Voting Rights Roundup: Virginia Dems advance redistricting reform
● Virginia: Lawmakers in Virginia's Democratic-run state legislature have advanced a constitutional amendment in the state Senate and state House that would create a bipartisan redistricting commission, a compromise that lawmakers passed last year when Republicans were still in the majority. Legislators have also approved separate "enabling" legislation to strengthen the amendment, which passed with bipartisan support. A separate reform statute intended to function in the absence of the amendment passed along party lines.
As we've previously detailed, the constitutional amendment creates a bipartisan 16-member commission for congressional and legislative redistricting, with half the commissioners made up of legislators from each major party and half composed of citizens picked by retired judges. Maps would be subject to approval by the legislature and governor, but lawmakers could not draw their own.
The amendment turned out to be weaker than what reformers had proposed by dropping a number of criteria, including a ban on maps unduly favoring one party; a requirement to try to keep cities and counties whole; and a mandate to preserve communities of interest. As a result, nothing would prevent bipartisan gerrymandering to protect incumbents, though it would take bipartisan support for the commission to recommend a map to lawmakers, potentially limiting the chance for one-party distortion.
Democratic lawmakers' enabling legislation seeks to address some of these concerns by requiring the commission members to reflect Virginia's demographic and geographic diversity; banning maps that intentionally favor a party or candidate; increasing transparency; and setting nonpartisan guidelines that the state Supreme Court must follow if commissioners fail to pass a map. That last provision is critical because Democrats are concerned that the state's highest court, which is dominated by conservatives, would draw maps that unfairly favor the Republican legislators who elevated them to the bench to begin with.
The final bill, which is intended to function even without the passage of the amendment, contains similar criteria and also would end prison gerrymandering by counting incarcerated people at their last known address instead of where they are imprisoned (and can't even vote). This change would likely shift representation from whiter rural communities to urban communities of color, particularly at the legislative and local levels.
It's unclear which of the two reform efforts will ultimately become law. Even if Democrats' strengthened criteria are enacted, they would still only be statutory and at risk of future repeal, whereas the amendment would be much tougher to roll back. Democrats are considering whether to drop the amendment entirely and instead rely on the second statutory reform bill for the coming redistricting cycle, then later pass a more optimal constitutional amendment. Because Virginia requires amendments to pass both before and after a state general election and then in a referendum, it's too late to pass any other constitutional amendment before the next round of redistricting.
● Alabama: A federal district court has rejected an NAACP-backed lawsuit targeting Alabama's method for electing its appellate courts, ruling that the system does not discriminate against black voters.
The plaintiffs are challenging how Alabama elects judges to its state Supreme Court and intermediate appellate courts. These positions are elected on an "at-large" basis statewide, which prevents black voters from electing their chosen candidates because the state's white majority votes heavily for other candidates (i.e., white Republicans).
The plaintiffs had urged the court to strike down the current method and require the state to use districts to elect judges instead, which would have given black voters a chance to form a majority in some districts where they could elect their preferred candidates (likely black Democrats).
At-large election systems have been struck down across the country under the Voting Rights Act for diluting black and Latino voting power, but prior rulings have almost all dealt with elections for legislative bodies such as city councils. Although the Supreme Court ruled in 1991 that the Voting Rights Act applies to judicial elections, it has rarely been used successfully to combat at-large voting schemes. Plaintiffs have said they are still considering whether to appeal.
● Colorado: Colorado's Democratic-run state House has given its approval nearly along party lines to a bill that would 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). The bill now goes to the state Senate, where Democrats also hold a majority.
● Missouri: Republican state senators have given preliminary approval to a constitutional amendment that would gut the reforms voters approved in 2018 to make legislative redistricting fairer.
The GOP's amendment would eliminate the post of "nonpartisan demographer," who is tasked with drawing new maps and proposing them to a bipartisan commission appointed by legislative leaders. Instead, it would restore the commission's power to draft maps itself. The amendment also neuters the requirement of partisan fairness in all but name and prioritizes compactness instead.
