Leading Off
● Arizona: Voting rights advocates have filed a ballot initiative that would significantly expand voting access if it makes the ballot and is approved by voters in 2020. The proposed measure would establish automatic voter registration through the state's Motor Vehicle Division, same-day voter registration, and in-person polling places on Native American tribal lands, all of which would make it easier to vote and could lead to higher turnout. It would also expand early voting and allow audits of election results.
Campaign Action
Additionally, the initiative would impose ethics and lobbying restrictions on politicians and lowers the maximum amount of money donors are able to give candidates for state and local races, cutting the limit from $6,000 for all candidates to $2,500 for statewide candidates and $1,000 for legislative and local candidates. It would also bolster Arizona's existing public financing program, providing for instance $1.8 million for primary elections for governor and $2.7 million for the general election.
Furthermore, on the campaign finance front, every registered voter would receive vouchers for between $50 to $150 that they could donate to their preferred candidates, which would be funded through higher corporate income taxes. This system is similar to the "democracy vouchers" program that voters in Seattle, Washington approved and have used in recent years, and is intended to make the donor pool more demographically reflective of the electorate.
This initiative is also reminiscent of two successful 2018 ballot measures, one in Michigan, where voters passed automatic and same-day voter registration in a landslide, and another in Missouri, where voters widely approved ethics and lobbying reforms tied to redistricting reform. Arizona was one of the first states where voters passed an independent redistricting commission at the ballot box back in 2000, and if this initiative becomes law, the Grand Canyon State would become a national leader in voting access and cleaner elections. Organizers need approximately 238,000 signatures by July 2 to make the November 2020 ballot.
Redistricting
● Michigan: Michigan voters interested in serving on their state's new independent redistricting commission for the post-2020 redistricting cycle may now submit applications via the secretary of state's website. The commission will consist of four Democrats, four Republicans, and five unaffiliated members. There are restrictions against serving for certain classes of individuals such as partisan officeholders, party officials, lobbyists, and their immediate relatives. Applications must be received by June 1.
● North Carolina: On Monday, a bipartisan panel of state court judges delivered a monumental victory against the worst gerrymander in modern history when it blocked North Carolina from using its Republican-drawn congressional map in the 2020 elections, clearing the way for a fairer replacement that could see Democrats pick up three or more seats.
The court granted the Democratic plaintiffs’ request for a preliminary injunction against the map before the case goes to trial on the merits, buttressed by the mountain of evidence of the map's discriminatory intent and effects.
That evidence against the map is nothing short of overwhelming: Republicans explicitly stated that their lines were a "political gerrymander" drawn to maintain the GOP's 10-3 advantage in the state's 13-member congressional delegation—and admitted they didn't go further only because they thought it was literally impossible to draw a map that would guarantee them 11 seats.
With the GOP's smoking gun confession in hand, the plaintiffs relied solely on state constitutional protections to invalidate the map, and it's now the second time this decade that North Carolina Republicans have seen their congressional map struck down. This latest defeat also comes right on the heels of another loss for Republicans: A September ruling saw this same court unanimously throw out the GOP's legislative gerrymanders, all but guaranteeing that Republicans will lose at trial if the congressional case goes that far.
Republicans didn’t appeal their loss in the legislative gerrymandering case, likely because they feared an even worse defeat before the state Supreme Court, which would set a binding precedent statewide. However, they may be less inclined to give up on their congressional map so easily.
The GOP's current strategy relies on arguing that it's too late to redraw the districts for 2020, with the candidate filing period for the March 3 primary beginning on Dec. 2. (In a separate lawsuit, the National Republican Redistricting Trust has asked a federal court to keep the illegal map in place for 2020.) Since a new map will be required after the next census in 2020 in any event, a long enough delay would run out the clock on this lawsuit. However, this gambit is likely to fail. Back in 2016, Republicans' congressional gerrymander was struck down and redrawn in February of that year, without adversely affecting the administration of North Carolina’s elections.
