FEATURE CLE: SABATO'S CRYSTAL BALL CLE Credit: 1.0 Wednesday, June 18, 2014 1:15 p.m. - 2:15 p.m. Exhibit Hall I Northern Kentucky Convention Center Covington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i The End of Amendments? Why State Legislative Polarization Makes Constitutional Amendments Increasingly Unlikely ........................................................... 1 It's Time to Increase the Size of the House ..................................................................... 5 The 2020 Reapportionment and the Voting Rights Act .................................................. 11 14 for '14: Some Bold Predictions for the New Year ..................................................... 15 THE PRESENTER Dr. Larry J. Sabato University of Virginia Center for Politics 465 Crestwood Drive Post Office Box 400806 Charlottesville, Virginia 22904 DR. LARRY J. SABATO is the founder and director of the University of Virginia Center for Politics. He is also the University Professor of Politics at the University of Virginia, and has had visiting appointments at Oxford University and Cambridge University. A Rhodes Scholar, he received his doctorate from Oxford, and he is the author or editor of two dozen books on American politics. In 2013 Professor Sabato won an Emmy award for the television documentary Out of Order, which he produced to highlight the dysfunctional U.S. Senate. Professor Sabato directs the Center for Politics' Crystal Ball website, a leader in accurately predicting elections since its inception. In 2004, the Crystal Ball achieved a 99 percent accuracy rate in predicting all races for House, Senate, Governor and each state's Electoral College outcome. In 2006, the Pew Research Center and the Pew Charitable Trusts' Project for Excellence in Journalism recognized the Crystal Ball as the leader in the field of political predictors, noting that the site "came closer than any other of the top ten potential predictors this cycle." In 2008, the Crystal Ball came within one electoral vote of the exact tally in the Electoral College, while also correctly picking the result of every single gubernatorial and Senate race across the country. In 2010, the Crystal Ball was the first to forecast a solid Republican takeover of the House. While others were predicting a Romney victory in 2012, the Crystal Ball forecast a substantial Obama margin in the Electoral College, and ultimately missed just two states. The Crystal Ball had a combined 97 percent accuracy rate in forecasting the Electoral College, Senate, House and gubernatorial contests. Earlier this year, the Crystal Ball won a "Beast Best" award from The Daily Beast as one of the top political sites on the web. In October 2013, Prof. Sabato and the Center for Politics unveiled the Kennedy Half Century project. The project consisted of a New York Times bestselling book, The Kennedy Half-Century, a PBS documentary, a Massive Open Online Course (MOOC) available on Coursera and iTunes U, an app with the complete recordings and transcripts from Dealey Plaza on 11/22/63, and a website (www.thekennedyhalfcentury.com). i ii THE END OF AMENDMENTS? WHY STATE LEGISLATIVE POLARIZATION MAKES CONSTITUTIONAL AMENDMENTS INCREASINGLY UNLIKELY Thomas F. Schaller, Guest Columnist Reprinted with permission from Sabato's Crystal Ball, March 27, 2014 This year marks the centennial anniversary of the first class of popularly-elected U.S. Senators, as mandated by adoption of the 17th Amendment. A hundred years later, several current or former Republican members of Congress, including Todd Akin (MO), Paul Broun (GA), Pete Hoekstra (MI) and Jeff Flake (AZ), have indicated their support for returning the selection of U.S. Senators to state elites. Although the movement to repeal the 17th Amendment is likely to fizzle, the fact is plans to amend the Constitution are mostly a waste of time because, other than a widely popular and highly-unifying suggested change, it is probably almost impossible to ratify or even propose amendments in our highly-polarized nation and divided national government. Holding aside the ten amendments of the Bill of Rights – and an 11th regulating congressional compensation that, proposed more than two centuries ago as one of twelve originally proposed amendments, was belatedly ratified in 1992 as the 27th Amendment – only sixteen amendments that were not part of the constitutional bargain struck in 1787 have been proposed and ratified in the 226 years since the founders met in Philadelphia. That works out to one amendment about every fourteen years. After setting aside the unusual case of the 27th Amendment, that means almost forty-three years have passed – three times the average interval – since the last normal, proposed-then-ratified-soon- thereafter amendment was adopted: The 26th Amendment's extension of voting rights to those aged eighteen-to-twenty years old. The record between amendments is sixty-one years period between the 12th Amendment, which in 1804 corrected flaws in the presidential election process, and the landmark 13th Amendment, which abolished almost all forms of slavery in 1865. That sixty-one-year standard may soon fall. Indeed, is it politically possible to adopt a constitutional amendment in today's polarized America? Barring an extremely unlikely second constitutional convention, two-thirds of members of both chambers of Congress are required to propose any amendment, which seems virtually unattainable. But even if congressional supermajorities could agree, the bigger hurdle might be ratification by state legislatures, which have become almost as polarized as the national government. The number of split-party legislatures, for example, has steadily declined over the past three decades. Because most state legislators and governors are elected in presidential midterm cycles, it's instructive to look at state results following midterms. As shown in Table 1 below, the number of split-party state legislatures hovered around eleven or twelve from 1998 to 2006 – presidential and odd-year elections move the numbers a bit in between – but dipped to eight both prior to 2008 (not depicted) and as a result of the 2010 elections. 1 Table 1: State legislative chamber control, following recent midterm elections Sources: Washington Post (1998), Polidata.org (2002, 2006), NCSL (2010) Following the 2012 cycle (also not depicted), the number of split state legislatures fell further to five (now six after the 2013 statewide elections in Virginia gave Democrats the tiebreaker to control the state's senate), which is about half the number from a decade- and-a-half ago. The 1998 midterms may have been the tipping point at which control over state legislatures began to stabilize. At the time, National Conference of State Legislatures analyst William Pound declared 1998 a "status quo election" in which fewer state legislatures had changed hands in any election going back to 1988. The fact that just six of forty-nine partisan legislatures – as usual, holding Nebraska's unicameral and non-partisan legislature aside – are split is relevant to the amendment ratification process for two, related reasons. First, and most obviously, the rise of unified state legislatures reflects the rising blue/red polarization evident throughout American electoral politics. In the past five presidential elections, forty states have voted all five times for either the Republican nominee or the Democratic nominee, and the number of divided U.S. Senate delegations today is almost half of what it was four decades ago. And as Table 2 shows below, state election results increasingly mirror national ones. Table 2: Unified state party control, following recent midterm elections Sources: Washington Post (1998), Polidata.org (2002, 2006), NCSL (2010) Table 2 reports the number of unified state governments, including control of the governorship: That is, those in which Republicans hold the governorship and both legislative chambers, or Democrats have unified control. Again using results following midterm cycles, notice that the number of unified state governments reached thirty-one following the 2010 midterms. Although this figure dropped slightly as a result of the 2012 presidential and 2013 off-year elections, the number of unified governments right now is higher than at any time going back to the start of the Eisenhower Administration. "A lot of it is the top of the ticket