The amendment also removes a requirement to use the total population for redistricting—the norm in practically every state—and it instead loosens the language to allow for unspecified "data being used." That change opens the door to using the whiter adult citizen population for the purposes of drawing new lines, something that Donald Trump and Republicans pushed heavily for last year as part of a plot to undermine Democratic and Latino representation in redistricting. Although Trump failed in his drive to add a question on citizenship to the census, he's still trying to produce citizenship data by other means for states like Missouri to use.
In order to mislead voters into thinking they're making the system fairer, the GOP has tacked on minor ethics and lobbying restrictions for state lawmakers. Republicans accused the 2018 amendment's proponents of doing this very thing by combining ethics reforms with redistricting reforms, but those reformers were trying to make the system fairer by establishing ethics restrictions in a state that previously had few.
The GOP's new provisions would add little, given how dramatically the 2018 amendment changed the status quo. In one egregious example, lobbyists were previously permitted to give unlimited gifts to lawmakers. The original amendment capped all gifts at $5, leading to a 94% drop in lobbyist spending. The new Republican amendment would simply ban such minor gifts entirely, as though eliminating lobbyists' ability to buy lattes for legislators amounts to meaningful ethics reform.
Republicans still need a further vote in the state Senate before the amendment goes on to the state House for consideration. However, since Republicans hold supermajorities in both chambers, it's almost certain they'll attain the simple majorities they need to put the measure before voters in a referendum. Republicans could schedule that referendum for a date that doesn't coincide with the November general election as a ploy to produce lower turnout that they hope would lean disproportionately conservative.
● Oklahoma: Oklahoma's state Supreme Court has ruled 7-2 to reject the proposed ballot summary language for an initiative that would create an independent redistricting commission. The court, which has a 5-4 majority of justices appointed by Democratic governors, ruled that the summary language did not fully explain the proposal. However, the justices held that the proposal itself was constitutional and did not violate the First Amendment or the state's prohibition on initiatives addressing more than one topic.
Supporters of the initiative have filed new summary text in order to survive judicial scrutiny, and the measure may still qualify for the November ballot. However, future legal action is likely, and proponents would still have to gather enough signatures to qualify for the ballot even if the new language passes legal muster.
VOTER REGISTRATION AND VOTING ACCESS
● Delaware: Delaware's Democratic-majority state Senate has passed a constitutional amendment with a few Republicans voting in favor of removing the excuse requirement to cast an absentee ballot starting with the 2022 elections. The state House, which is also controlled by Democrats, almost unanimously approved the amendment last year only to see it fail to attain the two-thirds support needed to clear the Senate. However, senators were able to muster exactly the two-thirds supermajority they needed to pass it this year after a key Republican reversed his opposition.
Lawmakers would need to pass the amendment with two-thirds supermajorities again after the 2020 elections for it to take effect. The measure would not go before voters: Delaware is the only state in the country that doesn't require a voter referendum to amend its constitution.
● North Dakota: Republican Gov. Doug Burgum and Republican Secretary of State Al Jaeger have adopted rules that could make it easier for Native Americans to vote and ensure that their ballot gets counted. The new rules will give Native tribal officials the authority to work with local election boards to verify provisional ballots cast by tribe members.
North Dakota is the only state in the country that doesn't require voter registration, but voters must show documentation and ID to prove that they are eligible on Election Day. Voters who lack such documents can cast a provisional ballot that only counts if they return with proof of identity. North Dakota does maintain a poll book of those who've voted in past elections to more easily confirm if voters are eligible, and these new rules will also include IDs issued by tribal governments in the poll book database to help facilitate that process.
North Dakota had been at the center of a firestorm in 2018 over voting restrictions that targeted Native American voters when Republicans passed a voter ID law that excluded most tribal IDs because many residents living on reservations lacked a residential address. However, the backlash to that voter ID law prompted activists to raise hundreds of thousands of dollars to provide valid IDs to tribal members, and turnout on reservations in 2018 reached historic highs.
● South Dakota: A committee in South Dakota's Republican-dominated state House has passed a bill almost unanimously to enable online voter registration for voters with a state driver's license or ID card. Republican Secretary of State Steve Barnett is backing the bill, and it will now go to the full House for consideration.
