Leading Off
● Virginia: Virginia Democrats scored a sweeping victory in Tuesday's state elections after Democratic Lt. Gov. Ralph Northam won by an unexpectedly large 54-45 margin over Republican Ed Gillespie to become the state's next governor. Even more shockingly, Democrats gained 15 seats in the heavily gerrymandered state House, shrinking the GOP’s once-dominant majority to just a 51-49 edge, pending recounts (the Republican-held state Senate wasn’t up for election in 2017). These Democratic victories aren't just good news for the party, they are a boon to voting rights themselves on key issues like gerrymandering, felony disenfranchisement, and voter ID. However, these elections also demonstrate just how far Virginia still has to go.
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Most importantly, Northam's victory to succeed term-limited Democratic Gov. Terry McAuliffe means Democrats will maintain the power to veto election-related legislation that Republicans would try to pass with the one-seat majorities they now have in both legislative chambers. Critically, Northam will be able to block future GOP gerrymanders of state legislative districts after the 2020 census, meaning Virginia could finally have fairer maps for the 2021 elections. This election was consequently the nation's first of many gubernatorial elections that will determine partisan control over large parts of the post-2020 redistricting landscape.
While Gillespie was the chief architect of the GOP's national redistricting strategy after the 2010 census, Northam has pledged to support nonpartisan redistricting. However, Virginia still has a long way to go to combat gerrymandering. If Republicans maintain their majorities through the 2021 state elections, they’d be able to delay drawing new congressional lines until 2022 simply by refusing to pass a new map. Such a delay could prove crucial if they can regain the governor's office when Northam faces term limits in 2021, because a unified government would allow the GOP to draw another gerrymander of the congressional map, just as they did in 2012. (Republicans couldn’t pull the same trick with the legislative lines because they have to pass new maps before the 2021 elections, lest they run afoul of the Constitution’s “one person, one vote" requirement.)
Furthermore, these elections demonstrate just how powerful of an impact GOP gerrymandering still had even in the face of a massive Democratic wave election. Democratic state House candidates won the popular vote by several points but will likely still fail to win a majority once recounts are over. While some pundits have seized on these Democratic successes to claim that gerrymandering was unimportant, that conclusion is wrong. Instead, these results show that Democrats need a decisive edge in the popular vote just to even come close to tying the chamber despite putting together their best election in decades.
Nevertheless, Northam's victory could strike a blow against gerrymandering even sooner than 2021. An ongoing federal lawsuit over racial gerrymandering may invalidate some districts in the state House, while a separate state-level lawsuit will soon go before the state Supreme Court alleging that certain districts violate the state constitution’s requirement of “compactness” in both the House and Senate (whose lines Democrats drew to favor themselves so feebly that they lost the upper chamber in the very first election held under the new map). If either challenge succeeds, Northam could veto any replacement Republican gerrymanders and force the courts to draw nonpartisan districts to replace the handful of invalidated ones, making fairer maps a reality.
Redistricting isn't the only area where Northam's win advances voting rights. In 2016, Gov. McAuliffe began issuing mass executive orders that automatically restored voting rights to the roughly 200,000 disenfranchised Virginians who had been convicted of a felony and served their time, including parole and probation. Felony disenfranchisement was originally an explicit tool of white supremacy during Jim Crow, and before McAuliffe's bold action, Virginia withheld the right to vote from one in five black citizens of age, five times the rate of whites. McAuliffe ultimately restored voting rights for 168,000 Virginians, and roughly 42,000 of them registered to vote ahead of the election.
Northam has pledged to continue automatically restoring voting rights, while Gillespie ran overtly racist ads that attacked Democrats for doing so and argued only those who had "earned back" their rights deserved them. Republican legislators tipped their hand as to what those "deserving" few would look like: Earlier in 2017 they unsuccessfully tried to make any restoration contingent upon payment of all court fines, fees, and restitution. Such a restriction would effectively function as a poll tax—long banned by the Constitution—and disenfranchise many tens of thousands of impoverished Virginians long after they’ve served their time.
Another immediate impact of Democrats holding onto the governor's office is that the party will maintain its majorities on every state and county elections board. These bodies make key decisions over election administration, such as a mid-August move to force localities to stop using paperless voting machines that were potentially vulnerable to hacking.
One final consequence of Northam's victory, Democratic gains in the state House, and the prospect of fairer legislative district maps is that unified Democratic control over state government is now a possibility in the not-too-distant future. And if that happens, we could see massive reforms. Northam has pledged to repeal voter ID, pass same-day registration, finally bring no-excuse early voting to Virginia, and add the state's 13 Electoral College votes to the National Popular Vote Interstate Compact. While Republican legislators will almost certainly vote against these priorities, future Democratic majorities could make them happen.
