Voting Rights Roundup: N. Carolina's 2018 elections pave the way for striking down GOP gerrymanders

Felony Disenfranchisement

Florida: Ushering in one of the largest expansions of suffrage in the United States since the passage of the 1965 Voting Rights Act, Florida voters overwhelmingly passed Amendment 4, with the amendment prevailing 64.5-35.5, striking a massive blow against a Jim Crow-era policy that disenfranchises 1.5 million fellow citizens due to felony convictions.

As many states did in the wake of the Civil War, Florida banned those with felony convictions from voting as an explicitly racist measure to prevent black citizens from voting, with one leading proponent boasting in 1868 that the policy had “kept Florida from becoming [n-word]ized.’” despite nearly half of its population being African-American at the time. According to the Sentencing Project, this lifetime ban has disenfranchised one in 10 Floridians, the highest proportion of any state in the country. And because of the measure’s discriminatory impact, Florida bars one in five black adults from voting, which is five times the rate of the rest of the population.

Republicans have vigorously fought efforts to loosen this restriction, and GOP Gov. Rick Scott even made felony disenfranchisement far more draconian when he took office in 2011 by almost entirely ending the practice of granting clemency to restore voting rights to specific individuals. This ballot measure will sidestep the opposition of GOP elected officials, who have tried to preserve it because they think it will turn Florida into a blue state, although the impact is not as clear as it would seem.

Regardless of any partisan considerations, ending this voting restriction is long overdue, and no democracy should deny the right to vote to a tenth of its citizens. There are certain categories of citizens whose voting rights would not be restored by the amendment, including those in prison or on parole or probation, and those who have committed murder or sexual offenses, leaving about 1.4 million people who are eligible.

Unfortunately, one major question remains that could significantly reduce that number: Will Florida require the repayment of all court fines and fees before restoring voting rights? That could effectively function as a poll tax and slash the number who would be immediately be eligible to regain their rights to roughly 840,000. Nevertheless, this ballot measure’s passage will massively curtail a Jim Crow policy that has prevented more than 1 million Americans from exercising one of their most sacred constitutional rights.

Redistricting

Maryland: On Wednesday, a federal district court panel unanimously struck down Maryland’s 6th Congressional District on the grounds that Democrats had discriminated against Republicans in violation of their First Amendment rights when they flipped it from red to blue in 2012 due to redistricting. The judges ordered the Democratic state legislature and GOP Gov. Larry Hogan to redraw the map by July 8, 2019, which could result in the district becoming strongly Republican again. However, it’s unclear whether this case will survive a likely appeal to the Supreme Court.

Before Justice Brett Kavanaugh replaced mercurial Justice Anthony Kennedy this fall, the Supreme Court punted on what to do about setting a federal standard against gerrymandering in this case and another one in Wisconsin this summer, sending them back to the district court level. But Kavanaugh is widely expected to join the other four Republican justices in blocking all challenges to partisan gerrymanders at the federal level whenever a case like this one makes it back to the high court.

While Maryland Democrats would gain from the Supreme Court overturning this decision, the national party and democracy itself have far more to gain from seeing it upheld. That’s because Republicans would have far more to lose if it were to set a precedent that could be used to strike down largely GOP-drawn maps in the rest of the country, which is why it’s so unlikely the majority of ultra-conservative justices would be eager to set such a precedent.

Michigan: On Tuesday, Michigan voters dealt a crippling blow to Republican gerrymandering by passing Proposal 2, which will establish a fully independent redistricting commission and take away state lawmakers’ existing control over both congressional and legislative redistricting. Republicans have gerrymandered Michigan for the last two decades, and their maps have helped them to win majorities in at least one legislative chamber despite winning fewer votes than Democrats in five of the last election cycles (a sixth was practically tied)—and that includes the GOP’s slim hold over both chambers in 2018.

The proposed reform will create a 13-member commission with four Democrats, four Republicans, and five non-major-party members. The secretary of state will solicit applications to serve on the commission, review them, and prepare demographically and geographically representative random samples of 30 for each major party and 40 for the other applicants. Each of the four legislative leaders will be able to remove five applicants from each pool, but they won’t be able to select members: Once they’ve made their objections, the secretary of state will randomly pick from the remainder.

