A note to our readers: The Voting Rights Roundup will be taking next week off. We'll resume publishing in two weeks.
● Supreme Court: On Thursday, the Supreme Court's Republican majority dealt a historic defeat to redistricting reformers when it ruled 5-4 that challenges to partisan gerrymandering could not be adjudicated under the U.S. Constitution, pushing the next battles over these maps to the states. Immediately afterward, in a fractured opinion, the court punted on whether the Trump administration could weaponize the census against Democrats and voters of color, sending the case back to the administration to come up with a new justification for adding the question.
By blocking any federal court limits on partisan gerrymandering, the Supreme Court has now opened up the floodgates for a wave of even more extreme gerrymandering. As a result, the court has given its blessing to a system that has disproportionately allowed Republicans to lock in enduring advantages at both the federal and state levels. Furthermore, it may also undermine challenges to districts that discriminate by race by allowing mapmakers to claim partisanship as a defense.
In the census case, smoking-gun documents revealed the citizenship question is designed to undermine the representation of Democrats and people of color in redistricting, but the Supreme Court has by no means foreclosed the possibility of ultimately allowing it. Instead, the court's Republican justices have set up a second fight over whether the Trump administration can come up with a better rationale for adding it—one that gives Chief Justice John Roberts, who has always been concerned with his personal reputation and that of the court, a stronger veneer of plausible deniability that he isn't eviscerating the rule of law in a plot to entrench permanent Republican rule.
Below, in separate items, we examine each of these cases and their ramifications in-depth.
Supreme Court Cases
● Redistricting: The two Supreme Court cases under review dealt with congressional maps from a pair of states: a Democratic gerrymander in Maryland and a Republican gerrymander in North Carolina. Holding that there was no workable standard to determine when such maps go too far despite smoking gun admissions from the offending parties, the Supreme Court's partisan Republican majority overturned two lower court decisions that had thrown out both maps last year.
The Supreme Court had repeatedly held since the 1980s that partisan gerrymandering could theoretically violate the Constitution but had never actually invalidated any particular map on such grounds, saying it lacked a standard to decide when to do so. The district courts that heard both cases were nevertheless able to come up with a set of applicable standards and struck down both maps in 2018, but the Supreme Court's reversal of those rulings precludes any further challenges to partisan gerrymandering under the U.S. Constitution.
In swing-state North Carolina, Republicans had gerrymandered the congressional map after their original lines were struck down in 2016 for illegally diminishing the power of black voters. In putting together a remedial plan, Republicans explicitly said they designed their new map to elect 10 Republicans and just three Democrats, explaining they did not press their advantage further only because they did not believe it was possible to draw such a map. State Rep. David Lewis even stated unequivocally that the map was a "political gerrymander" as part of the GOP's legal strategy to stave off new accusations of racial gerrymandering, which had doomed its previous map.
This naked admission might have insulated Republicans from further charges of diluting black voting rights, but it exposed them to attack on a new front: that their map violated the 14th Amendment’s guarantee of equal protection. Plaintiffs challenged the new lines on these grounds, and a federal court struck down the GOP’s map after finding it had intentionally discriminated against the minority party (that is, the Democrats), creating a durable effect that continually penalized it with no legitimate justification for doing so.
Maryland Republicans chose a different tactic, relying strictly on the First Amendment to argue that gerrymandering had violated Republican voters' right to freedom of association in the state’s 6th District by illegally retaliating against them based on their partisan affiliation. Former Democratic Gov. Martin O'Malley, who approved Democrats’ plan to flip the 6th from red to blue, admitted under oath that the map had indeed been drawn to secure a partisan advantage, and a federal district court ruled it unconstitutional.
The Maryland plaintiffs went in a different direction than those in North Carolina because, in a 2004 ruling, former Justice Anthony Kennedy had rejected a previous challenge that centered its argument on an equal protection challenge. However, in the same case, he hinted that he would be open to a standard for policing partisan gerrymanders based on the First Amendment.
