● North Carolina: In late January, North Carolina's Supreme Court delivered a major victory for voting rights when it struck down a law that Republican legislators had passed in 2017 to remove the Democratic majority from state and county election boards. This law sought to create new boards with an equal number of members from each party under the guise of partisan fairness, but its real purpose was to give Republicans veto power over Democratic efforts to undo GOP voter suppression efforts put in place when Republicans held majorities. (Funny how they didn’t have a problem with that setup back then.)
Republicans had intended this law to create partisan deadlocks so that Democrats couldn't overturn GOP cuts to early voting and restore polling places that had been removed from Democratic-leaning places like college campuses and heavily black neighborhoods. Most dangerously, this law would have had counties default to the statutory minimum of a single early voting location if a county board couldn't agree on a full-fledged early voting plan. That would have enabled Republicans to force heavily populated Democratic counties to rely on just one early voting site, producing hours-long voting lines that discourage voter turnout.
This recent ruling marks the second time that a state court has thrown out this attempted Republican power grab. The GOP initially passed a law to achieve the same ends shortly after Democratic Gov. Roy Cooper defeated McCrory in 2016, but a court held that if Republican legislators had the authority to make appointments to the boards, as they sought, that would violate the separation of powers. The GOP’s second effort attempted to circumvent this ruling by forcing the governor to appoint an equal number of members of both parties from a list of names selected by the parties themselves, but the state Supreme Court decided that this also ran afoul of the separation of powers.
Importantly, this latest decision, which fell along party lines, was only possible because Democrats gained a one-seat majority on the state Supreme Court in 2016. Unfortunately for Cooper, the court did not immediately lift a stay that has prevented the governor from making new appointments to the state board. However, this ruling will almost certainly mean that Cooper can finally appoint a Democratic majority ahead of the 2018 elections and use that power to expand access to voting.
The decision concerning the elections boards wasn't the only recent court victory for voting rights in North Carolina. Separately, a federal district court also issued an injunction against a GOP-backed law that entirely eliminated primaries in judicial races for 2018. Republicans had previously made these races partisan in order to win more power, and eliminating the primary would have resulted in all candidates competing on a single ballot in November with only a plurality required to win; this would greatly benefit incumbents with existing name recognition.
We have long maintained that judicial elections are bad for democracy and impartial justice, but if they do take place, they must at least be conducted in a fair manner. Now, thanks to the courts themselves, they will be, and with a key state Supreme Court race coming up this fall, that’s especially important. Republican incumbent Barbara Jackson is the only high court justice up for re-election, and this ruling gives Democrats a much more equitable shot at prevailing by letting them consolidate behind a single nominee.
● Gerrymandering: In an astonishing display of candor, NRCC chair Steve Stivers said what Republicans aren't supposed to say about partisan gerrymandering. When asked why he thought the GOP might still maintain its House majority in November despite a Democratic-favoring midterm environment, Stivers said the quiet part aloud:
But the first reason, he says, is a factor everyone knows about, but which Republicans rarely tout out loud: “I think it starts with the congressional lines,” Stivers said, pointing to the successful gerrymandering after 2010. Later, asked whether that validates Democrats’ argument that Republicans have tilted elections to their advantage, Stivers shrugged off the criticism: “You can say that, but the people elected them.”
With the Supreme Court poised to possibly impose limits on partisan gerrymandering for the first time in several pending cases, Republicans in many states have been careful to avoid admitting the maps are gerrymandered in their favor.
But this revealing statement from Stivers isn't unprecedented from a prominent Republican. Almost immediately after the 2010 midterm wave swept Republicans into power in states across the country, giving them control over redistricting, top GOP strategists touted how gerrymandering would preserve their House majority in 2012. Indeed, we have previously demonstrated that these Republicans were in all likelihood correct, since gerrymandering probably cost Democrats the House that year. And given the strong degree to which congressional maps still favor Republicans in 2018, it could very well do so again this November.
● Pennsylvania: Back in January, Pennsylvania's Supreme Court struck down the GOP's congressional gerrymander for violating the state constitution, but Republicans have waged a long-shot appeal and have asked the U.S. Supreme Court to stay the state court's decision. The plaintiffs gave the Supreme Court their response to the GOP’s stay request on Friday, meaning the court could act at any time. This case should be clear-cut: Any understanding of federalism ought to tie the Supreme Court's hands, since the matter solely concerns a state court's interpretation of Pennsylvania's own constitution. However, after Bush v. Gore, it wouldn't be the first time that a conservative majority on the Supreme Court ignored centuries of precedent to overturn how a state constitution governs the handling of elections.
If the high court does behave as capriciously as it did after the 2000 presidential election and grants a stay here, Pennsylvania's unconstitutional gerrymander would remain in place for 2018. More than that, such a decision could set an even more dangerous precedent for how courts interpret the U.S. Constitution's Elections Clause, which states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.
