Voting Rights Roundup: Redistricting, voting rights, and election reform are on the ballot in 2018

Leading Off

● Ballot Measures: Republican gerrymandering, voter suppression, and our very electoral system itself often present great challenges to preserving free and fair elections in America, but voters will get the chance to weigh in on many key ballot measures in November that could help fix these problems—or exacerbate them. Below, we take a look at the most important ballot measures that affect redistricting, voting rights, and campaign finance, and what their impact could be.

​Among this year's biggest election-related ballot measures are five that would reform redistricting in Colorado, Michigan, Missouri, and Utah. These measures would impact both congressional and legislative redistricting except in Missouri, where only the legislative line-drawing would be affected. (In Colorado, one measure pertains to Congress and a separate one to the legislature.) While the specifics in each case differ—you can delve into the details in this backgrounder—the passage of each of these measures would help strike a critical blow against gerrymandering, which in these states has chiefly come at the hands of Republicans.

Several key measures to expand voting rights are also on the ballot, and we've covered those in our weekly Voting Rights Roundup newsletter. Chief among those is Florida's Amendment 4 to significantly curtail a Jim Crow-era law that disenfranchises everyone with a felony conviction for life unless their voting rights are individually restored by the governor and cabinet. Amendment 4 could re-enfranchise nearly 1.5 million voters—a group that is disproportionately African-American—and nearly every poll shows it passing, though it needs to win 60 percent of the vote to become law.

In Michigan, Proposal 3 would dramatically expand voting rights in one of the states that's currently among the worst in the country in terms of making voting accessible. It would do so by tearing down registration barriers and letting anyone vote an absentee ballot for any reason. Polls also find that measure prevailing. Similarly, Nevada is voting on automatically registering voters, which is part of Michigan’s package as well. Maryland could also expand voting access by permitting same-day registration on Election Day instead of just during the early voting period.

However, not all of the measures on the ballot are positive.

In Montana, where roughly two-thirds of all votes are cast by mail, a Republican-backed proposal to restrict who can turn in mail ballots is intended to make it harder to vote. That’s especially so for Native Americans who live on remote reservations and rely on post office boxes, and the proposal is similar to an existing restriction in Arizona. Arkansas may also enshrine its voter ID requirement in its constitution after Republicans there put it on the ballot.

In North Carolina, Republicans passed deceptively worded amendments that would effectively gerrymander the judicial branch by letting the legislature—which is itself gerrymandered to benefit the GOP—fill judicial vacancies, a power they plan to use to pack the state Supreme Court and flip it to Republicans. A separate amendment would deliberately gridlock the state elections board so that Democrats can't expand early voting. Polling is limited, but a recent survey found both amendments failing. Meanwhile, a voter ID amendment doesn't even specify which types of ID are acceptable and aims to suppress black voters while exempting disproportionately Republican absentee voters.

In South Dakota, Republicans became apoplectic after voters passed a 2016 initiative to impose ethics and lobbying restrictions, prompting the GOP to literally declare a state of emergency in order to repeal the measure. Activists are trying again this year, this time with a constitutional amendment that can't be overturned by the legislature that would restore those reforms and impose new rules against the legislature tampering with voter-approved measures. However, Republicans are countering by trying to require that future ballot measures win 55 percent of the vote to pass, bar them from addressing multiple topics, and ban out-of-state contributions, the last of which likely violates the First Amendment.

Meanwhile, three localities will vote on changes to the way they elect local offices. Fargo, North Dakota, could become the first place in America to adopt "approval voting" in place of plurality-winner elections. That would let voters cast one vote each for as many candidates as they approve of, and whoever has the most votes prevails. Memphis, Tennessee, will vote on whether to repeal a decade-old instant-runoff voting law that has never been implemented. Finally, Lane County, Oregon's, "STAR voting" system would let voters score candidates on a scale of one to five points. The two candidates with the highest total points would go to an instant runoff where each would receive one vote per voter who scored them highest.

In the small Denver suburb of Golden, Colorado, voters will decide whether to lower the voting age to 16 in local elections, something that's the norm in a handful of countries like Austria and Brazil. This reform has been gaining steam after a few small municipalities began enacting it across the country this decade, but it has yet to prevail in any major city.

Voters also have the chance to enact campaign finance restrictions and provide for publicly funded campaigns in several cities, including Denver, Colorado; Baltimore, Maryland; Portland, Oregon; and New York City. However, New York's amendment has divided city Democrats and could present some problems by making public money available earlier in the election cycle, which could see candidates qualify for funding yet fail to make the ballot. It also makes the new contribution limits voluntary for the city’s next elections in 2021.