Republican legislators will likely get another chance to draw new maps, which would be subject to the court's approval. However, given the GOP’s lengthy history of violating the rights of voters, it’s possible the judges could step in to draw their own districts instead. Either way, after four elections with the most extreme congressional gerrymanders of the last several decades, North Carolina voters could finally enjoy a much fairer map next year.
Meanwhile, the same court panel also approved the new legislative maps that Republican legislators and some Democrats passed last month to replace the GOP's illegal gerrymanders, but this development is a setback for fair districts and a defeat for the plaintiffs, who had challenged a number of the GOP's "remedial" state House districts. The judges specifically noted that these maps passed with some Democratic support, highlighting the importance of why Democratic legislators should never vote for GOP gerrymanders just because their own seat may have been made safe for them.
As we explained in our amicus brief to the court, these districts are still highly problematic. We used three common measures of partisan bias to assess the new maps, which show they retain most of the GOP's unfair advantage compared to their illegal gerrymanders. The problem is even more starkly illustrated when comparing the new districts to the nonpartisan maps we proposed, which better comply with the court's criteria and existing state and federal law. (The court declined to consider amicus briefs from any third parties.)
Consequently, Democrats are well-positioned to gain some seats, but the new maps could preclude 2020 majorities barring a massive wave election. That could in turn perpetuate further stealth gerrymanders by Republicans next decade if they maintain their legislative majorities heading into post-2020 redistricting, since Democratic Gov. Roy Cooper lacks the power to veto their gerrymanders even if he wins re-election next year.
Late on Friday afternoon, the plaintiffs said they'd appeal the court's ruling adopting lawmakers' new state House map to the state Supreme Court; the high court has a 6-1 Democratic majority, but that's no guarantee they'll succeed. We'll have a more detailed analysis in the next Voting Rights Roundup.
● Oklahoma: On Monday, redistricting reformers filed a ballot initiative for 2020 that would create an independent redistricting commission to draw Oklahoma's congressional and legislative maps. Supporters, which include the League of Women Voters, will have 90 days to collect nearly 178,000 signatures needed to put these constitutional changes on next year's ballot if their petition is approved
The proposal would create a nine-member commission with three Democrats, three Republicans, and three independent members whose affiliations have not changed for at least the past four years. Commissioners and their immediate family members can't have held or run for partisan elected office within the past five years, nor can they have been a lobbyist, paid party official, or state legislative employee within that same time period.
The chief justice of the state Supreme Court would appoint a panel of retired appellate judges to review applications to serve on the commission, all three of whom would be randomly selected, and all three panelists must agree when selecting any applicants. These retired judges would select a pool of 20 applicants for each of the three party groupings for 60 in total and would be required to take demographic and geographic diversity into account. Two applicants in each pool would be randomly chosen for six total; those six commissioners would then pick the remaining three by two-thirds supermajority agreement.
For the criteria used for drawing districts, the amendment gives first priority to preserving "communities of interest," followed in descending order of priority by racial and ethnic fairness, partisan fairness, integrity of local government subdivisions, and compactness.
Consideration of incumbency would be barred. The amendment would also ban the practice of "prison gerrymandering" and instead require that prisoners be counted for redistricting purposes at the address where they last lived rather than at the location where they're incarcerated.
The commission would have to hold numerous hearings, and it would take a six-vote supermajority to approve any map, including at least one commissioner from each of the three party groupings. If commissioners fail to pass any maps, the state Supreme Court would be tasked with doing so and would be required to follow the same criteria.
Legislators would no longer play any role in the process, meaning if this initiative passes, it would prevent Republicans from controlling redistricting again after the 2020 census, as they did this decade.
Voter Registration and Voting Access
● Illinois: Democratic state legislators have passed a bill with a handful of Republicans in support that would guarantee that high school students who are of voting age get two hours to take off from school so that they may vote during early voting or on Election Day. With no Democrats voting against the bill, it's likely that Democratic Gov. J.B. Pritzker will sign it into law.
