● Texas: On Monday, a federal district court delivered a big win for voting rights when it ruled that the strict voter ID law that Texas Republicans passed in 2011 intentionally discriminated against black and Latino voters. If Monday’s ruling survives appeal, it could serve as grounds for throwing out the law entirely.
This case could have a further, far-reaching impact as well. Combined with a separate recent decision that struck down the Texas GOP’s congressional gerrymander—which was also found to be intentionally discriminatory—Monday’s ruling could open the way for the courts to require Texas to once again “preclear” all changes to its voting laws with the Department of Justice.
Until the Supreme Court gutted a key provision of the Voting Rights Act in 2013, several predominantly Southern states like Texas with a history of discriminatory election laws had required advance approval from the Justice Department before making any alterations to their voting procedures. If any changes were found to disadvantage minority voters, the federal government could block them from taking effect. But as soon as they were free of such oversight, these same states rushed to pass a slew of voting restrictions.
However, under a separate section of the VRA that is is still in force, judicial findings of intentional discrimination can lead to a jurisdiction getting placed back under preclearance. Indeed, a court recently ordered just this remedy for the Texas city of Pasadena, which had a history of discrimination against Latinos. While Attorney General Jeff Sessions is a staunch voting rights opponent who is unlikely to block harmful voting laws, a future Democratic administration could do so.
We have a ways to go, though, because this case has a complex past, auguring an uncertain future for this latest ruling. The same district court judge who issued Monday’s ruling, Nelva Gonzales Ramos, had previously issued a similar decision back in 2014, determining that this voter ID law had in fact been passed with discriminatory intent. Republicans appealed that decision to the the Fifth Circuit Court of Appeals, which partly overruled Ramos last year. The appeals court found that the law had a discriminatory effect on black and Latino voters, but it ordered Ramos to reconsider the issue of intent, instructing her to rely on a narrower set of evidence.
Despite this restriction, Ramos ultimately reached the same conclusion on Monday that she did three years ago: Republican legislators had intentionally discriminated against blacks and Latinos. Yet even though Ramos has now made this same determination twice, the notoriously conservative Fifth Circuit still might not agree and may therefore preserve Texas’ voter ID law when Republicans inevitably appeal once again.
In its decision last year, the Fifth Circuit only required Texas to “soften” its voter ID requirement by allowing those with a reasonable impediment to obtaining an ID to cast a ballot under penalty of perjury. However, this was far from a complete victory for voter ID opponents, who wanted to see the law struck down entirely.
Indeed, a recent University of Houston study found that even though Texas Republicans spent $2.5 million on a supposed voter ID education plan, Texans were still confused about the actual requirement, with many wrongly believing that an ID was necessary without exception and uncertain whether their own IDs were sufficient. This outcome is almost certainly exactly what Republicans hoped would happen after the court ruling, which is why voting rights advocates are pushing for the entire law to get thrown out.
Furthermore, now that arch-conservative Neil Gorsuch has been confirmed to the U.S. Supreme Court, the court’s conservative bloc, which is generally hostile to voting rights, once again holds a five-to-four majority and could rule in favor of Texas Republicans. However, given Justice Anthony Kennedy’s rulings in several recent cases striking down GOP racial gerrymandering, there’s still hope that he might finally see the light on the harms of voter ID in Texas and join the court’s liberals in banishing this law once and for all.
Republican Power Grabs
● North Carolina: On Tuesday, Republican legislators passed their latest attempt to remove Democratic majorities from North Carolina’s state and county election boards. The GOP’s bill would create an even partisan split on each board, ensuring deadlocks so that Democrats can’t reverse the voter suppression measures that Republicans implemented when they previously held majorities on these same boards.
Shortly before Democratic Gov. Roy Cooper took over from GOP ex-Gov. Pat McCrory earlier this year, Republicans passed a law last December that attempted to achieve the same goal, but a state court fortunately struck it down in March for violating the state constitution. But it’s like Groundhog Day with these guys, because they’re trying almost the exact same thing again.
