A note to our readers: The Voting Rights Roundup will be taking next week off. We'll resume publishing in two weeks.
● Ohio: On Friday, a federal district court delivered a major win against Republican gerrymandering when it struck down Ohio's congressional map for violating the constitutional rights of Democratic voters. The court ordered legislators to devise a new map by June 14 for the 2020 elections that would be much fairer than the existing lines. If lawmakers don't pass a new map, or if the Republicans—who have total control over state government—simply pass a new replacement gerrymander, the court itself could draw its own districts.
Unlike its longtime status as a swing state, Ohio is home to one of the most extreme GOP gerrymanders of any state in the country. These tortured lines have ensured Republican control of 12 of the state's 16 congressional seats this entire decade, even when Obama carried Ohio in 2012. By contrast, a nonpartisan map, such as the one we've drawn, likely would have seen Democrats win three or four more seats in the 2018 elections—a far more equitable distribution.
This ruling could also have major consequences for redistricting after the 2020 census, when Ohio, like every other state, was already set to draw a new map beginning with the 2022 elections. Although Ohio legislators passed a "compromise" constitutional amendment in 2018 to reform congressional redistricting in an ostensibly bipartisan manner, that supposed reform was actually a cunning Republican scheme to thwart a 2018 ballot initiative effort that was aiming to create a more fair and independent process.
Multiple analysts have demonstrated the weakness of the amendment that did pass by drawing maps that would conform to the state's new rules on the surface yet in reality would be almost as egregiously gerrymandered as the current lines. However, if Ohio is required to use fairer districts for 2020, that would set a new baseline for the 2020 map and make it harder for Republicans to get away with drawing another extreme gerrymander, since they would be subject to judicial review and additional political pressure from the public.
Unfortunately for Democrats and fair redistricting, there's a very strong chance that the partisan Republican majority on the U.S. Supreme Court will quickly block the lower court from requiring a new map and ultimately overturn its decision in response to the GOP's planned appeal. The high court has repeatedly refused to limit partisan gerrymandering, which overwhelmingly favored Republicans this decade and is poised to do so again after 2020. Experts expect the justices will uphold the practice of gerrymandering in 5-4 rulings in two key cases in Maryland and North Carolina in June.
However, there's a silver lining to this ruling, even if the U.S. Supreme Court overturns it. That's because the same evidence and principles the plaintiffs used to get the map struck down could be used to persuade Ohio's state Supreme Court to put limits on gerrymandering under the state constitution. Indeed, practically every state constitution has provisions that could invalidate gerrymandering.
Republicans hold a 5-2 majority on Ohio's Supreme Court, but Democrats have the chance to gain a 4-3 majority if they defeat two Republican incumbents who are up for election in 2020 (the contests are officially nonpartisan). While the chances the U.S. Supreme Court will uphold this ruling are slim, 2020's state Supreme Court races are a critical opportunity for Democrats and voters to enforce fairer redistricting.
● Arizona: In a win for voting rights, Arizona Republicans have adjourned the 2019 legislative session without enacting three bills to restrict voting that had advanced through the legislative process earlier this year. One of those bills would have purged infrequent voters from the state's Permanent Early Voting List, which mails absentee ballots every election to registered voters who have opted in to the program. Another bill would have added criminal penalties that would have made voter registration drives more difficult. The last bill would have banned voters from turning in their mail ballots in-person.
● Tennessee: Tennessee Republicans just passed a widely condemned new law that aims to stifle voter registration drives by creating new criminal and civil penalties that may intimidate groups into not conducting them at all for fear of prosecution. This law likely comes as retribution against those who registered tens of thousands of new black voters in 2018, since black voters are more likely to be registered through such drives.
For those who register 100 or more voters, the law makes it a crime to do so without completing a state training course. It also makes it a crime to fail to submit completed forms within 10 days. At the same time, groups that submit 100 or more incomplete or inaccurate registration forms would face civil fines, which could reach a steep $10,000 per county (Tennessee has 99 counties) if more than 500 such forms are found to have been submitted in a given county. Furthermore, it bans people from out-of-state from serving as poll watchers.