Republicans have used a twisted argument that the Elections Clause's use of "legislature" literally refers to legislators only, preventing a state court from ever interfering with how the legislature runs congressional elections. But the Supreme Court previously rejected a very similar argument in a 2015 case where Arizona Republicans insisted that the word "legislature" in the Elections Clause precluded voters from passing a ballot initiative to establish an independent redistricting commission free from legislative control.
There, the court ruled that "nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the state’s constitution." In effect, "legislature" means those who exercise legislative power, including the people themselves via ballot initiatives to amend state constitutions.
It would be strange to see swing Justice Anthony Kennedy, who sided with the liberal justices in the Arizona case, reverse himself by agreeing to issue a stay of the Pennsylvania ruling. But the famously mercurial Kennedy himself voted with the conservative majority in Bush v. Gore to overturn the Florida Supreme Court's decision to conduct a full recount in that year’s presidential race. And if Kennedy and the other conservatives agree to grant a stay, it would undermine any attempts across the country from state courts and citizens to constrain legislators from passing congressional gerrymanders.
If, on the other hand, the Pennsylvania Supreme Court's ruling stands, GOP legislators will have until Feb. 9 to pass a new map that does not discriminate against Democratic voters. However, Republicans have no intention of doing so, since Democratic Gov. Tom Wolf has promised to veto any replacement gerrymander, which would in turn require the state courts to draw their own nonpartisan map.
But in a shocking display of disregard for the rule of law, Republican state Senate President Pro Tempore Joseph Scarnati told the state Supreme Court that he simply would not comply with their order to produce a new map and to turn over precinct data to help the court draw new districts if it ends up having to do so itself. In a letter to the court, Scarnati stunningly declared that its decision was unconstitutional—a determination that only the U.S. Supreme Court can make—and that he plans to ignore it. Such a choice, however, could land him in contempt of court.
If the U.S. Supreme Court adheres to long-standing precedent, it should reject this stay request and let the Pennsylvania Supreme Court implement a new congressional map for 2018. The state court has already appointed a nonpartisan expert to assist in drawing a replacement map, and if its ruling stands, Pennsylvania will be well on its way toward having much fairer districts this November.
● Virginia: In late January, Republicans used their one-seat state Senate majority to pass a bill on a near party-line vote that ostensibly reforms Virginia's redistricting procedures to curtail gerrymandering, but the actual bill will likely do almost nothing of the sort. The GOP proposal simply establishes vague language that districts must be "compact," but the state constitution already contains a similar provision. Indeed, nonpartisan plaintiffs are currently waging a case before the state Supreme Court arguing that Virginia’s existing legislative gerrymanders violate this state constitutional requirement.
While Republicans touted this measure as one that would combat unfair districts, they notably declined to incorporate a Democratic proposal that would have banned legislators from intentionally favoring or disfavoring a party or candidate. Furthermore, relying on compactness alone is a poor way to fight gerrymandering when it isn't combined with other nonpartisan criteria. Indeed, the U.S. Supreme Court itself held just last year that compactness on its own wasn't a sufficient reason to determine whether a district was racially gerrymandered when it adjudicated a federal lawsuit against Virginia's GOP-drawn state House map. Consequently, this toothless bill is nothing more than empty talk and window-dressing.
Voter Registration and Secretary of State Elections
● Massachusetts: Despite having Democratic legislative supermajorities for decades, Massachusetts lags far behind when it comes to making voting as easy and accessible as possible, but longtime Democratic Secretary of State William Galvin finally appears to be responding to pressure over this failing. Galvin recently filed a bill to establish same-day voter registration, which allows voters to register and cast a ballot on Election Day itself.
Galvin's move comes as Boston City Councilor Josh Zakim is giving the incumbent his first real primary challenge in ages, and Zakim has made passing same-day registration (as well as automatic voter registration) a key part of his platform. Zakim has criticized Galvin for continuing to appeal a 2017 state court ruling that threw out Massachusetts' too-early registration deadline for violating the state constitution, which would enable same-day registration if that ruling stands.
Fundraising reports also indicate that this could be a primary to watch. Zakim raised $108,000 since joining the race in November, almost twice as much as the $59,000 that Galvin took in. However, Galvin had an advantage in cash-on-hand of $2.6 million, compared to $441,000 for Zakim.
Galvin has been in office since his election in 1994, and he may be too entrenched to lose. But regardless of who wins this primary, it's encouraging to see Galvin finally take greater steps toward making it easier to vote in Massachusetts. However, there's still a ways to go to convince legislators to pass these bills to expand voting rights.
● Republican National Committee: On Wednesday, Democrats appealed a federal district court decision that ended a consent decree preventing the Republican National Committee from engaging in bogus "ballot security" measures. As we have previously explained, this legal order had been in place since 1982 and had blocked the RNC from engaging in voter suppression tactics like sending a fake "Ballot Security Task Force” to intimidate voters at the polls. However, the district court recently let it expire after the RNC pleaded it had been on its best behavior for years.
