● New Hampshire: Granite State Republicans won full control over New Hampshire's state government in 2016 for the first time in over a decade, and as voting rights expert Zachary Roth recently detailed in a compelling exposé, the state GOP has used that newfound power to engage in an all-out assault on the right to vote among Democratic-leaning demographics such as college students, young adults, and low-income voters.
They’ve also gotten rhetorical reinforcement from outside the state. Kansas Secretary of State Kris Kobach, who leads Donald Trump's phony commission on voter fraud, even recently authored an article for the far-right white-supremacist site Breitbart making the absurd argument that roughly 5,000 New Hampshire voters must have cast ballot improperly because they registered with an out-of-state ID and hadn't obtained a New Hampshire driver's license as of August. This claim willfully ignores the fact that the requirements for registering a car and registering to vote are completely different, and that many college students have no reason to obtain an in-state ID, especially if they don't have a car at school. Using this bogus stat, Kobach claimed that illegal votes cost both Trump and GOP Sen. Kelly Ayotte victory in their close defeats in 2016.
Kobach's lies aren't happening in a vacuum but are part of a well-orchestrated effort to build a rationale for measures to prevent students and other Democratic-leaning demographics from voting. Back in July, New Hampshire Republicans passed into law a new measure that imposes additional residency restrictions for voter registration by requiring that voters provide documentation that their "domicile" for registration purposes is their primary place of residence, not just that they have a legal residence in the state.
These documents are particularly difficult to obtain for college students, those who recently moved, and the homeless. The law also threatens a $5,000 fine for any failure to provide these documents in a timely manner if voters don’t have them when they cast a ballot, and it further authorizes local government officials to visit voters' homes to verify their residency.
Although Republicans have never offered any evidence of illegal votes cast by those from out of state, they claim that this new law is needed to combat the mere perception of fraud. This claim is remarkably cynical since this is a perception they themselves have spent years fueling, and even though such voter restrictions haven't been shown to minimize perceptions of fraud. This law's true purpose is to intimidate those who don't fully understand its convoluted requirements and fear a hefty financial penalty, and to prohibit eligible voters from casting ballots if they lack access to these onerous documents, primarily burdening students since they move frequently. Most importantly, the law takes an ax to same-day registration without repealing it outright.
New Hampshire is one of a handful of states that is currently exempt from the federal 1993 National Voter Registration Act—known as the Motor Voter law—primarily because it allows same-day registration, meaning voters can both newly register to vote and cast ballots on Election Day. New GOP Gov. Chris Sununu proposed eliminating same-day registration altogether shortly after his election in 2016 but backed down because doing so would trigger the oversight of the Motor Voter law.
Instead, the law Republicans did pass will undermine same-day registration because forcing voters to provide all that extra documentation and requiring officials to verify it could add several extra minutes for each voter to cast a ballot. Start multiplying that by dozens or hundreds of times and you’ll easily wind up with much longer voting lines, which have been shown to discourage participation.
Roughly 11 percent of all New Hampshire voters used same-day registration, but that figure is even higher in places with large concentrations of college students and new residents, which tend to lean more Democratic. Longer voting lines will therefore have a disparate impact on Democratic-leaning areas while sparing more Republican-favoring ones, and that’s no accident. Given this swing state's penchant for close races—Hillary Clinton won New Hampshire by just 2,736 votes and Democratic Sen. Maggie Hassan beat Ayotte by 1,017 votes in 2016—even suppressing just a few thousand Democratic voters could have enormous consequences.
Unfortunately, one of the state's top "Democrats" has enthusiastically supported these new voter residency restrictions. Secretary of State Bill Gardner has been reappointed by legislative majorities from both parties for four decades, making him the longest-serving state election official in America. He eagerly backed the new residency law and had previously implemented Kobach's embarrassingly flawed Crosscheck system for finding multiple voter registrations across states, a system that one analysis estimated would disenfranchise 200 valid voters for every invalid vote it prevented.
Gardner is also the most prominent Democrat—at least in name—on Kobach's voter suppression commission, and he has used that role to lend a false veneer of bipartisanship to an effort whose sole purpose is to gin up a bogus rationale to impose new federal voting restrictions that would benefit Republicans. Gardner astonishingly even tried to cajole one highly respected election expert into testifying that voter turnout was solely a reflection voters' choice, ignoring the huge role that election laws play in affecting turnout. Top New Hampshire Democrats have finally begun calling on Gardner to resign from the commission, but he has so far refused to do so, and the damage may already be done.