Finally, the law includes a measure to make registration drives less effective by making it a crime to pay workers based on the number of registrations they gather. Instead, organizers would have to pay hourly or rely on volunteers, which would eliminate the financial incentive for registration drive workers to register as many voters as they can during their shifts.
Immediately after Republican Gov. Bill Lee signed this law, civil rights groups filed a lawsuit arguing that it violates the 14th Amendment and has a "chilling effect on the exercise of fundamental First Amendment rights." It's unclear, though, how successful the case might be if it ultimately reaches the Supreme Court, given the conservative majority's abysmal record on voting rights. However, a lower court struck down similar legislation in Florida in 2012 after the League of Women Voters, a nonpartisan civic group, argued it had pressured the organization into giving up on registration drives.
The outcry over this law doesn't end there, though. In a new investigation, local NewsChannel 5 reports that the office of Republican state House Speaker Glen Casada tried to frame and imprison student activist Justin Jones, who had joined in protests against the legislation earlier this year. Jones was charged with assault after allegedly throwing a cup onto the speaker's elevator during a protest in February, and a condition of his pretrial release was to have no contact with Casada.
Reporters, however, found that the speaker's office had doctored the date of an email to Casada in order to frame Jones for violating that condition, then gave the information to Nashville's District Attorney Glenn Funk's office, which filed a motion to revoke Jones' bail. However, actual records showed the email came from before the start of the no-contact period. Furthermore, reporters obtained racist texts involving the speaker's chief of staff, who used racial slurs and wrote "black people are idiots." Consequently, Funk has asked for a special prosecutor to look into the case.
● Texas: In late February, a federal judge temporarily blocked a Republican-led effort to purge nearly 100,000 voter registrations using a badly flawed list of registered voters who were supposedly not citizens. Now, Texas Republicans have reached a settlement with the numerous civil rights groups who had filed multiple lawsuits to stop the purge.
Republican Secretary of State David Whitley had flagged voters who at some point over the years had told a state government agency that they weren't citizens. However, further scrutiny revealed the overwhelming majority of those individuals had become naturalized before registering.
Following the lawsuits and public backlash over what the court called a "ham-handed" voter purge, Republicans have agreed to scrap their flawed list of non-citizens entirely. Furthermore, state officials will have to coordinate with Latino voters and civil rights groups to avoid improperly targeting naturalized citizens again.
● Florida: Floridians voted by a 65-35 landslide to approve a 2018 constitutional amendment to restore voting rights to up to 1.4 million citizens who had fully completed their felony sentences, but Republican legislators just sent GOP Gov. Ron DeSantis a bill that would try to keep the vast majority of those citizens disenfranchised by imposing a measure straight out of the Jim Crow playbook: poll taxes. This measure would require the payment of not only court-ordered restitution but also all court-related fines and fees before voters could regain their rights.
Imposing a requirement to pay off all court costs is especially draconian because of the predatory ways in which Florida courts and law enforcement derive funding from harsh fines imposed on criminal defendants, above and beyond restitution to crime victims. Even worse, it requires the payment of fines that have been converted into civil liens, meaning even some who have paid all of their criminal penalties still wouldn't have the right to vote. Those affected could regain their right to vote if a judge converts such debts into community service hours or if the owed party waives them, but a former judge told the Miami Herald that doing so could create a massive backlog if hundreds of thousands apply for such waivers.
It's unclear just how many citizens would be affected by this bill. One analysis estimates it could be up to 1.1 million, or roughly four-fifths of those who were supposed to regain their voting rights. Black defendants in particular are considerably less likely to be able to pay off court costs than white defendants, according to one study. But despite this racially disparate impact, the success of an all-but-guaranteed lawsuit is in doubt thanks to conservatives' dominance over both the U.S. Supreme Court and Florida Supreme Court.
