● Michigan: Democratic students at the University of Michigan and Michigan State University have filed a federal lawsuit against Republican Secretary of State Ruth Johnson over a state election law that requires voters to register at the address on their driver's license, even if that address doesn't match their residence at school. The law also requires those who register by mail or through a third-party voter registration drive to cast their first ballot in-person instead of by absentee.
These measures effectively force in-state students to either take extra time to update their licenses or travel home on Election Day to vote. Furthemore, students are disproportionately likely to register through the mail or campus registration drives. Consequently, the combination of these two provisions appears to be unconstitutional, since the Supreme Court ruled in a 1979 case that college students have the right to vote at their school or at their parents' permanent address.
Particularly telling is the naked partisan self-interest on the part the law's author. In 1999, then-state Sen. Mike Rogers and his fellow Republicans passed this law, even though the plaintiffs contend that lawmakers were well aware of the problems it would cause for student voters.
Yet after enacting the measure, Rogers ran for Congress in a swingy Democratic-held House district home to the state capital of Lansing … and Michigan State University, which at the time enrolled more than 43,000 students, 90 percent of whom were from Michigan. Rogers won by just 111 votes over his Democratic rival that year, meaning his own voter suppression law may have very well made the difference.
● North Carolina: On Monday, a federal district court panel once again struck down North Carolina’s Republican-drawn congressional map as a partisan gerrymander in violation of the Constitution.
This ruling reaffirmed the court’s January decision, which the U.S. Supreme Court vacated and told the lower court to reconsider in June under a different legal theory of who has standing to sue. The Supreme Court, in adjudicating a separate redistricting suit out of Wisconsin, ruled that each disputed district in such a case would have to be challenged individually instead of on a statewide basis; the lower court held that Democratic plaintiffs in the North Carolina case had, in fact, satisfied that requirement.
While the district court had said it might consider implementing new districts this year, that’s unlikely, as the plaintiffs told the court in a Friday filing that doing so would be too disruptive. However, even if the judges order a new map for the 2020 elections, there’s a strong chance that any such ruling would be overturned by the Supreme Court, particularly with Brett Kavanaugh’s confirmation looming.
However, even if the Supreme Court does ultimately side with the GOP, there's still a way to potentially ensure fairer districts in the future by electing Democrat Anita Earls to the North Carolina Supreme Court. Electing Earls could finally prompt the state court to follow Pennsylvania's lead and use North Carolina's state constitution to strike down partisan gerrymandering, likely insulating it from U.S. Supreme Court review.
● Virginia: On Thursday, a federal district court declined to temporarily block its order for lawmakers to redraw 11 state House districts that discriminated against black voters by its Oct. 30 deadline while Republicans appeal to the Supreme Court. Because of Justice Anthony Kennedy's retirement, conservatives on the high court might lack the votes needed to stay the ruling pending appeal. But as we have previously explained, if Brett Kavanaugh is confirmed by the start of the court's term in early October, the survival of the lower court’s order requiring a new map is likely to ultimately depend on Chief Justice John Roberts, who is not someone voting rights advocates ever want to have to rely on.
Republican Power Grabs
● North Carolina: The deadline to print ballots for the November midterms is coming up soon, but North Carolina is still in the midst of a maelstrom of election lawsuits, and this week brought another flurry of developments.
On Friday, a lower court panel unanimously rejected Democratic Gov. Roy Cooper's latest lawsuit arguing that the two replacement constitutional amendments that Republicans passed this week were still misleadingly written, unlike the previous versions the same judges blocked. Cooper swiftly appealed to the Democratic-majority state Supreme Court, which had already enjoined the printing of ballots earlier this week following the NAACP's appeal over the voter ID and income tax cap amendments that are still on the ballot.
As we have previously explained, the two amendments Cooper is trying to block are part of a widely criticized power-grab by Republican legislators that would undermine the separation of powers. To win judicial approval the second time, the GOP limited one amendment, which would have transferred the power to appoint members to a variety of state boards from the governor to the legislature, to just the state Board of Elections, with the intent of causing partisan gridlock so Democrats can't expand voting access.
Meanwhile, the GOP also rewrote their proposal to transfer appointments in cases of judicial vacancies from the governor to the legislature, which would still effectively gerrymander the judiciary so the GOP can try to pack the Supreme Court. However, they removed language that snuck in a backdoor mechanism that would have essentially eliminated the governor's veto power.
As a result of these changes, the trial court ruled that it could not conclude that the amendments were still written in a misleading way, even though the GOP retained deceptive language describing their judicial gerrymandering amendment as creating "nonpartisan judicial merit commissions" for judicial nominees. The Supreme Court still has a chance to overturn the lower court next week, though, and block these amendments before ballots must be printed.
