addition, commissions for congressional redistricting are used however, met with success. The group’s unanimously approved in 14 states: Arizona, California, Delaware, Idaho, Indiana, Iowa, Maine, maps faced little opposition from either party. Massachusetts, Montana, New Jersey, New York, Rhode Island, Vermont and States have adopted commissions to insulate the redistricting Washington. process from politics. But the process is never entirely immune from it, and commissions don’t necessarily produce better plans, according to research conducted by Seth Masket, a professor of bia Law School, offered nonpartisan congressional redistricting political science at the University of Denver. plans for all 50 states. The maps were produced by his law stu- “From my own research, commissions don’t seem to draw dents using Caliper Corporation’s Maptitude software, and were any more balanced districts or competitive elections than parti- available through their website, DrawCongress.org. The students’ san legislatures do. Redistricting mostly tinkers around the edges maps received a lot of news coverage, and during a hearing on of the huge historic trend toward greater polarization.” Connecticut’s new maps were referred to by the state supreme court as fine examples of what “good” government plans should look like. 4 TACKLING THE PRECLEARANCE TEST Since 1965, Section 5 of the Voting Rights Act has required 3 federal approval—preclearance—of any changes to voting laws A BOOST FOR CITIZEN COMMISSIONS or procedures in nine states and portions of seven others that Every state is constitutionally required to undergo have had a history of discrimination. Thousands of local jurisdic- redistricting, but they aren’t required to do it in the same way. In tions with elected governing bodies fall under Section 5’s provi- 37 states, the authority lies with the legislature. In the rest, the job sions, from the local school board to the state legislature. now goes to a board or commission. Independent commissions, States have the option of requesting preclearance from the used in Alaska, Arizona, Idaho, Washington and most recently U.S. District Court for the District of Columbia or the U.S. California, prohibit government officials from participating in Department of Justice, which is cheaper and simpler. Redistrict- order to insulate the process from partisan politics. ing always brings an onslaught of preclearance requests, and California citizens approved ballot initiatives in 2008 and states or jurisdictions usually opt for approval from the Depart- 2010 directing the Legislature to transfer responsibility for redis- ment of Justice. But during this cycle, “an unprecedented trend tricting to an independent, nonpartisan commission of 14 mem- occurred,” according to Justin Levitt with Loyola Law School. bers to be appointed by the state auditor from a pool of qualified States filed for preclearance through both avenues, or with the applicants. court exclusively, at a much higher rate. The move was significant, affecting a large number of con- One legal development may explain the gressional and legislative districts. It took the commission’s five noticeable change. The 2009 U.S. Supreme Court Democrats, five Republicans and four unaffiliated citizens eight decision in Northwest Austin Municipal Utility months to redraw the lines. They attended 23 public hearings District No. 1 v. Holder cast some doubt on the and received more than 30,000 public comments. “Many people continuing need for preclearance and whether thought it would be impossible for us to pass a final plan with a the Voting Rights Act’s requirements were still Senator supermajority,” says Maria Blanco, a commission member from applicable to the same group of states identified Kell Seliger (R) Los Angeles. “But everyone who sat on the commission, regard- decades ago. The court decision suggested that Texas 10-11 .2012 | REDISTRICTING | 33

