Leading Off
● Michigan: Michigan is one step closer to voting on a 2018 initiative that seeks to end gerrymandering after organizers turned in 425,000 voter signatures, which should give them a sufficient cushion to ensure they pass the 316,000 threshold of valid signatures needed to make the ballot. This proposal would amend Michigan's constitution to create an independent redistricting commission free from the control of partisan legislators. It would also impose nonpartisan standards for how districts are drawn and require approval from commissioners of both parties as well as independents to pass a map.
Campaign Action
Astonishingly, this proposal is largely a grassroots effort driven by citizens who were outraged to live in one of the most gerrymandered states in the country, and they collected these signatures by relying on volunteers instead of paid signature-gatherers, which is the more typical (but obviously far more expensive) route to the ballot. Republicans have gerrymandered Michigan for the last two decades, and their maps have enabled them to win majorities in a legislative chamber despite winning fewer votes than Democrats in four of the last eight election cycles.
Consequently, Republicans are going to oppose this initiative tooth and nail. Attorney Bob LaBrant, who has long played a leading role in the Michigan GOP's redistricting efforts, said back in October that he expected Republicans to sue to keep the measure off the ballot. A potential lawsuit could end up before the state Supreme Court, where Republicans have won a five-to-two majority in recent elections. However, the court's partisan lean by itself doesn't necessarily guarantee that a GOP-backed lawsuit would succeed.
But even if the measure survives legal challenges, Republicans are guaranteed to pour in millions of dollars to stop this measure at the ballot box. Reformers have done a remarkable job as an all-volunteer effort to date, but they’ll need serious financial support to match what the GOP will throw at them next year.
Redistricting
● Florida: Florida could be headed for a state constitutional crisis over judicial appointments in early 2019 that has deeply troubling implications for the fate of two constitutional amendments that voters passed in 2010 to combat partisan gerrymandering. Republican Gov. Rick Scott faces term limits in 2018 and has to leave office on Jan. 8, 2019. The liberal bloc on the state Supreme Court currently has a 4-to-3 majority over conservatives, but three of the liberal-aligned justices face mandatory retirement the same day as the governor departs. Scott and Republicans are trying to fill those seats to flip the court to a 6-to-1 conservative advantage.
The controversy over the matter stems from the fact that Scott's successor as governor would be sworn in earlier in the day on Jan. 8; the judges, on the other hand, will still serve on the bench until the end of the day, meaning a potential Democratic successor could fill their seats. Logically, it would seem that the next governor should get to nominate replacement judges, but the state Supreme Court itself recently denied a motion from the nonpartisan League of Women Voters that sought to clarify the issue before this looming crisis actually unfolds. The court said the issue isn't yet "ripe" because Scott hasn't actually made appointments yet.
Unfortunately, this leaves the court itself in the awkward position of likely having to rule in the future whether Scott's appointments are lawful if he still goes ahead with this plot. However, Scott's own lawyer appeared to concede that the governor doesn't have the authority to make these appointments unless the judges step down early. Indeed, Republicans even tried to pass a state constitutional amendment to expressly give Scott this power, but voters rejected it in a 2014 referendum, something they wouldn't have attempted if they thought Scott had this authority.
Nevertheless, Scott himself may not even need to attempt to make illegal appointments to the court. Florida's governor can only choose judges from a list of names supplied by the Judicial Nominating Commission. The governor himself gets to appoint five members of that commission, while the state bar association fills the other four positions. However, Scott has has regularly used his power to block all of the bar's proposed nominees and request they submit new lists, having rejected at least 90 names since taking office in 2011. Scott has thus used his authority to ensure that only ideologues who suit him earn judicial nominations, even though the process is supposed to be merit-based and apolitical.
Consequently, even if Democrats win the race to succeed Scott next year, they may find themselves hamstrung by having to choose from a list of judicial nominees that consists of nothing but partisan Republicans. What’s more, if they tried to sue—either to challenge Scott’s last-day appointments to the Supreme Court or his abuse of his power over the Judicial Nominating Commission—such a case would ultimately be heard by the very same Supreme Court that’s at the center of this matter. And even if Scott’s appointees aren’t seated, a high court with three vacancies would have a three-to-one conservative majority.
There’s thus a good chance that conservative Republicans will take a majority on the state Supreme Court, and if they do, they would likely neuter the Fair Districts Amendments that voters overwhelmingly passed in 2010 to ban legislators from favoring or disfavoring a particular party in redistricting. Back in 2015, the liberal-aligned court majority struck down the GOP's congressional and state Senate gerrymanders for violating these amendments, leading to much more equitable maps that have been in place since last year’s elections. However, that ruling fell strictly along ideological lines, meaning a future conservative majority would be inclined to uphold whatever gerrymanders GOP legislators might pass after 2020.
