● Georgia: On Friday, Democrat Stacey Abrams ended her campaign for governor against Republican Brian Kemp, yet she refused to concede and argued his voter suppression efforts had created insurmountable obstacles for her campaign. As ThinkProgress legal expert Ian Millhiser succinctly noted, "There’s no way to know if the result would have been different if [Kemp] didn’t do everything in his power to steal this election, but he did everything in his power to steal this election." Consequently, his victory should rightly be viewed as lacking the legitimacy of a free and fair election.
Kemp ran a reactionary campaign of voter suppression and intimidation that harkened back to the dark days of Jim Crow. As secretary of state, he suspended and purged countless voter registrations, removed hundreds of polling places to make voting less convenient for those with limited transportation options, had his allies on local elections boards fail to provide adequate resources to handle high turnout, exposed Georgia's election systems to massive security vulnerabilities, and baselessly claimed Democrats had committed cyber crimes to cover up his own security failures.
Kemp fought Abrams' efforts to have many rejected absentee ballots counted, a disproportionate number of which had arbitrary or trivial discrepancies like missing birth years and were from counties where Abrams is leading Kemp. Abrams won a few voting rights victories after courts forced counties to count some absentee ballots even if the voter's birth date was incorrect or missing, and another court ordered Georgia officials to take additional steps to count up to 27,000 of the unusually high number of provisional ballots, but it simply wasn't enough.
Unfortunately for Abrams, the results as of Friday still had Kemp at 50.2 percent of the vote, just about 18,000 votes above the absolute majority needed to avoid a Dec. 4 runoff. This came after many voters faced significant hurdles cast a ballot—indeed, in the Democratic stronghold of metropolitan Atlanta, hundreds of voting machines sat unused in warehouses as voters waited for hours in some precincts to cast their ballots. This was both the result of election administrators' decisions and Kemp's choice to successfully fight an ongoing lawsuit to force Georgia to switch to paper ballots.
Consequently, the bar was likely very high for Abrams to succeed if she had attempted a to have the election voided despite its glaring flaws. Abrams' campaign chairwoman acknowledged that the campaign didn't have a list of 18,000 disenfranchised voters and would have had to present the testimony of hundreds or thousands who were unable to vote and use statistical analysis to argue the effect was widespread enough to taint the outcome.
Abrams announced she will file a federal lawsuit over Georgia Republicans' "gross mismanagement" of the election, but the damage to American democracy has already been done. Furthermore, the ultra-partisan Republican majority on the U.S. Supreme almost certainly wouldn't do anything to overturn Kemp's tainted election victory. And as governor, Kemp will have the power to sign new suppressive voting measures and ensure Republicans keep gerrymandering after the 2020 census, locking in a vicious cycle that further undermines any semblance of free and fair elections.
● Florida: Florida's major statewide races for Senate and governor both went to recounts, and Republicans including Donald Trump, Gov. Rick Scott, and Sen. Marco Rubio dangerously violated fundamental democratic norms by baselessly making incendiary accusations that Democrats were trying to steal the elections simply by keeping up the counting of ballots after Election Day, an absurdity in a state whose immense size and resource-limited local governments made immediate counting impossible. The GOP's actions are an ominous sign for what Republicans may try to do if Trump narrowly loses re-election in 2020, with Florida likely to be a key swing state.
Particularly disheartening for election integrity was the apparent instance of poor ballot design unique to the Democratic stronghold of Broward County leading to thousands of undervotes in the Senate race and potentially costing Democratic Sen. Bill Nelson victory over Scott. After an initial machine recount, Scott led by just 12,603 votes statewide, a margin of only 0.15 points, before counties began conducting a manual recount on Friday. The machine recount process itself was marred by administrative failures, with multiple big counties failing to meet the tight deadline entirely.
Both parties have filed several lawsuits, and federal Judge Mark Walker ordered the state to give voters more time to "cure" signatures on their absentee ballots that were deemed not to match, but those ballots still aren't nearly enough for Nelson to prevail. Walker rejected another lawsuit by Nelson that tried to allow ballots to be counted if they were received after Election Day despite being mailed before the polls closed.
Yet another lawsuit tried to force Scott to step aside from his role overseeing the counting of ballots for his own election. Despite the obvious conflict of interest, Walker rejected it even as he admonished Scott for his hysterics, holding that Scott had "sometimes careen[ed] perilously close to a due process violation" with actions like asking law enforcement to investigate two counties with no evidence. Indeed, state election officials, state police, and a state judge all found utterly no evidence of voter fraud. Litigation is still ongoing, but Nelson's odds of overturning his deficit seem low.
