Leading Off
● Wisconsin: Conservative Judge Brian Hagedorn holds a 50.25-49.75 lead over Judge Lisa Neubauer, the choice of progressives, following Tuesday’s officially nonpartisan race for the Wisconsin Supreme Court, a margin of just under 6,000 votes Hagedorn declared victory early Wednesday while Neubauer has not conceded. A vote canvass is expected to be completed next week, after which Neubauer's campaign says it will decide whether to pursue a recount.
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If Hagedorn’s lead holds, he will flip a seat left open by retiring liberal Justice Shirley Abrahamson and give conservatives a five-to-two majority on the bench. While conservatives will have to play defense a year from now, when Scott Walker appointee Dan Kelly is up for his first election, Hagedorn’s win ensures they’ll retain their majority heading into the next round of redistricting. Barring any unexpected vacancies, the next seat on the court won't be up until 2023, when progressives would get another chance to take the majority if they can defeat Kelly.
Hagedorn's probable victory therefore means the high court likely won't act to protect voting rights by striking down GOP legislators' voter suppression measures and lame-duck power grabs, nor will it act as a check on Republican-led gerrymandering. While Democratic Gov. Tony Evers is positioned to veto any extreme gerrymanders that the Republican-run legislature tries to pass after 2020, the process will likely end up in court. If the state courts wind up overseeing the process, there's a real risk that the Supreme Court would approve maps favoring the GOP.
In addition, if Republicans ever defeat Evers (and hold the legislature), they could engage in mid-decade redistricting, at least for the state's constitutional map. That would allow them to gerrymander freely once again.
This election should serve as a wake-up call for those hoping to use courts to fight for the right to vote and against gerrymandering at the state level. But while this race doesn't appear to have gone as reformers would have liked, five key battleground states will feature supreme court races in 2020 where progressive victories could go a long way toward protecting voting rights and stopping GOP gerrymandering.
Voter Suppression
● Arizona: After her victory in 2018 made her Arizona's first Democratic secretary of state in decades, new incumbent Katie Hobbs is now the latest election official to pull her state out out of the Interstate Crosscheck system championed by voter suppression zealot Kris Kobach. That system had been found to have a comically high 99% false positive rate that would flag countless citizens for supposedly improper voter registrations that are entirely valid in reality.
● Iowa: In a duplicitous bit of parliamentary jiu jitsu, Republican state senators in Iowa have taken a bill with small election fixes that had unanimously passed the state House and added a slew of measures that restrict the right to vote. This maneuver ensures that the GOP's proposed restrictions will stay alive this session ahead of a key legislative deadline.
The new bill would close polling places at 8 PM instead of 9 PM on Election Night, which could make it more difficult to vote for those who have to work long shifts on Election Day. Another measure restricts the ability of county auditors to establish additional voting sites. The bill also would put voters on the "inactive" list simply for skipping a presidential election, which could eventually lead to their registration being canceled.
While the bill dropped a provision to outright ban Iowa's three large public universities from establishing satellite early voting sites, it does impose an elaborate requirement that could have the same effect. Counties would have to compile reports on the "impact of electioneering laws on First Amendment rights ... in state-owned buildings" for every state building in their county that could be used as a satellite voting site. Since campaigning is banned within a certain distance of polling places, having to submit such assessments to the legislature could deter counties from picking optimal sites or any at all.
Another provision is a measure that targets college students by requiring all graduating students to fill out a form indicating whether they intend to stay in Iowa after graduation. Those who intend to leave the state would have their voter registrations changed to "inactive," which would eventually pave the way for their registration to be canceled if they don't vote. Inactive voters would be required to show a form of ID in order to vote again, and if a student said on the required form that they intended to leave Iowa but later decide to stay, their inactive voter registration would be canceled if they don't vote in the next two elections.