That strategy was ultimately doomed to failure, though, after Kennedy was replaced by hardline conservative Justice Brett Kavanaugh last year. The damage will be felt beyond just North Carolina and Maryland, though: While waiting for a resolution to this case, lower federal courts had struck down Republican gerrymanders in Michigan, Ohio, and Wisconsin under standards similar to those relied on in North Carolina. These rulings will soon be swiftly overturned.
But this isn't the end of the line for court cases against partisan gerrymandering: Plaintiffs will have to pursue them at the state level and argue them under protections contained in state constitutions, which almost universally guarantee the right to vote.
That’s precisely the approach Democrats took in Pennsylvania last year, with great success. After gaining a majority on Pennsylvania's Supreme Court, Democrats attacked the GOP's extreme congressional gerrymander under the state constitution. The court replaced the map with fairer lines that led to a much more equitable partisan balance in the state’s House delegation following the 2018 midterms.
The same outcome is also likely in North Carolina, where the Democratic-majority Supreme Court appears poised to follow suit by striking down the GOP's legislative gerrymanders. Any state with a progressive-oriented supreme court could likewise follow the same path.
Democrats will also need to wage this fight at the ballot box. Democrats can block future gerrymanders by winning key governorships and state legislative chambers, and they can also put forward ballot initiatives to ban gerrymandering, as they have in several states. Lastly, House Democrats passed the For the People Act in March, which would reform congressional redistricting nationally. Mitch McConnell has sneered that he’ll never bring the bill up for a vote, but a future Democratic president and Senate could pass it into law.
The Supreme Court could have chosen to strike a vital blow in the battle to rein in partisan gerrymandering, but they did the opposite on Thursday. But the fight isn't over, and proponents of fair maps still have avenues to fight back.
● 2020 Census: The Supreme Court temporarily blocked the Trump administration from adding a question to the 2020 census asking U.S. residents about their citizenship status, but this ruling's reprieve is far from the end of the line. Not only did Donald Trump threaten to illegally delay the census if he doesn’t get his way, but the court itself also left open the possibility of allowing the question.
Although the Census Bureau had planned to print millions of census forms by a June 30 deadline, plaintiffs argued that it could delay printing until October to give the courts time to resolve the case. Now the case will go back to the federal district court in New York that originally heard the matter. That should allow the judge to conduct an in-depth review of the new evidence and craft a ruling that addresses the Trump administration's racial and partisan animus.
However, it will also give the Trump administration, specifically Commerce Secretary Wilbur Ross, a chance to come up with a justification for adding the question that isn't pretextual, as his original claim that the bureau needed the information to enforce the Voting Rights Act so blatantly was. In their decision, Chief Justice John Roberts and his fellow Republican justices didn't foreclose the possibility that Ross could come up with a satisfactory answer.
If Ross flip-flops on his stated reasoning, though, House Democrats could hold him accountable for the sworn statement he previously gave Congress, in which he claimed VRA compliance was the reason behind including the question. Members of the Trump administration, however, have shown little fear of defying or even lying to Congress.
We can also expect another Republican flip-flop: The administration had told the courts that that June 30 deadline was inflexible, but following this ruling, the Census Bureau likely will not begin printing forms by the end of the month. Instead, Ross will likely now claim that the bureau can wait as long as necessary for the case to be resolved.
If Trump is ultimately successful, this question on citizenship would likely have a chilling effect, intimidating millions of people in immigrant communities into not participating in the census. That in turn would turbocharge a new wave of hyperpartisan Republican gerrymandering nationwide, since census data is the bedrock of redistricting.
And turbocharged gerrymandering in fact was the entire rationale behind this question: In a recent bombshell report, based on newly unearthed documents from a deceased GOP political consultant, Thomas Hofeller, Republicans admitted that rigging the census would eviscerate the political power of Democrats and voters of color.