Importantly, this commission requires that at least two commissioners from each group agree to any map. Furthermore, these multi-partisan proposals must meet specific criteria, including: compliance with the Voting Rights Act; geographic contiguity; preserving communities of interest; partisan fairness; not favoring or disfavoring a particular candidate or incumbent; keeping counties, cities, and townships whole; and compactness.

These criteria should ensure the maps treat both parties the same and adequately represent racial minorities. In other words, this commission will ensure maps operate the way they should in a democracy, by giving communities representation while helping ensure the party with the most votes wins the most seats for a change.

Redistricting Reform: Michigan wasn’t the only state to pass redistricting reform, and it could end up passing once all the votes are counted in four states, which we previously explained the details of in depth. Colorado’s legislature unanimously put two amendments on the ballot to create independent commissions—one for Congress and another for the legislature—and both passed with more than 70 percent of the vote. Missouri voters also widely backed an amendment to add critical partisan fairness and competitiveness criteria to its bipartisan legislative commission (Congress remains unaffected).

Meanwhile, Utah is still tallying up all of its mail-in ballots, and an initiative there to create a bipartisan advisory commission is holding onto a narrow 50.5-49.5 lead with 77 percent of precincts reporting as of Friday afternoon. It’s unclear how the remaining votes will shake out.

Redistricting State of Play: Democrats gained seven governor’s offices and six legislative chambers on Tuesday, striking a blow against the GOP’s power to egregiously gerrymander congressional districts nationally after 2020 like they did this decade. However, as shown on the map below, Republicans would still get to draw four times as many districts as Democrats if redistricting took place after 2018 instead of after the 2020 census, with Republicans scoring crucial narrow victories in the large states of Ohio and likely Florida and Georgia too unless pending recounts or litigation produce a major change in their fortunes.

However, Democrats won’t face as large a deficit as they did this decade, when five times more districts were drawn to favor Republicans than Democrats. Furthermore, while almost all of the key governor’s races did take place in 2018, there are still legislative elections in 2020. Democrats could break crucial GOP trifectas by flipping the Florida state Senate or Texas state House. Florida will be crucial if Republican Ron DeSantis prevails in the gubernatorial recount and hands the GOP control of the state Supreme Court, which would almost certainly let GOP legislators ignore voter-approved anti-gerrymandering constitutional amendments.

As we explained in our Michigan and North Carolina items above, those states were two of the brightest spots for Democrats. Indeed, Michigan delivered a double whammy of a Democratic governor gaining veto power and an independent redistricting commission passing, too. North Carolina’s governor can’t veto redistricting except for judicial districts, but the expanded Democratic majority on the state Supreme Court stands a strong chance of curtailing GOP gerrymandering, and Democrats will maintain a majority on the court through at least 2022 barring an unexpected vacancy.

Democrats still face a large unfair disadvantage in redistricting thanks largely to Republican gerrymandering, and this pernicious situation isn’t going away anytime soon now that the partisan Republicans on the U.S. Supreme Court are likely to exacerbate it by blocking attempts to stop it in federal court. But by making gains at the state level, Democrats have helped make the playing field significantly less uneven for next decade’s redistricting cycle. We’ll explore the situation in each state in greater depth at a future date.

Voter Suppression

Arizona: With several hundred thousand ballots still left to be counted in Arizona’s razor-tight Senate race, Republicans have filed a lawsuit against every county recorder, the officials who administer elections in each county, over how they’re verifying ballot signatures in a state where mail ballots could make up roughly four-fifths of votes. While the GOP has sued Democratic and Republican recorders alike, it’s undoubtedly doing this with one big target in mind: Democratic Maricopa County Recorder Adrian Fontes, whose Phoenix-area county accounts for three-fifths of Arizona, far more than any other county, and where Democrat Kyrsten Sinema is narrowly leading.

The GOP is taking issue with Fontes’ announcement shortly before Election Day that his office would contact every voter whose signature on their mail ballot didn’t appear to match the one they had on file to give them an opportunity to confirm their identity, even after Election Day. Fontes pointed out that others, like Tucson-area Pima County, have been doing this for years. While Republicans have claimed they merely want all 15 counties to have the same procedure, the effect of their lawsuit would be to effectively disenfranchise those whose ballots are still blocked over signature match issues. Counting could take up to two weeks, and it’s unlikely this race will resolve before then.

State Judge Margaret Mahoney rejected the GOP’s request for an immediate ruling on Thursday, and, importantly, refused to order counties to temporarily quarantine the affected ballots that had been “cured” after Election Day. Mahoney has signaled she would issue a final ruling on Friday after a newly scheduled hearing.

