Texas: Like their brethren in North Carolina, Republican legislators in Texas have been embroiled in racial gerrymandering lawsuits almost since the moment they passed new redistricting plans following the 2010 census. Earlier in 2017, a federal district court panel ruled that the GOP’s 2011 congressional and state House maps were intentionally discriminatory against black and Latino voters. Because Republicans had already redrawn those maps in 2013, following court rulings that blocked the 2011 districts from ever taking effect, there will be an expedited July trial over the current maps.
With the Supreme Court dealing Republicans a major blow in North Carolina (see our North Carolina item below), there’s a good chance Texas Republicans will also suffer a courtroom defeat that could lead to yet another set of new maps in 2018. In late May, the district court invited Republicans to voluntarily redraw their maps, and some Republican congressman reportedly even begged GOP Gov. Greg Abbott to call a special session in order to do so. However, the governor has refused to budge, raising the risk of the court stepping in and drawing the lines itself.
It’s not clear why Abbott’s being so stubborn. It’s possible Republicans view a redraw as an admission of wrongdoing—or that they’re hoping for a better outcome at the Supreme Court. Yet whatever the reason, this intransigence is potentially to the detriment of Abbott’s own party, since a court-drawn congressional map could have a devastating impact on Republicans and potentially cost them several congressional seats in 2018.
As we explained previously, March’s court ruling only specifically faulted a handful of seats, but since so many surrounding seats would have to be redrawn to correct the problematic districts, the possible range of outcomes is very broad. If plaintiffs prevail and GOP legislators ultimately redraw the lines, Republicans could limit Democrats to a gain of just two or three seats. However, if the court implements new lines of its own, that number could rise to something more like a five-seat pickup for Democrats, in what Republicans have aptly called their “Armageddon” scenario.
• Maryland: Lawsuits against far more widespread Republican gerrymandering have understandably dominated media attention, but a case against one of the country’s rare Democratic congressional gerrymanders could finally lead to a Supreme Court precedent with national implications for partisan gerrymandering. That suit, stemming from a challenge to Maryland’s map, will go to trial later this year. The Republican plaintiff has argued that the Democrats’ gerrymander of the state’s 6th Congressional District violated his rights to free speech and association under the First Amendment, based on his party preference.
In an important development, former Democratic Gov. Martin O’Malley, who signed that map into law, admitted in a deposition that Democrats did indeed draw the 6th District in western Maryland to obtain a partisan advantage. This admission could be key because any successful partisan gerrymandering challenge will almost certainly have to prove that mapmakers intentionally sought a partisan edge. While we have previously demonstrated how Maryland’s insanely convoluted district lines are more a result of placating incumbent demands than obtaining the maximum partisan advantage (as we typically see with most GOP maps), the lines they drew are nevertheless intended to help Democrats at least modestly.
O’Malley has further stated that he supports reform at the national level and says he signed off on this map because it didn’t make sense for Democrats to unilaterally disarm, especially since Republicans controlled the redistricting process in far more states following the 2010 census. Yet in an ironic twist, Democrats won’t be too displeased if this lawsuit forces them to redraw the lines in Maryland because such a ruling—or victories in different cases in North Carolina and Wisconsin—could finally see the Supreme Court reverse its longstanding refusal to strike down partisan gerrymanders. That could lead to a wave of challenges against other maps that have helped give Republicans a near-lock on the House and in many legislatures.
• North Carolina: In late May, the Supreme Court upheld a district court ruling issued last year that struck down North Carolina’s Republican-drawn 2011 congressional map on the grounds that GOP lawmakers had engaged in unconstitutional racial gerrymandering, handing voting rights advocates a major victory and dealing a huge blow to what was arguably the most effective congressional gerrymander of the modern era.
As shown in this map, Republican legislators used surgical precision to pack black voters into just two out of 13 districts, the tentacular 1st and the snake-like 12th. The lower court found that these districts separated voters on the basis of race without serving a compelling interest in violation of the constitution, a move that effectively prevented black voters from electing their preferred candidates in neighboring seats.
Before Republican legislators put these new lines into place, the black population in both the 1st and the 12th constituted a mere plurality in each of those districts. During redistricting, the GOP increased those pluralities to majorities, claiming alternately that the Voting Rights Act forced them to do so (in the case of the 1st) or that they’d ignored race entirely and only considered partisan preferences in the 12th (something that is still legally permissible).
