Leading Off
● Voter Suppression Commission: In an unexpected development, Donald Trump officially dissolved his bogus "Election Integrity Commission" this week. Predicated upon Trump's lie that there were millions of illegal voters who cost him a popular vote victory in 2016, this commission was formed as a blatant partisan witch hunt designed to concoct support for the notion that voter fraud is rampant in America, despite all valid evidence concluding that such fraud is borderline non-existent.
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Under a false veneer of bipartisanship, the commission was designed to produce preordained findings that Kansas' Republican Secretary of State Kris Kobach, who led the panel, wanted to use as a pretext to introduce new federal voting restrictions. These measures would have entailed requiring proof of citizenship for registering to vote and conducting mass purges of the voter rolls, both of which would have severely burdened many voters for the partisan benefit of Republicans.
However, public officials and civil rights groups had another thing in mind. When the commission asked every state to send it their voter registration records, many officials from both parties balked; Mississippi's Republican secretary of state even told Kobach he could "go jump in the Gulf of Mexico." Concerns over privacy, federalism, and the violation of federal laws resulted in the commission facing no fewer than 15 lawsuits. Indeed, Maine Secretary of State Matt Dunlap, who served as one of the token Democrats on the commission, won a lawsuit of his own over the GOP commissioners’ refusal to share data with him shortly before the commission’s demise.
This widespread opposition appears to have ultimately ground the commission's proceedings to a halt, leading Trump to finally put an end to this attempt to discredit the integrity of American democracy. This development is a major victory for voting rights, but the danger is far from over. Indeed, Kobach has said that the commission's work would shift to the purview of the Department of Homeland Security and its Immigration and Customs Enforcement agency, which have ominously been at the forefront of Trump's effort to impose white nationalism on America.
Kobach has long crusaded for suppressive voting laws under the guise of rooting out non-citizen voters and eliminating fraud. He ushered through a Kansas law that required proof-of-citizenship for voter registration, even though his own investigations have found non-citizen voting is all but unheard of. The law's real impact was to suspend one in seven new voter registrations, disproportionately preventing young people from voting—a Democratic-leaning demographic. This law also destroyed the ability to conduct voter registration drives, but fortunately a court temporarily suspended its use ahead of the 2016 elections amid a lawsuit that argues it violates federal law (see our Kansas item below).
Kobach himself was forced to reveal that the commission was simply a pretext for voter suppression when a court ordered him to hand over the very documents he was seen holding in the image at the top of this story. Kobach shared those documents with Trump in a meeting held almost immediately after the 2016 elections and months before the commission was formed. And indeed, they contained plans for amending the National Voter Registration Act (better known as the Motor Voter law) to enable state proof-of-citizenship requirements— the very same law that is currently being used to fight Kansas’ proof-of-citizenship requirement.
While the commission will no longer be able to pretend to have reached objective findings that would serve as grounds for the Republican-controlled Congress to amend the NVRA, the reported shifting of its work to the Department of Homeland Security and specifically to its Immigration and Customs Enforcement agency is deeply troubling. Kobach claims ICE would compare state voter registration databases with federal immigration records to detect non-citizen registrants. However, even the DHS itself has warned that the two sets of data are simply incompatible for this purpose, in large part because immigration records aren't immediately updated when new citizens become naturalized. Proceeding in spite of this huge problem could therefore lead to countless false positives for every potential non-citizen registration found.
Furthermore, DHS simply does not have any standing role in combating voter fraud; rather, its expertise lies in assisting states with election security like protecting their voting system from hacking. More worrisome is that ICE under the Trump administration has been let loose to engage in authoritarian abuses of power to persecute people of color and terrorize undocumented communities, often wrongly targeting people who are in the U.S. with authorization. ICE already has the power to deport non-citizens who try to vote and has in fact exercised that power; asking the agency to unleash itself on thousands of false positives could yield a nightmare of terror and intimidation for many Americans who have broken no laws.
Fortunately, the very same vociferous opposition to the commission's activities shows no sign of abating now that Kobach plans to shift its mission to DHS. And after lawsuits ground the commission's witch hunt to a halt, it's almost certain the DHS and ICE taking over its work will lead to a new round of intense legal action to protect Americans' civil and voting rights.
