Leading Off
● New Hampshire: On Thursday, a New Hampshire state court struck down a voting restriction Republicans passed in 2017 that imposed new voter residency requirements and made it more difficult for young voters in particular to cast their ballots.
The law in question required voters who registered to vote within 30 days of an election to show additional documentation that they live day-to-day at the residence they claim as their “domicile" and intend to do so long-term. Republicans passed this measure to make voting more difficult for various demographics that lean toward Democrats, such as college students and young adults, who are more likely to move frequently.
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Voters who lacked suitable documentation could only cast provisional ballots, which would only count if they could provide documents proving their residency met the law's requirements at a later date. If they didn't, the law empowered state election officials to visit their homes and refer them to the secretary of state’s office for potential investigation, which may have intimidated voters.
Superior Court Judge David Anderson ruled that the law violated the state constitution's guarantee of the right to vote and that backers failed to prove that it was needed to stop alleged voter fraud. Importantly, Anderson noted that although the plaintiffs couldn't conclusively prove that the law had physically prevented any individual from voting, it was nevertheless unconstitutional because it was intimidating and confusing enough that "it discourages [potential voters] from showing up in the first place."
Republicans say they expect to appeal the ruling to New Hampshire's Supreme Court. The court normally has five members, but it's been left in a 2-2 tie between Democratic and Republican appointees with one seat vacant since last year. However, the justices unanimously refused to temporarily block the law shortly before Election Day in 2018 (a legal provision allows the random selection of a retired judge to temporarily fill the current vacancy).
A separate law that the GOP passed in 2018 specifically targeted out-of-state college students with a poll tax by requiring them to obtain official residency in the state, which requires paying for things like a state driver's license and car registration. A federal lawsuit over that piece of legislation is set to go to trial in late May. The case was sent to the state Supreme Court last month so that it could clarify the facts of what the law actually changes before the litigation could proceed further in federal court.
Election Changes
The following states have recently postponed their primaries:
Georgia: from May 19 to June 9 (presidential and downballot) and from July 21 to Aug. 11 (primary runoffs).
New Jersey: from June 2 to July 7 (presidential and downballot)
Virginia: from June 9 to June 23 (downballot)
You can stay on top of all changes to statewide primary dates by bookmarking our 2020 calendar.
● Arkansas: Arkansas' Republican-run legislature has voted down a proposal by Democratic state Sen. Joyce Elliott to eliminate the state's excuse requirement to vote absentee for the November general elections. Republican Gov. Asa Hutchinson, who waived the requirement in recent runoffs, says he's open to similar waivers if the pandemic remains a threat in the fall.
● Connecticut: Democratic Gov. Ned Lamont says he does not want to cancel the state's presidential primary, which is scheduled for June 2. Democratic Secretary of State Denise Merrill previously said she planned to send an absentee ballot application to every voter, and she had also asked candidates who've dropped out to withdraw their names from the ballot so that she could cancel the election herself. However, both Bernie Sanders and Tulsi Gabbard have not done so, nor has one minor Republican.
Lamont could nevertheless cancel the primaries himself but says that doing so would set a bad precedent. Instead, the governor says he is considering the possibility of delaying the primary, which had originally been set for April 28, until July. Connecticut's downballot primaries will not take place until Aug. 11.
Lamont also says his office is researching whether he can relax the state's requirement that voters present an excuse in order to vote absentee, as Merrill and others have exhorted him to do.
● District of Columbia: The D.C. Council has passed new legislation that requires election officials to send absentee ballot applications with pre-paid return envelopes to every registered voter ahead of the district's June 2 presidential and local primaries. The measure is awaiting Democratic Mayor Muriel Bowser's signature.
● Georgia: The ACLU has filed a lawsuit asking that Georgia election officials include postage-paid return envelopes both for absentee ballot applications and absentee ballots, arguing that the cost of postage amounts to an unconstitutional poll tax in the absence of safe in-person voting.
● Iowa: Republican Secretary of State Paul Pate says that he's considering the option of conducting November's general election entirely by mail. Previously, Pate said he'd mail absentee ballot applications to every active registered voter ahead of Iowa's June 2 downballot primaries. Pate says he considered making the primary all-mail but opted not to after talking to officials in Washington and Oregon, who described the long timeframes that had been needed to convert their states to mail voting.
● Kentucky: Democratic Gov. Andy Beshear says he's "absolutely willing" to conduct Kentucky's June 23 presidential and downballot primaries by mail, adding that doing so would offer a good test in the event that it's necessary to make the November general election an all-mail affair. Beshear says he has been in discussions with Republican Secretary of State Michael Adams, who has said he supports expanding the availability of mail voting but stopped short of endorsing full vote-by-mail where every voter would be sent a ballot by default.
