● North Carolina: On Tuesday, a three-judge panel delivered a major blow against Republican gerrymandering when it struck down a large swath of North Carolina's legislative districts for violating the rights of Democratic voters.
The judges concluded that these lines, designed to entrench Republican rule, ran afoul of the state constitution’s guarantee of free and fair elections. As a result, the court ruled that 21 of 50 state Senate districts must be redrawn, while 56 of 120 state House districts face the same fate.
These illegal districts were in fact so extreme that they helped Republicans to maintain their legislative majorities in 2018's elections even though Democratic candidates won more votes statewide. If fairer districts are implemented for 2020, they could put Democrats in striking distance of a majority in one or both chambers.
Importantly, because this case was litigated solely under North Carolina’s state constitution, the U.S. Supreme Court’s ruling earlier this year that the U.S. Constitution prohibits challenges to partisan gerrymandering did not present an obstacle to the plaintiffs. And for the same reason, this decision should be insulated from federal review, much like a ruling from the Pennsylvania Supreme Court last year that replaced a Republican congressional gerrymander with a much fairer map.
In response to the ruling, Republican legislative leaders unexpectedly announced they would not appeal, meaning North Carolina should soon have new legislative maps. The court gave the GOP-run legislature until Sept. 18 to draw legal districts for use in 2020, but given the party's long history of flouting the will of the public, those remedial plans will merit close scrutiny.
It's a history the judges appear to be mindful of. In handing down their ruling, the court announced that it would immediately appoint a nonpartisan expert to assist it in reviewing any replacement maps to ensure they pass muster—or to draw maps of its own should the GOP’s efforts prove unconstitutional yet again.
And there's plenty of reason to expect Republicans will try to pass a new set of stealth gerrymanders. During the past six years, Republicans have lost nearly two dozen lawsuits due to their undemocratic attempts to seize power from the public, including repeated losses in cases concerning redistricting. Those defeats even include a previous lawsuit over these very same legislative maps, which were redrawn for the 2018 election cycle after they were twice struck down for discriminating against black voters.
Following that case, newly revealed documents from a deceased GOP redistricting consultant showed that Republicans lied to a federal court to hide their discriminatory intent when they redrew the legislative maps in 2017. Unsurprisingly, the plaintiffs in this latest case had previously said they will petition the courts not to give Republican legislators a third crack at drawing the lines due to their ongoing deception. While that request was apparently not granted, it's possible that, on appeal, plaintiffs could ask the appellate courts to require court-drawn maps. (Also note that under the state constitution, Democratic Gov. Roy Cooper would not be able to veto any new maps passed by the legislature.)
The GOP's decision not to appeal comes in the context of a series of Democratic gains on North Carolina's Supreme Court, which is now home to a 6-1 Democratic majority. As a result, Republicans would have been very unlikely to succeed. (Notably, one of the three lower-court judges who ruled against the GOP was a Republican.)
While this case only concerns the maps in one state, every state constitution has provisions similar to North Carolina's that could be used to challenge partisan gerrymanders so long as there’s a receptive and fair-minded state Supreme Court majority to hear such a case. This ruling therefore underscores the importance of supreme court elections in key swing states next year, including Michigan, Ohio, and Wisconsin. Progressive victories in these races would go a long way toward blocking the GOP's lopsided control over redistricting as we head into the next round of redistricting after the 2020 census.
This decision, though, could have an impact on another North Carolina gerrymander: the state's congressional map. Spokespeople for the state Democratic Party and for Common Cause, who represented the plaintiffs in the successful legislative lawsuit, said this week that they are considering filing a similar lawsuit against the GOP's congressional gerrymander in state court.
The U.S. Supreme Court upheld the federal map in June, and we had expected a state-level lawsuit to be promptly filed at the time if one was going to be attempted at all. However, by waiting until now, former state Board of Elections general counsel Josh Lawson notes that there's a serious risk that there won't be enough time for a new case to succeed in time for the 2020 elections—the last time these maps will be used before the next census.
