Voting Rights Roundup: Delay in 2020 census data release could heavily disrupt redistricting process

Voting Rights Roundup: Delay in 2020 census data release could heavily disrupt redistricting process
Closeup of United States Census 2020 form informational copy and a ballpoint pen on map. Shutterstock/ Tada Images

LEADING OFF

 2020 Census: The Trump administration is asking Congress to extend the deadline for the Census Bureau to release population data from the 2020 census that all 50 states will use for redistricting, requesting that the current March 31 deadline be delayed until July 31 of next year. If Congress approves the delay, it could wreak havoc with redistricting and election timelines in many states.


The ongoing pandemic has already prompted the bureau to delay its field operations, and only around half of households expected to respond to the census online, by phone, or by mail have done so to date. The bureau ordinarily would send agents to the homes of those who haven't responded, but unclear when the census will be able to conclude given that since social distancing measures are likely to remain in place for months to come. It's therefore plausible that redistricting data simply won't be ready by March, and perhaps even later.

Delays in finalizing maps could therefore require pushing back candidate filing deadlines, party primaries, or even general elections. That's of particular concern in New Jersey, which will conduct state elections in 2021: The New Jersey Globe's David Wildstein reports that even a four-month delay in the release of population data could require the state to delay its primary, or even result in elections held under the current lines, which were drawn in 2011. Virginia, which is also set to hold elections next year, could face a similar situation.

That's by no means the only lurking problem. Many state constitutions or statutes set deadlines by which they must approve new maps each decade. If no maps are passed by those deadlines, redistricting could fall to the courts, or to various backup commissions whose partisan makeup can differ from that of their state's legislatures.

Illinois is one such state. There, Democrats are set to control redistricting, but if lawmakers don't pass a map by June 30, 2021, legislative redistricting would get handed off to a bipartisan commission that has deadlocked nearly every time it's come into use over the last five decades (congressional redistricting would wind up in court). Such deadlocks have resulted in a random tiebreak, with each party's preferred maps having a 50-50 chance at getting selected. Republicans would therefore have an even shot at implementing a pro-GOP gerrymander even though voters have, by wide margins, elected Democrats to run state government.

One silver lining to this proposed delay in releasing data is that it would give Democrats a better chance to block the Trump administration from producing citizenship data that could be used in redistricting. Explosive documents uncovered in 2019 confirmed that the GOP's desire to use such data was part of a plot to turbocharge their gerrymanders by reducing the representation of Democrats and Latinos.

Normally, the first batch of census data—which isn't sufficiently granular for redistricting purposes but could include information on citizenship drawn from non-census sources—would be sent to the White on Dec. 31, but under Trump's proposal, that deadline would get pushed to April 30.

If Joe Biden beats Donald Trump in November, he could therefore block the release of any citizenship data. That would prevent Republicans in states such as Texas from drawing districts based solely on the much whiter adult citizen population instead of the traditional total population, which has a larger proportion of Latinos. However, litigation over the release of such citizenship data is likely regardless.

REDISTRICTING

 Virginia: Democrats have passed a law that enacts nonpartisan standards for redistricting to complement the bipartisan redistricting commission that lawmakers put on the November ballot as a constitutional amendment, the workings of which we've previously detailed. The law requires the commission members to draw lines that reflect Virginia's demographic and geographic diversity; bans maps that intentionally and unfairly favor a party or candidate; increases transparency; and ends prison gerrymandering by counting incarcerated people for redistricting purposes at their last address instead of where they are imprisoned (and can't even vote).

VOTER REGISTRATION AND VOTING ACCESS

 Citizenship: While the coronavirus pandemic's disruption of how voters can cast ballots has been widely publicized, one under-appreciated but important consequence for voting access is that it has made it impossible for thousands of people to become naturalized citizens. That's because the U.S. Citizenship and Immigration Services agency has suspended in-person oath ceremonies and interviews, and the agency hasn't established a way for would-be citizens to complete the process remotely.

As a result, the inability to swear-in newly naturalized citizens could end up preventing 441,000 people from being able to vote in November, according to an estimate by Boundless Immigration, which NBC News describes as "a technology company that helps immigrants apply for green cards and citizenship." A large proportion of those affected are Latinos and Asian Americans, compared to the native-born population.

While it's possible that a lawsuit could be filed to allow remote citizenship ceremonies, it's unclear if litigation would be resolved in time to ensure that the people affected could become citizens before state voter registration deadlines pass. Federal law lets states enact registration deadlines of up to 30 days before a federal election, which is Oct. 4 for the November general election.

 Felony Disenfranchisement: A new analysis by the Marshall Project reports that many of the 470,000 Americans in local jails across the country who are awaiting trial—and, importantly, haven't been convicted of a felony that would deprive them of their voting rights—are at significant risk of being unable to vote this year. That's because restrictions imposed by the coronavirus pandemic have effectively made it impossible to distribute voter registration forms and other materials needed to vote by mail. Some states such as Illinois have taken steps in recent years to protect voting rights of pretrial inmates, but most states and localities have not.

