Leading Off
● North Carolina: It wouldn't be a Voting Rights Roundup without North Carolina Republicans concocting a new voter scheme to undermine democracy, and this week was a blockbuster one that saw the GOP turn its sights on the judiciary. Republican legislators introduced a proposed constitutional amendment that would effectively give the legislature the power to appoint judges when vacancies arise, taking that power away from the governor under the facade of "merit selection."
Campaign Action
Under the current system, candidates compete in partisan races whenever a judgeship is open, but the governor gets to appoint someone whenever a vacancy arises between elections. By contrast, the GOP's proposal would set up a bogus "nonpartisan" commission to provide the governor with a list of names from which he or she can choose an appointee, but the real power would lie with the legislature, which would gain veto power over which names to give the governor. The commission itself would also be heavily slanted toward legislative appointees.
Nothing in the proposal would prevent GOP legislators from weeding out everyone except partisan Republicans, forcing Democratic Gov. Roy Cooper to appoint one of them to fill any vacancies. And because appointees would gain an advantage from incumbency and name recognition, they would typically start out with a leg up against any opponents whenever they’re up for election. In essence, this move would gerrymander the judicial branch, since the GOP has illegally gerrymandered the legislature itself—and thanks to those very same legislative gerrymanders, Republicans hold enough seats to refer this measure to the fall ballot.
But that wasn't the end of it. On Wednesday, Republicans overrode Democratic Gov. Roy Cooper recent veto of a new measure that gerrymanders the district court maps in predominantly Democratic-leaning counties containing one-fourth of the state's population. This remap primarily targets Mecklenburg and Wake Counties, which are home to North Carolina's largest cities, Charlotte and the state capital of Raleigh. These counties also hold a disproportionate share of the state's black, Latino, and Asian-American voters.
Previously, all such judicial districts had been made up of one or more undivided counties. Mecklenburg and Wake both comprised single-county districts, meaning judgeships there were elected on a countywide basis. Republicans have instead broken those districts up and created new ones at the sub-county level. The GOP says the move was necessary because of population growth in the two counties, which now have more than 1 million residents apiece. All judges would, however, still retain countywide jurisdiction.
But these maps bear all the hallmarks of a partisan gerrymander, especially after the GOP passed legislation last year transforming these once nonpartisan contests into partisan affairs. This plan will therefore make it possible for Republicans to elect conservative judges with countywide jurisdiction in counties where they could never win a countywide election. What’s more, opponents say that the bill could result in many of the black judges in these two counties losing their posts.
Ever since taking power following the 2010 elections, Republicans have sought to gerrymander North Carolina at every level—and at every level, they’ve seen those gerrymanders struck down, including those for Congress, the legislature, county commissions, city councils, and school boards. But rather than heed the obvious lesson and finally start drawing fair maps, they're now trying to undermine the very branch of government that has been able to constrain their power.
Indeed, the GOP's efforts to sabotage judicial independence don't stop with simply redrawing the maps. Last year, they outright eliminated this year's primaries for judicial races—and only for 2018. A federal judge dismissed a Democratic lawsuit this week that sought to restore those primaries, so all judicial candidates regardless of party will have to compete on a single November ballot where it only takes a plurality to win.
This change is undoubtedly intended to benefit sitting GOP judges thanks to their existing name recognition for key appellate races, and particularly Republican Justice Barbara Jackson, who is defending the sole state Supreme Court seat up this year. Jackson faces a serious challenge from civil rights lawyer Anita Earls, who has the endorsement of the state’s Democratic Party, but a crowded ballot is more likely to hurt the challenger rather than the incumbent.
Of course, if they can't cheat their way to securing a conservative judiciary, Republicans have a plan to hamstring the ability of judges to curtail voter suppression. This week, Republicans on a state House committee passed a new constitutional amendment to require voter ID, sending it to the full chamber.
Finally, GOP legislators passed one other measure that, for once, isn't quite so nefarious. Republicans sent a bill to Cooper's desk that would require the governor to appoint someone from the same party as the previous incumbent whenever a U.S. Senate seat becomes vacant, requiring the governor to choose from a list of three names provided by the relevant state party committee. That appointee would still face voters at the next federal general election.
