Leading Off
● Indiana: A three-judge panel on the 7th Circuit Court of Appeals has upheld a preliminary injunction issued by a lower court last year that blocked Indiana Republicans from using the flawed Interstate Crosscheck voter registration database to purge registrations from those they suspected of being registered in multiple states.
Campaign Action
As we've previously detailed, Crosscheck is championed by former Kansas Secretary of State Kris Kobach, one of the most prominent voter suppression zealots in the country, and its faulty design has yielded a sky-high rate of false positives, threatening eligible voters.
Both the 7th Circuit and the district court found that the law passed by the Indiana GOP authorizing the use of Crosscheck to purge voters was in violation of the National Voter Registration Act, also known as the "motor voter" law. If the system purported to match Indiana voters with registrations in other states, the law could have immediately enabled officials to purge the Indiana voter registration.
However, the court's ruling noted that there's nothing inherently illegal about being registered in multiple states so long as a voter doesn't try to vote more than once. (Voters frequently move between states without cancelling their registration in the state they're leaving.) The court ordered that voters must be notified before being removed and given a chance to confirm that they haven't moved away or died. It's unclear if Indiana Republicans will appeal further.
Electoral Reform
● Lane County, OR: Supporters of electoral system reform have announced they will make a second attempt to get Lane County, Oregon, which is home to the city of Eugene and nearly 400,000 residents, to adopt a system called "STAR voting" for county-level elections.
Under this system, whose name stands for "score then automatic runoff," voters would rate every candidate on the ballot from zero to five, then the two candidates with the highest sums of ratings would advance to an instant runoff. In that runoff, the finalists' head-to-head scores on each ballot would be compared; the candidate who receives a higher score on a greater number of ballots would prevail. (Voters who give each of the two finalists the same rating wouldn't have their votes count in the runoff.)
Lane County rejected STAR voting in a 2018 ballot initiative vote by a narrow 52-48 margin, so proponents are hoping that two more years of outreach and education will convince voters to pass it in a 2020 ballot initiative. If it qualifies for the ballot and is approved, the county would be the first jurisdiction anywhere to approve STAR voting for use in elections for political office.
● Maine: In an unexpected development, Maine Democrats passed a bill out of the legislature largely along party lines that would extend instant-runoff voting (also known as ranked-choice voting) to both the primary and general elections for the presidency. (Currently, the state uses IRV for non-presidential primaries and for general elections for Congress.) This comes after the bill previously failed to advance in the regularly scheduled legislative session that ended in June. Democratic Gov. Janet Mills has said she hasn't decided whether or not to sign it.
Lowering the Voting Age
● California: Democrats have passed a constitutional amendment out of California's state Assembly that would lower the voting age to 17 in all elections. The amendment passed largely along party lines, and Democrats hold a similar two-thirds supermajority needed for passage in the state Senate. If Democrats pass the amendment in both chambers, it would go before voters for their approval in a 2020 referendum.
Voter Registration and Voting Access
● Harris County, TX: Democratic lawmakers in Harris County, Texas (home of Houston and about 2.6 million eligible voters) have approved a proposal along party lines to study setting up a polling place in the county jail for citizens who are awaiting trial and have not been convicted of any felony that would disenfranchise them. Democratic County Clerk Diane Trautman, who has implemented other policies to improve voting access since she ousted her Republican predecessor in 2018, said there may not be enough time to establish a voting site for November's local elections but expects to be able to by 2020.
Just earlier this month, Illinois Democrats also passed a law establishing a polling location at Chicago's Cook County Jail.
● New Jersey: In a swift special session of the legislature, New Jersey Democrats passed a bill along party lines that aims to fix a flaw with the state's permanent absentee voter list that had left off voters who had requested absentee ballots in 2017 or 2018 and included only those who'd asked for them in 2016. Democratic Gov. Phil Murphy promptly signed the legislation.
The bill should ensure that everyone who requested an absentee ballot during the two affected years will automatically receive a new one for November's elections for state Assembly and local office without having to make a new request. That in turn could increase turnout, particularly in an off-year when no statewide or federal races are on the ballot.
However, even though the new law allocates $2 million toward mending the list of permanent absentee voters, the New Jersey Association of Counties opposed the legislation, claiming at least $4 million would be required to implement the fix and handle additional mail ballots. However, as the Philadelphia Inquirer reports, the situation may no longer be quite so dire: Many county officials had already reached out to the 172,000 affected voters, and some 149,000 have since been added back to the permanent absentee list.
Felony Disenfranchisement
● Mississippi: The plaintiffs challenging Mississippi's felony disenfranchisement system have appealed a federal district court ruling that had dismissed most of their claims earlier this month ahead of a trial. However, Judge Daniel Jordan had anticipated that the parties were likely to appeal and had already paused proceedings to allow them to do so.
The case at hand involves a challenge to the state's list of crimes for which conviction results in a loss of voting rights, which plaintiffs say violates the U.S. Constitution. Jordan largely sided with the Republican defendants, arguing that he was bound by precedents from higher courts.
