● Michigan: Michigan Republicans adjourned their lame-duck legislative session on Friday morning, making the most of their gerrymandered majorities to advance a series of undemocratic power grabs before Democrat Gretchen Whitmer replaces Republican Gov. Rick Snyder in January. Because of these very same gerrymanders, which have helped Michigan Republicans win legislative majorities in five of the last nine elections despite Democrats winning more votes statewide, Democrats will still have narrow deficits in both chambers next session and thus be unable to reverse these proposals if Snyder signs them into law.
One of these bills would gut same-day voter registration by imposing a registration cutoff 14 days before Election Day unless voters physically visit their county or township clerk's office instead of their polling place. This comes despite voters overwhelmingly backing a constitutional amendment in November that guarantees same-day registration (among other pro-voting provisions). Restricting its availability does nothing but deter voter turnout by making it less convenient to vote.
Republicans claim they're merely passing language that "implements" the amendment, but proponents have steadfastly rejected that notion and argue that the GOP's maneuver represents an unconstitutional change to the voter-approved amendment. Consequently, a lawsuit is all but guaranteed if Snyder doesn't veto the measure.
For good measure, Republicans also sent Snyder a bill that takes a buzzsaw to the initiative process itself after the passage of this amendment and another that created an independent redistricting commission to ban gerrymandering. The GOP's bill would require that no initiative can have more than 15 percent of its petition signatures come from a single one of Michigan's 14 congressional districts.
That would make it harder to put progressive measures on the ballot because organizers would be forced to gather a greater share of signatures from more conservative rural areas, where voters are further apart and harder to reach than in densely populated and heavily Democratic regions like the Detroit metro area. This proposal would likely also face a lawsuit: A strategist for the ACLU recently implied that it would run afoul of the signature requirement process laid out in Michigan's constitution.
Republicans also passed another bill that would attempt to neuter the independence of the attorney general's office now that Democrat Dana Nessel is set to end the GOP's 16-year streak holding the position. The legislation would allow the legislature to involve itself in lawsuits even when the governor and attorney general decline to defend them. That would guarantee Republicans the ability to intervene or appeal at taxpayer expense even when Democratic officeholders refuse to defend unconstitutional GOP-passed laws like their partisan gerrymanders, which are currently the subject of ongoing litigation.
Republicans did back off of still another plan to strip incoming Democratic Secretary of State Jocelyn Benson of key powers to enforce campaign finance regulations, dropping a proposal to shift these duties to a bipartisan commission that would have given the GOP a veto over enforcement. However, Republicans sent a separate provision to Snyder that would exacerbate the problem of "dark money" donations by blocking state officials like Benson and Nessel from requiring these groups to disclose the identities of their donors.
Snyder has not signaled yet whether he will sign these measures, but it wouldn't be surprising given his history of approving similar lame-duck power grabs after previous elections. If Snyder approves these latest power grabs, it will cement his legacy as a true enemy of democracy, putting him in a league with Wisconsin's Scott Walker.
● New Jersey: New Jersey's Democratic legislative leaders have backed off of plan to push forward a constitutional amendment to alter the way legislative districts have been drawn, which had drawn widespread outcry from Republicans, nonpartisan good-government groups, and even progressive organizations and Democratic Gov. Phil Murphy. Consequently, the current state of affairs remains intact: Each state party's chair names members of a bipartisan redistricting commission, to which the state Supreme Court's chief justice appoints a tiebreaker.
While some observers attempted to portray this proposal as an unmitigated partisan power grab on par with extreme Republican gerrymandering, that was far from the truth. Nevertheless, the plan's backers in the legislature likely intended to solidify their own power over both the GOP and the governor's allies. Indeed, as we have previously explained, this proposal could have let either party enact a gerrymander because the independent tiebreaker would be tasked with picking one or the other party's plan if they couldn't compromise, much like the broken status quo.
This proposal would have required new maps to adhere to a "partisan fairness" formula in an ostensible attempt to ensure that no party would win a majority of seats without winning majority support statewide. The plan would have also promoted the creation of competitive districts, something that the legislative redistricting commission has implicitly done for decades.
However, these "competitive" districts would have been based on the notion that New Jersey's statewide results represent a competitive environment, but the Garden State leans strongly toward Democrats. In other words, "competitive" seats might have matched statewide voting patterns, but that still meant they would have favored Democrats most years.
A partisan fairness criterion by itself would be a good thing, since it wouldn't be reasonable for Republicans to win majorities in a blue state despite winning fewer votes. But due to its flaws, most nonpartisan experts opposed the proposal.
The University of Florida's Michael McDonald was a rare dissenter, defending the plan as a way to guard against the gerrymandering that the current system allows. Indeed, New Jersey's separate yet similar congressional redistricting commission passed a GOP gerrymander that Democrats didn't overcome until the 2018 wave produced a New Jersey tsunami. However, as the Princeton Gerrymandering Project team convincingly illustrated, the new system would have still been ripe for manipulation by either party.
