Voting Rights Roundup: Supreme Court won't block order to redraw Virginia's state House gerrymander

Voter Suppression

Arizona: The 9th Circuit Court of Appeals has agreed to hear an en banc appeal of a lawsuit over the Arizona GOP’s law restricting who can turn in mail ballots on someone else’s behalf, meaning all of the judges on the circuit will decide the case in a joint sitting after a three-judge panel on the court previously sided against the plaintiffs last year.

This lawsuit challenges a Republican-passed law making it a felony to turn in someone else’s ballot if one isn’t a postal worker, family member, or caregiver for the voter. Plaintiffs argue that this discriminates against rural Native American and Latino voters who lack reliable mail service, particularly on Native American reservations.

Nebraska: Nebraska Secretary of State Bob Evnen, who just won office in last year’s elections, has announced he will push for Nebraska’s unicameral legislature to pass a voter ID law. Nebraska’s nominally nonpartisan chamber has long had a Republican majority, but the GOP has repeatedly failed in the last several years to attain the two-thirds supermajority needed to overcome a filibuster over similar voter ID bills thanks to Democrats and a handful of Republicans opposing the idea. Consequently, it’s unclear if Evnen’s proposal has enough support to pass.

Republican National Committee: In a blow to voting rights, a federal appeals court upheld a lower court’s decision not to extend a consent decree that had prevented the Republican National Committee from engaging in voter suppression activities. The consent decree arose pursuant to a legal settlement that had been in place since 1982, after the Democratic National Committee sued the RNC over the latter’s “ballot security” measures in New Jersey’s 1981 gubernatorial election.

In that race, the RNC had mailed sample ballots to voters in areas with large black and Latino populations, then tried to get election administrators to purge the registrations of anyone whose sample ballot was undeliverable in the mail. They also hired off-duty police officers to patrol precincts in those same neighborhoods under the guise of a “National Ballot Security Task Force.”

These acts of voter intimidation and attempts to remove eligible voters from the rolls might very well have determined the outcome of that race, as Republican Tom Kean defeated Democrat Jim Florio by less than one-tenth of one percent of the vote. They also landed the GOP in hot water, and the RNC has had to take steps to avoid even the appearance that it supports voter suppression until the decree expired a year ago.

Unfortunately, the consequences of the RNC getting out from under this decree could be very scary. Republican legislators have passed new voting restrictions in state after state over the last decade, so having the RNC become free to coordinate those efforts would only make matters worse. And given Trump’s proclivity for claiming that virtually non-existent voter fraud is widespread, his control over the RNC could help him push even more restrictive voting policies without any worries about judicial intervention until after voters have actually been harmed in future elections.

Wisconsin: As expected, the Wisconsin GOP’s lame-duck power grab is now facing a new lawsuit after the League of Women Voters and other plaintiffs filed a complaint in state court. These plaintiffs argue that the Republican-run legislature lacked the constitutional authority to convene an “extraordinary session,” contending that lawmakers were only authorized to assemble “at such time as provided by law,” meaning a regular session, or when “convened by the governor in a special session.”

Back in December, defeated Republican Gov. Scott Walker and the gerrymandered Republican legislature passed measures to cut early voting availability and strip key executive powers from the state’s new governor, Democrat Tony Evers, and new attorney general, Democrat Josh Kaul. And GOP legislators will be able to use those measures to defend the power grab itself, because they also gave themselves the authority to intervene in court cases when the governor and attorney general refuse to do so.

It’s unclear, though, how likely the plaintiffs are to prevail, especially since, the Milwaukee Journal Sentinel reports, extraordinary sessions have a history stretching back many years. Furthermore, Walker’s appointments have helped Republicans maintain a four-to-three majority on the state Supreme Court, which Democrats won’t have a chance to overturn before April 2020 at the earliest. This latest lawsuit is the second trying to fight Republican power grabs, following another one in federal court that specifically targeted the GOP’s lame-duck cuts to early voting availability.

Voting Access and Electoral College

New Mexico: After Democrat Michelle Lujan Grisham won the governor’s office, giving her party full control over state government last year, Democratic legislators are eyeing several reforms to make New Mexico a leader in protecting the right to vote and making it easy for citizens to cast ballots. For starters, Democratic lawmakers have announced they plan to introduce a bill to join the National Popular Vote Interstate Compact, which would assign the state’s five electoral votes to the national popular vote winner if enough states sign up. Currently, states with 172 of the needed 270 votes have done so. The addition of New Mexico would take that figure to 177.

Meanwhile, separate bills would both establish automatic voter registration and let voters register and cast a ballot at the same time during the early-voting period. Thirteen states have passed automatic registration since 2015, and 19 states allow same-day registration either throughout the entire in-person voting period or at least during early voting. Both measures would make registration less of a burden and could lead to higher turnout. These reforms are in addition to bills to end felony disenfranchisement entirely and open up party primaries to registered independents.

New York: Democrats are swiftly making the most of their newfound legislative majorities to quickly advance a series of proposals to turn New York from one of the worst states for voting access into one of the best. Democrats may take up bills in both chambers as soon as Monday that would automatically register voters who interact with several state agencies; create an early-voting period of 10 days, including both weekends before Election Day; consolidate the state’s unique separate state and federal primaries to save money and increase turnout; and let 16- and 17-year-olds “pre-register” so they’re automatically on the rolls when they turn 18.

