Programming Note: The Voting Rights Roundup will be on hiatus the week of May 22 and will return the following week.
● Missouri: Republicans in the Missouri House followed their counterparts in the state Senate and passed a constitutional amendment on Wednesdays that would gut the reforms voters approved in 2018 to make legislative redistricting fairer. After passage in both chambers, the amendment will go before voters as a referendum, likely in November. If voters approve it, maps drawn next decade would continue to give Republicans a large and unjustified advantage, just as they've enjoyed over the past 10 years.
Under Missouri's previous system, an equally divided bipartisan commission drew legislative maps every decade without any fairness mandate (lawmakers themselves control congressional redistricting). As a result, the current legislative maps give Republicans a large advantage even though they aren't a one-party gerrymander, thanks in part to the segregation of black and Democratic voters in cities such as St. Louis. Republicans therefore don't want to see maps drawn that give Democrats a more proportionate share of seats, even if the GOP's majorities wouldn't be at risk in this red state.
That 2018 reform amendment altered the existing bipartisan commission by establishing the post of "nonpartisan demographer." That person is tasked with proposing maps to the commission that use a metric called the "efficiency gap" to try to minimize any unfair partisan advantage for either party and promote competitiveness. Commissioners still hold final approval over the maps, but they must attain a supermajority of seven votes out of ten to pass any map.
By contrast, the GOP's amendment would eliminate the post of "nonpartisan demographer" and instead would restore the commission's power to draft maps itself. The amendment also neuters the requirement of partisan fairness in all but name and prioritizes compactness instead, which would reinforce the partisan distortion from racial segregation.
The new amendment also removes a requirement to use the total population for redistricting—the longstanding norm in practically every state—and instead says districts should be drawn based on "one person, one vote." While that may sound fair, it opens the door to using the whiter adult citizen population for the purposes of drawing new lines, something that Donald Trump and Republicans pushed heavily last year as part of a plot to undermine Democratic and Latino representation in redistricting. Although Trump failed in his drive to add a question on citizenship to the census, he's still trying to produce citizenship data by other means for states like Missouri to use.
In order to mislead voters into thinking they're making the system fairer, the GOP has tacked on minor ethics and lobbying restrictions for state lawmakers. Republicans accused the 2018 amendment's proponents of doing this very thing by combining ethics reforms with redistricting reforms, but those reformers were trying to make the system fairer by establishing ethics restrictions in a state that previously had few.
The GOP's new provisions would add little, given how dramatically the 2018 amendment changed the status quo. In one egregious example, lobbyists were previously permitted to give unlimited gifts to lawmakers. The original amendment capped all gifts at $5, leading to a 94% drop in lobbyist spending. The new Republican amendment would simply ban such minor gifts entirely, as though eliminating lobbyists' ability to buy lattes for legislators amounts to meaningful ethics reform.
Voters, however, approved the 2018 reform measure by a 62-38 landslide, and they'll have a chance to reject this power grab at the ballot box. One prominent Republican lawmaker who voted for the repeal amendment nevertheless predicted that the 2020 measure would similarly lose by a decisive margin.
● Electoral College: On Wednesday, the Supreme Court remotely heard oral arguments in a case over the constitutionality of state laws that prohibit "faithless electors" in the Electoral College. Following those arguments, a number of legal analysts concluded that the court appears to be leaning in the direction of upholding faithless elector bans.
These laws prevent electors pledged to a candidate from voting for a different candidate, with some requiring the replacement of electors attempting to vote for a candidate other than the one whose slate they appeared on. 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 ban. The losers in both lawsuits appealed to the Supreme Court, meaning that to resolve this split, the justices must overturn at least one of these rulings.
Those presenting arguments in favor of striking down the bans, which are the law in 32 states and the District of Columbia, did so in the hopes that it would undermine public support for the Electoral College and lead to reforms abolishing it. However, several justices on both the right and the left expressed concern that doing so would "lead to chaos" and a "massive campaign to try to influence electors" in a close election, which could open the door to corruption and potentially the disenfranchisement of voters. Defenders of the bans pointed out that the Constitution gives relatively broad power to state legislators to assign their electors as they please.
The Supreme Court is likely to issue a ruling before the end of its current term in July, but even if it invalidates the bans, the feared chaos scenario may not yet come to pass. Faithless electors have been rare in U.S. history, and campaigns would likely react to a decision striking down the bans by more intensely scrutinizing whom they select to ensure loyalty.
