Voting Rights Roundup: Conservative judges deal twin setbacks to democracy in two Wisconsin cases

Voting Rights Roundup: Conservative judges deal twin setbacks to democracy in two Wisconsin cases
Governor-elect Tony Evers, D- Wis., joins President Donald J. Trump and Vice President Mike Pence, in the Cabinet Room of the White House Thursday, Dec. 13, 2018, during a discussion with Governors-Elect from around the nation. (Official White House Photo by Shealah Craighead)

LEADING OFF

 Wisconsin: Conservative judges in two separate Wisconsin cases decided in the last two weeks have handed down decisions reinforcing Republican efforts to entrench themselves in power and leaving Democrats with little recourse to reform the status quo.


On Thursday, Wisconsin's conservative-dominated Supreme Court ruled largely along ideological lines to uphold nearly all of the power grabs that Republican legislators passed in a 2018 lame-duck session to strip Democratic Gov. Tony Evers and state Attorney General Josh Kaul of their powers before they took office after they defeated Republican incumbents that year. Because GOP gerrymandering resulted in Republicans winning sizable legislative majorities in the midterms even though Democrats won more votes, Democrats were unable to repeal these power grabs under Evers.

A week earlier, a panel of three judges on the 7th Circuit Court of Appeals rejected a challenge to the GOP's voter ID law, reinstated cuts to early voting, and reactivated multiple other voting restrictions that Republican legislators had passed earlier this past decade that lower courts had suspended. The judges took more than three years since the case was argued to release their decision, giving no explanation for a delay that legal experts called "shocking."

​​In their lame-duck session, Republicans passed legislation that removed key powers from both Evers and Kaul and transferred them to lawmakers. Most notably, Republicans took away Evers' ability to appoint members of several state boards and agencies. They also usurped Kaul's authority to decide whether to approve court settlements and whether the state should even defend lawsuits like those challenging voter suppression and gerrymandering. And they slashed early voting availability, although that move had been put on hold until the recent 7th Circuit ruling.

The Supreme Court upheld the laws stripping powers from Evers and Kaul, an unsurprising decision given the court's ruling last year that rejected a challenge to the legality of the entire lame-duck session itself. These decisions, along with one in April that blocked Evers from postponing elections that month to avoid exposing voters to coronavirus, cement the court's Republican-aligned majority as one of the most partisan in the nation—one that has willingly facilitated GOP legislators' attempt to reject the legitimacy of Democratic victories in 2018.

Meanwhile, in the voter ID case, the court revived a limit of two weeks for early voting, which had been allowed for as long as six weeks in some parts of the state. The judges also restored a requirement that voters maintain residency for at least 28 days to be able to vote at a given location, even if they've moved from elsewhere within the state. Voters with fewer than 28 days of residency would have to vote at their previous address.

In addition, the court barred the state from letting most voters receive an absentee ballot by fax or email so that they can print them out and return them by mail, even though military and overseas voters are permitted to do so. Multiple federal courts have also temporarily allowed blind voters in other states to obtain ballots this way due to the pandemic.

Most ominously, the judges, all of whom were appointed by Republicans, implied that any manipulation of election laws for partisan gain was constitutional even for laws that potentially discriminate against voters based on race. "If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones," they wrote, even though the very purpose of such laws is to make it impossible for the disadvantaged party to regain control.

This reasoning is the logical extension of the U.S. Supreme Court's 2019 decision prohibiting all federal challenges to partisan gerrymandering. If adopted by other courts, especially the Supreme Court, it would be open season for lawmakers to all but rig elections outright.

The ruling, however, was not a complete defeat for the plaintiffs. The 7th Circuit did uphold a decision letting college students use expired university IDs, as well as a prohibition on requiring schools to share citizenship information with the state. The judges gave the lower courts a chance to rewrite their now-invalidated injunctions to give voters who lack an ID the ability to easily get one, though that may be easier said than done especially because of the pandemic. The plaintiffs have not yet indicated whether they will appeal.