 Michigan: Democrats have agreed to dismiss their lawsuit over Michigan's signature-matching process for absentee mail ballots after Democratic Secretary of State Jocelyn Benson agreed to issue new guidance for election officials to address Democrats' complaints. The new directive instructs county clerks to "immediately" inform voters if their signature is either missing or is deemed not to match the one on file. Officials must contact voters by phone, email, and mail to give them a chance to correct it. Additionally, election workers will receive training in how to match signatures.

BALLOT MEASURES

 Florida: In previous editions of the Voting Rights Roundup, we incorrectly described legislation that Florida Republicans proposed as a constitutional amendment, which would have required three-fifths supermajorities to pass. As a result, we also incorrectly stated that the measure had failed when lawmakers adjourned in March. However, the measure was in fact statutory in nature, meaning it only needed simple majorities to pass, which it achieved. It became law when Republican Gov. Ron DeSantis signed it on April 9.

The new law makes it harder to put constitutional amendments on the ballot in a number of ways. It makes it more difficult to survive a required judicial review by Florida's conservative Supreme Court, shortens the time window to gather signatures, and imposes additional restrictions on paid signature-gatherers. Republicans passed these restrictions after voters used ballot initiatives last decade in an effort to ban gerrymandering and restore voting rights for those who've served felony sentences.

ELECTION SECURITY

 Election Security: A new report issued by the Republican-led U.S. Senate Intelligence Committee has confirmed what has been widely reported since the 2016 elections: The Russian government interfered with the election to aid Donald Trump's presidential campaign. Russia's interference and attempts at hacking into election systems (which, fortunately, showed no signs of successfully changing election results) were widely publicized following the election. However, this bipartisan report is yet another rebuke to Trump's evidenceless claims that it was a hoax intended to undermine him.

VOTER SUPPRESSION

 Minnesota: A state judge has struck down a Minnesota law that made it a crime for candidates to help voters in need of assistance, such as translation services to cast their ballots. The court ruled that the law violated both the state constitution and federal law guaranteeing that voters can request help so long as it's from someone other than their employer or union representative. The now-invalidated law had limited an individual to helping no more than three voters, and candidates for office were completely barred from helping voters cast their ballots

When plaintiff Dai Thao, a St. Paul City Council member who was running for mayor in 2017, assisted an elderly voter who was a fellow member of the Hmong community and did not speak English, he was charged by local prosecutors for violating the law. Thao was acquitted in 2018 and filed a lawsuit challenging the law earlier this year.

ELECTION CHANGES

The following states have recently postponed their primaries:

Connecticut: from June 2 to Aug. 11 (presidential)

You can stay on top of all changes to statewide primary dates by bookmarking our 2020 calendar.

 Arizona: A federal district court has denied a request for a preliminary injunction allowing ballot initiative campaigns to gather the signatures needed to get onto the November ballot electronically, citing a provision in the state constitution that requires voters to sign initiative petitions in-person. However, plaintiffs have said they will appeal to the 9th Circuit Court of Appeals.

If the plaintiffs fail, it may doom an effort to put a measure on the ballot that would enact automatic and same-day voter registration, along with other election reforms. A separate lawsuit is pending before the state Supreme Court to allow electronic signature-gathering, but the court's conservative majority may be hostile to ballot initiatives given that such measures have been frequently used in the past decade to pass progressive policies and pro-democracy reforms.

 Arkansas: Supporters of an effort to put an initiative on the November ballot to create an independent redistricting commission have filed a lawsuit in federal court seeking to make it easier for them to gather voter signatures to get on the ballot. The lawsuit is asking the court to extend the July 3 deadline to submit signatures until Aug. 3, and to allow petitions to be signed electronically. Initiative backers had previously announced they were temporarily suspending in-person signature-gathering efforts, so if this lawsuit doesn't succeed, the measure may not make it onto the ballot.

 Florida: Voting rights organizations have filed a lawsuit in federal court over Florida’s election procedures.

The plaintiffs are suing to require the state to extend the deadline to register to vote, return absentee mail ballots, and fix any issues with ballot envelope signatures not matching. This lawsuit also seeks to expand voter outreach efforts to unregistered voters; make it easier to register online; expand early voting; allow drop boxes for returning mail ballots; and establish alternative in-person voting methods such as curbside voting.

Meanwhile, election supervisors in populous Broward, Miami-Dade, and Palm Beach Counties in southeast Florida have confirmed that they are planning to mail absentee ballot applications with prepaid return postage to all registered voters for the August primary and November general election, but they are asking county authorities to provide the funding for them to do so. Collectively, these three counties are home to one in four Florida voters.