This is a change we have long supported because it best respects the wishes of the electorate. However, the timing reveals Republicans are only pushing this measure out of pure partisanship (what else is new?), not because they care about making elections fairer.
Indeed, while this proposal would stop Cooper from appointing a Democrat if either of the state’s two GOP senators were to leave office early, Republicans had no qualms about former Republican Gov. Pat McCrory having the power to appoint a Republican in 2013 in case then-Democratic Sen. Kay Hagan's seat became vacant. While this proposal is a good system in a vacuum, it needs to spread to all states, including those where Republican governors currently hold the power to fill the seats of Democrats if they were to leave office.
Redistricting
● California: In a reversal of a district court's ruling, the 9th Circuit Court of Appeals has revived a challenge to the California Voting Rights Act. The lawsuit is being waged by infamous voting rights opponent Ed Blum, who was behind the case that saw the Supreme Court strike down a critical part of the Voting Rights Act in 2013. As we have previously explained, a key component of California’s law makes it easier for plaintiffs to challenge the use of at-large elections in municipal races, providing an easier path for cities to shift to holding district-based elections and thereby giving Latinos and Asian-Americans a better chance of winning seats.
● Maryland, Wisconsin: On Monday, the Supreme Court released its long-awaited decisions in two major lawsuits arguing that electoral maps in Maryland and Wisconsin represented partisan gerrymanders that violated the Constitution, but in both cases, the justices declined to rule on the merits and instead sent both cases back to the lower courts on procedural grounds.
In the Maryland case, Benisek v. Lamone, the court let a Republican-backed challenge to the state's 6th Congressional district proceed in federal district court without adjudicating the substance of plaintiffs' claims that Maryland's map, which was created by Democrats, violates the First Amendment.
Meanwhile, in Gill v. Whitford, the Supreme Court vacated a lower court ruling that struck down Wisconsin's GOP-drawn map of the state Assembly, finding that the Democratic voters who sued lacked standing—meaning they had not demonstrated their rights had been injured—to challenge the map on a statewide basis.
The Supreme Court's move will now require plaintiffs to present new arguments before the district court. One option would be to challenge the map on a district-by-district basis, though such an approach is inherently more difficult for a variety of reasons. It's also possible that different plaintiffs could demonstrate that they have standing to bring a statewide challenge. In particular, election law expert Rick Hasen has suggested the Supreme Court's ruling might allow Wisconsin's Democratic Party to challenge the map as a whole.
These cases are far from over, and they could eventually find their way back before the high court. They're also not alone: There's an outstanding case in which a lower court struck down North Carolina's congressional map as a Republican gerrymander that could make its way before the court when it returns in the fall and presents the justices with a different set of facts and legal arguments to choose from.
These rulings are a disappointment to reformers, but they by no means represent the kind of defeat that many feared in the fight for fair maps. Nevertheless, they're a reminder that gerrymandering foes can't rely only on the courts to curb the worst excesses of partisan gerrymandering. Progressives need to win elections at the state level to break the GOP's control over redistricting, and activists must use ballot initiatives to create redistricting commissions where possible.
● Michigan: Redistricting reform is officially on the ballot this fall in Michigan, but it isn't guaranteed to stay there—at least not yet. The state Board of Canvassers certified a ballot initiative on Wednesday that would create an independent commission to handle both congressional and legislative redistricting, but conservative opponents are currently in the midst of pursuing an appeal to the state Supreme Court. However, despite its conservative majority, the high court has refused to block certification of the ballot measure pending appeal, which could be an encouraging sign for reformers.
Voter Suppression
● Kansas: On Monday, a federal judge dealt the nation's most infamous vote suppressor a stinging rebuke when she permanently struck down a Kansas law championed by Republican Secretary of State Kris Kobach that required documentary proof of citizenship to register to vote. Judge Julie Robinson, a George W. Bush appointee, not only deemed the law a violation of the National Voter Registration Act, but she also ordered Kobach to complete six hours of legal education courses after she repeatedly had to reprimand him during trial for failing to follow basic procedures.
