Leading Off
● North Carolina: In an astonishing ruling released late on Friday afternoon, a North Carolina state court struck down two constitutional amendments passed by voters last fall, saying that because the Republican-run legislature had been elected under an unconstitutional racial gerrymander, it had "lost its claim to popular sovereignty" and therefore was not empowered to place those amendments on the ballot.
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Those amendments concerned very different topics: One established a new voter ID requirement while another lowered the cap on the state's maximum allowed income tax rate. Both, noted the court, harm black and Latino voters (the case was brought by the NAACP), with the latter doing so because it "tends to favor white households" and would "reinforc[e] the accumulation of wealth for white taxpayers." Voters approved both measures by double-digit margins last fall.
This ruling is highly unusual but not unique: In 1964, a federal court in Connecticut enjoined the state legislature, which had been elected using unconstitutional districts, from passing any laws until it had reconstituted itself under new maps. In the North Carolina case, the court limited its holding solely to efforts to amend the state constitution, saying the requirements for the legislature to do so "are unique and distinct from the requirements to enact other legislation."
There's no question, though, that Republicans will vociferously challenge this decision on appeal, and it could very well get overturned: Election law expert Rick Hasen opined that it's "not at all clear that this ruling will stand." But if it does survive, it would finally force Republicans to pay a price for their relentless gerrymandering and potentially open up an entire new avenue of challenges to the actions of tainted legislatures elsewhere.
Elections
● North Carolina: On Thursday, after four days of hearings into charges that Republican candidate Mark Harris benefitted from an illegal absentee ballot scheme in last year’s race for North Carolina’s 9th Congressional District, the bipartisan state Board of Elections unanimously voted to hold a new election. This will be the first time a re-vote has occurred in a House race since 1974, when a malfunctioning voting machine was enough to cast doubt on Republican Henson Moore’s 44-vote win in a contest in Louisiana; Moore decisively won the do-over the following year.
Democrat Dan McCready, a businessman and retired Marine, has long been preparing to compete here again, and there’s no question his fellow Democrats will give him the chance to try once more. There’s far more uncertainty, however, on the GOP side. Last year, the Republican-led state legislature passed a law mandating new primaries whenever a new election is ordered in a congressional contest. That’s a change from prior practice, which would have required only a new general election be held between the existing nominees—something that would have left the GOP stuck with Harris. On Thursday, McCready’s attorney, Marc Elias, declined to say if he’d challenge this new law in court.
The board’s vote to hold a new election capped off a dramatic week of proceedings that were nothing but a disaster for Harris. On Wednesday, his own son, federal prosecutor John Harris, testified that he'd warned his father about McCrae Dowless, the operative accused of masterminding the illegal absentee ballot harvesting operation on behalf of Harris’ campaign.
Then on Thursday, board members were furious to find out that Harris’ team had failed to produce relevant documents pursuant to their subpoena, including one message in which Harris specifically asked a friend to connect him to Dowless because he was “the guy whose absentee ballot project ... could have put me in the U.S. House this term.”
In his own testimony before the board on Thursday, Harris sought to throw his son under the bus, saying, “I’m his dad, and I know he’s a little judgmental, and has a little taste of arrogance.” He also professed a shocking ignorance of basic campaign finance laws: Harris initially paid Dowless through an “independent expenditure PAC” (often known as a “super PAC”) but said he was not aware that congressional campaigns are not permitted to coordinate their activities with such PACs.
Harris evidently saw which way things were going after investigators spent days carefully laying out their evidence, and in a shocking twist on Thursday afternoon, he himself called for a new election. However, that move only came after Harris had spent months demanding he be seated. Indeed, earlier this month, Harris told a meeting of the state GOP executive committee, “The Democrats and liberal media have spared no expense disparaging my good name,” and even called allegations of ballot fraud “unsubstantiated slandering.” Thursday evening, Elias argued "Harris’ change of heart regarding a new election was simply a way to avoid perjuring himself."
Electoral College
● Colorado: Democrats have now passed a bill out of both legislative chambers to add Colorado's nine Electoral College votes to the National Popular Vote Compact following a state House vote on Thursday. The bill now goes to Democratic Gov. Jared Polis, who has promised to sign it into law. Once he does so, the compact will increase from 172 to 181 of the 270 electoral votes needed for it to activate.
● Maine: After gaining full control of state government last November for the first time in nearly a decade, Maine Democrats have introduced legislation to add Maine's four Electoral College votes to the National Popular Vote Interstate Compact. The first committee hearing on the topic is set for March 1.