Redistricting
● Michigan: Michigan is the latest state to give rise to a new federal court challenge against partisan gerrymandering after Democrats and the nonpartisan League of Women Voters filed a suit arguing that Republicans violated First and 14th Amendments by drawing congressional and state legislative districts that discriminated against Democratic voters. No state more frequently sees Republicans win legislative majorities despite losing the statewide popular vote to Democratic candidates, and ending gerrymandering in this key swing state could mean a much fairer partisan outcome compared to the popular vote.
Unfortunately, this lawsuit will likely proceed too slowly to reach a resolution in time for the 2018 elections. However, if the U.S. Supreme Court places limits on partisan gerrymandering in two upcoming landmark cases this term, the lower court could use such precedents to strike down the GOP's gerrymanders in Michigan in time for the 2020 elections.
Reformers also recently submitted signatures to put an initiative on Michigan's 2018 ballot to create an independent redistricting commission. If that measure makes the ballot and passes—or if Democrats win this year's gubernatorial contest and gain veto power over future maps—GOP legislators would be unable to draw new replacement gerrymanders in the event that the courts strike down the current lines ahead of 2020, forcing either the court or the commission itself to come up with new nonpartisan lines. Of course, that's a whole lot of "ifs," so we're still a long way from knowing whether GOP gerrymandering in Michigan will survive for years to come.
● Oklahoma: Oklahoma often doesn't spring to mind when talking about the ills of partisan gerrymandering, but redistricting reformers have it in their sights as the latest state that could vote on a 2018 ballot measure to end the practice. A new nonpartisan group called Represent Oklahoma has formed to try to amend Oklahoma's constitution with a proposal to create a redistricting commission. The initiative would need to obtain nearly 124,000 valid signatures within 90 days once the state approves the proposed ballot language.
Oklahoma currently gives the legislature a first crack at drawing the lines, and Republicans gained control over the process after the 2010 census, using it to gerrymander the legislative lines in particular. The Sooner State is one of the reddest in the country, so ending Republican gerrymandering likely wouldn't change things much at the congressional level anytime soon. But it could make a pivotal difference for helping Democrats break the GOP's veto-proof legislative majorities in the event that a Democrat reclaims the governor's office (which the party in fact held from 2003 through 2011).
The proposed criteria for nonpartisan districts include protecting communities of interest, promoting compactness, and banning attempts to favor or disfavor a particular party or candidate. It would also prohibit elected officials from serving on the commission, though the proposal doesn't yet detail how commissioners would be selected. The commission would consist of an equal number of members from each party that has official ballot access in the state. Oddly, this would currently entail an equal number of seats for Democrats, Republicans, and Libertarians, yet no independents. However, a majority of each party's members would still be required to pass a map, giving Democrats veto power.
Similarly to other potential ballot initiatives to end gerrymandering in other states, this campaign will have to overcome some tough obstacles to prevail. It will have to raise enough funds to ensure it can both get onto the ballot and get its message out if the measure goes before the voters. Republicans will almost certainly spend plenty of money to wage a vigorous campaign against it, too. But in an age when voters are increasingly fed up with our political system, success might be possible.
● Pennsylvania: In late December, a judge on Pennsylvania's appellate-level Commonwealth Court issued his finding of facts and recommendations in a key lawsuit arguing that partisan gerrymandering by Republicans should render the state’s congressional map unconstitutional. The judge, a Republican, recommended upholding the map because he argued plaintiffs had not proposed a "judicially manageable standard" to decide when partisanship crosses the line into a constitutional harm. However, the judge critically held that Republican legislators did indeed intentionally try to obtain a partisan advantage when drawing the map.
This particular finding of fact is likely more important than the lower court's recommendation regarding the map itself, because the case will now go to the state Supreme Court, which has set oral arguments for Jan. 17 in order to resolve the case in time for the 2018 elections. The state's high court has a Democratic majority that may be more open to adopting a proposed standard for assessing when partisan gerrymandering crosses the line, but it could have been hamstrung if the lower court had issued a more limited decision finding partisan intent wasn't manifestly present. Confirming that the GOP acted with partisan intent will almost certainly be an indispensable ingredient for a plaintiff victory.
As we have previously explained, the high court's Democratic majority is by no means a guarantee that the plaintiffs will prevail against this GOP gerrymander, but it gives them a fighting chance. If they succeed in striking down the map, Democratic Gov. Tom Wolf could veto any replacement gerrymander put forth by Republican legislators, forcing the court itself to draw nonpartisan lines. And because this lawsuit is solely reliant the state constitution, the conservative majority on the U.S. Supreme Court would have very little latitude to override the state court. If the plaintiffs prevail, a nonpartisan congressional map could give Pennsylvania a far fairer partisan balance in its congressional delegation and make a pivotal difference in Democratic chances of winning the House in 2018.
