● Supreme Court: On Thursday, the U.S. Supreme Court’s conservatives ruled 6-3 along ideological lines to strike a historic blow against the Voting Rights Act in overturning a 9th Circuit Court of Appeals ruling that had found that two voting laws passed by Arizona Republicans had both the effect and intent of discriminating against Black, Latino, and Native American voters. The decision reversed earlier findings of intentional discrimination and will make it much harder to block other laws that have a discriminatory effect on voters of color, bringing America one major step closer to reviving the legal regime of Jim Crow.
The Supreme Court's ruling significantly increased the level of discriminatory and burdensome effects that plaintiffs must demonstrate for a voting law or procedure to violate the Voting Rights Act, giving lawmakers or officials who enact such rules great deference in the interest of preventing supposed fraud—even without any evidence of such fraud. The decision opens the floodgates to a new nationwide wave of Republican voter suppression laws that hide their racist intent but have clearly disparate effects based on race.
Last year, the 9th Circuit blocked both GOP-supported measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.
Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. Because of that situation, it was common for some voters to ask others in their community to turn in their completed ballots, a practice that Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize it. The GOP's law had limited who could handle another person's mail ballot to just close relatives, caregivers, or postal service workers.
The 9th Circuit's ruling also invalidated a separate provision that prohibited out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under that law, voters in such circumstances could only cast provisional ballots, which were automatically rejected if it was later confirmed that the voter had indeed shown up at the wrong polling place.
The appeals court decision relied on Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent; by contrast, statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.
It's this so-called "effects test" that was the key remaining plank of the Voting Rights Act following the Supreme Court's notorious 2013 decision in Shelby County v. Holder, which invalidated a requirement that many jurisdictions with a history of voter discriminatory had to obtain Justice Department approval to make any changes to voting procedures. Another critical part of the VRA was further weakened in 2018 in another Supreme Court case, Abbott v. Perez, which made proving intentional discrimination considerably harder except in truly egregious instances.
Some legal observers had warned before this latest decision, known as Brnovich v. DNC, that even if the effects test weren’t formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless. That is, in essence, what happened.
Brnovich normalizes the voting landscape as it stood in 1982, the year that Congress amended the VRA to establish the effects test in response to a 1980 Supreme Court decision that required proof of intentional discrimination to successfully prosecute a vote-dilution case. Notably, that amendment sought to block discriminatory voting laws, not preserve the status quo—a fact that did not stop the court's conservative majority from setting 1982 as its new baseline.
Given how much narrower voting access was 40 years ago, the ruling likely spells disaster for many upcoming voting lawsuits over the wave of restrictions Republicans have passed this year to curtail practices like early and absentee voting. (Vox's Ian Millhiser, however, posited that new restrictions that didn't exist in 1982 will be treated more skeptically.)
While the court did not formally strike down what remained of the Voting Rights Act by ruling Section 2 itself unconstitutional, its decision came close to rendering the VRA inert for vote-denial cases. And politically, it signals that the court is increasingly willing to show itself as a partisan actor eager to find reasons to reach its preferred conclusions to the benefit of Republicans and move the goalposts whenever necessary to do so.
Between 20 years of regular Republican minority rule in the White House, Senate, House, and state legislatures, along with the series of Supreme Court decisions that have dismantled the VRA and protected partisan gerrymandering, the semblance of true democracy that only came to America in 1965 with the VRA's passage may now have ceased to exist and given way to what experts call "competitive authoritarianism."
Under such a regime, elections still take place with all the trappings of democracy, but they are not truly free and fair. And on the vanishingly rare occasions that the oppressed party is nevertheless able to win control of the government against all odds, it is so constrained by rigged institutions—such as courts stacked with partisans—that it's unable to effectively enact any agenda. That situation comes close to describing what Washington Democrats are struggling with right now, despite having won millions more votes than Republicans in recent elections at all levels.
If Democrats are serious about restoring a truly equitable, multi-racial democracy, Congress must act without delay. Democrats have what may be their last, best chance before they could lose control of the Senate and House next year. That entails passing a new Voting Rights Act and the For the People Act, with its sweeping expansion of voting protections and ban on congressional gerrymandering; adding new states such as Washington, D.C. to end the disenfranchisement of American citizens and help rebalance the Senate; enacting laws to prevent the subversion of election results by partisan officials; and expanding the Supreme Court itself.
