Leading Off
● Congress: On Friday, House Democrats 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. The bill passed 228-187 with all 227 Democrats and Republican Rep. Brian Fitzpatrick voting in favor while the other 186 Republicans and Republican-turned-independent Rep. Justin Amash voted against the bill.
Campaign Action
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.
Of course, with Republicans in control of the presidency and Senate, this bill won't become law. However, Democrats could pass it if they win back the White House and Senate next year and eliminate the filibuster.
Power Grabs
● Kentucky: GOP leaders in the Kentucky legislature are pushing a bill that would effectively remove Democratic Gov.-elect Andy Beshear’s control over the state’s Department of Transportation, the latest move in an accelerating trend of Republicans stripping power from Democratic governors before they can take office.
The legislation would limit the governor to nominating a transportation secretary from a list chosen by a new a board whose nine members would be selected by the Kentucky Chamber of Commerce and local government associations, with those members subject to a veto by the Republican-run legislature. Lawmakers would also have veto power over Beshear’s nominee, making this the only cabinet position in the state requiring Senate confirmation.
This bill would therefore hand over control of a key government post to moneyed corporate interests, and with Republicans firmly in charge of the legislature, it can become law even if Beshear were to veto it. Only intervention by the courts could stop it.
This power grab comes after top Republicans floated the idea of using an obscure constitutional provision to steal the Nov. 5 election for Republican Gov. Matt Bevin, who made unsupported claims of "irregularities" in the vote. Republicans backed off that ploy amid a public backlash, but they've now set their sights on weakening the governor’s office instead.
It also follows similar lame-duck maneuvers by Republican legislators in Michigan and Wisconsin in 2018 and North Carolina in 2016—all of which came only after the GOP lost elections for governor in each state. These schemes amount to a refusal on the part of Republicans to acknowledge that Democrats are a legitimate opposition party entitled to govern when they win elections.
This is an ominous trend, and one that could rear its head at a level far above state politics. Prior to the 2016 elections, Donald Trump refused to say he would honor the results if he lost, and ever since, he’s repeatedly claimed without any evidence that widespread voter fraud cost him the popular vote. The GOP establishment has given its full support to these power grabs in the states. They could culminate in Trump rejecting a legitimate election loss and refusing to leave office next year—a prospect that Americans must be prepared for.
● Mississippi: In yet another instance of Republicans refusing to accept a legitimate election outcome, state Rep. Ashley Henley has asked the GOP-dominated state House to overturn her loss to Democrat Hester Jackson-McCray, who is the first African American to be elected to the legislature in suburban DeSoto County since at least Reconstruction. Henley lost by 14 votes but claims that there were "irregularities," though Jackson-McCray pointed out that the election was run entirely by Republicans, from the secretary of state down to the county commission.
It wouldn't be the first time Mississippi Republicans have rejected the outcome of a close state House race. After the 2015 elections, Democratic state Rep. Bo Eaton and GOP challenger Mark Tullos had tied, and pursuant to the established procedures for such situations, a drawing of lots took place and saw Eaton prevail. But Republicans in the legislature simply overturned that defeat thanks to their gerrymandered state House majority. A federal court rejected a lawsuit by Eaton, saying it lacked jurisdiction.
Court Cases
● Louisiana: An effort to form a new city in Baton Rouge's mostly white southeastern suburbs faces an uncertain future after opponents filed a lawsuit earlier this month challenging its creation. The move follows an October election where residents of the proposed city of St. George, which would be the fifth-largest in Louisiana, voted to establish their own municipality by a 54-46 margin.
The suit, led by East Baton Rouge Parish Mayor-President Sharon Weston Broome, charges that St. George’s backers have failed to explain how the new city, which is currently unincorporated and receives services from the parish government, would provide necessary services like sanitation and policing on its own.
It also argues that St. George's incorporation would have a "substantial adverse impact" on the city of Baton Rouge, as well as other unincorporated areas of East Baton Rouge Parish, by necessitating cuts to government operations. Though the initial filing doesn't delve into details, the St. George area is more affluent than Baton Rouge; if it became its own city, it would divert a sizable proportion of current sales tax revenues away from Baton Rouge's own operating budget.
In addition, the suit says the proposed incorporation would violate the parish's governing charter, which specifies, "No additional city, town or village shall be incorporated in East Baton Rouge Parish" beyond the four in existence when the charter was last amended in 2007. Opponents say a parishwide election to again amend the charter would therefore be necessary, though St. George supporters claim the provision in question runs afoul of existing state law.