In the governor's race, Republican Ron DeSantis held a somewhat larger lead of 33,683 votes over Democrat Andrew Gillum, a margin of 0.4 points, which was outside the 0.25-point range needed for a manual recount. DeSantis' apparent victory is especially problematic for future fair elections in Florida because he will get to immediately fill the seats of three state Supreme Court justices who face mandatory retirement mere hours after he's sworn in, giving GOP appointees a new six-to-one majority on the bench.
By gaining a Republican majority on the court, DeSantis' appointees will almost certainly let Republican legislators ignore the voter-approved 2010 Fair Districts Amendments, which banned partisan gerrymandering and were used by the state Supreme Court to curtail the GOP's congressional and state Senate gerrymanders earlier this decade in rulings that fell along ideological lines. Consequently, Republicans will likely have free rein to gerrymander after 2020 unless reformers pass an independent redistricting commission ballot initiative in 2020 or Democrats pull off upsets to flip the state Senate that year.
● Maine: On Thursday, a federal district court rejected a request by Republican Rep. Bruce Poliquin to bar officials from conducting an instant runoff in his race against Democrat Jared Golden and declare him the winner. Noting that doing so would disenfranchise thousands of voters who cast ballots for two third-party candidates in the expectation that their second-choice votes would still count, the judge allowed the runoff to proceed. Poliquin subsequently lost to Golden 50.5-49.5 after the instant-runoff tabulation, even though he'd led 46.2-45.5 in the initial vote.
Poliquin's defeat came about because Maine voters passed a 2016 ballot initiative to enact instant runoffs, meaning candidates now need a majority rather than a plurality to prevail. However, instead of holding a separate runoff, voters get to rank their preferences, and if no candidate takes a majority in the first round, the last-place finisher gets eliminated and sees their votes redistributed to each of their voters' subsequent preferences. That process repeats until one candidate wins a majority. Voters who initially supported the two independent candidates and also backed either Poliquin or Golden as their subsequent preferences strongly favored the latter.
Ever since voters passed this law, Maine Republicans and a small minority of Democratic legislators have tried repeatedly to get rid of it, but voters vetoed the legislature’s attempt to repeal the law in a referendum earlier this year. While Maine’s Supreme Court indicated last year in a non-binding opinion that runoffs in state-level general elections violated the state constitution, the opinion did not implicate primaries or federal general elections, and so the secretary of state implemented them for both of these sets of elections.
Poliquin's lawsuit argued that Article 1, Section 2 of the U.S. Constitution requires that only pluralities be sufficient for election to the House. However, that section literally says nothing related to whether candidates must obtain a plurality or majority—or even to any election method at all—and the cases the congressman cited come nowhere close to supporting his argument.
Furthermore, Poliquin had ample time to file this lawsuit well before anybody actually voted, yet didn’t. Election law experts have derided this suit as "beyond frivolous," and the court did indeed reject it, but Poliquin has signaled he will appeal.
● Washington, D.C.: In a setback for voting rights, the overwhelmingly Democratic Washington City Council voted 7-6 to indefinitely table a bill that would lower the voting age to 16, which would have made D.C. the first major American city to adopt this reform and the first jurisdiction anywhere in the country to do so in federal elections. This outcome is especially disappointing for proponents because a majority on the council, as well as Mayor Muriel Bowser, had signaled support for the measure. Supporters say they will continue to try to pass the bill.
● Maryland: As expected, Maryland Democrats are appealing to the Supreme Court after a district court struck down the state's 6th Congressional District as a partisan gerrymander in violation of the First Amendment. As we previously explained, while Maryland Democrats stand to lose a House seat if the Supreme Court rejects their appeal, the Democratic Party and democracy itself would benefit nationally if the high court set a binding precedent against gerrymandering that could be used in other states. However, that outcome is unlikely now that Justice Brett Kavanaugh is on the bench.
● North Carolina: On Tuesday, Democrats and voting rights groups filed a lawsuit in North Carolina state court arguing that Republican gerrymanders of the state Senate and state House violate the state constitution’s guarantee of "free" elections. This case has a strong chance at success, meaning it could yield much fairer maps for the 2020 elections. That could in turn allow Democrats to regain majorities in both chambers and even give the party full control over state government if Democratic Gov. Roy Cooper wins re-election.
Critically, this lawsuit relies solely on the state constitution, following the lead of reformers in Pennsylvania. There, a case before the state Supreme Court struck down the state's Republican congressional gerrymander earlier this year, citing Pennsylvania's constitutional guarantee of "free and equal" elections (phrasing that’s nearly identical to language in North Carolina's constitution). And because the ruling depended on the state constitution, that left little room for Republicans to seek redress in the federal courts: The U.S. Supreme Court declined to take up the GOP's appeal, and Pennsylvania voters enjoyed a much fairer congressional map in 2018.