In a third recent case, the Wisconsin Supreme Court opted not to expedite an appeal by conservative activists who are trying to compel the state to purge roughly 129,000 voter registrations. The court won't hear the case at least until Sept. 29, when progressive Judge Jill Karofsky will have replaced conservative Justice Dan Kelly following her victory in April's election.

The timing matters because with Kelly still in office, conservatives would likely have had at least a 4-to-3 majority in favor of ordering the purge. However, once Karofsky takes her seat, conservative Justice Brian Hagedorn will most probably decide the fate of this lawsuit. Earlier this year, he sided with the progressive minority in declining to expedite the case, though it's unclear which way Hagedorn leans on the merits of the case. Even if the court permits the purge, such a decision may come too late to affect the November general election.

BALLOT MEASURES

 Arkansas: Redistricting reformers have submitted approximately 99,000 signatures to place an amendment on November's ballot to establish an independent redistricting commission. About 89,000 signatures must be found valid, including an amount equivalent to 5% of the votes cast in the last gubernatorial election in at least 15 of Arkansas' 75 counties.

Submitting only 10,000 more signatures than the minimum needed gives the initiative's backers less margin for error than is typically advised for such an effort, and even supporters estimate that only around 75,000 of their signatures are probably valid. However, Arkansas gives organizers one additional month to gather signatures if their initial submission includes valid signatures equivalent to 75% of the total needed both statewide and in at least 15 counties.

Supporters are waging an ongoing federal lawsuit seeking to suspend a requirement that initiative petition signatures be witnessed or notarized in-person. A lower court had temporarily blocked the requirement, allowing voters to sign petitions at home and mail them in, but the 8th Circuit Court of Appeals granted a short-term stay of that ruling last month while it decides whether to issue a lengthier stay while the GOP's appeal proceeds.

Separately, electoral reform supporters have submitted roughly 95,000 signatures for a different constitutional amendment that would establish a "top-four" primary. Under this system, all candidates regardless of party would compete on a single primary ballot, with the top four finishers advancing to a general election that would be decided by instant-runoff voting.

 Massachusetts: Supporters of a ballot initiative that would enact a statute implementing instant-runoff voting in congressional and state elections have submitted nearly double the 13,000 additional signatures needed to qualify for November's ballot. As a result, it's likely that voters will have a chance to decide whether to make Massachusetts the second state after Maine to adopt this reform for all state and federal races, aside from the presidency.

 North Dakota: Supporters of a ballot initiative that would amend North Dakota's constitution to reform redistricting and its electoral system have submitted some 37,000 signatures to qualify for the November ballot, 27,000 of which must be valid. Officials will determine by Aug. 10 whether the measure has qualified.

As we've previously detailed, this measure would replace traditional primaries with a "top-four" system where the four candidates with the most support would advance to the general election regardless of party. From there, instant-runoff voting would be used to determine the winner. Additionally, the measure would require that any voting machines create a paper record of every vote—North Dakota currently uses paper ballots by default and voting machines for voters with disabilities—and that the secretary of state conduct routine audits of elections.

The other major change would remove the Republican-dominated legislature's control over state legislative redistricting (North Dakota only has a single congressional district, which covers the entire state). The proposal would hand redistricting over to the state Ethics Commission, which voters created with a 2018 ballot initiative. The commission's five members are chosen by unanimous agreement of the governor and the majority and minority leaders of the state Senate; they would draw maps using several nonpartisan criteria.

 San Francisco, CA: The San Francisco Board of Supervisors has unanimously voted to put a referendum on the ballot this November that would amend the city's charter to lower the voting age to 16 in local elections.

Voters narrowly rejected a similar proposal 52-48 in a 2016 referendum, but if they pass the measure this time, San Francisco would become the first major city in the country to lower the voting age, though a few small localities in Maryland already allow 16-year-olds to vote in local elections.

Relatedly, all California voters will also get a chance to decide on another November referendum that would amend the state constitution to let 17-year-olds vote in primary elections for all levels of government if they will turn 18 by the time of the general election, a policy that a number of states already allow.