In particular, the proposal would have allowed either party to put its strongest incumbents in the so-called "competitive" districts while placing its weaker ones in safer districts. Such a map could appear to treat both parties fairly based on statewide results by district, yet actually favor one over the other because of strategic incumbency advantages.
The plan also required that a minimum of one quarter of districts be drawn to be competitive but set no cap on such seats. Democrats could therefore have drawn far more supposedly "competitive" districts that would have nevertheless ensured they'd win lopsided majorities barring a GOP wave—in other words, they could have engaged in classic gerrymandering.
This proposal likely originated as a power play by moderate state Senate leader Steve Sweeney and his allies to undercut the vocally progressive Murphy by allowing legislative leaders to appoint members of the commission directly instead of reserving that power for the party chair, who is a Murphy ally. But it was the plan's pernicious partisan effects that ultimately doomed it.
New Jersey's status quo is still in need of reform: The current system has typically forced the independent tiebreaker to choose from one party's gerrymander or the other's. That system is undoubtedly better than giving lawmakers the unfettered ability to pass egregious gerrymanders that make it impossible for the other party to win a majority, but it falls far short of the model for fair redistricting, such as the independent citizens' commission in California.
While this defeated proposal was a step in the wrong direction, a future version could be turned into a genuinely positive vehicle for reform. That could be accomplished by adding provisions specifying that no map can unduly favor one party or the other; infringe on the rights of communities of color to have an equal opportunity to elect their preferred candidates, whether alone or in coalition with other groups; or unduly favor incumbents. Partisan fairness is a critical goal for improving redistricting, and it would be a major missed opportunity not to require it along with other partisan-neutral criteria.
● North Carolina: Revealing just how desperate they are to stop a new lawsuit threatening to undo their legislative gerrymanders, North Carolina Republicans filed to remove the lawsuit from state court, where plaintiffs originally filed it, and have it transferred to a federal court. This move comes despite the fact that plaintiffs have based their arguments exclusively on the state constitution, which of course the state courts are best positioned to interpret.
Republicans are worried that the five-to-two Democratic majority on North Carolina's Supreme Court will ultimately conclude that the state constitution's guarantees of "substantially equal voting power" and "the right to vote on equal terms" require a ban on extreme gerrymandering, just as Pennsylvania's Supreme Court found earlier this year on similar grounds. Pennsylvania Republicans attempted this exact same maneuver only to have the federal courts reject it.
Unsurprisingly, the North Carolina GOP's arguments to buttress this stalling mechanism are nothing short of absurd. Republicans claim that redrawing their partisan gerrymanders would violate the U.S. Constitution's 14th and 15th Amendment bans on racial discrimination and the infringement of voting rights on account of race. But when those very same Republicans were forced to redraw the maps in 2017 after they were struck down in federal court for racial discrimination, they claimed they ignored race entirely in favor of partisan advantage to avoid further charges of racial discrimination.
Republicans are also trying to argue that the state courts would be unlawfully overstepping their bounds into federal law, which is utterly ridiculous because they literally argued the exact opposite in another gerrymandering lawsuit as recently as this year. Indeed, when Republicans redrew the maps in 2017, the federal court overseeing the case determined that the GOP took the opportunity to redraw seats for partisan advantage that didn't need to be changed to remedy racial discrimination. That move violated the state constitution's ban on mid-decade redistricting, which only a court order can supersede.
In response, Republicans successfully convinced the U.S. Supreme Court that the federal district court couldn't adjudicate matters of strictly state-constitutional law like the mid-decade redistricting ban, but now they're trying to convince the federal courts to take a directly countervailing approach and step into the fray when the issues at stake involve only claims that the GOP is in violation of the state constitution and nothing more.
This gambit will likely fail, but Republicans may be hoping to simply run out the clock and delay litigation as long as possible until they can convince the conservative majority on the U.S. Supreme Court that it's too late to implement new maps for 2020. That would effectively render the case moot, since new maps will need to be drawn for 2022, following the next census. However, given that it took less than a year for the Pennsylvania case to be resolved in favor of the plaintiffs, a similarly swift suit would leave ample time in late 2019 for North Carolina's Supreme Court to order fairer districts be used for 2020.
Voter Registration and Voting Access
● New Jersey: Democratic Gov. Phil Murphy has announced a push for a sweeping voting rights agenda at the start of next year's legislative session, which has a good chance of passing thanks to solid Democratic majorities in both chambers. Murphy has proposed letting voters register on the same day they cast a ballot, including Election Day itself; enacting online voter registration; creating a 30-day period for in-person early voting; restoring voting rights to those with felony convictions who are on parole or probation; and letting 17-year-olds participate in primaries if they turn 18 by the general election.