Voter Registration and Voting Access
● Connecticut: Democrats are considering a bill to make Election Day a holiday for state workers. As we've previously explained regarding efforts in other states to implement similar measures, there are both pros and cons to this idea that should give pause to those wanting to improve voter access and turnout.
While an Election Day holiday may make it easier for state workers to vote, there's nothing that would require private-sector employers to give their employees the day off. Furthermore, disruptions to government services like schools and public transportation can be particularly burdensome for low-income people, who are already less likely to vote in general. While this proposal would make voting easier for some and could lead to overall higher turnout, other policies like early voting and vote-by-mail would have similarly positive effects without similarly negative impacts.
● New Mexico: The Democratic majority in New Mexico's state House has now passed legislation to establish both automatic voter registration and same-day voter registration. Democrats also control the state Senate and hold the governor's office, so both of these bills should become law.
● Virginia: Virginia's state legislature, where Republicans hold razor-thin majorities in both chambers, has passed a bill with near-unanimous support to finally establish what is essentially a one-week period of early voting by allowing voters to cast an absentee ballot in-person without needing an excuse. Democratic Gov. Ralph Northam is likely to sign the bill into law, but it won't take effect until 2020, meaning voters will not be able to vote early in this November's important legislative elections.
Voter Suppression
● South Dakota: Despite holding a wide majority, Republicans in South Dakota's state House only narrowly passed a bill on a 36-33 vote to cut the state's early voting period from 46 days, which is the longest in the country, to 32 days. Democrats and a sizable minority of Republicans opposed the bill, but the GOP could pass it in the state Senate so long as they don't see a higher proportion of opposition within their caucus.
Redistricting
● Connecticut: An NAACP-backed lawsuit contending that Connecticut's practice of "prison gerrymandering" violates the 14th Amendment has survived a motion to dismiss in federal court, with potential national implications if the plaintiffs prevail. This suit challenges the practice of counting prisoners for redistricting purposes at their prisons—even though the very fact of their incarceration means prisoners cannot participate in civic life in the community near where they're imprisoned—instead of their last address, where they may still have community ties.
The plaintiffs argue that this practice of violates the Equal Protection Clause of the Constitution because, thanks in part to institutional racism in the criminal justice system, it effectively malapportions urban communities of color and reduces their rightful representation. By effectively displacing inmates for the purposes of the Census, prison gerrymandering inflates the political power of predominantly white rural communities that are disproportionately where prisons are located.
While ending this practice would only have a small impact on congressional redistricting, it could lead to the election of more representatives of color in some state legislatures, such as Connecticut's.
In addition, the impact on local governments where prisons are located would be profound. A leading advocacy group called the Prison Gerrymandering Project cites one example in the town of Anamosa, Iowa, where the city council district containing a state prison was home to just 58 residents who lived outside of the prison. By contrast, the town's other three districts had roughly 1,400 residents each, giving voters in the district with the prison 25 times as much power as voters in the other three.
California, Delaware, Maryland, and New York have already changed their laws to ensure prisoners are counted in their previous communities instead of where they are incarcerated, and several other states have banned prison gerrymandering at the local level. While a court ruling that this practice violates the Constitution would only apply to the state of Connecticut, it could inspire a wave of lawsuits around the country if states and localities don't end the practice themselves. For good measure, Democratic state Rep. Pat Dillon has also introduced a bill to end the policy in Connecticut.
● New Hampshire: The item below incorrectly characterized a proposed redistricting reform measure as a constitutional amendment, but it is in fact only statutory. For a full explanation, please see here.
In an encouraging sign in the fight against gerrymandering, New Hampshire's state House Election Law Committee has unanimously passed a Democratic-backed state constitutional amendment to create a quasi-independent redistricting commission and establish nonpartisan standards that would require districts account for partisan fairness. Democrats only need a handful of Republican votes in each chamber to attain the three-fifths supermajorities needed to send the amendment to the ballot, where at least two-thirds of voters would then have to vote for it.
If enacted, this amendment would create a 15-member advisory commission whose members are chosen independently of legislators. The amendment would bar those from serving on the commission if, in the last six years, they have served in office, been a candidate, worked for a political party, or been a lobbyist. The secretary of state would select a pool of 60 applicants with a requirement for geographic and demographic diversity, of whom an equal number would be Democrats, Republican, and those who belong to neither major party. That group would get reduced by half once the secretary interviews applicants.
The four legislative leaders from both parties would get to strike two applicants each, for eight in total, but importantly, they wouldn't get to hand-pick whomever they want from the remaining applicant pool, making this selection process sufficiently independent. From the final pool of applicants, three commissioners for each party would be randomly selected, and those nine members would pick the remaining six members, for a total of five Democrats, five Republicans, and five members of neither party.
