Leading Off
● Virginia: Democrats in Virginia, who won control of state government last year for the first time in a quarter century, have now used their new majorities to advance a slew of bills to expand voting access and reform how elections work. Below, we'll detail each of these reforms, which include:
- Same-day voter registration;
- Automatic voter registration;
- No-excuse absentee voting and prepaid postage on mail ballots;
- Protections for minority voting rights modeled after the Voting Rights Act;
- Redistricting reform;
- Loosening the state's voter ID requirement;
- Joining the National Popular Vote Interstate Compact;
- An Election Day holiday;
- Extending polling hours on Election Day;
- Letting localities adopt instant-runoff voting for local elections; and
- Requiring hand-filled paper ballots or machines that print paper ballots.
Campaign Action
One major focus of Virginia Democrats' reforms has been making it easier to vote, and to that end, the changes to registration would be among the most consequential. The state House passed a bill that would let voters register on the same day they cast a ballot, including on Election Day, starting in 2022. Democrats in both chambers also passed bills to automatically register voters who conduct business with the state Department of Motor Vehicles, unless they opt out.
Additionally, Democrats in the House and Senate passed bills to remove the excuse requirement to vote an absentee ballot either by mail or in-person, which could make it much easier to vote before Election Day since Virginia still does not offer early voting.
Relatedly, House Democrats passed a bill that would have the state prepay the cost of postage on mail ballots, which would make voting even more convenient by saving voters a trip to the post office. Lastly on the absentee ballot front, the state House unanimously passed a bill requiring officials to count absentee ballots that arrive up until noon three days after Election Day so long as they are postmarked by Election Day.
For those voting on Election Day itself, the state House passed a bill to extend the state's poll closing time from 7 PM local time to 8 PM. Democrats also passed bills in both chambers to replace a holiday honoring Confederate generals with one making Election Day a state holiday. While this Election Day holiday is intended to increase voting access, it could have the unintended consequence of making voting harder for certain groups or creating economic burdens unrelated to voting.
House Democrats and a few Republicans also passed a bill to create a state-level equivalent of the Voting Rights Act. The legislation would impose a requirement that all localities in the state "preclear" any proposed changes to election rules or procedures with either the state attorney general (currently Democrat Mark Herring) or with the state Court of Appeals to ensure that they do not discriminate against any racial, ethnic, or language minority. Before it was gutted in an infamous 2013 Supreme Court ruling, the federal Voting Rights Act imposed preclearance requirements on a swath of states and localities with a history of discriminatory voting laws, including Virginia.
Democrats also turned their attention to rolling back voting restrictions that Republicans had enacted over the last last decade by replacing the GOP's requirement that voters present a photo ID to vote. Instead, both chambers passed bills to allow non-photo IDs, such as a bank statement or utility bill, and if voters lack such an ID, they can sign a sworn statement attesting to their identity under penalty of felony. House Democrats also passed another measure allowing certain out-of-state college IDs to count for the voter ID requirement so long as they contain a photo. All in-state IDs would be valid.
Democrats also passed a number of measures to change how votes are cast and how the electoral system operates. One of these bills, approved by the state House, would require that voting be conducted using paper ballots filled out by hand, or with voting machines that mark a paper ballot that voters could verify and would count as the official record.
House Democrats also passed a bill that would add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, which would assign each member state's electoral votes to the national popular vote winner once states containing a majority of electoral votes have signed on. If the Senate and Democratic Gov. Ralph Northam also back the bill, it would bring the compact to 209 electoral votes, putting it 61 shy of the 270-vote majority needed for it to enter into effect.
Democrats in the lower chamber also advanced legislation to let cities and counties adopt instant-runoff voting (aka ranked-choice voting) in local elections. This system would let voters rank candidates in order of preference, and if no candidate wins an initial majority, then the last place candidate is eliminated and has their votes reassigned to each of their voters' next preferences. This process would repeat until one candidate wins a majority among remaining ballots.
Finally, Democrats have advanced several bills in both chambers that would transform how congressional and legislative redistricting works. As we've previously explained, Democrats are considering two different approaches, one that advanced on a bipartisan basis and one that proceeded along party lines.
