Leading Off
● Georgia: On Thursday, federal District Court Judge Amy Totenberg ruled that the state of Georgia may no longer continue using paperless voting machines starting with the 2020 elections and excoriated Republican officials over significant election security flaws.
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Totenberg declined to bar the use of the machines for this November's municipal elections, citing the short time that would have been available to replace them with another voting method. However, in 2020, her ruling will require the state to either use voting machines that print a paper ballot record or switch to paper ballots that are filled out with a pen and then fed into an optical scanner.
Totenberg's decision also ordered election officials to fix errors in Georgia's voter registration database and provide paper backups for the electronic poll books at each polling place, which are used to track whether a registered voter has cast a ballot or not when a voter shows up on Election Day.
This ruling is not only a victory for the plaintiffs who filed this lawsuit in 2017; it also marks the first time a federal court has blocked the use of paperless voting machines, which more than a dozen others states use. However, it's far from the end of the legal battle over election administration in Georgia.
Earlier this year, Republican legislators awarded a $107 million contract for the new machines to Dominion Voting. Known as "ballot-marking devices," these particular machines print both a bar code, which voters cannot read, and a text summary of their votes, which they can. It is the bar code, however, that is scanned and tallied when votes are tabulated, not the text summary. Plaintiffs contend, therefore, that relying on unreadable bar codes renders the system insecure and undermines voter confidence in the integrity of the results.
Reform advocates have, consequently, vowed to fight the bar code machines by pushing for an alternative, such as paper ballots filled in by hand. Totenberg's ruling didn't foreclose the use of the bar code voting machines, but she expressed doubt that they would be ready for use by the time of next year's March 24 presidential primary. She therefore mandated that officials come up with a backup plan, such as paper ballots, in the event that the machines can’t be deployed in time.
Plaintiffs first filed their lawsuit when Republican Brian Kemp, who was elected governor last year, was responsible for running Georgia’s elections in his role as secretary of state. Kemp drew national condemnation for his voter suppression efforts while overseeing his own election last year against Democrat Stacey Abrams. On his watch, his office was also responsible for a major security failure that exposed the sensitive personal information of six million voters.
Kemp's successor as secretary of state, fellow Republican Brad Raffensperger, has continued to fight the push for paper ballots. In an explosive court filing last month, the plaintiffs accused Republican election administrators of destroying evidence to cover up security failings over the past two years, and a recent report in The Guardian revealed another bombshell: Employees of the firm that manufactured Georgia's current paperless voting machines were designing electronic ballots from their home offices rather than in a secure location, potentially allowing those ballots to be hacked.
Totenberg’s ruling is a first step toward a more secure voting system in Georgia. Now the legal fight will move on to what the replacement voting method will be.
Redistricting
● 2020 Reapportionment: On Monday, Democratic attorneys general in 16 states, along with officials from several cities, filed a motion to intervene in a lawsuit brought by Alabama Republicans that seeks to order the Census Bureau to exclude undocumented immigrants from 2020 congressional reapportionment.
If the Republican plaintiffs were to succeed, it would end more than two centuries of apportionment based on total population. It would also shift congressional seats and electoral college votes to whiter and more conservative states—such as Alabama—at the expense of more diverse ones.
We have long viewed this suit as having slim odds of success, though. That's because the text of the Constitution's 14th Amendment reads, "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." (emphasis added.)
The Justice Department, at least in name, is defending against the lawsuit, but the Trump administration has tacitly favored the Alabama GOP's cause. The judge hearing the case noted last year that the administration's efforts appeared "rather halfhearted"; given Trump's never-ending efforts to undermine the census and turbocharge Republican gerrymandering, it's easy to see why the judge reached that conclusion, and why Democrats have sought to intervene in the case.
● New Hampshire: In a setback for fairer redistricting, Republican Gov. Chris Sununu has vetoed a bill that passed with bipartisan support to create a bipartisan advisory commission to handle redistricting.
As we've previously explained, this proposed commission would draw maps that must adhere to nonpartisan criteria and submit them to legislators, who could only approve or reject them without making any amendments.
While some Republican lawmakers voted for the bill, Democrats lack the two-thirds supermajorities needed to override Sununu's veto on their own, and it's unclear whether Democrats can persuade enough Republicans to defy Sununu and overturn his veto.
Elections
● Arizona: The 9th Circuit Court of Appeals has agreed to hear an appeal of a lawsuit that's seeking to require a special election for appointed Republican Sen. Martha McSally's seat before November 2020, when an election is currently set to be held to fill the last two years of the late John McCain's original six-year term. The challengers have argued that special elections should be required for Senate vacancies under the 17th Amendment, but a district court rejected that argument earlier this summer.
Lowering the Voting Age
● California: Democrats have passed two constitutional amendments out of committee in the state Assembly that would grant 17-year-olds voting rights in certain elections. The first amendment would let 17-year-olds vote in primaries or special elections if they'll turn 18 by the next general election. The second amendment would lower the voting age to 17 more broadly for all elections, including federal races. If Democrats pass the amendments in both chambers, they would have to go to voters for approval at the ballot box.
Voter Registration and Voting Access
● California: A new state audit of California's automatic voter registration system has found that it produced 84,000 duplicate voter registration records and 171,000 records without the proper political party designation added, out of some 3 million total records they examined (California has roughly 20 million registered voters in total). Officials have said, however, that these errors had no impact on voter eligibility and did not lead to any instances of duplicate voting.