● Utah: Utah's heavily Republican state House has unanimously voted to pass a bill enacting several election law changes, the most notable of which would formalize universal voting by mail and make Utah one of a growing number of Western states to switch entirely to mail voting as a default. The GOP-dominated state Senate has also advanced the bill in committee. Lawmakers are in fact playing catch-up here: They'd already given local election officials the power to switch to all-mail voting, and every county had already decided to adopt the system ahead of the 2020 elections.
The bill also standardizes the registration deadline for voters using various methods to register such as doing so in-person, online, or by mail, setting an 11-day deadline. Utah also allows voters to register in-person on Election Day at the same time they cast their ballot if they aren't already registered.
Meanwhile, a House committee has passed a bill with bipartisan support to repeal that state's straight-ticket voting option, which lets voters mark a single box to vote for all candidates down the ballot who are affiliated with a party. Proponents of the repeal bill, which is sponsored by a Democrat, have argued that the change would make voters more thoughtful about their choices.
Nevertheless, in an era of historic partisan polarization, repealing the option is unlikely to significantly increase split-ticket voting. Instead, academic research on straight-ticket repeal in North Carolina found that it increased voting lines because it takes longer to fill out the ballot. That in turn likely deterred some people from voting and had a disproportionate effect on black voters because they vote straight tickets more often.
Because Utah largely votes by mail, long voting lines are far less of a concern than in other states, though the absence of the straight-ticket option could increase the rate of undervoting in races further down the ballot.
● Virginia: Virginia Democrats and a few Republicans in the state House passed a bill to create a state-level equivalent of the Voting Rights Act this week. The legislation would impose a requirement that all localities in the state "preclear" any proposed changes to election rules or procedures with either the state attorney general (currently Democrat Mark Herring) or with the state Court of Appeals to ensure that they do not discriminate against any racial, ethnic, or language group.
Before it was gutted in an infamous 2013 Supreme Court ruling, the federal Voting Rights Act imposed preclearance requirements on a swath of states and localities with a history of discriminatory voting laws, including Virginia. And Virginia Democrats aren't the only ones considering a state-level preclearance regime: New York Democrats recently introduced a bill of their own, which could mark the start of a new trend.
Meanwhile, Democratic state senators have also passed a bill to loosen Virginia's GOP-backed voter ID law by removing the requirement that only photo IDs are acceptable. Instead, Democrats' bill would allow voters to verify their identity with a non-photo ID such as a utility bill or bank statement. Lawmakers passed the bill along party lines. With Democrats holding the state House and the governor's office, it appears likely to become law.
Lastly, Democrats have passed a separate bill largely along party lines in the state House to make Election Day a state holiday, replacing a holiday honoring Confederate generals who committed treason in defense of slavery. Senate Democrats have already passed similar legislation, and after another procedural vote, the proposal will go to Democratic Gov. Ralph Northam, who has promised to sign it. While the Election Day holiday is intended to increase voting access, we have previously explained how it could have unintended negative consequences.
● West Virginia: Republican Gov. Jim Justice has signed a new law that legislators unanimously passed to enable voters with certain disabilities to vote over the internet via smartphone app or their computer, an option that was already available for military and overseas voters. Lawmakers said they feared failing to enact such legislation would have left the state 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. Other states have adopted methods of voting accessible to people with disabilities that don't pose this same risk, such as certain voting machines that print a ballot and aren't connected to the internet or mobile polling places for mobility-impaired voters.
● Arizona: Republican state Attorney General Mark Brnovich has asked the 9th Circuit Court of Appeals to stay its recent ruling on absentee ballot collection and out-of-precinct voting while Republicans appeal to the Supreme Court. The 9th Circuit recently struck down a GOP-backed law that restricted who could turn in another person's absentee mail ballot and prevented votes from counting if a voter showed up at the wrong polling place but in the right county, with the court ruling that the law intentionally discriminated against Native American, Latino, and black voters.
