Leading Off
● 2020 Census: In a major victory for democracy and the rule of law last week, Donald Trump capitulated and agreed that there will be no citizenship question on the 2020 census, and a federal court permanently blocked him from adding one. Instead, Trump directed the Census Bureau to match existing administrative records with future census responses to determine citizenship status, something the Bureau had already planned on doing.
Campaign Action
However, Trump issued an executive order directing officials to produce suitable data for redistricting so that states that want to can draw new district lines based on the number of adult citizens instead of the total population, as has long been standard practice. Trump's directive lays bare the fact that the pretextual justification his administration had repeatedly told the courts—that the citizenship question was needed to enforce the Voting Rights Act—was an outright lie.
Relatedly, House Democrats voted on Wednesday to hold Commerce Secretary WIlbur Ross and Attorney General Bill Barr in contempt of Congress for their efforts to stonewall congressional oversight by refusing to turn over documents related to their attempt to add the question to the census—documents that likely would have revealed the GOP's real motives.
Trump's executive order also confirms what the recently disclosed files of deceased GOP redistricting consultant Thomas Hofeller also revealed: Their real reason for wanting citizenship data was to allow Republicans to abandon traditional redistricting practices and instead rely only on adult citizens. As Hofeller's archives made explicit, this effort was born out of a plan to deprive Democrats and Latinos of their rightful levels of representation.
The battle over citizenship data is still far from over, but opponents of Trump's efforts to weaponize the census still won a critical victory, thanks in no small part to the administration's own incompetence. Without the question on the census itself, immigrants should have less reason to be intimidated about truthfully answering the census, which could help mitigate the climate of fear Trump deliberately created by pushing to add his question in the first place.
Furthermore, there's now also a chance to stop the Census Bureau from releasing citizenship data suitable for redistricting, and Democratic presidential candidates swiftly vowed to do just that. In addition, further litigation seeking to stop the release of the data or block its use over potential inaccuracies seems all but certain.
Felony Disenfranchisement
● California: Democrats in California's state Assembly have advanced a proposed constitutional amendment out of committee that would end the disenfranchisement of all citizens who are on parole, leaving only those who are currently incarcerated for a felony conviction unable to vote. Democrats hold enough seats without needing any Republican support to attain the two-thirds supermajorities needed to put this amendment on the 2020 ballot for voter approval, so there's a good chance the full legislature will pass it.
● Florida: Miami-Dade County State Attorney Katherine Fernandez-Rundle has announced that her office is working on a plan to help mitigate the burden of the GOP's new poll tax on people who've served their felony sentences but still owe fines, fees, or restitution to crime victims. Arguing that prosecutors "should not be an obstacle for a person who has the right to vote," Fernandez-Rundle, a Democrat, says her office could work to help those who are unable to pay off fines and fees (although not restitution) by giving them an alternative such as community service hours.
Fernandez-Rundle's move comes in the wake of Hillsborough State Attorney Andrew Warren, another Democrat, announcing that his office is also looking at a way to combat the effects of the new poll tax and ensure citizens in his county can vote. Both counties are home to more than one million residents each, and altogether, Florida jurisdictions represented by Democratic state attorneys contain roughly 46% of the state's population. If these Democratic prosecutors take action to alleviate the burden of court fines and fees, they could significantly reduce the impact of this new poll tax.
Redistricting
● Connecticut: Following an appeal by Democratic Secretary of State Denise Merrill, the 2nd Circuit Court of Appeals has temporarily stayed the district court proceedings in an NAACP-backed lawsuit that argues Connecticut's state legislative districts are unconstitutional because of "prison gerrymandering," which is the practice of counting incarcerated people for redistricting purposes at their prison instead of their last address. A district court recently denied Merrill's motion to dismiss the case, a decision she's now appealing to the 2nd Circuit.
● North Carolina: On Monday, a trial began in the state-level lawsuit over North Carolina's Republican legislative gerrymanders. Importantly, the Democratic-backed plaintiffs were able to get evidence admitted from the archives of deceased Republican redistricting consultant Thomas Hofeller, which contained damning documentation that Republicans illegally and deceptively used partisan and racial data when redrawing North Carolina's maps in 2017. The case is expected to eventually reach the state Supreme Court, where Democratic justices have a 6-1 majority.
● San Juan County, UT: A three-judge panel on the 10th Circuit Court of Appeals has unanimously upheld a 2017 district court ruling that struck down the county commission and school board districts in Utah's San Juan County for violating the Voting Rights Act and redrew the maps ahead of the 2018 elections. That decision enabled voters in this small, predominantly Navajo county to elect their first-ever Navajo majorities to local government since Utah repealed its ban on voting by Native Americans living on reservations—something it did not do until 1957, making it one of the last states to do so.
However, Republican state Rep. Phil Lyman, a white county commissioner who declined to seek re-election in 2018 after his seat was redrawn, said he was likely to seek a further review by the entire 10th Circuit, adding that he would try to take the case to the Supreme Court if necessary. Lyman had previously floated the idea of the white-majority parts of San Juan County seceding and forming their own county, but such a move would require approval from state lawmakers, who failed to pass that proposal in this year's legislative session.