● Massachusetts: Massachusetts' Democratic-run state Senate has approved an amendment to a budget bill that would establish early voting for the September 2020 state and congressional primary. Massachusetts currently only offers early voting ahead of general elections but not primaries. Democrats hold veto-proof majorities in both legislative chambers, and senators unanimously passed the budget bill, meaning there's a good chance this provision becomes law.
● North Carolina: In late October, North Carolina's GOP-run state legislature passed a bill with almost unanimous support that includes several alterations to election law, and Democratic Gov. Roy Cooper is expected to sign it.
One of the main changes would reform absentee voting procedures in the wake of last year's election fraud scandal in the 9th Congressional District, where an operative for Republican Mark Harris' campaign illegally collected and altered absentee ballots in an attempt to steal the election.
The relevant changes would make it a crime to pay people to collect absentee ballot request forms and also strengthens penalties for tampering with another person's absentee ballot. (It's already a crime to gather absentee ballots themselves, something the Harris operative, McCrae Dowless, and his associates have now been indicted for.)
The bill includes several other provisions, including a pilot program for certain jurisdictions to prepay the postage cost on absentee ballots. This measure is intended to reduce the incentive for voters to hand their ballot to someone else to deliver, but this change would also make it more convenient to vote absentee in general.
The bill also permanently restores the last Saturday of early voting, which Republicans had previously cut. Democrats recently sued in state court over that change, as well as additional early voting restrictions Republicans passed in 2018.
While the restoration of Saturday early voting should render that specific challenge moot, Democrats are also contesting a measure that requires all early voting sites within each county to operate under the same uniform hours of 7 AM to 7 PM. That has strained local election officials' resources and led to fewer polling places being open during early voting in some jurisdictions. The new bill shifts the required hours to 8 AM to 7:30 PM when demand is higher, but with the total number of hours largely unchanged, that likely won't be enough for cash-strapped local governments to be able to offer more polling sites.
● Pennsylvania: On Wednesday, Democratic Gov. Tom Wolf signed a bill into law that will finally make it easier to cast a vote before Election Day—but may also make it harder to vote on Election Day.
As we've previously detailed, 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.
Starting in next year's elections, however, this new law will instead allow voters to cast an absentee mail ballot for any reason. It will 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 can vote absentee in-person at their county elections office, creating an option similar to traditional early voting.
Absentee voters will also have until 8 PM on Election Day to return their ballots to election officials. That replaces 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 have previously said the new legislation would likely "resolve the issues" of their case.)
Finally, the law 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 represents a compromise with Pennsylvania's GOP-run legislature, and as such includes several measures that would curtail voting access. For one, voters who cast an absentee ballot but later change their minds by Election Day will no longer be able to replace their absentee votes with newer ballots as they can in some states. (In a previous roundup, we stated incorrectly that this would ostensibly mean absentee counting would begin as soon as ballots are received, but counting will in fact wait until the polls close on Election Day.) In addition, voters who receive an absentee ballot but don't cast it can 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 to challenge this change. However, because the rest of the new law can't be "severed" from the straight-ticket repeal, if that provision is struck down, the entire law would be invalidated.
The law also includes $90 million to replace the Pennsylvania's remaining paperless voting machines with machines that produce a paper trail or with 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 law contains many provisions to improve voting access, it's unclear what the overall impact will 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.
Ballot Measures
● Alaska: A state court judge has ruled that organizers can begin gathering signatures for a ballot initiative that would enact instant-runoff voting, open primaries, and new campaign finance restrictions for state elections. Republican officials had previously tried to block the proposal, claiming it violated the state constitution's limitations on the number of subjects an initiative may address. They've vowed to appeal to the state Supreme Court, where Republican appointees hold a 4-1 majority.
● San Juan County, UT: On Tuesday, voters in small San Juan County, Utah will vote on a ballot initiative asking whether to form a committee to study whether to alter the county's form of government. If the measure passes, it could lead to a subsequent ballot measure next year that could expand the size of the County Commission, which critics say would amount to yet another scheme to keep whites in power in this predominantly Navajo county.