● 2020 Census: In late December, the Trump administration’s Justice Department asked the Census Bureau to include a question on the 2020 census asking whether respondents are citizens. Including this question might seem like an innocuous way to obtain important demographic data, but it actually has dangerous implications for the accuracy of the census, and subsequently the fairness of congressional reapportionment and redistricting based upon the census itself.
According to the Constitution, the census must try to count literally every single person in the United States, regardless of whether or not they are a citizen or even authorized to be here. Including a citizenship question could have a chilling effect on the ability of the census to count undocumented immigrants, while it could also deter even those with legal status from participating for fear of wrongful deportation. Consequently, including this question could lead to a dramatic undercounting of Latinos and Asian-Americans in particular. That would subsequently give places with large Asian or Latino populations far less representation than they rightfully deserve in a system where officeholders are supposed to represent all of their constituents, not just those who may be citizens.
What’s more, since these two groups lean disproportionately Democratic, such an undercount would ultimately deny Democrats political power by shifting districts away from dark-blue cities like Dallas, Houston, Los Angeles, New York, and but also from more rural areas like South Texas. In return, it would give rural white areas—which lean heavily Republican—outsized representation.
For this reason, it's deeply concerning that the Justice Department, which has no relevant role in this aspect of the census, is pushing to include this question. It’s all too easy to believe that motivation behind this push comes from the same wellspring that has seen the department support partisan voter suppression efforts ever since Jeff Sessions became attorney general.
Even more dangerously, asking a question about citizenship could give legislators grounds to ignore non-citizens by drawing districts based only on citizen population instead of total population. Doing so would even further exacerbate the underrepresentation of groups like Latinos, who often cluster in cities like Houston and have a far larger proportion of non-citizens than non-Latino demographic groups. Such a shift would also disadvantage Democrats for the same reasons that undercounting the overall population itself would.
Back in 2016, the Supreme Court unanimously ruled that states couldn't be forced to use only citizenship when drawing districts, in part because the census doesn't ask the question. But including a citizenship question could open the door for states to be allowed to draw districts based on citizenship, something the court didn't expressly forbid.
Asking citizenship on the census needlessly introduces intimidation that skews our demographic understanding of the American population. It's also simply unnecessary, because the census conducts a large-scale, annual survey called the American Community Survey that statistically samples the population, and these studies include a question about citizenship. The Trump administration's push to include a citizenship question, and its desire to appoint an ultra-partisan Republican with no administrative experience to run the census, demonstrates a disturbing effort to manipulate the census for undemocratically partisan ends.
Voter Suppression
● Kansas: A federal judge has denied a motion by plaintiffs for summary judgment in the litigation against a Kansas law requiring proof of citizenship for voter registration, meaning the case will now proceed to trial in March. Republican Secretary of State Kris Kobach has long championed this policy in his crusade to suppress voters, but fortunately, the courts had already blocked this law from remaining in effect ahead of the 2016 elections pending the outcome of this litigation. Despite the setback, plaintiffs likely still have a strong argument that Kansas violated the National Voter Registration Act by requiring proof of citizenship for registration.
● Missouri: On Wednesday, a local judge dismissed a state-level lawsuit that the ACLU, NAACP, and League of Women Voters had brought against Missouri's new voter ID law, which Republicans put into effect after voters in 2016 approved a state constitutional amendment to require ID. The plaintiffs have promised to appeal, but given that voters expressly changed their state constitution to require voter ID, it seems unlikely that a higher state court will overturn this decision to dismiss the case.
● New Hampshire: On a party-line vote, Republican state senators have passed a bill that would tighten voter residency requirements by altering the legal definition of residency for the purposes of voting. This narrower restriction is designed to suppress the votes of out-of-state college students because they lean Democratic, and it would all but amount to a poll tax by requiring them to take actions like registering their car in-state—which costs money—simply to register to vote. Of course, Republicans have offered no evidence that ineligible out-of-state residents are voting illegally in the Granite State.