● Florida: A committee on Florida's Constitution Revision Commission has advanced a proposal that would open up Florida's closed primaries to unaffiliated voters by getting rid of party primaries and adopting a top-two primary system. This proposal would have all candidates compete on a single primary ballot, with the top two finishers advancing to the general election regardless of party.
And it could become law, though its path is long. Every 20 years, Florida's state government leaders get to appoint this constitutional commission, which can place proposed state constitutional amendments directly on the ballot. This proposal would still have to pass another committee and then the full commission, which is heavily tilted toward Republican appointees, before finally needing to obtain at least 60 percent support from the voters at the ballot box.
We adamantly hope it doesn’t. The top-two primary is the system California and Washington use for their state and federal elections, but it's terrible for democracy. One chief reason why this method is so awful is that a party can win a majority of votes cast in the primary, yet get shut out of the general election simply because it fielded too many candidates while the minority party only puts forth a few or even just two. Furthermore, primary electorates often feature vastly different demographic compositions than higher-turnout general elections, producing greater partisan dissonance between the two rounds.
These distortions have seen one party or the other get shut out of general elections in recent years, including in contests they likely would have won if the parties had gotten to nominate a single candidate each. Proponents argue that top-two would allow unaffiliated voters to have more influence and also that it gives minority-party voters more sway to elect centrist candidates in same-party general elections in districts that heavily favor the majority party.
But instead, this system creates perverse incentives where party organizations have to coordinate to advance particular candidates before primary voters even get a chance to weigh in, lest their party get shut out of a general election. And same-party contests have done little to promote moderation in either California and Washington, instead leading to a spike in voters skipping same-party contests on their ballots.
If the goal is to enable unaffiliated voters to participate more and to reduce the ability of districts heavily tilted toward one party to produce ideological extremists, top-two is a resounding failure compared to other reforms like instant-runoff voting, which Maine voters chose to adopt in 2016 (see our Maine item below). This system allows voters to rank their preferred candidates, and if their top choice has too little support to win, their vote gets transferred to their next preference. This process repeats until one candidate earns a majority, and it significantly reduces the chance that the more popular of the two parties can lose simply because it had too many candidates in the field.
Fortunately, it's unclear if this top-two proposal even has a shot at clearing the entire commission, and some local Republican Party leaders are vigorously opposed to it. If the commission's goal is to foster higher participation in primaries, there are many other measures that could increase turnout that it ought to consider, particularly same-day voter registration.
● Maine: Proponents of a ballot effort to block the legislature's effective repeal of Maine's new instant-runoff voting law say they have obtained enough voter signatures to put a veto referendum on the June primary ballot and plan to submit them on Friday. If roughly 61,000 of the signatures are valid, it would automatically suspend the legislature's repeal of the voter-initiated change to Maine's electoral system, meaning Maine would conduct both parties' primaries using instant-runoff voting this spring while voters simultaneously decide whether to keep the new system. We have previously discussed at length the legal controversy regarding this law and the legislature's attempt to undermine it.
● Florida: On Thursday, a federal district court judge struck down Florida's onerous system governing how people with felony convictions who have completed their sentences can regain their right to vote. Florida bans all citizens with a felony conviction from ever voting again unless the state grants them clemency on a case-by-case basis. Consequently, Florida disenfranchises one in 10 adults, the highest proportion of any state. If it survives a likely appeal, this ruling wouldn't automatically restore voting rights, but it could make the clemency process far less burdensome and discriminatory.
When Republican Gov. Rick Scott took office in 2011, he dramatically restricted the system even his GOP predecessors (in particular now-Democratic Rep. Charlie Crist) had used to restore voting rights to hundreds of thousands over the years. Scott imposed a five-year waiting period after completion of a sentence, required applicants to adhere to far stricter rules and standards for documentation, and even forced some applicants to appear in person at a hearing.
Furthermore, the clemency board consisted of the governor and the GOP-dominated state cabinet, and it only met four times a year, leading to a backlog of about 12,000 cases. Consequently, whereas Crist granted clemency more than 150,000 times in four years, Scott has done so for just a few thousand people over his seven years in office.
The federal court found that Scott’s strict and haphazard procedures violated citizens' rights to equal protection. This ruling is a major blow against a Jim Crow policy that Scott and Republicans have used to gain a partisan advantage, but it may end up becoming moot—and for a good reason. That's because voters will decide on a ballot initiative in November that would automatically restore voting rights to all those who have completed their sentences (aside from those convicted of murder and sexual crimes). If that amendment obtains the 60 percent support needed to pass, nearly 1.5 million people could regain the right to vote without having to jump through any burdensome hoops.