● 2020 Census: The Trump administration has given whiplash to those watching its efforts to add a question on citizenship status to the 2020 census by first telling federal courts last week that it would go ahead and print millions of census forms without the question only for Trump to tweet within days that he would still pursue the addition of the question. Shortly afterward, the Justice Department announced on Sunday that it was removing the entire team of lawyers involved in the case and bringing on new attorneys.
These latest developments raise significant questions that impugn the integrity of the Justice Department and the administration, but as has been the case throughout this lawsuit, it's unclear if the lies Trump officials told the courts will matter to Chief Justice John Roberts.
Last month, Roberts left open the door to allowing the question, even though in his decision last month he temporarily blocked it because he deemed Commerce Secretary Wilbur Ross' stated justification "contrived" and pretextual. Many experts viewed Roberts' ruling as instructing Trump to come up with a better—but assuredly still bogus—rationale that offers the chief justice plausible deniability to green-light the question.
However, Trump's bumbling response to the Supreme Court's ruling and the ever-shifting statements members of his administration have given to the courts suggest they're incapable of manufacturing a lie professional enough to pass muster with Roberts. Of course, counting on Roberts to put what's left of his integrity ahead of aiding the Republican Party is not a bet any defenders of a fair census would want to take.
Trump now says he's considering an executive order mandating that the Census Bureau add the question, but lower court orders remain in place barring the question, meaning only court action can authorize the question.
One telling indicator that Trump's legal efforts are in trouble is the attempted wholesale replacement of the Justice Department's original team with attorneys from divisions of that have nothing to do with the census, such as consumer protection and immigration law. (As an aside, it is in fact illegal to use privacy-protected census responses to enforce immigration law.) Many legal experts were alarmed that this move signaled Trump and Attorney General William Barr had directed career DOJ attorneys to violate their ethical obligation—and when they wouldn't, they swapped in political appointees with no such qualms.
Consequently, Judge Jesse Furman, who is overseeing one of the lawsuits over the census in a federal court in Maryland, issued a scathing order that denied the administration's attempt to wholesale sack and replace its legal team without "satisfactory reasons." Excoriating the Trump administration for attempting to replace attorneys who most likely balked at violating legal ethics, Furman ordered the attorneys wishing to withdraw to sign a sworn affidavit providing such a satisfactory reason, the answer to which could only reasonably be, "We don't want to tell demonstrable lies."
And violate legal ethics is what the Justice Department's attorneys would have to do if they still want to add the question at this date. The key problem for Trump is that his administration has repeatedly told the courts that there was a hard, no-exceptions June 30 deadline for printing next year's census forms. That claim was the basis of the expedited judicial proceedings that saw the Supreme Court hear oral arguments in April on a rushed basis, which didn't leave enough time for the lower courts to weigh the question of intentional discrimination raised by the files of a deceased Republican operative.
But as Trump's latest actions and even the testimony of Census Bureau officials have made clear, that deadline was a lie. Indeed, one bureau official testified under oath that, with additional funding, that printing could be delayed to as late as October, which would give the lower courts time to adjudicate the issue of intentional discrimination and provide the plaintiffs with another avenue to try to block the question's addition no matter what pretext Trump comes up with this time.
For the administration to now argue in court that it should be given additional time to tell the judiciary its true motive—or concoct a new motive entirely after the fact, which would be the very definition of a pretext—it would make a mockery of the rule of law. But as has long been the case when it comes to the Supreme Court, the fate of the battle over the census citizenship question relies on whether John Roberts is willing to upend the foundations of the legal system to advance the GOP's agenda or is tempered by the blowback such crude partisanship would do to undermine the court's reputation.
Voter Registration and Voting Access
● Delaware: Democratic Gov. John Carney has signed a new law that, starting in 2022, will allow Delawareans to vote early for at least 10 days prior to every election, including the last weekend before Election Day. Delaware currently has no early voting and requires an excuse to vote absentee, so this change will make it much easier to vote for those who don't have the ability to do so on Election Day.
However, Democrats adjourned this year's legislative session without passing a bill to allow same-day voter registration. It's unclear if that proposal failed to advance because legislators thought it would require a constitutional amendment (Democrats lack the necessary two-thirds supermajorities without Republican backing) or if there simply wasn't majority support. Republican state senators also denied Democrats the supermajority needed to pass an amendment enabling excuse-free absentee voting, which passed the state House near-unanimously.
● Oregon: Shortly before adjourning this year's legislative session, Oregon Democrats passed a bill almost entirely along party lines that would have the state prepay the cost of postage on all mail ballots starting in 2020, which Democratic Gov. Kate Brown has previously advocated for. Given that almost everyone in Oregon votes by mail, this will make voting even more convenient and could increase participation.