The Constitution mandates that every person in the U.S. be counted in the decennial census, without regard to their legal status. A question on citizenship hasn't been included in the census since 1950, and even when it has appeared, it has never been asked of every single participant, as the Trump administration still intends for 2020. Furthermore, multiple lower courts had ruled that Secretary Ross' attempt to add the question violated both federal law and the Constitution.
Those courts uniformly dismissed Ross' claim that the Justice Department needed data on citizenship to enforce the Voting Rights Act as a bogus pretext that masked the Trump administration’s true motives. Hofeller’s document trove conclusively exposed the GOP’s actual intentions: allowing mapmakers to use citizenship statistics that would result in "a disadvantage to the Democrats" and be "advantageous to Republicans and non-Hispanic whites."
Meanwhile, the Fourth Circuit Court of Appeals just sent one of the other census lawsuits back to the district court level in Maryland to determine if the Trump administration's addition of the citizenship question was an act of intentional discrimination in violation of the 14th Amendment's Equal Protection Clause. That issue wasn't adjudicated in Thursday's Supreme Court ruling in the New York case, and the Maryland plaintiffs may be hoping it could offer separate grounds for blocking the question from the census, though the Supreme Court could yet foreclose this effort, too.
Given the blatant partisan and racial bigotry behind the GOP's plans, a ruling to permit this citizenship question would be a major blow to democracy, one on par with the harms of both 2000's Bush v. Gore decision and the 2013 ruling that crippled the Voting Rights Act. The current Supreme Court majority has demonstrated that it is committed to an agenda of permanently entrenching white Republicans in power without regard for the rule of law. The only question remaining is how willing John Roberts is to risk being seen as the nakedly partisan operative that he is.
● Florida: Floridians voted in favor of a constitutional amendment to restore voting rights for as many as 1.4 million citizens who had fully completed their felony sentences by a 65-35 landslide last year, but on Friday, Republican Gov. Ron DeSantis signed a new law that will keep the vast majority of those citizens disenfranchised and that also effectively bans early voting on many college campuses. Republicans also recently passed another law to stymie similar ballot initiatives in the future that DeSantis has already signed.
To thwart the will of Florida voters, Republicans are imposing a measure straight out of the Jim Crow playbook: poll taxes. This new law would require the payment of all court-ordered restitution as well as any court-related fines or fees before voters can regain their rights.
Florida's felony disenfranchisement system itself is a remnant of Jim Crow: It was given its modern form shortly after the Civil War as part of a series of changes intended to disempower black citizens in a state that was nearly one-half black at the time. Before 2018's ballot initiative passed, the Sentencing Project estimated that one in ten Floridians were disenfranchised, including one in five black voters—five times the rate of those who aren't black.
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. Indeed, a recent report found that Florida overall levied $1 billion in fines and fees from just October 2017 to September 2018. Even worse, the new law mandates the payment of fines that have been converted into civil liens, meaning that some who have paid all of their criminal penalties still won’t win back the right to vote.
Those who’ve served felony sentences could still regain their rights if a judge converts such debts into community service hours or if the owed party waives it, but one former judge told the Miami Herald that if the hundreds of thousands of affected Floridians apply for such waivers, it would create a massive backlog in the justice system.
By demanding that citizens pay all court fines and fees, Republicans could effectively roll back most of the 2018 amendment. It's unclear just how many people would have had their rights restored by the new amendment, but one analysis estimates Republicans' actions could keep roughly four-fifths of them from voting—keeping up to 1.1 million more people permanently disenfranchised—all because they're too poor to pay court costs. Black defendants in particular are considerably less likely to be able to pay off all their court costs than white defendants, according to one study.
And the public could have a harder time determining the true impact of this disenfranchisement scheme because DeSantis and legislators from both parties also passed another new law that makes the felony conviction status of registered voters private, even though voter registrations are public records. Some voting rights advocates, including the Brennan Center and Desmond Meade, who played a key role in passing the rights restoration amendment, favored this change to protect the privacy of people with felony convictions, but others called it unhelpful since arrest and release records remain public.
