Leading Off
● Supreme Court: On Wednesday, Justice Anthony Kennedy delivered a devastating blow to voting rights and the fight for fair elections by announcing his retirement, paving the way for Donald Trump to appoint another ultra-conservative justice and give staunchly partisan Republicans a majority on the bench for the first time in generations. While Kennedy’s jurisprudence was always very conservative, he could occasionally be counted upon to side with the court’s four liberals and was thus sometimes a swing vote.
But with Chief Justice John Roberts poised to become the new median vote on the bench, the Supreme Court will soon shift radically toward the right in ways that threaten democracy and the rule of law themselves. Here's how:
1. The Voting Rights Act and Voter Suppression
Roberts has spent nearly four decades trying to kill the Voting Rights Act, starting in 1980 with his clerkship for Chief Justice William Rehnquist and culminating in his 2013 ruling to gut a key provision of the VRA by pretending racism was a thing of the past. He'll almost certainly continue to chip away at the VRA by upholding Republican-backed voter suppression efforts like voter ID laws, voter purges, and more.
While Kennedy often voted to undermine voting rights, the absence of his occasional reluctance could see the Roberts Court destroy the last major pillar of the VRA, which is Section 2 of the law. That provision bans voting laws that discriminate against racial minorities and those who do not speak English, even in the absence of an intent to discriminate.
2. Racial Gerrymandering
The Roberts Court's hostility to the VRA will also have devastating consequences in the fight against maps that violate the rights of voters of color by diluting their voting power. While Kennedy sided with the conservatives to largely uphold racial gerrymandering this term (see our Texas item below), he has also sided with the liberals in several other cases to strike down racial gerrymanders this decade. If the reactionaries on the court persuade Roberts to gut the rest of the VRA, there could be no protections against maps that eviscerate minority voting strength so long as Republican dubiously claim partisanship as their sole motivation.
3. Partisan Gerrymandering
Kennedy's retirement and decision to punt on this year's major partisan gerrymandering cases effectively dooms any chance of the Supreme Court putting limits on the practice—at least unless it begins favoring Democrats nationally. With an arch-conservative taking Kennedy’s place, the Roberts Court could overturn Kennedy's 2004 opinion finding that gerrymandering could theoretically violate the Constitution and instead hold that the court simply can't get involved. This decade's partisan gerrymanders, overwhelmingly drawn by the GOP, were the most extreme in the modern era, but next decade will only see maps get even worse.
4. Ballot Initiatives
With gerrymandering poised to become even more devastating, state-level ballot initiatives to create independent redistricting commissions like those in Arizona and California have been critical tools to enact fairer maps. Kennedy provided the key vote to uphold Arizona's commission in 2015, but Roberts angrily dissented and would have rendered unconstitutional most or even all election-related laws passed by initiative, at least regarding federal elections. His flimsy justification is the reference to "the legislature" in the Constitution’s “Elections Clause,” which he says literally means lawmakers themselves instead of those vested by state constitutions with the power to make laws—that is to say, citizens themselves, where initiatives are permitted.
Overturning that ruling wouldn't just crush redistricting reforms passed at the ballot box in Arizona, California, and Florida: It would also thwart more states from following their lead, like Michigan voters are trying to do this year. Furthermore, it could also invalidate a slew of laws like Maine's instant-runoff voting and Alaska's automatic voter registration and prevent voting rights advocates from passing reforms when Republican legislators refuse to act.
5. Campaign Finance
Finally, Kennedy was the driving force behind Citizens United and other rulings that opened up the floodgates to massive unaccountable corporate money in politics, but even he still left in place caps on how much donors can give directly to candidates. Election law expert Rick Hasen has argued Kennedy's departure could see the court eliminate campaign finance limits entirely, letting billionaires donate limitless sums directly to candidates themselves instead of via super PACs that face operational restrictions.
What's Next?
The Supreme Court's coming shift to the extreme right is a fundamental threat to American democracy, but those who care about voting rights and the rule of law are not without recourse. Democrats can stop GOP-backed voting restrictions and gerrymanders by winning back state governments, not only with governors who can veto bad laws and state supreme court justices who can strike them down, but also with legislators to pass laws expanding voting rights. And ballot initiatives could still be used to reform state and local elections even if federal elections wind up off limits.
