● North Dakota: On Oct. 9, the Supreme Court let North Dakota's GOP-backed voter ID law go into effect, making it especially difficult to vote on Native American reservations. That’s because this law requires IDs to list a residential address, which many voters on reservations lack, instead relying on post office boxes. Affected voters will therefore be disenfranchised if they can’t obtain new IDs or another form of address verification, which is why Daily Kos partnered with North Dakota Native Vote to raise almost $500,000 since Wednesday to help ensure the state's Native American population can participate in November’s elections.
These funds will be used to provide updated tribal ID cards or other methods of address verification to tribal residents who lack the documents necessary under the state’s new law. Activists are hoping to use the widespread attention around this ruling—and the attempts to counteract it—as a way to encourage more voter participation by Native Americans. North Dakota Native Vote is also combining its efforts with a get-out-the-vote operation that will include measures like helping people in rural areas get transportation to the polls if they need it.
State Supreme Courts
● Florida: In a victory for the rule of law, Florida's Supreme Court has ruled that Republican Gov. Rick Scott does not have the power to appoint replacements for three of the court's liberal justices whose terms end several hours after Scott's does in January. Scott had tried to stack the court and turn its four-to-three liberal majority into a six-to-one conservative advantage by usurping the appointment power from his successor, who would be Democrat Andrew Gillum if current polling holds fast. However, this victory may be nevertheless short-lived, with dire implications for the fate of redistricting reform.
Florida's governor can only choose judges from a list of names supplied by the state’s Judicial Nominating Commission, which is comprised of five of the governor's appointees and four members chosen by the state bar association. However, Scott has regularly used his power to block all of the bar's proposed nominees for the commission and request it submit new lists, having rejected at least 90 names since taking office in 2011. Scott has thus used his authority to ensure that only ideologues who suit him sit on the commission, and those members in turn reliably propose similar ideologues for the bench, even though the process is supposed to be merit-based and apolitical.
Consequently, it is unclear what options Gillum would have, because he wouldn’t be able to name any new members to the commission until July, when the next set of justices’ terms end. He might therefore be presented with lists of potential judicial candidates composed exclusively of conservative hardliners. And if he’s forced to name such judges to the bench, the state Supreme Court would wind up with a conservative majority anyway.
Among many other things, such a majority would likely let Republican legislators ignore the Fair Districts constitutional amendments voters passed in 2010 to crack down on gerrymandering by legislators, since a 2015 ruling that struck down the GOP's congressional gerrymander fell strictly along ideological lines.
However, voters still have a chance to protect the Fair Districts amendments if reformers can organize a 2020 ballot initiative to create a truly independent redistricting commission. (Under the Fair Districts amendments, legislators still get to draw the maps, just with restrictions.) That's especially important because the governor can only veto the congressional map and not legislative districts, meaning even if Gillum wins but the GOP maintains control of the legislature, only a redistricting commission could stop all future gerrymandering if the Supreme Court falls into the hands of conservative hardliners as Scott has planned.
● Vermont: Vermont implemented automatic voter registration starting in 2017 for eligible voters who interact with the state Department of Motor Vehicles, and that system has already begun paying dividends for voting access. VTDigger reports that 92.5 percent of eligible voters in the state are now registered, which is an increase of about 3 points from 2016, pushing Vermont to a new record. Vermont is also one of just two states (along with Maine) that doesn't disenfranchise anyone for felonies, including current inmates, a policy that has also helped the state reach almost universal voting access to registration.
● Georgia: Republican Secretary of State Brian Kemp is now the target of additional litigation over voter suppression after civic groups sued him and the county elections board in Gwinnett County over the locality's exceptionally high rejection rate of absentee ballots. Gwinnett County is a rapidly growing and diversifying suburb of Atlanta that is home to nearly 1 million people, and the latest records show it has rejected 8.5 percent of absentee ballots. That figure is alarming because less than 2 percent of such ballots have been rejected statewide, and signs indicate that voters of color are being rejected at several times the rate of white voters.
Election expert Michael McDonald hypothesized that Gwinnett County may be overzealously rejecting absentee ballots because of a confusing envelope design that includes both English and Spanish, since Gwinnett is the lone county in the state that's mandated under the Voting Rights Act to have bilingual election materials, thanks to its large Latino population.
Plaintiffs are also challenging Georgia's signature-matching law, arguing that the state is disenfranchising absentee mail voters by having officials with no expert training on handwriting analysis judge whether voters’ signatures match those on file. In addition, while voters are supposed to receive a warning when their ballots are not accepted due to signature problems, there's no requirement that these notifications go out in a timely manner.
Even worse, there's no provision to let voters "cure" their signature issue without having to cast a new ballot entirely, leaving voters without recourse if they're unaware of the problem until after Election Day. The plaintiffs are therefore asking the court to impose some mechanism for voters with signature problems to be able to verify their identity in a timely manner so that their absentee ballots can be counted.
Meanwhile, a new analysis from APM Reports found that Kemp purged roughly 107,000 voters from the rolls in July of 2017 simply because they hadn't voted frequently enough, not because they had died or moved. Purges such as these violate the intent of the National Voter Registration Act, but the Republicans on the Supreme Court gave states the green light this past summer to effectively purge infrequent voters when it upheld a similar purge in Ohio, where purged voters were disproportionately black and Democratic-leaning.
