● Virginia: On Monday, the Supreme Court ruled 5-4 along atypical lines that Virginia Republicans lacked the ability to appeal a case that saw a lower court strike down their state House gerrymander for racial discrimination. That lower court had drawn its own nonpartisan districts instead (shown at the top of this post), and as a result, Virginia will enjoy fairer elections for the state House in this November's elections. The new maps are also more favorable to Democrats, who need to pick up just two seats this fall to win back the chamber for the first time in two decades.
With conservative Justices Clarence Thomas and Neil Gorsuch joining liberal Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg, the court's decision didn't resolve the case on the merits. However, by rejecting the GOP's right to appeal, the Supreme Court allowed the lower court’s ruling to stand.
This case centered on the GOP's use of hard-and-fast population thresholds to ensure black voters could elect their preferred candidates—that is to say, black Democrats—under the Voting Rights Act. The GOP admitted to using an arbitrary target that required every such district to have a black population of at least 55%.
However, that mark was considerably greater than what it actually takes in practice for black voters to elect their candidates of choice, because in Virginia, a sufficiently large minority of white voters will support those same candidates. But Republicans deliberately used this too-high threshold because it meant that they could pack more black voters into a smaller number of districts—and therefore reduce the black population in neighboring districts. That attempt to reduce black political power, the court found, violated the Constitution.
After a federal district court initially upheld the map, the Supreme Court vacated that decision in 2017 and told the lower court to redecide that case under a different legal standard that was more favorable to the plaintiffs. The district court subsequently struck down 11 districts in June of 2018. After Republican legislators failed to pass a replacement map, that court implemented its own nonpartisan version that redrew 25 of the chamber’s 100 districts in central and southeastern Virginia. (To remedy the unconstitutional districts, some neighboring districts also had to be adjusted.)
Daily Kos Elections has calculated the results of the 2016 presidential election and the 2017 gubernatorial election for each district on the new map, and our data indicates the GOP's 51-49 majority is highly vulnerable heading into November. Under the old lines, Hillary Clinton won just 51 seats, but under the new map, she carried 56.
And as the map at the top of this post illustrates, 11 Republicans hold districts that voted for Democrat Ralph Northam for governor two years ago. Seven of those same seats also voted for Clinton in 2016. No Democrat holds a seat that went Republican in either race, meaning Democrats have a sizable number of targets they can flip in their quest for a majority and only have to play defense in a few districts.
Thanks to their illegal gerrymander, Republicans just barely eked out a House majority despite Democratic candidates winning more votes statewide in 2017. Under the new court-ordered districts, by contrast, black voters and the Democrats they typically support will have a much greater chance to translate their votes into a more equitable share of seats. That means black voters will have their rights fully realized, boosting the chances that Virginia will turn blue this fall.
● New Hampshire: Both chambers of New Hampshire's Democratic-majority legislature have now passed a bill that would create a bipartisan advisory redistricting commission, sending the proposal to Republican Gov. Chris Sununu for his signature. As we've previously detailed, this bill is the product of a bipartisan compromise to create a new commission tasked with drawing maps that adhere to good-government and partisan fairness criteria, which the legislature could either approve or reject without amendments. Sununu has not yet said whether he will sign or veto the bill.
● Maine: On Wednesday, Maine's Democratic-majority state House held one final vote on whether to pass a bill that would add Maine's four Electoral College votes to the National Popular Vote Interstate Compact, but proponents again suffered defeat, this time by a 74-69 margin. With the legislative session coming to a close for 2019, supporters will have another chance to persuade skeptical Democrats when the legislature convenes again next year, but they may need to wait until after the 2020 elections if they can't round up enough votes before then.
Voter Registration and Voting Access
● Louisiana: Earlier this month, Louisiana's Republican-run legislature adjourned without approving an automatic voter registration bill that had passed out of committee in the state Senate. This outcome was not unexpected, however: Louisiana is unusual in that the minority party holds a majority on certain committees, including the one that had advanced this bill. Only a quarter of the Republicans on the committee sided with Democrats, though, so it was always going to face a difficult challenge before the full legislature.