This bill now goes back to the state House, where Republicans also hold a comfortable majority and passed a slightly different version late last year. GOP Gov. Chris Sununu has previously claimed he opposes the bill, but he has pointedly not promised he would veto it if the measure reaches his desk. Sununu previously signed a similar measure that imposes additional burdens on student voters, so his current position regarding this latest bill must be viewed with skepticism. Yet even if the House and governor both agree to this new restriction, opponents should have an excellent case before the state Supreme Court, which unanimously struck down a similar GOP-backed law in 2015.
Ballot Measures
● Maine: Maine lawmakers just can't hide their contempt for the ballot initiative process. Fresh off of trying to repeal or undermine nearly every single law that voters approved in the 2016 elections, legislators are once again looking at making the initiative and referendum process itself more difficult, this time by banning petition circulators from gathering signatures at the polling place in order to put a measure on the ballot. Campaigning at the polling place for elections in which voters are actually casting a ballot is already rightly restricted in order to combat intimidation. But asking voters to sign a petition for a future ballot initiative or referendum is another matter entirely, and banning that activity could make ballot measures much harder in this rural state.
And what justification could there even be for barring this practice? This latest proposal appears to be a reaction to activists' efforts to veto a recent law that would effectively repeal a statute voters had passed in 2016 to switch Maine to an instant-runoff voting system. Organizers of this ongoing veto referendum need to gather 61,000 valid signatures by early February, and they obtained a substantial 32,000 signatures in just the first half of November, thanks in large part to the ability to collect voter signatures at the polling place in last year’s state and local elections.
This bill follows on the heels of an unsuccessful 2017 effort to amend the state constitution to require signatures be gathered from both of the state’s congressional districts. That requirement would have effectively deterred more progressive-minded initiatives that hold higher support in the more densely populated urban centers like Portland in the heavily Democratic 1st District, since gathering signatures is more costly and time-consuming in rural areas, which lean more conservative. Oddly enough, the Democratic-run state House had approved this geographic distribution requirement, but Democrats in the GOP-run state Senate blocked it from getting the two-thirds approval needed to head to a voter referendum.
Meanwhile, Democratic Secretary of State Matt Dunlap is now supporting the effort to ban signature-gathering at the polling place, although other Democratic legislators have voiced opposition to the bill. However, it would only take a few Democratic House members to join with the Republican caucus to pass the bill and send it to GOP Gov. Paul LePage. If that happens, though, activists could try to initiate another veto referendum, just as they have with the legislature’s attempt to negate instant-runoff voting.
Elections
● Virginia: Which party will control a majority in Virginia's state House after the 2017 elections has come down to two contested outcomes. In the 94th District, a recount put Democrat Shelly Simonds ahead of GOP Del. David Yancey by a single vote, which would have produced a 50-50 tie in the chamber to end the GOP’s majority. However, even though the recount had concluded, Republicans later argued for an ambiguous ballot to be counted in Yancey's favor, even though that voter's intent was unclear and recount rules held that such challenges had to take place during (and not after) the recount itself. Nevertheless, a three-judge state court panel decided to count the dubious ballot for Yancey, leading to a tie. Election officials then held a drawing of lots to break the tie, which Yancey won, but under state law, Simonds could call for a second recount.
In a troublesome move for fair election administration, these judges ignored existing law by deciding to count the contested ballot after the recount concluded, with no way of knowing for certain whether the ballot they were examining was in fact the disputed ballot because it was unclear whether it had been properly segregated from the others during the recount. Indeed, Simonds even argued that she too had further ballots to contest if the court was going to allow Yancey's late contested ballot, but the court refused to consider those extra ballots.
Meanwhile, the 28th House District saw Republican Bob Thomas’s 82-vote lead over Democrat Joshua Cole shrink to 73 votes following a recount. However, election administrators have previously disclosed that at least 147 voters in the 28th and two neighboring districts were given ballots for the wrong district. A federal court hearing took place on Friday where Democrats argued the tainted election should be voided and a special election should be held. However, it’s unclear if the court will act swiftly enough to prevent Thomas from being seated ahead of the Jan. 10 start of the legislative session.
Cole may yet successfully force a special election and subsequently win, which would give Democrats 50 of 100 seats and produce a deadlock. However, Republicans would still be able to pick the state House speaker at the start of the session even with a 50-49 majority, giving the GOP the ability to set the agenda despite having no majority if Cole ultimately wins (barring a swift second recount that flips the outcome for Simonds). Unfortunately, this whole situation was only possible because Republican gerrymandering gave the GOP a chance to hang on to its majority even though Democrats won the statewide popular vote for the House by several points.