Elections
● New Jersey: Democrats also achieved significant election victories in other states on Tuesday, with Democratic nominee Phil Murphy defeating Republican Lt. Gov. Kim Guadagno to win the race to replace term-limited GOP Gov. Chris Christie in New Jersey. Murphy's triumph means Democrats will regain unified control over state government for the first time in eight years.
New Jersey Democrats will now almost certainly pass automatic voter registration, online registration, and expanded early voting. The Democratic-majority legislature had previously approved a bill to do those very things only to see Christie veto it, but Murphy has pledged to support such initiatives to make voting easier and increase turnout.
● Washington: Like their counterparts in New Jersey, Washington Democrats also regained complete control over the state government following Manka Dhingra's victory in the 45th State Senate District special election, which put the Democratic caucus back in control of both legislative chambers. Republican legislators had stymied measures to expand voting access, but activists have begun to push lawmakers to pass automatic voter registration now that Democrats are in power. Implementing this reform in Washington would bring automatic registration to the entire West Coast.
● Detroit, MI: Although the biggest races on Tuesday were an enormous success for voting rights, the Detroit city clerk's election saw perhaps the night's only setback. Incumbent Janice Winfrey only fended off a challenge from fellow Democrat Garlin Gilchrist by a narrow 51-49 margin, but that’s likely good enough for a win even though Gilchrist says he's considering a recount.
Winfrey's office earned awful headlines for its botched handling of the last year's presidential elections, with a post-election audit concluding that "an abundance of human errors" by election administrators contributed to the problem. Gilchrist had campaigned on a platform of modernizing the office and making it easier to vote, which would have been consequential given Detroit's status as the biggest city in a major swing state. Gilchrist is just 34, though, and his strong performance against an entrenched incumbent will hopefully set him up for a return engagement in the future.
● Nevada: According to the Nevada Independent, Republicans appear to have filed a sufficient number of signatures to trigger a recall election of Democratic state Sen. Joyce Woodhouse, but a second effort fell far short, as organizers failed to turn in enough signatures in time to recall independent state Sen. Patricia Farley, a former Republican who caucuses with the Democrats.
Some key Nevada Republicans have been pushing to recall Woodhouse, Farley, and another Democrat, state Sen. Nicole Cannizzaro, as part of a ploy to nullify last year's elections and regain a majority in the Senate. Republicans have alleged absolutely no wrongdoing or any other extraordinary circumstances that would warrant these recalls, making it plain that their only motivation is pure partisanship—and a (probably justified) fear that they likely can’t retake the Senate in next year’s regularly scheduled elections.
And they might not even be able to win any recalls either: After Tuesday’s resounding Democratic victories, Republicans have to wonder whether the expense of recall elections would even be worth it in an environment that’s so toxic for them. Signatures to recall Cannizzaro are due on Nov. 14, so we’ll soon see whether the GOP actually even follows through.
Redistricting
● Pennsylvania: On Thursday, the Pennsylvania Supreme Court announced it would hear a lawsuit challenging the state's Republican-drawn congressional map as an illegal partisan gerrymander. A GOP-dominated lower court had previously stayed the suit, but plaintiffs appealed to the high court, whose Democratic majority has now expedited the proceedings and given the lower court a deadline of Dec. 31 to issue a ruling. If the courts strikes down this map, Democratic Gov. Tom Wolf could veto any replacement GOP plans, forcing the courts to draw nonpartisan districts in time for the 2018 midterms and presenting Democrats with opportunities for major gains.
As shown in this map, the GOP's brazenly tortured lines have produced a stable 13-to-5 Republican congressional majority in what is otherwise an evenly divided swing state. That Republican advantage persisted even when Obama carried Pennsylvania by 5 points—and Democratic House candidates won more votes statewide than Republicans—in 2012, and it held fast in 2016 when Trump narrowly won the state. As we have demonstrated, the GOP's map likely cost Democrats up to four seats in both 2016 and 2012, making it one of the most effective Republican gerrymanders nationally.
The plaintiffs in this suit have pointed to several statistical tests to argue that Republicans could not have possibly passed the map that they did without intending to favor their own party. These tests include the "efficiency gap," which is at the center of an upcoming U.S. Supreme Court case regarding Wisconsin, as well as one called the "mean-median district test," both of which we have previously explained in detail. The plaintiffs have also put forth computer-simulated nonpartisan plans to buttress their claim that any efforts by mapmakers to adhere to traditional redistricting criteria alone (like geographical compactness of individual districts) were statistically unlikely to produce such a GOP-friendly map.
