Leading Off
● Texas: In a major blow to voting rights, the Supreme Court ruled five-to-four along ideological lines on Tuesday to stay two recent lower court rulings that had ordered Texas Republicans to redraw their congressional and state House districts. Earlier this year, a panel of district court judges found that GOP lawmakers had intentionally discriminated against black and Latino voters in coming up with these maps, rendering them unconstitutional. But the high court’s conservative majority has now put the orders to draw new maps on hold while it considers appeals by Republicans, which could mean there won’t be a final decision until next June—and too little time to redraw the maps for 2018.
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This latest delay—when new maps were almost finally in sight—is particularly infuriating, since lawsuits over these districts have been ongoing for six years, and lower courts have ruled four times this year alone that these lines not only discriminated against black and Latino voters but were intentionally crafted to do so. But thanks to the very slow gears of justice and a conservative Supreme Court majority that is hostile to the very notion of voting rights, we may not get redrawn districts until the 2020 elections.
And that’s only if the plaintiffs prevail on the merits: The Supreme Court could turn back their complaint entirely. But even if plaintiffs eventually succeed, the lower court's orders to draw a few more black and Latino districts still fell short of what the plaintiffs argued for and what Daily Kos Elections has demonstrated was possible. Most importantly, Republicans will have gotten away with illegal gerrymandering for four out of the decade’s five election cycles. After 2020, the decennial census will require new lines anyway—and will give the GOP yet another chance to draw lines to suit itself.
But no matter the outcome, Republicans have benefitted hugely. They'll continue to draw illegal, intentionally racist gerrymanders when they can count on the glacial pace of litigation and the taxpayers financing their defense to guarantee they get to use those maps for multiple election cycles. These cases demonstrate why it’s critical to restore the Voting Rights Act’s oversight provisions so that the Justice Department under a future Democratic president can block these discriminatory maps from going into effect without resorting to years of citizen lawsuits after the fact.
This Supreme Court order proves an old maxim correct: Justice delayed is justice denied.
Redistricting
● Court Cases: Amazingly, even though we’re most of the way through the decade, there are quite a few redistricting cases still working their way through the courts, like the Texas cases we discuss just above. Helpfully, New York University School of Law's Brennan Center for Justice has published a calendar worth bookmarking with the dates of all key court proceedings that are set to take place in redistricting lawsuits for the remainder of 2017. The Brennan Center has also been keeping an updated list of all those outstanding cases, which we’ve frequently written about in the Voting Rights Roundup.
Below we’ve listed each of the outstanding cases, with links to our most recent coverage of each one. All of these maps were drawn to favor Republicans except for Maryland's congressional map and Virginia's state Senate, which were drawn to favor Democrats. In parentheses, we’ve also included the chief legal argument against the maps in question.
The ongoing congressional and state House racial gerrymandering challenges in Texas will likely be added to the Brennan Center's calendar once new dates are set. Dates have also yet to be set in Alabama's partisan gerrymandering litigation, where the court still has to review the maps that Republicans passed to replace invalidated districts earlier in 2017. And as a final note, North Carolina faces multiple cases over racial gerrymandering that are proceeding separately in both federal and state court.
● Maryland: In late August, a federal district court panel hearing a partisan gerrymandering lawsuit against Maryland's Democratic-drawn congressional map declined to issue a preliminary injunction against the map's usage in 2018. They instead put the case on hold while the Supreme Court hears arguments in October in a separate partisan gerrymandering case regarding Wisconsin.
Plaintiffs in Maryland consequently appealed to the high court to expedite their case, whose arguments have some key differences from those of the Wisconsin plaintiffs, though both seek to have the Supreme Court strike down a map for unconstitutional partisan gerrymandering for the first time. However, on Wednesday, the Supreme Court denied their request to expedite the case, meaning the lawsuit won't proceed until after the justices issue their Wisconsin ruling, which may not happen until March of 2018. This delay could make it even less likely that the courts require a new map in Maryland for next years’ midterms even if the plaintiffs ultimately prevail.
Voter Suppression
● New Hampshire: On Tuesday, a state judge blocked key provisions of the New Hampshire GOP's latest voter suppression scheme. Earlier in 2017, Republican legislators imposed stricter residency requirements by requiring that voters provide additional documentation showing that their "domicile" for registration purposes is their primary place of residence. The law also threatened a $5,000 fine and up to a year in prison if voters didn't provide these documents upon registration or soon thereafter. The judge granted a temporary restraining order against these penalties (though not the entire law) for unduly burdening the right to vote by intimidating would-be registrants.
