● Redistricting: On Friday, the Census Bureau announced that the granular data needed for states to conduct redistricting following the 2020 census won't be available until Sept. 30 if not later, which is six months after its original March 31 deadline and two months later than the already-delayed July 30 target that it had signaled was possible just last month.
These delays have major implications for redistricting timelines that will make it impossible for a number of states to meet their own legally mandated deadlines for drawing new maps this year, throwing the redistricting process into chaos and uncertainty in many states. (The Brennan Center for Justice previously released a report that looks at which states in particular have deadlines that now conflict with the expected data release timeline.)
Consequently, many states will have to push back their candidate filing deadlines and primary elections for the 2022 elections. In the case of New Jersey and Virginia, this will even mean holding their upcoming 2021 legislative elections under maps that were drawn a decade ago, meaning new maps may not be used before 2023.
States that can’t change redistricting timelines—such as those with timelines embedded in their constitutions—are likely to see litigation seeking to alter these impossible-to-meet deadlines or have courts take over the process. And while the 2020 elections seemingly established which party (if any) would have control over redistricting in each state, that may now be subject to change in some states, most notably Illinois.
Delays also increase the risk that the public won't have sufficient time to scrutinize and mobilize against proposed maps if state lawmakers release their new proposals with little notice before passing them into law. Furthermore, the shortened timeline threatens the ability of gerrymandering opponents to use litigation to enforce state constitutional provisions against gerrymandering or federal law protecting the rights of voters of color in time for such lawsuits to be resolved before the 2022 elections take place. That would mean illegal gerrymanders could remain in place next year even if they're ultimately struck down in court at a later date.
● Montana: On Friday, Montana Republicans passed a bill in state House committee that would effectively gerrymander the state Supreme Court, which currently leans toward Democrats, by switching from nonpartisan statewide elections to elections using districts drawn by Republican legislators. The GOP holds both legislative chambers and could put this bill on the ballot for required voter approval as soon as 2022. The bill specifies how the districts would be drawn for the coming decade and gives the legislature the power to redraw them in subsequent decades.
Daily Kos Elections has calculated several recent statewide election results by the GOP's proposed districts, and had this map been in effect in 2020, four of the seven districts would have seen Republican statewide candidates win by 7 to 8 points more than their statewide victory margins in this already GOP-leaning state. Republicans would therefore be favored to take control over the court.
● New Mexico, South Dakota: A state House committee in Democratic-run New Mexico has unanimously passed a bill to create a bipartisan redistricting commission, while redistricting reform advocates have announced plans to put an initiative on the 2020 ballot to reform redistricting in South Dakota. We will explore each of these proposals in greater depth in a subsequent edition of the Voting Rights Roundup.
Voting Access Expansions
● Florida: Latino voting advocacy groups have reached a settlement with local Florida election officials that will require all counties in the state to provide ballots and other voting materials in Spanish over the next decade, a move that Republican Secretary of State Laurel Lee had directed counties to undertake for the 2020 elections.
● Hawaii: Lawmakers in Hawaii's heavily Democratic state Senate have unanimously passed a bill in committee that would enable counties to operate more in-person voting centers. Hawaii adopted universal voting-by-mail beginning last year, but the limited availability of in-person voting options for the small percentage of voters who still needed to (or simply preferred to) vote that way led to long lines on Election Day, which legislators hope to avoid in the future.
● Maine: Secretary of State Shenna Bellows and state House Speaker Ryan Fecteau, both Democrats, are supporting a proposed bill that would automatically send absentee ballots in future elections to voters who opt in. In addition to the states that already mail every voter a ballot, a growing number of states have created similar systems in recent years that let voters sign up for some form of a permanent or semi-permanent absentee ballot list, eliminating the need to request a ballot for each individual election.
● Maryland: Maryland legislators are considering a bill that would require that voting information and forms be provided to incarcerated citizens who still retain their right to vote and that voter registration forms be given to imprisoned people upon release from custody. Many incarcerated citizens who are in jail awaiting trial or who have only been convicted of a misdemeanor still retain their right to vote, but voting advocates warn that confusion about voter eligibility is widespread for those who are serving or have served time in prison.
● Massachusetts: Democratic Secretary of State Bill Galvin announced this week that he intends to file a bill with the legislature that would adopt same-day voter registration and make permanent pre-Election Day voting options that were temporarily expanded last year due to the pandemic. Massachusetts currently requires voters to be registered no fewer than 20 days before Election Day, and while the proposal would keep that deadline in place, it would also let voters who miss the deadline register on Election Day itself, though not in the intervening period.
