Making matters worse, Sneed now reports that many election officials are preparing to send out absentee ballots just before the UPU meets in late September to discuss Trump’s demands. These administrators therefore don’t know whether “to tell overseas voters to proceed as usual or to expect new issues” in terms of the cost and time it will take to send back ballots.
Turnout is already quite low among Americans abroad: A study published last year by the Federal Voting Assistance Program found that just 7% of voting-age civilians participated in the 2016 elections. The expense and uncertainty surrounding Trump’s conflict with the UPU are only likely to send those numbers even lower.
And while overseas voters may appear to be unintentional victims rather than deliberate targets of Trump’s wrecking-ball approach to negotiations with foreign nations, Democrats are likely to suffer more. According to voting expert Michael McDonald, “overseas civilian voters are some of the strongest Democratic constituencies, and they well outnumber overseas military voters.” That fact can only make it more likely that Trump proceeds on his current course.
● Michigan: In their ongoing efforts to preserve their ability to gerrymander, Republicans have now filed a second lawsuit in federal court arguing that Michigan's new independent redistricting commission is unconstitutional.
This latest suit contends that the process for selecting commissioners violates the GOP's First Amendment rights to freedom of association by preventing political parties from picking their own commissioners. Republicans claim that, since Michigan has no party registration, Democrats could try to apply for the commission as Republicans, even though the process allows each party's legislative leaders to strike a certain number of applicants from the pool of prospective commissioners.
This newest lawsuit follows another one that Republicans filed last month, which also targeted the commissioner selection process by arguing that it's unconstitutional to prevent political candidates, officeholders, lobbyists, and their relatives from serving on the commission. Both lawsuits seek to stop the voter-approved commission from taking effect, and this latest challenge is asking for a preliminary injunction that would leave redistricting in the hands of the Republican-run legislature while litigation remains ongoing.
As we wrote when Republicans filed their first lawsuit, it's unclear just exactly what they hope to gain from this litigation in the near term, since even if they succeed in striking down the commission and returning redistricting to lawmakers, they'd still be facing a veto of any new gerrymanders by Democratic Gov. Gretchen Whitmer. That would likely yield maps drawn by a court, which would adhere to nonpartisan standards similar to those the commission would rely on.
However, it could be that Republicans plan a future lawsuit seeking to remove the governor's veto power over new maps, though it's unclear what mechanism such a frontal assault on the separation of powers would rely on. Their counterparts in Wisconsin nonetheless appear to be plotting just such a maneuver, creating a new front for reformers to monitor.
● North Carolina: State Rep. Kelly Alexander and fellow Democrats have filed a lawsuit in state court arguing that Republicans' gerrymandering of the districts used to elect trial court judges in Mecklenburg County violates the U.S. and state constitutions, along with the federal Voting Rights Act.
Mecklenburg County is a Democratic stronghold that's home to Charlotte and more than 1 million residents. Last year, Republicans in the state legislature changed Mecklenburg's procedures for judicial elections from a countywide system to one in which the county is split into separate judicial districts, even though all of the elected judges still retain countywide jurisdiction.
The GOP's new law gerrymandered the districts in an attempt to elect more white Republicans in place of several black Democrats. Plaintiffs contend that this violated the U.S. Constitution's provisions guaranteeing equal protection and freedom of association, as well as the 15th Amendment and the Voting Rights Act for discriminating against black voters. They furthermore charge that the GOP's judicial redistricting violated the state constitution by creating a new court system without a constitutional amendment. Consequently, they're seeking a preliminary injunction to block the new law.
● OH Supreme Court: On Monday, The Columbus Dispatch reported that former Secretary of State Jennifer Brunner and state Judge John O'Donnell will run as Democrats for the two Ohio Supreme Court seats up for election in November 2020, which could have a major impact on redistricting. Ohio Supreme Court candidates run in party primaries but face off in a nonpartisan general election. Brunner indicated that she plans to run against Republican Justice Judith French, and O'Donnell will challenge GOP Justice Sharon Kennedy.
Brunner had previously won the 2006 election for secretary of state but later lost the 2010 primary for U.S. Senate. However, she has since been elected to the state's 10th District Court of Appeals, serving since 2014. O'Donnell has been running for some time and is making his third attempt at Ohio's high court: He previously lost by just 50.3-49.7 against GOP Justice Patrick Fisher in 2016 even as Trump was winning Ohio by 51-43. In 2014, he lost to French by a wider 56-44 as the Republican wave hit Ohio especially hard, although that was still a narrower margin than every Democrat running statewide for partisan office.
