● New Mexico: Secretary of State Maggie Toulouse Oliver and New Mexico Democrats recently introduced a plan to automatically register every eligible voter when they obtain a driver’s license, unless they affirmatively opt out. Despite Democratic majorities in both chambers of the legislature, the bill nonetheless died a stunning death in committee late last month when Democratic state Reps. Debbie Rodella and Daymon Ely sided with Republicans to block it.
Ely claimed that he voted against the bill because doing so would allow him to re-introduce an amended version, which he later did. However, the revised bill was so watered-down that it effectively was no longer an automatic registration measure whatsoever. This new version, which unanimously passed committee, would simply ask eligible voters if they would like to register when obtaining a driver’s license rather than automatically doing so unless the person opts out.
The New Mexico Senate also approved a bill that would change the voter registration deadline from 28 days before Election Day to just three days prior. Moving the date would allow voters to register and cast a ballot on the same day during early voting, which could lead to higher turnout. However, Rodella once again sided with the Republicans on the House elections committee to kill that bill, too, before the full chamber could vote on it.
Automatic and same-day registration always faced the possibility of a veto from Republican Gov. Susana Martinez, but had Democrats successfully demonstrated that the legislature could pass these bills, that would have been encouraging for 2018. Martinez faces term limits next year and Democrats could regain the governor’s office—and with it, unified control over state government. However, as these recent votes reveal, Republican opposition isn’t the only thing preventing New Mexico Democrats from passing laws designed to make voting easier.
Democrats need to get their own house in order, and that starts with a primary challenge to Rodella, who sits in an overwhelmingly blue district that Barack Obama won by a 74-22 margin and that Hillary Clinton undoubtedly carried easily as well. A strong progressive could assuredly win in this seat. What’s more, most of the residents of Rodella’s district are Latino, an often under-represented community that would benefit strongly from automatic voter registration and more generous registration deadlines. Unfortunately, this sort of behavior is nothing new from Rodella, who in 2013 voted with the GOP to bottle up a same-sex marriage law in committee. It’s long past time for her to go.
Early Voting and Registration
● Connecticut: When it comes to election reforms intended to make voting easier, the motto for progressives should be “if at first you don’t succeed, try, try again.” Connecticut Democrats are considering just that by debating whether to put a state constitutional amendment before the voters that would enable early voting. Democrats previously placed just such a referendum on the 2014 ballot, but the measure narrowly failed by a 52-48 margin during the Republican wave.
Democrats just barely have total control over state government thanks to Lt. Gov. Nancy Wyman’s ability to break ties in the state Senate. If the party is unified, they could pass the amendment this year without any Republican support. However, Connecticut’s constitution requires the legislature to pass proposed amendments in two consecutive sessions before a referendum can take place unless the legislature can obtain three-fourths majorities. Given Republican opposition, Democrats would have to pass the measure this year and then again after the 2018 elections before it could head to the ballot again in 2020.
● Idaho: The Gem State’s Republican-dominated state House passed a bill that would effectively limit the availability of early voting in certain jurisdictions by setting a statewide standard for when early voting may take place. The bill would confine early voting to the period from between one and three weeks prior to Election Day. Some counties, however, have allowed early voting to commence even even sooner. The bill now moves on to the state Senate, where Republicans also hold an overwhelming majority.
● Mississippi: Legendary House Speaker Sam Rayburn is reputed to have once said, “The Republicans are the opposition. The Senate is the enemy." That’s not a bad spin on what’s happened to voting reforms in Mississippi, where Republicans dominate all levers of state government. The state House, however, had nearly unanimously passed bills that would have created an early voting period, allowed online registration, and set up a study committee on reforming felony disenfranchisement. But just as they did when the lower chamber passed similar measures last year, the state Senate killed the bills by refusing to even give them a hearing thanks to opposition from the relevant committee chairwoman.
Mississippi is one of just 13 states that does not offer in-person early voting or excuse-free absentee voting, and at the same time, it disenfranchises a staggering one in 10 citizens due to past felony conviction, the second-highest rate of any state.
● Nevada: The Silver State is one step closer to enacting automatic voter registration for eligible voters who interact with the Department of Motor Vehicles. A committee in the Democratic-controlled state Senate passed a bill on a party-line vote to implement the policy, while the state Assembly, which Democrats also hold, approved of the measure last month. Reformers had filed signatures to put the measure on the 2018 ballot, but Nevada law gives the legislature a chance to pass such proposals first in lieu of a statewide vote.