● Maine: The Maine Republican Party announced on Tuesday that it will attempt a veto referendum of a law Democrats passed in 2019 to extend instant-runoff voting (aka ranked-choice voting) to presidential elections, starting with this year's general election. If Republicans succeed in gathering the roughly 63,000 signatures needed to qualify for the ballot, the law would be suspended until the vote on the measure takes place in November.
This means that if Republicans simply collect enough signatures, they could prevent the law from being used this year even if voters ultimately decide to keep it. Given that Hillary Clinton won Maine with only a plurality in 2016 and the swingy 2nd Congressional District is worth an Electoral College vote by itself, the absence of instant runoff voting could affect how the state awards its electoral votes this year in the event of a close race.
Republicans and a handful of Democratic legislators previously tried to repeal instant-runoff voting for congressional elections and state-level primaries, but voters rejected that effort by a 54-46 margin in a 2018 veto referendum of their own. If the GOP succeeds in placing this referendum on the ballot, it will be the third time in four years that voters will decide whether to implement instant-runoff voting.
● Ohio: Republican state Attorney General Dave Yost has rejected the proposed ballot summary language for a sweeping constitutional amendment that would significantly expand voting access in Ohio if it qualifies for the 2020 ballot. Yost ruled that the summary was too long and that its description of acceptable forms of voter ID wasn't included in the amendment. Supporters have said they will revise and resubmit the summary language. If it ultimately survives scrutiny, they would still have to gather 443,000 signatures to make the November ballot.
As we've previously detailed, the initiative would enact same-day voter registration; automatic registration through Ohio's driver's licensing agency; a guarantee of four weeks of early voting including the two weekends before Election Day; a ban on tightening Ohio's voter ID law to exclude non-photo IDs; and a requirement to conduct routine audits of election results.
● Nevada: A Republican state senator has filed a proposed ballot initiative that would end traditional primaries and switch Nevada's congressional and states races to a "top-two" primary system, where all candidates run on a single primary ballot and the top two finishers advance to the November general election regardless of party affiliation. Supporters are touting the measure as a way to open up Nevada's closed primaries, but rather than simply let voters choose which party primary to participate in, this reform would enact something entirely different.
The top-two primary has failed to work as intended in California and Washington and is notorious for producing outcomes that don't don't reflect the desires of the electorate. One chief reason why: A party can win a majority of votes cast in the primary yet get shut out of the general election simply because it fields a large number of candidates while the minority party only puts forth a few or even just two. Furthermore, primary electorates often feature very different demographic compositions than higher-turnout general elections, producing greater partisan and racial dissonance between the two rounds.
Proponents contend that top-two gives minority-party voters more sway to elect centrist candidates in same-party general elections in districts that heavily favor the majority party. But academic researchers have found little evidence for a moderating effect. Instead, this system creates perverse incentives where party organizations have to coordinate to advance particular candidates before primary voters even get a chance to weigh in, lest their party get shut out of a general election. That effectively shifts much of the nominating process to party insiders instead of empowering voters, which is the opposite of what top-two supporters intend.
Many of these problems could be avoided with an alternate reform such as instant-runoff voting (also known as ranked-choice voting), approval voting, or some other system that lets voters rank their preferences or vote for multiple candidates at once instead of in two separate elections. If supporters of this ballot initiative obtain the nearly 100,000 signatures needed to qualify for the ballot, legislators would first get a chance to consider it in 2021, but if they reject it as is expected, it would then appear on the 2022 ballot.
● Virginia: Democrats and a few Republicans have passed a bill that would allow counties and cities to adopt instant-runoff voting (aka ranked-choice voting) in local elections starting in 2021 if they choose to do so. The measure would let voters rank as many candidates as there are on the ballot in order of their preference. If no candidate wins a majority outright among first preferences, the last-place candidate would be eliminated and have their votes redistributed to their voters' second preference. This process would repeat until a candidate wins a majority among remaining ballots.
● Virginia: Democrats have passed a bill along party lines in a state House committee to add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, reversing a defeat for the bill in a vote the previous week. The bill now goes to the full Democratic-controlled House ahead of a key deadline next Tuesday, and it appears to have a plausible chance of eventually becoming law.