Previously, we had relied on inaccurate reporting that said that these students' registrations would be canceled outright; those reports didn't make clear that their registrations would instead become inactive. They also did not note that the measure would only apply to "graduating" students, though that's still a problematic provision. The bill doesn't make it clear precisely when a student would get classified as "graduating," and it also singles out such students for no legitimate reason.
As for that measure the House had passed with unanimous support, that proposal remains in the bill. It would require a certain type of postal barcode for absentee mail ballots so that officials can know whether late-arriving ballots were mailed before the deadline (the Monday before Election Day). But unlike the House version, GOP senators would phase out this system in 2023 and instead require that mail ballots be received by Election Day instead of the following Monday to count, which could end up disenfranchising voters even when the post office is at fault for delays.
● Tennessee: Tennessee Republicans are currently working to pass a Kafkaesque bill that would heavily restrict organizers’ ability to conduct voter registration drives by imposing criminal and civil penalties that could rear their heads at many different points during the process of signing citizens up to vote.
The bill would first require those conducting registration drives to undergo a training course from the secretary of state's office, making it a crime not to do so. But how do you even take such a course? Its contents aren’t defined in any way, and it’s not even clear when and where it would be offered.
And that’s not the only perverse provision. The GOP’s legislation would also criminalize any failure to submit a voter registration form to the state within 10 days after it’s signed. At the same time, it would also assess heavy civil fines on those who submit more than 100 inaccurate forms. Organizers would therefore be utterly damned whether they do or don’t: If they collect forms they know to be inaccurate, they’ll risk criminal penalties if they don’t turn them in and civil penalties if they do.
Taken together, these provisions are designed to intimidate groups into abandoning registration drives out of fear they’ll be fined or prosecuted. Tennessee already has one of the lowest turnout rates of any state, and this bill would only further exacerbate the problem. Tennessee Republicans hold massive majorities in both legislative chambers, and they have already passed the bill in one state House committee, so there’s a good chance these measures will become law.
Fortunately, the Campaign Legal Center, an organization that regularly wages litigation to protect voting rights, has pointed out in a letter to Tennessee legislators that a federal court struck down a similar law in Florida in 2012. It’s therefore likely that a lawsuit would follow if Tennessee Republicans pass this proposal.
Electoral College
● Nevada: Nevada Democrats won full control of state government in 2018 for the first time in more than two decades, but even that might not be enough for the state to join the National Popular Vote Interstate Compact. This week, state Assembly Majority Leader Teresa Benitez-Thompson expressed doubts about the proposal, which recently passed out of committee in the Assembly but is still awaiting a vote before the full chamber.
● New Mexico: On Wednesday, Democratic Gov. Michelle Lujan Grisham signed a new law that will add New Mexico's five Electoral College votes to the National Popular Vote Interstate Compact, bringing the compact up to 189 of the 270 electoral votes needed for it to enter into effect. Following this development, we analyzed the state-level elections Democrats would need to win to be in a position to enact the compact by 2024 in a new post at Daily Kos Elections.
● Ohio: While the move to adopt the National Popular Vote Interstate Compact has been making great progress in state legislatures nationwide, a mystery group in Ohio is pushing a different approach that advocates have distanced themselves from and call a possible Trojan horse. Organizers are trying to put a constitutional amendment on the ballot this November, but NPVIC chair John Koza notes that it would only be necessary to pass a statutory initiative—a process that is much easier and cheaper.
Koza also observes that to join the compact, each member must pass the exact same 888-word piece of legislation. The proposed amendment, however, doesn't include the text of the law but instead is vaguely phrased, meaning that if the amendment were adopted, the legislature would have "great flexibility as to what legislation to enact—flexibility for which the petition's backers are willing to spend considerable additional money to achieve."
And just who are those backers? No one's been able to figure that out. Until they come forward and make their aims clear, compact supporters should view this effort with skepticism.