However, Republican Gov. Brian Sandoval says he is undecided about whether to sign or veto the law. Given unanimous opposition from Republican legislators, a veto would be unsurprising. However, even if Sandoval thwarts the legislature, automatic registration would still appear on the November 2018 ballot, meaning Nevada could become the second state to pass the policy via the initiative process after Alaska did so in 2016.
● New Hampshire: Republicans assumed a unified grip on state government after the 2016 elections, and almost immediately plotted new voting restrictions. Current law allows any eligible voter living in the state to vote as long as they don’t do so in another state, too. However, the latest GOP proposal would tighten residency requirements for voting by mandating voters provide more proof documenting that they intend to live in the state long-term. Most disturbingly, the measure would authorize election officials to send the police to voters’ homes to verify that they live there, which could result in voter intimidation.
Disappointingly, longtime Secretary of State Bill Gardner lent his support to the bill. Gardner is nominally a Democrat, but he has long history avoiding partisan battles in his four decades in office. Unless a few Republican legislators defect, this bill will become law, and Democrats’ only hope of stopping it would be legal challenges.
● Georgia: Without warning, Georgia’s Republican-dominated state House rammed through a bill last week that would re-gerrymander the chamber’s districts in order to protect their already lopsided majority. Donald Trump won Georgia by just a 50-45 margin, but Republicans captured nearly two-thirds of the seats in the state House thanks to the ultra-partisan map they drew at the start of the decade. Yet apparently even that huge 118-to-62 majority isn’t enough for the GOP. Redistricting normally only takes place immediately after the decennial census, so redrawing the lines in the middle of the decade simply because they were at risk of losing seats is nothing short of an attempt to nullify elections.
If the similarly GOP-dominated state Senate agrees to these alterations and Republican Gov. Nathan Deal signs off on them, Georgia would redraw the lines for eight Republican-held seats and one Democratic district. These changes would reduce the proportion of black voters—who lean heavily Democratic—in certain districts with vulnerable Republican incumbents. This new map could even lead to Republicans regaining a veto-proof majority in the legislature, preventing Democrats from blocking gerrymanders in the 2020s even if Team Blue wins the critical 2018 election to succeed the term-limited Deal.
Georgia Republicans are no strangers to just this sort of attack on democracy. After they won unified control over state government in 2004 for the first time since Reconstruction, the GOP swiftly passed a mid-decade gerrymander of the state’s congressional map in order to target two Democratic incumbents. Republicans similarly replaced the state Senate map, which had been draw by a court, with their own gerrymander, in order to protect their newfound majority in that same election.
If these changes become law, expect to see Democrats and civil rights groups launch a barrage of lawsuits challenging these plans as illegal racial gerrymanders in violation of the Voting Rights Act and the Constitution’s Equal Protection Clause. Given the recent string of court victories against racial gerrymandering, and the possibility that the Supreme Court could soon impose limits on partisan gerrymandering, Georgia could soon find itself embroiled in one of the country’s biggest redistricting fights.
● Virginia: Earlier this month, the United States Supreme Court ruled for plaintiffs who had argued that 12 of Virginia’s state House of Delegates districts, which were drawn by Republicans, were unconstitutional racial gerrymanders. The high court overturned an earlier district court ruling that had found Republicans did not impermissibly rely on race in crafting their map. The Supremes sent the case back to the lower court for reconsideration using a tougher legal standard that makes it much more likely that many of these challenged districts could ultimately be invalidated.
Under the Voting Rights Act, mapmakers are required to create districts that allow African-Americans and other minorities to elect their candidates of choice. Republican legislators admitted that when they redrew majority-black districts, they made sure they all were at least 55 percent African-American. The problem was that the GOP used this threshold without determining whether maintaining such a high proportion of black voters was actually necessary for those black voters to elect their representatives of choice. In most cases, in fact, the necessary proportion was likely below that number. But by packing black voters into a few heavily black districts, neighboring seats consequently became less black, and thus Republican legislators made it harder for black voters to elect their preferred candidates in those adjacent districts.
The district court had determined that because legislators’ map didn’t flagrantly override other traditional redistricting criteria (like compactness), it wasn’t immediately obvious that race “predominated” in the decision-making process. The Supreme Court’s ruling, however, faulted the district court for using the wrong legal standard, holding that plaintiffs in racial gerrymandering cases like this one do not need to prove that the state had violated these traditional redistricting criteria.
