Voting Rights Roundup: Kentucky GOP moves to strip Democratic governor of his power after election

LEADING OFF

●Kentucky: Republicans in Kentucky's state Senate have passed a bill along party lines that would effectively remove Democratic Gov. Andy Beshear’s control over the state’s Department of Transportation, the latest move in an accelerating trend of Republicans stripping power from Democratic governors before they can take office.

The legislation would limit the governor to nominating a transportation secretary from a list chosen by a new board whose nine members would be selected by the Kentucky Chamber of Commerce and local government associations, with those members subject to a veto by the Republican-run legislature. Lawmakers would also have veto power over Beshear’s nominee, making this the only cabinet position in the state requiring Senate confirmation.

This bill would therefore hand over control of a key government post to moneyed corporate interests, and with Republicans firmly in charge of the legislature, it can become law even if Beshear were to veto it since it only takes a simple majority to override vetoes in Kentucky. Only intervention by the courts could stop it.

This power grab comes after top Republicans floated the idea of using an obscure constitutional provision to steal the Nov. 5 election for Republican Gov. Matt Bevin, who made unsupported claims of "irregularities" in the vote. Republicans backed off that ploy amid a public backlash, but they've now set their sights on weakening the governor’s office instead.

It also follows similar lame-duck maneuvers by Republican legislators in Michigan and Wisconsin in 2018 and North Carolina in 2016—all of which came only after the GOP lost elections for governor in each state. These schemes amount to a refusal on the part of Republicans to acknowledge that Democrats are a legitimate opposition party entitled to govern when they win elections, and they undermine the very bedrock of democracy: the peaceful transfer of power between the defeated governing party and victorious opposition in a legitimate election.

REDISTRICTING

●Colorado: Democrats have passed a bill out of a Senate committee along party lines to 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). State House Democrats already passed the bill, and if the Democrats pass the bill on the full Senate floor, it would go to Democratic Gov. Jared Polis for his signature.

●Utah: Utah Republicans are planning to introduce legislation that would effectively gut the ballot initiative that voters passed in 2018 to create a bipartisan advisory commission that would draw maps based on nonpartisan criteria. The new bill as described by UtahPolicy.com would alter the voter-approved statute so substantially that it would guarantee Republicans can gerrymander again after the 2020 census.

The original measure established a seven-member bipartisan advisory commission, with legislative leaders from both parties each picking three members and the governor naming a seventh member as chair. While this system lets Republicans appoint a majority thanks to their hold on the governor's office, it takes the vote of at least one of the Democratic appointees to pass a map. If the GOP-dominated legislature doesn't like what the commission proposes, it can pass its own maps, but it would still be constrained by the criteria described below, which could be enforced in state court.

In order of priority, those criteria are: following federal law and the Voting Rights Act; minimizing the number of divided municipalities; minimizing the number of divided counties; promoting compactness; ensuring transportation connections exist within districts; preserving neighborhoods and communities of interest; following natural geography; and nesting districts so that state Senate and state House borders overlap as much as possible. Most importantly, it bans unduly favoring or disfavoring any particular party or candidate intentionally.

The 2018 law also requires assessing whether a particular map is "symmetrical" in its partisanship. This principle requires that if one party wins an outsized majority of seats while winning a certain majority of the vote, the other party would too if the roles were reversed. It does not require the two parties to receive seats in exact proportion to their vote share. By way of example, rather, if one party wins roughly 55% of the vote and 60% of all seats, the other party also has to be able to win roughly 60% of all seats if it wins 55% of the vote rather than a minority of seats, like it might under a gerrymander.

However, the GOP's bill would eliminate most of those protections. The partisan symmetry requirement would be repealed, and the commission could decide to use whatever criteria it wants rather than those described above (so long as they don't conflict with federal law). Republicans would also end the ability of Utah residents to file a lawsuit against the map in state court for failing to follow the criteria, since there would no longer be any statutory criteria to begin with.

