Leading Off
● Pennsylvania: Incredible: After Pennsylvania's Supreme Court struck down the GOP's congressional gerrymander earlier this year and replaced it with a fair map, Republican state senators have now responded by passing a constitutional amendment to gerrymander the court system itself. This amendment is designed to replace the Democratic majority on the high court with a Republican one, even if the GOP wins fewer votes statewide—as was the case with the state’s congressional delegation under the old map.
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This development is the latest Republican move to undermine genuine electoral reform in Pennsylvania. Recently, GOP lawmakers grabbed hold of a widely supported proposal to create an independent redistricting commission and turned it on its head with an amendment that would give the legislature full power to determine who would sit on the panel.
This erosion of independence divided reform advocates despite reluctant support from some legislative Democrats, because a deadlock on the panel would return mapmaking power to the legislature. But now that Republicans have added judicial redistricting to the commission's purview, there’s no longer a divide: Reform groups have universally denounced it and all but two Democrats in the state Senate voted against it. (The House has yet to take it up.)
Currently, judges on both the state Supreme Court and its two intermediate appellate courts are elected statewide; Republicans want to replace that system by dividing the state up into districts, which would give them the chance to draw lines that favor themselves.
To justify this departure from current practice, Republicans are offering an almost comical pretext: The 31 judges who currently sit on these three courts hail from only 15 of Pennsylvania's 67 counties, so district-based elections would allow for greater representation of … counties. This, of course, is just a thinly veiled way to lie with statistics, because those 15 counties hold 58 percent of the state’s population. It’s as nonsensical as Donald Trump pointing to county-level election results to hide the fact that a majority of Americans live in counties he lost.
More importantly, it should hardly matter how many counties are home to appellate judge, since judges do not “represent” voters (or counties!) the way that legislators do—their job is instead to interpret and uphold the law. And it should go without saying, but judges have no role in the sort of political deal-making that sees legislators seek to promote the economic or cultural interests of their particular districts.
As absurd as these claims might seem, though, they mask a serious issue: the ongoing conservative assault on judicial independence, which has become part of a widespread trend among Republicans in state legislatures across the country over the last decade. When lawmakers like those in Pennsylvania refuse to stop gerrymandering, the courts have become the last resort for those fighting for fair elections. Attempts to gerrymander the judicial branch are a direct attempt to undermine efforts at reform, meaning they’re poised to become the next frontier in the GOP's crusade to subvert electoral democracy.
Pennsylvania Republicans will probably be able to refer their amendment to the voters in time for the next round of redistricting, since it only takes a simple majority vote this year and then again after the 2018 elections to put it on the ballot. And because they've already gerrymandered their own districts, they're unlikely to lose their majorities this fall, so reformers will likely have to wage a fierce battle at the ballot box if the GOP proceeds with this power grab.
We at Daily Kos Elections have long been opposed to the almost uniquely American institution of judicial elections because politicizing justice undermines its impartial administration. But since these elections aren’t going to be abolished anytime soon, they must at least be conducted in a manner that treats voters equally, regardless of their race or party.
Voter Suppression
● Indiana: A federal court has temporarily blocked Indiana Republicans from proceeding with a planned mass purge of voter registrations before an upcoming trial over the their attempt to implement the deliberately defective Crosscheck system developed by the notorious Kris Kobach. Crosscheck only uses voters' names and birthdates, which has been shown to produce numerous false positives for every potential case of improper registration. In granting the injunction, the court held that using Crosscheck to remove voters without notifying them would violate the National Voter Registration Act (aka the “Motor Voter” law).
● Missouri: Priorities USA, a top Democratic super PAC, has filed a lawsuit in state court arguing that Missouri's GOP-backed voter ID law violates the state constitution, even though Republicans won voter approval in 2016 to add a photo ID requirement to the constitution. The new suit argues that this amendment did not in fact negate another provision of the state constitution, one that guarantees the right to vote. As a result, plaintiffs say that the statute Republicans passed in 2016 to implement the amendment is itself unconstitutional.