While the lawsuit's opening salvo covers a lot of ground, the issue at the heart of this incorporation drive goes unmentioned. St. George supporters have said their ultimate goal is to create their own school district, which opponents have slammed because it would effectively set up a segregated school system, since St. George's 86,000 residents are overwhelmingly white while Baton Rouge is more than half black. The suit does allude to this backdrop, though: It says that after an earlier effort to incorporate a larger version of St. George failed in 2015, organizers shrunk the city's proposed boundaries and, in so doing, reduced its "minority representation" from 23% to 12%.
For now, the establishment of St. George is on hold: The law under which plaintiffs have brought their challenge specifies that the courts must first sign off before a new municipality can be incorporated. Opponents are also encouraging residents who don't want to become a part of St. George to ask Baton Rouge to annex their property, a step several hundred have already reportedly taken.
Voter Suppression
● Arizona: Democrats and a Latino voting rights group have filed a federal lawsuit seeking to strike down Arizona's deadline for mail voters to turn in their ballots.
Currently, Arizona requires that mail ballots be returned by 7 PM on Election Day, but that leaves potentially thousands of voters facing disenfranchisement because their ballots don't actually arrive until after Election Day. Consequently, the plaintiffs are requesting the deadline be moved to up to five days after Election Day so long as the ballots are postmarked by Election Day, something that is currently the law in other mail-voting states such as Washington.
Although Arizona hasn't yet adopted a universal vote-by-mail system, the option to permanently sign up for absentee mail ballots through the state's Permanent Early Voting List has led to a majority of voters casting their ballots by mail in recent years. While that has made voting easier for many Arizonans, it has also brought challenges for voting access in places such as remote Native American reservations, where mail service takes longer and is less reliable than in major urban areas.
Meanwhile, a Native American voting rights group has settled its lawsuit with three county governments and Democratic Secretary of State Katie Hobbs over voting access. Last year, the plaintiffs had sued Hobbs' Republican predecessor, but Hobbs reached a settlement earlier this year to guarantee that local officials will be required to contact voters who forget to sign their ballots, or whose signatures are said not to match those on file, and give them five business days after Election Day to fix any problems.
That agreement, however, did not include the county election administrators, who've now separately settled the case. That settlement guarantees access to in-person early voting sites on the Navajo Reservation and Navajo interpreters at each polling place. It also requires that the counties work with the Navajo Nation to come up with voter registration plans each election cycle, and to place timely ads on Navajo-language radio informing voters of election dates and locations.
In response to that settlement, a Republican state senator has introduced legislation to prevent Hobbs and the secretary of state's office from making any changes to the state's formal election manual without approval by the (Republican) governor's Regulatory Review Council. That would have thwarted Hobbs from setting the policy that gives voters a chance to correct mistakes or missing signatures on their mail ballots. In response, a leading Democratic election lawyer implied there would be a lawsuit if the bill becomes law and Hobbs' new policy is reversed.
● Kentucky: Republican Secretary of State-elect Michael Adams has announced that one of his top priorities will be pushing the Republican-run legislature to pass a voter ID law. Kentucky state House Republicans surprisingly blocked such a law last year, but after Democratic Gov.-elect Andy Beshear won by just over 5,000 votes last month, the GOP may be more eager to pass new voting restrictions that would disproportionately burden Democratic voters.
Under Kentucky's current policy, election administrators ask voters if they have ID; if they do not, voters can sign an oath attesting to their identity. Adams' proposal would likely require the presentation of voter ID without that exception, a strict policy adopted by Republicans in only a handful of other states. Adams, whose victory last month flipped the secretary of state's office from Democratic to GOP control, also said another major goal will be purging the state's voter rolls, which could wrongly ensnare eligible voters.
● New Hampshire: A federal judge has declined to issue a preliminary injunction blocking a Republican-backed law that effectively imposes a poll tax on out-of-state college students. In his ruling, Judge Joseph Laplante held that the plaintiffs had failed to sufficiently make their case that confusion over the law had prevented people from voting.
As we’ve detailed, the GOP's law requires New Hampshire voters to have legal "residency" in the state and not just simply make it their "domicile," or the place where they live day to day. However, becoming a resident under the legal definition requires taking action like registering a car in-state and obtaining an in-state driver's license.
This new requirement therefore amounts to a poll tax on Democratic-leaning college students from other states, who are less likely to go to the expense and trouble of becoming legal residents, even if they live in New Hampshire full-time. As a result, it may lead to fewer college students voting in the Granite State if it remains in place. It's unclear whether the plaintiffs will appeal.
● South Carolina: The South Carolina Democratic Party has filed a federal lawsuit challenging a state law that requires voters to submit their full Social Security numbers in order to register to vote. Plaintiffs contend the law is unconstitutional because voters might feel intimidated. They also argue that it opens up the risk of identity theft. The lawsuit notes that nearly every other state uses some other identifier, such as a driver's license number of just the last four digits of a Social Security number.