To pass these reforms, Democratic holdouts such as Sens. Joe Manchin and Kyrsten Sinema must stop clinging to the filibuster and either eliminate or curtail it. They have, however, given no indication that they'll do so.
● Alabama: A federal district court has rejected Alabama's request to release redistricting data before the Census Bureau's planned Aug. 16 deadline. The suit also asked that the bureau drop its plans to use a controversial new statistical method to shield census respondents' privacy by introducing random "noise" into the data. Alabama officials have indicated they don't plan to appeal at this time but would re-evaluate after analyzing the data in August.
● Colorado: Colorado's independent redistricting commission has released preliminary legislative maps, drawn using population estimates in order to meet a legal deadline. While one initial analysis showed that these maps appear to be relatively fair to both parties under common metrics, we're not going to delve into them yet since they are likely to change once official census data becomes available in August. In addition, Colorado citizens will be able to provide feedback in upcoming public hearings, and final maps aren't due until September. Residents can find out more about how to submit testimony here.
● New Jersey: Democrats in both legislative chambers (with support from Republicans in the state Senate but not the Assembly) have approved a bill that would ban prison gerrymandering at all levels of government, extending a 2020 law that banned it only for legislative redistricting.
● North Carolina: Democratic Gov. Roy Cooper has let an elections bill that was passed by North Carolina's Republican-run state legislature with some bipartisan support become law without his signature. The measure will allow dozens of local governments to postpone this fall's local elections for offices that are elected using districts in order to allow more time for redistricting thanks to the delayed release of key census data. Instead, those localities would move their elections to coincide with the March 2022 primary by extending the terms of some officials.
The new law also permanently moves elections in the state capital of Raleigh to November of even-numbered years and extends the terms of current incumbents by a year, though it also eliminates runoff elections.
● Oregon: Democratic Gov. Kate Brown signed a bill passed with widespread support to align the deadline for legislators to approve a new congressional map with a Sept. 27 deadline to pass new legislative districts.
● Virginia Beach, VA: Virginia's largest municipality of Virginia Beach is appealing a federal district court ruling that found its at-large electoral system discriminated against Black, Latino, and Asian American voters in violation of the Voting Rights Act. A new state law will require cities that rely on at-large elections to switch to using districts next year, so it's not clear why Virginia Beach is pursuing this appeal.
Voting Access Expansions
● Congress: As expected, Republicans deployed a filibuster to block the Senate from starting debate on the For the People Act (also designated as H.R. 1 and S. 1), but with all 50 Democrats voting to proceed, the question now is whether that unanimity will translate into an effort to change Senate rules to overcome GOP obstruction. Meanwhile, Democrats plan to introduce new legislation that would aim to thwart the epidemic of laws Republicans have adopted at the state level to make it easier for GOP officials to overturn election results they don't like, which reportedly might get incorporated into H.R. 1.
● Colorado: Democratic Gov. Jared Polis has signed a bill passed by Democrats that aims to reform recall elections and expand voting access. The new law adds new requirements to recall elections with the intention of preventing Republicans from trying to abuse them to win races with low turnout. It also encourages voter registration opportunities through colleges, expands automatic registration updates for existing voters at state health agencies, and discourages placing mail ballot drop boxes at law enforcement buildings to avoid intimidating voters.
Meanwhile, Polis has signed a separate bill that will increase the availability of multilingual voting materials, largely those in Spanish, by lowering the threshold for determining which jurisdictions have language-minority populations large enough to require multilingual voting materials.
● Connecticut: Democratic Gov. Ned Lamont has signed a budget bill that includes a number of voting rights reforms, including:
- Automatic voter registration at multiple state agencies;
- Ending the disenfranchisement of anyone with a felony conviction who is not in prison by restoring the rights of people on parole;
- Requiring employers to give their workers two hours of unpaid time off to vote
- Allowing online applications for absentee ballots; and
- Making absentee drop boxes permanent after their temporary adoption last year during the pandemic.
● Hawaii: Democratic Gov. David Ige has signed a new law establishing automatic voter registration via Hawaii's driver's licensing agency.
● Illinois: Democratic Gov. J.B. Pritzker has signed a wide-ranging elections law containing several components intended to make it easier to vote. One provision creates a permanent absentee ballot list that will allow voters to opt to automatically receive an absentee ballot in all future elections. The law also allows polling places in county jails for voters who remain eligible. It furthermore makes Election Day next year a state holiday and lets people with certain disabilities vote electronically, but these two voting access policies aren't without their drawbacks, too.