This latest challenge comes after a separate suit backed by the ACLU, NAACP, and the League of Women Voters was dismissed earlier this year. However, that case relied on a different legal theory, so it’s possible the outcome could be different this time.
● North Carolina: When North Carolina's Republican-run legislature is in session, we can expect a new voter suppression scheme just about every week, and this one is no different. With almost no warning or debate, GOP legislators introduced a bill on Thursday, which they passed on Friday, that would eliminate early voting on the final Saturday before Election Day. Since Republicans previously eliminated the final Sunday of early voting, this move would spell the end of all early voting during the weekend immediately prior to every election.
A sizable majority of North Carolina voters typically cast ballots before Election Day, and early voting is disproportionately popular among black voters. Indeed, 200,000 people reportedly voted on the final Saturday before the 2016 elections. In addition, the early voting period is the only time when North Carolina law lets voters register and cast a ballot on the same day, which lowers the barriers to participation and has helped lead to higher turnout. Canceling the final weekend of early voting makes it even harder for to cast a ballot close to Election Day if they can't take off from work
In a devious move, this bill also imposes financially burdensome restrictions on counties regarding when and where they have to offer early voting during the 17-day early voting period that would now end on the Friday before Election Day. The bill requires all counties to keep early voting sites that operate from Monday through Friday open from 7 AM to 7 PM, and it would require all early voting locations within the county to be open if any of them are, including on weekends.
Currently, counties have flexibility on hours of operation and which sites to open, allowing them to determine how they can best allocate their resources to meet the needs of voters. This bill's inflexible requirement could consequently put a strain on county budgets, which could in turn prompt them to reduce the number of early voting locations and might also deter them from offering early voting even on weekends prior to the final weekend of early voting. In other words, by seemingly mandating more early voting hours, Republicans may have found a way to ensure less opportunity for early voting.
Republicans hold veto-proof majorities in both chambers thanks to their legislative gerrymanders, and they can override a likely veto from Democratic Gov. Roy Cooper if they so desire. Consequently, Democrats and voting rights advocates will likely have to resort to yet another lawsuit to stop these changes and preserve existing access to the ballot.
● Ohio: On Monday, the U.S. Supreme Court delivered a major blow to voting rights when it ruled five-to-four along ideological lines that Ohio's purges of infrequent voters did not violate the 1993 National Voter Registration Act (NVRA), commonly called the Motor Voter law. This ruling gives Republican-run states the green light to aggressively purge their voter registration rolls without informing nonetheless eligible voters that they have been removed, leaving them with no recourse if they show up to vote on Election Day.
At issue in this case was the way in which Ohio Republicans, under the leadership of Secretary of State Jon Husted, have pruned voters who fail to vote in a given two-year period. If these voters don't respond to a single follow-up postcard sent to their homes and then subsequently don't vote in over the next four years, they’re taken off the rolls without further notice. The NVRA, however, prohibits states from purging eligible voters "solely" for exercising their right not to vote, and a federal appeals court found that Ohio’s purges violated federal law and ordered that roughly 7,500 voters be restored to the rolls ahead of the 2016 elections.
However, the Supreme Court accepted the GOP's dubious argument that they weren't purging voters solely for failing to vote but for not responding to the mailer. Of course, as anyone who has ever discarded junk mail or has had something sent to the wrong address—in other words, practically everyone—would know, it's easy for these mailings to not get properly delivered or noticed by the voter, particularly if it's only sent a single time.
Large numbers of voters could therefore wind up going to vote for the first time in several years only to find that they have been removed from the roll books. This of course appears to be exactly what the GOP wants, since these infrequent voters are disproportionately black and lean Democratic.
Despite this adverse ruling, voting rights advocates are not without tools they can use to fight back against purges like these. While the Supreme Court ruled that these voter purges are allowed under the NVRA, it did not address whether they might violate the Voting Rights Act by discriminating against black or Latino voters.