● Texas: Texas Democrats have filed a second suit in federal court challenging a law Republicans passed earlier this year that effectively bans the use of mobile polling places by requiring that any early voting site must be open for the entirety of the early voting period instead of just for part of it. The new law led budget-constrained officials to close polling places on college campuses and in retirement homes.
This latest challenge argues that the law discriminates against seniors, young voters, voters with disabilities, and those who lack transportation access. It comes after state and national Democratic Party organizations filed a federal lawsuit in October arguing that the law violated the 26th Amendment by discriminating against young voters.
Ballot Access
● Minnesota: Democrats have filed a new federal lawsuit challenging a Minnesota law that determines the order in which parties appear on the ballot, contending that it unfairly penalizes Democrats by listing them last. Research has shown that the candidate listed first can gain an advantage simply because they appear at the top of the ballot, particularly in less salient elections further down the ticket.
Unusually, the existing law lists the party that won the most votes on average in the most recent election last on the ballot. As a result, thanks to their success in 2018's blue wave, Democrats will be perversely punished in 2020 by appearing at the bottom of the ballot.
The party's situation will be even worse than normal next year, though: Because two pro-marijuana legalization parties each exceeded 5% in different statewide races last cycle (for attorney general and auditor), they gained major-party status for 2020. That not only guarantees both spots on the ballot but also that both (along with the GOP) will appear above Democrats.
The plaintiffs are asking the court to block the law from being enforced and require a replacement that treats the parties on a more equitable basis, such as varying ballot order randomly (as is the practice in nonpartisan contests in Minnesota). A federal court recently struck down a somewhat similar law in Florida that listed the governor's party first in every partisan election.
Felony Disenfranchisement
● New Jersey: Assembly Democrats have passed a bill largely along party lines that would end the state's ban on voting for citizens who are on parole or probation for a felony conviction, meaning that only those who are currently incarcerated would remain disenfranchised. Democrats also control the state Senate and governor's office, meaning there's a good chance this bill will become law. If it does, it would bring New Jersey in line with most other Northern states, which largely don't disenfranchise people who aren't incarcerated.
Redistricting
● California: In a unanimous opinion, a three-judge panel on the 9th Circuit Court of Appeals has rejected a lawsuit challenging the constitutionality of the Voting Rights Act, which makes it easier for plaintiffs to challenge the use of at-large elections in municipal races. The law has provided an easier path for cities to shift to holding district-based elections, thereby giving Latinos and Asian-Americans a better chance of winning seats.
The suit unsuccessfully argued that the law required illegal gerrymandering based on race. It was supported by infamous voting rights opponent Ed Blum, who was behind the case that saw the Supreme Court strike down a critical part of the Voting Rights Act in 2013 and has been a leading foe of affirmative action. Blum signaled his organization will appeal the ruling, which could reach the Supreme Court.
● Michigan: In a victory for redistricting reformers, a federal district court has rejected a Republican-backed lawsuit seeking a preliminary injunction to block the implementation of Michigan's new independent redistricting commission, which voters passed via ballot initiative in 2018. The case is still proceeding on the merits, but the court's ruling concluded that Republicans were unlikely to succeed on that front.
The lawsuit argued that the state law establishing the new commission violated Republicans' First Amendment rights to free speech and association and their 14th Amendment right to equal protection because it imposes prohibitions on who may serve as a commissioner. Specifically, the new commission disqualifies anyone who, in the past six years, has held or run for elected office, or has served as a lobbyist, and anyone who is a parent, spouse, or child of such a person. Several Republicans who hold or have held such disqualifying positions are party to the suit.
However, the court held that past rulings prohibiting what's known as "viewpoint discrimination" in government positions don't apply here. Unlike elected officials doling out patronage jobs to their political supporters, this ban isn't based on partisan affiliation, since those with partisan views may and likely will serve on the commission. Rather, it's based on the activities the ineligible citizens have undertaken and applies regardless of party. And the plaintiffs noted that disqualified individuals could become eligible again in future redistricting cycles.
This is one of two GOP-backed lawsuits seeking to block the new commission. Republicans have not yet said how they'll respond to this latest ruling, but an appeal is likely.
● North Carolina: In a setback in the fight against Republican gerrymandering, a panel of state court judges has unanimously refused to block the new congressional map that Republicans passed last month. The same panel had previously blocked the GOP's prior gerrymander from being used for 2020.
Ruling that there was insufficient time to adjudicate the facts of the plaintiffs' challenge to the new map, the court did not rule on whether the map passed constitutional muster, but it did allow it to enter into effect for the March primary. The plaintiffs subsequently announced that they wouldn't appeal to the state Supreme Court.
Daily Kos Elections has calculated the results of all statewide elections from 2004 to 2018 and a number of demographic statistics for the GOP's new districts, and they demonstrate that the new map is all but certain to elect an 8-5 Republican majority barring a Democratic wave even larger than 2018's.