● Wisconsin: In an expected development, the federal district court overseeing the lawsuit over the Republican gerrymander of Wisconsin's state Assembly has dismissed the case after the Supreme Court blocked all future challenges to partisan gerrymandering in federal court last month.
● Florida: The plaintiffs challenging the Florida GOP's previous ban on early voting locations on college campuses have amended their lawsuit to block Republicans' latest attempt to revive that ban. In 2018, a federal court temporarily blocked a rule imposed in 2014 by former Republican Gov. Rick Scott that outright barred early voting at colleges, enabling nearly 60,000 voters to cast ballots at 11 early voting centers on campuses across the state in last November's elections
In response to that ruling, Republicans enacted a new law last month that seeks to once again block early voting on campus in all but name by imposing an onerous requirement that all early voting locations "provide sufficient nonpermitted parking to accommodate the anticipated amount of voters," which the plaintiffs 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.
The plaintiffs argue in their latest filing that the GOP's codification of this parking requirement and Republican Secretary of State Laurel Lee's attempts to enforce the ban administratively directly contradicts the court's 2018 order that blocked the earlier ban, which had been justified based on supposedly insufficient parking. As a result, they're petitioning the court to permanently bar Lee from enforcing the ban on college campus early voting via any discriminatory means, such as this latest parking requirement.
● Pennsylvania: Democratic Gov. Tom Wolf has vetoed an election funding bill that Republicans took hostage by adding on an unrelated repeal of Pennsylvania's straight-ticket voting option. Thanks especially to Pennsylvania lacking early voting or excuse-free absentee voting, eliminating the straight-ticket option would likely have exacerbated voting lines on Election Day, disproportionately so in places like heavily black neighborhoods of Philadelphia and other cities.
Wolf had requested $90 million in funding for counties to replace their voting machines with methods that produce a paper trail, in order to comply with an executive order to upgrade voting equipment that Wolf issued last year. In order to prevent budget-limited counties from bearing the brunt of these new expenditures, Wolf is attempting to find a workaround by approving a $90 million bond, paid out by Pennsylvania's Department of State, to cover 60% of the estimated $150 million cost imposed on counties.
● Florida: Following Florida Republicans' recent enactment of a poll tax on citizens who've served their felony sentences but still have outstanding debts, no fewer than four lawsuits have been filed in federal court challenging the legislation as unconstitutional and discriminatory against black voters. The first three cases, brought by a wide array of plaintiffs with the backing of civil rights groups such as the ACLU, NAACP, and Campaign Legal Center, have already been consolidated into a single set of proceedings; a fourth lawsuit has also been filed by the Southern Poverty Law Center.
However, federal court isn't the only venue where opponents of this poll tax are fighting back. Hillsborough County State Attorney Andrew Warren, a Democrat, said his office is looking into creating a "rocket docket" that would allow judges to speedily waive outstanding fines and fees for those eligible to have their rights restored. Hillsborough County is home to Tampa and just under 7% of the state's population, but if it proves successful, Warren's proposal could gain popularity in other Democratic-run counties.
Meanwhile, activists are not giving up on their efforts to ensure people who have completed their felony sentences can regain their right to vote. The Florida Rights Restoration Coalition, which was behind the 2018 ballot initiative to end the post-sentence lifetime voting ban for everyone not convicted of murder or felony sexual offenses, has started an effort called We Got the Vote to raise an initial $3 million to go toward paying off outstanding fines and fees. That number is orders of magnitude smaller than the potential billions in total payments owed, though it's unclear what the typical debt is, so it's possible that this sum could help restore voting rights for a sizable number of people.
● Netroots Nation: The Daily Kos Elections team is heading to Philadelphia, PA, this week for Netroots Nation, the annual progressive conference, and we’ll have two panels this year!
Our first event will be on Thursday at 2:30 PM ET and will feature redistricting practitioners discussing the lessons they've learned from participating in the process to draw fair maps for courts or commissions, and where reform efforts will head now that the Supreme Court has refused to limit gerrymandering.
The panel will feature Daily Kos’ Stephen Wolf and Carolyn Fiddler, who will be joined by Princeton University's Sam Wang, California redistricting commissioner Maria Blanco, and the Campaign Legal Center's Christopher Lamar.
Our second event will be on Friday at 1:30 PM ET, where we’ll be hosting our traditional elections Q&A panel. We dispense with the PowerPoints and proceed directly to questions from the audience about the races they're most interested in. And the great news is, if you can't attend in person, you can watch our livestream, which we’ll be crossposting at our Facebook page. We'll also be taking questions online, so please join us.
This panel will feature Wolf and Jeff Singer from Daily Kos, and they’ll be joined by the National Democratic Redistricting Committee’s Claire Low, Sister District’s Lala Wu, and longtime Daily Kos Elections contributing editor Arjun Jaikumar.
If you’re a regular reader, please come say hello after our panels. See you in Philly!