Voting Rights Roundup: VA Dems expand voting access and reform redistricting in historic session
● Virginia: Over the weekend, Democratic Gov. Ralph Northam signed several election bills into law, the culmination of a historic legislative session that saw Democrats exercise full control over state government for the first time in a quarter century. Among those new laws is one establishing automatic voter registration through the state Department of Motor Vehicles, meaning all eligible DMV customers will be automatically registered unless they opt out. Just as importantly, another law enables voters to register to vote on the same day they cast a ballot, including Election Day itself.
In total, Northam signed laws including ones that:
- Adopt automatic voter registration via the DMV
- Enact same-day voter registration
- Make Election Day a state holiday by replacing a holiday that had honored Confederate generals
- Remove the excuse requirement to vote absentee
- Allow voters to permanently receive an absentee mail ballot in all future elections
- Count mail ballots that are postmarked by Election Day and received within three days afterward, instead of just those received by Election Day
- Extend the close of polling on Election Day from 7 PM to 8 PM
- Repeal the GOP's photo voter ID requirement and allow non-photo IDs instead
- Allow certain out-of-state college IDs to count as voter ID
- Let cities and counties adopt instant-runoff voting in local elections
- Require hand-filled paper ballots or machines that print paper ballots
The enactment of these reforms follows the Democratic legislature's passage of redistricting reform, which will appear on November's ballot as a constitutional amendment. Northam also sent some bills back to the legislature, including one that would end prison gerrymandering by counting incarcerated people for redistricting purposes at their last address instead of where they are imprisoned (and can't even vote). Northam asked lawmakers to give deadlines for prisons to provide the state with the needed information, and legislators will reconvene on April 22 to take up returned bills.
However, another bill we had previously reported as passing the legislature won't actually go into effect despite Northam also signing it last weekend. That new law, which calls for prepaying the postage cost on mail ballots, will only take effect if passed again in 2021 after a few Democratic opponents of the proposal used a procedural tactic to effectively block it.
Before Democrats won full control of the state government in 2019, Virginia ranked among the worst states for voting access and had heavily gerrymandered congressional and legislative districts that had been the subject of multiple lawsuits this past decade. Once Democrats have enacted all of these reforms, Virginia will be one of the better states for having relatively fair electoral districts and making it easy to vote.
STATE SUPREME COURT ELECTIONS
● Wisconsin: On Monday, progressives scored a critical victory for Wisconsin's Supreme Court after election results were released showing that Dane County Circuit Judge Jill Karofsky had defeated conservative Justice Dan Kelly by a wide 55-45 margin in an election whose legitimacy had been undermined by new depths of Republican voter suppression efforts. Karofsky's victory will narrow conservatives' majority to 4-3 once she is sworn in this August and set up progressives to potentially take control of the court when the next conservative incumbent faces the voters in 2023.
The election went ahead amidst the coronavirus pandemic despite a last-minute order from the state’s governor, Democrat Tony Evers, seeking to postpone it. Evers’ order, however, was quashed by the conservatives on the state Supreme Court, forcing Wisconsinites to choose between exercising their right to vote and protecting their health. An extreme shortage of poll workers led to excessively long lines in the few precincts that were able to open. And adding to the absurdity, all four conservative justices who ordered in-person voting to proceed had themselves voted absentee.
In a separate case, conservatives on the U.S. Supreme Court overturned a federal judge’s ruling that extended the deadline to return absentee ballots, instead mandating that they be postmarked by Election Day, April 7. That decision disenfranchised an untold number of voters, including some who only received ballots after the deadline and others whose ballots, for a variety of reasons, failed to acquire a postmark. Some voters reported never receiving a ballot altogether.
Milwaukee voters quickly filed a federal lawsuit following the election seeking a full re-vote in light of how many voters were prevented from voting. However, the plaintiffs acknowledged such an outcome was unlikely and are also asking for at least a partial re-vote for voters who were unable to vote absentee because of the courts' refusal to postpone the election or extend the absentee ballot return deadline.
