● 2020 Census: In a bombshell development with explosive implications for redistricting, newly unearthed documents have exposed a huge smoking gun of nakedly partisan and racist motiviations behind the Trump administration's unprecedented push to add a citizenship question to every 2020 census form. Indeed, the documents detail how the GOP plainly intended to use the question to gerrymander based on adult citizens instead of the traditional basis of total population because it would be "a disadvantage to the Democrats" and "advantageous to Republicans and non-Hispanic whites."
These documents come from the hard drives of perhaps the most prominent Republican redistricting consultant in recent decades, Thomas Hofeller, who drew gerrymanders for the party in numerous states over more than three decades. Hofeller died last summer, and his estranged daughter was legally able to obtain the hard drives and turn them over to plaintiffs in an ongoing state-level lawsuit challenging North Carolina's legislative gerrymanders, which Hofeller had drawn.
The attorneys for those North Carolina plaintiffs happened to be from the same firm representing plaintiffs in a totally separate case challenging Trump's citizenship question, with whom they legally shared the files via a subpoena. Contained was a damning admission: Hofeller had personally pushed the GOP to put a citizenship question on the census because gerrymandering districts based on adult citizens would let them further rig the maps against both Democrats and people of color, something we have previously analyzed regarding Texas and numerous studies also support.
Under anything resembling the rule of law, these documents would eviscerate the Trump administration's defense in the Supreme Court's impending ruling on whether to allow the citizenship question. Indeed, they plainly point to both partisan animus and intentional racial discrimination as the GOP's true motivations instead of their cynical stated reason that citizenship data is needed to enforce the Voting Rights Act, something Hofeller had also helped author for the Justice Department to devise a pretext that other documents had already discredited earlier this year.
Unfortunately, it's doubtful that the partisan Republican Supreme Court majority will do anything other than rule in favor of Republicans given Chief Justice John Roberts' apparent acceptance during oral arguments of the Trump administration's pretext of enforcing the Voting Rights Act—which Roberts helped weaken in 2013 and has worked to undermine for more than three decades. Furthermore, it's unclear whether the plaintiffs will even be able to get the justices to consider this new evidence, given that oral arguments already took place and census forms must be printed in July.
Given the blatant display of partisan and racial bigotry behind the GOP's citizenship question effort, a ruling in favor of Trump would be a cataclysmic blow to democracy that would surpass the harms of 2000's Bush v. Gore and a 2013 decision gutting a key part of the Voting Rights Act, since a citizenship question would both depress immigrants' census participation and turbocharge GOP gerrymandering. If it comes to pass, it will prove that the Roberts Court is undeniably committed to an agenda of permanently entrenching white Republicans in power with shameless disregard for the rule of law.
However, the fallout from these documents doesn't end with the Supreme Court's citizenship case, and there may be a silver lining for Democrats and voters of color seeking to challenge Republican gerrymanders across the nation. Indeed, that's because Hofeller's fingerprints are all over Republican gerrymanders in many states over the years, and similar smoking gun admissions of racial discrimination in particular may be too glaring to ignore for even some of the Supreme Court's conservative justices such as Clarence Thomas, given precedents from recent years.
Even if the U.S. Supreme Court's Republican majority decides to take a much more hostile line against challenges to illegal racial discrimination now that conservative swing Justice Anthony Kennedy has retired and also forecloses the possibility of challenging partisan gerrymandering, the fight doesn't end there. That's because under two centuries of federalism forming the bedrock of American law, state supreme courts have wide latitude to interpret their own constitutions to protect the rights of citizens in a way that's insulated from federal review.
Indeed, back in 2018, Pennsylvania's Democratic-majority Supreme Court struck down the GOP's gerrymander, in another case where Hofeller was involved, and replaced it with a much fairer map. In that case, the U.S. Supreme Court refused to even take on the GOP's appeal, even after hardline conservative Justice Brett Kavanaugh replaced Kennedy. Caution is warranted, though, because that case didn't set a binding precedent, but overturning state courts would require decimating the foundation of federalism to do so, a bridge that even Roberts could be unwilling to cross given the GOP's long campaign to achieve state-level dominance.