This distinction is important because not all gerrymanders have odd shapes, and it’s often far easier for plaintiffs to prove that a map has a racially discriminatory impact than to show that those drawing it acted with discriminatory intent. The case will now go back to the district court, where plaintiffs now won’t have to meet the much higher burden of proving that legislators subordinated other criteria to race.
A new ruling, though, may not come in time to affect Virginia’s state House elections this November. However, if the court strikes down the districts in question and orders legislators to draw new ones, black voters and consequently Democrats could gain significantly, whenever the next elections under new lines are held.
A state court in late February allowed an unrelated lawsuit to proceed to trial against both Virginia’s state House and state Senate maps. Unlike the federal racial gerrymandering case, that upcoming suit challenges the maps under a state constitutional provision that mandates districts be compact. However, Democrats might not fare so well before Virginia’s conservative-leaning state Supreme Court, where this case is likely to ultimately wind up.
● Wisconsin: Late last year, a federal district court struck down Wisconsin’s Republican-drawn state Assembly map as an unconstitutional partisan gerrymander. Republican state Attorney General Brad Schimel now has appealed that ruling to the Supreme Court, setting the stage for a potential landmark decision that could curtail partisan gerrymandering nationwide.
Under current law, partisan gerrymandering—that is, the act of drawing election districts with the explicit intent of benefiting one part of the other—is permissible, no matter how grossly unfair the practice may seem. However, in a 2004 ruling, the Supreme Court suggested that partisan gerrymandering could be unconstitutional—at least in theory. In that case, though, Justice Anthony Kennedy, who was the swing vote, refused to strike down the particular map in question for lack of a manageable standard to determine when impermissible partisan gerrymandering takes place, thus allowing the practice to continue—and flourish.
The plaintiffs in Wisconsin have sought to overcome the problem identified by Kennedy by proposing a potentially viable standard called the "efficiency gap" that would mathematically examine how many votes get "wasted" in each election. Under this test, 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 districts, that could signify a map that has gone so far as to infringe upon the rights of voters to free speech and equal protection, thus making it an unconstitutional partisan gerrymander.
The lower court didn’t rely exclusively on this “efficiency gap” in crafting its decision, but both its ruling and the statistical test itself are aimed squarely at persuading Kennedy to reach a different outcome this time. If the Supreme Court does agree to hear the Wisconsin case, a ruling would likely come in 2018, which could result in the Badger State having to use a new Assembly map in next year’s midterms. But more importantly, this ruling could unleash a torrent of litigation challenging partisan gerrymanders in other states. And that could in turn imperil Republicans, who’ve drawn vastly more congressional and state legislative districts than Democrats nationally.
● Arkansas: Arkansas’ Republican-controlled state House recently approved a new voter ID law, and the state Senate appears poised to follow suit. The GOP suffered a temporary setback when the upper chamber passed the bill with less than a two-thirds majority in a vote on Wednesday, a threshold they believe is necessary to survive judicial review. However, Republicans will likely hold another vote soon once several senators who were absent this week are present and should be able to meet their two-thirds goal. And just to make sure, the legislature also passed a state constitutional amendment to require voter ID, which would take effect if voters agree to the change in a November 2018 referendum.
● Iowa: Republicans gained unified control over Iowa’s state government in 2016 for the first time in nearly two decades, and they quickly began mulling a slew of voting law changes. The state House has now passed a voter ID bill on a party-line vote, sending it to the state Senate, where passage is likely. The bill also eliminates straight-ticket voting, which could lead to longer lines on Election Day and result in more undervoting in downballot races. Both provisions would likely disproportionately hurt voters of color and could subsequently spark lawsuits.
● Texas: When Donald Trump took office and appointed civil rights opponent Jeff Sessions as attorney general, many worried that the Department of Justice would turn to the dark side and switch teams on several key voting rights lawsuits. Sessions quickly validated those fears when he dropped the DOJ’s opposition to Texas’ voter ID law as racially discriminatory. Although Sessions did not abandon the government’s opposition to the law entirely, this change signals that the Justice Department won’t take the side of voting rights advocates in future cases and may decline to bring new ones on its own.
However, the original plaintiffs in this case are still proceeding. Last year, an appeals court ruled that the law had a discriminatory impact, though it sent the question of whether legislators passed the law with discriminatory intent back to the district court to decide. As a result, the appeals court ruling forced Texas to soften the law’s restrictions, though it didn’t strike them down entirely. Voters who lacked the appropriate ID could sign a sworn affidavit and still vote in the 2016 election, but the law led to voter confusion and still had a burdensome impact, so plaintiffs are still hoping to see the court invalidate the entire law. In the meantime, Texas Republicans have recently introduced a bill to make that softer voter ID requirement permanent.
