Leading Off
● Kentucky: Making good on a campaign promise, Democratic Gov. Andy Beshear signed an executive order in his first week on the job that will restore voting rights for roughly 140,000 citizens in Kentucky, around 4% of the state's total adult population.
Campaign Action
Before Beshear's order, Kentucky, along with Iowa, was one of just two states that impose a lifetime ban on voting by anyone convicted of a felony. In the Bluegrass State, however, the governor has the power to unilaterally restore the rights of those who have completed their sentences, and Beshear did just that for citizens convicted of nonviolent offenses.
Beshear's campaign promise to use his executive powers to restore voting rights came after his father, former Gov. Steve Beshear, tried to do the same thing as his own tenure drew to a close in 2015. The elder Beshear issued just such an executive order, only to see Republican Gov. Matt Bevin reverse it two weeks after being sworn into office four years ago.
Bevin's move left Kentucky with one of the worst rates of disenfranchisement in the country, banning one out of every 11 adults from voting. That figure includes roughly one in four black adults, the highest such rate of any state. Bevin was facing ongoing litigation over how rarely and arbitrarily he had restored individual voting rights during his lone term, but that lawsuit could soon become moot.
Beshear's new order still leaves most citizens convicted of violent felonies permanently disenfranchised, making it less far-reaching than a similar system of executive orders that Democratic governors in Virginia have deployed since 2016 to make rights restoration automatic upon completion of any felony sentence. However, Beshear's actions will restore the voting rights of half or more of those citizens who are currently deprived of their political voice and in so doing have struck a major blow against the lifetime ban that Bevin and Republicans had revived and refused to reform.
Felony Disenfranchisement
● Iowa: Iowa officials have simplified the application process for citizens who have completed their felony sentences to petition the governor to have their voting rights restored. The form citizens must submit now has most of the questions automatically filled in, while correction officers will be instructed to work with inmates being discharged to complete the remaining ones.
However, this change will still leave Iowa with the most restrictive felony disenfranchisement regime in the country after Kentucky's new Democratic governor, Andy Beshear, issued an executive order to end lifetime disenfranchisement for those convicted of nonviolent crimes (see our Leading Off item). Iowa is now the only state with a blanket lifetime ban for all felonies, and GOP Gov. Kim Reynolds has refused to follow Beshear's lead and use her own executive powers to automatically restore voting rights upon completion of sentences.
● New Jersey: Democrats have passed a bill out of Senate committee along party lines that would restore voting rights to those on parole or probation for a felony conviction, leaving only those who are currently incarcerated unable to vote. Democrats have already passed the legislation in the Assembly. On Monday, a vote on the bill will go before the full Senate, where its odds of passage appear good.
Voter Registration and Voting Access
● Virginia: After gaining full control of state government in last month's elections, Democrats have unveiled additional voting and election reform bills ahead of the upcoming legislative session set to begin in January.
One measure would significantly loosen the GOP's strict voter ID law by removing the requirement to present a photo ID and instead allow other forms of identification, like a bank statement or utility bill. A second bill would finally remove the excuse requirement to vote absentee by mail, and another proposal would also expand in-person absentee voting to two weeks before Election Day, up from the current one week.
A further bill would let 16- and 17-year-olds pre-register to vote so that they will be automatically added to the rolls once they reach voting age, which in Virginia is 18 for general elections and 17 in primaries for those who will turn 18 by the general.
Still one more bill would create a pilot program for same-day voter registration. Of all the policies under consideration, same-day registration may have the greatest potential to increase voter turnout. Research has shown that it can help make the electorate more demographically representative of the eligible voter population by making it easier to vote for young people in particular.
Other bills that have been filed include a constitutional amendment establishing that all citizens who are at least 18 years old shall have the right to vote. This amendment would repeal Virginia's felony disenfranchisement law, which bans voting for anyone currently incarcerated, on parole, or on probation for a felony conviction.