● Oregon: Democrats passed a bill out of a state Senate committee to add Oregon's seven Electoral College votes to the National Popular Vote Interstate Compact, marking the first time this proposal has ever made it to the floor. This development finally came about only after Democratic state Senate President Peter Courtney recently dropped his long-standing opposition to letting the proposal come up for a vote. Since Democrats hold wide majorities in both legislative chambers, the bill is expected to become law.
Redistricting
● Michigan: Following the passage of a ballot initiative last year to create an independent redistricting commission starting after the 2020 census, Democratic Secretary of State Jocelyn Benson has now launched an information portal about the commission and the application process to serve as a commissioner. Applications will begin in late 2019 via the secretary of state's website, with a deadline of June 1, 2020.
● New Hampshire: In a party-line vote this week, New Hampshire Democrats passed a statutory proposal in the state Senate to create a bipartisan advisory redistricting commission with provisions requiring partisan fairness, following a recent vote in the Democratic-controlled state House for a similar proposal. However, given that no Republicans supported the measure in the Senate and only a handful did in the House, both bills appear doomed to a likely veto from Republican Gov. Chris Sununu, which Democrats lack the two-thirds supermajorities needed to override.
Court Cases
● Texas: A federal district court has set oral arguments for May 2 over whether Texas should be placed back under the Voting Rights Act's "preclearance" regime, which previously required Texas to obtain the Justice Department's approval for any changes to voting laws or procedures until the Supreme Court struck down a critical part of the VRA in 2013. The plaintiffs argue that repeated findings in multiple court cases that Texas Republicans intentionally engaged in racial discrimination are grounds for putting Texas back under preclearance via a rarely used section of the VRA that was left untouched by the Supreme Court.
This case will be a major test for whether voting rights advocates can use the remaining provisions of the Voting Rights Act to try to revive the preclearance regime and once again enable the Justice Department to prohibit states like Texas from enacting discriminatory voting changes before they're implemented rather than after long and costly litigation. However, given the hostility of the Supreme Court's conservative majority toward the Voting Rights Act, it's unclear if the plaintiffs will ultimately meet with success despite Texas' track record.
Electoral Reform
● Maryland: Despite having the support of all of Montgomery County's state House delegation, a bill that would have let this million-person county in the D.C. suburbs switch to instant-runoff voting for powerful local government offices has failed to advance before a key deadline in this year's legislative session.
Voter Registration and Voting Access
● Arizona: Republican Gov. Doug Ducey has signed into law a bipartisan measure requiring local election administrators to proactively inform voters if the signatures they write on their mail ballots do not matching those on file, giving such voters up to five business days after Election Day to verify their identity. This law codifies a procedure introduced by administrators in the 2018 elections that helped ensure several thousand voters had their votes counted who otherwise might not have.
● California: Democrats in one of two necessary committees have passed a bill to make Election Day a state holiday in California as a way to improve voter turnout. However, an Election Day holiday could end up having undesirable unintended consequences that could in fact make it harder for some people to vote.
● Connecticut: Democrats in a key committee comprised of members of both chambers have passed two widely supported bills to improve voter access to same-day registration in Connecticut. One measure lets those who are in line to vote before 8 PM on Election Day still register if they haven't already, instead of requiring all voters to be registered by 8 PM. Another bill would increase the number of same-day registration locations in the town-level governments that actually run elections in Connecticut, while a third bill would give the secretary of state greater oversight to cut down on inefficiencies.
Meanwhile, the committee also approved a bill making Election Day a state holiday in an attempt to improve turnout. 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.
● Illinois: Democratic state Sen. Ram Villivalam has introduced a bill to give voters a $25 state tax credit if they vote in general elections, an unusual but worthy idea that could encourage much wider voter participation. Offering a financial incentive to vote—one could call it a "democracy credit" for doing one's civic duty—could help increase turnout among those less likely to vote. That could in turn make the electorate more demographically representative of the population, particularly since low-income Americans vote at lower rates than the rich.