You can find a more expansive list of election-related 2018 ballot measures, plus a full list of measures to watch on a variety of topics, in this spreadsheet. The spreadsheet details whether each measure was placed on the ballot by elected representatives or whether it was directly initiated by voters, as well as whether it's a statute or amends a state constitution or local government charter.

Redistricting

● Arkansas: Republican state Attorney General Leslie Rutledge has finally approved a ballot initiative for circulation ahead of the 2020 elections that would establish a bipartisan commission for congressional and legislative redistricting. Under current law, the legislature effectively holds all the cards in congressional redistricting, since gubernatorial vetoes can be overridden with a simple majority; meanwhile, a commission made up of the governor, secretary of state, and attorney general determines which party gets to control state legislative redistricting.

By contrast, this proposal would create a seven-member commission where the majority and minority leaders of both legislative chambers each pick one member. Those four partisan members would then choose the other three, who must be unaffiliated, and the commission would bar elected officials and lobbyists from serving. Since Republicans have total control over Arkansas, which has zoomed from solidly blue at the state level to solidly red in less than a decade, they would almost certainly find themselves in charge of the next round of redistricting for the first time since Reconstruction if the current systems remain in place.

● North Carolina: In a victory against GOP gerrymandering, a state court has ordered that state House districts be redrawn for the 2020 elections in Wake County, which is home to more than 1 million people and the state capital of Raleigh. The court held that Republicans violated the state constitution's ban on mid-decade redistricting when they redrew several districts in 2017 solely to obtain a greater partisan advantage, even though those districts didn't need to be altered to comply with a federal court ruling that struck down two of the county's 11 districts for racial discrimination.

Consequently, if this ruling survives a potential appeal to the Democratic-majority state Supreme Court, several of the county's districts would revert to the versions used from 2012 through 2016. While those versions were still gerrymandered, they could provide a boost to Democrats once they are freed from the GOP's most recent effort to protect incumbents who became newly vulnerable in this blue-trending county after the original map was drawn in 2011.

● Pennsylvania: In a victory in the fight against Republican gerrymandering, the U.S. Supreme Court declined to hear a Republican appeal of a Pennsylvania state Supreme Court ruling from earlier this year that used the Keystone State’s own constitution to hold that gerrymandering violates voters’ rights to “free and equal” elections. With the U.S. Supreme Court lurching far to the right and almost certainly dooming efforts to set a federal standard against gerrymandering, the court’s decision to let a state ruling stand provides a groundbreaking way forward.

Relying on the state constitution’s guarantee of the right to vote, Pennsylvania’s Democratic-majority court replaced the GOP’s congressional gerrymander with a fairer map that intentionally set out to help make sure the party with the votes would win the most seats—a principle that’s the bedrock of democracy in a two-party system. And this approach could have an impact far outside Pennsylvania alone. That’s because nearly every other state constitution similarly establishes a right to vote, and many of them also have clauses like Pennsylvania’s that protect free and equal elections.

By turning down the GOP’s appeal, the U.S. Supreme Court has shown the way forward to stop gerrymandering at the state level: elect progressive state supreme courts in states that hold judicial elections, and elect Democratic governors who can appoint progressive justices in the states that don’t elect them directly. Fortunately, 2018’s elections provide Democrats with just that opportunity in many states with important governor’s races. Furthermore, voters in two key swing states can vote for progressive justices on Election Day who will curtail gerrymandering: Anita Earls in North Carolina and Sam Bagenstos and Megan Cavanagh in Michigan.

The U.S Supreme Court’s decision not to hear this appeal means it didn’t set a binding precedent against overturning state court decisions that were decided solely on state constitutional grounds, so it’s possible this issue could return to the high court in the coming years. Nevertheless, Monday’s development is an encouraging sign that the federal judiciary won’t overturn a bedrock principle of federalism. While the U.S. Supreme Court is becoming increasingly hostile to voting rights and fair redistricting, they’ve consequently opened the door to a quintessential American solution to gerrymandering: progressive federalism.

Felony Disenfranchisement

● Louisiana: In an expected setback for voting rights, Louisiana's conservative-dominated state Supreme Court upheld a state law that disenfranchises voters who are on parole or probation for a felony conviction if they have been out of prison for less than five years. Louisiana's GOP-run legislature and Democratic Gov. John Bel Edwards passed a law earlier this year that restored voting rights to those who have been out of prison five or more years, but that small step in the right direction still leaves 97 percent of the 72,000 people on parole or probation without their voting rights.