● Florida: Progressives have scored several recent victories at the ballot box in Florida, including the passage of two crucial amendents to the state constitution in 2010 that significantly curtailed Republican gerrymandering. Those amendments had to clear a very high hurdle: Florida is the only state in the nation that requires a 60 percent supermajority for all ballot initiatives, rather than a simple majority.
But stung by progressive success, Republican legislators want to raise that threshold even higher, to two-thirds of all votes. A state House subcommittee passed a bill to refer the change to the voters, while a state senator introduced the measure in the upper chamber. If Republicans manage to put the question on the ballot, they’d therefore need 60 percent of voters to agree that in the future, 67 percent of voters would need to pass ballot measures.
In theory, it might seem like a good idea to require more than a simple majority for matters such as state constitutional amendments, but a two-thirds supermajority will simply be an impossible bar for most proposals; for instance, the redistricting reform measures received “only” 63 percent. The 60 percent threshold should be more than high enough to ensure that only measures attaining a broad consensus pass, and the higher threshold is nothing more than a Republican legislature’s attempt to block progressive policies.
● North Carolina: Not a week goes by without North Carolina Republicans concocting new schemes to help them win elections, by hook or by crook. In late February, the state House passed a bill to turn races for district and superior court elections into partisan contests, and the state Senate followed suit on Tuesday. Simply put, Republicans believe that forcing judicial candidates to run under party labels will help them defeat Democratic-leaning judges in conservative areas.
However, the bill may already be functionally dead. The House will have to approve the Senate’s bill, which is slightly different, but unless the GOP can persuade a few Republican dissidents to change their votes, Republicans will lack the necessary three-fifths majority to over-ride a gubernatorial veto—and Democratic Gov. Roy Cooper does indeed sound inclined to veto the law.
● Utah: Election reformers got their hopes up in Utah when the Republican-dominated state House nonetheless easily passed a Democratic-backed bill in early March that would have implemented instant-runoff voting for primaries and municipal general elections. However, the state Senate threw cold water on that plan on Monday when the bill failed to pass a committee on a three-to-three deadlock.
The proposal would have allowed voters to rank candidates preferentially. If no one attained a majority in the first round, the last place candidate would have been eliminated, and votes for that candidate would have shifted to each voter’s second preference. That process would have repeated until one candidate achieved a majority, making it highly unlikely that a candidate would only win with a plurality of the vote over split opposition. It remains to be seen whether proponents will try again in the future.
● Florida: The state Supreme Court heard arguments this week about whether to allow a proposed constitutional amendment regarding the restoration of voting rights to appear on the 2018 ballot. This amendment would restore the voting rights of those with a past felony conviction who have completely served out their sentences. If the court gives the go-ahead (which is required for all such proposals under Florida law), organizers would have to gather at least 600,000 signatures and attain 60 percent of the vote for the amendment to pass.
According to the Sentencing Project, Florida disenfranchises more citizens than any other state. One in 10 adults are unable to vote, including one in five African Americans. Since Florida imposes a lifetime ban on voting by those with felony convictions, roughly 88 percent of the disenfranchised have completely served out their sentences. The stark racial disparities also mean that those citizens would likely lean strongly Democratic if they could vote, possibly affecting close elections, which Florida is often home to. For instance, Donald Trump only carried Florida by 1 percentage point, and GOP Gov. Rick Scott twice won by that same slim margin. That’s why Republican legislators are so hostile to a reform that could add 1.5 million voters to the electorate.
● Nebraska: Nebraska currently has a restrictive felony disenfranchisement law on the books, requiring those convicted of felonies to wait two years after they fully complete their sentence before they automatically regain their voting rights. (Most states don’t have any post-sentence restrictions.) While only 1 percent of Nebraska citizens are disenfranchised, that includes a far larger 6 percent of African Americans. That wide racial disparity is one reason why reformers want to get rid of the two-year waiting period.
In early March, a Democratic-backed bill easily cleared a committee in the state’s unicameral legislature, where Republicans hold a lopsided majority. It remains to be seen whether the full chamber will pass the bill and whether Republican Gov. Pete Ricketts will sign it, or if the legislature would have enough votes to override a possible gubernatorial veto.