This system attempts to mimic the result of Australian-style compulsory voting but by using the carrot of a financial benefit for voting instead of the stick of a financial penalty for not voting. Down Under, voters can be fined as much as 79 Australian dollars for failing to vote, a goad that has kept turnout rates over 90 percent for almost a century—and made voting a communal experience, complete with barbecues featuring "democracy sausages."
Offering a tax credit instead of a fine is a smart move for proponents, given the hostility that the Supreme Court under Chief Justice John Roberts has shown toward any efforts to expand the franchise. That's because this approach could avoid a potential First Amendment lawsuit, since opponents have tried to argue that compulsory voting amounts to forced speech in violation of the Constitution. This system, however, would instead benefit those who proactively cast a ballot instead of penalizing those who decline to do so.
It's unclear how much support this measure has in the legislature, though, and it's likewise uncertain how much of an impact a tax credit would actually have on turnout compared to actual compulsory voting. However, there are ways this proposal could be made even more effective, such as by mailing everyone a ballot with an explanation that you can get $25 just for signing and returning it.
● Maryland: In 2018, Maryland Democrats put a constitutional amendment on the ballot to extend same-day registration to Election Day instead of just during early voting. Marylanders voted to approve it by a wide margin, and Democrats have now passed a statute that will implement the new procedure. Republicans strongly opposed this provision, which would make it easier to vote, but even if Republican Gov. Larry Hogan were to veto the implementing legislation, Democrats hold the necessary three-fifths supermajorities needed to override it.
● New Mexico: A new law expanding voting access in New Mexico also includes a provision that will automatically update a previously registered voter's registration when they move and update their address with the state Motor Vehicle Department. It will also provide eligible voters the chance to opt in to voter registration at the MVD and other state agencies. The bill itself calls this "automatic voter registration," but to properly be considered "automatic," such programs need to be "opt-out," where voters are asked if they don't want to be registered. That flips the default and leads to far higher enrollment rates: If a citizen takes no further action, they're registered rather than not registered.
Indeed, state House Democrats had previously passed a separate bill to create an opt-out automatic registration system, but the state Senate failed to pass it before the legislature adjourned in mid-March.
● New York: New York Democrats recently passed this year's state budget, but one provision that failed to make it into the final bill was a measure creating a public financing system for candidates statewide. Instead, Democrats included a compromise that sets up a new commission tasked with creating such a system, but it leaves the details up to that panel. That has some advocates worried that the commission is instead a "cynical attempt to kill reform," as one activist put it, by creating a toothless public funding system rather than a robust program like New York City's.
The budget also didn't include automatic voter registration, which some Democrats have been trying to pass in separate legislation. It's possible that Democratic lawmakers could pass automatic registration later this session, but the lack of progress on the issue even as other reforms flew through the legislature this year is not an encouraging sign.
However, the budget did contain a new provision that requires employers to give their employees up to three hours of paid time off if they need it to vote, which could help encourage voter turnout, particularly among low-income voters who otherwise couldn't afford to miss work.
● Voter Turnout: A new report from the organization Nonprofit VOTE looks at turnout rates in every state in 2018 and reaches informative conclusions about the impact of laws making it easier or harder to vote. States with automatic voter registration, same-day voter registration, and universal vote-by-mail led the way with the highest turnout rates, while those with registration deadlines several weeks before Election Day ranked among the lowest. See our full story on the report for more details.
Election Consolidation
● Kentucky: Lawmakers have adjourned this year's legislative session in Kentucky, but Republicans in the state House have failed to pass a proposed constitutional amendment that would have moved the election dates for governor and other executive offices from odd-numbered years preceding each presidential election to the presidential cycle beginning in 2028. Republicans in the state Senate had approved the measure, and though GOP supporters might have favored this proposal because Republicans win Kentucky easily at the presidential level, it would have been good for democracy nevertheless because it could have doubled turnout for downballot races.
