Voting Rights Roundup: Supreme Court poised to upend federalism itself to gut voting protections
26 October 2020
Wake Forest, NC: NC Voters wait in long lines to cast their ballots on the first day of early voting, October 15, 2020.
LEADING OFF
●Pennsylvania: The U.S. Supreme Court deadlocked 4-4 on Pennsylvania Republicans' request to stay two state Supreme Court rulings that had sided against Republican requests to restrict voting access and enable voter intimidation, leaving the state court's orders in place.
The decision, however, has catastrophic implications for the future of voting rights in the likely event that Judge Amy Coney Barrett is confirmed to the bench, signaling that the justices are prepared to eviscerate long-settled doctrines of federalism in the service of actively undermining fair elections.
The rulings in question saw the Democratic majority on Pennsylvania's top court reject the GOP's request to block counties from setting up drop boxes for returning mail ballots. The court also turned back Republican demands that ballots only count if received by Election Day (the state will accept ballots postmarked by Election Day and received within three days).
In addition, the court determined that ballots lacking a postmark would "be presumed to have been mailed by Election Day" unless there is strong evidence to the contrary. Finally, the justices rejected allowing "poll watchers" from serving in counties where they were not registered to vote, a thinly veiled attempt at voter intimidation by Trump, who has repeatedly incited his supporters to harass voters at polling places in Philadelphia and other localities with large Black populations.
While Chief Justice John Roberts' decision to side with the Supreme Court's three liberals leaves the Pennsylvania court's orders in place for now, that's no guarantee they'll remain in effect much longer. Republicans swiftly filed a new federal lawsuit seeking to block the mail ballot return deadline in an attempt to get the question back before the U.S. Supreme Court soon after Barrett is confirmed. Barrett could therefore cast the deciding vote, potentially even after Election Day, to overturn the state court's ruling and throw out thousands of ballots that were postmarked by Election Day but not received until afterward.
It has been a cornerstone of American federalism for more than two centuries that when state courts make decisions based solely on state constitutional grounds that don't conflict with federal law—as is the case here—those decisions are insulated from federal review. However, Republicans argue that the U.S. Constitution's Elections Clause giving the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections means that only the legislature itself may exercise that power, not those tasked with setting or interpreting state laws, such as state courts.
In other words, Republicans are arguing that state courts—as well as voter-initiated ballot measures and potentially even governors—lack the power to set election laws when they disagree with the legislature. Such a notion would shatter the principle of judicial review at the state level. In a state such as Pennsylvania, where the GOP holds gerrymandered legislative majorities despite Democrats winning more votes in 2018, it would cement minority rule by removing any real check on ill-gained legislative power. This outcome would eliminate any real recourse that voters have to end gerrymandering when lawmakers won't act.
The last few months have seen the U.S. Supreme Court and federal judges appointed by Republicans repeatedly rule against voting rights. This Pennsylvania case is an ominous indicator that right-wing judges will go to new extremes to eviscerate voting protections to entrench the GOP in power for the foreseeable future. Should Democrats overcome these barriers next month and win the presidency and Senate, they will likely soon face the difficult choice of either reforming the structure of the courts or watch voting rights wither away under an unrelenting judicial assault.
BALLOT MEASURES
●Ballot Measures: Daily Kos Elections takes a look at 24 ballot measures going before voters around the country that would reshape how elections and voting work, with some seeking to protect fair elections while others attempt to undermine them. Major issues include redistricting reform, the adoption of voting systems that promote majority winners, efforts to lower the voting age in local elections, and Republican-backed efforts to restrict future ballot initiatives.
Key contests include whether to adopt redistricting reform in Virginia or variations of instant-runoff voting in Alaska and Massachusetts; Colorado's membership in the National Popular Vote Compact for the Electoral College; and Puerto Rico's latest referendum on statehood. Be sure to bookmark our spreadsheet for Election Night as results come in.
REDISTRICTING
●Arizona: Democrats have filed a lawsuit in state court arguing that Republican Gov. Doug Ducey has illegally undermined the impartiality of Arizona's independent redistricting commission by injecting partisanship into the process for selecting members of the panel.
In 2000, Arizona became the first state to adopt an independent redistricting commission enshrined in its constitution after voters passed a ballot initiative by a wide 56-44 margin. That development, however, deprived Republicans of their expected control over redistricting, prompting the GOP to fight the commission's existence nonstop for years.