Meanwhile, Democratic Secretary of State Jesse White has reached a settlement in a federal lawsuit filed by voting advocates in 2020 who alleged that he botched the implementation of automatic voter registration, which his office oversees. If approved in court, the settlement would require White to provide better access for citizens with limited English proficiency; ensure registrations are automatically updated when voters move; and implement more safeguards to prevent ineligible voters such as noncitizens from being automatically registered.
● Maine: Maine's Democratic-run legislature recently passed a number of bills that seek to expand access to voting and reform elections, some of which have already been signed by Democratic Gov. Janet Mills. Measures that are now law include those that would:
Meanwhile, bills that are awaiting Mills' signature would:
The last three items would also require funding from the state, which has yet to be approved.
● Michigan: Michigan's Republican-run state Senate has passed a bipartisan bill to let active-duty military members vote electronically to avoid problems with mail service.
● North Carolina: A federal district court has ruled that North Carolina must permanently let blind voters vote electronically using the existing system available for military and overseas voters, along with mandating certain accessible measures such as Braille voting materials for in-person voters. The state was temporarily required to allow electronic voting for the blind last year.
● Oregon: Oregon Democrats have passed a bill before adjourning that would allow mail ballots to count so long as they are postmarked by Election Day and received up to a week later. Ballots that are missing a clear postmark would be presumed to have been mailed by Election Day. Currently, ballots must be received by Election Day in order to count.
However, Democrats failed to pass several other measures that they had proposed, such as reviving same-day voter registration; expanding automatic voter registration beyond the state's driver's licensing agency; and fully abolishing felony voter disenfranchisement, the last of which had advanced in a state Senate committee.
● Rhode Island: State House Democrats have passed a bill to let disabled and military voters receive and return absentee ballots electronically, although Democratic Secretary of State Nellie Gorbea and a prominent voting advocacy group were not supportive of the measure due to security concerns and the lack of a paper trail.
● Vermont: With no votes to spare, Democrats and their Progressive and independent allies in the legislature have overridden Republican Gov. Phil Scott's veto of two bills that authorize voter-approved changes to the town charters in the small state capital of Montpelier and the town of Winooski to allow noncitizen permanent residents to vote in local elections. Scott said he preferred for lawmakers to devise a more standardized statewide process for potential noncitizen voting rights when issuing his vetoes.
● Virginia: Democratic Gov. Ralph Northam has signed four bills to expand voting access, including measures to:
● Arizona: Republican Gov. Doug Ducey has signed a budget bill into law that strips Democratic Secretary of State Katie Hobbs of the power to defend the state in election lawsuits—including the ability to settle voting rights disputes—transferring that authority to Republican Attorney General Mark Brnovich. In a move exposing the transparently partisan motivation behind this power grab, Republicans have set the change to expire after Hobbs' and Brnovich's terms both end in 2022 (Hobbs is a candidate for governor, while Brnovich is running for Senate), a hedge in case a Republican is elected to replace Hobbs or a Democrat wins the race to succeed Brnovich.
Meanwhile, voting advocates have filed paperwork to place a referendum on the ballot that would block the GOP's new law ending the permanence of Arizona's mail voting list until voters have a chance to weigh in next year on whether to keep the new law. For years, the state had allowed voters to automatically receive a ballot in all future elections, but the new law requires voters to vote at least once in a four-year period or respond to a single mailed notification within 90 days to avoid being purged from the mail voting list. Voters who only vote in-person instead of by mail during the four-year period would also be slated for removal.
● Georgia: The Department of Justice has become the latest entity to file a federal lawsuit seeking to block parts of Georgia's sweeping new voting restriction law that Republicans passed earlier this year, joining several other pending cases. The DOJ is specifically asking the court to place Georgia back under the Voting Rights Act's defunct "preclearance" regime via the law's little used Section 3, which allows courts to put jurisdictions that engage in new cases of intentional voting discrimination under federal supervision that obligates them to seek Justice Department approval for any new changes to voting procedures.
Meanwhile, a new Atlanta Journal-Constitution analysis finds that tens of thousands of voters purged from the rolls when Georgia Republicans removed half a million registrants in 2017 subsequently voted in 2020 after re-registering. The finding indicates that Republicans are purging voters simply for infrequent voting, a practice that the Supreme Court's conservatives legalized on pretextual grounds in a 2018 ruling despite a prohibition on the practice under the 1993 National Voter Registration Act. There's no telling, however, how many additional infrequent voters were prevented from voting because they were purged and did not re-register in time.