Felony Disenfranchisement
● Iowa: Republicans in Iowa's GOP-dominated state Senate have killed a proposed state constitutional amendment that would have automatically restored voting rights for citizens who have served out felony sentences, even though their colleagues in the state House had passed the proposal almost unanimously in March, and even though Republican Gov. Kim Reynolds had called the measure one of her top priorities. Iowa is one of just two states alongside Kentucky that bans everyone with any felony conviction from voting for life.
However, if Reynolds truly cares about ending this unjust system, she has the unilateral ability to do so. Iowa's governor has the power to restore voting rights to those who have served their time, and in fact, former Democratic Gov. Tom Vilsack issued an executive order to automatically do so. However, Reynolds' predecessor, former GOP Gov. Terry Branstad, revoked that directive right after he defeated Vilsack's Democratic successor in 2010, but Reynolds has refused to issue a similar order to end Iowa's racially discriminatory lifetime disenfranchisement.
● Nevada: With the support of legislative leadership, Democrats have introduced a bill to entirely end felony disenfranchisement for those who are no longer incarcerated. Nevada currently has one of the more restrictive felony disenfranchisement regimes in the country, with a number of crimes resulting in a lifetime ban on voting, something this bill would no longer allow. Democrats hold full control of state government for the first time in more than two decades, so there's a good chance this bill becomes law regardless of whether the GOP opposes it.
Ballot Measures
● Idaho: After Idaho voters approved a 2018 ballot initiative to expand Medicaid by a 61-39 margin, circumventing Republican lawmakers' opposition, not only have Republicans tried to roll back expansion and impose onerous work requirements, they've passed two bills that attempt restrict the initiative process itself. In a surprise move, however, Republican Gov. Brad Little vetoed one bill and said he planned to veto the other. But Little is by no means on the side of progressives here: In a transphobic statement, he all but admitted he vetoed the bill to avoid losing a near-certain lawsuit over it, saying he otherwise supported the goals of the bills.
Taken together, these bills would have required initiatives to have signatures from 10% of registered voters in a supermajority of the state's 35 legislative districts. One of the two bills set that number at 32 districts and gave organizers just six months to gather signatures; the other bill would have required 24 districts and given supporters nine months to do so. Either proposal would have been significantly more restrictive than current law, which requires signatures from 6% of registered voters in just a simple majority of 18 districts within an 18-month timeframe.
2020 Census
● 2020 Census: A third federal court, this time in Maryland, has issued a ruling blocking the Trump administration's attempt to add a citizenship question to the 2020 census, finding that it violates both federal statute and the Constitution. The Supreme Court is set to hear the Trump administration's appeal in one of the two other cases later this month.
Election Integrity
● Georgia: As expected, Republican Gov. Brian Kemp has signed a new law that passed largely along party lines and will pave the way for Georgia to pay at least $150 million for new voting machines, which election security experts have called insecure and condemned as a taxpayer giveaway to Kemp's cronies who manufacture the equipment. As we have previously explained, these new machines would replace Georgia's outdated paperless machines, but instead of producing a paper trail that voters themselves can verify, they provide only a barcode that isn't readable by humans.
Opponents have argued that hand-marked paper ballots would have been three times less expensive and say that the $150 million price tag potentially underestimates the actual costs Georgia will face. Consequently, a group that has been waging a lawsuit in recent years trying to require Georgia to adopt paper ballots has said they will continue with their efforts.
The new law does, however, contain a few provisions to make voting easier in response to multiple court rulings against various voter restrictions in 2018. Those provisions include requiring 30-day notice of any changes to polling places and prohibiting changes within 60 days of an election; requiring officials to mail voters a provisional ballot if their absentee ballot signature doesn't appear to match the one on file; notifying voters before their registrations are canceled; and relaxing Georgia's draconian "exact-match" law, which had suspended tens of thousands of voters' registrations whose applications to register had even trivial discrepancies—like a misplaced hyphen—with information in government databases.
