Leading Off
● Virginia: On Monday, Virginia certified its 2017 election results, but three state House races where Republicans narrowly lead are still unresolved. Democrats have asked for recounts in the 28th, 40th, and 94th districts, where Republicans lead by 82, 106, and 10 votes, respectively. If Republicans prevail in all three recounts, they’d maintain a razor-thin 51-49 majority, but if Democrats can flip just one seat, it would create a 50-50 tie and force the GOP into a power-sharing arrangement—and if the outcome changes in two races, Democrats would take control outright, so the stakes are incredibly high.
In a desperation gambit, Republicans filed for a recount of their own in the 68th District, but they face an almost impossible 336-vote deficit there, and they know it: GOP Del. Manoli Loupassi conceded on election night to his Democratic opponent, Dawn Adams. Loupassi even said that he was seeking the recount only “to make sure everything is in order here,” so there’s little chance anything will shift here.
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The most-watched seat, therefore, is the 94th, thanks to the closeness of the results, though the 40th District has a quirk that bears keeping an eye on, since Democrat Donte Tanner actually went to bed on election night thinking he’d won; the next day, however, officials gave the lead back to Republican Del. Tim Hugo, apparently having failed to count a number of ballots.
Meanwhile, in the 28th, an explosive problem in how the election was administered could upend everything. Officials there have admitted that at least 384 registered voters were assigned to the wrong district, and at least 147 cast a ballot last month. Of those, 86 voters who should have been assigned to the 28th were given ballots for two other districts, while 61 voters who should've been in the 88th (a safely Republican seat) incorrectly voted in the race for the 28th. We don’t know if these errors alone were enough to cost Democrat Joshua Cole victory against Republican Bob Thomas in the 28th, but Cole has understandably asked for a recount that will hopefully shed light on this mess.
House Democrats might also pursue a challenge on another front. They’d previously filed a lawsuit seeking to block certification of Thomas’ 82-vote win, but a federal judge refused to grant an injunction. However, the judge also denied the GOP's motion to dismiss the lawsuit and suggested Democrats might have a case if they were to ask the court void the election and call a new one. They have until Dec. 6 to amend their lawsuit to seek such a remedy.
It's unclear why exactly this foul-up happened, and the person who was likely responsible for it, former Fredericksburg registrar Juanita Pitchford, can't explain since she died in April. However, we do know that this problem is a direct result of Republicans splitting the city of Fredericksburg between multiple districts when they drew the House map—something they did to benefit their own political fortunes. Mistakes like these are inevitable when election administrators are less than fully transparent, and this incident of disenfranchisement is undoubtedly not an isolated event in this country.
Redistricting
● Census: Donald Trump's election victory means his administration will oversee the 2020 census, and that’s major cause for alarm. Trump is reportedly leaning toward picking Thomas Brunell to serve as the deputy director of the Census Bureau. Brunell is a political science professor with no government experience who has testified several times to defend Republican gerrymandering in court, and he even once wrote a report arguing against expanded early voting by claiming it reduces turnout. (That’s garbage.)
Rather than pick a nonpartisan civil servant and expert on statistics to lead the census effort, Trump would be injecting partisanship into this critical role, which doesn't require Senate confirmation. A politicized census leadership comes on top of the news that the bureau itself appears to be struggling with inadequate resources ahead of the 2020 count, which could further damage its ability to accurately count people.
The census is the bedrock upon which reapportionment and redistricting depends, and an inaccurate count would lead to voters in many places being wrongly underrepresented. People of color are the most likely groups to be undercounted, which could consequently lead to white voters gaining an unfair advantage. And that in turn would likely aid Republicans in redistricting, since undercounting people of color would make it wrongly appear more difficult to draw additional districts that would further minority representation.
Another troubling aspect of a possible Brunell appointment is a book he authored in 2008 called “Redistricting and Representation: Why Competitive Elections are Bad for America." As you can imagine, the title alone immediately generated a firestorm when the news of his possible appointment surfaced. But even drilling down further, Brunell’s thesis is utterly undemocratic. He argues that voters would be better off with a representative who shares their party, and since roughly half of the electorate in a prototypical swing district won’t get that outcome when their candidate loses, he claims it would be better to have more heavily one-sided districts where more voters would be represented by their preferred party.