Voter Suppression

● Arizona: In a loss for voting rights, a three-judge panel on the 9th Circuit Court of Appeals has rejected a second lawsuit that challenged a GOP law criminalizing those who turn in someone else's absentee mail ballot unless that person is a postal worker, family member, or caregiver. A previous lawsuit had challenged the measure as a violation of voting rights law, but this suit took the novel approach of arguing state Republicans had violated the federal government's authority to regulate who can deliver mail in a state where roughly four-fifths of votes are cast by mail.

This law attempts to suppress Native American voters living on rural reservations, where roughly three-fourths lack a car and many rely on distant post office boxes because the Postal Service doesn't deliver to their remote locations. While it's almost certainly too late to overturn this ban ahead of Election Day, the plaintiffs could appeal either case to the full 9th Circuit and ask the entire bench to decide the matter. However, it's doubtful they'll find greater success if either case makes it before a Supreme Court that's hostile to voting rights.

● Georgia: Having obtained the information after threatening litigation, journalist Greg Palast reports that the number of eligible voters whose registrations GOP Secretary of State Brian Kemp wrongly purged over infrequent voting is roughly 340,000. Because of a June Supreme Court ruling that legalized this practice under the pretext that the voters had failed to respond to a single state mailing instead of the true reason—that they'd voted infrequently—these voters have no recourse if they don't realize they've been purged and try to vote, since Georgia doesn't allow Election Day registration.

Meanwhile, a federal court ruled on Friday that Kemp can't block roughly 3,000 naturalized citizens from voting because their registrations had been held up over Georgia's draconian "exact match" system, which requires voter registration application information to be a perfect match with info in government databases, which often have minor errors like misplaced hyphens or are out of date. In this case, many of these voters had obtained driver's licenses before gaining citizenship, meaning the state Department of Driver Services had outdated information on their eligibility. These voters may consequently cast regular ballots if they can prove they're citizens.

● Kansas: Republican election administrators in Kansas have sparked a firestorm in recent weeks after they moved the only polling place in Dodge City, whose 13,000 registered voters are disproportionately Latino, from the center of town to a location outside city limits that's more than a mile from public transportation and inaccessible by sidewalk. In response to this voter suppression measure, the ACLU and the League of United Latin American Citizens filed a lawsuit seeking to force officials to add a second polling place for the city, but a federal court rejected it, claiming that granting the plaintiffs' request so close to Election Day would have risked confusing voters.

Republicans have claimed the old location at the city's civic center couldn't be used because of construction, but MSNBC's Rachel Maddow investigated and released video on Wednesday showing the old site to be completely accessible, with no construction visible. Adding further insult, Republican Secretary of State Kris Kobach, who is one of America's worst offenders when it comes to voter suppression and is overseeing his own 2018 election for governor, baselessly claimed that adding a second voting site would have led to double-voting.

● North Dakota: In a blow to Native American voting rights, federal district court Judge Daniel Hovland rejected an emergency lawsuit seeking to block the North Dakota GOP's voter ID law. Hovland relied on the Supreme Court's so-called "Purcell principle," which militates against changing election laws close to Election Day, even though the election's imminent timing makes protecting these voters' fundamental rights even more urgent. This outcome is particularly infuriating because the Supreme Court let an appeals court disregard that very same principle when it blocked Hovland's April ruling curtailing the law on Sept. 24—just six weeks before the election.

As we have previously detailed, this law requires voters to present an ID with a residential street address, but because many Native Americans live on reservations where postal service is practically nonexistent and they therefore don't have a residential address, many ID cards issued by tribal governments won't be valid. Native American activists have raised hundreds of thousands of dollars to help print new IDs and enable these voters to obtain the documentation they need to vote, but those efforts won't fully mitigate the suppressive impact of this law.

And as if this law weren't bad enough on its own, the New York Times reports that certain county election officials are resorting to veritable Jim Crow-style measures to stop Native Americans from voting. One voter in Sioux County, which is located within the Standing Rock Reservation, reportedly asked county Auditor Barbara Hettich about early voting, only to be told the state doesn't offer it. That response was entirely misleading, though, because North Dakota does allow for no-excuse absentee voting, which is effectively the same thing.

Another voter said that when she filled out her absentee ballot, Hettich claimed she had to use blue ink, but when voting rights advocates checked the secretary of state's website, it said voters had to use black ink. After spending a considerable amount of time petitioning their elected officials for clarification, activists finally were told by the secretary of state's office that both colors were acceptable.

