● Texas: On Tuesday, the Supreme Court heard arguments in a never-ending case over racial discrimination in Texas' Republican-drawn congressional and state House districts, and the outcome could set a major precedent over the use of race in redistricting. However, as we'll explain, it's an abridgement of justice both that this case isn't over yet and that the Supreme Court is prematurely entertaining the GOP's appeal of two 2017 court orders that deemed both maps had intentionally discriminated against black and Latino voters.
The 2017 district court cases hadn't even concluded before Republicans appealed to the Supreme Court, which temporarily blocked the lower court rulings. Importantly, the lower court had yet to issue an injunction blocking the existing maps from being used in 2018. All it had done was find them discriminatory and direct GOP Gov. Greg Abbott to tell the court whether he would call a special legislative session to pass remedial maps. Consequently, one of the major issues in Tuesday's arguments was whether it was even appropriate for the court to hear the appeal at this time.
The justices did not send a clear signal during oral arguments about which way they were leaning. While the court's four liberals appeared eager to reject the GOP's appeal, the four staunch conservatives seemed likely to side with Republicans. As is typically the case with redistricting law, conservative Justice Anthony Kennedy is the key member whose position we'll just have to wait to find out.
As we have have detailed at length, this case has gone unresolved since the very beginning of this decade's redistricting cycle in 2011, thanks to the GOP's deliberately dilatory strategy, abetted by judges hostile to voting rights. This cynical strategy—pass illegal maps but delay any remediation for as long as possible—has to be considered an enormous success for Republicans: Even if the Supreme Court ultimately sides against them on the merits, they wouldn't have to draw new maps until 2020. Consequently, Texas voters will have gone at least four out of this decade's five elections under unconstitutional gerrymanders.
And if the Supreme Court sides with Republicans on this appeal, it could open the floodgates for countless future appeals seeking to likewise impede similar cases. That would make challenges against discriminatory maps even more onerous and further encourage states to draw illegal maps, knowing they can get away with them for at least one election cycle—if not many more, like Texas has.
On the actual merits of the case, Republicans are disputing the finding of racial discrimination in the districts they enacted in 2013, since those maps differed from those that they originally passed in 2011. This same federal district court blocked those 2011 maps from ever being used and drew its own interim plans before it could decide whether the GOP's first versions were intentionally discriminatory. But the Supreme Court stepped in and significantly curtailed the court-drawn plans, leaving Texas with court-drawn maps in 2012 that strongly resembled the GOP's original illegal proposals.
After the 2012 elections showed that the court-drawn maps favored the GOP almost as much as the invalidated maps that Republicans had passed themselves, Republicans simply made those court-ordered maps permanent, starting with the 2014 elections. Voting rights groups sued to block these new maps on the grounds they were like the original set, racially discriminatory, but sly Republicans have argued that these districts can't possibly be discriminate because—wait for it—a court had already approved them by drawing them itself.
However, the district court that drew the 2012 maps (that were later made permanent by the GOP) stated at the time that their findings were only preliminary and that it hadn't resolved the question of whether the GOP's 2011 maps were drawn with discriminatory intent. The GOP's argument is fiendishly cynical because many of the districts the court struck down in 2017 for intentional discrimination are nearly identical to those found in the invalidated 2011 maps.
So why have Texas Republicans gone to such great lengths to avoid a finding of intentional discrimination? It’s not just about preserving their preferred district lines. Rather, the answer lies with the Voting Rights Act. Back in 2013, the Supreme Court infamously struck down a key provision of the VRA that determined which jurisdictions with a history of racial discrimination had to "pre-clear" any proposed voting changes with the Justice Department, and Texas was one of those states. This provision let the federal courts pre-emptively block the 2011 maps without resorting to a years-long trial, but by 2013, Texas could pass new maps without DOJ oversight.
But if the Supreme Court upholds the lower court’s finding of intentional discrimination, it could be grounds for using a separate—and still valid—provision of the VRA to place Texas back under the preclearance regime. While Attorney General Jeff Sessions and the Trump administration almost certainly wouldn't block discriminatory districts and voting laws, a future Democratic administration could. Since Texas will have to redraw its maps again after the 2020 census, a ruling for the plaintiffs could set the stage for Democrats to block the worst excesses of GOP gerrymandering if they win the presidency in 2020.
● Arkansas: On Thursday, a state judge temporarily blocked the voter ID law that Arkansas Republicans passed in 2017, ruling that it violated the state constitution. While this is a victory for voting rights, it's likely to be short-lived. Republicans passed a very similar law in 2013 only to see the state Supreme Court strike it down, but conservatives have gained a majority on the court since that 2014 decision. State Attorney General Leslie Rutledge and Secretary of State Mark Martin, both Republicans, haven't yet said whether they'll appeal, but assuming they do, their chance of success appears strong.
Yet even if the Supreme Court does uphold this lower court ruling, that too may be short-lived. GOP legislators had previously placed a state constitutional amendment on this November's ballot that would require a photo ID in order to vote. While a related ballot measure failed in the swing state of Minnesota, voters in GOP-favoring Missouri easily approved voter ID in a 2016 vote. Consequently, the odds of it passing in Arkansas are high.