Republicans are still dominant in Florida's legislature, and it won't be easy for Democrats to win control of either chamber by the 2020 elections. If the GOP holds both chambers during redistricting, a potential Democratic governor could veto the congressional map, forcing a court to draw a nonpartisan plan. But Florida's state constitution doesn't let the governor veto legislative redistricting, meaning Republicans would be in a strong position to gerrymander at least the legislature after 2020, just as they did in the days before the Fair Districts Amendments passed.
If conservatives take over Florida's Supreme Court, the only surefire recourse that gerrymandering opponents would have is to try to put another initiative on the 2020 ballot to amend the state constitution and outright take away the legislature's power to redraw the lines by handing it to an independent commission. Reformers actually attempted this very thing back in 2006, but the court blocked it from the ballot for violating restrictions on how many subjects a single measure can address because it also would have implemented nonpartisan standards for drawing the districts.
However, now that those standards themselves are part of the constitution thanks to the 2010 Fair Districts Amendments, reformers could try once again to create a commission without worrying about the multiple-subject restrictions they ran afoul of in 2006. But that effort would cost millions and have to surpass 60 percent of the vote to prevail, throwing into doubt whether redistricting reform will survive Gov. Rick Scott’s tenure.
● Maryland: In early December, the Supreme Court agreed to hear an appeal from Republicans who are challenging Maryland’s Democratic-drawn congressional map as an unconstitutional partisan gerrymander. Since the 1980s, the Supreme Court has repeatedly held that partisan gerrymandering could theoretically violate the Constitution, but it has never actually invalidated any particular map on such grounds, saying it lacks a standard to decide when to do so. A court victory for the plaintiffs in this case, known as Benisek v. Lamone, could therefore establish such a standard, setting a far-reaching precedent that could finally begin to place limits on the epidemic of gerrymandering that has swept the nation.
Republicans were in charge of redistricting in vastly more states following the 2010 census than Democrats, but Maryland was one of the rare places where Democrats had control over the process. Maryland's map gets routinely described as one of the worst partisan gerrymanders in the country. However, while it certainly was crafted to benefit Democrats, its tortured lines aren’t actually designed to gain a maximum partisan advantage. Nevertheless, while Maryland Democrats didn’t push their map to the limits, they still unquestionably engaged in partisan gerrymandering by turning the 6th District from red to blue.
In an important 2004 case on this topic called Vieth v. Jubelirer, Justice Anthony Kennedy, as the deciding vote, refused to strike down the map at issue on the grounds that it represented an unfair partisan gerrymander. (The liberal justices all would have invalidated the map; the other four conservatives would have kept it.) However, Kennedy effectively opened the door for future challengers if they could ever come up with a new standard for evaluating such claims—a standard that would have to satisfy the court’s perennial swing justice.
The Supreme Court heard arguments in October in a widely publicized case against a GOP gerrymander in Wisconsin called Gill v. Whitford. These two cases could thus both reach a resolution sometime in the first half of next year. However, while plaintiffs in both cases have carefully calibrated their arguments to appeal to Kennedy, they’re each taking distinct approaches. These differing legal theories could be pivotal to each case’s chance of success and could lead to dramatically different outcomes if they wind up getting applied to maps nationwide.
Journalists and academics have devoted considerable attention to statistical measures of gerrymandering, particularly the “efficiency gap.” As we’ve previously explained, this test plays a major role supporting the plaintiffs’ argument in Whitford that partisan gerrymandering violates their rights under the First and 14th amendments. A key aspect of their case is that courts should intervene if there have been multiple elections that demonstrate the durability of the gerrymander in question.
By contrast, the plaintiffs in Benisek are relying strictly on the First Amendment to argue that partisan gerrymanders violate voters’ rights to freedom of association by illegally retaliating against them based on their partisan affiliation. This case is tailored toward Kennedy’s own ruling in Vieth, where he suggested that, if a suitable standard could be found for evaluating when gerrymanders violate the constitution, it would likely stem from the First Amendment rather than the guarantee of equal protection of the laws of the 14th Amendment.
So instead of relying on a statistical test to decide when gerrymandering has gone too far, the Benisek plaintiffs argue that any level of discriminatory partisan intent should render a district invalid. Indeed, former Gov. Martin O’Malley has explicitly admitted that Maryland Democrats drew the congressional map to achieve partisan ends. Critically, the Benisek standard wouldn’t require waiting for multiple elections to take place before the courts could intervene, unlike with the Whitford proposal, which could allow mapmakers to get away with illegal gerrymanders for two or more elections at the start of each decade.