● Mississippi: After upholding a district court ruling last month that had struck down two state Senate districts over Voting Rights Act violations, the three-judge panel on the 5th Circuit Court of Appeals has now released its full opinion. The case challenged the 22nd District, which the courts held had diluted black voting power so that a Republican backed by white voters would defeat a Democrat backed by black voters even though the district nominally had a narrow black-majority population. The redrawn district now has a much larger black population.
Election expert Rick Hasen notes, however, that the case raises important questions about the Voting Rights Act that have yet to be resolved. As a result, Hasen says there's a good chance Republicans could appeal to the full 5th Circuit, whose membership leans heavily to the right.
Voter Registration and Voting Access
● Montana: Montana voters will elect a new attorney general next year, and if Democratic candidate Raph Graybill's vision takes hold, that person could usher in automatic voter registration.
On Wednesday, Graybill, who is the chief legal counsel to Gov. Steve Bullock, unveiled a plan to implement automatic registration on an administrative basis, without the need to pass new legislation through the state's Republican-controlled legislature. That's possible because Montana's motor vehicles department is a division within the attorney general's office, a setup that differs from that in most other states.
Montanans currently are able to opt-in register when they conduct drivers license transactions. Graybill's proposal estimates that it would only cost $7,000 to implement software changes that would make the process an opt-out instead. Under such a system, eligible voters would automatically have their information filled into an electronic registration form, which would then be submitted to county clerks, who would add those voters to the rolls.
● Alaska: Proponents of fairer elections are attempting to put an initiative on the ballot to implement open primaries, adopt instant-runoff voting, and bolster campaign finance disclosure rules, but Republican state Attorney General Kevin Clarkson disqualified the measure, deeming it a violation of Alaska's restriction on the number of subjects a single initiative may address. Supporters have said they're looking into further legal options and are leaning toward a challenge in court.
If Clarkson's decision is reversed and the initiative both makes the ballot and wins voter approval in 2020, instant-runoff voting could have a particularly large impact on state politics. Since Alaska became a state in 1959, nine of its 16 total gubernatorial elections have produced a winner with less than a majority of the vote, as have its last five elections for the U.S. Senate.
● Massachusetts: Massachusetts Attorney General Maura Healey's office has certified two ballot measures related to voting rights, allowing supporters to begin gathering signatures to qualify for the ballot. One measure would implement instant-runoff voting, while the other would restore voting rights to citizens while they are incarcerated for a felony conviction. (Those who have completed their prison sentences are already able to vote.)
The measure to adopt instant-runoff voting is only statutory and will require roughly 80,000 signatures to make the ballot next year. By contrast, the proposal to end disenfranchisement for those in prison must attain that same number of signatures and then be approved by one-fourth of legislators in a joint sitting both before and after the 2020 elections. At that point, it would appear on the ballot in 2022.
● California: Democrats and a couple of Republicans in California's Assembly have passed a constitutional amendment largely along party lines that would end the disenfranchisement of citizens who are on parole. If the heavily Democratic state Senate passes the amendment and voters approve it in a 2020 referendum, only citizens currently incarcerated for a felony conviction would remain unable to vote.
● Florida: Florida's Supreme Court has agreed to Republican Gov. Ron DeSantis' request that it issue an advisory opinion on the constitutionality of the GOP's modern-day poll tax. That law, which Republican legislators passed earlier this year, requires citizens who have served their felony sentences to pay off any court-related fines and fees before they can regain their voting rights.
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 is therefore 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.
● New Hampshire: A federal court has denied Republicans' efforts to throw out a lawsuit challenging their 2018 law that effectively imposes a poll tax on out-of-state college students, meaning the case will proceed to trial in early January 2020. 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.
However, becoming a resident under the legal definition requires taking action like registering a car in-state and obtaining an in-state driver's license. This new requirement is therefore 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 if it remains in place.
● Ohio: On Tuesday, a federal court denied a recently filed request by Democrats to temporarily block Republican Secretary of State Frank LaRose from purging 235,000 registrations of voters who haven't voted in the last six years and didn't respond to a lone mailing to their last address. The court's decision comes despite The Columbus Dispatch reporting that more than 1,600 people were erroneously included on the purge list who should not have been. Democrats have argued that more than 30,000 eligible voters would be removed if the purge goes forward on Friday as planned.