Leading Off
● 2020 Census: Shortly after taking office, President Joe Biden issued an executive order aiming to undo Donald Trump's attempt to weaponize the census against Latinos and Democrats to undermine their political representation.
Biden's order rescinds Trump's directive that would have unconstitutionally removed undocumented immigrants from the population totals used to reapportion congressional seats and Electoral College votes among the states. It also directs the Census Bureau to halt the collection of citizenship data from administrative records, which Trump had ordered after he failed to get a citizenship question added to the 2020 census.
Consequently, the census announced that it would no longer release citizenship data at the granular geographic level that is used to craft new maps, likely making it impossible for states to draw districts on the basis of adult citizens instead of total residents, the latter of which has been the longstanding norm throughout U.S. history. As documents from a top GOP operative leaked in 2019 confirmed, the GOP has pushed to draw districts based on only adult citizens because it would be "advantageous for Republicans and non-Hispanic whites," allowing them to turbocharge their gerrymanders.
Campaign Action
Meanwhile, Trump-appointed Census Bureau director Steven Dillingham announced on Monday that he was stepping down this week instead of serving until the end of the year, when his term was set to expire. Democrats had been sharply critical of Dillingham's role in pushing for the release of the citizenship data Trump had requested and had called on him to resign. Biden will now be able to install his own director at the bureau.
Voting Access
● Congress: Joining their House counterparts, Senate Democrats announced that they plan to introduce the "For the People Act," symbolically numbered as S. 1 to designate it as the first bill of the new session, which would enact the largest expansion of voting access since the 1965 Voting Rights Act. HuffPost reports that the House version of the bill could get a vote as soon as Jan. 28, but the Senate version is expected to take longer because hearings need to take place first.
As we detailed last week, this legislation would (1) remove barriers to expanded access to voting and secure the integrity of the vote; (2) establish public financing in House elections to level the playing field; and (3) ban congressional gerrymandering by requiring that every state create a nonpartisan redistricting commission subject to nonpartisan redistricting criteria. Democrats would need to curtail the filibuster to pass the bill in the Senate, given Republican hostility to the measure.
● Delaware: State House Democrats have passed a constitutional amendment in committee along party lines that would eliminate the requirement that voters present an excuse to vote absentee by mail. House Democrats need at least two Republican votes on the full floor for this amendment to reach the two-thirds supermajority needed for passage, although their Senate counterparts could pass the amendment without any GOP support.
● Illinois: State House Democrats have failed to advance a bill before the end of the legislature's lame-duck session that would have permanently adopted some of the absentee voting reforms that Democrats temporarily implemented last year due to the pandemic, including authorizing ballot drop boxes and counting mail ballots without postage. Democrats are expected to try again to pass these provisions in their next session.
● New Jersey: The New Jersey Globe reports that Democratic Gov. Phil Murphy is considering ordering that all voters be mailed a ballot for New Jersey's June 8 primary, which could also be delayed to July if necessary because of the pandemic. Last year, Murphy ordered that ballots be sent to all voters for the November general election.
● South Dakota: Republican Secretary of State Steve Barnett is urging South Dakota's GOP-dominated state legislature to pass a bill that would implement online voter registration, something that only eight other states besides South Dakota currently lack. State House Republicans passed an online registration bill last year, but state Senate Republicans failed to advance it in committee.
● Vermont: Republican Gov. Phil Scott has signed a bill that Vermont's Democratic-run legislature passed almost unanimously to let municipalities decide whether to mail every active registered voter a ballot for the upcoming March 2 "Town Meeting Day" or let them postpone the elections to the spring if needed due to the pandemic. Town meetings are a form of direct democracy unique to New England, during which localities can hold public votes on budgetary and other matters.
● Virginia: Virginia House Democrats have passed a bill along party lines to permanently adopt absentee ballot drop boxes, prepaid postage for absentee mail ballots, a process for voters to fix errors with their mail ballot paperwork, and uniform guidelines for how mail ballots are counted on Election Day to ensure they're counted in a more timely manner. Democrats also passed a bill in a House committee to enable early voting on Sundays, which in other Southern states has been particularly important for Black churches that organize "souls to the polls" voter drives after Sunday services.
In the state Senate, Democrats narrowly passed a bill over GOP objections that would move all municipal elections, which are mostly held in spring, to instead coincide with the November general election beginning in 2022. Turnout in November, when state races are on the ballot, is often much higher than in spring elections, when only local races are up. Adopting this bill would therefore be the easiest way to increase downballot voter participation. It would also save money, since localities would no longer need to hold separate elections in May.
