Voting Rights Roundup: Pennsylvania GOP aims to gerrymander the court that blocked their gerrymander

LEADING OFF

●Pennsylvania: Republican legislators have passed a constitutional amendment out of both legislative chambers that would effectively gerrymander the Pennsylvania Supreme Court and two intermediate appellate courts. This move is a retaliation against the high court, which has a Democratic majority, after the justices struck down the GOP's congressional gerrymander in 2018 and replaced it with a much fairer map in a historic ruling establishing that gerrymandering violated the state constitution's guarantee of "free and equal" elections.

​The GOP's amendment would replace the current system of statewide appellate court elections with a district-based system. Because Democrats and Black voters in Pennsylvania are heavily concentrated in cities such as Philadelphia and Pittsburgh, such a system would likely favor Republicans and allow them to win a majority of the Supreme Court's seven seats even if they couldn't win a majority of votes statewide. Federal courts have also not established a binding national precedent that judicial districts need to be of equal population like legislative-branch districts must, opening the door to even more extreme gerrymandering in future years.

Pennsylvania's top court will play a central role in redistricting, since it appoints a tiebreaker to the bipartisan commission that oversees legislative redistricting in the event of deadlock between the two parties (which is all but guaranteed). When Republicans controlled the court after 2000 and 2010, their court majority enabled them to pass gerrymanders that prevented Democrats from winning majorities in the legislature even when they won more votes statewide, as happened in 2018. The court could also wind up redrawing the congressional map for 2022 in the likely event that Democratic Gov. Tom Wolf blocks the GOP legislature from drawing a new gerrymander.

This new amendment still has many hurdles to overcome before it could take effect. Republicans must pass the exact same proposal again after the 2020 elections, meaning that if Democrats are able to flip one of the legislature's two chambers, the amendment will die. However, if the GOP maintains their majorities, they could pass the amendment again and put it on the ballot as a referendum before the 2022 elections. Even in that scenario, though, voters would still have the opportunity to defeat the amendment at the ballot box.

VOTER REGISTRATION AND VOTING ACCESS

●New Hampshire: Republican Gov. Chris Sununu has vetoed a bill that Democrats in the legislature passed largely along party lines to permanently allow mail voting without an excuse, even though Sununu temporarily let voters to do so for this year's elections due to the pandemic. The bill also would have adopted online voter registration starting in 2021. Sununu's veto marks the second time he has blocked no-excuse absentee voting after rejecting a similar bill last year. Democrats lack the two-thirds supermajorities needed to override his veto.

VOTER SUPPRESSION

●Indiana: Indiana Republicans have passed a law that withdraws the state from the bipartisan Electronic Registration Information Center, which is used in a majority of states run by both parties to maintain accurate and up-to-date voter rolls. Instead, the state will use its own system, which could expose it to renewed litigation.

This change comes after Indiana had to withdraw from the infamous Interstate Crosscheck system championed by Republicans such as former Kansas Secretary of State Kris Kobach after multiple federal courts blocked the state from using it over its security flaws and inaccuracy. One report found Crosscheck would yield more than one hundred false positives for every improper duplicate registration it found. Kansas Republicans agreed to shut down Crosscheck "for the foreseeable future" late last year.

A lawsuit filed in 2017 against Indiana's use of Crosscheck argued that the GOP used it to illegally purge the voter rolls without notifying voters. Switching to this new system could put the state in violation of federal law, which requires notifying voters before any cancellation. The plaintiffs in the Crosscheck case are awaiting judgment from the court but said that they would challenge this latest law.

●Iowa: Latino voter advocates and a Democratic campaign group have filed a lawsuit in state court seeking to block part of a law that Republicans recently passed that makes absentee voting more cumbersome. The law prohibits local election officials from using the state's voter database to fill in any missing information on absentee ballot applications. Instead, officials are required to individually contact those voters, leading to delays in processing applications and increasing the odds that some voters will not receive ballots altogether.

●North Carolina: North Carolina Republicans filed a motion in state court seeking to revive their voter ID law for the November general election, even though judges blocked it from taking effect in two separate lawsuits earlier this year. Republicans argued that the court should revive the voter ID requirement because a law they recently passed to ease absentee voting rules during the pandemic also expanded the type of IDs that were acceptable.

FELONY DISENFRANCHISEMENT

●Florida: The U.S. Supreme Court on Thursday refused to overturn a ruling from the 11th Circuit Court of Appeals blocking a lower court decision that had struck down the Florida GOP's modern-day poll tax. As a result, the law is guaranteed to remain in effect for the state's Aug. 18 primary and likely for the November general election as well.

A federal district court judge had struck down this law as an unconstitutional poll tax, but the 11th Circuit stayed that ruling while Republicans appeal. The appeals court won't hold a hearing on the case until Aug. 18—the same day as the primary.

