Leading Off
● New Hampshire: New Hampshire's Republican-run state legislature has finally passed a long-debated bill that would impose new residency restrictions on voters in a naked attempt to suppress Democratic-leaning college student voters. GOP Gov. Chris Sununu has long acted as thought he's opposed to the bill, but he has meticulously avoided promising to veto it. Instead, he has asked the state Supreme Court to issue an advisory opinion regarding the proposal's constitutionality, and he’s said he'll sign the measure if the justices deem it valid.
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At issue is how this bill defines what it means to be a resident for the purposes of voting. Under current law, New Hampshirites only have to be "domiciled" to be eligible to vote—in other words, they just have to live most of their day-to-day lives in the state and offer proof of residency, such as a utility bill. But this proposal would require voters to instead be "residents," meaning they intend to remain in-state indefinitely, which legally requires them to do things like obtain a state driver's license and register their cars in New Hampshire, both of which cost money.
Consequently, this bill amounts to a poll tax on college students who are from out of state but live most of the year on campus in New Hampshire, few of whom are likely to ditch their out-of-state license for a New Hampshire ID or register their car in the state when there's no other compelling reason to do so.
Opponents of the law, however, stand a good chance of successfully challenging it in court, since New Hampshire's state constitution unambiguously states:
"[E]very inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile."
Indeed, the state Supreme Court, which has a three-to-two majority of Democratic appointees, already struck down a very similar Republican-backed law in 2015. Furthermore, the U.S. Supreme Court has ruled that college students have the right to vote at their school if they live there, giving opponents even more ammunition to stop this new law.
Following Sununu’s request, the state Supreme Court asked interested parties to submit their arguments by May 31 over this latest voter residency bill, so we’ll soon find out whether Sununu will have the excuse he’s looking for. (Notably, he didn’t promise to veto the bill if the court does not opine in the GOP’s favor.)
Meanwhile, New Hampshire Republicans under Sununu had passed a separate but similar law last year that also targeted college students and transient young voters, and a Democratic-backed lawsuit is slated to go to trial on Aug. 20. But Republicans are trying their best to hamstring the plaintiffs: GOP legislators have introduced legislation that would prohibit the release of the state's voter file for the purposes of civil litigation, ostensibly in the name of privacy—even though the voter file is otherwise available for purchase by candidates or political committees. The bill, therefore, is designed to deprive Democrats of a key source of evidence needed to make their case in court.
Redistricting
● Arizona: In a victory for fairer redistricting, Arizona Republicans adjourned without passing a measure that would have undermined the state's independent redistricting commision. The proposal had passed the state House, but three GOP state senators sided with Democrats to block it. This proposed constitutional amendment would have expanded the size of the commission while injecting more partisanship into the selection of its members, and its tighter restrictions on population deviation could have harmed the ability of Latino and Native American voters to elect their preferred candidates.
● Colorado: Colorado's Democratic-run state House and Republican-majority state Senate have unanimously voted to refer two state constitutional amendments to the ballot this November that would create independent redistricting commissions to handle congressional and state legislative redistricting following the 2020 census. Colorado also had a divided government during the previous round of redistricting, but Democrats’ control of the state Supreme Court allowed them to pass modest gerrymanders of the state legislature because they were able to appoint a majority to the existing bipartisan commission, which these new commissions would replace.
There are two separate measures creating two separate commissions because Colorado's constitution limits the number of subjects a single ballot measure can address. The amendments would also have to attain at least 55 percent support to pass, thanks to a 2016 ballot initiative that imposed a new supermajority requirement.
Under these proposals, a panel of three retired appellate judges—one from each major party and one who is unaffiliated—would play a key role in randomly selecting commissioners from a pool of applicants. Democrats, Republicans, and independents would each have four members on the commission, and it would take two votes from each bloc to pass a map. The four legislative party leaders would not get to handpick any of the commission’s members, although they do get to select a pool of 10 applicants each to submit to the panel of judges for random selection. Consequently, this arrangement can reasonably be considered independent.
