Leading Off
● Felony Disenfranchisement: The Sentencing Project has released a report with updated estimates on the number of Americans disenfranchised for a felony conviction in every state, finding that more than 5 million people overall are barred from voting. Many of these laws have their origins in the Jim Crow era, and 6% of Black Americans are banned from voting compared to 2% of Americans overall. Laws on felony disenfranchisement vary widely by state, with Maine, Vermont, and the District of Columbia not barring anyone from voting while several mostly Southern states impose lifetime bans for at least some offenders.
Campaign Action
Thanks to a lifetime ban on voting for a large number of felony offenses that can only be remedied by the state legislature and governor passing a bill to individually restore a voter's rights—something the GOP state government almost never does—Mississippi leads the way with more than 1 in every 10 voters banned from voting, including one in every six Black voters, three times the rate of whites. But Tennessee leads the way with Black disenfranchisement, with more than one in four Black citizens banned from voting there.
Should Democrats retake the Senate and Joe Biden become president, Congress may be poised to restore voting rights to millions of citizens who aren't currently incarcerated by ending the bans on voting that many states enforce against citizens on parole, probation, or who owe outstanding court debts even though they have completely served their sentences. The report estimates that 43% of those disenfranchised nationally have served any prison, parole, or probation sentence, and 75% are no longer incarcerated and could regain their rights if Congress adopts Democrats’ proposal.
Ballot Measures
● Florida: With the support of Democratic state Sen. Janet Cruz and GOP state Rep. Chris Sprowls, who would become speaker if the GOP maintains their majority this November, a new lawsuit has been filed with Florida's conservative-dominated Supreme Court asking it to invalidate an initiative that will appear on the ballot this year and would amend Florida's constitution to create a "top-two primary" for state-level races if at least 60% of voters adopt it. The lawsuit contends that the measure violates the Florida constitution by undermining existing protections for Black and Latino representation.
If voters adopt the ballot measure, Florida would eliminate its traditional primaries closed to voters registered with a particular party and replace them by having all candidates run on the same ballot in the first round regardless of party. From there, the top-two finishers would advance to the November general election regardless of party, meaning two candidates from the same party could advance. As we've noted before, this system is highly flawed because one party can get shut out of the general election simply for having too many candidates in the first round even if they collectively won more votes than the other party, which has happened in California and Washington.
The lawsuit focuses on how top-two reduces existing opportunities for voters of color to elect their chosen candidates for state legislature, particularly since Black voters are heavily Democratic while whites lean GOP. Currently in a district capable of electing a Democrat, Black voters don't need to form an overall majority so long as they can form a majority of the Democratic primary electorate and can count on enough support from a minority of whites in the general. But under top-two, white Republicans who can’t elect a Republican on their own might support a candidate backed instead by white Democrats to defeat a candidate preferred by Black Democrats.
Back in 2010, Florida voters passed two previous ballot initiatives that added protections against both partisan gerrymandering and the dilution of voters of color in existing districts that were capable of electing the preferred candidates of such voters. The plaintiffs therefore argue that this 2020 proposal violates the latter provision because it would almost certainly dilute the existing voting strength in several districts of Black voters and to a lesser extent Latinos (who are more internally diverse both in terms of their ethnic identity and partisanship).
Voter Registration and Voting Access
● New York: Voting advocacy organizations are appealing a recent state lower court ruling that declined to extend New York's voter registration deadline from 25 days before Election Day to just 10 days prior.
2020 Census
● 2020 Census: The Supreme Court has stayed a lower court ruling that had blocked the Trump administration from ending the census' counting operations weeks before the original Oct. 31 deadline, enabling Trump to stop counting on Thursday. Trump has pushed to short circuit the census in a likely effort to produce an undercount that would disproportionately harm communities of color, which in turn would undermine those communities' clout in redistricting for the coming decade.