The status quo was even more restrictive before Democratic Govs. Terry McAuliffe and Ralph Northam issued executive orders automatically restoring voting rights to citizens who've finished their sentences. A future Republican governor could revive the lifetime voting ban if this amendment or a similar law isn't enacted.
It's unclear, though, whether Democrats have the votes to outright eliminate felony disenfranchisement. A constitutional amendment would also have to pass the legislature both before and after the 2021 elections before it could appear on the 2022 ballot as a referendum.
However, it it were to become law, Virginia would make history as only the third state behind Maine and Vermont to ensure prisoners can vote, the first state with a significant black population to do so, and the first former Jim Crow state to do so. That last distinction would be especially noteworthy because Virginia's felony voter ban was established as part of a package of racist laws designed to "eliminate the darkey as a political factor," as a leading proponent put it in 1902. Before McAuliffe issued his executive order in 2016, one in five black Virginians was banned from voting for life.
Finally, another constitutional amendment would allow governors to run for a second consecutive four-year term. Virginia is currently the only state in the country to limit governors to a single consecutive term, although they're currently eligible to run again for non-consecutive terms.
Elections
● Mississippi: Last month, Republican Tate Reeves defeated Democrat Jim Hood by a modest 52-47 margin to become the next governor of Mississippi, but thanks to a unique relic of Jim Crow that’s still very much alive today, Reeves could have lost the popular vote by double digits yet still won the election.
As we've previously detailed, the state's 1890 constitution, which was officially enacted "to secure to the State of Mississippi 'white supremacy,'" is still in effect today, and among its provisions is an “electoral college” for statewide elections that deliberately penalizes black voters and the Democrats they support.
The provision in question requires candidates for offices such as governor or attorney general to win not only a majority of the vote but also a majority of the state House’s 122 districts. If no candidate surpasses both thresholds, the members of the House choose the winner, and there’s nothing to stop them from picking the person who lost the popular vote.
Republicans have controlled the state legislature since 2011, and as soon as they took charge, they redrew their own districts to guarantee they’d never lose their grip on power. They did so by making sure a majority of districts would be heavily white, and therefore heavily Republican. As a result, they not only gerrymandered the state House, they gerrymandered every statewide election, too.
To find out just how big of a penalty this system imposes on Mississippi Democrats, who overwhelmingly rely on the support of black voters, we compiled the results of every contested statewide election in 2019 broken down by state House district. Even though Reeves won the popular vote by just 5 points, that victory translated into a crushing 74-48 win at the district level, meaning he won 61% of the state’s "electoral votes." But even that doesn’t tell the whole story.
We can also ask ourselves what it would have taken for Hood to have carried a majority of House districts. One way we can answer that question is by ranking every district from most Republican to most Democratic, ranging from Reeves' largest margin of victory to Hood's largest margin, and finding the district in the middle. Reeves won that median district 60-39, 15 points to the right of his 5-point statewide win.
Let’s give that number some context. Imagine instead that Hood had won the popular vote. If every district had swung in Hood’s favor by the same amount, Reeves could have lost the popular vote by up to 15 points yet still have become governor. Put another way, Hood would have had to win statewide by at least 15 points just to have a chance to grab a majority of districts in the House. For a Democrat in Mississippi, a margin like that is an impossible dream.
Knowing this, a group of black voters challenged this law in federal court earlier this year, and the case remains ongoing. The judge hearing the case declined to temporarily block the law shortly before Election Day, but he wrote 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.”
While this suit wouldn’t have affected the outcome of November’s election, it could impact future races. A century and a half after the end of the Civil War, Jim Crow still lives on in Mississippi, but a just ruling could finally end one of its worst electoral manifestations.
Ballot Access and Campaign Finance
● Florida: As expected, Florida Republicans have appealed a federal court ruling striking down a 70-year-old law that requires the governor's party be listed first on the ballot, which the court said gives the incumbent's party an unfair advantage in violation of the Constitution.