Nevertheless, researchers will still be able to match many—but not all—of those records and track some registrations of people with past convictions. However, it could make it harder to have comprehensive demographic data to accurately assess things like the discriminatory impact of the GOP's poll tax, since officials reportedly aren’t required to disclose demographic statistics on the number of people with felony convictions who register to vote if they don't compile them.
As bad as this poll tax is, Florida Republicans didn’t stop there. Last year, Republicans lost a still-ongoing lawsuit that overturned their 2014 ban on early voting sites on college campuses, but they also snuck a little-noticed provision into the poll tax legislation that would effectively reinstate that ban.
The measure in question requires all early voting locations to "provide sufficient nonpermitted parking to accommodate the anticipated amount of voters," which plaintiffs in the early voting case say is specifically targeted at campuses. That's because most schools require permits for parking and often face parking shortages; according to plaintiffs, this new law would preclude "nearly all college and university campuses" from hosting early voting sites.
After the original ban was struck down, some 60,000 voters cast ballots early on college campuses in 2018. Priorities USA, the Democratic super PAC that brought the successful lawsuit against the ban, has vowed to file a new suit to challenge this latest attempt to suppress the vote of students, who typically lean toward the Democratic Party. A separate lawsuit over the poll tax on people with felony convictions is also likely.
Voting rights advocates such as the ACLU, which played a major role in supporting the 2018 rights restoration measure, have condemned the GOP's efforts, and the ACLU almost immediately filed a federal lawsuit to block the poll tax. However, the U.S. Supreme Court's dismal record on voting rights under Chief Justice John Roberts, who gutted the Voting Rights Act, isn't encouraging for the prospects of a federal suit. At the state level, because DeSantis won last year's election for governor—potentially thanks to felony disenfranchisement—by just 32,000 votes out of 8 million cast, he was able to fill several vacancies on the Florida Supreme Court. Republicans now hold a 6-1 majority, making a state court lawsuit unlikely to succeed, too.
Of course, Florida Republicans also took additional steps to undermine democracy by enacting a separate law to limit the ballot initiative process itself in an effort to thwart future voting rights measures from passing. This law imposes restrictions on paying petition-gatherers per signature instead of hourly and will further require the disclosure of a campaign's proportion of out-of-state funding, a figure that would appear on the ballot itself.
Combined, these provisions are intended to undermine the ability of national civil rights groups such as the ACLU to support initiatives like 2018's voting rights amendment. Florida already requires 60% voter approval for an initiative to pass, one of the highest such thresholds in the country, and these additional restrictions will likely make the initiative process prohibitively difficult for many causes.
While direct democracy has its drawbacks, it has nevertheless been a vital tool in fighting back against the Republican voter suppression and gerrymandering. Republican efforts to roll back direct democracy is therefore an effort to undermine representative democracy, too.
Voter Registration and Voting Access
● Hawaii: On Tuesday, Democratic Gov. David Ige signed a new law that will make Hawaii the latest to adopt a universal vote-by-mail system, starting with the 2020 elections. Every registered voter will be mailed a ballot, including prepaid postage, and voters will be able to either return them by mail or drop them off in person. Mail ballots must be received by election officials on Election Day.
The measure also eliminates traditional polling places and will enable those who wish to vote in person to cast their ballots at any of the "vote centers" within their home county. Combined, these provisions will make it even easier to cast a ballot, and they could also help boost Hawaii's low turnout rate as well as save money by reducing the cost of staffing traditional polling places.
● Turnout: Writing in The New York Times to summarize their recent paper, scholars Charlotte Hill and Jacob Grumbach have looked at the impact of same-day voter registration laws, which let voters register at the same time they cast a ballot, concluding that the policy is one of the most effective ways to improve voter turnout.
The study relied on the Census Bureau's Current Population Survey Voter Supplement, which is a large-scale statistical sample of the country. The researchers compared voters in states that do allow same-day registration with demographically similar Americans living in states that do not.