● New York: Democratic Gov. Andrew Cuomo is finally joining the chorus for voting rights reform in New York, after Democrats' massive success in 2018's elections has now given them full control over state government for the first time in a decade. Cuomo has proposed creating an early-voting period for the first time; establishing automatic voter registration; allowing vote-by-mail; making Election Day a state holiday; and combining New York's separate state and federal primaries to save money and boost turnout.
This move is indicative of the strong chance these reforms have of passing now that Democrats will have their most secure grip on state government in decades, but it's worth reiterating that this all comes in spite of Cuomo's efforts and not because of them. That's because Cuomo has spent years cynically propping up the very Republican state Senate majority that has blocked such reforms by granting them one of the most extreme gerrymanders in the country and tacitly supporting a renegade faction of GOP-backing Democrats until the political winds changed direction this year.
● Louisiana: In an unexpected development, Louisiana lawmakers have discovered that a reform they passed earlier this year to restore rights to those still on parole or probation who have been out of prison for at least five years could instead restore the franchise to a dramatically larger number of people. The 2018 change was thought to have restored voting rights to just roughly 2,200 of the more than 70,000 people who are disenfranchised yet not imprisoned (a rate of just 3 percent), but officials now say the law could be interpreted to apply to closer to half of that 70,000 figure—an order of magnitude larger.
The confusion comes from the fact that the law says people are eligible to vote if they are on parole or probation and haven't been imprisoned within the last five years. However, the vast majority of citizens on probation were never imprisoned as part of their sentences. As a result, the law could mean that nearly all of those on probation get to vote regardless of whether it has been five years since their sentences began.
Consequently, litigation looks likely, with voting rights advocates pressuring newly elected Republican Secretary of State Kyle Ardoin to approve the more expansive interpretation of the law. Ardoin opposed the original bill when it was passed earlier this year, but he's since said he will implement it as required under the law—but just how broadly he'll implement is not yet known. It's possible the GOP-dominated legislature could pass more restrictive language to clarify the law, but Democratic Gov. John Bel Edwards could also veto such a bill.
● North Carolina: As expected, Republican legislators in North Carolina made the most of their illegally gerrymandered lame-duck supermajorities and overrode Democratic Gov. Roy Cooper's veto of their new voter ID law. This new law is less strict than the one Republicans passed in 2013, only to see it struck down in 2016 after a federal court said it targeted black voters with "almost surgical precision." However, it's still a pseudo-solution in search of a nonexistent problem, since voter impersonation fraud at the polls is extremely rare.
Furthermore, this new ID requirement would have done nothing to stop the very real case of fraud that GOP congressional campaign operative McCrae Dowless likely perpetrated against voters, in an apparent effort to suppress Democratic votes and even cast illegal votes for Republican Mark Harris in the 9th Congressional District. The state Board of Elections has refused to certify the results of this tainted race and appears likely to order a new election next year, particularly since board investigators recently released damning new evidence of Dowless' activities.
Within mere minutes of the legislature's override vote, the Southern Coalition for Social Justice filed a lawsuit in state court arguing that parts of the new photo ID requirement violate North Carolina's constitution, even though GOP legislators got their wish after voters approved a constitutional amendment this year to require such IDs. Nevertheless, the plaintiffs have a decent chance to prevail in spite of the new amendment.
That's because, like many states, North Carolina's own constitution contains stronger protections guaranteeing free and fair elections and the right to vote than the U.S. Constitution does. Even the new voter ID amendment can't negate those provisions, especially if the state courts find parts of it discriminate against voters of color. North Carolina Democrats secured a five-to-two majority on the state Supreme Court in 2018, meaning there's a reasonable chance it could ultimately curtail the worst of the voter ID law in a way that's insulated from federal review. (Missouri's court did much the same thing earlier this year.)
Meanwhile, Cooper has vetoed a separate new bill reconstituting the elections board, which legislators passed with broad bipartisan supermajorities. However, Cooper's objection wasn't to the elections board changes, where Republicans finally capitulated and agreed to let the governor appoint Democratic majorities to the board that could reverse past GOP voter suppression measures. Instead, Cooper had opposed a Republican-backed provision that would undermine campaign finance regulation enforcement, previously saying he'd sign the bill without that provision. Republicans are expected to come back to override his veto on Thursday.
● Maine: Defeated Republican Rep. Bruce Poliquin has filed an appeal of his unsuccessful suit to overturn his narrow loss to Democrat Jared Golden as a result of Maine's new instant-runoff voting system, also known as ranked-choice. However, the federal district court rejected his bid to have the new voting system ruled unconstitutional and excoriated his flimsy legal argument. Consequently, it's doubtful that Poliquin will succeed on appeal.
Programming Note: The Voting Rights Roundup will be on hiatus the week of Dec. 28 for the holidays. It will return the following week.