These changes would hobble the commission, but the killing blow would remove the requirement for bipartisan passage to recommend a map to the legislature. The GOP's bill would change who appoints the commissioners and instead let the governor, state House speaker, Senate president, and minority leaders in both chambers each appoint one member of their choosing.

The House speaker and Senate president would also each get to appoint one additional member who has nominally not been affiliated with any party in the previous two years. That would, in theory, create a commission with three Republicans, two Democrats, and two independents, but those independents would likely be independent in name only.

And crucially, there would no longer be a requirement for five votes to pass a map, meaning members appointed solely by Republicans could approve new maps without any Democratic support. Since the legislature is already heavily gerrymandered to favor Republicans and Utah is a deep-red state, this would create a vicious cycle that effectively locks in GOP control for the foreseeable future, even if Democrats one day won the governor's office.

Because Utah doesn't let voters put constitutional amendments on the ballot, the 2018 initiative was only statutory in nature. It was therefore always at risk of repeal by the GOP unless the fear of public backlash could deter them. But Republicans may be able to insulate themselves from that possibility, too: Reportedly, they think they'll be able to pass their bill with a two-thirds supermajority, which would bar voters from putting a referendum on the ballot to veto the GOP's law.

VOTER SUPPRESSION

●Indiana: Republicans in the state Senate and in a state House committee have passed a bill to revive a highly flawed method for purging voter registrations following two federal court rulings that blocked the system they had previously been using. The bill would create a state-run version of the Interstate Voter Registration Crosscheck, which was championed by Kansas' former Republican Secretary of State Kris Kobach and had an astronomically high rate of false positives when trying to find voters who were supposedly registered in multiple states improperly.

Kobach and the GOP had used these almost entirely false matches to purge voters without notifying them—and to gin up support for new voting restrictions. However, a defeat in court last year led to the program's suspension. If, though, Indiana's new bill passes, Republicans could once more remove voters from the rolls without notifying them, which opponents have denounced as a violation of federal law and implied will face future litigation. Republicans dominate state government, meaning this bill could soon become law.

●Kansas: State and national Democratic Party organizations have filed a lawsuit in state court seeking to require that Republican Secretary of State Scott Swhab promulgate the regulations needed for counties to switch to countywide "vote centers," where any voter in the county may cast their ballot, or otherwise allow counties to implement such systems without Schwab's approval. Schwab has claimed he won't be able to issue the regulations until after 2020, prompting members of both parties, who passed a bipartisan law establishing vote centers in 2019, to accuse him of dragging his feet.

The lawsuit argues that Schwab's actions make it harder for people to vote in violation of the state constitution. Kansas' Supreme Court has a 5-2 majority of Democratic appointees in case the lawsuit eventually reaches them, although that's no guarantee of success.

●Kentucky: Republicans have passed their voter ID bill out of state House committee along party lines, following its recent passage in the GOP-dominated state Senate. Republicans are almost certain to pass the bill into law, since overriding Democratic Gov. Andy Beshear's vetoes only requires a simple majority.

●North Carolina: On Tuesday, a panel of three judges on North Carolina's Court of Appeals unanimously overturned a lower court's ruling and ordered it to block Republicans' voter ID law until the case can be decided on the merits. The appellate court ruled that the plaintiffs were likely to succeed in demonstrating that Republicans had enacted the law with the unconstitutional intent of discriminating against black voters.

Earlier this year, a federal court issued its own preliminary injunction in a separate case ahead of an upcoming trial. Democratic state Attorney General Josh Stein previously announced he would wait until after the March 3 primaries to appeal the federal ruling (Republicans aren't party to that case, but Stein has a general obligation to defend state laws in most instances), so the voter ID requirement was already on hold for next month's vote. However, this latest state-court ruling could suspend the law through the November general election, too.

