Programming Note: The Voting Rights Roundup will be on hiatus for the holidays and will return the first week of January.
Leading Off
● Voter Suppression: In a damning audio recording obtained by the Associated Press, the Donald Trump re-election campaign's senior adviser and counsel Justin Clark can be heard at a private event, which included the state Senate leader and state GOP executive, telling his fellow Republicans:
"Traditionally it’s always been Republicans suppressing votes in places … Let’s start protecting our voters. We know where they are. ... Let’s start playing offense a little bit. That’s what you’re going to see in 2020. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program."
Clark claimed in response to the AP that his comments were about Republicans having been traditionally “falsely accused of voter suppression” based on the context, but the context instead suggests something entirely more nefarious, as we’ll explain below. Back in December 2017, a federal court allowed the expiration of a legal settlement between the Republican National Committee and their Democratic counterpart that had barred the RNC from engaging in voter suppression activities under the guise stopping voter fraud, and an appeals court refused to reinstate it earlier this year.
Campaign Action
This consent decree had been in place since 1982 following the GOP’s efforts to purge and intimidate voters in New Jersey's 1981 election for governor. In that race, the RNC had mailed sample ballots to voters in areas with large black and Latino populations, then tried to get election administrators to purge the registrations of anyone whose sample ballot was undeliverable in the mail. They also hired off-duty police officers to patrol precincts in those same neighborhoods under the guise of a "National Ballot Security Task Force."
These acts of voter intimidation and attempts to remove eligible voters from the rolls might very well have determined the outcome of that race, as Republican Tom Kean defeated Democrat Jim Florio by less than one-tenth of 1% of the vote, just 1,779 ballots. They also landed the GOP in hot water, and the RNC had to take steps to avoid even the appearance that it supports voter suppression until the decree expired two years ago.
The 2020 election will be the first presidential contest in four decades in which the RNC hasn’t been bound by this consent decree. With Trump hellbent on doing everything within his authority to suppress the political power of communities of color, the GOP may be emboldened to run a voter suppression campaign of unprecedented organization. Without from the consent decree, Trump and the RNC he controls will be able to freely coordinate with state Republican Parties.
Trump himself has previously signaled his intent to do just this: Right before the 2016 election at a campaign rally, Trump once more baselessly claimed voter fraud was widespread and made a racist dog-whistle referring to three cities that are predominantly black and Latino: "[T]ake a look at Philadelphia, what’s been going on, take a look at Chicago, take a look at St. Louis. Take a look at some of these cities, where you see things happening that are horrendous.”
Trump urged his supporters to "get everybody to go out and watch" the polls in what was widely interpreted as a call for intimidating voters in communities of color, and it’s in this context that Clark’s words are ominous. With federal oversight behind them, the GOP's bogus "voter protection" efforts at intimidation could indeed be "a much bigger program, a much more aggressive program, a much better-funded program."
Redistricting
● Nevada: Last month, Rev. Leonard Jackson filed a lawsuit in state court seeking to block a proposed initiative from appearing on the ballot that would create a bipartisan redistricting commission in the state of Nevada. Jackson, whom the Nevada Independent describes as a "politically active Las Vegas pastor," claims that the proposal's description is "inaccurate" and "misleading" in its current form.
The initiative in question would amend Nevada's constitution to create a bipartisan commission with four Democrats and four Republicans appointed by their party's respective legislative leadership, and those eight members would then select three unaffiliated members. The initiative prohibits commissioners from having been lobbyists, candidates for partisan office, party officials, certain state employees, or a relative of such persons for the previous four years.
The proposal ranks redistricting criteria in order of importance, prioritizing compliance with federal law; prohibiting discrimination against racial or language minorities; barring an undue advantage for either party; keeping local government units united; avoiding the division of communities of interest; compactness; and competition.
However, the initiative and its proposed ballot summary call the commission "independent," and the lawsuit takes issue with that claim. The suit notes that, unlike commissions in California and some other states, lawmakers play a key role in selecting who serves on the panel, meaning individuals with strong ties to legislative leaders could still be selected despite the various restrictions enumerated above.
There's also no provision requiring the legislature to fund the commission, which the lawsuit argues deprives it of any meaningful independence. (Supporters have claimed that the legislature would in fact be compelled to fund the commission.) Furthermore, the suit says that the proposal fails to include a requirement that commissioners reflect the geographic and demographic diversity of the state and also points out that there's no metric to enforce the prohibition on maps unfairly favoring one party or the other.
The manner of selecting commissioners and the source of its funding could effectively put the commission's success at the mercy of the legislature. With Democrats in full control of state government and likely to retain it for the foreseeable future, there's a risk they would try to undermine the commission's work in order to pass gerrymanders of their own.
If this lawsuit succeeds, the initiative's backers would have to start over and submit signatures for a proposal with a new ballot summary ahead of the June 16 deadline to qualify for the 2020 ballot. Even if an initiative successfully qualifies for the next year's elections and is approved, voters would also have to pass it in 2022 before the commission could take effect and draw new maps in 2023.