The bill would also expand the number of early voting days in general elections to 14 days including weekends and newly establish seven days of early voting for primaries while also enabling local governments to allow early voting for local elections. All voters would also become eligible for voting by mail with no specific excuse needed, an option that has been available for general elections for some time (though was little-used before 2020) but was only temporarily expanded for primaries last year.
Democratic lawmakers, working in conjunction with voting advocacy groups, have also introduced similar legislation to adopt same-day registration and expanded early voting and excuse-free mail voting, but their bill would impose a regular registration deadline of 10 days before Election Day instead of Galvin's proposed 20. It would also require that incarcerated people who haven't been deprived of their right to vote, such as those convicted of a misdemeanor or who are awaiting trial, be provided with mail ballot applications.
Democrats hold veto-proof majorities in Massachusetts, and Republican Gov. Charlie Baker has been amenable to certain voting reforms in recent years, but it isn't yet clear how widespread support in the legislature is for these newest proposals.
● New Jersey: Legislators in the Democratic-run state Senate have unanimously passed a bill in committee to create an in-person early voting period of 15 days before Election Day, including weekends, which would apply to general elections, primaries, and local elections. However, legislators will have to proceed quickly if the bill is to take effect in time for this year's state elections.
Meanwhile, Democratic Gov. Phil Murphy announced this week that New Jersey will shift away from the temporary adoption of universal mail voting that it had implemented last year due to the pandemic. The state is now planning to rely mainly on in-person voting for this year's upcoming school board elections in April, local elections in May, and likely the state primaries in June.
● New Mexico: Democrats have passed a bill along party lines in a state House committee that would end felony disenfranchisement for voters on parole or probation, which would leave only those who are currently incarcerated unable to vote.
● Oklahoma: A committee in Oklahoma's heavily Republican state Senate has unanimously passed a bill that would extend the early voting period from three days, which is currently the shortest period of any state that offers early voting, to six days. Voters would be able to request and cast an in-person absentee ballot rather than use traditional early voting, but the effect of being able to vote in-person before Election Day would be similar.
● Utah: Utah's heavily Republican state House has unanimously passed a bill that would enable voters to track the status of their mail ballots via email or text message starting with next year's elections. Utah is one of several states that mails a ballot by default to all active registered voters each election.
● Virginia: Virginia Democrats have advanced a number of bills along party lines to expand voting access, including a state-level equivalent of the federal Voting Rights Act, which has won initial approval in both legislative chambers. State House Democrats also passed a bill to allow early voting on Sunday and one that, starting in 2022, will let 16- and 17-year-olds "pre-register" to vote so that they are automatically added to the rolls when they turn 18. House Democrats also passed a third bill last month to permanently authorize absentee ballot drop boxes and prepay the cost of postage on absentee ballots.
Meanwhile in the state Senate, Democrats have passed a separate bill over GOP objections to permanently adopt mail ballot drop boxes and a process to notify voters and let them fix problems with their mail ballots. The Senate also approved another bill with unanimous support that requires local officials to take steps to process mail ballots before Election Day to ensure that they are counted in a timely manner on Election Day.
Senators almost unanimously passed a third bill in committee to require that absentee votes be recorded in a voter's home precinct, which is important for conducting accurate analysis of election results for purposes such as assessing the fairness of redistricting maps. In Virginia, absentee votes are currently only recorded at the county level, which means that determining how specific areas or districts within a jurisdiction voted becomes difficult-to-impossible to do with accuracy.
Lastly, House Democrats and a few Republicans passed a constitutional amendment that would end felony disenfranchisement for voters on parole and probation, meaning only those currently incarcerated would remain barred from voting. Senate Democrats passed a separate amendment in committee that would entirely eliminate felony disenfranchisement, even for those in prison. Either amendment would have to be approved by both legislative chambers before and after the 2021 elections before they could head to a 2022 voter referendum.
● Post Office: Democrats and a handful of Republicans in Congress have announced that they will introduce a bill that would implement major changes to the U.S. Postal Service's finances by repealing a 2006 law that requires the service to prepay retiree health benefits for over 50 years in advance, a burdensome mandate that does not apply to any other federal agency or private competitor. House Democrats passed similar legislation last year that was blocked by the Senate, which was run by Republicans at the time.