If Democrats win both of these 2020 races, they would gain a 4-3 majority on the state Supreme Court for the first time since the 1980s. Such a majority would have profound consequences for the upcoming post-2020 redistricting cycle. As we've explained in detail, Ohio's new systems for congressional and legislative redistricting passed since the last round of redistricting still give the Republicans who dominate state government the power to gerrymander again. However, a Democratic state court majority could use state constitutional protections to strike down unfair maps in a way that may be insulated from federal review.
● Georgia: The plaintiffs challenging Georgia's paperless voting machines have now asked the federal court that just banned those machines for use in 2020 to also prohibit the state from deploying new voting machines that print a paper ballot with a bar code record, which voters can't verify themselves. Instead, the plaintiffs are urging the court to require paper ballots filled in with pens, which would be fed into optical scanners.
● Illinois: Democratic Gov. J.B. Pritzker has signed a new law that aims to ensure everyone in jail who is awaiting trial and has not been convicted of a felony can exercise their right to vote. In Cook County, home to Chicago and roughly 3.5 million eligible voters, this law will require the county jail to operate an in-person polling place. Jails in every other county will be required to provide absentee ballots for eligible detainees.
Illinois disenfranchises incarcerated citizens who have been convicted of a felony, but it automatically restores their voting rights upon release from prison. However, many individuals don't realize they regain their right to vote upon release, so this law also seeks to remedy that problem by requiring officials to inform citizens upon release that they have regained the right to vote and to provide them with a voter registration form.
Voter Registration and Voting Access
● New Jersey: Democratic state senators have scheduled a legislative session for next week to debate legislation to fix New Jersey's vote-by-mail law to ensure that voters who cast an absentee ballot in 2017 or 2018 will automatically receive a new mail ballot for this November's state Assembly elections, and Assembly Democrats may soon do the same.
Democrats are mounting this effort after the secretary of state's office decided that voters who requested absentee ballots in those elections would have to make new requests for this year. Supporters of the new mail voting system say that decision runs contrary to the intent of the law, which was passed last year. Jonathan Lai at The Philadelphia Inquirer reports that an estimated 172,000 voters requested mail ballots in 2017 or 2018 but wouldn't automatically receive a ballot this year without a new request unless lawmakers act.
Writing at the New Jersey Globe, David Wildstein reports that Democrats are adamant about fixing the vote-by-mail law because of the major absentee ballot campaign operations they mounted in 2017 and 2018, which led to absentee votes heavily favoring the party in those elections. Since the Assembly elections are at the top of the ticket this year (neither the state Senate nor the governor is up for election), turnout would typically be very low. However, voters would likely be more inclined to cast a ballot if they automatically get one in the mail.
● Ohio: Republican Secretary of State Frank LaRose and state senators from both parties have introduced a new bill that would make it easier to register to vote at Ohio's Bureau of Motor Vehicles. While the bill would not establish a true automatic voter registration system, it would let eligible voters who are conducting business with the BMV register for the first time or to update an existing registrations electronically rather than with cumbersome paper forms.
● North Carolina: State House Republicans have given preliminary approval to a bill that would use lists of people excused from jury duty to try to find noncitizens who are on the voter registration rolls, but reporting from local NBC affiliate WRAL indicates that such an effort could risk removing eligible voters thanks to widespread false matches. Furthermore, WRAL reports that the exact process for removing flagged registrants isn't spelled out in the bill and would be left up to election officials, raising further questions about the risks of removing eligible voters, such as recently naturalized citizens.
Republicans passed a procedural hurdle last week with the support of a handful of Democrats, but unclear if they could muster enough support to override a potential veto by Democratic Gov. Roy Cooper, since the GOP doesn't have enough votes to do so on its own.
● Voter Suppression: The 11th Circuit Court of Appeals has rejected an appeal by the right-wing American Civil Rights Union and conservative activist J. Christian Adams, who sought to overturn a 2018 district court ruling that blocked Adams' ham-fisted plot to get populous Broward County, Florida, to aggressively prune its voter rolls in a way that would have ensnared eligible voters.
Adams is one of the foremost Republican peddlers of lies about voter fraud and is also a former member of Trump's bogus voter fraud commission. As we explained last year, his courtroom defeat only came as the culmination of his years-long effort to bully local governments into purging eligible voters through legal action. Adams had largely been successful because he’d mostly targeted poor, rural counties with predominantly black populations that had little choice but to settle out of court to avoid costly litigation, but populous Broward was able to fight back—and win.