Any adopted maps would also have to follow several strict criteria, which the commission lists as: following federal law; preserving communities of interest (which the amendments extensively define); keeping cities and counties whole; maximizing compactness; maximizing the number of politically competitive districts; banning the intentional favoring or disfavoring of a party or candidate; and preventing the dilution of the electoral strength of voters belonging to a racial or ethnic minority.
Nonpartisan legislative staff would assist commissioners by preparing preliminary maps, but commissioners could direct them to make changes as they see fit. If the commission passes a map, the state Supreme Court would review it to determine whether it faithfully complies with the above criteria. If commissioners fail to pass a map, the commission staff would be directed to submit their final plan to the court, which would then review it for compliance with the criteria above.
All told, this commission arrangement is a vast improvement over a status quo that allows for gerrymandering. While Colorado's existing congressional map was drawn by a court and its legislative maps only have a slight Democratic lean, Democrats could hold unified control of state government after the 2020 census, which would allow them to gerrymander more aggressively. Consequently, if faithfully implemented, these commissions could ultimately draw fair maps where the party with the most votes is also likely to win the most seats.
● Michigan: A federal district court panel has set a Feb. 5 trial date for a Democratic-backed lawsuit claiming Michigan's Republican-drawn congressional and legislative gerrymanders violate the Constitution. Plaintiffs will first have to survive GOP efforts to dismiss the case, but if they overcome that hurdle and ultimately prevail on the merits, Michigan might be able to implement new maps ahead of the 2020 elections.
The court rejected plaintiffs’ push to challenge the maps on a statewide basis, as Democrats have done in the high-profile Supreme Court case regarding Wisconsin’s legislature, but it did allow them to proceed by attacking specific districts. That could require plaintiffs to find an affected voter in each individual district to join their case—162 in total, across all three maps—so this obstacle might limit the impact of a victory if it can’t be surmounted.
Separately, Michigan is also poised to vote on a November ballot initiative to establish an independent redistricting commission, which we’ve previously described here.
● Missouri: After Donald Trump weaponized the 2020 census by adding a question about citizenship, Missouri Republicans are already moving to use it as a tool of voter suppression against Democrats. The GOP-run state House has passed an amendment to the state constitution that would require state legislative districts to be drawn based on the citizen population instead of the total population of all residents, as is the norm nationwide.
Changing redistricting in this way would pack localities with greater proportions of non-citizens into districts that are more populous than those in areas with fewer non-citizens, diluting the political power of places with many immigrants. Indeed, the census estimates that Missouri’s four major counties that voted Democratic in the last two presidential elections (Boone, Jackson, and St. Louis Counties, and St. Louis City) are home to 36 percent of Missouri's total population but 57 percent of its residents who aren't citizens.
Missouri has a relatively small immigrant population, so the ultimate impact likely wouldn’t be large, but it would nevertheless punish Democrats by packing them into fewer districts in a state whose maps already give the GOP an advantage beyond what’s warranted by their sheer numbers. And more importantly, this move by Missouri Republicans could inspire other GOP-run states with large immigrant populations like Texas to draw maps based solely on citizen population. That would further deprive citizens from already underrepresented demographics of political representation.
Back in 2016, the U.S. Supreme Court unanimously ruled that federal law didn't require states to draw district lines based exclusively on citizen population. However, they didn't foreclose the possibility that states could choose to do so, and one of their reasons for ruling that states couldn't be compelled to only count citizens was because the decennial census doesn't ask about it. (The estimates above come from a census program called the American Community Survey, whose numbers cannot be used for the purposes of redistricting.)
With Trump’s citizenship question serving as a thinly veiled way to intimidate immigrants from participating, this Missouri measure could open a Pandora's box that could further exacerbate rampant GOP gerrymandering.
● Ohio: Last week, Ohio voters approved a constitutional amendment to reform congressional redistricting by a 75-25 landslide after both major parties supported the effort. However, even though some good government groups hailed the outcome, this amendment actually represents a shrewd Republican maneuver to undermine the fight for genuinely equitable redistricting.