The composition of Wisconsin's Supreme Court matters greatly for the fate of litigation over voting restrictions and Republican gerrymandering, with the conservative majority enabling Republicans to undermine fair elections throughout the past decade. However, a future progressive majority could strike down such provisions under the state constitution.
With those stakes in mind, Republicans believed that refusing to expand absentee voting and requiring voters to cast in-person ballots at a limited number of polling places would advantage them in the election, but that scheme failed to work. Despite that failure, there's little indication that they are reconsidering their opposition to expanding mail voting even though there's no evidence that it systematically would disadvantage them, and this strategy is quickly becoming the national GOP's playbook for November thanks to Donald Trump.
Indeed, Wisconsin Republicans took additional steps to restrict voting following the election when Kelly indicated that he would reverse his recusal in a state-level lawsuit where the conservative plaintiffs are trying to require the state to purge more than 200,000 voter registrations. Kelly had previously refused to participate in that case because he was on the ballot, and the state Supreme Court had consequently rejected the conservative plaintiffs' request for an expedited review after one of the four other conservative justices sided with the court's two liberals.
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, and the bipartisan Wisconsin Election Commission had wanted to wait until after November's elections to initiate the purge.
With Kelly rejoining the case, conservatives could overturn the state Court of Appeals ruling that had blocked the purge and thus remove more than 200,000 voters from the registration rolls if the case is resolved before Kelly leaves the bench. While Wisconsin allows same-day voter registration on Election Day, that option is much less viable when voters are having to avoid in-person voting in the name of public health. Consequently, voters who are removed from the rolls without realizing it may have significant difficulty trying to vote absentee by mail in November.
● Connecticut: In an unexpected development, the parties to a federal lawsuit over prison gerrymandering in Connecticut have filed a joint motion to dismiss the case. The NAACP had sued Connecticut in 2018, arguing that its practice of counting incarcerated people where they are imprisoned (and can't even vote) instead of at their last address violated the U.S. Constitution. The 2nd Circuit Court of Appeals last year had allowed the case to proceed in district court, and it's unclear why the plaintiffs are now dropping their case.
● Georgia: The Democratic plaintiffs challenging the legality of Georgia's Republican-gerrymandered 12th Congressional District under the Voting Rights Act have agreed to dismiss their federal lawsuit, claiming that they were dropping the lawsuit because it wouldn't be resolved before the next round of redistricting is set to take place next year following the 2020 census.
After the 2010 census, Republicans had gerrymandered the 12th District to oust Democratic Rep. John Barrow, turning it from a Democratic-leaning seat into one that leaned decisively red and in the process reduced its Black population to add more white Republicans. The plaintiffs had argued that this was a violation of the VRA, since the district could have been drawn with a larger Black population to ensure Black voters could elect their preferred candidates, which in this case would likely be a Democrat.
● Michigan: On Wednesday, a panel of three judges on the 6th Circuit Court of Appeals unanimously upheld a lower court ruling that had rejected Republicans' request for a preliminary injunction blocking Michigan from implementing the independent citizens' redistricting commission that voters passed via ballot initiative in 2018. The Republican plaintiffs are considering whether to appeal Wednesday's ruling to the entire 6th Circuit or the Supreme Court itself, but in the meantime, the commission will remain in place while the litigation proceeds on the underlying merits.
Republicans had been challenging the new commission in two lawsuits that were consolidated into a single set of proceedings. One lawsuit argued that the new commission violated Republicans' First Amendment rights to free speech and association and their 14th Amendment right to equal protection because it imposes prohibitions on who may serve as a commissioner. Specifically, the new commission disqualifies anyone who, in the past six years, has held or run for elected office, or has served as a lobbyist, and anyone who is a parent, spouse, or child of such a person.
Republicans argued in the other lawsuit 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 claimed 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.
The court rejected both arguments by citing Supreme Court precedent enabling prohibitions on certain individuals serving on the commission. Indeed, the Supreme Court has also upheld the ability of voters to use initiatives to sidestep legislators and create independent commissions in the first place in a 2015 ruling. However, that ruling saw former Justice Anthony Kennedy side with the court's four progressives, and it's possible that the court could overturn that ruling or this latest appellate ruling and strike down commissions like Michigan's if newly appointed Justices Neil Gorsuch and Brett Kavanaugh side with the court's other three conservatives who were on the bench in 2015.
