Voting Rights Roundup: Trump unveils partisan plan to undermine the 2020 census for GOP gain

Leading Off

● 2020 Census: In a bombshell development, the Trump administration announced it would add a question on citizenship to the census in 2020, a topic that hasn’t been included since 1950. The move immediately sparked a firestorm and swift promises of lawsuits from state attorneys general, since it could discourage millions of immigrants and people of color from participating in the upcoming count. That could lead to a massive undercount that skews the census toward over-representing demographic groups that favor Republicans, in essence letting the GOP weaponize the census for partisan gain.​

​According to the Constitution, the census must try to count literally every single person in the United States, regardless of whether or not they are a citizen or are authorized to be in the country. Asking about citizenship could undermine this entire effort. Such a question could have a chilling effect on the ability of the census to count undocumented immigrants and even their citizen children. It might also deter even those with legal status from participating for fear of wrongful deportation, as the Trump administration has moved to more aggressively deport undocumented immigrants in ways that violate people's civil rights.

Consequently, this question could lead to a dramatic undercounting of Latinos and Asian-Americans in particular. That would subsequently give places with large Asian or Latino populations far less representation than they rightfully deserve in a system where officeholders are supposed to represent all of their constituents, not just those who can vote.

What’s more, since these two groups lean disproportionately Democratic, such an undercount would ultimately deny Democrats political power by shifting districts away from cities like Dallas, Houston, Los Angeles, New York, and but also from more rural areas with high Latino populations, like South Texas. In return, it would give rural white areas—which lean heavily Republican—outsized representation. This likely impact on congressional reapportionment could mean that red states like Texas would lose seats, but it will still likely be Democratic-leaning areas within those states that get underrepresented.

For this reason, Trump’s claim that this change is needed so that the Justice Department can protect voting rights is downright Orwellian, particularly because voting rights advocates have never sought to include this question on the census and, in fact, bitterly oppose it. It’s all too easy to believe that motivation behind this push comes from the same wellspring that has seen the Justice Department support partisan voter suppression efforts ever since Jeff Sessions became attorney general.

Even more dangerously, asking a question about citizenship could give GOP legislators grounds to ignore non-citizens by drawing districts based only on citizen population instead of total population, as is the practice now. Doing so would further exacerbate the under-representation of Latinos, who often cluster in urban areas and have a larger proportion of non-citizens and children than most other demographic groups.

In part, conservatives have been unsuccessful in pushing for districts to be drawn based on citizen population because of a lack of data. In 2016, the Supreme Court unanimously ruled that states couldn't be forced to count only on eligible voters when drawing districts, and a key reason was because the census doesn't ask about citizenship. But including a citizenship question could open the door for states to be allowed to draw districts based on citizenship, something the court didn't expressly forbid.

Asking about citizenship on the census would affect far more than fair representation. By needlessly intimidating people into getting undercounted, our demographic understanding of the American population would be skewed and public money would get misallocated, since census population figures determine federal funding for a wide range of government services, including public safety.

It's also simply unnecessary, because the census conducts a large-scale, annual survey called the American Community Survey that statistically samples the U.S. population, and these studies include a question about citizenship. Combined with Trump's aborted attempt to appoint an ultra-partisan Republican with no administrative experience to run the census, his push for a citizenship question demonstrates a disturbing effort to manipulate the census for nakedly partisan ends and could have a huge impact on public life for an entire decade—or more.

Redistricting

● Colorado: Competing redistricting reform groups have agreed to a compromise that could see them unite behind a smaller set of measures on this fall's ballot. Last year, a group called Fair Districts Colorado had announced plans for multiple initiatives, while another group called People Not Politicians unveiled its own proposals. However, they have now settled on presenting just two measures, one that would change congressional redistricting procedures, and another that would do the same for legislative redistricting. (Colorado places a limit on how many subjects an initiative can cover, necessitating multiple ballot measures.)