This ruling is a major victory against a nefarious law whose sole intent is to make voting more difficult and intimidating for college students, transient young adults, and low-income voters, all of whom tend to lean Democratic. Republicans have claimed that this law is needed to prevent ineligible voters from out of state from casting a ballot, but there is no evidence that this is even happening, let alone that it's a serious enough problem that outweighs the risk of disenfranchising eligible voters.
Although the judge did not block the full law, these penalties were its teeth, and defanging them could lessen much of its potential to suppress votes via intimidation. This ruling will likely be appealed, but fortunately, New Hampshire’s Supreme Court rejected a similar GOP effort to impose tighter residency restrictions in 2015, meaning there's a decent chance the plaintiffs will ultimately prevail.
● North Carolina: Back in June, a state district court panel unanimously dismissed Democratic Gov. Roy Cooper's lawsuit against the Republican-dominated legislature over its new law that removes Democratic majorities from every state and county elections board, citing a lack of jurisdiction to hear the case. In early September, the state Supreme Court ordered the lower court to provide further reasoning for its decision, and in an unusual move, also asked the district court judges to explain what decision they would have made if they had thought they did have jurisdiction.
Republican legislators passed this law right before Cooper took office in an effort to prevent new Democratic majorities from rolling back past GOP voter suppression efforts under former Republican Gov. Pat McCrory, since the governor's party had controlled a majority on the boards under state law. After their first attempt was found to violate the state constitution's separation of powers, the GOP passed a second version that left the appointment of such boards in the hands of the governor but required him to nominate an equal number of members from both parties, giving Republicans veto power over board decisions.
Democrats hold a majority on North Carolina's Supreme Court, but the lower court's ruling crossed party lines, so there was no expectation that the high court would automatically split by party in favor of the governor. However, this recent order suggests the Supreme Court may ultimately end up reversing the lower court's ruling and invalidating part or even all of the new law. The lower court has until the end of October to respond.
● Texas: The Lone Star State has a 30-year-old statute on the books requiring high schools to hand out voter registration forms to eligible students, but a new report from the Texas Civil Rights Project and the Lawyers' Committee for Civil Rights Under Law finds that it has gone almost entirely unenforced under Texas's solidly Republican state government. Just 14 percent of public schools and an astonishing zero percent of private schools had requested registration forms from the secretary of state over the past four years, for a total of just 6 percent of schools overall.
Registering voters at an earlier age has been shown to boost subsequent turnout rates for young adults, since voting is a habit-forming behavior for many. Texas already has one of the lowest youth turnout rates, and TCRP and the Lawyers' Committee have refused to rule out a lawsuit over the lack of enforcement.
● Voter Suppression Commission: Trump's "Election Integrity" commission took its road show to New Hampshire on Tuesday, where Vice Chair Kris Kobach, who nominally serves as Kansas’s secretary of state, continued to lay the groundwork for a future pretext for federal voting restrictions. With a parade of testimony strictly from white men, and frequent commentary from the panel’s Republican members, the commission relied on faulty data to paint a picture of rampant fraud despite a lack of any concrete evidence.
Although the commission claims it has no preconceived notions, a damning email recently came to light demonstrating that the commission's true intent is nothing more than a partisan fishing expedition. In the email, commissioner Hans von Spakovsky, who works for the conservative Heritage Foundation think tank and was once the George W. Bush-era Justice Department's "point person" on voter suppression, had pushed Attorney General Jeff Sessions to exclude Democrats and "mainstream Republican officials" from the commission entirely. Von Spakovsky denied sending the email, but the Heritage Foundation confirmed he had done so.
The Democratic commission members, the most prominent of whom is New Hampshire Secretary of State Bill Gardner, vigorously pushed back against Kobach and the GOP's assertions of fraud during Tuesday's meeting. However, Gardner and other Democratic commissioners still refuse to resign despite calls from top national and state Democrats to do so and for the commission to be disbanded, meaning this commission's charade of bipartisanship will continue.
Election Security
● Virginia: With just two months to go until this fall's state elections, Virginia's State Board of Elections recently voted to ban the use of all touch-screen voting machines that don't provide any sort of paper trail. Fortunately, many Virginia localities had already been transitioning away from touch screens over the last few years, following a similar decision by the board back in 2015 that decertified the WINVote brand of devices, which were widely considered fatally vulnerable to hacking.
As a result, most cities and counties have already switched to an optical scan system, where a voter fills out a paper ballot before feeding it into a machine reader, and now the few jurisdictions that had still been using touch screens will have to join them. Although this late move could strain limited city and county budgets so close to Election Day, board members felt that such concerns simply did not outweigh the risk of someone tampering with the machines themselves.
