● Wisconsin: Foes of partisan gerrymandering scored a monumental victory late last month when a three-judge federal panel struck down the Republican-drawn map of the Wisconsin state Assembly as an unconstitutional partisan gerrymander. State Senate districts could also be affected since they each consist of three nested Assembly districts. Wisconsin is among the most heavily gerrymandered states in the country, and Democrats won the statewide popular vote for the legislature in 2012, but these maps helped give Republicans a majority of seats. Critically, however, this new ruling could reverberate well beyond Wisconsin because the case now sets the stage for a future Supreme Court decision that could set major limits on partisan gerrymandering nationwide.
An earlier Supreme Court ruling called Vieth v. Jubelirer previously held that partisan gerrymandering could be unconstitutional. But in that case, Justice Anthony Kennedy, as the deciding vote, refused to strike down the particular map in question for lack of a manageable standard to determine when impermissible partisan gerrymandering takes place.
The plaintiffs in Wisconsin proposed one such standard called the "efficiency gap" that examines at how many votes get "wasted" in each election. If one party routinely wins landslide victories in a few seats while the other party wins much more modest yet secure margins in the vast majority of seats, that could signify a gerrymander that has gone so far as to infringe upon the rights of voters to free speech and equal protection.
Republicans will certainly appeal this ruling directly to the Supreme Court, and with Donald Trump's upcoming nominee likely to side with the other three arch-conservative justice, Kennedy will once again in all probability act as the swing vote. Whether the plaintiffs will be able to convince him that their efficiency gap test satisfies his precedent in Vieth is the key unknown. If they succeed, we could be entering a new era where courts around the country start imposing new restrictions on partisan gerrymandering. When Republicans have gerrymandered 55 percent of congressional districts and most state legislatures nationwide, that could have far-reaching consequences indeed.
● North Carolina: A federal district court has ordered North Carolina’s legislature to redraw its state legislative districts by March 15, following a ruling earlier this year that struck down 28 of 170 districts as unconstitutional racial gerrymanders. The court held in August that Republicans had impermissibly used race to pack African-American voters into a few seats like the state Senate’s 21st District (shown here) in order to effectively dilute their strength in neighboring districts like the 19th. New district maps will be used in a November 2017 special election in the affected districts if this court ruling survives a likely Supreme Court review.
North Carolina is one of the most gerrymandered states in the country. Republicans so aggressively manipulated the process that they won veto-proof legislative majorities in 2012 even when Democratic candidates won more votes statewide. They maintained those veto-proof majorities in 2016 even as Democratic Attorney General Roy Cooper appears to have ousted Republican Gov. Pat McCrory from office. Federal courts previously struck down the state’s gerrymanders for Congress and even local governments in addition to the legislature in 2016.
Republicans legislators will unfortunately be able to draw new replacement gerrymanders. However, they likely won’t be able to use racial gerrymandering to win quite as many seats as before, and their state House majority of 74-46 is only two seats above the three-fifths minimum of 72 needed to override vetoes. These special elections will be key because they could lead to Democrats gaining enough seats to sustain a Gov. Cooper’s vetoes, finally giving the party a check against North Carolina Republicans’ reactionary agenda.
Republican legislators will certainly appeal this ruling to the Supreme Court. However, given Justice Anthony Kennedy’s recent rulings against just this very sort of naked racial gerrymandering, there is a good chance that he will side with the four liberals in favor of the plaintiffs and require that these maps be redrawn.
● President-elect Donald Trump once again created a firestorm when he tweeted that he only lost the national popular vote because of supposedly “illegal” voters, even though he currently trails by 2.6 million votes. This claim has utterly no factual basis, and the one Washington Post article on non-citizen voting he and his allies touted as evidence has been widely debunked by political scientists. Indeed, there have only been four confirmed cases of voter fraud in the 2016 elections.