● Indiana: On Wednesday, a federal court ruled that Marion County must open at least two early voting sites after Republicans had cut the number to just one location in this solidly Democratic county of 700,000 registered voters, which is home to the state capital of Indianapolis. Voting rights advocates had sued the county last year, pointing out how surrounding suburban counties that strongly favored Republicans each had several early voting sites despite having populations a fraction the size of Marion’s.
The county elections board had controversially approved a plan in January to switch from traditional precincts to so-called "vote centers," where any registered voter within the county could cast a ballot on Election Day. However, that did not sufficiently address the problem of having too few early voting locations in Indiana's most populous county.
● New Hampshire: New Hampshire Republicans have advanced a bill out of a state Senate committee that would put further restrictions on voter residency requirements in an attempt to suppress the votes of eligible college student voters. As we have previously detailed, this bill changes the legal definition of residency for the purpose of voting, which would force out-of-state college students to take additional steps to be able to vote, such as paying to register their car in New Hampshire. In effect, it imposes a poll tax.
The GOP-run state House has already passed this same bill, while the Senate itself passed a different version of it last year, meaning it's likely that the full Senate will ultimately approve the measure. While Republican Gov. Chris Sununu has publicly expressed concerns over this bill, he emphatically has not promised a veto. And given that he previously signed another bill into law that also targeted student voters, it wouldn't be surprising to see him approve this one, too.
● U.S. Territories: Citizens challenging a federal law that disenfranchises former residents of the 50 states and D.C. who move to certain U.S. territories will petition the Supreme Court to hear their appeal of an appellate court ruling that previously upheld the law. As we’ve previously explained, residents from the U.S. mainland who move to foreign countries or the Northern Mariana Islands keep their right to vote in federal elections in their prior home state (or D.C.), but those who move to American Samoa, Guam, Puerto Rico, or the U.S. Virgin Islands are no longer permitted to vote in federal races.
● Florida: A federal appeals court temporarily blocked a lower court ruling that had struck down Florida's extremely onerous system for restoring voting rights to those who have completed their felony convictions, meaning Republican Gov. Rick Scott won't have to comply with the lower court's order while he appeals. As we have previously written, Scott imposed highly arbitrary restrictions on voting rights restoration when he took office, and only about 3,000 individuals have been able to regain their right to vote in the seven years he has been governor.
While this ruling is a setback in the fight against a a policy with roots in the Jim Crow era that has disenfranchised one in 10 Floridians, it's not the end of the line for voting rights advocates. Plaintiffs may yet prevail on appeals, and Florida will also vote on a separate ballot initiative in November to automatically restore voting rights upon completion of sentences for those convicted of all but the most heinous crimes.
● Illinois: After passing it out of committee last week, Illinois’ Democratic-controlled state House has approved a bill that would make casting a ballot easier for citizens who are in jail awaiting trial. The measure would also educate former prisoners about getting their voting rights automatically restored once they are no longer incarcerated. The legislation requires officials to provide greater access to voter registration forms and absentee ballots, and it would even mandate that Chicago's Cook County Jail open its own polling place.
However, this bill’s future is uncertain because it passed the House largely along party lines. While Democrats have a veto-proof majority in the state Senate, they are four votes shy in the state House, meaning Democrats may not be able to override a potential veto by Republican Gov. Bruce Rauner.
● Maine: Now that Maine's Supreme Court has ordered the state to use instant-runoff voting in its June 12 federal and state primaries, the secretary of state's office has unveiled sample ballots for the contests that will use instant-runoff. Voters will be presented with instructions on one side and a grid on the other, which will have a column with candidate names and a row enumerating each preference (starting with their first and, in the gubernatorial election, going all the way to fifth for Republicans and eighth for Democrats). Citizens will fill in an oval in the corresponding cell to mark their choice, as you can see on the Democratic primary sample ballot below:
In a previous roundup, we’d written that voters would be limited to expressing just three preferences, but that turns out to have been incorrect. As the sample ballots show, voters will be given as many choices as there are candidates on the ballot. This makes it more likely that the ultimate winner will be able to secure a majority of votes, and it also means that even voters whose top choices get eliminated still can have their voices heard, so long as they fill out a complete set of preferences.
● Connecticut: On Thursday, Connecticut's Democratic-majority state House voted largely along party lines to join the National Popular Vote Interstate Compact, which would assign the state's seven electoral votes to the national popular vote winner in presidential elections if enough other states also join to give the compact majority of 270 electoral votes. The bill now goes to the state Senate, where Democrats need every member to vote for it—which is no sure thing—so that Lt. Gov. Nancy Wyman can break a tie in their favor
However, even if Connecticut adds its seven electoral votes to the 165 contributed by the existing members of the compact, that will still leave the compact well short of the 270 it needs. And since only two other Democratic-controlled states, Delaware and Oregon, have yet to join the compact, reformers will need to pursue Republican support elsewhere.