Leading Off
● Wisconsin: Almost immediately after Democrat Tony Evers narrowly defeated Republican Gov. Scott Walker to become Wisconsin's next governor, GOP leaders began plotting to use their gerrymandered legislative majorities to call a lame-duck session to strip Evers of key powers before he even takes office. The peaceful transfer of power is one of the key foundations of any democracy, but Wisconsin Republicans are taking a page from the North Carolina GOP's unparalleled assault on democratic institutions—and escalating it.
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Thanks in large part to their gerrymanders, Republicans have firm control over both legislative chambers, but Evers will be able to veto any bills the GOP passes, including further voter suppression efforts. But Republicans still have plenty of ways to clamp down on Evers’ powers—measures they never for a moment considered when Walker was in charge. In particular, they may try to cut early voting and restrict Evers' ability to make important appointments to the executive branch, just as North Carolina Republicans attempted in a lame-duck session soon after Democratic Gov. Roy Cooper ousted his Republican predecessor in 2016.
If that weren't bad enough, the Associated Press reported that Democrats fear this plot could include an effort to prevent Evers from stopping GOP gerrymandering after the 2020 census. Republicans claim such a plan is not "on the table," and Assembly Speaker Robin Vos used the Trumpian phrase "fake news" in an attempt to delegitimize the AP's story, but GOP leaders have nevertheless refused to unequivocally rule out the idea or explain just exactly what is "on the table."
Wisconsin is so infamously gerrymandered that reformers sued all the way to the U.S. Supreme Court in a major case this year that is currently being re-heard by a lower court. In 2012, when the current district lines came into effect, Democrats won more votes than Republicans yet won fewer seats; in 2018, they still came nowhere close to breaking the GOP’s legislative majorities despite sweeping every statewide election for the first time since 1982.
Under the status quo, Evers would be able to veto future Republican gerrymanders after the 2020 census, either forcing GOP legislators to compromise or resulting in a court drawing nonpartisan districts. However, Republicans could try to pass a law before Walker leaves office that removes the governor’s ability to veto new maps, leaving Democratic lawmakers unable to repeal such a statute even when Evers assumes the governorship, since Republicans will likely retain control of the legislature in 2020
It's an open question whether such a devious ploy would survive an all-but-guaranteed lawsuit, but Republicans hold a 4-to-3 majority on the nominally nonpartisan state Supreme Court, so it's a question to which Democrats would be best off not needing to know the answer. Of course, it should come as no surprise that Republicans are also looking at ways to preserve their grip on court itself.
In 2020, Justice Daniel Kelly, who defended the GOP gerrymanders before Walker appointed him to the bench, will face voters for the first time. Currently, that election would coincide with the April presidential primary, when Democratic turnout is likely to be relatively high.
Instead, Republicans could move the state’s presidential primary so that the court race takes place on it own, costing taxpayers money and, of course, ensuring lower turnout. State Senate Majority Leader Scott Fitzgerald revealed the GOP's real purpose when he admitted the ploy was so Kelly "would have a better chance" despite local clerks' opposition and the fact that it could cost Wisconsin delegates to the parties' presidential conventions.
Republicans are afraid precisely because Democrats could take a four-to-three majority on the court if they can hold one of their open seats next year and then beat Kelly in 2020. From there, reformers could sue in state court, relying on the Wisconsin's constitution’s guarantee of the right to vote, to curtail GOP voter suppression efforts and even their gerrymanders. Taking control of the court will also be critical for stopping Republican efforts to usurp Evers' powers, just as in North Carolina, which is why Wisconsin Republicans are debating extreme measures to undermine fair elections and the rule of law.
Republican Power Grabs
● Michigan: Republicans lost what had been complete control over Michigan's state government for the first time this decade after Democrats flipped the offices of governor, attorney general, and secretary of state in 2018, so of course, they're now swiftly moving to undermine the democratic transition of power itself by plotting to usurp key powers from all three positions in a lame-duck session of the legislature.