Section 5 of the Voting Rights Act of 1965 The Impact on Elections Nine states and sections of seven others must receive federal approval before making any changes to voting laws. With the election just a month away, speculation over which party will have the upper hand is at a fever pitch. Many candidates face the uncertainty of running in new and untested districts; 428 congressional districts in 43 states (seven states have only one representative) and nearly all state legislative districts have been redrawn. Because of the Republican landslide in the 2010 elections, the GOP had a clear political advantage over the redistricting process. Republicans unilaterally controlled redistricting for 210 congressional seats (in 18 states) and 2,498 state legislative seats (in 21 states). Democrats unilaterally controlled the process for 44 congressional seats (in six states) and 885 state legislative seats (in eight states). Since 2010, 193 court cases have been filed, and 68 are still active. This is far more than the 149 cases (40 states) filed in the 2000s and the 150 cases (41 states) filed in the 1990s, according to data compiled by NCSL. Courts have redrawn plans in Colorado, Connecticut, Kansas, Minnesota, Mississippi, New Mexico, Nevada, New York, Texas and Wisconsin. ■ Entire state is under the requirement. ■ Only portions of the state are under the requirement. Source: U.S. Department of Justice, 2012 Those against reallocation argue towns that have prisons incur costs and have unique concerns from housing inmates questioning the continuation of preclearance was a legitimate nearby, justifying the increase in political representation. pursuit. Adjusting the prisoner data is no small feat. Searching “Section 5 is no longer corrective—it is now punitive,” records and interviewing prisoners to obtain their last home says Texas Senator Kel Seliger (R). He argues preclearance addresses—if they had one—can be time-consuming and is no longer needed because “there will always be recourse expensive. through the court system.” Delaware, after passing a reallocation law for the 2010 Texas, along with Alabama, Florida and Georgia have redistricting cycle, found the costs to be too high. Lawmakers disputed the continuing need for preclearance in their filings decided to postpone the practice until 2020. with the court. And while Florida and Georgia received pre- Maryland faced a different challenge. The state success- clearance of their redrawn districts, the rejection of Texas’ fully reallocated its state prisoners to their home addresses, plans puts the state on the fast track to challenge the constitu- but the federal government, citing privacy concerns, refused tionality of Section 5 before the U.S. Supreme Court. to provide home addresses for the federal prisoners. Despite these obstacles, lawmakers in Connecticut, Illinois and Massachusetts are considering similar laws, according 5 to the Massachusetts-based Prison Policy Initiative. They PUTTING PRISONERS IN THEIR PLACE are supported by recent court actions. A U.S. District Court More and more jurisdictions are deciding to count prison- upheld Maryland’s prisoner reallocation law in December of ers at their “home” addresses instead of their prison locations. 2011, and the U.S. Supreme Court endorsed the practice by Maryland was the first to reallocate prisoners during this denying an appeal, earlier this year. round of redistricting. California, Delaware and New York With this redistricting season mostly behind us (except quickly followed suit, passing similar laws. This practice where plans are still in courts) lawmakers can take a little counters what critics claim is “prison gerrymandering”—the breather, but not for long. The next round will be here before distorted political representation that results in areas with we know it, and one thing we can be sure of: 2020 will bring large prison populations. its own set of legal developments, innovations, technology In New York, for example, critics claimed the upstate and population shifts to the drawing table. region had an inflated representation in the Legislature because of the more than 58,000 inmates located in the area. Reallocating the prisoners in the most recent population count resulted in a loss of a state Senate district in that region. STATE LEGISLATURES 34 | EDUCATION | 10-11.2012

A Bold Approach to School Reform

Sweeping changes to Idaho’s education policy turned into a hot potato issue that’s landed in the voters’ laps.

