Voting Rights Roundup: Virginia nears final passage of several bills to expand voting access
● Virginia: In a busy session that will soon wrap up, Democrats in both chambers of Virginia's legislature have advanced a broad array of bills to make voting easier and reform the state's election procedures. These measures, which we've previously described in detail, would:
- Enable same-day voter registration;
- Establish an automatic voter registration system via the state's Department of Motor Vehicles;
- Remove the excuse requirement to vote absentee;
- Allow voters to permanently receive an absentee mail ballot in all future elections;
- Count ballots that are postmarked by Election Day and received within three days afterward, instead of just those received by Election Day;
- Make Election Day a state holiday by replacing a holiday that had honored Confederate generals;
- Extend the close of polling on Election Day from 7 PM to 8 PM;
- Allow certain out-of-state college IDs to count for voter ID;
- Let cities and counties adopt instant-runoff voting in local elections; and
- Require hand-filled paper ballots or machines that print paper ballots.
Other bills have seen different versions pass in both chambers, which must be reconciled. Those measures include bills to prepay the postage on absentee ballots and replace the GOP's photo voter ID requirement by allowing non-photo IDs to count.
Democrats also passed a bill in a state Senate committee to create a state-level replacement for a key provision of the Voting Rights Act that the Supreme Court struck down in 2013. 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 minority. The state House has already approved the bill.
Virginia's legislative session is scheduled to end on March 7, so time is quickly running short to pass these remaining bills.
● Colorado: Democrats in both chambers of the legislature have passed a bill largely 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). Supporters expect Democratic Gov. Jared Polis to sign it into law. Roughly 19,000 people would be reassigned from locations with prisons to their prior communities, which could shift representation at the legislative and local levels from whiter communities with prisons to urban communities of color.
● Pennsylvania: The NAACP has filed a lawsuit in state court to end prison gerrymandering in Pennsylvania and require the state to count incarcerated people for redistricting purposes at their last address, arguing that the practice dilutes the power of certain groups of voters in violation of the state constitution's guarantee that "[e]lections shall be free and equal." If the plaintiffs prevail, ending prison gerrymandering would likely shift representation at the legislative and local levels from whiter rural communities to urban communities of color such as Philadelphia.
The constitutional provision plaintiffs are relying on is the same one that the state Supreme Court used to strike down Republicans' congressional gerrymander in 2018. The NAACP is also simultaneously waging a lawsuit in federal court over prison gerrymandering in Connecticut.
● North Carolina: The good-government group Common Cause has asked the North Carolina Supreme Court to review a recent state Court of Appeals ruling that rejected the organization's challenge to a series of power grabs Republicans pushed through during the lame-duck session of the legislature following the 2016 elections. Last month, the appellate court rebuffed the plaintiffs' argument that the GOP's legislative blitzkrieg was executed so quickly that it violated the state constitution's guarantee of the people's right to instruct their legislature.
As we've previously explained, the case has its origins in the 2016 elections, when Democratic Roy Cooper ousted Republican Gov. Pat McCrory and broke the GOP's grip on state government. In response, Republicans passed a law that removed the governor’s power to appoint a majority on the state Board of Elections and its county-level counterparts. McCrory’s administration had used its control over the boards to cut early voting and remove polling places from college campuses and heavily black communities. Removing Cooper’s power to appoint new majorities blocked Democrats from reversing those cuts.
Republicans also passed another law subjecting Cooper's cabinet appointees to confirmation by the GOP-dominated state Senate, a burden they had not placed on McCrory. Furthermore, they slashed the number of executive branch appointees from 1,500 to just 425, a reversal from the increase in such positions Republicans had pushed through after McCrory replaced his Democratic predecessor in 2012.
This madcap legislative session also saw the GOP transfer powers from the state Board of Education, whose members are chosen by the governor, to the state's superintendent of public instruction, a Republican elected official. In addition, they eliminated the governor’s ability to appoint members to the University of North Carolina’s board of trustees, instead granting that power to the legislature itself.
The Board of Elections power grab was eventually struck down, passed by the GOP once more and then struck down yet again multiple times, but Cooper finally was able to appoint a Democratic majority after the 2018 elections. However, most of the GOP's other power grabs are still in effect, as is another provision of the lame-duck legislation that made elections for the state Supreme Court and Court of Appeals elections partisan again after a period during which they were nonpartisan (a move that backfired on Republicans in 2018).
If the Supreme Court hears the case and the plaintiffs prevail, all of these other changes would also be struck down. The high court has a 6-1 Democratic majority, though that does not offer a guarantee of a different outcome, particularly seeing as the appeals court panel that heard the case was bipartisan.
