Leading Off
● Georgia: A bombshell new report from the Associated Press has found that Republican Secretary of State Brian Kemp is holding up the registrations of 53,000 voters, a disproportionate 90 percent of whom are people of color, by relying on a draconian "strict matching" system. Kemp has a long history of voter suppression, and this latest news prompted civil rights groups to file a lawsuit on Thursday demanding he rectify the problem. But the news is in fact doubly disturbing, because Kemp is also overseeing the same competitive election in which he's running for governor against Democrat Stacey Abrams, who will be Georgia's first black governor if she wins.
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Kemp is using a GOP-backed "exact match" voter registration law that puts voter registration applications on hold if literally any letter, character, or symbol in the information the voter provides does not perfectly match data from state and federal databases. Voters have 26 months to clear up any discrepancies before their original application gets rejected.
Voting rights advocates have long warned that these databases are notorious for minor discrepancies that don't contradict the overall data provided by voters. Furthermore, black and Hispanic voters are more likely than white voters to have hyphens or other symbols in their names—characters that many databases are prone to mishandle—so this policy has a discriminatory impact. In fact, Kemp already had to settle a lawsuit in early 2017 over his implementation of this “exact match” policy under his authority as chief elections administrator, but GOP legislators passed a nearly identical directive into law later that year.
And this is only the latest in a long string of voter-suppression efforts that Kemp has come under fire for. Earlier this month, the Brennan Center for Justice reported that, under Kemp's tenure, Georgia purged 1.5 million voters from the rolls between 2012 and 2016, twice as many as it did between 2008 and 2012, when Georgia still required Justice Department approval for any such alterations to voting procedures. Kemp has also closed more than two hundred polling places in the years since the Supreme Court removed the requirement for DOJ approval in 2013, which could both make it more difficult for voters to get to the polls and increase voting lines on Election Day.
Fortunately, Georgia voters can find out here if they're one of the 53,000 voters with "pending" applications. Voters caught up in this process can still vote a regular ballot if they show up in person with a state-issued driver's license or ID card. However, those who lack such identification will have to cast a provisional ballot on the condition that they clear up any differences shortly thereafter, and affected voters may have particular problems if they try to vote by mail.
Abrams has called on Kemp to resign to avoid the conflict of interest of overseeing the same election in which he's seeking higher office, but Kemp of course shows no sign of doing so. Polling has shown this contest to be very tight, with a strong possibility of the race advancing to a Dec. 4 runoff if neither Abrams nor Kemp wins a majority. And if Kemp only narrowly prevails, his longtime habit of voter suppression may prove decisive.
Voter Suppression
● Arkansas: As expected, Arkansas' state Supreme Court has upheld the voter ID law that Republicans passed last year, reversing a lower-court ruling that struck down the law in April even though it's functionally identical to a measure the high court invalidated in 2014. The five-to-two ruling comes after Republicans had the chance to replace several of the justices who ruled against them four years ago with more conservative appointees. Even if the court had struck down the law again, GOP legislators also put a constitutional amendment on November's ballot to require voter ID, which will likely pass.
● Ohio: Following this summer's major defeat at the Supreme Court that gave Ohio and other states the go-ahead to purge eligible voters for infrequently voting, a federal court has handed voting rights advocates another loss, ruling that the notification forms Ohio Republicans had sent inactive voters complied with federal law. The plaintiffs had claimed these notices were confusing and failed to properly inform voters of the consequences of not responding. They have yet to decide whether to appeal.
● Missouri: In a victory for voting rights, a Missouri court struck down a key part of the GOP's voter ID law, relying on a provision of the state constitution that guarantees the right to vote, even though voters approved a constitutional amendment in 2016 to require some form of identification. The court left in place the requirement that voters produce documentation of identity, but it threw out the part of the law that required voters to sign a confusing affidavit under penalty of perjury if they only presented a non-photo ID instead of one with a photo.
Consequently, this ruling means that non-photo ID, like a utility bill or bank statement, will suffice without voters having to jump through any additional hoops if they lack a driver's license or passport, making this voter ID requirement far less onerous than it otherwise would have been. Furthermore, the court ordered Republican Secretary of State Jay Ashcroft to stop misleadingly advertising that photo IDs are required. Republican lawmakers will appeal, but it's unclear if they'll find any greater success before the state Supreme Court, where Democratic appointees hold a majority.
Though it was decided under Missouri's state constitution, this ruling could have national implications, because almost every state constitution has a similar provision guaranteeing the right to vote. As we saw with Pennsylvania's Supreme Court, which cited its own state constitution's equal protection guarantee in striking down gerrymandering earlier this year, state courts can provide a path forward for protecting voting rights when the U.S. Supreme Court fails to act.