However, in a close Electoral College result, the possibility remains that someone could attempt to bribe or blackmail electors after Election Day. And in a country where Donald Trump and his supporters routinely try to undermine the acceptance of legitimate election results that don't go his way, anything that further discredits U.S. electoral institutions without establishing an acceptable alternative risks leading to a legitimacy crisis where one side refuses to abide by the outcome.
● Georgia: Federal District Judge William Ray, a Donald Trump appointee, has declined to issue a preliminary injunction in a lawsuit seeking to require that Georgia mail out absentee ballot applications in both English and Spanish in Gwinnett County. Gwinnett is a populous Democratic-leaning suburb of Atlanta that has a sizable Latino minority and is therefore required under the Voting Rights Act to provide bilingual voting materials. Republican Secretary of State Brad Raffensperger launched a plan to mail applications for absentee ballots to all active registered voters ahead of the June 9 primary, but only in English.
In his ruling, Ray held that the VRA's language requirement only applied to Gwinnett County election officials and not the state of Georgia. As a result, he concluded that Raffensperger "has no duty" to mail out Spanish-language voting materials. The plaintiffs have not indicated whether they will appeal.
● New Hampshire: New Hampshire Republicans have asked the state Supreme Court to take up their appeal of a lower court ruling last month that struck down their 2017 law imposing additional residency restrictions on voter registration, which the court deemed a violation of voters' rights. The Supreme 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. A retired justice or trial court judge would be randomly selected to participate as the fifth member in the likely event that the vacancy continues.
As we've previously explained, 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. The lower court ruled that the law was intimidating and confusing enough that "it discourages [potential voters] from showing up in the first place."
● Oklahoma: Oklahoma's Republican-run state Senate may soon take up a bill their counterparts in the House passed in March to enact restrictions on ballot measures that could make it disproportionately harder for progressives to place initiatives on the ballot than conservatives.
Under current law, supporters attempting to put a measure on the ballot must gather voter signatures equivalent to 15% of the votes cast in the last gubernatorial election for constitutional amendments, 8% for statutes, and 5% for veto referenda. However, the GOP's proposal would impose that signature requirement in each of the state's five congressional districts.
Because left-leaning voters are heavily concentrated in the two densest districts, centered around Oklahoma City and Tulsa, the new measure would require that organizers gather more signatures in the state's three more rural districts—all of which are heavily conservative. In these sprawling districts, signature-gathering is more burdensome because progressive voters are spread few and far between. By contrast, even the two more-urban districts are still home to many conservative voters, who are more densely located and therefore easier for canvassers to reach.
This effort to restrict initiatives comes amid a push by redistricting reformers to put an amendment on the November ballot to create an independent redistricting commission, which has yet to attain enough signatures. Republicans hold large majorities in the legislature and could put their amendment on the ballot despite near-unanimous Democratic opposition.
● San Diego, CA: A committee on the City Council in San Diego, California has advanced a pair of proposals to reform local elections. One would enact public campaign financing while the other would have the top four finishers in each primary advance to an instant-runoff general election. If the full council approves the proposals, they would go before voters in November as ballot measures.
● San Francisco, CA: A majority on the Board of Supervisors in San Francisco, California has said it supports placing a referendum on the November ballot that would lower the voting age to 16 in local elections, a proposal that voters rejected by a narrow 52-48 margin in 2016. A handful of small localities in Maryland have already adopted this policy, but San Francisco would be the first major city in the country to do so.
While letting 16-year-olds vote is rare in the U.S., several foreign democracies such as Austria, Argentina, and Brazil let 16-year-olds vote in all elections. A majority of House Democrats also voted to lower the voting age to 16 for federal elections last year, but that provision failed to pass due to opposition from many Democrats and all but one Republican.
State Supreme Court Elections
● Georgia: Georgia's Republican-dominated Supreme Court has upheld a lower court ruling that had sided with Republican Secretary of State Brad Raffensperger in a lawsuit over his decision to cancel a Supreme Court election for a GOP-held seat that had been set to take place alongside the state's June 9 primary. The cancellation prevented former Democratic Rep. John Barrow and former Republican state Rep. Beth Beskin from running for the seat, which had prompted both to sue.