The text of the proposed measures has not been released yet, but they’ll reportedly feature a bipartisan commission with unaffiliated members that would decide on any new maps. The measures would also require that map-makers rely on nonpartisan criteria, such as taking into account communities of interest and preserving city and county integrity, and would also mandate more competitive districts.

It's not known what transpired to get the two groups to join forces. However, Fair Districts Colorado had faced criticism that they insufficiently addressed the concerns of minority communities, and a failed 2016 ballot initiative campaign backed by some of the group’s supporters had drawn opposition from civil rights groups for that very reason.

By contrast, the list of organizations supporting People Not Politicians includes major civil rights groups like the ACLU and NAACP, the nonpartisan reform organization Common Cause, as well as other progressive-leaning activists. Hopefully, this means that concerns about adequate consideration of minority communities have been addressed, but we'll know more once the new ballot proposals are officially unveiled.

● Maryland: On Wednesday, the Supreme Court heard oral arguments in a major case called Benisek v. Lamone in which the plaintiffs contend that Maryland's Democratic-drawn congressional map is a partisan gerrymander in violation of the Constitution. While a majority of justices appeared skeptical of partisan gerrymandering, the proceedings made it far from clear how the court might resolve the issue. As we have previously explained, this case could see the Supreme Court finally establish a standard for determining when partisan gerrymandering is unconstitutional, something it has refused to clarify for more than 30 years.

The Benisek plaintiffs are relying on the First Amendment to challenge a single congressional district, Maryland’s 6th, that Democratic map-makers flipped from red to blue. The plaintiffs' standard would have this district struck down on the basis of discriminatory partisan intent because Democrats, under this theory, “retaliated” against Republican voters over their views.

The Benisek standard is markedly different from the one put forth in the Wisconsin case Gill v. Whitford, which the court heard in October. The Whitford plaintiffs relied on the 14th Amendment's Equal Protection Clause to challenge the entire state Assembly map drawn by Republicans. Importantly, discriminatory intent alone would not be sufficient to invalidate a map under Whitford’s proposed standard.

Conservative Justice Anthony Kennedy has long been viewed as the swing vote in any decision over partisan gerrymandering, with the court's four liberals openly inclined to place limits on the practice. Just as he did in the Whitford arguments last October, Kennedy asked the Maryland defendants if a law would be unconstitutional if it explicitly required the government to discriminate in favor of one party over the other in redistricting. In both cases, the defense conceded that such a law would indeed violate the Constitution.

While Kennedy appears to be searching for a standard for curbing partisan gerrymandering, the other justices' comments suggested the court is still undecided on what standard to adopt—if any, since the other conservatives on the bench remain opposed to policing the practice. Liberal Justice Stephen Breyer even floated the idea of having the plaintiffs from three major partisan gerrymandering lawsuits—Benisek, Whitford, and another case concerning North Carolina—all present their competing legal theories at a combined hearing during the court’s next term, which would of course mean a further delay.

Regardless, now that the high court has heard both Benisek and Whitford, a ruling could come at any time in either case. However, it would not be surprising to see the court wait until near the end of its term in June to issue its decisions, which it often does in major cases.

● Pennsylvania: Finally, we have a bit of sanity from a Republican legislative leader regarding the GOP’s flagrantly undemocratic proposal to impeach four of the Democratic state Supreme Court justices who struck down the GOP's congressional gerrymander. State House Majority Leader Dave Reed said late last week that while he disagreed with the court's ruling, "disagreement over the outcome of any particular case should not be grounds for impeachment."

As we've previously written, impeachment is unlikely to happen, since it would take just a single Republican to block it in the state Senate. However, the fact that GOP leaders have actively considered this extreme action can only help to diminish the legitimacy of the judicial branch in the eyes of Republican voters.

Voter Registration

● Alaska: A committee in Alaska's Republican-run state Senate recently passed a provision that would repeal the automatic voter registration law voters overwhelmingly passed in 2016 by turning it from an opt-out to opt-in system. Fortunately, this bill is unlikely to become law because a Democratic-led coalition leads the state House, and independent Gov. Bill Walker won his job in 2014 with Democratic support. However, it could foreshadow a far more serious threat to repeal the statute if Republicans win back power in November. Alaska doesn't allow voters to put their own amendments to the state constitution on the ballot, limiting the options against legislative tampering with voter-passed measures like the automatic voter registration law.