Campaign Action
But based on what we can expect from a post-Kennedy Supreme Court, as well as an Electoral College that's the byproduct of institutional white supremacy, a malapportioned Senate, and rampant Republican gerrymandering in the House and legislatures across the country, Democrats face enormous hurdles to regain control of the federal government—and that’s true even when they have more national support than Republicans do.
But if Democrats do retake Congress and the presidency, they could eliminate the filibuster and pass a far-reaching new Voting Rights Act, eliminate congressional gerrymandering, and end the disenfranchisement of millions of American citizens by admitting Washington, D.C. and Puerto Rico as new states, which would mitigate the Senate's massive bias against Democrats and people of color. Indeed, 36 members of Congress just introduced a bipartisan proposal to offer Puerto Rico statehood by 2021.
With Republicans using their control over courts and legislative bodies to suppress the right to vote and entrench themselves in power, the stakes are simply too high not to take advantage of every opportunity to ensure Americans have the right to vote in fair elections.
Redistricting
● Connecticut: On Thursday, the NAACP announced it was suing the state of Connecticut in federal court over what's known as "prison gerrymandering," which is the widespread practice of counting inmates at their prison instead of their last address for the purpose of redistricting. The plaintiffs are seeking to have prison gerrymandering declared unconstitutional, which would require all states to change where they count inmates for the purposes of representation at all levels where districts are used. (Some states already abjure the practice.)
Prison gerrymandering hurts the political power of people of color, since prisoners disproportionately come from communities of color, while prisons themselves are largely located in rural white communities. Because Connecticut’s current district maps were drawn by the courts, prison gerrymandering motivated by partisanship isn't at stake here like it is elsewhere. However, ending it nationally would allow communities of color to gain a fairer share of representation.
● North Carolina: Completing the bad week for the fight against gerrymandering, the Supreme Court vacated a lower court ruling that had struck down North Carolina's congressional map as an unconstitutional Republican gerrymander. The justices sent the case back to the district court to reconsider the case in light of their recent decision in another partisan gerrymandering case in Wisconsin, where the court determined that the plaintiffs lacked standing to sue on a statewide basis instead of district-by-district.
Of all the cases challenging such gerrymanders, the suit over North Carolina's congressional map has the strongest evidence against Republicans because the GOP ... literally admitted it was a partisan gerrymander in an ill-advised attempt to insulate it from charges of racial discrimination. But even if the district court again finds that plaintiffs have standing to sue and once again rules against the map, it's difficult to see a Supreme Court without Kennedy upholding such a ruling.
Separately, the Supreme Court affirmed a lower court ruling earlier this year that redrew some of the state's legislative districts, which we've previously explained.
● Pennsylvania: In good news for fair maps, Republicans adjourned without the state House voting on a deeply flawed constitutional amendment to that state Senate Republicans recently passed to create a redistricting commission, making it very unlikely an amendment could take effect before the next round of redistricting in 2021. While this proposal started off with some promise, Republicans poisoned it by amending it to undermine the commission’s independence. They then worsened it further by adding provisions that would have gerrymandered the state Supreme Court as payback for the court striking down their congressional gerrymander, leading Democrats and reform groups to denounce the idea.
Republicans are also still appealing to the U.S. Supreme Court to restore their congressional map, but this one is likely to survive even in the post-Kennedy era, since it was decided solely on state constitutional grounds. Indeed, the Supreme Court unanimously denied the GOP's request for a stay of the state court's ruling pending appeal earlier this year, and it is not obligated to even hear the case.
● Texas: On Monday, the Supreme Court gave Republican gerrymandering a major boost when it reversed a district court ruling that had struck down Texas’ GOP-drawn congressional map for intentionally discriminating against black and Latino voters.
The GOP’s victory was almost total: The Supreme Court’s conservative majority overturned the lower court as to every congressional district it had invalidated and all but one of the state House districts it struck down. But beyond just this case, the high court’s five-to-four decision further erodes the Voting Rights Act on the fifth anniversary of its landmark decision that gutted a key part of the VRA.
This dispute, which has been dragging on for seven long years thanks in part to an apparent slow-walk by conservative judges, has hinged on a key aspect of the VRA that penalizes lawmakers when they act with discriminatory intent. Had the lower court’s ruling stood, Texas would have been required to draw new maps, and it might have faced further sanction as well. Now it has avoided the former and very likely the latter, too.
The Supreme Court’s questionable ruling relied on the dubious notion that the Republicans who crafted Texas’ maps were entitled to a presumption that they acted in good faith. The record, however, shows otherwise.