● Nebraska: Last month, the ACLU, Common Cause, and other good-government groups filed a ballot initiative to amend Nebraska's constitution and create a bipartisan commission for congressional and legislative redistricting, which is currently under the control of the Republican governor and state legislature. Republican lawmakers lack the two-thirds majority needed to pass a gerrymander over a potential Democratic filibuster, but the GOP could abolish the filibuster by simple majority and pass their own gerrymanders if this initiative does not ultimately become law.
The proposed amendment would direct the legislature to set up a selection committee of nine lawmakers, no more than five of whom could belong to the same party; the votes of six committee members would be required to take any action. Those legislators would pick nine commissioners who would consist of three Democrats, three Republicans, and three unaffiliated members. Within five years prior to applying, prospective commissioners can't have held or run for elected office or been a party official, lobbyist, party consultant, or an immediate family member of such a person.
The lawmakers on the selection committee would randomly select two commissioners from among the applicants for each party grouping and directly chose the third from each pool. The chosen commissioners could only take action with the support of a majority of each of the three party groupings.
The amendment would establish criteria for drawing districts in order of priority: (1) compliance with federal law; (2) contiguity; (3) equal population; (4) protection of racial and language minority groups; and (5) minimizing the division of local government and neighborhood boundaries. Once those criteria are met, the amendment bars districts from intentionally or unduly favoring or disfavoring any incumbent or party. However, partisan data would be barred from use except to comply with the above provisions, and its use would apparently not be permitted to promote competitiveness.
Once the commissioners devise and agree on maps, they would submit them to the legislature for approval, and the legislature could either reject or approve them but would not be able to amend them. Any registered voter would have the ability to file legal action in state court to compel the state to comply with the amendment's provisions.
While this amendment would likely prevent Republicans from passing extreme gerrymanders (as they potentially could), it's unclear how ironclad one particular provision is. Because the legislature's selection committee doesn't have a mandate to explicitly include both major parties, there doesn't appear to be a mechanism to prevent the majority party from appointing five of its own members and a sixth who is a like-minded independent. That would allow the legislative majority party—that is, the Republicans—to exercise total control over the selection of commissioners.
In such an event, Republican lawmakers could then try to appoint commissioners who are Democrats or independents in name only who could be allies willing to support their gerrymanders. That would mean gerrymandering opponents would have to wage litigation to enforce the anti-gerrymandering criteria.
To make the November ballot, the measure would need signatures equivalent to 10% of registered voters at the time of the signature-filing deadline, including signatures equal to 5% in at least 38 of 93 counties.
● Nevada: Litigation over a ballot initiative to reform redistricting is headed to the state Supreme Court for an expedited appeal of whether the proposal will be able to appear on the November ballot in its current form.
A lower court partially ruled in favor of Las Vegas pastor Leonard Jackson, who had filed a lawsuit to oppose the initiative's ballot summary as it had been written, ordering supporters to rewrite their summary to eliminate "materially misleading statements," which they did, resubmitting their proposed summary. As we have previously explained, this initiative would amend Nevada's constitution to create a bipartisan commission appointed by legislative leaders, and because lawmakers would both select and control funding for the commission, the court ruled that it could not be accurately summarized as "independent."
However, Jackson filed his own appeal in February arguing that the lower court lacked the power to rewrite the ballot summary describing the initiative to remove the "independent" phrasing and that the amendment text itself is misleading for still prominently including the word "independent." Meanwhile, supporters are proceeding to collect the nearly 100,000 signatures needed to make the ballot after rewriting the proposed summary, which they must obtain by June 16.
If the proposed amendment makes the ballot and passes, the same exact amendment would need to make the ballot and pass again in 2022 before the commission could redraw districts in 2023, which would mean replacing the maps drawn (likely by Democrats) immediately after the 2020 census.