Unlike in Whitford, where an entire map is under challenge, the Benisek plaintiffs are only targeting an individual district. They argue that Democratic lawmakers retaliated against Republican voters in the 6th Congressional District when they turned what had long been a Republican seat into one that heavily favored Democrats. (Indeed, longtime GOP Rep. Roscoe Bartlett immediately lost to Democrat John Delaney in 2012, the first election held under the new lines.)
Not having to wait for flawed elections to take place could make it much easier to challenge gerrymanders under Benisek, but this approach isn’t without drawbacks. The Whitford plaintiffs’ reasoning targets Wisconsin’s entire Assembly map, and by using a statistical test to measure gerrymandering, legislators could be forced to redraw a large swath of the map to remedy a violation of that test.
By contrast, the Benisek challengers might struggle to successfully convince a court that every problematic district in a single state is illegally gerrymandered, since the evidence may be stronger with some districts than others even though they’re all part of the same partisan map. Furthermore, the Benisek standard could make it too difficult to challenge districts that have been gerrymandered for decades, rather than one that mapmakers just recently flipped from blue to red or vice versa, which could further insulate existing partisan gerrymanders from lawsuits.
Nevertheless, back in August, a three-judge court panel at the lower level ruled against the challengers, holding that the plaintiffs hadn’t demonstrated that the election results occurred simply because of the redrawn districts. It’s also far from clear that the Supreme Court would reach a different result, but the very fact that they’ve chosen to hear this case is notable, since the justices only agree to adjudicate around one to two percent of the cases brought before them.
And it'll also be a while before we get a handle on the main significance of the court taking up this case while the Whitford challenge also goes forward. It could be that Kennedy prefers a strictly First Amendment-based standard like the one the Benisek plaintiffs propose. It could also signal that the high court simply wants to strike down a gerrymander from both parties to demonstrate the bipartisan nature of this problem. Nevertheless, it’s an encouraging sign for proponents of fairer elections that the Supreme Court is so keen on hearing these challenges to partisan gerrymandering while Kennedy is still on the bench, since future Republican appointees likely won’t be so amenable to policing partisan gerrymandering.
Voter Suppression
● Congress: In mid-December on a party-line vote, U.S. House Republicans advanced a bill out of committee that ends a requirement that colleges make a good-faith effort to distribute voter registration forms to students. Existing federal law requires colleges to request those forms at least 120 days ahead of registration deadlines and notify students of their availability electronically.
● New Hampshire: New Hampshire GOP legislators have gone all-in on trying to deter college students from voting in the Granite State, having passed a law earlier in 2017 that required additional proof of residency for eligible voters to cast a ballot. In late November, a state Senate committee amended a separate bill on a party-line vote to change the legal definition of residency to make it exceedingly difficult for out-of-state students to vote in New Hampshire.
As we have previously explained, a 2015 state Supreme Court precedent and the state constitution's own language strongly suggest that this newest measure is blatantly unconstitutional. Regarding this latest bill, Republican Gov. Chris Sununu recently stated, "I hate it ... I'm not a fan. I'm hoping that the legislature kills it." When specifically asked what he would do if the bill reached his desk, Sununu responded, "I will never support anything that suppresses the student right to vote."
However, this claim is pointedly not a promise to veto this particular bill, and it's furthermore a brazen lie because Sununu literally signed that previous law that suppresses the student right to vote earlier this very year, as we have mentioned above. So who knows what Sununu might do if lawmakers pass this newest bill, but the governor’s previous actions should make us very skeptical of his recent promise.
● North Dakota: In 2016, a federal court struck down a strict voter ID law that North Dakota’s Republican-dominated legislature had passed, thanks to its disparate impact on Native American voters, but the same GOP lawmakers approved a replacement version earlier this year. The Native American Rights Fund has once again sued over this latest law for still harming these voters' rights by making it difficult for them to cast a ballot. The 2016 ruling allowed voters who lacked the appropriate ID to sign a sworn affidavit attesting to their identity that would allow them to vote, but this newer measure forces such voters to later show some form of identification for their votes to count.
North Dakota is unique among all 50 states in that it does not have any form of voter registration. To cast a ballot, eligible voters need only prove their residency, so documentation of some sort is necessary. That, however, shouldn’t give Republicans an excuse to disenfranchise valid voters. Roughly one in 20 voters utilized the affidavit method in the 2016 elections, and disqualifying these voters could have a big impact in a close election. That’s exactly what Republicans may be hoping for next year, since Democratic Sen. Heidi Heitkamp, who won office in 2012 by just one point, faces a tough re-election fight.