Most importantly, this lawsuit is relying on state constitutional protections for voters based on freedom of association and equal protection. While the various statistical tests have yet to persuade the U.S. Supreme Court to strike down partisan gerrymanders for violating the federal constitution, it would have limited latitude to override the state high court's interpretation of Pennsylvania's own constitution in this matter. Democrats gained a crucial majority on the state Supreme Court in 2015, and while that's no guarantee of victory, it gives plaintiffs a much stronger chance of a favorable ruling against GOP gerrymandering.
Meanwhile, there's a separate federal lawsuit against Pennsylvania's congressional map. In that case, a federal court on Thursday ordered Republican legislators to turn over all communications pertaining to “REDMAP,” the nationally coordinated GOP effort to flip key state legislative races in the 2010 election cycle in order to control redistricting in statehouses across the country.
While this federal challenge may face longer odds of success, the release of these documents could make it much easier for plaintiffs in both cases to prove Republican legislators intentionally engaged in gerrymandering. Although the statistical methods mentioned above can try to infer this intent, hard proof could go a long way toward convincing the court that these lines intentionally discriminated against voters based on their political affiliations, evidence that would be key for a successful case against partisan gerrymandering.
Voter Suppression
● Arizona: A coalition of organizations that advocate for voting rights have filed a new lawsuit against Arizona’s Republican secretary of state, Michele Reagan, over the state's two-track voter registration system, which treats registration for state and federal elections differently. This bizarre setup arose after Republicans passed a law in 2005 forcing registrants provide proof of citizenship in an obvious effort to suppress votes, but the Supreme Court ruled in 2013 that the state could not apply this requirement to federal elections.
Consequently, Arizona allows voters who don’t provide proof of citizenship to register and vote only in federal elections, while those who do provide proof can register for state elections, too. Plaintiffs argue that this two-tiered system confuses and disenfranchises voters who think they're registering for both sets of elections even though the federal registration form doesn't demand proof of citizenship. A victory for plaintiffs could thus see tens of thousands of registered voters gain access to the franchise in state elections.
● New York, NY: Shortly before Election Day, New York City’s notorious incompetent Board of Elections agreed to settle a lawsuit over its purge of more than 117,000 voter registrations simply for failing to vote in recent elections, which violated the National Voter Registration Act. The board agreed to a consent decree that will force them to review every registration they have purged since July of 2013, and within 90 days, officials will have to reinstate the registrations of voters deemed to have been wrongly removed from the rolls.
● Voter Suppression Commission: Donald Trump's "election integrity commission," led by Kansas Secretary of State Kris Kobach, is already facing several legal challenges over its activities, but it's now drawn a new lawsuit from one of its very own members. Maine Secretary of State Matthew Dunlap, one of the few token Democrats on the commission, filed a legal challenge against the commission for effectively shutting him and other Democrats out of its proceedings. Dunlap contends that this violates the Federal Advisory Committee Act, which requires such committees to publish documents to the public.
Dunlap and his fellow Democrats have ignored continuous calls from progressives to resign in protest over this farce of a commission, but Dunlap has been adamant about remaining on the panel to force its activities into the light. Of course, this entire situation has been a charade from the start, since previously disclosed documents indicate that Kobach began pushing for new federal voting restrictions immediately after Trump's election and everything the commission had done has been utter farce, so Dunlap still has to consider whether his potential to expose the panel outweighs his continued membership on it.
Ballot Measures
● Maine: Legislators from both parties recently passed a bill that will delay instant-runoff voting until 2021, at which point it would automatically get repealed unless the state approves a constitutional amendment to validate the portion of the law that pertains to state-level general elections (which we have previously explained in detail). In practice, this new bill will almost certainly end up doing away with instant-runoff voting altogether, given GOP hostility toward any such amendment. Indeed, Republican Gov. Paul LePage supported this bill yet let it become law without his signature in a ploy to prevent activists from gathering signatures on Election Day for a referendum to veto it.
Fortunately, a court granted emergency relief and allowed organizers to circulate petitions as voters went to the polls this week. Referendum backers have 90 days to obtain signatures equivalent to 10 percent of the votes cast in the 2014 governor's race, or roughly 61,000 in total. Once those are verified, this latest law itself would be suspended until the referendum could take place, which would likely be in June of 2018. Consequently, if the referendum makes the ballot, Maine voters could use IRV in primaries next June while simultaneously voting on whether to keep the new electoral system itself.
Election Administration
● South Dakota: South Dakota may become the next state to begin moving toward a system of holding elections entirely by mail. Backers of a proposed initiative that would allow counties to choose to adopt vote-by-mail elections have filed around 20,000 signatures to make it onto the 2018 ballot, a solid cushion above the roughly 14,000 required by law. Switching to voting by mail could increase turnout by making the process easier for many voters.