The analysis shows that same-day registration laws would increase turnout in a presidential electorate, something consistent with other studies, and it specifically finds the largest increase among young voters. The authors lay out the ways in which registration laws disproportionately burden younger people, since they are much more likely to change addresses and thus have to re-register each time.
In particular, the study estimates that presidential turnout among those aged 18 to 24, typically the lowest-turnout group, could surge from 30% to as much as 40% with same-day registration. While older voters would be more likely to turn out, too, the share of the electorate that is over 35 years old could fall by more than 2%. Consequently, the authors conclude that turnout would become more demographically reflective of the citizenry along the lines of age, race, and income, in turn making it more Democratic.
Looking specifically at Michigan in 2016, which Donald Trump won by just shy of 11,000 votes, Hill and Grumbach conclude that same-day registration would have flipped the state to Hillary Clinton by producing a net gain of 90,000 Democratic votes. Michigan voters recently enacted same-day registration by ballot initiative in 2018, so the researchers will be able to re-evaluate their analysis after the 2020 elections to estimate its impact there.
While expanding access to voting often becomes a partisan battle against GOP opposition, some Republicans have been open to same-day registration. Utah Republicans passed the policy in 2018, and it remains the law in other red states such as Idaho. Deeply conservative North Dakota, meanwhile, is the lone state in the country that doesn't even require registration: Citizens simply have to prove their identity and swear that they're eligible. Nevertheless, voter impersonation fraud is still practically nonexistent.
Still, most of the recent action to expand same-day registration has come from Democrats. Just this year, states with Democratic-run governments such as Nevada and New Mexico both passed same-day registration into law. New York Democrats also passed the policy but will have to pass it again in 2021 and win a 2022 referendum to amend their constitution. Similarly, Maryland Democrats also implemented a voter-approved same-day registration law.
Nevertheless, a number of states where Democrats hold power have yet to pass same-day registration. That includes states where they have full control of government—specifically Delaware, New Jersey, Oregon, and Rhode Island—and also Massachusetts, where they have veto-proof majorities with a Republican governor (who, in any event, previously signed automatic registration into law). Furthermore, several other states could follow Michigan's lead and use ballot initiatives to circumvent GOP hostility, including Arizona, Florida, Missouri, and Ohio.
Voter registration is one of the most formidable barriers to voter turnout, and it's that way by design: Registration laws arose in the mid-1800s largely as a way for the nation's Anglo-Saxon Protestant elite to disenfranchise America's burgeoning working class, including waves of Catholic immigrants from Ireland and elsewhere. Such laws were later a staple of Jim Crow efforts to bar African Americans from voting by making it much more difficult for black voters to register than for whites.
Making registration both automatic and as easy as possible, which is the norm in many other industrialized democracies, will both help undo this legacy and improve turnout. With Senate Republicans blocking House Democrats' efforts to pass a national same-day registration, states now have the chief role to play in implementing this key reform.
● Congress: On Thursday, House Democrats unanimously voted to pass a sweeping election security bill over the opposition of all but one Republican, southeast Florida Rep. Brian Mast. The Democrats' bill would allocate $600 million for states to update their voting equipment ahead of 2020 to replace any non-compliant voting machines with those that produce a voter-verifiable paper trail to protect against hacking threats and enable wide-scale audits.
However, Donald Trump has welcomed a repeat of foreign interference into American elections, just as he did in 2016 when the Russian government tried to compromise several state election systems and successfully hacked Democratic Party organization emails in 2016. Trump even recently said he would consider using opposition research against an opponent given freely to him by a foreign government. Such an action would represent a criminal violation of campaign finance law, which prohibit candidates from taking "anything of value" from a foreign citizen without paying a fair market value—if such a thing could even be determined for potentially hacked material.
Unsurprisingly, Senate Majority Leader Mitch McConnell has vowed to not even hold a vote on the bill, all but guaranteeing that key election systems will remain vulnerable to another round of hacking by Russia or other hostile governments.
