Leading Off
● Congress: As promised, now that they're back in the majority, House Democrats unveiled a massive package of voting rights reforms on Friday that they've dubbed the "For the People Act" and given the symbolically important designation of "H.R. 1." Chief among these efforts to preserve and strength American democracy are provisions to secure the right to vote, reform campaign finance laws, and change the way the election system itself works.
Campaign Action
There is, however, virtually no chance that Senate Republicans will bring this bill up for a vote, but even if they did and it somehow passed, Donald Trump would be almost certain to veto it. Nevertheless, this bill sends a strong signal about the Democratic Party's priorities, and if Democrats regain the Senate and defeat Trump in 2020, they could pass these measures into law if they eliminate the legislative filibuster to overcome GOP obstruction.
Below, we'll take a look at the individual components of this bill, which have also been cataloged in detail by HuffPost's Paul Blumenthal. Using Congress' broad authority to regulate federal elections under both the Constitution's Elections Clause and the 15th Amendment's protections for voters of color in elections at all levels, this legislation would make voting easier, more accessible, and more secure, and it would further ensure that voters have the ability to ensure their votes are counted equally.
One of the most far-reaching aspects of the bill is its approach to tearing down many of the barriers imposed by voter registration, which itself originated in the mid-to-late 1800s as a way to suppress predominantly working-class voters and immigrants. This new legislation would establish nationwide automatic voter registration whereby eligible voters who interact with numerous state agencies—beyond just the DMV—are registered to vote unless they affirmatively opt out. It would also create options for same-day registration and online registration, and colleges and universities would also be designated as registration agencies.
Furthermore, the bill's registration aspects would strengthen the 1993 National Voter Registration Act, which has been under siege by the conservative majority on the Supreme Court. The bill would overturn a 2018 Supreme Court ruling that let states effectively purge voters for exercising their right not to vote under the pretext that they haven't responded to an inconspicuous notifications by mail—even those who haven't moved and are still eligible. In sum, these changes would shift much of the burden on to governments, rather than voters, to maintain valid voter registrations, something that is the norm in many other democracies.
Democrats are also proposing ways to make it easier to cast a ballot itself by making Election Day a holiday for federal workers. But because a holiday can actually make voting less convenient for some, it also mandates in-person early voting for at least two weeks, with locations that must be accessible to public transportation. It would also eliminate the cost of postage for absentee ballots, although it's unclear if it would remove the requirement that absentee voters provide an excuse for needing such a ballot, which some states have. Voters who cast a ballot in the wrong precinct but within their home county would also be guaranteed to have their vote counted.
The bill also takes a hammer to one of the most enduring vestiges of the Jim Crow era: felony disenfranchisement. The proposal would automatically restore voting rights to those who are no longer incarcerated, meaning millions of citizens would regain their rights in states that disenfranchise people on parole, probation, or even post-sentence. However, it would still let states disenfranchise inmates, which all but Maine and Vermont currently do.
The proposal also bolsters election security by mandating that all states use paper ballots even if they opt to use the aid of electronic equipment, such as having voters fill out ballots and feed them into a scanner. Requiring a paper trail makes voting systems safer from hacking threats and enables the routine auditing of elections to ensure accuracy and bolster public trust in the integrity of the system.
The bill doesn't just affect the right to vote: It also sets out to level the playing field of whose vote actually matters. The most important of this set of provisions attempts to ban congressional gerrymandering by requiring that every state establish some form of nonpartisan redistricting commission. However, it's unclear just what exactly this mandate would entail and whether these commissions would be truly independent from self-interested legislators or merely require bipartisan approval for the drawing of new House districts.
Along the same lines, the bill would create a national public financing system for House elections in which candidates would receive $6 in matching public funds for every $1 they raise in private funds up to $200 from any one donor. It will also create a similar system for presidential elections; Democrats say they will propose a separate bill covering Senate campaign financing.
The bill would also attempt to mitigate the malign impact of the Supreme Court's Citizens United ruling by requiring the disclosure of donors to all groups that spend on election campaigns. It would further beef up the Federal Election Commission's ability to enforce campaign finance regulation.