Once the commissioners are chosen, they would begin crafting maps for Congress, the state legislature, and New Hampshire's unique Executive Council, which has veto power over certain gubernatorial appointments and spending decisions. Any maps drawn must be open to ample public input and must also abide by several nonpartisan criteria in the following order or priority: compliance with federal law; ensuring communities of color can elect their preferred candidates; respecting communities of interest; and limiting the division of local government boundaries. Plans also must abide by measures of partisan fairness, which is listed separately from the prioritized criteria above.
Commission-drawn maps would still be subject to legislative approval, meaning the commission itself wouldn't be fully independent as it is in, say, California. Critically, though, legislators can't draw their own maps, making the commission far more powerful than a mere advisory body. And if lawmakers were to vote down a map, they'd be required to specify how the map they rejected failed to adhere to the nonpartisan criteria listed above, after which the commission could propose a modified version, with the process repeating until the legislature agrees. If lawmakers don't approve any map by Feb. 15 of years ending in -2, the state Supreme Court would draw one using the above criteria.
Meanwhile, state Senate Democrats are supporting a different amendment that would let legislative leaders pick four seats on a seven-member commission, and permit legislators to redraw the commission's proposals so long as they adhere to the same nonpartisan criteria. That proposal is less desirable, though, because it could open the door to gerrymandering that protects certain incumbents even if a map as a whole couldn't favor one party or the other. It would take multi-partisan support for the commission to recommend a proposal; if legislators don't approve any map under this system, then the commission's proposal would automatically become law.
Although New Hampshire isn't nationally infamous for extreme gerrymandering, its Republican-drawn maps likely stopped Democrats from gaining full control of state government in 2012 when Democrats won the popular vote for the state Senate but not a majority of seats. These same gerrymanders may have similarly been responsible for letting the GOP win full control themselves in 2016. While the House's amendment comes much closer to the ideal of nonpartisan and independently drawn districts, either version would likely result in fairer districts than what New Hampshire has experienced this past decade.
● New Jersey: Democrats in New Jersey's state Senate have passed a bill that would require prisoners be counted for redistricting purposes at their last address instead of where they're incarcerated, ending the practice known as "prison gerrymandering." If it becomes law, this proposal could have a modest impact shifting representation from predominantly white rural areas to more urban communities of color (see our Connecticut item above for a more detailed look at the impact of prison gerrymandering).
● North Carolina: Democrats are currently suing over North Carolina Republicans' current legislative gerrymanders, which they passed after the maps mentioned in our other North Carolina item were struck down, and that case could eventually see the Democratic majority on the state Supreme Court strike down the maps for illegal partisan discrimination. But regardless of what happens with that case, the state House map will once again be changing after Republicans said they won't appeal a separate state court ruling that struck down four districts in Wake County, home to the capital of Raleigh.
Back in 2017, a federal court ordered GOP legislators to redraw dozens of legislative districts that had discriminated against black voters. However, the lower court ruled that the GOP had crossed the line in Wake County by redrawing four seats that didn't need to be changed to remedy racial gerrymandering, deeming that this move violated the state constitution's ban on mid-decade redistricting. Those seats will now revert to their pre-2018 versions, unless they're redrawn as a result of the other ongoing lawsuit mentioned above.
While an eventual state Supreme Court ruling against partisan gerrymandering looks likely, some legislators from both parties are supporting a plan to create a bipartisan redistricting commission. But even though a majority of the state House has signed on as supporters, GOP legislative leaders appear set against letting the measure become law, which would require three-fifths support in both chambers and a majority vote in a referendum.
If, however, this proposal does pass, it would establish a bipartisan commission whereby each of the four leaders of the legislature would nominate 10 commissioners. From each of those lists, two members would be randomly chosen, resulting in four commissioners from each party. Each legislative leader would also pick three nominees who aren't affiliated with either major party, and three commissioners would be randomly chosen from that combined pool of twelve unaffiliated candidates, giving the commission 11 members overall.
It would take eight votes to recommend any map, with at least two votes from each grouping (Democratic, Republican, and unaffiliated/third-party). Once commissioners agree to a plan, they would submit it to the legislature for its approval. Legislators could reject the map, but they couldn't draw their own.
The proposal, however, contains some important flaws. For one, the amendment bans the use of political data, which would preclude mapmakers from ensuring that their lines treat both parties fairly. The criteria for redistricting also prioritizes geometric compactness, which could unintentionally require maps that penalize one party— and that would likely be the Democrats, given the political geography of the state.