No one disputes that giving more voters their desired representative would be a good thing, but that’s no reason at all to embrace packing voters into gerrymandered districts where electoral outcomes are all but predetermined. If Burnell were serious, he’d instead advocate for a system like proportional representation, which is used in countries around the globe and allows voters to elect members of their preferred party without sacrificing competitiveness. Under our current system, electoral competitiveness is one of the few tools we have to hold our elected officials accountable, so setting out to maximize the number of safe districts would only embolden extremists.
● Michigan: The volunteer-based redistricting reform group called Voters Not Politicians is trying to put a state constitutional amendment on the 2018 ballot that would create an independent redistricting commission, and they recently announced they have already gathered 350,000 signatures in just a few months. The group also says they are on track to obtain 400,000 by the end of 2017, which is well before the February deadline and should give them enough of a cushion to ensure that they exceed the 316,000 valid signatures need to put this type of initiative on the ballot.
Most signature-gathering efforts of this magnitude involve paid canvassing, so the fact that organizers have come this far demonstrates an astonishing level of volunteer enthusiasm. However, assuming the measure makes it on to the ballot, it will take a lot of money to withstand the inevitable barrage of opposition from Republicans. Voters Not Politicians reports having raised $278,000 as of Oct. 20, but it may take many millions to run a successful campaign.
● North Carolina: The federal district court overseeing North Carolina's state legislative redistricting has set a Jan. 5 hearing regarding the report from nonpartisan redistricting expert Nathaniel Persily, whom the court has tasked with proposing modifications to some of the GOP's recently redrawn districts that still contain constitutional violations. Persily published his report on Dec. 1, and his proposed districts would redraw several seats in both chambers, with Democrats and black candidates likely positioned to win more districts as a consequence. The court still has yet to formally invalidate the questionable districts Republicans drew, but its actions to date suggest it will almost certainly do so.
● Pennsylvania: Pennsylvania Republicans are facing three separate lawsuits over partisan gerrymandering with their congressional map, two of which are in federal district court. In one federal case, Agre v. Wolf, the court has rejected a Republican-backed motion to dismiss the lawsuit in which plaintiffs are making a novel argument that the state’s congressional map violates the U.S. Constitution's Elections Clause. This case will now go to trial on Dec. 4.
Meanwhile, plaintiffs in the newest lawsuit, Diamond v. Torres, are relying more heavily on the First and 14th amendments to take on GOP gerrymandering, which is more in line with an upcoming landmark Supreme Court case concerning gerrymandering in Wisconsin. The court has issued a stay in Diamond pending the resolution of Agre, but plaintiffs have asked the judges to reconsider. But both of these federal cases may prove unnecessary thanks to that third case we alluded to, an ongoing state-level lawsuit relying on an interpretation of the state constitution. That matter goes to trial on Dec. 11 and likely has the best chance of success of the three.
Voter Suppression
● Illinois: Shortly before Thanksgiving, the Illinois State Board of Elections deadlocked four-to-four along party lines to block an effort to remove Illinois from the Interstate Voter Registration Crosscheck Program, which is voter suppression warrior-in-chief Kris Kobach's notoriously inaccurate system purportedly designed to flag voters who are improperly registered in multiple states. One study found that Crosscheck could produce 200 false positives for every one improper registration thanks to its intentionally shoddy design, which Kobach and Republicans have nevertheless used to perpetuate claims of widespread voter fraud.
Roughly 30 states are still participating in the program, but Democrats have been pushing for them to drop it. Democratic legislators in Illinois have responded to the board's decision by planning to introduce a bill to leave the Crosscheck program, but the party lacks the supermajorities needed to override a potential veto from GOP Gov. Bruce Rauner.
● New Hampshire: It's almost unbelievable how persistent New Hampshire Republicans are in their efforts to prevent college students from voting. The state GOP passed a new law earlier in 2017 that tightened voter residency requirements and was designed to make it more difficult for students and low-income voters to cast a ballot, and now they are plotting to pass another bill to narrow those restrictions even further. The newest measure (which passed out of a committee this week on a party-line vote) would require voters to have legal "residency" in the state rather than simply being "domiciled" there.
These arcane legal terms have important—and very different—meanings. Inhabitants of the state can be "domiciled" in New Hampshire so long as they live there and spend more time at their legal residence than at any other place. But to be a "resident," inhabitants must intend to remain in New Hampshire permanently and register their car there if they have one (and obtain a New Hampshire driver’s license), something that out-of-state college students are unlikely to do. This restriction comes would make it harder for that Democratic-leaning demographic to vote in the Granite state, even though a 1979 Supreme Court decision guarantees residential students the right to vote at their schools.