Republicans passed the law in question 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. An expert witness for the plaintiffs estimated that 775,000 citizens would be unable to pay the poll tax, in large part because Florida levies onerous fines to fund its court system. The court noted, for instance, that one county charges a minimum of $668 for a public defender—and $548 even for defendants who forgo one. Forty-three percent of the disenfranchised are Black, roughly three times the African American share of the state's overall adult population.

Before voters passed the 2018 initiative, Florida disenfranchised one in 10 adults, the highest proportion of any state, including one in five Black adults—five times the rate of white adults in Florida. This racial discrimination was no accident, either, since Florida’s lifetime voting ban was a product of the Jim Crow era.

In striking down the poll tax, the lower court concluded that it is unconstitutional to condition voting rights upon the payment of court fees and costs. As for the payment of fines and restitution to victims, the court said that such a requirement could be constitutional, but not when applied to citizens who are genuinely unable to pay or who owe an amount that cannot be determined. The state effectively makes it impossible for many would-be voters to find out the exact amount they owe because Florida lacks adequate records.

Plaintiffs face difficult odds ahead. Trump has flipped the 11th Circuit from a majority of Democratic appointees to a majority of Republican ones, and the Supreme Court’s Republican-appointed majority has ruled against voting rights in every single case this year. If the lower court's ruling is not upheld, the GOP's law will prevent thousands of Florida citizens from exercising their rights this year despite the Constitution's 24th Amendment ban on the disenfranchising of voters "by reason of failure to pay any poll tax or other tax."

BALLOT MEASURES

●Arkansas: Republican Secretary of State John Thurston disqualified three ballot measures for November, including two that aim to reform redistricting and Arkansas' electoral system, throwing out all of the signatures organizers had gathered as invalid. That rejection led supporters of a third initiative to expand casinos in the state to vow to challenge the rejection at the state Supreme Court.

Although organizers submitted a letter certifying that they had "acquired" background checks for their paid gatherers as required under state law, Thurston claimed these gatherers had not "passed" background checks and therefore must have any signatures they collected invalidated. Supporters of the reform effort blasted Thurston for trying to thwart their amendments, which he has fought to keep off the ballot in court.

The redistricting proposal would amend the state constitution to establish an independent commission, while the electoral reform component would replace traditional primaries with a "top-four primary" where the top four finishers regardless of party would advance to an instant-runoff general election.

Getting these reforms onto the ballot this year is critical for proponents not only because the next round of redistricting will take place soon but also because Republicans have placed a constitutional amendment of their own on the ballot that would likely make it very difficult to pass future initiatives without conservative support.

The GOP's amendment shortens the time to gather signatures and requires that a certain number of signatures come from 45 of Arkansas' 75 counties instead of the current 15. Since Democrats and Black voters are concentrated in a few populous counties, that requirement would compel organizers getting signatures from heavily white rural counties that favor the GOP.

●Maine: Democratic Secretary of State Matt Dunlap has disqualified the GOP's attempt to block instant-runoff voting for this fall's presidential elections by placing a measure to veto the law on the ballot. Dunlap's office determined that organizers had fallen approximately 2,000 signatures short of the necessary 63,000, finding that around 11,000 of the 72,000 that the GOP had submitted were invalid. Had the GOP turned in enough signatures, the law would have been automatically suspended until the vote could take place in November.

This latest development means that instant-runoff voting will be used if no candidate wins a majority statewide or in either congressional district, since Maine allocates electoral votes by district. However, Republicans have vowed to challenge it in court.

REDISTRICTING

●Arizona: Applications to serve on Arizona's independent redistricting commission are now available. Arizona citizens have until Aug. 20 to apply.

●Georgia: Voting rights advocates have filed a federal lawsuit arguing that Georgia's at-large system for electing the five members of its Public Service Commission violates the Voting Rights Act by diluting Black voting power and preventing African Americans from electing their preferred candidates.

The plaintiffs note that only one Black member has ever served on the commission, which regulates public utilities. As a remedy, they want commissioners to be elected by district rather than statewide after 2020 (currently, commissioners must live in one of five districts but are elected statewide).

●Wisconsin: Applications are now open for Wisconsin citizens interested in joining a nonpartisan advisory commission created by Democratic Gov. Tony Evers that will propose new maps to the state legislature. The deadline to apply is July 31.

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.

●California: The California Supreme Court has unanimously approved a four-month delay in the state's deadlines for redistricting after the 2020 census if the Census Bureau is unable to meet its statutory March 31 deadline for delivering redistricting data to the states. Many states face similar deadlines that may be impossible to meet if the census data is delayed. These states will either have to change their deadlines or risk the possibility that they will be unable to adopt any maps, which could lead the courts to take over redistricting.

