● 2020 Election Litigation: Donald Trump's presidential campaign has lost all but one of the 21 lawsuits and counting it has filed since Election Day in a last-ditch attempt to overturn Trump's Electoral College loss, with judges repeatedly rejecting them as frivolous in unsparing terms. Given the exceedingly low likelihood that these cases will affect the outcome, Daily Kos Elections will hold off on covering any individual suit in this edition of the Voting Rights Roundup, but that doesn't mean these cases don't matter.
While Trump has lost almost every case trying to stop Democratic votes from being counted, the deeper aim of his post-election litigation isn't to secure Trump a second term but rather to delegitimize Joe Biden's victory and our very democracy itself. Trump's scorched-earth tactics will help falsely convince tens of millions of Republicans that the election was stolen from them, endangering the stability of our political system and providing further pretext for congressional Republicans to engage in unprecedented obstruction of Biden's agenda for years to come.
Most ominously, Trump's dead-ender tactics, coupled with Republican leaders' widespread refusal to condemn them or acknowledge that Biden won, may be a dry run for annulling future election losses, increasing the risk of a constitutional crisis.
One major reason why Trump's scorched-earth litigation is going nowhere is that no swing state wound up receiving large numbers of mail ballots after Election Day. Democrats and voting rights advocates had been deeply concerned about the GOP's efforts to suppress mail voters by sabotaging U.S. Postal Service delivery times and invalidating postmarked mail ballots, but as it turned out, the number of later-arriving ballots was not enough to flip the outcome in a single state.
This development was particularly notable in Minnesota and Pennsylvania, where Republicans had waged lawsuits seeking to throw out such ballots, and on Friday, the 3rd Circuit Court of Appeals rejected the GOP’s request to overturn a lower court ruling that came down before Election Day allowing such ballots to count.
The GOP's legal efforts in Minnesota and Pennsylvania had even prompted officials to segregate postmarked ballots from those received by Election Day should they later be invalidated, and the Supreme Court's far-right hardliners appeared poised to do just that in a separate Pennsylvania suit. However, all of these cases are now effectively moot as far as the result in the Electoral College is concerned.
This outcome doesn't mean that the fight over these ballots—and GOP attempts to disqualify them—didn't matter, though. The low number of later ballots was a direct result of hard work by Democrats and civil rights advocates to educate voters about the pitfalls of mail ballot deadlines and Republican efforts to disenfranchise them. Democrats had widely urged their voters to request and return their mail ballots as soon as possible, or vote in-person, to ensure officials received their ballots by Election Day, an effort that succeeded.
● California: After securing overwhelming majorities in the legislature once more, California Democrats are considering whether to make statewide vote-by-mail permanent after temporarily adopting it for 2020 as a pandemic-related measure. While much of the state had already been transitioning to all-mail voting, Democratic Assemblyman Marc Berman vowed to introduce a bill for next year's session extending vote-by-mail to all future elections.
● New York: New York Democrats, who will likely maintain decisive legislative majorities once all mail votes are tallied, have introduced a bill to allow mail ballots to be counted in advance instead of waiting until days after Election Day to begin counting them. Almost every other state lets election workers begin processing mail ballots in advance of Election Day, but New York's existing law has led to major delays in vote-counting after the pandemic caused a surge in mail votes this year.
● South Carolina: Republican Gov. Henry McMaster says he opposes making any form of advance voting permanent even though South Carolina allowed absentee mail voting without an excuse due to the pandemic. That would leave South Carolina as one of just six states after 2020 without either in-person early voting or no-excuse mail voting.
● Vermont: Democratic lawmakers are considering permanently adopting mail voting statewide after Vermont mailed every voter a ballot in 2020 for the first time as a temporary measure during the pandemic. However, Republican Gov. Phil Scott has not indicated whether he supports or opposes the measure (he let the 2020 changes become law without his signature), and Democrats will no longer have the ability to override his vetoes after 2020 on their own.
2020 Census and Reapportionment
● 2020 Census: A third federal district court, this time ruling in a case brought in Maryland, has blocked Trump's directive that had ordered the Census Bureau to exclude undocumented immigrants from the reapportionment data used to determine how many congressional seats and Electoral College votes each state will receive after 2020. Trump is already appealing his loss in another similar case to the Supreme Court, which has set oral arguments for Nov. 30.
● Arizona, Michigan, Minnesota, Pennsylvania: After leading in key races last week, Republicans have held onto both legislative chambers in Arizona and Pennsylvania, along with Michigan's state House and Minnesota's Senate. The GOP therefore maintains full control of state government in Arizona and will prevent unified Democratic governments in Minnesota and Pennsylvania that could have enacted new voting reforms. These victories also further cement the GOP's large national advantage over 2020s redistricting, which we delved into in-depth last week.