New Hampshire Democrats had no power to block this new law either legislatively or at the ballot box, so they've instead turned to the judicial system for reprieve. The U.S. Supreme Court guaranteed resident college students the right to vote at school in a 1979 ruling called Symm v. United States, but Granite State Republicans have long been trying to find ways around that decision.
Democrats and voting rights advocates have consequently sued in state court under the New Hampshire constitution, and precedent may be on their side. Republicans overrode a previous Democratic governor's veto in 2012 to pass a law requiring voter registrants to swear they met the stricter residency requirements needed to register a car, even though doing so is obviously not necessary to vote. The lower courts quickly blocked that law, and the state Supreme Court struck it down in 2015. It remains to be seen whether the courts will do the same this time, but hopefully they will.
● Texas: In late August, a federal district court threw out Texas' voter ID law in its entirety on the grounds that it intentionally discriminated against black and Latino voters. However, a three-judge panel on the notoriously conservative Fifth Circuit Court of Appeals ruled two to one along ideological lines to stay the lower court ruling pending appeal, leaving in place the revised voter ID law that Texas Republicans passed earlier in 2017.
This marks the second time that district court Judge Nelva Gonzales Ramos has invalidated a Texas GOP-backed voter ID law for intentional discrimination only for the Fifth Circuit to block her ruling; Ramos also struck down the state’s original (and even stricter) voter ID law in 2014. The Fifth Circuit later invalidated that same law in its own 2016 ruling, but it notably only required that the law be "softened" rather than thrown out entirely, because it found only a discriminatory effect and not intent.
Last year, the Fifth Circuit ordered Ramos to reconsider her finding of intentional discrimination, which she reaffirmed in April. However, Republicans made those "softening" measures permanent in May, meaning that original strict voter ID law was no longer in effect. It took until August for Ramos to once again rule that the new law was also intentionally discriminatory, which would have eliminated the voter ID requirement entirely for 2017 local elections and beyond if the appellate court hadn't stepped in. Following the three-judge panel’s most recent ruling, the plaintiffs consequently asked the full Fifth Circuit to block enforcement of the voter ID law on Friday.
Unfortunately, this case seems destined to head to the Supreme Court. The high court’s conservative majority has generally upheld voter ID laws in the past, so there’s a significant chance that the justices could reinstate the modified version of Texas’ voter ID law that Republicans passed earlier this year—in spite of Ramos’ finding that the law was intentionally discriminatory.
● Alabama: An unusual voting rights lawsuit over the way Alabama elects its top state judges survived a key initial hurdle in late August when a federal district court judge rejected a GOP-backed motion to dismiss the case. The Alabama NAACP and the Lawyers' Committee for Civil Rights Under the Law had sued Alabama and Republican Secretary of State John Merrill for violating the Voting Rights Act by electing all 19 of the state’s judges for its Supreme Court, Court of Criminal Appeals, and Court of Civil Appeals on a statewide basis, arguing that this at-large election system dilutes black voting strength compared to divvying up the state into separate districts.
Indeed, at-large elections were a longtime strategy of white supremacists used to suppress the power of black voters during Jim Crow and in the years following the 1965 Voting Rights Act. However, subsequent amendments to the VRA and a series of court cases have all but eliminated their presence in legislative and congressional races, and a growing number of localities have faced and lost VRA lawsuits over at-large city council districts in more recent years. However, federal courts have rarely used the VRA in regard to judicial elections, in part because only a handful of states still elect all their judges at-large on partisan ballots like Alabama does.
Nonetheless, if the use of at-large elections is going to be discriminatory anywhere, it's going to be in Alabama. Despite having an electorate that is roughly one-fourth black, Alabama has only twice ever elected black candidates to its Supreme Court (both of whom were first appointed to their seats), and none ever to the two intermediary courts. This could easily be different with the use of districts, since Alabama's own state Board of Education has two heavily black districts out of eight, giving black members a proportionate share of those seats.