By Betsy Russell achievement and catch up with technology. “We must adapt or we risk becoming irrelevant. Research has shown the 1-to-1 ratio daho Senator John Goedde (R) compares in the classroom helps improve student achievement,” Goedde the changes under way in Idaho’s schools said during Senate debate, touting the laptop component of the to how the printing press changed religion. reforms. A thousand years ago, elaborate With a tight state budget, the leaders felt the need to make stained-glass church windows told the some tough changes. “We have to do something different,” story of faith to illiterate crowds. “Then Goedde says. “We can’t just continue to cut, cut, cut the current came the printing press,” says Goedde, “and Senator system.” I John Goedde (R) suddenly the whole paradigm of how religion The early version of the plan met resistance from the teachers’ was taught changed, because books were mass Idaho union, the 120-year-old Idaho Education Association. Dubbed produced and readily available for people who “Students Come First” but known popularly as the “Luna laws,” were learning to read.” the reforms removed most teachers’ collective bargaining rights, Goedde says we’re at a similar pivotal point today. “The tech- limited teacher contracts to one year and shifted tens of millions nology is available for children to learn in a different manner, of dollars from teacher salaries to performance-pay bonuses, a and teachers need to be able to adapt to those tools.” move that was later softened by a follow-up bill in 2012. The Idaho lawmakers adopted a sweeping school-reform plan in plan originally called for cutting teaching positions and increas- 2011 that requires two online classes to graduate and provides ing class sizes, but the final version left it to local school districts a laptop computer for every high school student. It also intro- to decide whether to eliminate teachers, cut their pay or seek duces performance pay for teachers based partially on their local property tax increases to make up for the crimp in state students’ achievement, offers students who finish graduation funding for salaries. The plan also allows parents to enroll their requirements early a chance to take up to a year of dual-credit children in online classes and redirects part of the district’s state college classes on the state’s dime, and pays for students’ college funding to the online class providers. entrance exams. A huge outpouring of public opposition resulted, from dem- Perhaps most significant, however, is that lawmakers real- onstrations across the state to testimony at public hearings. The located education funding to pay for all these changes without bills passed without a single Democratic vote—but with biparti- raising any new revenues. That is also where the controversy san opposition. “This is a direct slap in the face to every teacher,” centers. To pay for the changes, the reforms cut into traditional says Senator Joyce Broadsword (R), one of the opponents. school budget priorities like teacher salaries and brick-and- The reforms’ sponsors “basically ignored the public,” says mortar school buildings. And those changes didn’t sit well with Mike Lanza, a Boise father of two. “They had many parents and teachers. decided before their first hearing that they were going to pass these bills.” Lanza chairs a state- The Players wide parent-teacher group that gathered nearly Idaho schools Superintendent Tom Luna was the reform’s double the number of signatures required to author, Senator Goedde its lead legislative sponsor and Gover- force a referendum vote on whether to repeal the nor Butch Otter its biggest booster. All three are Republicans new laws on the ballot in November. Senator who believed the state desperately needed to ratchet up student “I work on a computer all day long,” says Joyce Lanza, a freelance writer and field editor for Betsy Russell is a Boise, Idaho-based reporter for The Spokesman-Review Broadsword (R) newspaper. Backpacker magazine. “There is much more Idaho Students Come First 10-11 .2012 | EDUCATION | 35 An overview of what Idaho’s school reforms do. ◆ Require a laptop computer for every high school student. ◆ Require students to take two online classes to graduate. ◆ Allow parents to enroll their children in online classes. ◆ Set up performance-pay bonuses for teachers. ◆ Remove most teachers’ collective bargaining rights. ◆ Limit teacher contracts to one year. ◆ Eliminate seniority as a factor in teacher layoffs. ◆ Prioritize technology reforms and performance bonuses in future school budgets. ◆ Base 50 percent of teacher evaluations on student achievement. ◆ Require parent input on teacher evaluations. ◆ Require teacher negotiations to be open to the public. ◆ Eliminate early retirement bonuses for teachers. ◆ Pay for a college entrance exam for every student. ◆ Pay for qualified high school students to take college courses.

value and educational benefit in having a good, live teacher in nessman and the first non-educator ever to head Idaho’s public a classroom with a moderate number of kids. Tom Luna’s plan schools, Luna says he couldn’t support tax increases, so resolved does the exact opposite of that. It introduces more technology to spend the state’s existing funds differently. “I’m one of those into schools, but by sacrificing teachers and increasing class who believes that if you raise taxes you’ll get less revenue,” he sizes.” says. “It makes the recession longer.” Idaho lawmakers cut funding for K-12 public schools for the The Future Classroom first time in 2009. The teacher union’s 13,000 members were Goedde, who serves as co-chairman of the NCSL Education “obviously angry—cuts had been made, and they were con- Committee, says he doesn’t think there was anything especially cerned,” says Robin Nettinga, the Idaho Education Association’s unique in the education reform bills passed in Idaho; the only executive director and a former seventh grade English teacher. difference was “the comprehensive nature of what was done” Luna’s lack of experience in education was “gravel in their with the realization that “we were facing a shrinking revenue craw” for members of the union, Nettinga says. Union members stream.” voted that they wanted Luna out and launched a campaign in “We’re setting the direction for a vision of the 21st century favor of Luna’s Democratic challenger. But Luna won re-elec- classroom, and there is no additional money,” Goedde says. “So tion with 60.5 percent of the vote in 2010, as Republicans swept we have to use the funds we have in a manner that accomplishes every state office. the goal.” As the recession worsened, school funding was cut again Luna agrees. “What we saw was a convergence of crises in in 2010. And when the state faced a third straight year of cuts 2011, where an economic downturn was forcing us to do some- in 2011, Luna unveiled his plan. He’d long been an advocate thing we’d never done before: cut education,” he says. A busi- of teacher merit pay, and had worked with the union earlier to