● North Carolina: A panel of three judges on the 4th Circuit Court of Appeals ruled against Republicans and upheld a district court's 2019 decision to send a lawsuit over the GOP's congressional gerrymander back to state court. This litigation saw the state court block the state from using its Republican-gerrymandered congressional map for the 2020 elections, and Republicans have already redrawn the map to be somewhat less gerrymandered, seeing it used in March's primaries already.
However, Republicans had continued to try to fight that outcome by removing the case to federal court. But because the plaintiffs at the state level had made their arguments based solely upon the state constitution, the federal courts rejected the GOP's attempt to litigate them at the federal level, where conservative dominance culminated in the U.S. Supreme Court barring all future challenges to partisan gerrymandering under the U.S. Constitution in 2019.
● Georgia: Civil rights activists have filed a federal lawsuit over the failure of Gwinnett County, a populous Atlanta suburb that's one-fifth Latino, to mail absentee ballot applications in Spanish in addition to English. The plaintiffs argue that it's a violation of the Voting Rights Act's requirement that any locality with at least 5% of the population belonging to a particular language minority must provide election materials in that language, a provision that has applied to Gwinnett County since 2016.
Republican Secretary of State Brad Raffensperger recently launched a plan to mail absentee ballot applications to all active registered voters. However, the plaintiffs note that the secretary's website doesn't even list a Spanish version on its website, and they're petitioning the court to require that such materials be distributed in both English and Spanish in Gwinnett County.
● Kentucky: Kentucky Republican legislators have overridden Democratic Gov. Andy Beshear's veto to pass their photo voter ID requirement into law, enacting a new restriction on voting even as Kentucky has closed driver's license offices and county clerks' offices to slow the spread of coronavirus, making it impossible for many voters who lack a valid ID to obtain one. Voting rights advocates are all but certain to sue, and there's a good chance they may succeed.
Before the coronavirus hit crisis levels, Republicans had passed different versions of the bill in each chamber, with the state House offering a less strict alternative to the Senate's. Once the crisis caused the closure of the state capitol to the public, Republicans without warning then unveiled a compromise version that eliminated a House provision letting voters who lacked a valid photo ID provide a sworn statement explaining in their own words why they couldn't obtain ID, instead limiting voters to a list of pre-approved excuses. The final law also bans a number of IDs from other states, which could effectively function as a poll tax as some previously eligible voters would have to pay to obtain a Kentucky ID.
● Maine: Supporters of instant-runoff voting (aka ranked-choice) have filed a lawsuit in state court to block Republicans from attempting to put a veto referendum on the ballot, which would temporarily suspend the law from use until the referendum takes place if referendum-backers obtain enough signatures. Instead, the plaintiffs argue that opponents can only use a regular ballot initiative to simply repeal it, which would leave the law in place in the meantime.
Voters passed instant-runoff for state and congressional elections in 2018, and Republican opponents put a veto referendum on the 2018 primary ballot that voters rejected, leading to its implementation in that November's elections. Subsequently, the newly unified Democratic state government passed a law extending instant-runoff to presidential elections last year, and the plaintiffs argue that opponents cannot use a veto referendum to suspend it for this November because the law has already taken effect.
● Ohio: Ohio's Supreme Court, which has a 5-2 Republican majority, has reversed a decision by Republican Secretary of State Frank LaRose and the GOP-majority Ohio Ballot Board to split a voting rights ballot initiative backed by the ACLU into four separate measures. The court's ruling means the provisions will proceed as a single initiative, likely making it easier for supporters to gather the 443,000 signatures needed to make the ballot this year.
If the proposal does qualify for the ballot and voters approve it in November, it would enact automatic voter registration, same-day voter registration, a guaranteed number of early voting days, a ban on tightening Ohio's voter ID law to exclude non-photo IDs, and a requirement to carry out routine audits of election results.
However, the pandemic-induced need to socially distance from one another has completely upended traditional campaign tactics for gathering signatures, which typically relies on volunteers or paid signature-gatherers approaching strangers in public places or going door to door to ask people to sign.