The bipartisan approach seeks to once again pass a constitutional amendment that the legislature previously passed in 2019, when Republicans held a majority. The amendment creates a bipartisan commission that would draw maps based on nonpartisan criteria and submit them to legislators, who could only vote them up or down and could not amend them.
However, this amendment was a compromise that lacked key protections against racial and partisan gerrymandering, and it gives the conservative-dominated state Supreme Court a major role if commissioners or lawmakers fail to pass a map. It's too late to advance another amendment in time for the next round of redistricting because the same amendment must be passed both before and after a state general election. In an attempt to resolve this problem, Democrats have moved forward with companion legislation to add further protections, though they would not become part of the constitution.
As an alternative to this amendment, Democrats have advanced a statutory advisory commission that limits the role of the state Supreme Court. This commission would let lawmakers draw their own maps via amendments if they reject the commission's first two proposals, potentially opening the door to Democrats gerrymandering after 2020. However, Democrats have still included nonpartisan criteria that would legally bind any new maps drawn this way, which could give a court an opening to strike down an extreme gerrymander.
If Democrats take this second approach, the criteria would be in place for 2021 redistricting only by statute. Democrats say they would try to later pass a stronger constitutional amendment for future redistricting cycles.
Democrats have also advanced bills to end prison gerrymandering by counting incarcerated people at their last known address instead of where they are imprisoned (and can't even vote). This change would likely shift representation from whiter rural communities to urban communities of color, particularly at the legislative and local levels.
Not every election-related reform advanced, however. One of the biggest disappointments came when Democrats failed to pass meaningful campaign finance reforms in either chamber. Virginia is one of the few states in the country that has no limits whatsoever on direct donations to candidates for state office, meaning a single billionaire or corporation could unilaterally fund a candidate's entire campaign—something that is not without precedent.
Additionally, Democrats failed to pass a constitutional amendment in either chamber curtailing Virginia's felony voter ban, which is one of the most extreme in the country because it imposes a lifetime ban for any felony conviction unless the governor individually restores a voter's rights. This ban was part of a package of racist laws designed to "eliminate the darkey as a political factor," as a leading proponent put it in 1902, and until 2016, one in five black Virginians was banned from voting for life—five times the rate of whites.
In practice, the lifetime ban is not in effect because Northam and his predecessor, Terry McAuliffe, issued executive orders automatically restoring voting rights upon the completion of sentences beginning in 2016. However, a future Republican governor could reverse this policy.
Lastly, the Senate blocked a bill that would have allowed 16- and 17-year-olds to "pre-register" to vote so that they would have been automatically added to the voter rolls once they turned 18, with a single Democratic senator, Lionell Spruill, siding with the Republican minority (one Democrat was absent).
While the Senate has yet to take up many of the bills approved by the House, Democrats hold a majority there and should be able to pass them and send them to Northam for his signature. However, that majority stands at a slim 21-19, and as the fate of the pre-registration bill shows, it only takes a minimal number of defections to defeat a particular piece of legislation.
D.C. Statehood
● Washington, D.C.: Democrats in the U.S. House have passed a bill out of committee along party lines to grant statehood to Washington, D.C. A majority of House members—all Democrats—have already signed on as co-sponsors of the legislation, so it appears very likely to pass. House Majority Leader Steny Hoyer, the number two Democrat in the chamber, has promised that a vote on the full floor will take place "before the summer."
Senate Republicans, however, will never let this measure come up for a vote, but if Democrats retake the presidency and Senate in November and eliminate the filibuster, they could pass it into law with simple majorities.
Voter Suppression
● Arizona: An 11-judge panel on the 9th Circuit Court of Appeals has stayed its recent ruling that had struck down two Republican-backed voting laws: one that had banned votes from being counted if a voter showed up at the wrong polling place but in the right county, and another that placed limitations on who can turn in another person's absentee mail ballot on their behalf.
The panel had ruled that that Republicans had intentionally discriminated against Native American, Latino, and black voters, many of whom lack reliable postal service and access to transportation particularly in rural areas. However, it nevertheless temporarily blocked its ruling while Republicans appeal to the Supreme Court.
Consequently, there's a good chance that these provisions will remain in effect for both the August primary and November general election, since it's unlikely the appeal will be resolved before then. There's also a strong chance that the Supreme Court's conservative majority will ultimately overturn the 9th Circuit's decision.