Raffensperger canceled the election after GOP-appointed Justice Keith Blackwell announced his intention to resign in November, which is several weeks before his term was set to end. Even though Blackwell remains on the court, the move gave Republican Gov. Brian Kemp the power to appoint Blackwell's replacement and put off a potentially competitive election until 2022. The Supreme Court held, in a 6-2 decision, that, although the lower court's ruling used mistaken reasoning, it reached the correct outcome because Blackwell's resignation was irrevocable once Kemp accepted it.
In March, five of the high court's justices, including its lone Democrat, removed themselves from the case and were replaced by five lower court judges (one of the nine seats on the Supreme Court was vacant at the time). However, three Republican justices did not recuse themselves, which prompted Barrow to condemn their participation as a conflict of interest that tainted the case. This is not the first time in recent years that Georgia Republicans have been accused of putting their thumbs on the scale to cement their hold on the state's highest court: In 2016, state lawmakers under former GOP Gov. Nathan Deal effectively packed the court by adding two seats to the bench.
A separate federal case is still pending and could still give Barrow a chance to run if the plaintiffs prevail. Beskin is instead challenging a Republican justice in another seat that is still up for election next month.
● Congress: House Democrats have introduced a $3 trillion coronavirus spending bill that includes a number of provisions affecting elections and voting, including $25 billion in funding for the U.S. Postal Service to prevent it from running out of operating funds before November. The bill would also allocate $3.6 billion in grants to states and include mandates that they establish:
- 15 days of early voting;
- Online voter registration;
- Same-day voter registration;
- No-excuse mail voting upon request;
- Universal voting-by-mail in emergency situations like the current pandemic;
- Prepaid postage on mail ballot materials;
- No witness, notary, or voter ID requirements for mail ballots;
- A non-arbitrary process for matching voter signatures that gives voters a chance to correct problems;
- Ballots will count so long as they're postmarked by Election Day and received within a few days afterward;
- Third-party organizations such as community groups may collect and submit voters' mail ballots on their behalf.
However, it's doubtful that any of these provisions will become law, since Democrats proposed similar measures in March before Congress passed the first multi-trillion dollar spending bill only for Democrats to drop them in order to reach agreement with Republicans, who opposed all of these proposals. Politico reports that congressional Democrats "acknowledge that [the bill] is more of a talking point than legislation that they expect to become law."
● Arkansas: Republican Gov. Asa Hutchinson says he will implement no-excuse absentee voting for the November general election but only if "we’re still in a public health emergency." Hutchinson did not, however, specify a deadline by which he might act. Previously, the governor waived the excuse requirement for Arkansas' late-March primary runoffs.
● Georgia: A federal court has dismissed a lawsuit brought by voting rights advocates asking that Georgia be required to delay its June 9 primary until at least June 30 and implement several safety measures, including curbside voting and the elimination of touchscreen voting machines. The judge, George W. Bush appointee Timothy Batten, concluded that plaintiffs had presented "a nonjusticiable political question," meaning that the relief requested should not be addressed by the courts but instead by the political branches of government, in this case the state legislature.
This is the first such case decided in the COVID-19 era to dismiss claims based on the political question doctrine, a move that election law expert Rick Hasen called "troubling." Plaintiffs have said they are "considering alternatives" but have not yet said whether they will appeal.
Meanwhile, Democrats have filed a federal lawsuit seeking to require that Georgia loosen its restrictions on voting absentee by mail. Their suit asks the court to order that the state prepay the cost of postage, count ballots that are postmarked by Election Day so long as they arrive within seven days afterward, implement procedures to prevent ballots from being arbitrarily rejected for a supposedly non-matching signature on their ballot envelope, and allow third-party groups such as political campaigns or community groups to collect and submit completed absentee ballots.
● Maryland: Republican Gov. Larry Hogan has let a bill to prepay the cost of postage on mail ballots become law without his signature after Maryland's Democratic-run legislature passed the measure earlier this year. Hogan had already implemented a plan via executive action to conduct the June 2 primary almost entirely by mail with postage prepaid, but this new law will extend the postage provision to November and future elections.
● Minnesota: Democratic Secretary of State Steve Simon says he's considering mailing absentee ballot applications to all voters after Minnesota's Republican-run state Senate rejected his plan to conduct this year's elections by mail. Previously, Democratic Gov. Tim Walz refused to rule out ordering all-mail elections for either the Aug. 11 primary or the November general election.
Meanwhile, A group of voters backed by the Democratic-affiliated National Redistricting Foundation has filed a lawsuit asking a state court to relax two Minnesota laws related to absentee voting. Plaintiffs want the court to strike down the state's requirement that absentee ballots be witnessed or notarized, and they also want the deadline for ballots to be received extended from Election Day to "a reasonable period of time after Election Day."