Consequently, supporters of a separate initiative to raise Ohio's minimum wage from $8.70 to $13 filed a lawsuit in state court late last month to let ballot initiative campaigns gather signatures via the internet. Their lawsuit also seeks to lower the required number to 266,000, suspend the requirement that sufficient signatures be obtained in 44 of the 88 counties, and extend the deadline to submit them from July 1 to Aug. 21. Should this litigation effort succeed, voting rights proponents would have a much easier time placing their own measure on November's ballot.
● North Carolina: Civil rights advocates have filed a lawsuit in state court to block the use of new voting machines adopted by one-fifth of North Carolina counties for the 2020 elections. The plaintiffs argue that the new voting machines, the ExpressVote model by Election Systems & Software, are insecure because they rely on a barcode that humans can't read as the official vote record, making them unverifiable. Furthermore, the plaintiffs argue that the machines present a greater health risk of spreading coronavirus than regular paper ballots filled out by hand would.
The following states have recently postponed their primaries:
You can stay on top of all changes to statewide primary dates by bookmarking our 2020 calendar.
● Alaska: Republican Gov. Mike Dunleavy has signed a multi-faceted bill addressing the coronavirus emergency that includes a provision allowing Republican Lt. Gov. Kevin Meyer to order that Alaska's Aug. 18 primary and any special elections this year be conducted by mail. (In Alaska, the lieutenant governor is the state's top elections official.) Meyer has not yet said whether he'll issue such an order regarding the primary.
● Arizona: Republican Gov. Doug Ducey says he's opposed to conducting Arizona's Aug. 4 primary by mail, a move that both Democratic Secretary of State Katie Hobbs and the state's local election officials support. Ducey said he did not want the state "to disenfranchise anyone from voting on Election Day," but every state that conducts all-mail elections still allows voters to cast ballots on Election Day.
● District of Columbia: Democratic Mayor Muriel Bowser has signed legislation to have election officials send absentee ballot applications with postage-paid return envelopes to all D.C. voters for the District's June 2 presidential and local primaries.
● Florida: Officials in populous Broward County, Florida say they plan to send every registered voter an absentee ballot request form ahead of the state's Aug. 18 downballot primaries. Voters who ask for an absentee ballot for the primary will also automatically receive one for the general election. Two other large southeastern Florida counties, Miami-Dade and Palm Beach, are also considering similar measures. Collectively, these three counties are home to 27% of Florida's 13.7 million registered voters.
● Georgia: The State board of Elections unanimously approved a plan to let voters return their absentee mail ballots in-person at secure drop boxes rather than only being able to return them by mail for the upcoming June 9 primary. After GOP Secretary of State Brad Raffensperger recently devised a plan to mail absentee ballot applications to all active registered voters, this change should help prevent voters from being disenfranchised by potentially late-arriving mail delivery.
● Illinois: Democratic Gov. J.B. Pritzker says he'd like officials to send every voter an application to request an absentee ballot ahead of the November general elections, but according to Crain's Chicago Business, he "stopped short of endorsing" a bill proposed by Democratic state Sen. Julie Morrison to mail every voter an actual ballot. Pritzker previously said Illinois might have to "move to a significant amount or all mail-in ballots."
● Indiana: Republican Secretary of State Connie Lawson announced that Indiana will cut back on in-person early voting from the standard one-month period to just one week before Election Day in order to limit exposure to coronavirus, but Lawson said the state won't eliminate it entirely for the June 2 primary. Indiana officials from both parties recently waived the excuse requirement needed to vote absentee by mail and have encouraged as many voters as possible to use that voting method, but not all voters can readily vote by mail and thus need in-person voting options.
● Kentucky: Kentucky's Republican-run legislature has overriden a veto by Democratic Gov. Andy Beshear of a bill that will require sign-off from Republican Secretary of State Michael Adams before the governor can use his emergency powers to make changes to elections. While giving the secretary newfound veto power, the law also grants both officials the new power if they agree on changes to alter the "manner" of how elections are handled and not just the "place" or "time" as was the case under governor's prior emergency powers.