●Wyoming: An amendment to add a voter ID requirement to a bill containing other election law changes failed in a 15-15 deadlock in Wyoming's state Senate, which is composed almost entirely of Republicans. Last year, Republicans failed to pass one in the state House by just a single vote despite holding an overwhelming majority of seats in the lower chamber as well, leaving Wyoming as one of the very few Republican-run states that has yet to pass a voter ID law.

BALLOT MEASURES

●Florida: A constitutional amendment pushed by a secretive dark money group will appear on the November ballot after Florida's Supreme Court gave its approval in a unanimous ruling this week.

The amendment, pushed by an organization called "Keep Our Constitution Clean," would require that citizen initiatives to amend Florida's constitution pass in two consecutive general elections rather than in just one, which is the current law. This restriction adds on to the existing requirement that constitutional amendments pass with at least 60% support, the highest such threshold in the country alongside Illinois'. If voters approve this latest measure, the voter support thresholds to successfully passing an initiative in Florida would be the most burdensome of any state that allows them.

This ballot measure isn't the only new restriction on the initiative process that could be in effect after 2020. Republicans are considering additional statutory restrictions after passing a similar law in 2019. Currently, initiative supporters must submit signatures equivalent to 8% of the votes cast in the previous presidential election and meet that threshold both statewide and in at least half of Florida's congressional districts, which comes out to roughly 766,000 signatures after 2016. Once a campaign hits 10% of the total needed, the state Supreme Court reviews the initiative to ensure that the ballot language isn't misleading and doesn't address more than one subject.

However, the GOP's bills (SB1794, SPB 7062, and HB7037) contain provisions that would: (1) require initiatives hit the 8% signature threshold in every congressional district; (2) raise the signature threshold for state Supreme Court review to 50% of the total, which could waste significant time and resources if the court rejects a proposed measure; and (3) require the state attorney general to ask the court whether proposals violate the U.S. Constitution instead of just whether the ballot summary language is accurate and limited to only one subject.

Additionally, the GOP's legislation would likely shorten the window to gather signatures. Under current law, organizers can collect signatures for up to two years; if they obtain a sufficient number, their initiative can appear on the ballot at the next general election. The GOP's new rule would instead invalidate all signatures after Feb. 1 of every even-numbered year. That would remove groups' ability to begin signature collection at the time of their choosing if they want to avail themselves of the full two-year period, in practice likely abbreviating the amount of time they have to gather petitions.

Republican proponents have made it unequivocally clear that they are doing so to strangle any efforts to put initiatives on the ballot. Over the last decade, Florida voters have used ballot initiatives to restore voting rights to up to 1.4 million citizens who had been permanently banned from voting despite serving out felony sentences, as well as to amend Florida's constitution to ban gerrymandering. Activists have advanced these measures precisely because Florida's Republican-run legislature won't take them up, despite their popularity. Now Republicans simply don't want to let them appear on the ballot at all.

●Missouri: Missouri Republicans in the state House recently held a hearing on a proposed constitutional amendment that would make it much harder to pass progressive initiatives to amend the state constitution but affect conservative measures far less.

The amendment would raise the threshold for passage from a simple majority statewide to a two-thirds supermajority in a majority of state House districts. It would also require signatures equivalent to 8% of registered voters in two-thirds of all 163 state House districts. That's much more burdensome than the current requirement of signatures equal to 8% of the last gubernatorial vote—a smaller figure than the total number of registered voters—in two-thirds of congressional districts (of which there are only eight).

This proposal comes after voters passed an amendment in 2018 to make legislative redistricting fairer, which Republicans are plotting to gut by placing their own amendment on this year's ballot. Jointly, these proposed changes would likely make it much harder to put progressive initiatives on the ballot than conservative ones, since Democratic voters are heavily concentrated in less than a third of districts around cities such as Kansas City and St. Louis, whereas a supermajority of state House districts are strongly Republican.