The 2006 law has wreaked havoc with the post office's financial health, turning what had been annual profits into consistent deficits and mounting debt. Financial turmoil in turn has threatened the USPS' ability to properly conduct its operations, which disrupted mail delivery last year just as Americans were voting by mail in historic numbers.
● Arkansas: State House Republicans have passed a bill over the objection of almost all Democrats that makes Arkansas' voter ID law more restrictive by eliminating the ability of voters who lack the required ID to still vote if they sign a statement under penalty of perjury that swears to their identity. Republicans dominate Arkansas' state government, meaning this bill stands a good chance of becoming law.
● Georgia: Following major Democratic victories across the state, Republican legislators in Georgia have introduced several proposals that would restrict access to voting. The bills include measures to:
These bills come in addition to a separate proposal to require voter ID for absentee ballots, which the GOP exempted from their original voter ID law, at a time when elderly white Republicans disproportionately voted absentee. All of these proposals squarely take aim at voting methods or procedures that were on the whole largely favorable to Democrats in 2020.
Legislators also passed another proposal in committee with bipartisan support that will lengthen the deadline for counties to mail out absentee ballots from the Friday before Election Day to 10 days before Election Day, arguing that ballots sent out with just days ahead an election often don't have enough time to reach voters and be mailed back in time to count. A good government advocacy group that has been involved with voting law litigation in recent years criticized the bill for failing to make exceptions for people with last-minute emergencies that could preclude them from getting a ballot.
● Kentucky: Republican legislators have overridden Democratic Gov. Andy Beshear's vetoes of two bills that undermine his ability to issue executive orders during emergencies, prompting Beshear to file a lawsuit in state court challenging the new laws as unconstitutional.
The first law strips the governor and Republican Secretary of State Michael Adams of their 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 these powers both to curtail the absentee excuse requirement in order to let all voters vote by mail and also to implement early voting.
The GOP's other law limits 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. Another provision requires Beshear to seek approval from Republican state Attorney General Daniel Cameron's office to suspend a state law during an emergency.
● Mississippi: Republicans have passed bills in the state Senate and in a state House committee that would purge voters from the registration rolls if they don't vote in four consecutive years or respond to a single notice form. The bills (found here and here) would result in infrequent voters who still remain eligible to vote being removed from the rolls simply for exercising their right not to vote, or if they mistook the mailer for junk mail and failed to respond.
● Missouri: Republican legislators held a hearing on a bill that would revive the state's photo voter ID requirement in the wake of a state Supreme Court decision last year that gutted most of the GOP's previous voter ID law. That ruling allowed voters to present non-photo ID such as a utility bill, but the new bill would require voters who lack a photo ID to cast a provisional ballot that would only be counted if they later return with a photo ID or if their signature matches the one from their voter registration.
Opponents of the bill argue that signature-matching risks suppressing votes because the officials who oversee the process are not trained handwriting experts, making the process subjective and arbitrary, particularly since people's signatures can change over time.
Republicans tried to pass similar legislation last year following the court's decision and approved a bill in the state House, but it ultimately did not become law. The GOP holds the governor’s office and decisive majorities in both legislative chambers, and could readily pass this new proposal over Democratic objections.
● Montana: State House Republicans have given their initial approval to a bill that eliminates the ability of voters to register on Election Day, instead cutting off the registration deadline on the day before Election Day. A final vote is still needed before the measure goes to the state Senate, where Republicans also hold a sizable majority. Democrats and Native American voting advocates have warned that it will lead to some voters being unable to vote if passed.
Meanwhile, Republicans passed a bill in a state Senate committee that would make Montana's voter ID law more restrictive, one of multiple measures backed by Republican Secretary of State Christi Jacobsen. Photo IDs are already required under state law, but the GOP's bill would require voters to present a second form of ID such as a paycheck or utility bill if they use particular forms of identification such as a student ID. Democrats and Native voting advocates once again argue that this would make it more difficult for certain groups of people to vote.
● North Carolina: The 4th Circuit Court of Appeals has refused to take up an en banc appeal of a three-judge panel's rejection of a preliminary injunction issued by a district court last year against the North Carolina GOP's voter ID law. Consequently, barring an appeal to the Supreme Court that would be unlikely to succeed, the plaintiffs' quest for a preliminary injunction is probably over, but the case will still proceed in lower court on the underlying merits.