One such bill would take away incoming Secretary of State Jocelyn Benson's ability to more vigorously enforce campaign finance laws, handing their enforcement to a gridlocked bipartisan commission that would let the GOP veto any new restrictions.
Another would let the Republican legislative majority intervene in court cases to defend their laws when they're challenged for constitutional violations, a power previously only the governor and state attorney general could exercise on behalf of the state. That would allow Republicans to make taxpayers foot the bill and ensure that they have standing to intervene in litigation they don't like. That includes an ongoing lawsuit that argues that the GOP's gerrymanders violate the Constitution, which a federal court will let proceed to trial in a decision on Friday just hours after the GOP introduced their bill.
Of course, Republicans made no effort to pass measures like these when they controlled these offices, and changing the rules in an unaccountable lame-duck session only after losing is a subversion of the democratic process itself. But that isn't the end of it: Republicans are also using this lame-duck session to gut a minimum wage increase and paid sick leave law, which had been destined for this year's ballot.
In a deeply cynical end-run, though, Republicans passed the legislation those measures would have instituted, thus removing them from the ballot. That then put them in position to roll back both laws after Election Day with simple majorities instead of the supermajorities needed to alter voter-approved statutes.
And despite losing the popular vote for the legislature, the GOP kept its majorities (albeit more narrowly) thanks largely to their gerrymanders—the fifth time that's happened in the last nine elections. As a result, Democrats would be unable to reverse these potential changes until at least after the 2020 elections. Fortunately, new districts will be used in 2022 once constitutional amendment establishing an independent redistricting commission that voters approved in November takes effect.
Redistricting
● Missouri: On Election Day, Missourians voted in a 62-38 landslide to add an amendment to the state constitution that would reform legislative redistricting and ethics laws, but state Republicans are already looking at ways to undermine these new rules. Leading Republicans are already talking about using their tight grip on the legislature to send a new amendment to voters that would undo some of those reforms, which, among other things, require that redistricting take partisan fairness into account. That could help Democrats win a fairer share of seats after 2020, though the GOP would still be very likely retain majorities given Missouri's strong conservative lean.
Some Republicans have already created a political committee with the cynical name of "Fair Missouri" and seeded it with $150,000 in initial funding aimed at putting a measure on the ballot to undo 2018's reforms. However, even if Republicans succeed in putting this rollback of fairer redistricting and ethics restrictions on the ballot, voters would still be able to thwart them by rejecting the GOP's proposal.
● New Jersey: With three-fifths supermajorities in the legislature, New Jersey Democrats are pushing a reform to New Jersey's five-decade-old bipartisan legislative redistricting commission, but it's far from clear that the current proposal would be an improvement over an existing process. On Monday, a state Senate committee voted along party lines to advance the proposed constitutional amendment, which would need either three-fifths of the vote in one session of the legislature, or simple majorities both before and after the 2019 elections, to make it onto the 2020 ballot in time for redistricting ahead of the 2021 elections.
Currently, New Jersey has two separate but similar bipartisan commissions for congressional and legislative redistricting, and this proposal would alter the latter one. Under the existing system, each major party's chair appoints five members, and when they inevitably deadlock over a tiebreaking 11th member, the state Supreme Court's chief justice appoints the tiebreaker.
With political appointees controlling the process, this system has effectively yielded a coin-flip as to which party gets to draw the maps, which have typically been modest gerrymanders under the guise of protecting incumbents. The new proposal would shift most of these appointments to each party's legislative leadership, which wouldn't alter the partisan control over the commission but could determine which incumbents get favored.
However, the most controversial aspect of the proposal is that it uses a purported partisan fairness formula that potentially opens the door to maps that are considerably flawed. Partisan fairness by itself is a laudable goal, and any truly democratic two-party system should try to ensure that the party that wins the most votes also wins the most seats, but it's not guaranteed that this particular formula would produce inherently fair lines.
The Democratic proposal uses what's called "partisan symmetry," whereby no more than half of the districts can be more Democratic than the result in the average district as measured by an average of the results in elections for president, Senate, and governor over the preceding decade. Furthermore, at least 10 of the 40 districts must be within a 10-point margin of the average result (both chambers use the same map, with the Assembly electing two members per district and the Senate one).