STATE LEGISLATURES 36 | EDUCATION | 10-11.2012

A National Perspective 34 States that require student achievement be included in teacher evaluations

4 States with a 1-to-1 laptop ratio goal for high school students

7 States with an online class requirement to graduate

4th Idaho’s rank in percentage of school revenue that comes from the state, 2010-11

49th Idaho’s rank for per-pupil develop a plan. But it failed in the Legislature, in part from the Associated Press and Boise’s Idaho Statesman spending, 2007-08 because it would have required additional money. highlighting financial ties between for-profit online edu- “The union said, ‘We have no ideas. Raise taxes,’” cation companies and Luna’s campaign for superinten- th Luna says. “We brought them to the table, and they had dent; 19 percent of his campaign funding in 2010 came 6 no more ideas.” Nettinga denies that, and counters, “The from for-profit education businesses. Luna bristles over Idaho’s rank in the highest answer is not to cut and cut and cut to the bone—that’s that criticism. “None of the people who donated to my number of students enrolled not what’s best for kids.” campaign have benefited because of Students Come per number of teachers, 2010 First,” he says. Take Two of the Reform Amid rallies at the capitol and around th The initial plan that met with such public opposition the state, the first two bills passed the 39 was restructured into three bills that, along with retool- Senate after a tense five-hour debate. “I Idaho’s rank in average ing the school funding formula, made changes to teacher cannot see how the current system is sus- teacher salaries, 2009-10 contracts, set up a merit-pay plan requiring students’ tainable,” said Senator Russ Fulcher (R), academic growth be included in teacher evaluations, and who voted in favor of the reforms. “We required the laptops and online classes. need to change how we do our business.” Senator Sources: The International “In my 10 years as a legislator, I have The push for technology ran into a Russ Fulcher (R) Association for K-12 Online never seen such a spontaneous outpour- little more trouble. The third bill, which Idaho Learning, U.S. Department of ing of public sentiment in opposition included the laptops, online learning Education, U.S. Census Bureau, to a proposal as I’ve seen against Tom requirements and funding shifts, had cleared the educa- National Education Association, Luna’s plan to eliminate experienced tion committee by one vote. But after a six-hour meet- National Center for Education teachers and increase class sizes,” says ing with representatives of the teachers’ union, school Statistics, National Assessment Senator Edgar Malepeai (D), the Sen- Senator administrators and school boards, Goedde emerged with of Educational Progress ate’s minority leader and a long-time Edgar a long list of possible changes to the bill, and asked that teacher. Malepeai (D) it be sent back to his committee. Opposition was fueled by articles Idaho When the new bill emerged three weeks later, it left the number of online courses required for graduation up to the state Board of Education and pushed back the phased-in purchase of the laptops by one year. It still allowed parents to enroll their children in online classes without the permission of their local school districts, paying for those classes through a funding formula that redirects part of the district’s state funding to the online provider. The House debate on the bill lasted more than four hours, as protesting Democrats forced the lengthy bill to be read in full. But the bill passed. Tom Trail (R), who voted against it, said he received more than 600 emails, and “only two were in favor of it.” Optometry Three months later, on a visit to Idaho, former Florida Gover- Optometry nor Jeb Bush praised the reform as groundbreaking. “This is part Optometry Representative of the funding formula, so it’s Tom Trail (R) not just an interesting periph- Idaho eral—it’s front and center. I don’t think any state’s done that in the country.”