Finally, Democratic Del. Cia Price has introduced a state-level voting rights act that aims to implement some of the protections intended by the federal VRA. Price's bill would ban any voting rules that discriminate against voters based on race or language group. It would also require localities seeking to implement voting rules that affect protected racial or language groups to submit the proposed changes for public comment for a period of at least 30 days or seek the state attorney general's approval to make changes on shorter notice.
Felony Disenfranchisement
● Washington: State House Democrats have introduced a bill that would abolish felony voter disenfranchisement for citizens who are on parole or probation, which would leave only those who are currently incarcerated unable to vote. Democrats hold full control over state government and tried to pass similar legislation in both 2019 and 2020 but narrowly failed to do so. This latest bill so far has 40 House sponsors, putting it within striking distance of the 50 votes needed for passage in the lower chamber.
Voter Suppression
● Arizona: Republicans have passed a bill in a state Senate committee that would remove hundreds of thousands of voters from Arizona's "permanent early voting list," which mails a ballot to all participating voters by default in all future elections. The GOP's bill would effectively make the mail ballot list no longer permanent by purging voters who don't vote by mail in two consecutive election cycles, thus removing infrequent mail voters even though they remain eligible to vote and have simply exercised their right not to vote that particular method or at all.
Republicans themselves first expanded mail voting in Arizona, establishing the permanent mail voting list in 2007, and most Arizona voters now cast ballots by mail: The permanent list contains 3.2 million of Arizona's 4.3 million registered voters. If this bill becomes law, purged voters would have to reapply for a new mail ballot. Those who don't realize they've been purged might still expect to receive a mail ballot, leading to voter confusion and the risk that affected voters won't be able to cast ballots at all.
In addition to purging the mail voting list, GOP state Rep. Kevin Payne introduced another bill that would require mail voters to get their ballots notarized, a cumbersome process that almost no other states require. It's unclear whether Republicans are considering passing Payne's bill, but both of these proposed voting restrictions come in response to Biden and Democrats winning Arizona in 2020, which saw heavy Democratic usage of mail ballots.
● Kentucky: Democratic Gov. Andy Beshear has vetoed two power-grabbing bills, both of which vetoes the GOP legislature is expected to override. The first bill would strip the governor and Republican Secretary of State Michael Adams of their current power to implement changes to the "manner" of election and voting rules during an emergency and transfer that power to the legislature itself. Last year, Beshear and Adams agreed to use their emergency power to suspend the excuse requirement for voting by mail and implement early voting.
The GOP's other bill would curtail Beshear's power to issue executive orders, requiring that the governor obtain legislative approval for emergency orders after 30 days, which could threaten directives such as one requiring face masks to be worn in public. Furthermore, another provision requires Beshear to seek approval from Republican state Attorney General Daniel Cameron's office to suspend a state law during an emergency, which Beshear decried as unconstitutional.
● Montana: After winning full control over state government in 2020 for the first time in 16 years, some Republicans in Montana are already plotting to enact new voting restrictions. State House Republicans kicked off the effort by holding a committee hearing on Thursday on a bill that would eliminate same-day voter registration, meaning voters would no longer be able to register and vote on Election Day.
While Republicans have the newfound power to pass this restriction into law, opponents retain one critical tool for stopping them by using a veto referendum to uphold same-day registration at the ballot box. Republican legislators previously put a referendum of their own on the ballot to repeal same-day registration, but voters rejected it by a 57-43 margin in 2014.
● New Hampshire: Republicans in New Hampshire have introduced a bill that would repeal same-day voter registration. The measure would also require that college students who are using their school address to register to vote to also swear under penalty of perjury that they have qualified for in-state tuition. Republicans have repeatedly tried to restrict voting access for college students and other young voters in recent years with varying degrees of success, but now that they've won full control of state government—with a major assist from their gerrymanders—they could pass this bill into law without obstacle.
Redistricting
● Arizona: The four Democratic and Republican members on Arizona's independent redistricting commission have unanimously selected psychologist Erika Schupak Neuberg to serve as the commission's unaffiliated chair.
Neuberg has donated thousands of dollars to Republican Gov. Doug Ducey's campaign, but she touted her bipartisan bona fides by claiming that she has given to Democrats as well and had donated to both parties through her role as a board member of the American Israel Public Affairs Committee lobbying group (though AIPAC has become increasingly tied to the Republican Party and Donald Trump in recent years).