North Dakota: Despite the Supreme Court letting North Dakota’s Republican-backed voter ID law go into effect, the backlash against the law and the energetic efforts of Native American and voting rights activists to counter its potential for discriminatory voter suppression may have resulted in the law not only failing to produce its intended effect, but also contributing to historic Native American turnout for a midterm, which surpassed 2008 or 2012 presidential turnout on some reservations. Thanks to the tireless efforts of activists, many Native voters who lacked the necessary forms of ID obtained one in time.

In one highly ironic bit of karma, the leading Republican sponsor of the GOP’s original 2013 voter ID law lost his seat to a Native American Democrat who opposed this voter suppression measure. While Democratic Sen. Heidi Heitkamp lost re-election by a wide margin, Republicans’ attempts to suppress the votes of staunchly Democratic Native American voters fortunately don’t look to have come anywhere close to swinging the election as they’d intended.

Voter Registration and Voting Access

Maryland: Maryland voters delivered a landslide for a constitutional amendment passed by the Democratic-run legislature to extend same-day voter registration availability from previously including just the early-voting period to now offering it on Election Day itself, with the measure winning by a two-to-one margin. After Michigan also passed it, 18 states and D.C. will let voters register at the same time they cast a ballot on Election Day itself, along with North Carolina during the early-voting period, and same-day registration states consistently have some of the highest turnout in the country after lowering this barrier.

Michigan: In a hugely positive development for voting rights in Michigan, voters easily approved Proposal 2, which includes several critical measures to make voting easier and elections more secure. The amendment includes automatic voter registration and same-day voter registration; removes the requirement of an excuse in order to vote absentee; protects the state’s straight-ticket voting option; and allows for elections to be routinely audited to ensure accuracy.​

​Michigan is currently one of the worst states when it comes to making voting as accessible as possible. In particular, it’s one of just 13 states that has no early voting at all and also requires an excuse to vote absentee. But Republican lawmakers fought to preserve the status quo, which exempts anyone age 60 or older from the excuse requirement—a transparent way to make it easier for that particular GOP-leaning demographic to cast a ballot.

Similarly, the GOP has tried multiple times to do away with straight-ticket voting because black voters use it more than whites. Eliminating it could exacerbate longer voting lines on Election Day (it’s much quicker to vote a straight ticket than to fill out every race on a ballot) in disproportionately Democratic-leaning precincts—and thus dissuade people from voting. A federal court let the GOP’s repeal go into effect for 2018, but this amendment’s approval will insulate the option from further efforts to negate it in federal court.

Any eligible voter who does business with the secretary of state’s office concerning their driver’s license or state ID will now be automatically registered to vote unless they opt out, likely bringing hundreds of thousands of new voters into the electorate. Consequently, Michigan is poised to go from one of the worst states for voting access to one of the best.

Nevada: The Silver State saw another smashing success for voting rights on the ballot, with voters easily approving an initiative to establish automatic voter registration when eligible voters do business with the DMV, unless they opt out. With Michigan and Nevada joining the ranks of automatic voter registration states, it’s now the law in 13 states and D.C.

Election Administrator Elections: Winning back control of state-level election administration is critical under our system of federalism for securing voting rights and protecting the integrity of our elections from threats like foreign hacking. Indeed, Republican secretaries of state have gone to extremes to purge eligible voters from the rolls, but Democratic officeholders can help make voter registration as easy and accessible as possible.

Republicans have run election administration in most states for most of this decade, but Democrats made critical gains in a handful of key swing states on Tuesday. Democrats flipped the secretary of state races in Michigan and Colorado, winning the latter for the first time since 1958! Furthermore, by capturing both chambers of New Hampshire’s state legislature, Democrats have the chance to oust longtime Secretary of State Bill Gardner, a Democrat in name only who is backed by the GOP, and replace him with bona fide Democrat Colin Van Ostern. Meanwhile, Republicans flipped only Alaska by likely winning its governor’s race.

Finally, Georgia Democrat John Barrow trails by just 49.2-48.6 and is headed to a Dec. 4 runoff against Brad Raffensperger. While major media outlets called Arizona’s secretary of state election for Republican Steve Gaynor, a hardliner who opposes key voting rights protections, it’s not certain that race has been resolved. Democrat Katie Hobbs trails by 21,000 votes, with several hundred thousand mail ballots still left to be counted as of Friday afternoon.