The Supreme Court, however, rejected both arguments. Black voters in both districts had for decades been able to elect their candidates of choice (black Democrats), so increasing the black population in these two seats wasn’t necessary to ensure this state of affairs would continue. Indeed, in related cases, the Supreme Court has consistently rejected the notion that mapmakers are required to create districts with majority-black populations instead of taking local conditions into account to determine the proper threshold for black voters to elect their candidate preference.
As a result, because Republicans so flagrantly prioritized race over all other criteria with respect to the 1st, and because they could have achieved their partisan objectives by different means with the 12th, the court held that race unconstitutionally predominated in the redistricting process.
As noted above, this now-invalidated congressional map was one of, if not the very most aggressive partisan gerrymanders in modern history. North Carolina is a relatively evenly divided swing state—Donald Trump won it by less than four points last year—yet these lines offered Republicans 10 safe districts while creating three lopsidedly Democratic seats. Amazingly, all 10 Republican districts hit a perfect sweet spot with GOP support between 55 and 60 percent, a level that is high enough to be secure yet spreads around Republican voters just carefully enough to ensure the maximum number of GOP seats possible.
Unfortunately, Republican legislators swiftly replaced this map in 2016 with an almost equally aggressive gerrymander (shown here) that, they claimed, only took into account partisan considerations. As we have previously demonstrated, this map maintained the same split of 10 Republicans and three Democrats, and indeed, this was borne out in last year’s elections.
Republican state Rep. David Lewis even explicitly defended the redrawn map as a partisan gerrymander, stating unequivocally that it was intended to maintain the maximum possible edge for the GOP. This brazenly undemocratic admission was part of a legal tactic intended to insulate the new lines from renewed racial gerrymandering claims, but it helped expose the map to lawsuits alleging unconstitutional partisan gerrymandering. Again, partisan gerrymandering is currently allowed under U.S. law, but the Supreme Court will likely address this topic, too, in a series of related cases in North Carolina and other states.
Nevertheless, the high court’s recent ruling is a critical victory in a state that has been ground zero in the battle over voting rights. This decision will make it easier to challenge GOP racial gerrymanders elsewhere, which is significant because Republicans in nearly every Southern state could have drawn another congressional district that would elect black or Latino voters’ candidate of choice.
Federal courts have now struck down Republican-drawn maps for illegal racial gerrymandering in four Southern states since the 2010 census, including Alabama, Texas, and Virginia, leading to new maps. All four of those states plus Georgia also still have ongoing racial gerrymandering litigation at the congressional level, legislative level, or both. However, the North Carolina GOP’s new, allegedly “partisan-only” congressional map is still in place at the moment, and there’s still a long way to go before it, too, might come undone at the hands of the courts.
Tar Heel Republicans also have to contend with two more Supreme Court cases regarding illegal racial gerrymandering of the state legislature. One of these challenges saw a federal district court strike down a slew of districts last year for abusing race, but that decision came too late to affect last year’s elections. The lower court called for special elections to take place this fall, but the Supreme Court stayed that opinion pending appeal. The high court will likely soon decide whether to hear GOP legislators’ appeal, and given their ruling on the congressional map, it’s quite possible that they could summarily affirm the district court’s decision and require new maps.
The second racial gerrymandering case pertaining to the legislature has a more convoluted history. This challenge worked its way through the state court system only to see the North Carolina Supreme Court twice uphold the GOP’s legislative maps, most recently on a party-line vote in 2015. However, the U.S. Supreme Court sent that case back to the state Supreme Court on Tuesday for a third review in light of its decision on the congressional map. What makes this move so significant is that Democrats’ newfound majority on the North Carolina Supreme Court means that the state court is now very likely to rule against the GOP this time.
Unfortunately, Republicans have a firm grip on the legislature thanks to those selfsame illegal gerrymanders, and North Carolina’s governor plays no role in the redistricting process (not even to sign or veto maps). Republican legislators will therefore likely get a chance to draw new gerrymanders, since Democratic Gov. Roy Cooper can’t stop them. However, if they do, they’ll do so under new constraints that will likely limit their ability to maximize their partisan advantage, at least compared to the current district lines. Given the extensive recent history of abusive GOP gerrymanders, the courts might even take it upon themselves to draw new maps, which would be the best-case scenario for Democrats.
• New Hampshire: As expected, Republican legislators used their state House majority to advance a bill that restricts voter residency requirements. The bill heads back to the state Senate, where Republicans had passed a slightly different version on a party-line vote, and GOP Gov. Chris Sununu has said he will sign it if it reaches his desk. If this bill becomes law (as it probably will), voters who have moved to the state within 30 days of Election Day will have to show proof that they intend to remain in New Hampshire long term. Existing voters will have to provide proof that not only do they have a residency in the state, but that they live there day-to-day by making it their “domicile.”