Voter Registration and Voting Access
● Colorado: On Thursday, Democratic legislators in Colorado passed a bill largely along party lines that creates a far-reaching automatic voter registration system, sending it to Democratic Gov. Jared Polis for his signature. This bill would automatically register eligible voters who interact with the state's driver's licensing agency, giving them a chance to opt out later when the state mails them a notice. Importantly, this bill also includes those who transact business with the state's health department, providing a way to reach even more eligible voters beyond just those who drive.
● Hawaii: Hawaii's heavily Democratic legislature has adjourned for the year after passing one major bill to improve voting access but failing to pass several others that would have made it easier to vote and fixed flaws in the state's electoral system.
First off, the good news: Democrats finally passed a bill to establish universal mail voting by 2020. That marked a departure from the last several years, where both chambers passed different versions of the proposal yet failed to agree on a single version, allowing the legislation to die each time.
The measure now goes to Democratic Gov. David Ige, who had been reluctant to take a position on many proposals before the legislative session ended but now has until June 24 to take action. If this bill becomes law, Hawaii would become the fourth state to adopt universal vote-by-mail after Colorado, Oregon, and Washington.
The mail voting bill both prepays the postage cost to save voters a trip to the post office and would still provide voters with an opportunity to cast their ballots in person. The new law replaces traditional neighborhood polling places with vote centers where any voter in a county can drop off a completed mail ballot, cast an early in-person ballot, and even register at the same time they go to vote. The bill does end a requirement that employers give their employees time off to vote, but the removal of this provision should have a limited impact given how much easier voting access will now become.
On the other hand, the pattern of both chambers failing to hammer out their differences on conflicting versions of a bill once again led to the failure of several other voting access measures. Those proposals included automatic voter registration through the state's driver's licensing agency; the automatic "pre-registration" of 16- and 17-year-olds enrolled in Hawaii's schools so that they would be added to the rolls when they turn 18; and a bill to implement instant-runoff voting for all special elections.
● Colorado: Democratic legislators sent a bill to Democratic Gov. Jared Polis that imposes new campaign finance regulations to increase transparency and prevent foreign influence via election spending. Thanks to Citizens United, tax-exempt groups that run so-called "issue" ads that don't explicitly advocate voting for or against a candidate are exempt from requirements to disclose their donors. The Supreme Court consequently opened a loophole for these "dark money" groups to accept foreign cash in violation of federal laws—a practice this bill would ban. The measure also requires corporations to disclose when they spend above a certain threshold on political campaigns.
● 2020 Census: Although the Supreme Court is poised to allow Donald Trump to add a question about citizenship to the 2020 census to weaponize it against Democrats and people of color in redistricting, the Trump administration is already plotting its own end-run around the court to achieve the same goals in the unlikely event of an adverse ruling.
Commerce Secretary Wilbur Ross has directed the Census Bureau to report the existing citizenship data it already has in its possession, which is collected by the voluntary American Community Survey, by individual census blocks instead of at the less-granular level at which it currently provides this data, known as "block groups."
Census blocks are the smallest geographic units for which the bureau compiles and reports its data, and as such, they're the building blocks for redistricting. By contrast, the much larger block groups are too bulky to be used for typical redistricting purposes.
This might seem like a wonky distinction, but Republican legislators could use block-level citizenship data to draw districts based on the eligible voter population of adult citizens instead of the total population, even though using total population has been the norm for many decades. Districts drawn in this way would shift representation from Democratic-leaning districts and people of color to Republican-leaning districts and whites, because the former are home to more non-voters.
There's a possible hitch for Republicans, though. The ACS uses statistical sampling (the same techniques used by pollsters) to gather its data. In 1999, however, the Supreme Court's conservatives barred the decennial census from using sampling in lieu of actually counting (or at least attempting to count) every single person in the country. It's unclear, though, whether the Roberts Court would apply that precedent here given its partisan lean.
And because this latest effort to circumvent the upcoming Supreme Court decision comes in the form of an action taken by an administrative agency, a Democratic president could reverse it in 2021. If the citizenship question passes judicial muster, though, there will be no way for Democrats to remove it.