Last year, Navajo-backed candidates finally won their first-ever majority on the three-member commission after a federal court redrew the commission's districts to remedy racial gerrymandering that had illegally diminished Navajo voting power. However, white Republicans, who have resisted Navajo governance for years, are now backing this latest ballot initiative in an apparent effort to roll back these gains.
If voters do approve the initiative and subsequently vote for a 2020 ballot measure to change the structure of the three-member county commission, further litigation by Navajo voting advocates appears likely.
Felony Disenfranchisement
● Florida: The plaintiffs challenging Florida's new poll tax, which a federal court recently blocked the state from enforcing, have asked the court to apply its ruling to the entire class of citizens affected by the poll tax and not just the 17 individuals who've brought the case. The court's previous ruling enjoined the law, which requires citizens who've completed felony sentences to pay off all court-related fines and fees before they can regain their right to vote, while the case still proceeds on the merits.
● New York: On Wednesday, Democrats in New York's state Senate introduced a bill to completely abolish felony disenfranchisement and give even those who are incarcerated the right to vote. New York currently prohibits prisoners from voting, and many who are on parole are only permitted to vote because of executive action taken by Democratic Gov. Andrew Cuomo last year that remains uncodified and could be changed by a future governor.
Democrats hold large majorities in both legislative chambers after the 2018 elections, but it's unclear if there's sufficient support for making New York just the third state to end disenfranchisement after Maine and Vermont. However, if legislators pass this bill into law, New York would be the first state with a sizable population of people of color to abolish this racially discriminatory practice.
Voter Suppression
● Georgia: Republican Secretary of State Brad Raffensperger has announced that Georgia will purge roughly 313,000 registrations of voters who haven't cast ballots in recent elections, representing 4% of the state's total voters. The decision has alarmed voting rights advocates, who say the purge could ensnare eligible voters who have simply voted infrequently.
In an unusual move that may have been undertaken to dampen public outcry, Raffensperger published the list of registrants to be removed, giving voters a chance to verify whether or not their registration is set to be purged. Those on the list can get off of the "inactive" roster by voting in Tuesday's local elections or by updating their registration data with election officials, which can be done online.
● Michigan: The Democratic super PAC Priorities USA has filed a lawsuit in federal court challenging Michigan's procedures for rejecting absentee ballots when the voter's signature on their ballot allegedly doesn't match the one on file. Plaintiffs say the process is arbitrary and lacks a statewide standard to avoid disenfranchising valid votes. Michigan law doesn't require officials to notify voters that their ballots have been rejected or allow them to challenge any such rejections. Similar laws have been struck down in other states in recent years.
With Michigan voters passing a 2018 ballot initiative to remove the excuse requirement needed to vote absentee, casting ballots by mail will likely become even more popular in future elections. Consequently, this lawsuit's outcome could have an important effect on voter turnout.
● Texas: On Wednesday, state and national Democratic Party organizations filed a federal lawsuit seeking to block a new Republican-backed law that has effectively banned the deployment of temporary polling places during early voting in many localities. The law in question requires that all polling places be open for the entire early voting period, but because this puts additional burdens on county election officials' resources, many localities have opted not to operate so-called "mobile" polling places at all.
The lawsuit argues that this measure violates the 26th Amendment, which guarantees the right to vote to every citizen 18 or older, as well as the First and 14th Amendments. Plaintiffs say the law unconstitutionally burdens would-be student voters on college campuses, which were often the site of mobile polling places before this measure became law.
Election Security
● Election Security: In a new report, ProPublica's Jessica Huseman looked into the state of America's voting machine industry, and her investigation reveals a sclerotic marketplace that is resistant to change and security innovations.
The use of voting machines became widespread after the 2000 Florida election debacle led Congress to pass the Help America Vote Act, but many states are now relying on outdated equipment and face limited options for replacing them.
The voting machine market is dominated by just three companies: Election Systems & Software (ES&S), Dominion, and Hart InterCivic, with ES&S holding the largest market share. The three companies have repeatedly engaged in anti-competitive practices such as launching numerous lawsuits against competitors and even their customers to prevent them from switching to new vendors, along with lobbying efforts that include hiring former election officials.