● Louisiana: Louisiana's Republican-run legislature has rejected a proposal by Republican Secretary of State Kyle Ardoin to modestly expand the availability of mail voting for the state's July 11 presidential and municipal primaries. Ardoin's plan would have allowed certain groups of voters, such as those over 60, those at high risk for contracting COVID-19, or those who are self-quarantining to vote by mail. It also would have increased the number of days for early voting from seven to 13. Lawmakers have asked Ardoin to come up with an alternate plan by April 24.
● Maryland: Maryland's Board of Elections has now authorized limited in-person voting for the April 28 special election in the state's 7th Congressional District, a reversal of its previous plan to eliminate in-person voting entirely. While all active registered voters have been sent ballots in the mail, some voters are unable to vote by mail for a variety of reasons, including the simple fact that some such as those registering on Election Day will inevitably not receive mail ballots. Had the board not changed course, it could have faced litigation for violating the rights of disabled voters.
● Massachusetts: State Senate Majority Leader Cynthia Creem has introduced a bill to allow all voters to request an absentee ballot both for Massachusetts' Sept. 1 primary and the November general election. The measure would also set up a period of early voting for the primary. State Senate President Karen Spilka, a fellow Democrat, has said she supports the legislation.
A separate bill filed by a pair of Democratic lawmakers, state Sen. Becca Rausch and state Rep. Adrian Madaro, would have the state send mail-in ballots to all voters for both the primary and general election.
● Missouri: Republican Gov. Mike Parson says he does not believe it is permissible for voters who are concerned about the coronavirus pandemic or are abiding by his stay-at-home order to cite either as a reason for requesting an absentee ballot. He further derided the idea of expanded absentee voting as a "political issue" and a "Democrat-Republican issue."
Parson, however, may not have the last word. Republican Secretary of State Jay Ashcroft has refused to address the issue, saying "it is not up to" him to determine whether concerns about the virus are a valid reason for voting absentee. That has left the matter in the hands of Missouri's 115 county-level election administrators. Activists have canvassed every local clerk's office and received many different answers. Some are explicitly encouraging voters to cast absentee ballots, others are saying COVID-19 permits the practice, and still others are siding with Parson in saying it's forbidden.
● Nevada: State and national Democrats have filed suit against Republican Secretary of State Barbara Cegavske after she dismissed their concerns about her plans for conducting Nevada's June 2 primaries by mail. Plaintiffs argue that Cegavske's plan to only open one in-person voting site per county and only send ballots to registered voters listed as "active" on the state's roll violates both the state and federal constitutions.
Democrats note that, among other issues, the 1.3 million voters in populous Clark County, the home of Las Vegas and two-thirds of the state, will share just a single polling place among them—and so will the 569 voters in tiny Esmeralda County, which borders California's Death Valley. They also say that the state's laws governing mail voting don't distinguish between active and inactive voters, observing that more than 50,000 voters labeled as inactive voted in the 2016 and 2018 general elections.
In addition to a trio of major party organizations—the Nevada Democratic Party, the DNC, and the DCCC—several Nevada voters are also participating in the lawsuit. The lead plaintiff is West Wendover Mayor Daniel Corona, meaning that the formal legal caption for the case is "CORONA v. CEGAVSKE."
● New Hampshire: Democratic Secretary of State Bill Gardner has confirmed that New Hampshirites may register to vote by mail for the September downballot primary and November general election, something that is typically only allowed in-person on or ahead of Election Day. New Hampshire is one of just a few states that doesn't offer online voter registration, making mail registration the only way to do it remotely.
● New Mexico: The New Mexico Supreme Court has rejected a request by 27 of the state's 33 county clerks to order that the June 2 primaries be conducted by mail, saying that state law forbids mailing ballots to every voter. However, the court noted that there's no similar prohibition on sending absentee ballot applications to all voters, prompting Democratic Secretary of State Maggie Toulouse Oliver to say her office would do so.
An attorney for the clerks argued that seeking relief from the court was a "last resort" because the legislature is unable to meet to consider any changes to the law. The justices were unmoved, but notably, the court issued its decision after hearing the case remotely.