That may be a fairer split than the previous map's 10-3 Republican advantage, but that's a very low bar given that the old map was by one measure the most extreme gerrymander nationwide over the last several decades. The new map likely precludes Democrats from winning a majority of seats even in elections when their candidates collectively win more votes than Republicans statewide, as was the case last year.
Nevertheless, Democrats are all but guaranteed to flip GOP Rep. George Holding's 2nd District in Raleigh and GOP Rep. Mark Walker's 6th District in the Piedmont Triad, since both seats backed Hillary Clinton in 2016 by more than 20 points.
Election Security
● Pennsylvania: Former Green Party presidential nominee Jill Stein and her supporters have filed a motion in federal court that seeks to block Philadelphia County and two other counties from using electronic voting machines. The plaintiffs argue these machines are insecure because they print out a barcode that counts as the official record instead of a human-readable record that voters themselves can verify.
Stein had previously sued the state over its laws that prevented her from being able to request a recount of the 2016 election, and she contends that the certification of these machines violated the settlement reached with state officials in 2018 in that suit. If she prevails on this latest motion, Philadelphia, Cumberland, and Northampton Counties would be required to adopt a different voting method for 2020, such as paper ballots filled out by hand or voting machines that produce text instead of a barcode.
The machines in question are manufactured by Election Systems & Software, which is the largest vendor of voting machines in the country and has faced mounting scrutiny in the years since Russia's attempts to hack the 2016 elections exposed vulnerabilities in U.S. election systems. Election security advocates are currently suing Georgia in federal court to stop it from adopting similar barcode machines from a different company.
ES&S' failures were on full display in Pennsylvania just last month in local elections in Northampton County, which recently acquired and implemented their machines for this year's contests.
One judicial election in the county saw Democrat Abe Kassis earning only 164 votes out of 55,000 cast across more than 100 polling places, many of which recorded zero votes for him. Officials quickly realized on election night that something was amiss, and when they checked the paper ballot backups, Kassis had actually won his race, taking 26,142 votes to 25,137 votes for his Republican opponent. Voters furthermore reported long lines and machine glitches that caused votes to flip to the wrong candidate.
Supporters of these voting machines argued that the system worked—but only because paper backups caught the problem. That does little to allay fears that less-obvious glitches could go undetected without routine audits, but opponents have argued that the reliance on barcodes makes comprehensive audits impossible.
Electoral Reform
● Florida: A proposed constitutional amendment to implement a top-two primary system for state offices has attained enough valid signatures to qualify for the 2020 ballot, setting up a battle over an electoral system that could wreak havoc for fair elections.
This top-two system would see all candidates from all parties run on a single primary ballot, with the top-two finishers—regardless of party—advancing to the November general election, a system that is already used in California and Washington.
As we've previously documented, this electoral system is notorious for producing outcomes that don't reflect the desires of the electorate. One chief reason why: a party can win a majority of votes cast in the primary yet get shut out of the general election simply because it fields a large number of candidates while the minority party only puts forth a few or even just two.
Furthermore, primary electorates often feature very different demographic compositions than higher-turnout general elections, producing greater partisan and racial dissonance between the two rounds. These distortions have seen one party or the other get shut out of general elections in recent years in California and Washington, including in contests they likely would have won if the parties had gotten to nominate candidates through traditional primaries.
Proponents have billed this measure as promoting "open primaries" and argue that top-two would allow unaffiliated voters to have more influence. This reform, however, doesn't establish a traditional open primary, where voters can pick which primary to vote in regardless of how they are registered.
Proponents also contend that it gives minority-party voters more sway to elect centrist candidates in same-party general elections in districts that heavily favor the majority party. But instead, this system creates perverse incentives where party organizations have to coordinate to advance particular candidates before primary voters even get a chance to weigh in, lest their party get shut out of a general election. That effectively shifts much of the nominating process to party insiders instead of empowering voters.
Furthermore, same-party contests have done little to promote moderation in either California or Washington, instead leading to a spike in voters skipping same-party contests on their ballots when their favored party gets shut out. In one particularly notable case of California's 2018 Senate election, Republicans voted for the more left-wing Democrat because the more moderate incumbent Dianne Feinstein had galvanized Republican opposition during the Brett Kavanaugh confirmation hearings.
Many of these problems could be avoided with an alternate reform such as instant-runoff voting (also known as ranked-choice voting), which other states such as Maine have passed. Nevertheless, this amendment is far from guaranteed to pass, particularly since Florida requires a 60% supermajority for ballot initiatives. Furthermore, since Florida initiatives may only address a single subject, this proposal doesn't affect federal offices. A concurrent effort to put a second initiative on the ballot for congressional elections has relatively few signatures so far.