The commission is made up of two Democrats, two Republicans, and one unaffiliated member. All are selected from a pool of 25 applicants screened by the state's commission on appellate court appointments, a panel that was established as a way to help insulate judicial appointments from partisan politics. Legislative leaders from both parties in the state House and Senate each get to pick one member. Those four commissioners then choose an unaffiliated tiebreaker. The commission's maps are required to adhere to nonpartisan criteria and prioritize political competitiveness.
While this system is supposed to remove either party's ability to ram through gerrymandered maps, that is just what Republicans appear intent on doing. Democrats say that Ducey has illegally stacked the applicant pool by stacking the court appointment commission itself. Indeed, Ducey has refused to nominate any Democrats to the judicial nominating commission despite a rule that no more than eight of its 15 members can belong to the same party. That has left the panel with only Republicans and independents, some of whom have ties to the GOP.
Thanks to Ducey stacking the judicial nominating commission, multiple candidates from the five supposed independents approved by the appellate court commission appear to be decidedly Republican-leaning. Democrats want the state court to disqualify gun store owner Robert Wilson for having hosted a rally for the Trump campaign, as well as utilities attorney Loquvam because he was a lobbyist registered with the state's Corporation Commision, which regulates utilities. Arizona's constitution prohibits commissioners who have served as a lobbyist within the past three years.
Ducey's efforts are only the latest attempt to thwart the will of voters. After independent commissioner Colleen Mathis chose proposals put forward by Democrats in 2011, Republicans claimed she was a closet Democratic partisan and tried to impeach her, only to be rebuked by the state Supreme Court. But the partisanship of the maps she selected can be measured by statistics, which showed no unfair advantage for the GOP and are among the fairest nationally, especially when considering the commission's competitiveness mandate.
Republicans then twice sued all the way to the U.S. Supreme Court, seeking both to strike down the commission itself and the maps it produced. However, in a 2015 ruling in which former swing Justice Anthony Kennedy cast the decisive vote, the court upheld the constitutionality of using ballot initiatives to enact laws such as Arizona's redistricting commission.
But thanks to the GOP's unrelenting assault on judicial independence, the independence of Arizona's redistricting commission may now be at risk. That's because in 2016, Ducey packed the state Supreme Court by adding two seats to cement a hardline conservative majority, leaving in doubt whether Democrats have a chance to succeed with this lawsuit. But even if Democrats do prevail at the state level, the U.S. Supreme Court could still overturn its 2015 precedent and strike down the commission now that Justices Kennedy and Ruth Bader Ginsburg are no longer on the court.
●Redistricting: Next month's elections are the last that will take place before states are required to redraw their congressional and state legislative districts to reflect population changes in the 2020 census. That makes them critical in the fight against gerrymandering. In a new article, Daily Kos Elections looks at what are the key elections for governors, state legislatures, state supreme courts, and ballot measures in the states that could change who's in charge of the redistricting process for the coming decade. Be sure to bookmark the spreadsheet version of this info since we'll update it as results come in.
As things stand today, Republicans would get to draw three to four times as many congressional districts as Democrats if nothing changes in 2020, and the picture is similar for state legislative maps. But Democrats are well-positioned to flip a number of key races that would break GOP's control over redistricting in important swing states. In just four states home to one-fifth of the House's seats, control over Ohio's Supreme Court and the state houses in Florida, North Carolina, and Texas could decide whether the GOP has unfettered power to gerrymander there or whether Democrats will have a seat at the table.
VOTER SUPPRESSION
●Michigan: A 6th Circuit Court of Appeals panel has ruled 2-1 along ideological lines to overturn a lower court decision that had blocked Michigan's unique law banning third-party organizations from hiring paid transportation to take voters to polling places, with the panel's two GOP appointees siding with Michigan Republicans.
●Texas: A panel of three GOP-appointed judges on the 5th Circuit Court of Appeals has overturned a lower court ruling that required Texas to adopt a uniform process statewide for giving voters a chance to fix purported problems with their signature on absentee mail ballots. The plaintiffs appeared to concede defeat, saying they would now try to persuade counties to voluntarily change their procedures to avoid disenfranchising voters.
VOTING ACCESS
●New Jersey: Democrats in a state Assembly committee have passed a bill along party lines to establish two weeks of in-person early voting for general elections beginning with next year's state elections. Democrats in the state Senate passed a similar bill in committee earlier this year.