● Georgia: Federal District Court Judge Amy Totenberg has dismissed a lawsuit that had argued that the Atlanta metro area's four largest counties had failed to make available enough polling places and voting equipment during the 2018 elections, which had caused hours-long lines in some polling places. The four counties—Cobb, DeKalb, Fulton, and Gwinnett—cast one-third of the state's votes in 2018 and are a critical Democratic stronghold.
Totenberg ruled that the ACLU had failed to "establish how the court can effectively redress the asserted injuries." However, she also suggested plaintiffs could find more success if they seek specific remedies from the court if problems persist in the future. However, that may be little comfort for voters in 2020 if they have to wait until after potential issues develop in this year's elections before they can file a legal challenge. The ACLU hasn't said whether or not it will appeal.
● Minnesota: The ACLU and two St. Paul City Council members have filed a lawsuit in state court arguing that Minnesota is violating the U.S. and state constitutions, as well as the federal Voting Rights Act, by restricting who can assist voters with disabilities or who need translation help with casting their ballots. State law limits an individual assisting voters to helping no more than three voters, and candidates are barred from helping voters cast their ballots
When plaintiff Dai Thao, a City Council member who was running for mayor in 2017, assisted an elderly voter who was a fellow member of the Hmong community and did not speak English, he was charged by local prosecutors for violating state law barring candidates from assisting voters. A state court held that the Voting Rights Act protected Thao's actions even though they violated state law, and he was found not guilty, but the law still remains on the books.
This is the second lawsuit challenging restrictions on voter assistance in recent weeks. Democrats previously filed a lawsuit in state court last month opposing the limit on how many voters an individual can assist with completing or casting an absentee ballot.
● North Dakota: Republican Secretary of State Al Jaeger has agreed to settle two lawsuits that had argued that the GOP's strict voter ID law had intentionally discriminated against Native American voters, handing voting rights advocates in North Dakota a major victory.
Jaeger's move came after a federal court rejected the GOP's motion to dismiss one of the challenges on Monday. The settlement will require the state to enter into a consent agreement enforced by a federal court order to guarantee that Native voters who don't have a residential street address can still vote.
At issue was the law's requirement that voters have a street address on their ID for it to be valid. But because many Native Americans living on remote rural reservations lack postal service and thus don't have a traditional address, a large number of IDs issued by the tribes would have been disqualified. Since many reservation residents also don't drive, they don't have driver's licenses, either.
Federal courts let this law go into effect in 2018, but Native activists were able to blunt much of its impact by raising hundreds of thousands of dollars to print free tribal IDs that included residential addresses. The backlash may have helped spur turnout on Native reservations, with some setting participation records that exceeded levels seen in even presidential years.
As part of the settlement, Jaeger's office has agreed to work with the state Department of Transportation to help voters on reservations obtain a free non-driver ID within 30 days of future statewide elections. Native voters will also be able to mark their residence on a map and therefore shift the burden of verifying their address to the state. Officials will also be required to work to educate the public and train poll workers properly.
Voter Registration and Voting Access
● Alaska: Alaska's state House, which is run by a bipartisan coalition that includes all Democrats and independents plus a quarter of Republicans, has passed a bill to let voters opt into permanently receiving an absentee mail ballot in all future elections. The bill passed along caucus lines, with the Republican minority opposing it. It appears unlikely to become law, however, because Republicans control both the state Senate and governor's office. However, voting advocates could try to pass this measure by ballot initiative, something reformers successfully did with automatic voter registration in 2016.
● Maryland: Lawmakers in Maryland's Democratic-run legislature recently held a state House hearing on a bill that would require polling places for all college or university campuses with more than 4,200 undergraduates, which would affect eight institutions in the state. Democrats hold supermajorities and could pass the bill into law even if Republican Gov. Larry Hogan were to veto it.
● Ohio: Voting rights activists have submitted revised ballot summary language for their proposed constitutional amendment to enhance voting rights, which they are trying to put on the 2020 ballot. Republican state Attorney General Dave Yost recently rejected the original proposed language on the grounds that it was too long and described acceptable forms of voter ID that weren't explicitly included in the amendment itself. If this latest summary gets approved, advocates would still need to gather roughly 443,000 signatures to make the November ballot.