Voters Will Decide Everyone is gearing up for the referendum in November when voters will decide whether to Can Optometry Help Save the State repeal the laws. Luna and Otter formed a Politi- cal Action Committee, and Lanza’s group and Money on Healthcare Spending? the union brought in the former deputy campaign manager of We Are Ohio, which success- fully overturned an anti-collective bargaining law for public Doctors of optometry are America’s and employees in that state. House Yes! primary eye care providers Education Chairman Bob Nonini embrace their public health mission to ensure patients are served by skilled profession- (R), a supporter of the reforms, als. Optometrists provide more than two-thirds of all primary eye and vision advises against waiting around and serve as a gateway for patients entering the new healthcare delivery for the results. “We’ll just move Representative health care system. of optometrists helps ensure that patients are sent to the forward as if the referendums Bob Nonini (R) Full integration are not going to pass,” he says. Idaho appropriate healthcare providers for timely intervention, saving money in the long run. In June, Luna’s office In addition, using highly-trained and accessible community-based optometrists announced the 32 school districts selected to results in seamless integration with healthcare partnerships or the medical home to receive the first laptops. A 39-member task force ensure patient compliance on chronic diseases like diabetes, glaucoma and cataracts. spent the summer studying how to carry out the technology initiative, and the state is working on contracts with vendors. All of these services are within optometrists’ scope of practice. This model allows the “Looking back, I certainly would have had state to use existing professionals to execute a very difficult mission. Most importantly, a plan that I could have taken to the school . boards association, the Idaho Education Asso- patients receive the care they need while saving the state money ciation and the education stakeholders earlier on and gotten their input,” says Goedde. “So I guess I would offer that advice. But I would To learn more about optometry, visit www.aoa.org ® temper that with the realization that some parts of the education community are very comfort- or contact your local state optometric association. able with the status quo.” “When you roll something like this out, you’ve got to expect that there’s going to be a 1505 Prince St. Suite 300, Alexandria, VA 22314 The American Optometric Association certain amount of criticism and concern. ” (800)365-2219 Ext. 1343 • www.aoa.org 38 | CAPITOLS | 10-11.2012 A Roundhouse of Art New Mexico’s circular Capitol is home to an ambitious showcase for the state’s artists.

Capitol Art Collection, an expanding compilation of contem- By Wendy Underhill porary work by New Mexican artists. The second is the Gov- ernor’s Gallery, which presents rotating exhibits relating to ome say Santa Fe, N.M., is more famous as an art capi- New Mexico’s history and culture. Together, they offer a two- tal than a state capital. And there’s evidence that’s true. for-the-price-of-one deal. And since the “price” of visiting the Santa Fe is one of the oldest seats of government in the Capitol is nada, it is a favorite stop for artsy visitors—as well as Americas, yet its rich artistic heritage is evident in the legislative junkies. city’s 240 art galleries and many art institutions, includ- The Capitol Art Collection is on permanent display throughout ing the Georgia O’Keeffe Museum, the Museum of the State Capitol Complex. The New Mexico Legislature passed SIndian Arts and Culture, and the Museum of International Folk Art. resolutions in 1991 creating the Capitol Art Foundation so artists There’s also the daily open-air market of Native American art- and collectors could donate paintings and sculptures to enrich the ists under the portico of the Palace of the Governors that attracts walls of the Roundhouse. thousands to this town of only 68,000 people. Paula Tackett, former director of the Legislative Council Fortunately, art and governance dovetail nicely at the Capitol Service, was a driving force behind establishing the foundation. building, a rich repository of the state’s artistic culture and a piece “The diversity and the breadth of the art in this capitol is amaz- of art itself. ing,” Tackett said on “Report From Santa Fe” following her retirement in 2010. “It makes it a wonderful place to work, and A Circle of Art I will miss that a lot.” Affectionately known as “The Roundhouse,” the circular Today, the collection consists of 650 pieces from metalwork, building has not one but two art collections. The first is the photographs and quilts, to paintings, weavings and mixed media, such as the iconic “Buffalo” by Holly Hughes. Some of it might Wendy Underhill covers election issues for NCSL and learned about the legisla- be called “craft” or “folk art,” but not by Cynthia Sanchez, execu- ture’s commitment to art during a visit to the New Mexico Capitol. tive director of the Capitol Arts Foundation. To her, it is all “art.” 10-11 .2012 | CAPITOLS | 39

Sundown by Wilson Hurley (opposite)

Self, an oil self-portrait by Bill Wiggins (left)

When Friends Meet, a bronze outdoor sculpture by Allan Houser (below)