2020 CENSUS
●2020 Census: A federal district court in California has become the second lower court to block Trump's executive memo ordering the census to exclude undocumented immigrants from the counts used to determine the apportionment of congressional seats and Electoral College votes among the states after the 2020 census, prompting Trump to appeal to the Supreme Court. In the other case that saw a ruling against Trump in this matter, the Supreme Court has set oral arguments for Nov. 30 over Trump's appeal.
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.
●Alabama: The U.S. Supreme Court has sided with Republicans and blocked a lower court ruling that had suspended Alabama's ban on curbside voting.
●Alaska: A state court judge has refused to require that officials notify voters and give them a chance to fix purported problems with their mail ballot signature instead of rejecting their ballots.
●Indiana: A panel of three GOP-appointed judges on the 7th Circuit Court of Appeals has blocked a lower court decision that had ruled that ordinary voters had standing to sue in court to seek an extension of Election Day polling hours in the event of voting problems, meaning once more that only county election boards will have that ability. Indiana's polls close at 6 PM, making it the earliest state in the country alongside Kentucky.
●Iowa: Iowa's conservative-dominated state Supreme Court has upheld a law passed by Republicans earlier this year that bars county officials from using the state's voter database to fill in missing information on mail ballot applications such as a voter's "PIN" when their identity is otherwise known.
The law instead requires that officials individually contact voters to fill in missing data, increasing the turnaround time for processing and potentially risking that some voters will not receive their ballots in time. Republicans have used this law to throw out tens of thousands of partially pre-filled mail ballot applications that voters had already submitted.
●Maine: The Democratic-appointed majority on Maine's Supreme Court has refused to require that mail ballots be counted so long as they're postmarked by Election Day and received within a few days afterward, instead requiring they be received by Election Day. The court additionally rejected the plaintiffs' request that it order local officials to notify voters and give them a chance to fix supposed problems with mail ballot signatures; Democratic Secretary of State Matt Dunlap had previously issued an order directing local election officials to take such steps, but the plaintiffs wanted further assurance in court.
●Missouri: A federal appeals court has blocked a lower court ruling that would have allowed mail voters in Missouri to return their ballots in person. Under an almost unparalleled state law, such voters can only return their ballots via U.S. mail.
●Mississippi: Voting rights advocates who had sued Mississippi officials in federal court over expanding voting access have reached a settlement that will allow curbside voting for those with COVID symptoms and give absentee voters whose ballots are rejected the chance to fix any problems. The agreement leaves in place the state's requirement that voters who request an absentee ballot present an excuse in order to do so. Mississippi is one of just five states with such a requirement still in place this year and the only one that also lacks any form of in-person early voting.
●Nevada: Donald Trump's campaign has filed a suit in state court demanding that election officials in Clark County, Nevada stop counting mail ballots, claiming that officials are not following proper procedures "that facilitate transparency," but a lower court denied Trump's request for a temporary restraining order on Friday while the case proceeds. This year, Nevada is conducting its elections almost entirely by mail for the first time, an approach that is being followed statewide. Clark County, which is home to Las Vegas and roughly two-thirds of the state's registered voters, is a Democratic stronghold.
●North Carolina: The 4th Circuit Court of Appeals, with all 15 judges sitting en banc, has upheld a settlement made by the Democratic majority on the North Carolina Board of Elections extending the absentee ballot receipt deadline from three days after Election Day to nine days after (ballots must still be postmarked by Election Day). Republicans are appealing the ruling to the Supreme Court.
Meanwhile in a separate state-level lawsuit, the Democratic majority on North Carolina's Supreme court has rejected issuing a stay in the GOP's attempt to overturn the state board's settlement in state court, leaving provisions in place making it easier for voters to fix purported signature problems on mail ballots. Republicans have not indicated if they will also appeal this ruling to the U.S. Supreme Court.
●Pennsylvania: The Pennsylvania Supreme Court, which has a 5-2 Democratic majority, has unanimously ruled that election officials may not reject mail ballots because of alleged signature mismatches.
●Tennessee: A federal appeals court has declined to overturn a lower court order that put on hold a Tennessee law forbidding first-time voters who register by mail or online from voting absentee and instead requiring them to vote in person.
●Texas: The Texas Supreme Court, which is entirely Republican, has rejected a Republican lawsuit that had sought to block curbside voting in Harris County, the most populous in the state. Meanwhile, a state Court of Appeals panel has upheld a lower court order that blocked GOP Gov. Greg Abbott's order limiting counties to only one location for dropping off mail ballots regardless of population size. Republicans said they would appeal to the state Supreme Court, which would suspend the ruling from going into effect while the appeal is pending.