● North Carolina: On Friday, North Carolina Republicans escalated their assault on democracy to yet another level when state party executive director Dallas Woodhouse issued a barely veiled threat to impeach the state Supreme Court if its Democratic majority blocks the GOP's attempt to put several deceptively worded constitutional amendments on the November ballot in a widely criticized partisan power grab.
In other words, Republicans are telling the justices, “Rule the way we want or we’ll boot you out of your jobs”—making no attempt whatsoever to disguise their contempt for the rule of law and judicial independence. And this is no idle threat, since the GOP has the two-thirds majority in the state Senate they’d need to oust these judges, thanks to gerrymanders that were ruled unconstitutional in 2017.
This threat of a constitutional crisis comes amid the GOP's last-ditch effort to use their illegally obtained supermajorities to entrench their power before this November's elections, which are likely to give Democrats enough votes to sustain Democratic Gov. Roy Cooper's vetoes.
Republicans previously rushed to change state law so that they themselves could write the language on the ballots describing these amendments, allowing them to describe the proposals in misleading terms. For instance, they’ve labeled an amendment to let GOP legislators gerrymander the judicial branch and pack the Supreme Court to end Democratic control a "nonpartisan merit-based system" of judicial appointments.
Their other nefarious amendments also include one that would require voter ID, after the GOP’s 2013 voter ID law was struck down for racial discrimination; one that would shift many executive branch appointments from the governor to the legislature, including the state Board of Elections, so that Republicans can veto Democratic efforts to undo past GOP voter suppression; and one that would lower the maximum income tax rate to fiscally hobble future Democratic state governments.
Making matters worse, a newly discovered loophole in the judicial gerrymandering amendment would let Republican legislators include "other matters" when passing bills to appoint judges—bills that aren't subject to gubernatorial veto. Combined with their proposal on executive branch appointees, these two amendments are designed to neuter the governor's remaining political powers and transfer them to a ruthlessly gerrymandered legislature.
Democrats have filed lawsuits to remove these misleading amendments from the ballot, and a judge has temporarily halted the printing of any ballots while the litigation is ongoing. But however the lower court rules, this issue is almost certainly headed to the state Supreme Court, which is why the GOP's flirtation with impeachment is so dangerous and could undermine the court's legitimacy in the eyes of the public.
Republicans have long realized the stakes of control over the court, which is why they eliminated this year's judicial primaries, with the goal of having multiple Democrats split the vote in November against GOP Supreme Justice Barbara Jackson to prevent Democrats from gaining a five-to-two majority that could strike down their gerrymanders and voter suppression laws. But after filing closed, Jackson had drawn just two opponents: Democrat Anita Earls and Republican Chris Anglin, who had changed his registration from Democrat to Republican shortly before filing, causing the GOP’s plan to backfire in spectacular fashion.
So of course, Republicans rammed through yet another law, which would have stripped Anglin of his party affiliation on the ballot because he hadn't been a registered Republican for 90 days prior to launching his campaign. That has now failed, too: Anglin filed a lawsuit that resulted in a state judge striking down the law as unconstitutional on Monday. Republicans have said they will appeal, but it's almost certain they will lose once the case reaches the state Supreme Court.
Meanwhile, a separate lawsuit from the NAACP and Clean Air Carolina is challenging some of these amendments using a rarely tested legal theory. As we mentioned above, North Carolina's legislative gerrymanders were ruled unconstitutional in 2017, requiring a number of districts to be redrawn for this year's elections. But because the lawmakers elected under those illegal districts are still in office, this new suit argues they constitute a "usurper" legislature that does not have the authority to amend North Carolina's fundamental governing document.
As you might imagine, such an argument has seldom been made, but it’s not without precedent: In 1964, a federal court in Connecticut enjoined the state legislature, which had been elected using unconstitutional districts, from passing any laws until it had reconstituted itself under new maps. (The court stayed its own order, though, as long as the legislature complied with its timetable for enacting new maps, which it did.)
Of course, that’s one long-ago case, and it’s not binding on state courts in North Carolina. But the case nevertheless presents a compelling moral argument that the current North Carolina legislature lacks democratic legitimacy. Given the GOP's history of rampant gerrymandering, voter suppression, and interference with judicial independence since taking control of both legislative chambers in 2010, this latest threat to impeach the state Supreme Court is their most radical escalation yet in what's been a long but steady move towards effectively ending real democracy in North Carolina.
● Ohio: In a small victory in the fight against Republican gerrymandering in Ohio, a federal district court has refused to dismiss a lawsuit that argues Ohio's congressional map violates the Constitution on the grounds that it’s a partisan gerrymander. Unfortunately, the hurdles for the plaintiffs will only grow from here, and with Brett Kavanaugh likely to soon replace retired Justice Anthony Kennedy on the Supreme Court, the federal bench is extremely unlikely to allow cases like this one to succeed for the foreseeable future.