Republicans can put measures on the ballot with a simple majority in the legislature. They could also time any election so that a referendum would be held separately from the general election, ensuring turnout would likely be lower and the electorate more conservative.

●Ohio: Republican state Attorney General Dave Yost has approved the ballot summary language for a proposed constitutional amendment to expand voting access after he previously rejected it as allegedly misleading. The initiative will still need to be approved by Ohio's Ballot Board, which is responsible for determining whether the measure complies with the state constitution's requirement that such initiative address only a single subject. If it clears that hurdle, supporters would need to gather 443,000 signatures by July 1 to make the November ballot.

As we've previously detailed, the initiative would enact same-day voter registration; automatic registration through Ohio's driver's licensing agency; a guarantee of four weeks of early voting including the two weekends before Election Day; a ban on tightening Ohio's voter ID law to exclude non-photo IDs; and a requirement to conduct routine audits of election results.

FELONY DISENFRANCHISEMENT

●Florida: On Wednesday, a panel of three judges of the 11th Circuit Court of Appeals affirmed a lower-court ruling that held that Florida can’t enforce Republicans' modern-day poll tax. The law in question requires citizens who have served their felony sentences to pay all court-related fines and fees before they can regain their voting rights. This latest decision means that a preliminary injunction will remain in effect against enforcing the law against the 17 plaintiffs who are party to the case while it proceeds on the underlying merits.

Republicans passed the law last year after voters amended Florida's constitution in 2018 to end lifetime voter disenfranchisement for up to 1.4 million people who had served out sentences for all but the most serious crimes. But in large part because Florida levies onerous fines to fund its court system, an expert for the plaintiffs who analyzed 58 of the state's 67 counties found that roughly 80% of those who’ve served their felony sentences owe outstanding fees—up to 1.1 million people overall. That export's report also estimated that 59% of them owe at least $500 and 38% owe at least $1,000.

Before voters passed the 2018 initiative, Florida disenfranchised 1 in 10 adults, including 1 in 5 black adults—five times the rate of every other state. This racial discrimination was no accident, either, since Florida’s lifetime voting ban was a product of the Jim Crow era.

The 11th Circuit's ruling is limited to the specific plaintiffs who are party to the lawsuit, but it paves the way for a future decision that could apply to everyone affected by the law. However, the decision may not survive. Republicans have announced they will request a review by the entire 11th Circuit, which now features a majority of Republican-appointed judges. The conservatives on the Supreme Court could also overturn this ruling if it reaches them.

Furthermore, Florida's conservative-dominated state Supreme Court recently issued an advisory opinion holding that the constitutional amendment does in fact require the payment of fines and fees, even though its text makes no mention of them. While that ruling is not binding, it could be a signal that the state court could strike down the entire amendment if the federal courts invalidate the poll tax.

●Iowa: Iowa Republicans passed a bill out of state Senate committee that would ensure some citizens remain permanently barred from voting if the GOP-run legislature passes a future constitutional amendment to automatically restore voting rights to people who have completed their sentences for a felony conviction.

Currently, Iowa is the only state to impose a lifetime ban for any felony, which can only be lifted if the governor individually restores a citizen's voting rights. However, the state House almost unanimously passed a constitutional amendment in 2019 to automatically restore voting rights upon completion of any prison, parole, or probation sentence for a felony conviction. That amendment died, however, after Republican senators balked.

Their newest bill would maintain this lifetime disenfranchisement thanks to a measure that is effectively a poll tax: requiring the payment of any court-ordered restitution to victims, similar to a measure passed by Florida Republicans last year. The bill would also require people convicted of the most serious offenses such as murder to win the governor's consent to regain their voting rights. Republican Gov. Kim Reynolds has very rarely exercised that power even though she could issue a blanket executive order restoring voting rights to everyone who has served their sentences.