As we previously explained, Kobach’s law had led to the suspension of one in seven new voter registrations, which were disproportionately drawn from the ranks of young and Democratic-leaning voters. The NVRA, however, only requires that voters swear under penalty of perjury that they're citizens, and demanding extra documentation is naturally burdensome. Furthermore, it made it practically impossible for civic groups to conduct voter-registration drives, since few voters carry their passport or birth certificate day-to-day.
A federal court had previously suspended this law in 2016 ahead of trial, but Kobach had continued to try to require proof of citizenship, leading Robinson to hold him in contempt after the trial concluded in March. Astonishingly, Kobach even tried to keep enforcing that law after this week's ruling, but he finally relented under pressure.
Kobach has said he will appeal all the way to the Supreme Court if necessary, but this decision is a major blow to the man who has done more than almost anyone else to spread the myth of widespread voter fraud and empower officials to implement voter suppression schemes that target Democrats and Latinos. Kobach humiliated himself at trial, and the judge deemed his expert witnesses were "misleading" and thoroughly discredited, demonstrating in court that there was simply no evidence of widespread fraud.
Indeed, the true fraud is Kobach spreading lies about voter fraud in order to suppress votes.
● Kentucky: Following the Supreme Court's ruling last week allow Ohio Republicans to purge the registrations of infrequent voters, the Trump administration's Justice Department sued the state of Kentucky to likewise purge its voter rolls, and officials there quickly agreed. The conservative group Judicial Watch had previously filed a lawsuit demanding Kentucky scrub its voter rolls last year, so the DOJ joined what was an existing case, but this development nevertheless marks the first time the Trump administration has sued a state to force it to purge its voter rolls. Consequently, we can expect more purges elsewhere—whether or not Trump directly instigates them—that, like Ohio’s, run the risk of disenfranchising eligible voters.
● Native American Voting Rights: Kira Lerner at ThinkProgress has published a comprehensive look at the struggles Native Americans face when trying to exercise their right to vote—a right that they’re now forced to defend more and more often in the courts, ever since the Supreme Court gutted a key provision of the Voting Rights Act in 2013. While most of these lawsuits have succeeded in recent years, the very need to wage lengthy and expensive legal battles is indicative of widespread Republican-backed efforts to stop Native Americans from voting.
Arizona in particular poses a serious challenge. The state has seen a rise in the popularity of voting by mail, an option 80 percent of voters now exercise. But while this system makes voting easier for most people, that isn't the case on reservations. Many citizens there rely on post-offices boxes that are sometimes located many miles away, and only one-fourth of all households have access to a car.
Activists had for years managed to overcome this obstacle by collecting completed ballots from voters without easy access to the mail and turning them in on their behalf. However, a new GOP-backed law that bans people from gathering and turning in ballots if they don’t belong to a family member or someone under their care now poses a major barrier to voting for Native Americans.
● Texas: Plaintiffs opposing Texas' 2017 voter ID law have exhausted their options after declining to appeal a recent ruling by a three-judge panel of the 5th Circuit Court of Appeals that had upheld the law. The plaintiffs could have sought further review by the entire 5th Circuit, known as an "en banc" session. However, following Trump's appointments to the 5th Circuit, it now leans even more heavily toward conservatives who are hostile to voting rights, and an appeal to the like-minded Supreme Court would have also faced steep challenges.
Secretary of State Elections
● North Dakota: Republican Secretary of State Al Jaeger has managed an unlikely escape from a surprise political death, following a state party committee's unanimous vote to support his independent campaign for re-election. The turnabout came after the Republican rival who beat him for the party's nomination earlier this year dropped out of the race due to a sexual harassment scandal. Jaeger won't have the benefit of his party label on the ballot, which could help Democratic state Rep. Josh Boschee in his challenge to the longtime incumbent, but Boschee would need even more good fortune to pull off an upset in this deep-red state.