● Maryland: Republican Gov. Larry Hogan has approved a plan to conduct Maryland's June 2 presidential and downballot primaries by mail, with a limited number of in-person voting centers available for those unable to cast mail ballots. Officials will send every active registered voter an absentee ballot with a postage-paid return envelope.
● Minnesota: Democratic Secretary of State Steve Simon has introduced legislation under which every Minnesota voter would automatically receive a mail-in ballot for the state's Aug. 11 down-ballot primaries and the November general election. Voters would be required to have someone witness their ballots. However, Republicans immediately expressed their opposition, meaning it's likely dead on arrival in the GOP-run state Senate.
● Montana: Republican Secretary of State Corey Stapleton says that all 56 Montana counties plan to conduct the state's June 2 presidential and downballot primaries by mail, an option that Democratic Gov. Steve Bullock recently made available.
● New Hampshire: New Hampshire Attorney General Gordon MacDonald and Secretary of State Bill Gardner have released new guidance that effectively waives the state's requirement that voters present an excuse in order to vote absentee this year. The memorandum advises election officials: "Any voter may request an absentee ballot for the September 2020 Primary and November 2020 General Elections based on concerns regarding COVID-19." While a number of states have relaxed their excuse requirements for upcoming primaries, New Hampshire is the first to do so for the November general election.
● New Jersey: Democratic Gov. Phil Murphy says that the option of conducting New Jersey's July 7 presidential and downballot primaries entirely by mail is "still on the table" but added that the state doesn't have to decide "for a number of weeks."
● New Mexico: Attorneys for New Mexico's nonpartisan Legislative Council Service have told the state Supreme Court in a new filing that they believe the legislature's rules forbid lawmakers from convening remotely. In a lawsuit filed last month, 27 of the state's 33 county clerks (with the support of Democratic Secretary of State Maggie Toulouse Oliver) have asked the Supreme Court to order that the state's June 2 presidential and downballot primary be conducted by mail.
Republicans have opposed this request, saying the matter should be handled by the legislature. However, Democrats have said lawmakers are unable to meet safely, prompting the justices to ask the parties and the LCS to brief them on whether legislative sessions must be conducted in-person. Arguments in the case are set for April 14.
● New York: Democratic Gov. Andrew Cuomo has announced that all voters will have a valid excuse to be able to cast absentee ballots in New York's June 23 presidential and down-ballot primaries. New York is one of a number of states that ordinarily require voters to have an excuse in order to vote absentee, and a constitutional amendment that Democrats passed to remove the excuse requirement in 2019 won't be able to take effect until after 2022 at the earliest.
● Oregon: Oregon has announced that it's forging ahead with its May 19 presidential and downballot primaries next month without any changes, which is possible because the state has conducted all elections near-entirely by mail for decades. All voters will receive ballots by mail later this month, and new voters can register until April 28, with an option to do so online. Voters are also able to track their ballots online and can even receive a virtual "I Voted" sticker.
● South Carolina: South Carolina's Republican-run legislature met for a one-day session on Wednesday but failed to take up recommendations issued by the state's Election Commission to ensure the June 9 downballot primaries can run properly despite the threat of the coronavirus, such as removing the requirement that voters present an excuse to request an absentee ballot. The House unanimously passed a stopgap funding bill that included $15 million for election safety measures, but the session collapsed after the Senate passed a slightly different bill due to an entirely unrelated dispute over a state-owned utility company.
Republican House Speaker Jay Lucas reacted angrily, calling the Senate's move "a shameless abdication of leadership." The House also declined to pass a resolution specifying when it would return. This failure affects much more than the primary: Because lawmakers have yet to pass a budget for the coming year, that means South Carolina's state government could shut down when current funding runs out on July 1.
● Texas: Texas Democrats have filed a second lawsuit, this time in federal court, asking that a judge loosen the requirements for requesting an absentee ballot. This suit argues that the state's refusal to allow most voters under the age of 65 to vote by mail violates their rights under the Constitution. The earlier case, which was brought in a state court, makes similar arguments in regard to state law. A hearing is scheduled in the state case for April 15.
● Virginia: Democratic lawmakers are considering whether to move to all-mail elections.
● Wisconsin: A day of maximal chaos in Wisconsin ended on Monday with two conservative courts insisting Tuesday's election had to go forward and limiting absentee voting, moves that threatened to prevent countless voters from participating and render the results illegitimate. The rulings further signaled to Republican-run state governments across the country that any efforts to use the coronavirus pandemic to suppress voters aren't likely to be impeded by judicial review.
