● North Carolina: Hardly a week goes by without North Carolina Republicans concocting new schemes to undermine elections and swing them their way. The GOP’s latest new law, passed over the veto of Democratic Gov. Roy Cooper, will literally eliminate judicial primaries—for 2018 only. Earlier this year, Republicans passed a separate law that turned these once non-partisan races into explicitly partisan contests, so now, without a primary, a jumble of candidates from both parties will compete on a single general election ballot where all it takes is a plurality to win. Thanks largely to name recognition, this will almost certainly give incumbents a huge advantage, which benefits the GOP since they're defending the only state Supreme Court seat that’s up next year.
The GOP's stated rationale for implementing this change is that it will give them more time to redraw the districts used to elect prosecutors and judges at the district court and superior court levels, which of course is really just an effort to gerrymander those offices. Indeed, Republicans in the state House recently passed just such a judicial gerrymander, but the Senate won't take it up until early 2018.
Republicans are also plotting to get rid of judicial elections entirely via some form of appointment method, which they could send to voters as a proposed constitutional amendment next spring. While we've repeatedly advocated for getting rid of judicial elections in favor of a more apolitical appointment system, North Carolina Republicans have demonstrated time and again that they never operate in good faith when it comes to changing election laws. The GOP hasn't released a formal proposal yet, but one possible method could allow the legislature itself to pick judges, as is the practice in neighboring South Carolina and Virginia. That would of course simply allow the GOP to use their illegally gerrymandered legislative majorities to guarantee they could appoint fellow Republicans.
Absurdly, this isn't even the only proposed constitutional change the GOP may be plotting, since Republican legislators have also introduced an amendment to shorten the length of every state judge’s term to just two years. With state Supreme Court justices serving eight-year terms, this proposal is a transparently partisan effort to give the GOP a chance to eliminate the Democrats’ majority on the high court. Importantly, every single Democratic incumbent on the Supreme Court will serve until at least the 2022 elections, which would mean a Democratic majority would sit on the bench during the 2020s round of redistricting. If Republicans succeed with this proposed gambit and flip the court, they could use that new majority to validate future GOP gerrymanders.
Taken altogether, these changes are quite simply an attack on the very principle of judicial independence and the rule of law. In other words, they’re exactly the kind of thing the North Carolina GOP loves.
● Alabama: In early 2017, a federal court struck down a dozen of Alabama's 140 state legislative districts for illegal racial gerrymandering, and GOP legislators consequently redrew a majority of seats in both chambers in order to satisfy the court’s ruling. However, plaintiffs have subsequently argued that even these changes still give short shrift to black voters in Alabama's largest county, Jefferson, which is home to Birmingham and a sizable black population yet will almost certainly still have a GOP majority among its legislative delegation, even with the redrawn district lines.
In mid-October, however, the court reviewing the case unanimously rejected this challenge, ruling that the plaintiffs lacked standing to sue. An appeal to the Supreme Court is possible, but even a successful might not come in time to affect the 2018 elections.
Still, black voters will be able to elect their preferred candidates in a few more districts in 2018 thanks to their victory earlier this year. However, this recent setback demonstrates just how much further there is to go in terms of ensuring the legislative maps don't suppress the political strength of black voters merely to achieve partisan gain for Republicans.
● Pennsylvania: Pennsylvania has one of the most extreme Republican gerrymanders of any congressional map in the country, and a group of voters filed a lawsuit in June seeking to have it invalidated for excessive partisanship under the state constitution. Now, another set of plaintiffs have filed a separate lawsuit in federal court, arguing that the map's partisan gerrymandering violates the 1st and 14th Amendments of the U.S. Constitution.
The federal district court set a trial date of Dec. 5, but there's a good chance that this case will not proceed quickly enough to affect the 2018 elections. Indeed, Republican legislators have already asked the court to delay the trial in an effort to run out the clock. Nevertheless, the case could put Pennsylvania on track to have to quickly redraw its districts for the 2020 election cycle if the U.S. Supreme Court places limits on partisanship in the redistricting process in an upcoming landmark case concerning Wisconsin, where it will likely reach a decision in the first half of 2018.
Even if this federal lawsuit fails in Pennsylvania and the Supreme Court doesn't crack down on partisan gerrymandering, the state court suit could still succeed under the Keystone State's constitution. A a judge recently issued a stay in the case, but plaintiffs have asked the Democratic-majority state Supreme Court to use its powers to take up the case itself. That would sidestep the lower-level courts entirely and could even lead to the high court requiring new districts ahead of 2018.
● Georgia: In a victory for voting rights, a federal judge imposed a consent decree on Georgia's Republican-dominated state government, saying officials can't set voter registration deadlines more than 30 days before an election, even when a race goes to a runoff. Republican Secretary of State Brian Kemp had tried to prevent anyone who wasn't registered ahead of the first round of a special election from voting in a runoff, even when the runoff took place months later, but the court held that this violated the National Voter Registration Act (known as the "Motor Voter" law).
And the matter wasn’t theoretical. During the 6th Congressional District special election earlier in 2017, Republicans had sought to stop anyone who wasn't registered at the time of the April all-party primary from voting in the June general election runoff, even though that would have effectively imposed a three-month registration deadline. While a court temporarily re-opened registration for a short period and several thousand voters were able to register, this latest ruling will ensure that registration stays open ahead of the 30-day deadline in future elections without the need for future litiglation.