● North Carolina: On Tuesday, a panel of state judges ruled in favor of Democratic Gov. Cooper in his lawsuit arguing that the structure of the state’s elections boards, which Republican legislators revamped over Cooper’s veto, was unconstitutional. This ruling marks the third time the GOP has been rebuked in state court over its repeated efforts to stop Democrats from taking charge of both the state board and county boards and expanding voting access. However, with Election Day just weeks away, the court held that the existing boards could remain in place for November's elections.
The court struck down the GOP's arrangement, whereby the party with the second-most registered voters statewide—that is to say, the Republican Party—chairs the boards in even-numbered years, when all state and federal offices are elected. That left Democrats chairing the boards only in odd-numbered years, when only a limited number of local elections take place. Additionally, the court threw out a provision that barred Cooper from firing state board executive director Kim Strach until at least May of 2019; Strach was appointed by former GOP Gov. Pat McCrory, and her husband is an attorney who has defended GOP gerrymanders from numerous lawsuits.
However, this decision could end up becoming moot if voters approve a deceptively worded state constitutional amendment that Republicans put on this year's ballot using their illegally gerrymandered supermajorities. That proposal would remove the tie-breaking member from the state board (who cannot be a Republican or a Democrat) and create a four-to-four deadlock between the two major parties. Along with other voter suppression measures they’ve passed, Republicans have used this gridlock on county boards, which currently have an even number of members, to force counties to cut early voting locations by 20 percent statewide ahead of this year's election.
● Tennessee: The Tennessee Black Voter Project filed a lawsuit on Monday against the elections commission in Shelby County (which is a Democratic stronghold that’s home to the city of Memphis and nearly 1 million people) after officials invalidated 55 percent of the 36,000 voter registration forms submitted by groups encouraging black voter turnout. The commission said many registrations were incomplete, duplicates, or from ineligible voters, but the Black Voter Project is demanding to inspect records explaining why the applications were rejected.
● Voter Suppression: In an infamous 2013 ruling, the Supreme Court's five conservatives struck down a critical provision of the Voting Rights Act that had required several mainly Southern states and numerous local jurisdictions with a history of discriminatory voting laws to obtain Justice Department approval for any voting or election law changes. A new report by Vice finds that the impact has led to a surge of voting restriction measures in the formerly covered jurisdictions.
One of the biggest impacts of the court’s decision: Once-scrutinized states and counties have slashed the number of polling places, making it harder and more time-consuming for voters to cast ballots. Vice reports that jurisdictions formerly covered under the VRA have shut down roughly 20 percent more polling places per capita than jurisdictions that hadn't been covered prior to 2013. Consequently, these problematic jurisdictions now have 10 percent more residents per polling place than the rest of the country.
Of course, those impacts are not evenly felt. This report, along with one from the Leadership Conference for Civil Rights in 2016, indicates that polling place closures are disproportionately located in communities of color. Indeed, Vice's map of the city of Macon, Georgia, illustrates that polling places that were shut down were heavily concentrated in predominantly black parts of town. Just as Republicans have planned, polling place closures will disproportionately limit black, Latino, and Native American voters’ access to the polls on Election Day.
● Florida: On Thursday, Republican Gov. Rick Scott relaxed the rules for early and absentee voting in eight Panhandle counties that were hit particularly hard by Hurricane Michael earlier this month, giving officials the authority to extend the early voting period and approve more early voting locations. Scott's order also lets these counties send absentee mail ballots to addresses other than the address of the voter making the request, which could make it easier for those who had to evacuate or lost their homes to cast a ballot. Collectively, these eight counties lean heavily Republican, but they’re sparsely populated and make up just 2 percent of the statewide electorate.
● Virginia: The federal district court overseeing the redrawing of Virginia's unconstitutional state House map has appointed UC Irvine professor Bernard Grofman as its nonpartisan "special master" to help devise a new map to remedy the GOP's racial discrimination against black voters in 11 districts. Grofman previously served as the court-appointed expert who redrew Virginia's Republican congressional gerrymander in 2015 when it was struck down for identical reasons, and he has served courts as special master in a long list of other redistricting cases.
Note: Last week, in the North Dakota voter ID case, we reported that at least one of the liberal justices on the Supreme Court had joined with four of the conservatives (Justice Brett Kavanaugh recused himself) to reject the plaintiffs' request to vacate the 8th Circuit Court of Appeals’ stay that had blocked a district court ruling that had prevented the law from going into effect. That may have been in error.
The court’s decision was unsigned, so the vote on the matter was not published. However, Justice Ruth Bader Ginsburg wrote a dissent that Justice Elena Kagan signed on to, so we know they voted in favor of the plaintiffs. But it’s not clear how the court’s two other liberals, Justices Sonia Sotomayor and Stephen Breyer, voted (or why they didn’t join Ginsburg’s dissent). It’s possible, however, that they did both side with plaintiffs, leading to a tied four-to-four vote split along ideological lines. Such a tie would have meant that the appeals court’s stay would have remained in effect.