The suit does not suggest a specific preferred deadline but it does point to recent litigation out of Wisconsin where the U.S. Supreme Court ruled that ballots postmarked by Election Day would count as long as they arrived within six days.
● Nevada: A right-wing group that previously had a challenge to Nevada's plan to conduct its June 9 primary by mail rejected by a federal judge has filed an amended complaint in an attempt to revive its case. The plaintiffs claim, "Expanding mail balloting is unnecessary to combat COVID-19" and insist that "the spread of the virus is being controlled." Democratic Gov. Steve Sisolak recently said of the state's efforts to combat the pandemic, "I see some folks saying mission accomplished. That’s not true."
● New Jersey: Democratic Gov. Phil Murphy has announced that New Jersey will conduct its July 7 primaries predominantly by mail, though each of the state's 565 municipalities will be required to open at least one polling site. Active registered Democrats and Republicans will be sent mail-in ballots while inactive and unaffiliated voters will receive applications that will allow them to request a ballot for one of the two major parties' primaries; all will include pre-paid return envelopes.
● Ohio: Following a state court ruling prohibiting ballot initiative supporters from gathering voter signatures electronically in order to qualify for the November ballot, plaintiffs have withdrawn their case. The plaintiffs, which include backers of an initiative to raise the minimum wage, had previously said that they were considering whether to take their case to federal court instead but have yet to announce a decision.
If Ohioans aren't allowed to sign petitions electronically, that could also make it impossible for another initiative to qualify for the ballot that would amend Ohio's constitution to enact automatic and same-day voter registration and protect expanded early voting.
● Oregon: Supporters of a ballot initiative to amend Oregon's constitution and create an independent redistricting commission have announced that they will begin gathering the roughly 150,000 signatures required by mail in order to qualify for the November ballot ahead of the state's July 2 deadline. Voters can download a form online to print out and mail in.
● South Carolina: Republican Gov. Henry McMaster has signed a new bill passed by South Carolina's Republican-run legislature that will allow any voter to request an absentee ballot for the state's June 9 primaries and June 23 runoffs. Under state law, voters must present an excuse in order to apply for an absentee ballot; all voters can now select the option of "state of emergency" in making their requests. The new law does not apply to the November general election, and multiple state and federal lawsuits over the requirement remain ongoing.
● Texas: On Thursday, a Texas appeals court upheld an injunction issued last month by a lower court allowing voters to cite concerns about the coronavirus pandemic as a valid reason to request an absentee ballot. A day earlier, Republican Attorney General Ken Paxton, who is fighting the injunction, filed a request with the all-Republican state Supreme Court asking the justices to bar election officials in five large urban counties, all of which lean toward Democrats, from providing absentee ballots due to the pandemic.
Meanwhile, the NAACP and other civil rights advocates in conjunction with national Democrats have filed a federal lawsuit seeking to expand access to absentee mail voting. Plaintiffs request that the court order the state to prepay the cost of postage, extend the deadline by which ballots that have been postmarked by Election Day must be received by officials from one day after Election Day to no later than the date that election officials canvass the votes, prevent the state from using arbitrary standards to reject absentee ballots for supposedly non-matching signatures without giving voters a chance to fix the problem, and allow a third party to collect and turn in completed absentee ballots.
In addition to the above lawsuits over absentee voting Democrats had previously filed a separate federal lawsuit challenging Texas' requirement that voters under age 65 provide a specific excuse to be able to vote absentee by mail. That case is still pending in lower court.
Lastly, Republican Gov. Greg Abbott has extended the starting date for early voting in the July 14 primary runoff from July 6 to June 29, giving voters two weeks of early voting instead of one.
● Vermont: A committee in Vermont's heavily Democratic state Senate is preparing legislation that would eliminate Republican Gov. Phil Scott's ability to block Democratic Secretary of State Jim Condos from mailing ballots to all voters for the state's Aug. 11 primaries and the November general election.
Scott previously said he has "concerns" about the state's ability to print ballots quickly enough, but Democrats and their allies in the the left-wing Vermont Progressive Party could override a Scott veto of any bill that would cut him out of the loop. That may not be necessary, however. Scott more recently said, "I’m not comfortable making this decision right now" regarding Condos' plan, "but if the Legislature wants to take other action, I’m not going to stand in their way."