As we've previously detailed, the initiative would enact same-day voter registration; automatic registration through Ohio's driver's licensing agency; a guarantee of four weeks of early voting including the two weekends before Election Day; a ban on tightening Ohio's voter ID law to exclude non-photo IDs; and a requirement to conduct routine audits of election results.
● Utah: Utah's Republican-run state House has passed a bill to repeal the straight-ticket voting option, with all Democrats and just over half of Republicans supporting the measure. We've previously explained how repealing the straight ticket voting option has exacerbated long voting lines in other states such as North Carolina in a way that disproportionately affected black voters, who voted straight tickets more often. However, that concern is less of a risk in Utah since the state now votes almost entirely by mail, though repeal could still increase the rate of undervoting in races further down the ballot.
● Washington: Democrats in Washington's state Senate have passed a bill along party lines 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. 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, the bill would expand voting resources and locations on college campuses.
Democrats have, however, failed to advance a bill ahead of a key deadline that would have moved all regularly-scheduled elections (such as those for ballot initiatives and local offices) that are currently held in odd-numbered years to even-numbered years instead. This bill could have had a major impact on local elections by combining them with federal election dates, when turnout is often significantly higher and more demographically representative of the eligible voter population, and it could have saved money on election administration.
Lastly, Democrats have introduced a new bill that would create state-level equivalent of the federal Voting Rights Act's preclearance requirement, imposing a mandate that certain localities in the state "preclear" any proposed changes to election rules or procedures with either the state attorney general or a state court to ensure that they don't discriminate against any racial, ethnic, or language group. Before it was gutted in an infamous 2013 Supreme Court ruling, the federal Voting Rights Act imposed preclearance requirements on a number of states and localities with a history of discriminatory voting laws.
While this bill was introduced after the deadline for committee passage in this legislative session, it's a signal that Democrats could seriously consider the matter after the 2020 elections. Lawmakers elsewhere have also begun advancing similar bills: Virginia Democrats recently passed their own version in the state House, and New York Democrats recently introduced a bill of their own, which could mark the start of a new trend.
Election Security
● Kansas: Lawmakers in Kansas' Republican-run state Senate held a hearing on Wednesday on a bill that would ban the use of paperless voting machines that electronically record votes and instead require that all localities use either regular paper ballots or voting machines that produce a paper ballot that would count as the official record. If the legislature passes the bill and Democratic Gov. Laura Kelly signs it, it would take effect starting in 2021.
Felony Disenfranchisement
● Iowa: Iowa is now the lone state in the country to enforce a lifetime ban on voting for anyone convicted of a felony unless the governor individually restores their voting rights, but Republican state senators have advanced a bill in a subcommittee to ensure that some people stay permanently disenfranchised even if the state reforms its approach.
Most notably, the GOP proposal would require the payment of any restitution to crime victims before anyone convicted of a felony could regain their voting rights. Republican state Sen. Dan Dawson admitted that the payment provision was in fact a tax: "This is not a poll tax. It’s a murder tax. It’s a sexual assault tax. It’s a robbery tax," he said at a recent hearing. "We’re not talking about people who randomly just got charged with felonies. We’re talking about persons who made an affirmative decision to go out and commit a serious crime."
Dawson's argument runs afoul of the 24th Amendment to the Constitution, which guarantees that the right to vote shall not be denied "by reason of failure to pay any poll tax or other tax." However, a handful of other states still have similar payment requirements in place, with the most prominent pending case wending its way through the courts in Florida.
Dawson and his fellow Republicans senators are considering this bill in case the Republican-controlled legislature passes a constitutional amendment to end the lifetime voting ban and automatically restore voting rights to people who have completed their sentences. The House almost unanimously passed just such an amendment last year, and Republican Gov. Kim Reynolds said she supported it, but GOP senators balked at the proposal precisely because it didn't contain Dawson's poll tax provision.
However, Reynolds has it in her executive power to unilaterally restore voting rights to everyone who has completed their sentence, something her two most recent Democratic predecessors did from 2005 until the GOP regained the governor's office after 2010. Reynolds, though, has refused to issue such an order, instead only individually restoring voting rights for a small number of people.