● Maine: Democratic Gov. Janet Mills has signed a new law creating a system of automatic voter registration through Maine's Bureau of Motor Vehicles starting in 2022. Importantly, the new law also authorizes the secretary of state to determine whether additional state agencies are capable of implementing automatic registration, which would help expand the reach of the program beyond just eligible voters who drive.
● New York: In a major setback in the fight to improve voting access, New York's Democratic-run state legislature adjourned on Friday without passing a bill to establish automatic voter registration.
Democrats in the state Senate passed the legislation on Wednesday, but their counterparts in the Assembly failed to advance an identical bill on Thursday, claiming that a drafting error could have led to undocumented immigrants getting registered to vote. Legislative leaders have vowed fix the legislation and revive it when they next convene, but that's no guarantee that Assembly Democrats will actually pass it next time.
Democrats did, however, pass two other bills to improve voting access before they adjourned. The first would shorten New York's unusually long deadline for previously registered voters to change their party affiliation so that they can participate in their new party's primary. Under current law, voters must make such a switch by October of the year preceding the primary, even though the presidential primary will likely take place in April and primaries for state and congressional offices aren't until June.
Under the bill that legislators passed, registered voters would have until Feb. 14 each year to change their party affiliation. That would give voters much more time if they decide to switch ahead of the next year's presidential primaries, although they'd still face a four-month deadline ahead of the June primaries.
The other notable measure would require public universities and colleges to provide voter registration forms and absentee ballot request forms.
● Oregon: Democrats have advanced a bill out of a key budget subcommittee to have the state pre-pay the cost of postage on mail ballots, sending it to the full committee. Oregon votes almost entirely by mail, and while it's the policy of the U.S. Postal Service to still send mail ballots even without postage included, most voters are likely unaware of that policy.
● Pennsylvania: On Wednesday, a committee in Pennsylvania's Republican-majority state Senate voted to advance two bills: One would end the straight-ticket voting option, while the other would enable absentee voting without an excuse. Lawmakers also passed a constitutional amendment to guarantee excuse-free absentee voting. The absentee voting legislation would increase voting access in a state that is one of only a handful that both requires an excuse and also has no early voting.
However, ending the straight-ticket option would likely have the opposite effect by making voting more difficult and time-consuming. That's because the straight-ticket option saves time for voters on Election Day who want to vote only for one party, since they only need to check a single box instead of one for each of many races. And it not only offers individual voters a convenience but it can also shorten voting lines by speeding up the entire process.
Although this measure passed the Pennsylvania Senate committee unanimously, Michigan Republicans ran into legal trouble when they repeatedly tried to repeal their own straight-ticket option, since black voters were disproportionately likely to use it and thus more likely to be harmed by longer voting lines. The effect here could be similar, especially because, as we noted above, Pennsylvania does not offer early voting, which can mitigate Election Day lines. It is not yet known whether Democratic Gov. Tom Wolf would sign this measure.
● West Virginia: West Virginia's GOP-run state legislature passed a compromise with Democrats in 2016 to impose a relatively loose voter ID requirement in exchange for also creating automatic voter registration via the state's Division of Motor Vehicles, but the latter policy's implementation has been repeatedly delayed until at least 2021. Some progress is finally at hand, though: On Tuesday, the state House voted to follow the state Senate in passing a bill to authorize the secretary of state to disburse $1.5 million in funding to counties to make DMV upgrades necessary to implement automatic registration.
● Maine: Shortly before adjourning, both chambers of Maine's Democratic-run state legislature advanced two election-related bills: one to extend instant-runoff voting to general elections for president and another to establish presidential primaries, replacing the state's existing caucus system. However, the bill expanding instant-runoff voting failed to clear a final procedural hurdle, though Democrats could come back in a special session to pass it later this year; the legislation creating primaries, however, just needs Democratic Gov. Janet Mills' signature.
Maine became the first state to adopt instant-runoff voting for state and congressional elections following a 2016 ballot initiative, and it would likewise become the first to do so for presidential general elections if Democrats approve the bill in a future legislative session.