As we have previously explained, Texas could have drawn three more congressional districts that would have let Latino voters elect their preferred candidates. Instead, they passed the gerrymander shown at the top of this post, which not only deprived Latinos of these seats but also likely cost Democrats four or five districts in 2016, making it one of the most consequential Republican gerrymanders in the country.
And it all became possible because of the Supreme Court. Until 2013, the VRA required states with a history of discriminatory voting laws like Texas to “preclear” any proposed changes to election laws with the Department of Justice, which could block them if they were found to adversely affect the rights of people of color. That included new redistricting plans.
When Texas passed a new set of maps at the start of the decade, the Obama Justice Department denied preclearance for the state’s congressional and state House plans. Litigation immediately ensued, but with limited time to adjudicate the matter ahead of the 2012 elections, a federal district court wound up modifying the GOP’s proposals only modestly to curtail their discriminatory impact on an interim basis.
Those court-imposed maps were not meant to serve as permanent solution to the question of whether Republicans violated federal law in drawing it, as the judges who crafted it noted at the time. Instead, they were meant as a placeholder in anticipation of further litigation. And even though the court had sought to rein in the Republicans’ overreach, some of its interim districts were nevertheless nearly identical to several those that made the GOP’s original proposals so problematic.
It’s likely, as subsequent events showed, that these temporary plans would have required considerable amendment, but the trajectory of the case challenging them changed dramatically in 2013. That year, the Supreme Court struck down the VRA’s preclearance requirements, meaning Republicans no longer needed the approval of the Justice Department to pass new districting plans. Sensing an opportunity, they quickly made the court’s temporary maps permanent.
The district court delayed for years in adjudicating the case, but last year, it finally ruled that the 2011 congressional and state House maps did indeed intentionally discriminate against black and Latino voters. However, those 2011 maps had never actually taken effect. Plaintiffs therefore had to argue in a separate trial before the same three-judge district court panel that the 2013 maps also bore the hallmarks of intentional discrimination because of how similar many of the districts in that plan were to those in the 2011 map.
The plaintiffs won that case, too, but the Supreme Court reversed that decision. In essence, the justices allowed Texas Republicans to launder their original maps through the judicial system, holding that the discriminatory intent the district court found with regard to the 2011 maps couldn’t carry over to the 2013 maps.
Consequently, election law experts, including professor Rick Hasen, have argued that this presumption of good faith will make it almost impossible for plaintiffs to prove intentional discrimination in future cases, absent a very unlikely smoking gun. Furthermore, it makes it very difficult for challengers to try to revive preclearance for states like Texas by means of a little-used provision of the VRA that allows for states to be placed back under preclearance for up to 10 years if officials have been found to engage in intentional discrimination.
This ruling is yet another in a line of cases that has seen the conservative-dominated Supreme Court continue to chip away at the Voting Rights Act. But even the majority’s opinion didn’t go far enough for Justices Clarence Thomas and Neil Gorsuch, who argued the VRA doesn’t apply to redistricting. And with Donald Trump set to replace conservative swing Justice Anthony Kennedy with another jurist like Gorsuch, a man who has spent nearly four decades in politics trying to eviscerate the VRA will soon control the fate of this case: Chief Justice John Roberts.
● Virginia: On Tuesday, a federal district court panel struck down 11 of Virginia's state House districts on the grounds that Republicans violated the Constitution by infringing the rights of black voters. However, Supreme Court Justice Anthony Kennedy's retirement puts the chances that this ruling survives the GOP's planned appeal in doubt. Previously, this same district court panel upheld all the 12 challenged districts only to have the Supreme Court order them in 2017 to reconsider their decision for 11 of them; this time, after a second trial, the outcome was quite different.
This case centers on the use of mechanical thresholds for the population proportion needed for black voters to be able to elect their preferred candidates under the Voting Rights Act. The GOP admitted to using an arbitrary threshold of 55 percent black for every such district, even though that level is greater what it takes for black voters to elect their candidates of choice in Virginia (i.e., black Democrats), since a large enough minority of whites will support those same candidates. Republicans used this too-high threshold because it meant that neighboring districts would have fewer black voters, violating the Constitution.
Had Kennedy remained on the bench, there was a strong chance he would have upheld this latest ruling. That's because the facts were almost identical to those in an earlier case from Alabama—the one that prompted the Supreme Court to order the Virginia district court to rehear this case. In the Alabama suit, Kennedy sided with the court's four liberals to reject a lower court's initial decision to uphold the maps; the district court then struck down the maps in 2017.