Of course, it makes no sense that Democrats would have ginned up millions of fraudulent votes only to lose the Electoral College. But these kinds of arguments—that Republicans only lose because of nonexistent voter fraud—are not unique to Trump. Rather, they’re part of a cynical plan to destroy public trust in our election system’s integrity so that Republicans can claim they’re preventing fraud, when in truth they’re making it more difficult for millions of mostly Democratic-leaning voters to vote.
With Trump selecting Alabama Sen. Jeff Sessions for attorney general and naming Kansas Secretary of State Kris Kobach to his transition team, he’s signaled that he’ll charge full speed ahead with plans to enable a new wave of voter suppression laws across the country. Sessions wrongly prosecuted black voters in the 1980s for exercising their right to vote and is an avowed opponent of the Voting Rights Act. Kobach, who could become Homeland Security secretary, has crusaded to make it harder for many to vote via onerous proof-of-citizenship requirements that federal courts have (for now) blocked.
Trump’s rhetoric is just the opening salvo in the Republican Party’s escalating war on voting rights. Unfortunately, he will soon make key appointments to the Justice Department and Supreme Court who will help Republicans impose new voting restrictions around the nation.
● Illinois: Illinois’s Democratic-controlled legislature passed an automatic voter registration bill with overwhelming bipartisan majorities in May, but Republican Gov. Bruce Rauner vetoed the measure, setting off a scramble of intense lobbying of legislators to vote to override this veto. While the state Senate voted to override shortly after the election, every Republican member of the state House who had supported the measure this spring switched their vote to uphold Rauner’s veto. Two Democrats were unable to attend the vote, and two more failed to do so, meaning veto override failed by exactly four votes.
Automatic registration could have added roughly two million more voters to the rolls in Illinois. Six states have recently moved to automatically register most unregistered eligible voters who interact with state agencies like the department of motor vehicles, and Oregon saw nearly half of those automatically registered turn out to vote in 2016.
Republicans like Gov. Rauner opposed automatic registration both in Illinois and other states purely out of partisanship because eligible non-voters tend to lean more Democratic than registered voters. Since Democrats lost four seats in the state House last month, they’ll no longer be able to override vetoes even if they have perfect party unity, meaning automatic registration might not happen until at least 2019. Rauner is currently one of the nation’s most unpopular governors and will face 2018 re-election in a blue state in a midterm that could favor Democrats as a backlash to Trump, but if he narrowly wins another term, this bill’s failure could make all the difference.
● New Hampshire: Republicans won complete control of the New Hampshire state government in 2016 for the first time since 2002, and they swiftly started talking about ways they could make it harder to vote. Republicans blamed same-day voter registration for Republican Sen. Kelly Ayotte’s 0.1 percent loss to Democratic Sen.-elect Maggie Hassan, and Republican Gov.-elect Chris Sununu has stated that he wants to eliminate it. Republicans also want to change residency requirements to make it more difficult for college students to register, even though past Supreme Court rulings guarantee resident students the right to vote at their schools.
Just as with Michigan (see our item below), such changes would have previously required Justice Department pre-clearance until the Supreme Court killed a crucial part of the Voting Rights Act, but the incoming Trump administration will certainly be far friendlier toward such changes in any event. Given how close New Hampshire’s Senate race was in 2016, Republicans might well be right that Hassan would have lost without same-day registration. However, that makes their attempt to eliminate it all the more offensive, because the proposed change has nothing to do with preventing practically nonexistent voter fraud but rather is entirely about making it harder for Democratic-leaning constituencies to exercise their right to vote.
● Michigan: Michigan’s current voter ID law lets voters without the appropriate ID fill out an affidavit swearing to their identity. However, the GOP-dominated legislature has now proposed introducing a much stricter ID requirement—supposedly to counter more of that nonexistent voter fraud—and passed a bill out of a state House committee barely a week after Republicans began talking about it. Removing the possibility of voting via sworn affidavit could seriously burden perhaps hundreds of thousands of registered voters who currently lack a valid ID. Like voter ID laws elsewhere, it could even outright disenfranchise thousands who couldn’t obtain ID without undue hardship.