While Cooper may have lost at the courthouse this week, Republicans also gave up on one of their own schemes to meddle in the upcoming elections.The Court of Appeals declined to hear the GOP’s appeal this week of a lower court ruling that blocked a law retroactively stripping a Republican Supreme Court candidate of his party affiliation on the ballot because he was a registered Democrat shortly before filing to run, and Republicans chose not to appeal further to the Democratic high court.
As a result, the GOP’s ploy to help Republican Justice Barbara Jackson win re-election has now backfired spectacularly. Republicans made this previously nonpartisan race partisan, then eliminated the primary in the hopes that multiple Democrats would split the vote against Jackson on a single November ballot. But instead, Jackson will face party-switching Republican Chris Anglin and a lone Democrat, Anita Earls. And as the lawsuits over the GOP’s proposed constitutional amendments make crystal clear, electing Earls is critical for preserving democracy in North Carolina.
● Arizona: Civil rights groups have reached an agreement with multiple Arizona state agencies to send voter registration notices to roughly 300,000 eligible voters who were wrongly not given a chance to register to vote when doing business with public assistance agencies as required under the National Voter Registration Act, commonly known as the "motor voter" law.
However, one very important state official was not party to this agreement: Republican Secretary of State Michele Reagan, who incidentally just lost in the GOP primary this week (see our related item below). Reagan continues to fight efforts to remedy this problem, and consequently, civil rights groups filed a lawsuit against her earlier in August. Litigants want her office to send a similar notification about voter registration to approximately 500,000 eligible voters who weren't given the chance to update their registration when they notified the state Department of Transportation that they had changed their address.
● Texas: Following a bipartisan backlash, Republican lawmakers running the state legislature's Sunset Advisory Commission have voted down a proposal that would have shuttered the only driver's license offices in 78 of Texas’ 254 counties. These counties were disproportionately home to black and Latino voters, and Texas' Republican-backed voter ID law could have led to even greater difficulties in voting if these offices had been closed, thereby making it much more time-consuming for residents to obtain a license or state ID card.
Voter Registration and Voting Access
● Michigan: Organizers behind a sweeping ballot initiative to protect and expand voting rights are one step closer to officially putting the measure on the ballot after the state Bureau of Elections forwarded a recommendation to approve the measure to the state Board of Canvassers. The elections bureau estimated that 322,000 of 430,000 petition signatures were valid, clearing the 316,000 minimum that proponents needed. This decision comes after supporters had filed a federal lawsuit this week alleging that GOP-run Bureau of Elections had been stonewalling approval to try to run out the clock before ballots are finalized.
If the Board of Canvassers, which is evenly split between the parties, certifies this amendment and if voters approve it, it could have a profound impact on making voting easier and more accessible in a state that currently lags far behind most other swing states on both counts. Indeed, the proposal would implement automatic and same-day voter registration, remove the excuse requirement for absentee ballots, guarantee the right to the straight-ticket voting option, and allow for elections to be routinely audited to ensure accuracy.
● New Mexico: Democratic Secretary of State Maggie Toulouse Oliver announced on Wednesday that she would restore New Mexico’s straight-ticket voting option in time for this November's election, resurrecting a voting method that former Secretary of State Dianna Duran unilaterally eliminated in 2012 after she became the first Republican to elected to the post since the Great Depression. However, Republicans have promised to file a lawsuit to stop the change.
If Toulouse Oliver succeeds, voters would have the option to check a single box that would count as a vote for every member of that party on the ballot—the so-called “straight ticket.” A voter would also be free to select individual candidates from a different party in specific races and still have both those votes and their straight-ticket preference in other races count. This availability of the straight-ticket option not only makes voting more straightforward, it also helps avoid long lines on Election Day by decreasing the amount of time it takes the average voter to cast a ballot, and it reduces undervoting for more obscure offices.
Secretary of State Elections
● Arizona: As expected, Secretary of State Michele Reagan lost Tuesday's Republican primary by a two-to-one landslide against businessman Steve Gaynor. Reagan's defeat follows a rocky four years in office that had repeatedly drawn blistering news headlines and a scathing rebuke from GOP state Attorney General Mark Brnovich's office that labeled her incompetent and concluded she failed to comply with election law when she neglected to send out voter information pamphlets during the 2016 elections.
Gaynor, however, is no improvement, and he’ll face Democrat Katie Hobbs in a general election where voting rights are very much at stake. Indeed, Gaynor recently called for repealing the 1975 amendment to the Voting Rights Act that requires states like Arizona with large populations of voters with limited English proficiency to print ballots and election materials in their native language, arguing that that ballots shouldn't be in Spanish. Unlike Gaynor's support for voter suppression, Hobbs favors policies to make it easier to vote, like automatic voter registration.