Ohio currently has one of the most extreme congressional gerrymanders after GOP legislators ensured that Democrats could win just four of the state’s 16 congressional districts, even though Ohio is historically one of the most evenly balanced swing states in the nation. Earlier this cycle, reformers initially sought to gather signatures for a ballot measure that would have established a bipartisan redistricting commission, but they agreed to a supposed compromise designed as “Issue 1,” which was crafted and supported by legislators from both parties
But unlike the abandoned initiative, Issue 1 still leaves legislators and party officials in charge of the process. The legislature can still pass its own congressional map, though it would now need a 60 percent supermajority to do so, including the support of at least half of the members of the minority party.
If, on the other hand, the legislature can't pass a map, it would go to the same bipartisan commission of officeholders that already handles legislative redistricting. That commission is made up of four legislators—two from each party—and the governor, secretary of state, and auditor. The panel would currently have a five-to-two Republican majority thanks to the GOP’s hold on statewide offices, but at least two votes from the minority party would be required to pass a map.
If the commission can't reach an agreement, the legislature then gets another crack. Lawmakers would still need a 60 percent supermajority, but this time the share of votes required from the minority party would go down to just one-third. But here's the critical part: If all these convoluted steps still fail to produce a map, the legislature gets to pass its own map with a simple majority and no minority-party veto, although the map would only be good for four years instead of the usual 10. And what happens after four years? They can do it all over again.
This new amendment also tries to ape traditional good-government aims by limiting the number of ways counties can be split, and it likewise says the cities of Cleveland and Cincinnati can't be divided, as they currently are. But as cleveland.com columnist Rich Exner and Daily Kos Elections community member Tallahasset have demonstrated with hypothetical maps, Republicans could produce gerrymanders almost as extreme as their current map even with these restrictions.
Issue 1 also contains language saying mapmakers can't "unduly" favor or disfavor a party. However, that modifier of "unduly" leaves ample room for differing interpretations, and it would be up to the Ohio Supreme Court to adjudicate a challenge on these grounds. Republicans hold every seat on that court, and as we've seen in state constitutional cases over gerrymandering in Florida, North Carolina, and Pennsylvania, Republican justices have generally been hostile to Democratic plaintiffs challenging GOP gerrymanders.
By contrast, the proposed November ballot initiative would have placed much stronger limits on maps designed to favor or disfavor a party or candidate by requiring that they reflect Ohio’s statewide partisan composition, something that can be tangibly measured instead of left open to vague interpretation. In other words, new maps were supposed to be fair, not just apolitical. This compromise proposal, however, does no such thing.
Given the degree to which Ohio’s legislative districts are already heavily gerrymandered to benefit the GOP, Republicans will likely be in a position to unilaterally draw their own congressional map after 2020, unless Democrat Richard Cordray wins the 2018 gubernatorial election and Democrats break the GOP's current supermajorities in the legislature, allowing them to sustain a Cordray veto.
This proposed “reform” could also tempt the Democratic minority on the commission or in the legislature to approve a slightly tamer GOP gerrymander in exchange for protecting their current incumbents, even though Republicans far outnumber Democrats and are likely to maintain a majority of seats even after 2018. Yet if Democrats don't play this game, the GOP can instead threaten to draw its own map every four years, which would let them fine-tune their gerrymander every couple of election cycles.
Most disappointingly, this compromise will likely make it impossible to achieve more far-reaching reforms, because it removes the ability of reformers to argue that the current system of unfettered legislative control over the process is unjust and that politicians can't be trusted to draw their own districts. Consequently, Ohio will be less apt to enact future changes that shut legislators and party officials out of the process entirely and allows for the creation of truly independent maps, as citizens in California and Arizona have done.
