Voting Rights Roundup: Court rules Arizona GOP intentionally discriminated against voters of color
● Arizona: The 9th Circuit Court of Appeals, with 11 judges participating en banc, has overturned a ruling by a panel of three of the circuit's judges that had upheld restrictions backed by Arizona Republicans on counting votes cast in the wrong precinct but in the right county, as well as limitations on who can turn in another person's absentee mail ballot on their behalf. The latest ruling determined that the laws were invalid because Republicans had intentionally discriminated against Native American, black, and Latino voters.
Arizona has largely transitioned to mail voting, but the court observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That has led some voters to ask others in their community to turn their completed ballots in, a practice Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize those voters. The law that the court just struck down had restricted who could handle another person's mail ballot to just a close relative, caregiver, or postal service worker.
The ruling also invalidated a GOP-backed provision prohibiting out-of-precinct voting, where a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, such voters could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.
Following this ruling, voters who appear at the wrong polling place will still be able to cast a ballot for the races in which they would have been eligible to participate at their correct polling place, such as statewide contests for president or governor.
Republican state Attorney General Mark Brnovich said he would appeal to the Supreme Court. Given the hostility toward voting rights shown by the court's conservative majority, there's a strong risk that this ruling will be overturned.
● Washington: Democratic state senators have passed a bill out of committee to end the disenfranchisement of people on parole or probation for a felony conviction. If the bill becomes law, only people who are currently incarcerated would remain unable to vote.
Voter Registration and Voting Access
● Massachusetts: Voting rights advocates are hoping Massachusetts lawmakers will finally pass same-day voter registration this year after proposals have failed in recent years, with supporters urging the heavily Democratic legislature to advance one of three various bills (known as H 636, H 685, and S 396) out of committee ahead of a key Feb. 5 deadline. Democratic Secretary of State Bill Galvin supports the concept, and he said that it could be implemented in time for the November general election if lawmakers act soon.
● Virginia: Democrats and a handful of Republicans in Virginia's state House have passed a bill to both remove the excuse requirement to vote absentee and establish in-person absentee voting similar to traditional early voting. State Senate Democrats recently passed a similar bill, but one chamber will have to pass the other chamber's bill before a final version can be sent to Democratic Gov. Ralph Northam for his expected signature.
● Puerto Rico: Legislators in Puerto Rico are reportedly expected to soon pass a bill that would have the entire commonwealth vote online by 2028, a move that would dramatically increase the vulnerability of the island's elections by exposing them to direct hacking.
The bill would establish a pilot effort during which early and absentee voters could vote online in the 2020 elections, and all voters would have that option in 2024. By 2028, Puerto Rico's election commission would be able to decide whether voters could only vote online, but the bill doesn't specify how internet voting would be conducted or secured.
Although advocates of easier voting access have long considered online voting as potential reform to boost turnout, election security experts have widely warned against internet voting as impossible to truly secure from all threats. The ACLU has sent a letter to Gov. Wanda Vázquez urging her to veto the bill if it reaches her desk, and it's possible that the group could file a lawsuit if the measure ultimately becomes law.
● Tennessee: The 6th Circuit Court of Appeals unanimously upheld a lower court ruling that rejected a lawsuit seeking to prohibit Tennessee from using its remaining paperless voting machines in the upcoming elections over security concerns. The court ruled that the plaintiffs lacked standing to bring the case, finding that they had failed to demonstrate how they had been or were likely to be harmed. The plaintiffs have yet to indicate whether they will seek a further appeal.
● West Virginia: West Virginia's Republican-run legislature has unanimously voted to pass a bill allowing voters with certain disabilities to cast their ballots electronically over the internet, sending the bill to GOP Gov. Jim Justice for his signature. Lawmakers said they feared that not passing such legislation would leave them vulnerable to a lawsuit given that some voters are unable to cast a paper ballot without assistance. However, election security advocates have warned that any type of internet-based voting is potentially vulnerable to hacking.
Voting Rights Expansions
● Burlington, VT: The City Council in Burlington, Vermont's largest city, has reversed course and voted not to place a referendum on the ballot this March that would have granted voting rights in local elections to noncitizens with permanent legal resident status. Supporters withdrew the measure from consideration, stating that voters mistakenly believed undocumented immigrants would have gained the right to vote. Backers said they hope to revisit the legislation in the future.
● New York City, NY: Despite growing support on the New York City Council for a bill that would grant voting rights in local elections to hundreds of thousands of noncitizens with permanent resident legal status, Democratic Mayor Bill De Blasio has cast doubt on the measure. A majority of council members have signed on as sponsors, but it would take a two-thirds supermajority to override a potential veto by De Blasio. Democrats hold nearly every seat on the council but are divided between more progressive and moderate factions.
● Colorado: Colorado Democrats have advanced a bill out of state House committee along party lines to end the practice of "prison gerrymandering" by counting incarcerated people for redistricting purposes at their last address instead of where they are imprisoned (and can't even vote). Democrats hold majorities in both legislative chambers and the governor's office, meaning there's a decent chance this bill will become law.
