Leading Off
● New York: On Thursday, New York transformed itself from one of the worst states for voting access to to one of the best when Gov. Andrew Cuomo signed a series of bills that the newly Democratic legislature passed last week.
Campaign Action
These laws will create an early-voting period of 10 days before Election Day, including both weekends before Election Day; consolidate the state's separate state and congressional primaries to save money and increase turnout; automatically update voters' registration when they move within the state; let 16- and 17-year-olds "pre-register" so they're automatically on the rolls when they turn 18; and close a loophole that allowed limited liability corporations to give unlimited donations to candidates.
Democrats also passed two amendments to the state constitution. One would allow voters to register on the same day they cast a ballot, including Election Day itself; the other would remove the requirement that voters provide an excuse to be able to cast an absentee mail ballot. These changes, however, must still pass the legislature again after the 2020 elections, then go before voters for approval in a referendum.
Before these changes became law, New York was one of just 11 states that didn't allow early voting or excuse-free absentee voting, which had made it one of the most difficult states to cast a ballot in and consistently led to well below-average turnout. However, following the swift passage of these latest laws—and especially if voters approve the proposed constitutional amendments—New York will become one of the leading states for ease of voting access.
But the fight to improve New York's voting laws is not finished. Democratic state Sen. Mike Gianaris has introduced a bill to automatically register eligible voters who interact with a wide variety of state agencies, including those who register for classes at a New York state or city university and those who regain their voting rights upon being discharged from parole.
Democrats are still working on the issue, but Gianaris' proposal may be the strongest version of the reform. Casting a wide net is especially critical in New York because many voters don't drive and never use the DMV, the agency that most automatic registration programs focus on. The bill would also have state agencies verify that voters are eligible before giving them the chance to opt out at a later point, which could avoid errors and possibly lead to greater participation than a system where a voter gets to opt out at the time they interact with the state.
Redistricting
● Michigan: After breaking 16 years of the GOP's hold on the secretary of state's office in 2018, new Democratic incumbent Jocelyn Benson has reached a settlement with plaintiffs challenging the state's Republican-drawn congressional and legislative gerrymanders in federal court. Benson took over from her Republican predecessor as the defendant for the state, but the district court handling the case previously allowed GOP legislative leaders to intervene to defend the maps, and they have vowed to fight back in court to stop Benson from settling.
If the court approves the settlement, it would see the plaintiffs drop their challenge to many districts, including all of those on the congressional and state Senate level. In exchange, the state would agree that 11 of the most egregiously gerrymandered districts in the 110-member state House seats are unconstitutional and would have to be redrawn, which would also necessitate changing many adjacent seats.
If the maps end up being redone for 2020, the legislature, where Republicans maintain narrow majorities thanks to the very gerrymanders challenged in this suit, would get a first shot at passing a map. However, now that Democratic Gov. Gretchen Whitmer is in office and would almost certainly veto a replacement gerrymander, the court would be forced to draw replacement districts itself if legislative Republicans failed to compromise.
It's unclear whether Republicans will be able to convince the court to reject Benson's settlement agreement and continue on to trial, which is scheduled for Feb. 5. Republicans are also now asking the Supreme Court to stay the case pending the resolution of two related gerrymandering cases out of Maryland and North Carolina gerrymandering that the high court is expected to rule on this year.
Such a delay would increase the risk that the Supreme Court eventually blocks a favorable lower court outcome for the plaintiff, either on the merits or because the justices might claim that implementing a new map too close to next year's elections would be disruptive. That would let the GOP run out the clock, because a new round of redistricting must occur after the 2020 census.
● North Carolina: In a huge surprise, state Supreme Court Chief Justice Mark Martin announced on Friday he would resign in February to become a dean at Regent University Law School in Virginia. One of just two remaining Republicans on the bench, Martin's departure means Democratic Gov. Roy Cooper will get to appoint a Democratic replacement who will serve until facing the voters in 2020. This development extends the Democratic majority on the high court to 6-to-1, making it even likelier the court will strike down the GOP's legislative gerrymanders in an ongoing lawsuit that could lead to fairer maps for 2020.
● Virginia: On Tuesday, the federal court that last year struck down 11 Republican-drawn state House districts in Virginia for unconstitutionally diminishing the power of black voters ordered the adoption of a replacement map to remedy the GOP’s now-invalid gerrymander. The court’s map is similar to the Democratic plaintiffs' proposals and makes changes to more than two dozen of the chamber’s 100 districts, since many of those adjacent to the illegal districts need to be redrawn as well.