REDISTRICTING

 Michigan: A federal district court has dismissed a Republican-backed lawsuit challenging the constitutionality of Michigan's new independent redistricting commission that voters passed at the ballot box in 2018. This ruling follows a GOP loss in April before a panel of three judges on the GOP-heavy 6th Circuit Court of Appeals, which had unanimously upheld the lower court's refusal to temporarily block the law creating the commission while the case proceeded on the 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.

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. The appeals court rejected both arguments by citing Supreme Court precedent enabling prohibitions on certain individuals serving on the commission, a decision the district court cited in its own ruling.

The Republican plaintiffs have not yet announced whether they will appeal but said they are considering their options.

 New Jersey: Democratic lawmakers in New Jersey have introduced a constitutional amendment that would delay the implementation of new legislative districts from 2021 until 2023 and keep the current districts in place if the Census Bureau is unable to deliver the data from the 2020 census needed to draw new districts on time next year. The Trump administration has already told Congress that it doesn't expect to be able to meet its early 2021 deadlines because of the pandemic and requested a new deadline of July 31. The proposed amendment would come into effect if the census doesn't certify New Jersey's data by Feb. 15.

Democrats hold the three-fifths supermajorities needed to put the amendment on the ballot without any GOP support, although voters would have to approve it in November for it to take effect. If no amendment passes, however, and the state is unable to meet its deadlines mandated under its constitution, it's unclear what exactly would happen except that litigation would be a certainty.

New Jersey has a bipartisan redistricting commission appointed by legislative and state party leaders, and in past decades, a court-appointed tiebreaker has chosen between maps proposed by the two parties rather than draw their own lines. After the 2010 census, the tiebreaking member selected the Democratic proposal, leading the GOP to blast this proposed amendment as a power grab, although common statistical measures find no unfair advantage for Democrats under the current map.

FELONY DISENFRANCHISEMENT

 District of Columbia: The D.C. Council has once again passed a bill to completely eliminate felony disenfranchisement as part of a larger package of police reforms, repealing and replacing the version it passed last month over what the lead sponsor called "relatively minor tweaks," sending the latest legislation to Mayor Muriel Bowser for her expected signature.

The bill would immediately restore voting rights for several thousand citizens and would require officials to provide incarcerated citizens with registration forms and absentee ballots starting next year. However, because it is emergency legislation, it must be reauthorized after 90 days, though Council members plan to make it permanent soon.

Once Bowser signs the bill, D.C. would become only the third jurisdiction in the country after Maine and Vermont to maintain the right to vote for incarcerated citizens. It would also be the first place to do so with a large community of color: The District is 46% African American, and more than 90% of D.C. residents currently disenfranchised are Black.

 Florida: Voting rights advocates have asked the Supreme Court to overturn a recent stay by the 11th Circuit Court of Appeals of a lower court ruling that had struck down the Florida GOP's poll tax on citizens who have served their felony sentences but owe court fines or fees. If it's put back into effect, the district court's ruling would pave the way for approximately 800,000 citizens who couldn't pay off Florida's predatory court costs to regain their voting rights, a group of citizens that is disproportionately Black.

Separately, the 11th Circuit scheduled a hearing on the merits of the case for Aug. 18, the very same day as Florida's statewide primary and nearly a month after the July 20 voter registration deadline for that election, ensuring that affected voters will be unable to vote in that election if the Supreme Court doesn't intervene.

BALLOT ACCESS

 Minnesota: Minnesota officials have announced that they will not appeal a federal district court ruling from June that issued a preliminary injunction blocking a state law that would have listed Democrats last on the ballot in every partisan contest statewide in November after national Democrats sued. The court said that ballot order will be determined randomly for 2020, though the state's agreement with plaintiffs would give lawmakers a chance to change the law legislatively next year before the case proceeds further. As we've previously explained, being listed higher on the ballot can give candidates a modest boost, particularly in less-salient downballot races.