● Pennsylvania: State House Republicans have rushed through a constitutional amendment over the objections of Democrats that would effectively gerrymander the state's judicial branch if it becomes law.
The amendment would switch Pennsylvania's appellate courts from electing judges statewide to a system where judges would be elected by districts. That would open the door for the GOP to gerrymander these new district lines in an effort to elect more Republican judges.
This amendment is a retaliation against the Democratic-majority state Supreme Court, which struck down the GOP's congressional gerrymander in 2018 and replaced it with a much fairer map. After that ruling, Republicans even considered impeaching the Democratic justices, an extreme power grab that was abandoned after public outcry, but they haven't given up in their efforts to undermine judicial independence.
Control over the court will remain critical for next decade's redistricting: The court's majority would not only appoint the tiebreaker on the state's legislative redistricting commission, it could also thwart the GOP from gerrymandering the congressional lines again if Republicans were to regain full control of government.
Fortunately, this amendment doesn't face a clear path to the ballot just yet: Republicans would have to pass it in both chambers before and after the 2020 elections before it would be subject to a voter referendum. However, thanks to the GOP's existing legislative gerrymanders, which denied Democrats majorities in 2018 even when they won more votes, the GOP is favored to retain control in 2020.
If that happens and Republicans pass the amendment twice, they could schedule the referendum on a date that doesn't coincide with the 2022 general election. Such an election could see lower turnout with an electorate that leans disproportionately Republican.
Voting Rights Expansions
● Vermont: The City Council in Vermont's largest city, Burlington, has voted to place a referendum on the March primary ballot that would help pave the way for noncitizens who are permanent legal residents to vote in local elections. Even if voters approve, however, this proposal would still require a change in the city's charter, meaning state lawmakers must pass legislation enabling it.
In 2018, voters in the state capital of Montpelier passed a similar measure, and the heavily Democratic state House enacted a bill to approve the change. However, the Democratic-run state Senate did not take up the bill, though it could do so next year.
Felony Disenfranchisement
● Florida: Hillsborough County State Attorney Andrew Warren, a Democrat whose county is home to 1.4 million people, has announced a new process for citizens who've completed their felony sentences but still owe court fines and fees to have their financial obligations waived strictly for the purpose of regaining their voting rights. Those citizens can submit an application to find out how much they owe and whether it can be waived.
This move comes in response to a move by Republican legislators effectively imposing a poll tax by requiring court fines and fees be paid off before voting rights can be regained. A federal district court recently blocked part of this requirement for plaintiffs deemed unable to pay, but Republicans are appealing.
● New Jersey: Democratic Gov. Phil Murphy has signed a bill that New Jersey's Democratic-run legislature passed nearly along party lines to restore voting rights to roughly 80,000 citizens who are on parole or probation for a felony conviction. This new law will thus leave only citizens who are currently incarcerated without the right to vote. It also brings New Jersey's practices much closer in line with those of other states in the region.
Elections
● Mississippi: The federal court overseeing the lawsuit over Mississippi's "electoral college" law has stayed the case to give the GOP-run state legislature the chance to pass a constitutional amendment to roll back this provision.
As we've previously detailed, this remnant of Mississippi's 1890 Jim Crow-era constitution requires candidates for statewide offices such as governor to not only win a majority of the popular vote but to also carry a majority of the state House's 122 districts. If no candidate surpasses both thresholds, the House chooses the victor, which could be the person who won fewer votes.
Thanks in part to how extensively Republicans have gerrymandered the House, a majority of districts are heavily white. Our analysis of the 2019 election results showed that the Democratic candidates that black voters heavily support would have needed to win a roughly 15-point landslide just to carry a bare majority of House districts, a bar that's impossibly high for Democrats in solidly red Mississippi.
Black voters sued over this law earlier this year, but the court declined to block it shortly before the election because there was no time to give legislators the chance to change the provision. However, the judge hearing the case strongly signaled that the plaintiffs were likely to prevail on the merits. Consequently, if GOP legislators don't pass a constitutional amendment in next year's legislative session, the stay will expire and the lawsuit will proceed.
Election Security
● North Carolina: The state Board of Elections recently voted 3-2 to approve a new voting system that election security advocates and dissenting board members have denounced as a bait-and-switch by the manufacturer, Election Systems & Software.
Earlier this year, the board similarly voted 3-2, with the Democratic chair siding with the panel's two Republicans, to approve a particular model of ES&S machines. After that decision, however, the company belatedly informed officials that it lacked the inventory needed to meet demand for the model in question.
Instead, the company said it could provide a different model that had yet to go through the normal certification process. It was this model that the board just approved, in an unusual step that avoided the typical certification gauntlet. Opponents have claimed that ES&S intentionally misled state officials about its ability to fulfill orders for the originally certified machine.
Election security advocates have condemned the alternative machines as insecure and have called on Democratic Gov. Roy Cooper to demand the resignation of Democratic board chair Damon Circosta. Litigation seeking to block these machines and require paper ballots filled out by hand is likely.