As a result, this map would give black voters greater clout in several districts, consequently making several Republican-held seats considerably bluer ahead of this November's elections. As shown in these maps of the new districts, Hillary Clinton won 56 districts to just 44 for Donald Trump, a big jump from Clinton’s 51-49 advantage under the old lines. Furthermore, seven of the 51 Republicans in the House would now sit in seats that backed Clinton while none of the 49 Democrats would hold Trump seats, putting Democrats in a strong position to gain a majority in November.
The court has given the parties to the case until Feb. 1 to file any objections to the remedial districts, but there's a strong likelihood that this map will be used in this year's elections. The Supreme Court recently declined to stay the lower court's proceedings ahead of hearing oral arguments on March 18 in the GOP's appeal, and even Trump's Justice Department filed a brief with the high court arguing state House Republicans lack standing to bring their appeal in the first place. Consequently, the Virginia GOP's odds of success appear slim.
● Wisconsin: A federal district court has postponed a second trial over the Wisconsin GOP's gerrymander of the state Assembly until at least July as it awaits the Supreme Court's resolution of two other ongoing partisan gerrymandering lawsuits regarding maps in Maryland and North Carolina.
Voter Registration and Voting Access
● Connecticut: After expanding what had been tenuous legislative majorities in 2018's elections, Democrats have announced they'll once again push for a constitutional amendment to finally bring early voting and excuse-free absentee voting to Connecticut, where the state constitution currently prohibits both voting options. Last year, the state House passed a similar measure last year only to see it die in the Senate, where Democrats lacked a firm majority before this year.
This time, Democratic leaders in both chambers have given their support to an amendment, but the path to it becoming law is a lengthy one. Lawmakers could put a proposed amendment on the 2020 ballot with a three-fourths supermajority vote. That's unlikely, though, because Republicans are a good bet to oppose the proposal just as they have before. There's another route, though: Democrats can pass the same amendment both before and after the 2020 election, which would allow it to go before voters for their approval in a 2022 referendum.
● Delaware: Democrats in Delaware have signaled they will again try to pass bills allowing same-day registration and in-person early voting, with Democratic Gov. John Carney endorsing both proposals this month. Democrats passed both measures in the state House but not the state Senate in 2018, but they may stand better odds of succeeding in both chambers this time after expanding their majorities last November.
Democrats have also introduced a new proposal to consolidate the September primary for state races with the presidential primary in April to save money and boost turnout downballot. Republicans have claimed that early voting would require an amendment to the state constitution, which would in turn require passage with a two-thirds supermajority that Democrats lack. However, Democrats dispute that their bill would violate the state constitution.
● New Hampshire: Fresh off retaking the legislature in 2018, New Hampshire Democrats have introduced two state constitutional amendments to expand voting rights: one to remove the excuse requirement for absentee ballots and another to let 17-year-olds vote in primaries if they turn 18 by the general election. Notably, New Hampshire currently has no early voting or excuse-free absentee voting.
While these amendments wouldn't need approval from Republican Gov. Chris Sununu, who's backed multiple GOP-led voting restrictions, Democrats would still need to pass them with three-fifths supermajorities and win the support of two-thirds of voters in a referendum. Democrats hold just shy of the required three-fifths in each chamber, and it's unclear if they'll be able to win over the handful of Republicans they'd need.
Democrats have also introduced legislation to roll back the voter suppression measures Republicans had passed after the 2016 elections that imposed stricter voter residency requirements. However, since those laws have the strong backing of Sununu and his party, the GOP will almost certainly block their repeal.
Voter Suppression
● Arizona: After suffering close losses in several key statewide races last year, Arizona Republicans are advancing a pair of new voting restrictions, which a state Senate committee passed along party lines on Thursday.
The first measure bans absentee mail voters from turning in their ballots in person, something that roughly 228,000 voters did in 2018—this in a state more where the option to permanently receive mail ballots has led to most voters casting a ballot this way in recent years. While voters who receive mail ballots could still disregard them and cast a ballot in person, they would have to wait in line just like everyone else instead of simply dropping off their ballots. That would exacerbate lines at polling places and deter voters from voting.
The second bill would extend existing voter ID requirement to those voting early in-person instead of just those who vote in-person on Election Day. Currently, early voters only have to sign their ballot envelope, just like absentee-by-mail voters.
Republicans can only afford a single defection to pass these bills in the full Senate and can't lose even a single vote in the House, where they have just a one-seat majority following Democratic gains in 2018. It therefore wouldn't take much opposition within the party to stop the measures from becoming law. However, if votes on these bills continue to fall along party lines, their odds of ultimately passing will remain strong.