● Indiana: The U.S. Supreme Court has declined to consider voting advocates' appeal of a 7th Circuit Court of Appeals ruling that last year refused to block an Indiana law requiring only voters under age 65 to have an excuse to vote absentee. Plaintiffs have argued the law is a violation of the 26th Amendment's ban on age discrimination. The case now goes back to the district court to be adjudicated on the underlying merits.
● Mississippi: The full 5th Circuit Court of Appeals, with all judges participating "en banc," has revived a lawsuit challenging Mississippi's de facto lifetime ban on voting for people convicted of any of a large number of felonies. That ban has led to the highest disenfranchisement rate in the country, with one in nine adults unable to vote and Black voters barred at twice the rate of whites.
● Pennsylvania: As expected, Democratic Gov. Tom Wolf has vetoed Republicans' new law designed to make it harder to vote that included a voter ID requirement and a laundry list of other restrictions that we've previously detailed. However, Republicans are trying to get around Wolf's veto by using a constitutional amendment instead. State Senate Republicans have already passed an amendment to require voter ID, which would have to pass both chambers before and after the 2022 elections, then be approved by voters in a referendum, before it could take effect.
● Tennessee: A panel of judges on the 6th Circuit Court of Appeals has ruled 2-1 along ideological lines to reverse a lower court ruling from last year that had temporarily blocked a Tennessee law requiring newly registered voters who had registered by mail to vote in-person for the first time. In his separate concurring opinion, Trump-appointed Judge Chad Readler all but concluded that states don't have to take special steps to ensure people can vote during natural disasters or emergencies supposedly not of the state's making.
● Texas: As promised, Republican Gov. Greg Abbott has called Texas' GOP-run legislature back for a special session beginning July 8, during which Republicans plan to try once more to pass a far-reaching voting restriction bill that Democrats managed to temporarily block earlier this year.
Meanwhile, Latino voter advocates have filed a federal lawsuit challenging a newly enacted Republican-backed law that makes it harder for voters to register using a post office box by adding a voter ID requirement, which the plaintiffs argue is burdensome for people who live in remote rural areas that lack reliable mail service such as heavily Latino South Texas. (In a previous writeup, we incorrectly stated that this law banned the use of P.O. boxes for registration entirely.)
● Wisconsin: A right-wing activist organization has filed a new lawsuit in state court seeking to ban absentee ballot drop boxes, days after the state Supreme Court ruled 4-3 (with conservative swing Justice Brian Hagedorn joining the court's three progressives) to refuse to hear an appeal of a separate lawsuit that unsuccessfully sought to prohibit drop boxes and bar local election officials from filling in missing information on ballots such as a witness' address. The new suit asks the court to invalidate guidance from the bipartisan Wisconsin Elections Commission to local election clerks about how voters can return absentee ballots.
● Texas: Republican Gov. Greg Abbott has signed a bipartisan law requiring voting equipment to be auditable with a paper trail, meaning Texas will eventually leave the ranks of the few remaining states that make widespread use of paperless voting machines.
Electoral System Reform
● Colorado: Democratic Gov. Jared Polis has signed a bill that will make it easier for local governments to adopt instant-runoff voting for local elections by providing state support for administering its use.
● Supreme Court: In a decision with potentially disastrous implications for the future of meaningful campaign finance regulations, the Supreme Court's conservatives ruled 6-3 along ideological lines to strike down a California law that required the disclosure to the state of the names of major donors to charitable nonprofits in order to prevent tax fraud, but it will have consequences for electoral politics. "Dark money" nonprofits can spend unlimited sums on elections thanks to Citizens United, but the court held that such nonprofit donors have a right to anonymity under the First Amendment.
This ruling signals what may be just the beginning of an effort to dismantle disclosure laws at both the federal and state level, which would pave the way for more corruption, turbocharge plutocratic attempts to buy elections, allow candidates to take money from extremist groups without fear of scrutiny, and even let foreign entities secretly donate to campaigns despite a prohibition in federal law.
● Ohio: Republican Gov. Mike DeWine has signed a bill passed by GOP legislators that will transform races for the state Supreme Court and other appellate courts from nonpartisan affairs into partisan contests. The move comes ahead of next year's elections, when three Supreme Court seats held by Republicans, along with their 4-3 majority, will be at stake. Control over the court is critical for fights over gerrymandering and voting restrictions. Notably, GOP lawmakers exempted lower courts from this new law.