Leading Off
● Michigan: Michigan voters passed a ballot initiative by a 61-39 landslide in 2018 to create an independent redistricting commission, but Republicans have now filed a federal lawsuit seeking to block the new commission and retain lawmakers' control over the process.
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The lawsuit argues that the state law establishing the new commission violates Republicans' First Amendment rights to free speech and association and their 14th Amendment right to equal protection because they impose prohibitions on who may serve as a commissioner. Specifically, the new commission disqualifies anyone who, in the past six years, has held or run for elected office, or has served as a lobbyist, and anyone who is a parent, spouse, or child of such a person. Several Republicans who hold or have held such disqualifying positions are party to the suit.
However, Steven Mazie at the Economist casts doubt on the strength of the GOP's claim, noting that past court rulings prohibiting what's known as "viewpoint discrimination" in government positions may not apply here. Unlike elected officials doling out patronage jobs to their political supporters, this ban isn't based on partisan affiliation, since those with partisan views may and likely will serve on the commission. Rather, it's based on the activities the ineligible citizens have undertaken and applies regardless of party.
It's unclear just exactly what Republicans hope to gain from this lawsuit in the near term, since even if they succeed in striking down the commission and returning redistricting to lawmakers, they'd still be facing a likely veto of any new gerrymanders by Democratic Gov. Gretchen Whitmer. That would likely yield maps drawn by a court, which would adhere to nonpartisan standards similar to those the commission would rely on.
However, it could be that Republicans plan a future lawsuit seeking to remove the governor's veto power over new maps, but it's unclear what mechanism such a frontal assault on the separation of powers would rely on. (Their counterparts in Wisconsin, though, appear to be plotting just such a maneuver.)
This is by no means the first time this decade Michigan Republicans have used their unfairly won majorities to attack any effort to strengthen democratic institutions by ballot initiative. In a 2018 lame-duck session before Whitmer replaced former Republican Gov. Rick Snyder, the GOP passed laws to undermine a new voting rights amendment and also restrict future initiatives.
In 2012, voters vetoed a GOP-backed law that let Republicans override the decision-making of elected local governments by installing emergency managers answerable only to the state government. However, Republicans—in another lame-duck session—simply tweaked the emergency manager law and added a token appropriation to the measure so that voters couldn't put another veto referendum on the ballot.
That disregard for both direct democracy and representative democracy at the local government level had tragic results, since there's a straight line from this power grab to the decisions made by an emergency manager that created the Flint lead-poisoning water crisis. The Michigan GOP's hail mary effort to keep gerrymandering is part of a well-established pattern of total disregard for free and fair elections.
In terms of national implications, it's uncertain what a plaintiff victory would accomplish, since they're targeting a very specific aspect of this particular commission itself. That stands in contrast to a 2015 Supreme Court case where Arizona Republicans argued that all redistricting reforms were unconstitutional if passed by ballot initiative without legislative approval. Former Justice Anthony Kennedy sided with the court's liberals to reject that argument, but following his replacement by Justice Brett Kavanaugh, that ruling could one day be overturned.
Redistricting
● Mississippi: On Thursday, a three-judge panel on the 5th Circuit Court of Appeals upheld a district court ruling that struck down Mississippi's 22nd State Senate District for diluting black voting power in violation of the Voting Rights Act. The judges also clarified that the remedial districts the Republican-majority legislature passed earlier this year (contingent upon losing their appeal) would be used this November.
Unless Republicans appeal further to the entire 5ft Circuit or the Supreme Court, that means the 22nd District and the neighboring (and heavily black) 13th District will be redrawn to ensure both can elect black voters' preferred candidates instead of just the 13th. Consequently, Democrats will be favored to flip the 22nd District this November with the support of black voters.
● San Juan County, UT: County commissioners in majority-Navajo San Juan County, Utah have unanimously voted not to appeal a recent 10th Circuit ruling upholding a lower court decision that struck down and redrew the districts used for electing the commission because they discriminated against Navajo voters.