● Arizona: Wow: At a recent debate ahead of Arizona’s Aug. 28 Republican primary for secretary of state, businessman Steve Gaynor advocated for banning the printing of ballots and other election materials in Spanish, arguing that they should only be in English. Furthermore, Gaynor called for repealing the 1975 amendment to the federal Voting Rights Act that, thanks to a history of discrimination by many states—including Arizona itself—requires jurisdictions with large populations of non-English speakers to provide election materials in voters’ native languages.
Given that record of discrimination in a state that's one-quarter Latino or Native American, it's astonishing that a candidate would openly advocate for a measure that could make voting considerably more difficult for so many. But with Republicans escalating their voter suppression efforts thanks to a Supreme Court that seems determined to eviscerate the Voting Rights Act, Gaynor's proposal isn't an empty threat.
Gaynor is challenging Secretary of State Michele Reagan in the GOP primary for the job of Arizona's top election administrator. (The office is also first in line to succeed the governor in case of vacancies, since Arizona has no lieutenant governor.) Polling has been limited, but a late July survey from the GOP pollster Data Orbital found Gaynor with a huge 44-22 lead over Reagan, who has faced blistering criticism for incompetency during her lone term in office. A report from the state's attorney general last year even concluded that Reagan had broken the law when she failed to send out voter information pamphlets during the 2016 elections.
Gaynor could very well become the Republican nominee, and in red-leaning Arizona, he could get elected to office. Fortunately, voters have a terrific alternative in Democrat Katie Hobbs, a true supporter of voting rights. While Gaynor wants to make sure fewer people vote, Hobbs favors policies like automatic voter registration that will make it easier to vote. That’s what any elections official should aspire to do in a democracy.
● Florida: A lawsuit filed on Thursday by a collection of civic groups and one voter argues that close to half of Florida's counties are violating the Voting Rights Act by refusing to offer Spanish-language ballots and other election materials following the influx of Puerto Rican refugees from last year's devastating Hurricane Maria. The plaintiffs estimate that there are at least 30,000 potential Puerto Rican voters in these counties with limited English proficiency who are in need of Spanish-language registration forms, ballots, and other materials.
● Georgia: In a move reminiscent of the Jim Crow era, the board of elections in Randolph County has proposed eliminating seven of its nine polling places. Randolph is a low-income, rural county that is heavily black, and 22 percent of residents don't have a car, so these closures could make it unduly burdensome for voters to cast a ballot in person. This burden could be particularly acute for black voters: One proposed precinct closure is in an area that is 97 percent black, and some voters without cars would have to walk for hours to vote in person.
Board members claim that they’ve proposed these closures because the polling places in question aren't compliant with the Americans with Disabilities Act and have fallen into disrepair. However, opponents of the plan rightly retort that the situation is cause for new maintenance to improve these polling places, not a reason to shut them down entirely. And putting the lie to the board’s claims, these precincts were already used without major problems in this year's primary. The ACLU has sent a letter to the board demanding the poll sites be kept open.
● Iowa: Last week, based on an erroneous news report, we incorrectly wrote that the Iowa Supreme Court had upheld a lower court's injunction blocking cuts to early voting contained in a broad voter suppression law passed by the GOP last year. The court did in fact reverse the injunction, allowing the reduction of the early voting period from 40 days to 29 days to remain in effect pending trial. However, the justices also upheld part of the injunction that would make it easier to cast absentee ballots.
● Michigan: Republicans have announced they will appeal a federal district court ruling from earlier this month that struck down their repeal of the state’s straight-ticket voting option on the grounds that it intentionally discriminated against black voters, who disproportionately prefer that method of casting ballots. But even if Republicans ultimately prevail on appeal, Michigan voters have a chance to enshrine the straight-ticket option (as well as several methods to expand voting access) into their state constitution, which would circumvent the GOP's repeal effort.
● New Hampshire: In a small but meaningful victory for voting rights, a federal court blocked New Hampshire's so-called "signature mismatch" law that had arbitrarily and inconsistently thrown out nearly 300 absentee mail votes in 2016 alone, disproportionately affecting elderly and disabled voters.
New Hampshire provided no training whatsoever in handwriting analysis to workers but did give them the unilateral authority to reject absentee ballots if they concluded that a voter’s signature did not match the one on file. What’s more, these decisions were not subject to any sort of appeal, and the arbitrary nature of this power proved itself in that all of the rejected ballots came from just one quarter of the precincts.
Now, thanks to the court’s ruling, election officials will be required to contact voters whose signatures appear not to match and allow them to "cure" the problem. While this ruling may not impact many voters, it's critical that more states take steps to avoid wrongly throwing out valid votes, particularly as voting by mail has become increasingly popular.