These changes could very well prove to be unconstitutional, but if they survive review, they could disenfranchise college students and young voters in particular, two demographics that lean strongly toward Democrats. After Democratic Sen. Maggie Hassan won New Hampshire by just 1,017 votes and Hillary Clinton by only 2,736 votes in 2016, even a small effect could have enormous consequences if it swings a close race, which is exactly what Republicans are intending.
• North Carolina: On Thursday, a state appeals court unanimously moved to dismiss Democratic Gov. Roy Cooper’s challenge to a law that the Republican-dominated state legislature had passed in April to remove Democratic majorities from every state and county election board, a power grab that we have previously detailed at length. If this law stays in effect, election boards shift from having one-seat Democratic majorities to being evenly split along partisan lines. The resulting deadlocks will allow Republicans to veto any efforts to roll back their previous voter suppression efforts back when they had majorities under former Republican Gov. Pat McCrory.
Republicans pushed through this latest effort to usurp Cooper’s powers in late April after a state court struck down a previous attempt earlier this year for violating the state constitution’s separation of powers provisions. Cooper swiftly vowed to appeal this latest ruling, and he may have a good shot since Democrats gained a critical four-to-three majority on the state Supreme Court in last year’s elections.
However, Thursday’s lower court ruling nonetheless saw two Democratic-appointed judges side with a Republican-appointed one. The judges, though, reached their decision because they felt they lacked jurisdiction to hear the case and did not opine on the underlying merits of the dispute, so the outcome of Cooper’s appeal remains very much up in the air.
● Ohio: On Tuesday, the U.S. Supreme Court agreed to hear an appeal that will set up the first major high-court voting rights battle since Donald Trump appointed Justice Neil Gorsuch to the bench. Ohio Republicans are appealing a 2016 appellate court decision that invalidated their purge of voter registrations that appeared to discriminate against Democratic-leaning and nonwhite voters. To initiate this purge, Republican officials had sent notices to anyone who hadn’t voted or updated their information in two years; if that notice wasn’t returned and the voter didn’t cast a ballot in the next four years, they were removed. Federal law, however, prevents states from striking voters from the rolls simply for failing to vote, leading to last year’s ruling against the state.
Ohio’s GOP Secretary of State Jon Husted has in fact eliminated two million voters from the rolls since taking office in 2011. While records for voters who move or die must be updated, mass purges run the risk of wrongly disenfranchising many valid voters. The lists of inactive voters are also themselves prone to error: The Akron Beacon Journal reported last year that some supposedly inactive voters had actually cast ballots in 2016.
But with Gorsuch now part of a conservative five-member majority on the Supreme Court, there’s no telling whether this ruling will stand. And if it’s overturned, that will give Republican officials in a slew of other states license to pursue similar mega-purges, making it more burdensome for valid Democratic-leaning voters to exercise their voting rights.
• Texas: Republican Gov. Greg Abbott has now signed a bill that loosens Texas’ restrictive voter ID law after federal courts repeatedly found that the previous statute intentionally discriminated based on race. This new measure attempts to salvage the state’s voter ID regime lest the courts ultimately throw out the entire law. Instead of requiring voters to present an ID from a very specific set of government-issued IDs, this new law makes permanent what the court temporarily required last year: Voters who swear that they had a “reasonable impediment” to obtaining an ID may vote if they present another document showing their name and address, like a utility bill or paycheck.
This new law is a mixed bag for voting rights advocates. On the one hand, it preserves a voter ID requirement even after the conservative-leaning 5th Circuit Court of Appeals had deemed the previous measure discriminatory just last year. The law itself also remains transparently partisan: It allows voters to use hunting permits as an acceptable form of ID but not student ID from state schools. It’s not hard to guess which type of ID is more used by which type of voter. And even these “softer” requirements are still prone to causing voter confusion.
On the flipside, Republicans might have prevailed had they appealed all the way to the Supreme Court (again, see Gorsuch). Seen in that light, this loosening of restrictions counts as a modest victory for voting rights. And litigation over the finding of intentional discrimination regarding the original, strict version of Texas’ voter ID law is still ongoing. Voting rights advocates are pushing for the courts throw out the entire law on the basis of that earlier finding.