As in New Hampshire, voting changes in Michigan would have previously been subject to Justice Department pre-clearance under Section 5 of the Voting Rights Act until the Supreme Court gutted a key part of the law in 2013. Federal courts struck down similarly harsh voter ID laws in several of states in 2016 after Justice Antonin Scalia’s death in February removed the conservative majority on the Supreme Court, but with Trump likely to appoint a new justice in 2017, those rulings could soon be overturned.
That leaves voter ID opponents in Michigan little recourse if the law passes, except for a ballot initiative, though that’s a risky proposition, since voter ID maintains broad abstract popularity. However, voters in nearby Minnesota did reject voter ID in a 2012 referendum, so that option might actually be easier than winning back majorities in the heavily gerrymandered legislature to repeal the law if it passes.
● North Carolina Governor: Late vote counts of provisional and other ballots have increased Democratic Attorney General Roy Cooper’s lead over Republican Gov. Pat McCrory from 4,480 votes on election night to 10,267 votes as of Friday. That margin consequently falls just outside the threshold for a state-funded recount, yet McCrory has nonetheless lodged baseless protests alleging widespread voter fraud. That could set the stage for the Republican-dominated state legislature to overturn the election result and give McCrory a second term—even if he trails in the final vote tallies.
McCrory has challenged vote counts in more than 50 counties based on claims of fraud that are almost entirely without real evidence. The state and county boards of election have repeatedly ruled against these challenges, even though by law they are comprised of two members of the governor’s party and just one from the opposition. That means even Republican election officials have rejected McCrory’s arguments! Furthermore, McCrory isn’t even challenging enough specific votes to come close to overturning the result.
But McCrory’s real target almost certainly lies beyond these local protests themselves. Instead, it appears that he’s trying to delegitimize the election process itself. Then, after he’s kicked enough dirt into the air by raising bogus “questions” about the election, he can, under state law, ask the legislature to use its powers to simply name him the victor. The fraud claims would simply be a fig-leaf for Republicans to overturn the will over the voters. And amazingly enough, if they do so, their decision wouldn’t even be subject to judicial review in state court (although a federal lawsuit might still be possible).
That might be a bridge too far for the legislature, but other Republicans are trying to prevent some votes from counting. The Civitas Institute, a conservative think-tank funded by Republican mega-donor Art Pope, has filed a lawsuit trying to throw out the over 90,000 votes cast using same-day registration, even though that voting method has been in place without trouble since 2007. Votes cast this way are still subject to a strict verification process, and there would have to be a failure rate orders of magnitude higher than in previous elections for McCrory to overcome Cooper’s lead. That is, to put it mildly, exceedingly unlikely.
A few counties have yet to finalize their tallies with absentee and provisional votes ahead of a Dec. 9 deadline for certifying results, which could possibly bring Cooper’s edge back below the 10,000-vote mark. But even if there is a statewide recount, it would be practically unheard of for such a process to reverse the outcome when Cooper’s lead is now 0.22 percent. The state board of elections has already ordered a machine recount in heavily Democratic Durham County, which could take place by next Monday, and McCrory has suggested he might concede if that doesn’t change the result, but after dragging out the process this long, no bets are off the table for the governor.
● North Carolina Supreme Court: While North Carolina’s legislature might think twice about flagrantly overturning the governor’s race election result and installing McCrory as victor, they seem much less bashful about packing the state Supreme Court after they lost their majority in 2016’s elections. State Sen. Bob Rucho and state House Speaker Tim Moore have both refused to rule out adding two more justices in the upcoming special session of the legislature (allegedly to address hurricane relief), which McCrory would appoint during his lame-duck period. That would turn Republicans’ newfound 4-3 deficit into an ill-gotten 5-4 majority. Both new justices would then face nonpartisan elections for a full eight-year term in 2018.