Buffalo by Holly Hughes (right)

The Roundhouse, New Mexico’s Capitol, photographed by Richard R. Gibson (below, right)

“My philosophy is that if you put something on a wall, you are immediately educating the viewer.” The goal of the collection is to preserve, interpret and exhibit local and regional art. Sanchez is often asked if she offers “educational programs” with the art. The answer is not officially, although she does give tours. Her favorite line on her tours? “This is not a legislative building with an art collection; it’s an art museum where they make laws.” It’s no surprise the arts are so alive in New Mex- ico’s Capitol. “They’ve always been a part of our civic culture,” says Merry Scully, curator for the Governor’s Gallery. “They were significant in terms Art Elsewhere As Well of gaining statehood and have always been signifi- Oklahoma is another state well-known for showcasing art in its state capitol. The State cant in our economy.” Art Collection is housed in the first-floor Betty Price Gallery, where changing exhibits Last summer’s exhibition, “New Mexico’s Art are designed to provide a “visual anthology of the history of artistic expression in Okla- Tells New Mexico’s History,” drew artwork from the homa,” according to the Oklahoma Arts Council. The council also manages the Capitol New Mexico Museum of Art’s collection to illustrate Art Collection, a permanent display featuring more than 100 sculptures, four themes: Ancestral Peoples, Opening the West, murals and paintings throughout the building’s hallways, rotunda and Growing New Mexico and People, Places and Politics. grounds. The art “has to be visually interesting, and the And in Massachusetts, Representative Jay Kaufman (D) of Boston exhibits must tell a story about New Mexico,” Scully runs his own art gallery in the State House, showcasing the work of says.“I want it to appeal to a legislator, a school group artists from his district, and occasionally beyond. “I’ve been doing this and a family from Australia. We really get a range of for 16 years with whatever wall space is allotted to me,” he says. “Hap- visitors.” Representative pily, I have a 46-foot wall right now, and absent some local talent, it And all the art in the Roundhouse helps visitors feel Jay Kaufman (D) would be a very uninteresting wall.” The exhibits change every six to the hospitality of New Mexico, where the unofficial Massachusetts eight weeks, and when it is time for a new installation, it is also time state motto is bienvenidos—welcome! for a wine and cheese reception. “We celebrate the art, and I introduce the artist to my colleagues. It gives them an excuse to come over, see the art and chat.”

STATE LEGISLATURES 40 | FOR THE RECORD: DIANE SWONK | 10-11.2012 “State and local governments have an extraordinary opportunity to be game-changers.”

iane Swonk, chief economist at Mesirow Finan- jobs, hiring up, doing projects, doing infrastructure, as state rev- cial in Chicago, is listed among the top economic enues come back. But we’ve seen the exact opposite. One of the forecasters in the nation annually and is regularly main reasons we have a subpar employment recovery is because quoted in consumer and financial media. She of the pain state and local governments have had to endure, and addressed the opening session of NCSL’s 2012 the cutting they’ve had to go through. Legislative Summit. D SL: Can the states expect help from Washington? State Legislatures: How confident are you that Congress will Swonk: The federal government is going to be shifting more come to an agreement to avoid the so-called “fiscal cliff”? and more burden onto the state and local levels. Places that have Diane Swonk: I am confident we will avert the fiscal cliff. But already cut to the bone will have to start cutting to the limb the hesitation of dealing with it is going to cost the economy and deciding which limb goes first. That’s not acceptable to and likely keep growth below the 2 percent threshold well into the American public, and it doesn’t have to be. These are self- the first quarter of 2013. I don’t think you’re going to see the inflicted pains that can be averted with a little common sense. payroll tax cuts and unemployment insurance extended, which will suppress growth. It’s hard to assess the actual cost of the SL: How do you see the states’ response? hesitation we’re seeing. My own estimation is it will probably Swonk: A lot of states have tried very creatively to deal with shave a half to a full percent off growth. That’s the difference these issues. I’m so impressed with what’s happened at the state between an unemployment rate that’s stable to rising and one and local levels versus what’s happened at the federal level. It’s that is falling. We have this potential, and to squander it to poli- because they had no choice, but they still did it facing enormous tics is just mind-boggling. It’s the first time in my career that political opposition and it was tough. State and local govern- I’ve had to take into account political brinksmanship ahead of ments have an extraordinary opportunity to be game-changers. economic fundamentals. SL: Newsweek magazine referred to the 18- to 35-year-olds as SL: Why should struggling U.S. households be concerned about the “Screwed Generation.” Do you agree? what’s going on in Europe? Swonk: In 1980, when I started at the University of Michigan, Swonk: Because it could throw us into another recession. my father said I would never be able to buy a home. As much We’ve already seen one financial crisis, and we don’t need as I’m worried and concerned now, we have an opportunity to another. The contagion effect means that if Europe goes down, make it right. If we can come up with tax and spending reforms all bets are off. Although, ironically, the most recent CNBC that ultimately make the economy more efficient, we’ve already poll of economists, of which I’m a part, rated the fiscal cliff seen in a decade that the world can change quite dramatically. a greater threat to the U.S. economy than Europe, which is The ’90s were an incredible decade, but not necessarily because extraordinary. of good economic policy. We had a lot of serendipity, we had globalization and some of it was fake, but we got to the point SL: How have state and local governments been affected by the where even though some people didn’t have skills, we could recession? still make them productive. That’s not something any other Swonk: One of the things we usually see in a recovery is that economy has ever done. We are still the most flexible economy state and local governments are some of the first to start adding in the world and the potential is still there. The key is to tap it. 10-11 .2012 | FOR THE RECORD: DIANE SWONK | 41