However, he did allow a claim to proceed against the state's existing—but highly burdensome—procedures that allow citizens to seek the restoration of their rights. That process requires citizens to petition lawmakers to pass legislation that individually restores their right to vote, something the plaintiffs argue is arbitrary, intentionally discriminatory, and rarely ever happens.
Voter Suppression
● Ohio: On Thursday, the ACLU and its allies, who have sued the state of Ohio over its procedures for purging voter registrations, announced that they had reached a settlement with Republican Secretary of State Frank LaRose.
The agreement ensures that eligible voters wrongly targeted by registration purges will still be able to cast a provisional ballot through the 2022 elections. Not only will those votes count, they will also serve to restore voters to the registration rolls. In addition, LaRose's office will mail information to unregistered eligible voters informing them of their eligibility and the deadlines for registering for this November's elections. Furthermore, election officials must use driver's license records to prevent the removal of voter registrations of those whose records show the same address as their voter registration.
Back in 2016, the plaintiffs sued to stop LaRose's Republican predecessor from carrying out purges that could ensnare eligible voters who voted infrequently and didn't respond to a single mailing asking them to confirm their registration. However, the Supreme Court's Republican majority ruled in 2018 that this process didn't violate federal law that bars removing eligible voters simply for not voting.
The plaintiffs, though, also challenged the removal notice itself as insufficient because it failed to properly alert recipients that their registration was at risk of cancellation. This claim remained alive despite the Supreme Court's decision and ultimately led to this week's settlement.
Electoral College
● Colorado: Democratic Secretary of State Jena Griswold's office announced on Thursday that a veto referendum has qualified for the 2020 ballot that would block a law Democrats passed earlier this year to add Colorado's nine Electoral College votes to the National Popular Vote Interstate Compact. Republicans are supporting this veto referendum, which the secretary of state noted was the first to make the ballot since 1932.
Election Security
● North Carolina: On Wednesday, North Carolina's Republican-majority state House almost unanimously passed a bill that includes several alterations to election law. The biggest changes would reform absentee voting procedures in the wake of last year's election fraud scandal in the 9th Congressional District, where an operative for Republican Mark Harris' campaign illegally collected and altered absentee ballots in an attempt to steal the election.
The relevant changes would make it a crime to pay people to collect absentee ballot request forms and also strengthens penalties for tampering with another person's absentee ballot. (It's already a crime to gather absentee ballots themselves, something the Harris operative, McCrae Dowless, and his associates have now been indicted for.)
The bill includes several other provisions, including a pilot program for certain jurisdictions to prepay the postage cost on absentee ballots. This measure is intended to reduce the incentive for voters to hand their ballot to someone else to deliver, but this change would also make it more convenient to vote absentee in general. The bill also permanently restores the last Saturday of early voting, which Republicans had previously cut and risked facing litigation over.
Unfortunately for election security, Republicans defeated a Democratic-backed amendment by a single vote that would have prevented counties from continuing to use voting machines that electronically record votes for the 2020 elections instead of phasing them out. By contrast, a ballot-marking device (BMD) marks a paper ballot that is then fed into another counting machine, just as a paper ballot filled out with a pen would be fed into an optical scanner.
Relatedly, North Carolina's state Board of Elections rejected a motion to make the certification of voting equipment more strict, paving the way for some jurisdictions that are replacing their electronic machines to use BMDs that produce paper ballots with barcodes. Because those barcodes, rather than plain text, are tallied by the counting machines, opponents argue the system presents a major security and election integrity risk since voters can't read the barcodes.
Consequently, the Coalition for Good Governance, which is currently suing in federal court to block similar voting equipment in Georgia, announced that it would sue to block the purchase of barcode-reliant devices. Instead, the group is pushing for paper ballots filled out by hand and fed into an optical scanner, which many North Carolina counties already use.
The state Board's decision doesn't automatically mean such barcode machines will be deployed, as that decision will be left up to each of the state's 100 county-level election boards. However, election officials in populous Mecklenburg and Guilford Counties, which together are home to approximately one-sixth of North Carolina voters, have indicated they intend to purchase barcode machines, meaning litigation is likely if they pursue this course.
Campaign Finance
● Federal Election Commission: In a major setback for the enforcement of campaign finance regulations, Republican Matthew Petersen announced his resignation from the Federal Election Commission. That leaves the already beleaguered institution with just three commissioners out of six thanks to the Trump administration and Senate Republicans' refusal to fill the vacancies. As a result, the body, which is supposed to have no more than three members from the same political party, will now no longer have a quorum of four commissioners needed to take action.
The FEC has long been dysfunctional thanks to Republican commissioners' refusal to enforce campaign finance regulations that the GOP opposes, but this latest development is even more damaging. With no quorum, Petersen's resignation will cripple the FEC's ability to carry out core functions such as making new rules, penalizing lawbreakers, or even voting on the results of investigations to determine whether a campaign has violated the law.
Election expert Rick Hasen warns that commission's inability to implement new rules and enforcement actions could lead to foreign actors taking advantage of the dysfunction by breaking the law against foreign spending on American elections. However, since the Justice Department can still prosecute the most blatant legal violations and the FEC will still require regular disclosure for candidates and PACs, Hasen and other experts have cautioned that the lack of a quorum won't lead to the end of all campaign finance regulation.
