Leading Off
● North Carolina: Just days after releasing their proposals to the public, Republican legislators in North Carolina approved new maps on Wednesday for both the state Senate and state House. Earlier this year, the U.S. Supreme Court had upheld a lower court ruling that struck down 28 of the state’s 170 legislative districts because lawmakers had impermissibly relied on race to draw them, but Republicans simply cross those lines with an equally blatant gerrymander based instead—so they say—on voters’ partisan preferences, all in an effort to preserve their three-fifths supermajorities needed to override Democratic Gov. Roy Cooper's vetoes.
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Since North Carolina's state constitution denies the governor any formal role in the redistricting process, these new maps will come into effect for 2018, pending judicial approval. Consequently, the next chapter in this saga will move back to the courthouse. The plaintiffs in this case will likely argue to the district court hearing the case that the replacement maps still maintain elements of racial gerrymandering, which could be grounds for the court to step in and draw its own plans if it concurs.
Republican legislators executed this same exact charade in 2016 when a different federal court struck down the state’s congressional map—again, for racial gerrymandering. They likewise replaced the invalidated lines with an explicit and unequivocal partisan gerrymander that achieved the exact same partisan end of a lopsided GOP majority in an evenly divided swing state. And for decades, the Supreme Court has refused to strike down maps for excessive reliance on partisanship, meaning these new legislative gerrymanders might yet satisfy the high court if it hears this case again.
However, the Supreme Court’s longstanding refusal to invalidate partisan gerrymanders may be poised to change, thanks to an upcoming case regarding Wisconsin’s state Assembly and a separate lawsuit working its way through the court system alleging North Carolina’s own congressional map constitutes an unconstitutional partisan gerrymander. And a lower federal court recently allowed that latter case to proceed, meaning judges could strike down the GOP’s congressional map yet again before the 2018 elections.
After their congressional map was invalidated last year, Tar Heel Republicans promised loudly and clearly that their new lines were drawn to exact a maximum partisan advantage—seemingly a strange admission, but one designed to defend the revamped districts from charges of racial gerrymandering. This time, perhaps sensing that the Supreme Court might be poised to finally deal a blow to partisan gerrymandering, Republicans have shied away from that level of brazenness with the latest round of legislative redistricting, claiming at times that party preference had little to do with their decisions while, at others, admitting that they did indeed consider partisanship. Regardless, the GOP used the same consultant who drew the invalidated maps to draw replacement districts, leaving little doubt what their true partisan aims were.
Indeed, Republicans took the opportunity of this forced redraw to shore up some of their vulnerable districts, meaning that the replacement gerrymanders could be just as effective at thwarting Democratic gains as the invalidated plans. In one particularly egregious example, Republicans added an oddly shaped appendage to one Fayetteville-area seat to reach out and grab Democratic state Sen. Ben Clark’s second home and graft it on to his current district. By doing so, Republicans are hoping to ensure that Clark won’t challenge the neighboring Republican incumbent who now sits in a swingy seat—where Clark’s home had been located.
Fortunately, Democrats need to pick up just four seats in the House to sustain Cooper's vetoes (conservative Democrat William Brisson often votes with the GOP). And even though Republicans devised these revised gerrymanders to benefit themselves, they could still offer Democrats enough of an opportunity to make the gains they need. Of course, if the district court rejects the GOP's new maps (and perhaps even draws its own), Republicans will almost certainly appeal to the Supreme Court once again in hope of a more favorable outcome.
Adding even further to the complications of this ordeal, the North Carolina Supreme Court held a hearing on Monday over a separate state-level challenge to the original legislative plans. Back in 2015, the justices voted along partisan lines to reject a racial gerrymandering lawsuit, but Democrats have since gained a majority on the court following the 2016 elections. With potentially conflicting rulings in the offing, there's still a long way to go until next year’s election landscape is settled.
Of course, it just wouldn't be North Carolina without Republicans looking for newer ways to engage in undemocratic gerrymandering. Back in June, GOP legislators proposed redrawing the districts used to elect local judges and prosecutors and unveiling maps that would give themselves a substantial boost for those sorts of elections. Now that plan's chief sponsor says the party could revive that proposal in an October special session. In case you hadn't guessed, that bill would also almost certainly face a lawsuit over—what else?—racial gerrymandering.
