Leading Off
● Congress: On Thursday, Democrats on the House Judiciary Committee passed the Voting Rights Advancement Act, a bill that would restore and expand the protections of the Voting Rights Act that the Supreme Court's Republican majority gutted in 2013.
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The new legislation would establish a new formula to determine which states and localities must "preclear" any proposed changes to election laws and procedures with the Justice Department. The previous preclearance regime, which was struck down in 2013, applied to states and localities—largely in the South—with a history of racial discrimination in their voting laws.
Under the new setup, any state where officials have committed at least 15 voting rights violations over a 25-year period would be required to obtain preclearance for 10 years. If the state itself, rather than localities within the state, is responsible for the violations, it would take only 10 violations to place it under preclearance. In addition, any particular locality could individually be subjected to preclearance if it commits at least three violations.
Based on this formula, the VRAA would put 11 states back under preclearance: Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. While most of these states are still in the South (and also under Republican control), the list also includes the two largest Democratic-leaning states in the country, California and New York.
A majority of House members, all of whom are Democrats, have already signed on to cosponsor the bill, meaning it will likely pass the House. Of course, with Republicans in control of the presidency and Senate, this bill won't become law, but Democrats could pass it if they win back the White House and Senate next year and eliminate the filibuster.
Redistricting
● Michigan: As expected following the Supreme Court's decision to foreclose all federal court challenges to partisan gerrymandering, the justices have overturned a lower court ruling from earlier this year that had struck down Michigan Republicans' congressional and state legislative gerrymanders for violating the Constitution. Consequently, the GOP's gerrymanders will remain in place for 2020.
● North Carolina: Republicans fighting a new lawsuit challenging their congressional map as an illegal partisan gerrymander recently tried to remove the case to the friendlier federal judiciary but saw their ploy swiftly rejected and sent back on Tuesday to the state court where the matter was original filed.
The move was a transparent effort to run out the clock, since Republicans offered no plausible reason why the case, which is being brought under the state constitution, should have been decided by federal judges. A swift injunction against the map is now possible, which would allow the court to implement new districts in time for the 2020 elections.
Meanwhile, Republican legislators held hearings on several pieces of legislation on Thursday that would ostensibly reform redistricting, but the bills (HB 140, HB 69, and HB 648) include provisions that raise serious doubts as to whether they would actually prevent another decade of GOP gerrymanders. Instead, they're likely efforts to put window dressing on measures that would enshrine an unfair Republican advantage in the state constitution.
One problematic provision would open the door to allowing redistricting based on the adult citizen population instead of the traditional total population, which the Trump administration and Republicans would prefer so that they can undermine Democratic representation and Latino voting power. The criteria for drawing districts also overly relies on compactness and bars the use of partisan data to ensure maps are fair, two factors that would likely perpetuate the GOP's unmerited advantage even without intentional gerrymandering.
Another provision of HB 140, which would amend the state constitution, would shift the drawing of maps to the Legislative Services Office, which is headed by a partisan Republican appointed by GOP legislative leaders. The LSO's chief could draw new gerrymanders without any public oversight, and a toothless bipartisan advisory commission would only hold hearings after the fact. From there, legislators would vote on the LSO's maps, but they could also still draw their own gerrymandered maps.
The amendment's harmful provisions don't stop there. The measure would also guarantee legislators control over redistricting local governments, something Republican legislators have repeatedly done this decade and lost numerous lawsuits over.
Furthermore, it adds to the state constitution a doctrine created by the state Supreme Court in a 2003 ruling called Stephenson v. Bartlett. North Carolina's constitution states, "No county shall be divided in the formation of a [legislative] district," which conflicts with federal requirements that all districts have roughly equal population.
The court's Republican majority at the time invented a complicated formula to reconcile these otherwise irreconcilable mandates. This formula places heavy restrictions on which counties may be combined with others when drawing legislative districts, even when those combinations violate the integrity of communities of interest.
While the GOP's legislative gerrymanders were struck down last month, the plaintiffs did not try to challenge the so-called "Stephenson" rule even though the state Supreme Court now has a 6-1 Democratic majority. Leaving the existing county combinations in place limits how the new maps could preserve communities of interest. Notably, communities of interest—a key criteria that most nonpartisan mapmakers seek to adhere to—aren't even protected in the new legislation.
Lastly, while the bills nominally prohibit redistricters from disfavoring a political party, they contain no enforcement mechanism aside from costly litigation that can take years to resolve. Furthermore, such claims could be more difficult to prove now that the GOP has learned from their mistakes this decade and will try to better hide their partisan intent. And of course, any such challenges could simply be rejected if Republicans regain their majority on the state Supreme Court.