● Texas: Litigation over Texas' GOP-backed voter ID law has been ongoing for years, and it shows no sign of resolving anytime soon. Earlier in 2017, a federal district court judge struck down the state’s existing law for intentionally discriminating against black and Latino voters. However, a three-judge panel on the notoriously conservative Fifth Circuit Court of Appeals overruled the lower court to allow the law to stay in place for 2018 while Republicans appeal on the merits. In early October, the full Fifth Circuit declined to speed up the case by having all 14 judges on the circuit sit "en banc" for this appeal, a setting that might have been more favorable to the plaintiffs.
That’s because this particular three-judge panel has two Republican-appointed judges and one Democratic-appointed judge, and it's quite plausible that it will overturn the district court on the merits. If and when that happens, the plaintiffs could then once again ask the full Fifth Circuit to hear the case en banc, and its full slate of judges could issue a ruling more favorable for the plaintiffs as they did in 2016 in an earlier stage of this case. But importantly, even if the plaintiffs eventually succeed on the merits, this crucial delay means voter ID will almost certainly remain in place for the 2018 elections.
● Voter Suppression Commission: In early October, a critical document released pursuant federal court order confirmed what was long brazenly obvious: The sole purpose of Trump's commission on "election integrity" is to provide a pretext to impose new federal voting restrictions. In response to an ACLU lawsuit, the court ordered Kansas Secretary of State Kris Kobach to turn over the document in question, in which he had called on Donald Trump mere days after last year's election to amend the National Voter Registration Act to require proof of citizenship in order to register to vote. Kobach had fought fiercely to hide the document and was even fined $1,000 by the court for making “patently misleading representations” about its contents, but now the jig is up.
Kobach has long crusaded for this particular voting restriction even though his own years-long investigations in Kansas have only ever led to the prosecution of two non-citizen voters. Kobach has even sought to have Kansas try to impose this restriction unilaterally, but federal courts repeatedly slapped down that state law for violating the NVRA. Nevertheless, the experiment in Kansas produced the desired effect before the court finally blocked it: One in seven new voters had their registration suspended, and the proof-of-citizenship requirement simultaneously made voter registration drives impossible.
With Republicans in control of Congress and the White House, it's possible that they could indeed try to amend the NVRA to impose new voting restrictions just as they have done in state after state. If they go down that path, the only thing standing in their way would be the filibuster, though Republicans could conceivably do away with that or resort to abusing the budget reconciliation process to pass such changes with a simple majority. And of course, in the age of Trump, we've seen time and again that Republicans have no qualms about discarding longstanding norms to achieve their partisan ends.
Secretary of State Elections
● Michigan: On Tuesday, Democrat Jocelyn Benson announced that she she’s running for state secretary of state in 2018. Benson is a former dean of Wayne State University Law School and literally wrote the book on how to be a good steward of elections and protect democracy. Republican incumbent Ruth Johnson is term-limited in 2018, giving Democrats a great shot at picking up this office, which they can use to protect access to voting in a key swing state. Benson ran for this position seven years ago and lost to Johnson just 51-45 even as Michigan Democrats fared far worse in other races during the 2010 midterm GOP wave, making her a very strong candidate.
● Nevada: Democrats are deploying a new tactic in their efforts to block GOP-engineered recall elections in Nevada: a lawsuit filed by renowned Democratic election attorney Marc Elias.
First, some background:
After losing control of the Nevada state Senate last fall and facing extremely long odds in terms of winning back that majority in 2018, Silver State Republicans are resorting to recall elections in an attempt to undo the impacts of last November’s contests. The GOP is trying to trigger do-overs in two of the seats they lost last fall and in one competitive district they worry they can’t win in a regularly scheduled election. And all three targets in these special elections are women: two Democrats and one former Republican who now caucuses with Democrats (and isn’t even running for re-election).
The lawsuit that aims to block these recall elections makes three main arguments.
The first involves balancing the state’s interests with the burden the recall elections would place on voters. The state would get no benefit from a recall election based solely on objections to the lawmakers’ policy positions instead of on “misconduct, neglect of duties, betrayal of public trust, or any other incapacity or wrongdoing,” and voters would effectively have their “votes unjustifiably nullified.”
The petition to recall state Sen. Joyce Woodhouse specifically calls out her “voting record” as “out of touch with District 5” and cites specific policy positions as reasons supporting her recall.
Burdens faced by voters required to vote in an irregular election include include obtaining transportation to a polling place, child care, and time off from work, and these burdens are especially felt by voters of color and low-income voters.
The second claim is that recalls effectively shorten terms lengths and “undermine a republican form of government” by diverting recalled senators’ “time, attention, and resources to defending against an unjustified recall election” and impeding their “ability to effectively govern.”
Finally, the suit argues that the recalls violate Section 2 of the federal Voting Rights Act because of their disproportionate impact on voters of color. The costs and burdens of voting are already greater for these communities, and the informational barriers around irregular, off-cycle special elections are daunting.
This lawsuit a secondary effort to prevent the recall elections. The primary effort is being led by the Democratic Legislative Campaign Committee by way of a group called Our Votes, Our Voice, which is spearheading a “decline to sign” campaign (i.e., persuading voters not to sign recall petitions). The group has received a $50,000 cash infusion from the National Democratic Redistricting Committee, and the DNC has reportedly sent a “six-figure chunk of money” to the state party to support the “decline to sign” effort.
As a political matter, these dual efforts to thwart the recalls make sense for Democrats. Preventing them will cost far less than defending these three seats in special elections, which could reasonably be expected to cost Democrats $3 million to $4 million. Additionally, the three recalls would cost Nevada taxpayers over $150,000.
While attempts to recall elected officials in Nevada aren’t novel, no recall attempt against a state legislator has been successful in almost a quarter century. But with their multi-pronged “decline to sign” and legal effort, though, Democrats clearly aren’t interested in taking any chances.