● New York: A state commission tasked with setting new campaign finance reforms has drawn the ire of good government advocates after approving donation limits that are still quite high and establishing a public financing system with severe restrictions, which won’t even take effect until after the 2022 elections.
The State Public Campaign Financing Commission, which was created after Democratic Gov. Andrew Cuomo and the Democratic-led state legislature were unable to agree to new reforms, has the power to set new campaign finance and ballot access laws unless the legislature overrides its recommendations.
The commission set the donation limit for individual donors giving to statewide candidates at $18,000—considerably lower than the current $70,000 cap but still much higher than federal donation limits of $2,800 per election. The limits for state Senate and Assembly were also lowered, to $10,000 and $6,000 respectively. However, the commission didn't reduce the limit for party committees, which can receive a hefty $117,300 from a single donor that they can then give to candidates.
As for public financing, the commission set up a system where donations up to $50 are matched at a 12:1 ratio, those between $50 to $150 are matched 9:1, and those from $150 and $250 are matched 8:1. While that means a $250 donation could qualify for an extra $2,300 in matching funds, the new system imposes a sharp limitation by only applying to donors who live within the district that a candidate is running for. That curtails the effectiveness of this new program, particularly for campaigns in less affluent districts.
The commission also enacted another change that could see the progressive Working Families Party lose its ballot line in a move that appears to be Cuomo's retaliation for the WFP backing a progressive primary challenger again him in 2018. New York is one of the few states that allows "fusion voting," where a candidate can receive the nomination of multiple parties and appear on multiple ballot lines. The WFP has often wielded its clout by awarding its line to—or withholding it from—Democrats depending on where they stand on key issues.
Under the previous system, parties only had to win 50,000 votes in the most recent gubernatorial election to be automatically awarded a spot on the ballot over the next four years. However, the new change would require parties to meet a threshold every two years, and that benchmark would also increase: to either 2% or 130,000 votes in the preceding presidential election or gubernatorial contest, the latter of which takes place in midterms.
Since the WFP, Green, Libertarian, and Independence parties all failed to reach that threshold in 2018, they could struggle to surpass it in the 2020 elections, after which the change will take effect. Failure to meet the threshold would require them to instead spend resources gathering petitions to qualify for each election. That would leave only Democrats, Republicans, and the GOP-leaning Conservative Party with guaranteed ballot access.
Legislators have so far appeared unlikely to agree to override any of these changes, meaning they're likely to be implemented, but litigation is possible.
Voter Suppression
● Detroit, MI: A conservative outfit headed by Christian Adams, a former member of Trump's bogus voter fraud commission and one of the country's leading voter suppression activists, has filed a federal lawsuit seeking to require Detroit, Michigan to remove thousands of voters from its rolls whom plaintiffs claim are dead, duplicate, or are no longer eligible to vote. Detroit is the most heavily black major city in America, and low turnout there played a key role in Donald Trump narrowly winning Michigan in 2016.
Adams has long tried to bully local governments into aggressively purging their voting rolls by launching frivolous lawsuits, with his intent being to kick eligible voters who tend to vote for Democrats off the rolls. Adams’ organization for years largely targeted rural counties with sizable black populations, and those underfunded localities often lacked the resources to fight expensive legal battles, preferring instead to settle and avoid the costs of a trial.
However, when Adams tried this scheme in Florida's far more populous Broward County, county officials fought back and prevailed at trial. Adams had argued the county failed to maintain accurate registration rolls because there were ostensibly more registered voters than eligible voters, but election experts testified he was misusing outdated census information and cherry-picked registration statistics that exaggerated the results. The court agreed, calling Adams' supposed evidence "misleading," and Adams’ loss of credibility in that defeat could undermine his latest effort.