VOTER SUPPRESSION

 Indiana: Voting rights advocates have filed a federal lawsuit that challenges the constitutionality of a law that Republicans passed in 2019 to prohibit voters, parties, and candidates from asking a court to keep polling locations open past 6 PM local time on Election Day if there are problems with voting. Under current law, only bipartisan county election boards can ask a court to extend polling hours, and only after a unanimous vote.

The plaintiffs argue that this law violates the First and 14th Amendments and has a disparate impact on Black and Latino voters. Alongside Kentucky, Indiana is the only state that closes its polls at 6 PM on Election Day (all others close 7 PM or later), and this early closure makes it difficult to vote for people who work on Election Day or are caregivers for children or family members.

 Iowa: Republican Gov. Kim Reynolds has signed a budget bill into law that makes Iowa's voter ID regime more onerous and makes absentee voting more cumbersome for election officials to facilitate despite an expected surge in mail voting due to the pandemic.

The law adds a new requirement that voters present ID if they go to their county government offices to vote early in-person. A second provision requires absentee ballot applications to include the voter's "voter ID PIN," a state-issued four-digit number that few voters are likely aware of.

In addition, under the state's previous laws, county officials could verify voter identities using other information on their applications or the state's registration database, but this new law disallows that. Instead, officials would have to contact the voter individually to confirm their identity, which could cause significant delays in processing absentee requests and lead to voters not receiving their ballots in time to vote by mail.

 Montana: A state court has issued a preliminary injunction blocking a GOP-supported law that makes it a crime for most Montanans to turn in another person's absentee mail ballot, ruling in favor of the Native American advocates who brought a suit arguing that the statute violates the state constitution. The court had previously blocked the law on a short-term basis days before the June 2 primary, but this latest ruling suspends the law until the judge can issue a final ruling on the law, which may not happen until after November's elections.

The law in question was approved by voters in 2018 after Republican legislators placed it on the ballot to circumvent a veto from Democratic Gov. Steve Bullock. It makes it a felony to turn in someone else's absentee ballot unless the person doing so is the voter's family member, caregiver, household member, or acquaintance, and even those individuals may turn in no more than six others' absentee ballots. Only postal workers and election officials are fully exempt.

Montana is one of a few states that lets voters opt into permanently receiving an absentee mail ballot in all elections, which is intended to make it easier to vote. In addition, the pandemic prompted officials to mail every voter a ballot for the June 2 primary, and mail voting is likely to be very popular in November. However, because many Native Americans living on remote reservations lack reliable postal service and access to transportation, many ask others who do not face such barriers to turn in their ballots for them.

Republican state Attorney General Tim Fox and Secretary of State Corey Stapleton have not yet indicated whether they will appeal, though the lead GOP sponsor of the law said he hoped that they would.

ELECTORAL COLLEGE

 Electoral College: On Monday, the U.S. Supreme Court rejected two legal challenges to the constitutionality of state laws prohibiting "faithless electors" in the Electoral College, ruling that states may enforce their laws that require the replacement of electors attempting to vote for a candidate other than the one whose slate they appeared on. Faithless elector bans are the law in 32 states and the District of Columbia, but only 15 states have provisions that actually enforce those bans by requiring faithless electors to be replaced with faithful ones.

The 10th Circuit Court of Appeals struck down Colorado's ban on faithless electors last year, but Washington's Supreme Court upheld its state's ban. The losers in both lawsuits had appealed to the Supreme Court, which ultimately upheld Washington's ruling and overturned the case out of Colorado.

Supporters of overturning faithless elector bans brought their cases in the hopes that victory would undermine public support for the Electoral College and lead to reforms abolishing it. However, justices such as Samuel Alito and Brett Kavanaugh raised concern that doing so would "lead to chaos" and a "massive campaign to try to influence electors" in a close election, which could open the door to corruption, blackmail, and potentially the disenfranchisement of voters.

Although the cases did not address the ongoing effort to reform the Electoral College by having states with a majority of electoral votes to pledge their electoral votes to the national popular vote winner, it may nevertheless neutralize one of the several potential legal threats to this project, known as National Popular Vote Interstate Compact. That's because the court validated the notion that the Constitution grants the states sweeping authority to determine how they award their electors, although other potential constitutional challenges remain if the compact attains enough member states to enter into effect.