Despite these major flaws, some of the bills have Democratic support, which Republicans would need in order to put a constitutional amendment on the 2020 primary ballot. However, until Republicans come to the table with a genuine bipartisan reform bill such as some of the others that Democrats have proposed, Democrats should oppose all of the GOP's bills.
● 2020 Census: After failing in his quest to add a question on citizenship status to the 2020 census, Donald Trump issued an executive order directing the Census Bureau to use existing administrative records to provide citizenship data so Republicans can weaponize it in redistricting, but that plan may be hitting a major snag. A new Associated Press report found that a majority of state motor vehicle departments have not agreed to share their data with the Census Bureau, including states run by both Democrats and Republicans.
The report finds that 13 states have outright balked at sharing their data, while 17 more are still deciding on a course of action. Another 17 haven't even received a request yet, and three didn't respond to the AP. Several of the states that have refused or haven't yet decided what to do have done so out of concern for privacy, with an official in heavily Republican Utah citing a state law that prohibits the DMV from sharing such data.
These developments are reminiscent of the unsuccessful attempt by Trump's bogus voter fraud commission to obtain voter registration records from all 50 states to bolster its witch hunt in the service of legitimizing new voting restrictions. That effort, made back in 2017, was met by near-universal refusal, with even Mississippi's Republican secretary of state telling Trump's commission to "go jump in the Gulf of Mexico."
It's unclear if this latest scheme to undermine fair elections will meet a similar fate or if the Census Bureau will be able to obtain citizenship data from other databases such as those the federal government operates itself. However, a lawsuit was previously filed last month seeking to block the Trump administration from compiling the information needed to match citizenship data with census records, and further litigation could arise as we approach the start of the 2021 redistricting cycle.
Voter Registration and Voting Access
● Pennsylvania: On Monday, Democratic Gov. Tom Wolf and lawmakers from both parties in Pennsylvania's legislature revealed a compromise election reform bill that could finally make it easier to cast a vote before Election Day but also make it harder to vote on Election Day.
Pennsylvania is one of fewer than a dozen states that still require an excuse to vote absentee and also offer no in-person early voting, meaning that nearly all voters must vote on Election Day.
This new bill would instead allow voters to cast an absentee mail ballot for any reason and would also let them permanently receive an absentee ballot by mail for all future elections, an option that has made mail voting the default mode of casting a ballot in states such as Arizona. Additionally, voters could vote absentee in-person at their county elections office, creating an option similar to traditional early voting.
Absentee voters would also have until 8 PM on Election Day to return their ballots to election officials. That would replace the current deadline of the prior Friday, which led to a much higher absentee rejection rate in Pennsylvania last year compared to most other states. That early deadline prompted a lawsuit in state court this summer, but the plaintiffs said the new bill would likely "resolve the issues" of their case.
Finally, in positive reforms, the bill shortens the voter registration deadline to 15 days before Election Day from the current 30-day deadline, which is the maximum allowed under federal law.
However, the bill also contains downsides for voting access. For one, voters who cast an absentee ballot but later change their mind by Election Day would no longer be able to replace their absentee votes with newer ballots. That's because the bill seeks to mitigate the burden created by larger numbers of absentee ballots by allowing officials to start counting them as soon as they receive them, rather than waiting until Election Day. In addition, voters who receive an absentee ballot but don't cast it could only vote a provisional ballot on Election Day.
Most problematic, though, is a measure Republicans have repeatedly pressed for: repealing straight-ticket voting, which allows voters to check a single box to vote for every candidate from the same party without having to go down the ballot and fill in every single one—potentially 20 or more races in some jurisdictions when judicial elections and local offices are on the ballot. Following the repeal of straight-ticket voting in other states such as North Carolina, voting lines increased and deterred some from voting, while those who did vote were more likely to skip downballot races.
What's more, these problems tend to disproportionately affect black voters, which is why a federal court had previously blocked Michigan Republicans from repealing their straight-ticket option. (Voters finally enshrined straight-ticket voting in the state constitution last year.) It's therefore possible that a similar lawsuit could be filed in either state or federal court if this provision takes effect in Pennsylvania.
The bill also includes $90 million to replace the state's remaining paperless voting machines with machines that produce a paper trail or paper ballots, which Wolf had mandated via executive order last year. Wolf had previously used an unusual executive action to try to allocate the funding after vetoing a funding bill earlier this year that would have given Republicans their straight-ticket repeal, but this provision's passage would remove any uncertainty as to whether the funds would be apportioned.
Although the bill contains many provisions to improve voting access, it's unclear what the overall impact would be with the repeal of straight-ticket included, particularly for black voters in cities such as Philadelphia and Pittsburgh who are disproportionately likely to use it. However, Democrats appear to be ready to accept the compromise.