● Illinois: Democratic incumbent Thomas Kilbride became the first state Supreme Court justice in Illinois history to lose a retention election since the state adopted such elections in 1964. Kilbride won the support of 56% of voters in the 3rd District as of Nov. 4, and while many mail ballots had yet to be counted as of last week, these ballots are unlikely to put him over the 60% threshold needed for a third 10-year term.
Consequently, the remaining six justices, who are evenly split between the two parties, unanimously chose Democrat Robert Carter to replace Kilbride, meaning Democrats retain a 4-3 majority, but it may not be for long. With the 74-year-old Carter promising not to seek a full term in 2022 and the conservative-leaning 3rd District thus facing a partisan open-seat contest next election cycle, Republicans will now have a chance to gain a 4-3 majority on the court for the first time in several decades.
A potential GOP majority on the court would have key implications for voting rights and redistricting that we'll explore in a future edition of the Voting Rights Roundup. Democrats in the legislature could, however, draw a new map for the court that could dramatically change the calculus.
Election Administrator Elections
● Maricopa County, AZ Recorder: Republican Stephen Richer reclaimed this post for his party by unseating Democratic incumbent Adrian Fontes 50.1-49.9, with Fontes conceding on Thursday. The recorder is tasked with administering elections in Maricopa County, which is home to more than 60% of Arizona's population and whose 4.5 million residents make it the fourth-largest county in the country. The county's Republican-run Board of Supervisors members took control of key powers from Fontes' office following his 2016 victory, though Fontes nevertheless was able to institute a major overhaul and modernization of Maricopa's voting systems.
● Alaska: A ballot initiative appears poised to pass that would replace Alaska's electoral system with a primary where all candidates regardless of party run on the same ballot and the top-four finishers advance to an instant-runoff general election. The measure trailed badly on Election Night, but as mail ballots have been tallied, Measure 2 took a lead of around 500 votes out of 313,000 cast as of Friday afternoon, a margin of 0.06%.
Overseas and military ballots postmarked by Election Day can still be received through Nov. 18, so we likely won't have any definitive calls until at least next week. However, if this measure is approved, Alaska would also become the second state after Maine to adopt regular instant-runoff voting in presidential elections. It would also require greater campaign finance disclosure to combat dark money.
● Mississippi: Following the passage by a 79-21 margin of a measure put on the ballot by the GOP-run legislature that ended Mississippi's Jim Crow-era "electoral college" in elections for statewide executive offices such as governor, the plaintiffs who were suing over it in federal court have indicated they will likely withdraw their lawsuit.
This measure requires a separate runoff election in case no candidate wins a majority instead of throwing the decision to the GOP-gerrymandered state House, which made it effectively impossible for Democrats to win barring an improbable landslide. A separate runoff could still penalize Black voters and the Democrats they support if Mississippi sees turnout drop in future runoffs. Nevertheless, a runoff would still be far less of a barrier than the defunct Jim Crow-era law, which could have required a 15% popular vote victory for Democrats to prevail.
● Puerto Rico: By a 52-48 margin, Puerto Rico voters have approved a measure put on the ballot by the pro-statehood New Progressive Party that asked the island's residents whether their government should seek statehood for the territory or retain its current commonwealth status.
This referendum is just the latest in a string of votes that have sought to resolve questions around the territory's status. What sets it apart from previous measures, however, is that it's the first that both asked a relatively straightforward "yes" or "no" question on statehood, unlike 2012's multi-part referendum, and did not see a significant undervote or boycott by statehood opponents like a 2017 referendum did.
Nevertheless, the referendum is unlikely to lead to change in the short term so long as Republicans hold the Senate. Senate Majority Leader Mitch McConnell and other GOP senators have opposed the idea, claiming statehood would lead to "socialist agenda." A Democratic Congress, however, could admit Puerto Rico as a state if the Senate were to abolish the filibuster.
● Oakland, CA: Voters in Oakland, California have voted heavily in favor of lowering the voting age to 16 in school board elections, passing a ballot measure to do so by a 2-1 margin.
● San Francisco, CA: Voters in San Francisco appear to have voted by a slim 50.8-49.2 margin to reject lowering the voting age in local elections to 16. Ballots that are postmarked by Election Day continue to arrive and be counted by officials, but the margin of defeat has barely budged since Election Night. This loss marks the second time in four years that voters have narrowly rejected this proposal after it failed 52-48 in 2016, meaning San Francisco won't become the first major U.S. to lower the voting age. However, advocates sound likely to try again in future elections.