This bill is very similar to one that New Hampshire Republicans passed back in 2012 over the veto of Democratic Gov. John Lynch. However, the state Supreme Court struck down that measure in 2015 for violating the state constitution, which is unambiguous:
"[E]very inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile."
Furthermore, a 1974 federal court ruling held that college students in New Hampshire can't be denied the franchise simply because they intend to leave the state in the future. Consequently, if Republicans pass this latest bill, it will almost certainly face a lawsuit that would stand an excellent chance of prevailing.
● North Carolina: GOP state House Speaker Tim Moore recently revealed that Republicans are planning to introduce a state constitutional amendment to require voter ID. The GOP previously tried to enact a voter ID requirement in a 2013 law that was the most sweeping set of new voting restrictions any state had passed since the end of Jim Crow, but a federal court struck down the law in 2016, holding that its provisions "target African Americans with almost surgical precision."
While the Supreme Court rejected the GOP's appeal of that decision, it did so for procedural reasons rather than ruling on the merits of the law itself. Republicans legislators claim a state constitutional amendment would resolve the issue, but even an amendment still cannot violate the U.S. Constitution and Voting Rights Act, so a new voter ID law would face certain lawsuits, too.
Thanks to discriminatory gerrymanders of the state legislature that have since been struck down, Republicans still hold the three-fifths supermajorities needed to refer amendments to the voters for approval. Making matters worse, the GOP-run legislature could time the vote to coincide with the May primaries, when turnout is typically more conservative-leaning than in the November general election.
Voter Registration
● Automatic Voter Registration: The Center for American Progress, a left-leaning think tank, has published a new study looking at how automatic voter registration could impact the nation as a whole. CAP’s report finds that an Oregon-style system of automatically registering eligible voters through each state's department of motor vehicles (unless they opt out) could add roughly 22 million voters to the rolls nationwide.
The study’s authors estimate that nearly 9.5 million of those new registrants otherwise would not have registered, and since some 44 percent of automatic registrants in Oregon ended up voting in 2016, that could mean several million new voters would join the electorate if every state had this policy in place. Over one-fifth of Americans now live in states that have already adopted automatic registration, so there's still a long way to go.
And, with some tweaks, there'd likely be even more room to increase the number of registered voters via automatic registration. Some other states that have adopted this policy have included other government agencies beyond the DMV, which is critical for reaching eligible voters who don't drive a car.
Secretary of State Elections
● Massachusetts: Democrats have dominated Massachusetts' state legislature for decades, but this blue state surprisingly falls short when it comes to making it easier to vote. Consequently, Boston City Councilor Josh Zakim has announced he will challenge longtime Secretary of State William Galvin in the Democratic primary next year, arguing that Galvin has not done enough to promote greater access to voting. Indeed, when a court struck down Massachusetts' voter registration deadline earlier in 2017, Galvin supported an appeal of the ruling (which did not succeed). Zakim instead advocates for implementing same-day registration, which would allow voters to register and cast a ballot at the same time on Election Day.
Galvin has easily won re-election every four years since his initial victory in 1994, and he will likely be a formidable incumbent. He already starts off his race with $2.6 million in campaign funds, while Zakim begins with just $360,000 in the bank. However, Zakim is the son of the late civil rights leader Lenny Zakim, who has a very prominent bridge named after him in Boston, so he may have the right profile to give Galvin his toughest re-election battle yet.
Ballot Measures
● Nevada: The Nevada Alliance of Retired Americans has filed a legal complaint against the GOP-backed effort to recall Democratic state Sen. Joyce Woodhouse alleging that recall canvassers "misrepresented the intent behind the petition or who they were collecting signatures on behalf of." NARA further says that some of its members believe they never even signed the petition despite their names being listed on it. Meanwhile, Woodhouse's team has also filed lawsuits contending that a critical number of the recall signatures Republicans submitted are invalid, and they’ve asked that all of them be examined (in their review, election officials only sampled 900 of the roughly 17,500 signatures submitted).
This recall push, along with an ongoing recall against Democratic state Sen. Nicole Cannizzaro and a failed effort targeting independent state Sen. Patricia Farley, are part of a Republican bid to overturn the results of last year's election losses. At no point have Republicans accused these state senators of misconduct or abusing the public trust—the sort of behavior for which recalls ought to be reserved.