This year, North Carolina's heavily Democratic Supreme Court appears poised to follow suit by striking down the legislative gerrymanders Hofeller drew in the lawsuit mentioned above, and any state with a progressive-oriented supreme court could likewise follow that path to invalidate GOP gerrymanders. Consequently, this week's bombshell is likely just the beginning of what we may learn from the Hofeller documents, and more litigation is practically guaranteed.
● Maine, Nevada, Oregon: The growing campaign to elect the president by popular vote met two defeats on Thursday, as the governor of one swing state rejected a bill to add his state’s Electoral College votes to the National Popular Vote Interstate Compact, while lawmakers in another did the same.
Nevada Gov. Steve Sisolak unexpectedly became the first Democratic governor in the country to veto a bill to join the compact, meaning the state’s six electoral votes won’t get added to the 189 that are already part of the compact. Sisolak defended his decision with the fallacious claim that the Electoral College benefits small states such as Nevada, and his veto statement leaves little room for a future reversal. Supporters lack the votes in the legislature to override Sisolak’s veto, and it appears unlikely that they will be to do so while Sisolak remains governor.
Shortly after Sisolak issued his veto, Maine's Democratic-run state House voted 76-66 to reject a bill to add Maine’s four Electoral College votes to the compact, even though Democratic state senators had passed the legislation earlier this month. No Republicans voted in favor of the bill, but it was the opposition of 21 Democrats that ultimately killed it.
Elections from 2019 through 2022 will determine whether Democrats have the potential to pass the compact in enough states with a majority of 270 electoral votes that would be needed for the agreement to take effect by 2024. Reformers can still reach this 270-vote threshold without Maine and Nevada, but doing so would require nearly everything else to go right, and these two states represented the lowest-hanging fruit given that Democrats control both.
Nevertheless, 2019 has seen significant progress for the compact: Colorado, Delaware, and New Mexico have already joined, and Oregon may soon follow. This week, Oregon Democrats advanced a bill to join the compact out of state House committee and onward to the full chamber, where supporters are optimistic it will pass after the state Senate passed the measure in April. If it does, Democratic Gov. Kate Brown is expected to sign the bill into law and add Oregon's seven electoral votes, which would bring the compact to 196 electoral votes.
● Mississippi: On Thursday, four black voters filed a lawsuit in federal court to challenge a provision in Mississippi's 1890 Jim Crow-era constitution that makes it extremely difficult for Democrats to win the governorship even if they win the most votes.
This unique law requires candidates for statewide office to win both a majority of the statewide vote and a majority of the 122 districts that make up the state House. If no candidate clears both of these hurdles, then the state House, where Republicans hold a wide 74-45 majority, would pick a winner from the top two finishers. The plaintiffs are backed by the National Democratic Redistricting Committee, a group chaired by former U.S. Attorney General Eric Holder.
As we have previously shown, Mississippi’s current system discriminates against black voters—and consequently Democrats. If the GOP-led House gets to choose the new governor, there’s little question it would choose the Republican nominee no matter which candidate actually wins the most votes.
With longtime state Attorney General Jim Hood running in this year's election for governor, Democrats have their best chance to reclaim the state's top job since last winning it 20 years ago. However, Mississippi's law would effectively require that Hood win a double-digit landslide simply to carry a majority of districts, thanks to the GOP's gerrymander—an exceedingly unlikely outcome.
The plaintiffs contend that the law violates the 14th and 15th Amendments and the Voting Rights Act because the system intentionally dilutes black voting power and runs counter to the Supreme Court's "one person, one vote" jurisprudence. Any one of these charges could be enough to invalidate the law, and taken together, the plaintiffs have a strong argument on their side.