●Idaho, Michigan: Idaho Republicans are asking the U.S. Supreme Court to overturn a 9th Circuit Court of Appeals decision letting supporters of an education funding initiative collect voter signatures online in order to qualify for November's ballot. In a related case, Democratic officials in Michigan are appealing to the Supreme Court asking it to block a lower court ruling requiring the state to either reduce the number of signatures required or give supporters more time to gather them. The Supreme Court has not yet weighed in on litigation seeking to ease ballot measure signature-gathering, but several ballot campaigns nationally could be affected by such rulings if they do.

●Maine: Advocates for blind voters have filed a federal lawsuit arguing that Maine is infringing on their right to vote a secret ballot safely and securely by making absentee voting inaccessible. They want blind voters to be able to use the same process that military and overseas voters currently can, which would entail filling out ballots using special software on a computer and then printing them out and mailing them back. Another alternative would involve returning ballots by email, though that method raises potential security risks.

●Mississippi: Mississippi Republicans have passed a new law that allows absentee ballots to count if they're postmarked by Election Day and received within five days; previously, ballots had to be received by Election Date. The law also lets voters under "physician-imposed quarantine" or someone "caring for a dependent" under such quarantine for the coronavirus cite their situation as an excuse for requesting an absentee ballot.

Few voters, however, will be able to take advantage of the new ballot receipt deadline because Mississippi is one of the few remaining states that will still require an excuse for mail voting this November. Republican Secretary of State Michael Watson had called on lawmakers to waive the excuse requirement for all voters this year, but his advice was rejected.

●Oklahoma: An effort to reform redistricting in Oklahoma before the next set of maps are drawn following the 2020 census is officially a victim of the pandemic after proponents withdrew their ballot initiative because they were unable to gather a sufficient number of signatures due to social distancing and were not permitted to do so electronically. This outcome all but guarantees that Republicans will be able to gerrymander for the second decade in a row. It also marks the second pandemic-related defeat for redistricting reform after a similar ballot effort in Nebraska failed earlier this year.

As we have previously detailed, this proposal would have established an independent redistricting commission for congressional and state legislative redistricting that would draw maps using nonpartisan criteria. Reformers have vowed to try again in the future.

●Oregon: A federal district court has ruled that Oregon officials must make it much easier for a ballot initiative to qualify that would adopt an independent redistricting commission, but Democratic state Attorney General Ellen Rosenblum announced that she would appeal in an effort to block the ruling.

Reform proponents turned in only 64,000 unverified signatures, far short of the nearly 150,000 signatures necessary for the measure to appear on November's ballot. The court, however, ordered the state to either accept what proponents have submitted or lower the required number to roughly 59,000 verified signatures and extend the deadline to submit them to Aug. 17.

Republican Secretary of State Bev Clarno said she opposed the ruling but chose the latter option while Rosenblum's appeal proceeds. While initiative organizers received a favorable initial ruling, courts in general have resisted loosening ballot access rules during the pandemic.

●Rhode Island: Rhode Island's Democratic-run legislature has passed a bill that would enable voters to cast "emergency ballots" in-person at their local town hall instead of using the more cumbersome process currently available for emergency ballots within the last 20 days before an election. Rhode Island lacks traditional in-person early voting, so this measure makes it easier for voters to vote in-person ahead of Election Day.

●Tennessee: A state court that ruled that all voters may vote absentee by mail without needing an excuse for the duration of the pandemic has rejected the plaintiffs' request to hold GOP officials in contempt for continuing to enforce a separate law requiring that voters who registered by mail, a registration drive, or via a public assistance office must vote in-person the first time. The court ruled that the plaintiffs had not challenged the law requiring certain registrants to vote in-person but said they could ask her to amend her ruling to address the matter.

The case is currently on appeal to the state Supreme Court, but the July 30 deadline to request an absentee ballot for the Aug. 6 primary is quickly approaching. Furthermore, given the delays in mail service across the country, absentee voters will likely need to mail their ballots several days before July 30 to ensure they're received by Election Day.

●Texas: The NAACP and Latino voting advocates have filed a federal lawsuit arguing that Texas's Republican-run government is not doing enough to protect access to in-person voting. They're asking the court to prevent reductions in in-person polling places, expand the number of early voting days, and allow the option of hand-filled paper ballots due to the difficulty of keeping voting machines germ-free.

Additionally, they want the court to suspend a law Republicans passed last year banning mobile early voting locations. As a result, any polling site now has to be open for the full duration of early voting, which caused officials to stop operating some part-time locations last year, particularly on college campuses and in retirement homes. That law is also the subject of two separate federal lawsuits filed late last year that are still awaiting adjudication.