While success at the federal level is in doubt given the increasingly hostile stance of the federal judiciary toward voting rights, a separate lawsuit ongoing in state court may stand a better chance given that Democrats hold a 4-3 majority on the state Supreme Court. That case saw a lower court issue a preliminary injunction of its own that blocked the law last year.
● North Dakota: State House Republicans have passed a bill that would cut the early voting period from 15 days before Election Day to just nine days.
● Wyoming: The Wyoming Republican Party has passed a resolution calling on lawmakers to pass legislation to end no-excuse absentee voting, mail ballot drop boxes, curbside voting, and the ability to register to vote by mail or online. Republicans are at their most dominant position in the legislature in over a century following the 2020 elections, so there's a good chance that some or all of these provisions will ultimately become law.
● Arkansas: Arkansas Republicans have introduced a constitutional amendment that would raise the voter approval threshold needed for ballot initiatives to pass from a simple majority to 60%, which comes amid ongoing efforts by voting advocates to put initiatives on the ballot to reform redistricting and the state's electoral system. Activists had previously placed measures for an independent redistricting commission and a variant of instant-runoff voting on the 2020 ballot, but Republican state officials disqualified them on dubious pretextual grounds.
This latest proposal to make the ballot initiative process more restrictive follows on the heels of another GOP-backed amendment that voters rejected last November. That amendment would have required that initiative backers meet the signature threshold in 45 of 75 counties instead of the current 15. It would have made progressive initiatives much harder to get onto the ballot—but not conservative ones—because Democrats, Black voters, and a majority of the state's population are heavily concentrated in a minority of counties.
Fortunately for redistricting and electoral system reform advocates, even if the GOP's latest amendment raising the voter approval threshold eventually passes, Republicans can't put it on the ballot before 2022, meaning it couldn't take effect in time for next year's elections. Reformers therefore still have an opportunity to put measures on the ballot next year with only simple majorities needed for passage.
● Austin, TX: Voters in Austin, Texas will vote on several ballot initiatives on May 1 that would reform the way that local elections work in the 11th-largest city in the U.S. Those measures will ask voters wither to:
- Adopt instant-runoff voting for city races (although it's unclear whether doing so is allowed without a change in state law);
- Implement a "democracy voucher" system of public campaign financing whereby voters would receive $25 vouchers that they could donate to their preferred candidates; and
- Move mayoral elections from midterm election years to presidential years, when turnout is typically much higher.
Voters will also decide whether to replace their current "weak mayor" system, in which a city manager is in charge of executive administration, with a so-called "strong mayor" who has veto power over the City Council.
● Michigan: Voting rights groups have filed a new lawsuit challenging a law that Republicans passed in a 2018 lame-duck legislative session using their gerrymandered majorities that imposes new restrictions on future ballot initiatives. Republicans approved the measure after voters that year had approved a pair of constitutional amendments expanding voting rights protections and banning gerrymandering by creating an independent redistricting commission.
The GOP's law mandates that, among other restrictions, no more than 15% of the signatures for a ballot measure may come from any one of Michigan's 14 congressional districts. Because Republicans gerrymandered the map to pack Democrats into just five districts, this provision effectively makes it much harder for progressives to put new initiatives on the ballot than for conservatives to do so. And even after the new redistricting commission draws fairer maps for the 2020s, two districts in the Detroit area will very likely still contain a disproportionate share of Michigan's Black and Democratic voters.
In December, Michigan's Supreme Court, which had a Republican majority at the time, sent a previous suit over this law back to a lower court, saying it should be dismissed because it did not address a live controversy over a particular ballot initiative but only concerned a theoretical future dispute. It's not clear how the new plaintiffs plan to distinguish their case from the earlier one, but following the swearing-in of Democrat Elizabeth Welch on Jan. 1 of this year, Democrats now have a 4-3 majority on the bench, potentially increasing the likelihood that the court will entertain the new lawsuit.
● New York City, NY: A state appeals court last month rejected a motion by opponents of New York City's new instant-runoff voting law that had sought to temporarily block its implementation ahead of a City Council special election last week. That was the first race to use the new electoral system ahead of its broader introduction scheduled for the citywide June primary. The new law applies to special elections and primaries for local offices but not November general elections.
Correction: This article originally referred to the Montana judicial gerrymandering legislation as a constitutional amendment, but it is only statutory.