Similar cases also augur in the plaintiffs favor. For instance, the Supreme Court struck down Georgia's system of determining statewide primary winners by a so-called "county unit system" that gave rural voters excess weight. However, it remains to be seen how the current partisan Republican majority on the Supreme Court would rule if the case ultimately comes before it.
● Colorado: Democratic Gov. Jared Polis has signed a new law that restores voting rights to people on parole for a felony conviction and further requires that they be provided with information regarding their voting rights and how to register once they're released from prison. As a result of this new bill, only currently incarcerated people will remain disenfranchised in the state of Colorado.
● Illinois: Democratic legislators have now passed a bill out of both chambers that aims to ensure everyone in jail who is awaiting trial and has not been convicted on a felony charge can exercise their right to vote. In Cook County, home to Chicago and more than 5 million residents, this bill would require the county jail to operate an in-person polling place. Jails in every other county would be required to provide absentee ballots for eligible detainees.
While Illinois disenfranchises incarcerated citizens who have been convicted of a felony, it automatically restores their voting rights upon release from prison. However, many individuals don't realize they regain their right to vote upon release, so this bill also seeks to remedy this problem by requiring officials to inform citizens upon release that they have regained the right to vote and to provide them with a voter registration form. With Democrat J.B. Pritzker as governor, there's a good chance this bill will soon become law.
Voter Registration and Voting Access
● Colorado: Democratic Gov. Jared Polis has signed two bills into law to improve voting access. One law expands Colorado's automatic voter registration system, making it permanent by statute and covering not only Colorado's agency for driver's licensing but also the agency that handles Medicaid. That expansion is important since low-income citizens are disproportionately less likely to drive and more likely to qualify for Medicaid. The second law contains several smaller provisions such as letting 17-year-olds vote in primaries if they turn 18 by the general election.
● Connecticut: Democrats in Connecticut's state House have passed a bill largely along party lines that significantly expands voting access. The bill establishes automatic voter registration, expands same-day voter registration by allowing it at more than just one location in each municipality, and enables voters to register electronically at the relevant state agencies instead of only by paper.
The bill also restores voting rights to people on parole, meaning Connecticut would no longer stand out among states in New England in this regard. Furthermore, it eliminates a requirement that people with certain felony sentences repay all court-related fines before they can regain their voting rights, which has effectively functioned as a poll tax on low-income citizens after their release.
● Nevada: Democrats are closing in on the end of the 2019 legislative session having passed or nearing passage of several measures to expand voting rights, improve voting access, and make the electoral system more representative.
Indeed, Democratic Gov. Steve Sisolak has already signed a bill to end the ban on voting for people with felony convictions who are on parole, on probation, or even permanently disenfranchised for certain offenses. Consequently, Nevada will go from one of the most restrictive states for felony disenfranchisement to one of the least, paving the way for tens of thousands to regain their voting rights.
Sisolak also signed a related bill that ends the practice of "prison gerrymandering" by counting prisoners for redistricting purposes at their last address instead of at the prison, where they remain unable to vote. This will likely restore representation to urban communities of color and remove the distortion inflating representation especially at the local level in jurisdictions where prisons are located.
Nevada legislators from both parties also voted by a near-unanimous margin to put a state constitutional amendment on the 2020 ballot to expand protections for the right to vote. While nearly every state constitution has some form of a right-to-vote guarantee, they're often not laid out in modern language that is unambiguous and meticulous in detailing protections for voters against modern threats to voting rights, which this amendment would do to guarantee equal access to the ballot box.
Democrats and a few Republicans also sent a bill to Sisolak's desk that reforms the recall process to make it less vulnerable to partisan abuses, such as when Republicans tried to recall Democratic state senators in 2017 for no other reason than they thought it would be easier to win back control of the chamber in low-turnout special elections. That scheme ultimately failed when Republicans lacked enough valid signatures, and the goal of the legislation would be to prevent future deceptive recall campaigns while still leaving the option open for legislators who break the law or abuse their office.