● Wisconsin: Democratic Gov. Tony Evers has signed an executive order creating a nonpartisan advisory commission for redistricting that will submit proposed maps to the legislature. These maps would not have the force of law, and Republican lawmakers would reject any maps that don't maintain their gerrymanders. However, Evers' move could provide reformers with ammunition in court if lawmakers deadlock and the judicial branch has to step in and draw new maps after the 2020 census.
● Virginia: By an 11-10 vote, with three Democrats siding with Republicans, a committee in the state House has failed to advance a bill to add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact. However, it's still possible that Democrats could reconsider the bill this session. Democrats hold full control of state government and could pass this bill without any GOP support, but they can only afford a limited number of defections in the likely event that Republicans unanimously oppose the legislation.
● Kansas: After Republican Secretary of State Scott Schwab recently said his office would not be ready to implement countywide "vote centers" in time for the 2020 elections, legislators in both parties are considering legislation—or a lawsuit—to ensure compliance with their intentions.
Last year, lawmakers from both parties passed a law letting counties decide whether to switch to a vote center system, which allows voters to cast their ballot at any polling place in their county instead of just their local site.
This move was intended to improve voting access and save money by more efficiently allocating election staff and resources on Election Day, but Schwab claims that his office won't have time to finalize the regulations needed to implement the new system until after 2020. Republican state House Majority Whip Blake Carpenter is reportedly drafting a bill to authorize counties to implement the new vote centers without Schwab, while Democratic state Senate Minority Leader Anthony Hensley said he's considering a lawsuit.
● Texas: A federal district court has ruled that Texas must register three voters who updated their driver's license address online but were unable to update their voter registration at the same time. The plaintiffs had argued that Texas was violating federal law by refusing to offer online registration updates even though it allowed registration updates for voters updating their driver's licenses in-person or by mail. However, the court's ruling is only limited to these three plaintiffs, likely because of the timing of the soon-approaching March 3 primary.
This case follows a previous lower court ruling that similarly held that Texas was violating federal law by failing to offer online registration updates when people change their address online. However, that ruling was overturned by the 5th Circuit Court of Appeals, which determined that the plaintiffs in that case lacked standing because they had subsequently been able to re-register by other means. This latest case features three plaintiffs who had moved but had not re-registered, which could solve their standing problem if this case again finds its way before the 5th Circuit.
In a separate effort, Democratic Party organizations are seeking to intervene in and revive the original lawsuit as a way to avoid the possibly lengthy time needed for the newer suit to succeed. However, this latest ruling suggests that the court could expand the impact of its decision to affect all voters who may want to update their address and registration online ahead of the November general elections.
● Mississippi: Republican legislators in a state House committee sided with Democrats to unanimously recommend to the full House not to overturn an election where Democrat Hester Jackson-McCray defeated GOP state Rep. Ashley Henley by 14 votes. Henley had, without evidence, alleged voting improprieties and urged her colleagues to overturn the election results simply because she was unhappy with the results.
Democrats feared Mississippi Republicans would heed Henley's request because they did something very similar after the 2015 elections. In that instance, Democratic state Rep. Bo Eaton and GOP challenger Mark Tullos had tied, and pursuant to the established procedures for such situations, a drawing of lots took place that saw Eaton prevail. But Republicans in the legislature simply overturned that defeat thanks to their gerrymandered state House majority. A federal court rejected a lawsuit by Eaton, saying it lacked jurisdiction.
The recent committee vote doesn't officially settle the matter, but the GOP-majority House appears unlikely to reverse course. If Jackson-McCray's victory is validated, she would be the first African American elected to the legislature in suburban DeSoto County since at least Reconstruction and possibly the first ever.
● Michigan: Michigan's state Court of Appeals has upheld a lower court ruling that struck down most of the restrictions Republicans had imposed on the ballot initiative process in a 2018 lame-duck session after voters had approved ballot measures to reform redistricting and expand voting rights in that year's elections.
One provision the court invalidated would have required people gathering ballot petition signatures to disclose in an affidavit and on the petition if they were paid or volunteers.
Another provision that was also struck down would have prevented any group seeking to get on the ballot from gathering more than 15% of petition signatures from any of the state's 14 congressional districts. But because Republicans gerrymandered the map—emails obtained in a federal lawsuit exposed how one GOP staffer bragged about being able to "cram ALL of the Dem garbage" in populous southeastern Michigan into only four districts—the law would have made it disproportionately harder to put progressive measures on the ballot than conservative ones.
Republican legislative leaders said they are still considering whether to appeal to the state Supreme Court, where Republicans hold a 4-3 majority. However, Republican Justice Elizabeth Clement has broken with her fellow conservatives on high-profile issues such as allowing the redistricting reform measure to appear on the ballot.