invest today, we’ll make cash repulsive to hold so you make more productive investments in our future. Would the Fed tolerate a little bit of inflation? Highly debatable depending on who the chairman is and who you talk to at the Fed. Frankly, if we suffer inflation of 3 percent for a year or two, we’re not going back to double digit inflation, and the Fed would love the opportunity to fight inflation rather than this disinflation and high unemployment.

SL: How will the drought this summer affect the economy? SL: How do you see the real estate market performing in the Swonk: It doesn’t affect the farmers [who have adequate crop future? insurance] because they’re hedged. But the residual effect to Swonk: Much depends on what happens in Washington, manufacturing is another insult to injury. It really is a tax on D.C.—and I hate saying that. We’re at a time that would be people living paycheck to paycheck and trying to put food on opportune for the Fed to do its third round of quantitative easing their plates. When you have no wage growth and rising food with mortgage-backed security purchases. It would encourage prices you get a lot of substituting. All of a sudden you get banks to do more loans because there are no private buyers of people trading down the food chain, trying to buy cheaper food mortgage-backed securities. If the Fed would do another mort- that turns out to be not as healthy. gage program of significance it would allow banks to provide more mortgages. You always get more bang for your dollar by SL: Could the U.S. economy use a little dose of inflation right helping a market that’s already healing rather than trying to now? reverse a trend. Swonk: The Fed certainly thinks so. Part of what the Fed is trying to do is re-inflate a disinflating economy. By holding Editor’s note: This interview is part of a series of conversa- down both short- and long-term rates—and promising to hold tions with opinion leaders. It has been edited for length and rates low for an extended period of time if conditions don’t clarity. The opinions expressed are of those interviewed, improve—they are saying we’ll make it worth your while to and not necessarily NCSL’s.

You can read previous interviews at www.ncsl.org/magazine with:

John Boehner, Jeb Bush, Cecile Richards, Grover Norquist, Richard Ravitch, Donna Brazile, Karl Rove, Jacques Chagnon, Charmaine Yoest, Alan Simpson, Simon Johnson, Neil Newhouse , P eter Hart, James Guthrie, U.S. House former president, president, Americans For former New York author and author and president, Quebec president, Americans former U.S. senator from former Chief Economist, co-founder of Public chairman of Peter D. Hart superintendent of speaker Florida governor Planned Parenthood Tax Reform lieutenant governor political analyst political analyst National Assembly United for Life Wyoming International Monetary Opinion Strategies Research Associates public instruction, Fund Nevada

STATE LEGISLATURES For decades, tobacco companies paid Hollywood to push smoking in movies. Why are state taxpayers doing it now?