Redistricting
● Maryland: Republican plaintiffs are suing to invalidate the congressional map that Maryland Democrats drew after the 2010 census as an unconstitutional partisan gerrymander, but the federal court panel hearing the case just declined to issue a preliminary injunction against the current lines conceded that there was substantial evidence of partisan intent in drawing them—which is unsurprising given that former Democratic Gov. Martin O’Malley flat-out admitted Democrats crafted the 6th Congressional District to give themselves an advantage.
The judges instead decided to put the case on hold until the Supreme Court resolves a similar lawsuit against partisan gerrymandering in Wisconsin, which is currently scheduled for an early October hearing and could result in a ruling by early 2018. The claims in the two cases are, however, slightly different. The plaintiffs in Wisconsin are arguing that the entire map is unconstitutional, relying in part on statistical tests to determine how much gerrymandering is too much.
The Maryland plaintiffs, by contrast, are pursuing a First Amendment claim against just a single congressional district, the 6th, based solely on the partisan intent of the mapmakers. However, both are attempting to get the Supreme Court to strike down a partisan gerrymander as unconstitutional for the first time ever, something the court has never done despite previously ruling that such partisan maps could theoretically violate the Constitution.
Even if the Maryland plaintiffs appeal the lower court’s refusal to issue an injunction, the Supreme Court might nevertheless still hold the case at bay until it resolves the lawsuit against Wisconsin’s GOP-drawn Assembly map. If the Supreme Court rules against gerrymandering in Wisconsin, then the Maryland plaintiffs should have a good chance of winning.
● Texas: In mid-August, a three-judge federal district court panel in San Antonio struck down nine of 150 Texas state House districts on the basis that the Republican lawmakers who had drawn the map had engaged in intentionally discriminatory racial gerrymandering. This ruling followed a mere week after these same judges threw out two of the state’s 36 congressional districts for the same reasons. However, just as with the congressional ruling, the court could have gone much further and invalidated more districts that the plaintiffs had challenged.
Republicans passed both the current congressional and state House maps in 2013 after federal courts had blocked their original 2011 gerrymanders from going into effect and instead implemented temporary maps for the 2012 elections. Relatedly, the San Antonio court had also found the original 2011 maps to be intentionally discriminatory in separate rulings earlier in 2017. Consequently, these August rulings mark the third and fourth time this year alone that a federal court has rebuked Texas Republicans for intentionally discriminatory racial gerrymandering—“intentionally” being the key word here.
Republican lawmakers swiftly appealed to the Supreme Court to stay the lower court's ruling, ignoring the district court's directive to quickly call a special session to approve remedial districts. While the Supreme Court’s conservative majority is generally hostile to voting rights, swing Justice Anthony Kennedy has often sided against racial gerrymandering in recent years, so there’s no assurance that the GOP will find relief at the high court. Nevertheless, arch-conservative Justice Samuel Alito unilaterally used his powers to temporarily stay the lower court's order in both the congressional case and the legislative one.
Putting either ruling on hold while the GOP appeals to the Supreme Court could further draw out the process and possibly result in a final ruling that’s issued so late in the election cycle that the justice might not require a new map until after 2018. Litigation over these maps has been ongoing since 2011, and such another delay of justice would only constitute a denial of justice itself, since Republicans have already gotten away with illegal gerrymanders for the first three elections of this decade and could yet make it a fourth.
Republicans hold a dominant 95-55 majority in the state House following the 2016 elections, and even a redraw of these nine districts (and several of their neighbors) won't on its own come close to threatening GOP control over the chamber. However, the repeated findings in these cases that Republicans acted with discriminatory intent—not just to produce a discriminatory effect—could have enormous consequences.