With momentum building against partisan gerrymandering nationwide, Republican legislators cannily chose to accept that reality rather than fight it headlong. They therefore pushed this amendment as a way to blunt that momentum while preserving as much of the GOP’s advantage as possible under a false veneer of bipartisanship. And with the acquiescence of many Democrats and reformers, Republicans are very likely to continue to get exactly what they want.
● San Juan County, Utah: The battle over Native American voting rights in small San Juan County continues to unfold, with the white Republicans who run the county government moving to kick a Navajo Democrat off the ballot in a newly redrawn county commission district. GOP officials argue that Democrat Willie Grayeyes lives in Arizona, even though Navajo voters living on reservations often have a post office box elsewhere instead of a residential address. Grayeyes plans to fight the county’s decision in court, and should he prevail, he’d give Navajo voters a majority on the commission in this predominantly Native American county for the first time.
This latest move comes after a federal court recently ruled that the GOP illegally gerrymandered the county commission and school board districts to suppress the power of Navajo voters, prompting the court to draw its own maps to ensure Navajos had an equal opportunity to elect their preferred candidates. San Juan County has just 17,000 residents, but it nevertheless stands as a potent example of how white politicians have for years suppressed the power of Native American voters.
● Utah: Utah voters are one step closer to passing redistricting reform after election officials verified that organizers submitted enough signatures to get an initiative onto the ballot this November. The proposal would create a seven-member bipartisan commission where legislative leaders from both parties would each pick three members and the governor would appoint a seventh member as chair. While this would let Republicans appoint four of the seven members thanks to their hold on the governor's office, it would take the vote of at least one of the Democratic appointees to pass a map.
The proposal also restricts the criteria mapmakers can use, which the state courts would then be able to enforce. In order of priority, they are: following federal law; minimizing the number of divided municipalities; minimizing the number of divided counties second; promoting compactness; ensuring transportation connections exist within districts; preserving neighborhoods and communities of interest; following natural geography; and nesting districts so that state Senate and state House borders overlap as much as possible. Most importantly, it bans intentionally favoring or disfavoring any particular party or candidate.
Unfortunately, there are a couple of weaknesses in the law. For one, the GOP-dominated legislature would still be empowered to pass its own map if it doesn’t like the commission’s, though it would be constrained by the criteria described above. The other is that it’s only a law: Even if the measure passes, it will only add a statute to the books rather than amend the state’s constitution, since Utah doesn’t permit voters to take the latter route. As a result, lawmakers could simply try to repeal the measure—as long as they’re willing to weather any potential blowback.
But if the proposal does become law, it’ll nevertheless represent a marked improvement on the status quo. As shown in this map, Utah could actually have one safely Democratic congressional district if Republicans hadn’t aggressively gerrymandered to ensure they would win all four House seats. While Utah is a very red state, the Salt Lake City area is a solidly blue island, and placing the bulk of it in a single district would allow Democrats to win their fair share of congressional seats, in sharp contrast to the current map that slices and dices Salt Lake’s urban core among three districts.
Ballot Measures
● Maine: Maine Republicans just don't know when to quit when it comes to fighting the new instant-runoff voting system that will be used in June's primaries. After recently losing in state court, they’ve now filed a federal lawsuit claiming that instant-runoff violates the First Amendment rights of political parties to choose their nominees. However, their chances of success don’t appear to be strong, given that states have successfully required political parties to abide by other voter-approved laws that dictate how primaries are to be conducted, such as laws mandating open primaries.
Voter Access
● Washington: Washington's state government will begin pre-paying the postage on all mail-in ballots this year, which will make voting more convenient in a state where almost all ballots are cast via mail. This change happened after populous King County moved toward offering prepaid postage on its own, prompting Republican Secretary of State Kim Wyman to seek emergency state funds to make sure that other counties could do the same. This solution isn't a permanent fix, but legislators had already planned to pass a bill pre-paying all ballot postage when the legislature reconvenes in 2019.