Finally, there's one key measure that the bill does not include: a restoration of the Voting Rights Act. Democrats say they plan introduce another bill to revive the VRA's "preclearance" regime that required jurisdictions with a history of discriminatory voting laws to obtain federal approval for any changes to voting laws or procedures. The Supreme Court had gutted that crucial part of the VRA in 2013 by striking down the formula determining which jurisdictions were covered by preclearance. This future bill will impose a new formula, buttressed by a comprehensive "finding of facts" to ensure it survives judicial review.
Elections
● Maine: A full seven weeks after Election Day, departing Republican Rep. Bruce Poliquin finally dropped all legal challenges and acknowledged his loss to Democrat Jared Golden in Maine's 2nd District. Poliquin had waged a legal battle contending that Maine's new instant-runoff voting law, also known as ranked-choice voting, violated the Constitution after Poliquin earned a slim plurality among first-preference votes only to see Golden prevail in the final round by a 50.6-49.4 margin once votes were assigned to subsequent preferences as minor candidates were eliminated.
However, Poliquin's lawsuit was frivolous, and both the district court and an appellate court emphatically rejected his legal arguments since nothing in the Constitutional provisions he cited came close to barring the use of instant-runoff voting. Indeed, several states have used for overseas and military voters for years to comply with federal law regarding absentee ballots.
Nevertheless, both Poliquin and Paul LePage, whose term as governor ended Tuesday, have continued to undermine democracy by refusing to recognize the legitimacy of Golden's victory. Poliquin, for one, still maintains that instant-runoff voting is unconstitutional despite the courts saying otherwise. LePage, meanwhile, had the temerity to scrawl "stolen election" on the form that officially certified the election results.
● North Carolina: Republican Mark Harris wasn't sworn into the 116th Congress on Thursday due to the ongoing concerns about election fraud allegedly committed on his behalf, but that isn't stopping him from filing a lawsuit demanding a state court order North Carolina’s Board of Elections to certify him as the winner of the race in the 9th Congressional District. The House majority itself also retains the power to refuse to seat members who were not duly elected, and Democratic Majority Leader Steny Hoyer had already announced the new Democratic House majority would refuse to seat him.
Despite considerable evidence that Harris’ own campaign operative, McCrae Dowless, engaged in absentee ballot fraud that may have swung the election to the GOP, Harris told the court—apparently with a straight face—that there was "no reason to doubt the legitimacy of the outcome" that currently has him nominally winning by 905 votes. However, Harris' request is likely to receive a hostile reception, seeing as the board is well within its authority not to certify the results while continuing its investigation into the alleged fraud.
While North Carolina Republicans had signaled they were resigned to a special election both in public statements and by overriding Democratic Gov. Roy Cooper's veto to pass a law to require a new primary in such an event, they quickly reversed their public posturing last month. That includes state GOP executive director Dallas Woodhouse, who careened from demanding the board to certify the results in the 9th District, to saying he'd accept a special election if fraud were proved, to finally declaring Harris "the duly elected congressman-elect" and once again calling for results to be certified. However, the GOP's demands are sure to be ignored by the new Democratic majority in the House.
What happens next is unclear, since the House's refusal to seat Harris won't automatically trigger a new election; it would have to specifically vote to do so. The House could instead hold its own investigation and leave the seat vacant until its resolution, at which point it could then order a new election. It's not clear whether House Democrats will pursue this route, though, since they may prefer to let North Carolina officials handle the matter and, if their own investigations warrant it, declare a new election themselves.
But complicating matters, the composition of the state board itself is still in flux amid the GOP's ongoing battles with Democratic Gov. Roy Cooper, whom they've sought to prevent from appointing a Democratic majority to the board. Until late December, the previous iteration of state board was evenly split between the parties and had an unaffiliated tiebreaker, but because the GOP's repeated efforts to deny Cooper a Democratic majority were struck down in court each time, that board was dissolved shortly before the end of 2018.
The board was supposed to revert back to the system the state had used prior to 2016, with three members from the governor's party and two from the opposition, until a permanent board with a similar composition comes into being on Jan. 31 following the GOP's recent veto override. However, Republicans have refused to nominate anyone for their two seats on the board, denying Democrats the possibility of the four votes needed to order a new election.