● Pennsylvania: Officials in three large Pennsylvania counties are asking Democratic Gov. Tom Wolf for permission to hold the state's June 2 primaries by mail. The counties include the second- and third-largest in the state: Allegheny (home of Pittsburgh), and Montgomery (in the Philadelphia suburbs), respectively. Another large suburban Philadelphia county, Chester, has also joined in the request, while Philadelphia itself is reportedly preparing for an all-mail election in the event Wolf orders one.
According to NBC10 Philadelphia, Wolf's office says the governor is "evaluating options to increase the percentage of voters who vote by mail" but did not directly address the counties' request.
● South Dakota: Republican Secretary of State Steve Barnett says his office will mail absentee ballot applications to every registered voter ahead of South Dakota's June 2 presidential and downballot primaries.
● Texas: A state judge issued a ruling on Friday afternoon allowing all Texans to vote absentee due to the coronavirus pandemic. Less than an hour after the judge had signaled he would do so earlier in the week on Wednesday, the GOP attorney general's office threatened criminal prosecution for groups recommending voters concerned about contracting the virus request absentee ballots.
Last month, because Texas is one of a number of states that requires voters to present an excuse in order to vote absentee, Democrats filed suit in state court asking that this requirement be relaxed. Specifically, plaintiffs said that a provision of law permitting mail voting if a voter has "a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health" should apply to anyone practicing social distancing.
Judge Tim Sulak agreed, although he ordered a hearing for July 27 over whether to extend the order beyond the July 14 primary runoffs, and trial was set for Aug. 10. Conceivably, it could the order could remain in effect for the duration of the pandemic, but whatever the case, Texas Republicans have shown a great deal of hostility toward expanding mail voting and are almost certain to appeal.
That hostility was on vivid display shortly before Sulak announced his plans, when Republican Attorney General Ken Paxton issued guidance to the legislature concluding that "fear of contracting COVID-19" does not constitute a valid reason for voters to ask for an absentee ballot. Paxton, who is currently facing an indictment for allegedly committing felony securities fraud, concluded his letter by warning that if voting rights advocates were to provide the opposite advice to voters, that "could subject those third parties to criminal sanctions."
Should Sulak's ruling stand, however, Paxton's threats will be moot. But even if it's overturned, Democrats could nevertheless obtain the relief they seek thanks to a similar lawsuit they filed in federal court.
● Utah: Utah's director of elections says he believes the state is "in a good place" to hold its downballot primaries as planned on June 30 because approximately 90% of all voters already cast ballots by mail. Previously, Republican state Sen. Wayne Harper had said lawmakers would have to consider whether to delay the primary until Aug. 4, but local news radio station KSL reports that such a move is "not likely to happen."
The main exception to mail balloting is for those who register for the first time and vote simultaneously, which must be done in person. Harper, however, says he thinks the state should "go strictly to mail-in," though a complete elimination of all in-person voting options would open the state to a voting rights lawsuit.
● Vermont: Democratic Secretary of State Jim Condos' office says it's considering sending every voter a mail-in ballot both for the Aug. 11 downballot primaries and the November general election. The state's director of elections told lawmakers last week that a decision must be made "within this month, if not within the next few weeks." Condos can change how the election is carried out under temporary emergency powers the legislature recently granted him, though any alterations must also be approved by Republican Gov. Phil Scott.
● Virginia: Although Virginia Democrats recently passed a number of policies to reform elections and expand access to voting (see our Virginia item above), one measure they did not implement was removing the requirement that absentee mail voters obtain a witness signature. Consequently, the ACLU and League of Women Voters have filed a lawsuit in federal court seeking to temporarily block that requirement this year so that people who are social distancing won't be prevented from voting.
● Wisconsin: Democrat Marina Dimitrijevic, who last week was elected to Milwaukee's city council, is promoting a new proposal to send absentee ballot applications to all 300,000 voters in the city for Wisconsin's Aug. 11 primary and the November general election. Milwaukee Mayor Tom Barrett and at least nine other members of the council, including the body's president, support the measure. Election officials in three large South Florida counties are also considering similar plans.