 Georgia: Voting rights advocates have filed a lawsuit asking a federal judge to delay Georgia's June 9 primary at least until June 30, saying it would not be safe to conduct it any earlier. Plaintiffs are also asking for the implementation of a number of other safety measures, such as curbside voting, as well as the elimination of touchscreen voting machines, which they say pose a health hazard.

 Idaho: While Idaho officially says that its upcoming all-mail primary is taking place on May 19, Republican Gov. Brad Little has issued an order specifying that absentee ballots will be counted so long as they are received by June 2, with no deadline for postmarking them. To reflect this, we have updated our calendar to recognize June 2 as the date of the primary.

 Indiana: Indiana's Elections Commissions has announced that voters will soon be able to request their absentee mail ballots for the June 2 primary online, an option that previously wasn't available.

 Kentucky: Democratic Gov. Andy Beshear has issued an executive order after receiving recommendations from Republican Secretary of State Michael Adams that will expand mail voting for Kentucky's June 23 primary. As outlined by election law expert Josh Douglas, the order implements a wide variety of reforms, chief among them:

  • All voters may now vote absentee by mail (Kentucky ordinarily requires an excuse).
  • All voters will be sent a postcard explaining how to request an absentee ballot, including via a new online portal.
  • Ballot requests and ballots will not need to be notarized.
  • Voters who need to cast ballots in person will be able to do so during a two-week early voting period during which they can schedule an appointment to vote (in-person early voting normally isn't offered) and at limited sites on Election Day.
  • Ballots will count as long as they are postmarked by Election Day and received three days later.

Douglas notes that final regulations have not yet been promulgated, and in particular, he says he has urged officials to extend the absentee ballot receipt deadline.

 Louisiana: Both chambers of Louisiana's heavily Republican legislature have passed a bill in committee to expand early and mail voting for the state’s July 11 elections, which include the presidential primaries and several municipal contests, and for any local runoffs that take place on Aug. 15. The legislation came after Republican Secretary of State Kyle Ardoin submitted a new emergency plan with more limited loosening of the excuse requirement for mail voting, which Ardoin did after GOP lawmakers rejected his first proposal. The AP writes that both chambers are expected to pass the bill, and Democratic Gov. John Bel Edwards has already said he supports it despite having previously backed Ardoin's broader first proposal.

Instead of effectively waiving the excuse requirement by letting anyone vote absentee due to concerns over coronavirus, the GOP's legislation loosens the requirement only for people in certain medical situations. The bill would also let Ardoin extend early voting from seven days to 13 days and relocate polling places if needed.

 Maine: Democratic Secretary of State Matt Dunlap has reversed his stance in favor of conducting Maine's July 14 primary by mail, saying now that he "would not recommend sending every voter a ballot, because people move a lot." Earlier this month, however, Dunlap told reporters that an all-mail election would be the easiest option.

 Massachusetts: Democratic Secretary of State Bill Galvin announced he is drafting legislation to enable no-excuse mail voting for the September state primary and to expand mail voting for the November general election with the aim of releasing the proposal in May. The heavily Democratic state legislature would need to pass Galvin’s plan for it to take effect. Galvin, though, said he opposed automatically mailing ballots to all registered voters despite some Democrats calling on the state to do so.

 Minnesota: On Tuesday, Democratic state senators proposed automatically sending all registered voters a ballot for this year's elections, but the chamber’s GOP majority quickly came out in opposition to the plan. Instead, Republican state Sen. Mary Kiffmeyer, who chairs the upper house’s Elections Committee, would only support expanding the state's existing no-excuse absentee mail voting option.

 Missouri: The ACLU has sued the state of Missouri on behalf of the NAACP and the League of Women Voters asking a state judge to permit all voters to request absentee ballots due to the coronavirus pandemic. State officials have given wildly varying instructions to voters on whether they may vote absentee: Republican Gov. Mike Parson has said he believes it's not permissible and some local jurisdictions agree, but others say voters are allowed to ask for absentee ballots on account of COVID-19, and still others are actively encouraging citizens to vote by mail. Republican Secretary of State Jay Ashcroft has refused to provide any guidance.

 Nevada: True the Vote, a conservative organization that pushes voting restrictions in the name of supposed voter fraud and has been accused of trying to intimidate black and Latino voters into not voting, has filed a federal lawsuit opposing Republican Secretary of State Barbara Cegavske's plan to hold the June primary under universal mail voting. The lawsuit claims without sufficient evidence that it would "all but ensure an election replete with ballot fraud" even though five states already mail every registered voter a ballot by default and have seen only vanishingly rare cases of voter fraud.

 New York: Democratic Gov. Andrew Cuomo said he would issue an executive order directing that all voters receive an absentee ballot application for New York's June 23 primaries. Local news station NY1 had previously reported that Cuomo would order ballots, rather than applications, sent to voters, but a Cuomo aide declined to confirm that report.