Voter Registration and Voting Access
● North Carolina: In the wake of last year's election fraud scheme in the 9th Congressional District committed by Republican candidate Mark Harris' campaign, legislators from both parties have passed a bill to change how absentee ballots are handled to prevent campaigns from orchestrating the type of absentee fraud that Harris' campaign did. The bill would alter the procedures for requesting absentee ballots and also add new criminal penalties for fraud. Separately, the measure would restore the last Saturday of early voting, which Republicans had previously eliminated.
● Rhode Island: Rhode Island's heavily Democratic state legislature has adjourned this year's legislative session without passing a bill to enable in-person early voting or remove the requirement that those who wish to vote absentee provide an excuse. Similar bills have died in the last several sessions in a row.
State Supreme Courts
● New Hampshire: In a surprise development, New Hampshire Democrats who control the state's unusual Executive Council have taken the rare step of vetoing Republican Gov. Chris Sununu's nomination of state Attorney General Gordon MacDonald for chief justice of the state Supreme Court. Democrats criticized MacDonald, who has no experience as a judge and has never handled a jury trial, as an unqualified choice with a highly partisan record. Sununu responded by saying he would halt all judicial nominations in protest.
The fight over the nomination to replace Chief Justice Robert Lynn has broader implications for voting rights litigation that is ongoing in New Hampshire. Originally appointed to the bench by Democratic Gov. John Lynch, Lynn will reach the mandatory retirement age of 70 next month. If Sununu is able to replace him, a majority of the five-member court would consist of Sununu appointees. Democratic plaintiffs are challenging two restrictions on student voters that Sununu passed in 2017 and 2018, and the state Supreme Court is likely to eventually decide the fate of both cases.
Ballot Measures
● Arizona: A new lawsuit filed in federal court is challenging restrictions on the ballot initiative process that Republicans passed in 2014. The plaintiffs are seeking to strike down a law that requires paid petition-circulators and circulators who haven't established their legal residence in Arizona to register with the state. Those circulators can then be subpoenaed by opponents of the ballot measure in question, and if the circulator doesn't show up in court, then all the signatures they've gathered can be disqualified.
The plaintiffs argue that this restriction allows opponents to harass and intimidate petition-gatherers, contending that it violates the Constitution's First and 14th Amendments. However, Arizona's conservative-majority state Supreme Court previously upheld the statute in a separate case.
Election Security
● Georgia: A new Associated Press report reveals how election systems across the country aren't prepared to safeguard against potential hacking threats. The analysis finds that thousands of jurisdictions are still relying on the Windows 7 operating system, which Microsoft plans to effectively retire early next year, meaning it will no longer provide tech support and patches to fix vulnerabilities.
One of the country's biggest voting machine vendors, Hart InterCivic Inc., uses a version of Windows that will reach its "end of life" even sooner—in mid-October—exposing it to potential vulnerabilities just weeks before Election Day.
Due to cost and time constraints, upgrading to Microsoft's latest Windows 10 operating system ahead of the 2020 elections may not be possible for many jurisdictions, since new systems will have to be certified by election officials at either the state or federal level or both.
These problems are of particular concern in Georgia, where Republicans passed a much-criticized law earlier this year allowing for the purchase of new voting machines that advocates for paper ballots have subsequently sued to block. Plaintiffs in that case have vowed to stop the state from purchasing any new machines that rely on the soon-to-be-outdated Windows 7.
Meanwhile, the federal district court overseeing this lawsuit has ordered Georgia officials to let a computer expert for the plaintiffs analyze the state's databases that it uses for configuring ballots and tallying votes. Plaintiffs are hoping that if they uncover evidence of security failures, the court will order the state to adopt paper ballots filled out with a pen instead of using machines that print a paper barcode that voters cannot interpret.
Court Cases
● Florida: Democrats have filed a federal lawsuit challenging a 70-year-old law that gives the governor's party the top position on the ballot in every partisan contest, arguing that it unfairly disadvantages the party that doesn't hold the governor's office.
Research has shown that the candidate listed first can gain an advantage simply because they appear at the top of the ballot, particularly in less salient elections further down the ticket. Democrats haven't held the governor's office in two decades, and they've thus been listed second during that entire stretch of time.
Separately, it turns out that another ballot design issue had a very real effect in 2018. Part of populous Broward County placed the Senate race in a hard-to-find section on the ballot, leading to an unusually high number of ballots where voters skipped the race, even though they cast votes further down the ballot, such as in the contest for agriculture commissioner.
A new analysis by University of Pennsylvania professor Marc Meredith and Harvard Ph.D candidate Michael Morse looked at the records of actual votes cast and estimated that this ballot flaw may have cost former Democratic Sen. Bill Nelson 9,658 votes. Nelson lost to Republican Rick Scott by just 10,033 out of almost 8.2 million cast. If this estimate is accurate, it means that this flawed ballot design came extremely close to swinging the race.
Florida legislators passed a law earlier this year that mandated a uniform ballot style to avoid races getting obscured in this way, but Republicans also used the legislation as a vehicle to passed their poll tax on citizens with past felony convictions.