Consequently, if plaintiffs obtain a favorable decision in North Carolina’s state courts, there’s a good chance that the federal judiciary won’t overturn it—much as John Roberts might want to. And Democrats have a solid shot at prevailing, because civil rights attorney Anita Earls just won a critical Supreme Court race to expand Democrats’ majority on the bench to 5 to 2. At the same time, voters also protected the state courts by rejecting a deceptive GOP-backed constitutional amendment that would have allowed Republicans to add two more justices to the Supreme Court.
Pennsylvania’s congressional gerrymandering lawsuit took less than a year to resolve, so North Carolina could likewise see a speedy resolution that would allow the 2020 elections to take place under new maps. However, the courts could ask the GOP-dominated legislature to propose new maps, and lawmakers would do their best to maintain their gerrymanders if given the chance. (In North Carolina, the governor lacks the authority to veto redistricting measures, and Republicans still hold both chambers thanks to their gerrymandered majorities, even though Democrats won more votes statewide in 2018.)
But Republicans may not be afforded the presumption of good faith that legislators normally receive when courts strike down maps for constitutional violations. That’s because GOP lawmakers have gerrymandered Congress, the legislature, city councils, county commissions, school boards, and even judicial districts, only to have courts strike down nearly all of them at least once. Indeed, the GOP legislature just had to redraw its own districts in 2017 after a federal court struck down its original 2011 maps for racial gerrymandering, and even its replacement gerrymanders were curtailed in federal court earlier this year and again struck down in state court later this year, too.
Given this history, the North Carolina Supreme Court may be disinclined to defer to the legislature—and for good reason: The GOP unequivocally admitted it pursued its maximum partisan advantage when it redrew congressional districts in 2016 as a perverse defense against charges of racial discrimination. When Pennsylvania’s Democratic governor promised to veto the GOP legislature’s replacement gerrymander, that state’s high court stepped in and drew a much fairer map itself. While Cooper can’t veto a GOP map in North Carolina, the state’s Supreme Court could simply refuse to let Republicans have yet another bite at the apple.
If the court does indeed strike down both maps and draws fairer ones, North Carolina voters would get their first chance since the 2010 census to vote under constitutional districts. That could finally allow the party that wins the most votes to consistently win the most seats. Those elections will also determine which party has control over redistricting for the coming decade. If Democrats can prevail, that might finally bring an end to a long era of misrule that has seen Republicans go to unparalleled extremes to eviscerate democracy itself, and instead restore the rule of law in North Carolina.
● Oregon: Democrats are poised to exercise full control over redistricting in Oregon after the 2020 census, which would give them the opportunity to gerrymander. However, instead of advocating for an independent redistricting tasked with drawing fair maps, a former Republican state representative is starting the process for a ballot initiative that is a thinly veiled power grab to ensure Republicans are in charge of redistricting.
This proposal would hand over redistricting to an 11-member commission appointed by groupings of county commissioners, and since most of Oregon's counties are relatively rural, overwhelmingly white, and have small populations, these grouping heavily favor Republicans. As a result, GOP appointees would almost certainly constitute a majority on this commission, even though most voters favor Democrats in this blue state. This initiative still needs to be approved before organizers can gather signatures to place it on the ballot, and it's not guaranteed to qualify, but it's the exact opposite of a good-faith redistricting reform.
● Virginia: In an expected move, the Supreme Court has agreed to hear Republican legislators' appeal of a federal district court decision that struck down 11 GOP-drawn state House districts for racial discrimination earlier this year and ordered them to be redrawn ahead of the spring filing deadlines for the 2019 elections. The district court had set an October deadline for lawmakers to come up with a new map, but that passed without any action after Democratic Gov. Ralph Northam promised to veto the replacement gerrymander the Republican-run legislature was proposing. The court had previously appointed a nonpartisan legal expert to assist it in drawing districts that pass constitutional muster, and if this case continues, the court is likely to craft its own map.
While the Supreme Court is likely especially hostile to voting rights and efforts to fight Republican gerrymandering now that Justice Brett Kavanaugh has replaced conservative swing Justice Anthony Kennedy, it still isn't guaranteed that it will overturn the district court's ruling. That's because this case already went before the high court back in 2017, and Chief Justice John Roberts sided with the plaintiffs in reversing a prior lower-court ruling that had upheld these 11 districts, ordering them to decide the case again under a different legal standard. Roberts could come down in favor of the plaintiffs once again.
However, the Supreme Court could simply delay things so long that no map is ready in time for use next year. Indeed, the Roberts court has shown a tendency to drag out similar court-ordered redraws favorable to Democrats in other states like North Carolina. That would be deeply frustrating, because the 2019 elections are the last that could be held under a remedial map: The next elections after that, in 2021, will have to be held under entirely new maps following mandatory redistricting after the 2020 census.