That decision led to Navajos gaining a historic majority in 2018's elections, their first-ever since 1957, when Utah repealed its ban on voting by Native Americans living on reservations. As a result, two Navajo Democrats were elected to the commission, but even the lone remaining white Republican commissioner voted not to appeal after plaintiffs said they were willing to negotiate legal fees owed by the county.
Previously, former commissioner Phil Lyman (who was elected to the state House last year) had said that he was likely to seek further appeals, but it's unclear if he still has the standing to do so now that he's no longer a member of the commission. 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 Lyman's proposal in this year's legislative session.
● Wisconsin: According to reporting in the Wisconsin Examiner, Republicans may be plotting a major attack on the separation of powers by asking their increasingly partisan state Supreme Court majority to eliminate Democratic Gov. Tony Evers' power to veto redistricting.
Republicans reportedly hope the court, where conservatives hold a 5-2 majority, will overturn a 1965 precedent that blocked a previous Republican legislature in the early 1960s from passing new maps by a method known as a "joint resolution." Joint resolutions cannot be vetoed by a governor, but the court at the time ruled that they could not be used for the purposes of redistricting.
This reported plot comes despite the fact that voters elected Evers in 2018 with the basic understanding that the governor has the power to veto laws passed by the legislature, including laws such as redistricting. And of course, Republicans were only too happy to have previous GOP governors block Democratic legislatures' ability to gerrymander in the 1980 and 1990 rounds of redistricting.
However, since regaining legislative power following the 2010 elections, Republicans have gone to great lengths to gerrymander Wisconsin and consolidate their control over state institutions. After Republicans lost the 2018 races for governor and attorney general, they held a lame-duck session that stripped powers from Evers and state Attorney General Josh Kaul before the two Democrats took office. The state Supreme Court upheld most of these power grabs in a decision that fell strictly along ideological lines earlier this year.
Fortunately for Democrats and opponents of gerrymandering, there's an April 2020 state Supreme Court election where Justice Daniel Kelly, appointed by former GOP Gov. Scott Walker, faces voters for the first time. However, because a liberal-backed candidate lost a Supreme Court race in April by roughly 6,000 votes, progressives won't have a chance to take a majority on the court until the 2023 election.That won't be in time to stop Republicans from passing gerrymandered maps for the 2022 congressional and legislative elections, but a future fair-minded court could act to curtail gerrymandering.
Felony Disenfranchisement
● Florida: Hillsborough County State Attorney Andrew Warren, a Democrat who represents 1.4 million constituents, revealed new data on Monday that lay bare just how costly the GOP's new poll tax is for citizens who've served their felony sentences yet still owe court-related fines and fees. Warren estimates that those affected owe roughly $500 million and that typically just 3% is collected. It's still unclear how many individuals owe money and what the average debt is, but Warren's office could make a big dent in those numbers with his plan to have a court to waive these fees or convert the debts into community service.
Voter Suppression
● Florida: Amid an ongoing lawsuit challenging Florida Republicans' attempts to ban early voting locations on college campuses, a new report by University of Florida professor Daniel Smith finds that a 2018 court ruling that finally brought early voting back to campuses led to an increase in turnout. The availability of early voting on campus brought, in particular, young black and Hispanic voters into the electorate who otherwise might not have voted.
Nearly 60,000 voters cast ballots early on 12 college campuses in 2018, but Republicans have continued to try to ban such polling sites. After their outright ban was struck down in court last year, Republicans passed a law earlier this year that attempts to do the same thing under the pretext of new regulations requiring a certain amount of parking at early voting locations, which is now the focus of the continuing litigation.
● New Hampshire: Federal district court Judge Joseph Laplante has rejected Republicans' motion to dismiss a lawsuit contending that their 2018 law restricting residency requirements for voting is an unconstitutional poll tax and discriminates against voters on the basis of age, letting the case proceed. Laplante, a George W. Bush appointee, cast doubt about the strength of the plaintiffs' case on the merits, but he held that they had standing to sue.