ELECTIONS

 Mississippi: This fall, Mississippi voters will have their chance to repeal a provision of the state's Jim Crow-era constitution that deliberately penalizes Black voters and the Democrats they support in elections for statewide office. However, the proposed change could end up replacing one major hurdle for Democratic candidates with another.

Last week, Republican Gov. Tate Reeves signed a bill placing a constitutional amendment on the November ballot that would change the way the state conducts elections by eliminating Mississippi's version of the Electoral College, a key feature of the state's 1890 constitution that proponents openly announced was enacted "to secure to the State of Mississippi 'white supremacy.'"

The provision in question requires candidates for statewide offices such as governor or attorney general to win not only a majority of the vote but also a majority of the state House's 122 districts. If no candidate surpasses both thresholds, the members of the House choose the winner, and there's nothing to stop them from picking the person who lost the popular vote.

After Republicans took control of the legislature in 2011, they redrew their own districts to guarantee they'd never lose their grip on power. They did so by making sure a majority of districts would be heavily white and, therefore, heavily Republican. As a result, they not only gerrymandered the state House, they gerrymandered every statewide election, too. The effect was so pronounced that in last year's race for governor, which Democrat Jim Hood lost by 52-47, Hood would likely have had to win by 15 points just to have a shot at carrying 62 House districts.

This proposed amendment would no longer require candidates for statewide office to carry a majority of the state House districts, but it would mandate a separate general election runoff if no candidate earned a majority of the vote. Georgia has had a similar runoff law on the books for years, and those runoffs have consistently seen turnout plummet and hurt Democratic candidates. If Mississippi Republicans wanted to ensure candidates are elected with majority support, they could instead replace the current system with instant-runoff voting or another preferential voting system that would eliminate the need for a separate runoff election.

Even if this amendment fails to pass, it may not be the last word. Last year, a group of Black voters challenged this mini-Electoral College in federal court on the grounds that it violated the Constitution's guarantee of one person, one vote. While the judge who heard the case agreed, he put the suit on hold to give lawmakers time to correct the problem themselves. If they fail to, the judge said, he'd allow litigants to once more pursue their claims.

ELECTION CHANGES

Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.

 Colorado: The Colorado Supreme Court, which has a 6-1 majority of Democratic appointees, has unanimously overturned Democratic Gov. Jared Polis' executive order that had allowed ballot initiative supporters to gather voter signatures by mail or email, siding with the business groups that brought the case and reinstating a requirement that signatures be witnessed in-person. This ruling may make it impossible for some measures to qualify for the ballot ahead of the Aug. 3 deadline to submit signatures.

 Michigan: The 6th Circuit Court of Appeals has refused to stay a district court ruling that required Michigan to either lower the number of signatures needed to put initiatives on November's ballot or give supporters more time to gather them. The state has not yet indicated whether they will appeal the stay while the case proceeds on the merits.

 New Hampshire: Advocates for blind voters have filed a federal lawsuit arguing that New Hampshire makes it impossible for them to exercise their right to vote a secret ballot using an absentee ballot. They want the court to require that New Hampshire let voters with such disabilities use the same absentee voting system available to military and overseas voters, which allows voters to fill out their ballots using a computer and print them out to mail them in.

 New York: Civil rights advocates have filed a federal lawsuit objecting to New York's procedures for rejecting absentee ballots. They aim to avoid a repeat of 2018, when New York had the highest rate of rejected mail ballots in the country, with 14% of such ballots invalidated. The plaintiffs are challenging how ballots with problems such as a signature either missing or not matching the one on file are rejected without notifying voters. They want the state to require that voters be alerted and given a chance to remedy the problem in a timely manner.

 North Carolina: Voters who are suing North Carolina in state court to make it easier to vote absentee have amended their lawsuit to include a request for 21 extra days of in-person early voting. The case remains pending before a lower court.