What this means in practical terms is that if the average district voted 53-47 Democratic, for example, then at least 10 districts have to range from no more than 58-42 Democratic to 52-48 Republican. And for every seat in that range that leans toward one party by a particular amount relative to the average district, there must be a corresponding one that leans toward the other party by the same distance from the average to maintain symmetry.
By themselves, these requirements could be used to ensure that maps are fair in two respects: one, that the party with the most votes will typically win a majority of seats, and two, that increases or decreases in a party's statewide support will lead to reasonably commensurate increases or decreases in seats. However, this current proposal still lacks two critical ingredients that any truly fair redistricting system ought to have, and both Republican legislators and nonpartisan good government groups have voiced their hostility to it.
First, while this proposal sets a floor on the number of supposedly "competitive" districts a map must have, it doesn't set a ceiling. That might sound counterintuitive—after all, wouldn't a greater number of competitive districts be a good thing?—but in a state like New Jersey that leans heavily toward one party, the standard of competitiveness set out by this plan could lead to perverse results.
For instance, instead of drawing the mandated 10 districts so that they fall within 10 points of the average result, Democrats could draw 20 such districts, with those surplus seats all hovering around a 55 percent Democratic performance, similar to the support they typically earn overall in this blue-leaning state. That would let Democrats spread their voters around with maximum efficiency—in other words, a classic partisan gerrymander.
While Republicans could occasionally capture these seats in a strong year for their party where the GOP wins the most votes statewide, Democrats would be likely to carry them in any normal election, allowing them to win far more seats than their overall share of the statewide vote. In addition, the creation of an excess of "competitive" districts could lead to black and Latino communities (which often represent concentrated numbers of Democratic voters) getting split apart.
Second, regardless of which party's plan the tiebreaker picks, this system does nothing to prevent powerful individual lawmakers from the favored party from choosing their own voters to stave off challenges in primaries or general elections.
Like other existing bipartisan commissions where elected officials get to hand-pick members, New Jersey needs a fairer alternative to its decennial bipartisan incumbent-protection racket. However, this proposal in its current form is not the way to go about doing that.
Voter Suppression
● Georgia: As promised, Democrat Stacey Abrams has filed an extensive federal lawsuit seeking to force changes to Georgia's election practices, alleging "gross mismanagement" under Republican Secretary of State Brian Kemp that may have helped lead to his narrow victory over her in this year's election for governor. While Abrams isn't attempting to overturn her defeat and force a new election, this lawsuit aims to impose far-reaching changes to improve the integrity of Georgia's elections by 2020 so that every eligible voter can exercise their right to vote and ensure that it is properly counted.
Abrams and her newly created group, Fair Fight, are arguing that the combined effects of Georgia's voting system denied voters the ability to easily cast ballots and have them accurately counted, especially for voters of color. The lawsuit targets a series of problems, beginning with Kemp's mass voter registration purges and his draconian "exact match" scheme that led to the suspension of 53,000 voter registrations of an overwhelmingly black group of voters for trivial discrepancies on their registration applications like misplaced punctuation marks.
It also aims to fix the major security vulnerabilities of Georgia's paperless voting machines and its registration databases, of which Kemp's office oversaw a massive security breach in which officials allegedly destroyed evidence to thwart an earlier lawsuit seeking to force the adoption of paper ballots. Furthermore, Abrams' suit seeks to prevent a recurrence of 2018's widespread problems in disproportionately Democratic-leaning jurisdictions both with absentee ballots and many voters being forced to cast provisional ballots.Abrams' lawsuit contends that these failings collectively violated the Voting Rights Act and the Help America Vote Act, along with the due process and equal protections clauses of the 14th Amendment. If she succeeds, Georgia's voting system could become much more accessible, secure, and equitable in future elections.