While the Census Bureau reports that they already had a 99.9% completion rate in nearly every state before the Supreme Court issued its ruling, reporting from the New York Times details how those numbers are misleading. That 99.9% figure doesn't cover the number of households that have filled out the census forms and instead covers those checked off the list by any means, even via estimates.
For instance, the Times notes that instead of interviewing every individual household in a major apartment complex, enumerators may have instead entered data given to them by the apartment manager just on those individuals who signed leases, which could fail to include everyone living in each unit with more than a single occupant. Furthermore, the statewide completion rates don't add light to variations within states, and certain populations that are the hardest to count could thus be more incomplete.
Meanwhile in a federal lawsuit over the Trump administration's attempt to exclude undocumented immigrants from census data that determines the reapportionment of congressional seats and Electoral College votes among the states after 2020, the Supreme Court has agreed to fast-track Trump's appeal of a lower court ruling that blocked Trump's effort earlier this year. The high court set oral arguments for Nov. 30.
Election Changes
Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.
● Alabama: The 11th Circuit Court of Appeals has overturned a lower court ruling blocking Alabama's requirement that absentee voters have their ballots witnessed or notarized. However, the panel upheld another part of the ruling that barred the state from banning curbside voting. Republican Secretary of State John Merrill has said he will appeal that portion of the decision to the Supreme Court.
● Alaska: The Alaska Supreme Court has upheld a lower court ruling blocking the state's requirement that absentee voters have their ballots witnessed. Separately, voting rights advocates have filed a lawsuit in state court asking that voters whose mail ballots are rejected be given the chance to fix any problems.
● Arizona: The 9th Circuit Court of Appeals has overturned a lower court ruling that extended Arizona's voter registration deadline from Oct. 5 to 23. However, the judges did order officials to accept new registrations from voters who submitted applications by Oct. 15. Meanwhile, a separate panel on the 9th Circuit has upheld a lower court ruling that rejected a request by the Navajo Nation that mail ballots postmarked by Election Day and received within 10 days be counted.
● Delaware: A Delaware state court has rejected a suit requesting that ballots postmarked by Election Day and received within 10 days be counted. Separately, voting rights advocates have filed a suit in state court asking that voters who have been displaced from their homes because of the pandemic be allowed to receive ballots electronically and return them by printing them out and mailing them in.
● Georgia: In a long-running case, a federal judge has declined to order Georgia officials, whose polling places have long been plagued with lengthy lines due to difficulties with electronic voting equipment, to use hand-marked paper ballots instead of new electronic voting machines. In a separate ruling, the same judge also declined to order that officials provide paper backup ballots equivalent to 40% of registered voters. Under state law, officials are required to maintain backups for only 10% of voters.
In a separate Democratic-backed lawsuit that was also seeking paper ballot and poll book backups among other measures to prevent long voting lines, a different federal judge has dismissed the case.
● Indiana: The 7th Circuit Court of Appeals has overturned a lower court ruling requiring that Indiana officials count absentee ballots postmarked by Election Day and received within 10 days. Instead, ballots must be received by noon on Election Day in order to count.
● Iowa: The Iowa Supreme Court has overturned a lower court ruling that said that Republican Secretary of State Paul Pate exceeded his authority in barring county election officials from sending out absentee voter applications with information pre-filled.
Separately, the court said it would hear a challenge from Democrats against a law passed earlier this year by the state's Republican-run legislature prohibiting officials from using their databases to fill in missing information on applications they receive from voters, which they've done in past years. Under the new law, officials are required to contact voters by phone, email, or regular mail.
● Louisiana: A state court has blocked Republican Secretary of State Kyle Ardoin's attempt to limit officials in New Orleans to just two ballot return drop box locations.
● Michigan: The state Court of Appeals has sided with Republicans and overturned a lower court ruling that had required mail ballots to count if postmarked by the day before Election Day and received up to two weeks afterward.