●Minnesota: A state court judge has rejected a request by a conservative group to intervene in a lawsuit to defend Minnesota's ban on voting by people on parole or probation. The ACLU filed a challenge to this law last year; if it's successful, only people currently still incarcerated would remain unable to vote.

Conservative opponents of the lawsuit have accused Democratic Secretary of State Steve Simon and state Attorney General Keith Ellison of refusing to mount the most vigorous defense of the law possible. Democratic appointees hold a 5-2 majority on Minnesota's Supreme Court, and while that's no guarantee of success, it means there's a decent chance the ACLU will prevail if the case ultimately reaches the high court.

●Washington: State Senate Democrats narrowly failed to pass a bill ahead of a key deadline that would have ended the disenfranchisement of voters on parole or probation, meaning only those who have completed their sentences will remain eligible to automatically regain their voting rights. Washington remains one of just two Democratic-run states (alongside Connecticut) that effectively imposes a poll tax on some citizens who have served their sentences by requiring them to pay court-related fines and fees before they can regain their voting rights.

Democrats hold full control of state government and expanded their previously tenuous majorities in 2018's elections, but this marks the second year in a row where they have failed to pass this bill. However, the lead sponsor, state Sen. Patty Kuderer, said she would try again next year.

STATE SUPREME COURT ELECTIONS

●Wisconsin: On Tuesday, Wisconsin held a primary for a critical seat on the state Supreme Court, and the results indicate that the April 7 general election could be highly competitive. Conservative Justice Dan Kelly, who was appointed by former Republican Gov. Scott Walker in 2016 and is facing voters for the first time, won 50.1% in the nonpartisan primary against a pair of progressive opponents, Dane County Circuit Judge Jill Karofsky, who took 37.2% of the vote, and law professor Ed Fallone, who finished third with 12.7%. Kelly will now face Karofsky, whom Fallone promptly endorsed, in April for the full 10-year term.

The second round of voting will coincide with the presidential primary, and if the Democratic nomination contest is still in full swing by then, Democratic turnout could be elevated and give Karofsky a boost. A victory is paramount for progressives in the fight against Republican voter suppression and gerrymandering: If Karofsky wins, she'd turn the court from a 5-2 conservative majority to just a 4-3 edge. Even more importantly, she'd give liberals a chance to capture a majority when another conservative justice is up for re-election in 2023.

Progressives missed their chance to gain a majority this year when they lost a critical Supreme Court election last year by a razor-thin 6,000 votes, a margin of just 0.5%. The court's hard-line majority upheld the GOP's lame-duck power grabs following former Gov. Scott Walker's 2018 loss in a ruling last year. Republicans are also reportedly plotting to eliminate Democratic Gov. Tony Evers' power to veto new maps by asking the justices to overturn a 55-year-old precedent requiring the governor's approval for new districts. However, even if the GOP is successful now, a future progressive majority could strike down gerrymandered maps.

VOTER REGISTRATION AND VOTING ACCESS

●Connecticut: Democratic Secretary of State Denise Merrill and prominent Democratic lawmakers have once more thrown their support behind a bill that would enact automatic voter registration; expand same-day registration availability beyond just one location in each of Connecticut's 169 towns; ensure that people waiting in line when the polls close at 8 PM can still register and vote; and restore voting rights to people on parole for a felony conviction, which would leave only those currently incarcerated unable to vote.

Democrats tried to pass a similar proposal in 2019, but it only made it through the state House and not the state Senate after Republicans reportedly threatened to filibuster unrelated legislation with only a short time left in the session. Since Democrats could bring this bill up earlier in this year's legislative session, Republicans may be unable to stop it with procedural tactics.

●Oklahoma: A committee in Oklahoma's heavily Republican state Senate has approved a bill that would require the state to fully implement online voter registration by the end of 2021. The Republican-led state government enacted online registration in 2015, but it has long been delayed and only partially implemented, leaving Oklahoma as one of just a handful of states that don't allow some form of online registration for new voters.