● North Carolina: In October, Republican legislators overrode Democratic Gov. Roy Cooper's veto of a new law that entirely eliminated primaries for judicial elections for the 2018 cycle only, with Republicans plotting further changes to how North Carolina chooses its judges in order to give their party more power. Republican Justice Barbara Jackson up for re-election next year and is defending the only state Supreme Court seat that will be on the ballot, and without a primary, she could plausibly end up facing a dozen opponents in November. Thanks to her existing name recognition and institutional support as an incumbent, a badly divided field of Democratic opponents would only further advantage her.
Consequently, Democrats have now sued in federal court, arguing that the new law will lead to voter confusion and let candidates win by obtaining just a small plurality of the vote. Indeed, this very thing has happened in the past when judicial vacancies have arisen in the middle of an election cycle and there wasn't time to hold a primary. However, it's unclear whether this argument will convince a federal court to strike down the new law. Republicans may still use the upcoming legislative session to send a state constitutional amendment to the voters that would allow the legislature to appoint judges, which would of course let GOP lawmakers essentially gerrymander the judicial system just as they have done to practically every other institution in North Carolina
Voter Registration
● Maryland: With the 2018 legislative session drawing near, three Democratic state legislators plan to introduce bills to automatically register voters who interact with various state agencies (unless they opt out) and to allow voters to simultaneously register and cast ballots on Election Day itself. (Maryland currently lets voters register and cast a ballot on the same day during the early voting period, but not on Election Day proper.) Although Democrats hold more than the three-fifths of seats in each chamber needed to override potential vetoes from GOP Gov. Larry Hogan, that alone is no guarantee of these proposals passing.
Democrats previously tried to pass automatic registration in 2016, but the state Senate defeated the bill by a close 24-21 margin, with 10 Democrats joining all 14 Republicans to vote against the measure. Democrats also introduced similar bills earlier in the 2017 session, but they didn't even get a vote. Furthermore, both chambers managed to pass a state constitutional amendment earlier in 2017 on Election Day registration, but because neither chamber could agree with the other's version, it didn't end up getting sent to the voters for their approval in a referendum.
It's unclear if the political landscape in the legislature has shifted and if those recalcitrant Democrats will change their minds to support these efforts to make voting easier. It's additionally uncertain whether Hogan would even veto these bills if they passed, or if Democrats could prevent enough defections to override his veto if he attempted to block the bills.
● New York City, New York: New York City Mayor Bill de Blasio, a Democrat, recently signed a bill that expands online voter registration in the city to eligible voters who lack an ID issued by the Department of Motor Vehicles. Existing law required online registrants to have a driver's license or a non-driver ID card from the DMV, but high-density New York is famous for its large population of non-drivers who rely on public transportation, many of whom may lack licenses.
Predictably, Republicans on the state Board of Elections oppose this measure and have implied they could bring legal action against it, even though state Attorney General Eric Schneiderman, a Democrat, had issued guidelines telling cities that they may pass measures like this. Nevertheless, even if the Board of Elections deadlocks along partisan lines, it automatically means the city's new law would be accepted.
Meanwhile, a federal judge has signed off on the resolution of a lawsuit against the city's Board of Elections over an illegal purge of more than 117,000 eligible voters simply for failing to vote, which violated the 1993 National Voter Registration Act (better known as the Motor Voter Law). This consent decree will force the board to review every registration they have purged since July of 2013, and within 90 days, officials will have to reinstate the registrations of voters deemed to have been wrongly removed from the rolls.
Felony Disenfranchisement
● New Jersey: Like most states, New Jersey disenfranchises citizens convicted of felonies who are in prison, on parole, or on probation. In January, two Democratic state legislators plan to introduce a bill to end felony disenfranchisement entirely, even for those who are currently incarcerated. A handful of states have made moves in recent years to loosen their felony disenfranchisement restrictions, but Maine and Vermont are still the only two states in the entire country that don't disenfranchise prisoners. It's also no coincidence they're the two whitest states in the union, since felony disenfranchisement laws spread like wildfire after the Civil War in an effort often explicitly designed to ban African Americans from voting.
If this law passes, New Jersey would therefore not only become the third state to fully abolish this practice, it would be the first one to do so that has a significant population of black voters. According to the Sentencing Project nonprofit, New Jersey bans just one percent of all adults from voting but disenfranchises black voters at seven times the rate of whites. Among those currently in prison, that disparity between those rates swells to 11 times. This law likely wouldn't have a significant impact on elections in the Garden State, but it would set a powerful example for reformers in other states, where those incarcerated are still prohibited from voting. Indeed, most other wealthy democratic countries allow inmates to vote.