Consequently, Democrats may be better off if this compromise doesn't pass, since a favorable state court ruling could lead to them regaining one or both legislative chambers in 2020, after which they would have a stronger bargaining position to push for maps that require partisan fairness.
● Oklahoma: A group called Represent Oklahoma will try once more to pass a redistricting reform commission by ballot measure by 2020 after their previous effort failed to make the ballot last election cycle. Oklahoma is a solidly Republican state, but especially after Democrat Kendra Horn won a stunning upset to represent the 5th Congressional District, Republicans are likely to gerrymander the House map after 2020 if a ballot initiative doesn't stop them. Organizers would have to gather roughly 178,500 valid signatures in just 90 days once they submit their proposal to the state.
● Utah: Despite earlier threats to do so, Republican leaders in the Utah legislature recently said they may not take action this session to roll back a ballot initiative that voters passed in 2018 to establish a bipartisan advisory commission and nonpartisan standards for redistricting. As we've previously explained, Utah initiatives can only create statutes, not constitutional amendments, so there is nothing except the fear of public blowback preventing Republicans from simply repealing the law so that they can continue gerrymandering.
Republicans already tampered with two other 2018 initiatives—one on medical marijuana and another on Medicaid expansion—so they have already shown no qualms about disregarding the wishes voters express at the ballot box. However, they may be taking a wait-and-see approach on redistricting simply because both the commission and its nonpartisan standards won't come into play for another two years, following the 2020 census.
However, one thing Republicans may be more likely to do this year is pass new legislation that would make it even harder to put initiatives on the ballot after an unprecedented number passed last year.
Felony Disenfranchisement
● Louisiana: In a surprise victory for voting rights, GOP Secretary of State Kyle Ardoin and the state Department of Corrections now broadly agree that a 2018 law intended to restore voting rights only to those on parole or probation for felonies who have been out of prison for at least five years will indeed apply to everyone who hasn't been in prison for at least five years. Since the vast majority of those sentenced to probation never served prison time, this critical difference means that they will be eligible to regain their rights even if it hasn't been five years since their probation sentence begin.
Consequently, instead of affecting just 2,200 people, this law will give more than half of the roughly 63,000 Louisianians who are disenfranchised while on parole or probation a chance to regain their voting rights once the measure takes effect next month. However, rights restoration still won't be automatic: Those who are eligible to regain the vote must submit a form to their parole or probation officer and then file that form with the local voter registrar in person, which voting rights advocates argue poses an unnecessary burden.
Ardoin opposed the measure when the legislature debated it yet said he will implement it as required by law. However, he also said he won't take action to educate the public, and the the secretary of state's website has not been updated to provide any information about the change. Furthermore, Ardoin urged the Republican-run legislature to resolve issues with the new law, which could lead to additional restrictions. Democratic Gov. John Bel Edwards could veto such a rollback, but his position on that hypothetical scenario is unclear.
● Mississippi: A federal judge has agreed with the plaintiffs who are suing over Mississippi's felony disenfranchisement regime that they may proceed with a class action lawsuit on behalf of all those whose voting rights would be affected by the case. Mississippi currently has one of the most restrictive disenfranchisement systems, where those who commit one of a number of felonies are effectively disenfranchised for life. That's because it takes an act of state government to restore each individual's voting rights on a case-by-case basis, something it did just 335 times between 2000 and 2015.
Meanwhile, the Republican-controlled state House has once again passed a bill with near unanimous support to establish a committee to study reforming the state's felony disenfranchisement laws. However, it's unclear if the GOP-run state Senate will even consider the measure, since Republican senators blocked a similar proposal two years ago even though it had sailed through the House with almost no opposition.
Judicial Elections
● North Carolina: In an astonishing turnabout, North Carolina's Republican-majority state Senate has unanimously passed a bill to undo the GOP's "reverse" court-packing scheme for the state Court of Appeals. Republicans had passed a law in 2017 that would eliminate the seats of any departing judges until the court had been reduced from 15 members to 12. The GOP did so because three Republican judges were set to hit mandatory retirement age during Democratic Gov. Roy Cooper's term, which would have let Cooper appoint Democratic replacements who would serve until the 2020 elections.
This move comes just before Cooper's appeal in a lawsuit over the GOP's court scheme is set to go before the state Supreme Court after a lower court previously upheld the statute. It's therefore possible that Republican legislators have reversed themselves because they think the high court will overturn their 2017 law, especially since Democrats are poised to assume a six-to-one majority on the bench once Cooper fills the seat of a departing Republican at the start of March.