Race and party overlap in Alabama more strongly than in the vast majority of states: Almost all black voters support the Democratic Party, while an extremely high proportion of white voters are Republicans. Consequently, a victory for plaintiffs would give Democrats the chance to rejoin Alabama’s highest courts for the first time in years—hence the GOP’s opposition to this suit.
Should the plaintiffs prevail, it seems likely that the Supreme Court itself could take up the case and set a precedent that could apply in other states with similar judicial elections, particularly in populous Texas. If they lose in court, though, Republicans could simply do an end-run by eliminating judicial elections entirely and instead allowing, say, the governor to issue appointments—thus keeping the bench firmly in GOP hands.
● Colorado: A bipartisan reform group called Fair Districts Colorado has taken initial steps toward getting three separate initiatives on the 2018 ballot that would reform Colorado's process of congressional and state legislative redistricting. Under the current system, the legislature is responsible for drawing new congressional maps each decade, which the governor can sign or veto. Meanwhile, a bipartisan commission handles legislative redistricting, but the party that controls the governorship can often effectively determine the tie-breaking member on the commission.
Since Colorado had a divided government during the most recent round of redistricting following the 2010 census, a court implemented a nonpartisan congressional map, but Democrats were able to secure a modest gerrymander of the legislature to favor themselves. However, that small Democratic advantage still pales in comparison to most other partisan gerrymanders elsewhere (most of which were drawn by Republican legislatures), and the GOP has managed to hold the state Senate since 2014.
Colorado's status as a swing state means that either party could gain total control over redistricting after 2020 and draw its own gerrymanders, although the Centennial State's blue trend makes it more likely that it’d be Democrats rather than Republicans in charge. Nevertheless, the new reform effort has earned the support of former governors from both parties, Democrat Dick Lamm and Republican Bill Owens, as well as the nonpartisan League of Women Voters, which has been a key player in successful redistricting reform ballot initiatives and lawsuits in other states.
Reformers' first challenge will be getting on the ballot, which won't necessarily be easy. A previous redistricting reform attempt tried and failed to make it onto the ballot in 2016 after the state Supreme Court ruled it violated state law by covering more than a single subject. Consequently, activists are now pushing forward with three separate measures: One will create a commission for the congressional process, another implements a requirement that districts be politically competitive, and a third reforms the existing legislative commission. Only the third measure amends the state constitution, meaning it requires a higher number of signatures to reach the ballot.
There’s another hurdle as well: Colorado voters passed a 2016 ballot initiative that itself imposed new restrictions on the initiative process by requiring signatures from all 35 Senate districts and that all such measures can only become law if they achieve a 55 percent supermajority at the ballot box. Redistricting reform ballot initiatives have met with success over the past several years in states like California and Florida, but they’ve also failed repeatedly where well-funded opponents have turned them into partisan contests in states like Ohio, meaning activists still have a long way to go in order to succeed.
● Maine: The Pine Tree State's legal drama over a 2016 ballot initiative establishing instant-runoff voting is far from resolved, and legislators are now eyeing a late October special session to decide what to do with the law before implementation is supposed to begin with next year’s primaries. The state Supreme Court ruled in a non-binding opinion earlier in 2017 that the reform violates the state constitution for state-level general elections, but it appears that instant-runoff could indeed be used for primaries and for federal elections.
The law is still slated for full implementation, but it’s almost guaranteed to face a lawsuit and a binding court ruling if it remains on the books unchanged. The GOP-majority state Senate passed a full repeal bill in June, while the Democratic-run state House passed a measure that would merely suspend the invalid parts of the law until the passage of a constitutional amendment that would make them kosher (known as a “trigger”) while leaving the constitutional parts in place. But neither party reached an agreement to reconcile their opposing bills, leaving the status quo unchanged.
It remains unclear whether legislators have altered their positions and are willing reach some sort of compromise, but one independent state representative introduced a bill in July with the "trigger" provision in order to avoid lawsuits. Maine has a major gubernatorial contest looming in 2018 to replace term-limited GOP Gov. Paul LePage, and both parties have primaries that could become crowded and acrimonious. Instant-runoff or its repeal could dramatically alter the dynamics of each race, meaning legislators have more than just the fear of a lawsuit to induce them to act in any upcoming special election.