Indeed, in a dissent, Justice Sonia Sotomayor noted that if these purges have a discriminatory impact, they could run afoul of the Voting Rights Act. In one study she cited, majority-black neighborhoods in downtown Cincinnati saw 10 percent of voters removed due to inactivity since 2012, while a white suburban neighborhood had only four percent purged.
Nevertheless, prolonged litigation can't be the only answer to stop these undemocratic purges of eligible voters, and there needs to be a permanent solution. If Democrats retake Congress and the presidency, they could amend the NVRA or even pass a new Voting Rights Act to override the Supreme Court's interpretation of the existing statute. They could also enact same-day voter registration nationwide, which would allow voters to register and cast ballots at the same time, eliminating the surprise of showing up at a polling location only to find you don’t have a valid registration.
With Republicans in firm control of the federal government, congressional action is unlikely anytime soon. But in the meantime, Democrats can push to expand access to voter registration at the state level, and even use ballot initiatives to overcome recalcitrant legislatures.
Redistricting
● Alabama, Georgia, Louisiana: On Wednesday, a group affiliated with former Attorney General Eric Holder's National Democratic Redistricting Committee filed three federal lawsuits claiming that Republican congressional gerrymanders in Alabama, Georgia, and Louisiana violate the Voting Rights Act (VRA) by diluting the power of black voters. If plaintiffs succeed, each state could be required to redraw its congressional map for the 2020 elections to create an additional district where black voters could elect their preferred candidates.
However, the burden of proof on the plaintiffs is high. That's because in 2009, the conservative majority on the Supreme Court ruled that VRA lawsuits like these have to demonstrate that a hypothetical new district could be drawn with a majority-black population, even if a district without a black majority could nevertheless elect black voters’ candidates of choice.
But if the plaintiffs successfully prove another majority-black district could be drawn, the VRA doesn't require the remedial district to have a black majority, as long as there’s a sufficient population of white voters who will back black voters’ candidates of choice—in practice, black Democrats. (We’ll delve into why this distinction matters below.)
We can demonstrate how this might work with two hypothetical maps of Louisiana. Under the state’s current map, black voters are able to elect their preferred candidates in only a single congressional district, the 2nd. That would change in these maps:
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The plaintiffs will have to show that two majority-black districts could be drawn and that the black populations within them are reasonably compact. That map on the left does just that: The adult population in both the 2nd and 5th districts is just over 50 percent black in each case.
If the court then agrees that this map satisfies the VRA and therefore requires the creation of a second seat where black voters can elected their preferred candidates, a remedial plan could look like the map on the right. That map created two districts where African Americans aren't a majority in either the 2nd or 6th, but black voters in each district would still be able to elect their preferred candidates thanks to the support of a minority of white voters.
So why not adopt the first map? The second is preferable because it splits fewer communities of interest—for instance, it puts the urban core of the New Orleans area in a single district—and its districts are also more compact.
Similarly, plaintiffs are arguing that Alabama should have drawn another black district in addition to the existing 7th District by connecting Mobile with the rural Black Belt and Montgomery, which you can see an estimation of in this hypothetical map where the 2nd and 7th districts are majority black. In Georgia, meanwhile, they’re claiming the state’s 12th District could have been made majority-black by connecting Savannah with the Black Belt cities of Augusta and Macon, which we we’ve approximated with this map that keeps the existing 2nd District plurality-black, as it currently is.
As we mentioned above, it can be difficult to prevail in cases like these. However, if Democrats succeed, the Deep South could wind up with three more districts where black voters can elect their preferred candidates, ensuring a much more equitable distribution of congressional seats.
Felony Disenfranchisement
● Louisiana: After their defeat in lower courts, the plaintiffs who are suing to overturn Louisiana's disenfranchisement of those on parole or probation for felony convictions will appeal to the state Supreme Court, where conservatives hold a majority. While Louisiana's GOP-run legislature surprisingly passed a bipartisan law in recent weeks to restore voting rights for those who have been out of prison for at least five years, that welcome change will still only affect three percent of those who are disenfranchised post-incarceration, so there's still a long way to go to correct this injustice.