Arizona Democrats had expressed major concerns about the chair selection process after Republican Gov. Doug Ducey had stacked the Commission on Appellate Court Appointments, whose members screen the applicants for the redistricting commission, by refusing to appoint any Democratic members to the judicial commission. Democrats had unsuccessfully sued to disqualify two of the five finalists for the role of chair who had extensive ties to Republicans, though commissioners declined to select either of those applicants.
Republicans have repeatedly sought to undermine Arizona's redistricting commission after it passed maps in 2011 that didn't give them the undue partisan advantage they believed they were owed, and they twice sued all the way to the Supreme Court to strike down the commission itself and the maps it had drawn, efforts the court rejected. But now that Trump's appointees have shifted the court even further right, it's possible that Republicans could meet with different luck if they sue to strike down the commission in the coming years.
● New York: Joining their state Senate counterparts, Assembly Democrats have passed a constitutional amendment over GOP objections that would make it easier for Democrats to pass new gerrymanders next year by lowering the threshold needed for legislators to be able to override the bipartisan redistricting commission from a two-thirds supermajority to just three-fifths. However, voters will still have to approve the amendment this November for it to take effect, a prospect that is far from guaranteed.
Nevertheless, it's possible that the lowered threshold won't even matter for the upcoming round of redistricting, since Senate Democrats gained a two-thirds supermajority in November. Democrats even passed the amendment itself with two-thirds supermajorities even though only simple majorities were required, which is another indication that Democrats could muster that same supermajority for passing new gerrymanders anyway, but the lower threshold could still have an impact on future decades if not this one.
While the main purpose of this amendment appears aimed at solidifying Democratic control over redistricting, it does include some nonpartisan redistricting reforms. Those include enshrining in the constitution an existing statutory ban on "prison gerrymandering"; freezing the number of state senate seats at 63; sharply limiting how cities can be split among Senate districts to prevent a repeat of the anti-urban gerrymandering that occurred when the GOP drew the lines after 2010; and authorizing the state to conduct its own census if the federal count is tainted.
● Pennsylvania: A three-judge panel on the Commonwealth Court, one of Pennsylvania's two intermediate appellate courts, has dismissed a lawsuit backed by civil rights advocates that sought to ban the practice of "prison gerrymandering" at the state legislative level by requiring that incarcerated people be counted for redistricting purposes at their last known address instead of where they are imprisoned.
The judges ruled that the plaintiffs had sued the wrong state entities, that it was too late to sue the correct one since the legislative district maps will be redrawn ahead of the 2022 elections, and that it was also too soon to litigate over those upcoming maps that have yet to be redrawn. The plaintiffs have not indicated whether they will appeal.
● Utah: On Thursday, Republican legislators opened up the application process for citizens seeking to serve on Utah's advisory bipartisan redistricting commission, but the announcement came only four days ahead of the Jan. 25 deadline to submit applications, giving Utahans very little time to apply to serve on the commission. Voters adopted the advisory commission in a 2018 ballot initiative that aimed to prevent renewed GOP gerrymandering after 2020, but Republicans gutted key parts of the commission last year to ensure they would remain in control of the process.
Electoral College
● New Hampshire: Five of the 14 Republicans in the New Hampshire state Senate have introduced a bill that would manipulate the state's Electoral College vote allocation by assigning votes by congressional district, which Republicans are positioned to gerrymander ahead of the 2022 elections, rather than statewide. Thanks in part to their existing legislative gerrymanders, Republicans gained full control over state government in 2020 and could pass this proposal over Democratic objections.
If this bill does become law, two of New Hampshire's electoral votes would be assigned to the statewide winner while the other two would go to the respective winners of its two congressional districts. Republicans could then gerrymander the congressional map to pack as many Democrats as possible into one district in order to make the other district favor the GOP.
While the net effect might only result in one extra electoral vote for the GOP, Republican schemes to further exacerbate their existing—and unearned—advantage in the Electoral College are not unique to New Hampshire. Some GOP lawmakers in Michigan and Wisconsin have recently backed the same proposal to award votes by district, while a GOP lawmaker recently introduced a bill to end Nebraska's by-district allocation after Biden won the 2nd District's lone electoral vote; all three proposals would have given Trump more electoral votes had they been in place last year.