Until a landmark 2013 Supreme Court ruling gutted a critical part of the Voting Rights Act, several predominantly Southern states like Texas with a history of racially discriminatory voting laws had to "preclear" any voting change—no matter how minute—with the Justice Department. The court's 2013 ruling struck down the formula that determined which states were covered by the preclearance requirement, thus ensuring no states would be covered by it. However, a surviving VRA provision allows courts to "bail in" jurisdictions back into the preclearance regime for up to 10 years if they engage in renewed intentional discrimination.
While Attorney General Jeff Sessions, who was once deemed too racist to be a federal judge, will certainly not block new discriminatory voting laws in Texas, a future Democratic presidential administration could. If the courts were to place Texas back under pre-clearance and Donald Trump were to lose re-election to a Democrat in 2020, this renewed scrutiny would come just in time for the next redistricting cycle. That could thwart the worst of the Texas GOP's racial gerrymandering on a swifter timeframe than it takes for regular lawsuits to work their way through the judicial system.
And it’s not just redistricting: Two other rulings this year on Texas’ voters ID laws have also found that Republicans engaged in intentional discrimination, for a total of six such findings in 2017. It remains to be seen whether the ongoing legal battles over voter ID (see our other Texas item below) or racial gerrymandering will be the first to trigger a fight over bail-in, but that battle is all but inevitable at this point.
Ballot Measures
● California: Following the gas-tax increase passed by California’s Democratic-dominated legislature earlier in 2017, Republicans have been trying to recall a vulnerable Democratic state senator to remove the party's two-thirds supermajority needed to pass future tax increases without GOP support. California Democrats had passed a law intended to stymie this recall until it would coincide with the 2018 primary, when higher turnout may be more favorable to the party. However, a state judge put that new law on hold in mid-August. Now, though, Democrats in the legislature have passed a second new law (signed by Gov. Jerry Brown) that attempts to yield the same result by somewhat different means.
Even though organizers appear to have turned in enough signatures to trigger a recall, the new law would give voters a chance to remove their petition signatures. Democrats contend that Republicans tricked voters into signing by making them believe doing so would repeal the gas tax itself, not force a recall election. This new measure also allows regulatory review of the cost of a special election, another stalling tactic. As we've explained before, California's recall system is deeply flawed and ripe for partisan abuse like the GOP is doing, but Democrats really ought to try fixing that broken system itself rather than respond with more gamesmanship.
Voter Registration
● Illinois: On Monday, Republican Gov. Bruce Rauner finally signed an automatic voter registration bill into law after the Democratic-run legislature had unanimously passed the measure this past spring. This marks a major turnaround from 2016, when lock-step Republican opposition thwarted Democrats from overriding Rauner's veto of an earlier automatic registration measure.
This new law will go into effect ahead of the 2018 elections, where an unpopular Rauner risks losing to a Democratic challenger in this blue state. An analysis from the think tank Demos predicted the law could register over half of the roughly 2.2 million unregistered eligible citizens in Illinois. The new system will automatically sign up every eligible voter who does business with the state Department of Motor Vehicles unless they opt out up front. It also covers other state agencies, which is critical because many citizens who don't drive would never have reason interact with the DMV.
This version differs from the bill that Rauner vetoed by taking more steps to screen out potential non-citizens. Unlike Oregon, which already documents citizenship status for driver's license applications, the Illinois DMV doesn't have such records, meaning the state could accidentally sign up non-citizens. Voters will now have to affirm their eligibility up front instead of relying on election officials to do it for them afterward. Importantly, this affirmation of eligibility won't require an additional signature beyond what registrants already provide for a driver’s license or ID application, which should help minimize the risk of intimidating potential applicants.
Illinois is thus potentially the most consequential state to pass automatic registration given its large population and the fact that Rauner is the first Republican governor to approve the policy. (GOP governors in Nevada and New Jersey have vetoed Democratic-backed proposals.) With Alaska, California, Connecticut, Oregon, Rhode Island, Vermont, West Virginia, and Washington, D.C. having also passed automatic registration, it's now law in roughly one fifth of the country.
Although it differs from Oregon's system of providing an opt-out after the fact instead of up front, Illinois' automatic registration regime is consistent with that adopted by other states and could bring over 1 million new voters onto the rolls. If that happens, this measure could serve as a model for winning bipartisan support for a reform that simply shouldn't have to be partisan in the first place.