● Pennsylvania: Last year, Democratic Gov. Tom Wolf took unilateral executive action to require that all counties switch to voting methods that produce a paper trail ahead of the 2020 elections in an effort to protect against hacking threats. However, Republican legislators have taken these security upgrades hostage by passing a bill that would provide millions in extra funding but would also repeal the state's straight-ticket voting option.
As we've previously explained, banning straight-ticket voting could lead to much longer lines on Election Day that disproportionately affect black voters, especially since Pennsylvania doesn't allow in-person early voting and requires an excuse to vote absentee. Democratic Gov. Tom Wolf could veto the new legislation, but of course doing so would deny (or at least delay) funding for new voting equipment for cash-strapped local governments.
Separately, the bill includes a bipartisan provision to extend the deadline for absentee ballots to be received by election officials to the Tuesday following Election Day as long as they are postmarked by the Friday before Election Day. However, that provision is limited in scope given that excuses are still required for absentee voting.
● North Carolina: Following a state court ruling that struck down four state House districts in Wake County, home to the state capital of Raleigh, North Carolina's Republican-run legislature has now passed a new bipartisan law that reverts the map back to the one a separate federal court had unsuccessfully tried to impose in early 2018. However, as we'll explain below, it's possible that those districts may not even come into effect thanks to another ongoing case in state court.
North Carolina's never-ending litigation over redistricting saw the GOP's 2011 gerrymander get struck down in 2016 for racial discrimination, but when Republican legislators redrew those districts in 2017, they also took the opportunity to redraw several districts in Wake County that did not need to be redrawn to remediate the map's discriminatory districts. Since North Carolina's constitution bans mid-decade redistricting and can only be overridden by a court order, a federal court blocked the GOP's new map in Wake County and drew its own lines.
However, Republicans appealed to the Supreme Court, which said that the federal judiciary had no role enforcing the state's mid-decade redistricting ban and partially reversed the lower court's ruling in early 2018. Subsequently, plaintiffs sued and prevailed in state court late last year.
Consequently, the map legislators just passed would change the four districts in question back to their 2011 configurations. However, while that may make some of those districts more favorable to Democrats, who ironically ended up sweeping every seat in the county under the illegal map anyway in 2018, they're still part of a broader Republican gerrymander.
Democratic plaintiffs are challenging the GOP's partisan gerrymanders in both legislative chambers in a separate case that is likely to make its way to the state Supreme Court. There's a good chance that North Carolina's high court follows the lead of its counterpart in Pennsylvania, which struck down the GOP's congressional gerrymander in 2018 under the state constitution in a way that was insulated from federal review. If something similar happens in North Carolina, it's possible that some of these same Wake County districts will take on yet another shape for 2020.
● Arizona: A federal district court has rejected a lawsuit seeking to require a special election for the remainder of the late John McCain's Senate term prior to the regularly scheduled 2020 elections. The challengers argued that the Constitution's 17th Amendment requiring direct elections for the Senate also meant that Republican Gov. Doug Ducey couldn't appoint GOP Sen. Martha McSally to serve for nearly two years without facing the voters, but the court ruled that the Constitution does not necessitate holding a standalone election sooner.
Editor’s Note: In a previous Voting Rights Roundup, we reported that Texas Republicans had passed a bill in the legislature to ban the use of mobile polling stations during early voting that were used to reach transportation-limited populations such as retirement homes. However, the news story we relied upon has since been taken down.
The bill Republicans actually passed, which GOP Gov. Greg Abbott subsequently signed, requires temporary polling places to be open on the same days as regular early voting polling places and to operate for at least eight hours a day in populous counties. Opponents criticized the bill by arguing that it would strain the resources of some county election offices that typically only operate such mobile polling places for part of the early period. The new law could therefore lead to them not operating such sites altogether, but the legislation doesn't outright ban these mobile polling places.
Separately, in a previous Voting Rights Roundup, we incorrectly stated that Nevada Democrats had passed a provision enabling voters to turn in their absentee ballots at any early voting location in their county; that provision was removed from the relevant bill before it became law. We also mistakenly stated that another law 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.