Activists are hoping to use the media attention and backlash to the implementation of voter ID as a way to boost turnout among a demographic that normally votes at low rates. However, this broad-spectrum voter suppression effort could still have major consequences for 2018's Senate race. Democratic Sen. Heidi Heitkamp is counting on a strong turnout among staunchly Democratic Native American voters to pull off an upset re-election victory in this conservative state, and disenfranchising a few thousand voters could make the difference if she once again finds herself in a close race.

● Ohio: In a surprise victory against voter suppression, the 6th Circuit Court of Appeals ruled that thousands of eligible voters whose registrations were purged between 2011 and 2015 simply for infrequent voting will be eligible to cast a provisional ballot if they still live in the same county. This victory is especially meaningful because Ohio doesn't let voters register on Election Day, so voters who are unaware they have been purged would otherwise have no recourse if they show up to vote.

This follows a Supreme Court ruling this past summer that gave Republicans in states like Ohio the green light to purge infrequent voters solely because they didn't respond to an inconspicuous mailer. However, GOP Secretary of State Jon Husted said he won't appeal this latest decision.

Voting Access

● California: Los Angeles County has set the model for other jurisdictions by making public transportation free on Election Day so that voters who rely on it will face fewer barriers to getting to the polls. The county is home to 10 million people, the most of any in the country, and it contains roughly a quarter of California's population.

Voting Age

● Washington, D.C.: A committee on Washington, D.C.'s heavily Democratic city council unanimously approved a bill to lower the voting age in all elections from 18 to 16. The bill will go to the full council on Nov. 13, where it is expected to pass. If this bill becomes law, D.C. would become the first major American city to lower the voting age, and it would be the first jurisdiction in the country to do so for federal elections.

2020 Census

● Census: After federal courts refused to grant the Trump administration's request to block the deposition of acting Assistant Attorney General John Gore in one of the numerous lawsuits against Trump's attempt to add a question about citizenship status to the 2020 census, Gore's testimony revealed more damning evidence that the citizenship push is a pernicious effort to undermine the integrity of the census. Indeed, Gore stated that Attorney General Jeff Sessions directed the Justice Department not to meet with Census Bureau officials who were seeking to discuss ways to get higher-quality citizenship data in ways that wouldn't involve adding a citizenship question to the census.

This testimony comes after Commerce Secretary Wilbur Ross had already been caught lying to Congress when he claimed the Justice Department approached census officials about adding the citizenship question to enforce the Voting Rights Act. Documents, however, have revealed it was Ross who came to the DOJ, not the other way around. After the Supreme Court refused to halt proceedings on Friday, this lawsuit will go to trial on Nov. 5, the first one to proceed that far. If the courts determine that the motivation for adding this question was racial discrimination, that could be grounds for blocking it under the 14th Amendment's Equal Protection Clause.

Election Security

● Election Security: In a must-read article on the dire state of election security in the wake of Russia's hacking of the 2016 elections, Benjamin Wofford reports in depth on the steps election officials are taking—or failing to take—to prevent the same national security nightmare from happening again. Chief among the problems America faces in the quest to protect elections from hacking and tampering is that congressional Republicans are actively thwarting efforts to secure our election systems after both they and Donald Trump benefited from Russian interference two years ago.

However, the GOP's inaction isn't the only issue. Because elections are managed at the state and local levels, that's left us with a patchwork of thousands of different election administrators who have key power over decision-making. Officials and lawmakers in some jurisdictions have taken action to bolster their security, but others, like Republican Secretary of State Brian Kemp in Georgia, have refused to replace equipment like paperless electronic voting machines that were purchased after the 2000 Florida presidential election debacle and weren't designed to be used for years on end.

Nevertheless, many state and local officials from both parties recognize the malicious threat posed by hackers. Furthermore, the Department of Homeland Security is also taking action, even though congressional Republicans won't, but it's still hamstrung by our extremely distributed nature of election administration. Adding to the problem, many of the companies that sell voting equipment lack the resources or the will to ensure their products are secure.

While the risk of hackers actually changing actual votes is likely overblown, Russia has already tried to infiltrate voter registration systems. Such attacks on voter rolls could leave voters disenfranchised if they show up to vote and find their registration has been altered or deleted—in addition to causing chaos at polling places and undermining faith in our electoral systems. Unfortunately, with national Republican leaders blocking action on election security, key parts of the machinery of our democracy remain almost as vulnerable as they were in 2016.