As we’ve detailed, the GOP's law requires New Hampshire voters to have legal "residency" in the state and not just simply make it their "domicile," or the place where they live day to day. Becoming a resident under the legal definition requires actions like registering a car in-state and obtaining an in-state driver's license.
Effectively, this new requirement is a thinly disguised poll tax on Democratic-leaning college students from other states, who are less likely to go to the expense and trouble of becoming legal residents even if they live in New Hampshire full-time. The law therefore will likely lead to fewer college students voting in the Granite State.
● North Dakota: In an expected defeat for voting rights, the 8th Circuit Court of Appeals overturned a lower court's injunction against North Dakota's Republican-backed voter ID law, sending the dispute over the law back to the lower court. Shortly before last year's elections, the 8th Circuit had stayed the injunction pending appeal, which the Supreme Court upheld, putting the law back into effect while the courts weigh its ultimate fate.
As we've previously detailed, North Dakota has no voter registration—eligible voters simply have to swear under penalty of perjury that they're eligible—so requiring some form of identification is reasonable. However, the GOP's law goes further than what is necessary by requiring voters to present an ID with a residential street address. Since many Native Americans live on reservations where postal service is often nonexistent and therefore don't have residential addresses, many ID cards issued by tribal governments are invalid under this law.
Heightened scrutiny over the law helped spark backlash last year, and Native American activists raised hundreds of thousands of dollars to help print new IDs. Those efforts enabled many of those voters to obtain the documentation they needed to vote, and Native American turnout surpassed 2008 or 2012 presidential turnout on some reservations. However, because such efforts do not represent a long-term solution, plaintiffs are continuing their legal battle to strike the law down.
● Voter Suppression: A new report by New York University Law School's Brennan Center for Justice updates the center's analysis on voter registration purges to now cover the period from 2016 to 2018. Analyzing data from the federal Election Assistance Commission, the Brennan researchers found that 17 million registrations were canceled during that two-year span. That's similar to the rate between 2014 and 2016 but was significantly higher than a decade ago.
The report concludes that the Supreme Court's 2013 decision gutting the Voting Rights Act's "preclearance" system is likely responsible for much of that surge. Under preclearance, jurisdictions with a history of racial discrimination were required to obtain pre-approval from the Justice Department before enacting any changes to election laws or procedures; now those same jurisdictions are free to to make such changes without any oversight.
Brennan found that before 2013, jurisdictions covered by preclearance purged voters at a rate similar to other jurisdictions, but after 2013, former preclearance jurisdictions purged voters at 40% higher than their previous rate.
While not all voter purges amount to suppression—people who move away or die are of course no longer eligible to vote—the increased purge rate in jurisdictions previously subject to preclearance is a nevertheless a negative development for voting rights. The report estimates that if purge rates had stayed the same in those jurisdictions, up to 1.1 million voters would have remained on the rolls between 2016 and 2018.
Electoral Reform
● Massachusetts: Supporters of an effort to enact instant-runoff voting have announced they'll file paperwork next week to begin the process of putting an initiative on the 2020 ballot to implement this reform. Proponents will need to gather 80,239 valid signatures, with no more than one-fourth coming from any one of the Bay State's 14 counties.
Election Security
● Indiana: Indiana's Election Commission has approved the use of a new voting system that features machines that have a paper trail that voters can verify. However, the old machines, with paper trails that aren't visible to the voter, won't be required to be replaced until 2029.
Electoral College
● Colorado: Opponents of National Popular Vote Interstate Compact have submitted 227,000 signatures to put the new law, which Democrats passed to join the compact earlier this year, up to a veto referendum in 2020. Since only about 125,000 signatures are required for ballot measures of this sort, it appears likely the effort will qualify for next year's ballot.