Under current North Carolina law, the governor gets to appoint all election board members, but the governor’s party is only allowed a one-seat majority over the other major party. Republicans in the legislature originally tried to give themselves the power to appoint half of all board members and to require that the boards have an even partisan balance, but the court deemed this an infringement on the governor’s executive authority.
The GOP’s latest bill seeks to circumvent this ruling by still letting the governor pick all members, but it would require him to pick equal numbers of Democrats and Republicans—which would still lead to the deadlocks the GOP desires. Cooper has promised to veto the new bill, but thanks to gerrymanders that were ruled unconstitutional in 2016, Republicans were able to pass the measure with veto-proof support. That means they’ll almost certainly be able to override Cooper’s opposition and enact it into law. Once again, Democrats will have to turn to the courts to fight this latest attempt to abnegate the results of last year’s elections.
And not content with merely trying to preserve their voter suppression regime, Republican legislators also approved a “reverse” court-packing scheme on Tuesday. North Carolina elects its judges, but if there’s ever a vacancy, the governor appoints a replacement who serves until the next general election. Republicans won an 11-to-four majority on the state’s Court of Appeals last year, but three Republican judges will reach the mandatory retirement age during Cooper’s current term. Rather than let him fill those three vacant seats with Democrats, GOP legislators would simply eliminate them, downsizing the court to 12 members instead of letting Democrats come within striking distance of a majority.
While there are of course nonpartisan pros and cons to changing the size of the court over time, enacting this change now is transparently intended to prevent Cooper from replacing Republican judges with Democrats, since Republicans made no effort to shrink the court over the four preceding years when a Republican was governor. Democrats fortunately hold a four-to-three majority on the state Supreme Court, but the appellate level is still a very important player in the judicial process, since the high court can’t hear every case. Once again, Republicans will likely be able to use their majorities to override any possible Cooper veto.
● Alabama: In the face of near-certain impeachment over his abuse of state resources to conceal an affair with top adviser Rebekah Mason, Alabama’s disgraced Republican former-Gov. Robert Bentley finally resigned on Monday as part of a plea deal with prosecutors. Right before the governor’s sad political career came to an end, a damning investigative report that highlighted his misdoings contained one particularly galling detail: It was Mason who led the charge to close 31 driver’s license offices in predominantly black counties in 2015 after the state had passed a law requiring voter to present ID in order to cast ballots.
Alabama enacted Mason’s plan under Bentley’s leadership, leading to a sharp outcry from civil rights advocates, litigation, and an eventual settlement with the U.S. Department of Transportation that reversed most of the closures. Amazingly, Mason’s chief aim was to put pressure on Bentley’s opponents in the legislature, who had resisted his proposed tax hikes and didn’t want to support his budget, and she sought to do so by using innocent voters as pawns and trampling on their rights. Good riddance.
● Iowa: Republicans have used their newfound legislative majorities to finally send their elections overhaul bill to GOP Gov. Terry Branstad, who will likely soon sign it. This set of changes imposes a voter ID requirement, ends straight-ticket voting, and shortens early voting availability. With Republicans wielding total control over Iowa’s state government, the only option left to Democrats will be litigation.
Although Republicans claim that the measure will provide an ID to registered voters who lack one, it won’t provide IDs to the far larger number of unregistered yet eligible voters without an ID, and it could lead to voter confusion (see our Texas item above). Furthermore, Republicans rejected allowing the use of student IDs from state schools, a move that is transparently designed to target a Democratic-leaning demographic.
Ending straight-ticket voting could also lead to longer lines on Election Day. In turn, long waits could disproportionately affect the state’s handful of neighborhoods with substantial black or Latino populations, since those Democratic-favoring groups are often more likely than whites to use this option to save time in the voting booth. More generally, the lack of a straight-ticket option can lead to an increase in voters skipping downballot races.