● North Dakota: On Tuesday, the Supreme Court delivered a major defeat for Native American voting rights when it declined to vacate a stay of a lower-court ruling that had blocked the implementation of North Dakota’s Republican-backed voter ID law. That law requires voters to present documentation of a residential address instead of just a post office box, a considerable difficulty for many Native voters. And coming so close to Election Day, this decision may further add to voter confusion over the law, because this more restrictive ID requirement was not in place during the June primary.
North Dakota is the lone state that has no voter registration—voters just have to prove their residency and swear they’re eligible citizens—so some form of documentation makes more sense here than in any other state. However, the residential address requirement is a naked attempt to suppress Native American voters, since those living on reservations often lack such an address and instead use a post office box, because the postal service doesn’t deliver mail to often remote reservations. (This provision also makes voting all but impossible for the homeless.)
As a consequence, those who have ID cards issued by tribal governments often only have P.O. boxes listed, so they will have to take additional steps to get the proper documentation. As Justice Ruth Bader Ginsburg noted in her dissent, roughly 70,000 North Dakotans—20 percent of turnout in a presidential electorate—lack a qualifying ID card, and an estimated 18,000 also lack the supplemental documentation, such as a residential address, needed to vote without a qualifying ID. Fortunately, voters who lack a residential address can follow the steps listed here to start a no-charge process to obtain the additional documentation they need to vote.
But with this requirement now in place, thousands of Native American voters may be disenfranchised, which could tip North Dakota’s pivotal 2018 Senate election to Republicans, given that Native voters are expected to strongly support Democratic Sen. Heidi Heitkamp over Republican Kevin Cramer. Indeed, Republicans first enacted their voter ID law in 2013, just months after Heitkamp won an upset victory in her initial 2012 election by fewer than 3,000 votes, with Native Americans likely providing her margin of victory. Yet despite having no voter registration, in-person voter fraud is still practically non-existent in North Dakota.
This ruling was the first big loss for voting rights since Justice Brett Kavanaugh was confirmed to the Supreme Court. Although Kavanaugh recused himself from the case, and at least one liberal justice joined with the GOP to reject the request to vacate the stay, some legal experts believe the outcome would have been reversed if Merrick Garland had been on the court and given liberals a majority. Consequently, we can expect more defeats like this one with conservative hardliners holding a majority on the court.
● U.S. Territories: On Tuesday, the U.S. Supreme Court declined to take up a lawsuit that had unsuccessfully sought to expand voting rights to U.S. citizens who move from the states to American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands. Currently, citizens moving from the states to the Northern Mariana Islands or to another country retain the right to vote absentee in federal elections for president and Senate in their previous state, but those who move to those particular four territories lose that right.
The plaintiffs argued this was discriminatory, but the Trump administration countered with an exasperating solution: It proposed stripping the voting rights of those who had moved to the Northern Mariana Islands instead of enfranchising voters who had moved to one of the other four territories. However, since the Supreme Court issued no ruling, the exception for the Northern Mariana Islands remains in effect.
Voter Registration
● California: California was one of the first states to pass automatic voter registration back in 2015, but new reports indicate that the state is having some difficulties finally implementing it for the 2018 election cycle. The state automatically registers eligible voters, unless they opt out, when they're conducting business with the state Department of Motor Vehicles, but the DMV reported last month that it had made at least 23,000 registration errors and had improperly registered 1,500 ineligible voters, who were removed once the errors were discovered.
These administrative failures have raised the prospect that California may have to put its program on hold, with Democratic Secretary of State Alex Padilla acknowledging on Tuesday that a freeze was "certainly on the table.” Automatic registration has run smoothly in other states, for example in Oregon, so better administrative structure and training should solve the problems California is facing, but in the meantime, voters may face a period where they aren’t registered automatically.
● Florida: On Wednesday, a federal judge rejected a request that Democrats had made to require Florida to extend its voter registration deadline by a week due to the damage wrought by Hurricane Michael along the state's Panhandle and west coast. Republican Secretary of State Ken Detzner had said counties whose election offices were closed on Tuesday (the state’s registration deadline) due to the storm could accept paper registrations on the day they reopen, though he did not extend online registration.
Democrats called this plan "insufficient and confusing.” It's particularly so because voters who had to evacuate may not have the opportunity to go in person to their local election office on the very day it opens again. The judge, however, did not agree, saying there was “no justification” for extending the registration deadline statewide, as plaintiffs had sought.
Redistricting
● Virginia: Following Democratic Gov. Ralph Northam's promise of a veto, Republican legislative leadership canceled an Oct. 21 legislative session that was intended to deal with passing a new state House map to replace 11 districts that were struck down by a federal court for racial discrimination. This all but ensures that the federal court overseeing the case will draw its own map. Such a map would still have to survive an appeal to the Supreme Court, where the plaintiffs' chance of victory is uncertain, but defeat isn't guaranteed.