Cooper therefore announced on Wednesday that he wouldn't appoint anyone at all to the board while Republicans stonewall. And since it will lack any members, the board itself was forced to postpone its Jan. 11 hearing on the matter, even though Harris is finally slated to face questioning from state investigators on Thursday as investigators seek to ascertain just how involved Harris was with the fraud scheme himself. Consequently, the House might step into the breach with its own investigation, but it could conceivably wait until the permanent board is in place, though the longer matters get delayed, the longer residents of the 9th District will go without representation in Congress.
Felony Disenfranchisement
● New Mexico: Democratic state Rep. Gail Chasey has announced she will file a bill to entirely eliminate felony disenfranchisement in New Mexico, which currently bars those convicted of felonies from voting until they have completed all terms of their sentence, including parole and probation. If this bill becomes law, New Mexico would become just the third state after Maine and Vermont to end this racially discriminatory policy—and the first state to do so that is home to a large number of people of color. (New Mexico in fact has the third-smallest non-Hispanic white population of any state.)
It's unclear, though, whether this reform has significant support now that Democrats have regained control over state government for the first time in eight years. However, New Mexico's policy of disenfranchising those on parole and probation is much more restrictive than most states with Democratic governments. Even a more modest reform that would restore voting rights to those who are no longer incarcerated would still mean roughly 70 percent of those currently disenfranchised would regain the right to vote, according to estimates by the Sentencing Project.
Redistricting
● Maryland, North Carolina: On Friday, the Supreme Court agreed to hear two major cases concerning partisan gerrymandering in March, accepting appeals of 2018 rulings that struck down North Carolina's entire congressional map for GOP gerrymandering and deemed Maryland's 6th Congressional District unconstitutional as a result of Democratic gerrymandering. Unfortunately, the court's decision to hear these cases now—after it failed to curtail gerrymandering last year before Justice Brett Kavanaugh replaced former swing Justice Anthony Kennedy—means it's highly likely to result in a landmark setback in the fight for fairer maps.
With Kennedy as the key vote in major cases last year, the court refused to resolve these same lawsuits, sending them back to the lower courts. These district courts affirmed their findings that both maps were unconstitutional, in part because officials in both Maryland and North Carolina actually admitted they'd engaged in partisan gerrymandering. However, Kennedy's departure from the bench means the five ultra-partisan Republican justices are unlikely to curtail gerrymandering.
Even a best-case scenario would probably only leave reformers with the ability to challenge the most egregious gerrymanders where partisan intent is as openly on display as it was in these cases. Such an outcome would be of limited value, though, as legislators would inevitably adapt to craft stealthier gerrymanders. Consequently, the best ways forward for fighting gerrymandering are breaking single-party grips on state governments, using ballot initiatives, establishing progressive state supreme courts that can use state constitutional protections to ban gerrymandering, and passing national reforms at the congressional level like House Democrats are proposing.
Meanwhile, in a victory against North Carolina Republicans efforts to fight a separate lawsuit over their state legislative gerrymanders, a federal court has rejected a GOP ploy to remove the lawsuit from state court and have it adjudicated in federal court. This move was expected, since the plaintiffs are making their case solely under the state constitution's language guaranteeing free and equal elections.
However, the GOP filed another motion in federal court on Thursday claiming they were entitled to an automatic 30-day delay upon the federal judiciary's decision to send the case back to state court, which the plaintiffs called out as a "transparent effort to pile delay upon delay" to prevent any ruling from happening in time to require new districts for 2020. Given the hostility of the federal high court toward curtailing gerrymandering, Republicans are rightly more worried that the Democratic-majority on North Carolina's Supreme Court won't have such hesitation, and its ruling would likely be insulated from federal review.
Statehood
● Washington, D.C.: Washington, D.C.'s delegate to Congress, Eleanor Holmes Norton, introduced a bill to finally make her city of 700,000 a state with the full democratic rights that all other citizens in the 50 states enjoy. If modeled on the D.C.'s 2016 non-binding voter referendum that overwhelmingly approved of statehood, this proposal would shrink the federal seat of government down to a handful of key buildings, leaving the vast majority of the city to be admitted as a new state. (To deal with the rump district's three electoral votes, Congress could assign them to the national popular vote winner.)