● Kansas: Kansas Republicans have agreed to settle a federal lawsuit whereby they will shut down the Interstate Crosscheck program for "the foreseeable future" after its security flaws were exposed.
Crosscheck was championed by former GOP Secretary of State Kris Kobach, ostensibly to find voters who are improperly registered in multiple states. But as multiple analyses have previously shown, Crosscheck's intentionally shoddy design led to a sky-high number of false positives that voter suppression zealots like Kobach blithely used as supposed evidence of widespread voter fraud so they could legitimize new voting restrictions.
Consequently, the system will remain inoperative and won't be used to wrongly purge eligible voters' registrations for the time being. Kansas officials have previously indicated they could use $2 million in federal funds to use an alternative database called the Electronic Registration Information Center, which is a bipartisan system for maintaining accurate voting rolls and is used in a number of states.
● Wisconsin: On Friday, a state court heard a conservative group's lawsuit seeking to purge up to 234,000 voter registrations. The plaintiffs claim these voters should be removed because they were flagged as potentially having moved away because they didn't respond to an October mailing within 30 days. However, the bipartisan state elections commission argued the state should wait until April 2021—after the 2020 elections—before removing anyone, citing confusion after a similar purge in 2017.
Wisconsin allows same-day voter registration, so wrongly purging eligible voters who haven't moved would not be quite the catastrophe it would be in many other states, but it would still cause major problems. Re-registering on Election Day requires a photo ID and proof of address, which unsuspecting voters who've been deleted from the rolls may not have with them when they show up at their polling place.
And even if voters do have all the necessary documents, re-registration consumes extra time and could lead to longer lines. These twin issues could ultimately deter some voters from casting a ballot, including those who aren't subject to the purge but are affected by longer waits. Unsurprisingly, analyses by the Milwaukee Journal Sentinel and the University of Wisconsin indicate that those slated to be removed are disproportionately Democratic.
Wisconsin's Supreme Court has a 5-2 majority of conservative hardliners, so if the case gets that far, there's a strong risk that the plaintiffs will prevail.
Ballot Measures
● Colorado: Conservative activists have placed an initiative on the 2020 ballot that would amend Colorado's constitution to ban noncitizens from voting in state or local elections. If the measure ultimately takes effect, it would replace constitutional language saying "[e]very citizen ... shall be qualified to vote" with language that says "[o]nly a citizen ... shall be qualified to vote." This would prevent cities from granting voting rights in local elections to authorized immigrants who lack citizenship.
Redistricting
● North Carolina: Last last month, Republicans agreed to a legal settlement that will block yet another one of their gerrymanders, this time regarding their redrawing of the district court map in Mecklenburg County.
The consent order will see Mecklenburg County, a Democratic stronghold home to Charlotte and 1.1 million people, revert to electing every judge countywide. Last year, the GOP's gerrymander had broken up that at-large election system and drawn a number of heavily white districts designed to elect Republican judges in place of black Democrats.
The plaintiffs who brought this lawsuit argued that this gerrymander violated the Voting Rights Act by discriminating against black voters. The consent order only applies to 2020 and makes no legal conclusion as to whether the 2018 redistricting was illegal, but the fact that Republicans capitulated for this election cycle suggests the plaintiffs have a strong argument on the ultimate merits of the case.
This development now means that, since Republicans won the state legislature in 2010, their gerrymanders have been invalidated once or more at literally every level of government: Congress, the legislature, county commission, city council, even school board—and now judicial districts.
Meanwhile, although state-level litigation recently concluded that resulted in North Carolina Republicans passing a new and modestly fairer congressional map, the GOP had still been pursuing a federal lawsuit seeking to revive their previous gerrymander for 2020. However, a district court judge rejected the GOP's argument, ruling that plaintiffs failed to demonstrate a likelihood of success on the merits. Republicans have declined to pursue this suit further, meaning the new map is final.
This story has been updated to note that the New York ballot access threshold changes will take effect in 2020, not 2022.