In March 2012, the US Surgeon General Fortunately, the fix is straightforward. reported that US tobacco companies long paid In 2011, the US Centers for Disease Control and Hollywood to push smoking in movies. Prevention (CDC) recommended that states can simply Today, so do taxpayers. make future media productions with tobacco Through film production incentives, states ineligible for public subsidies. hand out hundreds of millions of dollars to producers There’s no First Amendment issue. After all, states of movies with smoking. already refuse to subsidize a range of other media Research shows that exposure to on-screen productions, from political advertising to pornography. smoking accounts for a million current teen smokers In July 2012, setting the example, Washington in the US. More than 300,000 of these recruits will State’s Attorney General petitioned for a rule change to ultimately die from tobacco-induced disease. block movies with smoking from getting state tax credits. It’s a problem so urgent that, in May 2012, a Whether or not you believe film production bipartisan group of thirty-eight state Attorneys General subsidies make sense as economic development wrote the movie studios to demand that they stop what policy, collateral damage to public health makes them the AGs called a “colossal, preventable tragedy.” unsustainable and unsupportable. The states’ policy challenge? Indiscriminate film It’s time to mend subsidies undermine efforts to keep kids from starting state film subsidies. Or to smoke and to avert billions in health costs. No state end them. Learn more can afford this deadly, wasteful policy conflict. at bit.ly/fixsubsidy. SmokeFreeMovies.ucsf.edu

SMoking in MovieS killS in real liFe. Smoke Free Movie policies—the R-rating, certification of no payoffs, anti-tobacco spots, and an end to brand display— are endorsed by the World Health Organization, American Medical Association, American Academy of Pediatrics, American Heart Association, Legacy, American Lung Association, Americans for Nonsmokers’ Rights, American Public Health Association, Breathe California, Campaign for Tobacco-Free Kids, Los Angeles County Dept. of Health Services, New York State Dept. of Health, New York State PTA, and many others. Visit SFM online or contact: Smoke Free Movies, UCSF School of Medicine, San Francisco, CA 94143-1390.

SFM_ad0812sl_review.indd 1 7/24/12 1:21 PM 10-11 .2012 | AS THEY SEE IT | 43

“Having a productive time sharing ideas on good gov’t w/ legislators around the nation at the @NCSL org’s annual summit.” —Tweet by Lieutenant Governor Ron Ramsey (R) of Tennessee from the Legislative Summit in Chicago in August. JEFF PA R KE , FLO IDA TODAY AND THE FT. MYE S NEWS-P ESS

“It’s a real victory for the constitution, separation of powers and upholding the authority of the Legislature.” —Minnesota Representative Mary Kiffmeyer (R) to the Star Tribune, on two state Supreme Court decisions giving the Legislature the authority to send to voters proposed constitutional amendments written in their own words. CH R ISTOPHE WEYANT, THE HILL “It sounds space age, but it’s almost here. If we can “Someone who owes $200,000, and you’re not going reduce the number of accidents, that alone is worth after these people? Those people are taking advantage of doing this bill.” the state.” —California Senator Alex Padilla (D), author of a new law that —Maryland Delegate Stephen W. Lafferty (D) in The Washington Post, paves the way for self-driving cars on California roads, expressing his frustration that the transportation authority is not doing in the Huffington Post. enough to collect millions of dollars in unpaid tolls from rental car companies and drivers using the state’s E-ZPass lanes.

“I have always believed the idea of part-time legislators receiving pensions is just not right. That just is beyond the pale. Even if the budget was great and we had a huge surplus of funds, it’s still not right.” —Kentucky Representative David Floyd (R), sponsor of a bill that would allow lawmakers to opt-out of the state’s pension system.

“It’s nuts that we’ve got this many prostitutes in prison, people that we’re not afraid of, but we’re just mad at.” —Texas Senator John Whitmire (D) in the Austin-American Statesman, NATE BEELE R , THE COL U MB S DISPATCH referring to the high cost of keeping repeat offenders in prison. MIKE KEEFE, CAGLE CA R TOONS

Want the latest online news about federal and state public policy issues? Go to www.ncsl.org/magazine and look for the “Grasscatcher,” a collection of the day’s top news clippings.

STATE LEGISLATURES