This isn't the only legal setback that Adams has faced this year. In July, Adams and another group he's affiliated with called the Public Interest Legal Foundation settled a lawsuit brought by registered voters in Virginia whom Adams had defamed and intimidated by falsely claiming they were not citizens and exposing their personal information online.
Secretary of State Elections
● Secretaries of State: The Democratic Association of Secretaries of State has unveiled the races it plans to target next year, which will determine who runs elections in several states. Democrats hope to flip Republican-held offices in Missouri, Montana, Oregon, Washington, and West Virginia, and they aim to defend Democratic incumbents in North Carolina and Vermont. (In North Carolina, elections are administered by an appointee of the governor rather than the secretary of state.)
The Pacific Northwest in particular offers top pickup opportunities for Democrats. Oregon will host an open-seat race after Republican Bev Clarno agreed not to seek a full term in exchange for getting appointed by Democratic Gov. Kate Brown following the death of Republican incumbent Dennis Richardson earlier this year. (Oregon law requires appointees to be members of the same party as the deceased office-holder.) Meanwhile, in Washington, Democrats are trying to unseat Republican Secretary of State Kim Wyman.
The position of secretary of state is singularly important for guaranteeing fair elections and equal access to the ballot box. Missouri's Republican incumbent Jay Ashcroft recently demonstrated just how vital it is to have a pro-democracy secretary of state after he crafted deceptive ballot language for several proposed ballot initiatives that would expand voting access. Supporters of those measures responded with a lawsuit earlier this month to block Ashcroft's misleading language and substitute in fairer descriptions.
● Colorado: On Tuesday, a panel of judges on the 10th Circuit Court of Appeals reversed a district court decision in a 2-1 ruling that upheld Colorado's requirement that those seeking to put amendments to the state constitution on the ballot must gather signatures from at least 2% of registered voters in each of the 35 state Senate districts.
Even though some districts have up to 60% more registered voters than others, the judges held that the provision doesn't violate the U.S. Constitution's "one person, one vote" principle because the districts were drawn to be roughly equal in terms of total population based on the 2010 census. It is unclear whether the plaintiffs will seek a further appeal, which could include petitioning the entire 10th Circuit to review the case or appealing to the Supreme Court.
Prior to 2016, initiatives only needed signatures equivalent to 5% of the votes cast statewide in the last election for secretary of state. However, a measure passed that year, supported by business interests and then-Gov. John Hickenlooper, established the state's new geographic distribution requirement and also increased the threshold for passage from 50% to 55%.
But even though it was backed by Hickenlooper, a Democrat who is now running for Senate, the new distribution requirement makes it disproportionately harder to place progressive initiatives on the ballot than conservative ones. That's because liberals must gather petition signatures in conservative rural districts where Democratic voters are spread out across significant distances, making it costly and time-consuming to canvass for petition signers.
By contrast, while conservatives would need to gather signatures in left-leaning strongholds like Denver, districts in urban areas are much more densely populated. Therefore, even though Republicans may be few in number in major cities, they're much easier to reach because they live more closely together.
● Colorado: In a 2-1 decision, a panel of judges on the 10th Circuit Court of Appeals has reversed a district court ruling that rejected a challenge by a Colorado elector for Hillary Clinton who was removed from office and replaced after he tried to vote for John Kasich.
The majority held that it was unconstitutional for the state of Colorado, which has a law on the books that allows for the replacement of electors who don't vote for the candidate by whom they were nominated, to remove elector Michael Baca, who had unsuccessfully attempted to convince Republican electors to write in Kasich's name in order to deny Donald Trump an electoral majority and throw the election to the House.
The 10th Circuit's ruling, however, may not stand on appeal. As election law expert Derek Muller notes, this decision failed to take notice of a similar case out of Minnesota that the 8th Circuit rejected last year, deeming the issue moot. Should the Colorado case be reviewed by the entire 10th Circuit or the Supreme Court, Muller says "it could well be tossed on procedural grounds" much like the Minnesota challenge.
But if the Colorado ruling were to be upheld by the Supreme Court and set a national precedent, it would unbind every elector from any state law prohibiting faithless electors. Such an outcome could alter the result of a close Electoral College vote, adding uncertainty as to whether a candidate who appeared to have won a narrow victory would in fact prevail in the Electoral College. While faithless electors have been infrequent in modern history, removing any limits could embolden electors to defect and consequently risk chaos if electors were to randomly overturn the expected results.