Democrats had important narrow losses for secretary of state or governor, who appoints the office in the major swing states of Florida, Nevada, and Ohio. Furthermore, after an unusual situation where longtime Republican Secretary of State Al Jaeger had to run as an independent after losing the GOP convention only to see the Republican nominee subsequently drop out over a scandal, Jaeger only prevailed by 47-39 over Democrat Josh Boschee, a modest margin for such a red state, thanks to another independent taking 13 percent.

Election Results

Florida: Despite looking like Republican flips on Election Day, both of Florida’s gubernatorial and Senate races will head to recounts as the margins keep dwindling for Republicans, with the initial counting still not resolved. Litigation has been filed on both sides, and we will cover the latest developments at greater length in a future Voting Rights Roundup.

Georgia: Republican Brian Kemp resigned as secretary of state on Thursday after claiming victory in Georgia’s gubernatorial race, where he leads by just 50.3-48.7 with a few tens of thousands of ballots supposedly remaining to be counted, which would put him just over the absolute majority needed to avoid a Dec. 4 runoff. However, after Kemp ran one of the most naked voter suppression campaigns against Democrats by any Republican in years, casting serious doubt on the legitimacy of overseeing his own election, Abrams is not conceding and keeping the option of further litigation on the table.

Even all of Kemp’s voter suppression efforts weren’t enough to satisfy him though, and he had thrown gasoline on the fire Sunday by baselessly accusing the state Democratic Party of hacking into the state’s voter database. Election law expert Rick Hasen pulled no punches in condemning Kemp, calling his actions “the most outrageous example of election administration partisanship in the modern era” and befitting of a “banana republic.”

Indeed, Kemp has taken a page straight out of the dystopian novel 1984 and tried to turn a vulnerability of his own into a weapon against Democrats. In a damning report that came out on Monday, ProPublica reported that after Kemp’s office had been warned about security vulnerabilities on Saturday, they subsequently worked to clandestinely fix some of those security flaws that Kemp had refused to acknowledge even existed in the first place.

Kemp’s bogus accusation is made even more absurd by how other major election security failures have marred his own tenure as Georgia’s top election administrator, including a breach that exposed sensitive personal information like Social Security numbers for 6 million voters, and he refused Department of Homeland Security aid to secure Georgia elections from foreign hackers. Even after that massive security breach came to light and computer security experts warned of critical flaws in the state’s voting systems, Kemp’s office allegedly destroyed evidence to successfully stop a lawsuit to force Georgia to replace its old paperless electronic voting machines with something more secure that produced an auditable paper trail.

This combined record of security failure and the sharp uptick in the number of provisional ballots used in this election prompted the nonpartisan good-government group Common Cause to file a lawsuit on Friday claiming that they could be evidence that hackers had compromised the integrity of the voting rolls, altering information to remove eligible voters. However, it’s unclear yet how accurate this allegation is, but Kemp’s history does little to assuage fears that hackers interfered with Georgia’s voter registration system.

Kansas: Tuesday’s elections saw one of America’s worst Republican voter-suppression zealots, Kansas Secretary of State Kris Kobach, lose his campaign for governor against Democrat Laura Kelly, an election Kobach himself refused to recuse himself from overseeing despite the obvious conflict of interest. Kelly only needs a few moderate Republicans to sustain her vetoes in the state House, which would be key to stopping new voter suppression measures Kobach may have otherwise tried to pass, and to stop Republicans from newly gerrymandering Kansas after 2020.

San Juan County, Utah: Following a successful racial gerrymandering that forced this small Native American-majority county in southeastern Utah to have to redraw its county commission and school board districts for this election, Navajo-backed candidates have finally gained control over local government after decades of rule by the white Republican minority. While the county only has 17,000 people, it’s emblematic of the often overlooked struggles Native Americans face to exercise their right to equal political power in the face of voter suppression and racial gerrymandering.

State Legislatures: A new post by Daily Kos Elections’ Carolyn Fiddler maps out and analyzes which legislative chambers flipped from red to blue, including where Democrats either gained full control of state government or broke the GOP’s unified grip on state power. As we’ll explore in a future Voting Rights Roundup, these changes in partisan control over state government could have a profound impact on the ability of largely Democratic legislators to expand voting rights while limiting the power of Republican legislators to block them and suppress votes.

