Leading Off
● Florida: The new conservative majority on Florida's Supreme Court issued an advisory opinion on Thursday validating the modern-day poll tax Republicans passed last year by requiring citizens who've served their felony sentences to also pay off all court-related fines or fees before they can regain their voting rights. The justices concluded that such financial obligations were part of the terms of felony sentences under the new voter-approved constitutional amendment, even though the amendment's ballot summary made no mention of these obligations.
Campaign Action
The 2018 constitutional amendment that nearly two-thirds of voters approved was supposed to restore voting rights to up to 1.4 million citizens, but the GOP's poll tax could negatively affect up to 1.1 million of those individuals by imposing a financial barrier that many of them will never be able to overcome. However, a federal district court in a separate suit temporarily blocked most of the requirement for the specific plaintiffs in that case late last year, which was partly stayed while the GOP's appeal is still pending. The plaintiffs are asking the district court to expand the ruling to all individuals affected by the poll tax.
While that federal case stands a chance of blocking the poll tax, such a ruling could prove a double-edged sword for voting rights advocates. That's because the court's conservative majority may deem the payment of court fines and fees to be "non-severable" from the rest of the voting rights restoration amendment.
In other words, if the federal courts invalidate the poll tax, Florida's Supreme Court could strike down the rest of the amendment by holding that the surviving provisions can't be separated from the financial penalty. Such a ruling would effectively overturn the rights restoration amendment entirely, leaving Florida to once again impose a lifetime ban on voting for any felony conviction.
That outcome would be a devastating blow to voting rights and mark a vicious cycle of voter suppression intended to thwart voters of color and Democrats. Republican Gov. Ron DeSantis—who called voting a "privilege" and not a right in response to the opinion—likely would not have won in 2018 but for the fact that lifetime felony disenfranchisement disproportionately prevents black citizens from voting. Yet precisely because of that victory, DeSantis and his fellow Republicans were able to pass their poll tax in order to keep up to a million citizens from voting.
Voter Registration and Voting Access
● Kansas: Despite bipartisan support for a 2019 law that was supposed to give counties the option of letting voters cast a ballot at any polling place countywide instead of just their locally assigned polling place, Republican Secretary of State Scott Schwab told legislators on Tuesday that the regulations needed to implement these countywide voting centers won't be ready until after the 2020 elections. The new system was intended to make voting more accessible and has increasingly been adopted in other jurisdictions.
● New Jersey: New Jersey's Democratic-run state Assembly has passed two bills to improve voting access, sending them to Democratic Gov. Phil Murphy for his expected signature.
One bill would finally establish an online voter registration system, something only a few other states currently lack. The second measure would fix problems with New Jersey's system for permanent absentee mail voting by allocating funding needed for local governments to handle the higher volume of mail ballots. The system would automatically mail an absentee ballot in all future elections, unless the voter opts out, to any voter who cast an absentee ballot in recent election years.
● South Carolina: South Carolina's Republican-run state government has agreed to a settlement in a lawsuit brought by the Democratic Party that would end the state's requirement that voters provide their full Social Security number on voter registration forms and instead ask voters only for the last four digits
Plaintiffs had sued last year and argued that requiring the full number potentially intimidated voters by opening them up to the risk of identity theft. They also noted that nearly every other state uses some other identifier. If the federal court where the case was filed approves the settlement, voter registration forms and training instructions for election workers will likely be updated in time for the 2020 elections.
● Virginia: Democrats have passed a bill out of state Senate committee that would remove the excuse requirement to vote absentee. The bill would also enable a period of in-person absentee voting similar to traditional early voting in other states. Now that Democrats control state government, this bill will likely become law.
● Washington: With the 2020 legislative session under way, Washington Democrats have introduced three bills designed to expand voting rights, improve voting access, and subsequently increase turnout.
The first bill would end the ban on voting for citizens who are still on parole or probation for a felony conviction, which would leave only those who are currently incarcerated unable to vote if it becomes law. A similar bill was introduced last year but failed to advance.
The second bill seeks to expand voting opportunities for younger people by automatically "pre-registering" 16- and 17-year-olds when they obtain a driver's license so that they're added to the voter rolls as soon as they turn 18 (currently, those not yet of voting age aren't included under the existing automatic registration law). In addition, 17-year-olds would be allowed to vote in primaries if they would turn 18 by the general election, which a number of states already allow. Lastly, that bill would expand voting locations on college campuses.