Unfortunately, at the very same time, Texas Republicans also passed a new law that is unequivocally bad for voting rights. Abbott signed a bill that eliminates the straight-ticket voting option, which a huge share of voters have used in recent elections. Texas can often have several dozen partisan races on the ballot at once, thanks to a multiplicity of contests for obscure offices like judgeships. Consequently, eliminating straight-ticket voting could dramatically increase the time it takes to cast a ballot, leading to even longer lines at polling places. It will also very likely spark an increase in undervoting, where voters simply skip making a choice in races that are far down the ballot.
What’s more, those who’ve exercised the straight-ticket option in recent elections have been disproportionately black and Latino—and consequently Democratic-leaning in their voting preferences. Fortunately, voting rights advocates have a potential opening for a lawsuit, since they successfully blocked Michigan Republicans from repealing straight-ticket voting in a court case last year that focused on its disparate impact on black voters due to increased voting times.
• Maine: Maine’s state Supreme Court recently issued a unanimous opinion saying that a 2016 ballot initiative that switched Maine’s elections to instant-runoff voting for state and congressional races violates the state constitution. This advisory opinion was non-binding, meaning the court did not yet formally strike down the law that voters had approved 52-48 last year. Furthermore, it only applies to state-level general elections, leaving instant runoffs in place for primaries and for all federal elections. However, the opinion casts serious doubt on the prospect of the legislature actually implementing instant runoff voting (sometimes called ranked-choice voting) as scheduled for the 2018 elections.
If this provision nonetheless goes into effect, Maine would become the first state in the country to adopt instant-runoff voting for Senate and House races. (It also would have been the first to use it for gubernatorial and state legislative races, but that’s almost certainly no longer in the cards.) This new system lets voters rank up to six candidates in order of preference. If no one initially attains a majority of first-choice votes, the last-place candidate gets eliminated and votes for that candidate shift to each voter’s second choice. That process repeats until one candidate achieves a majority (or all ballots are exhausted).
However, the court found that this system would violate a state constitutional provision that says that state-level candidates only need to win the most votes—a plurality—in order to be elected. Instant-runoff voting essentially requires candidates to win a majority.
Consequently, there’s a good chance legislators will now repeal the law to avoid a near-certain lawsuit to block its implementation, using the court’s opinion as political cover for a repeal that many already wanted to see. While reformers quickly pledged to introduce a state constitutional amendment to make instant-runoff voting permissible, such an effort would require two-thirds support in both legislative chambers, which looks like an impossible burden. (Any amendment would also have to go before voters.)
Legislators will soon consider both the proposed amendment and an outright repeal bill, but with Republicans, who mostly oppose the reforms, controlling the state Senate, they can easily block any amendment. Conversely, the Democratic-run state House might block outright repeal, but Republicans could simply thwart implementation for federal races and primaries by failing to budget the necessary resources for it. Some Democrats have also opposed instant runoff based on a belief that it would help independent candidates, so it’s possible Republicans could win over enough defectors in the lower chamber for the repeal bill.
Only twice in Maine’s past 11 gubernatorial elections since 1974 has the winner won a majority of the vote. The problems with the status quo became readily apparent in the 2010 Republican wave election when tea partying Gov. Paul LePage won his first term by a mere 38-36 plurality over a fractured field of left-leaning opponents. Despite an obvious appetite for electoral reform and a strong independent streak, Maine voters lack the power to initiate state constitutional amendments at the ballot box. Their best recourse appears to be the daunting task of voting in new legislators—most likely Democrats—who will support instant-runoff voting.
Voter Access and Registration
• Connecticut: Last month, Connecticut’s Democratic-run state House voted mostly along party lines to pass a state constitutional amendment to allow early voting. Democrats just barely control the state Senate thanks to Lt. Gov. Nancy Wyman’s tie-breaking vote, meaning the upper chamber could pass it without any Republican support if need be. Since Republican opposition makes a three-fourths supermajority allowing for a 2018 voter referendum impossible, Democrats would need both chambers to pass this amendment in both 2017 and 2019 before it could head before voters in 2020.
Connecticut Democrats have tried for years to allow early voting, since the state is one of just 13 that does not allow it. However, they keep running into trouble trying to overcome Republican opposition to this measure that would make voting easier. Democrats previously put an amendment on the 2014 ballot, but it narrowly failed 52-48 in that year’s GOP wave. Democrats are optimistic that higher turnout in the 2020 presidential cycle will result in victory next time it makes it to the ballot, though again, there are still further legislative hurdles to overcome.