Following Russia's interference in the 2016 elections, the vulnerable state of U.S. election security has become a much more salient topic and sparked a push for more secure options, such as paper ballots filled out by hand and "ballot-marking devices" that print a paper ballot voters can verify. But vendors like ES&S have drawn criticism from security advocates for printing out ballot receipts that rely solely on barcodes, which voters of course can't verify.
However, as Los Angeles County, California has shown, there is an alternative to the established voting machine vendors and their proprietary software. Officials there contracted with a tech firm to design modern voting machines capable of operating in many languages and accommodating disabled voters. These new machines will also operate on open-source software, which is typically more secure than the proprietary code that incumbent vendors use.
Furthermore, congressional Democrats have been pushing for legislation to allocate funding to states to require more secure paper-based voting methods, which would help cash-strapped localities upgrade their systems.
● Georgia: Georgia's conservative-dominated state Supreme Court unanimously rejected a challenge to the validity of 2018's election for lieutenant governor, which a group of plaintiffs had challenged on the grounds that 127,000 fewer votes were tallied than expected. That sum was slightly larger than the 123,172-vote margin by which Republican Geoff Duncan defeated Democrat Sarah Riggs Amico, but the justices ruled that they lacked evidence that the outcome was in doubt.
After the votes were tallied last year, election experts noticed that there were an unusually high number of undervotes in the lieutenant governor's race, but only among votes cast by electronic machine—a rate four times higher than among votes cast by absentee ballot.
Because these electronic machines left no paper trail, the results couldn't be audited to find out if votes simply weren't counted, or if the touchscreens had failed to display the contest altogether. While it appears unlikely that the missing votes would have altered the election outcome in the lieutenant governor's contest based on the results of other elections last year (Amico would have needed to win nearly all of the missing votes, a virtual impossibility), it raises further concerns about the integrity of Georgia's election system.
Earlier this year, a federal court ruled that Georgia couldn't continue to use its paperless voting machines, and Republicans approved the purchase of new voting machines with a paper trail for 2020. However, because these new machines will rely on a barcode instead of a paper ballot that humans can read, the plaintiffs in that case are still opposing these new voting systems and pushing for regular paper ballots.
Court Cases
● Arizona, Georgia, Texas: On Friday, a group of Democratic Party organizations filed federal lawsuits in Arizona, Georgia, and Texas seeking to strike down rules that require Republicans to be listed first on the ballot, which research has shown can unfairly favor top-listed candidates, particularly in lower-profile races further down the ballot. The plaintiffs argue that these laws violate the 14th Amendment by treating candidates of the two major parties differently.
● Mississippi: On Friday, a federal district court declined to grant a preliminary injunction blocking a provision of Missisippi's 1890 Jim Crow constitution that could prevent Democratic state Attorney General Jim Hood from becoming governor even if he wins more votes than Republican Lt. Gov. Tate Reeves on Tuesday. However, the judge hearing the case, Daniel Jordan, sent a strong signal that he would bar the law if it comes into play after the election.
The provision in question requires candidates for statewide office to win both a majority of the popular vote and a majority of state House districts; if no one does, the Republican-controlled House would pick the winner. Because Republicans aggressively gerrymandered those districts to disfavor Democrats, Hood has little chance of carrying a majority of House seats. That would allow the House to install Reeves as governor even if Hood wins the most votes.
Jordan explained that he would not enjoin the law in advance of Election Day because no one has yet been irreparably harmed by it. In addition, with the election just days away, he said there’s insufficient time for election officials to craft any sort of remedy on their own.
However, Jordan also concluded that the plaintiffs are "right" that requiring candidates to win a majority of state House districts violates the U.S. Constitution’s guarantee of "one person, one vote." Therefore, if Hood wins a majority of the vote but fails to win enough House districts, there’s a good chance that Jordan would step in to prevent Mississippi’s constitutional provision from being enforced. It’s not clear what the court would do, though, if Hood wins a plurality rather than a majority of the popular vote.