The third bill could have the biggest impact on elections by moving all elections in the state (aside from special elections) to coincide with the even-year federal election cycle. Currently, local governments such as Seattle's hold their elections in odd-numbered years, and statewide ballot initiatives can be voted on in both odd and even years. However, since odd-year turnout is almost always a small fraction of even-year turnout, odd-year elections can lead to electorates that are disproportionately older, whiter, and wealthier than the potential electorate as a whole.
Democrats control both legislative chambers and the governor's office, meaning there's a good chance some or all of these proposals will become law.
Voter Suppression
● Missouri: Missouri's state Supreme Court has upheld a lower court ruling that gutted most of the GOP's voter ID law, meaning that voters will no longer need a photo ID to vote and can instead present a non-photo ID such as a utility bill. The GOP-backed law gave voters who only had a non-photo ID the option to sign a sworn affidavit, but justices struck down the affidavit requirement as "contradictory" and "misleading."
Justice Patricia Breckenridge, who'd been named to the bench by former Republican Gov. Kit Bond, sided with her four Democratic-appointed colleagues to uphold the lower court's ruling, leaving two GOP appointees in the minority. Following the decision, Republican state Secretary of State Jay Ashcroft signaled that he wanted the GOP-dominated legislature to "move forward" with an unspecified effort to revive the photo ID requirement.
● New York: Federal district court Judge Alison Nathan recently ruled that New York's state Board of Elections was unconstitutionally violating voters' rights by designating certain voters as "inactive" and removing their names from poll books used to verify a voter's registration status when they show up to vote. Nathan ordered election officials to make sure that lists of inactive voters be made available to poll workers.
The state moves voters to "inactive" if a single mailing is marked as "undeliverable" by the post office or if officials have reason to believe the voter had moved. However, because the U.S. Postal Service and the National Change of Address database has many inaccurate records, thousands of voters who hadn't moved were placed on the inactive list. When they would show up to vote on Election Day, some weren't given the chance to vote a provisional ballot or were told by poll workers to go to another polling site, but if that alternative ended up being the wrong polling site, their ballot went uncounted.
Nathan's ruling will help mitigate this problem, though to resolve it fully, New York will need to implement same-day voter registration. An effort to do so is in the works, but because it would require an amendment to the state constitution, same-day registration could not take effect prior to 2023.
● Texas: The plaintiffs challenging Texas' lack of an online voter registration system for those updating the address on their driver's license online have filed a new lawsuit after their first effort prevailed at the district court level but was overturned by the 5th Circuit Court of Appeals.
The appeals court had held that the plaintiffs lacked standing because they subsequently were able to re-register by other means and were therefore no longer harmed by the system by the time they filed their suit. Plaintiffs had unable to update their registrations online even though voters updating their licenses in person or by mail are given the opportunity to register, which the district court agreed was a violation of federal law.
To avoid having their case dismissed for lack of standing, these newest plaintiffs (one of whom participated in the first case) have not updated their registrations after moving. The plaintiffs do not plan to remain unregistered throughout the duration of their case, though, particularly with Texas' primaries approaching on March 3.
One of the attorneys for the plaintiffs told the Texas Tribune that she does not believe the 5th Circuit's decision means "that someone has to remain unregistered through the course of the lawsuit" because it "would be in effect telling someone that in order to vindicate their most important constitutional right, they would have to sacrifice that right for years and years."
In a separate effort, Democratic Party organizations are seeking to intervene in and revive the original lawsuit as a way to avoid the possibly lengthy time needed for the newer suit to succeed.
● Wisconsin: A trio of rulings from three separate Wisconsin courts on Monday and Tuesday has resulted, for now, in a halt to a conservative group's effort to require the state to remove 209,000 voter registrations from the rolls.
On Monday, a lower court judge, who had previously ordered the purge to go forward, held Democratic election officials in contempt for not proceeding with the removal. These officials, who'd asked the judge, Daniel Malloy, to issue a stay while they appeal, pointed out that Malloy's order had not specified a deadline by which they were obligated to act.