• Georgia: Proponents of voting access won a court case early in May that forced Georgia to temporarily reopen its voter registration period ahead of the critical 6th Congressional District special election later this month. Republican officials had unsuccessfully tried to prevent anyone who wasn’t registered for the April 18 primary from participating in the June 20 runoff, but the court held that this effective three-month registration deadline violated federal law. Nearly 8,000 people have since taken advantage of this ruling by registering to vote by May 21, though since Georgia lacks party registration, it’s not immediately possible to say whether this new influx helps one side or the other.
• Illinois: Illinois’ state House unanimously passed a bill on Tuesday to establish a system of automatic voter registration, followed by the state Senate’s similar unanimous approval of the measure the next day. This marks a huge turnaround from just last year, when Republicans voted along party lines to block a Democratic effort to override GOP Gov. Bruce Rauner’s veto of a different automatic registration bill after it had initially passed with broad bipartisan support. This time, though, Rauner has said he will sign the bill.
Nonetheless, this legislation isn’t a total victory after Democrats made some key compromises on their earlier proposal to win over Republican support. This latest measure would automatically register eligible voters who do business with the Department of Motor Vehicles and, importantly, other government agencies, too. However, the newer version would ask voters themselves to confirm their eligibility at the time of registration instead of having election officials do so afterward. It would also ask voters up front if they want to opt out of registering, rather than in a follow-up letter.
It’s unclear what the impact of these changes will be, but they could lead to voter confusion over eligibility. Since Illinois already asks eligible voters if they want to register when at the DMV, simply asking instead if they don’t want to register might not produce substantially different results. Consequently, fewer new voters might be added to the rolls than would have under the previous iteration of this legislation. Earlier estimates have suggested that automatic registration could result in the registration of more than one million new voters, but the compromises needed to pass this bill could lower that number, perhaps considerably.
• Rhode Island: Illinois isn’t the only state moving forward with automatic voter registration: On Wednesday, Rhode Island’s heavily Democratic state House unanimously passed a bill to automatically register eligible voters who interact with certain state agencies unless they opt out, although it’s unclear from the bill’s text whether the opportunity to opt out will come up front or after the fact. This bill would not only cover those who do business with the state’s Division of Motor Vehicles but also those who apply for public assistance, unemployment, and other services. These additional agencies are important because many low-income citizens and city-dwellers might seldom or even never have reason to interact with the DMV.
Despite having near-monolithic Democratic majorities in the legislature and a Democratic governor, Rhode Island lags far behind when it comes to making voting quick and easy. It has no same-day registration, no early voting, no excuse-free absentee voting, and it’s the only state where Democrats were instrumental to passing a voter ID law, although theirs is nowhere near as restrictive as most Republican-designed measures. Still, if the state Senate approves automatic registration and Democratic Gov. Gina Raimondo signs it, the reform could go a long way toward making voting easier in this blue state.
• Alabama: In a surprising development, newly elevated Republican Gov. Kay Ivey and the state’s GOP-dominated legislature have passed a law that loosens Alabama’s felony disenfranchisement restrictions. Alabama had amended its constitution back in 1901, during the Jim Crow era, to disenfranchise those who committed crimes involving “moral turpitude,” a term that was deliberately vague enough to give local officials the leeway to wield it as a weapon to target African Americans, just as its authors openly intended. Although the Supreme Court later struck down that provision, which had included misdemeanors, subsequent laws still denies the vote to those convicted of felonies of nebulous “moral turpitude.”
Indeed, according to the Sentencing Project, Alabama currently disenfranchises nearly 300,000 individuals, or roughly 8 percent of its adult citizens. That number includes 15 percent of African Americans, roughly three times the rate of all other groups. The new law finally defines which exact crimes fall under the definition of moral turpitude, effectively limiting it to fewer than 50 felonies instead of nearly all of them. This list includes crimes like murder, assault, theft, and sexual offenses, but it conspicuously excludes certain white-collar crimes like public corruption—even though Republican Mike Hubbard, the once-powerful speaker of the state House, was convicted of just that offense in a major case last year—so it’s plausible that African-Americans will still be disproportionately affected.
Unfortunately, this new law requires those who have completed their sentences to repay all court fines and fees before regaining their voting rights, a burden that amounts to a poll tax. Furthermore, Alabama will still disenfranchise many who are on parole or probation for some felonies, and of course those who are still incarcerated. It therefore remains to be seen just how many disenfranchised people will regain their voting rights following this reform; the Southern Poverty Law Center