● Virginia: Democrats failed to pass a bill out of state Senate committee that would add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, dealing a setback to the effort to elect the president by popular vote. However, the bill is still alive and could be passed by the Senate after November's elections. State House Democrats already passed the bill, so future success in the Senate would send it to Democratic Gov. Ralph Northam, who has said he supports the bill.
VOTER REGISTRATION AND VOTING ACCESS
● Washington, D.C.: The heavily Democratic City Council in Washington, D.C. has passed two bills in committee to make it easier to vote, sending them to the full body for a vote. One of the bills would require both that employers give workers two hours of paid leave to vote and that schools give eligible students two hours of excused absence to vote. The other bill would require that new renters or homebuyers be given a voter registration form when they move, along with information on how and where to vote at their new address.
Every council member is sponsoring the paid leave for voting bill, and six of the 13 members are sponsoring the requirement that new tenants be given registration forms.
● Georgia: A state court judge has rejected an emergency request to require Georgia to switch to regular paper ballots instead of using its new voting machines. Election security advocates with the Coalition for Good Governance filed a lawsuit on Monday arguing that the large screens on the new machines violate voters' privacy because they make their choices visible to potentially prying eyes, but the judge disagreed. The plaintiffs haven't said whether they will appeal but said that the "issue is far from over."
This same group has also been waging a federal lawsuit seeking to stop Georgia from implementing these new voting machines, which print a paper ballot that relies on a barcode that the plaintiffs say prevents voters from being able to verify that their choices have been accurately recorded. A federal district court previously blocked Georgia from continuing to use its old paperless voting machines, but the case remains ongoing in the plaintiffs' effort to stop the new barcode voting machines from being used.
● Arizona: The 9th Circuit Court of Appeals has upheld a lower court ruling that rejected plaintiffs' bid to require a special election for appointed Republican Sen. Martha McSally's seat before November 2020, when an election is currently set to be held to fill the last two years of the late John McCain's original six-year term. The challengers had argued that special elections should be required for Senate vacancies under the 17th Amendment, but the court disagreed. The plaintiffs have not yet said whether they will continue to appeal.
● Missouri: State House Republicans have given preliminary approval to a bill that would revive the GOP's photo voter ID requirement after the state Supreme Court recently struck it down and allowed the use of non-photo IDs.
This latest proposal would enact what would possibly be the strictest voter ID requirement in the country by mandating that voters present an unexpired Missouri driver's license, non-driver ID card, or a federal government-issued photo ID such as a military ID. If they don't have one, they can vote a provisional ballot that would only be counted if the voter returns with a valid photo ID the very same day at the same polling place.
Another vote in the state House is needed before the bill goes before the state Senate, but with Republicans holding large majorities in both chambers and the governor's office, this bill appears likely to become law. If that happens, another round of litigation is all but assured.
● Wisconsin: In a decision issued this week, the Wisconsin Court of Appeals has overturned a lower court ruling that had ordered the state's bipartisan Elections Commission to purge more than 200,000 voter registrations and found the Democratic commissioners in contempt for refusing to carry out the purge while their appeal was pending. However, this success could be short-lived.
At issue in this litigation is a GOP-backed law that requires voters to be removed from the rolls if anyone suspected of moving fails to respond within 30 days to a single mailing. Opponents have argued that the mailing was inadequate and that new notices should be sent to instruct those voters how to stay registered.
Last month, the appeals court temporarily blocked the lower court's decision. However, the conservative group bringing the case is appealing to the state Supreme Court, whose conservative majority will likely be sympathetic to their case.
Meanwhile, the Milwaukee Journal-Sentinel has conducted an analysis of the voters who would be affected and found that most of them actually have voted in recent elections. The report found that 72% of them had cast ballots in the 2016 presidential election, 89% in at least one election since 2006, and 31% in all three presidential races since 2008.
● Kentucky: A supermajority in Kentucky's Republican-dominated state Senate has passed a bill to change a state law that imposes a lifetime ban on voting for anyone with a felony conviction. The GOP's proposed constitutional amendment would give the legislature the authority to set by statute how people who've served their felony convictions could regain their voting rights. That would allow lawmakers to, among other things, impose a waiting period before an affected citizen could regain their rights, which some Republicans would like to set at five years.
The GOP's amendment would also maintain a permanent ban for those convicted of a large number of different crimes, including any violent offense. People convicted of such crimes would have to obtain an individual pardon from the governor to regain their rights, which is currently the case for everyone with a felony conviction.
Roughly half of Democrats opposed the bill, with those voting against it saying it doesn't go far enough. Opponents also warned that it could undermine Democratic Gov. Andy Beshear's recent executive order that automatically restored voting rights to 140,000 people who had served their sentences for non-violent felonies. However, Republican state Senate President Robert Stivers claimed the amendment would not interfere with Beshear's order.
If the state House also approves the bill with a three-fifths supermajority support, it would go before voters as a referendum this fall. Beshear has no ability to veto the measure.