● North Carolina: After Republican legislators successfully convinced voters to add a photo voter ID requirement to the state constitution in November, they're now moving ahead with legislation to implement the particulars of the new mandate before they lose their unconstitutionally gerrymandered, veto-proof majorities in January. Republicans have already passed a bill in the state Senate on a vote that attracted only minimal Democratic support, and its passage in the state House next week is all but guaranteed.
This new voter ID proposal is less strict than the GOP's 2013 measure, which a federal appeals court struck down in 2016 for targeting black voters "with almost surgical precision." Indeed, Republican legislators that year had ordered data on the types of IDs black voters were disproportionately less likely to have and then barred the use of those very IDs while permitting those they knew white voters were more likely to possess.
The newer version still allows driver's licenses or state non-driver ID cards, military IDs, and Native American tribal enrollment cards like the invalidated law did. However, it also includes IDs from schools in the University of North Carolina system, local elections boards, and IDs that meet certain state requirements if issued by community colleges, private higher education institutions, and local governments. That loosening of restrictions should mitigate the potential for a suppressive impact, but voter ID is still a solution in search of the practically nonexistent problem of in-person voter fraud.
And right as North Carolina Republicans are shepherding through their photo ID bill, an actual scandal that does appear to involve voter fraud is unfolding in the Tar Heel State. Above all else, this new mess shows just how nonsensical the GOP's voter ID push is because lawmakers specifically exempted those voting absentee from needing ID, since Republicans historically cast a disproportionately larger share of absentee ballots.
This week, a bipartisan vote of the state Board of Elections refused to certify results in the 9th Congressional District after signs arose of irregularities in Bladen and Robeson Counties. Currently, Republican Mark Harris leads Democrat Dan McCready by 905 votes, a margin of just 0.3 percent. The board has been extremely vague about the issues that are preventing certification, but the state Democratic Party has submitted affidavits to the board from voters in Bladen County alleging that "serious irregularities and improprieties may have occurred" with regard to absentee ballots.
In addition to specific charges of wrongdoing, such as a voter who said that a woman collected her ballot even though she hadn't signed or sealed its envelope, analysts like Michael Bitzer have observed that Bladen County and neighboring Robeson County had unusually high levels of unreturned absentee ballots. Elizabeth Sbrocco also notes that the number of simple requests for absentee ballots was extremely high in Bladen, prompting her to theorize that the people behind this operation were not "just picking up ballots from people who genuinely requested [them]. They're fraudulently doing the requests and then following up."
Bitzer further points out that Harris won 61 percent of absentee ballots in Bladen, the only county of the eight that make up the 9th District where he outpaced McCready, who overall won 62 percent of absentees district-wide. What makes the Bladen results particularly bizarre is that only 19 percent of absentee ballots received by the county came from registered Republicans, while 39 percent were from independents and 42 percent from Democrats. Therefore, for Harris to win 62 percent of absentees there, he'd need every single Republican and every last independent plus a few Democrats to vote for him—a pattern not seen anywhere else in the district.
What happens next is hard to say. The board could ultimately order a new election, though that would be sure to prompt legal action as the state Republican Party had already threatened to sue if the board failed to certify the results on Friday. In particular, the GOP argues that there aren't enough absentees to affect the outcome, but their math is wrong.
Between Bladen County and Robeson County, which may be just as tainted, Harris won 679 votes, which is indeed fewer than his 905-vote margin overall. However, if, as appears likely, some of those votes for Harris were improperly cast and instead intended for McCready, then there are more than enough votes to impact the outcome, since the figure that matters is in fact 679 times two, or 1,358.
There's a further crazy wrinkle here as well, which is that North Carolina's Board of Elections had been slated to wink out of existence at 11:59 PM ET on Monday until a court delayed that event until noon on Dec. 12. That's because that same state court ruled in October that the current board, which came into being because of laws Republicans have repeatedly passed to try to strip power from Democratic Gov. Roy Cooper, violates the state constitution.