California's automatic registration system debuted in April 2018, and last year it was reported that another error had improperly registered 1,500 ineligible voters, who were removed once the errors were discovered. That development and other administrative struggles led to the resignation of the director of the state's Department of Motor Vehicles, which administers the automatic registration program.
● New Jersey: In an unexpected development, Democratic Gov. Phil Murphy's administration has determined that many voters who were supposed to permanently receive absentee mail ballots every election will instead have to make a new request for a ballot for November's state elections. Only those who requested an absentee ballot in 2016 or before will automatically receive a ballot for November, meaning those who first voted absentee in the 2017 state elections or the 2018 federal elections, which saw historically high turnout, won't automatically receive a mail ballot.
This development comes despite Democrats passing a law last year that provides for permanent absentee voting, unless a voter opts out. It's unclear why Murphy's administration has made this decision, which surprised leaders of both parties, and legislative Democrats are reportedly expected to try to reverse it or take other steps to avoid confusion among voters who may have been expecting to receive a mail ballot without making a new request.
Ballot Measures
● Missouri: Activists in Missouri are trying to put several initiatives on the 2020 ballot to expand voting rights, but Republican Secretary of State Jay Ashcroft has attempted to give the initiatives descriptive language that is so misleading that the measures' supporters have filed a lawsuit in state court seeking to obtain fairly worded descriptions.
The initiatives in question include automatic voter registration; the establishment of early voting; removing the excuse requirement to vote absentee by mail and letting voters permanently sign up to automatically receive a mail ballot in every election; the right to cast a provisional ballot for the correct offices even if voting at the wrong polling place; letting 16- and 17-year-olds "pre-register" to vote so that they're automatically added to the voter rolls when they turn 18; requiring routine audits of election results; and extending the time allowed for military votes to be received and counted.
However, Ashcroft, who is the son of former George W. Bush Attorney General John Ashcroft, certified deceptive language for the petitions that organizers must circulate to collect signatures in order to their measures on the ballot. One measure is described as "mak[ing] voters' method of voting a public record," even though that information already is public.
Another says that a measure would "allow voters on election day to appear at the wrong polling place, vote on a wrong ballot, and have election judges later transfer the votes to the right ballot," which falsely implies that voters could vote on races they're ineligible to participate in. Rather, provisional ballots only let voters vote in the races that ballots at their correct polling place have in common with those at the incorrect polling place, such as those for statewide office.
Ashcroft has been rebuked in the past for similarly using his powers to try to stymie other progressive initiatives: Earlier this year, a state court overturned Ashcroft's decision to throw out an attempted veto referendum of an abortion restriction law. However, Ashcroft's foot-dragging still had its intended effect, since it delayed the certification of the proposed referendum long enough that organizers didn't have enough time to gather the necessary signatures before a key deadline to make the 2020 ballot.
The plaintiffs seeking fairly worded descriptions for their voting rights initiatives filed their lawsuit in state court; notably, a 4-3 majority on Missouri's Supreme Court was appointed by a Democratic governor through a merit-based system. Last year, the high court declined to disqualify an initiative from the ballot that reformed the state's redistricting and ethics rules, which voters subsequently passed.
Felony Disenfranchisement
● Florida: Republican Gov. Ron DeSantis recently asked the Florida Supreme Court to issue an advisory opinion on whether a constitutional amendment voters passed last year, which ended lifetime felony disenfranchisement for most citizens who have served their sentences, also requires payment of court-related fines and fees. This move comes after Republicans passed a modern-day poll tax earlier this year by enacting a law that requires those citizens to pay off all fines and fees before they can regain their right to vote.
Thanks to DeSantis' 2018 victory, which allowed him to appoint three new justices, Florida's top court now has a 6-1 conservative majority, and an opinion sanctioning the GOP's poll tax appears highly likely. However, such an opinion would not be binding, nor would it negate ongoing federal litigation over the new poll tax statute, though it could give DeSantis and his allies political cover.
Meanwhile, District Court Judge Robert Hinkle, a Bill Clinton appointee who is hearing the federal suit challenging the poll tax, has asked the parties to address the issue of whether the new voting rights amendment itself is in violation of the U.S. Constitution. Republicans have claimed that, even aside from the statute they passed, the amendment itself requires payment of a poll tax because it says those who are eligible to regain their voting rights must have "completed all terms of their sentence, including parole or probation." However, the amendment made no mention of any financial obligations.
Hinkle raised the prospect that, if the amendment is determined to include financial obligations and that provision is in turn found to violate the U.S. Constitution, the entire amendment could be invalidated because its other provisions cannot be be "severed" from those monetary obligations. However, it's unclear why Hinkle is even raising the possibility that the amendment is non-severable: The parties did not bring up the issue, and the plaintiffs are only challenging the GOP's statute, not the amendment itself.
If Hinkle's doomsday scenario were to come to pass and the entire amendment were thrown out, up to 1.4 million citizens would again being banned from voting for life unless the Republican-dominated state cabinet individually restores their rights. That would effectively disenfranchise roughly 1 in 10 Floridians again: DeSantis' Republican predecessor, Rick Scott, restored voting rights to just roughly 3,000 people during his eight years as governor before the amendment passed in 2018, and DeSantis has shown no sign of changing course on the GOP's attacks on voting rights.