Voter Suppression
● Indiana: Following on the heels of its ongoing lawsuits against Indiana Republicans for suppressing early voters and slashing the number of polling places in heavily black and Latino parts of one of the state’s biggest Democratic counties, the NAACP has joined with the League of Women Voters to once again sue Republican officials for attempting to restrict access to voting in the Hoosier State. This latest suit argues that the GOP's mass purges of voter registration rolls violates the 1993 National Voter Registration Act, more commonly known as the Motor Voter law, which ostensibly prevents states from removing voters from the rolls improperly or without warning.
Indiana Republicans adopted the Interstate Voter Registration Crosscheck database system promoted by Kansas Secretary of State Kris Kobach, who leads Trump's "Election Integrity" commission and is notorious for concocting bogus voter fraud claims to justify voting restrictions. One expert analysis found that using Crosscheck to seek out voters who might be improperly registered in multiple states could result in a false-positive rate of over 99 percent because it only compares first names, last names, and birthdates, which many people undoubtedly share in a country with over 200 million voters.
Secretary of State Connie Lawson, a Republican, announced back in April that her office had purged roughly 10 percent of the entire state's registered voters since the 2016 elections, and a June report by the federal Election Assistance Commission further found that Republicans had purged 22 percent of Hoosier voters between 2012 and 2014. This new lawsuit argues that Crosscheck's false positives are racially discriminatory because of their disproportionate impact on groups like African Americans, and it seeks to prevent Republicans from conducting further similar purges.
● New Hampshire: Granite State Republicans took full control of New Hampshire’s state government for the first time in over decade and quickly passed a new law earlier this year that imposes new residency restrictions on voter registration—a thinly veiled effort to make it more difficult for Democratic-leaning demographics like college students and transient young adults to vote. Now, the state chapter of the League of Women Voters and a handful of New Hampshire voters are suing to block implementation of the law, while the state Democratic Party also recently launched its own lawsuit, both of which are in state court.
As we've previously noted, the requirement that voters present documentary evidence that their residence is their primary living place and that they plan to remain in the state long-term could violate past federal and state court rulings. A 1979 U.S. Supreme Court decision grants college students the right to vote either at their campus residence or their permanent home address, while a 2015 New Hampshire Supreme Court ruling invalidated the GOP's last attempt to tighten residency requirements following the 2010 midterms, so this latest effort at voter suppression could (and hopefully will) meet the same fate.
● Texas: In late August, a federal district court judge dealt a major blow to Texas Republicans' voter ID law by striking down the law in its entirety on the grounds that it was intentionally discriminatory against black and Latino voters. The legal battle over what was initially the strictest voter ID law in the country has been raging for years, but this ruling is far from the end: Republican lawmakers will appeal to the Supreme Court, where a conservative majority has thus far allowed voter ID laws to flourish.
Nevertheless, this outcome is a critical victory for voting rights in Texas. Republicans were only able to pass their strict voter ID law after the Supreme Court eviscerated a key provision of the Voting Rights Act in 2013 that we described above in our Texas redistricting item. In 2016, the Fifth Circuit Court of Appeals struck down the original law and forced Texas to "soften" its requirements, but it directed the lower court to re-evaluate whether the original law has been passed with discriminatory intent.
That same district court held back in April that the original voter ID law was indeed intentionally discriminatory, and this most recent ruling maintains that this malign intent perpetuated even after GOP lawmakers passed a revised voter ID law earlier in 2017 that made those court-ordered "softening" measures permanent. If this ruling survives appeal, it would invalidate Texas' voter ID law in its entirety for the 2018 elections.
Meanwhile, the Fifth Circuit also recently struck down another state law that limited the use of language interpreters to assist voters as violating the VRA, although that court did not issue a finding of intentional discrimination. This invalidated GOP-backed law had barred anyone from translating on a voter’s behalf unless the interpreter was also registered to vote in the same county as the person whom they were assisting. This flew in the face of VRA requirements that voters who are disabled or need language assistance can choose any person other than an employer or union leader to help them cast a ballot.