● Minnesota: A federal judge has rejected a Republican challenge to an agreement made between Democratic Secretary of State Steve Simon and voting rights advocates to allow ballots postmarked by Election Day and received within seven days to count, saying the plaintiffs had failed to show they were injured by the law. Plaintiffs say they will appeal.
● Missouri: A federal judge has stayed his own ruling allowing the in-person return of mail ballots pending an appeal by Republican Secretary of State Jay Ashcroft.
● North Carolina: Two separate federal court rulings have resulted in a mixed outcome for voting advocates regarding absentee voting procedures. In one case, a district court blocked part of a settlement in a separate state lawsuit that would have allowed voters to sign an affidavit in case a witness signature was missing, thus requiring a witness signature for all such ballots.
However, a district court in a separate case refused to overturn an agreement by the state to count ballots that are postmarked by Election Day and received by Nov. 12 while also allowing voters to fix certain other problems on mail ballots regarding voter signatures or incomplete witness information. Additionally, the second federal ruling means dropping off mail ballots at polling places remains allowed.
Republicans are appealing that second federal ruling as well as the settlement in the state lawsuit, which saw the state Court of Appeals issue a short-term stay of the settlement and give the parties until Monday to respond on whether to more permanently block it.
● Ohio: The 6th Circuit Court of Appeals has blocked a lower court ruling that forbade Republican Secretary of State Frank LaRose from preventing county election officials from providing more than one drop box for ballot returns. LaRose's directive that each county may only set up one drop box is now back in effect.
● Pennsylvania: The Pennsylvania Supreme Court has agreed to take up Democratic Secretary of State Kathy Boockvar's request for it to clarify whether state law allows counties to reject mail ballots based on signatures purportedly not matching the ones on file without notifying voters and giving them a chance to correct the problem. Boockvar had issued a directive last month telling counties that they were required to give voters a chance to fix problems, but the Trump campaign contested it in a separate federal lawsuit.
Meanwhile in that same federal case, a district court has rejected Trump's request to ban dropboxes and allow voters to serve as poll watchers outside their home county, which opponents argued was an attempt to encourage voter intimidation in cities with large Black populations. Trump is appealing to the 3rd Circuit Court of Appeals.
(Note: Daily Kos Elections contributing editor Arjun Jaikumar is representing a party in this case. He took no part in the production of this writeup.)
● Tennessee: The 6th Circuit Court of Appeals has upheld a lower court ruling refusing to require that Tennessee officials allow mail voters a chance to fix problems with their ballots that would otherwise result in their votes being rejected.
● Texas: Latino voter advocates announced they will appeal to the U.S. Supreme Court after three Trump-appointed judges on the 5th Circuit Court of Appeals reversed a lower court ruling that had blocked a limitation on counties having more than one location for returning mail ballots regardless of population size. The 5th Circuit's ruling came down even though federal courts across the country have been blocking efforts to change election rules too close to the election and GOP Gov. Greg Abbott issued the limitation only on Oct. 1.
Regardless of the federal litigation, a separate state lawsuit has seen a lower court block Abbott's limitation on mail ballot return locations, though Republicans quickly vowed to appeal.
In two separate state court lawsuits over voting access, the first saw the all-GOP state Supreme Court reject right-wing activists’ challenge to Abbott's order extending early voting by six days, leading to it beginning this week. In the second case, a panel on the state Court of Appeals has rejected the state GOP's request to ban curbside voting in Harris County, which is home to Houston and is the state's most populous at 4.7 million people, but the state Republican Party will appeal to Texas' high court.
● Wisconsin: Democrats have filed an appeal with the Supreme Court asking it to reverse a recent 7th Circuit Court of Appeals ruling that had blocked a lower court's order to count ballots that are postmarked by Election Day and received by Nov. 9.
● Overseas Voters: A federal district court has rejected a request by voters from Georgia, Kentucky, New York, Ohio, Pennsylvania, Texas, and Wisconsin who currently reside abroad and were seeking to be able to receive and return their ballots electronically, a process that is already available to the military and even some civilians in other states.