Additionally, legislators from both parties widely agreed to pass a bill proposed by GOP Secretary of State Barbara Cegavske that requires local elections be held concurrently with state and federal ones instead of in the spring or in odd-numbered years. This change will likely boost downballot participation significantly in many localities and also save them money since they would no longer need to administer separate elections.
The last bill is one that Democrats passed along party lines in the Assembly that contains numerous election provisions designed to improve voting access. Chief among those are provisions to enable same-day voter registration and implement automatic voter registration after voters passed the latter policy at the ballot box in 2018.
The bill furthermore expands early voting availability hours and gives all voters the option to sign up to permanently receive an absentee ballot at each election. Absentee ballots would also be counted so long as they're postmarked by Election Day instead of only those that officials receive by Election Day. Additionally, when absentee mail ballots have a problem with the voter's signature missing or not appearing to match the one on file, officials will be required to contact the voter to confirm their identity so that they aren't disenfranchised.
Voters who have to cast a provisional ballot would also get a vote on all races in their jurisdiction instead of just federal contests. As well, the bill would codify into law the option for counties to adopt vote centers where any voter can cast a ballot instead of traditional local polling places.
Finally, this lengthy bill dropped one provision that would have enabled 17-year-olds to vote in primary elections so long as they turn 18 by the general election, a policy that more than a dozen states have adopted. However, because another bill failed to pass this session that would have required general elections even if a candidate for local office won a majority in the primary, legislators may have been concerned that 17-year-olds could vote in contests that determined the winner outright.
● Arizona: After taking an extra month to approve a new budget, Arizona Republicans have finally adjourned this year's legislative session, passing two bills with election-related provisions and failing to pass one other.
Republicans were unable to advance a bill that would have added criminal penalties to certain voter registration activities. This legislation would have made it a misdemeanor to pay someone based on the number of people they sign up to vote. It also contained other provisions that likely would have seriously hindered the ability of civic groups to conduct registration drives and deterred them from doing them entirely.
Nevertheless, Republicans did pass a bill to add restrictions to the ballot initiative process by requiring non-Arizona residents paid for working to circulate ballot petition signatures to register with the state under penalty of criminal prosecution if they don't. However, Republicans dropped one power-grabbing provision that would have given the GOP state attorney general the final say over the wording of measures on the ballot instead of the secretary of state after Democrats won the latter office in 2018.
Republicans also passed a provision in the state budget that undermines Democratic Secretary of State Katie Hobbs' office by slashing $1.4 million for election security from her budget, which was already millions below what she and county election officials had requested for general election administration needs. Instead, they directed $500,000 to Republican Attorney General Mark Brnovich's office to create a voter fraud investigative unit, something ripe for abuse to be used to stoke unfounded fears of nearly nonexistent voter fraud. Republican Gov. Doug Ducey is poised to sign the budget into law.
● Michigan: Shortly after Democratic state Attorney General Dana Nessel issued a legal opinion last week concluding that a law restricting ballot initiatives that Republicans passed in last year's lame-duck session is unconstitutional, voting rights groups filed a lawsuit in state court to block the state from enforcing the new restrictions. While Nessel's opinion is binding on state officials, it could be either overturned by a court or upheld and given the force of law throughout the state, which is why opponents of the restrictions are aiming to permanently resolve the issue
The law in question blocks any initiative campaign from having more than 15% of its petition signers live in any one of Michigan's 14 congressional districts, which would disproportionately hinder liberal organizers, since the GOP gerrymandered the congressional map to pack Democratic voters into just five districts. Nessel had deemed this provision unconstitutional, along with one that requires noting on petitions if petition circulators are paid or volunteers.
● Louisiana: On Friday, a federal district court judge denied Republicans' motion to dismiss a lawsuit challenging their 2011 congressional gerrymander for failing to draw a second district protected by the Voting Rights Act where black voters could elect their preferred candidates, meaning the lawsuit may proceed. As we illustrated with hypothetical maps back when this case was filed a year ago, it should be quite feasible to argue the VRA does indeed require such a second district out of six be drawn in a state that is roughly one-third black, but this case still has yet to reach trial.