With Donald Trump all but certain to nominate another ultra-partisan like Neil Gorsuch to replace Kennedy, the prospects for the Virginia case look dim, but it isn't necessarily doomed, at least not yet. That's because Chief Justice John Roberts concurred with Kennedy's opinion in sending this ruling back to the lower court last year. However, Roberts has spent his career fighting voting rights, and he voted to uphold the GOP’s legislative gerrymanders in the Alabama case.
In any event, the lower court ordered legislators to draw new districts by Oct. 30, and Democratic Gov. Ralph Northam would theoretically able to veto any replacement gerrymander, forcing the court itself to have to redraw the lines like it did when Virginia's congressional map was struck down for similar reasons earlier this decade. But Republicans plan to ask the Supreme Court to stay the lower court's ruling pending another appeal.
Kennedy might still be on the bench by the time the Supreme Court hears that stay request, meaning it could be denied. But unless the justices find the GOP has no standing to appeal, as they unanimously did in the congressional case in 2016, it's highly unlikely this ruling will survive on the merits without Roberts' support.
Court Packing and Judicial Gerrymandering
● North Carolina: Republicans in North Carolina have gone to extraordinary extremes to undermine democracy, but their latest power grab can only be described as a nuclear attack on the rule of law: They want to gerrymander the judiciary and then pack the state Supreme Court, all in order to do away with the one-seat Democratic majority on the bench.
It’s a devastatingly devious scheme, and it all begins with the GOP’s gerrymander of the legislature itself—maps that allowed the party to lock in veto-proof majorities even though they’ve been struck down as unconstitutional by the courts. With that ill-gotten hammerlock on the state House and Senate, Republicans last week placed a constitutional amendment on the ballot this fall that would effectively transfer the power to fill judicial vacancies from Democratic Gov. Roy Cooper to legislators themselves.
And if the measure passes, it would effectively gerrymander the judiciary. That’s because this amendment would create a commission to provide the governor with a list of names from which he or she would choose an appointee any time there’s a judicial vacancy. But that commission would be a sham: It would be stocked with members chosen by the legislature—that is to say, the GOP—and it could therefore send Cooper nothing but hardcore conservative partisans, giving him no one else to choose from.
But there’s more. North Carolina's constitution allows lawmakers to add two more justices to the state Supreme Court, simply by passing a new law doing so. Right now, the court has seven members, with four Democrats and three Republicans. You can see where this is going: If the amendment passes, the GOP could then put two more justices on the court, creating vacancies that their rigged commision would be in charge of recommending names for.
And with that, the North Carolina Supreme Court would have a five-to-four Republican majority.
Note that Republicans could pull this off even if they lose their illegally obtained supermajorities in November (which looks likely) by calling a lame-duck session after the elections to pack the court over Cooper's veto. State House Minority Leader Darren Jackson took to the House floor to accuse the GOP of preparing to do exactly this on Thursday and dared his Republican colleagues to deny it.
None would.
North Carolina Republicans have relentlessly shown they will stop at nothing to hold onto power. They have gerrymandered every level of government from Congress down to local school boards. When they passed one of the most restrictive voter suppression laws since Jim Crow, a federal court struck it down for targeting black voters "with almost surgical precision." And when Cooper ousted GOP Gov. Pat McCrory in 2016's elections, the GOP legislature used a lame-duck session to try to usurp as much power as they could, much like this judicial appointment amendment would.
With the U.S. Supreme Court poised to take a radical lurch to the right following Anthony Kennedy's retirement, state courts will soon become the last refuge for those seeking to place a check on Republican power run amok. Consequently, defeating this amendment in this November's referendum is critical for preserving the independence of the one branch of North Carolina's government that is currently able to limit the GOP.
But even if this amendment succeeds, Democrats have one other way to stop the GOP takeover of the court: at the ballot box. Earlier this week, Daily Kos proudly announced our endorsement of Democrat Anita Earls in her race against Republican Justice Barbara Jackson this fall. As a civil rights attorney, Earls has fought and won cases against GOP gerrymandering and voter suppression. Crucially, if she prevails, Democrats would hold five seats on the high court, meaning that even if the GOP went ahead with its court-packing scheme, Democrats still have a five-to-four majority.