● Maryland: Democrats in Maryland have used their large legislative majorities to pass two measures intended to make voter registration easier and more accessible. The first one puts a constitutional amendment on the November ballot that would allow voters to register and cast a ballot at the same time on Election Day, a practice known as “same-day” registration and one that is currently an option only during the early voting period.

Democrats also passed a bill to automatically register eligible voters starting in 2019, unless they opt out. Importantly, this measure isn't just limited to those who obtain or renew their driver's license or state ID card. It will also cover several other state agencies such as Maryland's health insurance exchange, meaning that many citizens who don't drive will also have the chance to be automatically registered.

It's unclear whether Republican Gov. Larry Hogan will sign the automatic registration law, since nearly every Republican legislator voted against it. However, Democrats passed it with veto-proof majorities, so they should have the votes to override any potential veto.

● New Jersey: New Jersey Democrats have passed three measures out of a state Senate committee to expand voting rights. One bill would automatically register eligible voters when they obtain or renew their driver's license or state ID card. This measure unfortunately doesn't cover other state agencies, which could leave out many eligible voters who don't drive, such as the elderly or disabled. However, it would still be a major improvement over the status quo.

The two other bills would enable online voter registration and require counties to offer in-person early voting for roughly two weeks before Election Day. New Jersey currently offers limited in-person early voting, but this measure would require each county to establish between three and seven polling places and to also set hours of operation sufficiently long enough to enable people to cast ballots after the typical workday ends.

These measures have a good shot at passing, since Democrats control both chambers of the legislature and have already approved automatic registration in past sessions. While former GOP Gov. Chris Christie vetoed automatic registration in 2016, new Democratic Gov. Phil Murphy firmly supports these measures to strengthen voting rights.

Voter Suppression

● Georgia: Georgia's legislature recently adjourned its 2018 session, and Republican lawmakers failed to pass a bill that would have cut Atlanta's polling hours and pressured counties to eliminate Sunday early voting. Republicans hadn’t hidden the fact that their motivation for this proposal was to make voting harder for black voters, and particularly to clamp down on black churches organizing "souls to the polls" voter drives after Sunday services. Had this proposal become law, it would have almost certainly drawn lawsuits over racial discrimination.

Felony Disenfranchisement

● Florida: A federal judge recently ordered GOP Gov. Rick Scott and Florida’s three other statewide elected officials (all of whom are Republicans) to come up with a new system to handle the restoration of voting rights for citizens who have completed their felony sentences. The judge's order gives officials a month to implement a new system after the court previously struck down the existing process in February as unduly strict and arbitrary in violation of the right to equal protection of the laws.

When Scott took office in 2011, he unilaterally implemented new and deliberately burdensome clemency application requirements. Consequently, Scott has only restored the voting rights of 3,000 people in his seven years in office, even though Florida disenfranchises well over 1 million citizens.

Separately, Floridians will also vote on a ballot measure this fall to automatically restore voting rights for the vast majority of citizens who have completed their sentences. If it passes, it would likely have a far greater impact than any new clemency system Scott comes up with.

● Mississippi: The Southern Poverty Law Center filed a new federal lawsuit on Tuesday challenging Mississippi's state constitution for effectively disenfranchising those with felony convictions for life by making the process for restoring voting rights almost impossibly onerous. Mississippi law currently requires the legislature itself to pass an individual bill to restore a person’s voting rights, and Republicans such as Gov. Phil Bryant have resisted recent efforts to lower this monumental obstacle.

This latest lawsuit is related to another one filed last September, but it does differ in an important way. The new suit is challenging the process for restoring voting rights, while the first suit is challenging the list of offenses that lead to disenfranchisement in the first places, arguing that the list is intentionally racist. Consequently, these two legal challenges could work in tandem to curtail one of the most restrictive felony disenfranchisement regimes in the country.