● Michigan, Ohio: Last week, the Supreme Court temporarily stayed two lower court rulings that struck down Republican gerrymanders in Michigan (both congressional and legislative) and Ohio (congressional only) pending GOP appeals. This outcome was expected, since the Supreme Court is poised to rule in two other gerrymandering cases in Maryland and North Carolina later in June. The outcome of those two cases will likely determine what course the Supreme Court will take on lawsuits elsewhere that challenge partisan gerrymandering, including the two in Michigan and Ohio.
● D.C. Statehood: House Democrats have announced they will hold a committee hearing on July 24 on a bill to grant Washington, D.C. statehood, symbolically numbered H.R.51 for the 51st state. Furthermore, Majority Leader Steny Hoyer, who is the second-highest-ranking House Democrat, finally endorsed statehood after being the lone Democratic holdout in the D.C. area. With Democratic leadership now firmly supportive of the bill and the number of cosponsors close to the majority mark, there's a good chance the House passes this bill for the first time ever.
● Texas: A bill that had cleared Texas' Republican-controlled state Senate with almost unanimous support with a provision requiring voting machines to have a paper trail by 2024 failed to pass out of conference committee after House Republicans passed a different bill. This failure comes after Republicans earlier this year had taken a separate bill to require paper ballots and added a trove of unrelated voter restrictions. While that voter suppression effort ultimately failed to pass, lawmakers won't have another chance to require machines with a paper trail until at least 2021, because Texas is one of just four states that only holds legislative sessions once every two years.
● Georgia: On Thursday, a federal district court denied Georgia Republicans' motion to dismiss a lawsuit challenging several aspects of the state's election administration for restricting the right to vote. The lawsuit, brought by Democrat Stacey Abrams and her Fair Fight Action group, is aiming to stop officials from purging voter registration rolls, throwing out valid absentee ballots, closing polling places, and using insecure voting machines, all of which the plaintiffs contend have had a disproportionately negative impact on voters of color.
● North Carolina: North Carolina's Republican-majority legislature has passed a bill with near-unanimous support to give colleges and universities more time to prepare their student IDs so they can qualify as valid forms of identification when the GOP's new voter ID law kicks in next spring. Additionally, the bill gives county election boards more flexibility for determining when and where to offer early voting for municipal elections in odd-numbered years.
Both of these changes are likely intended to avoid yet another lawsuit, and Democratic Gov. Roy Cooper is expected to soon sign the bill. However, the bill doesn't restore the same early voting flexibility to even-numbered years, when federal, state, and some major local elections (such as Charlotte's mayoral race) take place. It also fails to restore early voting on the last Saturday prior to Election Day, which Republicans cut prior to the 2018 elections.
● Texas: Republican Secretary of State David Whitley resigned on Monday just before the close of Texas' legislative session after Democrats successfully denied the GOP the two-thirds supermajority needed to confirm him permanently.
Whitley's resignation represents the final fallout from his attempt to purge voters from the rolls earlier this year by using faulty data indicating that these voters weren't actually citizens. Whitley drew widespread outcry—and three lawsuits—after improperly flagging 98,000 registered voters as potential non-citizens, news which of Donald Trump, GOP Gov. Greg Abbott, and national Republicans quickly blasted out to stoke unfounded fears of voter fraud.
In reality, that list was entirely flawed and included tens of thousands who had become naturalized citizens or were already citizens to begin with, and Whitley's purge was blocked in court. Abbott, however, will get to appoint another acting secretary who will serve until facing state Senate confirmation in the 2021 legislative session.
● Colorado: Democratic Gov. Jared Polis signed a law 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.
Correction: This post has been updated to remove reference to a Nevada law that would guarantee the right to vote if voters are still waiting in line when polls close. This protection already exists under state law; the provision in question simply clarified that it also applies to those who vote early, those who cast ballots at county-wide “vote centers” rather than their traditional polling places, and those still needing to register.