Democrats argue that, once the court's deadline passes, the board should revert to the form it took in 2016, before the GOP started mucking with it, a prospect Republicans steadfastly oppose. As noted above, the board has given itself until Dec. 21 to conduct a further hearing, but barring another stay of execution, if it doesn’t do so by Dec. 12, it could be some time before we get further clarity as legal wrangling over the next version of the board is sure to ensue.
● Judges: In a victory against Republican efforts to stack the federal judiciary with voter suppression enablers, the Senate blocked the nomination of Thomas Farr to a North Carolina district court judgeship after every Democrat and GOP Sens. Jeff Flake and Tim Scott announced their opposition. A top legal counsel to North Carolina Republicans and a protégé of the late segregationist Republican Sen. Jesse Helms, Farr had led the defense of the state GOP's sweeping 2013 voter suppression law that was struck down for what a federal court said was an effort to target black voters "with almost surgical precision."
But Farr's involvement with North Carolina Republicans' voter suppression efforts in fact stretches back decades. Recently disclosed documents reveal that Farr had coordinated the bogus "ballot security" efforts that Helms' campaign deployed to intimidate black voters in his re-election bids in the 1980s and '90s. While Republicans will expand their Senate majority in January after this year's elections, they may be unwilling to try to confirm Farr again amid the ongoing backlash, but Trump is certain to continue nominating judges with similar outlooks.
Voter Registration and Voting Access
● Arizona: After Maricopa County Recorder Adrian Fontes implemented a policy of contacting voters for up to several days after Election Day to fix problems with rejected signatures on their mail ballots, his office disclosed that this policy change resulted in more than 7,000 voters having their ballots counted who otherwise would have been disenfranchised. Republicans had initially sued to stop Fontes, a Democrat, from reaching out to voters after Election Day, but the parties ultimately reached a settlement allowing all counties in the state to contact affected voters until mid-November.
Of the more than 7,000 ballots that would have been rejected without this policy change, Maricopa County was able to verify 96 percent of them and ensure they were counted. Taking additional steps like these is important for ensuring every vote counts, particularly as mail voting grows in popularity and because signature review procedures are often unscientific and arbitrarily enforced.
● New Mexico: Democratic Secretary of State Maggie Toulouse Oliver announced on Tuesday that she'll push for a bill in next year's upcoming session to bring same-day voter registration to New Mexico. Bills to establish same-day and automatic voter registration failed in 2017 when a key Democrat on the state House's elections committee sided with Republicans to block them, but after she lost her primary this year and Democrats expanded their majority, Democratic lawmakers now stand a much stronger chance of being able to pass policies like these to make registration more accessible and secure.
● Oregon: Democratic Gov. Kate Brown's recently unveiled budget plan includes a proposal to require the state to prepay the postage on all mail ballots, which could have a significant impact if passed since Oregon elections are conducted exclusively by mail. Although the U.S. Postal Service's policy is to mail ballots even without a stamp, few voters are aware of this. Having the state pay for postage could save many voters a trip to the post office, making voting more convenient and potentially boosting turnout. Democrats have solid control of the state legislature, and Brown says Republican Secretary of State Dennis Richardson also supports the measure, so it has a good chance to pass.
● Rhode Island: Fresh off winning a second term, Democratic Secretary of State Nellie Gorbea will once again introduce a bill to finally establish early voting in Rhode Island. Democrats have enjoyed lopsided legislative majorities for decades in Rhode Island, and Democratic Gov. Gina Raimondo just won a second four-year term, but similar early voting proposals have failed in recent legislative sessions.
2020 Census
● Census: While the battle over the Trump administration's effort to undermine the 2020 census by adding a question about citizenship is playing out in numerous lawsuits in lower court, the Supreme Court has agreed to hold a Feb. 19 hearing on Trump's request to block the plaintiffs from being able to use depositions of high-ranking administration officials under oath. Although the Supreme Court isn't yet poised to rule on the validity of the citizenship question itself, the justices' decision could determine whether plaintiffs are able to obtain the evidence needed to show the push to add this question is intentionally discriminatory and therefore violates of the Constitution.
Programming Note: The Voting Rights Roundup will be on hiatus the week of Dec. 7. It will return the following week.