Electoral College
● Connecticut: Connecticut just became the latest state to join the National Popular Vote Interstate Compact, which would assign its Electoral College votes to the winner of the national popular vote if enough states with a majority of electoral votes also sign on. While the Nutmeg State’s seven electoral votes only bring the compact to 172 of the needed 270 votes for a majority, Connecticut represented the lowest-hanging fruit as a state where Democrats had unified control of government. Surprisingly, though, a few Republicans in each chamber sided with Democrats to pass the bill.
Voter Suppression
● Arizona: In a blow to voting rights, a federal district court upheld a Republican-backed state law that bans organizers from collecting completed absentee ballots from other voters and bringing them to polling places to be counted. This practice, somewhat derisively referred to as “ballot harvesting” by its opponents, was especially popular in rural areas where Latino and Native American voters often have a hard time getting to the polls, and the plaintiffs had argued the ban disproportionately affected those voters in violation of federal law.
However, the court upheld the ban by acceding to GOP arguments that partisanship, and not race, had been their motivation, even though the effect on minority voters is the same either way. And despite the fact that there has never been any accusation that the practice of collecting ballots has led to voter fraud, the Republican speaker of the House rationalized the law by saying, “What is indisputable is that many people believe [fraud]’s happening.” Of course, the only reason “many people believe” this is because of the GOP’s bottomless cynicism in perpetually ginning up bogus claims of fraud.
Following the defeat, Democratic-backed plaintiffs said they plan to appeal the ruling. However, it's unclear just what their chances of success are, since the case could ultimately land before a Supreme Court that has been notably hostile to voting rights.
● Texas: Last month, a federal district court ruled that Texas Republicans were violating the National Voter Registration Act by not updating the voter registration of citizens who update their address or renew their driver's license online. Republicans have now let the court-imposed deadline pass this week without presenting a clear remedy of their own. Consequently, it will be up to the court to impose its own remedy, but Republicans have pledged to appeal.
Felony Disenfranchisement
● Louisiana: In a shocking turnaround, Louisiana's Republican-majority state legislature has approved a bill to restore the voting rights of citizens with past felony convictions who are on parole or probation but have been out of prison for at least five years. This move is so unexpected because it comes after the state House voted down the same measure a few weeks ago largely along partisan lines, but Democratic Gov. John Bel Edwards is now expected to sign it.
But the good news is tempered, because the measure is quite restricted in its scope. The Sentencing Project estimated in 2016 that roughly 108,000 Louisiana citizens were disenfranchised, 72,000 of whom were on parole or probation, while the remaining 36,000 were incarcerated. The five-year waiting period, however, means that only 2,000 to 3,000 citizens will regain their voting rights under this bill. Nevertheless, this is still a step in the right direction, and it's a welcome surprise from a Republican-run legislature, given that Republicans have fought measures to loosen felony disenfranchisement in other states.
Elections
● Virginia: Incredible: Remember that tied 2017 Virginia state House race in Newport News where the Republican won a drawing of lots, preserving the GOP's 51-49 majority in the chamber? It turns out at least 26 voters were wrongly given the ballots for a neighboring district, and because primary voting history shows they leaned Democratic, this administrative error likely deprived Democratic candidate Shelly Simonds of victory, ultimately handing Republicans their majority.
This colossal screw-up comes after another close state House race in Fredericksburg saw the Republican prevail by 73 votes after 147 voters in the area were given ballots for the wrong district. Indeed, a Washington Post analysis estimated that as many as 6,000 voters were assigned to the wrong districts, approximately 2,800 of whom they believe voted in 2017. These administrative errors are a direct result of Republican gerrymanders needlessly slicing and dicing cities and splitting precincts between districts, opening the door to such errors when new voters move into a split precinct.
Simonds said she won't challenge the result in court, and given that legal challenges brought by Democrats in the case regarding the Fredericksburg district did not succeed, her case may have been a tough one anyway. In the end, only the perverse combination of GOP gerrymandering and the administrative errors it spawned kept Republicans in power despite Democrats winning more votes statewide. But Democratic plaintiffs are still challenging the state House map for discriminating against black voters in an ongoing federal case, with a good chance of success.