Later that same day, the state Supreme Court declined to expedite an appeal requested by the plaintiff, a conservative organization called the Wisconsin Institute for Law and Liberty. WILL had hoped that the Supreme Court, which is dominated by right-wing jurists, would give it a friendly reception, one but conservative justice who's up for re-election this year recused himself and another sided with the court's two liberals in declining to fast-track the case. That resulted in a 3-3 tie, meaning the plaintiff's request was rejected.
Finally, on Tuesday, the state's intermediate Court of Appeals stayed Malloy's decisions: both his order directing the purge to proceed and his contempt ruling. That amounted to a victory for voting rights advocates, who, if they cannot halt the purge, at least want to delay it until after November's elections.
The win is only temporary, though: The state Supreme Court's refusal to expedite the case does not guarantee that the court will stop the purge if the case eventually reaches them. A separate federal lawsuit opposing the purge remains ongoing.
Election Consolidation
● Kentucky: A committee in Kentucky's Republican-dominated state Senate has unanimously approved a constitutional amendment that would end the practice of electing statewide offices such as governor in odd-numbered years.
The proposal would extend the terms of the officials elected in 2023 to five years so that such elections would coincide with presidential elections every four years beginning in 2028. Republicans hold the three-fifths supermajorities needed to put this amendment on the ballot without any Democratic votes, but it's unclear if Democrats would even oppose it.
Republicans unsuccessfully tried passing this same proposal in 2019, but after their narrow loss in lost last year's election for governor, it's likely that they will more seriously consider the measure this session. The GOP is likely motivated by the belief that aligning state elections with presidential elections will help them win state races, given how red Kentucky is. While that may very well be the case, this is nevertheless a rare GOP move that could advance their partisan interests by making elections more democratic rather than less.
Consolidating the election dates could in fact significantly boost voter participation in state elections, and it's likely that presidential-year turnout is more demographically representative of all eligible voters than off-year turnout, especially because more young voters tend to vote only in presidential years. Proponents also argue that this change would save millions of dollars in administrative costs by reducing the number of different elections the state holds.
Redistricting
● New Jersey: New Jersey Democrats have passed a bill out of both legislative chambers that would end the practice of "prison gerrymandering" by counting incarcerated people at their last address for redistricting purposes instead of where they are imprisoned (and can't even vote). The change, which Democratic Gov. Phil Murphy is expected to sign, will likely shift representation from less-urban places with prisons to urban areas with large communities of color.
The bill's scope, however, is limited, as it only applies to legislative redistricting and not congressional or local redistricting. The impact on congressional redistricting would likely be minimal, but the impact on local elections could have been considerable in localities with prisons, given the smaller size of such districts.
Ballot Measures
● Florida: Florida's Supreme Court has approved an initiative for the November ballot that would amend Florida's constitution to prohibit local governments from having the power to grant voting rights in local elections to noncitizen legal residents. Florida's constitution currently says "[e]very citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state ...shall be an elector ...," but the amendment would replace the phrase "every citizen" with "only a citizen." At least 60% of voters would have to approve the initiative for it to pass.
Electoral College
● Electoral College: On Friday, the Supreme Court agreed to hear a case in April that could determine whether laws banning "faithless electors" in the Electoral College are unconstitutional.
These laws prevent electors pledged to a candidate from voting for a different candidate. The 10th Circuit Court of Appeals struck down Colorado's ban on faithless electors last year, but Washington's Supreme Court upheld its state's faithless elector ban. The losers in both lawsuits appealed to the U.S. Supreme Court, meaning that to resolve this split, the justices must overturn at least one of these rulings.
The 10th Circuit's decision may be the one that's more vulnerable on appeal. As election law expert Derek Muller has previously noted, the 10th Circuit failed to take notice of a similar case out of Minnesota that the 8th Circuit rejected in 2018, deeming the issue moot. Muller further observed that the Supreme Court could overturn the 10th Circuit's ruling on procedural grounds, much as the Minnesota challenge was.
However, if the Colorado ruling were to be upheld by the Supreme Court and therefore set a national precedent, it would unbind every elector from any state law prohibiting faithless electors. Such an outcome could alter the result of a close Electoral College vote, adding uncertainty as to whether a candidate who appeared to have won a narrow victory would in fact prevail in the Electoral College. While faithless electors have been infrequent in modern history, removing any limits could embolden electors to defect and consequently risk chaos if electors were to randomly overturn expected election results.