Furthermore, Democrats plan to pass two state constitutional amendments to enable voters to register on the same day they cast a ballot, including Election Day itself, and also remove the requirement of an excuse to be able to cast an absentee ballot. These changes would have to pass the legislature both before and after the 2020 elections before they could go to the voters for approval in a referendum to amend the state constitution.

Democratic Gov. Andrew Cuomo has previously voiced his support, meaning these measures have an excellent chance of passing. If these proposals become law, voting in New York will become much more accessible, which should in turn raise the state’s well-below-average turnout rate.

Secretary of State Elections

Florida: Republican state Sen. Aaron Bean has introduced a constitutional amendment to make Florida’s secretary of state an elected position once again, marking the fourth appearance of this proposal in recent years. Most recently, the GOP-run Senate passed this same measure with near-unanimous Democratic support in 2017, only to have the state House largely ignore it. There’s no indication of whether House Republicans have had any change of heart, but even if they have, it would require three-fifths supermajorities in both chambers and three-fifths support in a voter referendum to take effect.

Currently, the governor appoints the secretary of state, a system that has been in place since 2003, when a 1998 constitutional amendment took effect that ended elections for the position and two other cabinet-level offices. But while Bean and even some Democrats might think an independently elected secretary of state could avoid the conflict of interest that arose in Florida’s 2018 recount, where Republican Gov. Rick Scott’s appointee, Ken Detzner, oversaw Scott’s ultimate 10,000-vote Senate victory over Democratic Sen. Bill Nelson, this proposal is a step in the wrong direction.

Indeed, one only needs to look to Florida’s northern neighbor, Georgia, to see the even more blatant problems presented by having an elected secretary of state. In that case, of course, we’re referring to Republican Brian Kemp, who oversaw his own successful election as governor. Kemp earned widespread condemnation for using his position to institute measures to suppress Democratic voters. Most egregiously, he abused his office to falsely accuse Democrats of hacking the state’s voter registration database to distract from his own record of security failures on the eve of the election.

Election administrators should not be partisan elected officials with a naked self-interest in the outcomes of elections favoring their particular party at the expense of free and fair elections. Bean’s proposal could therefore exacerbate the risk of an elected incumbent abusing their position. If Bean and his fellow senators from both parties truly wish to reduce the politicization of state election administration, they should pursue an alternative reform, such as creating a bipartisan commission or nonpartisan agency to oversee election administration, much like the one Wisconsin had until a few years ago—before Republicans eliminated it.

Election Consolidation

Kentucky: Kentucky’s Republican-dominated state Senate quickly passed a state constitutional amendment with bipartisan support this week to move the timing of elections for governor and other statewide executive officers from odd-numbered years preceding presidential elections to the presidential election cycle beginning in 2028 (legislative elections already take place in even-numbered years). Since state House Republicans hold a three-fifths majority, they could send this amendment to the voters for ratification in a referendum regardless of whether Democrats there support it, though given the measure’s broad Democratic backing in the Senate, that likely won’t be necessary.

This proposal would eliminate the need for separate odd-year elections, which would save the state money, but more importantly, it could dramatically improve voter participation in state-level elections. Indeed, Kentucky’s 2016 presidential election turnout rate of 59 percent of registered voters was roughly twice as high as the 31 percent turnout rate in 2015’s state elections. Consolidating elections in this manner would almost certainly do more to boost downballot turnout than any other realistic voting reform could.

Given Kentucky’s deep-red hue in federal elections, aligning the election dates in this manner may end up benefiting Republicans at the state level. However, even if partisan motivations are part of the GOP’s calculus here, this reform would be good for democracy by increasing voter participation and potentially making the electorate in state-level races look more demographically similar to the citizenry at large.

Felony Disenfranchisement

Kentucky: Civil rights groups are waging a lawsuit against Kentucky’s Republican Gov. Matt Bevin over his efforts to maintain Kentucky’s effective lifetime disenfranchisement for all felonies, arguing that the arbitrary nature of the system, which grants the governor total discretion, violates the Constitution. Indeed, one of Bevin’s first acts as governor was to rescind an executive order by his Democratic predecessor that would have automatically restored rights for more than 100,000 people who had completed their sentences for nonviolent crimes.

A vestige of Jim Crow, felony disenfranchisement bars one out of every 11 adults from voting in Kentucky, according to the Sentencing Project. That makes the state roughly tied with Mississippi for the highest disenfranchisement rate, following Florida’s passage of a constitutional amendment in 2018 to end lifetime disenfranchisement for most crimes. Even worse, Kentucky bans one in four black adults from voting, three times the rate of those who aren’t black. Furthermore, 78 percent of the disenfranchised have fully served out their sentences, including parole or probation.

Bevin has only granted 980 applications to restore voting rights in his three years in office, and he has simply refused to review countless more. Civil rights groups previously won a lower-court victory over Florida’s arbitrary rights restoration process in 2018 before that case became mostly unnecessary due to the passage of the amendment mentioned above. Plaintiffs in Kentucky are similarly seeking to have the federal courts force Bevin to have to adhere to guidelines that don’t discriminate against citizens in violation of their First Amendment rights.

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