These measures passed by Democratic-run state governments could include the spread of automatic and same-day registration; early and no-excuse absentee voting; the National Popular Vote Interstate Compact for the Electoral College; and measures to improve election security, such as switching to paper ballots. Importantly, breaking Republicans’ hold on power will give Democrats the ability to veto additional voting restrictions now that the Supreme Court is likely to uphold a wider array of suppressive measures with Justice Brett Kavanaugh on the bench.

Ballot Measures: In addition to high profile ballot measures on redistricting reform and voting rights expansion, numerous states and several cities held votes on measures to promote voting rights, worsen voter suppression, add public campaign financing, and even reform the electoral system itself. We previously explained the details of several of these measures, and the table below shows the outcome for each issue:

JURISDICTION NAME PROPOSAL Result
ALABAMA Amendment 4 Eliminates legislative special elections if a vacancy arises in the final year of the four-year term Passed
ARKANSAS Issue 2 Requires a photo ID to vote (already required by statute) Passed
COLORADO Amendment V Lowers the age requirement for to run for legislative office from 25 to 21 Failed
COLORADO Amendment Y Establishes an independent congressional redistricting commission Passed
COLORADO Amendment Z Establishes an independent legislative redistricting commission Passed
FLORIDA Amendment 4 Automatically restores voting rights to those who have completed their felony sentences, except for murder or felony sexual offenses Passed
LOUISIANA Amendment 1 Bans those with felony convictions from seeking office within five years of completing their sentence unless pardoned Passed
MARYLAND Question 2 Allows for same-day voter registration on Election Day instead of just during early voting Passed
MICHIGAN Proposal 2 Creates an independent redistricting commission Passed
MICHIGAN Proposal 3 Implements automatic and same-day voter registration, no-excuse absentee voting, straight-ticket voting, and routine election audits Passed
MISSOURI Amendment 1 Implements partisan fairness criterion for legislative redistricting, plus state lobbying and campaign finance restrictions Passed
MONTANA LR-129 Restricts those who aren’t postal workers, elections officials, family members, caregivers, or acquaintances from turning in someone else’s mail ballot Passed
NEVADA Question 5 Implements automatic voter registration Passed
NORTH CAROLINA Legislative Appointments to Elections Board Transfers power to appoint the state board of elections from the governor to the legislature and creates a four-to-four deadlock between the major parties Failed
NORTH CAROLINA Voter ID Amendment Requires photo ID to vote in person but not by mail absentee Passed
NORTH DAKOTA Measure 2 Bans non-citizens from voting in state or local elections Passed
OKLAHOMA State Question 798 Ends separate elections for lieutenant governor and provides for a joint ticket with the governor Failed
SOUTH CAROLINA Amendment 1 Makes the superintendent of education an appointed position Failed
SOUTH DAKOTA Constitutional Amendment W Restores ethics reforms repealed by the legislature in 2017 and prohibits future legislative tampering with ballot initiatives without voter input Failed
SOUTH DAKOTA Constitutional Amendment X Requires a 55 percent supermajority for constitutional amendment ballot measures Failed
SOUTH DAKOTA Constitutional Amendment Y Creates a single-subject rule for constitutional amendments Passed
SOUTH DAKOTA Initiated Measure 24 Bans out-of-state contributions to ballot measure committees Passed
UTAH Proposition 4 Creates a bipartisan advisory redistricting commission and imposes nonpartisan standards on legislatively drawn maps Uncalled
BALTIMORE, MD Question H Establishes public campaign financing for local elections Uncalled
DENVER, CO Measure 2E Creates a public financing system to match donations at a 9:1 ratio up to $50 for participating candidates; bans corporate, business, and labor contributions; and lowers all contribution limits Passed
FARGO, ND Measure 1 Implements approval voting for local elections Passed
GOLDEN, CO Question 2E Lowers the voting age to 16 in local elections Failed
LANE COUNTY, OR Measure 20-290 Implements “Score Then Automatic Runoff” for county elections and eliminates primaries Failed
LOS ANGELES, CA Amendment E Realigns local primary election dates with state primary dates Passed
MEMPHIS, TN Referendum Ordinance No. 5677 Repeals instant-runoff voting law that hasn’t been implemented yet Failed
NEW YORK, NY Question 1 Lowers the campaign contribution limit and increases the amount of matching public funds Passed
PORTLAND, OR Measure 26-200 Creates campaign contribution and expenditure limits for local office Passed

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