 North Dakota: All 53 North Dakota counties say they will conduct the state's June 9 primaries entirely by mail, following an executive order from Republican Gov. Doug Burgum allowing them to do so. Under Burgum's order, voters will be sent absentee ballot applications. However, the counties say that no in-person voting locations of any kind will be open on Election Day, which could run afoul of federal laws requiring that voting be accessible to persons with disabilities.

An all-mail election also poses particular difficulties for Native voters on reservations, where mail service can be limited. The counties say in a statement that "[r]eservation counties have worked with tribal governments in their county to secure agreements to support Vote by Mail" but provide no further details.

 Ohio: Just as voting advocates had warned, Republican Secretary of State Frank LaRose has announced that numerous voters are at risk of not receiving absentee ballots in time to return them for Ohio's April 28 primaries (ballots must be postmarked by April 27 and arrive within 10 days). LaRose said his office has heard "wide reports" of first-class mail taking a week or more instead of the typical one to three days. He added that voters who don't receive a requested mail ballot may vote in-person, which is otherwise reserved for people with disabilities or without housing.

 Oklahoma: The League of Women Voters has filed a lawsuit with the Oklahoma Supreme Court seeking to waive the notarization requirement for absentee mail ballots. Although no excuse is required to vote absentee in Oklahoma, the plaintiffs argue that the notarization requirement is unduly burdensome due to social distancing efforts.

 Pennsylvania: Democrats have filed a lawsuit in state court seeking to require that Pennsylvania prepay the postage for all mail-in ballots, count ballots if they are postmarked by Election Day instead of only if they're received by Election Day, give voters a chance to correct problems with their ballot signature, and let third-party groups collect and return mail ballots.

Meanwhile, officials in Allegheny County say they will send absentee ballot applications to all voters ahead of Pennsylvania's June 2 primaries. With 1.2 million residents, Allegheny is the second-largest county in the state and is also home to Pittsburgh. The county had previously asked Democratic Gov. Tom Wolf for permission to conduct the primaries by mail but had not received a response from the governor; however, Wolf is encouraging all registered voters to apply for mail-in ballots for the June primary and has sent out postcards with relevant information.

 South Carolina: On Wednesday, Democrats filed a lawsuit with South Carolina's Supreme Court to allow anyone to vote absentee by mail this year due to concerns over coronavirus. Civil rights groups shortly thereafter filed a separate lawsuit in federal court seeking to both relax the excuse requirement and eliminate the need for voters to have a witness sign their mail ballot envelope. South Carolina currently requires an excuse to vote absentee for all voters under age 65 and doesn't offer in-person early voting.

 Texas: As expected Republicans have said they plan to appeal a recent state court ruling letting anyone vote absentee by mail. Meanwhile, the state Democratic Party has announced a new website as a partial workaround to the state's lack of online voter registration. The site lets voters fill in their information and then mails them a prefilled application form to sign and return by mail with prepaid postage.

 Utah: Republican Gov. Gary Herbert has signed a law to conduct Utah's June 30 primaries entirely by mail and cancel in-person voting. The legislation does however require that counties "provide a method of accessible voting" to those voters with disabilities who are unable to vote by mail.

 Virginia: While the Virginia state House passed Democratic Gov. Ralph Northam's proposal to consolidate the state's May 5 local elections with the November general election, the state Senate declined to take up the measure, rendering the plan dead. A Northam spokesperson said the governor would "carefully review next steps" but did not indicate what those might be.

 West Virginia: Democratic members in both chambers of the heavily GOP legislature have urged Republican Gov. Jim Justice to make the June primary take place near-entirely via mail by sending every registered voter a ballot automatically and limiting in-person voting. West Virginia already implemented a plan to mail absentee ballot applications to all voters, but voters still have to return the application and have it processed by election workers before getting mailed a ballot, which universal mail voting would render unnecessary.

 Wisconsin: The Milwaukee Common Council (the equivalent of the city council) has unanimously voted to create a program to send absentee mail ballot applications out by mail to all 300,000 of the heavily Democratic city's registered voters. Both Democratic Mayor Tom Barrett and Gov. Tony Evers support it, and if other Democratic-leaning local jurisdictions follow suit, Republicans may feel pressured to expand absentee voting statewide to avoid putting GOP-leaning areas at a disadvantage.

Meanwhile, Wisconsin's bipartisan Elections Commission says it is working on a way to let voters track the status of their absentee mail ballots as they move through the mail system, which some other states already enable by requiring special barcodes on the ballot envelope. Such a tracking system may also make it easier to determine when ballots were mailed in the event that the U.S. Postal Service doesn't include a postmark, something that disenfranchised at least some voters in April's election.

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