Separately, the ACLU has filed a new lawsuit in state court to suspend the requirement that absentee voters have someone witness their ballot in-person. The GOP legislature with the support of Democrats passed a law earlier this year to require only one witness instead of two witnesses or a notary. However, even one required witness is more than most states mandate and has been waived by courts this year in other states with such requirements on their books.

 Oregon: Redistricting reformers announced on Wednesday that they had failed to obtain enough signatures by the July 2 deadline to put an initiative on the November ballot that would establish an independent redistricting commission. However, their campaign isn't over just yet thanks to a lawsuit that organizers filed in federal court shortly ahead of the deadline. The plaintiffs are asking the court to lower the number of signatures needed, which is currently about 150,000, and for an extension of the deadline to submit them.

Reformers did not reveal how many signatures they had already submitted to the state, only saying it was in the "tens of thousands." It's unclear whether they will be able to meet the requirements if only one or the other of their two requests are granted and not both, since they lack the ability to obtain signatures electronically and instead have to direct supporters to an online form that must be printed out and mailed in to officials.

 Pennsylvania: The Trump campaign and several Republican Congress members have filed a lawsuit in federal court seeking to prohibit counties from setting up drop boxes or locations aside from the county board office for voters to return their absentee mail ballots. They also want to bar officials from counting mail ballots that aren't placed in a secrecy envelope and allow Pennsylvanians to serve as poll watchers across the state regardless of which county they live in.

These provisions would add onerous burdens for mail voting access, and the measure on poll watchers in particular appears intended to encourage voter intimidation in urban communities of color in cities like Philadelphia. At one 2016 campaign rally, Trump listed several cities with large Black populations—including Philadelphia—and urged his supporters to volunteer as poll watchers in them.

 Puerto Rico: Governor Wanda Vázquez of the pro-statehood New Progressive Party (known by its Spanish acronym, PNP) signed a bill into law making changes to Puerto Rico's election code late last month only after lawmakers removed a contentious provision that would have enabled online voting for absentee voters this year and set the island on a path to transition entirely to universal online voting by 2028. Lawmakers removed the provision after election security experts expressed alarm at the major risk of hacking with such a system.

Vázquez's party passed the final bill over the objections of the pro-commonwealth Popular Democratic Party, or PPD, which is the island's other major party. The bill expanded early voting and eligibility for mail voting, but the PPD denounced it as a power grab. Opposition lawmakers claimed it would allow Puerto Ricans who've left the island for the mainland to vote absentee in an effort to bolster the PNP's support, which has been hurt by scandals that culminated in Vázquez's predecessor resigning last year.

 South Carolina: South Carolina's state Election Commission has announced that it will provide prepaid postage on all absentee ballots this year amid an ongoing federal lawsuit by Democrats seeking to ease access to absentee voting. Democrats are still challenging the requirement that voters must provide a valid excuse, which the GOP waived for the primaries but has left untouched for November.

 Tennessee: Republican officials announced that they plan to enforce parts of a 2019 law restricting absentee voting eligibility despite a recent state court ruling that allows all voters to cast an absentee ballot due to concerns over COVID-19. The law requires that newly registered voters who registered by mail, a voter registration drive, or public assistance offices must vote in-person the first time. Black voters in particular have been more likely to register through registration drives in recent years, exposing them to a disproportionate impact.

Republicans passed this restriction in 2019 in reaction to a 2018 surge in Black voter registrations. The law added criminal penalties to certain components of voter registration drives in an effort intended to make them all but impossible to conduct. While the GOP subsequently repealed some of those provisions regarding registration drives after a court ruling had curtailed them, other provisions of the law remain in effect, such as one that makes it a crime to pay workers based on the number of registrations they gather instead of paying them hourly or allowing them to volunteer.

However, the GOP's decision to enforce this in-person voting requirement for these registrants is not the final word, as the plaintiffs in the case that loosened the absentee voting restrictions are challenging this mandate as well. Republicans are currently appealing that ruling to the state Supreme Court, although the high court refused to stay the lower court's decision while the appeal proceeds.

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