Secretary of State Elections
● Arizona: After seeing Republican Steve Gaynor's lead steadily diminished since Election Night, Democrat Katie Hobbs won Arizona's secretary of state election on Friday, leading by more than 15,000 votes and a 0.7-point margin with just 67,000 ballots left to be counted as of Friday evening. This victory is critical for voting rights because Hobbs is a firm advocate of pro-voting policies like automatic voter registration and Gaynor had called for repealing key Voting Rights Act protections for language minorities.
With Hobbs taking over from Republican Secretary of State Michele Reagan, she’ll finally be able to bring Arizona into compliance with the 1993 National Voter Registration Act, commonly called the "motor voter" law, by automatically updating Arizonans' voter registrations when they update their information with the state Department of Transportation. Reagan had fought a lawsuit over her failure to do so, but Hobbs can remedy the situation via administrative action.
● New Hampshire: While the position of secretary of state is directly elected in most states, in New Hampshire it’s chosen by the members of the state legislature. And with Democrats winning back both the state Senate and the House in the Granite State last week, lawmakers are now poised to pick an excellent candidate who's devoted to protecting and expanding voting rights, Democrat Colin Van Ostern.
Indeed, state House Democrats just held an informal party caucus vote where they overwhelmingly said they’d back Van Ostern over incumbent Bill Gardner, who has been in office since 1976. Though nominally a Democrat, Gardner eagerly served on Donald Trump's bogus voter fraud commission and has backed multiple voter suppression laws targeting college students that Republican legislators passed after they took control of state government following the 2016 elections. That betrayal cost Gardner the bipartisan support he had long enjoyed, leading top Democrats to rally around Van Ostern as a far better alternative.
Now the bill has come due. After flipping both chambers, New Hampshire Democrats now have a 14-10 edge in the Senate and 234 out of 400 seats in the House—the second-largest majority they’ve ever held since the foundation of the Republican Party in the 1850s. As a result, Democrats will have a 248-176 advantage when both chambers vote in a joint session early next month to elect a new secretary of state.
On the basis of the straw poll, which Van Ostern won 179-23 over Gardner (with a third candidate taking 7 votes), Van Ostern could afford to lose up to 35 Democratic votes and still attain the 213 votes he needs to prevail, since Republican legislators are likely to continue backing Gardner. While that vote total still leaves Van Ostern short of a majority, it doesn't include the Senate. In addition, a number of Democrats didn't participate, and several races are still uncalled, so this demonstration of support shows Van Ostern has a good shot at winning.
Van Ostern is a strong advocate for policies to make voting easier and more accessible in an effort to boost turnout. He supports automatic voter registration; a bipartisan independent redistricting commission; a ban on corporate donations to state campaigns; and the rolling back of Republicans' suppression of student voters. By contrast, Gardner fought to implement a GOP-backed anti-student voter law even in defiance of a court order this fall, and removing him from office would finally give New Hampshire a chief elections official who is committed to voting rights.
● Arizona: Late last week, the two parties reached a settlement to allow counties to continue contacting several thousand voters to give them a chance to fix problems with their mail ballot signatures up through Nov. 14. Republicans had previously sued after the Democratic election administrator in Maricopa County, which is home to three-fifths of the state’s population, adopted a policy in October to contact these voters after Election Day instead of stopping on that date. The agreement ensured all counties retained the ability to alert voters to let them fix issues.
Voter Registration and Voting Access
● Congress: House Democrats have announced that the very first bill they will introduce when they take the majority in January will be one to strengthen voting rights and curtail the malign influence of big money in politics. Their proposal would set up a system of nationwide automatic voter registration; mandate states establish redistricting commissions for congressional elections; curtail Citizens United by requiring greater campaign finance disclosure; and enact tighter ethics restrictions for federal officeholders.
Republicans are almost certain to block this bill, but it's a sign of what Democrats could pass if they gain full control after 2020, and it also sends an important message about the party's priorities.
● Michigan: Republican Gov. Rick Snyder has signed into law a measure that will allow Michiganders to register online if they have a state driver's license or ID card, after the GOP-run legislature passed the provision with near-unanimous support earlier this year. Combined with voters passing automatic and same-day voter registration via a ballot initiative this month, Michigan will go from one of the most burdensome states for voter registration to one of the best for ease of access. And with the passage of this law, only 10 states still bar voters from registering online.
● South Carolina: Republican state Rep. Brian White, who chairs the state House's top budget-writing committee, recently said he expects the GOP-run legislature to appropriate funds to replace South Carolina's paperless voting machines with methods that leave a verifiable paper trail. South Carolina is one of a handful of states that only uses paperless machines, and making this change will both improve election security and enable more rigorous audits and recounts to assess the accuracy of vote counting.
Programming Note: The Voting Rights Roundup will be on hiatus the week of Nov. 23 for the Thanksgiving holiday. It will return the following week.