● Montana: The deadline is swiftly approaching for Montana officials to finalize their voting procedures ahead of the May 25 special election for the state’s lone congressional seat. Democratic Gov. Steve Bullock, his party’s legislators, and a handful of Republicans support a one-time switch to allow the vote to proceed entirely by mail in order to save money. (Every registered voter would receive a ballot in the mail, which is much cheaper than staffing polling places.) However, many Republicans have adamantly resisted the change, with the state party chair even going so far as to explicitly admit he’s opposed because he thinks it would help Democrats by making it easier to vote.
While Republicans control both chambers in the legislature, a vote-by-mail bill managed to pass the state Senate and looked poised to advance in the House, but Republican leaders prevented it from even receiving a floor vote. However, Bullock used his special “amendatory veto” power to alter an unrelated bill that had passed both chambers to insert the vote-by-mail provision, apparently forcing the entire House to vote on it. However, Republicans might still be able to run out the clock by delaying a vote in the full House chamber until after county officials finalize their election administration plans, which could take place sometime next week.
● Arizona: Backed by the state Chamber of Commerce, Arizona Republicans continue to look for new ways to make it harder to put initiatives on the ballot after progressives won a major victory in 2016, forcing the state to raise its minimum wage to $12 per hour by 2020 and mandating that employers provide paid medical leave. In March, Republicans passed a law that banned paying petition circulators on a per-signature basis, instead forcing organizers to pay by the hour (a much more expensive proposition), and they’re eyeing several more changes, too.
On Thursday, the GOP-majority state legislature sent a bill to Republican Gov. Doug Ducey that would subject petitions to “strict compliance” instead of “substantial compliance” when election officials review them. This distinction means that signatures could be invalidated over the smallest clerical errors—even if such minor errors don’t actually obscure the signer’s intent.
Meanwhile, Republicans in the state House advanced a separate measure that makes initiative organizers financially responsible and subject to fines if any of their paid signature-gatherers commits fraud, which could create a chilling effect. Legislators claim these changes are needed to prevent fraudulent activity by campaigns seeking to place measures on the ballot, but they of course don’t seek to apply them when candidates themselves have to collect signatures to get on the ballot, rendering their defense absurd.
● California: City council elections aren’t sexy, but they often shape the most visible ways that voters actually interact with government services day-to-day, making them vital. In 2002, California passed its own state-level Voting Rights Act that went even further than federal law to make it easier to challenge the use of at-large elections in city council races if they potentially dilute the voting strength of voters of color. (When officials are elected citywide in areas with racially polarized voting, white majorities can wind up electing entirely white councils, something far less likely to happen with district-based voting if districts can be drawn with majority black or Latino electorates.)
In the 15 years since the law’s passage, many cities have switched to using districts, often simply out of fear of facing litigation, since no municipality has ever successfully defeated such a lawsuit. However, as a recent Los Angeles Times exposé reveals, moving from electing every council member citywide to doing so by district often hasn’t led to an increase in black or Latino officeholders. One key reason is that in many instances, Latinos in particular might make up a majority of the population in a redrawn district, but a far smaller share of the actual electorate because a large number of them are children, aren’t citizens, or simply don’t vote.
While some might use these results to cast doubt on the usefulness of California’s Voting Rights Act, the more important takeaway should be that switching to districts is a necessary first step where racially polarized voting exists, but it often simply isn’t enough by itself to increase the number of black and Latino officials. The ability to field candidates and run strong campaigns has to exist, too, but such efforts are necessarily harder for communities that tend to fall on the lower end of the socioeconomic spectrum.
Furthermore, most American cities hold their local elections on dates separate from state and federal races, leading to abysmal turnout, especially among black and Latino voters. This happens despite California making it far easier to cast a ballot than in most states thanks to automatic voter registration and vote-by-mail. If these California cities began to move their local election to align with state and federal races, participation would likely surge and result in a less disproportionately white electorate, consequently enabling the election of more candidates of color.