● Pennsylvania: Last week, election security advocates filed a lawsuit seeking to stop Pennsylvania counties from using electronic voting machines manufactured by Election Systems & Software after Northampton County experienced a major failure in last month's local elections. The lawsuit alleges that the use of these voting machines violates the state elections code and voters' rights under the state constitution.
Just days after the lawsuit was filed, Northampton County's bipartisan elections board unanimously voted for a motion of no-confidence in the newly acquired ES&S machines. However, it's unclear whether they will be replaced for 2020 given that Democratic County Executive Lamont McClure still supports them.
The machines in question recorded almost no votes for a Democratic judicial candidate, something that would be practically impossible in a swing county of 300,000 people. Paper backups ultimately showed that the Democrat actually won the election. Election officials cited the blow to voter confidence as a reason not to continue using the machines. ES&S and McClure have argued that the paper failsafe worked as intended to catch the problem, but of course, that just underlines the fact that the machines themselves failed.
Voter Suppression
● Georgia: Despite a last-minute federal lawsuit by voting rights advocates, Republican Secretary of State Brad Raffensperger has purged more than 300,000 registrations from Georgia's voter rolls. The plaintiffs have argued that about 120,000 of those voters were being removed solely for infrequently voting, not because the state believed they had moved away or died, but the court let the purge proceed while the litigation is ongoing.
Raffensperger's office did, however, reinstate 22,000 voters whom the plaintiffs argued had been improperly purged. The plaintiffs are continuing to seek the reinstatement of tens of thousands of additional registrations, and a ruling could come relatively soon. If the purge stands, though, it could easily lead to the disenfranchisement of affected voters if they show up on Election Day thinking they're still registered only to find out they've been removed from the rolls. Voters can check their registration status online here.
● Wisconsin: A state court judge has ruled in favor of a conservative group seeking to require that election officials purge 234,000 registrations of voters whom they claim have moved and are no longer eligible, ordering that those registrations be removed.
The bipartisan Wisconsin Elections Commission appealed to the state Court of Appeals, which declined to immediately stay the lower court's ruling, but it gave the plaintiffs supporting the purge only until Monday to respond. Additionally, the League of Women Voters filed a federal lawsuit that is seeking to block the purge.
At issue in this litigation is a GOP-backed Wisconsin law that requires voter registrations to be removed from the rolls if voters suspected of moving fail to respond within 30 days to a single mailing. The Elections Commission wanted to hold off until 2021 to remove these voters to avoid confusion. In its federal suit, the LWV has argued that the lone mailing constituted inadequate notice, saying the state should be required to send new notices that instruct eligible voters how to stay on the rolls.
No purge has yet been carried out, but those voters slated to be removed from the rolls are disproportionately from Democratic-leaning jurisdictions. The state Democratic Party has said it will use the state's open records law to obtain the names of those purged so they can re-register those who are still eligible, but that may at best only partially mitigate the damage.
Voter Registration and Voting Access
● Massachusetts: Republican Gov. Charlie Baker, with the support of Democratic Secretary of State Bill Galvin, has issued line-item vetoes of provisions in a budget bill that would have changed how automatic voter registration is set to be implemented next year in Massachusetts.
The move drew instant criticism from organizations promoting voting access in the Bay State who've been working for years to establish AVR. In 2018, the state's overwhelmingly Democratic legislature passed automatic registration with bipartisan support, and Baker signed the measure into law.
That legislation called for what's known as "back-end" AVR, where eligible voters who do business with certain state agencies such as the Registry of Motor Vehicles would have their information automatically forwarded to election officials. They would then be given the chance to opt out of registering at a later date via a mailing.
By contrast, the RMV under Galvin's purview has been preparing to implement what's instead known as "front-end" AVR, where eligible voters are given the chance to opt out at the time of their interaction with the relevant government agencies. Massachusetts voting advocates have argued that the back-end system will result in more registrations. The provisions Baker vetoed had called for delaying the implementation of AVR from Jan. 1, 2020 to April 1, 2020 to give Galvin and the other state agencies time to implement the back-end system instead.
Baker and Galvin argued that the vetoed legislation would have caused further delays, pushing the launch of AVR past the state's March 3 presidential primary. However, Massachusetts' congressional and state primaries are not until September and the general election is nearly 11 months away. Voting advocates therefore argued that a delay of a handful of months would have been worthwhile to implement a more effective version of AVR. Because there's no time to override Baker's vetoes, AVR proponents are still evaluating their next steps.
Meanwhile, a provision that did make it into the final budget legislation will establish early voting for the presidential primary, something that had previously only been limited to the general election. However, the final law did not include a provision for early voting in the September primary for congressional and state offices.
● New York: In the previous edition of the Voting Rights Roundup, we reported that New York's Campaign Finance Reform Commission had enacted new regulations increasing the threshold required for third parties to qualify for guaranteed ballot access in the subsequent election. However, we incorrectly stated that the change would take effect in 2022; rather, it will take effect in 2020. This change requires parties to win whichever is higher of 130,000 votes or 2% in the preceding presidential or midterm gubernatorial election. The campaign finance changes won't take effect until after 2022's elections.