The new Democratic House majority is by almost any metric the party's most urban and ideologically cohesive caucus ever, meaning the House stands a strong chance of passing a D.C. statehood bill for the first time in history, especially since House Speaker Nancy Pelosi endorsed the measure on Friday. However, the Republican-controlled Senate would almost certainly block the bill if it even bothered to bring it up for a vote, but passage by the House would send a strong signal about Democrats' commitment to equality and voting rights if they regain the Senate majority and the presidency in 2020.
Creating a new state out of territory that isn't part of an existing state is, in fact, very straightforward: Congress simply passes a bill that the president can then sign (or veto). That means a future Democratic Senate would likely also have to contend with eliminating the filibuster, but doing so in order to make D.C. a state is the worthiest possible reason. Such a move would be critical step for ending an injustice that has deprived this disproportionately black city of equal rights while contributing to the Senate's lopsided overrepresentation of rural white voters, which has given Republicans a huge—and undemocratic—advantage in the upper chamber.
Voter Suppression
● Michigan: Taking advantage of the GOP's gerrymandered lame-duck majorities to enact a final power grab, former Republican Gov. Rick Snyder signed two pernicious bills into law that undermine democracy and voting rights just before he was succeeded by Democratic Gov. Gretchen Whitmer at the beginning of this month. The measures Snyder approved aim to both gut a voter-approved same-day voter registration law and make similar ballot measures much more difficult to get on the ballot in the future.
The first of the GOP's two laws undermines same-day voter registration by imposing a registration cutoff two weeks before Election Day unless voters physically visit their county or township clerk's office instead of showing up at their polling place. This comes despite the fact that Michigan voters overwhelmingly backed a constitutional amendment in November that guarantees same-day registration, among other pro-voting provisions. Proponents argue that this new law flies in the face of the measure's intent, and a lawsuit appears likely.
The second bill, meanwhile, tries to eviscerate the initiative process itself after reformers succeeded in passing both this voting rights amendment and another that created an independent redistricting commission to ban gerrymandering. The GOP-backed law would forbid any initiative from having more than 15 percent of its petition signers live in a single one of Michigan's 14 congressional districts.
That would make it harder to put progressive measures on the ballot because organizers would be forced to gather a greater share of signatures from more conservative rural areas, where voters are further apart and harder to reach than in densely populated and heavily Democratic regions like the Detroit metro area. This proposal will likely also face a lawsuit: A strategist for the ACLU, which was a main backer of the voting rights amendment recently implied that it violated the state constitution, as did state election law expert Sam Bagenstos.
One silver lining was that Snyder didn't give into the worst undemocratic impulses that lame-duck Gov. Scott Walker did when approving all of the Wisconsin GOP's lame-duck power grabs last month. Snyder actually vetoed a proposal that would have let the GOP-run legislature usurp powers from new Democratic state Attorney General Dana Nessel. That bill would have let the legislature involve itself in lawsuits even when the governor and attorney general decline to defend them, guaranteeing the GOP the ability to intervene or appeal at taxpayer expense even when Democrats refused to defend their power grabs. Snyder also vetoed a campaign finance bill to block disclosure of donor information.
● North Carolina: Shortly before the holidays, the NAACP filed a federal lawsuit arguing that the North Carolina GOP's new voter ID law illegally discriminates against black voters in violation of federal law. Other plaintiffs had recently filed a separate suit in state court contending that the law also infringes on voting rights protections found in the state constitution. That state-level lawsuit may stand a better chance of success given the conservative-dominated U.S. Supreme Court's hostility to voting rights and the fact that North Carolina's Supreme Court has a Democratic majority.
● Programming Note: Voting Rights Roundup author Stephen Wolf will be moderating a panel on redistricting reform at the USC Schwarzenegger Institute next Thursday, featuring organizers of 2018's successful state reform ballot measures and more. The conference will be a livestreamed for viewing online, and we'll share the link on Twitter at @PoliticsWolf and @DKElections once it becomes available.