However, Earls doesn't have an easy road ahead of her. With their power on the court threatened, Republicans eliminated this year's primaries entirely, forcing all candidates to run on a single ballot in the fall so that fake Democrats could try to split the vote. But Earls scored a very lucky break when no other Democrat ended up on the ballot, and a second Republican made it on there instead.
And if Earls wins and voters defeat this amendment, she’d be able to join what would be a five-to-two Democratic majority to strike down Republican gerrymandering and voter suppression laws in a way that would not be subject to U.S. Supreme Court review. That very thing happened earlier this year in Pennsylvania, where a Democratic-majority Supreme Court interpreted the state constitution to ban gerrymandering. North Carolina's constitution guarantees similar rights.
Indeed, Republicans fear that exact outcome, which is why they passed another constitutional amendment—this one to enshrine a voter ID requirement. They also recently overrode Cooper’s veto of a law that tries to eliminate Saturday early voting only to abruptly pass a subsequent measure to restore it on a temporary basis this year. Since black voters disproportionately used Saturday voting, it’s likely that Republicans were worried about judicial review until the courts move further right.
But that isn’t the end of it: The GOP put a third amendment on the November ballot this week that would transfer control of the bipartisan state Board of Elections from the governor to the legislature itself. When Cooper took office, Democrats would have gained a majority on the board and been able to reverse past voter suppression measures the previous GOP majority had enacted, but this amendment would make that impossible. Republicans, desperate to avoid this fate, previously passed three separate statutes in furtherance of this goal, but state courts struck down or curtailed them every time.
Republicans in North Carolina have pursued every imaginable angle in their quest to ensure they'll remain in power no matter how much or how often the electorate would prefer Democrats in a fair election. But voters will have the power to fight back this fall by electing Anita Earls and rejecting this amendment to gerrymander the judicial branch.
Voter Registration and Voting Access
● California: California’s state legislature is poised to pass a bill to prepay the postage for all mail-in ballots statewide. Both chambers, which are run by Democrats, have already passed the bill, but the Assembly still needs to agree to amendments from the state Senate. In a state where a wide and growing majority already votes by mail, this move could make it much more convenient to cast a ballot by saving voters a trip to the post office, and it could consequently increase turnout.
● Delaware: In a welcome surprise, Delaware's Democratic-controlled state House recently passed two bills that would finally allow for early voting and also permit voters to register and cast a ballot at the same time, including on Election Day itself (best known as same-day registration). Delaware currently has some of the most restrictive voting laws of any blue state, so these measures could significantly increase turnout by making it easier vote, especially since the state currently requires an excuse to vote absentee.
Unfortunately, these changes wouldn't take effect until 2022, and state law still requires those wishing to change their party affiliation before primaries to do so four months ahead of time. Furthermore, it's unclear if these bills will advance in the state Senate, where Democrats only just a one-seat majority. A few Democrats joined all Republicans in voting against these measures in the House, but their larger majority in the lower chamber was enough to secure passage there. But if every Democratic senator approves, these reforms will become law because Democratic Gov. John Carney supports them both.
● Massachusetts: On Wednesday, Massachusetts' heavily Democratic state House passed automatic voter registration with a veto-proof majority. The proposal now goes to the state Senate, where Democrats hold a similar supermajority. Republican Gov. Charlie Baker, a relative moderate, hasn't announced his position on the proposal yet, but a considerable share of the GOP minority voted for the measure in the House, meaning there's a good chance he might sign it anyway.
If enacted, this law would take effect in time for the 2020 elections. It would automatically register any eligible voter who does business with the state's Registry of Motor Vehicles or who uses Masshealth, which administers Medicaid and the state's Obamacare-style health insurance exchange. That second prong is key because Massachusetts has the nation's lowest uninsured rate at just 2.5 percent, meaning low-income people, the elderly, and those who don't drive will have a much better chance of getting registered.
Voter Suppression
● Voter Suppression Commission: For the second time, a federal court has ordered the Trump administration to hand over documents from its bogus voter suppression commission to Maine Secretary of State Matthew Dunlap, who was one of the token Democrats on the commission and had sued over the GOP's attempt to hide their activities. Trump and commission leader Kris Kobach never complied with the court's December order to share the documents and responded by shutting down the sham commission, but the court ruled that doing so didn't insulate them from its previous order.
Programming Note: The Voting Rights Roundup will be on hiatus during the week of July 6. We’ll return the following week.