● California: Democrats have passed a constitutional amendment in a state Assembly committee to end the state's ban on voting by citizens who are on parole for a felony conviction. If both chambers of the legislature approve it, the proposed amendment would go before the voters in a 2020 referendum. If it passes, only citizens who are currently incarcerated would remain disenfranchised.
● 2020 Census: On Wednesday, federal District Court Judge George Hazel in Maryland issued an order saying the plaintiffs challenging Trump's effort to add a citizenship question to the 2020 census had raised a "substantial issue" with new bombshell evidence from the files of deceased GOP redistricting consultant Thomas Hofeller. The plaintiffs are asking Hazel to reconsider an earlier ruling in which he barred the Trump administration from adding the question because it had violated federal law but did not deem the administration's attempt to be an intentional act of racial discrimination.
It's unclear what would happen if Hazel does conclude the question is discriminatory, though plaintiffs may be hoping to preserve another avenue of attack if the Supreme Court rules later this month in a separate case out of New York that the question's inclusion doesn't violate federal statutes or the Constitution's Enumeration clause. A finding of intentional discrimination against voters of color in violation of the 14th Amendment could offer separate grounds for blocking the question from the census, though the Supreme Court could yet foreclose this effort, too.
The Maryland lawsuit is one of three in which federal judges have barred the citizenship question from appearing on census forms. The plaintiffs in the New York case have already filed a petition with the Supreme Court asking it to postpone its ruling in order to consider the Hofeller evidence.
And that pile of evidence keeps growing. The Maryland plaintiffs have discovered new documents from Hofeller's archives that explicitly link Hofeller to the Census Bureau. Those documents show Hofeller communicated about the citizenship question in 2015 with a woman named Christa Jones, who is currently the chief of staff to a top Census Bureau official. That connection directly contradicts the administration's claim that a key Hofeller study, which explained how the GOP could supercharge its gerrymandering if redistricting were based on adult citizens instead of total population, had no influence on the bureau's push to add the citizenship question to the census.
● Wisconsin: In a setback for democracy, Wisconsin's conservative state Supreme Court majority ruled 4-3 along ideological lines to uphold legislative Republicans' lame-duck power grabs that stripped powers from the state's incoming Democratic governor and attorney general following Republican defeats last November.
Plaintiffs had challenged the proceedings of the entire lame-duck session as unconstitutional, arguing that legislators lacked the authority to call such a special session themselves, but the court's conservatives rejected that argument.
Just a week earlier, the state Supreme Court had reinstated most of those power-grabbing provisions pending appeal, and with the court poised to expand to a 5-2 conservative majority in August, it will likely uphold Republican attempts to subvert the rule of law for some time to come. Nevertheless, two federal lawsuits over part of the GOP's lame-duck legislation remain ongoing, and one of those cases has already resulted in Republican cuts to early voting being temporarily blocked.
However, this latest ruling means the state Supreme Court won't stand in the way of any other major provisions of the GOP's lame-duck laws. That includes measures that strip Democratic Gov. Tony Evers of the power to appoint members to important boards and state agencies; stop him from increasing accountability over the way the state doles out tax breaks and incentives to businesses; and prevent him from banning guns in the state capitol.
Additional provisions empower the gerrymandered Republican legislative majority to intervene in lawsuits now that Evers and state Attorney General Josh Kaul are unlikely to defend the state when other GOP power grabs are challenged. That would ensure Republicans have standing to sue or appeal in any case they don’t like—and make the taxpayers pay their legal bills. Relatedly, these laws also curtail Kaul’s discretion over how to spend money from court settlements.
Progressive-leaning Judge Lisa Neubauer lost an April election to hardline conservative Judge Brian Hagedorn by just 6,000 votes, and while that loss didn't affect this case's outcome since Hagedorn won't take his seat until later this summer, it's a reminder that progressives' failure to take judicial elections as seriously as conservatives have has had deleterious consequences for Wisconsin's democratic institutions.