A third bill also passed out of the same Senate committee, but it's actually a pro-voting measure and did so with unanimous support. This law mandates a period of five business days after each election for counties to contact voters whose mail ballot signatures appear invalid, allowing the voter to "cure" any problems and ensure their ballots count.
● Kansas: Now that infamous voter suppression zealot Kris Kobach is no longer secretary of state, Kansas Republicans are considering stripping the secretary of state's office of the authority to prosecute voter fraud cases, a power that Kobach had convinced the legislature to grant him, making Kansas the only state to do. Both Attorney General Derek Schmidt and new Secretary of State Scott Schwab support the proposal.
● Wisconsin: Last week, federal district court Judge James Peterson blocked early voting cuts that Wisconsin Republicans rammed through in a 2018 lame-duck power grab, holding that it violated his 2016 ruling that had struck down the GOP's previous attempt to restrict early voting. Republicans are still in the process of appealing that prior decision to the 7th Circuit Court of Appeals, though they have yet to say whether they will appeal Peterson's latest ruling.
elections
● North Carolina: On Tuesday, a judge denied Republican Mark Harris’ request to order the North Carolina Board of Elections to certify him as the winner in last year's disputed election in the 9th Congressional District. A Harris attorney has said he might appeal, but it's unlikely he'll fare any better with the higher state courts. The board, meanwhile, was dissolved at the end of 2018, and a new one isn’t scheduled to come into existence until Jan. 31. However, the board’s staff is still investigating a Harris campaign operative's alleged election fraud in the interim.
2020 Census
● Census: In a victory for plaintiffs earlier this month, a federal district court judge blocked the Trump administration from proceeding with its plan to add a citizenship question to the 2020 census. Such a question would risk a serious undercount, weaponizing the census to reduce the political power of immigrant communities and Democrats. In response to the ruling, the Department of Justice petitioned the Supreme Court on Friday to review the decision, bypassing an intermediate appeals court. A June deadline to print millions of census forms effectively limits the amount of time available for any appeals.
The lower court had determined that Commerce Secretary Wilbur Ross' decision to add the citizenship question violated the Administrative Procedure Act by ignoring his duty to use the government's existing data on citizenship, since the Census Bureau's voluntary American Community Survey already asks about the topic. The court also held that Ross had illegally "announced his decision in a manner that concealed its true basis," since Ross had lied to Congress when he said the Justice Department had asked him to draft a the citizenship question in order to enforce the Voting Rights Act. In fact, it emerged, it was Ross who approached the department first.
Importantly, this decision sidestepped the issue of whether the Republican defendants could prevent Ross from having to be deposed under oath because it relied on other evidence. The Supreme Court had already agreed to resolve in a February hearing an issue from one of the other lawsuits over the census regarding whether Ross could be deposed, but they removed it from their calendar following this lower court ruling. The other case regarding whether Ross could be deposed now might get dismissed as moot.
Ballot Measures
● Michigan: Earlier this week, Michigan Secretary of State Jocelyn Benson asked Attorney General Dana Nessel, a fellow Democrat, for an advisory opinion on the constitutionality of the GOP's 2018 lame-duck law that prohibits any ballot initiative campaign from having more than 15 percent of its petition signers live in any one of Michigan's 14 congressional districts. It's not clear how Benson might proceed if Nessel were to ultimately conclude the law violates the constitution, and any such opinion would not be legally binding. However, should the law wind up in litigation, the courts might give added weight to the views of the state's top law enforcement official.
Felony Disenfranchisement
● Iowa: Republican Gov. Kim Reynolds has introduced a constitutional amendment that would automatically restore the voting rights of Iowans who have completed their sentences (including parole and probation) for felony convictions. Critically, the amendment would not require the repayment of court fines or restitution fees to regain voting rights, a burden that functions as a poll tax in other states. Currently, Iowa is the only state, along with Kentucky, that still disenfranchises everyone with any felony conviction for life unless the governor personally restores their voting rights, leaving tens of thousands without voting rights.
A constitutional amendment would have to pass the legislature both before and after the 2020 elections before it could go before the voters in a 2022 referendum, and it's unclear if Republican lawmakers have the appetite for this reform. However, Reynolds already has the authority to restore voting rights via executive action, though she's only used her powers on behalf of 88 people in the first year-and-a half she's been in office. Indeed, the automatic restoration upon completion of sentence had been state policy from 2005 until 2011, when former GOP Gov. Terry Branstad reversed his Democratic predecessor's executive order.
Correction: This story’s New York entry has been updated to remove a conflation of two different types of statistics on the number of voters who opted out of automatic voter registration systems in California and Oregon, which wrongly suggested a much higher opt-out rate in California.