On Monday afternoon, Democratic Gov. Tony Evers had issued an executive order postponing the election—which included a presidential primary and general elections for state and local office—to June 9. Republicans, however, have bitterly opposed such a delay and immediately challenged the order before the state Supreme Court. Hours later, the court's four conservatives who heard the case blocked Evers' order, with both liberal justices dissenting. As a result, the state was left with no choice but to proceed with in-person voting Tuesday, despite the serious risks to public health and a crippled elections infrastructure.
Not long thereafter, the U.S. Supreme Court overturned an order issued last week by a lower federal court, which said that voters could cast absentee ballots so long as election officials received them by April 13, regardless of when they were postmarked. In a 5-4 ruling—which, like the Wisconsin high court's decision, fell along strictly partisan lines—the court's Republican appointees ruled that all ballots had to be postmarked by April 7.
This means that those who have the misfortune to receive their ballots late—something that happened to thousands of voters thanks largely to the huge surge in requests—thus faced an impossible choice, as Justice Ruth Bader Ginsburg noted in a dissent: They either had to risk their health by voting in person on Tuesday, or disenfranchise themselves by not voting at all. The same held true for anyone who was unable to request a ballot, as well as the many groups of voters who could not vote by mail, such as people with certain disabilities.
And for those who did choose to head to the polls, they faced an elections infrastructure in shambles. Due to a shortage of poll workers, Milwaukee, the largest city in Wisconsin and home of the majority of its black population, opened just five polling sites, down from its usual 180. The same problem plagued jurisdictions across the state to varying degrees. Many voters were therefore deprived of their right to vote, and efforts to halt the spread of the coronavirus were undermined.
But a deep cynicism motivates the right-wing hostility to letting voters participate in the election safely. Progressives had mounted a competitive campaign to unseat an arch-conservative appointee of former Gov. Scott Walker on the state Supreme Court, but Republicans appeared to deliberately count on the pandemic to disproportionately suppress votes on the left.
In part that's because social distancing is more difficult in denser urban areas, which make up the bulk of the Democratic vote; voters in more sparsely populated rural areas are likely to be less deterred from voting in person, since they're apt to encounter fewer people at the polls or on their way there. In addition, polling has shown Republicans are simply less concerned about the coronavirus in general, meaning they're more willing to ignore the danger to public health (and their own) that in-person voting poses.
And now, after decades of concerted effort, Republicans have succeeded in installing partisan ideologues on the bench—both federally and at the state level—who are only too happy to cloak the GOP's nefarious political goals in the language of legalese and bless them with the authority of the bench. In a searing instance of irony, a message atop the Wisconsin Supreme Court's website explained that the courts were closed due to COVID-19—just above a link to the court's order saying Tuesday's election and in-person voting had to take place despite COVID-19.
We won't know if the GOP's efforts were successful until results, which were delayed pursuant to a court order, are released on Monday. But in his ruling last week where he issued that order, federal Judge William Conley also included a pregnant footnote. "The court will reserve," he wrote, "on the question as to whether the actual voter turnout, ability to vote on election day or overall conduct of the election and counting votes timely has undermined citizens' right to vote."
In other words, Conley suggested that he might entertain further challenges after the election if the all-important right to vote has been abridged in some way based on how the election was carried out. As things stand, it's impossible to see how those rights weren't sabotaged, but with Republican partisans in all but name sitting on the bench above Conley, it's just as hard to see them permitting any remedy he might fashion to stand.
Consequently, it will be up to Democrats in Congress and in state governments to ensure that provisions are in place to protect voting for November's general election. Congressional Democrats failed to secure adequate funding and a mandate for states to expand voting access policies such as mail voting in the last coronavirus spending package, but including them in a future stimulus bill is likely their last remaining chance to avoid what's shaping up to be a November disaster.
Felony Disenfranchisement
● Florida: Federal Judge Robert Hinkle granted class certification on Tuesday to Floridians who've served felony sentences but are still banned from voting by a Republican-backed poll tax because they are unable to pay off court fines and fees. Hinkle recently signaled he'd take this step, and previously, he temporarily blocked the poll tax from being enforced on the 17 plaintiffs in the case. Hinkle's new order means that those who can't pay their court debts—likely several hundred thousand people in total—could regain their voting rights following a trial that's set to begin on April 27.
Republicans had appealed Hinkle's preliminary injunction, but the 11th Circuit Court of Appeals declined to overturn it. Republicans have not yet said whether they would appeal to the Supreme Court to reverse the injunction.