Ballot Measures
● Maine: On Tuesday, voters in Maine chose nominees for federal and statewide office using the state’s new system for instant-runoff voting (IRV), both firsts in U.S. history. Voters simultaneously approved a referendum to keep IRV in place by a 54-46 margin, with 90 percent of precincts reporting at press time. That victory showed increased support for IRV (also called ranked-choice voting), which first passed at the ballot by a smaller 52-48 spread in 2016. Consequently, IRV will be used for Maine's primaries and for general elections at the federal level for the foreseeable future. However, it may not be put to use for state-level general elections, as we'll explain below.
First, though, we’ll delve into the mechanics, since IRV is seldom-used in the United States (though it’s more popular in other countries). Maine’s new system lets voters rank their candidates in order of preference, choosing as many or as few candidates as they please. If no one wins a majority in the first round, the last-place candidate is eliminated and has their votes redistributed to their voters' subsequent preferences.
This process repeats until one candidate obtains a majority. However, the “instant” part of the runoff isn’t necessarily so instant: Because of the particulars of how the state and municipalities administer elections in Maine, the counting in races where no candidate took a first-round majority will continue next week.
So why did Mainers have to vote on whether to keep IRV in place less than two years after deciding to implement it in the first place? In short, hostility from the legislature. Because Maine doesn’t permit voters to propose their own constitutional amendments, the 2016 ballot measure only had the force of an ordinary statute, which meant that lawmakers could repeal it, as long as they were willing to subvert the will of the public.
And indeed they were: Last year, nearly every Republican legislator, along with a handful of Democrats, voted for a law that would have effectively repealed IRV. To block this repeal, reformers put this latest measure on Tuesday’s ballot, a so-called “people’s veto” that has the effect of un-doing the legislature’s attempt to eliminate IRV.
There’s another complication as well. Back in 2017, the state Supreme Court issued an advisory opinion saying that IRV ran afoul of language in the state constitution saying that only a plurality is necessary for a candidate to win a state-level election, such as a race for governor. (This wording doesn’t apply to primaries or to federal races of any kind.)
However, the opinion was non-binding, so IRV is still technically set to be used in this fall's state races, and Republicans are all but certain to wage a new lawsuit asking the state Supreme Court to issue a binding opinion blocking IRV from the November ballot. It’s probable that IRV’s status could only be assured with an amendment to the state constitution, but because such amendments can only be put forth by the legislature, and because Republicans remain opposed to the idea, we’re unlikely to see that happen any time soon.
That could change, though. Republicans have been hostile to IRV in general elections because of the perception that it would have cost them the governor's race in 2010, when a left-leaning independent split the vote with a Democrat and allowed Republican Paul LePage to win with just 38 percent of the vote. However, there’s reason to think that the continued use of this system will see Republicans warm to the idea over time.
That’s because IRV isn't a system that favors Democrats but rather democracy itself, by ensuring a candidate can't win simply due to divided opposition. In fact, in the gubernatorial election immediate prior to LePage’s first win, Democratic Gov. John Baldacci won re-election ... with just 38 percent of the vote, again thanks to a divided field. If Republicans find themselves on the wrong side of another race like that one day, they may yet come around to the idea of enshrining IRV in Maine's constitution.
Elections
● Wisconsin: Gov. Scott Walker and his Republican allies in the legislature went all-out in their efforts to leave two state legislative seats vacant for nearly a year because they were worried they’d lose them, but after multiple courts rebuked the GOP and forced Walker to call those special elections in March, Democrats indeed flipped one of those two districts on Tuesday. That victory cuts the GOP's majority to just 18-15 in the state Senate, boosting Democratic chances of breaking Republican control over state government before the next round of redistricting, which would allow them to block future gerrymanders.