Ballot Measures

● Colorado: A federal judge recently blocked a key part of a successful 2016 ballot initiative that made it harder to put future initiatives on the ballot. The judge struck down a requirement that initiative organizers must gather signatures amounting to two percent of registered voters in each of Colorado’s 35 state Senate districts to get onto the ballot. The decision deemed the provision an infringement of the "one-person, one vote" principle under the Equal Protections Clause, since districts have varying populations. Republican Secretary of State Wayne Williams' office said he would appeal the decision.

The ruling did leave in place another provision of the ballot measure, which raised the bar for amendments to pass from a simple majority to 55 percent. However, eliminating the geographic distribution requirement should make it much easier to put initiatives on the ballot in the future. Without that burden, organizers won’t have to spend as much time canvassing far-flung rural districts and can instead focus on gathering signatures in major cities, where population density usually makes canvassing much quicker and cheaper.

● Maine: In a potentially major setback for election reformers, Democratic Secretary of State Matt Dunlap revealed on Thursday that lawyers in the state attorney general's office had told him instant-runoff voting (IRV) can’t be used in the June primaries due to an alleged drafting error. Dunlap said his office will still proceed with implementing IRV, which was approved by voters at the ballot box in 2016, but warned there was still a risk of a legal challenge.

We have previously covered how the IRV law faces an attempted repeal by the legislature, which proponents are trying to veto in a referendum concurrent with the primary election. It is in this “people’s veto” that Dunlap says the error lies, according to backers of IRV. The dispute is highly technical, but in essence, Dunlap and the attorney general’s office maintain that the veto referendum, which stayed the legislature’s repeal from taking effect the moment it qualified for the ballot, would revert the state back to using its original law. That law—the one that predates the ballot measure implementing IRV—only requires candidates to win a plurality of the vote, not the majority necessary under IRV.

While Dunlap and state Attorney Janet Mills have called for the legislature to fix this potential issue, Republican legislators would almost certainly block such a measure given their hostility to IRV. Making matters even messier, Mills herself is a leading candidate in the Democratic primary for governor, and one of her opponents, former state House Speaker Mark Eves, has now accused her of trying to sabotage IRV to help her own primary campaign.

All we can say at the moment is that no one knows for sure whether IRV will be used in June. IRV proponents said they plan to ask a court for an injunction to force Dunlap to implement IRV, arguing that the issue the attorney general's office flagged shouldn't undermine the law. Maine will soon have to start printing ballots, so the courts will have to move quickly to clarify where things stand.

Election Security

● Georgia: Georgia Republicans failed to pass a bill to address the potential security vulnerabilities of the state's paperless electronic voting machines, but their proposal itself had drawn criticism from Democrats and election reform groups. Security advocates argued the bill was deeply flawed because it wouldn’t require paper ballots. Critics also felt the bill was too vague regarding Georgia’s procedures for handling recounts and audits of results.

Elections

● Wisconsin: In a victory for democracy, Wisconsin’s Republican Gov. Scott Walker finally agreed to call special elections on Thursday for two state legislative seats that have been vacant since December. Walker had tried leaving these seats empty until the regular November elections solely because Republicans were worried Democrats could win them. This would have meant these voters would have gone without representation for nearly a year. However, a state judge recently ordered Walker to call the special elections by Thursday as required by state law.

Walker and Republicans didn’t react well to the court’s initial ruling. Instead of calling the elections, they decided to call a special legislative session to change the law governing special elections in order to nullify the court’s order. However, Republicans have now dropped those plans, after both the circuit and appellate courts declined—in scathing terms—to extend Thursday’s deadline and give Republicans more time to enact their nullification plans.

Consequently, the elections for these vacant state Senate and state Assembly seats will now proceed, with primaries on May 15 and general elections on June 12. Though both districts (SD-01 and AD-42) were carried by Trump, Democrats flipped a Senate seat that was just as red in January, so they have a real chance to flip two more.