● Felony Disenfranchisement: While we often write about the political struggles to restore the voting rights of those who have completed felony sentences, even those who are eligible to regain their rights are often unaware of it. To combat this problem, the Campaign Legal Center, a civil rights organization, has launched a voter awareness campaign and a new online tool to help eligible citizens apply to regain their voting rights after serving their time. Efforts like these are vital, particularly because Republican-run states such as Alabama have refused to inform voters that their rights could be restored.
● Illinois: Earlier this spring, both chambers of Illinois' Democratic-run legislature passed a bill that would establish a polling place in the Cook County Jail, which houses several thousand inmates, and require other correctional facilities to provide registration and absentee vote-by-mail materials for inmates who have not yet been convicted of any felonies and thus still retain their voting rights. However, Republican Gov. Bruce Rauner still has yet to sign or veto the measure, and Democrats lack a veto-proof majority in the state House if Rauner opposes it.
If this bill does become law, though, it could make voting much easier for inmates who are awaiting trial, especially because many of them may not even realize they still retain their voting rights. Proponents estimate that 50,000 more people could vote each year if the bill becomes law.
● West Virginia: North Carolina Republicans aren't the only ones flirting with impeaching state Supreme Court justices: West Virginia Republicans are actually doing it for their entire state Supreme Court. But unlikely their counterparts in North Carolina, West Virginia lawmakers actually have valid reasons to remove at least some of the justices, since the court has become embroiled in a corruption scandal. However, by slow-walking the impeachment process, Republicans have engineered a way to flip the court, which previously had a three-to-two Democratic majority, to GOP control until at least 2020.
The insidious thing is the timeline of impeachment itself. As early as last fall, local news investigations had already found that the justices, who oversee their own budget, had spent hundreds of thousands of dollars on fancy perks like luxury furniture. A subsequent state-run audit found further abuses of public resources: One judge even took home a historic antique desk owned by the state.
In June, prosecutors indicted Republican Justice Allen Loughry on 54 counts of fraud and related crimes, leading to his suspension by a judicial panel. The next month, Democratic Justice Menis Ketchum resigned his post and later pleaded guilty to one count of fraud.
But even as evidence of judicial corruption mounted, Republicans in the state House waited until this week to impeach the four remaining members of the court. Why? It’s simple: Had any new vacancies arisen by Aug. 14, they would have been filled by special elections this November—a year in which Democrats are favored at the polls, including in West Virginia.
Instead, Republican Gov. Jim Justice will get to name replacements himself, and these new justices won’t have to go before voters until 2020, when they’ll have the chance to run with the advantages of incumbency. To help forestall this power-grab, Democratic Justice Robin Davis resigned on Tuesday right before the Aug. 14 deadline, triggering a special election for her seat, as was already in store for Ketchum’s.
But if the two remaining Republicans and the sole remaining Democrat on the court are removed from office by the state Senate, the ironically named Justice would appoint new judges to fill their seats. Even if candidates supported by Democrats were to win the two special elections in November, that would give the court a three-to-two Republican majority.
Republicans easily passed impeachment resolutions this week in a vote largely along party lines, but they will require at least one Democratic senator for the two-thirds supermajority needed to remove the justices from office. But in a state Trump won resoundingly, and one that’s home to many conservative Democrats, that may not end up being much of an obstacle.
America is virtually alone in electing judges, a system that is manifestly bad for democracy and the impartial rule of law. However, if such elections are going to take place, they must, like all others, be conducted in a free and fair manner. Taking advantage of a corruption scandal to inject more partisanship into West Virginia’s state Supreme Court only further undermines the independence of the judiciary.
● Kansas: On Tuesday, Kansas Gov. Jeff Colyer conceded last week’s GOP primary, making infamous voter-fraud peddler Kris Kobach the 2018 nominee. For years, Kobach has crusaded against voter fraud as an excuse to suppress Democratic-leaning demographics like young voters and Latinos. Kobach also headed up Donald Trump's now-defunct "Election Integrity" commission, which Trump shut down last year in reaction to numerous lawsuits that ultimately revealed it was merely a pretext for new federal voting restrictions. And soon, he could become governor. Democrats, however, have nominated a strong candidate in state Sen. Laura Kelly, and they have a shot at stopping Kobach in this deep-red state thanks to his baggage and the disastrous economic policies of former Gov. Sam Brownback.
● Secretaries of State: Secretaries of state are the chief election administrators in many states, and they can play a key role in setting polling locations and hours, maintaining voter rolls, persuading legislators to expand voting rights, and even redistricting in some states. Because of the importance of this job, Daily Kos recently endorsed six Democratic candidates who are running for secretary of state offices that Republicans currently hold:
Winning these elections would help Democrats fight back against GOP gerrymandering, push for policies like automatic voter registration that would broaden voting rights, and modernize the way elections are conducted so that voters maintain confidence in the integrity of the results.