Democrats recently regained unified control over state government following Phil Murphy's election as governor in 2017, and he has made expansion of voting rights a major part of his upcoming agenda. However, even single-party government is no guarantee that Democratic legislative leaders will support this proposal. Still, it’s a welcome start, and there are many other measures to protect voting rights that the legislature can and should pass.
Elections
● Detroit, MI: The election for Detroit's city clerk, who is in charge of administering elections in Michigan's most populous city, went down to the wire after incumbent Janice Winfrey led her challenger, fellow Democrat Garlin Gilchrist, by just 51-49 in November's election. Gilchrist had run a relatively high-profile campaign that excoriated Winfrey for her office's embarrassing handling of the 2016 election, which a post-election audit concluded had "an abundance of human errors."
Winfrey's slim victory margin wasn't quite narrow enough that a recount would have plausibly changed the outcome, but Gilchrist was wise to request one anyway. Just like in 2016, when an unsuccessful push for a statewide recount still revealed problems with Detroit's election management, a partial recount of November’s election for clerk demonstrated that the same issues remained. Amazingly, roughly one-fifth of the precincts couldn't even be recounted because the number of ballots in the boxes didn't match the reported total.
While Winfrey survived against her well-funded challenger, the race will hopefully serve as more evidence for why things need to change in the next election. Unfortunately, it's also a reminder that key problems remain with election administration in a major swing state.
● Michigan: The Constitution requires states to hold special elections to fill U.S. House seats whenever a vacancy arises, and Michigan's 13th District will be no different after Democratic Rep. John Conyers resigned in December over a sexual harassment scandal. However, Republican Gov. Rick Snyder chose to delay the special election until it can coincide with the regularly scheduled 2018 elections, meaning this seat will go unfilled—and its residents without representation—until November of 2018.
There are some good reasons for consolidating the special with the regular election, namely because turnout will likely be higher in the August primary for this safely Democratic seat. Indeed, even the district's Democratic Party chair preferred these dates for that reason. However, the fact that voters in this majority-black district will go nearly a year without a member in Congress outweighs these concerns, particularly since Snyder has displayed a pattern of putting off special elections in heavily Democratic districts for as long as possible.
Nevertheless, there’s still good reason to revisit the laws governing special elections. Many states require a replacement appointee from the same party who then serves until the next regularly scheduled election for legislative vacancies, but adopting this reform for the House would require a constitutional amendment that would be extremely unlikely to ever pass. However, Michigan could change its laws to shorten the maximum length of time a House seat could lie vacant so that voters don't go nearly half the two-year cycle without a voting representative in Congress.
● Nevada: Republicans have successfully forced a recall election against a second Democratic state senator after they just barely turned in enough valid signatures to recall state Sen. Nicole Cannizzaro. The GOP also submitted enough signatures to recall state Sen. Joyce Woodhouse in November, while a third effort failed against Democratic-aligned independent state Sen. Patricia Farley. Democrats have sued to challenge the signature count in the recall against Woodhouse, and they will likely do so for Cannizzaro's seat as well, since Republicans only submitted 43 more than the minimum number of signatures.
As we have previously explained, this is an openly partisan attempt to overturn the results of last year's election because the GOP doesn't think they can overcome the Democrats' effective 12-to-nine majority in the regularly scheduled 2018 elections. Republicans have cited no crimes or misconduct on the part of the legislators, which is what recalls should be reserved for.
● Virginia: The November election for Virginia's 28th State House District election remains unresolved after election administrators revealed that at least 147 voters between the 28th and two adjacent seats were given ballots for the wrong district. Republican Bob Thomas led by just 82 votes ahead of a recount on Thursday, which reduced his margin against Democrat Joshua Cole to only 73 votes pending one challenged ballot. Democrats have petitioned a federal court to void the tainted election and order a new special election to fill the seat, and the court has set a hearing for Jan. 5 over the issue.
If Democrats succeed in forcing a special election and prevailed in that contest, they could either produce a 50-50 tie in the chamber or take an outright 51-49 majority depending on the outcome of a recount and likely litigation over a tied vote in the 94th District. The legislative session begins on Jan. 10, and these two pivotal seats will determine which party holds the majority or whether they will have to share power for the first time after nearly two decades of Republican rule.
Programming Note: The Voting Rights Roundup will be on hiatus during the week of Dec. 29. We’ll return the following week.